Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The first two applicants were born in 1939 and 1964 respectively. They are father and daughter. The last two applicants, who are husband and wife, were born in 1951 and 1946 respectively. All the four applicants live in Rivne, Ukraine.

Early on the morning of 24 December 1989, the first applicant and his wife, Ms Nadejda Stepanovna Melnichuk, who was the mother of the second applicant – at that time both citizens of the Union of Soviet Socialist Republics (“USSR”) – were driving through southern Romania, heading home after a trip to the Socialist Federal Republic of Yugoslavia, together with the third and fourth applicants. They were driving in a column of five cars which were transporting fifteen Soviet citizens in total.

At the same time, a Romanian army unit from Craiova had been notified by an unidentified person from the Border Police of Drobeta Turnu Severin that a column of foreign cars was driving from Drobeta Turnu Severin towards Craiova. At the time of the events, the former President Ceauşescu had just been toppled and there were allegedly persistent news reports that terrorists were trying to reinstate the regime.

Suspecting that the foreign cars belonged to the so-called terrorists, a team of soldiers was dispatched by Colonel C. – the commander of the army unit of Craiova, who later became general and commander-in-chief of the Romanian Army – to block the road in the nearby of the village of Brădeşti, on the viaduct named Valea rea. The unit was led by Lieutenant Colonel S. The road was blocked by two armoured vans, between which only a single car could pass.

The column of cars reached the blockade, followed by a local bus. The soldiers asked the passengers several times, in Romanian, to get out of the cars and surrender. As the tourists did not understand what was happening, they did not get out of the cars. During the domestic inquiry, the applicants and the other persons in the cars submitted that the shooting had started without any prior warning. The passengers in the cars started screaming in Russian that they were Soviet tourists. The applicants and the other persons travelling in the column tried to turn back the cars. After a brief pause, the soldiers started shooting again. The first applicant’s wife was shot in the head and the passenger sitting behind her – namely the third applicant – was wounded by bullets, as was the fourth applicant.

Those who were not wounded started to run away from the cars and tried to hide by the side of the road. At that moment a third round of shooting started. One of the five cars caught fire. Then the shooting stopped and the soldiers approached the cars. The first applicant tried to explain that they were tourists.

Several bullets also hit the local bus and wounded a passenger who was going to his workplace in Craiova.

After a while, the first applicant and his wife, together with the third and fourth applicants, were taken to a nearby hospital. The first applicant submits that he was called a terrorist by the Romanian soldiers, who pushed him around.

Ms Melnichuk was operated on the same day but fell into a coma. On 9 January 1990 she was transferred to a hospital in Bucharest, where she eventually died on 8 February 1990. The medical certificate issued in respect of her death stated that it had been caused by wounds inflicted by gunfire.

The second applicant travelled to Bucharest to bring back her mother’s body.

On 9 January 1990 the third applicant, who had been wounded in her spine, was transferred to a hospital in Moscow, due to her serious medical condition. She never recovered completely and is recognised as a disabled person. From a forensic report dated 6 February 1990, it appears that the third applicant needed 25-30 days of medical care.

The fourth applicant, who was shot in his left shoulder, was able to leave hospital and go back home to Rivne on 29 December 1989. From a forensic report dated 6 February 1990, it appears that the fourth applicant needed 8-10 days of medical care.

From the investigation carried out by the Romanian authorities it appears that on this occasion two persons died – the first two applicants’ close relative and B.M.K – and seven persons from the car column were wounded, namely the last two applicants, N.G.S., I.A.L., A.C., S.F.D. and S.K.

On 28 December 1989 the USSR citizens involved in the abovementioned events, including the third and fourth applicants, addressed a complaint to the consular authorities of the USSR Embassy in the Socialist Federal Republic of Yugoslavia. A complaint was also brought on behalf of the first applicant and his wife, who were still hospitalised in Romania and could not personally sign it.

The military prosecutor’s office in Craiova opened a criminal investigation with file no. 211/P/1990.

It appears from documents submitted by the respondent Government that during 1990 several investigative measures were instituted. Some of the victims, including the first applicant and some witnesses were questioned by the investigative authorities between 28 December 1989 and 12 February 1990.

The officer who gave the order to open fire wrote a report on the events which was included in the file.

On 20 February 1990, the USSR Embassy in Bucharest addressed an inquiry to the Romanian authorities concerning the progress of the investigations.

On 27 February 1990, Colonel C. – the commander of the military unit of Craiova, who had given the order for the army intervention at Brădeşti – was questioned as a witness with regard to these events. He stated that, following the phone call received from the Border Police of Drobeta Turnu Severin concerning the column of cars heading towards Craiova, he had supposed (“am bănuit”) that they were terrorists and had ordered them to be stopped before they reach Craiova.

Medical certificates were handed over to the investigation authorities in respect of the wounds inflicted on the tourists. A technical report was drawn up evaluating the damage to the cars involved in the incident.

Statements were taken from the military staff involved in the incident, namely the army unit which had dispatched the team of soldiers to Brădeşti.

Between 11 and 26 April 1990, with the assistance of the USSR Embassy, all the victims were interviewed in their country by a Soviet prosecutor and their statements were handed over to the Romanian authorities on 16 May 1990.

On this occasion, all the victims requested civil compensation for the damaged suffered in the incident.

On 22 August 1990, additional investigative measures were ordered by a military prosecutor, but it appears that none was taken.

By a decision of 14 August 1991, the prosecutor decided not to institute criminal proceedings on the grounds that the shooting had taken place as the result of fortuitous circumstances: the soldiers had been led to believe that the tourists were terrorists, so that when the tourists failed to respond to the order to get out of the cars and surrender, they had given the soldiers an impression of imminent danger.

The above-mentioned decision was automatically subject to review by the relevant Section of the military section of the prosecutor’s office at the Supreme Court of Justice (Secţia Parchetelor Militare, “SPM”). On 28 September 1992, the SPM requested additional investigative measures.

On 11 April 1994, the military prosecutor’s office in Craiova asked SPM for guidance in conducting the impugned investigations.

In a decision of 30 May 1994, the SPM quashed the 1991 decision not to institute criminal proceedings. In so ruling, the prosecutor found that there had been no justification for the order to open fire, taking into account that the tourists were not armed and had not presented any immediate danger. It was emphasised that the second round of shooting had taken place when the cars were stationary and the passengers were trying to hide in the immediate surroundings environment. He considered that the order to shoot had constituted a criminal act and that any fear that the soldiers might have experienced could not have amounted to a circumstance capable of removing criminal liability. It was therefore ordered to institute criminal proceedings against Lieutenant Colonel S. for aggravated murder.

The file was sent back to the military prosecutor’s office in Craiova on 22 June 1994.

On 29 June 1994, the military prosecutor’s office wrote to the commander of the army unit of Craiova asking him to ensure that Lieutenant Colonel S. would be present for questioning on 5 July 1994, and to hand over his last three appraisal reports.

Colonel S. failed to appear before the military prosecutor on 5 July 1994. The appraisal reports had been sent to the military prosecutor’s office. They showed that S. had been upgraded to colonel.

On 13 January 1997, the Military Prosecutor’s Office in Craiova found that it was not competent to decide the case and referred it to the military prosecutor’s office at the Military Court (Tribunalul Militar Teritorial).

On 31 March 1997, the military prosecutor’s office wrote again to the commander of the army unit of Craiova reminding him of his previous letter of 29 June 1994 and asking him to ensure that officer S. be present for questioning on 7 April 1997.

On 7 April 1997, Colonel S. was formally notified of the criminal charge brought against him and gave a statement before the military prosecutor. He stated that he had not initially ordered the shooting but that it had been a spontaneous reaction by another soldier. He also stated that he had joined in the first round of firing, that he had personally spent 14 cartridges and that he had subsequently ordered the second round of firing.

It appears also from the case file that in 1997 Colonel S. underwent a psychiatric evaluation. A medical report was delivered in this respect on 28 May 1997 stating that Colonel S. had a normal representation of the consequences of his acts.

After considering a complaint lodged by Colonel S., by a decision of 12 August 1998 the military section of the prosecutor’s office at the Supreme Court of Justice ordered the partial annulment of the decision of 13 January 1997. It was considered that the criminal investigation should not have been limited to Colonel S., as other persons might also have been involved. The prosecutor indicated that the criminal investigation needed to elucidate all the circumstances of the events and, on the basis of the results thus obtained, criminal proceedings should be initiated against all relevant persons. It was therefore ordered that the criminal investigation should be in rem. It was further indicated that the decision should be communicated to all interested parties.

The decision was communicated to Colonel S, but not to the victims.

Following the decision of 12 August 1998, it appears from the case file submitted by the responding Government that no investigative measures were taken between September 1998 and December 2004.

On 13 January 2005, the military prosecutor’s office at the Military Court ordered the discontinuation of the criminal investigation on the grounds that the criminal liability was timebarred.

On 2 September 2005, A.C. and K.C., two of the victims of the shooting of 24 December 1989, lodged a complaint against the decision of 13 January 2005 with the higher prosecutor.

By a decision of 4 April 2007, the military section of the prosecutor’s office at the High Court of Cassation and Justice quashed the decision of 13 January 2005, indicating that – given the fact that in 1994 criminal proceedings had been instituted against Colonel S. and several procedural acts had been taken in connection therewith – the running of the statutory time-limit had been interrupted and criminal liability was therefore not time-barred. It was also decided that the investigation file should be joined to the main criminal investigation file concerning the December 1989 events, namely case file no. 97/P/1990. Lastly, it decided that the criminal charges previously brought against Colonel S. should be resumed and that investigations continue in this respect.

According to the facts established by the Court in the case of the Association “21 December 1989” and Others v. Romania (nos. 33810/07 and 18817/08, §§ 34-41, 24 May 2011), several criminal investigations into the fatal crackdown on the demonstrations of December 1989, which had initially been conducted separately, were joined to the investigation that was the subject matter of case no. 97/P/1990. In this case, by a previous decision of 7 December 2004, the military prosecutor’s office had ordered the indictment of 102 persons, principally officers from the Army, police and Securitate forces – including some high-ranking ones – for murder (Articles 174-176 of the Criminal Code), genocide (Article 357 of the Criminal Code), inhuman treatment (Article 358 of the Criminal Code), attempts to commit those acts, complicity and instigation in the commission of the above acts and participation in them, acts committed “during the period from 21 to 30 December 1989”. Sixteen civilians, including a former President of Romania and a former Head of the Romanian Intelligence Service, had been also charged.

A letter of 22 May 2009 from the military prosecuting authorities indicates that 126 decisions to discontinue proceedings, issued in the separate investigations, were set aside and the relevant files joined to case no. 97/P/1990. After the initial decisions to discontinue proceedings had been set aside, investigations concerning several hundred victims who had been killed or injured during the period from 21 to 30 December 1989 in various areas of the country were also joined to case no. 97/P/1990.

In a previous letter of 5 June 2008, the head prosecutor of the military prosecutor’s office at the High Court of Cassation and Justice indicated that during the period from 2005 to 2007, 6,370 persons had been questioned in case no. 97/P/1990. In addition, 1,100 ballistics reports had been prepared, more than 10,000 investigative measures had been instituted and 1,000 onsite inquiries had been conducted. He also stated that “among the reasons for the delay [in the investigation], mention should be made of the repetitive measures... concerning the transfer of the case from one prosecutor to another..., the fact that the prosecutors did not promptly inform the injured parties about the decisions to discontinue proceedings... and the fact that the investigation had been reopened several years after the persons concerned had filed their complaints...; the lack of cooperation on the part of the institutions involved in the crackdown of December 1989..., the extreme complexity of the investigation... given that the necessary investigative measures had not been conducted immediately after the impugned homicides and ill-treatment...”.

The above-cited letter mentioned another reason for the delay, namely decision no. 610/2007 of the Constitutional Court of 16 July 2007, which withdrew jurisdiction to conduct investigations in case no. 97/P/1990 from the military prosecuting authorities at the High Court of Cassation and Justice and transferred it to the civil prosecutors, that is, to the prosecutor’s office at the High Court of Cassation and Justice. In the opinion of the head of the military prosecutor’s office, as stated in the above-cited letter of 5 June 2008, the transfer of the case was sufficient to cause new delays in the proceedings, given the significant volume of the case file, the complexity of the case and the time that had elapsed since the events under investigation.

By a decision of 15 January 2008, the military prosecuting authorities at the High Court of Cassation and Justice decided to sever the investigation concerning the sixteen civilian defendants (including a former President of Romania and a former Head of the Romanian Intelligence Service) from the investigation involving military personnel, and to relinquish its jurisdiction in favour of the prosecutor’s office at the High Court of Cassation and Justice.

According to a press release issued on 10 February 2009 by the Public Information Office at the High Council of the Judiciary, the President of the Council intended to ask the Judicial Inspection Board to identify the reasons which had prevented the criminal investigation from being conducted rapidly.

In August 2008, the applicants petitioned the Ministry of Foreign Affairs of Ukraine and the General Prosecutor Office in order to get information about the investigation. Their petition remained unanswered.

Two subsequent decisions of 18 October 2010 and 15 April 2011 mentioned by the Government, but not submitted to the Court, were delivered by the Romanian authorities. These decisions were not communicated to the applicants.

According to the Government, on 18 October 2010 the military prosecutor in charge of the investigation decided to discontinue the proceedings in respect of the events that had taken place on 24 December 1989 in Brădeşti. On 15 April 2011, the aforementioned decision was also quashed and a new case was registered with the prosecutor’s office at the High Court of Cassation and Justice under no. 706/P/2011.

54 According to the information submitted by the Government, the investigations are still pending.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)

Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani

The applicant was born in 1962 and lives in Podgorica, but is currently detained at the Institute for Execution of Criminal Sanctions (Zavod za izvršenje krivičnih sankcija; “IECS” hereinafter) in Spuž.

On 19 February 2011 the applicant was detained on suspicion that he had committed a murder.

On 21 February 2011 the High Court (Viši sud) in Podgorica issued a detention order against the applicant. It is clear from the case file that the applicant’s detention was extended on 16 March 2011, 17 May 2011 and 18 July 2011. The decisions of 17 May and 18 July 2011 are in the case file. The decision of 17 May 2011 specified that the detention would last “until a further decision of the court” (ima trajati do dalje odluke suda). The decision of 18 July 2011 specified nothing in this regard.

On 16 May 2011 the applicant was indicted for murder.

On 23 September 2011 the applicant approached the prison authorities requesting that he be released in the absence of any decision extending his detention after 18 September 2011.

The same day the applicant was served with a copy of a decision of 22 September 2011, sent by fax. The copy was neither signed nor stamped. The decision, in its reasoning part, specified as follows:

“On 16 May 2011 the High State Prosecutor in Podgorica lodged an indictment Kt.br. 29/11 against [the applicant] for the criminal offence of aggravated murder under Article 144 § 1 (1) and (4) of the Criminal Code.

[The applicant] was detained pursuant to decision Kri.br. 151/11 issued by the investigating judge of this court on 21 February 2011, which detention was extended by decisions of this court’s panel, Kv. Br. 268/11 of 16 March 2011 and Kv. Br. 472/11 of 17 May 2011.

The three-judge panel (krivično vijeće) has, on its own motion, within the meaning of Article 179 § 2 of the Criminal Procedure Code, examined further detention of [the applicant] and found as follows:

- the detention [of the applicant] should be extended pursuant to Article 175 § 1 (1) and (4) of the Criminal Procedure Code.

Notably, given that [the applicant] is indicted for an aggravated murder pursuant to Article 144 § 1 (a) and (4) of the Criminal Code, and in view of the seriousness of the criminal offence for which he could be sentenced to between 10 and 40 years of imprisonment, and especially in view of the fact that the accused committed the said criminal offence on 17 February 2011 at around 21.30, after which he fled the crime scene, and that the authorised police officers of the Police Directorate – Podgorica Unit deprived him of liberty on 19 February 2011 at 13.00, these are the reasons, in view of the panel, justifying the extension of detention pursuant to Article 175 § 1 (1) of the Criminal Procedure Code.

In the opinion of this panel [the applicant’s] detention should be extended also pursuant to the detention basis as provided in Article 175 § 1 (4) of the Criminal Procedure Code, given that [the applicant] is charged with aggravated murder under Article 144 § 1 (1) and (4) of the Criminal Code, and having in mind that the provided sentence is between 10 and 40 years of imprisonment, the first condition for the extension of detention under Article 175 § 1 (4) of the Criminal Procedure Code is fulfilled, that is that the provided sentence for the criminal offence is 10 years or more. Furthermore, in this particular case there are particularly qualifying circumstances of the criminal offence at issue due to the manner in which it was committed or its consequences, which are reflected in the fact that [the applicant], as it transpires from the case-file, [...] in an insidious manner and for material gain, deprived X of his life [...] by shooting him at close range in the chest and in the back with an automatic gun several times, inflicting on him numerous injuries and causing his immediate death, after which he fled, and according to this panel the aforementioned established facts and circumstances, in their entirety, represent extraordinary circumstances indicating that the [applicant’s] release would threaten public order and peace, which reasons justify the extension of detention.”

On 26 September 2011 the applicant appealed, complaining about the manner in which the decision had been served on him and claiming that his detention had ended on 17 September 2011, that is two months as of the last extension of detention. The same day the applicant was served with the stamped and signed decision of 22 September 2011.

On 29 September the applicant filed another appeal.

On 4 October 2011 the Court of Appeals (Apelacioni sud) in Podgorica dismissed both appeals. It established that the decision delivered by fax was identical to the original which was signed and stamped. It further considered that the applicant had been served with a decision bearing no signature or stamp by an obvious mistake, which did not make the decision unlawful or cause a violation of his human rights guaranteed by the Constitution and the Convention. One of the judges involved in the ruling was S.V.

By 4 November 2011 the applicant filed a constitutional appeal, submitting a number of complaints, one of them being that S.V. should have been excluded from the bench given that she was related to the representative of the injured party.

On 12 January 2012 the Constitutional Court (Ustavni sud) in Podgorica quashed the decision of the Court of Appeals and ordered that the case be re-examined. The Constitutional Court quashed the said decision on the ground that S.V. had indeed to be excluded from ruling on the applicant’s appeals as she was the sister of the injured party’s representative. In view of this, the court did not consider it necessary to examine the other complaints.

On 25 January 2012 the Court of Appeals, upon the remittal by the Constitutional Court, dismissed the applicant’s appeals. This decision was not submitted to the case-file. From the subsequent decision of the Constitutional Court (see paragraph 18 below), however, it transpires that the Court of Appeals held, in particular, that: (a) the applicant’s detention had not ended on 17 September 2011, as the previous detention order had not specified how long the detention would last and the statutory time-limit of two months was not mandatory (see paragraphs 33 and 34 below); and (b) the absence of the stamp and signature on the detention order did not make it unlawful.

On 22 March 2012 the applicant filed a constitutional appeal complaining that his detention had not been extended within the statutory time-limit of two months, that the copy of the relevant decision had not been signed and stamped, and that the presumption of innocence had been violated by the High Court’s decision. He relied, inter alia, on Articles 5 and 6 of the Convention.

On 20 April 2012 the Constitutional Court dismissed the applicant’s constitutional appeal. It considered in particular that the relevant legislation limited the duration of the detention to three years after the indictment, and that there was no other limitation in that regard. The courts had a duty to examine every two months if reasons for detention persisted and, depending on the circumstances, extend it or revoke it. There was no obligation on the courts to specify how long the detention would last, given their obligation to control the duration of the detention every two months. However, these statutory time-limits were not mandatory and the fact that the decision had been issued after two months and four days could not therefore be decisive for concluding that the applicant’s right to liberty was violated. The court also held that the High Court and the Court of Appeals had not stated that the applicant was guilty but that it transpired from the case-file and the disputed decisions that the applicant had been charged with the relevant criminal offence. The court did not address the complaint about the lack of a stamp and signature on the copy of the decision extending the detention on 22 September 2011.

It is clear from the case-file that the above decision of the Constitutional Court was not dispatched before 18 May 2012.

On 22 March 2013, as submitted by the Government, the High Court issued a first-instance decision on the charges against the applicant. They did not provide a copy thereof. There is also no information in the case-file as to whether the criminal proceedings against the applicant have ended in the meantime and if so what the outcome was.


Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra

The applicant, Mr Fănică Tucaliuc, is a Romanian national, who was born in 1950 and lives in Bucharest. He was represented before the Court by Ms Diana-Elena Dragomir, a lawyer practising in Bucharest.

The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs.

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

On 21 October 2003 the National Anticorruption Prosecutor’s Office decided to commence a criminal prosecution against the applicant, a colonel in the Romanian army and employee of the Ministry of Defence, for abuse of office and bribe-taking. He was subsequently indicted and on 31 March 2011 the Bucharest County Court convicted him of the above-mentioned crimes and sentenced him to seven years’ imprisonment.

The applicant’s appeal against this decision was partially allowed on 2 April 2012 by the Bucharest Court of Appeal which decided to reduce his sentence to five years’ imprisonment.

The applicant filed an appeal on points of law (recurs) against the decision of the Bucharest Court of Appeal. Among other requests, he claimed before the High Court of Cassation and Justice (“High Court”) nonpecuniary damage in compensation for the excessive length of the proceedings.

In its judgment of 30 January 2014 the High Court took note of the length of the proceedings, acknowledging that it had exceeded the reasonable time requirement and breached the provisions of Article 6 of the Convention in respect of the applicant. It further held that, in order to remedy this situation, the applicant’s sentence would be reduced to three years although the punishment for the crimes of which the applicant was convicted was between five to seventeen years’ and three to fifteen years’ imprisonment respectively. The High Court also mentioned that it was not competent to examine the applicant’s request for non-pecuniary damage arising out of the excessive length of the proceedings but that such a request could be addressed by the applicant to the civil courts.

The High Court further decided to suspend the execution of the applicant’s sentence, having in mind the timeframe that had elapsed from the date the crime was committed - a period of time in which the applicant had been of good behaviour and taking into account the fact that he had been held in pre-trial detention for eleven months - a period sufficient for him to understand the gravity of his acts. The elements analysed under the issue of the length of the proceedings were also taken into consideration for this decision.

The relevant Romanian legal provisions on the issue of length of criminal proceedings are described in the case of Vlad and Others v. Romania (nos. 40756/06, 41508/07 and 50806/07, §§ 62-63, 68, 70-72 and 75, 26 November 2013).


CASE OF SALAKHBEKOV AND ABUKAYEV v. RUSSIA

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

In 2008 the applicants applied for recalculation of the social benefits they were entitled to as persons who took part in the clean-up operation at the Chernobyl nuclear disaster site. Their claims were granted by domestic courts.

Further developments in their cases are summarised in the Appendix.


CASE OF IBRAHIMOV AND OTHERS v. AZERBAIJAN

Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Article 6-3-b - Adequate facilities;Adequate time;Article 6-3-c - Defence through legal assistance) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Síofra O’Leary;Yonko Grozev

The applicants were born in 1988, 1989 and 1977 respectively. The first and third applicants live in Baku, and the second applicant lives in Khirdalan.

The youth group Committee for Protection of Rights of Young Political Prisoners (“Gənc Siyasi Məhbusların Hüquqlarını Müdafiə Komitəsi”) decided to hold a demonstration at around 5.30 p.m. on 22 May 2011 at the Seaside Boulevard in Baku. They did not notify their plan to the relevant authority, the Baku City Executive Authority (the BCEA).

According to the applicants, the demonstration was intended to be peaceful and was conducted in a peaceful manner. The participants, a group of ten to twelve persons, were demanding the release of young persons arrested during some previous demonstrations.

The applicants attended the demonstration, but shortly after it had begun the police started to disperse it. According to the applicants, as soon as they noticed the police approaching they attempted to run away and leave the place of the demonstration but police officers followed and caught them. All three applicants were arrested by police officers V.I. and R.G. at around 5.30 p.m. and were taken to police station No. 39 of the Sabail District Police Office.

Police officers V.I. and R.G. stated the following in a report (raport) submitted to a superior police officer:

“... at around 5.30 p.m. at the Seaside Boulevard ... a group of young persons attempted to hold an unauthorised [demonstration] by shouting out loud, and disturbed people. When we wanted to calm down those persons they ignored us. ... We ... brought them to police station no. 39. ...”

According to the applicants, they were questioned at the police station.

Between 6.15 p.m. and 6.30 p.m. on the day of the arrest, “administrative-offence reports” (inzibati xəta haqqında protokol) were issued by police officer T.R. in respect of all three applicants. The reports stated that at 5.30 p.m. on 22 May 2011, by deliberately failing to comply with the lawful order of the police, the applicants had committed an administrative offence under Article 310 of the Code of Administrative Offences (“the CAO”).

All three applicants refused to sign the respective administrative-offence reports, which contained pre-printed texts declaring that “[the arrested person] was familiarised with the report” and “the rights and obligations under Articles 371, 372, 374, 377, 379 and 410.4 of the CAO of the Republic of Azerbaijan were explained”.

Subsequently, police officer T.R. prepared “administrative-arrest reports” (inzibati qaydada tutma haqqında protokol) with respect to the first and second applicants.

According to those administrative-arrest reports, copies of which were submitted to the Court by the Government, the first and second applicants had been subjected to administrative arrest at 7 p.m. on 22 May 2011. The reports also stated that the applicants had been released on the same date, without specifying the time of the alleged releases, and contained signatures of the first and second applicants. However, all three applicants maintained that they had been kept in police custody overnight.

According to the applicants, they were never served with copies of the administrative-offence reports or with other documents in their case files. They were not given access to a lawyer after the arrest or while they were kept in police custody.

On 23 May 2011, the day after his arrest, the first applicant, Mr Agasif Ibrahimov, was brought before the Sabail District Court.

According to the applicant, the hearing, which began at 12.40 p.m., was very brief and members of the public, including human rights defenders and journalists, were not allowed to attend, even though the court had not taken a formal decision to close the hearing to the public.

The only witness questioned during the court hearing was police officer R.G., who testified as follows:

“At around 5.30 p.m. on 22 May 2011 ... a group of persons attempted to hold an unauthorised [demonstration] by shouting out loud, and disturbed people. When we wanted to calm down those persons, among them [the applicant], they disobeyed a lawful police order. Then we ... brought them to police station no. 39 where administrative-offence reports were issued in their respect. One of them was [the applicant].”.

The court found that the applicant had failed to stop participating in the unauthorised demonstration. The court convicted him under Article 310.1 of the CAO and sentenced him to seven days’ “administrative” detention.

The applicant lodged an appeal before the Baku Court of Appeal, arguing that his conviction was in violation of his rights because the demonstration in which he had participated had been peaceful. He also complained that his arrest had been unlawful and that the hearing before the first-instance court had not been fair. He requested the Baku Court of Appeal to quash the first-instance court’s decision.

The applicant was represented before the Baku Court of Appeal by a lawyer of his own choice.

On 31 May 2011 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court, stating that its findings had been correct.

The Court of Appeal also noted that at the first-instance court hearing the applicant had refused the assistance of a State-funded lawyer and had decided to defend himself in person.

On 23 May 2011, the day after his arrest, the second applicant, Mr Emin Farhadi, was brought before the Sabail District Court.

According to the applicant, the hearing, which began at 12.30 p.m., was very brief and members of the public were not allowed to attend, even though the court had not taken a formal decision to close the hearing to the public.

The applicant was not represented by any lawyer. According to the applicant, he was not given an opportunity to hire a lawyer of his own choice. According to the transcript of the court hearing, he refused the assistance of a State-funded lawyer and decided to defend himself in person.

The applicant stated before the court that he was not guilty of disobeying a lawful order of a police officer and that he had participated in the demonstration as an observer.

The only witness questioned during the court hearing was police officer R.G. The statement that he gave against the second applicant, Mr Emin Farhadi, was similar to his statement against the first applicant, Mr Agasif Ibrahimov (see paragraph 20 above).

The court found that the applicant had failed to stop participating in the unauthorised demonstration. The court convicted him under Article 310.1 of the CAO and sentenced him to eight days’ “administrative” detention.

On 23 May 2011, the day after his arrest, the third applicant, Mr Jamil Hajiyev, was brought before the Sabail District Court.

The applicant was not represented by any lawyer. According to the applicant, he was not given an opportunity to hire a lawyer of his own choice and he refused the assistance of a State-funded lawyer because he believed that such assistance would be of a formalistic nature.

The applicant stated before the court that he was not guilty of disobeying a lawful order of a police officer. He further emphasised that he and other participants of the demonstration had protested peacefully, and that they had been holding photos of arrested young persons, without uttering any slogans. The applicant also stated that he had run away as soon as he saw the police approaching and had boarded a taxi, and that police officers had stopped that taxi and had forced him out.

The only witness questioned during the court hearing was police officer R.G. The statement that he gave against the third applicant, Mr Jamil Hajiyev, was similar to his statement against the first applicant, Mr Agasif Ibrahimov (see paragraph 20 above). R.G. also confirmed that Mr Jamil Hajiyev had tried to escape by taxi, and that the police officers had stopped that taxi.


CASE OF R & L, S.R.O. AND OTHERS v. THE CZECH REPUBLIC

Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Karel Jungwiert;Mark Villiger

The first applicant is a limited liability company with its registered seat in Brno. It owns a five-storey tenement house in Brno, which it bought in 1994 for 1,450,000 Czech korunas (CZK 52,920 euros (EUR)). There is a shop on the ground floor and one flat on each remaining floor. In three of these four flats the rent was regulated. The rent in those three flats was CZK 2,037 (EUR 74), CZK 2,007 (EUR 73) and CZK 1,392 (EUR 50.80) respectively per month. The monthly rent for the fourth flat was fixed at CZK 5,200 (EUR 190).

On 10 February 2004 the first applicant sued the State for damages in the amount of CZK 229,563 (EUR 8,378) corresponding to the difference between the regulated rent and the usual rent in the given area as estimated by the first applicant for the period between February 2002 and end of January 2004.

On 22 December 2004 the Prague 1 District Court (obvodní soud) dismissed the first applicant’s action. It held that it was not possible to award damages under the State Liability Act since failure to enact deregulating legislation could not be qualified as an “incorrect official procedure” within the meaning of the Act. Moreover, the adoption by the Ministry of Finance of decrees nos. 01/2002 and 06/2002 could not be qualified as an incorrect official procedure either.

On 28 February 2006 the Prague Municipal Court (městský soud) dismissed an appeal by the first applicant. It held that the impossibility of reaching an agreement on deregulating legislation in Parliament could not be qualified as an “incorrect official procedure” within the meaning of the State Liability Act. The court added that in respect of the period from February 2002 to 20 March 2003 rents had been regulated by Government Decree no. 567/2002. Although that decree had subsequently been repealed by the Constitutional Court, the latter’s judgments were not of retroactive effect and thus previous contractual relationships remained unchanged. Accordingly, there was no legal basis for compensation for that period.

On 24 October 2007 the Supreme Court (Nejvyšší soud) dismissed an appeal on points of law lodged by the first applicant. It found that the legislative procedure in Parliament could not be described as an “administrative procedure” under the State Liability Act and that it was impossible to engage liability on the part of the State for the result of voting in Parliament.

On 27 November 2008 the Constitutional Court (Ústavní soud) dismissed a constitutional appeal lodged by the first applicant as manifestly ill-founded, holding that actions for damages against the State had a subsidiary character and that the applicant company should have started by bringing an action for rent increase.

The applicant owns a tenement house in Prague consisting of eleven flats and three non-residential premises. The application concerns seven of these flats for which the applicant collected regulated rent in the total amount of CZK 398,196 (EUR 14,533) for the period between 1 January 2002 and 31 December 2004 while the usual rent in the given locality would have amounted to CZK 1,757,160 (EUR 64,130) according to an expert report commissioned by the applicant. The applicant and his sister acquired the house under the restitution law in 1992. The applicant’s sister later transferred her share to the applicant.

On 4 January 2005 the applicant sued the State for damages in the amount of CZK 1,358,964 (EUR 49,597) corresponding to the difference between the regulated rent and the usual rent in the given locality for the period between 1 January 2002 and 31 December 2004.

On 12 October 2005 the Prague 1 District Court dismissed the applicant’s action. It held that it was not possible to qualify the failure by Parliament to enact deregulating legislation as an “incorrect official procedure”. While the previous regulations had been repealed by the Constitutional Court, this did not produce a retroactive effect and thus no damages could be awarded for the period of time during which they were in force. The applicant should have brought an action against the tenant requesting the court to determine the amount of rent according to the local and material conditions (nahrazení projevu vůle nájemců k určení výše nájemného, které by odpovídalo všem místním i věcným podmínkám).

On 2 February 2006 the Prague Municipal Court dismissed an appeal by the applicant. It held that the impossibility of reaching an agreement on deregulating legislation in Parliament could not be qualified as an “incorrect official procedure” within the meaning of the State Liability Act. As regards the period until 20 March 2003, the court added that rents had been regulated by Government Decree no. 567/2002. Although it had subsequently been repealed by the Constitutional Court, the latter’s judgments did not have retroactive effect and thus the previous contractual relationships remained unchanged. Accordingly, there was no legal basis for compensation for that period.

On 28 February 2008 the Supreme Court declared inadmissible an appeal on points of law lodged by the applicant.

On 30 October 2008 the Constitutional Court dismissed the applicant’s constitutional appeal as manifestly ill-founded, holding that actions for damages against the State had a subsidiary character and that the applicant should have started by bringing an action for rent increase.

The applicant owns a tenement house in Brno consisting of seven flats and two non-residential premises. She became the sole owner of the house on 11 July 2004 as a result of restitution (in March 1992), gifts (in October 1994), inheritance (in September 1997) and purchases from five other family members (July 2004). She collected regulated rent for three of those flats in the total amount of CZK 251,484 (EUR 9,178) for the period between 1 July 2002 and 31 August 2005 while the usual rent in the given locality would have amounted to CZK 1,158,059 (EUR 42,265) according to an expert report commissioned by the applicant. The applicant occupied one flat and let two flats to her son and daughter.

On 14 October 2005 the applicant sued the State for damages in the amount of CZK 906,575 (EUR 33,087) corresponding to the difference between the regulated rent and the usual rent in the given locality for the period between 1 July 2002 and 31 August 2005. On 19 January 2006 she withdrew her claim in respect of an amount of CZK 166,077 (EUR 6,061).

On 9 May 2006 the Prague 1 District Court dismissed the applicant’s action. It held that it was not possible to qualify the failure by Parliament to enact deregulating legislation as an “incorrect official procedure”. The applicant should have brought an action against the tenant requesting the court to determine the amount of rent according to the local and material conditions.

On 24 January 2007 the Prague Municipal Court upheld that decision. In respect of the period up to 20 March 2003, it held that rents had been regulated by several regulations. Although these had subsequently been repealed by the Constitutional Court, its judgments were not of retroactive effect and thus the previous contractual relationships remained unchanged. As a result, no compensation could be awarded for that period. As regards the subsequent period, the court held that the impossibility of reaching an agreement on deregulating legislation by Parliament could not be qualified as an “incorrect official procedure” within the meaning of the State Liability Act. State responsibility could however flow from general liability under civil law. Yet, it would be very difficult to establish a causal link between the damage and an unconstitutional failure on the part of the State to enact deregulating legislation. Referring to the Constitutional Court’s judgments nos. Pl. ÚS 20/05 and I. ÚS 489/05 (see paragraphs 105 and 118 of Annex II), the court held that as of 2 June 2006 at the latest the applicant could have brought an action pro futuro. As regards the period between 20 March 2003 and 2 June 2006 the Municipal Court stated that the applicant should have brought an action against the tenants for forfeiture of the proceeds of unjust enrichment. Given that the litigation stemmed from an unlawful situation which was to a substantial extent caused by the State’s inactivity, and the persisting evolution of the case-law, which had not yet been settled, the applicant was exempted from payment of the costs of the proceedings incurred by the State both for the first-instance and the appellate proceedings.

On 26 March 2008 the Supreme Court declared inadmissible the applicant’s appeal on points of law. It found that the legislative procedure in Parliament could not be described as an “administrative procedure” within the meaning of the State Liability Act and that it was impossible to engage liability on the part of the State for the result of voting in Parliament.

On 21 April 2008 the applicant lodged a constitutional appeal. She explained, inter alia, that an action against the State was the only avenue she could use. It was not possible to bring an action against the tenants. First of all, the lower courts had been dismissing such actions between 1 July 2002 and 31 August 2005, which was the period to which her claim related. Moreover, that judicial practice corresponded to the established case-law of the Supreme Court (see paragraph 167 of Annex II) and the result of any action against the tenant was thus fully foreseeable. Further, the possibility of bringing an action for rent increase had been created by the Constitutional Court only in its landmark judgment no. Pl. ÚS 20/05 of 2 June 2006. In any event, contrary to the opinion of the Municipal Court, it was not possible to use that avenue in the applicant’s case. Referring to the Constitutional Court’s judgment no. I. ÚS 489/05 (see paragraph 118 of Annex II), the applicant argued that her only option was to bring actions against the tenant pro futuro whereas her action concerned the past.

On 18 December 2008 the Constitutional Court dismissed a constitutional appeal by the applicant as manifestly ill-founded, holding that actions for damages against the State had a subsidiary character, and the applicant should have started by bringing an action for rent increase.

On 15 May 2003 the applicant bought a tenement house in Domašov nad Bystřicí at public auction. The rent was regulated in nine out of the twelve flats. The rent in one of the flats was set at CZK 1,081 (EUR 39) per month. The non-regulated rent for a smaller flat was CZK 2,000 (EUR 73). Had there been no rent regulation, then rent in a flat affected by the control would be CZK 2,541 (EUR 93) a month (calculation based by compering yield per sq. m. of regulated and non-regulated flat).

On 26 April 2006 the Olomouc District Court (okresní soud) ordered the tenant of that flat to vacate it. On 30 August 2006 the applicant filed a request for enforcement of that decision.

On 9 October 2007 he lodged an action for payment of CZK 14,650 (EUR 530) corresponding to the outstanding rent for the period between 1 July 2006 and 30 April 2007. On 14 December 2007 the District Court dismissed that action on the ground that the tenant had actually vacated the flat on 30 June 2006.

In 2008 the applicant lodged an action for payment of CZK 14,514 (EUR 530) for the period between 1 February and 31 July 2006 corresponding to the difference between the regulated rent and the rent that he considered usual in the given locality.

On 28 April 2008 the District Court dismissed the applicant’s claim. It referred to the case-law of the Constitutional Court and the Supreme Court and held that rent could be increased only pro futuro. Moreover, the applicant’s action could not be granted on the basis of forfeiture of the proceeds of unjust enrichment either because the parties had concluded a valid tenancy agreement.

On 4 December 2008 the Ostrava Regional Court (krajský soud) upheld the District Court’s analysis and dismissed an appeal by the applicant.

On 21 May 2009 the Constitutional Court dismissed a constitutional appeal lodged by the applicant, holding that landlords were not entitled to claim retroactively from tenants the difference between the regulated rent and the usual rent in the given locality. It noted that previous opinions to the effect that it was possible to lodge retroactive claims against tenants had been overruled by its Opinion no. 27/09 of 28 April 2009.

The applicant owns numerous other tenement houses where the rent was regulated. He introduced separate domestic proceedings regarding those houses and ultimately lodged eleven other applications (nos. 25463/05, 32090/06, 36658/09, 36687/09, 38720/09, 39868/09, 43750/09, 46064/09, 53957/09, 3968/10, 8463/10) before the Court where he complains of the rent regulation scheme in the Czech Republic.

The applicants own a tenement house in Prague consisting of six flats, one of which was rented under the rent-control scheme. The rent was set at CZK 2,396 (EUR 87) per month. The applicants bought the house in May 2001 for CZK 4,000,000 (EUR 145,985).

On 17 July 2003 the applicants informed the tenants of an increase in rent that would newly be CZK 9,000 (EUR 328) monthly, which the tenants refused to pay. On 22 September 2003 they sent a letter of reminder to the tenants, who, on 5 October 2003, again refused to pay the increased rent.

On an unspecified date the applicants brought the case before the Prague 8 District Office, which was empowered to determine the level of the rent according to the rent agreement (dohoda o užívání bytu). On an unspecified date the District Office had declined jurisdiction and informed the applicants that they should bring an action before the courts. The final reminder before the court action was sent to the tenants by the applicants on 19 June 2005.

On 30 June 2005 the applicants thus lodged an action for payment of the increase in rent for the period from July 2003 to December 2004 amounting to CZK 118,874 (EUR 4,338).

On 22 February 2006 the Prague 8 District Court dismissed their action.

On 25 October 2006 the Prague Municipal Court upheld the first-instance judgment. Referring to the case-law of the Constitutional Court, and especially its judgment no. I. ÚS 489/05 of 6 April 2006 (see paragraph 118 of Annex II), it held that rent could not be increased retroactively.

On 8 April 2009 the Supreme Court declared inadmissible an appeal on points of law lodged by the applicants.

On 16 July 2009 the Constitutional Court, referring to its Opinion no. 27/09 of 28 April 2009, dismissed a constitutional appeal lodged by the applicants, holding that a rent increase could be claimed only pro futuro from the date of lodging the action against the tenants.

On 2 January 2008 the applicants also lodged a claim for damages against the State under the State Liability Act for the period from July 2004 to December 2006. The proceedings are pending before the Prague 1 District Court.


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

Krzysztof Wojtyczek;Ledi Bianku;Paul Mahoney

The applicant was born in 1952 and lives in Mielec.

The applicant is married with two children. Prior to his early retirement he had been employed for seven years and had paid his social security contributions to the State.

On 9 January 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 his application for a pension, the applicant submitted, among other documents concerning his son’s health condition, a medical certificate issued by a specialist doctor. The certificate stated that the child (born in 1990) suffered from chronic inflammation of upper respiratory tract and that he was in need of his parent’s constant care.

On 19 January 2001 the Rzeszów Social Security Board issued a decision granting the applicant the right to an earlyretirement pension. The pension amounted to PLN 1,155.05 brut which at that time constituted about 54% of the average brut salary in Poland.

The Social Security Board initially suspended the payment of the pension until 26 January 2001 due to the fact that the applicant was still working on the date of the decision. The applicant’s employment relationship was terminated with effect from 26 January 2001 and the pension was paid as of that date.

The applicant was issued with a pensioner’s identity card marked “valid indefinitely” and he continued to receive his pension without interruption until the date of the revocation of the right.

On an unspecified date the Rzeszów Social Security Board asked the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s son required the permanent care of a parent. On 6 June 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 10 and 11 June 2002 the Rzeszów Social Security Board issued 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 Social Security Board revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an earlyretirement pension under the scheme provided for by the 1989 Ordinance.

On 24 June 2002 the applicant appealed against the respective decisions divesting him of the right to an early-retirement pension. He submitted that he should receive the benefit because his child required constant care, as confirmed by the medical certificate attached to the original application for a pension. Moreover, the applicant alleged that the revocation of his retirement pension was contrary to the principle of vested rights.

On 4 December 2003 the Tarnobrzeg Regional Court (Sąd Okręgowy) amended the challenged decisions and granted the applicant the right to the EWK payment with effect from 1 June 2002.

The Social Security Board appealed against the firstinstance judgment.

On 22 April 2004 the Rzeszów Court of Appeal allowed the Board’s appeal, amended the challenged judgment and dismissed the applicant’s appeals lodged against the Social Security Board’s decisions. The domestic court held that the applicant had been rightfully divested of his right to a pension under the scheme provided by the 1989 Ordinance as he had not satisfied the requirement of necessary permanent care.

On 14 December 2004 the Supreme Court refused to examine the cassation appeal.

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

Throughout the whole period of receiving the EWK pension the applicant did not work.

On 1 August 2002 the applicant started to work in a publishing house where he continued work until 4 February 2004. The applicant subsequently worked between 23 February and 22 September 2004, 2 and 17 October 2004, 1 February and 30 April 2006, 4 August 2006 and 18 July 2008. Between 18 October 2004 and 31 January 2006 the applicant worked on the basis of a civil law contract. Between 23 May and 3 August 2006 he remained unemployed.

On 8 July 2008 the applicant was granted a disability pension until 31 August 2011. The pension amounted to approx. 40% of the average net salary.

The Government submitted that the applicant’s gross annual income was PLN 3,690 (approx. EUR 971) in 2002, PLN 10,168 (approx. EUR 2,365) in 2003, PLN 8,801 (approx. EUR 1,956) in 2004, PLN 10,404 (approx. EUR 2,600) in 2005, PLN 11,349 (approx. EUR 2,910) in 2006, PLN 19,494 (approx. EUR 5,118) in 2007, PLN 14,137 (approx. EUR 4,040) in 2008, PLN 33,306 (approx. EUR 7,570) in 2009 and PLN 9,399 (approx. EUR 2,350) in 2010.

The Government further submitted that the applicant’s wife had a gainful employment. In the years 1999-2007 she earned around 100% of the average gross salary in Poland. As of 2007 she acquired the right to an oldage pension but she continued to work, so her income after 2007 rose to 110-120% of the average gross salary.

The applicant has a daughter who also worked since 2004. She earned between 40 and 60% of the average gross salary in Poland in the years 2004-2009.


No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant was born in 1964. When lodging his application, he was detained in Saarbrücken Prison.

In July 2007 the Zweibrücken Public Prosecutor’s Office was informed by a person, to whom they had guaranteed confidentiality and whose identity had remained unknown throughout the proceedings, that the applicant was selling large amounts of amphetamine.

The Trier police therefore mandated another police informer, S., who was equally guaranteed confidentiality by the Zweibrücken Public Prosecutor’s Office and was supervised by police officer K., to test the veracity of these allegations. S. visited the applicant in his motorbike shop on 18 July 2007 and pretended being interested in buying a motorbike. He visited the applicant in the shop for the second time on 14 August 2007. On that occasion, the applicant told S. that a former member of his motorbike club “Bandidos” had cheated the club and offered S. 1,000 euros (EUR) if he would beat up that person. When the applicant showed S., who had disclosed his acquaintance with arms, his firearms and asked S. whether he could supply him with weapons, S. asked the applicant whether he could sell him amphetamine. The applicant asked in reply how much S. would need and what price he would be ready to pay. S. offered to pay EUR 4,000 per kilogram of amphetamine of a good quality. The applicant agreed to the offer and handed over to S. a sample of amphetamine which he had stored in a drawer of his garage. On 24 August 2007 S. again visited the applicant and offered purchasing 500 grams of amphetamine from the applicant, in accordance with the instructions from his supervising police officer. The applicant agreed to sell that amount of drugs at a price of EUR 2,000. He had carried a loaded revolver during all of his meetings with S. and had threatened S. with the revolver once, accusing him of being a traitor.

On 27 August 2007 the Trier District Court authorised the participation of an undercover police officer, C., supervised by police officer L., in the operation.

On 28 August 2007 S. bought 500 grams of amphetamine for EUR 2,000 from the applicant, who carried a loaded revolver during the transactions, handed it over to C. who was awaiting him at a different place and brought the money supplied by C. to the applicant.

On 20 September 2007 S. again visited the applicant in his garage and told him that he would like to buy further drugs from him. The applicant thereupon asked S. whether he would need one kilogram or more. S. ordered 500 grams of amphetamine, in accordance with his instructions from police officer K., and announced that he would need higher amounts of drugs in the future. The applicant agreed to the proposals.

On 4 October 2007 S. again bought 500 grams of amphetamine for EUR 2,000 in the presence of C. from the applicant, who carried a loaded revolver during the transaction. As advised by police officer K., S. then asked the applicant to supply a larger amount of drugs. The applicant explained that he could supply as much as S. wanted, five or ten kilograms. S. thereupon ordered 6.5 kilograms of amphetamine for which he was to pay EUR 26,000.

On 16 October 2007 S. and C. bought the amount of amphetamine ordered from the applicant; the drugs were supplied by B. The applicant was arrested after having handed over the drugs to S. and while collecting the money from C. The police further seized 10 grams of amphetamine in the applicant’s flat and numerous guns in his garage.

B., having been informed of his right to remain silent, confirmed to the police after his arrest and subsequently before the investigating judge that he had participated in the drug transaction on 16 October 2007 and supplied the amphetamine seized on that day.

On 31 July 2008 the Trier Regional Court convicted the applicant of two counts of drug trafficking in not insignificant amounts while carrying a weapon and another count of drug trafficking in not insignificant amounts and sentenced him to five years and six months’ imprisonment.

The Regional Court established the facts as summarized above (see paragraphs 6-13 above). It further took note of the fact that the applicant, a full member of the motorbike club “MC Bandidos Chapter Kaiserslautern”, had previously been convicted, in particular, by the Trier Regional Court of trafficking in drugs (amphetamine) on 9 February 1989 and sentenced to three years and ten months’ imprisonment.

The Regional Court observed that the applicant and his co-accused B. had not made any submissions on the drug charges during the trial hearing. Its findings of fact were based on the credible statements made by S. to his supervising police officer K. and, in respect of the last offence, on the confession made by co-accused B. during the investigation proceedings.

In the hearing, the Regional Court, having rejected the applicant’s objection to hearing police officer K. as a witness, had questioned K. as a witness giving hearsay evidence on the observations made by police informer S. It had not been possible to summon and question S. in person as the Rhineland-Palatinate Ministry for the Interior had issued a declaration dated 10 April 2008, supplemented on 21 July 2008 following the trial court’s proposal of alternative methods of questioning, blocking the disclosure of his identity (Sperrerklärung). These declarations, running to twelve and four pages respectively, had been read out in the hearing.

The Ministry had argued in these declarations that it was necessary to keep the identities of police informer S., and also of undercover police officer C., secret in order to protect their life and limb and that of their relatives. In the Ministry’s submission, there was a high risk that the applicant would organise a violent revenge against them. He was a member of the motorbike club “MC Bandidos, Chapter Kaiserslautern”, which was well-organised worldwide and known for violent, ruthless acts against persons considered as traitors. Members of the motorbike club were currently suspected of involvement in homicides. The applicant, on whose premises a considerable number of firearms had been found, had himself offered S. EUR 1,000 for assaulting a former member of the motorbike club who was suspected of having deceived the club in the course of business transactions. Further perpetrators who had been involved in the drug deal might equally possess firearms and had not been arrested yet. The disclosure of the identity of the police informer and of the well-trained undercover agent would further compromise the police’s ability to investigate serious crimes with their help or that of other informers in the future.

The Ministry further stated that there were no means other than the non-disclosure of their identity for the Land to protect the physical integrity of the police informer and of the undercover agent. In particular, keeping their names or places of residence secret or excluding the public and the applicant during their interrogation in court would be insufficient to protect them, owing to the presence of the applicant’s lawyers and possibly of contact persons of the applicant observing the court building at the day of the trial. The Ministry also rejected the Regional Court’s proposal to have S. questioned by a commissioned judge outside the main hearing as the applicant’s lawyers would be present during such a hearing and might pass on information to the applicant allowing the latter to detect S.’s identity. Likewise, a video conference including acoustic and optical shielding, as equally proposed by the Regional Court, could not exclude S.’s and C.’s identification by their figure, by their gestures and language used or by the disclosure of details permitting the detection of their identity in the course of questioning by the defence.

In the Regional Court’s view, the reasons given in the Ministry’s declarations for the non-disclosure of S.’s, and also C.’s, identities were neither arbitrary nor obviously unlawful.

The Regional Court noted that police officer K. had questioned S. on 26 October 2007 and had reported S.’s statements in the hearing. It had then given the defence the opportunity to put questions to S. in writing. On 25 June 2008 K. again questioned S., submitting to him the court’s questions and those of B.’s defence counsel, and again reported S.’s statements in court. Both police officer K.’s and S.’s detailed statements without contradictions were credible, having regard also to the fact that it had only hearsay evidence before it. The Regional Court noted, in particular, that the applicant had contested having carried a loaded revolver during the first two transactions, claiming that the object in his pocket had been a multi-tool. It found that S. had already mentioned on 26 October 2007 that the applicant had carried a weapon. When again being questioned by police officer K. on the court’s request on 25 June 2008, S. had given more details in respect of the revolver and had convincingly explained when and how he had seen that it had been loaded, which demonstrated the veracity of his statements.

The Regional Court found that the statements made by the police informer could be used as evidence. Under the well-established case-law of the Federal Court of Justice (the Regional Court referred to Federal Court of Justice, file no. 1 StR 221/99, judgment of 18 November 1999, BGHSt 45, pp. 321 ss., see paragraph 34 below), the use of police informers was permitted to combat serious crimes which were difficult to investigate, such as drug trafficking. It was not relevant in that context whether the applicant had been incited by a police informer to commit an offence as, in any event, this would not lead to an exclusion of evidence. In that event, the court would only have to state in the reasons of its judgment that there had been a breach of the right to a fair trial under Article 6 § 1 of the Convention and would have to mitigate the penalty as a result thereof.

The Regional Court considered that S.’s submissions had been supported by considerable further circumstantial evidence. In particular, the nature and amount of drugs trafficked was proven as S. had handed the drugs in question over to the police immediately after the respective transactions. Moreover, in respect of the last offence, the applicant and B. had been caught in the act and arrested at the scene of the crime. Furthermore, B. had initially confessed to the (third) offence in the investigation proceedings and his statements had been reported in the hearing by the police officer and the investigating judge who had questioned him at the time.

Finally, both B.’s confession and S.’s statements concerning the second offence had been confirmed by the submissions made by undercover police officer C. to police officer L. who supervised him. L. had testified as a witness giving hearsay evidence in the hearing, the court having dismissed the applicant’s objection to hearing him. The identity of C. had remained unknown as he had equally been covered by the Ministry’s declaration blocking a disclosure of his identity. The investigations by an undercover police officer had been lawful under Articles 110a and 110b § 2 of the Code of Criminal Procedure (see paragraphs 31-32 below), as they had been authorised by the Public Prosecutor’s Office and the District Court and had been indispensable in order to further investigate suspicions of drug trafficking by the applicant.

When fixing the sentence, the Regional Court considered as aggravating factors the frequency of the offences as well as the applicant’s prior conviction for drug trafficking. It took into account as mitigating elements that the drug transactions had been under police surveillance from the outset and that the drugs could not, therefore, freely circulate on the market. Moreover, the applicant had trafficked in so-called soft drugs of average quality only. Furthermore, the applicant was disabled at a rate of 70 per cent and therefore particularly susceptible to suffer from detention.

In the Regional Court’s view the applicant had not, however, been unduly incited by police informer S. to commit the offences in question, within the meaning of the case-law of the Federal Court of Justice (the Regional Court again referred to the Federal Court of Justice’s judgment of 18 November 1999, cited above, BGHSt 45, pp. 321 ss.). The applicant had already been involved in drug trafficking and been predisposed to sell drugs prior to his meeting with the police informer. This was proven, in particular, by the fact that he had supplied S. with an amphetamine sample already when they discussed drug transactions for the first time. Moreover, he had indicated on that occasion that he could supply S. with larger amounts of drugs. The Regional Court found in that context that the price offered by S. to the applicant (EUR 4,000) was the average price for a kilogram of amphetamine of average quality in the region. Furthermore, the applicant had previously been convicted of drug trafficking. As his offences had not therefore been the result of unlawful police incitement, there was no ground for mitigating the sentence on that account.

On 1 August 2008 the applicant lodged an appeal on points of law with the Federal Court of Justice. He claimed, in particular, that his right to a fair trial under Article 6 §§ 1 and 3 (d) of the Convention had been breached as he had been unable to cross-examine police informer S. and undercover agent C., on whose submissions his conviction had essentially been based. Moreover, S. had unduly incited him to sell drugs. The evidence obtained by the incitement should therefore have been excluded at his trial.

On 12 December 2008 the Federal Court of Justice dismissed the applicant’s appeal on points of law against the Regional Court’s judgment as ill-founded.

On 19 January 2009 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He complained, in particular, that the judgment of the Regional Court, confirmed by the Federal Court of Justice, had breached his right to a fair trial under the Basic Law. He had been unduly incited by the prosecution authorities to commit the offences he had later been found guilty of. Therefore, the evidence obtained by police incitement should have been excluded at his trial (he referred to the European Court of Human Right’s judgment in the case of Pyrgiotakis v. Greece, no. 15100/06, 21 February 2008 to support his view). Moreover, throughout the proceedings, he had not had an opportunity to question the police informer and the undercover police officer.

On 3 September 2009 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 164/09). The decision was served on the applicant’s counsel on 10 September 2009.


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra

The applicant was born in 1983 and lives in Krasnodar.

The applicant had a press card issued to him as a photographer, stating that he was a “correspondent at Agency.Photographer.ru”. According to the applicant’s submissions, he also prepared various texts for publication in print and Internet media outlets on an occasional basis.

In August 2009 the applicant and Ms D. travelled to Abkhazia to prepare a report with photographs on, as he described it, “the life of this unrecognised republic”.

On 27 August 2009 they returned to Russia, arriving on foot at the Adler customs checkpoint. The applicant presented his Russian passport, press card and a customs declaration, stating that he had electronic information devices (a laptop and flash memory cards) in his luggage. The laptop was his own property, however, he also used it for professional purposes.

The applicant and D. were examined by Officer K. In his report to his superior, drawn up at 10.40 a.m. on 27 August 2009, he stated that in view of the applicant’s answers to questions and because of his behaviour, neither of which have been specified to the Court, there was a need to verify the information contained in the applicant’s customs declaration by way of an “inspection procedure” (see paragraph 31 below) in respect of the items in his bag and backpack and to “apply the measure for minimising risk as per profile no. 55/1000000/11062008/00228 ...”.

The Government have submitted to the Court a written statement from K., which reads as follows:

“Following the customs control measure of an interview and given [D.’s and the applicant’s] behaviour and the nature of their professional activities, a supposition/assumption (предположение) arose that they might have banned printed and/or audio- and video-material with extremist content in their bags ... Since [the applicant] noted in his declaration that he had electronic storage devices, I made a written report to the acting chief officer of the customs checkpoint concerning the need for carrying out an inspection of [the applicant’s] bags in the framework of the risk management system and for involving Officer B., an IT specialist. The inspection was approved by the chief officer by way of his handwritten approval on my report ... The chief officer issued an order for an inspection and authorised B. and myself to use the sampling procedure ... The above-mentioned supposition/assumption was based on the presence of a folder labelled “Extremist” in the laptop ... Data from it was copied on the same day [on the spot] ... to DVD RW disks, which were then sealed in a plastic bag ... [The applicant], B. and two attesting witnesses were present ... The sampling report contained a detailed description of the data that was copied, including the names of the folders that had been copied, their number and the number of files in each folder ... The copying was carried out by Officer B. I did not open or copy any electronic folders or files ... I did not read any ‘correspondence’ (personal correspondence or other text material) ... An order to carry out a forensic examination was issued on 8 September 2009 ... because on 27 August 2009 we had no information about the relevant expert organisations for that type of forensic examination ...”

The Government have also submitted a written statement from Officer B., which reads as follows:

“In accordance with the order for an inspection [no. ...], which required sampling and which also indicated ‘other’, I copied data from [the applicant’s] laptop to six DVD RW disks ... because we had no other type of disks or electronic storage devices ... Since the laptop’s hard drive was some 160 Gb and at the time we had no means for fast copying, I decided only to copy folders with strange names. I did not read any ‘correspondence’ (personal correspondence or other text material) from the laptop.”

According to the Government, after finding in the directory of the laptop an electronic folder entitled “Extremism (for RR)”, which contained a number of photographs, the customs officer decided to copy it and some other folders from the laptop for further examination by an expert, who could determine whether they contained any information of an extremist nature.

The folder contained seven subfolders and 180 files. The applicant made a note in the record, stating that the material had been copied onto rewritable DVD disks (thus technically allowing the data to be modified, including by way of adding data). According to the applicant, the folder had some photographs and a PDF copy of an article entitled “How to incite hatred?” on anti-extremism legislation. The article, written by Ms V., was published in the Russian Reporter magazine in June 2009 and was accompanied by photographs taken by the applicant. The author of the article discussed the controversies and difficulties relating to the interpretation and application of Russian anti-extremism legislation, with reference to four criminal cases under Article 282 of the Criminal Code. According to the applicant, the material that was copied included documents and text concerning two ethnic groups (the Yazidis and the Meskhetian Turks), who were allegedly under pressure from the Krasnodar regional administration. For instance, a folder named “Isolation” contained texts describing the social problems facing thirty-seven Yazidi families (with references to their personal details), who had been discriminated against by the regional administration.

It can be seen from the record of the sampling that thirty-four folders (containing some 480 subfolders with over 16,300 electronic files) were copied. The folders had the following names (mostly in Russian): In motion, Miscellaneous, Desktop, Foto_projects, On the road, Isolation, Drawings, 1 May, 9 May, 14 February, Law, Extremism (for RR).

It appears that the data from the laptop was first copied to a mobile or external hard drive and then recopied to six DVDs. According to the Government, the information was then deleted from the external hard drive. The original data in the laptop was not deleted and remained intact.

According to the applicant, his laptop remained with Officer B. for several hours. Allegedly, the officer read through the applicant’s correspondence in the ICQ messaging program and copied some 26 gigabytes of data, including the applicant’s personal correspondence, personal photographs and FTP-type passwords.

The applicant submitted the following written statement by Ms D. to the Court:

“At 10 a.m. we presented ourselves at the border control and presented our passports ... We were then taken to the customs control area ... There the customs officers asked [the applicant] to hand over his press card; so they were aware that he had one ... Officer K. interviewed us about the purpose of our visit to Abkhazia and our professional and civic activities ... I heard an FSB border officer tell the customs officers about the need for a ‘special check’ of our electronic storage devices ... Seeing a laptop in [the applicant’s] bag, the customs officers expressed their intention to copy all the available information ... I was interviewed (again) about my civic activities, my political views and about [the applicant’s] professional activities ... the type of work done and the publications ...”

On 9 September 2009 the applicant was informed that a report had been commissioned from a criminal forensics expert to determine whether the data copied from his laptop had any prohibited “extremist” content.

In November 2009 the expert organisation returned the DVDs to the customs office, stating that it was not possible to carry out the examination, although it gave no reasons. In December 2009 a report was sought from another expert organisation. Apparently, it concluded that the data contained no extremist material. According to the applicant, the DVDs with his data were handed over to him in November 2011.

In the meantime, the applicant brought judicial review proceedings under Chapter 25 of the Code of Civil Procedure (“CCP”), challenging the adverse acts and actions of the customs officials.

By a judgment of 25 January 2010 the Prikubanskiy District Court of Krasnodar dismissed his claims. The court held as follows:

“Laptops, storage devices, photo- and video-cameras should be considered as ‘goods’ within the meaning of Article 11 of the Customs Code. All goods should be presented for checking by customs, as required under Article 14 of the Code ... The customs authorities are authorised to take samples of goods for examination ... and to use technical devices to speed up the checks ... The data from the applicant’s laptop was copied for the purposes of examination in compliance with Presidential Decree no. 310 on combating fascism and political extremism ... In the circumstances, the fact that the samples taken for examination constituted all the relevant data was justified ...”

The applicant appealed, arguing, inter alia, that the first-instance court’s assessment had not taken into account the requirements relating to Articles 8 and 10 of the European Convention, in particular, the requirement that any interference by a public authority had to be shown to be “necessary in a democratic society” and proportionate to the legitimate aims pursued. He mentioned the Court’s case-law relating to the seizure of printed material and electronic devices, an action which adversely affects the maintenance of professional secrecy. The applicant also argued as follows:

(a) Compliance with Decree no. 310 was not possible without actually reading someone’s correspondence and other personal information, thereby interfering with the constitutional right to the protection of the secrecy of correspondence and other communications. Article 55 of the Constitution only permitted restrictions on people’s rights on the basis of a federal statute; the decree in question was secondary legislation (подзаконный акт) and could not lawfully introduce additional limitations on constitutional rights;

(b) The trial court had mentioned that laptops, flash memory cards and the like were “goods” for the purposes of customs legislation. However, the sampling had been carried out in respect of the information they contained rather than the carriers or containers of the information (“the goods”). Access to that information, however, was only allowed on the basis of a court order, as stated in Article 23 of the Constitution;

(c) In his “written explanations” to the appeal court, the applicant insisted that in Chapter 25 proceedings a public authority had the burden of proving that its acts were lawful and justified. However, the first-instance court had not required the customs authority to cite a specific legal provision authorising its officials to examine electronic data. According to the applicant, the customs authority representative had refused at the hearing to explain the specific content of the risk profile concerning the applicant, referring to the fact that the information in question was classified and was for internal use only. However, a 2004 Instruction by the Federal Customs Authority only authorised a customs inspection where the risk profile in question provided for that type of measure (see also paragraph 37 below).

On 22 April 2010 the Krasnodar Regional Court upheld the judgment, essentially reproducing the lower court’s reasoning as follows:

“Under Articles 403 and 408 of the Customs Code, customs authorities fulfill the tasks and functions assigned to them by federal and other legislation ... and have the authority to apply measures prescribed by the Customs Code for ensuring compliance with customs legislation ...

Article 11 of the Customs Code defines goods (for the purposes of customs legislation) as movable property which is being transferred across the customs border. This includes laptops, memory flash cards, photo-cameras, video-cameras, printed material and the like. Article 14 of the Code provides that all such goods should be subject to customs clearance and customs control. Article 123 of the Code provides that goods should be declared when being transferred across the customs border. Article 124 of the Code provides that the declaration is made by way of presenting a written declaration or otherwise ... The transfer of goods by individuals for personal use is prescribed by Chapter 23 of the Customs Code, and Government decree no. 715 of 27 November 2003 and no. 718 of 29 November 2003. Article 13 of the Code provides that goods which are prohibited from being transferred to Russia must be removed from Russia.

By a letter of 16 July 2008 the Federal Customs Authority listed the goods which are banned from Russian territory ... By a letter of 3 May 2006 the Authority listed the goods that must be declared to customs.

The procedure for and the types of customs checks are described in Chapters 34-37 of the Code. Article 358 of the Code provides that customs checks are based on the principle of selectiveness and, as a rule, should be limited to such forms of control as are sufficient for ensuring compliance with customs legislation ... When selecting the form of control, the risk management approach is applied, which is based on the effective use of resources for preventing violations of the legislation ... Risk is defined as a probability of non-compliance with customs legislation.

When carrying out a customs check, the customs authority is allowed to take samples of goods which are needed for further assessment. The relevant procedure is defined in Article 383 of the Code and Customs Authority order no. 1519 of 23 December 2003. When carrying out a customs check, the authority is allowed to use technical means to limit the time of such checks; the list and procedures for their use are defined in Article 388 of the Code and in Customs Authority order no. 1220 of 29 October 2003 ...

Order no. 677 of 10 November 1995 by the Customs Authority (‘On preventing the transfer of prohibited printed, audio- and video-material across the customs border’) does not contradict the current customs legislation and has not been revoked because the current Customs Code contains Article 13 concerning bans and limitations on the transfer of goods across the customs border ...

In view of the above, the court agrees with the first-instance court that the customs inspection was authorised and carried out within customs control procedures and that the data was copied in line with Russian Presidential Decree no. 310 of 23 March 1995 ... Article 2 of the decree clearly requires the customs authority to ‘arrest and bring to liability persons who disseminate printed, cinematographic, audio-, photo- or video-materials which are aimed at being propaganda in favour of fascism, at inciting social, racial, ethnic or religious enmity; and to take measures for seizing printed material of that kind’ ...

Article 383 of the Code concerning the minimal amount of samples was complied with because the information taken for sampling was not homogenous. Thus when the samples were taken, it was necessary to take the full amount of information from the device ...

In addition, it is noted that under Article 10 of the Customs Code, information received by customs officials may be used exclusively for the purposes of customs legislation ...

Customs officials are not authorised to disclose that information or transfer it to third persons, except as set down in the Code or other legislation ...”

The applicant does not appear to have been prosecuted subsequently in criminal, administrative or other proceedings in connection with the data obtained from his laptop by the customs authorities.