Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Equality of arms)

André Potocki;Angelika Nußberger;Mārtiņš Mits;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicant was born in 1938 and lives in Tbilisi.

On 10 September 2003 the applicant was dismissed from a printing company. He brought proceedings against his employer.

At the preparatory hearing of 26 December 2003 the DidubeChugureti District Court in Tbilisi (“the District Court”) scheduled the main hearing for 3.30 p.m. on 28 January 2004. The preparatory hearing was attended both by the applicant and his lawyer. On 22 January 2004 the applicant’s lawyer wrote to the court informing that he was due to attend a hearing for an appeal on points of law before the Supreme Court of Georgia at 3 p.m. on 28 January 2004 and therefore could not be present. He requested that the hearing be adjourned. No reply followed.

The District Court held the hearing on 28 January 2004 as planned. The applicant appeared and submitted that, as he was not a lawyer, he would be unable to argue his case in the absence of his representative. He requested that the hearing be adjourned so that he could be represented by his lawyer. Counsel for the opposing party objected to the request and asked the first-instance court to issue a default judgment against the applicant. The record of the hearing shows that the judge warned the applicant that, if he refused to take any further part, “the court would give a decision in absentia”. The applicant, however, repeated that he would be unable to present his case without his lawyer.

According to the record of the hearing, the District Court did not consider the applicant’s request for an adjournment. It ruled that his refusal to participate in the hearing equated to a failure to appear in court within the meaning of Article 232 of the Code of Civil Procedure (“the CCP”, see paragraph 20 below). In view of the above, and concluding that the applicant had been duly summoned to the hearing in accordance with Articles 70 to 73 of the CCP, the judge issued, in accordance with Article 229 § 1 of the CCP (see paragraph 20 below), a default judgment rejecting the applicant’s action without examining it or giving any reasons.

The decision stated in its operative part that an application to set aside the judgment could be made to the same court within ten days.

The applicant’s lawyer filed an application to set aside the judgment, enclosing a letter from the Supreme Court dated 5 February 2004 confirming that he had participated in the hearing of an appeal on points of law at 3 p.m. on 28 January 2004. He argued that his involvement in the examination of another case was a “valid reason” for his absence (see Articles 233 and 241 of the CCP as cited in paragraph 20 below).

On 19 March 2004 the same District Court judge confirmed his own decision of 28 January 2004. He found that the applicant had been summoned to the hearing in accordance with the rules set out in Articles 70 to 78 of the CCP, and pointed out that there was no legal requirement to also summon a party’s lawyer. When he had appeared before the court, the applicant had stated that he objected to the examination of the case without his lawyer present and had refused to take part in the hearing. As conduct of that sort equated to a failure to appear under Article 232 of the CCP and none of the circumstances provided for by Article 233 of the CCP had been established, the judge decided that Article 241 of the CCP should not be applied to set aside the default judgment.

The applicant appealed against the decision of 19 March 2004. On 16 July 2004 the Tbilisi Regional Court (“the Regional Court”) found that, in breach of Article 72(z) of the CCP, the applicant and his lawyer had not been properly warned of the consequences of not appearing before the court. Moreover, at the hearing on 28 January 2004 the District Court had not properly explained to the applicant what a default judgment would mean for him. The Regional Court considered that, as the applicant was not a lawyer, he could not have known that a decision in absentia would necessarily be to his detriment. Therefore, as the caution provided for in Articles 70 to 78 had not been issued in the present case, the Regional Court held that there were grounds, under Articles 233 and 241 of the CCP, for setting aside the decision of 19 March 2004. The applicant’s appeal was thus remitted to the District Court for re-examination.

The applicant’s former employer lodged an appeal on points of law against the appeal judgment.

On 2 March 2005 the Supreme Court of Georgia found that, contrary to the Regional Court’s assertion, the applicant had been informed in the hearing notice of the consequences of a failure to appear. There had therefore been no violation of Article 72(z) of the CCP. The Supreme Court also found that, according to the record of the hearing of 28 January 2004, the judge had warned the applicant that “in the event of a refusal to take part in the hearing, a decision [would] be given in absentia”. The applicant had therefore been sufficiently informed of the consequences of his conduct. Lastly, the Supreme Court pointed out that a court could give a decision in absentia if a lawyer or a party failed to appear at a hearing, on condition that the party had been summoned in accordance with the rules set out in Articles 70 to 78 of the CCP. Consequently, the Supreme Court set aside the Regional Court’s judgment of 16 July 2004 and remitted the case.

On 10 May 2005 the Regional Court followed the Supreme Court’s reasoning and added that the applicant’s lawyer’s involvement in another hearing was not a “valid reason” for setting aside the decision in absentia, given that Article 232 of the CCP did not specify on what grounds a party could refuse to take part in a hearing. According to the Regional Court, this meant that any refusal to take part in the hearing was unjustified. It therefore upheld the decision of 19 March 2004.

An appeal on points of law by the applicant was dismissed on 16 September 2005. The Supreme Court ruled that Article 241 contained an exhaustive list of the grounds on which a default judgment could be set aside. It further concluded, in contrast with the finding of the Regional Court on 16 July 2004, that the applicant had been duly informed of the consequences of his failure to appear at the hearing. Thus, this argument could not have served as a valid basis for a re-examination of the case in accordance with Article 241 of the CCP.

Nor did the applicant’s refusal to participate in a trial for whatever reason, according to the Supreme Court, merit a re-examination of the case. It emphasised in this connection that the refusal to participate equated to a failure to appear in terms of its legal consequences.

No appeal lay against the above decision of the Supreme Court.


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 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Liberty of person);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Dmitry Dedov;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in 1985 and lived in Sarov, in the Nizhniy Novgorod region.

An all-terrain vehicle and a car were stolen from private garages in Sarov in February and April 2008, respectively. An investigation unit at the Sarov police department (управление внутренних дел г. Саров, “the Sarov UVD”) instituted criminal proceedings into the thefts. The police had information about the applicant’s involvement in the thefts.

At about 10.40 a.m. on 5 May 2008, V., an operative agent of the Sarov UVD, contacted the applicant by telephone and requested him to come to office no. 320 at the Sarov police station at 2 p.m. for questioning. At 2 p.m. on the same day the applicant arrived at the police station, as requested. He was accompanied by K., F., Zh. and P., who stayed outside awaiting his return. A police officer on duty registered the applicant’s arrival at the police station at 2 p.m.

The applicant provided the following account of events at the police station. In office no. 320 police officer V. and the chief of the criminal investigation unit of the Sarov UVD, B., demanded that he confess to the thefts. Following his refusal, he was taken to a nearby office, shackled and beaten up by B., who kicked and punched him in the head, torso and extremities and jumped on his head, while V. was shouting threats at the applicant. Afterwards the applicant was kept in different offices of the criminal investigation unit. He was given no food or drink. He felt unwell and vomited blood. No medical help was provided to him despite his requests.

On 6 May 2008 the applicant’s wife lodged an application with the Sarov town prosecutor and the head of the Sarov town police department, complaining that the applicant was being held at the police station unlawfully, that he had a serious stomach ulcer condition and that a lack of food could cause bleeding. A lawyer appointed by the applicant’s family was unable to locate him at the police station.

According to the police records, at midday on 6 May 2008 investigator K. of the Sarov UVD questioned the applicant as a witness in the theft case.

According to documents prepared by investigator K. and police officer V., at an unspecified time on the same day the investigator requested that the applicant, who was suspected of having committed the theft, be brought to the police station for investigative measures. Police officer V. reported that he had found the applicant in the street at 8 p.m. and taken him to the police station at 8.15 p.m. on 6 May 2008.

At 8.20 p.m. on 6 May 2008 the investigator drew up a record of the applicant’s arrest as a suspect in the criminal proceedings concerning the theft of the all-terrain vehicle.

At 8.55 p.m. the applicant was placed in a temporary detention facility at the Sarov UVD (“IVS”). The applicant’s cellmate C. saw injuries on the applicant’s head and learned from him that he had been beaten up by police officers in order to force him to confess to a crime.

At 9.15 p.m. an ambulance was called. An ambulance doctor diagnosed the applicant with a stomach ulcer. According to the IVS records, the applicant had abrasions on his arms.

On 7 May 2008 the applicant’s lawyer visited the applicant in the IVS and photographed the injuries on his body. According to the applicant, he had bumps and bruises on his head and neck and was unable to hear well, and he also had bruises on his torso and extremities.

On 8 May 2008 the applicant was brought before a judge, who ordered that he be remanded in custody.

The applicant and a number of other persons were charged with the theft of the allterrain vehicle and the car.

On 7 May 2008 the applicant lodged a complaint with the Sarov town prosecutor, alleging that he had been unlawfully deprived of his liberty on 5 and 6 May 2008 and ill-treated in police custody. He claimed that he could identify the police officers responsible for his ill-treatment. Similar complaints were also lodged by the applicant’s mother, his wife and his lawyer.

On 8 May 2008 the prosecutor’s office forwarded the complaints to the Sarov Investigation Department of the Investigative Committee at the Nizhniy Novgorod regional prosecutor’s office (the “Sarov Investigative Committee”). On the same day the applicant’s lawyer lodged a similar application with the Sarov Investigative Committee.

On 12 May 2008 the applicant was examined by a forensic medical expert. According to the expert’s report (акт судебно-медицинского освидетельствования) no. 572, the applicant had a bruise on his back measuring 3 to 4 cm, an abrasion measuring 4 to 10 cm on his left forearm and an endermic haemorrhage on his chest. The expert concluded that the injuries could have been inflicted by blunt objects on 5-6 May 2008.

On 14 May 2008 an investigator of the Sarov Investigative Committee received explanations by the applicant, who maintained his complaints. The applicant stated, in particular, that N.P., who had been held in the same office with his hands shackled, had witnessed the applicant’s illtreatment by police officer B. on 5 May 2008. According to explanations by police officers B. and V., in the course of operative-search activities the police had obtained information about the applicant’s involvement in the theft of the all-terrain vehicle. V. had called the applicant on 5 May 2008 and requested him to come to the police station for questioning by the investigator. They denied the applicant’s allegations about his unlawful detention and ill-treatment, stating that he had been brought to the police station on 6 May 2008 at the investigator’s request (see paragraph 12 above). V. also stated that in the evening of 6 May 2008 N.P., another suspect in the thefts case, had been brought to the police station at the same time as the applicant, and that N.P. and the applicant had been held separately. N.P., whose explanations were also received by the investigator, stated that on the evening of 6 May 2008 he had gone to the police station for questioning and that he had not seen the applicant there.

On 22 May 2008 the investigator of the Sarov Investigative Committee ordered that no criminal proceedings be instituted in respect of the applicant’s complaints of unlawful detention and ill-treatment in view of the lack of constituent elements of a crime in the acts of police officers B. and V. and investigator K., pursuant to Article 24 § 1 (2) of the Code of Criminal Procedure (“CCrP”). He stated that there were no reasons to believe that the injuries recorded by the forensic medical expert had been sustained while the applicant had been held at the police station, as this had been denied by the police officers and N.P.

On 22 July 2008 that decision was revoked by the Sarov Investigative Committee as the inquiry on which it was based was considered incomplete. The following day, a new decision not to open a criminal case was taken and on 6 August it was revoked for the same reason. Among those whose explanations were received by the investigator in the course of an additional inquiry were K. and F. (see paragraph 8 above). They stated that on 5 May 2008 they had gone to the police station with the applicant, Zh. and P. in the applicant’s car, that they had seen the applicant, who had had no injuries at that time, enter the police station at 2 p.m. and had waited for him outside. At 3 or 4 p.m. on 5 May 2008, while waiting for the applicant, who had still not returned, F. had seen N.P. enter the police station at the request of police officer V. and another person.

A new decision not to open a criminal case was taken on 6 October 2008. It was revoked on 20 October 2008 and a similar decision was taken on 6 November 2008. The applicant, whose explanations were again sought by the investigator, stated that his ill-treatment by police officer B. on 5 May 2008 had lasted for about an hour, between 4.30 p.m. and 5.30 p.m. On 25 May 2009 the higher investigative committee at the Nizhniy Novgorod regional prosecutor’s office set aside the decision of 6 November 2008 on the grounds that it was based on an incomplete inquiry.

The most recent decision not to open a criminal case on the grounds that the constituent elements of a crime in the acts of police officers B. and V. and investigator K. were missing was taken on 10 June 2009 pursuant to Article 24 § 1 (2) of the CCrP. The same reasoning was given as in the initial decision of 22 May 2008 and in the decisions which had been taken in the meantime. It was mainly based on the denial by the police officers and investigator K. that the applicant had been ill-treated and detained before 8.20 p.m. on 6 May 2008.

The applicant appealed against the investigator’s decision of 22 May 2008 to the Sarov Town Court under Article 125 of the CCrP. On 1 August 2008 the Town Court ruled that the application should not be examined, and terminated the proceedings on the grounds that on 22 July 2008 the Sarov Investigative Committee had revoked the investigator’s decision.

Court appeals lodged by the applicant against the investigator’s subsequent decisions of 23 July and 6 October 2008 were not examined for the same reason (the Town Court’s decisions of 7 August and 20 October 2008).

On 6 March 2009 the Town Court examined the applicant’s complaint seeking to have the failure by the head of the Sarov Investigative Committee to carry out an inquiry into an application lodged by the applicant’s counsel on 22 January 2009 declared unlawful. It was alleged in that application that investigator K., police officer V. and others had forged the documents concerning the time at which the applicant had been taken into custody. The Town Court granted the applicant’s request and declared the inactivity on the part of the head of the Sarov Investigative Committee unlawful.

On 3 August 2009 the Sarov Town Court dismissed the applicant’s appeal against the Sarov Investigative Committee’s decision of 10 June 2009 (see paragraph 26 above), holding that the decision was lawful and well-grounded. On 15 September 2009 the Nizhniy Novgorod Regional Court dismissed the applicant’s appeal and fully endorsed the firstinstance court’s decision.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment;Positive obligations) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1953 and is serving his sentence in correctional colony no. 2 in the Astrakhan Region.

On 9 May 2012 the applicant was arrested on suspicion of murder committed during a fight with the victim. Two days later the Kirovskiy District Court of Astrakhan authorised his remand in custody, having noted the gravity of the charges, his previous convictions, including for violent crimes, his failure to “get on the road to improvement”, the absence of an “official” source of income, and his lack of dependants.

That decision was upheld on appeal by the Astrakhan Regional Court, which fully endorsed the District Court’s reasoning. In addition, the Regional Court took into account that the applicant was suffering from the human immunodeficiency virus (HIV) but stated that there was no medical evidence that he could not continue being detained in the conditions of a temporary detention facility.

Another extension of the applicant’s detention followed on 9 July 2012, when the District Court accepted the investigator’s arguments that he was likely to re-offend, abscond and interfere with the investigation. The District Court linked those risks to the gravity of the charges against the applicant, his having received “negative characteristics” at his place of residence, as well as his having already been “the subject of criminal prosecution”. At the same time the court examined medical evidence produced by the applicant in support of his claim that the fact that he was suffering from an advanced stage of HIV precluded his detention. The District Court dismissed the claim, stressing that the applicant regularly received medication prescribed by a prison doctor and that his detention in the temporary detention facility did not pose a risk to his health.

The District Court issued further orders extending the applicant’s pretrial detention on 2 August, 6 September and 7 November 2012. Each time, it relied on the gravity of the charges and the risk flowing of the applicant absconding, interfering with the course of justice and reoffending. Neither detention order mentioned that the applicant had a criminal record. The applicant’s arguments about the progress of his HIV infection and the rapid deterioration of his health did not convince the District Court. The order of 7 November 2012 extended the applicant’s detention until 9 December 2012. It was upheld on appeal by the Astrakhan Regional Court on 14 November 2012, with reference to the gravity of the charges and the applicant’s “personality”. The relevant part of the decision reads as follows:

“On 11 May 2012 ... the Kirovskiy District Court of Astrakhan ordered [the applicant’s] detention. Subsequently, the detention was lawfully extended. ...

In extending the detention for up to seven months, the court reasonably took into account that [the applicant] was charged with a particularly serious criminal offence and that, in view of hiswas liable to reoffend or destroy the evidence.

The court also correctly held that the case was particularly complex, due to the large number of investigatory activities and complex expert examinations to be conducted. The court also took into account the applicant’s lengthy treatment in the prison hospital.

The court correctly concluded that there were no grounds for changing the measure of restraint.”

The Regional Court did not address the applicant’s arguments, raised in his statement of appeal, that the investigating authorities significantly delayed a number of procedural actions, including the expert examination scheduled as early as June 2012 and not yet performed.

The District Court further extended the applicant’s pre-trial detention on 8 December 2012, summarily referring to his “personality” and “socially dangerous conduct”. The court also pointed out that some unspecified expert examinations had been conducted, which had “objectively influenced the length of the investigation”.

On 30 December 2012 the applicant’s pre-trial detention was again extended on the grounds of the gravity of the charges and the continued risk of his absconding and interfering with the course of justice. The court used similar wording as in the previous detention orders.

On 16 March 2013 the applicant was served with the final version of the bill of indictment. The bill indicated that the applicant had no criminal record.

On 6 August 2013 the District Court convicted the applicant of murder. The court found that he had killed the victim in the course of an altercation caused by the victim’s insults. The District Court sentenced the applicant to seven years of imprisonment, having taken into account the following mitigating circumstances: the applicant had no criminal record, was “positively characterised”, had surrendered himself to the police, had confessed to the killing and felt deep remorse, and the victim had behaved provocatively having initiated the conflict with the applicant.

In January 2004 the applicant was diagnosed with stage 4A HIV. He was taken under the supervision of specialists of the Astrakhan Regional Centre for Protection from AIDS (hereinafter “the AIDS Centre”).

Medical certificates provided by the applicant show that he had started receiving antiretroviral therapy on 22 March 2011 with very positive results. The viral load had significantly decreased and the applicant’s immune status had improved. A CD4 cell-count test carried out on 17 February 2012 showed that the level of CD4 cells was 489 cells/mm3.

On 11 May 2012 the applicant was placed in detention facility no. 1. On the same date he was examined by a doctor, who recorded no complaints and diagnosed him with a stomach ulcer in remission.

On 26 June 2012 doctors from the AIDS Centre recorded a deterioration in the applicant’s condition. They recommended continuation of the antiretroviral therapy and an in-patient examination.

Between 12 July and 12 September 2012 the applicant underwent a check-up in the prison hospital of correctional colony no. 2 (“the hospital”). He was diagnosed with chronic pancreatitis, chronic gastroduodenitis, iron deficiency anaemia, fungal esophagitis, urolithiasis, and hepatic haemangioma.

It appears that on 16 July 2012 an immunological test was performed. It showed that the level of CD4 cells was 649 cells/mm3.

Since August 2012 the doctors have again recorded a deterioration in the applicant’s condition and an increase in his viral load. They linked the deterioration to prior interruptions in the antiretroviral therapy. It is not clear from the documents submitted by the applicant when and why those interruptions occurred.

On 20 September 2012 a doctor from the AIDS Centre diagnosed the applicant with stage 4A HIV and fungal esophagitis, and recommended that antiretroviral therapy be continued.

On 26 September 2012, on a recommendation of the medical staff of the AIDS Centre, the applicant was again admitted to the hospital. He underwent treatment for HIV and fungal esophagitis. On 8 October 2012 he returned to the detention facility.

Throughout his detention the applicant was prescribed a special diet.

According to a typed copy of the applicant’s medical file provided by the Government, on admission to detention facility no. 1 the applicant was examined by a doctor whom he informed that he was suffering from HIV.

On 16 May 2012 medical staff from the AIDS Centre were allowed to see the applicant. The doctors noted that he was suffering from stage 4A HIV and recommended that his antiretroviral therapy be continued. On the same date the applicant received one month’s dose of antiretroviral drugs (Reyataz and Combivir).

The applicant continued being monitored by the medical staff of the AIDS-Centre, who examined him again on 26 June 2012. Following their recommendations, and in response to the applicant’s complaint of fatigue and pain in the epigastrium (upper abdomen), on 12 July 2012 he was transferred to the hospital for an in-depth examination. On the same date it was noted in his medical file that he was receiving antiretroviral drugs. The entries dated 2 and 6 August 2012 indicated that he had been taking those drugs.

While at the hospital, the applicant was monitored by an infectious diseases specialist, who examined him on twenty-four occasions. The applicant also underwent an ultrasound examination and a fibrogastroduodenoscopy. On 27 August 2012 he was examined by an urologist and a gastroenterologist in a civil hospital. He was also observed by an otolaryngologist and a neurologist. The final diagnosis was: HIV infection aggravated by secondary illnesses, chronic pancreatitis, chronic gastroduodenitis, iron deficiency anaemia, oesophageal candidiasis, hepatic hemangioma, chronic prostatitis, chronic cholecystitis, fungal esophagitis, and a duodenal bulb ulcer. The applicant received treatment for those illnesses.

On 12 September 2012, having found that the applicant’s condition had improved, the hospital discharged him.

On 20 September 2012 a doctor from the AIDS Centre examined the applicant at the detention facility. The doctor noted that the applicant was taking the antiretroviral drugs with strict adherence, and recommended virological and immunological testing, as well as another ultrasound examination and a fibrogastroduodenoscopy.

On 26 September 2012 the applicant was admitted to the hospital for additional tests. On 8 October he was transferred back to the detention facility.

On 18 October 2012 the applicant complained of fatigue, coughing and headaches. A doctor diagnosed chronic bronchitis and prescribed him anti-candidiasis and cough medication, as well as vitamins.

On 4 November 2012 an entry made in the applicant’s medical file indicated that the “last” immunological test had shown the level of CD4 cells at 513 cells/mm3.

On 13 November 2012 the applicant complained to a doctor of heaviness in his abdomen, dizziness and heartburn. The doctor noted that those were the effects of his not complying with the special diet and prescribed medication for his ulcer and gastroduodenitis.

On 27 November 2012 the applicant was examined in response to his complaints of fatigue, pain in the abdomen, and pyrosis. The doctor noted that the applicant had been receiving antiretroviral therapy and recommended his transfer to hospital for an examination and another diagnosis.

On the applicant’s admission to the hospital on 3 December 2012, his complaints of fatigue, heartburn and stomach aches were recorded. On the same date it was again noted that he was receiving antiretroviral drugs. At the hospital he was seen by an infections specialist several times a week, examined by a neurologist and an otolaryngologist, and underwent a fibrogastroduodenoscopy. In addition to his previously recorded illnesses, the applicant was diagnosed with a prostate adenoma. He received treatment for his non-communicable diseases, and was prescribed the same antiretroviral drugs as before.

On 18 January 2013 the applicant was dismissed from the hospital “in a satisfactory condition”, with the proviso that he had to be actively supervised by the detention facility medical personnel. On the same date he was examined by a doctor at the detention facility. The doctor noted that the applicant needed “dynamic supervision” and prescribed medication for his pancreatitis and stomach ulcer.

On 23 January 2013, in response to the applicant’s complaint of back pains, he was prescribed anti-inflammatory drugs.

On 12 February 2013 the applicant complained to a psychiatrist of sleeping problems and irritability, and was prescribed antidepressants.

On 20 March 2013 a doctor from the AIDS Centre paid the applicant a visit. Following the doctor’s recommendation, the applicant was yet again admitted to hospital. On arrival he complained of poor appetite, fatigue, heartburn, pains in his chest and stomach ache. He was then seen by an infectious diseases specialist, an ophthalmologist, an otolaryngologist, a cardiologist and a neurologist. They concluded that there was no change in his diagnosis and prescribed him treatment for the non-communicable infections. On 3 April 2013 it was noted that the applicant was regularly taking antiretroviral drugs. A week later, despite the lack of significant improvement in his condition, he was discharged from the hospital since he had to appear at a court hearing.

On 19 June 2013 the applicant was re-admitted to the hospital. Under the supervision of the infectious diseases specialist he received treatment for cholecystitis and gastroduodenitis. He was also examined by a neurologist, an otolaryngologist and an ophthalmologist, and was diagnosed with cerebrovascular disease. An entry in the record of 19 June 2013 showed that the applicant had enough drugs to last until 23 June 2013. The entry dated 25 June 2013 mentioned that he had not complied with the special diet prescribed to him. On 9 July 2013 the applicant was discharged in “satisfactory condition”, having been provided with antiretroviral drugs until 23 July 2013.

On the applicant’s admission to correctional colony no. 2 on 24 October 2013, he was examined by prison doctors, who noted that he was receiving antiretroviral therapy.

On 20 November 2013, in response to the applicant’s complaints of pain in the abdomen, he was examined by a prison doctor. A fibrogastroduodenoscopy was carried out on 22 November 2013, and he was prescribed medication for gastroduodenitis.

On 10 December 2013 the applicant was examined by an infectious diseases specialist from the AIDS Centre. The doctor observed the applicant’s complaints of pain in the oesophagus and the chest, and noted that he was receiving antiretroviral drugs, namely Reyataz and Combivir. The doctor recommended that the applicant continue with the therapy and undergo an immunological test. He also suggested that he be subjected to an in-patient examination. The applicant refused to be admitted to the hospital.

On 12 and 16 November 2012 the applicant’s lawyer wrote to the administration of detention facility no. 1, drawing their attention to the applicant’s state of health and asking for his examination by a medical expert. On 13 November 2012 the facility director informed the lawyer that there was no evidence that the applicant was suffering from an illness preventing detention and that, accordingly, there were no grounds for a medical expert examination.

On 4 February 2013 the applicant’s lawyer reiterated his request.

On 10 December 2012 the applicant’s lawyer requested the investigator in charge of the applicant’s criminal case to order a medical examination of the applicant. On 13 December 2012 the request was refused. However, on 4 February 2014 that decision was revoked, and the applicant’s medical expert examination was authorised.

On 17 January 2013 the applicant’s lawyer complained to the Kirovskiy District Court of Astrakhan of the correctional colony administration’s inaction and asked the court to authorise the applicant’s medical examination. On 1 April 2013 the court dismissed the complaint and refused the examination request.


Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 2 of Protocol No. 4 - Freedom to leave a country);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova

The applicant, Mr Gennadiy Mikhailovich Berkovich, was born in 1950 and lives in Moscow. He was represented before the Court by Ms M. Samorodkina, a lawyer practising in Moscow.

In 1973 Mr Berkovich started working for the Scientific Research Electromechanical Institute, a State design bureau that developed air defence weapons.

Mr Berkovich signed an undertaking concerning the non-disclosure of State secrets which contained a restriction on the right to go abroad. The employer had despatched Mr Berkovich on official missions to France (in 1993 and 1994), China (in 1996 and 2003) and Greece (in 2001 and 2004). On 9 September 1993 he was provided with a travel passport (заграничный паспорт), the identity document that entitles Russian citizens to leave the country and travel abroad. It was renewed on 16 December 1998 and then on 3 November 2003, both times for a five-year period.

On 28 September 2004 Mr Berkovich terminated his employment. His employer retained his travel passport and refused to return it to him.

On 25 July 2005 Mr Berkovich applied to the Passport and Visa Service of the Akademicheskiy District in Moscow for a new travel passport. On 16 December 2005 the head of the Passport and Visa Service refused his application. The refusal indicated that his right to obtain a travel passport was restricted until 26 February 2009 on account of his past access to State secrets.

Mr Berkovich challenged the refusal before the Moscow City Court, relying on the fact that he had been previously allowed to travel abroad on official business.

On 8 June 2006 the City Court gave judgment. It found that, even though the law provided that a refusal could be challenged before the Interagency Commission for the Protection of State Secrets, Mr Berkovich could not avail himself of that remedy because the Commission had not held any hearings since 22 June 2004 and had been disbanded by a Government resolution of 21 March 2005. The City Court upheld the restriction on Mr Berkovich’s right to travel abroad, noting that, according to his former employer, he had last accessed confidential information in February 2004 and that the classified status of that information was not due to be reviewed until 2009. As to his previous official trips abroad, the City Court said:

“The court has established that Mr Berkovich’s work duties required him to travel abroad for official purposes more than once; each time [his employer] obtained for him through the Consular Department of the Ministry of Foreign Affairs a travel passport, which was kept by the human resources department [of the employer] until its expiry.

His travel abroad – as an individual aware of State secrets – was organised in accordance with the procedure set out in [the internal documents of the employer].

The claimant was allowed to go abroad because his personal participation was required for the performance of the task and because it was impossible to send abroad other employees who were aware of State secrets to a lesser degree.”

On 1 September 2006 the Supreme Court of the Russian Federation upheld the City Court’s judgment on appeal.

Following the expiry of the restriction, on 3 April 2009 Mr Berkovich was issued with a travel passport. He used it to travel to Egypt, China, Greece, Croatia and Italy.

The applicant, Mr Igor Borisovich Boldyrev, was born in 1958 and lives in Moscow. From February 1987 to 6 February 2007 he was a military serviceman in the Russian Army.

Mr Boldyrev was the only son to his parents, who lived in Tallinn, Estonia. His father was born in 1929 and his mother in 1930, and they were both retired and disabled. During his military service Mr Boldyrev visited his parents more than ten times; each time he submitted a report to his military superior indicating the purpose of his visit and the dates and means of transport that he would be using.

Following the termination of his military service, on 27 November 2007 Mr Boldyrev applied to the Federal Migration Service for a travel passport. He also submitted medical certificates that attested to the poor health of his parents and justified his need to go and see them.

By a letter of 22 December 2010, the Federal Migration Service notified him that his application had been refused on account of his previous awareness of State secrets during the period of his military service. His right to leave Russia was restricted until 22 January 2012.

Mr Boldyrev challenged the refusal in court.

By a judgment of 24 April 2008, the Moscow City Court upheld the travel ban as lawful. It held that the poor health of Mr Boldyrev’s parents was of no legal significance. On 25 June 2008 the Supreme Court of the Russian Federation upheld that decision on appeal.

On 9 November 2009 Mr Boldyrev’s mother died in Tallinn. He tried to obtain a travel passport to attend her funeral but received no response to his application. A travel passport was first issued to him in 2012.

The applicant, Mr Aleksandr Nikolayevich Ilchenko, was born in 1968 and lives in Moscow. From 1985 to 30 April 2009 he was a military serviceman employed in the Chief Operative Department of the General Headquarters of the Russian Army.

On 29 December 2004 Mr Ilchenko signed a contract of employment, which contained a restriction on his right to leave Russia for a period not exceeding five years on account of his awareness of State secrets. In October 2006, the Main Directorate for International Co-operation of the Ministry of Defence issued a new travel passport for him, which he never used.

Following his retirement in April 2009, on 13 September 2010 Mr Ilchenko applied to the Federal Migration Service in Moscow for a travel passport. He submitted that he needed to go abroad for rest and recreation and pointed out that he had already surrendered all classified material on 13 February 2009.

By a letter of 22 December 2010, the Federal Migration Service notified him that his application had been refused on the following grounds:

“During the period of your service in the Chief Operative Department of the General Headquarters of the Russian Military Forces from November 2004 to date, you have been aware of State secrets; accordingly, your right to go abroad has been temporarily restricted until 13 February 2014 [on the basis] of a decision of the Chief Operative Department of the General Headquarters no. 312/3/196 of 8 October 2010.”

Mr Ilchenko challenged the refusal in court.

On 3 March 2011 the Presnenskiy District Court of Moscow rejected his complaint. It examined the above-mentioned decision of 8 October 2010, according to which “the plaintiff’s right to travel abroad for private purposes [would] be possible after 13 February 2014, but there [were] no objections to his leaving abroad on official missions arranged by organisations or companies affiliated with the Ministry of Defence.”

The court found that the decision refusing the application had been made by the competent authority.

On 10 October 2011 the Moscow City Court upheld the District Court’s judgment, summarily endorsing its reasoning.

Mr Ilchenko also challenged the compatibility of section 15(1) of the Entry and Exit Procedures Act and section 24 of the State Secrets Act with the Constitution. By judgment no. 14-P of 7 June 2012, the Constitutional Court rejected his complaint, holding as follows:

“1. To recognise that the interconnected provisions of section 15(1) of the Entry and Exit Procedures Act and section 24 of the State Secrets Act do not contradict the Russian Constitution inasmuch as these provisions ... presuppose that a decision concerning a temporary restriction on the right to leave the Russian Federation may not be predicated solely on the formal grounds that are expressly mentioned in these provisions; such a decision should not have as its sole basis the established fact that the individual concerned has had access to particularly important or top-secret information classified as a State secret; the elements to be verified in every case should include the nature of the specific information which the individual has had access to [through] his work duties, the degree of confidentiality – including at the time when an application to competent authorities is being made in connection with a planned trip abroad – as well as the purpose of the trip and other circumstances which are relevant for determining that the said restriction was necessary.”

The applicant, Mr Vladimir Vitalyevich Litavrin, was born in 1965 and lives in the Moscow Region.

From June 1986 to October 2008 he was a military serviceman in the Russian Army. In February 2004, with the consent of his commander and the Federal Security Service (FSB), he was issued with a travel passport, which he used to go abroad on private tourist trips in 2004, 2005, 2006 and 2007.

Following the expiry of his travel passport in February 2009, on 24 March 2009 Mr Litavrin applied to the Federal Migration Service for its renewal. In October 2009 he was notified that his application had been refused and that his right to leave Russia was restricted until 15 December 2011.

Mr Litavrin challenged the refusal in court. His complaint was rejected at two levels of jurisdiction, by the Odintsovo Town Court of the Moscow Region on 7 September 2011 and the Moscow Regional Court on 1 December 2011. Both courts upheld the restriction as lawful.

The applicant, Mr Roman Aleksandrovich Lytin, was born in 1982 and lives in Moscow. From June 2006 to May 2010 he was a military serviceman in the Russian Army.

On 21 September 2010 Mr Lytin applied to the Federal Migration Service for a travel passport which would allow him to go abroad. By a letter of 24 February 2011, he was notified that his application had been refused and that his right to leave Russia was restricted until 29 July 2014.

Mr Lytin challenged the refusal in court. His complaint was rejected at two levels of jurisdiction, first by the Moscow City Court on 14 October 2011 and later by the Supreme Court of the Russian Federation on 11 January 2012. Both courts upheld the restriction as lawful.

The applicant, Mr Aleksey Gennadyevich Khil, was born in 1965 and lives in the Khabarovsk Region. From August 1997 to 9 February 2009 he was a military serviceman in the Russian Army.

In September 2010, Mr Khil applied to the Federal Migration Service for a travel passport. By a letter of 27 September 2011, he was notified that his application had been refused and that his right to leave Russia was restricted until 27 November 2012.

Mr Khil challenged the refusal in court. His complaint was rejected at two levels of jurisdiction, first by the Khabarovsk Regional Court on 1 February 2012 and later by the Supreme Court of the Russian Federation on 18 April 2012. Both courts upheld the restriction as lawful.

The applicant, Mr Aleksandr Aleksandrovich Yenin, was born in 1964 and lives in Sochi. He is a lawyer. From January 1997 to June 2011 he was a military serviceman in the FSB.

On 27 December 2007 the Sochi division of the Ministry of Foreign Affairs issued Mr Yenin with a travel passport valid for five years. In accordance with the regulations in force, the passport was kept in the human resources department of the FSB.

Following his retirement on 25 June 2011, Mr Yenin repeatedly asked the FSB to return his travel passport because he wished to travel abroad for private reasons. His request was refused on the grounds that, by a report of 29 June 2011, his right to go abroad was restricted until 28 July 2015, that is, for a period of five years from his last contact with top-secret documents. It appears that the documents in question contained details of FSB informants.

Mr Yenin challenged the restriction in court, seeking to have it lifted or reduced to a period of two and a half years. His complaint was rejected at two levels of jurisdiction, by the Military Court of the Sochi Garrison on 24 January 2013 and the Military Court of the North-Caucasus Circuit on 7 May 2013.

The applicant, Mr Aleksandr Aleksandrovich Garkusha, was born in 1987 and lives in Moscow. He was represented before the Court by Mr A. Yenin, a lawyer practising in Sochi (see paragraph 39 above). From July 2009 to October 2011 Mr Garkusha was a military serviceman in the FSB.

On 6 February and 12 December 2012 he applied to the Federal Migration Service for a travel passport which would allow him to go abroad. By a letter of 26 December 2012, he was notified that his application had been refused and that his right to leave Russia was restricted until 31 October 2016.

Mr Garkusha challenged the refusal in court. His complaint was rejected at two levels of jurisdiction, by the Military Court of the Sochi Garrison on 14 March 2013 and the Military Court of the North-Caucasus Circuit on 26 June 2013.

The applicant, Mr Aleksandr Aleksandrovich Burnayev, was born in 1980 and lives in Krasnodar.

From November 2002 to August 2012 he was an investigator with the Krasnodar regional investigations department of the FSB. He had a travel passport and in 2008 travelled with his spouse to the United Arab Emirates for a holiday.

On 22 April 2013 the chief of the Krasnodar regional office of the FSB decided that Mr Burnayev’s right to travel abroad for private purposes should be restricted until 19 May 2016 on the grounds that he had previously had access to a top-secret investigative file concerning the theft of property committed by a Russian national on Russian territory.

Mr Burnayev applied for a judicial review of that decision. His complaint was rejected at two levels of jurisdiction, by the Krasnodar Regional Court on 12 July 2013 and the Supreme Court of the Russian Federation on 23 October 2013.

The applicant, Mr Sergey Viktorovich Samasadkin, was born in 1973 and lives in St Petersburg.

From 1997 to 2009 he was a military serviceman in the Komi regional office of the FSB. His contract of employment provided that his access to State secrets would be terminated if he or his family members took up permanent residence abroad or started making an application to take up residence abroad. Termination of his access to State secrets would lead to early termination of his employment.

Following his retirement in May 2009, his right to travel abroad for private purposes was restricted until 16 November 2012.

In July 2012, anticipating the expiry of the restriction on his right to travel, he applied to the Federal Migration Service for a travel passport which would allow him to go abroad. By a letter of 1 August 2012, he was notified that his application had been refused.

Mr Samasadkin challenged the refusal in court. His complaint was rejected at two levels of jurisdiction, by the Syktyvkar Town Court on 25 September 2012 and the Supreme Court of the Komi Republic on 30 May 2013. Referring to section 15 of the Entry and Exit Procedures Act and the decision to restrict Mr Samasadkin’s right to leave Russia, the courts held that the refusal to issue him with a travel passport had been lawful.

On 17 December 2012 Mr Samasadkin was issued with a travel passport.


Remainder inadmissible (Article 35-3-a - Manifestly ill-founded);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1990 and lives in Moscow.

The background facts relating to the planning, conduct and dispersal of the demonstration at Bolotnaya Square are set out in more detail in Frumkin v. Russia (no. 74568/12, §§ 7-65, 5 January 2016), and Yaroslav Belousov v. Russia (nos. 2653/13 and 60980/14, §§ 7-33, 4 October 2016). The parties’ submissions on the circumstances directly relevant to the present case are set out below.

On 6 May 2012 a public demonstration entitled the “March of Millions” was held in central Moscow to protest against the allegedly rigged presidential elections. The event had been approved by the city authorities in the form of a march followed by a meeting at Bolotnaya Square which was supposed to end at 7.30 p.m. The march was peaceful and held without any disruptions, but when the marchers arrived at Bolotnaya Square it became apparent that barriers installed by the police had narrowed the entrance to the meeting venue, allegedly restricting the space allocated for the meeting. To control the crowd the police cordon forced the protestors to remain within the barriers; there were numerous clashes between the two sides. At 5.30 p.m. the police ordered the meeting to finish early and began to disperse the participants. It took them about two hours to clear the square.

On the same day the Moscow city department of the Investigative Committee of the Russian Federation opened criminal proceedings to investigate suspected acts of mass disorder and violence against the police (Articles 212 § 2 and 318 § 1 of the Criminal Code). On 18 May 2012 the file was transferred to the headquarters of the Investigative Committee for further investigation. On 28 May 2012 an investigation was also launched into the criminal offence of organising acts of mass disorder (Article 212 § 1 of the Criminal Code). The two criminal cases were joined on the same day.

At the time of his arrest the applicant was working as an artist. According to him, on 6 May 2012 he arrived at Kaluzhskaya Square to take part in the march and walked down Yakimanka Street to Bolotnaya Square. He passed the metal detectors and joined other protestors in front of the stage, where a rock group was performing. Sometime after 6 p.m. he walked towards Malyy Kamenyy Bridge but discovered that movement in that direction had been blocked by a police cordon. The applicant walked back, staying in the general area; at around 7.30 p.m. groups of police officers started pushing into the crowd, forcing it apart by using their truncheons. Protestors were surrounded and squeezed together. At some point the applicant realised that he was facing the police line and that the police were using excessive force to arrest protestors. The applicant was both angered and scared by the actions of the police and actively resisted. He was eventually seized by four police officers and escorted to a police car, which took him to a police station.

On 14 May 2012 the Justice of the Peace of the 100th Court Circuit of the Yakimanka District of Moscow found the applicant guilty of noncompliance with a lawful order by a police officer, an offence under Article 19.3 of the Code of Administrative Offences. The Justice of the Peace established that after the meeting at Bolotnaya Square the applicant had shouted anti-government slogans, ignoring the lawful demands of the police to cease those acts. He had thrown objects at the police officers, including stones, flagpoles, empty plastic bottles, and pieces of asphalt, and had refused to proceed to the police van. The applicant was sentenced to detention of twenty-four hours. It appears that after his release the applicant continued to live at his usual address and pursue his customary activities.

On 28 May 2012 the applicant’s flat was searched. On the same day he was detained on suspicion of participation in acts of mass disorder and of committing violent acts against the police on 6 May 2012.

On 30 May 2012 the Basmannyy District Court of Moscow ordered that the applicant be placed in pre-trial detention until 6 July 2012. It referred to the gravity of the charges and stated that if he was at liberty the applicant could co-ordinate his position with accomplices whose identities were still being established by the investigation. The court also pointed out that the applicant had forcefully resisted the police officers during his arrest, which had led to them using force and handcuffs against him. In addition, the court relied on information obtained from undercover sources that the applicant had connections with football fans and groups of anarchists. The applicant denied that allegation and challenged the use of information from undisclosed sources. However, the court concluded that there were sufficient reasons to believe that he was likely to abscond, continue his criminal activity, threaten witnesses, destroy evidence or otherwise obstruct the course of the criminal proceedings. It dismissed a request from the applicant for an alternative preventive measure and found that his release was not required on health grounds.

On 4 June 2012 the applicant lodged an appeal against the detention order, which was dismissed by the Moscow City Court on 27 June 2012.

On 5 June 2012 charges were brought against the applicant under two Articles of the Criminal Code, Articles 212 § 2 (participation in acts of mass disorder accompanied by violence) and 318 § 1 (use of violence against a public official). He was accused, in particular, of active resistance to police officers and of participation in a group assault on a police officer whereby the applicant had allegedly pulled a protective helmet off the officer’s head and had punched and kicked him on the head and body.

On 4 July 2012 the Basmannyy District Court examined an application from the investigator for an extension of the applicant’s pre-trial detention. The applicant argued that he had no criminal record, was in work, and had a permanent residence in Moscow where he lived with his family. He denied any involvement with football fans or anarchists and asked for the preventive measure to be changed to house arrest. On the same day the District Court granted the investigator’s application and extended the applicant’s detention until 6 November 2012. It relied on the gravity of the charges and information on the applicant’s character, which gave it sufficient grounds to presume that he might reoffend, threaten witnesses and other participants of the criminal proceedings, destroy evidence or otherwise obstruct the proper administration of justice.

On 12 July 2012 the applicant lodged an appeal against the extension order, which was dismissed by the Moscow City Court on 6 August 2012.

On 31 October 2012 the Basmannyy District Court examined a new application for an extension of the applicant’s pre-trial detention. Referring to the gravity of the charges and the complexity of the criminal investigation, the court extended his detention until 6 March 2013.

On 13 November 2012 the applicant lodged an appeal against the extension order, which was dismissed on 3 December 2012 by the Moscow City Court.

On 16 November 2012 the charges against the applicant were updated. The classification of the offences remained unchanged but it was specified that the applicant had struck the police officer once on the head and had kicked him once on the body while he was lying on the ground.

On 1 March 2013 the Basmannyy District Court authorised a further extension of the applicant’s detention until 28 May 2013. The court relied on the gravity of the charges and the need to allow the defendants sufficient time to read the investigation case file. That decision was upheld by the Moscow City Court on 10 April 2013.

On 23 April 2013 the Moscow City Court granted an extension of the applicant’s detention until 6 July 2013. The court noted that even though the applicant and his lawyer had already finished reading the case file, other defendants had not. It reiterated the grounds given in the previous extension orders and stated that the circumstances justifying the detention order had not changed. The Moscow City Court upheld that decision on 30 May 2013.

On 24 May 2013 the applicant’s criminal case was transferred to the Zamoskvoretskiy District Court of Moscow for the determination of criminal charges.

On 6 June 2013 that court granted another extension of the applicant’s detention, until 24 November 2013. The decision concerned eleven defendants. Along with the gravity of the charges, the court based its decision on the findings that “the reasons which initially warranted the detention have not changed” and that “no other measures of restraint would secure the aims and goals of the judicial proceedings”. The Moscow City Court upheld that extension order on 2 July 2013.

On 19 November 2013 the Zamoskvoretskiy District Court granted another extension of detention in respect of nine defendants, including the applicant. It ordered their detention until 24 February 2014 on the grounds of the gravity of the charges and the nature of the offences imputable to them. On 17 December 2013 the Moscow City Court upheld that extension order.

On 6 June 2013 court proceedings began in hearing room no. 338 at the Moscow City Court, moving at the end of July 2013 to hearing room no. 635. The defendants, including the applicant, were held in glass cabins in both hearing rooms. From mid-September 2013 to the end of 2013 the hearings continued at the Nikulinskiy District Court of Moscow in hearing room no. 303, while in January and February 2014 they took place at the Zamoskvoretskiy District Court in hearing room no. 410. Those hearing rooms were equipped with metal cages in which nine defendants (seven from 19 December 2013), including the applicant, sat during the hearings.

For a detailed description of the conditions in those hearing rooms see Yaroslav Belousov (cited above, §§ 74-77).

On 6 June 2013 the Zamoskvoretskiy District Court of Moscow began a preliminary hearing in a criminal case against ten participants in the demonstration at Bolotnaya Square, who were charged with participation in acts of mass disorder and committing acts of violence against police officers. On 18 June 2013 the court began the trial on the merits.

On an unidentified date Police Officer K., the alleged victim of the applicant’s assault, was examined as a witness. He testified that he had been carrying out an order to split the crowd up when someone had pulled at his bullet-proof vest. He had fallen to the ground; someone had hit him several times and had taken off his anti-riot helmet. Other police officers had picked him up to take away him from the crowd. As a result of his fall and the blows, he had sustained injuries. Another police officer, V.K., testified that the applicant had kicked an unidentified police officer.

Three other officers, also examined as witnesses, stated that the applicant had resisted arrest by planting his feet firmly on the ground and attempting to escape. He had also uttered obscenities to the police officers and shouted at them.

On 21 February 2014 the Zamoskvoretsky District Court found the applicant guilty as charged. It held, in particular, as follows:

“Between 4 p.m. and 8 p.m. on 6 May 2012 ... at Bolotnaya Square ... unidentified persons ... called those present [at the venue] to move outside the agreed meeting venue, to defy the lawful orders of the police ..., to use violence ... which led to mass disorder accompanied by the use of violence against public officials in connection with the performance of their duties [and] the destruction of property.

On the same day at 5 p.m. at the latest [the defendants] acquired the criminal intent to participate in mass disorder and to use violence against ... police officers ...

Moreover ... the participants of the acts of mass disorder threw chunks of tarmac, stones, sticks and other objects at the police ... which hit them on various parts of their body, and [the defendants] ... [who] participated in the acts of mass disorder ... implemented their criminal intent to use violence against public officials ... applied physical force which was not a danger to the life or health of those [officials] ...

Thus, [the applicant] used violence against Police Officer [K.] which did not endanger his life or health ...

... between 5.10 p.m. and 8.20 p.m. ... unidentified participants of acts of mass disorder ... intentionally seized [K.] by his uniform and knocked him down, while [the applicant] together with other unidentified participants of acts of mass disorder, acting intentionally ... tore off [K.’s] anti-riot helmet ... and punched and kicked him several times on his head and body, meanwhile [the applicant] punched [K.’s] head at least once and at least once kicked [K.] on the body when the latter was lying on the ground. ...

[The applicant] ... pleaded not guilty and testified that ... he wanted to see why the meeting was not starting and went to Malyy Kamennyy Bridge where he saw the cordon ... Around 7.30 p.m. [the applicant] saw how police officers ... started beating people with truncheons. ... Then a jam occurred ... At some point [the applicant] found himself in the first line and saw the police officers harshly arresting and beating people, who tried to evade the blows. He was hit several times on the shoulder and the head, which led to dizziness. He was scared, he felt that his life was in danger, and while in a state of fury he moved towards a police officer, who happened to be [K.] and then moved his leg towards the police officer, who was getting up. [The applicant] did not see who knocked the latter down... [He] did not know whether his hand reached the target but supposed that he was able to touch the bullet-proof vest. He definitely did not touch [K.] with his leg and he caused him no harm. A few minutes later he was taken out of the crowd and beaten, his T-shirt was torn, then ... four police officers seized him and dragged him along the tarmac to the police vehicle. [The applicant] insists that he caused no injuries to the police officer and that his actions, provoked by panic, were taken in response to the events occurring around him. ...

... the court considers the [defendants’] arguments that they were protecting somebody from the police officers or happened to be victims of the police’s use of force as farfetched and aimed at the mitigation of their responsibility ...

... no medical document which could prove the presence of injuries on the [applicant’s] body ... was provided to the court.”

The applicant was sentenced to three years and seven months’ imprisonment, calculated on the basis of a three-year prison term under Article 212 § 2 of the Criminal Code, partly concurrent with a term of one year and eight months under Article 318 § 1 of the Criminal Code. The applicant’s pre-trial detention counted towards the prison sentence.

The applicant appealed against the judgment. He contested the classification of the crimes under both Article 212 and Article 318 of the Criminal Code. He insisted that he had been a victim of unlawful police action and that his involvement in using violence against the police officer has not been proven.

On 20 June 2014 the Moscow City Court upheld the first-instance judgment.


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

András Sajó;Egidijus Kūris;Nebojša Vučinić

The applicant is a limited liability company with its seat in Lovas.

The Veszprém County Administrative Office rejected the request of the applicant, a real-estate developer, for a building permit to construct a three-flat condominium. The Office was of the view that the project was irreconcilable with the planned location, the historical neighbourhood of Veszprém town.

On 21 June 2001 the applicant challenged this decision in court.

On 25 March 2003 the Veszprém County Regional Court quashed the administrative decision and remitted the case to the administrative authorities.

In the resumed administrative proceedings, on 2 March 2007 the applicant’s request was again dismissed.

On 18 April 2007 the applicant renewed its action.

On 31 October 2007 the Regional Court dismissed the action, holding that the administrative decisions had been given in compliance with the law.

On 25 February 2009 the Supreme Court dismissed, on the merits, the applicant’s petition for review (service: 14 April 2009).