Violation of Art. 5-1;Violation of Art. 5-4;Violation of Art. 5-5;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Karel Jungwiert;Margarita Tsatsa-Nikolovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych

In a judgment of 14 September 1995 the Karlovo District Court found the applicant guilty of theft and sentenced him to one year's imprisonment, suspended for a period of three years. No appeal was lodged and the judgment became final.

In a judgment of 21 May 1997 the Karlovo District Court found the applicant guilty of theft and sentenced him to one year's imprisonment. As the conviction concerned an offence committed during the three-year operational period of the applicant's sentence in case no. 14/95, the court also ordered the applicant to serve the suspended sentence of one year's imprisonment. No appeal was lodged and the judgment became final.

In a judgment of 16 February 1999 the Plovdiv District Court found the applicant guilty of theft. Combining the applicant's sentence for this offence with his sentence of one year's imprisonment in case no. 88/96, the court sentenced him to a total of three years and two months' imprisonment for both offences.

The court also ruled as follows:

“On the basis of Article 25 § 2 of the Criminal Code [the court] deducts [from the sentence to be served] the period, during which [the applicant] was detained, calculated from 7 June 1996 to 27 December 1998”.

No appeal was lodged by either the applicant or the public prosecutor's office and the judgment became final.

On 7 June 1996 the applicant was arrested and remanded in custody in connection with case no. 50/97.

On an unspecified date towards the end of 1998 the applicant appealed against his continued remand in custody in that case.

A report from Plovdiv Prison dated 16 December 1998, which detailed the different periods of the applicant's deprivation of liberty up to that point, was presented to the Plovdiv District Court. The said periods were indicated to have been the following:

In a decision of 17 December 1998 in case no. 50/97 the Plovdiv District Court revoked the order for the applicant's continued remand in custody in that case and granted him bail. Release was made conditional on the applicant providing a recognizance and subject to there being no other grounds for his continued deprivation of liberty.

The applicant deposited the monetary guarantee on 21 December 1998 and was released on 27 December 1998.

The applicant obtained a certificate from Plovdiv Prison dated 7 April 1999, which indicated that between 7 June 1996 and 27 December 1998 he had accumulated the equivalent of three years, two months and two days of time served, which included days he had worked towards reducing his sentences. The different periods of the applicant's deprivation of liberty were noted to have been the following:

In a letter of 29 April 1999 the Plovdiv district public prosecutor's office informed Hisar police station and Plovdiv Prison that the applicant had to be recalled to prison to serve the outstanding part of his sentence in case no. 50/97. The reasoning of the district public prosecutor's office was that the period during which the applicant had been serving his sentence of imprisonment in case no. 14/95 could not count as a remand in custody in case no. 50/97.

On 12 May 1999 the applicant was detained under an order issued by the district public prosecutor's office to serve the outstanding part of his sentence in case no. 50/97.

On an unspecified date the applicant appealed to the Plovdiv regional public prosecutor's office against the decision of the district public prosecutor's office. He argued that there was no outstanding prison term for him to serve as a result of the time he had spent remanded in custody in case no. 50/97 combined with his sentence in case no. 88/96, which had both expressly been deducted by the trial court from the time to be effectively served.

In a letter of 25 May 1999, the regional public prosecutor's office dismissed the applicant's appeal, stating, inter alia:

“There is a sentence in criminal case no. 14/95 ..., which was not combined with the sentence in criminal case no. 50/97.”

The applicant appealed further.

In a decision of 4 November 1999 the Supreme Cassation Public Prosecutor's Office dismissed the applicant's appeal. In its reasoning, it stated:

“Correctly ... the prosecutor from the Plovdiv district public prosecutor's office took into account the period of the remand in custody of the [applicant] in case no. 50/97 ... [as being] only from 7 June 1996 to 1 August 1997, because subsequently he had started to serve a sentence of 'imprisonment'.”

In the meantime, on an unspecified date the applicant requested the Plovdiv District Court to interpret, under Article 373 § 1 (1) of the Code of Criminal Procedure of 1974 (“CCP”), its judgment of 16 February 1999 in case no. 50/97. He argued, inter alia, that he had been remanded in custody during the whole period between 7 June 1996 and 27 December 1998. He further maintained that this period of two years, six months and twenty days plus the sentence of one year's imprisonment in case no. 88/96, which the applicant had already served, meant that he had effectively served the whole sentence of three years and two months' imprisonment in case no. 50/97. The public prosecutor's office meanwhile, apparently relying on a report prepared by Plovdiv Prison that the applicant's remand in custody in case no. 50/97 had been suspended on 1 August 1997, considered, inter alia, that the applicant still had to serve a year of the sentence imposed by the court in case no. 50/97.

A hearing was held in the presence of all the parties on 26 July 1999. In a decision of the same day the Plovdiv District Court dismissed the applicant's request for interpretation of the judgment of 16 February 1999 as it considered it to be clear. It found, inter alia, that its judgment quite unequivocally indicated that the whole period of the applicant's remand in custody between 7 June 1996 and 27 December 1998 should be deducted from his sentence of three years and two months' imprisonment. In this respect it stated the following:

“Accordingly, the will of the court is to deduct THE WHOLE OF THE ABOVE STATED PERIOD [emphasis added by the Plovdiv District Court], i.e. the period during which the measure for securing the [applicant's] appearance before the court in the present case was a 'remand in custody', and not [just] a part thereof.”

The Plovdiv District Court also found that it was not competent to rule on the lawfulness of the decision of the public prosecutor's office to seek execution of the part of the sentence it claimed was still outstanding.

The applicant was released on 4 February 2000 after serving the remaining part of the sentence which the public prosecutor's office had alleged was outstanding in case no. 50/97.

On 11 November 1999 the applicant brought an action under the State and Municipalities Responsibility for Damage Act 1988 (the “SMRDA”, which was renamed in 2006) against the public prosecutor's office and the Ministry of Justice.

He contended that he had been unlawfully deprived of his liberty since 12 May 1999 because he had had no outstanding prison term to serve. He sought compensation for the non-pecuniary damage he had allegedly suffered as a result.

In a judgment of 28 January 2002, the Plovdiv Regional Court established, inter alia, the following:

“... the [applicant] was remanded in custody in case no. 50/97 from 7 June 1996 to 1 August 1997. From 1 August 1997 to 10 April 1998 [he] served his sentence in case no. 14/95 ... This sentence cannot, by virtue of Articles 23-25 of the Criminal Code, be combined [with the other sentences] and it was served separately. From 10 April 1998 to 27 December 1998 the [applicant] served his sentence in case no. 88/96. This sentence was combined with the sentence in case no. 50/97 and therefore under Article 25 § 3 of the Criminal Code the [trial] court when delivering its judgment in case no. 50/97 should have deducted the whole period of the sentence [which had been] served. It should [also] have deducted the whole period of the remand in custody from 7 June 1996 to 1 August 1997 on the basis of Article 59 § 1 of the Criminal Code. These two periods amount to two years, two months and twelve days. When the [trial] court wrote in its judgment that it was deducting the time during which [the applicant] had been detained, calculated from 7 June 1996 to 27 December 1998, it in practice wrongly included the time during which he had been serving his sentence [in case no. 14/95] – from 1 August 1997 to 10 April 1998. [Accordingly,] from the sentence of three years and two months [the trial court] deducted three years and two months, being the period between 7 June 1996 and 27 December 1998 and it [thereby] transpired that the [applicant] had no time left to serve. The [trial] court made this mistake in spite [of the fact that] the case file contained information from Plovdiv Prison [detailing] the periods served by the [applicant]. In its decision [of 26 July 1999] dismissing the request to interpret its judgment, the [trial] court stated that its intention had been to deduct the whole period from 7 June 1996 to 27 December 1998, i.e. the period during which the [applicant] was remanded in custody and not [just] a part thereof. This shows that the [trial] court was misguided [in thinking] that [the applicant was remanded in custody in case no. 50/97 throughout] this entire period. Thus, with this judgment, one year of the [applicant's] sentence was pardoned, because only two years and two months should have been deducted. In spite of this, the public prosecutor's office did not appeal against the judgment and it became final ... After [the judgment] became final, it became binding on the public prosecutor's office under Article 372 § 1 of the [CCP] which should have implemented it instead of attempting to correct the [existing] mistake by interpreting the intention of the [trial] court. In the period between 12 May 1999 and 4 February 2000, including from 12 May 1999 to 11 November 1999, the date the present action was brought, the [applicant] unlawfully served a sentence of imprisonment, which if the mistake had not been made he [would] have served lawfully.”

In spite of the above conclusion, the Regional Court found that the applicant had failed to prove conclusively that he had suffered any nonpecuniary damage as a result of having been deprived of his liberty between 12 May 1999 and 11 November 1999. It therefore dismissed his action and ordered him to pay the resulting court fees. The applicant appealed against that judgment on an unspecified date.

In a judgment of 29 April 2002, the Plovdiv Court of Appeal dismissed the applicant's appeal and upheld the lower court's findings. The reasons for its decision were, inter alia, the following:

“Irrespective of the wrongful deduction of the time during which the [applicant] was serving his sentence ... in case no. 14/95, when sentencing the applicant to three years and two months' imprisonment the [trial] court deducted two years, five months and twenty days. This was the period between 7 June 1996 and 27 December 1998. The remaining [period] was eight months and ten days, which the applicant had to serve in view of the delivered final judgment ... in case no. 50/97 of the Plovdiv District Court.”

The applicant filed a cassation appeal on an unspecified date.

In a final judgment of 20 October 2003 the Supreme Court of Cassation dismissed the applicant's appeal and upheld the lower courts' findings. In its reasoning, it indicated, inter alia, the following:

“In the reasons [for its decision of 26 July 1999, the Plovdiv District Court] stated that the intention of the [trial] court had been to deduct from the so determined combined sentence the period during which the [applicant] was remanded in custody. With this clarification it became clearer what the intention of the [trial] court had been. The Plovdiv public prosecutor's office made a justified assessment that the period stated in the judgment to be deducted, namely from 7 June 1996 to 27 December 1998, included a period of one year when the [applicant] served a sentence of 'deprivation of liberty' under the judgment in case no. 14/95 ..., which sentence was not combined with [the sentence] in case no. 50/97 ..., and therefore was to be served separately. After deducting the period during which the [applicant] had served this first sentence the public prosecutor's office rightly established that not all the sentence in case no. 50/97 ... had been served and the [applicant] was recalled to prison on 12 May 1999 to serve the remaining part of the sentence. There is no indication that he was detained in prison for a period longer than [required] for serving the sentence imposed. Accordingly, the contention that he suffered damage as a result is unfounded. The incorrect indication in the judgment of the period of [remand in custody] to be deducted does not change the stated intention [of the trial court] in respect of the length of the sentence of 'imprisonment'.”

The Code of Criminal Procedure (1974) did not contain express provisions establishing a procedure to be followed in cases where there was a dispute as to whether a person had effectively served a prison sentence or not.

Article 373 § 1 (1) of the CCP provided that the court which had imposed the sentence would rule on all difficulties or uncertainties relating to the interpretation of its judgment. That did not include, however, issues concerning the execution of sentences and, in particular, the lawfulness of a continuing detention.

In general, the authority responsible for supervising the lawfulness of the execution of sentences was the competent public prosecutor (Article 375 § 2 of the CCP, section 118 of the Judiciary Act 1994 and section 4(1) of the Execution of Sentences Act). In particular, the public prosecutor was under a duty to order the release of every imprisoned person whom he or she found to have been unlawfully deprived of his or her liberty (section 119(7)(1) of the Judiciary Act of 1994). An appeal to a higher ranking public prosecutor's office lay against the decisions of a public prosecutor.

The Code of Criminal Procedure (1974) was replaced in 2006 by a new code of the same name, while the Judiciary Act 1994 was replaced by a new act of the same name in 2007.

Prisoners may work during their time in prison, whereby two days of employment are counted as them having served three days of their sentences of imprisonment (sections 65 and 103 of the Execution of Sentences Act).

The relevant parts of section 2 of the SMRDA provide:

“The State shall be liable for damage caused to [private persons] by the organs of ... the investigation, the public prosecution, the courts ... for:

unlawful detention ..., if [the detention order] has been set aside for lack of lawful grounds;

execution of an imposed sentence in excess of the set term or amount.”

Compensation awarded under the Act comprises all pecuniary and non-pecuniary damage which is the direct and proximate result of the illegal act or omission (section 4). The aggrieved person must lodge an “action ... against the [entity] ... whose illegal orders, acts or omissions have caused the alleged damage” (section 7). Compensation for damage caused from cases coming within sections 1 and 2 of the Act can only be sought under the Act and not under the general rules of tort (section 8 (1)).

The liability of the investigating and prosecuting authorities may arise only in the exhaustively listed instances set forth in section 2(2) of the Act and not under the general rules of tort (решение № 1370 от 16.XII.1992 г. по гр.д. № 1181/92 г., IV г.о. and Тълкувателно решение № 3 от 22.04.2005 г. по т. гр. д. № 3/2004 г., ОСГК на ВКС). No reported cases have been identified of successful claims being made for damage stemming from acts of the investigating or prosecuting authorities which fall outside the list in section 2.

The reported case-law under section 2(1) and (6) of the Act is scant. In two judgments the Supreme Court of Cassation held that State liability arose where a detainee was remanded in custody or imprisoned for a period exceeding the final prison term subsequently imposed by the court of last instance (реш. № 1662 от 21 януари 1994 г. по гр. д. № 306/93 г., IV г. о. на ВС и реш. № 1144 от 20 юни 2003 г. по гр. д. № 904/2002 г., IV г. о. на ВКС).


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in 1959 and lives in Ostrów.

The applicant is married with three children. Prior to her application for an early-retirement pension she had been employed and paid social security contributions to the State.

On 13 August 2001 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) to be granted the right to an early-retirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the so-called “EWK” pension.

Along with her application for a pension, the applicant submitted, among other documents concerning her daughter’s health condition, a medical certificate issued by a specialist medical centre on 20 July 2001. The certificate stated that the child J. (born in 1988) suffered from a renal condition and scoliosis and that she was in need of her parent’s constant care.

On 29 August 2001 the Rzeszów Social Security Board (“the SSB”) issued a decision granting the applicant the right to an earlyretirement pension as of 1 August 2001 in the net amount of 653 Polish zlotys (PLN).

The Social Security Board initially suspended the payment of the pension due to the fact that the applicant was still working on the date of the decision. On 21 September 2001 the applicant resigned from her fulltime job in a private company where she had been working since 1985. Afterwards, payment of the pension was resumed.

On 4 June 2002 the Rzeszów Social Security Board asked the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s daughter required the permanent care of a parent. On 10 July 2002 the doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care.

On 26 July 2002 the Rzeszów Social Security Board issued simultaneously two decisions in respect of the applicant. By virtue of one decision, the payment of the applicant’s pension was discontinued with immediate effect. By virtue of the other decision, the Board reopened the proceedings, revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an early-retirement pension under the scheme provided for by the 1989 Ordinance.

The applicant appealed against the respective decisions divesting her of the right to an early-retirement pension. She submitted that she should receive the benefit because her child required constant care, as confirmed by the medical certificate attached to the applicant’s original application for a pension. Moreover, the applicant alleged that the revocation of her retirement pension was contrary to the principle of vested rights.

On 7 March 2003 the Rzeszow Regional Court (Sąd Okręgowy) dismissed the appeal. The Regional Court concluded on the basis of the evidence that the applicant’s child did not require her mother’s permanent care since her health condition did not significantly impair her bodily functions. The domestic court held that the applicant had been rightfully divested of her right to a pension under the scheme provided by the 1989 Ordinance as she did not satisfy the requirement of necessary permanent care.

The applicant further appealed against the first-instance judgment.

On 17 October 2003 the Rzeszów Court of Appeal (Sąd Apelacyjny) dismissed the appeal.

On 17 March 2004 the Supreme Court (Sąd Najwyższy) refused to entertain the cassation appeal lodged by the applicant.

Following the social security proceedings the applicant was not ordered to return her early-retirement benefits paid by the Social Security Board, despite the revocation of her right to an earlyretirement pension.

The applicant submitted that after the revocation of pension on 26 July 2002 for five years she had been unsuccessfully looking for job but had received no unemployment or other benefits from the State during that time.

Between May 2007 and June 2008 the applicant was offered a paid traineeship by the unemployment office in the amount of PLN 700 per month. The applicant was afterwards employed from June 2008 to June 2010.

The Government submitted that the applicant’s husband and two adult children were employed. They stated that in 2009 the applicant earned PLN 16,000. Moreover, the applicant and her husband owned a small farm.

In addition, the Government submitted information as regards the various types of social benefits available in Poland. However, they did not specify which of those benefits, if any, were available in the applicant’s situation.

Under the relevant laws currently in force, it appears that the applicant will qualify for a regular retirement pension in 2019.

Some 130 applications arising from a similar fact pattern have been brought to the Court. The majority of the applicants form the Association of Victims of the SSB (Stowarzyszenie Osób Poszkodowanych przez ZUS) (“the Association”), an organisation monitoring the practices of the Social Security Board in Poland, in particular in the Podkarpacki region.

Out of all applications lodged with the Court, about twentyfour applicants decided not to lodge a cassation appeal against the judgment of the Court of Appeal given in their case.

One hundred-and-four applicants lodged cassation appeals against the final judgments given in their cases. The Supreme Court entertained and dismissed on the merits fifteen appeals. In eightyone applications the Supreme Court refused to entertain cassation appeals on the ground that they did not raise any important legal issues or require the Supreme Court to give a new interpretation to legal provisions which raised serious doubts or gave rise to ambiguity in the jurisprudence of the domestic courts. In the remaining eight cases cassation appeals were rejected for failure to comply with various procedural requirements.

The legal provisions applicable at the material time and questions of practice are set out in the judgment in the case of Moskal v. Poland, no. 10373/05, § 31-34, 15 September 2009.

The social security scheme for farmers is regulated by the Farmers’ Social Security Act of 20 December 1990 (“the 1990 Act”; ustawa o ubezpieczeniu społecznym rolników).

The reopening of the proceedings concerning the earlyretirement pension is regulated in section 114 (1) of the Law of 13 October 1998 on the system of social insurance (Ustawa o systemie ubezpieczeń społecznych), which at the relevant time read as follows:

“The right to benefits or the amount of benefits will be re-assessed upon application by the person concerned or, ex officio, if, after the validation of the decision concerning benefits, new evidence is submitted or circumstances which had existed before issuing the decision and which have an impact on the right to benefits or on their amount are discovered.”

On 1 July 2004 a new subparagraph 114 (1) a was added, which reads as follows:

“Section 1 shall apply respectively, if, after the validation of the decision it is discovered that the evidence that had been submitted did not give the right to a pension, disability pension or its amount.”

A party to civil proceedings could, at the material time, lodge a cassation appeal with the Supreme Court against a judicial decision of a second-instance court. A party had to be represented by an advocate or a legal adviser.

Article 3931 of the Code of Civil Procedure as applicable at the material time listed the grounds on which a cassation appeal could be lodged. It read as follows:

“The cassation appeal may be based on the following grounds:

1) a breach of substantive law as a result of its erroneous interpretation or wrongful application;

2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.”

Pursuant to Article 393¹³ the Supreme Court, having allowed a cassation appeal, could quash the challenged judgment in its entirety or in part and remit the case for re-examination. Where the Supreme Court failed to find non-conformity with the law, it dismissed the cassation appeal. According to Article 39315 if the cassation appeal was wellfounded the Supreme Court could also amend the impugned judgment and adjudicate on the merits.

On 22 June 1999 the Ombudsman made an application to the Constitutional Court, asking for section 186 § 3 of the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund (Ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych) (“the 1998 Law”) to be declared unconstitutional in so far as it restricted the application of the 1989 Ordinance to persons born before 1 January 1949. More specifically, the Ombudsman submitted that the introduction of an age-limit in respect of persons taking care of a child, which in essence amounted to a deprivation of the right to a benefit, constituted a violation of the principle of equality set forth in Article 32 § 1 of the Constitution.

On 4 January 2000 the Constitutional Court (K18/99) declared the impugned section 186 § 3 of the 1998 Law unconstitutional in so far as it restricted the application of the 1989 Ordinance to persons born before 1 January 1949. The Constitutional Court reiterated among other things the constitutional principle of acquired rights which guarantees particularly strong protection for the right to receive social welfare benefits.

On 10 February 2011 the Ombudsman made an application to the Constitutional Court, asking for section 114 (1)(a) of the 1998 Law to be declared unconstitutional in so far as it allowed the SSB to reopen ex officio proceedings relating to the grant of a pension or a disability pension on the basis of a new assessment of evidence which had already been submitted.

On 28 February 2012 the Constitutional Court (K5/11) declared the impugned section 114 (1)(a) of the 1998 Law unconstitutional in so far as it allowed the SSB to reopen such proceedings following a new assessment of evidence which had already been submitted.


Preliminary objection rejected (estoppel);Violation of Art. 6-1;Non-pecuniary damage - financial award

On 6 December 1991 the applicant was charged with sexual assault of a minor and abduction of minors. He was remanded in custody. On 30 April 1992 the applicant was released.

On 5 June 1992 the applicant’s trial started before the Nova Gorica District Court (Okrožno sodišče – “the District Court”). On the same day the case was adjourned.

On 16 June 1992 the District Court ordered the redetention of the applicant.

On 28 August 1992 a number of witnesses were heard and on 3 September 1992 the District Court again adjourned the applicant’s trial due to the applicant’s illness.

By decision of the District Court dated 17 September 1992, the applicant was again released.

A hearing scheduled for 28 September 1992 had to be adjourned sine die as the applicant was ill.

On 21 July 1992 the applicant was accused of another sexual assault of a minor. An indictment was filed on 18 January 1993. The applicant entered a plea against the indictment which was rejected on 15 February 1993. On 17 March 1993 the District Court joined the two sets of proceedings.

On 2 June 1993 the public prosecutor requested further investigations on the ground that there was reasonable suspicion that the applicant had also criminally neglected and ill-treated a minor within the meaning of Article 96 §§ 1 and 2 of the Criminal Code.

On 21 October 1993 a preliminary charge was filed in respect of the aforesaid acts. On 28 March 1995 the District Court decided to deal with all charges against the applicant in a single set of proceedings.

In the period from 18 February 1997 to 9 July 1997 the District Court held several hearings.

On 9 July 1997 the District Court convicted the applicant of sexual offences on several counts. A combined prison sentence of two years and eight months was imposed on the applicant. Both the applicant and the public prosecutor appealed.

On 12 February 1998 the Koper High Court (Višje sodišče) rejected the applicant’s appeal and increased the sentence to three years’ imprisonment.

On 26 March 1998 the applicant lodged a plea of nullity (zahteva za varstvo zakonitosti). The District Court transmitted it to the Supreme Court (Vrhovno sodišče), together with the file, on 5 June 1998. The Supreme Court dismissed this complaint on 17 September 1998.

On 24 March 1998 the applicant lodged a constitutional complaint against the Koper High Court’s judgment of 12 Februrary 1998. It was dismissed by the Constitutional Court (Ustavno sodišče) on 15 June 1998.

On 12 October 1998 the applicant filed a further constitutional complaint concerning the Supreme Court’s decision of 17 September 1998 (see paragraph 17 above). He alleged, inter alia, a violation of Article 6 § 3 of the Convention in the criminal proceedings against him.

On 1 December 1998 the Constitutional Court refused to send the case back to the lower courts for a new examination as it found no violation of the applicant’s right to a fair hearing.


Violation of Art. 6-1;Violation of Art. 13

Karel Jungwiert;Mark Villiger;Renate Jaeger

The applicant was born in 1951 and lives in Hildesheim.

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

In January 2000 the Magdeburg Public Prosecutor received two anonymous reports. The applicant, who acted as a court-appointed liquidator, a judge and two other liquidators were accused of collaborating to the detriment of other liquidators and creditors.

On 31 January 2000 the Magdeburg Public Prosecutor opened preliminary investigations against the applicant and six other persons. The applicant was suspected of having granted an undue benefit (Vorteilsgewährung) and of embezzlement (Unterschlagung). The investigations concerned, inter alia, the judge's alleged free stay at the applicant's ski lodge and benefits in connection with the purchase of two cars and two computers. By a letter dated 7 February 2000 the applicant was informed of the investigations.

In the following months, the Magdeburg Public Prosecutor (and also the Sachsen-Anhalt State Office of Criminal Investigations) questioned numerous witnesses and public officials of the court – partly, moreover, with the help of Vienna Interpol –, and searched, inter alia, the applicant's business premises, seized documents and computers and requested information from the Credit Control Company. The applicant and his co-defendants, on their part, including after the submission of an interim report by the Sachsen-Anhalt State Office of Criminal Investigations in August 2000, made rather extensive submissions and repeatedly requested access to the files. The Magdeburg District Court also decided on an appeal against the search of premises; proceedings against one of the co-defendants were stayed.

On 23 October 2000 the applicant requested the public prosecutor not to close the investigations and announced further submissions, which he submitted on 5 December 2000. In the meantime, further information on insolvency proceedings in respect of the applicant over the previous years had been obtained.

On 16 January 2001 the Magdeburg Public Prosecutor brought charges against the applicant, the judge and two more lawyers. The applicant was accused of having granted undue benefits to a public official, namely, the accused judge.

On 23 January 2001 two judges of the Magdeburg Regional Court indicated possible grounds for bias.

In February 2001, and also three times in March 2001, the applicant requested an extension of the time-limit set. Two of his co-defendants changed their legal representatives; further access to the files was also granted.

In April 2001 the Magdeburg Public Prosecutor challenged one of the judges on the grounds of bias. In May 2001 the Magdeburg Regional Court rejected this request. In June 2001 the Naumburg Court of Appeal quashed that decision and found that the judge was biased. In July 2001 two more judges indicated that there were grounds for bias on their part. In August 2001 the Magdeburg Regional Court decided that one of the judges was to be excluded on the grounds of bias.

In August 2001 it decided to obtain an expert opinion and heard other witnesses. On 3 September 2001 it commissioned the expert. In October 2001 it further amended its decision. On 13 November 2001 the expert submitted his report.

Between November 2001 and March 2002 a number of memorandums, a report on the state of the investigations and further submissions by the accused were obtained.

On 12 March 2002 the Magdeburg Regional Court decided to open the trial against the applicant as regards one offence; it refused to open a trial against the applicant as regards the five other offences.

On 13 March 2002 the Magdeburg Public Prosecutor lodged an appeal against that decision in the part refusing to open proceedings. In May 2002, when the reasoning was complete and the accused had made further submissions, the files were transferred to the Naumburg Court of Appeal.

On 21 June 2002 that court considered that a trial should also be opened as regards three of the other offences. It also decided that the main hearing was to be held before the Stendal Regional Court.

In July 2002 and September 2002 the applicant appointed two new legal counsel – both were also granted access to the files. Hereinafter, the parties agreed that hearings should take place as of mid January 2003.

In February 2003 the Magdeburg Public Prosecutor laid new charges with the Stendal Regional Court against the applicant and the judge.

Between 5 March 2003 and 14 May 2003 eleven hearings took place. More than 20 witnesses and also experts were heard. On 3 April 2003 the Stendal Regional Court acquitted one of the lawyers.

On 14 May 2003 it convicted the judge of tax evasion and acquitted the applicant and the co-defendants of all other charges. The written judgment, comprising 59 pages, was sent to the parties in July 2003.

On 18 August 2003 the Magdeburg Public Prosecutor appealed. In October, following submissions by the accused, the files were transferred to the Federal Court of Justice.

On 25 February 2004 the Federal Court of Justice quashed the judgment in the part acquitting the applicant and the others of the offences of granting an undue benefit and of taking a bribe (Bestechlichkeit) and remitted the case to the Dessau Regional Court.

In April 2004 the Dessau Regional Court received the files. In July 2004 the court and the parties agreed upon the dates of the hearings. In September 2004 the witnesses to be heard and the experts to be involved were designated.

Between October 2004 and January 2005 altogether eleven hearings took place – five of them in January – and more than 20 witnesses were heard. Initially, the applicant had requested the court not to hold more than one hearing per week.

On 19 January 2005 the Dessau Regional Court convicted the applicant of two counts of granting undue benefit and the judge of two counts of taking a bribe. Shortly afterwards, the applicant's legal counsel ceased taking instructions from the applicant; his newly appointed lawyer then requested access to the files. On 2 March 2005 the Dessau Regional Court submitted the written judgment.

On 6 April 2005 the applicant, as one of his co-defendants had already done, lodged an appeal on points of law (comprising more than a hundred pages); he also appointed another legal counsel; proceedings against one of his co-defendants were stayed.

In May 2005 the Magdeburg Public Prosecutor decided not to file further submissions and transferred the files to the Naumburg Regional Court. In June the applicant filed further observations; in July 2005 he again requested access to the files. On 8 September 2005, following a remittal of the files on account of a reputedly missing approval, the General Public Prosecutor made his submissions.

On 12 January 2006 the Federal Court of Justice quashed the judgment and remitted the case to the Halle Regional Court. It found that it could not be established that the applicant and his co-defendant had intentionally collaborated. On 8 March 2006 the court delivered the written judgment.

In March 2006 the Halle Regional Court contacted the parties' legal representatives in order to arrange the hearings. In June 2006 the case was assigned to the Halle Public Prosecutor; in July 2006 the Halle Public Prosecutor informed the court thereof. In September 2006, at the applicant's renewed request, the Halle Regional Court decided that three judges and two lay judges should decide upon the case.

From 22 September 2006 to 19 October 2006 seven hearings took place. On 19 October 2006 one of the lay judges died. On 25 October 2006 the Halle Regional Court therefore cancelled all further hearings.

On 13 November 2006, after having been granted access to the files, the applicant requested that the proceedings be stayed on account of their excessive length pursuant to section 206 (a) of the Code of Criminal Procedure, which presupposes a procedural impediment. On 13 December 2006, following submissions by all the parties, the Halle Regional Court rejected this request as unfounded.

By a letter dated 16 January 2007 the applicant lodged a constitutional complaint against the refusal. The same day, the Halle Regional Court decided that another chamber should decide on the case.

On 6 February 2007 the Federal Constitutional Court refused to admit the case for adjudication as being inadmissible on the ground that the decision under section 206 (a) of the Code of Criminal Procedure was an interlocutory decision which could not be challenged.

On 4 April 2007, following further submissions, the Halle Regional Court rejected the applicant's objection (Gegenvorstellung) against the refusal to stay the proceedings.

In June 2007 – the applicant had twice requested the court to schedule a hearing – it turned out that hearings could only be scheduled as of 12 September 2007. Thereafter, the applicant and his co-defendant were granted access to the files. The applicant's request to appoint a supplementary judge was rejected on 18 October 2007. A further appeal was to no avail.

Between 25 October 2007 and 17 March 2008 15 hearings took place. More than 20 witnesses were heard and expert reports were obtained.

On 17 March 2008 the Halle Regional Court acquitted the applicant and the co-defendants of both charges. It also found that he was entitled to compensation on the merits on account of the searches and the seizures and also ordered that the Treasury bear the costs of the proceedings and the applicant's necessary expenses.

On 9 June 2008 the judgment became final, the Halle Public Prosecutor having withdrawn an appeal on points of law.

On 5 November 2008 the applicant requested the Halle Regional Court to cover the costs of his legal representation in the amount of EUR 61,388.27.


Violation of Art. 3;Violation of Art. 5-1;Non-pecuniary damage - award

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

The applicant was born in 1954 and lives in Dushanbe.

In May 1992 a civil war erupted in Tajikistan when ethnic groups under-represented in the ruling elite rose up against the national government of President Nabiyev. Politically, the discontented groups were represented by liberal democratic reformists and Islamists, who fought together and later organised themselves under the banner of the United Tajik Opposition (“UTO”). By June 1997 fifty to one hundred thousand people had been killed.

During the civil war in Tajikistan, the applicant was one of the leaders of the UTO.

On 27 June 1997 a peace agreement was signed by President Rakhmonov and the UTO leader. The applicant was appointed as the head of the State Committee for Extraordinary Situations and Civic Defence of Tajikistan. While in office, he was awarded the rank of Major-General.

In 1999 the President of Tajikistan appointed the applicant as the director of the unitary enterprise Tajikkommunservis.

On 13 September 1999 the applicant was elected chairman of the Democratic Party of Tajikistan.

On 4 June 2001 the applicant was appointed as the director of the unitary enterprise Tajikgaz.

At some point the applicant openly criticised the President of Tajikistan.

On 1 December 2004 the applicant moved to Russia.

On 25 November 2004 the Tajik Prosecutor General's Office charged the applicant in his absence with terrorism, gangsterism, unlawful possession of firearms and embezzlement.

On 26 November 2004 the Tajik authorities chose placement in custody as a preventive measure to be imposed on the applicant.

On 29 November 2004 the applicant was put on an international “wanted” list.

On 1 December 2004 the Russian Prosecutor General's Office received a request for the applicant's extradition from the Tajik Prosecutor General's Office.

On 9 December 2004 the Russian authorities arrested the applicant on the basis of the request for his extradition.

On an unspecified date the applicant was placed in remand prison no. IZ-77/4 in Moscow.

On 23 December 2004 the Babushkinskiy District Court of Moscow authorised the applicant's detention pending extradition.

On 24 December 2004 the applicant appealed against the firstinstance decision. On an unspecified date the Moscow City Court dismissed the appeal.

On 29 December 2004 and 18 January 2005 the applicant requested the Russian Prosecutor General's Office not to extradite him, arguing that the request for his extradition had been filed for purely political reasons.

In January 2005 the applicant requested the Department for Migration Affairs of the Moscow Department of the Interior to grant him political asylum.

On 1 April 2005 the Russian Prosecutor General's Office dismissed the extradition request by the Tajik authorities for the reason that the applicant had filed an asylum application.

On 4 April 2005 the prosecutor's office of the Babushkinskiy District of Moscow ordered the applicant's release from custody.

Upon his release on 4 April 2005 the applicant stayed at his friend's flat in the town of Korolev, in the Moscow Region, awaiting examination of his asylum application.

In the evening of 15 April 2005 the applicant and his friend, Mr L., were walking a dog. At some point the applicant saw two persons wearing uniforms of the Russian State Inspectorate for Road Safety («ГИБДД», “GIBDD”). He assumed that those men intended to arrest him and told his friend to go home. Then the applicant noticed that the area had been surrounded by twenty-five or thirty men with Slavic features wearing civilian clothes.

Without identifying themselves or giving any explanations, the two men in GIBDD uniforms, assisted by several men in civilian clothes, handcuffed the applicant. One of the men hit the applicant on the head and placed him in a car; it drove off. After 400 or 500 metres the car stopped; the men in the GIBDD uniforms took the applicant out and placed him in a minivan.

They drove for a while. Eventually the minivan stopped and the applicant was taken outside. The surroundings were unknown to him. The applicant was escorted to a sauna and detained there. The guards beat the applicant. He asked for a lawyer, but in vain.

On 16 April 2005 the applicant was taken to a forest. The men who had apprehended him met a group of people and conversed with them there. Having listened to them talking, the applicant assumed that the newly arrived people were servicemen of the Russian law-enforcement agencies.

At some point the servicemen put a mask on the applicant's face. They did not identify themselves, nor did they give any explanations of their actions. They spoke unaccented Russian.

Later they took the applicant with them and escorted him to an airport. The applicant's identity papers were not checked. While boarding the plane, the applicant heard the servicemen talking to a woman who apparently knew them. During the flight the applicant, still blindfolded, heard no instructions or other information usually conveyed in a civil aircraft.

On the morning of 17 April 2005 the aircraft landed at Dushanbe Airport and the applicant was handed over to the Tajik law-enforcement agencies.

On 17 April 2005 the applicant was placed in the remand prison of the Tajik Ministry of Security. He was kept in a cell measuring 2.3 x 2 metres. There was an iron bed with dirty bedding.

For the first ten days of his detention the applicant was registered under a false last name, “Sobirov”. During that period officers of the remand prison regularly beat the applicant. He had no food except for two pieces of bread per day and some water. He was allowed to use the lavatory only once a day. The applicant was not permitted to go for a walk or to wash himself.

On the tenth day of the applicant's detention, officers of the Tajik Prosecutor General's Office told him that he would be killed unless he confessed. The applicant made a self-incriminating statement under pressure. He was given some pills, allegedly of a psychotropic nature.

On 25 April 2005 the Tajik Prosecutor General gave a press conference and announced that the applicant had been arrested in Tajikistan on 22 April 2005.

On 30 April 2005 the applicant was allowed to see his lawyers for the first time since his arrest. He explained them that for thirteen days he had been kept incommunicado and had lived on bread and water. The lawyers' visits took place in the presence of the prison officials. Unsupervised visits were not permitted.

On 5 October 2005 the Supreme Court of Tajikistan convicted the applicant and sentenced him to twenty-three years' imprisonment.

On 18 January 2006 the Appeals Board of the Supreme Court of Tajikistan upheld the judgment of 5 October 2005.

On 2 May 2005 the Presidium of the Democratic Party of Tajikistan requested the President of Russia, the Russian Prosecutor General's Office and the Russian Ombudsman to clarify the circumstances of the applicant's unlawful extradition.

On 3 May 2005 the applicant's relatives requested the Russian Prosecutor General's Office to explain how the applicant had been transferred to Tajikistan. No reply was given.

On 30 May 2005 the applicant's lawyers enquired of the Russian Prosecutor General's Office whether any measures had been taken in relation to the letter of 3 May 2005.

On 14 June 2005 the applicant's lawyers complained to the Russian Prosecutor General's Office that the applicant's abduction and extradition had been unlawful.

On 22 June 2005 the applicant's lawyers complained to the Tverskoy District Court of Moscow about the inaction of the Russian Prosecutor General's Office. The court left the complaint unexamined.

On 15 June 2005 the applicant's lawyers complained to the Russian Prosecutor General's Office about the allegedly ineffective investigation into the circumstances of the applicant's unlawful extradition.

On 20 June 2005 the Korolev town prosecutor's office refused to institute criminal proceedings in relation to the applicant's kidnapping.

On 6 July 2005 the Korolev town prosecutor's office quashed the decision of 20 June 2005 and instituted an investigation under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping).

On 8 September 2005 the applicant's representatives lodged a second complaint with the Tverskoy District Court of Moscow. The complaint was dismissed on 28 September 2005.

On 16 September 2005 the applicant's lawyer requested the Korolev town prosecutor's office to demand the Tajik authorities to transfer the applicant to Russia for questioning. On 19 September 2005 the request was dismissed. The applicant's lawyers challenged the prosecutor's decision before the prosecutor's office of the Moscow Region, but to no avail.

The applicant himself requested the Korolev town prosecutor's office to question him as a victim in Russian territory.

On 6 October 2005 the Korolev town prosecutor's office dismissed the applicant's request. The applicant's lawyers challenged the refusal before a court.

On 24 April 2006 the Korolev Town Court dismissed the complaint on the ground that the applicant had not been permitted to join the proceedings as a victim. That decision was quashed. On 25 September 2006 the Moscow Regional Court dismissed the complaint at final instance on the ground that the applicant's rights had not been breached.

On 12 December 2005 the Moscow City Court dismissed at final instance the complaint about the Russian Prosecutor General's inaction.

On 27 March 2006 the Tverskoy District Court of Moscow dismissed at first instance the applicant's complaint about the Russian Prosecutor General's Office's inaction. On 23 May 2006 the Moscow City Court upheld the decision.

On 6 April 2006 the applicant's lawyers challenged in court the investigators' decision. On 25 September 2006 their complaint was dismissed at final instance by the Moscow Regional Court.

In November 2004 two Tajik lawyers filed a complaint with the United Nations High Commissioner for Human Rights (UNHCHR) concerning alleged violations of the applicant's rights in the course of the criminal proceedings against him in Tajikistan.

On 20 October 2005 the Working Group on Arbitrary Detention of the Office of the UNHCHR put questions on the applicant's detention to the Tajik Government.

On 24 November 2005 the Tajik Ministry of Foreign Affairs, in reply to the request by the Office of the UNHCHR, submitted a seventeenpage document in Russian describing the charges against the applicant and the proceedings against him. The document read, in so far as relevant, as follows:

“...[i]n accordance with the Minsk Convention, Mr Iskandarov was arrested by the Russian law-enforcement agencies in Moscow in December 2004.

In reply to the Russian Prosecutor General's Office's requests, the Tajik Prosecutor General's Office produced the necessary documents concerning Iskandarov's extradition to the Tajik authorities within the time-limits laid down by the Minsk Convention, as well as comprehensive proof of Iskandarov's guilt in respect of the crimes he had been charged with. After that, the Russian Prosecutor General's Office informed the Tajik authorities that a favourable solution would be found to the question of Iskandarov's extradition.

It is noteworthy that on 4 April 2005 the Russian law-enforcement agencies released Mr Iskandarov from custody prior to deciding on his extradition but did not officially notify the Tajik Prosecutor General's Office of the grounds and reasons for the release under the Minsk Convention.

Mr Iskandarov was officially extradited to the Tajik authorities by the Russian lawenforcement agencies and on 17 April 2005 he was placed in the remand prison of the Tajik Ministry of Security.”

On 29 September 2006 the Office of the UNHCHR forwarded the letter from the Tajik Ministry of Foreign Affairs to the applicant's Tajik counsel and notified her that, in order to consider the applicant's case during its 47th session, its Working Group expected to receive her comments on it.

It appears that the proceedings before the UNHCHR concerning the alleged violations of the applicant's rights in Tajikistan are still pending.

On 1 December 2004 the Russian Prosecutor General's Office received a petition for the applicant's extradition from the Tajik Prosecutor General's Office.

On 9 December 2004 the applicant was arrested in Moscow.

On 17 December 2004 the Russian Prosecutor General's Office received an official request for the applicant's extradition, citing the charges of terrorism, gangsterism, unlawful possession of arms, embezzlement and unlawful hiring of bodyguards.

On 1 April 2005 the Russian Prosecutor General's Office refused to extradite the applicant on the basis of Article 19 of the Minsk Convention owing to the fact that he had applied for asylum.

On 4 April 2005 the applicant was released from custody.

On 6 July 2005 the Korolev town prosecutor's office instituted criminal proceedings in relation to the applicant's abduction under Article 126 § 2 of the Russian Criminal Code (“aggravated kidnapping”). The case was assigned number 27807.

The investigation established that at about 11 p.m. on 15 April 2005 the applicant had been walking along a street in the vicinity of the house at 14 Sovetskaya Street, Korolev, and had presumably been kidnapped by unidentified persons.

Later it became known that the applicant had been arrested in Dushanbe by the Tajik authorities.

The investigators questioned Mr L. and his son and daughter, as well as police officers who had been on duty on the night of 15 April 2005 in the vicinity of Sovetskaya Street and the applicant's son.

On 8 July 2005 Mr L. stated that the applicant, a friend of his daughter, had been staying in their home since 12 April 2005. On 15 April 2005 Mr L. had gone outside to walk his dog; the applicant had accompanied him to have a cigarette. Mr L., a non-smoker, had walked in the opposite direction to the applicant. At some point he had stumbled upon two men wearing police uniforms and talked to them for some fifteen minutes. Then he had returned home; the applicant was not there. Mr L. and his daughter, Ms L., had searched for the applicant and checked with police stations but in vain. After a while Ms L. had read on the Internet that the applicant had been arrested in Tajikistan.

Ms L. and Mr L.'s son made identical depositions.

The investigators checked whether the applicant had been taken away by plane from Chkalovskiy Airport. No proof of this hypothesis was found.

On 20 June 2005 the Korolev prosecutor's office granted the applicant victim status in criminal case no. 27807.

On 18 July 2005 the Korolev prosecutor's office, pursuant to Articles 4, 5, 7 and 8 of the Minsk Convention, requested the Tajik Prosecutor General's Office to establish the applicant's whereabouts and to question him about his abduction and transfer from Russia.

On 24 August 2005 the Russian authorities requested the Tajik Prosecutor General's Office to question the applicant and to allow him to study the decision to grant him victim status. On 29 December 2005 Mr Kh., an investigator of the Tajik Prosecutor General's Office, replied that on several occasions he had visited the applicant in the remand prison of the Tajik Ministry of Security in connection with criminal case no. 27807 but that the applicant had refused to make any statements or to study the decision to grant him victim status.

The investigation did not establish that any officers of the Russian law-enforcement agencies had been involved in the applicant's kidnapping.

On 3 October 2008 the investigation was suspended for failure to identify those responsible.

Everyone has the right to liberty and security (Article 22 § 1). Arrest, placement in custody and custodial detention are permissible only on the basis of a court order. The term during which a person may be detained prior to obtaining such an order cannot exceed forty-eight hours (Article 22 § 2).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Amnesty International, in its document “Tajikistan – Impunity; Fear for Safety” describing alleged ill-treatment of three Tajikistani residents and released on 4 November 2004, stated as follows:

“Amnesty International receives reports about torture and ill-treatment by police in Tajikistan on a regular basis. Those targeted have included alleged Islamists as well as suspects charged with ordinary crimes. Allegations persisted that in the large majority of cases no thorough and impartial investigations were conducted and the perpetrators enjoyed impunity.”

The US Department of State 2004 Country Report on Human Rights Practices: Tajikistan, released on 28 February 2005, reads as follows:

“The [Tajik] Government's human rights record remained poor; although there were some improvements in a few areas, serious problems remained. ... Security forces tortured, beat, and abused detainees and other persons and were also responsible for threats, extortion, and abuse of civilians. Prison conditions remained harsh and life threatening. A few prisoners died of hunger.

Impunity and lengthy pre-trial detention remained problems. Authorities used torture to obtain confessions, which were routinely accepted as evidence in trials without qualification.

The law prohibits such practices; however, there were reports that government security officials employed them.

Torture occurred during the year, though to a lesser extent than in 2003. Security officials, particularly from the Ministry of Interior (MOI), continued to use systematic beatings to extort confessions, torture, sexual abuse, and electric shock during interrogations.

Beatings and mistreatment were also common in pre-trial detention facilities, and the Government took minimal action against those responsible for the abuses

Prison conditions remained harsh and life threatening for an estimated 7,000 to 10,000 incarcerated persons. Prisons were generally overcrowded, unsanitary, and disease-ridden. The spread of tuberculosis was a serious problem, and there were reports that a few prisoners died of hunger.

Arbitrary arrest and detention remained serious problems. The law, which is an amended holdover from the Soviet era, allows for lengthy pre-trial detention, and there are few checks on the power of prosecutors and police to make arrests.

Impunity remained a serious problem, and officers who committed abuses were rarely prosecuted. The Government acknowledged that police and security forces were corrupt and that most citizens who were abused chose to remain silent rather than risk retaliation by authorities.

The Constitution provides for an independent judiciary; however, courts and judges were subject to political pressure from the executive branch and criminal networks, and corruption and inefficiency were problems.

There was little official information about criminal court procedures and the number of political prisoners; however, credible international and local sources estimated that approximately 100 former opposition fighters of the United Tajik Opposition remained in prison after the civil war despite two general amnesties in 1998. Controversy over which crimes the amnesties covered delayed resolution of the cases. However, following a government review of the cases, most were determined to be appropriately jailed for grave crimes; others were released.

In January, following a partially closed trial, a closed session of the Military Board of the Supreme Court sentenced Shamsiddin Shamsiddinov, a deputy chair of the opposition IRP, to 16 years in prison for organizing an armed group and illegally crossing the border. Both crimes were covered under the 1998 post-war amnesties. While in pre-trial detention, he was allegedly abused and denied access to counsel (see Section 1.c.). The IRP maintained that the trial and sentencing were politically motivated to discredit the party.”

The Human Rights Watch World Report 2005 – Tajikistan, issued on 12 January 2005, reads as follows:

“The human rights situation in Tajikistan is fragile. Despite reforms on paper – including a new election law and a moratorium on capital punishment – the government continues to put pressure on political opposition, independent media, and independent religious groups. The political climate has deteriorated as President Emomali Rakhmonov attempts to consolidate power in advance of 2005 parliamentary and presidential elections. Hizbi Demokrati-Khalkii Tojikston (the People's Democratic Party of Tajikistan), led by President Rakhmonov, dominates political life. Under 1997's power-sharing arrangement, opposition parties are guaranteed 30 percent of top government posts. In January 2004, Rakhmonov replaced senior government officials from other political parties with members of his own party, reducing the other parties' share of top posts to 5 percent.

Rakhmonov's opponents are vulnerable to prosecution on politically-motivated charges. In January 2004, the Supreme Court sentenced Shamsuddin Shamsuddinov, deputy chairman of Nahzati Islomi Tojikiston (the Islamic Renaissance Party, IRP) – which participates in the power-sharing government - to sixteen years in prison on charges of polygamy, organizing an armed criminal group during the civil war, and illegally crossing the border. Three other IRP members were given lengthy prison terms for alleged complicity in Shamsuddinov's armed group. Shamsuddinov, who has maintained his innocence since his arrest in May 2003, alleges he was beaten and tortured with electric shocks while awaiting trial.”

The Ambassador of the United States to the Permanent Council of the OSCE delivered on 16 June 2005 a statement on the detention of Mahmadruzi Iskandarov in Dushanbe, which reads as follows:

“The United States wishes to express its concern regarding the case of Mahmadruzi Iskandarov, the Chairman of the Democratic Party of Tajikistan, who was involuntarily returned to Dushanbe from Moscow on April 17, and who has been held in detention by Tajikistan's Ministry of Security since that date.

We further note that Mr. Iskandarov has been denied regular and unobserved access to his legal counsel, and that his family has been unable to meet with him.

The United States calls on the Tajik authorities to permit Mr. Iskandarov access to his legal counsel in accordance with Tajikistan's own laws and with international standards, and to pursue any court process in accordance with international law. Both local and international observers should be allowed to witness those proceedings.

Once again, [the United States] urge[s] the Government of Tajikistan to demonstrate its commitment to comply with OSCE principles and with international law. The United States stands ready to provide whatever assistance might be required in helping Tajikistan to meet its obligations in that regard.”

The Human Rights Watch World Report 2006 – Tajikistan, issued on 18 January 2006, reads as follows:

“In December 2004, Russian police arrested Mahmudi Iskandarov in Moscow at the request of Tajik authorities. The government had implicated Iskandarov – a vociferous critic of President Rakhmonov, presidential hopeful, and leader of the Tajik Democratic Party – in an attack on two government offices in Tojikobod in August 2004. Russian authorities released him on April 3, 2005, but he disappeared just two days later and eventually turned up in custody in Tajikistan. Iskandarov claimed that he had applied for refugee status after his initial release from Russian custody, but said that Russian police had kidnapped him off the street and transferred him to agents who flew him to Dushanbe. On October 5, 2005, after a trial that lasted more than two months, Iskandarov was found guilty on six counts, including terrorism and illegal possession of weapons. He was sentenced to twenty-three years in prison and fined 1.5 million soms (approximately U.S.$ 470,000).”

The US Department of State 2005 Country Report on Human Rights Practices: Tajikistan, released on 8 March 2006, reads as follows:

“Beatings and mistreatment were also common in pre-trial detention facilities, and the government took minimal action against those responsible for the abuses (see Section 1.d.). Yoribek Ibrohimov 'Shaykh' and Muhammadruzi Iskandarov both stated police beat them and subjected them to electric shocks while they were in custody. The International Committee of the Red Cross (ICRC) monitors were unable to investigate claims of torture against them and their associates and the government did not launch an official investigation.

Muhammadruzi Iskandarov, head of the Democratic Party of Tajikistan and former chairman of Tajikgaz, was returned to the country in April after his December 2004 detention in Moscow, under circumstances that appeared to be an extrajudicial rendition; Iskandarov was charged with violating eight articles of the criminal code including: banditry, terrorism, illegal possession of weapons, having an unauthorized bodyguard, and embezzlement. At the request of the Tajikistan General Prosecutor's Office, Russian authorities had taken Iskandarov into custody on an international arrest warrant, but found insufficient evidence to extradite him. On April 3, the Russian general prosecutor turned down an extradition request and released Iskandarov. He was subsequently kidnapped by unknown forces and on April 26, the Tajik prosecutor general announced Iskandarov was in pre-trial detention in Dushanbe. Iskandarov was denied immediate access to his family and an attorney (see section 1.e.). Iskandarov reported that he was tortured, injected with drugs, and electrocuted while in detention. He was sentenced to 23 years in prison. He is appealing to the Supreme Court. No date was set for the appeal trial by year's end.”

The Declaration by the Presidency of the Council of the European Union on behalf of the European Union on the case of Mr Iskandarov in Tajikistan, done in Brussels on 22 March 2006 (7656/06 (Presse 86) P 050), reads as follows:

“The EU has closely followed the legal proceedings against Mr Mahmadruzi Iskandarov, leader of the opposition Democratic Party of Tajikistan, since his arrest in Moscow in December 2004.

The EU has taken note of his conviction and sentence to 23 years in prison on multiple charges by Tajikistan's Supreme Court on 5 October 2005, and the rejection of his appeal by the Collegium on Criminal Cases on 18 January 2006.

The EU is particularly concerned about the circumstances of Mr Iskandarov's transfer to and arrest in Tajikistan in April 2005, which remain unclear, and about the treatment Mr Iskandarov received during his pre-trial detention. Concerns were also raised by Mr Iskandarov's defence team about some aspects of the court proceedings themselves, and about the fact that the recent appeal procedure was not open to the press. The EU wishes to receive further information on these matters.

The EU asks the Tajik authorities to ensure regular access of Mr Iskandarov's family and lawyers in accordance with Tajik law.

The unclear circumstances of Mr Iskandarov's arrest and some aspects of his detention and trial send a mixed message about democratic reform and the respect of Human Rights in Tajikistan with respect to its OSCE and other international commitments.”

The US Department of State 2006 Country Report on Human Rights Practices: Tajikistan, released on 6 March 2007, reads as follows:

“There was no official investigation into the 2005 beating and electric shocks police allegedly administered to Yoribek Ibrohimov 'Shaykh' and Muhammadruzi Iskandarov while they were in custody.

Muhammadruzi Iskandarov, head of the Democratic Party of Tajikistan and former chairman of Tojikgaz, the country's state-run gas monopoly, remained in detention following his April 2005 kidnapping and return to the country from Moscow by unknown forces. In October 2005 the Supreme Court sentenced Iskandarov to 23 years in prison as well as other penalties, including restitution of $434,782 (1.5 million somoni) allegedly embezzled from Tojikgaz. While most observers believed allegations of corruption and embezzlement were well-founded, local observers, human rights activists, and the political opposition charged that Iskandarov's arrest, trial, and verdict were politically motivated to intimidate future political challengers. Although Iskandarov was convicted, he remained in a pre-trial detention facility at year's end.”

Amnesty International, in a document entitled “Central Asia: Summary of Human Rights Concerns, January 2006-March 2007”, released on 26 March 2007, described the applicant's situation as follows:

“In June 2006, the opposition Democratic Party of Tajikistan (DPT) expressed concern that its leader, Mamadruzi Iskandarov, continued to be held in incommunicado detention in the Ministry of National Security. In 2005, Mamadruzi Iskandarov was abducted from Moscow, Russia, where he lived in exile, after the Russian authorities refused to extradite him to Tajikistan. He was sentenced to 23 years' imprisonment by the Supreme Court in October 2005 on charges of terrorism and corruption, which he denied. He should have been moved to a prison camp shortly after the verdict but this did not happen. Supporters claimed that he was not allowed to receive parcels or newspapers and that visits of relatives and his lawyers had been obstructed. An appeal against his sentence had been turned down in a closed hearing in January 2006. At the beginning of February 2007, Mamadruzi Iskandarov was finally moved to a high security prison camp to serve the remainder of his sentence.”

The US Department of State 2009 Country Report on Human Rights Practices: Tajikistan, released on 11 March 2010, reads as follows:

“... Muhammadruzi Iskandarov, head of the Democratic Party of Tajikistan and former chairman of Tojikgaz, the country's state-run gas monopoly, remained in prison following his unlawful extradition from Russia and 2005 conviction for corruption.”


Violation of Article 6+6-3-a - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-a - Information on nature and cause of accusation;Article 6 - Right to a fair trial);Violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-b - Adequate time;Article 6 - Right to a fair trial);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant was born in 1950 and lives in Turku.

On 7 September 1995 the public prosecutor charged the applicant and the managing director of company X before the District Court (käräjäoikeus, tingsrätten) with two counts of aggravated tax fraud and two counts of tax fraud, as they had allegedly produced false invoices to the Turku County Tax Office (lääninverovirasto, länsskatteverket). They were also charged with an accounting offence (count 9), as they had allegedly entered false data in the accounts of X. The prosecutor claimed that the applicant was responsible for the offences together with the managing director as, even though he did not have an official status in the management of the company, he had in fact participated in its management.

In the indictment dated 12 June 1995, count 1, for example, read as follows:

On 23 November 1993 [the managing director] and [the applicant] together, [the former] as the managing director of [company X] and chairman of the board of directors and [the latter] as a person who was de facto responsible for the management of the company, submitted the company's application for a VAT refund in the amount of FIM 342,760 [some EUR 57,000] as regards November 1993 to the County Tax Office of Turku. The application stated that [company Y] had sold electrical relays to [company X] for FIM 1,900,000 [some EUR 319,000] and the latter company had sold the said products further to an Estonian company for FIM 1,680,000 [EUR 282,000]. The invoice relating to the sales transaction between [company X] and [company Y] was fabricated. By submitting such false information which affected the amount of taxes to the authorities for the purposes of taxation, [the managing director] and [the applicant] have attempted to evade taxes.

Applicable law: Chapter 29, section 2 of the Penal Code”

As a further example, count 2, which concerned the co-defendant H.A., read as follows:

By preparing the invoice in the amount of FIM 1,900,000 referred to in count 1, and by handing it over to [the managing director] and [the applicant] to be attached to the application for a tax refund, [H.A.], on 23 November 1993, intentionally furthered the criminal act committed by [the managing director] and [the applicant].

Applicable law: Chapter 29, section 2 and Chapter 5, section 3 (1) of the Penal Code”

The applicant pleaded not guilty, arguing that he did not have such a status in company X and therefore could not be held responsible for the alleged offences. Furthermore, he argued that he had not been involved in compiling the documents and that the transactions concerned had not been forged.

On 8 February 1996 the District Court found that the business transactions referred to in the relevant invoices were not genuine, that the invoices were false and that the applicant had, together with the managing director, produced false information to the County Tax Office and entered false data in the accounts of X. The District Court referred to the evidence given by the co-accused and the witnesses, finding it proved, inter alia, that the applicant had actually acted in the company in such a position that he was to be held responsible for the offences together with the managing director. Thus, the District Court convicted them both as charged and sentenced them to a suspended term of one year's imprisonment. The co-defendant, H.A., was also convicted as charged.

The applicant appealed to the Court of Appeal (hovioikeus, hovrätten) against his conviction. He maintained that since he had not had any legal or de facto status in X, he had not produced any documents to the County Tax Office and he had not entered false data in X's accounts. Furthermore, the invoices had not been fabricated. He also claimed that the witness evidence was contradictory and that the District Court's assessment of it was erroneous. At the end of his writ of appeal, he stated:

“... [C]onsidering that the conduct of [the applicant], on the whole, cannot be considered aggravated, he could not be found guilty of more than aiding and abetting a tax fraud if he were, against all reason, to be found guilty of any offence ...”

The public prosecutor did not submit any written response to the applicant's appeal. In its response to the applicant's appeal the County Tax Office did not refer to a reclassification of the offences as aiding and abetting.

On 13 March 1997 the Court of Appeal held a hearing at which the parties and the witnesses were heard. It appears that there was no discussion as to whether the applicant's alleged conduct could be classified as aiding and abetting the above offences.

In its judgment of 28 August 1997 the Court of Appeal convicted the applicant of two counts of aiding and abetting an aggravated tax fraud and two counts of aiding and abetting a tax fraud and an accounting offence and sentenced him to a term of nine months' suspended imprisonment. The Court of Appeal reasoned inter alia:

During the pre-trial investigation [the managing director] stated that [the applicant] had given instructions to [H.A.] as to the details to be included in the documents that were attached to the applications for a tax refund ... and had also otherwise taken care of matters and the business transactions of [company X].

[H.A.] stated during the pre-trial investigation that he had prepared documents to be attached to applications for a tax refund ... in accordance with [the applicant's] and [the managing director's] instructions. According to [H.A.], [the applicant] was in practice responsible for the operation of [company X].

Witness [V.M.] stated in the Court of Appeal that he had dealt with the invoice ... together with [the managing director] and [the applicant].

In the light of the statements given by [the managing director] and [H.A.] during the pre-trial investigation, and of the witness statement of [V.M.], which supports those statements, it has been established that [the applicant] participated in the planning of the offences referred to in the indictment and in the preparation of the documents needed for the commission of the offences.

... [the applicant] did not have such a position in [company X] as would have made it possible for him to commit, as a principal offender, the offences with which he was charged. When participating in the planning of the offences and in the preparation of the documents needed for the commission of the offences, however, he contributed to producing false information to the County Tax Office and [on count 9] to entering false data in the accounts. Thus he intentionally furthered the criminal acts of which [the managing director] has been found guilty.”

The applicant sought leave to appeal from the Supreme Court (korkein oikeus, högsta domstolen), arguing that he had been convicted of offences differing from those with which he had been charged. He submitted that the public prosecutor had not even claimed that he had been involved in the planning of the offences and compiling the documents. During the proceedings the applicant had not been informed of the nature and cause of these accusations and was thus not given any opportunity to defend himself against them. Furthermore, the assessment of the evidence was unfair since the Court of Appeal had found the evidence sufficient even though the oral statements were contradictory.

On 18 June 1998 the Supreme Court refused leave to appeal.

Chapter 5, section 3(1) of the Penal Code, in force at the relevant time, provided that a person who, during or before the commission of an offence by someone else, intentionally furthers the act through advice, action or exhortation, shall be convicted of aiding and abetting the principal offence. The sentence imposed on the person who aids and abets shall be reduced to three quarters of the maximum penalty prescribed for the principal offence.

The present case was commenced and therefore also concluded under the then provisions on criminal procedure in the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken). The rule according to which an accused might not be convicted of an offence other than the one with which he had been charged was not included in the legislation until the coming into force on 1 October 1997 of the Criminal Procedure Act (laki oikeudenkäynnistä rikosasioissa, lag om rättegång i brottmål; Act no. 689/1997). The rule was however established through case-law and it was codified upon the enactment of the new Act.

Chapter 11, section 3, of the Criminal Procedure Act provides that the court may only pass a sentence for an act for which a punishment has been requested. The court is not bound by the heading or the reference to the applicable provision in the indictment. The court is however bound by the conduct described in the indictment. The prosecutor is under an obligation to define the alleged offence and the accused must be provided with an opportunity to defend himself or herself within the limits of the indictment.

According to the Government, the court may e.g. convict an accused of aiding and abetting a tax fraud even if the prosecutor has charged him or her with the principal offence, as long as the conduct described in the indictment is not altered. This is based on the principle of jura novit curia, i.e. on the principle that the court itself is responsible for the legal assessment of the criminal act in question without being bound by the views of the prosecutor or of the accused. This was contested by the applicant.

Chapter 30, section 3 (Act no. 104/1979), of the Code of Judicial Procedure reads in relevant part:

“Leave to appeal may be granted only if it is important to bring the case before the Supreme Court for a decision with regard to the application of the law in other, similar cases or because of the uniformity of legal practice; if there is a special reason for this because of a procedural or other error that has been made in the case on the basis of which the judgment is to be reversed or annulled; or if there is another important reason for granting leave to appeal.”


The applicants, İsmail Demir, Kadri Göçmen, Murtaza Gündoğan, Şükrü Cengiz, Cafer Ardıç and Nezir Boğan, are Turkish nationals. They are represented before the Court by Mr Hüseyin Aygün and Mr Özgür Ulaş Kaplan, lawyers practising in Tunceli.

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

Until 1994 the applicants lived in Yakatarla, Şahverdi and Akören villages, in the districts of Ovacık and Hozat, in Tunceli province, where they own property.

In 1994, security forces forcibly evacuated Yakatarla, Şahverdi and Akören on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Tunceli, Mersin and Bursa where they currently live.

On 14 and 17 May 2002 the representatives of the applicants filed petitions, on behalf of the applicants, with the offices of the Tunceli Governor and the Hozat District Governor requesting permission to return to their villages and compensation for the damage they had suffered.

On 7 June 2002 the State Emergency Department of the Governor’s office in Tunceli sent the following reply to the applicants’ representatives:

The Şahverdi, Yakatarla and Akören villages are being considered under the ‘Return to the Village and Rehabilitation Project’. Thus, the residents of those villages can reside in Hanuşağı, Arslandoğmuş, Burnak, Kızık, Koyungölü, Söğütlü, Topuzlu, Ziyaret, Mollaaliler, Çakmaklı, Cevizlidere, Gözeler, Güneykonak, Havuzlu, Konaklar and Yoncalı villages in Ovacık district or Sarısaltık, Çaytaşı, Karaca, Tavuklar, Karabakır, Geçimli, İnköy, Beşelma, Dalören, Akpınar, Yenidoğdu, Kavuktepe and Türktaner villages in Hozat district.

Your petition containing requests of permission to return to village will be considered under the ‘Return to Village and Rehabilitation Project’.”

On 11 September 2002 the representative of the applicants lodged a petition with the Public Prosecutor’s office in Tunceli complaining about the dereliction of duty by the Tunceli Governor and the Hozat and Ovacık District Governors (görevi ihmal).

On 18 September 2002 the Tunceli Public Prosecutor issued a decision of non-jurisdiction and sent the case-file to the Public Prosecutor’s office at the Court of Cassation.

On 30 September 2002 the Public Prosecutor’s office at the Court of Cassation decided not to start the proceedings into the allegation of dereliction of duty against the Tunceli Governor (dilekçenin işleme konulmaması).

On 23 June 2003 the Tunceli Administrative Council decided not to conduct an investigation into the applicants’ allegations of dereliction of duty against the Hozat and Ovacık District Governors.

On 7 July 2003 the representatives filed an objection with the Malatya Regional Administrative Court against the decision of the Tunceli Administrative Council.

On 2 October 2003 the Malatya Regional Administrative Court rejected the objection.

On 30 October 2003 the Tunceli Public Prosecutor decided not to conduct investigation into the applicants’ allegations against the Hozat and Ovacık District Governors.

On 20 November 2003 the representative of the applicants filed an objection with the Elazığ Assize Court against the decision of the Tunceli Public Prosecutor.

On 4 December 2003 the Elazığ Assize Court rejected the objection.

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

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

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

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

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

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