Remainder inadmissible;Violation of Art. 3 (in case of extradition to Tajikistan);Violation of Art. 5-1;Violation of Art. 5-4;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant was born in 1958 and lives in Dushanbe, Tajikistan. He is currently detained in a remand prison in Moscow.

In May 1992 a civil war erupted in Tajikistan when ethnic groups under-represented in the ruling elite rose up against the national government of President Nabiyev. Politically, the discontented groups were represented by liberal democratic reformists and Islamists, who fought together and later organised themselves under the banner of the United Tajik Opposition (“UTO”). By June 1997 fifty to one hundred thousand people had been killed. On 27 June 1997 a peace agreement was signed by President Rakhmonov and the UTO leader. However, in August 1997 fighting again erupted in several regions of Tajikistan, incited by an opposition group. Government forces retaliated and drove the armed faction of the opposition group to seek sanctuary in Uzbekistan.

The applicant, an ethnic Uzbek, lived in the village of Tajikistan in the Shakhrinavskiy District of Tajikistan. The village was mainly populated by ethnic Uzbeks. In the late 1990s large-scale persecution of ethnic Uzbeks commenced in Tajikistan. There were several armed attacks on the applicant's village; some of his acquaintances were killed.

The local administration of the applicant's village decided to create a number of checkpoints on the way to the village to protect the inhabitants and provided those who manned those checkpoints with firearms. The applicant himself was not given any firearms.

In August 1997 the village was attacked once again; after that, several members of the local militia and the applicant fled to Uzbekistan.

In February 1998 the applicant moved to Russia.

On several occasions the applicant travelled from Russia to Tajikistan. He obtained internal Tajik identity papers and a foreign passport in 2002 and 2004 respectively. His last visit to Tajikistan took place in September 2005.

On 6 February 2001 the Tajik Prosecutor General's Office instituted criminal proceedings against Mr M., a fellow villager of the applicant who had participated in the militia and fled to Uzbekistan in August 1997, charging him with banditry and organisation of an illegal armed group. The applicant was listed as one of the members of the group.

On 16 January 2006 the Tajik Prosecutor General's Office decided to bring charges against the applicant, stating that in August 1997 he had been a member of Mr M.'s illegal armed group and that such actions constituted an act of banditry punishable under Article 74 of the Tajik Criminal Code. It was also decided that the applicant should be put on a wanted list.

On 17 February 2006 the Tajik Prosecutor General's Office decided, in the absence of the applicant, to place him in custody.

On 15 April 2006 the applicant was put on an international wanted list.

On 19 July 2006 the investigation in the applicant's case was suspended as the applicant was at large.

On 13 March 2008 the Tajik Prosecutor General's Office severed the applicant's case from Mr M.'s criminal case. The decision read, in so far as relevant, as follows:

“At the beginning of August 1997 [Mr M.], taking advantage of the unstable situation in Tajikistan, created an illegal armed group to attack legal entities and private individuals; the group was active until the end of August 1997.

At the beginning of August 1997 Mr Khaydarov was a voluntary member of the illegal armed group and participated in armed hostilities.

On 9 and 10 August 1997, after officers of law-enforcement agencies had entered the territory of the Shakhrinavskiy District, Mr M.'s armed group fled the district territory and left Tajikistan.”

On 18 April 2008 the Tajik Prosecutor General's Office sent a request for the applicant's extradition to the Russian Prosecutor General's Office, stating that in August 1997 the applicant had been a member of Mr M.'s illegal armed group.

On 24 April 2008 the Russian Prosecutor General's Office received a request by the Tajik Prosecutor General's Office to extradite the applicant.

On 13 June 2008 the Tajik Prosecutor General's Office sent the Russian Prosecutor General's Office additional documents stating that the applicant had participated in Mr M.'s group which had fought the government troops, and that he had borne arms and had manned the checkpoint in the village of Tajikistan.

On 20 November 2008 the Russian Prosecutor General's Office ordered the applicant's extradition to Tajikistan. The decision read, inter alia, as follows:

“The actions of [Mr] M. Khaydarov are punishable under the Russian criminal law and correspond to Article 209 § 2 of the Russian Criminal Code (participation in a gang), which provides for a sanction in a form of imprisonment for more than one year.

... No [legal] impediments to [Mr] M. Khaydarov's extradition under treaties and Russian laws have been established.”

On 3 December 2008 the applicant was notified of the extradition order of 20 November 2008.

The applicant and his counsel lodged appeals against the decision of 20 November 2008 on 4 and 5 December 2008 respectively. In his appeal the applicant alleged that he was being persecuted in Tajikistan for political reasons related to the civil war.

On 23 December 2008 the Moscow City Court, at the applicant's counsel's request, included in the case file reports by international NGOs on the political climate in Tajikistan and postponed the examination of the appeals because the applicant's appeal against the refusal to grant his asylum request had not yet been examined.

On 21 January 2009 the Moscow City Court again postponed the hearing pending examination of the appeal against the refusal to grant the applicant asylum and requested additional documents from the Russian Prosecutor General's Office concerning the charges brought against the applicant in Tajikistan.

On 4 February 2009 the Moscow City Court sent requests for information to the Russian and Tajik Ministries of Foreign Affairs concerning the applicant's allegations of a risk of ill-treatment, as well as to the Russian Prosecutor General's Office concerning the possibility of amnesty being granted to the applicant in Tajikistan, and postponed a hearing on the appeal against the extradition order pending the completion of the asylum proceedings.

On 17 February 2009 the Russian Prosecutor General's Office informed the City Court that the applicant could not benefit from acts of amnesty in Tajikistan.

On 26 February and 12 March 2009 the Moscow City Court again sent requests for information concerning the applicant's allegations of a risk of ill-treatment to the Russian and Tajik Ministries of Foreign Affairs.

On 27 February 2009 the Moscow City Court again postponed a hearing.

On 24 March 2009 the Russian Ministry of Foreign Affairs informed the Moscow City Court that it had no information concerning any political motives for the applicant's prosecution and noted that Tajikistan had ratified nearly every major international human-rights instrument, including the International Covenant on Civil and Political Rights (ICCPR) and the United Nations (UN) Convention against Torture.

On 1 April 2009 the Moscow City Court questioned Ms Ryabinina, a member of the Expert Council for the Russian Ombudsman, who stated that torture and ill-treatment were frequently practised in Tajikistan.

On the same day the Moscow City Court dismissed at first instance the appeals lodged by the applicant and his counsel against the extradition order of 20 November 2008. The court reasoned, in particular, that the applicant had voluntarily left Tajikistan in 1997 and had been able to freely enter the country since then, that the Tajik Prosecutor General's Office had guaranteed that the applicant had not been prosecuted for political or religious reasons, and that Tajikistan had ratified nearly every major international human-rights instrument. The applicant's allegation that he had been prosecuted in relation to the civil war remained unanswered.

On 6 April 2009 the applicant's counsel appealed against the Moscow City Court's judgment.

On 10 April 2009 the Tajik Prosecutor General's Office informed the Russian Prosecutor General's Office of the following:

“The criminal proceedings against [Mr] Khaydarov are not inspired by any political motives and the Tajik Prosecutor General's Office guarantees that [Mr] Khaydarov will be prosecuted only in respect of the act he was charged with; he will be able to freely leave the territory of Tajikistan after completion of the court proceedings and having served any sentence; he will not be extradited to a third State without the Russian authorities' consent and will not be persecuted on political and religious grounds.”

On 14 May 2009 the Supreme Court of Russia (“the Supreme Court”) quashed the judgment of 1 April 2009 because the Moscow City Court had failed to thoroughly examine the applicant's counsel's claim that the crime that the applicant had been charged with was of a political nature. Moreover, the Supreme Court stated that the Russian Office of the United Nations High Commissioner for Refugees (UNHCR) had confirmed that the applicant's fears of political persecution had been well-founded. The case file was returned to the Moscow City Court for a fresh examination.

On 26 May 2009 the Tajik Prosecutor General's Office informed the Russian Prosecutor General's Office that Tajikistan had ratified the UN Convention against Torture.

On 3 June 2009 the Moscow City Court re-examined the appeals against the extradition order and upheld it. It reasoned that the applicant was a Tajikistani national, held no refugee status and, according to the Tajik Prosecutor General's Office, had not been prosecuted for political or religious reasons. The court also pointed out that the applicant had applied for temporary asylum only on 6 April 2009 and concluded that his application could not impede the examination of the appeals against the extradition order. It further referred to the guarantees of 10 April and 26 May 2009 provided by the Tajik Prosecutor General's Office that the applicant would not be persecuted on political and religious grounds and dismissed the report by Ms Ryabinina as unsubstantiated, arguing that the assurances in question sufficed to exclude the risk of ill-treatment in the applicant's case. The applicant's allegations that the criminal proceedings against him had been linked to the events surrounding the civil war remained unanswered.

On 30 July 2009 the Supreme Court upheld the Moscow City Court's decision of 3 June 2009. It reasoned that Tajikistan had ratified the UN Convention against Torture and referred to the guarantees given by the Tajik Prosecutor General's Office. On the same date the extradition order became final.

On 17 June 2008 the applicant applied to the Moscow Office of the Federal Migration Service (“the Moscow FMS”) for asylum, claiming that the Tajik authorities had persecuted him on the ground of his ethnic origin.

On 6 October 2008 the asylum request was dismissed; on 1 November 2008 the applicant was notified accordingly.

On 28 January 2009 the Zamoskvoretskiy District Court of Moscow dismissed an appeal by the applicant against the decision by the Moscow FMS.

On 26 March 2009 the Moscow City Court upheld the judgment of 28 January 2009 on appeal.

On 6 May 2009 the UN High Commissioner for Refugees declared the applicant a person requiring international protection.

On 22 September 2009 the Moscow FMS rejected the applicant's request for temporary asylum and notified him accordingly on 5 October 2009.

The applicant appealed against the refusal of 22 September 2009 to the Federal Migration Service of Russia (“the Russian FMS”).

On 13 November 2009 the Russian Office of the UNHCR sent the Russian FMS a report in support of the applicant's request for temporary asylum, stating that he ran a real risk of being ill-treated in Tajikistan. The report read, in particular, as follows:

“Mr Khaydarov's allegations [of a risk of ill-treatment] are supported by numerous documents concerning the events of 1997-98 in Tajikistan. ... [E]thnic Uzbeks were subjected to oppression and persecution; in particular, there were reports of numerous killings of civilians before and during the armed conflict in August 1997, which led to a mass exodus of ethnic Uzbeks from northern areas of Tajikistan, in particular to Uzbekistan.

Having examined Mr Khaydarov's application and having assessed his fears regarding his return to [Tajikistan], the UNHCR has established that Mr Khaydarov's application and his fears of being subjected to persecution, on the grounds of political convictions attributed to him, in the form of arrest, torture with a view to obtaining a self-incriminating deposition, unlawful and unfair trial and lengthy imprisonment for acts that he had not committed are well-founded.

... There are strong reasons to believe that the criminal proceedings against the applicant instituted by the Tajik authorities amount to persecution on the grounds of political views attributed to the applicant, since [the Tajik authorities] associate the applicant with anti-governmental activities because he had been a member of militia groups suspected of involvement in the armed conflict of August 1997.

The UNHCR considers that there are serious concerns that Mr Khaydarov will be subjected to torture and other violations of basic human rights, which mean that there is an even greater risk of his being persecuted on the grounds of political views attributed to him. ...[Mr Khaydarov's] case corresponds to the definition of a 'refugee' within the meaning of the 1951 United Nations Convention Relating to the Status of Refugees and the Russian Refugees Act.

... Mr Khaydarov is charged with ... banditry. However, it is noteworthy that the criminal case in which Mr Khaydarov is charged was opened in 2001 and the preliminary investigation concerning Mr Khaydarov was suspended in 2006, which shows that during such a lengthy period of investigation no proof of his guilt had been found and that the requesting State has no such proof.

The Tajik authorities have not provided a single piece of factual evidence of Mr Khaydarov's criminal activity in his country of origin, and the documents provided by the Tajik counterparty as a basis for extradition are contradictory. ... [t]he UNHCR concludes that there is no reliable evidence of the fact that Mr Khaydarov committed criminal acts, such as banditry, while in Tajik territory.”

On 17 April 2008 the applicant was arrested in Moscow as a person wanted by the Tajik authorities. Upon his arrest the applicant learned for the first time that there had been criminal proceedings against him. On the same date the Tajik Ministry of the Interior requested the Russian police to keep the applicant in custody pursuant to the Minsk Convention.

The applicant was then placed in remand prison IZ-77/4 in Moscow.

On 19 April 2008 the Taganskiy District Court of Moscow ordered the applicant's placement in custody pending extradition pursuant to Articles 97, 99 and 108 and Article 466 § 1 of the Russian Code of Criminal Procedure (CCP). The court stated that on 19 July 2006 the applicant had been put on a wanted list and that he had no permanent place of residence in Russia and concluded that, if not in custody, he could escape and impede his extradition to Tajikistan. The term of the detention was not specified.

On 18 June 2008 the Taganskiy District Court again ordered the applicant's placement in custody pursuant to Articles 108 and 466 of the CCP for an unspecified period of time. The court reasoned that less severe preventive measures could not be applied because the applicant had been at large since 1996, was a Tajikistani national, had no registered place of residence in Russia and was charged with a crime that was punishable by imprisonment for more than two years.

On 6 October 2008 the applicant's counsel applied to the governor of remand prison IZ-77/4 for the applicant's release, claiming that the maximum detention period permitted by domestic law had expired. On 16 October 2008 the governor of the remand prison replied that the applicant had not appealed against the decision of 18 June 2008 authorising his detention and that the question of his release should be decided upon by the Russian Prosecutor General's Office.

On 1 December 2008 the applicant's counsel complained to the Babushkinskiy District Court of Moscow that the applicant's detention was unlawful.

On 10 December 2008 the Babushkinskiy District Court informed the applicant's counsel that it had no jurisdiction to examine the complaint.

On 23 January 2009 the applicant's counsel complained to the Tverskoy District Court of Moscow, under Article 125 of the CCP, that the Russian Prosecutor General's Office had unlawfully failed to apply for an extension of the term of the applicant's detention as required by Article 109 of the CCP. On 27 January 2009 the President of the Tverskoy District Court returned the complaint for elimination of discrepancies.

On 4 May 2009 the applicant's counsel lodged another complaint under Article 125 of the CCP with the Zamoskvoretskiy District Court of Moscow, alleging inaction on the part of the Russian Prosecutor General's Office.

On 7 May 2009 the Zamoskvoretskiy District Court refused to examine the applicant's complaint of 4 May 2009 for the reason that its subject matter did not fall within the ambit of Article 125 of the CCP.

On 14 May 2009 the Supreme Court ruled that the preventive measure applied to the applicant should remain unvaried until 4 June 2009.

On 3 June 2009 the Moscow City Court ruled that the preventive measure applied to the applicant should remain unvaried.

On 27 July 2009 the Moscow City Court quashed the decision of the Zamoskvoretskiy District Court of 7 May 2009 and remitted the matter to the first-instance court for a fresh examination.

On 4 September 2009 the Zamoskvoretskiy District Court again dismissed the applicant's complaint, arguing that Article 125 of the CCP was inapplicable since there had been no criminal proceedings pending against the applicant in Russia. It reasoned as follows:

“The [applicant's] requests to declare unlawful the inaction of the Moscow prosecutor's office on account of its failure to perform its function of supervising compliance with the law in custodial institutions could not be examined under Article 125 of the CCP because the prosecutors' supervision of the custodial system is not related to the criminal proceedings against [Mr] Khaydarov.

Acts and inaction of agents of the prosecutor's office can be challenged by way of another procedure which is not provided for in Article 125 of the CCP.

The request for extension of the term of custodial detention is an exclusive right of the competent bodies and a court is not entitled to impel [those bodies] to bring such requests.”

On 11 September 2009 the applicant's counsel appealed against the decision of 4 September 2009.

On 14 September 2009 the applicant's counsel complained to the Taganskiy District Court that the applicant's detention was unlawful. Referring to Article 5 § 4 of the Convention, she argued that Article 109 of the CCP had been breached in the applicant's case as his term of detention had not been extended and that there had been no judicial review of the lawfulness of the detention.

On 16 September 2009 a judge of the Taganskiy District Court sent the applicant's counsel a letter explaining that it was open to the applicant to appeal against the decision on choosing the preventive measure and that there were no other avenues of complaining of the alleged unlawfulness of detention.

On 5 October 2009 the applicant's counsel appealed against the refusal to examine her complaint. On 13 October 2009 the judge of the Taganskiy District Court sent her a letter explaining that the previous letter could not be appealed against.

On 26 October 2009 the Moscow City Court dismissed the appeal against the decision of 4 September 2009.

On 8 December 2009 the applicant's counsel requested the Russian Prosecutor General's Office to release the applicant.

Chapter 13 of the CCP governs the application of preventive measures. Preventive measures may be applied to a suspect or a person charged with an offence where it is probable that the person in question might abscond, continue to be engaged in criminal activities, threaten witnesses or impede the investigation (Article 97). When deciding on the necessity to apply a preventive measure, it is necessary to take into account the gravity of the charges and the various personal details of the person concerned (Article 99). Placement in custody is a preventive measure applied on the basis of a court decision to a person suspected of or charged with a crime punishable with at least two years' imprisonment where it is impossible to apply a more lenient preventive measure (Article 108 § 1). A request for placement in custody should be lodged by a prosecutor (or an investigator or inquirer with a prosecutor's prior approval) (Article 108 § 3). The request should be examined by a judge of a district court or a military court of a corresponding level (Article 108 § 4). A judge's decision on placement in custody may be challenged before an appeal court within three days (Article 108 § 11). The period of detention pending investigation of a crime cannot exceed two months (Article 109 § 1) but may be extended up to six months by a judge of a district court or a military court of a corresponding level further to a request lodged by a prosecutor (or an investigator or inquirer with a prosecutor's prior approval) (Article 109 § 2). Further extensions up to twelve months may be granted on an investigator's request approved by a prosecutor of the Russian Federation only if the person is charged with serious or particularly serious criminal offences (Article 109 § 3).

Chapter 16 of the CCP lays down the procedure by which acts or decisions of a court or public official involved in criminal proceedings may be challenged. Decisions taken by police or prosecution investigators or prosecutors not to initiate criminal proceedings, or to discontinue them, or any other decision or inaction capable of impinging upon the rights of “parties to criminal proceedings” or of “hindering an individual's access to court” may be subject to judicial review (Article 125).

Upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court, the Prosecutor General or his deputy is to decide on the preventive measure in respect of the person whose extradition is sought. The preventive measure is to be applied in accordance with the established procedure (Article 466 § 1).

Verifying the compatibility of Article 466 § 1 of the CCP with the Russian Constitution, the Constitutional Court reiterated its settled case-law to the effect that excessive or arbitrary detention, unlimited in time and without appropriate review, was incompatible with Article 22 of the Constitution and Article 14 § 3 of the International Covenant on Civil and Political Rights in all cases, including extradition proceedings.

In the Constitutional Court's view, the absence of specific regulation of detention matters in Article 466 § 1 did not create a legal lacuna incompatible with the Constitution. Article 8 § 1 of the 1993 Minsk Convention provided that, in executing a request for legal assistance, the requested party would apply its domestic law, that is, the procedure laid down in the CCP. Such procedure comprised, in particular, Article 466 § 1 of the Code and the norms in its Chapter 13 (“Preventive measures”), which, by virtue of their general character and position in Part I of the Code (“General provisions”), applied to all stages and forms of criminal proceedings, including proceedings for the examination of extradition requests.

The Constitutional Court emphasised that the guarantees of the right to liberty and personal integrity set out in Article 22 and Chapter 2 of the Constitution were fully applicable to detention with a view to extradition. Accordingly, Article 466 of the CCP did not allow the authorities to apply a custodial measure without complying with the procedure established in the CCP or in excess of the time-limits fixed in the Code.

In this decision the Constitutional Court reiterated that Article 466 of the CCP did not imply that detention of a person on the basis of an extradition request did not have to comply with the terms and time-limits provided for in the legislation on criminal procedure.

The Prosecutor General asked the Constitutional Court for an official clarification of its decision no. 101-O of 4 April 2006 (see above), for the purpose, in particular, of elucidating the procedure for extending a person's detention with a view to extradition.

The Constitutional Court dismissed the request on the ground that it was not competent to indicate specific provisions of the criminal law governing the procedure and time-limits for holding a person in custody with a view to extradition. That matter was within the competence of the courts of general jurisdiction.

The Constitutional Court reiterated its settled case-law to the effect that the scope of the constitutional right to liberty and personal inviolability was the same for foreign nationals and stateless persons as for Russian nationals. A foreign national or stateless person may not be detained in Russia for more than forty-eight hours without a judicial decision. That constitutional requirement served as a guarantee against excessively long detention beyond forty-eight hours, and also against arbitrary detention as such, in that it required a court to examine whether the arrest was lawful and justified.

The Constitutional Court held that Article 466 § 1 of the Code of Criminal Procedure, read in conjunction with the Minsk Convention, could not be construed as permitting the detention of an individual for more than forty-eight hours, on the basis of a request for his or her extradition, without a decision by a Russian court. A custodial measure could be applied only in accordance with the procedure established in the Russian Code of Criminal Procedure and within the time-limits fixed in the Code.

Recommendation No. R (98) 13 of the Council of Europe Committee of Ministers to Member States on the right of rejected asylum seekers to an effective remedy against decisions on expulsion in the context of Article 3 of the European Convention on Human Rights reads as follows:

Without prejudice to the exercise of any right of rejected asylum seekers to appeal against a negative decision on their asylum request, as recommended, among others, in Council of Europe Recommendation No. R (81) 16 of the Committee of Ministers...

An effective remedy before a national authority should be provided for any asylum seeker, whose request for refugee status is rejected and who is subject to expulsion to a country about which that person presents an arguable claim that he or she would be subjected to torture or inhuman or degrading treatment or punishment.

In applying paragraph 1 of this recommendation, a remedy before a national authority is considered effective when: ...

2.2. that authority has competence both to decide on the existence of the conditions provided for by Article 3 of the Convention and to grant appropriate relief; ...

2.4. the execution of the expulsion order is suspended until a decision under 2.2 is taken.”

The Council of Europe Commissioner for Human Rights issued a Recommendation (CommDH(2001)19) on 19 September 2001 concerning the rights of aliens wishing to enter a Council of Europe Member State and the enforcement of expulsion orders, part of which reads as follows:

“11. It is essential that the right of judicial remedy within the meaning of Article 13 of the ECHR be not only guaranteed in law but also granted in practice when a person alleges that the competent authorities have contravened or are likely to contravene a right guaranteed by the ECHR. The right of effective remedy must be guaranteed to anyone wishing to challenge a refoulement or expulsion order. It must be capable of suspending enforcement of an expulsion order, at least where contravention of Articles 2 or 3 of the ECHR is alleged.”

For other relevant documents, see the Court's judgment in the case of Gebremedhin [Gaberamadhien] v. France, no. 25389/05, §§ 36-38, ECHR 2007V.

When performing actions requested under the Minsk Convention, to which Russia and Tajikistan are parties, a requested official body applies its country's domestic laws (Article 8 § 1).

Upon receipt of a request for extradition, the requested country should immediately take measures to search for and arrest the person whose extradition is sought, except in cases where no extradition is possible (Article 60).

The person whose extradition is sought may be arrested before receipt of a request for extradition if there is a related petition. The petition must contain a reference to a detention order and indicate that a request for extradition will follow (Article 61 § 1). If the person is arrested or placed in detention before receipt of the extradition request, the requesting country must be informed immediately (Article 61 § 3).

A person detained pending extradition pursuant to Article 61 § 1 of the Minsk Convention must be released if the requesting country fails to submit an official request for extradition with all requisite supporting documents within forty days from the date of placement in custody (Article 62 § 1).

Conclusions and Recommendations: Tajikistan, issued by the UN Committee against Torture on 7 December 2006 (CAT/C/TJK/CO/1), refer to the following areas of concern regarding the human-rights situation in the country:

“The definition of torture provided in domestic law ... is not fully in conformity with the definition in article 1 of the Convention, particularly regarding purposes of torture and its applicability to all public officials and others acting in an official capacity.

There are numerous allegations concerning the widespread routine use of torture and ill-treatment by law enforcement and investigative personnel, particularly to extract confessions to be used in criminal proceedings. Further, there is an absence of preventive measures to ensure effective protection of all members of society from torture and ill treatment.

The Committee is also concerned at:

(a) The lack of a legal obligation to register detainees immediately upon loss of liberty, including before their formal arrest and arraignment on charges, the absence of adequate records regarding the arrest and detention of persons, and the lack of regular independent medical examinations;

(b) Numerous and continuing reports of hampered access to legal counsel, independent medical expertise and contacts with relatives in the period immediately following arrest, due to current legislation and actual practice allowing a delay before registration of an arrest and conditioning access on the permission or request of officials;

(c) Reports that unlawful restrictions of access to lawyers, doctors and family by State agents are not investigated or perpetrators duly punished;

(d) The lack of fundamental guarantees to ensure judicial supervision of detentions, as the Procuracy is also empowered to exercise such oversight;

(e) The extensive resort to pretrial detention that may last up to 15 months; and

(f) The high number of deaths in custody.

There are continuing and reliable allegations concerning the frequent use of interrogation methods that are prohibited by the Convention by both law enforcement officials and investigative bodies.

There are reports that there is no systematic review of all places of detention, by national or international monitors, and that regular and unannounced access to such places is not permitted.”

Minority Rights Group International in its document “Tajikistan: Overview”, updated in January 2008, describes the situation of the Uzbek minority in Tajikistan as follows:

“The situation in Tajikistan is similar in many respects to that of its neighbours. ... Since independence, Tajiks have attempted to assert their dominance by linguistic and other preferences that tend to discriminate against and exclude minorities, often leading to resentment or even an exodus. While they were close to a quarter of the population at the time of independence, many Uzbeks fled during the period of the civil war. They remain the largest minority at over 15 percent of the population according to a 2000 census, and are concentrated in areas usually associated with opposition to the government. This has led to a general distrust of Uzbeks, and in turn discriminatory treatment towards them in many institutions of the state. Once again, oppressive measures have been presented as necessary in the name of the fight against 'terror' and 'separatism'. The degree of under-representation of minorities in public life is startling: only two members of Parliament are Uzbeks, despite this minority's very substantial numbers.

... Despite constitutional provisions that initially appear to guarantee the use of minority languages, and despite the large percentage of minorities in the country, in particular Uzbeks, minorities are largely excluded from employment in public service.”

The World Report Chapter: Tajikistan by Human Rights Watch, released in January 2009, describes the human-rights situation in the country as follows:

“Tajikistan's definition of torture does not comply fully with the UN Committee Against Torture's recommendations to the country in December 2006. In a positive move, in March 2008 the Criminal Procedure Code was amended to make evidence obtained under torture inadmissible in court proceedings.

Experts agree that in most cases there is impunity for rampant torture in Tajikistan. In one of the few cases that reached the courts, two policemen in Khatlon province were convicted in August 2008 for ill-treating minors; one of the two received a fouryear prison sentence, and the other a suspended sentence.

NGOs and local media reported at least three deaths in custody in 2008, including the death from cancer of the ex-deputy chair of the Party of Islamic Revival Shamsiddin Shamsiddinov. The party alleged his arrest in 2003 was politically motivated and claimed that his life could have been saved had he been allowed to undergo surgery.

In an April 1, 2008 decision (Rakhmatov et al. v. Tajikistan) the UN Human Rights Committee found that Tajikistan violated the rights, including freedom from torture, of five applicants, two of them minors when they were arrested. Tajikistan failed to cooperate with the committee's consideration of the complaint. Similar violations were established in an October 30, 2008 decision (Khuseynov and Butaev v. Tajikistan).”

The 2009 US Department of State Country Report on Human Rights Practices, released on 11 March 2010, provides the following information in relation to Tajikistan:

“The government's human rights record remained poor, and corruption continued to hamper democratic and social reform. The following human rights problems were reported: ... torture and abuse of detainees and other persons by security forces; impunity of security forces; denial of right to fair trial; harsh and life-threatening prison conditions; prohibition of international monitor access to prisons; ...

The law prohibits [cruel, inhumane or degrading treatment or punishment], but some security officials used beatings or other forms of coercion to extract confessions during interrogations, although the practice was not systematic. Officials did not grant sufficient access to information to allow human rights organizations to investigate claims of torture.

The Ministry of Justice (MOJ) continued to deny access to prisons or detention facilities to representatives of the international community and civil society seeking to investigate claims of harsh treatment or conditions. Some foreign diplomatic missions and NGOs were given access to implement assistance programs or carry out consular functions, but their representatives were limited to administrative or medical sections, and MOJ personnel accompanied them. The government did not sign an agreement with the International Committee of the Red Cross (ICRC) to allow free and unhindered access to prisons and detention centres, and the ICRC's international monitoring staff has not returned to the country since 2007.

Detainees and inmates described harsh and life-threatening prison conditions, including extreme overcrowding and unsanitary conditions. Disease and hunger were serious problems, but outside observers were unable to assess accurately the extent of the problems because authorities did not allow access to prisons. Organizations such as the UN Human Rights Council reported that infection rates of tuberculosis and HIV were significant and that the quality of medical treatment was poor.

Victims of police abuse may submit a formal complaint in writing to the officer's superior or the Office of the Ombudsman. Most victims chose to remain silent rather than risking retaliation by the authorities.

Trials are public, except in cases involving national security. There is a presumption of innocence by law, but in practice defendants were presumed guilty. ... In national security cases, a panel consisting of a presiding judge and two 'people's assessors' determines the guilt or innocence of the accused. Qualifications of the assessors and how those qualifications are determined are not known, but their role is passive, and the presiding judge dominates the proceedings.

Authorities claimed that there were no political prisoners and that they did not make any politically motivated arrests. Opposition parties and local observers claimed the government selectively prosecuted political opponents. There was no reliable estimate of the number of political prisoners, but former opposition leaders claimed there were several hundred such prisoners held in the country, including former fighters of the UTO.”


Violation of Art. 6-1;No violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

The applicant, Mrs Danutė Balsytė-Lideikienė, is a Lithuanian national, who was born in 1947. At present she lives in Lithuania.

The applicant is the founder and owner of a publishing company “Metskaitliai”. Since 1995 the company has published “Lithuanian calendar” (Lietuvio kalendorius), a yearly calendar with notes by the applicant and other contributors describing various historic dates from the perspective of its authors. The calendar could be purchased in bookstores. It was distributed in Lithuania and among Lithuanian immigrants living abroad.

On 4 January 2000 a Member of the Lithuanian Parliament (Seimas) distributed a public announcement, stating that the texts published in “Lithuanian calendar 2000” insulted persons of Polish, Russian and Jewish origin. The relevant parts of “Lithuanian calendar” read as follows:

[First page of the calendar]: “Lietuva – the land of the Lithuanians, as each footprint here bears traces of our Nation's blood”

15 February: “In 1998, on the eve of the 80th anniversary of the restoration of the independence of Lithuania, a Pole insidiously killed nine Lithuanians living in Širvintų district's Draučių village – all the inhabitants of the village were shot. (...) The Nation was informed about the tragedy after thirty six hours – during this time Lithuanian [high society] were celebrating and enjoying themselves, hugged the Polish president, put flowers [on the monuments] to Pilsudski's army, drank and danced their ghastly dance on the freshly spilled blood of Lithuanians whose whole village had been murdered.”

17 March: “The new Lithuanian government (...) puts on trial the Lithuanian nation for the extermination of the Jews (...) but is not interested in the genocide of the Lithuanians and dances Jewish foxtrots to the music of the Wiesenthals and Zurroffs.”

26 April: “In 1944 in the vicinity of Rodūnia the Polish Krajova Army killed 12 Lithuanians for the sole reason that they were Lithuanians.”

15 June: “The soviet occupying power, with the help of the communist collaborators, among whom, in particular, were many Jews, for half a century ferociously carried out the genocide and colonisation of the Lithuanian nation.”

23 June: “In 1944 in Dubingiai and its surrounding area the Polish Krajova Army brutally killed more than a hundred Lithuanians (...) among whom were women, little children, even babies and old people. This was the way the Poles, in war conditions, carried out ethnic cleansing. In the whole territory of Lithuania [the members of the Krajova Army] killed about 1 000, and in the ethnic Lithuanian lands about 3 000 more innocent people, for the sole reason that they were Lithuanians. The Dubingiai events should be regarded as the genocide of the Lithuanian nation. But the Lithuanian authorities [who associate themselves with the Poles] ignore obvious facts and do not even attempt to evaluate these war crimes.”

15 July: “Through the blood of our ancestors to the worldwide community of the Jews”

18 July: “In 1999 the monument to the victims of the Polish Krajova Army was put up and consecrated in Dubingiai. (...) In 1944 in the environs of Dubingiai the Polish Krajova Army plundered and killed innocent people solely because they were Lithuanians. The killings of 8 March and 23 June 1944 are horrible [acts of] ethnic cleansing and cruel war crimes that cannot be solved by simply constructing a monument to the victims. There is no statutory time-limit on prosecution of war crimes, the war criminals should be identified and tried. (...)”

31 August: “occupying Russian army”, “Russian occupants”

10 September: “The March of the Beggars. In 1997 (...) about fifty Lithuanian beggars demonstrated in front of the Parliament. They were joined by a few thousand Vilnius residents. The purpose of this act was to attract the Parliament's and the Government's attention to poverty (...) in Lithuania. Unfortunately, the public gathering of the beggars did not receive any attention from the heads of the Lithuanian State. At the same time a banquet for the Jews took place in Vilnius. The banquet cost Lithuania a million litas. A feast during the plague. (...) The Jews were managing the Parliament; from the tribune of the Parliament the Jews were insulting and scolding the Lithuanian nation, asking for Lithuanian blood and Lithuanian property. The majority of the ruling Conservative party (...) greeted the swearing Jews with standing ovations.”

24 November: “The Lithuanian nation will only survive by being a nationalist nation – no other way exists!”

5 December: “In 1991 the Supreme Council (Parliament) of the Republic of Lithuania (...) adopted the “zero” citizenship law, proposed by V. Landsbergis. The law illegally gave citizenship to occupants and colonists and the Lithuanians became worthless.”

22 December: “The politicians adopted legislation demonstrating their anti-Lithuanian attitude. This way, the conservative neo-Bolsheviks took their revenge on the Lithuanian nation, executing the will of the Jewish extremists. ”

24 December: “21 Lithuanians were brutally killed during the Christmas of 1944. Half a century passed and on Christmas Eve the Pharisees (...) who took power started new executions against the Lithuanians and the Lithuanian nation, carrying out pro-Jewish politics.”

The back cover of “Lithuanian calendar 2000” contained a map of the Republic of Lithuania. The neighbouring territories of the Republic of Poland, the Russian Federation and the Republic of Belarus were marked as “ethnic Lithuanian lands under temporary occupation”.

On 10 January 2000 a Seimas committee requested the Office of the Prosecutor General to investigate whether the publication was compatible with the Lithuanian Constitution and other legal acts.

On 12 January 2000 the Prime Minister wrote a letter to the State Security Department, requesting it to examine whether “the contents of 'Lithuanian calendar 2000' contained the elements of violations of ethnic and racial equality”.

On the same date the Lithuanian Foreign Ministry also received a note from the Russian Embassy, expressing its dissatisfaction with the publication's map describing certain territories of the Russian Federation as “ethnic Lithuanian lands under temporary occupation”.

On 13 January 2000 a similar note was received from the Embassy of Belarus.

On 14 January 2000 the State Security Department requested Vilnius University to submit an experts' opinion as to whether “Lithuanian calendar 2000” promoted ethnic, racial or religious hostility. In this regard the security intelligence authorities requested the experts to examine whether “Lithuanian calendar 2000” contained anti-Semitic, anti-Polish, anti-Russian expressions, or assertions of the superiority of Lithuanians vis-à-vis other ethnic groups.

On 20 January 2000 two experts, history and political science professors at Vilnius University, found that “Lithuanian calendar 2000” could be characterised as promoting the radical ideology of nationalism, which rejected the idea of the integration of civil society, incited ethnocentrism, contained xenophobic and offensive statements, in particular with regard to the Jewish and Polish populations, and promoted territorial claims and national superiority vis-à-vis other ethnic groups. The experts nonetheless noted that the calendar did not directly incite violence against the Jewish population, nor did it advocate implementing discriminatory policy against this ethnic group.

At the end of January 2000 the security intelligence authorities seized a number of copies of “Lithuanian calendar 2000” in various bookstores in Lithuania. The distribution of the publication was stopped.

By a letter of 31 January 2000 the Prosecutor General informed the Prime Minister that, following the examination of the content of “Lithuanian calendar 2000”, no elements of a criminal offence (instigation of ethnic or racial hatred) had been found in the applicant's releasing of the publication. However, the Prosecutor General held that in this respect the applicant should have been punished by way of the administrative procedure under Article 21412 of the Code on Administrative Law Offences (Production, storage and distribution of information materials promoting ethnic, racial or religious hatred). He stated that the security intelligence authorities had applied to an administrative court for a penalty to be imposed on the applicant under the domestic provision. The Prosecutor General also informed the Prime Minister that the distribution of the calendar had been suspended pending the determination of the case by a court.

On 14 February 2000 the officers of the State Security Department held that the applicant should be punished by the administrative procedure provided by Article 21412 of the Code on Administrative Law Offences.

On 28 June 2000 the Vilnius City Second District Court found that the applicant had produced 3,000 copies of “Lithuanian calendar 2000”, 588 of which had been sold. By reference mostly to the experts' conclusion of 20 January 2000, the court held that the applicant thereby intended to distribute material promoting ethnic hatred in breach of Article 21412 of the Code of Administrative Law Offences. The Court imposed an administrative fine in the amount of 1,000 Lithuanian litai (LTL) on the applicant and ordered confiscation of all copies of “Lithuanian calendar 2000” seized in the bookstores.

The court examined the case in the absence of the applicant or her lawyer. It was noted however that she had been duly informed of the date and place of the hearing, but that she had not submitted a request to postpone the examination or an explanation of the reasons for her absence. Therefore the court had concluded that the case could be examined without the applicant being present.

The applicant appealed, claiming in particular a violation of Article 10 of the Convention. She also argued that she had been tried in absentia.

On 16 August 2000 the Vilnius Regional Court quashed the first-instance judgment on the ground that the applicant had been in hospital from 27 June to 3 July 2000 and could not take part in the first-instance hearing. The case was remitted for a fresh examination at first instance.

On 28 September 2000 a judge of the Vilnius City Second District Court ordered another expert examination to be carried out. The court requested Vilnius University to form a group of experts representing various fields of social science in order to produce a conclusion on whether “Lithuanian calendar 2000” promoted ethnic, racial or religious hatred, whether it contained anti-Semitic, anti-Polish, anti-Russian expressions, or assertions of the superiority of Lithuanians vis-à-vis other ethnic groups.

In reply to the court's decision, four separate expert opinions were produced, reflecting the point of view of Vilnius University professors specialising in the following fields: history, psychology, political science and library science.

On 12 March 2001 the applicant submitted a written request, received by the Vilnius City Second District Court the following day, by which she asked the court to postpone the hearing as the experts had not appeared at the hearing for the third time in a row. The applicant also asked the court to determine the reasons behind the experts' absence and to sanction them. The court did not grant the applicant's requests.

On 13 March 2001 the Vilnius City Second District Court found that by publishing and distributing “Lithuanian calendar 2000” the applicant had breached Article 21412 of the Code on Administrative Offences. The court imposed an administrative penalty in the form of a warning on her, while the unsold copies of the calendar and the means to produce it were confiscated.

By reference to the conclusions of the experts in the field of political science the court stated that a one-sided portrayal of relations among nations obstructed the consolidation of civil society and promoted ethnic hatred. The court also noted that “Lithuanian calendar 2000” had caused negative reactions from part of society as well as from the diplomatic representations of some neighbouring States, including Poland, Belarus and Russia, who had expressed their concerns about the map denoting some of the territories of those countries as “ethnic Lithuanian lands under temporary occupation”. Relying on the conclusion of the bibliographic expert report the Vilnius City Second District Court noted that the publication did not meet the prescribed standards because, among other things, the calendar contained no indication of the sources and literature that had been used, and the name of the author of each statement in the calendar was not provided. The court concluded that the applicant had prepared, published and distributed the calendar and was therefore responsible for its content.

By reference to the conclusions of the experts in the fields of history and psychology the court held that the applicant's actions had not been deliberate, but reckless. The court relied on the psychological experts' report that “Lithuanian calendar 2000” represented the personal character, values and emotions of the applicant. The court noted the conclusion of the experts in psychology that the publication did not contain expressions of hatred against the Polish population, the superiority of the Lithuanians over other nationals was not emphasised, and the negative statements about the Jewish population were not to be seen as anti-Semitic. However the Vilnius City Second District Court concluded that the psychology experts' conclusion did not refute the other evidence collected and the remaining evidence confirmed that there had been a violation of administrative law.

The court emphasised that the breach of the administrative law committed by the applicant was not serious, and that it had not caused significant harm to society's interests. The court also noted the applicant's disability and absence of previous convictions.

In view of those circumstances and given the negligent nature of the offence, the court decided to impose an administrative warning under Article 301 of the Code on Administrative Law Offences, which was a milder administrative penalty than the fine of between LTL 1,000 and LTL 10,000 prescribed by Article 21412.

The case was examined in the presence of the applicant and a representative of the security intelligence authorities. The applicant left the hearing in the course thereof. At the hearing she was not represented by a lawyer.

The applicant appealed, claiming in particular that Article 10 of the Convention had been violated. She also complained that the first-instance court had not called the experts to the hearing, thereby violating her defence rights.

On 4 May 2001 the Supreme Administrative Court reviewed the case under written procedure. The applicant relied on the conclusion of the psychological experts' report, arguing that “Lithuanian calendar 2000” did not promote hatred against the Poles, Jews or Russians, nor did it claim the superiority of the Lithuanians over other nations. According to the appellate court, these were the conclusions of experts in one field only, whereas the rest of the evidence, namely the political science and bibliographical experts' reports, attested that the comments in the calendar were based on the ideology of extreme nationalism, which rejected the idea of civil society's integration and endorsed xenophobia, national hatred and territorial claims.

The court disagreed with the applicant's argument that her defence rights had been violated because the first-instance court had failed to call the experts to have them challenged at the hearing. The Supreme Administrative Court stated:

“The [applicant's] argument that the [first-instance] court violated procedural legal norms because the experts were not present at the court hearing, is not valid. The first- instance court, relying on its inner belief, evaluated the experts' conclusions both as to their reasonableness and as to their comprehensiveness. Article 277 § 1 of the Code on Administrative Law Offences provides for a possibility to summon the experts if there is a need to explain the conclusions the latter had presented. The fact, that this possibility had not been used, cannot be regarded as a violation of procedural legal norms.”

Relying on the above arguments, the Supreme Administrative Court dismissed the appeal.

On an unspecified date the applicant left Lithuania. She applied for political asylum in Switzerland. Later the applicant returned to Lithuania. She lives in Vilnius.

The Constitution of the Republic of Lithuania, as relevant in this case, provides as follows:

“Everyone shall have the right to hold opinions and freely express them.

No one may be prevented from seeking, receiving and imparting information and ideas.

Freedom of expression, freedom to receive and impart information may not be restricted in any way other than by law and when it is necessary for the protection of health, dignity, private life, and morals, or for the defence of the constitutional order.

Freedom of expression and freedom to impart information shall be incompatible with criminal actions - incitement of national, racial, religious, or social hatred, violence or discrimination, slander or disinformation.”

The Code on Administrative Law Offences (“the Code”) punishes with administrative penalties various minor offences which are not provided for in the domestic substantive criminal law.

Article 1 of the Code provides that all citizens must ensure respect for legal rules and the rights of other citizens. Article 9 of the Code defines an administrative offence as a wrongful act which causes danger to public order, citizens' rights or the established order of administration.

Article 20 of the Code provides that administrative punishment is a form of establishing responsibility that has the aim of punishing offenders, educating them to observe the law and preventing them reoffending.

An administrative warning is a penalty under Article 301 and it can be used to replace a harsher penalty the Code prescribes for a particular offence; the administrative warning is also intended to serve as a preventive measure, in the same way as a suspended sentence in criminal law.

Article 21412 of the Code punishes the production, storage and distribution of information material promoting national, racial or religious hatred by a fine of between LTL 1,000 and LTL 10,000 with the confiscation of the material, with or without confiscation of its main means of production.

Article 256 provides that an expert's conclusion can be considered as evidence. Pursuant to Article 277, an expert can be appointed when special knowledge is required for solving the case.

Under Article 272 of the Code, a person who is liable for an administrative sanction has the right to familiarise himself with the material of the case and to submit explanations and evidence, as well as to lodge requests.

Article 314 of the Code stipulates that if a fine has been imposed on a person and the latter does not possess the means to pay it, a court can substitute the fine with administrative arrest of up to 30 days.

Article 53 of the Law on Administrative Proceedings (LAP), as in force at the material time, provided that, among other procedural rights, the parties were entitled to question other participants in the process, including witnesses and experts, to take part in the examination of evidence and to present explanations.

Under Article 130 of the LAP, parties had the right to bring an appeal against a decision of a first-instance court. The appeal should indicate, among other things, evidence to support its grounds.

Article 144 of the LAP stipulated that appeal proceedings against a decision or ruling in cases relating to administrative law offences were conducted in writing. Upon the decision of the chamber of judges, an oral hearing of a specific case could be held.

Article 20 § 2 of the International Covenant on Civil and Political Rights, in force in the Republic of Lithuania since 20 February 1992, provides:

“Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”.

The International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the Republic of Lithuania on 9 January 1999, provides, insofar as relevant, as follows:

“1. In this Convention, the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on ... national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”

“1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means ... of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:

(d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization ...”

“States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.”

“States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:

(a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin ...”

According to Article 6 § 2 of the Framework Convention for the Protection of National Minorities, signed within the framework of the Council of Europe and in force in the Republic of Lithuania since 1 July 2000:

“The Parties undertake to take appropriate measures to protect persons who may be subject to threats or acts of discrimination, hostility or violence as a result of their ethnic, cultural, linguistic or religious identity.”

The European Commission against Racism and Intolerance General Policy, in its Recommendation no. 1: Combating racism, xenophobia, anti-Semitism and intolerance, recommends that the Governments of the member States, insofar as relevant, “ensure that national criminal, civil and administrative law expressly and specifically counter racism, xenophobia, anti-Semitism and intolerance”.

Appendix to Recommendation no. R (97) 20 of the Committee of Ministers to Member States on “Hate speech”, drafted within the framework of the Council of Europe, provides, insofar as relevant, as follows:

“The principles set out hereafter apply to hate speech, in particular hate speech disseminated through the media.

For the purposes of the application of these principles, the term “hate speech” shall be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, antisemitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.”

“The governments of the member states should establish or maintain a sound legal framework consisting of civil, criminal and administrative law provisions on hate speech which enable administrative and judicial authorities to reconcile in each case respect for freedom of expression with respect for human dignity and the protection of the reputation or the rights of others.”

“The governments of the member states should ensure that ... interferences with freedom of expression are narrowly circumscribed and applied in a lawful and non-arbitrary manner on the basis of objective criteria. Moreover ... any limitation of or interference with freedom of expression must be subject to independent judicial control. This requirement is particularly important in cases where freedom of expression must be reconciled with respect for human dignity and the protection of the reputation or the rights of others.”

“National law and practice should allow the courts to bear in mind that specific instances of hate speech may be so insulting to individuals or groups as not to enjoy the level of protection afforded by Article 10 of the European Convention on Human Rights to other forms of expression. This is the case where hate speech is aimed at the destruction of the rights and freedoms laid down in the Convention or at their limitation to a greater extent than provided therein.”

“National law and practice should allow the competent prosecution authorities to give special attention, as far as their discretion permits, to cases involving hate speech. In this regard, these authorities should, in particular, give careful consideration to the suspect's right to freedom of expression given that the imposition of criminal sanctions generally constitutes a serious interference with that freedom. The competent courts should, when imposing criminal sanctions on persons convicted of hate speech offences, ensure strict respect for the principle of proportionality.”


David Thór Björgvinsson;Ján Šikuta;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicants (first applicant: Mr Andreas Manitaras; second applicant: Mr Elias Elia; third applicant: Mr Panayiotis Elia; fourth applicant: Mrs Anna Manitara; fifth applicant: Mrs Evangelia Manitara; sixth applicant: John Manitaras) are six Cypriot nationals of Greek Cypriot origin who were born in 1939, 1955, 1956, 1957, 1959 and 1964 respectively. The second applicant is living in Meneou and the third, fourth and fifth applicants are living in Paralimni. The first and sixth applicants have dual Cypriot and British nationality and live in the United Kingdom.

The applicants brought their application on their own behalf and on behalf of Ioannis Manitaras, a Cypriot national of Greek Cypriot origin who was born in 1914 and died on 4 April 1999. The first, second, third, fourth and fifth applicants are the children of Ioannis Manitaras, and the sixth applicant is his grandson.

The applicants are represented before the Court by Mr Z. Koulias, a lawyer practising in Larnaca. The Turkish Government (“the Government”) are represented by their Agent, Mr Z.M. Necatigil.

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

Ioannis Manitaras was born and raised in the village of Rizokarpaso in the Karpas peninsula, district of Famagusta, in northern Cyprus. He worked there as a farmer and owned a house with some land.

Following the Turkish intervention of 1974, Ioannis Manitaras remained in Rizokarpaso as one of the “enclaved”, that is, a small remaining group of Greek Cypriot residents of the Karpas peninsula who continue to live there under Turkish occupation. In February 1998 he gave evidence to the delegation of the European Commission of Human Rights in the course of the Cyprus v. Turkey ([GC], no. 25781/94, ECHR 2001-IV) proceedings at a hearing held at the Ledra Palace Hotel in Nicosia.

On 4 April 1999 Ioannis Manitaras was found dead in his house in Rizokarpaso.

On 5 April 1999 a post-mortem examination was carried out by Dr Horoz, a general practitioner authorised by the local authorities. He concluded that Ioannis Manitaras had died of a myocardial infection. Consequently, a press statement was issued by the Ministry of Foreign Affairs of the Turkish Republic of Northern Cyprus (“the TRNC”) confirming the findings of this report. A medical officer from the United Nations Peacekeeping Forces in Cyprus (UNFICYP) was present at the post-mortem examination. He also prepared a brief report, without referring to the cause of death.

The applicants allege that they were unable to bury the deceased in his home village because of restrictions on freedom of worship and repeated vandalism of Greek Cypriot graves. Thus they arranged for him to be buried in the southern part of Cyprus. They allege that the body was handed over to them in a particularly distressing and disrespectful manner and that the Turkish authorities showed a total lack of regard for the grieving family. In particular, they state that when it was delivered to them, the deceased’s body was partially covered in an old sheet and was not in a temporary coffin or body bag. Further, the sixth applicant, the grandson of the deceased, was refused permission to accompany the first, second and third applicants (that is, his father and two uncles) to Rizokarpaso village on 5 April 1999 for a brief visit to retrieve the clothes of Ioannis Manitaras and other things necessary for the funeral and burial.

On 7 April 1999 a second post-mortem examination was conducted in the General Hospital in Nicosia by two specialists, Dr Sofocleous and Dr Matsakis (one appointed by the family of Ioannis Manitaras and one by the Government of the Republic of Cyprus), in the presence of United Nations observers. A video and photographs were taken during the autopsy. The conclusions of these examinations were that there was “no evidence of coronary artery thrombosis, myocardial infarction or significant previous ischemic episodes” and that the cause of death was “severe trauma in the cervical vertebra due to the application of excessive force”.

At the request of the Attorney General of the Republic of Cyprus, the reports of both post-mortem examinations were reviewed by Professor Jorgen L. Thomsen, State Forensic Pathologist at the Institute of Forensic Medicine at the University of Southern Denmark. He agreed with the conclusions of the second post-mortem report and criticised the first as not living up to international standards.

On 20 May 1999 the file was referred to the “TRNC” Attorney-General, who recommended a coroner’s inquest. The coroner examined the file and came to the conclusion that the deceased had died a natural death due to myocardial infarction and that there was no indication that he had been the victim of an act of violence. In view of the above, the coroner decided that it was not necessary to carry out an inquest.

Before the Court, the Government produced a report from Dr M.T. Cassidy, Deputy State Pathologist and Senior Lecturer at the Forensic Medicine Department of Dublin Trinity College. At the request of the UNFICYP, Dr Cassidy examined various documents, scientific reports, videos and photographs concerning the death of Ioannis Manitaras. She also interviewed all persons who could give information about the case, including the members of the deceased’s family.

Paragraphs 3, 4 and 5 of Dr Cassidy’s report read as follows:

“3. Summary

3.1 Mr Ioannis Manitaras was an elderly Greek Cypriot, residing alone in the Turkish region.

3.2 He was receiving treatment for heart disease and had been hospitalised for a “heart attack” and for treatment of an arrhythmia.

3.3 He was at his neighbour’s home on the night of 3rd April 1999 and was said to have been seen and spoken to early on Sunday 4th April 1999.

3.4 In the mid Sunday morning Mr Manitaras was found dead lying on the floor of his bedroom.

3.5 He was fully clothed, including jacket, apart from his shoes. He was lying face down and on his right side. There was a pool of fluid and blood at his head. There were a few injuries on the right side of head.

3.6 His body was removed to the local hospital and a post-mortem examination was carried out on 5th April. This was limited to removal of the cerebral hemispheres, the lungs and the heart. The latter only was dissected.

3.7 External examination showed bruising around both eyes and two injuries to the right side of the head. Post mortem staining was noted over the back and multiple “bruises” over the upper chest.

3.8 An area of discoloration on the heart was interpreted as an infarct, and the cause of death was determined as due to a heart attack.

3.9 The body was transported to the Greek region and a second post-mortem examination was carried out.

3.10 This described additional injuries including superficial flapped injury to the left side of the scalp, marks on the cheeks and lips as well as minor injuries on the hands. Petechial haemorrhage was noted in the eyes.

3.11 Internally the most significant finding was of bruising in the soft tissues of the neck and a fracture of the spine.

3.12 These injuries were interpreted as indicating an assault, death being due to a broken neck, caused in an arm lock, which was thought to have caused asphyxia. Other explanations were dismissed.

3.13 The photographs of the scene and the body pre-autopsy, after the first autopsy and during the second autopsy were taken.

3.14 The body is seen fully clothed, apart from shoes lying on his right side, face down on a stone floor. A few minor injuries were noted on the right side of the head and there was fluid and blood under the head apparently from the injuries.

3.15 Photographs after the first post mortem confirm the paucity of injuries.

3.16 Photographs of the second post mortem now show well developed bruising of the eyes and petechiae are now prominent around the eyes, the neck and over the upper chest. A post mortem injury is now apparent on the left side of the scalp and some other indistinct marks are shown. There was definite bruising under the injuries on the right side of the scalp but no skull or brain injury.

3.17 Internally a fracture of the cervical vertebra is demonstrated.

Interpretation

4.1 This elderly man was found dead in his home.

4.2 The position of the body at the scene is consistent with slumping forward onto the ground from a sitting position on the bed, no attempt being made to save himself, as determined by the position of the hands.

4.3 The injuries apparent were to the right side of face and head, consistent with impact with the stone ground.

4.4 Despite lying in this position after death, when the body is examined later, at the second post-mortem, lividity is on the back of the body, therefore he had not been lying long after death. This would be consistent with him dying on Sunday morning and therefore he could have been seen alive at 6.50 a.m. that morning.

4.5 The position of the body also suggests sudden collapse.

4.6 Petechial haemorrhage are seen around the eyes, on the face, neck and upper chest. The presence of petechial haemorrhages indicates hypoxia/asphyxia, and obvious causes of mechanical asphyxia must be excluded, particularly strangulation. However, petechial haemorrhage around the eyes are commonly seen in deaths from natural causes, particularly if due to heart disease which causes hypoxia. Petechial/purpuric haemorrhage are also commonly found within areas of post-mortem lividity and as Mr Manitaras was found lying “face down” this is one possibility which must be considered.

The pattern of distribution of the haemorrhage may give some indication of their cause. In strangulation the haemorrhages are above the level of compression of the neck.

As the distribution of the haemorrhages continues below the neck, a cause other than compression of the neck must be considered.

In cases of suspected neck compression, the neck is always examined last, first draining the area of blood by opening and removing the organs from the cranial and chest and abdominal cavities. This is done as artefactual haemorrhages can be produced in the neck area during manipulation and dissection of the neck organs. Therefore the interpretation of bruising in the anterior compartment of the neck, on the surface of the strap muscles, is fraught with potential difficulties. A post-mortem examination had been performed, the blood vessels in that area are seen to be congested, the neck was said to have been manipulated before the second post mortem and at the second post mortem the neck was dissected with the chest organs in situ. In view of this the bruising cannot be unequivocally attributed to pre-mortem compression of the neck.

4.7 The injuries to the face are concentrated on the right side, as illustrated in photograph 5. This was the side of the face in contact with the ground, and therefore all of these injuries could be caused by one impact with the ground. The soft tissues of the face were not dissected and therefore the other injuries described were not proven to be associated with subcutaneous bruising.

The pattern of bruising under the eye is of bruising related to the injury below the outer corner, which is an abrasion injury, more likely due to contact with the ground rather than a punch.

While one can never totally exclude that each and every injury is due to a separate impact, the pattern of injuries is the key factor.

4.8 One positive finding was fracture of the first cervical vertebra. There was haemorrhage over the front of the upper cervical spine indicating bleeding from this injury. Bodies can bruise and bleed after death, while the blood is still fluid within the vessels. This injury can therefore be interpreted as a pre or peri-mortem injury. This type of injury is due to compression of the head on the neck splitting the vertebra, +/- hyperextension. The mechanism of causation is a force transmitted through the head to the neck.

It is unlikely to be caused by a force from the front of the neck as such a force would be expected to be associated with more severe injury to the structures at the front of the neck.

If such an injury was the cause of death, damage to the upper cervical cord/brain stem would be expected. Firstly this area was damaged during the first post-mortem. Secondly there is no evidence of bleeding around the site in the photographs and no demonstrable damage. Microscopy may show haemorrhage into the tissue, which must be differentiated from congested vessels which can be misinterpreted as petechial haemorrhage. There is no evidence that the spine fracture had caused damage to the spinal cord nor that it caused his death.

4.9 The injuries to the hands are minor injuries, described as, and with the appearance in the photographs of, abrasions and lacerations. There are quite different injuries to those on the head area. These injuries are caused by contact with something rough or sharp, and while from their position they could be interpreted as defence injuries, as they are different and caused in a different manner from other injuries, they are not defence injuries caused by attempting to ward off blows of his head. One explanation is that these injuries could be inflicted by handling branches with rough or sharp edges.

4.10 Examination of the heart was incomplete at both post-mortems. Weighing the heart would have given an indication as to whether or not the heart was enlarged. However Mr Maniataras had a well documented history of heart problems including arithymia and cardiac failure, and was prescribed treatment for this.

Whether or not he was taking his medication, he was still at risk from collapsing and dying from his heart disease, despite no obstruction of the vessels being found at the second post-mortem.

Again the post-mortem findings must be interpreted in light of his medical history. Again histological examination of the tissues may show myocyte damage and fibrosis not obvious with the naked eye. In particular the area of discoloration described at the first post-mortem could have been proved or disproved as an infarct. The lack of acute findings in the heart does not negate the conclusion that death was due to heart disease.

4.11 Although he may have collapsed suddenly, Mr Manitaras may not have died instantly and may have survived unconscious for a few minutes.

Summary

After examination of the statements, reports, photographs and post-mortem reports I am of the opinion that Mr Manitaras appears to have been sitting on the edge of his bed when he suddenly keeled over, with a “heart attack”, falling heavily to the floor, the impact site, to the head and right side of the face. The force from the impact was transmitted across the head to the top of the spine, crushing and splitting the first cervical vertebra. He appears to have made no attempt to save himself as implied by the position of the hands and arms, suggesting that he was either dead or unconscious when he pitched forward to the ground. The injuries to the hands could have occurred separately during the course of his work. Death appears to be due to natural causes.”

In a letter of 8 August 1999, Inspector Liam Hogan from the United Nations Civilian Police (UNCIVPOL) forwarded Dr Cassidy’s report to the competent authorities. This letter reads as follows:

“Please find enclosed a copy of the report prepared for UNFICYP by an independent Forensic Pathologist.

We are in agreement with the conclusions reached by Dr Cassidy.”


András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

The applicant, Mr Teimuraz Andronikashvili, is a Georgian national who was born in 1928 and lives in Tbilisi. He was represented before the Court by Mr Alexander Baramidze, Mr Irakli Kandashvili and Mr Hans von Sachsen-Altenburg, lawyers practising in Tbilisi. The Georgian Government (“the Government”) were represented by their Agent, Mr Levan Meskhoradze of the Ministry of Justice.

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

The applicant's father, a member of the Georgian aristocracy, was deprived of his land and other assets by the Soviet Government during the 1920s and 1930s.

On 25 May 2005 the applicant brought an action against the relevant local authority, seeking restitution of his ancestral lands. In support of his claim, the applicant submitted archives confirming his father's title to the claimed land and, as a legal basis, referred to general rules on the protection of property and inheritance contained in the Civil Code, the Constitution and the international human-rights treaties ratified by Georgia. The action was registered by the Gurjaani District Court on the same day.

According to the file as it stands at present, the restitution proceedings are still pending at first instance; no hearing has been held so far.

Article 172 of the Civil Code bearing on the protection of ownership reads as follows:

Article 172 §§ 1 and 2

“1. The owner can claim the asset back from the possessor unless the latter is entitled to possess it.

In the event of interference with the exercise of ownership other than the taking of the asset, the owner may request the trespasser to put an end to such an action. If the interference persists, the owner may bring a court action against the trespasser.”

By passing the Act of 11 December 1997, the Georgian State recognised that Georgian nationals were subjected to political persecution by the Soviet State between February 1921 and 28 October 1991, entitling the victims to seek rehabilitation.

The Act defined the notion of a victim of political persecution and created a procedure by which to obtain that status. In particular, section 6 of the Act provided that only a court could declare a person to be a victim. Section 3 specified that the next of kin of a direct victim was also entitled to seek rehabilitation.

Section 8 (1) and (2) stated that, once recognised as a victim of political repression, the person in question would automatically have his or her political and civil rights reinstated. This excluded the reinstatement of any property rights, in so far as subsection 3 of the same section specified that “the means for the restitution of property of victims of political repression shall be governed by a separate Act”.

No act concerning the restitution of property of victims of Soviet repression has yet been passed.

In a decision of 31 July 1998, the Gori District Court reinstated the ownership rights of the claimant Mrs E. Cholokashvili over her late parents' land expropriated by the Soviet State in the 1930s. Mrs Cholokashvili had previously been recognised as a victim of Soviet repression within the meaning of the Act of 11 December 1997.

Likewise, in a decision of the Krtsanisi-Mtatsminda District Court in Tbilisi of 24 October 2000, Mrs K. Chachua-Daghundaridze and Mrs T. Daghundaridze, the claimants, were declared the owners of assets once belonging to their ancestors who had been recognised as victims of Soviet repression.

Another similar case was that of Mr N. Abkhazi, who, in a decision of 18 January 2005 of the Gurjaani Distrcit Court, was granted title to land expropriated from his grandfather by the Soviet State in 1923 and 1924. The only difference between this and the two above-mentioned cases was that, prior to the restitution of the property, neither Mr Abkhazi, the claimant, nor any of his ancestors had been recognised as victims of the Soviet State within the meaning of the Act of 11 December 1997.

In all three above-mentioned cases, the claimants were excused from having missed the statutory time-limit for recovery of property, in view of the fact that the expropriation of their ancestors' property had been carried out by force and the respondents were either private persons or public agencies. The domestic courts' reasons underlying their decisions to allow restitution were based on the general principles of protection of property and the inheritance rules contained in the Civil Code, the Constitution and international human-rights treaties. Certain other general principles of law, such as equity, were also relied on.

As acknowledged by the President of the Supreme Court in his foreword to its Recommendations, one of the problems of the Georgian judiciary was the lack of consistent case-law on similar disputes. Consequently, the Supreme Court deemed it necessary, for the purposes of harmonising judicial practice, to advise the lower courts on how certain types of dispute should be resolved. The President noted that the Recommendations were not of a mandatory nature but emphasised their significance.

Chapter XIV of the Recommendations advised the courts that they should declare claims for restitution of property expropriated by the Soviet State in the 1920s and 1930s admissible but refuse them on the merits in view of the absence of a right to restitution under Georgian law.


CASE OF ABDOLKHANI AND KARIMNIA v. TURKEY (no. 2)

Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

The applicants were born in 1973 and 1978 respectively. The first applicant resides in Turkey whereas the second applicant lives in Sweden.

The applicants, refugees under the mandate of the United Nations High Commissioner for Refugees (UNHCR), arrived in Turkey on an unspecified date. They were arrested by security forces and, as they had entered Turkish territory illegally, were deported back to Iraq on 17 June 2008.

The applicants immediately re-entered Turkey.

On 21 June 2008 they were arrested by road checkpoint gendarmerie officers from the Gökyazı gendarme station, in Muş, as their passports were found to be false.

The applicants were subsequently placed in the police headquarters in the Hasköy district of Muş.

On 30 June 2008 the applicants lodged an application with the Court and requested not to be deported to Iran or Iraq (application no. 30471/08). On the same day the President of the Chamber to which the case was allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government of Turkey, under Rule 39 of the Rules of Court, that the applicants should not be deported to Iran or Iraq until 4 August 2008. On 22 July 2008 the President of the Chamber decided to extend until further notice the interim measure indicated under Rule 39 of the Rules of Court.

Between 21 June and 26 September 2008 the applicants were detained at the Hasköy police headquarters. On the latter date the applicants were transferred to the Kırklareli Foreigners' Admission and Accommodation Centre, where they were held until 26 October 2009.

The applicants submitted that the detention facility where they were held was in the basement of the building. Therefore, it was damp and received insufficient natural light. The facility measured 70 square metres in total and consisted of three open rooms. The rooms measured 1216 square metres. There was one bathroom and a hallway, where there were two beds. There were eight and four bunk beds in the first and the second rooms respectively. The third room was empty.

For the first five weeks of the detention the applicants were held with eighty-three other detainees. From the sixth to the tenth week of their detention the number of detainees dropped to thirty-one. During the final two weeks those remaining were also deported. At the end of their detention in Hasköy the applicants were alone in the facility.

The mattresses and blankets were dirty and infested with lice. No pillows or bedding were provided. During the first weeks of their detention, the applicants had to sleep on the floor without mattresses, with blankets only, due to the overcrowding. The facility did not have showers or hot water. The applicants were taken to a public bathhouse only twice during the three months that they spent in that facility. Nor were they provided with towels, toilet paper, toothbrush, toothpaste, shaving items or shampoo. The toilets were very dirty and were never cleaned. Nor did the administration provide proper cleaning material to the detainees for them to do the cleaning. The facility was infected with cockroaches and mosquitoes. As a result of the poor detention conditions, the applicants suffered from dermatological diseases and infections. They were taken to a doctor for the skin problems, but they were never given the prescribed medication. They were ill as a result of water contamination at the beginning of their detention in Hasköy. Furthermore, the first applicant suffered from arthritis and the second applicant had back problems. They did not receive any medical check-ups for their health problems. The applicants were provided with meals twice a day. The meals consisted of soup and an insufficient amount of bread. They were not given any drinkable water. They were also not provided with clothing. Therefore, they had to wear the same clothes for three months.

The detention facility did not have any provision for indoor or outdoor activities. The applicants were taken out only when they were forced to do work, such as collecting rubbish, watering the lawn, sweeping the floors and the stairs, or loading and unloading, for which they were never paid.

Finally, throughout their detention in the Hasköy police headquarters, the applicants were not allowed to make or receive telephone calls. Nor could they have visits, except for one visit from a UNHCR officer. At the request of the UNHCR Ankara office, a lawyer went to the Hasköy police headquarters to visit the applicants. He was however not allowed to meet the applicants.

The applicants submitted several written complaints regarding the conditions of their detention. However, the authorities refused to accept the letters containing their complaints.

The Government submitted that the applicants were held in the Hasköy police headquarters building between 21 June and 26 September 2008 on a temporary basis while awaiting transfer to a foreigners' admission and accommodation centre. The Government noted that during the period in question a total of ninety-six foreigners stayed in the facility. However, no more than forty-two persons were detained at any given time. Besides, between 2 August and 26 September 2008 the applicants were held alone.

The Government further submitted that a foreigners' guesthouse had been constructed in Hasköy subsequent to the applicants' transfer to Kırklareli foreigners' admission and accommodation centre. According to the Government's submissions, in this new facility the food is provided three times a day by the centre administration. Although there is no health clinic within the facility, the detainees are provided with adequate medical assistance in the nearby clinics and State hospitals. They are allowed to go into the open air and can exercise in the garden of the facility, where they are served their meals and play football with the staff working at the centre. The Government contended that lavatories, toilets and bathrooms were provided in the centre and the immigrants were sent to the Turkish bath periodically. They finally noted that the applicants could contact the outside world by telephone and internet.

In their submissions dated 12 October 2009 the applicants complained about the conditions of detention in the Kırklareli Foreigners' Admission and Accommodation Centre. They complained in particular about the quality of food and water, insufficient medical support, unsatisfactory sanitary facilities, their inability to take exercise and the increase in the number of detainees held in the Kırklareli Foreigners' Admission and Accommodation Centre. In support of their allegations the applicants submitted a number of photos, including four photos which were taken on 11 October 2009 and which allegedly showed the back and legs of the first applicant who claimed to be suffering from a skin rash.

The Government submitted that the application concerned the conditions of detention at the Hasköy police headquarters and not those in the Kırklareli Foreigners' Admission and Accommodation Centre. They therefore requested the Court not to examine the application in so far as it concerned complaints regarding the detention conditions at the Kırklareli Centre.

A description of the relevant law can be found in the judgments of Z.N.S. v. Turkey (no. 21896/08, §§ 34-35, 19 January 2010) and Charahili v. Turkey (no. 46605/07, § 48, 13 April 2010).