Violation of Art. 9;Violation of Art. 6;Non-pecuniary damage - award

The applicants are Jehovah's Witnesses. The applicant Mr Konstantin Nikanorovich Kuznetsov is a representative of the Administrative Centre of Jehovah's Witnesses in Russia. The other applicants are members of the Chelyabinsk community of Jehovah's Witnesses.

Between 1997 and 2001 the Chelyabinsk community of Jehovah's Witnesses filed twelve applications for State registration with the regional Department of the Ministry of Justice. Their applications were refused on 17 May 1996, 20 June and 3 November 1997, 21 January, 30 April, 28 June, 15 July and 16 December 1999, 30 June and 17 August 2000, 11 May and 24 September 2001. Each refusal was justified by reference to alleged formal defects in the registration documents.

The applicants complained to a court. On 24 July 2002 the Tsentralniy District Court of Chelyabinsk ruled that the refusal of 24 September 2001 had been unlawful. On 28 October 2002 the Chelyabinsk Regional Court upheld this decision and ordered the registration of the Chelyabinsk community of Jehovah's Witnesses. On 31 March 2003 the community was officially registered by the Chief Directorate of the Ministry of Justice for the Chelyabinsk Region.

In the applicants' submission, Ms Yekaterina Gorina, appointed by the Chelyabinsk Regional Governor as Chairwoman of the regional Human Rights Commission (“the Commissioner”), had attempted on several occasions to initiate criminal proceedings against the Chelyabinsk community of Jehovah's Witnesses on the ground that the community had “lured” young children into their “sect”.

On 25 May 1999 a senior investigator with the Chelyabinsk town prosecutor's office found no indications of a criminal offence and decided not to open a criminal investigation into the activities of the members of the Jehovah's Witnesses' community.

Following the Commissioner's intervention, the decision of 25 May 1999 was reversed and an additional inquiry was ordered.

On 3 March 2000 the deputy Chelyabinsk town prosecutor again dismissed the allegations against the members of the Jehovah's Witnesses' community on the ground that no evidence pointing towards a criminal offence could be found.

On 6 February 1999 Mr Z., a member of the local community of Jehovah's Witnesses, acting on behalf of the Administrative Centre of the Religious Organisation of Jehovah's Witnesses, negotiated a lease agreement with Mr U., principal of vocational training college no. 85 in Chelyabinsk, in respect of the college auditorium and associated facilities. According to Article 1.1 of the lease agreement, the premises were rented for the purpose of holding religious meetings on Tuesdays between 7 a.m. and 9 p.m. and on Sundays between 10 a.m. and 4 p.m., outside the normal college teaching hours.

The lease agreement was intended to run from 7 February to 31 December 1999. It also contained a provision that it would be automatically renewed on the same terms and conditions and for the same period unless either side gave one month's advance notice of its intent to terminate the agreement. No such notice appears to have been given by either party. Thereafter the agreement continued to run for the extended one-year period, but with the lessees only authorised to terminate it subject to two months' notice in writing. There was no reciprocal power for the college to terminate the agreement during the extended period.

By April 2000 the applicants had been using the college facilities for fourteen months and had paid their rent on time and in accordance with the terms and conditions. As a means of raising additional revenue for the college, its principal entered into similar lease agreements with four other organisations.

On 31 March 2000 the Chief Directorate for Vocational Training and Science of the Chelyabinsk Regional Administration issued an order prohibiting all educational establishments in the Chelyabinsk Region from renting out their premises for religious services, meetings, and so forth.

On 12 April 2000 the Commissioner, together with an unidentified senior police officer, visited Mr U., principal of college no. 85, and attempted to persuade him to terminate the lease agreement with the applicants. The principal refused the request. The Commissioner demanded to see the agreement and took a photocopy of it. She then asked a number of detailed questions about the days and times of the Jehovah's Witnesses' meetings. The principal provided the information.

On Sunday 16 April 2000, in accordance with the lease agreement, the Jehovah's Witnesses used the college facilities. Two consecutive meetings were on the agenda. The first meeting ended without incident.

The second meeting, from 1.30 to 3.30 p.m., was of a group with special needs; most of the participants were profoundly deaf. Many of those in attendance were elderly and also had impaired vision. A person trained in sign language provided interpretation at the meeting, the purpose of which was to study the Bible and join in public worship. The meeting was open to the general public: attendants were positioned near the entrance to the meeting place to greet newcomers and assist with seating.

The first part of the meeting was a talk given from the platform by Mr Kuznetsov, who had a mastery of sign language. There were 159 persons present, including all the applicants.

At some time between approximately 2.10 and 2.15 p.m. the Commissioner entered the foyer which gives access from the street to the meeting place, holding a child by the hand. The applicant Mr Setdarberdi Oregeldiev, who is profoundly deaf but has no speech impairment, was the attendant on duty. He went out into the foyer to greet the Commissioner and the child and show them to a seat. Realising that the visitor was not deaf, another applicant, Mr Dmitri Gashkov, who did not have impaired speech or hearing, went to assist. He invited the Commissioner into the meeting hall and offered her a chair; she refused and said that the police were about to arrive.

After this brief exchange the Commissioner left the foyer. The speaker went on with his talk, which ended at approximately 2.25 p.m.

The second part of the meeting was conducted in sign language. This part was in progress, with about 15 minutes left and 45 minutes to go before the end of the contracted rental time of 4 p.m., when the Commissioner again entered the foyer, this time without the child. She was now accompanied by Mr Tomskiy, managing director of the Commissioner-affiliated commercial company Man. Law. Power, and by two senior police officers, Mr Vildanov, deputy head of the District Inspectors' Service of the Traktorozavodskiy Police Department of Chelyabinsk, and Mr Lozovyagin, a senior district inspector with the same department. Mr Tomskiy was holding and using a camcorder to film.

The Commissioner led the way forward and walked to the threshold of the door into the meeting hall. Mr Tomskiy was a short distance behind, filming with the camcorder. One of the applicants, Ms Lappo, who was not hearing-impaired and was sitting close to the door in a position to observe the events, later testified before the District Court as follows:

“On 16 April 2000 a woman accompanied by two police officers and a man in plain clothes came to the meeting. They stood in the entrance so that I couldn't see the programme. The Commissioner said to one of the men 'Stop the meeting', but he hesitated and said 'But they are deaf mutes'.

I told one of the congregation to go and get Konstantin [Kuznetsov]. When Konstantin came out to them there was a conversation with raised voices. The Commissioner asked if there were children in the hall and whether they were all with their parents. Then they asked Konstantin for his passport in an unpleasant manner...

...When I found out who the Commissioner was I was very displeased. I demand that you fire her from her position in the Human Rights Commission...”

When asked by the judge what the Commissioner had said to the police officer, Ms Lappo responded:

“She said: 'You – go up on to the stage and say that the congregation has to disperse'.”

Mr Kuznetsov approached the Commissioner and the police officers. As he was standing in the doorway with his back to the meeting hall, the police officer Mr Lozovyagin asked him for his identity papers. He also asked Mr Kuznetsov whether he had a registered residence in Chelyabinsk. Mr Lozovyagin testified before the District Court as follows:

“So I asked him [Kuznetsov] to show me his passport. It showed that he was registered in the Krasnodar Region. I told him that he did not have the right to conduct arrangements without documents”.

Mr Kuznetsov submitted that that statement had been incorrect; it was true that his registered place of birth was in the Krasnodar Region, but he also had a properly and lawfully registered temporary residence in Chelyabinsk.

In his testimony before the District Court, Mr Lozovyagin continued as follows:

“I told Kuznetsov that their organisation did not have the right to conduct its activities without the appropriate documents. He promised to bring the documents to the police station. I asked him to produce the documents. He said 'They exist and are elsewhere', but which documents and where he did not say. I asked him for a document confirming his relationship to the organisation...”

Responding to the judge's question about the violations of law and order that he had observed, Mr Lozovyagin said:

“Yes, to start with a meeting of an organisation whose activities could not be confirmed by any documents... By law I had to stop the activities until the documents were produced.”

This was confirmed by the police officer Mr Vildanov who spoke as follows before the District Court:

“Lozovyagin said that the meeting should no longer be conducted and that documents should be prepared giving permission [for services of worship in educational establishments].”

In their written submissions on the admissibility and merits of the case, the Government indicated that Mr Lozovyagin had invited Mr Kuznetsov to cancel all events until such time as the appropriate documents had been produced.

Mr Kuznetsov submitted that he had been faced with authoritarian demands and the intimidating behaviour of the Commissioner and the police and had thought it best to comply. He described the situation in the following manner:

“I believe that we were conducting the meetings on a lawful basis. Pressure was being put on me. Tomskiy gave me an official warning. I was afraid they would start removing those present at the meeting by force. Vildanov and Lozovyagin were in uniform. I understood that they were in a position of authority and must be obeyed...”

Mr Kuznetsov went to the platform, interrupted the Bible discussion and made an announcement in sign language: “Police. We have to submit”. The attendees offered no resistance. They gathered their personal belongings and filed out of the meeting place and the foyer. The Commissioner and the police officers stood outside the building and watched; Mr Tomskiy was no longer filming.

According to the applicants, the Commissioner came up with several conflicting and mutually exclusive versions of her role in the events. Initially she maintained that the visit had been purely for the purpose of fact-finding; that neither she nor the police had done anything to cause the meeting to be stopped; and that Mr Kuznetsov had stopped the meeting entirely of his own free will. As the case progressed and more evidence was heard from eyewitnesses who testified to the part played by her and the police, the Commissioner eventually admitted that steps had indeed been taken to stop the meeting; however, she blamed the police. She insisted that she had made no demands to Mr Kuznetsov as the operation had been organised and carried out by the police officials. At the trial, however, she was pressed to say that she had agreed with and supported the police decision. Finally, in explaining her agreement with the police decision and when pressed as to why, as Chairwoman of the Human Rights Commission, she had given her agreement, she gave the following answer:

“I still consider these actions to be lawful – I was defending the rights of all the children who study at college no. 85.

[Question:] In which documents is information about the danger of Jehovah's Witnesses to the neighbourhood contained?

[The Commissioner:] As far as I'm concerned, the reports in the press are sufficient.”

On 17 April 2000, the day after the disruption of the religious meeting, the principal of college no. 85 informed Mr Z. that the lease agreement between the college and the community of Jehovah's Witnesses would be terminated as of 1 May 2000 “because of certain irregularities committed by the college administration at the time of its signing”.

On an unspecified date the applicants complained to the Chelyabinsk town prosecutor about the actions of the Commissioner and the police officers. They requested a criminal investigation into the officials' actions.

The prosecutor's office put questions to the Commissioner, Mr Lozovyagin and Mr Vildanov. In their written statements of 3 May 2000 the officials claimed that they had investigated a complaint by a 15-year-old girl who had been “lured” into the Jehovah's Witnesses “sect”. The Commissioner stated that “Lozovyagin and Vildanov [had] decided to halt the event, which was being held by an unknown organisation in sign language”. Mr Lozovyagin did not deny that he had asked Mr Kuznetsov for documents and told him that the event would be halted until such time as they had been produced. Mr Vildanov testified in the same vein. As to the lawfulness of their actions, all three officials claimed that, as it was not registered with the State as a legal entity, the Chelyabinsk community of Jehovah's Witnesses had no right to hold religious services and that the lease agreement with the college principal had been null and void.

On an unspecified date the prosecutor's office decided not to institute criminal proceedings against the Commissioner and the police officers.

On 11 July 2000 the applicants filed a civil complaint with the Sovietskiy District Court of Chelyabinsk alleging unlawful actions on the part of the Commissioner.

On 13 November 2000 the applicants amended their complaint and joined Mr Tomskiy, Mr Lozovyagin, Mr Vildanov and Mr Kuryshkin, deputy head of the Traktorozavodskiy police department, as co-defendants. The applicants alleged violations of their rights to freedom of religion and freedom of association, as guaranteed both by the Russian Constitution and the Convention.

During the trial the presiding judge did not consent to the use of audio-recording equipment provided by the applicants' lawyers. However, this injunction applied only to advocates and one of the applicants was able to record the trial on a personal audio recorder.

On 25 January 2001 the Sovietskiy District Court of Chelyabinsk gave judgment. It found it established that the Commissioner, Mr Tomskiy, Mr Lozovyagin and Mr Vildanov had arrived at college no. 85 on 16 April on a fact-finding mission to check whether a religious meeting had been taking place there. However, as it had been Mr Kuznetsov who had got up on the stage and announced, in sign language, that the meeting was to end, the District Court found that the applicants had failed to show that the religious meeting had been terminated on the defendants' orders. As regards the assessment of the evidence given by the applicants, the District Court held as follows:

“Assessing the statements given by certain plaintiffs, and in particular by Ms Lappo and Ms Kadyrova, who claimed that they had heard Ms Gorina giving the police officers the instruction to halt the meeting and that they, in turn, had relayed it to Mr Kuznetsov... the court takes into account the fact that these individuals are interested in the outcome of the proceedings and, for that reason, the court views their submissions critically ...

During the trial, none of the State officials... admitted to taking action to halt the meeting; their position concurs with the witness statements given by many of the plaintiffs, who confirmed that they had not entered the hall but remained in the foyer”.

The District Court dismissed the applicants' complaint for their failure to prove that the early termination of the meeting had been brought about by the Commissioner and her aides.

The applicants filed a statement of appeal. They pointed to multiple admissions by the Commissioner and the police officers, before the District Court and in their statements to the prosecutor dated 3 May 2000, that they had instructed Mr Kuznetsov to terminate the meeting. They also submitted that the concordant statements of fifteen applicants could not be rejected as those of “interested witnesses” and that the District Court had not specified what the applicants' “interest” had been, given that no claim for damages had been filed.

On 28 June 2001 the Chelyabinsk Regional Court, ruling on an appeal by the applicants, upheld the judgment of 25 January 2001. The Regional Court repeated verbatim the reasoning of the District Court. It did not address the arguments set out in the statement of appeal.

The applicants also complained about the actions of the regional Commissioner to Mr Mironov, Ombudsman of the Russian Federation.

On 1 December 2000 the Ombudsman sent a letter to Mr Ustinov, the Prosecutor General of the Russian Federation. The Ombudsman strongly condemned the use of derogatory terms such as “sect” and “totalitarian sect” in the documents issued by State officials. In its relevant part the letter read as follows:

“...In particular, the letter from the deputy Prosecutor General, Ye.G.Chuganov, to the Chairwoman of the Governor's Commission for Human Rights in the Chelyabinsk Region, Ye.V.Gorina, was widely distributed... It recommended using as reference material on the activity of the Jehovah's Witnesses the book An Introduction to Sectarianism by A. Dworkin, and the handbook New Destructive and Occult-Related Religious Organisations in Russia, prepared by the Missionary Department of the Moscow Patriarchate [of the Russian Orthodox Church]...

The publication referred to in the letter is highly condemnatory in respect of certain faiths. It reflects the judgment of one religious organisation about others and its contents serve to prove the 'authenticity' of one religion and the 'falseness' of the other(s)...

The situation is further aggravated by the fact that Chuganov's letter was used in trials where it was portrayed as reflecting the official stance taken by the Prosecutor General's Office of Russia. For example, in Chelyabinsk, in the course of examination of a complaint by the local community of Jehovah's Witnesses against the Chairwoman of the regional Commission for Human Rights Ms Gorina, the latter constantly referred to Dworkin's book as a handbook recommended by the Prosecutor General's Office that contained reliable information on the activity of so-called destructive sects, including the community of Jehovah's Witnesses. This was used to justify the extremely heavy-handed conduct of the municipal authorities towards the Jehovah's Witnesses, in particular their breaking-up, with the aid of the police, of the believers' prayer meeting being held on the premises which they had been renting for an extended period of time.”

Article 29 guarantees freedom of religion, including the right to profess either alone or in community with others any religion or to profess no religion at all, to freely choose, have and share religious and other beliefs and to manifest them in practice.

The State may not interfere with the activities of religious associations provided that they comply with the law (section 4 § 2). State and other public officials may not use their position to foster any specific attitude towards a religion (section 4 § 4).

Religious associations may take the form of either a religious group or a religious organisation (section 6 § 2). A religious group carries on its activities without State registration and without obtaining legal entity status (section 7 § 1). The right to use rented property for religious purposes is conferred only on registered religious organisations; religious groups may only use premises provided by participants (section 22).

Services of worship and other religious rites and ceremonies may be performed without interference in buildings and structures intended for worship and their adjacent areas, and in other premises made available to religious organisations for these purposes (section 16 § 2).

A court of general jurisdiction may hear complaints about actions or decisions of State and public officials which infringe citizens' rights or freedoms or prevent citizens from exercising their rights and freedoms. It is incumbent on the officials concerned to demonstrate the lawfulness of their actions or decisions (section 2).

The Education Act prohibits structural units of political parties, political and religious movements and organisations from being set up and operated in State and municipal educational establishments and education management bodies (section 1 § 5).

An educational establishment may lease and rent out property. Rental income must be used for educational needs (section 39 § 11).

On 30 July 1999 a deputy President of the Supreme Court ruled on the complaint brought by the local authorities of Kaluga against an elder of the local community of Jehovah's Witnesses who had allegedly failed to give notice of a religious meeting to the local authorities:

“...according to the Russian Law on freedom of conscience and religious associations, the phrase 'without obstruction' means that no permission from, or clearing of the matter with, the secular authorities is required for performing religious ceremonies on premises provided [for that purpose].”

On 14 August 2001 a deputy President of the Supreme Court ruled on a similar complaint brought by the authorities of Kislovodsk against a Jehovah's Witness in connection with an allegedly unauthorised religious gathering:

“According to Article 16 of the Russian Federation Law on freedom of conscience and religious associations, religious services and other religious rites and ceremonies can take place without any interference... in other places made available to religious organisation for that purpose... Therefore, the local religious organisation was not required to inform the State authority of its gathering.”


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

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in 1977 and lives in Khunzhand, Tajikistan. He is currently residing in Moscow.

The applicant is a practising Muslim. He states that he has not been a member of any political organisations, including Hizb ut-Tahrir (“HT”), an Islamic organisation banned in Russia, Germany and some Central Asian republics, but has nonetheless been persecuted by the Tajikistani authorities on account of presumed membership of that organisation.

By a decision of 22 June 2000 the Ministry of Security of Tajikistan instituted criminal proceedings against the applicant on account of his membership of “the illegal extremist-religious party 'Hizb ut-Tahrir'”. The decision stated that the applicant had committed a number of serious and particularly serious crimes, namely, incitement to overthrow the political regime in Tajikistan and dissemination of material containing incitement to religious hatred. On the same date the Ministry of Security of Tajikistan placed the applicant on a search list, drew up an arrest warrant in his name and suspended the investigation because the applicant's whereabouts were unknown.

The applicant fled to Moscow in 2001.

Between 27 October and 7 December 2001 the applicant was kept in detention in Russia with a view to his extradition. He was subsequently released because no formal request for his extradition was received.

The applicant registered his place of residence in Russia with the relevant authorities.

On 28 November 2007 the applicant was arrested by servicemen of the Moscow Department of the Federal Security Service and police of the Odintsovo District.

In the morning of 30 November 2007 the applicant was questioned in the absence of a lawyer. The servicemen who carried out the interview threatened to use violence against the applicant and his family unless he voluntarily agreed to leave Russia for Tajikistan. According to the applicant, he was not informed of the reasons for his arrest in the course of the interview. Neither did he have access to a lawyer during the two following weeks in detention.

On 30 November 2007 the Odintsovo Town Court of the Moscow Region (“the Town Court”) ordered the applicant's placement in custody pending his extradition. The term of detention was not specified.

Between 30 November 2007 and 30 January 2008 the applicant was kept in a temporary detention facility of the Odintsovo District Department of the Interior. In the meantime his wife was expelled to Tajikistan.

On 21 December 2007 the Prosecutor General of Tajikistan sent a request for the applicant's extradition to the Prosecutor General of Russia and enclosed a copy of the decision of 22 June 2000 to charge the applicant with membership of a proscribed organisation and copies of the search and arrest warrants.

On 4 June 2008 the Deputy Prosecutor General of Russia ordered the applicant's extradition to Tajikistan to face criminal prosecution. The order stated that the applicant had been charged with membership of a proscribed religious-extremist organisation and dissemination of material containing incitement to religious hatred.

The applicant challenged the extradition order of 4 June 2008 in court.

On 22 August 2008 the Moscow City Court upheld the order of 4 June 2008. It reasoned that there were no legal grounds impeding the applicant's extradition to Tajikistan because the applicant was a Tajik national and his request for political asylum had been rejected. The applicant's claims that he was not guilty of the crimes of which he had been charged had been examined and dismissed “on the ground that issues of falsification of charges in his respect by law-enforcement agencies of Tajikistan [were] not subject to examination in the course of [that] court hearing”. It further stated that allegations of persecution on religious grounds had not been confirmed by reliable evidence, and concluded as follows:

“[Mr] Khodzhayev does not have refugee status in the Russian Federation, has not been and is not being persecuted on grounds of his race, religion, citizenship, nationality or association with a particular group [and] has not applied for Russian citizenship or political asylum.”

On 28 October 2008 the Supreme Court of Russia examined an appeal by the applicant against the judgment of 22 August 2008 and dismissed it, reproducing the reasoning of the Moscow City Court verbatim.

On 11 January 2008 the applicant lodged a request for political asylum with the Moscow Department of the Federal Migration Service (“the Moscow FMS”).

On 11 January 2008 the applicant requested protection from the Russian Office of the United Nations High Commissioner for Refugees (“the UNHCR Office”). It appears that UNHCR Office staff were not allowed to visit the applicant over the following months.

On 16 May 2008 the Moscow FMS refused to grant the applicant political asylum. On an unspecified date the applicant was notified of that decision.

The applicant challenged the Moscow FMS's decision of 16 May 2008 in court. On an unspecified date the Zamoskvoretskiy District Court of Moscow refused to admit the applicant's statement of claim because he had failed to pay the court fee. The applicant appealed.

On 18 November 2008 the Moscow City Court quashed the decision of the Zamoskvoretskiy District Court of Moscow and ordered it to admit the applicant's statement of claim with no court fee. It appears that the proceedings challenging the Moscow FSM's decision are now pending before the Zamoskvoretskiy District Court of Moscow.

On 26 November 2008 UNHCR Office staff interviewed the applicant.

On 22 June 2000 an investigator from the Tajik Ministry of Security, having obtained a prosecutor's approval, issued an arrest warrant in respect of the applicant.

In July 2001 the applicant arrived in Russia illegally looking for well-paid employment. During the following six years the applicant filed no request to register himself as a temporary resident with Russian migration offices. Neither did he lodge a request for asylum. The applicant did not have a migration card.

On 27 October 2001 the applicant was arrested in Moscow pursuant to Article 61 of the Minsk Convention as a person put on an international wanted list.

On 7 December 2001 the applicant was released from custody because no request for his extradition had been received.

On 19 February 2002 the Tajik Prosecutor General's Office requested the Russian Prosecutor General's Office to extradite the applicant.

On 27 February 2002 the Russian police were instructed to search for the applicant.

On 28 November 2007 the applicant was arrested by servicemen of the Federal Security Service and the police.

On the same date the applicant was questioned by an official of the Odintsovo prosecutor's office. The written statement signed by the applicant certified that he was fluent in Russian and did not need an interpreter. The statement reads, in so far as relevant, as follows:

“... I am aware of the fact that my name has been put on a wanted list in Tajikistan. I cannot give any details concerning the criminal case against me in Tajikistan. The investigative documents from Tajikistan that I have been provided with contain my personal data but I did not commit the crimes mentioned in them. I cannot submit more information on the substance of the criminal case against me.

... I am not being persecuted in Tajikistan for political reasons. I am a Tajik national and I have not applied for political asylum or refugee status to any agencies, consulates, embassies or representative offices.”

On 30 November 2007 the Town Court held the hearing and examined the Odintsovo prosecutor's office's request to authorise the applicant's placement in custody pending extradition. The request that mentioned the fact that the applicant had been suspected of serious and particularly serious crimes in Tajikistan was read out in the courtroom. In the document entitled “Decision concerning the choice of custodial detention as a preventive measure” the Town Court observed that the applicant was suspected of creating a criminal organisation, inciting to racial and religious hatred and calling for the overthrow of the Tajik constitutional regime and ordered the applicant's placement in custody pursuant to the Minsk Convention and Article 108 of the CCP. The Town Court reasoned that the applicant was a foreign national, had no permanent employment or place of residence and, unless detained, might abscond, continue his illegal activities or interfere with the course of criminal proceedings. The applicant was advised of his right to appeal against the decision before the Moscow Regional Court within three days.

On 24 December 2007 the Tajik Prosecutor General's Office requested the Russian Prosecutor General's Office to extradite the applicant as a person charged with terrorism-related crimes.

On 28 December 2007 the Town Court ordered the applicant's placement in custody pending extradition pursuant to Articles 108 and 466 of the CCP. The document was entitled “Decision concerning the choice of custodial detention as a preventive measure”. The applicant was advised of his right to appeal against the decision before the Moscow Regional Court within three days.

The applicant did not appeal against the Town Court's decisions of 30 November and 28 December 2007.

On 11 January 2008 the applicant argued for the first time that in Tajikistan he had been persecuted on political grounds in his letters to the UNHCR Office and the Moscow FMS.

On 4 June 2008 the Russian Deputy Prosecutor General granted the Tajik Prosecutor General's Office's request and ordered the applicant's extradition. The applicant was advised of his right to appeal against the order within ten days.

On 28 July 2008 the applicant appealed against the extradition order.

On 5 August 2008 the Moscow FMS received the applicant's request for temporary asylum.

On 22 August 2008 the Moscow City Court dismissed the applicant's appeal against the extradition order.

On 27 August 2008 the applicant appealed against the judgment of 22 August 2008.

On 28 October 2008 the Russian Supreme Court dismissed the applicant's appeal and upheld the judgment of 22 August 2008. On 13 November 2008 the applicant was served with the appeal court's decision.

On 24 January 2008 the Russian Prosecutor General's Office received the applicant's counsel's request to allow UNHCR Office staff to visit the applicant. A request made by the UNHCR Office reached the Russian Prosecutor General's Office only on 23 July 2008. The request did not contain the personal details of the staff in question. As soon as those details had been communicated by the UNHCR Office, the Russian Prosecutor General's Office issued a permit to visit the applicant.

On an unspecified date the UNHCR Office informed the prosecutor's office of the Moscow Region that the applicant was eligible for international protection.

On 26 February 2008 the applicant requested the Moscow FMS to grant him refugee status.

On 20 March 2008 officials of the Moscow FMS visited the applicant in the remand prison and interviewed him.

The applicant was provided with ample opportunities to substantiate his fears of persecution in Tajikistan. He was interviewed by State officials in this respect on several occasions.

On 16 May 2008 the Moscow FMS, having thoroughly studied the applicant's request, dismissed it and refused to declare the applicant a refugee. The applicant appealed against that decision.

On 3 July 2008 the Zamoskvoretskiy District Court of Moscow refused to admit the applicant's appeal against the Moscow FMS's decision of 16 May 2008 and invited the applicant to eliminate the discrepancies in his appeal by 18 July 2008.

On 25 August 2008 the Zamoskvoretskiy District Court of Moscow ruled that the applicant's appeal against the Moscow FMS's decision should not be examined because the applicant had failed to eliminate the discrepancies referred to in the ruling of 3 July 2008.

On 26 November 2008 the applicant's request for temporary asylum was dismissed.

On 18 November 2008 the Moscow City Court quashed the ruling of 25 August 2008 and remitted the matter for fresh examination at first instance.

On 12 March 2009 the Zamoskvoretskiy District Court of Moscow dismissed the applicant's appeal against the Moscow FMS's decision of 16 May 2008.

Chapter 13 of the CCP governs the application of preventive measures. 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 (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. Acts or omissions of a police officer in charge of the inquiry, an investigator, a prosecutor or a court may be challenged by “parties to criminal proceedings” or by “other persons in so far as the acts and decisions [in question] touch upon those persons' interests” (Article 123). Those acts or omissions may be challenged before a prosecutor (Article 124). 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 measure of restraint in respect of the person whose extradition is sought. The measure of restraint is to be applied in accordance with the established procedure (Article 466 § 1).

The Constitutional Court examined the compatibility of Article 466 § 1 of the CCP with the Russian Constitution and reiterated its constant case-law 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 guarantees of the right to liberty and personal integrity set out in Article 22 and Chapter 2 of the Constitution, as well as the legal norms of Chapter 13 of the CCP on preventive measures, 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 therein.

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 criminal-law provisions governing the procedure and time-limits for holding a person in custody with a view to extradition. That was a matter for the courts of general jurisdiction.

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.

By a decision (решение) of 14 February 2003 the Supreme Court of the Russian Federation granted the Prosecutor General's request and classified a number of international and regional organisations as terrorist organisations, including HT (also known as the Party of Islamist Liberation), and prohibited their activity in the territory of Russia. It held in relation to HT that it aimed to overthrow non-Islamist governments and to establish “Islamist governance on an international scale by reviving a Worldwide Islamist Caliphate”, in the first place in the regions with predominantly Muslim populations, including Russia and other members of the Commonwealth of Independent States.

Recommendation No. R (98) 13 of the Council of Europe Committee of Ministers to Member States on the rights 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 2007...

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).

The 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.”

Amnesty International in its document “Central Asia: Summary of Human Rights Concerns: March 2007 – March 2008” describes the situation regarding freedom of religion in Tajikistan as follows:

“Members of religious minorities and human rights defenders were concerned that decisions taken by the authorities restricted freedom of religion and belief. During the second half of 2007 unregistered mosques were closed down or demolished in the capital, Dushanbe. ... A proposed new law on religion raised fears that unregistered religious activity would be banned. The draft law proposed stringent registration requirements which would make it very difficult for religious minorities to apply or re-apply for legal status. It also proposed to limit the number of registered places of worship and to ban missionary activity. Pending the adoption of the new law the government was not accepting new applications for legal status from religious groups.

In November [2007] the UN Special Rapporteur on freedom of religion or belief, Asma Jahangir, published a report on her visit to Tajikistan earlier in the year. The report's conclusions emphasized the “need to devise educational policies aimed at strengthening the promotion and protection of human rights and eradicating prejudices, which are incompatible with the freedom of religion or belief”. The conclusions also stressed that registration procedures for religious groups should be straightforward and that “[r]egistration should not be a precondition for practising one's religion”. The Special Rapporteur recommended that the Tajikistani authorities ensure that “any measure taken to combat acts of terrorism complies with their obligations under international law, in particular international human rights law, refugee law and humanitarian law.” She stressed that “an independent, neutral and impartial judiciary and prompt access to a lawyer [were] vital to safeguarding also the freedom of religion or belief of all individuals and religious communities”.

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

“Religious Freedom

At this writing, the government had not yet sent to parliament a controversial draft law on religion that had been sharply criticized in 2007. Under the draft law, all religious groups must reregister and meet such onerous conditions as providing the address of any person who, at any point during the past 10 years, has been a member. The draft also prohibits foreigners from chairing religious organizations.

Actions in the Name of Countering Terrorism and Extremism

Following a recommendation by the prosecutor general, the Supreme Court of Tajikistan designated Hizb ut-Tahrir, a group that supports the reestablishment of the Caliphate, or Islamic state, by peaceful means, an "extremist" organization. The government continued to arrest alleged Hizb ut-Tahrir members and convict them either of sedition or incitement to racial, ethnic, or religious hatred, often simply for possessing the organization's leaflets.

Torture and Deaths in Custody

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 four-year 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 2008 US Department of State Country Report on Human Rights Practices, released on 25 February 2009, provides the following information in relation to Tajikistan:

“Tajikistan ... is an authoritarian state, and political life is dominated by President Emomali Rahmon and his supporters...

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; threats and abuse by security forces; impunity of security forces; lengthy pretrial detention; denial of right to fair trial; harsh and life-threatening prison conditions; prohibited international monitor access to prisons; ... restrictions on freedom of religion, including freedom to worship; ...

The law prohibits ... practices [of torture and other cruel, inhuman, or degrading treatment or punishment]; however, security officials reportedly employed them. Officials did not grant sufficient access to information to allow human rights organizations to investigate claims of torture.

Security officials, particularly from the Ministry of Interior (MOI), continued to use beatings or other forms of coercion to extract confessions during interrogations. Beatings and other mistreatment were common also in detention facilities. A 2008 study by the Bureau for Human Rights and Rule of Law, a local NGO, credibly found a bias in the criminal justice system toward law enforcement officials exacting confessions from those who are arrested. Articles in the criminal code do not specifically define torture, and the country's law enforcement agencies have not developed effective methods to investigate possible violators.

The Ministry of Justice (MOJ) continued to refuse 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 they were accompanied by ministry of justice personnel. The government has not signed an agreement with the International Committee for the Red Cross (ICRC) to allow free and unhindered access to prisons and detention centers, and ICRC's international monitoring staff has not returned to the country since departing in 2007.

During the year detainees and inmates complained of harsh and life-threatening conditions, including overcrowding and lack of sanitary conditions. Disease and hunger were serious problems, but outside observers were unable to assess accurately the extent of the problems because of lack of access. Organizations that work on prison issues reported that infection rates of tuberculosis and HIV was significant, and that the quality of medical treatment was low.

The government has not substantially altered the Criminal Procedure Code (CPC) since the Soviet period, and the criminal justice system failed to protect individuals from arbitrary arrest or detention. There were few checks on the power of prosecutors and police to make arrests.

Victims of police abuse may submit a formal complaint in writing to the officer's superior. However, most victims chose to remain silent rather than risk retaliation by the authorities.

Prosecutors are empowered to issue arrest warrants, and there is no requirement for judicial approval of an order for pretrial detention. The law allows police to detain a suspect without a warrant in certain circumstances, but a prosecutor must be notified within 24 hours of arrest. Pretrial detention may last up to 15 months in exceptional circumstances. Local prosecutors may order pretrial detention for up to two months; subsequent detentions must be ordered by progressively higher level prosecutors. A defendant may petition for judicial review of a detention order. However, judges rarely questioned detention decisions, and observers regarded this review as a formality.

Individuals have the right to an attorney upon arrest, and the government must appoint lawyers for those who cannot otherwise afford one. In practice the government did not always provide attorneys, and those it did provide generally served the government's interest, not the client's. There is no bail system, although criminal case detainees may be released conditionally and restricted to their place of residence pending trial. According to the law, family members are allowed access to prisoners only after indictment; officials occasionally denied attorneys and family members access to detainees. The authorities held many detainees incommunicado for long periods without formally charging them.

Although the law provides for an independent judiciary, in practice the executive branch and criminal networks exerted pressure on prosecutors and judges. Corruption and inefficiency were significant problems.

The C[ode of Criminal Procedure] gives the prosecutor a disproportionate degree of power in relation to judges and defense advocates. This power includes control of the formal investigation and oversight of the entire case proceedings. "Supervisory powers" provided by law allow prosecutors to protest a court decision outside of normal appeal procedures. Prosecutors effectively can cause court decisions to be annulled and reexamined by higher courts indefinitely after appeal periods have expired. These powers are an impediment to establishing an independent judiciary.

The president is empowered to appoint and dismiss judges and prosecutors with the consent of parliament. Judges at all levels often were poorly trained and had extremely limited access to legal reference materials. Low wages for judges and prosecutors left them vulnerable to bribery, which remained a common practice. Judges were subject to political influence.

Trials are public, except in cases involving national security. The authorities have denied access to monitoring organizations to trials without cause. A panel consisting of a presiding judge and two "people's assessors" determines guilt or innocence. Qualifications of the assessors and how they are determined is unclear, but their role is passive, and the presiding judge dominates the proceedings.

According to the law, cases should be brought before a judge within 28 days after indictment; however, most cases were delayed for months. Under the law, courts appoint attorneys at public expense; however, in practice authorities often denied arrested persons access to an attorney.

Those who were indicted were invariably found guilty. Judges often gave deference to uncorroborated testimony of law enforcement officers, especially members of the [Ministry of Security], and often discounted the absence of physical evidence.

According to the law both defendants and attorneys have the right to review all government evidence, confront and question witnesses, and present evidence and testimony. No groups are barred from testifying, and, in principle, all testimony receives equal consideration. The law provides for the right to appeal. The law extends the rights of defendants in trial procedures to all citizens.

The constitution provides for freedom of religion; however, in practice the government continued to impose restrictions and respect for religious freedom continued to deteriorate.

The Council of Ulamo, a committee of Islamic clergy, provides interpretations of religious practice that imams throughout the country are required to follow. While the council is officially an independent religious body, in practice it is heavily influenced by the government. The Department of Religious Affairs (DRA) at the Ministry of Culture is responsible for general regulation of all religious organizations. The DRA, in consultation with local authorities, registers and approves all religious places of worship. For Muslims, the DRA controls all aspects of participation in the hajj, including choosing participants. President Rahmon established a Center for Islamic Studies during the year to guide religious policy.

The government continued to impose limitations on personal conduct and to restrict activities of religious groups that it considered "threats to national security." ... Government officials visited mosques on a regular basis to monitor activities, observe those who attended the mosques, and examined audio and video materials for evidence of extremist and antigovernment material. The DRA continued to test imams on their religious knowledge and to ensure they followed official positions on religious issues.

Government concerns about foreign influence resulted in restrictive measures against minority religious groups. The government continued its ban on HT [Hizb utTahrir], which it classified as an extremist Islamic political movement, and authorities introduced restrictive measures against another Islamic group, the Salafis. ...”


Preliminary objection rejected (non-exhaustion);Preliminary objection rejected (victim);Violation of Art. 8;No violation of Art. 3;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Mrs Gregoria López Ostra, a Spanish national, lives in Lorca (Murcia).

At the material time she and her husband and their two daughters had their home in the district of "Diputación del Rio, el Lugarico", a few hundred metres from the town centre.

The town of Lorca has a heavy concentration of leather industries. Several tanneries there, all belonging to a limited company called SACURSA, had a plant for the treatment of liquid and solid waste built with a State subsidy on municipal land twelve metres away from the applicant’s home.

The plant began to operate in July 1988 without the licence (licencia) from the municipal authorities required by Regulation 6 of the 1961 regulations on activities classified as causing nuisance and being unhealthy, noxious and dangerous ("the 1961 regulations"), and without having followed the procedure for obtaining such a licence (see paragraph 28 below).

Owing to a malfunction, its start-up released gas fumes, pestilential smells and contamination, which immediately caused health problems and nuisance to many Lorca people, particularly those living in the applicant’s district. The town council evacuated the local residents and rehoused them free of charge in the town centre for the months of July, August and September 1988. In October the applicant and her family returned to their flat and lived there until February 1992 (see paragraph 21 below).

On 9 September 1988, following numerous complaints and in the light of reports from the health authorities and the Environment and Nature Agency (Agencia para el Medio Ambiente y la Naturaleza) for the Murcia region, the town council ordered cessation of one of the plant’s activities - the settling of chemical and organic residues in water tanks (lagunaje) - while permitting the treatment of waste water contaminated with chromium to continue.

There is disagreement as to what the effects were of this partial shutdown, but it can be seen from the expert opinions and written evidence of 1991, 1992 and 1993, produced before the Commission by the Government and the applicant (see paragraphs 18-20 below), that certain nuisances continue and may endanger the health of those living nearby.

Having attempted in vain to get the municipal authority to find a solution, Mrs López Ostra lodged an application on 13 October 1988 with the Administrative Division of the Murcia Audiencia Territorial, seeking protection of her fundamental rights (section 1 of Law 62/1978 of 26 December 1978 on the protection of fundamental rights ("Law 62/1978") - see paragraphs 24-25 below). She complained, inter alia, of an unlawful interference with her home and her peaceful enjoyment of it, a violation of her right to choose freely her place of residence, attacks on her physical and psychological integrity, and infringements of her liberty and her safety (Articles 15, 17 para. 1, 18 para. 2 and 19 of the Constitution - see paragraph 23 below) on account of the municipal authorities’ passive attitude to the nuisance and risks caused by the waste-treatment plant. She requested the court to order temporary or permanent cessation of its activities.

The court took evidence from several witnesses offered by the applicant and instructed the regional Environment and Nature Agency to give an opinion on the plant’s operating conditions and location. In a report of 19 January 1989 the agency noted that at the time of its expert’s visit on 17 January the plant’s sole activity was the treatment of waste water contaminated with chromium, but that the remaining waste also flowed through its tanks before being discharged into the river, generating foul smells. It therefore concluded that the plant had not been built in the most suitable location.

Crown Counsel endorsed Mrs López Ostra’s application. However, the Audiencia Territorial found against her on 31 January 1989. It held that although the plant’s operation could unquestionably cause nuisance because of the smells, fumes and noise, it did not constitute a serious risk to the health of the families living in its vicinity but, rather, impaired their quality of life, though not enough to infringe the fundamental rights claimed. In any case, the municipal authorities, who had taken measures in respect of the plant, could not be held liable. The non-possession of a licence was not an issue to be examined in the special proceedings instituted in this instance, because it concerned a breach of the ordinary law.

On 10 February 1989 Mrs López Ostra lodged an appeal with the Supreme Court (Tribunal Supremo - see paragraph 25 below in fine). She maintained that a number of witnesses and experts had indicated that the plant was a source of polluting fumes, pestilential and irritant smells and repetitive noise that had caused both her daughter and herself health problems. As regards the municipal authorities’ liability, the decision of the Audiencia Territorial appeared to be incompatible with the general supervisory powers conferred on mayors by the 1961 regulations, especially where the activity in question was carried on without a licence (see paragraph 28 below). Regard being had to Article 8 para. 1 (art. 8-1) of the Convention, inter alia, the town council’s attitude amounted to unlawful interference with her right to respect for her home and was also an attack on her physical integrity. Lastly, the applicant sought an order suspending the plant’s operations.

On 23 February 1989 Crown Counsel at the Supreme Court filed pleadings to the effect that the situation complained of amounted to arbitrary and unlawful interference by the public authorities with the applicant’s private and family life (Article 18 of the Constitution taken together with Articles 15 and 19 - see paragraph 23 below). The court should accordingly grant her application in view of the nuisance to which she was subjected and the deterioration in the quality of her life, both of which had moreover been acknowledged in the judgment of 31 January. On 13 March Crown Counsel supported the suspension application (see paragraph 12 above and paragraph 25 below).

In a judgment of 27 July 1989 the Supreme Court dismissed the appeal. The impugned decision had been consistent with the constitutional provisions relied on, as no public official had entered the applicant’s home or attacked her physical integrity. She was in any case free to move elsewhere. The failure to obtain a licence could only be considered in ordinary-law proceedings.

On 20 October 1989 Mrs López Ostra lodged an appeal (recurso de amparo) with the Constitutional Court, alleging violations of Article 15 (right to physical integrity), Article 18 (right to private life and to inviolability of the family home) and Article 19 (right to choose freely a place of residence) of the Constitution (see paragraph 23 below).

On 26 February 1990 the court ruled that the appeal was inadmissible on the ground that it was manifestly ill-founded. It observed that the complaint based on a violation of the right to respect for private life had not been raised in the ordinary courts as it should have been. For the rest, it held that the presence of fumes, smells and noise did not itself amount to a breach of the right to inviolability of the home; that the refusal to order closure of the plant could not be regarded as degrading treatment, since the applicant’s life and physical integrity had not been endangered; and that her right to choose her place of residence had not been infringed as she had not been expelled from her home by any authority.

In 1990 two sisters-in-law of Mrs López Ostra, who lived in the same building as her, brought proceedings against the municipality of Lorca and SACURSA in the Administrative Division of the Murcia High Court (Tribunal Superior de Justicia), alleging that the plant was operating unlawfully. On 18 September 1991 the court, noting that the nuisance had continued after 9 September 1988 and that the plant did not have the licences required by law, ordered that it should be closed until they were obtained (see paragraph 28 below). However, enforcement of this order was stayed following an appeal by the town council and SACURSA. The case is still pending in the Supreme Court.

On 13 November 1991 the applicant’s two sisters-in-law lodged a complaint, as a result of which Lorca investigating judge no. 2 instituted criminal proceedings against SACURSA for an environmental health offence (Article 347 bis of the Criminal Code - see paragraph 29 below). The two complainants joined the proceedings as civil parties.

Only two days later, the judge decided to close the plant, but on 25 November the measure was suspended because of an appeal lodged by Crown Counsel on 19 November.

The judge ordered a number of expert opinions as to the seriousness of the nuisance caused by the waste-treatment plant and its effects on the health of those living nearby.

An initial report of 13 October 1992 by a scientist from the University of Murcia who had a doctorate in chemistry stated that hydrogen sulphide (a colourless gas, soluble in water, with a characteristic rotten-egg smell) had been detected on the site in concentrations exceeding the permitted levels. The discharge of effluent containing sulphur into a river was said to be unacceptable. These findings were confirmed in a supplementary report of 25 January 1993.

In a report of 27 October 1992 the National Toxicology Institute stated that the levels of the gas probably exceeded the permitted limits but did not pose any danger to the health of people living close to the plant. In a second report of 10 February 1993 the institute stated that it could not be ruled out that being in neighbouring houses twenty-four hours a day constituted a health risk as calculations had been based only on a period of eight hours a day for five days.

Lastly, the regional Environment and Nature Agency, which had been asked to submit an expert opinion by the Lorca municipal authorities, concluded in a report of 29 March 1993 that the level of noise produced by the plant when in operation did not exceed that measured in other parts of the town.

The investigation file contains several medical certificates and expert opinions concerning the effects on the health of those living near the plant. In a certificate dated 12 December 1991 Dr de Ayala Sánchez, a paediatrician, stated that Mrs López Ostra’s daughter, Cristina, presented a clinical picture of nausea, vomiting, allergic reactions, anorexia, etc., which could only be explained by the fact that she was living in a highly polluted area. He recommended that the child should be moved from the area.

In an expert report of 16 April 1993 the Ministry of Justice’s Institute of Forensic Medicine in Cartagena indicated that gas concentrations in houses near the plant exceeded the permitted limit. It noted that the applicant’s daughter and her nephew, Fernando López Gómez, presented typical symptoms of chronic absorption of the gas in question, periodically manifested in the form of acute bronchopulmonary infections. It considered that there was a relationship of cause and effect between this clinical picture and the levels of gas.

In addition, it is apparent from the statements of three police officers called to the neighbourhood of the plant by one of the applicant’s sisters-in-law on 9 January 1992 that the smells given off were, at the time of their arrival, very strong and induced nausea.

On 1 February 1992 Mrs López Ostra and her family were rehoused in a flat in the centre of Lorca, for which the municipality paid the rent.

The inconvenience resulting from this move and from the precariousness of their housing situation prompted the applicant and her husband to purchase a house in a different part of town on 23 February 1993.

On 27 October 1993 the judge confirmed the order of 15 November 1991 and the plant was temporarily closed.

The relevant Articles of the Constitution provide:

"Everyone shall have the right to life and to physical and psychological integrity, without being subjected to torture or inhuman or degrading punishment or treatment under any circumstances. The death penalty shall be abolished except where it is provided for by military criminal law in time of war."

"Everyone has the right to liberty and security. ..."

"1. The right to honour and to private and family life and the right to control use of one’s likeness shall be protected.

The home shall be inviolable. It may not be entered or searched without the consent of the person who lives there or a judicial decision, except in cases of flagrant offences. ..."

"Spanish citizens shall have the right to choose freely their place of residence and to move around the national territory ..."

"1. Everyone shall have the right to enjoy an environment suitable for personal development and the duty to preserve it.

The public authorities, relying on the necessary public solidarity, shall ensure that all natural resources are used rationally, with a view to safeguarding and improving the quality of life and protecting and restoring the environment.

Anyone who infringes the above provisions shall be liable to criminal or, where applicable, administrative penalties as prescribed by law and shall be required to make good any damage caused."

Law 62/1978 provides that certain fundamental rights shall be safeguarded by the ordinary courts. The rights protected in this way include inviolability of the home and freedom to choose one’s place of residence (section 1(2)). However, under transitional provision 2(2) of the Law on the Constitutional Court of 3 October 1979, its application is extended to the other rights secured in Articles 14 to 29 of the Constitution (Article 53 of the Constitution).

Complaints against decisions of administrative authorities affecting the rights of the individual may be lodged with the administrative division of the appropriate ordinary court (section 6), without its first being necessary to exhaust the administrative remedies (section 7(1)). The procedure followed is an expedited one with shorter time-limits and exemption from certain procedural steps (sections 8 and 10).

In the writ the individual may apply to have the impugned decision stayed, and the court rules on such applications by means of a separate, summary procedure (section 7).

An appeal lies to the Supreme Court (section 9), which hears such appeals in expedited proceedings.

In the field of environmental protection the State and the autonomous communities have enacted many provisions of different ranks in law: Article 45 of the Constitution (see paragraph 23 above); Law 20/1986 of 14 May 1986 on toxic and dangerous waste; Royal Legislative Decree 1302/1986 of 28 June 1986 on environmental impact assessment and Law 38/1972 of 22 December 1972 on atmospheric pollution control.

The provisions most frequently relied on in the instant case are the 1961 regulations on activities classified as causing nuisance and being unhealthy, noxious and dangerous approved in Decree 2414/1961 of 30 November.

The purpose of this decree is to prevent plant, factories, activities, industries or warehouses, whether public or private, from causing nuisance, impairing normal environmental health and hygiene or damaging public or private property or entailing serious risks to persons or property (Regulation 1). Regulation 3 extends the scope of the regulations to cover noise, vibrations, fumes, gases, smells, etc.

Siting of the activities in question is governed by municipal by-laws and local development plans. At all events, factories deemed to be dangerous or unhealthy cannot in principle be built less than 2,000 metres from the nearest housing (Regulation 4).

The local mayor is empowered to issue licences for carrying on these activities, to supervise the application of the aforementioned provisions and to impose penalties where necessary (Regulation 6).

The procedure for obtaining such licences has several stages, including mandatory consultation of a provincial committee as to the suitability of the safety systems proposed by the applicant in his description of the project. Before the premises are brought into use they must undergo a compulsory inspection by a local-authority technician (Regulations 29-34).

An appeal lies to the ordinary courts against decisions to grant or refuse licences (Regulation 42).

When a nuisance occurs, the mayor may order the party responsible for it to take steps to eliminate it. If these are not taken within the time specified in the regulations, the mayor may, in the light of the expert opinions obtained and after hearing the person concerned, either impose a fine or temporarily or permanently withdraw the licence (Regulation 38).

Article 347 bis was added on 25 June 1983 by the Law making urgent reforms to part of the Criminal Code (8/1983). It provides:

"Anyone who, in breach of environmental protection legislation or regulations, causes to be released or directly or indirectly releases into the atmosphere, the soil or ... waters emissions or discharges of any kind that are likely seriously to endanger human health or seriously to interfere with the conditions of animal life, forests, natural sites or cultivated areas, shall be liable to a sentence of between one and six months’ imprisonment (arresto mayor) and a fine of 50,000 to 1,000,000 pesetas.

A more severe penalty (six months’ to six years’ imprisonment) shall be imposed where an industrial plant is operating illegally, without having obtained the necessary administrative authorisations, or where express orders of the administrative authorities requiring modification or cessation of the polluting activities have not been complied with or where untrue information has been given about the activities’ environmental impact, or where an inspection by the administrative authorities has been obstructed.

In all the cases referred to in this Article, temporary or permanent closure of the establishment may be ordered ..."


Remainder inadmissible;Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicants took part in the cleaning-up operation at the Chernobyl nuclear disaster site. They were registered disabled and became entitled to various social benefits, including food allowance.

On unspecified dates they sued the competent authorities for adjustment of the monthly food allowance in line with the inflation rate.

By two separate judgments of 4 June 2007, one in favour of Mr Pavlenko and another in favour of the remaining applicants, the Mineralniye Vody Town Court of the Stavropol Region upheld their actions in part. The court ordered the local department of the State Treasury to pay 1,283.86 RUB Russian roubles (RUB) to Mr Pavlenko and RUB 1,925.45 to each of the remaining applicants in monthly disability pension payments, to be adjusted in accordance with legal requirements. The court further ordered the local welfare authority to provide monthly the Treasury with the documents necessary to make the payments. It also awarded RUB 67,616.22 to Mr Pavlenko and RUB 104,405.82 to each of the seven other applicants in respect of the outstanding benefits, to be paid by the Ministry of Finance of the Russian Federation.

The judgments were not appealed against and became final on 19 June 2007.

The enforcement proceedings were opened and the lump sums and the monthly payments were made in accordance with these judgments. Thus, as from July 2007 all the applicants were receiving the monthly payments in good time. On 24 September 2007 the applicants (except for Mr Pavlenko) received RUB 104,405.82 each. On 1 October 2007 Mr Pavlenko received RUB 67,616.22 due to him under the judgment of 4 June 2007.

On 10 October 2007 the Ministry of Finance applied to the Stavropol Regional Court requesting to institute supervisory-review proceedings in respect of the judgments in the applicants' favour.

On 29 November 2007 the Presidium of the Stavropol Regional Court, by two separate judgments, quashed the awards of 4 June 2007 and remitted the cases for a fresh examination. The Presidium found that the lower court had erred in applying the provisions of the Law No. 1244-1 “On Social Protection of Citizens Exposed to Radiation as a Result of the Chernobyl Nuclear Power Station Explosion” (“the Chernobyl Law”) and, as a result, incorrectly determined the defendant authority in the case. The Presidium had not specified a due defendant.

In December 2007 the State Treasury discontinued the monthly payments in respect of food allowance due to the applicants under the quashed judgments. Instead, the authorities started to pay the applicants monthly disability benefits in accordance with the relevant legislation.

On 15 February 2008 the Town Court discontinued the proceedings in all cases except for that of Mr Pavlenko, due to the applicants' failure to appear before the first instance court. On 19 February 2008 the proceedings in Mr Pavlenko's case were discontinued by the Town Court on the same ground.

In February 2009 the Ministry of Finance of the Russian Federation brought proceedings against all applicants claiming repayment of the lump sums they had received pursuant to the quashed judgments. On 4 March 2009 the Town Court rejected the claim. It appears that the judgment was not appealed against and became final.

The relevant domestic law governing the supervisory review procedure at the material time is summed up in the Court's judgment in the case of Kot v. Russia (no. 20887/03, § 17, 18 January 2007).


The applicant was born in 1954 and lives in Žabokreky.

On 9 June 1995 the applicant filed an action with the Martin District Court. He claimed the ownership and restitution of a motor car.

On 10 October 2003 the applicant modified his claim and asked for leave to join another person as a defendant. The District Court granted the request.

On 5 December 2003 the District Court remitted the case file to the Žilina Regional Court which decided on the defendant's appeal on 26 January 2004.

On 13 July 2004 an expert was asked to prepare an opinion. The expert opinion was submitted on 27 April 2006.

On 8 June 2006 the Constitutional Court found that the District Court had violated the applicant's right under Article 6 § 1 of the Convention to a hearing within a reasonable time.

The Constitutional Court held that the case was not particularly complex and that the applicant by his conduct had not contributed to the length of the proceedings. Substantial delays imputable to the District Court had occurred. The proceedings had lasted 11 years and no decision had been delivered on the merits.

The Constitutional Court awarded 80,000 Slovakian korunas (SKK) to the applicant as just satisfaction in respect of non-pecuniary damage. It also ordered the District Court to avoid any further delay in the proceedings and to reimburse the applicant's legal costs.

On 12 October 2006 the District Court dismissed the applicant's claim. The applicant appealed.

On 31 October 2007 the Žilina Regional Court upheld the judgment. The decision became final on 27 February 2008.


The applicant, Terence Dancy, is a United Kingdom national, born in 1957 and currently serving a sentence of life imprisonment in HM Prison Full Sutton. He is represented before the Court by Mr E. Abrahamson, a solicitor practising in Liverpool.

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

The applicant had a history of psychiatric illness. On 28 May 1992, he went to the police station where he confessed that he had attacked a man, Mr M., in the building where he lived as he thought the man had accused him of stealing his television. Mr M. was found dead with multiple depressed skull fractures consistent with use of a hammer.

On 23 September 1993, the applicant pleaded guilty to manslaughter on grounds of diminished responsibility and was sentenced by the judge to a term of life imprisonment. The judge declined to set a relevant period for deterrence and retribution (the “tariff”). His sentencing remarks were

“... you have pleaded guilty to the crime of manslaughter on the basis of diminished responsibility. It was a horrendous crime committed with great violence. I bear in mind everything which I have read about you in the reports. I accept that your distress when you realised what you had done was genuine and that your remorse for it is genuine. Nevertheless, it is a very serious crime indeed and your mental state is such that though you are not a mentally sick person you present a continuing danger to the public because of your liability to fits of explosive temper unless you take regularly your proper medication. I am satisfied therefore that a sentence longer that would be necessarily appropriate to punish you having regard to the seriousness of the offence, is necessary to protect the public from serious harm. The sentence of the court upon you therefore is one of life imprisonment.

[Addressing leading counsel for the applicant] I have considered the question of making it a discretionary life sentence under Section 34. I do not consider that appropriate for the reasons which I have explained.”

By letter of 28 May 1998, the applicant was informed by the Home Office that as a tariff had not been set under section 34 of the Criminal Justice Act 1991 by the trial judge he was to be treated as a mandatory life prisoner and the Secretary of State would proceed to fix his tariff. He was informed of the trial judge’s view, given in a recent report, that five years was an appropriate period and was given an opportunity to make written representations to the Secretary of State.

In or about November 1998, the Secretary of State set the applicant’s tariff at five years. He had been advised that the applicant should originally have been treated as a discretionary life prisoner by the trial judge who should himself have fixed as tariff at trial. For that reason, he regarded himself as bound to follow the trial judge’s view.

On 22 December 1998, the applicant was informed of this decision and told that as his tariff had already expired (in May 1997) it was no longer a factor in his continued detention.

On 12 July 1999, the applicant lodged an appeal against sentence, alleging that the trial judge should have specified the five year tariff at the time the sentence was passed and that had the period been so specified he would have been treated as a discretionary life prisoner and not a mandatory life prisoner. Permission to appeal was granted on 5 October 1999.

In its judgment of 8 November 1999, the Court of Appeal upheld the appeal. Lord Justice Rose said:

“It seems to this Court, from the sentencing observations of the learned judge, that, although he referred to the gravity of the offence and the danger then presented by the appellant, he was not seeking to say that, in this case, life should mean life. Indeed, his recent recommendation to the Home Secretary that a period of five years would be appropriate for retribution and deterrence is quite inconsistent with such having been his intention at that time.

It is not clear whether the judge’s attention was drawn to the Practice Direction and, in any event, he certainly did not have the advantage of the observations of this Court in Hollies, which was decided in August 1994, after the learned judge passed sentence. Had he had that advantage, it seems to us very unlikely that he would have expressed himself quite as he did in his sentencing remarks. The consequence, in our judgment, is that a period of five years ought to have been expressed by the learned judge at the time sentence was passed, in accordance with the Practice Direction and in accordance with what now appears in the judgment of this Court, in Hollies. Accordingly, this appeal will be allowed, to the extent that a five year tariff period will be specified... The consequence of this is, for the avoidance of doubt, that he will become a discretionary life prisoner and can and should be treated by the Parole Board accordingly.”

The applicant was immediately re-categorised as a discretionary life prisoner by the Prison Service and Parole Board.

On 1 December 1999, the applicant’s case was reviewed by the Parole Board, at an oral hearing. He appeared in person and was represented by his solicitor. He was entitled to adduce evidence and to cross-examine witnesses. It did not direct release, finding that the applicant remained a risk. It did recommend to the Secretary of State that his case be reviewed in twelve months as he had nearly completed the recommended offence related programmes and as he had been disadvantaged in not obtaining a review two years before the expiry of the tariff as his tariff had only been fixed recently.

The applicant’s case was reviewed by the Parole Board at an oral hearing held on 29 November 2000. By decision dated 30 December 2000, the Parole Board declined to direct the applicant’s release as it concluded that the applicant remained a danger to the public. It recommended that the next review take place in 24 months as considerable further offence-related, treatment/work programmes still needed to be undertaken e.g. further work on anger management and relationship issues as well as attendance on an Extended Sex Offender Treatment Programme. It noted that the applicant had acknowledged during the proceedings that neither release nor transfer to open conditions was appropriate at this stage. It did recommend that he be transferred to a Category C prison (lower security) to facilitate further treatment work and this was implemented. The applicant’s next review was scheduled for November 2002.

On 1 March 2002, the applicant signed the annual review board summary setting out proposals for further treatment, indicating that he fully agreed with the recommendations.

The applicant has now been transferred to a Category C prison.

English law imposes a mandatory sentence for the offence of murder in respect of offenders under the age of 18 known as detention during Her Majesty’s pleasure (section 53(1) of the Children and Young Persons Act 1933); in respect of offenders between the age of 18 and 20 years, custody for life (section 8(1) of the Criminal Justice Act 1982), and in respect of offenders aged 21 and over, life imprisonment (section 1(1) of the Murder (Abolition of Death Penalty) Act 1967).

Mandatory life sentences are fixed by law, in contrast to discretionary life sentences which can be imposed at the discretion of the trial judge on persons convicted of certain violent or sexual offences (e.g. manslaughter, rape or robbery). The principles underlying the imposition of a discretionary life sentence are:

Discretionary life sentences are indeterminate in order that “the prisoner’s progress may be monitored ... so that he will be kept in custody so long as public safety may be jeopardised by his being let loose at large” (R v. Wilkinson [1983] 5 Cr. App. Rep. 105, p. 108).

Persons sentenced to mandatory and discretionary life imprisonment, custody for life and those detained during Her Majesty’s pleasure have a ‘tariff’ set in relation to the period of imprisonment they should serve in order to satisfy the requirements of retribution and deterrence. After the expiry of the tariff, the prisoner becomes eligible for release on licence. Applicable provisions and practice in respect of the fixing of the tariff and release on licence have been subject to change, most notably following the coming into force on 1 October 1992 of the Criminal Justice Act 1991 (“the 1991 Act”), which was in force at the relevant time. The provisions of the 1991 Act were replaced by the Crime (Sentences) Act 1997 (the 1997 Act) from 1 October 1997.

Pursuant to section 34 of the 1991 Act, the trial judge in sentencing a person to a term of discretionary life imprisonment in open court after a trial was given the power to fix the tariff.

The role of the trial judge in this respect was clarified by the Court of Appeal in a Practice Direction (Crime – Life sentences) [1993 1 WLR 223]. Paragraph 3 stated:

“The judge is not obliged by statute to make use of the provisions of section 34 when passing a discretionary life sentence. However the judge should do so, save in the very exceptional case where the judge considers that the offence is so serious that detention for life is justified by the seriousness of the offence alone, irrespective of the risk to the public. In such a case, the judge should state this in open court when passing sentence.”

In August 1994, the case of R v. Hollies (16 Cr App R(S) LJ Stuart Smith said concerning the Practice Direction and the 1991 Act:

“The scheme of the Act is that the judiciary should specify the period which the prisoner should serve, and that period should be appropriate to the punishment or retribution required and the need to deter the prisoner and others from committing similar grave offences. This period is usually referred to as the tariff period. Once that period has expired the prisoner can expect to be released on licence if the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined (see section 34(4)b). There is thus a clear division of function. The judges are to decide the period which the prisoner is to serve by way of punishment and deterrence. The Board must decide whether he still presents a danger to the public and, if he does not, he must be released. That means, save in cases of most exceptional gravity, where the judge thinks that a prisoner should remain a prisoner for the rest of his normal life, he should specify a period under the Act.”

In cases of mandatory life sentences, it is for the Secretary of State to fix the tariff after consulting the trial judge and the Lord Chief Justice. He is entitled to depart from the judicial view.

Pursuant to section 32 (2) of the 1991 Act, the Parole Board had a duty to advise the Secretary of State with respect to any matter referred to it by him which was connected with the early release or recall of prisoners.

The Parole Board’s Chairman appointed three members of the Parole Board to consider discretionary life cases. They comprised the Discretionary Lifer Panel (“DLP”). Pursuant to the Parole Board Rules 1992 which came into force on 1 October 1992, a discretionary life prisoner was entitled to, amongst other things, an oral hearing, disclosure of evidence before the Parole Board and legal representation. He was also entitled to call witnesses on his behalf and to cross-examine those who had written reports about him. A reasoned decision by the DLP was delivered within seven days of the hearing. Prior to 1 October 1997, the duty to release discretionary life prisoners was dealt with by section 34, which provided that where a discretionary life prisoner had served his tariff and the Board had directed his release, it was the duty of the Secretary of State to release him on licence.

Section 34(4) provided:

“The Board shall not give a direction ... unless –

(a) the Secretary of State has referred the prisoner’s case to the Board;

(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.”

A discretionary life prisoner may require the Secretary of State to refer his case to the Parole Board, after the end of the period of two years beginning with the disposal of a previous reference to the Board (section 34 (5) (b) of the 1991 Act, now section 28 (7) (b) of the 1997 Act).

The regime applicable to mandatory life prisoners was, however, preserved within section 35 of the 1991 Act. Section 35 of the 1991 Act provided insofar as relevant:

“(2) If recommended to do so by the Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a life prisoner who is not a discretionary life prisoner.”

The provisions concerning oral hearings and the requirement for regular reviews were not extended to mandatory life prisoners and the Parole Board was not given any power to direct their release.