Violation of Art. 8;Pecuniary damage - finding of violation sufficient;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant was born in 1960 and lives in Celestynów, Poland.

The applicant and O. had a relationship and were living together for an unspecified period. In 1994 O. gave birth to the applicant's son, P. In August 1996 during the applicant's stay abroad, P.'s mother, O., moved out from their house and took P. with her, apparently as a result of growing tensions and disagreements in the couple. Afterwards she refused to allow the applicant to have contact with P. Subsequently, on an unspecified date, the applicant took P back to his place, without O.'s agreement.

On an unspecified later date O. filed with the Białystok District Court (sąd rejonowy) a request for limitation of the applicant's parental responsibility for P.

On 12 September 1996 the court issued an interim order to place P. with his mother. It relied on P.'s age, on the fact that O. breast-fed P. and, also, on the fact that he was suffering from allergy. On the following day a court-appointed guardian assisted by a police officer arrived at the applicant's place and after a two-hour skirmish took P. away.

On 8 November 1996 the applicant and O. concluded a friendly settlement as to the access arrangements. They agreed that P.'s place of residence would be with his mother. The applicant had a right to take P. to his place at specified dates and times in 1996. Starting from 1 January 1997 he was supposed to spend every second weekend with his son at his home. As to the exact dates of meetings in 1997 the parties agreed to determine them at a later date.

At the beginning of 1997 O. refused to hand over her son to the applicant, maintaining that P. was ill at that time.

In February 1997 the applicant requested that a court guardian assist him in meetings with P., submitting that O. failed to comply with the settlement they had concluded in November 1996.

On an unspecified date the applicant petitioned the Białystok District Court to fine O. for obstructing his contacts with P. as established in the settlement of 8 November 1996. He also requested the prosecution authorities to institute criminal proceedings against O.

On an unspecified date at the requests of the applicant and O. proceedings concerning parental responsibility were instituted.

On 4 April 1997 the Białystok District Court stayed the proceedings concerning the applicant's petition, considering that only after the completion of the parental-responsibility proceedings would it be possible to examine them. The court observed that the parties to the court settlement of November 1996 had not specified the dates of the applicant's meetings with P. and that therefore the settlement was impossible to enforce. It was therefore impossible to examine the applicant's petition to have a fine imposed on O.

On 19 May 1997 the applicant went to O. and, after an altercation, took his son away. Subsequently, O. informed prosecution authorities that the applicant had kidnapped P. and threatened her.

On 22 May 1997 the applicant sent letters to the Białystok District Court and the prosecution authorities informing them that he had taken over the custody of P. and would continue to exercise his parental rights until the completion of the parental-responsibility proceedings pending before the District Court. He declared that O. would be able to meet her son at the applicant's home.

On 17 July 1997 the District Court, at O.'s request, ordered the applicant to hand over P. to O. within seven days. Initially, he declared his willingness to do so, but, subsequently, went into hiding together with his son.

On 5 August 1997 the Białystok District Prosecutor (prokurator rejonowy) discontinued the proceedings initiated at the applicant's request, considering that O. had not committed the criminal offence of obstructing his contacts with P. It was established that O. had ceased to comply with the terms of the November 1996 settlement at the beginning of 1997, relying on the fact that P. had been sick at that time. She also objected to the applicant taking P. to his home as he lived far away from O.'s residence. The applicant's appeal against that decision was dismissed by the Regional Prosecutor (prokurator wojewódzki).

On 25 August 1997 the prosecutor discontinued the investigations instituted at O.'s request. He considered that the applicant had not committed a criminal offence. It had been established that since 22 March 1997 O. had not allowed the applicant to take his son to his home, despite the fact that P. had got better. The applicant had only been allowed brief visits at her home to see P. The applicant had informed the police and requested to be given assistance, but his efforts failed to affect the mother's conduct. It was further pointed out that after taking away P. from his mother the applicant had informed the prosecution authorities in Białystok and Otwock about the incident. In the light of the fact that the applicant had full parental rights in respect of P. the prosecutor did not consider his acts a criminal offence. O.'s allegations about having been threatened by the applicant proved unsubstantiated.

On 21 August 1997 and 16 September 1997 the Otwock District Court ordered the applicant to reveal P.'s place of residence and warned him that in case of failure to comply with its order he would be fined, with imprisonment in default. He did not comply with these orders.

On 5 February 1998 the Otwock District Court issued an enforcement order in respect of the Białystok District Court's decision of 17 July 1997. It ordered a bailiff to take P. from the applicant by force and hand him over to O.

On 24 February 1998 in the course of the parental-responsibility proceedings the Białystok District Court limited the applicant's parental rights to a right to information about his child's health. It amended the settlement of 8 November 1996 in that it decided that further contacts between the applicant and his son should take place on the third Saturday of each month at the mother's home from 10 a.m. to 4 p.m. without the possibility to take P. anywhere.

The court referred to the November 1996 settlement between the parties, to the subsequent difficulties in the applicant's access to P. and to the fact that on 19 May 1997 he had taken P. to his place. The court considered that although there was nothing in the case-file to suggest that the applicant's parenting skills were insufficient and it was difficult to establish to which of the parents P. was more attached, the applicant's conduct in the course of the proceedings proved his disrespect to the organs of justice and disregard of the interest of the child.

The court dismissed O.'s request to divest the applicant of parental rights, considering that at that stage it was too early to adopt such a serious measure.

The applicant and O. appealed against that decision.

On 27 April 1998 the Warsaw Regional Court (sąd wojewódzki) dismissed the applicant's appeal against the enforcement order of 5 February 1998.

On 19 June 1998 the Białystok Regional Court amended the District Court's decision of 24 February 1998 in that it deprived the applicant of all parental rights in respect of P. It considered that he had abused his rights by making it impossible for the son to contact his mother, whereas the mother's care at that stage of the child's development was indispensable. The court further found that the applicant's continuing hiding was to the child's detriment, especially because he was apparently working and his son was taken care of by other people. It emphasised that the child had the right to decent life conditions, home and stability, of which the applicant had deprived him. The court further pointed out that the difficulties in enforcing court orders in the past could not justify the applicant's conduct and he should have availed himself of legal remedies.

On 8 August 1998 the police took P. away from the applicant.

On 17 August 1998 the applicant requested the District Court to prevent the issue of a passport for P., submitting that O. intended to abduct P. abroad. In reply, he was informed that until the date when the judgment of 19 June 1998 obtained legal force the passport would not be issued without the applicant's approval.

On 28 August and 23 September 1998 the applicant informed the Białystok District Court about instances of obstructing his contact with P. by O. and requested assistance in the enforcement of his access rights.

On 9 September 1998 the Białystok Regional Court dismissed the applicant's request for the appointment of a legal-aid lawyer for the purpose of lodging a cassation appeal and exemption from courts costs. The court found that he ran a business and in July 1997 his income had reached 700 Polish zlotys (PLN), whereas he would have to pay only a PLN 30 fee for his cassation appeal and the legal fees in a case like his would not exceed PLN 300. The court further noted that the applicant was single and owned a plot of land with a building under construction, as well as a car. On 6 October 1998 the Regional Court rejected the applicant's cassation appeal against that decision, as it was not provided for by law. On 16 December 1998 the Supreme Court rejected his appeal against the latter decision.

On 24 November 1998, in reply to the applicant's complaint, the Office of the Prime Minister requested the Białystok District Court to submit information and documents concerning the applicant's case, as it had certain doubts as to the decision to restrict his parental responsibility for P.

On 16 December 1998 the Head of the Family Department at the Białystok District Court informed the applicant that none of the court guardians had agreed to assist in the arrangements for his contact with P.

On 24 February 1999 the Ombudsman's office requested the Warsaw Regional Prosecutor to indicate the policemen who on 8 August 1998 had taken P. away from his father, as well as the person who had ordered it, in breach of the provisions of the Code of Civil Procedure. The applicant submits that no further measures were taken by the Ombudsman.

On 16 March 1999 the Białystok District Court dismissed the applicant's and O.'s petitions concerning his contact with his son. The court relied on the opinion prepared by two experts, according to which the relations between the child and parents were disturbed, and because of the child's age it was recommended that the meetings with the father would take place at the mother's home. The experts noted that P. would not want to leave his father. They pointed out that the need to maintain P.'s contacts with his father existed, but that the parents did not show understanding for the needs of the child and were driven by the wish to harm each other.

On 18 June 1999 the applicant filed with the Białystok Regional Court a petition in which he requested that O. be deprived of her parental rights and he be granted parental responsibility. Subsequently, he asked the court to issue an interim order to the effect that P.'s place of residence would be with the father.

In 2000 the applicant filed an unsuccessful request for the reopening of the proceedings terminated on 19 June 1998.

On 8 February 2001 the Białystok District Court refused the applicant's request for the enforcement of the part of the judgment given on 24 February 1998 concerning his contacts with his son. The court considered that the place of residence of O. and the son was unknown and therefore enforcement was impossible.

On 20 February 2001 the District Court dismissed the applicant's petition to deprive O. of parental responsibility for P. It noted that the applicant's submissions as to the allegedly improper manner in which the mother looked after P. were unsubstantiated. On the contrary, the experts were of the opinion that there were strong emotional bonds between her and P. The applicant appealed.

In her letter of 26 February 2001, written in reply to the applicant's complaint, the President of the Białystok Court of Appeal agreed with his contention that the proceedings were lengthy.

On 27 March 2001 the police authorities informed the applicant that O. with his son had left for London on 30 May 2000.

On 17 May 2001 the Białystok Regional Court quashed the District Court's decision of 8 February 2001. On 10 August 2001 the District Court, following the Regional Court's instructions, stayed the enforcement of the orders concerning contact between the applicant and his son because the applicant was unable to indicate O.'s place of residence.

On 27 September 2001 the Regional Court dismissed the applicant's appeal against the decision of the District Court.

The proceedings are stayed.

The Family and Custody Code (Kodeks Rodzinny i Opiekuńczy) provides:

“In a decision on divorce, the court is competent to issue orders concerning the manner in which the care of the parties' minor children should be carried out (...). The court may grant custody right to one parent and limit the custody rights of the other one.”

The Code of Civil Procedure (Kodeks Postępowania Cywilnego) provides:

“The custody court can change its decision if the best interest of person whom it concerns so require. “

According to the Supreme Court's resolution, if a parent who has been obliged by a court decision to respect the other parents' access rights refuses to comply therewith, access decisions are liable to enforcement proceedings. The provisions of the Code of Civil Procedure on enforcement of nonpecuniary obligations are applicable to enforcement of court decisions on parental rights or access rights (resolution of the Supreme Court of 30 January 1976, III CZP 94/75, OSNCP 1976 7-8).

“1. If the debtor is obliged to take measures which cannot be taken by any other person, the court in whose district the enforcement proceedings were instituted, on a motion of a creditor and after hearing the parties, shall fix the time-limit within which the debtor shall comply with his obligation, on pain of fine (...).

If the debtor fails to comply with this obligation, further time-limits may be fixed and further fines may be imposed by a court.”

If the court obliges a parent exercising custody rights to ensure access to a child to the other parent, Article 1050 of the Code of Civil Procedure is applicable to the enforcement of this obligation.


The applicants whose names appear in the appendix are Turkish nationals. They are represented before the Court by Mr Mahmut Vefa, a lawyer practising in Diyarbakır.

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

Until 1994 the applicants all lived in Akçabudak village, in the district of Lice in the Diyarbakır province, where they own property.

In May 1994 security forces forcibly evacuated Akçabudak on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Diyarbakır where they currently live.

On 26 October 1995 the mayor filed a petition with the office of the Diyarbakır Governor and asked the latter either to allow the residents to return to their village or to provide them with alternative residences.

On 18 April 1996 the mayor filed a petition with the office of the Lice District Governor and asked the latter to provide financial aid and alternative residence for the residents.

On 24 July 1996 the mayor filed a petition, on behalf of the residents, with the office of the Prime Minister requesting permission to return to their village.

On 12 August 1996 the office of the Prime Minister sent the following reply to him:

“Your petition containing a request of permission to return to your village has been transmitted to the Governor’s office in Diyarbakır for examination.”

On 18 September 1996 the mayor filed a petition with the office of the Diyarbakır Governor and asked the latter to provide any type of aid for the residents.

On 25 June 1998 the mayor filed a petition with the offices of the Diyarbakır Governor of the state-of-emergency region, the Diyarbakır Governor and the Deputy Prime Minister and asked the latter to provide any type of aid for the residents.

On an unspecified date, the mayor filed a petition, on behalf of the residents, with the office of the Diyarbakır Governor and requested financial aid and compensation for the damages they had suffered.

On 20 July 1998 the office of the Diyarbakır Governor of the state-of-emergency region sent the following reply to him:

“...The office of the Diyarbakır Governor of the state-of-emergency region had constructed five hundred houses in Çölgüzeli village and they were allocated to the citizens by lots.

Your requests will be taken in to consideration if such a construction project were to be implemented in the future.”

On 17 January 2001 the mayor filed a petition, on behalf of the residents, with the office of the Diyarbakır Governor requesting permission to return to their village and financial aid.

On 18 and 31 July 2001 five of the applicants lodged petitions with the Public Prosecutor’s office in Lice complaining about the burning down of their houses by security forces. However, the Public Prosecutor did not commence an investigation into the applicants’ allegations.

On 16 August 2001 one of the applicants, Ahmet Öztek, filed a petition with the office of the Lice District Governor requesting permission to return to his village.

On 4 September 2001 the Lice District Governor sent the following reply to the applicant:

“...The Akçabudak village has been abandoned for a long time. Therefore, there are deficiencies in the infrastructure of the village. Consequently, if you return to your village, you will experience serious difficulties as regards the roads, water, electricity, telephone, etc.

On 9 September 2001 the Commander of District Gendarmerie Headquarters in Lice sent letters to the mayors of the villages in the Lice District and informed them that access to some villages of Lice District would only be possible during daytime in summer. The Commander further stated that the villagers would be allowed to work in their farms but would not be allowed to spend the nights in their village. It was noted that permission for access to village should be sought from local gendarmerie stations. Akçabudak was not listed among the villages to which access would be allowed under the aforementioned conditions.

On 11 September 2001, the 2nd Internal Security Brigade Commander in Lice sent a letter to the District Governor’s office in Lice informing him that the military operations against terrorists would continue to be carried out in the district. The commander requested the District Governor’s office to warn the inhabitants in the region that the security forces would not be responsible for any casualties that might occur in the course the operations.

On 9 October 2001 the office of the Gendarmerie General Command attached to the Ministry of the Interior sent a letter to the mayor informing him that by reason of the military operations, which were to be conducted on 10, 11 and 12 October 2001, access to villages of Saydamlı, Yalımlı, Akçabudak and Bayırlı would not be permitted until further notice.

On 25 December 2001 the applicants’ representative, Mr Mahmut Vefa, filed a petition, on behalf of the applicants, with the office of the Gendarmerie General Command attached to the Ministry of the Interior requesting pecuniary and non-pecuniary compensation for the damage they had suffered.

On an unspecified date, Mr M.Vefa brought an action, on behalf of fortythree applicants, with the Diyarbakır Administrative Court requesting pecuniary and non-pecuniary compensation for the damage the applicants had suffered.

On 17 June 2002 the Diyarbakır Administrative Court dismissed the action on the basis of Article 5 of the Law No. 2577.

On 24 July 2002 the representative appealed against the decision of the Diyarbakır Administrative Court.

On 2 August 2002 the office of the Gendarmerie General Command sent the following reply to the complainants’representative:

“...No military operations were conducted during April 1994 in Lice.

In order to receive compensation, a copy of the civil or administrative courts’ judgments on the payment of compensation should also be submitted. Furthermore, if you did not file a petition with a court, for compensation within the statutory time limit, prescribed by Law No. 2577, your future petitions would be rejected.

The investigation carried out by the authorities indicated that the applicants had left their villages of their own will. The security forces had not forced the applicants to leave their village.

The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages.

On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages.

In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation.

The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained.

A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI).


The applicant, Mr Mohamed Reza Hemat Kar, is an Iranian passport-holder but he also claim to be an Iraqi citizen. He is presently detained in Sweden for deportation to Iran. He was represented before the Court by Ms Nyblom, a lawyer practising in Stockholm. The respondent Government were represented by Mr L. Magnusson, Ministry for Foreign Affairs.

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

The applicant came to Sweden on 22 December 1997 and the next day he lodged an asylum application in the name of Mohamed Reza Mirza. He claimed that he was an Iraqi citizen and that he had no passport or other travel documents. The only identification document he was able to produce was an Iraqi military book.

In the initial inquiry the applicant stated that he was born in Najaf, Iraq, but before travelling to Sweden he had lived in Baghdad. He had left Iraq when the intelligence service was looking for him. He had been accused of collaboration with the Daawa party and imprisoned in Najaf in 1987. He had fled from Iraq because he did not feel safe due to the unstable political situation. He further stated that he did not know where his wife and children were.

On 21 January 1998 the Swedish Embassy in Tehran informed the Swedish Migration Board that some visitors had submitted 3-4 pages of the applicant’s Iranian passport and had stated that the applicant had been an Iranian national for 30 years and that his family lived in Iran. When confronted with this information on 25 March 1998 the applicant gave other reasons for his request for a residence permit.

At the outset he answered that he had visited Iran and that if his wife was there she must have moved there recently. He further stated that in addition to Iraqi citizenship he also held Iranian citizenship because his father had been an Iranian national. The applicant claimed that he had lived in Iraq his whole life and that he possessed an Iraqi passport, which would be sent to him. However, he never produced any such document to the Swedish authorities.

The applicant subsequently maintained that he could not go to Iran. He also claimed that he had not been politically active or committed any crime in Iran. Then he alleged that he had lived in Iraq until 1981 when he moved to Kuwait with his wife and family. They lived in Kuwait until 1992 when the war between Kuwait and Iraq broke out. His wife and children arrived in Tehran at the end of 1992 or the beginning of 1993 and they are still living there. The applicant, however, “commuted” between Chaklawa in Iraq and Tehran before he left for Sweden. He finally stated that he could not return to Iran because he had committed adultery with his sister-in-law and his brothers-in-law had initiated legal proceedings against him on the grounds of adultery. He claimed that he had left Iran when he was summoned to the court because he feared that he would be sentenced to inhuman punishment. In this respect he asserted that the penalty for adultery in Iran was stoning to death.

On 12 June 1998 the Migration Board rejected his request for a residence permit and a working permit because of his lack of general credibility. At the same time the Migration Board ordered his refusal of entry and that the applicant would be sent to Iran unless he showed that he would be received in another country. According to the applicant’s own statements the Migration Board drew attention to the fact that the applicant had departed from Tehran airport holding a valid Iranian passport and that he had not been politically active in Iran. He had thus been allowed to leave the country which indicated that he was not of special interest to the Iranian authorities. Finally, the Migration Board noted that Iranian law placed exacting demands on the testimony of witnesses in order to convict a person of adultery. The applicant had, however, stated that there were no witnesses of the act. In the Migration Board’s opinion, the applicant’s assertion only to the effect that he had committed adultery was not a sufficient ground for granting him residence permit. It found no reasons to trust his assertion that he would be persecuted if returned to Iran.

The applicant appealed to the Aliens Appeals Board (hereinafter “the Appeals Board”). In his appeal he stated that the reason why he had first denied being an Iranian national was his fear of being expelled to Iran as he had committed adultery in that country. The applicant further claimed that the eight brothers of the woman in question had reported him and had also declared themselves as witnesses. In support of his claims he invoked a document in Farsi, which he alleged was a summons to appear before a court on 13 July 1998. He further submitted two warrants for his arrest dated 18 July 1998, which he alleged that he had received from a friend in Iran who had visited the applicant’s closest neighbour in Iran. He finally asserted that a friend would send a judgment to him.

In observations dated 9 September 1998 the applicant claimed that there had been a misunderstanding regarding the above-mentioned judgment. The document he had now received from his friend, who had bribed an official at the police, was a court request to apprehend him immediately and make him answer to the charges of adultery. Four named persons had reported him for the crime and declared themselves as witnesses. According to the applicant the document proved that a judgment concerning adultery would be rendered.

The Appeals Board had the above mentioned documents translated into Swedish and the translations were sent to the applicant on 1 October 1998.

On 29 October 1998 the applicant submitted, inter alia, that it was clear that he was wanted by the police in Iran for adultery, that he was accused of immoral behaviour and an improper relationship with his sister-in-law and that it appeared from one of the documents that a judgment existed. The sentence for adultery was, claimed the applicant, stoning to death.

By decision of 27 April 2000 the Appeals Board rejected his appeal. The Appeals Board shared the opinion of the Migration Board that the applicant had given contradictory information and found that the explanations provided for this were unconvincing. It also noted that Iranian law placed very exacting demands on testimony of witnesses in order to convict a person of adultery.

As regards the documents, which according to the applicant proved that he was summoned to court and would be apprehended and arrested for adultery, the Appeals Board observed the following. The applicant had stated that the summons had been delivered to his neighbours and that a friend of his received it from them. Moreover, he had affirmed that a court had rendered a judgment and that it would be sent to him. Later the applicant had indicated that this was a misunderstanding and that the document he had received was a request from the court to apprehend him and that he had obtained the document from a friend who had bribed the police. He had then claimed that a judgment existed because it was stated in one of the documents that “in order to enforce this judgment according to Islamic criminal laws the accused is to be transported urgently to this court house”. The Appeals Board also found that the applicant had submitted contradictory information regarding the documents and that he had not given an acceptable explanation for this. It appeared from the translation that one of the documents, named “Warrant of arrest” and dated 18 July 1998, was issued by the Imam Khomeini Court and addressed to the Commander of the police within Great-Tehran. It was further observed in the warrant: “in accordance with a report made by the plaintiffs, Mr Adel Karim Salin and Mr Tofegh Khademol-Hossein, against Mohammed Reza Hematkar, accused of immoral behaviour and an improper relationship with his sister-in-law, who are both married and have children. The court finds this proved.” Another document, the Appeals Board noted, also named “Warrant of arrest” and issued on 18 July 1998, was signed by the interrogator/assisting prosecutor at the office of the public prosecutor. The Appeals Board found it remarkable that the applicant had been able to get access to these documents as they seemed to be part of a correspondence between authorities. It further questioned the wording and the contents of the documents and especially noted that in one of the documents, the summons application, the office of the public prosecutor was mentioned, an office that was abolished in Iran in connection with a reform of the court system in 1995. For these reasons the Appeals Board gave no credence to the documents in question.

In October 2000, in the course of the proceedings before the Court, the applicant submitted to it two additional documents. The first was a letter from the Association of Iranian Political Prisoners (in exile), according to which an investigation conducted by the association showed that proceedings eventually had been initiated against the applicant on account of adultery, but that no judgment had been delivered. The other document submitted by the applicant was an e-mail from a Swedish law professor of Iranian origin, stating that he had no reason to put in question the authenticity of the arrest warrants, noting that they were issued by an investigating judge carrying out tasks previously done by public prosecutors. However, he could not express any view on the possibility of getting access to such documents. He also assumed that the assessment of the Appeals Board had been based on a non-professional translation of these documents.

Following the Court’s indication under Rule 39 of the Rule of Court, the Migration Board decided on 24 October 2000 to stay the enforcement of its decision of 12 June 1998 refusing the applicant entry into Sweden and ordering his expulsion to Iran.

The three documents (the alleged summons application and the two warrants of arrest) the applicant has invoked in support of his claim have been examined by legal experts at the request of the Embassy of Sweden in Tehran. They concluded that the documents were not authentic and that the alleged case regarding adultery does not exist. An inquiry to the Iranian court designated in one of the documents revealed that the case in question concerned cheque fraud and not immoral behaviour or adultery. According to the Embassy, the kind of court mentioned did not even handle cases of adultery.


Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award

The applicant was born in 1910 and lived in Novovoronezh.

On 31 August 2000 the Novovoronezhskiy Town Court of the Voronezh Region granted the applicant’s claim against the Novovoronezh Social Security Service and awarded her 10,300.86 Russian roubles (RUR) for pension arrears.

The judgment was not appealed against and entered into force. On 18 October 2000 a writ of execution was issued.

The judgment was executed on 2 March 2005.


The applicant was the technical director, technical and economic adviser and special representative and agent of company X.

On an unspecified date, preliminary investigations were opened against the applicant on suspicion of abuse of power and corruption committed in the course of his functions in 1991.

On 16 October 1993 the Public Prosecutor attached to the Brindisi District Court requested that the applicant be either remanded in custody, or placed under house arrest, or prevented from exercising his functions as director of company X, on the ground that there was a serious indication of his guilt resulting from the statements of five witnesses and from the result of an expert opinion carried out in the course of the preliminary investigations. The content of the statements and of the expert opinion had been corroborated by further documents. The applicant appeared to have commissioned Y, the head of urban planning of the Brindisi local authority, as chief engineer for the building of a road (“Strada dei Pittachi") and as co-director of works for the construction of the new district detention centre at Lecce. These appointments were alleged to be a “payment” from company X to Y for delivering false declarations in the approval procedure relating to the projects which company X had submitted for the road-works.

The Public Prosecutor further explained that, given that the applicant maintained his functions in company X, there was a risk that he would commit further similar offences.

On 2 November 1993 the Judge for Preliminary Investigations of Brindisi issued a warrant of arrest against the applicant on the ground that the indications of guilt which existed against him, as indicated in the Public Prosecutor’s request of 16 October, were serious.

As regards the grounds for precautionary measures, the judge recalled that, as indicated by the Public Prosecutor in his above request, the applicant had maintained his position as Technical Director of company X. The judge considered inter alia that, in order to decide what precautionary measure was more suitable in that case, he had to take into account the nature of the conduct under examination. The worst aspects of the applicant’s conduct were the failure to observe the rules of the administrative procedure and the waste of public funds, coupled with the breach of the rules on public tendering. This conduct had resulted in a project which showed no respect for the environment, which was very serious, given that “the chaotic and unliveable character of Southern Italian cities is not caused solely by the spreading of common crime but primarily stems from the urban growth pattern (general lack of any effective regulation and resultant lack of adequate public areas for parking, gardens and relief roads; this unease is tangibly felt in all parts of Brindisi). Abuses relating to management and spending of public funds like those committed in the Strada dei Pittachi project must be considered just as serious as possession of a firearm with its serial number removed or the conduct of a drug addict who robs a tobacconist of a few hundred thousand lire at gunpoint or with the help of accomplices, as often happens in Brindisi. Given the legislator's intention to counter the risk to society in such cases by the most stringent precautionary measure, i.e. detention in prison, this is even more justified in the far more serious case under investigation and is to be considered appropriate and necessary albeit not peremptorily stipulated by Article 275, third paragraph of the Code of Criminal Procedure (“C.P.P.”) among the circumstances where detention is mandatory. Otherwise the difference in treatment would be unjustifiable, and therefore unjust”. The judge concluded that he was thus firmly convinced that in cases like the one under consideration, “where each act (a) is aimed at the pursuit of reprehensible private interests and (b) is committed by persons who do or should bear a high reputation because of the powers and/or responsibilities which they exercise, the measure of prison detention must be applied (not the measure of house arrest which is very convenient - especially for someone like the accused who is used to living indoors - but not sufficiently deterrent).”

The applicant was arrested on 3 November 1993.

On the same day he filed with the Brindisi District Court an application for release from detention or, failing that, house arrest, arguing that there was no “serious indication of guilt” within the meaning of Article 273 of the Code of Criminal Procedure, and that there were no grounds whatsoever for precautionary measures.

Finally, the applicant inter alia drew the court’s attention to the established case-law to the effect that, when a precautionary measure is considered a significant period of time after the committal of the offence, account must be taken of the accused’s conduct after the committal of the offence. Insofar as he was concerned, in the two years that had elapsed after the offence of which he was accused, he had not been accused or charged with any similar or different offence.

Following a hearing on 11 November 1993, the court in a decision of 13 November 1993 held that there undoubtedly existed a “serious indication of guilt” against the applicant. It further held that “there undoubtedly was a danger of his committing further crimes within the meaning of Article 274 (c) C.P.P. considering how the accused succeeded in unlawfully attaining the economic ends identified”. It thus rejected his application for release. However, given that the applicant had a clean record, the court upheld his subsidiary request and placed him under house arrest.

On 23 November 1993 the applicant appealed on points of law against the refusal to release him, on the ground that his detention on remand was in breach of Articles 273 and 274 (c) C.P.P.. He stressed in particular that the Brindisi District Court had not given any reasons for the application of precautionary measures within the meaning of Article 274 (c) C.P.P.

On 30 November 1993 the applicant filed a request with the Brindisi Judge for the Preliminary Investigations to revoke the order for his being kept under house arrest, as he had resigned from his office of technical director of company X.

This application was rejected by the Judge for Preliminary Investigations on 3 December 1993 on the grounds of the short period of time elapsed since the application of the measure, which moreover had been changed into a more lenient one, and of the seriousness of the accusation. The judge explained that the applicant could have the possibility of using his experience and professional skills either on his own account or in the employment of another company.

On 6 December 1993, the applicant appealed to the Brindisi District Court against this decision. He underlined that the previous decisions had been based on the need for prevention of crime, and in particular on the circumstance that the applicant had maintained his position in company X. Accordingly, now that he had resigned, such need did not exist any more.

In a decision of 20 December 1993 the court pointed out that all previous decisions on the applicant’s detention were based on Article 274 (c). It held that, given that the applicant had resigned and in the light of the time already elapsed since the application of the measure and of the personality of the accused, there were no longer any grounds for his detention on remand. It accordingly ordered his immediate release.

On 28 February 1994 the applicant withdrew his appeal on points of law of 23 November 1993, which was acknowledged on 8 March 1994.

By a judgment of 15 April 1999, the Brindisi District Court acquitted the applicant on the ground that the facts had not occurred (“perché il fatto non sussiste”). This judgment became final on 14 October 1999.

Articles 273 and 280 of the Code of Criminal Procedure (“C.P.P.”) set out the conditions for precautionary measures (misure cautelari), namely the existence of serious evidence of guilt (“gravi indizi di colpevolezza”) in respect of a crime punishable with life imprisonment or detention for more than three years.

Article 274 C.P.P. provides in addition that precautionary measures can be ordered for the following reasons: prevention of interference with the course of justice (Article 274 (a)), danger of flight (274 (b)) and prevention of crime (274 (c)).

Article 274 (c) reads as follows: (precautionary measures are ordered) “where, given the specific nature and circumstances of the offence and having regard to the character of the suspect or the accused as shown by his conduct, acts or criminal record, there is a genuine risk that he will commit a serious offence involving the use of weapons or other violent means against the person or an offence against the constitutional order or an offence relating to organised crime or a further offence of the same kind as that of which he is suspected or accused”.

Detention pending trial ordered or maintained in breach of Article 274 does not give rise to a right to compensation under Articles 314 and 315 C.P.P..

Under Article 275 § 3 C.P.P., detention pending trial can only be ordered if all other precautionary measures appear to be inadequate. Where there is serious evidence that the offence of being a member of a mafia-type organisation has been committed, there is a rebuttable presumption that the necessity for detention pending trial exists.

Article 292 C.P.P. provides inter alia that the detention order must contain the explanation of the actual grounds for the precautionary measure and of the specific evidence of guilt, including the factual elements on which the evidence is based and the grounds for its pertinence, and must take into account also the time elapsed since the committal of the offence.

Article 314 § 1 C.P.P. provides that anyone who has been acquitted in a judgment that has become final – on the grounds that the case against him has not been proved, he has not committed the offence, no criminal offence has been committed or the facts alleged do not amount to an offence at law – is entitled to equitable reparation for any period he has spent in detention pending trial, provided that misrepresentations or fault on his part were not contributory factors in his being detained.

Under Article 314 § 2 C.P.P., a person whose detention pending trial has been found, in a final decision, to have been ordered or maintained in breach of Articles 273 and 280 C.P.P., is entitled to compensation. An application for reparation under Article 314 C.P.P. must be made within eighteen months after the judgment becomes final. The maximum award is 100,000,000 Italian lire (Article 315 C.P.P.).


CASE OF RAMISHVILI AND KOKHREIDZE v. GEORGIA

Violations of Art. 3 (substantive aspect);Violation of Art. 5-1-c;No violation of Art. 5-4;Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

The first and second applicants were born in 1971 and 1961 respectively and live in Tbilisi.

The applicants were co-founders of and shareholders in a private media company (“the media company”) which owned the television channel “TV 202” (“the channel”), broadcasting in Tbilisi. The first applicant, as an anchorman of the popular talk show “Debatebi” (Debates), often addressed politically sensitive issues.

Under a service agreement of 25 April 2005, the media company undertook to air several documentary films made by “Studio Reporter”, a private film-production company (“the production company”). Consequently, in May 2005, the latter started working on a documentary concerning certain business activities of Mr B., a parliamentarian from the presidential political party (“the ruling party”), which held at that time the majority of seats in Parliament. The object of the documentary was to expose Mr B.’s allegedly illegal commercial activities. According to the Government, except for the applicants, nobody within the media company knew about the making of the compromising film.

After Mr B. had tried in vain to persuade the journalists of the production company to drop the project, he contacted the first applicant. From May to August 2005 the parliamentarian placed numerous telephone calls, asking Mr Ramishvili to block the film. Eventually, they agreed to meet and discuss the issue.

During their first meeting, which took place in the morning of 26 August 2005, an agreement was reached whereby the first applicant would not allow the airing of the film on his channel in exchange for USD 100,000 (EUR 80,000). Immediately after this meeting, Mr B. complained to the Minister of the Interior that the first applicant had been blackmailing him. He reported to the authorities that, in the event of the compromising film being aired, it could have disastrous consequences not only for him personally but also for the image of the ruling party.

The same day, the Ministry of the Interior initiated criminal proceedings on suspicion of extortion for the purpose of gaining vast profits. Later that day, Mr B. met the first applicant again. They agreed that the latter would accept the sum in two instalments: USD 30,000 and 70,000 (EUR 24,010 and 56,000).

In the morning of 27 August 2005, Mr B. informed the prosecution service that he would hand over the first instalment to the first applicant around noon. The 100 US dollar notes were consequently processed with invisible chemicals and marked with a special pencil, while their serial numbers were recorded by the investigation authorities. The Prosecutor General’s Office (“the PGO”) issued a ruling, dated 27 August 2005, at 11.00 a.m., authorising the secret videoing of the meeting without a court order, due to “urgent necessity”. The camera was hidden on the parliamentarian’s person.

The meeting during which Mr B. handed over the money to the first applicant took place on 27 August 2005 at noon, in the apartment of a mutual friend of theirs. It was also attended by the second applicant. The conversation and the handing over of the money were videoed secretly (“the video recording of 27 August 2005”) by the parliamentarian. When the applicants left the meeting and got into the second applicant’s car, they were arrested and searched. USD 30,000 and the car in which the money was found were seized. On the same day the Tbilisi City Court legalised the secret video recording.

On 28 August 2005 Mr B. was recognised by the investigation as a victim and both applicants were charged with conspiracy to commit extortion. They pleaded “not guilty” and refused to testify at that time.

On 29 August 2005 the Tbilisi City Court granted the prosecutor’s motions and remanded the applicants in custody for three months. The order noted that the collected evidence – the parliamentarian’s statements, the results of the on-the-spot search of the applicants, the seized materials and the video recording of 27 August 2005 – substantiated the suspicion that the applicants had committed the offence with which they had been charged. The court dismissed the prosecutor’s argument that the applicants might abscond in view of the gravity of the charge as unsubstantiated. However, it endorsed the fear that they could interfere with the establishment of the truth by exerting pressure on those witnesses who were under their hierarchical authority in the media company.

On 31 August 2005 the applicants appealed against this decision, complaining that their detention was not lawful within the meaning of Article 5 of the Convention, since the prosecution had failed to prove the reasonableness of the imposition of such a measure. They complained in particular that, apart from the parliamentarian’s statements, the prosecution had not submitted any other evidence substantiating the suspicion that a crime had been committed. Further, they alleged that, contrary to Article 18 of the Convention, they had been detained not for the purpose of bringing them before the competent legal authority but in order to silence their television channel.

On 31 August 2005 the investigator issued a ruling, incorporating as evidence into the criminal case file the seized US dollar notes, the second applicant’s car and the traces of chemicals found there, as well as the applicants’ fingerprints and some other results of their search and arrest on 27 August 2005.

On 2 September 2005 the Tbilisi Regional Court dismissed the applicants’ appeal at an oral hearing. The case file contained photographs of that hearing showing that the applicants had been kept in a barred dock, surrounded by several guards. The photographs further showed that the court room was extremely overcrowded (for a detailed description of the hearing, see paragraphs 52-65 below).

The decision of 2 September 2005 endorsed the reasoning of the lower court concerning the applicants’ managerial positions in the media company as a ground supporting the risk that they might influence the witnesses. It reiterated that the collected evidence – the parliamentarian’s statements, the results of the on-the-spot search of the applicants, etc. – suggested “with a high degree of probability” that the applicants had committed the crime.

On 6 September 2005 the investigator incorporated the video recording of 27 August 2005 and its verbatim transcript as evidence into the criminal case file. On 29 September 2005 the investigator presented the transcript to the applicants. Calling its authenticity into question, the applicants requested leave to watch the recording.

On 19 October 2005 the investigator informed the applicants in writing that the preliminary investigation had been terminated. On 11 November 2005 the case materials were presented to the applicants in prison. However, because at that time no appropriate equipment had been provided, it was only on 14 and 16 November 2005 that the applicants, in the presence of their advocates, watched the video recording of 27 August 2005 for the first time.

On 22 November 2005 the prosecutor sent the criminal case, along with the bill of indictment of 19 November 2005, to the Tbilisi City Court for trial.

On 27 November 2005 the three month pre-trial detention period expired without the court ordering its extension.

On 6 December 2005 the applicants filed a complaint with the Tbilisi City Court, demanding their immediate release. They claimed that they had been deprived of their liberty in breach of Article 159 of the Code of Criminal Procedure (“the CCP”) and Article 5 of the Convention, since no judicial decision had authorised their detention since 27 November 2005. No immediate response from the court was forthcoming.

On 11 January 2006 the administration of Tbilisi No. 5 Prison, where the first applicant was provisionally detained, transferred the latter from his ordinary cell to the punishment cell (karceri), which measured 5.65 square metres and was intended for solitary confinement, as a disciplinary punishment for using a mobile telephone, the latter incident occurring for the first time. According to the first applicant, in Soviet times, this type of cell was used for the confinement of those on death row. There was another person sharing the cell with the applicant (“the second inmate“).

On 13 January 2006, the applicants were taken to the admissibility hearing before the Tbilisi City Court. The City Court decided to commit the applicants for trial under Article 417 § 1 of the CCP. In addition, it rejected their motion of 6 December 2005 to be released or to have their detention pending trial replaced by a more lenient measure of restraint, ruling in the following terms:

“The defence incorrectly alleges a violation of the Convention as regards the fact that, after the three month detention period expired, [the applicants] were not immediately brought before a court. [In fact] the criminal procedural law does not require that, once the case is referred to the court for a hearing on the merits, any procedural decision be taken on the measure of restraint applied to the accused. According to the Convention, the [national] court ought to decide on a case within a reasonable period of time. ‘Reasonable period of time’ is defined by Article 680(4) 8 of the CCP as follows. ‘In the course of the hearing of a criminal case by a District (Regional) Court, the period of detention must not exceed 12 months from the date on which the case is sent to the court.’ Consequently, the [applicants’] detention pending trial has not exceeded its legal term.”

In the operative part of the decision of 13 January 2006, it was noted that there was no appeal possible.

The case file contained photographs showing that the applicants had been kept in a barred dock during the hearing of 13 January 2006 and that there had been security guards armed with machine guns and wearing hoodlike black masks in the court room.

On 14 January 2006 at about 11.00 p.m., some toxic smoke (later explained by the authorities to have been caused by the burning of a mattress in the adjacent cell, see paragraphs 44 and 74 below) leaked into the first applicant’s punishment cell. Owing to the lack of ventilation, the smoke filled the cell quickly, causing the applicant and the second inmate to suffer from smoke inhalation, an inability to breathe and eye watering. According to the first applicant, they shouted and knocked on the door for half an hour before the prison guard opened the door and let both inmates out until the smoke was gone.

On 15 January 2006 the first applicant was returned from the punishment cell to his ordinary cell.

On 19 January 2006 the second applicant, also provisionally detained in Tbilisi No. 5 Prison, was moved from his six-bed cell, with six inmates in it, to another cell with twelve beds, where twenty-nine prisoners were kept. The inmates were obliged to take turns to sleep.

On 20 January 2006 the first applicant filed a complaint with both the PGO and the Ministry of Justice (“the MJ”), the authority in charge of the penitentiary system, challenging the conditions in the punishment cell and the lawfulness of his confinement there. According to the complaint, the punishment cell had no window or ventilation and was extremely damp. Tap water ran non-stop and noisily 24 hours a day. A narrow pipe in the corner, located just one metre away from the bed, was designated as a toilet. It was so narrow that it was difficult for the inmates to pass urine and excrement straight into the hole; there was no partition separating “the toilet” from the rest of the cell and a stench hung in the air all the time. One inmate could not avoid seeing what the other was doing. The cell was infested with cockroaches and rats occasionally ran through it. The only bed, infested with vermin, was not wide enough to accommodate two persons.

In such conditions, the first applicant claimed that he had not been able either to have any normal sleep or to eat properly. During the whole period of his confinement in the punishment cell, he was never let out for a walk or other physical exercise. He alleged that he was never visited by a doctor or provided with any other care.

From 20 January 2006 hearings were held almost daily. In the hearing rooms, the applicants were always kept in the same conditions as those on 13 January 2006: being displayed to the public in the barred dock, in the presence of hooded guards with machineguns.

At a hearing on 23 February 2006, the second applicant announced that he had been continuously deprived of necessary medical care and of drinking water in prison. He declared that he intended to begin a hunger strike. The judge did not respond. Shortly afterwards, six more inmates were placed in the second applicant’s already overcrowded 12bed cell, increasing the total number of prisoners there to 35.

On 25 February 2006 the PGO informed the first applicant that it had taken note of his complaint of 20 January 2006. It also advised him that, according to the MJ Penitentiary Department, the conditions in the punishment cell fully complied with “international standards”.

On 27 February 2006, after the prosecution had finalised its submissions before the court, the applicants requested, on the basis of Article 140 § 17 of the CCP, that their detention pending trial be replaced by a more lenient measure of restraint in view of newly discovered circumstances. In that connection the applicants referred to the fact that none of the witnesses questioned by the prosecution appeared to be under their hierarchical authority, but were rather co-founders of the media company. The Tbilisi City Court dismissed that request on the same day. The judge acknowledged that this fact was indeed “a newly-discovered circumstance...”, but ruled that it was “not a significant new circumstance which could justify revision of the imposed restraint measure”. The judge went on to say, “This is especially true since the accused have not yet presented their submissions and have not been examined; nor has the collected evidence been assessed...”

The applicants then challenged the judge for bias, questioning her impartiality, but this challenge was dismissed as unsubstantiated by the same judge of the Tbilisi City Court that same day. An appeal against both decisions of 27 February 2006 lay only in connection with an appeal against the final verdict.

On 29 March 2006 the Tbilisi City Court, convicting them of conspiracy to commit extortion, sentenced the first applicant to four and the second applicant to three years in prison. On 30 June 2006 the Tbilisi Appellate Court upheld the verdict.

After conviction the applicants were transferred from Tbilisi No. 5 Prison to Rustavi No. 6 Prison. They challenged the appellate decision of 30 June 2006 in the Supreme Court. The case file did not contain information on any further developments in the criminal proceedings.

On 3 July 2006 the PGO informed the first applicant that on 18 May 2006 it had opened a criminal case with regard to his complaint of 20 January 2006 concerning his confinement in the punishment cell but, after a preliminary investigation, had decided on 26 June 2006 to close it as no elements of a crime had been disclosed.

The PGO decision of 26 June 2006 noted that the first applicant’s transfer to the punishment cell had been, under Rule 22 § 1 (b) of the Prison Rules, a lawful disciplinary punishment for the use of a mobile telephone, such an act representing a grave violation of detention rules. Based on the statements of the administrative staff of Tbilisi No. 5 Prison, as well as the prison doctor and the second inmate, the decision stated that the first applicant had been visited by the doctor daily and offered food identical to that provided in the ordinary cells. It noted however that, according to the first applicant’s statements, he had refused to consume the food due to the unsanitary conditions in the punishment cell. As to the fire incident created by the inmate in the adjacent cell on 14 January 2006, the PGO, relying on witness testimonies, stated that the first applicant had immediately been taken out of his cell until the smoke was gone and that there had been no danger to his life.

The Government submitted the minutes of the interview with the second inmate on 21 May 2006. The latter specifically mentioned that the food in the punishment cell had been of a satisfactory quality and that, in any case, he and the first applicant had had ample supplies because of their relatives’ food parcels, which they had brought with them from their ordinary cells.

Relying on the examination of the punishment cell carried out by an investigative commission on 23 May 2006, the PGO’s decision of 26 June 2006 further stated that the cell had been equipped with an appropriate system of “air filtration” and inside artificial lighting, and that there had been a toilet, partitioned by a special wall from the rest of the cell.

According to the minutes of the punishment cell inspection of 23 May 2006, submitted by the Government, it was conducted without the first applicant or his advocates’ participation. They further disclosed that the punishment cell had been located in the basement of Tbilisi No. 5 prison, its length and width being 276 cm by 205 cm, and the bed had been 120 cm wide. As to the toilet, it consisted of a hole in the ground and two cemented bricks for placing the feet. There was no sink, and the water tap was set just above the toilet hole. The only source of lighting was an electric bulb. According to the minutes of the inspection and the attached plan of the cell, there was no window with access to daylight.

With due regard to the above findings, the PGO decided on 26 May 2006 that the prison officials had not exceeded or abused their powers when transferring the first applicant to the punishment cell.

On 18 July 2006 the first applicant filed a complaint against this decision, claiming that the investigation had not been effective or objective. He complained that, whilst he had filed his complaint on 20 January 2006, the PGO had opened proceedings only five months later on 18 May 2006. This lapse of time, in his view, had been more than sufficient for the prison administration to renovate the cell completely with a view to hiding the appalling conditions in which he had been held. In this regard, he challenged the PGO’s failure to enquire as to when exactly the ventilation, lighting and the toilet partition had been installed in the punishment cell. The first applicant further complained that the PGO had inexplicably disregarded his assertions that none of the above-mentioned conditions had existed during his confinement and had arbitrarily endorsed those of the prison staff who, being potential suspects in the case, could not be said to have been impartial witnesses. He challenged the fact that, despite his statement that he had never been provided with medical care, the PGO had trusted the statements of the prison doctor, another potential suspect, without having examined any other source of information (i.e. the relevant prison logbook of medical visits). He further claimed that the second inmate, being under the complete control of the authorities who were wellknown for abuses in prisons, might easily have been threatened or forced to make false statements. Finally, the first applicant complained that he and his advocates had learnt about the initiation of the criminal proceedings against the prison administration only after they were terminated on 26 June 2006. Consequently, they had not been given a chance to participate in the investigation so as to ensure its objectivity.

On 24 July 2006 the first applicant’s complaint of 18 July 2006 was dismissed by the Tbilisi City Court. In reply to his complaint that the criminal proceedings had commenced only four months after his complaint of 20 January 2006 had been lodged, the decision noted that “the case materials do not support the suspicion that the cell has been renovated since the proceedings were opened on 18 May 2006.” It further stated that the PGO had duly assessed the witnesses’ statements, including those of the prison staff and the first applicant, and that nothing in the case file suggested that the second inmate might have been forced to testify against the first applicant.

The decision of 24 July 2006 was adopted without an oral hearing and pronounced in absentia.

As part of their observations on the admissibility and merits of the application, the Government submitted a video recording of the proceedings concerning the applicants’ appeal against their detention on remand held at the Tbilisi Regional Court on 2 September 2005. The applicants replied that this recording did not include the scenes of greatest turmoil and had been considerably edited to portray a more favourable image of the hearing, excluding, for example, images of armed men inside the court room. They agreed however that this recording should be accepted and relied on as a source of information about the hearing. The applicants additionally provided annotations to some of the scenes.

The opening scenes of the Government’s recording showed an overcrowded court room before the start of the hearing. A large number of media personnel and cameras on tripods were situated in the middle of the room. The dock was a metal cage with a barred ceiling, located at the far end and separated from the rest of the court room. The audience was comprised of civilians, with a large number of women most of whom could be identified as the applicants’ supporters. However, there were some fifteen men in plain clothes who were undercover police agents, according to the applicants. Moreover, many of those men were openly identified as agents by the applicants’ supporters on the spot. The supporters engaged in heated argument with several men in plain clothes, complaining about the lack of space and the State’s inability to provide a larger court room for the hearing.

The four uniformed guards and several men in plain clothes escorted the handcuffed applicants into the court room. When the judge was seated, the crowd was still pressing into the room. The entrance door was blocked by the plain-clothes men from inside, while several hooded and armed guards could be seen forcing the door closed from the outside. The judge requested the people in the room to calm down. The judge specifically reproached the media representatives for their disorderly behaviour.

The general noise level in the court room remained unabated even after the hearing was declared open. The judge offered the applicants the possibility of conducting the hearing in camera but they refused. Loud male voices could be heard in the court room bitterly arguing and uttering vulgar curses. The body language of the judge betrayed resignation and frustration, as he was unable to establish order.

When the advocates spoke they were dazzled by camera flashes and halogen camera lights of the journalists. During their speech there were continual interruptions by the judge and the public, and relentless banging on the entrance door from the outside, as well as the sound of construction works nearby. Now and then mobile telephones rang and persons conducted conversations. Communication between the defence, the prosecution and the judge, constantly hampered by the unsolicited interruptions of journalists, was made possible by repeatedly requesting other people to move aside or sit down on the floor. The temperature in the court room was high, judging by the sweat on people’s faces. The persons presumed to be undercover agents, and some court personnel, could be seen constantly entering and leaving the judge’s deliberation room.

In order to see what was happening, respond to the judge or be heard, the applicants had to stand on the chair in the barred dock, hanging on to the metal side bars, and shout. They repeatedly asked the judge and the prosecutors to speak louder as they could not hear them. When answering one of the judge’s questions, the first applicant, hanging on the bars and grimacing as if to emphasise by body language his resentment at the situation, made the following remark:

“...The Government might have something against me...this I can [more or less understand]...but [I cannot] understand why it is necessary to detain [the second applicant] ... [unless,] of course, the Government wish to fill up the prisons [cixeebi]!...[Well,] I have been there [in the prison]; unimaginable things happen there!...There is no need for [the second applicant]...no place for him to be with me, here, in this cage! [galiaSi]...This is my declaration!”

The immediate proximity of the prosecutor to the judge presented no obstacle of audibility for them. The dialogue of questions and answers between judge and prosecutor was unaffected. Several persons alleged to be undercover agents in plain clothes were shown behind the prosecutor and investigator.

There were episodes when the prosecutor refused to reply to the second applicant’ ridiculous question... go and ask the parliamentarian about that!”, and the question was then dismissed by the judge.

In another episode, when the second applicant asked, “Could you, please, indicate the page and the paragraph in the case materials which prove that the parliamentarian...has testified against me?”, the prosecutor started laughing in reply and answered in a sarcastic tone, “Which case materials?! Which page?! Which paragraph?!” and then murmured “This man is not sane...” The judge intervened and rephrased the question as follows, “Do the parliamentarian’s testimonies incriminate [the second applicant]?” The prosecutor’s “yes” was endorsed by the judge as a reply to the question.

In some episodes, when the applicants or their advocates asked questions which perplexed the prosecutor, the judge either directly replied instead (i.e. by locating the necessary pieces of evidence in the case file) or rephrased the questions in a leading manner, thereby suggesting a suitable answer for the prosecutor. Thus, one of the advocates asked the prosecutor why it was necessary to impose detention on remand for three months, when there were only 8-12 witnesses who remained to be examined. As the prosecutor was unable to answer, the judge interrupted with, “[Because] the criminal procedural legislation does not envisage the imposition of detention for a lesser term”.

As the judge retired for deliberations, the public were ushered out of the court room by the guards and plain-clothes men. After the deliberations, the room contained many fewer people than before. The composition of the public had changed to an almost all-male audience, avoiding the camera by ostentatiously turning their backs towards it and the judge. As the judge read the decision, the plain-clothes men stood next to him. Strangers constantly entered and left the judge’s deliberation room. There were brief glimpses of one or two guards wearing black hood-like masks inside the court room in front of the closed door.

The closing scenes briefly showed the large number of presumably undercover plain-clothes agents leaving the court room, not hiding their irritation when filmed. A few of the applicant’s supporters, readmitted to the room after the deliberations, complained that the agents had occupied almost all of the seats. They asked the cameraman to film the presence of the agents. The first applicant then stated, “Look, there they are ...the agents (TanamSromlebi)!” and pointed to the plain-clothes men. The following remarks could be heard: “Their presence was overwhelming! ...More agents than family or friends!”

In the last scene, a hooded, armed man inside the court room nodded to the cameraman, apparently requesting the latter to stop recording.

The case file also contained a video recording, submitted by the applicants, showing how around 30-34 plain-clothes men, identified in the Government’s video as undercover agents, attending the hearing of 2 September 2005, left the Tbilisi City Court through the same back door exit as the handcuffed applicants. The agents were shown being greeted with familiarity in the backyard by the special security forces waiting for the applicants. Some of the undercover agents were filmed changing from their civil clothes into police jackets. The applicants were escorted from the courthouse in the presence of a great number of guards carrying machine guns and wearing black, hood-like masks.

In a letter of 11 July 2007, the second applicant informed the Court of his early release from prison on the basis of a Presidential pardon of 26 May 2007. He maintained his intention to pursue the Court proceedings.

Article 12 § 7 “Security of the person, respect for human dignity...”

“In the course of an investigative or judicial action, it is prohibited to exert upon a person physical or psychological pressure...or to subject a detained person to conditions that encroach upon his or her human dignity.”

“1. No one may be arrested without a court order or other judicial decision.

Courts, prosecutors and investigators are obliged to immediately release any person who is detained unlawfully.”

“1. Where there is a sufficient basis for hearing the case, the judge (court), without prejudging the merits of the case, shall commit the accused for trial...

During the admissibility hearing, in addition to deciding whether to commit the accused for trial..., the judge (court) shall decide whether to impose a measure of restraint on the accused.”

“The judge (court) shall decide whether to commit the accused for trial within 14 days or, in complicated cases, within a month of the date of delivery of a final judgment on the last criminal case registered with the same judge (court).”

Article 437 §§ 2 and 3 provided that the presiding judge was the authority in charge of a hearing. He or she was responsible for maintaining order in the court room and carried out all kinds of procedural actions envisaged by the Code. In addition, Article 442 stated that, during a hearing, the judge had to abide by all the general legal principles contained in Chapter II of Part I of the Code, of which Article 12, cited above, formed a part.

“Extortion is claiming another person’s object or property right or property use under threat of using violence against the victim, or the victim’s close relative, destroying or damaging the object, or of making public information which may impair the victim’s reputation, or of spreading such information as may substantially prejudice the victim’s rights...”

Under Rule 29 § 3 of the Prison Rules, in the event of a violation of prison regulations, a detainee could be subjected by the prison administration to disciplinary sanctions. Rule 29 § 8 listed the disciplinary sanctions as follows:

(a) a warning;

(b) a reprimand;

(c) a short-term or long-term ban on visits;

(d) confinement from 3 to 20 days in a punishment cell;

(e) prohibition to receive parcels.

Rule 30 § 1 explicitly prohibited detainees from taking food to a punishment cell from their ordinary cells.

Under Addendum No. 1 to the Prison Rules, detainees were forbidden to use telephones in prison.

The relevant parts of the Report read as follows:

“a. Prison No. 5, Tbilisi

At the end of the visit in 2001, the CPT’s delegation asked the Georgian authorities to take out of use all cells located in the basement of the main detention block (i.e. quarantine, transit and disciplinary cells). This measure was reportedly taken soon after the 2001 visit. However, as a result of the increasing number of prisoners sent to Prison No. 5, it became necessary to start using the basement cells again. In May 2004, some 170 prisoners were being held in the basement... The cells were dark, badly ventilated, damp and disgustingly filthy. Further, in some cells, prisoners were sharing beds.

Conditions on the other levels of the main detention block remained extremely poor. Many of the dormitories were grossly overcrowded, with as little as 1 m² of living space per prisoner. The number of inmates often exceeded the number of beds, thereby compelling prisoners to sleep in two and occasionally even three shifts (for example, 46 prisoners in a cell measuring 45 m² which was equipped with 28 beds). The situation was exacerbated by poor ventilation and lack of natural light...The sanitary arrangements were also completely inadequate: up to 50 prisoners might be sharing the same dilapidated and generally filthy toilet facility inside a dormitory. Further, there was no heating, and exposed electrical wires throughout the accommodation areas created a high risk of accidents...

The situation with regard to food had not changed since the 2001 visit; in practice, prisoners relied to a great extent on food parcels from their families.

Further, as in 2001, prisoners did not receive any personal hygiene items and there were no laundry facilities. The prison had relinquished responsibility for providing prisoners with bedding and many prisoners slept in what could only be described as rags...

...at the end of the visit in November 2003 the delegation made three immediate observations in respect of Prison No. 5 in Tbilisi, requesting the Georgian authorities to: ...(ii) definitively take out of service all cells located in the basement of the main detention building (including the isolation and “karzer” cells); (iii) ensure that all prisoners, including those in the “quarantine” section and disciplinary isolation cells, are guaranteed outdoor exercise of at least one hour per day.

In view of the deteriorated situation observed in May 2004, the delegation reiterated the above-mentioned immediate observations...

At the end-of-visit talks in May 2004, the Minister of Justice acknowledged that Prison No. 5 was substandard in all the key aspects...

c. Discipline

...At Prison No. 5 in Tbilisi, the disciplinary cells criticised in the report on the visit in 2001 had been taken out of service and replaced with nine other cells, located in a different part of the basement of the main detention block. Admittedly, the cells in question were larger and equipped with sleeping platforms. However, the cells were substandard in all other respects; in particular, they had no access to natural light and were unventilated, humid and dilapidated...

During the second periodic visit, the delegation was concerned to note that prisoners undergoing disciplinary confinement in the establishments visited were still not offered outdoor exercise ... at the end of the visit in November 2003, the delegation made an immediate observation, requesting the Georgian authorities to ensure that inmates placed in disciplinary cells in all penitentiary establishments in the country are guaranteed at least one hour of outdoor exercise per day...The CPT reiterates [that] recommendation...”

“...The space allocated for prison cells in Georgia—both in law and in practice—is significantly less than that required by regional human rights standards... In its 2001 recommendations to the Georgian government, the CPT lowered this standard suggesting, “A standard of 4 m² per prisoner should be aimed at.” Georgia’s Law on Imprisonment requires that the living space for each convict in the cells of the Penitentiary Department must be not less than two square meters. Detainees should each be provided with a separate bed...

Tbilisi Prison No. 5 dates from 1912...In many parts of Tbilisi Prison No. 5, the walls and floors are crumbling and in a state of disrepair. Electrical wires are exposed in the cells and corridors. The regular detention cells are filled with as many twotier metal bunk beds as the rooms will hold. There were no tables or chairs in the rooms at the time of Human Rights Watch’s visit. Detainees must sit on beds or on the floor when they are not sleeping. The toilets are partitioned from the rest of the cell by only a short wall or sometimes with a piece of fabric or shower curtain that the inmates have put up themselves. This design allows for very little privacy for those using the sanitary facilities. Because of the overcrowding, beds are often placed very close to the toilets. The toilets are decaying and filthy. In several cells Human Rights Watch found piles of garbage near the door. Human Rights Watch considers the conditions in which detainees are housed in this facility violate the prohibition on inhuman or degrading treatment.

All of the cells in Tbilisi Prison No. 5 visited by Human Rights Watch smelled strongly of human sweat, human excrement, and cigarette smoke. Detainees spend consecutive days and weeks in these cells without being allowed outside... The cells were also unreasonably hot, due to the overcrowding and lack of ventilation. Many prisoners were reduced to wearing very little clothing in an effort to stay cool...

Human Rights Watch found the most appalling conditions to be in the basement “quarantine” cells in Tbilisi Prison No. 5...The cells visited by Human Rights Watch had no natural light or ventilation, owing to their location in the basement, and only one tiny window covered with screens. Artificial light was provided by a bright light over the door. There was no running water in the sinks. There was standing water on the floor in one cell. The bed frames consisted of bare iron planks, and there were no mattresses and only a few tattered blankets...

The deputy director of Tbilisi Prison No. 5 claimed that detainees “wash once per week.” However, detainees stated that they do not shower once per week because “[t]here are too many people.”...

In Tbilisi Prison No. 5, Human Rights Watch found the kitchen building to be decaying. Water was overflowing some of the food preparation containers resulting in standing water on the floor...”