Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court)

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

The applicants were born in 1961, 1964 and 1988 respectively. The first and second applicants appear to have been serving prison sentences in Kosh and Abovyan penitentiary institutions at the time of submission of their application. The third applicant lives in the town of Vardenis, Armenia.

The first and second applicants are husband and wife. The third applicant is their daughter. At the material time they resided in Vardenis, in the Gegharkunik Region of Armenia.

On 8 June 2004 criminal proceedings were instituted on account of the murder of a local girl who was apparently the third applicant’s classmate and whose body was found not far from the applicants’ home.

The first applicant alleges that on the same date he was taken to the Vardenis Police Department where he was unlawfully kept without his arrest being formally recorded. At the police department he was subjected to continual beatings by police officers in an attempt to coerce him to confess to the above-mentioned murder.

On 24 June 2004 the Gegharkunik Regional Court found the first applicant guilty under Section 182 of the Code of Administrative Offences of maliciously disobeying lawful orders of police officers and sentenced him to fifteen days’ imprisonment. The first applicant was found to have used foul language in the street and to have disobeyed the police officers who tried to call him to order.

The first applicant alleges that the above decision was a fake and that in reality he was kept at the police department during that entire period in connection with the above murder. The administrative penalty imposed on him was simply used as a means to legitimise his continued unlawful deprivation of liberty.

The second and third applicants allege that from 8 June 2004 onwards they were also under constant pressure from the local lawenforcement officers, being frequently taken to the police department and pressurised and coerced to confess to the murder or to incriminate each other.

On 30 June 2004 the second applicant, together with a number of other residents of Vardenis, filed a complaint with the General Prosecutor and the Chief of the Armenian Police, alleging that the first applicant had been unlawfully detained since 8 June 2004 in connection with the above murder and that the applicants’ family had been terrorised by the local law-enforcement officers. They further alleged that the second applicant had been invited to the Vardenis Police Department where she was ordered by the Chief of Department, Vi.H., to admit that the first applicant had wanted to rape the victim and that she, having found out about it, had killed the girl out of jealousy. They alleged that the second applicant had been beaten but had refused to confess.

The second applicant alleges that on 8 July 2004 she was invited to the Vardenis Police Department where Chief of Department Vi.H. ordered her to testify against the first applicant. When she refused to do so, she was beaten by V.H. and a number of other law-enforcement officers, including the deputy of the criminal investigation unit, N.H., two officers of the criminal investigation unit, K.N. and K.M., and the Gegharkunik Regional Deputy Prosecutor, F.B. She was beaten on her feet with a baton and when she fainted the police officers would bring her back to consciousness and continue the beating. Thereafter the police officers brought the third applicant to the police department and locked her up in a nearby, dark room infested with rats. They threatened the second applicant that they would rape the third applicant if she refused to confess, after which she confessed to the murder. It appears that the first applicant also confessed to having assisted the second applicant in the murder.

The third applicant alleges that she was taken to the police department on numerous occasions, frequently at late hours, where she was humiliated by the police officers, threatened with rape and pressured to admit that it was the second applicant who had committed the murder and that the motive was the strained relationship between her and the victim. She further alleges that she saw both her father and her mother at the police department and that they bore signs of ill-treatment.

On 9 July 2004 the first and second applicants were formally arrested in connection with the above-mentioned murder. It appears that a confrontation was held between the second and third applicants, during which the second applicant admitted having committed the murder and stated that the third applicant had helped her to dispose of the body.

On the same date the first and second applicants refused the services of a lawyer who had been invited to participate in the case by the investigator. They allege that they did so because they did not trust the investigator’s choice. It appears that the applicants did not request that another lawyer be appointed instead.

The third applicant alleges that on the night from 9 to 10 July 2004 she was kept at Vardenis Police Department in an individual cell which had no lights and was infested with mice.

On 10 July 2004 the second applicant participated in an investigative measure at the scene of the crime which was recorded on film.

On the same date from 9.20 to 10 p.m. the third applicant was questioned as a witness by Gegharkunik Regional Deputy Prosecutor, F.B. She stated that the second applicant had made false statements during the confrontation, which must have been the result of her being drugged. She further stated that the second applicant had not committed the murder and that her behaviour, including her confession and accusations, was strange.

The third applicant alleges that following this interview she was subjected to beatings by the Gegharkunik Regional Deputy Prosecutor F.B. and two other officers of the prosecutor’s office who pulled her hair and then threw her on the floor and started kicking her. On 11 July 2004 the police officers took her home, where she lay in bed motionless for several days until her uncle visited her on 13 July 2004 and made arrangements to have her transferred to Yerevan for a medical examination.

On 12 July 2004 the first and second applicants were formally charged with murder.

On the same date the Gegharkunik Regional Court held a hearing in the first and second applicants’ presence, at which it examined and granted the application seeking to have them detained. Deputy Regional Prosecutor F.B. was present at this hearing. The second applicant was asked by the judge whether she had confessed voluntarily to the murder or had been coerced to do so, to which she replied that no coercion or intimidation had been applied to her during the preliminary investigation and that the confession had been made voluntarily.

On 14 July 2004 the second applicant was transferred from the Vardenis Police Department to the Avobyan detention facility. Upon her admission to the detention facility the second applicant underwent a medical examination and was found to have “bruised feet due to blood vessels being broken as a result of swelling”. It was further recorded that she complained of high blood pressure, pain in the legs and swollen feet.

On the same date the first applicant was transferred to the Kosh detention facility.

On 16 July 2004 the third applicant underwent a medical examination at the Armenia Medical Centre in Yerevan and was found to have:

“Concussion (?), bruising of soft tissues of the head [...], and bruising of soft tissues in the back area and of the left arm...”

On 23 August 2004 the criminal proceedings in their part concerning the third applicant were terminated for lack of evidence of her involvement in the crime.

On 25 August 2004 the first and second applicants requested that a state-appointed lawyer, K., be engaged in the case. The applicants allege that on the same date lawyer K. requested that the first and second applicants be questioned in his presence, but this request was refused.

On 26 August 2004 the investigation was completed and the first and second applicants were granted access to the case file. On the same date both applicants and their lawyer familiarised themselves with the materials of the case, which consisted of four volumes.

On 31 August 2004 the Gegharkunik Regional Prosecutor approved the indictment and the case was transmitted to the Gegharkunik Regional Court for examination on the merits. In the proceedings before the Regional Court the first and second applicants denied their guilt and stated that their confession statements had been made as a result of ill-treatment.

The first and second applicants allege that the hearings at the Regional Court were conducted in an atmosphere of constant disorder, including real threats and verbal and physical abuse towards them and their lawyer by a group of 25 to 30 people, composed of the victim’s relatives and their friends.

In November 2004 lawyer S. of the Helsinki Association NGO was engaged in the case by the first and second applicants, replacing lawyer K. According to the applicants, the hearings continued in the same manner.

On 21 January 2005 the President of the Gegharkunik Regional Court informed the head of the bar association in writing that lawyer S. had failed to appear at the hearing of 19 January 2005 without prior notice. The hearing was therefore adjourned until 25 January 2005. Lawyer S. was notified of this but informed the court by telephone that she refused to participate. The President requested in his letter that measures be taken to ensure her participation or else the court would have to continue the proceedings without her.

On 25 January 2005 lawyer S. applied to the Minister of Justice, complaining about the disorder during the court hearings. She alleged that the applicants’ previous lawyer, K., had been beaten by the victim’s relatives, which precluded his further participation in the case, and that she feared the same would happen to her. She further alleged that the court took no action to prevent the disorder and requested that the case be examined in a different court.

The first and second applicants allege that lawyer S. was forced to miss some of the hearings because of fears for her safety.

On 4 February 2005 the Regional Court found the first and second applicants guilty of murder and sentenced them to nine and fourteen years’ imprisonment respectively. In doing so, the Regional Court examined and dismissed the first and second applicants’ allegations of ill-treatment on the following grounds:

(a) these allegations had been examined by the Gegharkunik Regional Prosecutor’s Office and had been found to be unsubstantiated (see paragraph 60 below);

(b) the first and second applicants, at various stages of the proceedings, had made contradictory statements in connection with these allegations;

(c) the second applicant, having indicated the alleged perpetrators, nevertheless refused to have a confrontation with them during the court proceedings;

(d) on 10 July 2004 the second applicant had participated in an investigative measure at the scene of the crime which was recorded on film and was examined in court: she walked freely and bore no signs of illtreatment;

(e) the first and second applicants admitted their guilt and made no allegations of ill-treatment at the court hearing of 12 July 2004, at which the question of their detention was determined (see paragraph 22 above);

(f) on 13 July 2004 the first and second applicants were filmed for a police television show but made no allegations of ill-treatment to the members of the crew;

(g) when questioned on 14 July 2004 the second applicant refused to comment on the complaints which she had lodged with various authorities prior to her arrest, stating that those had been lodged before her arrest and that the true statements were those which she had made after her arrest;

(h) on 14 July 2004 the first and second applicants were transferred to detention facilities and no signs of ill-treatment were recorded at the time of their admission;

(i) the second applicant raised the allegations of ill-treatment for the first time only on 21 August 2004, more than forty days after her arrest;

(j) the second applicant’s allegations of ill-treatment had been rebutted by the statements made in court by the officer of the criminal investigation unit of the Vardenis Police Department, K.M., who had been questioned as a witness.

On 18 February 2005 lawyer S. lodged an appeal. In her appeal she argued that the applicants had been deprived of effective legal assistance because from 14 December 2004 she had not been able to participate in the hearings because of the constant disorder in the courtroom. She further argued that the applicants’ conviction had been based on coerced confession statements. It appears that the applicants also lodged appeals in which they, inter alia, denied their guilt and stated that their confession statements had been made as a result of ill-treatment.

On 22 March 2005 the examination of the case commenced at the Criminal and Military Court of Appeal. According to the first and second applicants, the hearings before the Court of Appeal were conducted in the same manner as before the Regional Court.

At the hearing on 22 June 2005 a scuffle broke out between the victim’s and the applicants’ relatives. It appears that the victim’s relatives were removed from the courtroom and the hearing resumed. The hearing was then adjourned until 27 June 2005 in order for lawyer S. to have time to prepare her final pleading.

On 24 June 2005 the head of the Helsinki Association submitted the text of lawyer S.’s final pleading to the Court of Appeal by post, claiming that this was necessary in order to ensure the lawyer’s personal and physical safety. He alleged that at the hearing of 22 June 2005 the victim’s relatives had attacked the lawyer. Some of the defendants’ relatives had also been attacked and beaten. He further alleged that during the hearings in both the Regional Court and the Court of Appeal there had been constant threats against the lawyer, but her requests to have her security ensured and the threats recorded in the transcripts had been ignored by the courts.

On 27 June 2005 the hearing was adjourned until 1 July 2005 because of lawyer S.’s absence. In doing so, the Court of Appeal noted the lawyer’s concerns about her security and refusal to participate because of fears for her safety.

On the same date the presiding judge addressed a letter to the head of the bar association, with a copy to lawyer S., stating that the hearing had been adjourned and asking that her future appearance be ensured. The letter further stated that appropriate measures had been taken to ensure the safety of the participants in the trial.

On 29 June 2005 lawyer S. complained to the police about the events of 22 June 2005, alleging that she had been working in such conditions for the last six to seven months and that she was not able to attend the hearing of 27 June 2005 because of fears for her safety.

On 1 July 2005 the Court of Appeal held a hearing. Lawyer S. did not appear. According to the record of the hearing, the court noted lawyer S.’s absence and stated that both the lawyer and the bar association had been informed that the court had taken all possible measures to secure the safety of those participating in the trial and had therefore been asked to ensure the lawyer’s presence. The second applicant stated that she had met with lawyer S. at the detention centre and they had agreed that the lawyer would not appear in court. She therefore wished to dispense with the lawyer’s services and did not wish to have another lawyer. The first applicant similarly stated that he wished the proceedings to continue without the lawyer and that he did not wish to have another lawyer. The court then decided to return lawyer S.’s final pleading on the ground that she no longer represented the first and second applicants.

The applicants allege that the record of the court hearing of 1 July 2005 contains inaccurate statements and does not correspond to reality. Their lawyer was refused, at a later stage, a copy of this record because she was allegedly no longer authorised to represent them and was therefore unable to comment on its accuracy.

On 2 July 2005 the Court of Appeal upheld the first and second applicants’ conviction. The Court of Appeal dismissed their allegations of ill-treatment on the same grounds as the Regional Court adding also that, according to a court-ordered expert medical opinion, the first applicant bore no signs of injury.

On 8 July 2005 lawyer S. visited the second applicant at the detention facility.

On 11 July 2005 lawyer S. lodged an appeal on points of law with the Court of Cassation. In her appeal she argued that the applicants had been ill-treated and their conviction was based on coerced statements. She further argued that the applicants had been deprived of effective legal assistance and an objective examination of their case, because of an atmosphere of constant terror reigning in the courtroom. The Court of Appeal had failed to ensure order and it had been impossible to examine evidence and to submit new evidence in an objective and fair manner because of the repeated scuffles and stressful atmosphere. The conflicts, threats of violence, verbal abuse and scuffles had worsened during the last three hearings in the Court of Appeal. The court, however, had failed to take any measures, which precluded her further participation and even made it impossible to make her final pleading which, as a result, she had been forced to submit by post. The court’s inactivity only encouraged further aggressive behaviour by the victim’s relatives. The applicants’ previous lawyer K. had also been unable to participate in the hearings, which had consequently been held in October 2004 in his absence.

On an unspecified date the second applicant also lodged an appeal on points of law. It appears that in her appeal she argued that she had confessed to the crime as a result of beatings, torture and threats. She further complained that the hearings before the Court of Appeal had been held without a lawyer.

On 14 July 2005 lawyer S. received a letter from the presiding judge dated 1 July 2005 informing her that the first and second applicants had dispensed with her services because of her failure to appear at the hearings of 27 June and 1 July 2005 and returning the text of her final pleading.

On 8 August 2005 lawyer S. lodged a supplement to her appeal of 11 July 2005, expressing surprise about the fact that the text of her final pleading had been returned to her and about the grounds on which it had been returned. She alleged that these actions pursued the aim of concealing the violation of the first and second applicants’ right to defence and the failure to ensure order during the court hearings. She requested that the text of her final pleading be included in the case file. She further requested that protective measures be taken at the hearing before the Court of Cassation in order for her to be able to participate, taking into account the manner in which the hearings had been conducted before the courts of first and second instance.

On 12 August 2005 the Court of Cassation dismissed the second applicant’s appeal. As regards the allegations of ill-treatment, the Court of Cassation stated that these had been thoroughly examined by the Regional Court and the Court of Appeal and had been rightly found to be unsubstantiated. As regards the alleged absence of a lawyer, the court considered these allegations to be ill-founded, finding on the basis of the materials of the case file that the lawyer had been involved in the examination of the case at the Court of Appeal from day one, namely 22 March 2005. As it appeared from the record of the hearing of 1 July 2005, the second applicant later dispensed with the lawyer’s services because of the latter’s failure to appear at the hearings of 27 June and 1 July 2005. Taking this into account, as well as the fact that the second applicant did not wish to have another lawyer, the Court of Appeal accepted this and informed the lawyer in a letter.

As to lawyer S.’s appeal, the Court of Cassation left this appeal unexamined on the ground that the first and second applicants had dispensed with her services and she was no longer authorised to bring an appeal on their behalf pursuant to Section 403 (3) of the Code of Criminal Procedure.

On 21 July 2004 the third applicant lodged a complaint with the Armenian Ombudsman. She stated, inter alia, that on 10 July 2004 she had been roughly pushed into a car and taken by Assistant Prosecutor Va.H. and another law enforcement official to Chief Vi.H.’s office. There Va.H. had started to force her to smoke a cigarette, while continually hitting her on the head with his hand and a bottle, saying that it was she who had committed the murder. When she disagreed, they had proceeded to beat her. At that moment Deputy Regional Prosecutor F.B. had entered the office and slapped her with such force that her teeth hurt. One of the officers said “Bend down, bitch” and pushed her to the floor, then F.B., Va.H. and Investigator G.H. started kicking her like a ball. Va.H. ordered her to undress, saying that he had invited a doctor to check if she was still a virgin. When she refused, he pulled off her jacket. They wanted to undress her but she resisted. Then they brought in her mother and beat her, after which they told her to watch how they would murder her daughter, unless they agreed to confess. Then they let her go but only on the condition that she would not tell anyone that she had been beaten. The next morning she was again taken to the police department, where F.B. started hitting her arms and forcing her to write a confession. Then they brought her mother again and made them sit facing each other. They started beating her mother and ordered her to persuade her daughter to confess. Her mother begged her to do so, adding that she would not recognise her father if she saw him, he was in such a bad state, and that it was not shameful to lie after all the ill-treatment they had endured. She decided to cooperate eventually because of her mother’s pleas.

On 2 August 2004 the second applicant lodged a similar complaint with the General Prosecutor of Armenia. She stated, inter alia, that on 9 July 2004 she had been taken into custody at the Vardenis Police Department by the Chief of Department Vi.H. and Regional Prosecutor F.B. There she had been beaten by Vi.H. and five other police officers in connection with the murder. Her husband had been kept at the police department for about a month, where he had been beaten and his fingernails had been pulled in order to coerce him to confess, which he had refused to do. The same beating and violence had been inflicted on her and her daughter. For three days Chief of Police Department Vi.H. had beaten her and made her sit in water, after which she had agreed to write the confession dictated to her by Vardenis Investigator G.H. and Regional Prosecutor F.B. The second applicant added that she was prepared to repeat her allegations in court in the presence of the perpetrators.

On 10 August 2004 the Ombudsman forwarded the third applicant’s complaint to the General Prosecutor, together with a copy of the medical opinion of the Armenia Medical Centre of 16 July 2004 (see paragraph 25 above).

The above complaints were forwarded by the General Prosecutor to the Gegharkunik Regional Prosecutor’s Office for examination.

On 19, 25, 26 and 31 August 2004 the Senior Assistant to the Gegharkunik Regional Prosecutor, Y.I. (hereby Senior Assistant Y.I.), took statements from the following law enforcement officers in connection with the allegations of ill-treatment: Gegharkunik Regional Deputy Prosecutor F.B, Assistant to the Regional Prosecutor Va.H., Investigator of the Regional Prosecutor’s Office G.H., Chief of the Vardenis Police Department Vi.H., Head of the Criminal Investigations Unit at the Vardenis Police Department S.M., two officers of that unit Y.M. and K.M., and chief of the temporary detention cell at the police department, V.A. They were asked to provide an account of the contested events. In reply to Y.I.’s request to comment on the second and third applicants’ allegations of illtreatment addressed to some of those questioned, they denied having inflicted any violence on the second and third applicants, claiming that the latter had made false statements.

On 30 August 2004 Senior Assistant Y.I. took a statement from the second applicant. She stated that on 9 July 2004 she had been taken by Vi.H. and F.B. to the police department where she had been kept for five days and beaten by Vi.H. and police officers S.M., Y.M., K.M. and V.A. with rubber batons. She had been threatened with a champagne bottle and had been seated on what she believed to be an electric chair. They had demanded that she confess to the murder, otherwise the same would happen to her daughter, husband and other family members. She had then written a confession which was dictated to her. Furthermore, she had met her husband – who had already been in police custody for a month – at a confrontation. His fingernails had been pulled, he had lost weight, and his clothes were stained and torn. When she had asked him what had happened, he had started crying and said that for about a month he had been deprived of sleep and repeatedly beaten. In the meantime her daughter was being beaten in a nearby office. She had not mentioned any of this to the judge at the detention hearing because she had been beaten and for fear that the illtreatment would continue.

On the same date the chief of Abovyan detention facility and the head of its medical unit – apparently upon the inquiry of the Regional Prosecutor’s Office – issued a certificate containing the results of the second applicant’s medical examination of 14 July 2004 (see paragraph 23 above).

On 31 August 2004 Senior Assistant Y.I. decided to refuse the institution of criminal proceedings on the basis of the second and third applicants’ complaints. This decision stated that:

“[The second and third applicants’ complaints of 21 July and 2 August 2004 addressed to the Ombudsman and the General Prosecutor’s Office] have been transferred by the General Prosecutor’s Office to the Gegharkunik Regional Prosecutor’s Office for examination...

The Regional Prosecutor’s Office has examined the above complaints, has verified in detail the presented facts, and has taken statements from the employees of the Regional Prosecutor’s Office and Vardenis Police Department mentioned in those complaints and involved in the criminal case.

The allegations raised in [the second and third applicants’ complaints] concerning having been beaten or subjected to any other kind of violence have been rebutted.

The circumstances have been confirmed by the statements of Regional Deputy Prosecutor [F.B.], Assistant Prosecutor [Va.H.], Investigator of the Prosecutor’s Office [G.H.], Chief of the Vardenis Police Department [Vi.H.], Head of the Criminal Investigations Unit at the said department [S.M.], two operatives of the said unit, [Y.M. and K.M.], and chief of the [temporary detention cell at the police department V.A.]; the certificate of 30 August 2004 of the Abovyan detention facility, according to which [the second applicant] on the date of her admission at [the Abovyan detention facility] (14 July 2004) was examined by a doctor and complained of high blood pressure, pain in her legs and swollen feet. The bruises on [the second applicant’s feet] resulted from swellings which were caused by broken blood vessels.

[The first applicant] has not submitted any complaints concerning having been beaten or subjected to any other kind of violence.”

The applicants were not informed about this decision.

On 8 December 2004 the chief of the Abovyan detention facility and the head of its medical unit addressed a letter to lawyer S., stating that during the medical examination carried out at the time of the second applicant’s admission to the detention facility, namely on 14 July 2004, the second applicant had complained of pain in the legs and swollen feet. The second applicant had been found to have swollen and bruised feet.

On 12 December 2004 lawyer S. applied to the General Prosecutor with a request to have criminal proceedings instituted. The lawyer alleged that all three applicants had been ill-treated and coerced to confess at the Vardenis Police Department in June and July 2004. She stated that the perpetrators had been pointed out by the applicants. The lawyer referred to the results of the medical examinations carried out in respect of the second applicant at the Abovyan detention facility on 14 July 2004 and in respect of the third applicant at the Armenia Medical Centre on 16 July 2004.

It appears that on 23 December 2004 the General Prosecutor’s Office sent a letter to lawyer S., informing her that the first and second applicants had not been ill-treated by the employees of the Gegharkunik Regional Prosecutor’s Office and the Police Department.

On 25 January 2005 lawyer S. re-applied to the General Prosecutor with the same request, claiming that no reply had been received to her previous request of 12 December 2004.

On 31 January 2005 the General Prosecutor’s Office sent a letter to lawyer S. with identical content.

On an unspecified date lawyer S. contested the actions of the General Prosecutor’s Office, including the two above-mentioned letters, before the courts on behalf of all three applicants. The lawyer complained about the ill-treatment that had been inflicted on the applicants in the period between 8 and 12 July 2004, and indicated the names of the perpetrators, including the Chief of the Vardenis Police Department, Vi.H. and the police officers of that department, Y.M., K.M. and V.A. She alleged that the Regional Prosecutor and the investigative team headed by him were aware of these acts but showed indifference and even facilitated the coercion to obtain prosecution evidence.

On 25 March 2005 the Kentron and Nork-Marash District Court of Yerevan left the lawyer’s appeal without examination. The District Court found that a decision had been adopted on 31 August 2004 whereby the institution of criminal proceedings had been refused. According to the prescribed procedure, this decision could be contested before a higher prosecutor or the court of appeal.

On 28 March 2005 the third applicant lodged an appeal against this decision. She alleged, inter alia, that she and the other two applicants had been subjected to continual ill-treatment in June and July 2004. She herself had been kept at the Vardenis Police Department on the night from 9 to 10 July 2004 and beaten by the employees of the Gegharkunik Regional Prosecutor’s Office, F.B., Va.H., G.H. and G.H. The Regional Prosecutor, A.M., and Chief of Police Department Vi.H. had been aware of this. She had injuries on her head, face and back and had to stay in bed for several days. Only after her uncle came to visit her upon his return from Russia could she be transferred to Yerevan for a medical examination. The third applicant further stated that she had noticed signs of ill-treatment on her mother, such as bruised hands, swollen face and difficulty walking, during the confrontation which had been held between them.

On the same date lawyer S. lodged an appeal with the Criminal and Military Court of Appeal against the decision of 31 August 2004 on behalf of the first and second applicants. In her appeal she argued, inter alia, that neither she nor the applicants had ever been informed about this decision and they had become aware of it only at the hearing before the District Court on 25 March 2005. As regards the substance of this decision, it was adopted by persons who had an interest in the outcome of the case and was based on statements of the alleged perpetrators which lacked credibility. The applicants, however, had never been questioned in connection with their allegations. The lawyer further referred to the numerous complaints lodged by the second and third applicants from June to August 2004 and the results of their medical examinations of 14 and 16 July 2004.

On 11 May 2005 the Criminal and Military Court of Appeal examined jointly both issues and decided to dismiss the appeal against the decision of 25 March 2005 and not to examine the appeal against the decision of 31 August 2004 on the ground that it had been lodged outside the one month time-limit for appeal.

On 25 May 2005 lawyer S. lodged an appeal against this decision on behalf of the applicants.

On 22 July 2005 the Court of Cassation quashed this decision and remitted the case for a new examination on the ground that the Court of Appeal had failed to clarify whether the decision of 31 August 2004 had been duly and timely served on the applicants.

On 7 September 2005 the Court of Appeal decided to quash the decision of 25 March 2005 and to reserve a right to the defence to contest the decision of 31 August 2004, since there was no evidence to show that a copy of that decision had been duly served on the applicants prior to their becoming aware of it in March 2005.

On 23 September 2005 lawyer S. lodged an appeal with the Court of Appeal against the decision of 31 August 2004 on behalf of the applicants.

On 10 November 2005 the Court of Appeal decided to dismiss the appeal. In doing so, the court first confirmed the findings made in that decision and then added that the complaints about ill-treatment had already been examined and dismissed by the Court of Appeal and the Court of Cassation in the course of the criminal proceedings against the first and second applicants.

For a summary of the relevant provisions see the judgment in the case of Virabyan v. Armenia (no. 40094/05, §§ 101-114, 2 October 2012).

Sections 63 and 64 provide that the suspect and the accused have the right to defence counsel and to be questioned in his presence. The suspect enjoys this right from the moment when he is presented with the investigating authority’s decision on arrest, the record of arrest or the decision on choosing a preventive measure, while the accused enjoys it from the moment when the charge is brought.

According to Section 69, defence counsel’s participation in the criminal proceedings is compulsory if, inter alia, the suspect or the accused has expressed such a wish. Defence counsel’s compulsory participation in the criminal proceedings is to be secured by the authority dealing with the criminal case.

Section 72 provides that refusal of a lawyer by the suspect or the accused means his intention is to conduct his defence without the assistance of a lawyer. The suspect’s or the accused’s statement refusing a lawyer is to be entered into a record.

Sections 98 provides that if the authority dealing with the case discovers that, inter alia, the accused or the defence lawyer is in need of protection from any criminal encroachment, it shall take protective measures upon the victim’s request or of its own motion by adopting an appropriate decision. Such measures are compulsory if the victim or his next of kin has received physical threats or threats against his property or if physical violence has been inflicted in connection with his participation in the trial. The victim’s request for protective measures shall be examined by the authority dealing with the case immediately and at the latest within 24 hours. The victim shall be immediately informed about the decision and served a copy.

According to Section 99, protective measures include, inter alia, a warning by the court or the prosecutor of possible criminal prosecution of the person who has made violent or other criminal threats, and measures ensuring the safety of the victim. The person to whom a warning is to be issued shall be summoned by the prosecutor, the investigator or the body of inquiry. Measures ensuring the safety of the victim include, inter alia, taking the victim or his next of kin under personal protection.

According to Section 403 (3), an appeal against a judgment of the Court of Appeal can be lodged by the convicted, the acquitted, their lawyers and lawful representatives, the prosecutor, the victim and his representative.


Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - Respect for private life;Article 8 - Right to respect for private and family life;Positive obligations);Violation of Article 3+13 - Prohibition of torture (Article 3 - Extradition) (Article 13 - Effective remedy;Right to an effective remedy) (Conditional) (Turkey);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Robert Spano

The applicant was born in 1977 and lives in Athens.

While studying in Turkey (1994-1999) the applicant had become a pro-communist and proKurdish political activist. In 1997 he opened a literary café, which was frequented by individuals favourable to such a political stance. In 2000 the Turkish police arrested the applicant, and he was prosecuted for infringing State constitutional order (Article 146 of the Turkish Criminal Code). The applicant was also held in the “white (isolation) cells” in Kandra Prison. He went on hunger strike for 171 days, causing him to develop Wernicke-Korsakoff syndrome, a pathology which can cause irreversible damage to health and prove fatal. Given the threat to the applicant’s life, the Turkish authorities decided to release him.

In 2002 the applicant fled to Greece, where he submitted an asylum application on 15 January 2002. On 18 February 2002 the General Secretary of the Ministry of Public Order, adjudicating at first instance, rejected that application, giving summary reasons.

On 21 March 2002 the applicant appealed to the Ministry of Public Order against that decision. On 29 January 2003, having been summoned to attend the Advisory Board on Asylum, he presented the latter with a number of documents showing that he had suffered torture in Turkey on account of his political opinions, including a medical report drawn up by the Greek Medical Centre for the Rehabilitation of Torture Victims and an Amnesty International document. On the same day the Advisory Board on Asylum issued a favourable opinion in respect of the applicant.

Further to that favourable opinion, under Article 3 § 5 of Presidential Decree No. 61/1999 (on the procedure for the examination of asylum applications), the Minister for Public Order should have taken a decision within twenty-four hours on whether or not to grant the applicant international protection. However, by the date on which the application was referred to the Court, the Minister had not taken any decision and therefore had neither ratified nor rejected the Board’s opinion.

Between 2003 and 2015 the applicant lived in Athens and attended the police station every six months in order to renew his asylum-seeker’s card. Under domestic law that card did not constitute a residence permit and therefore did not secure all the attendant rights: it only allowed the asylum-seeker not to be expelled and to reside in the national territory with “tolerated status” while his application was being examined. More specifically, under domestic law the asylum-seeker was not entitled to engage in an occupation, undertake vocational training, marry, obtain a driving licence, hold a bank account or apply for family reunion.

In 2003, while he was living in Athens, the applicant was joined by his wife from Turkey. However, her presence in Greece only became lawful in 2008, when she obtained a short-term work permit. In 2010 the couple had a son. In 2011 the applicant’s wife returned to Istanbul with the child owing to health problems. The couple divorced in 2012.

Meanwhile, on 5 August 2005, the Turkish Interpol Office had issued an extradition request in respect of the applicant. That request had been based on accusations similar to those used in 2000 which had been assessed by the Greek authorities during the examination of his asylum application.

On 12 March 2013 the applicant was arrested in Patras. On 26 March 2013 the indictment division of Patras Court of Appeal examined the extradition request and unanimously decided to reject it. The division based its decision on the risk run by the applicant of suffering ill-treatment on account of his political opinions, should he be extradited. It further noted that the nature of the offences for which extradition had been requested had only been described vaguely and abstractly in the request submitted by the Turkish authorities.

On 27 March 2013 the public prosecutor appealed to the Court of Cassation against the decision of the indictment division of Patras Court of Appeal.

On 26 April 2013 the Court of Cassation upheld the impugned decision.

The applicant had meanwhile been actively seeking to secure a final decision. He had written to the Ombudsman of the Republic on 21 March and 25 June 2012, and to the Minister for Public Order on 19 November 2013, 16 June 2014 and 27 February 2015.

Furthermore, it emerged from correspondence among a number of different authorities (between police authorities and between the police and other authorities) on 23 February 2007, 16 October 2012, 14 November 2012 and 28 January 2015, that the applicant’s asylum application was still pending before the Minister for Public Order.


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

The applicant was born in 1952 and lives in Hegyesd.

In a trespass dispute, on 15 April 2001 the applicant brought an action before the Tapolca District Court.

After a second-instance decision by the Veszprém County Regional Court and a remittal, the final judgment in the case was adopted by the Supreme Court and served on the applicant’s lawyer on 12 August 2009.


Preliminary objection dismissed (Article 35-3 - Ratione personae);Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Extradition);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Extradition);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Speediness of review);Non-pecuniary damage - award

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano

The applicant was born in 1976 and lives in Murmansk, Russia.

In November 2008 the Murmansk Regional Prosecutor’s Office in Russia instituted criminal proceedings against him on suspicion of fraud. The applicant had been working as a police officer and was suspected of having obtained by fraud a number of sick leave certificates justifying his absence from work.

On 24 November 2008 the applicant arrived in Ukraine.

On 1 December 2008 he was placed on the list of wanted persons by the Murmansk Regional Department of the Interior.

On 3 December 2008 the Oktyabrskiy District Court of Murmansk ordered the applicant’s arrest. On the same date an international arrest warrant was issued.

On 19 April 2010 the applicant was arrested by the Ukrainian police with a view to his extradition.

On 22 April 2010 the Prymorskyy District Court of Odessa (“the Prymorskyy Court”), following an application from the prosecution authorities, remanded the applicant in custody for forty days pending the extradition procedure.

On 29 or 30 April 2010 (both dates are mentioned in different case-file materials) the General Prosecutor’s Office of Ukraine (“the GPOU”) received a request from its Russian counterpart about the applicant’s extradition and the extension of his detention pending extradition. As noted in that request, there were criminal proceedings against the applicant pending in Russia on suspicion of fraud. The extradition request did not contain any further details in that regard, but mentioned that “a detailed description of the charges against [the applicant was] in the enclosed documents”. It is not known what enclosures were attached to the request in question.

It appears from the judicial ruling of 30 July 2010 (see paragraph 25 below) that on 11 May 2010 the GPOU received another request from the Russian prosecution authorities about the applicant’s detention and extradition. There is no mention of that request in any other documents in the case file.

On 19 May 2010 the Prymorskyy District Prosecutor’s Office applied to the Prymorskyy Court for an extension of the applicant’s detention “pending resolution of the issue of his extradition”.

On 21 May 2010 the Prymorskyy Court allowed that application.

On 26 May 2010 the applicant appealed. He complained that he had not been familiarised with the charges against him, that no time-limit for his detention had been set, and that the Prymorskyy Court had announced the contested decision following a hearing at which he had not been present.

On 3 June 2010 the Odessa Regional Court of Appeal examined the applicant’s appeal in a hearing at which two prosecutors were present, but in the absence of the applicant. The prosecutors submitted that the applicant’s extradition to Russia was all but settled and would take place shortly thereafter. Having regard to those arguments and noting that an international arrest warrant had been issued in respect of the applicant, the appellate court upheld the lower court’s decision extending his detention pending extradition.

On 21 June 2010 the Malynivskyy District Prosecutor’s Office applied to the Malynivskyy District Court of Odessa (“the Malynivskyy Court”) for an extension of the applicant’s “extradition detention” pursuant to the legislative amendments to the Code of Criminal Procedure in force since 17 June 2010 (see paragraph 37 below).

On 23 June 2010 the Malynivskyy Court allowed the above application and ordered that the applicant’s extradition detention be extended “pending resolution of the question of his extradition and the actual transfer”.

On 25 June 2010 the applicant appealed against the above ruling. He submitted that the time-limits for his detention remained unspecified, that he was still unaware of the charges against him, that his detention had been unreasonably long and that the court had not taken into account the fact that he had two young children.

On 8 July 2010 the Odessa Regional Court of Appeal allowed his appeal in part. It quashed the aforementioned ruling on the grounds that the respective provision of the Code of Criminal Procedure did not provide for any extension of extradition detention. The case was remitted to the first-instance court for a fresh examination.

On 21 July 2010 the Malynivskyy Court allowed the applicant’s request for a lawyer to be appointed for him. As a result, the hearing was adjourned till 30 July 2010.

On 27 July 2010 the Malynivskyy Prosecutor’s Office lodged a new application with the court for the applicant’s extradition detention pursuant to the amendments to the Code of Criminal Procedure. This time it concerned the imposition of such detention, rather than its extension.

On 30 July 2010 the Malynivskyy Court, following a hearing in the presence of the lawyer appointed for the applicant, allowed the prosecutor’s application. The ruling mentioned that the Russian prosecution authorities had lodged a request for the applicant’s extradition on 11 May 2010, without any reference to the similar request of 30 April 2010 (see paragraphs 13 and 14 above). The court relied on the aforementioned CCP amendments effective since 17 June 2010 and stated that the extradition inquiry case-file materials complied with the applicable legislation. Lastly, the court noted that it had not established any impediments to the applicant’s extradition to Russia.

On 21 August 2010 the applicant complained to the Malynivskyy Court that his detention was unlawful and asked to be released. The case file does not contain a copy of this complaint.

On 30 August 2010 the General Prosecutor’s Office of the Russian Federation sent an updated extradition request in respect of the applicant, of which there is no copy on the case file. It appears that, in addition to the initial fraud charge, six other counts of fraud were imputed to the applicant (see paragraph 28 below).

On 1 September 2010 the GPOU decided to extradite the applicant to Russia in connection with six episodes of fraud but rejected the extradition request in respect of one such episode. That decision was explained by the fact that Ukrainian criminal law normally does not prescribe imprisonment as a penalty for fraud. However, where fraud has been committed repeatedly, it can be punished by imprisonment. In the applicant’s case there were six “repeated fraud” episodes. The GPOU decision referred to two extradition requests relating to the applicant: one of 30 April 2010 regarding one episode of fraud and one of 30 August 2010 regarding six further episodes (see paragraphs 13 and 27 above).

On 10 September 2010 the applicant complained to the Malynivskyy Court that his detention was unlawful and had been unreasonably long. He argued that the Ukrainian authorities had not been diligent in dealing with the extradition requests in his respect, in contravention of Article 5 § 1 (f) of the Convention. The applicant further referred to Article 5 § 4 of the Convention and submitted that his earlier complaint, of 21 August 2010, had never been examined.

On 17 September 2010 the applicant lodged another complaint with the Malynivskyy Court concerning the alleged unlawfulness of his detention and asked to be released.

On 22 September 2010 the Malynivskyy Prosecutor’s Office applied to the Malynivskyy Court for an extension of the applicant’s extradition detention. It referred to the aforementioned decision of 1 September 2010 and noted that the issue of the applicant’s actual transfer back to Russia was being decided.

On 28 September 2010 the court granted that application in a hearing attended by the applicant. It noted that the GPOU’s decision of 1 September 2010 had not been challenged and had come into force. Furthermore, pursuant to the respective prosecutor’s instructions, the applicant was to be transferred to Russia by 29 October 2010. As reported in the minutes of the hearing, the judge read out the applicant’s complaints of 21 August and of 10 and 27 September 2010, and the applicant reaffirmed them. The court ruling did not, however, mention those complaints.

On 30 September 2010 the applicant challenged the above ruling on appeal. He noted that, while the Code of Criminal Procedure provided for extradition detention of up to eighteen months, it did not establish any time-limits for submitting and examining the associated extradition request. Accordingly, the applicant argued that the Ukrainian authorities should abide by the 1993 Minsk Convention, which provided for a one-month time-limit for submitting an extradition request once the person was detained and a maximum two-month extension of that time-limit for supplementing the extradition request if need be (see paragraph 38 below). He emphasised that in his case a duly completed extradition request had not been submitted until 30 August 2010, whereas he had been in detention since 19 April 2010. The applicant therefore argued that he should be released immediately. Lastly, he submitted that the charges against him were ridiculous and that it was in his own interests to go to Russia so that his trial could be completed without delay.

On 8 October 2010 the appellate court, while allowing the applicant’s appeal in part, modified the first-instance court’s ruling as follows: instead of the extension of the applicant’s extradition detention, which was not provided for in the legislation, his continued detention was found to be lawful, since its maximum time-limit of eighteen months had not been exceeded and there were no grounds for the applicant’s release.

On 12 October 2010 the applicant was extradited to Russia.


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

The applicants, Mr Ziver Demir and Mr Nasraddin Demir, who are brothers, are Turkish nationals who were born in 1982 and 1970 respectively and live in Konya. They were represented before the Court by Ms F. Sağlam, a lawyer practising in Ankara.

The first applicant, Ziver Demir, joined the army on 15 April 2002 to perform his compulsory military service in Istanbul. According to the information in the case file, the medical examination conducted prior to his conscription found no medical conditions precluding his admission to military service.

On 6 May 2003, while he was still performing his military service, the first applicant was taken to Gümüşsuyu Military Hospital complaining of coughing, bloody phlegm and weight loss. Following certain medical tests, he was diagnosed with a mild infection and was prescribed a course of antibiotics and cough medicine. He was also given seven days of bed rest and was asked to attend a check-up at the end of that period.

When his condition deteriorated on 14 May 2003, the first applicant was hospitalised at GATA Haydarpaşa Military Hospital, where he was diagnosed with meningeal tuberculosis. He received inpatient treatment at the hospital until 14 April 2004. Following his discharge from hospital, he had physiotherapy at the Turkish Armed Forces Rehabilitation Centre in Ankara and was subsequently given sick leave.

Between 14 and 30 July 2004 the first applicant was readmitted to GATA Haydarpaşa Military Hospital for follow-up treatment.

The neurological report issued by GATA Haydarpaşa Military Hospital on 20 October 2005 found that the first applicant was exhibiting articulation problems resulting from dysarthria, and that he was suffering from dystonia. According to that report, he had also lost the ability to walk.

On 21 October 2005 the Health Council of GATA Haydarpaşa Military Hospital declared the first applicant unfit to continue his military service, owing to his major loss of speech and body function (90 %) as a result of meningeal tuberculosis.

On 31 March 2006 the second applicant, acting on behalf of his brother as his guardian, brought compensation proceedings against the Ministry of Defence before the Supreme Military Administrative Court, claiming pecuniary and non-pecuniary compensation for the damage his brother had suffered as a result of the disease he had contracted during his military service.

On 15 November 2006 the Supreme Military Administrative Court appointed a panel of three neurology experts to determine: the cause of the first applicant’s disease; whether it might have been caused by performance of his military service; and whether there had been any delay or other shortcoming in the medical treatment offered to him.

In their report dated 20 April 2007 the experts confirmed that the first applicant had been declared unfit for military service not because of a pre-existing medical condition, but as a result of meningeal tuberculosis. They further noted that there was no evidence that he had been infected with tuberculosis bacteria prior to his conscription. They also found, however, that since he had not performed his military service in an area where tuberculosis was prevalent, it could not be said that his disease was “service-related”. As for the quality of the treatment offered to the first applicant, the experts stated that they did not have enough information on the tests he had undergone and the initial treatment he had received at Gümüşsuyu Military Hospital, which prevented them from commenting on the adequacy of the medical assistance provided there. The detailed medical records pertaining to the treatment subsequently offered at GATA Haydarpaşa Military Hospital suggested, however, that he had received comprehensive assistance at that hospital, and that there was no evidence of negligence or other shortcomings in his medical care.

Upon receiving the relevant medical files from the Supreme Military Administrative Court, on 10 July 2008 the experts issued an additional report regarding the quality of the treatment provided at Gümüşsuyu Military Hospital. According to the experts, the results of the initial medical tests carried out at that hospital had not pointed to tuberculosis, as the disease had been in its early stages at the time. There was therefore no evidence to suggest an unjustified delay in the diagnosis and treatment of the first applicant’s tuberculosis at Gümüşsuyu Military Hospital.

On 2 September 2008, on behalf of his brother, the second applicant responded to the findings of the expert reports submitted to the Supreme Military Administrative Court. The second applicant stated at the outset that, despite the expert report’s focus on the quality of the medical treatment offered to his brother, he and his brother had no claims regarding the treatment provided following the diagnosis. The basis of the compensation proceedings they had brought before the Supreme Administrative Court was rather that the first applicant, who had been healthy at the time of his admission to military service, had contracted the disease while under the control and protection of the State, a fact which was also supported by the findings of the experts.

On 14 January 2009 the Supreme Military Administrative Court requested information from the Turkish Armed Forces as to whether any other soldiers who had performed their military service with the first applicant had been diagnosed with meningeal tuberculosis. On 12 February 2009 the commander in charge of the brigade informed the court that no other cases of meningeal tuberculosis had been registered at the material time.

By a judgment dated 25 March 2009 the Supreme Military Administrative Court dismissed the second applicant’s claims. Relying mainly on the expert reports in the case file, the administrative court held that there was no evidence to prove a causal link between the first applicant’s illness and the military service. It further found that he had been provided with the necessary medical assistance without delay or fault, which exonerated the administration from any liability in respect of the first applicant.

On 4 May 2009 the second applicant objected to the Supreme Military Administrative Court’s judgment, arguing that the court should have upheld the claim for damages on the basis of the principle of strict liability (kusursuz sorumluluk), bearing in mind that the first applicant had been diagnosed with meningeal tuberculosis while under the control and protection of the State. The second applicant did not contest the court’s finding as to the quality of the treatment offered to his brother.

On 1 July 2009 the Supreme Military Administrative Court dismissed the second applicant’s objection.

On 11 May 2005 the first applicant lodged claims for disability benefits with OYAK, the pension fund of the armed forces, and the Retired Civil Servants’ Fund (Emekli Sandığı).

On 3 June 2005 and 17 October 2006 respectively, OYAK and the Retired Civil Servants’ Fund rejected the first applicant’s claims, holding that he did not qualify for such benefits under the relevant legislation.

In the meantime, on 8 July 2006 the first applicant had applied to the Mehmetçik Foundation for some financial assistance. The fund had been set up to, inter alia, provide support for wounded and disabled soldiers. According to the information in the case file, the Mehmetçik Foundation did not respond to the first applicant’s application.

At the material time, the relevant provisions of the Turkish Armed Forces Health and Fitness Regulation (Regulation no. 86/11092 of 24 November 1986 – Türk Silahlı Kuvvetleri Sağlık Yeteneği Yönetmeliği) provided:

Section 5

“The initial medical examination of [persons to be conscripted] shall be carried out at the time of their final draft ... by two physicians (one may be a civilian) in the following manner:

1) Their psychological and physical condition and internal organs are reviewed carefully, their heart rates and blood pressures are checked ... The size of their chest cavities during inhalation and exhalation, and any illnesses or disorders, are recorded.

2) Those whose [medical condition] remains inconclusive after the medical examination, and those who require observation, are referred to the nearest military hospital.”

Section 7

“The medical examination of those whose illnesses and disorders went undetected during the initial medical examination, and those who fell ill after their initial medical examination but before their draft ... shall be carried out at military hospitals or in units or institutions that have at least two physicians.”

Section 9

“... Military physicians who are in charge of the final draft shall inform the nearest government physician of any contagious diseases they may encounter.”

In accordance with the same regulation, in the event of an illness or disability being discovered during the medical examinations, necessary measures were taken to arrange for the postponement of military service or for sick leave. The illnesses and disabilities in question were set out in a list annexed to the regulation (Hastalık ve Arızalar Listesi), which included various types of tuberculosis.

In accordance with section 57 of the Turkish Armed Forces Internal Service Law (Law no. 211 of 10 January 1961 – Türk Silahlı Kuvvetleri İç Hizmet Kanunu), in force at the material time, the physical and psychological condition of soldiers had to be surveyed and protected by the unit commanders and military physicians. Moreover, in accordance with section 61 of the same Law, privates and non-commissioned officers were to undergo general medical examinations at the time of their admission to and discharge from the military. These examinations were to be repeated in each quarter of the first six months, and then every six months for the remainder of service. The commanders would monitor and check the general medical condition of the soldiers according to the results of these examinations.

Further details regarding the general system for protecting the physical and psychological integrity of conscripts may be found in the judgment of Abdullah Yılmaz v. Turkey (no. 21899/02, §§ 3239, 17 June 2008).


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in 1959 and lives in Cheboksary. He is a former head of the civil law department in the Cheboksary State University.

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

On 28 February 2004 baby V. was born. One month later her mother, H., sued the applicant to establish his paternity and to receive alimony. A genetic study confirmed the applicant’s paternity in respect of V.; however, a medical study concluded that the pregnancy “could not have occurred naturally”.

On 7 December 2004 the Moskovskiy District Court in Cheboksary held a hearing with the participation of the applicant and Ms H. and rejected her claim. On 31 January 2005 the Supreme Court of the Chuvashiya Republic quashed the District Court’s judgment and remitted the matter for a new examination.

On 17 October 2005 the District Court gave judgment in favour of H. It was quashed on appeal by the Supreme Court on 14 December 2005 in particular on the ground that the parties had not been informed of the date and place of the hearing in which genetics experts had been cross-examined.

In March 2007 the applicant was arrested on suspicion of large-scale bribery. He was detained in remand prison IZ-21/1 in Cheboksary.

On 15 March 2007 the District Court sent a letter of request (судебное поручение) to the director of the remand prison, asking him to clarify the applicant’s position on the merits of the dispute and to ascertain whether he agreed to having the matter examined in his absence or wished to appoint a representative. On 20 March the director interviewed the applicant who declared his wish to take part in the proceedings and to defend himself in person. The applicant also claimed that he possessed new evidence he wished to submit to the court. On 26 March the District Court refused the applicant leave to be present at the hearings on the ground that the Code of Civil Procedure made no provision for bringing detainees to courts.

On 4 April 2007 the District Court held the hearing in the presence of Ms H., as well as Mr K. and Ms U. who represented the applicant. The judgment of the same date was given in Ms H.’s favour. It mentioned that the applicant was held in a remand prison, that he did not recognise the paternity and that he had “previously given similar testimony before the court”.

On 16 May 2007 the Supreme Court rejected the applicant’s appeal. It held that the applicant’s absence from the hearing did not entail a violation of his rights because he had been represented and had previously given testimony to the court.

On 9 June 2007 the applicant was released on bail.

On 27 March 2008 the Moskovskiy District Court decided that he had breached the terms of the bail by exercising pressure on witnesses, issued a detention order and put the applicant’s name on the list of fugitives from justice. The applicant was not present at the hearing and could not be immediately re-arrested.

At about 11 p.m. on 8 April 2008 three police officers showed up at the entrance of the applicant’s residence. They had been allegedly tipped off that the applicant was there. As it happened, the applicant received in-patient treatment at the infections centre but his daughter was inside.

She did not open the door to the police immediately and told them that her father was in a hospital. According to her, the police began banging at the door and threatened her to break in. She was thus compelled to open the door. The police entered the flat, inspected all the rooms, opened closets and boxes, lifted the sofa and bed, and then left.

On the following day the applicant was arrested and placed in custody.

On 24 April 2008 the Supreme Court found that the detention order of 27 March 2008 was not justified. In its view, the District Court had wrongly attached decisive weight to the statements by witnesses who had not mentioned any actual threats emanating from the applicant. The Supreme Court quashed the detention order and released the applicant.

The applicant complained to a prosecutor about the unlawful actions of the police on 8 April 2008. On 16 May 2009 the prosecutor refused to institute criminal proceedings, finding that no criminal offence had been committed.

The applicant then sued the Ministry of Finance for compensation in respect of an unauthorised search of his home carried out by the police. The District Court heard a number of witnesses. The applicant’s daughter insisted that the police officers’ presence in the flat had lasted as long as two and a half hours. The officer K. testified that he had entered the flat with the consent of the applicant’s daughter and that he had stayed inside no longer than two or three minutes. He had not searched the flat or opened closets. S., a relative who was present at the scene, stated that the police had entered the flat with the daughter’s consent, that they had “moved beds, looked under the carpets, displaced closets and paintings, gone into the basement”.

By judgment of 29 October 2009, the Leninskiy District Court rejected the applicant’s claim. Citing section 11 of the Police Act and section 8 of the Operational-Search Activities Act, the District Court held that the officers had acted lawfully, on the basis of the detention order of 27 March 2008, and that they had the right to enter the applicant’s flat because they had information that he might have been at home. Since the Russian law only established the right to compensation in case of unlawful actions, the applicant’s claim was dismissed.

On 9 December 2009 the Supreme Court upheld the District Court’s judgment on appeal.

On 17 April 2009 the Moskovskiy District Court found the applicant guilty of forcing students to pay bribes into the account of his law firm in exchange of passing grades and gave him a custodial sentence. On 2 July 2009 the Supreme Court upheld the conviction on appeal.

The applicant sued the Ministry of Finance for compensation in connection of his unlawful detention from 9 to 24 April 2008.

By judgment of 27 November 2009, the Leninskiy District Court rejected his claim, noting that the applicant had been ultimately convicted in the criminal proceedings and given a custodial sentence and that the Supreme Court had quashed the detention order as being “unjustified” rather than “unlawful”. In the latter case, no compensation was payable.

On 11 January 2010 the Supreme Court rejected the applicant’s appeal.


The applicants are Mr Milan Zarubica (“the first applicant”), VARAN CHEMICALS LTD (“the second applicant”) and LENAL PHARM LTD (“the third applicant”).

The first applicant is a medical doctor and a Serbian national who was born in 1968, and is presently serving a prison sentence in the Sremska Mitrovica Penitentiary. The second and third applicants are limited liability companies based in Serbia. They were both co-owned by the first applicant.

The applicants are represented before the Court by Mr M. Zindović, Mr Ž. Lazović, N. Zeković and M. Timotijević, all lawyers practising in Belgrade. The Serbian Government (the Government”) were initially represented by their former Agent, Mr S. Carić, and subsequently by their current Agent, Ms Vanja Rodić.

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

On 4 February 2003 the first applicant was arrested on charges primarily related to the production and trafficking of narcotics (amphetamines).

On 27 June 2003 the first applicant and numerous others were indicted by the Belgrade District Public Prosecutor’s Office for various drugs-related felonies alleged to have been committed in an organised crime context. The first applicant was described as being the head of this criminal enterprise.

The second and third applicants were never indicted, as the domestic legislation at that time did not provide for the possibility to bring criminal charges against legal entities. They were, however, mentioned as vehicles used by the first applicant and others to carry out their criminal endeavours, as well as companies in which criminal proceeds had been invested.

On 25 March 2005, the Belgrade District Court: (a) found the first applicant guilty and sentenced him to a total of twelve years’ imprisonment for the narcotics-related charges, as well as the charge of tax evasion; (b) ordered the confiscation of all substances containing amphetamine found in the first applicant’s possession; (c) ordered the confiscation of the 320,000 United Sates Dollars (“USD”) and 89,000 Euros (“EUR”) found in the first applicant’s flat; (d) ordered the confiscation of the 2,500,000 Swiss Francs (“CHF”) deposited in the first applicant’s bank account in Switzerland; (e) ordered the first applicant to pay, for the restitution of the “remainder of his criminally gained assets”, the sum of USD 10,000,000; and (f) ordered the confiscation of a building owned by the second applicant, as well as the confiscation of all of the second and third applicants’ production facilities, laboratory equipment and chemical substances found on their premises.

On 2 February 2006 the Supreme Court upheld the first applicant’s conviction as regards the narcotics-related charges, and sentenced him to eleven years’ imprisonment. The Supreme Court further quashed the first applicant’s conviction regarding tax evasion, and excluded the second applicant’s building from the confiscation ordered at first instance, noting that following the removal of the confiscated production facilities and illegal substances the building itself posed no danger to the public.

The applicants did not receive the Supreme Court’s decision before 5 March 2006.

In April 2006 the applicants filed an appeal on points of law (zahtev za ispitivanje zakonitosti pravosnažne presude).

On 24 January 2007 the Supreme Court, sitting in a differently composed panel compared to the one which had considered the applicants’ case on appeal, rejected the first applicant’s appeal on points of law as unfounded. As regards the second and third applicants’ pleadings, they were rejected as inadmissible since an appeal on points of law could only be filed by the defendants and their counsel. On 7 March 2007 the judgment was issued in writing.

On 9 May 2006 the District Court formally filed a request with the competent Swiss authorities, relying on its judgment of 25 March 2005, seeking confiscation of the funds deposited on the first applicant’s bank account in Switzerland.

On 18 May 2007 the Zurich District Prosecutor’s Office rejected this request as unfounded, stating, inter alia, that it could not conclude that the assets in question were indeed of a criminal origin. In particular, there was no evidence that the first applicant had made any deposits during the period when he was alleged to have committed the crimes in question. By 18 June 2007, this rejection became final.

On 25 July 2007 the first applicant was informed by the Swiss authorities that he could freely access and make use of his funds on the bank account in question.


Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the excessive length of civil proceedings.