No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);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) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)

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

The applicant was born in 1986 and lives in Moscow.

The background facts relating to the planning, conduct and dispersal of the public event 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 event 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 turned out 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 police and protesters. At 5.30 p.m. the police ordered that the meeting finish early and began to disperse the participants. It took them about two hours to clear the protestors from 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.

The applicant is a human rights activist and a lawyer of an NGO, the Committee for Civil Rights (Комитет за гражданские права). On 6 May 2012 he arrived at Bolotnaya Square to participate in the demonstration and during its dispersal kicked an unidentified police officer in the arm. After these events the applicant continued to live at his usual address and to pursue his normal activities, including taking part in authorised public events.

On 25 July 2012 the applicant’s flat was searched; the police seized the applicant’s clothes, domestic and international passports, other documents and his computer. On the same day the applicant was arrested on suspicion of having participated in acts of mass disorder on 6 May 2012.

On 26 July 2012 the Basmannyy District Court ordered the applicant’s pre-trial detention until 25 September 2012 on the following grounds:

“The prosecution bodies suspect [the applicant] of having committed a serious offence punishable with imprisonment of over two years.

... the court concludes that there are grounds to consider that [the applicant], if at liberty, is likely to abscond from the investigation and trial, to act in person or through proxy with the aim of avoiding criminal liability, to continue [his] criminal activity, to destroy evidence and otherwise obstruct the investigation, which is at its initial phase.

Operational-search activities are now underway, aimed at establishing [the applicant’s] possible connections with other active participants of the mass disorders which took place at Bolotnaya Square in Moscow and its environs, therefore, if at liberty, [he] might co-ordinate his position with unidentified accomplices.

... No factual information excluding the detention of [the applicant] on health grounds has been submitted to the court. The court takes into account that [the applicant] may request medical assistance in the detention facility, if necessary ...”

The District Court dismissed an application by the applicant for an alternative preventive measure, such as house arrest, and stated that his state of health did not preclude him from detention. On 5 September 2012 the Moscow City Court upheld the detention order.

On 2 August 2012 the applicant was charged with the offence laid down in Article 212 § 2 of the Criminal Code (participation in mass disorder accompanied by violence) and accused, in particular, of having kicked a police officer.

On 24 September 2012 the Basmannyy District Court extended the applicant’s detention until 6 November 2012, having found that the circumstances that had justified the detention order had not changed. The District Court dismissed the applicant’s allegations of lack of medical assistance in the remand prison as unsubstantiated. It stated that the applicant’s state of health was satisfactory and did not warrant his release. On 15 October 2012 the Moscow City Court upheld the extension order.

On 31 October 2012 the Basmannyy District extended the applicant’s detention until 6 March 2013 on essentially the same grounds as earlier. On 26 November 2012 the Moscow City Court upheld the extension order.

On 4 March 2013 the Basmannyy District Court examined a new application for an extension of the applicant’s pre-trial detention. The applicant complained of exacerbation of chronic diseases in detention. He asked to be released on bail and presented personal guarantees from two prominent public figures, including a human-rights activist, who vouched for him. On the same day the District Court extended the applicant’s detention until 6 July 2013. It considered that a milder preventive measure, including release on bail, would not prevent the applicant from obstructing the proper administration of justice. The applicant’s allegations in respect of the deterioration of his health were dismissed; the court relied on the medical statement from the remand prison, according to which his health was satisfactory. On 17 April 2013 the Moscow City Court upheld the extension order.

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 seriousness of the charges, the court based its decision on the findings that “the reasons which had 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 this extension order on 2 July 2013.

On 2 August 2013 the Presidium of the Moscow City Court examined the supervisory appeal lodged by the Ombudsman of the Russian Federation. It rectified the extension orders of 24 September and 31 October 2012, and 4 March and 6 June 2013 as well as the Moscow City Court’s decision of 15 October 2012. The Presidium found that the applicant’s detention had been unjustified and that the detention orders had not been supported by relevant facts; it also took account of his worsening health. The Presidium lifted the detention order and placed the applicant under the house arrest until 2 October 2013 under the following conditions: prohibition from leaving his house or changing his place of residence; prohibition from communicating with co-defendants and witnesses; prohibition from sending and receiving correspondence; prohibition from using any means of communication. On the same day the applicant was released from pre-trial detention.

On 26 September 2013 the Zamoskvoretskiy District Court extended the applicant’s house arrest until 2 January 2014. It referred to the seriousness of the charges and considered that as a human-rights activist the applicant could communicate with different authorities and persons and thus obstruct the course of criminal proceedings. On 28 October 2013 the Moscow City Court upheld this decision on appeal.

On 18 December 2013 the State Duma passed the Amnesty Act, which exempted people suspected and accused of criminal offences under Article 212 §§ 2 and 3 of the Criminal Code from criminal liability.

On 19 December 2013 the applicant applied for the termination of the criminal proceedings against him under the Amnesty Act. On the same day the Zamoskvoretsky District Court granted his application and lifted the house arrest.

Prior to his detention, the applicant was diagnosed with an organic lesion of the central nervous system, hypertensive syndrome, tonsillitis, chronic gastritis, atopic dermatitis, osteochondrosis and dorsopathy (back pain). According to the applicant, these diseases required regular medical supervision, diet and lifestyle adjustments.

From 27 July 2012 to 2 August 2013 the applicant was held in remand prison IZ-77/2 in Moscow. Upon his admission to the prison he underwent a health check which revealed no health issues except atopic dermatitis and scoliosis. The applicant provided the detention facility with his medical records which stated his chronic ailments.

On 31 August 2012 the applicant underwent a medical examination by a general practitioner (“GP”). He was diagnosed with vegetative-vascular dystonia, dorsopathy, osteochondrosis, kyphoscoliosis, and first- or seconddegree obesity. He received a prescription for a special diet limiting intake of fats and quickly-absorbed carbohydrates.

The applicant was subsequently examined by a GP on 25 September, 19 October and 26 November 2012, and 24 January, 15 and 25 February, and 15 March 2013. The examinations revealed no negative dynamics in the state of the applicant’s health; the prescriptions for the special diet were renewed each time.

By letter of 2 November 2012 the head of the IZ-77/2 informed the applicant’s father that chronic gastritis was not on the list of diseases which allow patients to receive additional nutrition.

On 30 November 2012 the applicant’s lawyer complained to the prison chief of the deterioration of his client’s health, in particular, of his regular headaches, back pain and weight-gain. He alleged that the applicant had put on 20 kg over the five months in detention and requested an inpatient medical examination.

On 31 January 2013 the applicant was examined by a neurologist and received a prescription for treatment in relation to vegetative-vascular dystonia. At the regular check-up by a GP on 15 February 2013 the applicant stated that his condition had improved; he was recommended to continue the prescribed treatment.

On 14 February 2013 the applicant’s lawyer reiterated his application for a medical examination and asked to give the applicant access to a gym.

On 4 April 2013 a medical commission composed of a GP, an infection specialist, a surgeon and two administrators examined the applicant and his medical history. In addition to the previous diagnoses, they established chronic liver disorder and recommended that he continue the special diet.

On 14 April 2013 the applicant was temporarily transferred to the medical wing of IZ-77/1. Upon his admission he was found to be suffering from second- or third-degree obesity (at this stage he weighed 109 kg and was 178 cm in height) and was prescribed the same diet as before.

In IZ-77/1 the applicant underwent series of medical examinations and tests, including an abdominal ultrasound, a thyroid echography, an electrocardiogram, roentgenofluorography, X-ray examinations of his skull and spine, and blood tests. He was regularly examined by a GP who adjusted the treatment according to the results of the tests. The applicant also had a consultation with a dermatologist.

The public commission for the monitoring of detention facilities visited the applicant on 17 and 24 April and 2 May 2013. According to the journal of their visits, the applicant did not complain of inadequate medical assistance in IZ-77/1.

The discharge summary (выписной эпикриз) from the medical wing of IZ-77/1, issued on 17 May 2013, contained the results of the applicant’s medical examinations. He was diagnosed with osteochondrosis, dorsopathy, fatty liver, hypercholesterolemia, vegetative-vascular dystonia, acne and first-degree obesity. The applicant received a prescription for physiotherapy and a special diet; he was also recommended to undergo a magnetic resonance imaging procedure in relation to a suspected cerebral condition, which had to be carried out in a different hospital equipped with the appropriate scanning device. On the same day the applicant was transferred back to IZ77/2.

On 6 July 2013 the applicant lodged a complaint about the authorities’ failure to carry out his medical examination to the Tverskoy District Court of Moscow. On 4 September 2013 the Tverskoy District Court refused to examine this complaint.

The magnetic resonance imaging procedure had not been carried out before the applicant’s release from the detention facility on 2 August 2013.

After release the applicant had a medical examination at the town hospital and a consultation with a prominent gastroenterologist. The doctor confirmed the applicant’s previous diagnoses related to the digestive system and prescribed him medical treatment, a special diet and physical exercise.

The applicant’s description of the conditions of detention during his transfer from the remand prison to court and back was identical to that in the case of Yaroslav Belousov (cited above, §§ 69-73).

On 6 June 2013 court proceedings began in hearing room no. 338 and at the end of July moved to hearing room no. 635 of the Moscow City Court. The defendants, including the applicant, were held in glass cabins in both hearing rooms, as described in Yaroslav Belousov (cited above, §§ 7476). From 2 August 2013 the applicant was no longer placed in the glass cabin owing to a change in the measure of restraint for him.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

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

The applicants complained of the inadequate conditions of their detention.


No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-e - Persons of unsound mind);No violation of Article 7 - No punishment without law (Article 7-1 - Heavier penalty;Conviction;Criminal offence)

Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Síofra O’Leary;Yonko Grozev

The applicant was born in 1943 and is currently detained in the centre for persons in preventive detention on the premises of Rosdorf Prison (hereinafter the “Rosdorf preventive detention centre”).

Between 1966 and 1984, the applicant was convicted by the criminal courts five times. He was found guilty of sexual assault of a seven-year-old girl and attempted rape of a fourteen-year-old girl, committed under the influence of alcohol, and of attempted sexual acts with a thirteen-year-old boy. He was found to have committed other unlawful acts, including arson and strangulating a ten-year-old boy during a burglary, but was not held criminally liable because he had been drunk. He was sentenced, in particular, to terms of imprisonment ranging from six months to ten years.

On 18 April 1986 the Hanover Regional Court convicted the applicant of two counts of attempted murder, combined with attempted rape in one case, and of two counts of dangerous assault. It sentenced him to fifteen years’ imprisonment and ordered his preventive detention under Article 66 § 2 of the Criminal Code (see paragraph 46 below).

The Regional Court found that between 7 July 1985 and 3 October 1985, the applicant had stabbed a nineteen-year-old female cyclist in the back in a life-threatening manner for sexual gratification; had stabbed a male cyclist he had mistaken for a woman twice in the back and at the temple, again for sexual gratification; and had stabbed a twentythree yearold woman three times in a life-threatening manner in an attempt to rape her. He had committed those offences under the influence of alcohol in a park in Hanover. Still drunk, he had then broken into a house, strangulated a four-year-old girl and had injured her with a knife below the waist for sexual gratification. He was arrested on 9 October 1985.

Having consulted two medical experts, the Regional Court found that at the time of committing the offences, the applicant had been in a state of diminished criminal responsibility (Article 21 of the Criminal Code, see paragraph 62 below). He was diagnosed with sexual deviance, a personality disorder and psycho-organic syndrome, which was probably a consequence of his longstanding alcohol abuse. As long as the applicant did not drink alcohol, those abnormalities did not affect his criminal responsibility as he was able to control his aggression. However, combined with the consumption of alcohol, they led to his criminal responsibility being diminished.

The Regional Court decided to order the applicant’s preventive detention under Article 66 § 2 of the Criminal Code. It considered that as a result of his personality disorder, the applicant had a propensity to commit serious offences which seriously harmed the victims both physically and mentally. As confirmed by the two medical experts, there was a high risk that if released, the applicant would commit further violent offences for sexual gratification under the influence of alcohol, similar to those of which he had been found guilty. He therefore presented a danger to the general public.

Lastly, the Regional Court decided not to order the applicant’s detention in a psychiatric hospital under Article 63 of the Criminal Code (see paragraph 63 below). The court endorsed the experts’ finding that the applicant’s personality disorder could no longer be treated because his sexually deviant aggressive behaviour had lasted for decades and because he would be unable to pursue psychotherapy in view of his limited intellectual capacity. Public security could therefore be better safeguarded by placing the applicant in preventive detention.

The applicant served his full term of imprisonment, and on 12 June 2001 he was placed for the first time in preventive detention, for which he was held in a wing of Celle prison. By 11 June 2011 he had served ten years in preventive detention.

The courts responsible for the execution of sentences ordered the continuation of the applicant’s preventive detention at regular intervals. In particular, the Lüneburg Regional Court ordered the continuation of his detention on 13 May 2011 and 5 October 2012.

On 26 July 2013 the Lüneburg Regional Court, sitting as a chamber responsible for the execution of sentences, ordered the continuation of the applicant’s preventive detention. The Regional Court further ordered the Rosdorf Prison authorities to offer the applicant, within three months of the date on which its decision became final, a specific anti-hormonal therapy with medication aimed at reducing his sadistic fantasies and his libido, and thus his dangerousness. The court had consulted the Celle Prison authorities and the prosecution and had heard the applicant in person as well as his counsel, who represented him throughout the proceedings before the domestic courts.

The Regional Court considered that the requirements for ordering the continuation of the applicant’s preventive detention laid down in the second sentence of section 316f(2) of the Introductory Act to the Criminal Code (see paragraph 53 below) had been met.

The Regional Court confirmed that the said transitional provision was applicable to the applicant’s case. It noted that at the time of his last offence on 3 October 1985, the applicant’s first placement in preventive detention could not exceed ten years. It was only following the entry into force of the Combating of Sexual Offences and Other Dangerous Offences Act on 31 January 1998 (see paragraph 51 below) that the courts responsible for the execution of sentences could prolong preventive detention without any maximum duration. The applicant therefore fell within the category of detainees whose preventive detention had been prolonged retrospectively, as defined by the Federal Constitutional Court in its judgment of 4 May 2011 (see paragraphs 66-72 below). The Regional Court further noted that the second sentence of section 316f(2) of the Introductory Act to the Criminal Code had regard to, and had taken up, the standards set up by the Federal Constitutional Court in the above-mentioned judgment for the continuation of retrospectively ordered or retrospectively prolonged preventive detention.

The Regional Court considered that, in accordance with section 316f(2) of the Introductory Act to the Criminal Code, the applicant suffered from a mental disorder for the purposes of section 1(1) of the Therapy Detention Act (see paragraph 64 below). It endorsed the findings made on that point by W., an external psychiatric expert it had consulted, in his report dated 8 June 2013. The expert had been obliged to draw up his report on the basis of the case files as the applicant had refused to be examined. Expert W. had confirmed that the applicant suffered from sexual sadism, a sexual deviance, and was addicted to alcohol, even though he had not drunk since being detained. The Regional Court stressed that expert W.’s assessment confirmed the findings made by a number of previous experts, notably those made in January and May 2011 by two experts who had diagnosed the applicant with a sexual preference disorder with sadomasochistic, fetishist and paedophiliac elements and with an alcohol addiction without current consumption of alcohol.

Furthermore, the Regional Court found that, as required by section 316f(2), second sentence, of the Introductory Act to the Criminal Code, there was still a very high risk that, owing to specific circumstances relating to his personality and his conduct, the applicant would if released commit the most serious sexually motivated violent offences, similar to those of which he had been convicted. Endorsing the findings of expert W., in accordance with the above-mentioned previous expert reports, the court noted that the applicant had admitted to his sadistic fantasies but had been unable to address them through therapy. In Celle Prison, he had stopped participating in any activities for persons in preventive detention. The Regional Court stressed that, in his assessment of the applicant’s dangerousness, the expert had taken into consideration his advanced age of sixty-nine years. However, he had convincingly explained that the applicant’s sexual deviance had not yet been considerably alleviated thereby. Furthermore, his alcohol addiction had not yet been treated adequately. However, the consumption of alcohol further increased the high risk that the applicant would commit sexual or violent offences again if released.

The Regional Court considered that the prolongation of the preventive detention of the applicant, who had been detained for almost thirty years, was still proportionate in view of the considerable threat he posed to the public. It noted in that context that the applicant’s detention in a supervised residence, which it had suggested in its previous decision, was not possible in practice.

As regards the order issued by the Regional Court, based on Article 67d § 2 of the Criminal Code, read in conjunction with Article 66c § 1 sub-paragraph 1 of the Criminal Code (see paragraphs 49 and 54 below), that the Rosdorf Prison authorities offer the applicant specific anti-hormonal therapy, the court found that that order was necessary to guarantee the applicant sufficient care while in preventive detention. Expert W. had stressed – as he had already done in 2012 – that the prison authorities must at least attempt to treat the applicant, who was willing to undergo treatment with medication. The anti-hormonal therapy to be offered had proved to diminish sadistic fantasies and the libido, and could therefore reduce the applicant’s dangerousness.

On 1 August 2013 the applicant lodged an appeal against the Regional Court’s decision, for which he submitted reasons on 14 August 2013. He argued, in particular, that his preventive detention, a penalty which had been prolonged retrospectively, failed to comply with the Convention.

On 2 September 2013 the Celle Court of Appeal dismissed the applicant’s appeal. Endorsing the reasons given by the Regional Court, it confirmed that the requirements laid down in section 316f(2), second sentence, of the Introductory Act to the Criminal Code for ordering the continuation of the applicant’s preventive detention had been met.

Taking into account the report submitted by expert W., the Court of Appeal held that the applicant was suffering from a mental disorder as defined in section 1(1) of the Therapy Detention Act. Referring to the Federal Constitutional Court’s case-law (see paragraphs 73-76 below), it found that a mental disorder under that Act did not require that the disorder was such as to diminish or exclude the criminal responsibility of the person concerned for the purposes of Articles 20 and 21 of the Criminal Code (see paragraphs 61-62 below). Specific disorders affecting a person’s personality, conduct, sexual preference and control of impulses were covered by the notion of “mental disorder” in section 1(1) of the Therapy Detention Act. The applicant’s sexual sadism and his alcohol addiction without current consumption of alcohol amounted to a mental disorder within the meaning of that provision.

Moreover, there was still a very high risk that, if released, the applicant would commit the most serious violent and sexual offences, similar to those of which he had been convicted, owing to specific circumstances relating to his personality and his conduct. The applicant’s dangerousness had not been reduced through therapy; nor had he become less dangerous by his advancing age. He currently did not participate in any serious therapeutic activities and kept trivialising his offences. Moreover, expert W. had confirmed that his mental illness was difficult to treat. The Court of Appeal further endorsed the Regional Court’s finding that the applicant’s continued detention was still proportionate, despite the considerable overall length of his detention.

On 24 September 2013 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the decisions of the Lüneburg Regional Court and the Celle Court of Appeal. He claimed that the order for the continuation of his preventive detention violated his constitutional right to liberty, read in conjunction with the constitutional right to protection of legitimate expectations guaranteed in a State governed by the rule of law.

The applicant argued that under the European Court of Human Rights’ well-established case-law (he referred to M. v. Germany, no. 19359/04, ECHR 2009), the retrospective prolongation of a person’s preventive detention – a penalty – beyond the former ten-year time-limit breached the prohibition on retrospective punishment under Article 7 of the Convention and did not comply with sub-paragraph (a) of Article 5 § 1 of the Convention. Moreover, his continuing preventive detention could not be justified under sub-paragraph (e) of Article 5 § 1 either. He did not suffer from a mental disease as required by that provision. In addition, the notion and scope of “mental disorder” under the applicable provisions of domestic law and in the domestic courts’ case-law was unclear.

The applicant further stressed that the Regional Court had recommended his placement in a supervised residence. In those circumstances, his continued preventive detention on the premises of Rosdorf Prison was no longer proportionate. He conceded, however, that his detention in the new preventive detention centre on the premises of Rosdorf Prison complied with the constitutional requirement to differentiate between preventive detention and detention for serving a term of imprisonment.

On 29 October 2013 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint without giving reasons (file no. 2 BvR 2182/13). The decision was served on the applicant’s counsel on 7 November 2013.

On 5 December 2011 the Lüneburg Regional Court, civil section, ordered the applicant’s placement in Moringen Psychiatric Hospital under the Therapy Detention Act. It found that the applicant suffered from a mental disorder for the purposes of section 1 of that Act and that there was a high risk that, if released, he would commit further serious offences. On 31 January 2012 the Celle Court of Appeal quashed that decision on the grounds that detention under the Therapy Detention Act could only be ordered once the preventive detention of the person concerned had been terminated by a final decision.

On 25 April 2014 the Göttingen Regional Court, in a decision reviewing the continuation of the applicant’s preventive detention, ordered the continuation of the applicant’s preventive detention. It noted that the applicant had repeatedly refused treatment with medication to diminish his libido.

On 15 January 2015 the Göttingen Regional Court, having consulted medical expert J., again ordered the continuation of the applicant’s preventive detention under Article 67d § 3 of the Criminal Code, read in conjunction with section 316f(2), second sentence, of the Introductory Act to the Criminal Code (see paragraphs 51 and 53 below). On 24 April 2015 the Braunschweig Court of Appeal dismissed an appeal lodged by the applicant against the decision of the Regional Court.

Until 20 February 2012 the applicant had been held in preventive detention in a wing of Celle Prison. He had participated in therapy with a psychologist between 2005 and 2010, but had then stopped that therapy. He had refused to participate in the alcohol addiction treatment programme offered to him or any other treatment measures.

On 20 February 2012 the applicant was transferred with his consent to a wing of Celle Prison for persons in preventive detention where a transitional concept had been adopted. The aim was to improve the available treatment options in the light of the duty to differentiate preventive detention and detention for serving a term of imprisonment, by reference to the European Court of Human Rights’ judgment in M. v. Germany (cited above) and the Federal Constitutional Court’s judgment of 4 May 2011 (see paragraphs 66-72 below). The applicant participated in group therapy sessions run by a doctor and in a social skills training course. He stopped attending the group for addicts and refused to take medication to reduce his libido for fear of side effects.

Since 2 June 2013 the applicant has been detained in the new Rosdorf centre for persons in preventive detention, a separate building constructed on the premises of Rosdorf Prison.

The conception of preventive detention in the centre was developed in order to comply with the constitutional requirement to differentiate between preventive detention and imprisonment, as defined in the Federal Constitutional Court’s judgment of 4 May 2011 (see paragraphs 67 and 70 below) and as further specified in the newly enacted Article 66c of the Criminal Code and in the Lower Saxony Preventive Detention Act (see paragraphs 54, 56-57 and 59-60 below).

Up to forty-five persons can be detained in the Rosdorf centre. Detainees are placed in apartment units measuring some 23 square metres containing two furnished rooms and a bathroom. With the exception of detainees posing a particular security risk, the detainees can move freely within the preventive detention building and on its outdoor premises from 6 a.m. to 9.45 p.m. They may furnish and paint their rooms, to which they have their own keys. The rooms are equipped with a controlled access to the internet including e-mail, telephone, television, CD and DVD player and radio. There are common rooms for residential groups consisting of some seven detainees, which include a kitchen, a dining room, a television room and rooms for games, handicraft work and exercise. The outdoor premises, measuring some 1,600 square metres, can be used for sports, recreation or gardening.

Persons in preventive detention in the Rosdorf centre may wear their own clothes. They can either take meals prepared by the centre’s staff or prepare their own meals (in which case they receive an allowance for purchasing food in the centre’s supermarket). Persons in preventive detention may work, but are not obliged to do so. They may receive visits regularly.

According to information furnished by the Government, at the relevant time the applicant was one of some thirty persons detained in the Rosdorf preventive detention centre. In order to comply with the duty to provide the necessary therapy and care and to motivate detainees to participate in the relevant therapies and treatment, the centre’s staff comprised one psychiatrist, four psychologists, five social workers and twenty-five members of the general prison service. The staffing situation was similar to that of Moringen Psychiatric Hospital, situated in the same Land and where persons were detained under Article 63 of the Criminal Code.

Detainees are examined at the beginning of preventive detention in order to determine the necessary therapy and care. A personal treatment plan (Vollzugsplan) is then drawn up.

According to the personal treatment plan drawn up for the applicant by the Rosdorf centre on 28 November 2014, it was noted that in the past, from July 2013 until August 2014, the applicant participated in group sessions aimed at preventing detainees from relapsing into excessive alcohol consumption. He then stopped attending the meetings. He also regularly participated in group sessions at which detainees discussed their experiences during leave from detention. He stopped participating in those meetings in August 2014 too, arguing that the participants were not granted sufficient additional leave. In addition, he had motivation meetings with a psychologist fortnightly until March 2014, when he stopped attending the meetings, alleging that the psychologist lacked experience. He took part in weekly residential group meetings from June 2013 until February 2014, when he stopped attending the meetings, arguing that his treatment plan did not meet his expectations. He did not take part in any structured leisure activities and spent most of his day alone watching television. He declined repeated invitations to take part in group sessions of the treatment programme for offenders. Thus, as from August 2014 the applicant no longer participated in any therapy measures. He proved reliable during leave from the detention centre under escort on a number of occasions.

According to the Rosdorf centre’s treatment plan for the applicant of 28 November 2014 and an internal note from a staff member of the centre, the applicant has refused regular and repeated offers to start a treatment with medication to reduce his libido, which had been recommended by expert W. in 2013, for fear of side effects. In December 2014 he showed willing for the first time to take up such treatment.


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

Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque

The applicant was born in 1959 and is currently detained in Baia Mare Prison.

On 10 January 2002 an investigation was opened against the applicant for embezzlement, forgery and abuse of his official position as Minister for Agriculture. The criminal investigation ended on 19 December 2003 with the applicant’s indictment together with three other co-accused.

On 27 April 2011 the applicant was convicted of the above-mentioned crimes by the High Court of Cassation and Justice and sentenced to seven years’ imprisonment.

On 28 May 2012 the applicant’s appeal against the above-mentioned judgment was rejected with final effect by a five-judge panel of the High Court of Cassation and Justice. The full text of the judgment became available to the applicant on 1 November 2012.

The applicant started serving his sentence in Gherla Prison on 31 May 2012. On 2 April 2013 he was transferred to Baia Mare Prison where he is currently serving his sentence. On admission to prison, the applicant was already suffering from type II diabetes, which was being treated with insulin, hypertension, ischaemic heart disease, biliary lithiasis and lumbar discopathy.

According to the report drawn up on the applicant’s arrival in Gherla Prison on 31 May 2012 the applicant was allowed to take with him to his cell, among other items, one glucometer with forty-one test strips and needles as well as several drugs.

During his ten-month stay in Gherla Prison the applicant was taken to the medical ward eighteen times. He was given a special diet for diabetics and was allowed to work. He was taken to diabetes specialists outside the prison system on several occasions where he was prescribed a special diet, medication and constant self-monitoring of his glycaemia level. According to the applicant’s medical chart in Gherla Prison his glycaemia levels were measured two, three or four times per day at the prison’s infirmary. Copies of the same medical chart also show that the applicant regularly received medication from the prison infirmary. On 9 October 2012 his signature confirmed the receipt of thirteen drugs including vitamin C and omega 3.

Forensic medical examinations conducted in September and December 2012 concluded that the applicant’s diseases could be treated within the prison system.

In Baia Mare Prison the applicant was examined at the prison’s infirmary twenty-four times between April 2013 and September 2014. In addition, he was taken for specialist diabetes and nutrition examinations at the Baia Mare County Hospital nine times between 24 May 2013 and 2 October 2014.

According to the Government’s submissions and copies of the applicant’s medical chart, throughout his detention in Baia Mare Prison the applicant was given, as needed and according to doctors’ prescriptions, insulin and drugs for his hypertension as well as neurotrophic, gastric protective, hypercholesterol and other drugs.

According to the information provided by the National Administration of Prisons the applicant made no complaints concerning his medical treatment. On 10 August 2012 the applicant’s lawyer was informed that the complaint against the applicant’s placement in the closed prison regime had been rejected. On 5 September 2013 the applicant’s lawyer was informed by the Baia Mare Prison administration that the applicant could not be compensated for the work he had performed in detention with permission to leave the prison.

The applicant alleged that he had been transported in conditions which had not allowed him to take his insulin. In addition, the food provided during transport had not been adapted to his diabetes. The vehicles in which he had been transported lacked air conditioning and other prisoners had been smoking during the trips.

From the Government’s submissions it appears that the applicant was transferred sixteen times between detention facilities, to the hospital or to the courts, in special vehicles (Iveco, Mercedes or Raba vans) which were well-maintained and met the legal comfort requirements. They were fitted with windows, lights, heating and sunroofs. Some of them also had air-conditioning. The number of detainees transported never exceeded the number of available seats. Detainees were provided with food and water during transfers, and were allowed bathroom breaks. Smoking was strictly prohibited in the vehicles.

According to the information provided by the National Administration of Prisons, the applicant was allowed to take with him his personal glycaemia kit and medication and was therefore able to measure his glycaemia. Moreover, during long drives a number of breaks were taken allowing the applicant to administer his treatment. As regards the food received during transport, the applicant was provided with a diabetic menu as follows: during transport to and from Gherla Prison the applicant received 100 grams of biscuits, 100 grams of cheese, one egg and 500 grams of bread; during transport to and from Baia Mare Prison the applicant received 320 grams of unsalted cheese, two eggs, 300 grams of processed poultry meat, 260 grams of semi-white bread and 250 grams of apples. Copies of the prison menus were submitted in support of these assertions.

According to the prison visits record the applicant often received food packages which included sweets, fruits and vegetables as well as bottles of juice, all of which he was allowed to take with him during transport.

The Government submitted that the prison authorities had received no complaints or requests from the applicant in connection with the conditions of transport.


Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-c - Reasonable suspicion);No violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Speediness of review);Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicant was born in 1953. He is currently detained in Istanbul.

The applicant is an economics professor and a journalist in Turkey. Prior to the attempted military coup of 15 July 2016, he presented a political discussion programme on Can Erzincan TV, a television channel that was closed down following the adoption of Legislative Decree no. 668, issued on 27 July 2016 in connection with the state of emergency (see paragraphs 14-18 below).

In the years leading up to the attempted coup, the applicant had been known for his critical views on the serving government’s policies.

During the night of 15 to 16 July 2016 a group of members of the Turkish armed forces calling themselves the “Peace at Home Council” attempted to carry out a military coup aimed at overthrowing the democratically elected parliament, government and President of Turkey.

During the attempted coup, soldiers under the instigators’ control bombarded several strategic State buildings, including the parliament building and the presidential compound, attacked the hotel where the President was staying, held the Chief of General Staff hostage, attacked television channels and fired shots at demonstrators. During the night of violence, more than 300 people were killed and more than 2,500 were injured.

The day after the attempted military coup, the national authorities blamed the network linked to Fetullah Gülen, a Turkish citizen living in Pennsylvania (United States of America) and considered to be the leader of a terrorist organisation known as FETÖ/PDY (“Gülenist Terror Organisation/Parallel State Structure”). Several criminal investigations were subsequently initiated by the appropriate prosecuting authorities in relation to suspected members of that organisation.

On 20 July 2016 the government declared a state of emergency for a period of three months as from 21 July 2016; the state of emergency was subsequently extended for further periods of three months by the Council of Ministers, chaired by the President, most recently with effect from 19 January 2018.

On 21 July 2016 the Turkish authorities gave notice to the Secretary General of the Council of Europe of a derogation from the Convention under Article 15.

On an unspecified date, the Istanbul public prosecutor initiated a criminal investigation in respect of suspected members of FETÖ/PDY. In addition, on the basis of Article 3 § 1 (l) of Legislative Decree no. 668, he ordered restrictions on the right of the suspects’ lawyers to inspect the contents of the investigation file or to obtain copies of documents in the file. In the course of the criminal investigation, the applicant was arrested at his home on 10 September 2016 and taken into police custody on suspicion of having links to the media wing of the organisation in question.

On the same day, the applicant’s home was searched by police officers without his lawyers being present, as they had been prevented from attending the search on account of the state of emergency.

Later that day, the applicant lodged an objection challenging his detention in police custody and seeking his release. On 12 September 2016 the Istanbul magistrate’s court dismissed the objection.

The applicant remained in police custody for twelve days at the Istanbul police anti-terrorist branch. During his first five days in custody, he was not permitted to speak to his lawyers.

On 20 September 2016, while at the police station, the applicant stated that he was asserting his right to remain silent.

On 21 September 2016 he was questioned by the Istanbul public prosecutor on suspicion of attempting to overthrow the government or to prevent it from discharging its duties (Article 312 of the Criminal Code – (“the CC”) and of being a member of the FETÖ/PDY terrorist organisation (Article 314 of the CC).

The records of the questioning indicate that the applicant was accused of: (i) attempting to discredit an investigation into an alleged coup (the “Balyoz” case); (ii) making certain statements serving the interests of FETÖ/PDY, in particular during a television programme broadcast on Can Erzincan TV on 14 July 2016, in the course of which, according to the public prosecutor, the terrorist organisation had sought to prepare the public for a military coup; (iii) holding an account with Bank Asya, a bank with alleged links to FETÖ/PDY; (iv) avoiding a criminal investigation through the assistance of members of the national police suspected of belonging to FETÖ/PDY; (v) visiting Fetullah Gülen at his home in Pennsylvania and kissing his hand; and (vi) having in his possession a United States one-dollar bill with an “F” serial number (denoting the initial of the forename Fetullah). In reply, the applicant stated that he did not know any Turkish army officers and had no links to the attempted coup. The comments he had made during the television programme in question had been intended as warnings to prevent future military coups. Regarding the bank account, some years previously he had taught for three months at a private university, which had asked him to open an account at the bank in question for payment of his wages. He added that he had not been aware of having avoided a criminal investigation through the assistance of certain suspected members of an illegal organisation, and that this was a matter to be taken up with the police officers allegedly responsible. Furthermore, he had visited Fetullah Gülen as a member of a group of journalists, for purely professional reasons linked to his role as a journalist, and had never kissed anyone’s hand. Lastly, the one-dollar bill was of no special significance.

On 22 September 2016 the applicant appeared before the Istanbul 10th Magistrate’s Court and was questioned about his alleged acts and the accusations against him. At the end of the hearing, the magistrate ordered the applicant’s pre-trial detention, having taken the following factors into consideration: the strong suspicions against him; the nature of the alleged offences and the fact that they were among the offences listed in Article 100 § 3 of the Code of Criminal Procedure (“the CCP”) – the so-called “catalogue offences”, for which a suspect’s pre-trial detention was deemed justified in the event of strong suspicion; the risk of absconding; and the risk that alternative measures to detention might be insufficient to ensure the applicant’s participation in the criminal proceedings. In the reasons for his decision, the magistrate noted the following: during the attempted military coup, members of FETÖ/PDY had used heavy weapons; since February 2012 the organisation in question had been explicitly waging a campaign against the political authorities; the members of FETÖ/PDY had attempted to force the government’s resignation by discrediting it in public opinion, especially through judicial operations carried out between 17 and 25 December 2013; and the organisation had taken control of several media outlets with a view to achieving its aim. The magistrate further noted that during the television broadcast on 14 July 2016, the applicant had said: “Within the State of the Republic of Turkey, there is probably another structure, whose components outside Turkey are closely observing and documenting all these events. It is not clear exactly when [it] will pull its hand out of the bag or how [it] will do so” (“Türkiye Devleti içinde de muhtemelen bütün bu gelişmeleri dış dünyada daha fazla belgeleyen, izleyen bir başka da yapı var. Onun ne zaman torbadan elini çıkaracağı, nasıl elini çıkaracağı belli değil”). The magistrate concluded that there were suspicions that the contents of the applicant’s statements about the political authorities had been intended to prepare the ground for a military coup and were not covered by freedom of the press.

On 28 September 2016 the applicant lodged an objection against the order for his pre-trial detention. In a decision of 10 October 2016 the Istanbul 2nd Magistrate’s Court dismissed the objection.

On 14 October 2016 the applicant lodged a fresh application for his release. In a decision of 26 October 2016 the Istanbul 3rd Magistrate’s Court rejected the application.

On various dates the applicant lodged further applications seeking his release pending trial. According to the documents produced by the parties, the applications were all rejected by the competent magistrates’ courts, for example on 10 and 24 November 2016 and 8 December 2016.

On 14 April 2017 the Istanbul public prosecutor filed a bill of indictment with the Istanbul Assize Court in respect of several individuals, including the applicant, in particular accusing them, under Articles 309, 311 and 312 in conjunction with Article 220 § 6 of the CC, of attempting to overthrow the constitutional order, the Turkish Grand National Assembly and the government by force and violence, and of committing offences on behalf of a terrorist organisation without being members of it. The public prosecutor presented the following items of evidence against the applicant: two articles written by him; his comments during the television broadcast on 14 July 2016; the fact that he had an account with Bank Asya; and the seizure at his home of a United States one-dollar bill with an “F” serial number. He sought the imposition of three aggravated life sentences and a sentence of up to fifteen years’ imprisonment on the applicant.

On an unspecified date, the public prosecutor filed his submissions on the merits (esas hakkında mütalaa). He sought the applicant’s conviction for the offences with which he was charged. Besides the evidence he had already submitted when the bill of indictment had been filed, the public prosecutor also produced messages sent by other suspected members of FETÖ/PDY via ByLock, an encrypted messaging service allegedly used by members of that organisation.

During the criminal proceedings, the applicant denied having committed any criminal offence.

In a summary judgment of 16 February 2018 the Istanbul 26th Assize Court sentenced the applicant to aggravated life imprisonment, in accordance with Article 309 of the CC, for attempting to overthrow the constitutional order. The criminal proceedings are still ongoing in the national courts.

On 8 November 2016 the applicant lodged an individual application with the Constitutional Court. He complained that he had been placed in pre-trial detention on account of his articles and statements and alleged that this infringed his right to liberty and security and his right to freedom of expression and of the press. He also submitted that he had been arrested and detained for reasons other than those provided for by the Constitution. In addition, he complained that his detention in police custody had been unlawful and excessively lengthy, that he had had no access to the investigation file in order to challenge his pre-trial detention, that the magistrates ordering his detention had not been independent or impartial, that no hearings had been held following his applications challenging his continued pre-trial detention, and that the conditions of his detention were incompatible with the prohibition of inhuman and degrading treatment.

On 11 January 2018 the Constitutional Court gave a judgment (no. 2016/23672) in which it held, by eleven votes to six, that there had been a violation of the right to liberty and security and the right to freedom of expression and of the press.

With regard to the applicant’s complaint that his pre-trial detention was unlawful, the Constitutional Court noted firstly that the evidence forming the basis for his detention had included: (i) an article entitled “The meaning of Sledgehammer” (“Balyoz’un Anlamı”), published in the Star newspaper in 2010; (ii) his statements during the television programme broadcast on Can Erzincan TV on 14 July 2016; and (iii) an article entitled “Turbulence” (“Türbülans”), published on his own website on 20 July 2016. After examining the substance of these items of evidence, the Constitutional Court held that the investigating authorities had been unable to demonstrate any factual basis that might indicate that the applicant had been acting in accordance with the aims of FETÖ/PDY or with the purpose of preparing the ground for a possible military coup. The Constitutional Court observed that, as well as having published the above-mentioned articles and made the statements in question, the applicant was accused of holding an account with Bank Asya, having avoided a criminal investigation through the connivance of members of the national police suspected of belonging to FETÖ/PDY, and having in his possession a United States one-dollar bill with an “F” serial number. Addressing those allegations, the Constitutional Court held, having regard to the applicant’s testimony and line of defence, that no specific facts had been established that could refute his explanations, which were “consistent with the normal course of life”. Similarly, regarding the contents of the messages exchanged by other individuals via ByLock, the Constitutional Court held that the messages could not in themselves be regarded as significant indications that the applicant had committed an offence. Accordingly, it concluded that “strong evidence that an offence had been committed” had not been sufficiently established in the applicant’s case. Next, the Constitutional Court examined whether there had been a violation of the right to liberty and security in the light of Article 15 of the Constitution (providing for the suspension of the exercise of fundamental rights and freedoms in the event of war, general mobilisation, a state of siege or a state of emergency). On this point, it noted firstly that in a state of emergency, the Constitution provided for the possibility of taking measures derogating from the guarantees set forth in Article 19, to the extent required by the situation. It observed, however, that if it were accepted that people could be placed in pre-trial detention without any strong evidence that they had committed an offence, the guarantees of the right to liberty and security would be meaningless. Accordingly, it held that the applicant’s pre-trial detention was disproportionate to the strict exigencies of the situation and that his right to liberty and security, as safeguarded by Article 19 § 3 of the Constitution, had been breached.

However, having regard to the length of the applicant’s detention and the documents available to it, the Constitutional Court held that his complaint that he had been detained for political purposes, on grounds other than those provided for by the Constitution, lacked a sufficient basis.

With regard to the complaint concerning freedom of expression and of the press, the Constitutional Court observed that the applicant’s initial and continued pre-trial detention on account of his articles and statements amounted to interference with the exercise of that right. Taking into account his arguments regarding the lawfulness of his pre-trial detention, the Constitutional Court held that such a measure, which had serious consequences since it resulted in deprivation of liberty, could not be regarded as a necessary and proportionate interference in a democratic society. It further noted that it could not be clearly established from the reasons given for ordering and extending the applicant’s pre-trial detention whether the measure met a pressing social need or why it was necessary. Lastly, it found that it was clear that the applicant’s pre-trial detention could have a chilling effect on freedom of expression and of the press, in so far as it had not been based on any concrete evidence other than his articles and statements (see paragraph 235 of the Constitutional Court’s judgment). Regarding the application of Article 15 of the Constitution, it referred to its findings concerning the lawfulness of his pre-trial detention (as set out in paragraphs 155-57 of its judgment – see paragraph 36 above) and held that there had also been a violation of freedom of expression and freedom of the press as enshrined in Articles 26 and 28 of the Constitution.

With regard to the complaints concerning the lawfulness and duration of the applicant’s detention in police custody, the Constitutional Court held that he should have brought an action under Article 141 § 1 (a) of the CCP but had refrained from doing so. Furthermore, it noted that there was no information in the application or the appended material as to whether the applicant had lodged an objection under Article 91 § 5 of the CCP against his detention in police custody. Accordingly, it declared these complaints inadmissible for failure to exhaust the appropriate remedies.

As to the complaint of a lack of independence and impartiality on the part of the magistrates who had ordered the applicant’s pre-trial detention, the Constitutional Court dismissed it as being manifestly ill-founded, on the grounds that the magistrates were appointed by the High Council of Judges and Prosecutors and were entitled to the same constitutional safeguards as other judges.

Concerning the applicant’s complaint that he had had no access to the investigation file, the Constitutional Court held that he had had sufficient means available to prepare his defence to the charges against him and challenge his pre-trial detention, in view of the contents of the detailed questions put to him during questioning by the public prosecutor and the magistrate, and the overall duration of the restriction on access to the case file. Accordingly, it declared this complaint inadmissible as being manifestly ill-founded.

With regard to the complaint that no hearing had been held during the examination of the applicant’s applications challenging his pre-trial detention, the Constitutional Court found that there was no obligation to hold a hearing on each and every objection to pre-trial detention orders and their extension, and that where a person had been able to appear before the first-instance court considering the issue of detention, the fact that there was no hearing on a subsequent appeal did not in itself contravene the Constitution since it did not breach the principle of equality of arms. The Constitutional Court noted that the applicant and his lawyer had been present at the hearing on 22 September 2016, following which the applicant had been placed in pre-trial detention. It observed that he had lodged an objection against his detention on 28 September 2016, that the objection had been dismissed on 10 October 2016 and that eighteen days had thus elapsed between his previous appearance in court and the dismissal of his objection. Taking this period into account, the Constitutional Court considered that there had been no obligation to hold a hearing during the examination of his objection, and accordingly declared this complaint likewise inadmissible as being manifestly ill-founded.

Lastly, with regard to the applicant’s complaint that the conditions of his detention were incompatible with the prohibition of inhuman and degrading treatment, the Constitutional Court observed that he had not raised this issue with the enforcement judge. Accordingly, it declared the complaint inadmissible for failure to exhaust the appropriate remedies.

Having regard to its findings of violations, the Constitutional Court held that the applicant was to be awarded 20,000 Turkish liras (TRY – approximately 4,500 euros (EUR)) in respect of non-pecuniary damage and TRY 2,219.50 (approximately EUR 500) in respect of costs and expenses.

As the applicant was still in pre-trial detention on the date of delivery of its judgment, the Constitutional Court decided to transmit the judgment to the Istanbul 26th Assize Court so that it could take “the necessary action”.

On 11 January 2018 the applicant’s lawyer applied to the Istanbul 26th Assize Court for his client’s release.

On the same day, the Istanbul 26th Assize Court rejected the application by two votes to one, on the grounds that it had not yet received official notification of the Constitutional Court’s judgment. It held in addition that the summary judgment submitted by the applicant’s lawyer did not contain any indication by the Constitutional Court of a measure relating to the applicant’s release.

In his opinion the dissenting judge stated that, in accordance with Article 153 § 6 of the Constitution, the Constitutional Court’s judgments were binding on the legislative, executive and judicial organs, the administrative authorities and natural and legal persons. Accordingly, where a violation had been found on account of a judicial decision, the relevant court was required to take the necessary action to redress the effects of the violation, pursuant to section 50(2) of Law no. 6216 on the establishment and rules of procedure of the Constitutional Court (“Law no. 6216”). In his view, the only way of satisfying this requirement in the applicant’s case was to order his release.

On 12 January 2018 the applicant lodged an objection with a view to securing his release, submitting a copy of the Constitutional Court’s judgment of 11 January 2018 as published on the court’s website.

In a decision delivered on 15 January 2018 the Istanbul 27th Assize Court, by two votes to one, dismissed the applicant’s objection and ordered the continuation of his pre-trial detention. In reaching that finding, it observed that the Constitutional Court’s judgment had not been published in the Official Gazette as required by Article 153 § 6 of the Constitution.

In his dissenting opinion, the judge in the minority expressed the view that, since the Constitutional Court’s judgments were binding and not subject to appeal, the applicant should be released pending trial without waiting for the judgment in question to be published in the Official Gazette.

On 19 January 2018 the Constitutional Court’s judgment on the individual application lodged by the applicant was published in Official Gazette no. 20306.

On the same day, the Istanbul 26th Assize Court examined of its own motion the question of the applicant’s continued detention. Noting firstly that the examination of the merits of an individual application to the Constitutional Court against a judicial decision entailed determining whether there had been a violation of fundamental rights and what measures would be appropriate to put an end to the violation, and secondly that grounds of appeal on points of law could not be examined by the Constitutional Court in the context of an individual application, it found that the Constitutional Court did not have jurisdiction to assess the evidence in the case file. On that account, the Constitutional Court’s judgment no. 2016/23672 was not in compliance with the law. The Assize Court added that ordering the applicant’s release as an automatic consequence of the judgment in question would run counter to the general principles of law, the independence of the courts, the principle that no authority could give orders or instructions to the courts, and the “natural judge” principle. Lastly, by two votes to one, it ordered the continuation of the applicant’s pre-trial detention. In so holding, it took the following into account: the evidence before it; the large scale of the attempted military coup; the risk of the applicant’s absconding; the current state of the case file; and the severity of the potential sentence in the event of a conviction.

The judge who had voted in favour of the applicant’s release stated in a dissenting opinion that the Constitutional Court’s judgments were binding and that the Assize Court was thus required to comply with judgment no. 2016/23672. He pointed out that the only possible way for it to do so was to order the applicant’s release.

On 30 January 2018 the applicant lodged a further individual application with the Constitutional Court. Relying on Articles 5, 6 and 18 of the Convention, he complained mainly that he had been kept in pre-trial detention despite the Constitutional Court’s judgment of 11 January 2018.


Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

The applicant was born in 1974 and lives in Sofia.

On 15 October 1993 the applicant got married. At the time of the marriage, the applicant’s wife had an almost three-year old son, who had been born on 20 September 1990 and whose father had been registered as “unknown”. On 21 September 1993 the applicant was registered as having recognised paternity in respect of that child.

The spouses apparently stopped living together about two years after their marriage and divorced in 1997.

In 1999 the applicant brought a claim in court to declare his recognition of paternity null and void. In particular, he asserted that the declaration, with which the child had been recognised and which had been enclosed in the case file, bore a signature that was not his. The Sofia City Court examined his case and found that the legal requirements for recognition of the child had not been met. More specifically, the applicant had not personally expressed his will to recognise the child before the State agent authorised to receive such declarations; in addition, it had been established on the basis of an expert report during the proceedings that the signature on the documents with which the child had been recognised in 1993 was not that of the applicant. The court declared the recognition of the child by the applicant null and void in a final decision of June 2001, which entered into force the following month.

In March 2002 the applicant’s former wife brought a claim on behalf of her child to establish the applicant’s paternity. She asked the court to order gynecological and blood tests in the context of the proceedings. She indicated in the claim the applicant’s “permanent address” as the address where he could be reached.

The applicant was not found at his “permanent address” when the authorities visited it once in April 2002. According to a note by the summons officer, a neighbour had indicated that the applicant no longer lived there. The authorities proceeded by summoning the applicant with a publication in the State Gazette in July 2002. As he did not appear in court, a lawyer was appointed ex officio to represent him. The lawyer attended the court hearing before the Sofia City Court which took place on 2 December 2002; it appears that she had no contact with the applicant at any point in time, either before or after the hearing.

In a judgment of 16 December 2002 the Sofia City Court allowed the claim, declaring the applicant the biological father of the child. The court also held that the child was to carry the applicant’s names (as a patronymic and family name) and determined a monthly amount of child maintenance which the applicant had to pay. The court remained silent on the request for blood tests made by the applicant’s former wife. Instead, it based its findings on the date of the child’s birth and on testimony submitted by the applicant’s former wife’s cousin and aunt. The latter stated that, at the time of the child’s conception, the mother had been in an intimate relationship only with him. The court held that this was sufficient to conclude that the applicant was the child’s father. The applicant was also ordered to pay about 50 euros (EUR) in legal fees to each of the ex officio lawyers appointed by the court to represent him and the child respectively.

On 19 December 2002 the Sofia City Court prepared two notifications of the judgment, one for the attention of the applicant and another for the attention of the child. The notification to the child was handed in person to the child’s lawyer on 8 January 2003. As for the notification to the applicant, on 13 January 2003 a court officer indicated on the court papers for notification that according to information from the applicant’s neighbours he no longer lived at his “permanent address” and no new address was known for him. On 16 January 2003 the court ordered that the notification be sent to the applicant’s ex officio lawyer; the latter was personally served a notice of the judgment on 18 January 2003. The notice indicated that an appeal against the judgment could be filed within 14 days from the moment of notification. The applicant’s ex officio lawyer did not appeal against the judgment and it became final.

The applicant found out about the judgment on 26 April 2004 when he was informed, at his “permanent address”, of his obligation to pay child maintenance in accordance with a writ of execution following the 2002 Sofia City Court judgment. A later certificate, issued on 25 May 2011 by the bailiff service and enclosed in the case file, indicated that no payments had been received in connection with the writ.

On 26 July 2004, the applicant filed a request for reopening, relying on Article 231 (e) and Article 231 (ж) of the Code of Civil Procedure 1952 in force at the time (see paragraph 28 below). He claimed in particular that he had been deprived of the opportunity personally to participate in the court proceedings in which he had been declared the father of the child.

The Supreme Court of Cassation (SCC) examined his request for reopening. It observed that the applicant had only learned about the Sofia City Court 2002 decision on 26 April 2004. It found his request for reopening procedurally admissible as lodged within the statutory time-limit. Nevertheless, the SCC rejected the request on the ground that the procedure for summoning him to the hearing had been observed, namely, attempted service at the applicant’s last known address and publication in the State Gazette. The Court also noted that a legal representative had been appointed ex officio and had represented the applicant during the proceedings. The court concluded, in a final judgment of 11 November 2005, that the applicant’s right to take part in those proceedings and to exercise his defence had not been infringed.


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

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

The applicant company was established in 1995 and has its registered office in Prešov.

In 2004 the applicant company bought real property registered on ownership certificate no. 5604 for the cadastral area of Južné mesto in the city of Košice. The seller was a State-owned enterprise (“the seller”) acting through a receiver in insolvency.

Prior to the sale, in a decision (uznesenie) of 8 April 1998, the Košice Regional Court (Krajský súd) acting as an insolvency court had consented to the property being sold directly as opposed to through a public auction.

By way of an order (opatrenie) of 9 July 2004 the insolvency court approved the sale of the property to the applicant company because it had fulfilled the conditions for the sale as set out in the decision of 8 April 1998. It observed that the proposed price was adequate in view of all the circumstances, including the fact that there were municipal and other roads situated on the land in question.

The order of 9 July 2004 was not amenable to appeal. It became final and binding on the same day as it was issued.

On 28 July 2004 the sale was registered in the land registry. The title to the property was thereby effectively transferred to the applicant company.

The seller was subsequently dissolved and struck out of the companies register, whereby it ceased legally to exist.

On 22 April 2008 the City of Košice (“the claimant”) brought an action against the applicant company seeking a ruling that it was the owner of the property.

The claimant argued in principle that, by mistake, the property had not been registered as its own; that accordingly it did not belong to the seller; and that – consequently – the sale had been void.

The action was examined and dismissed on 27 February 2009 by the Košice I District Court (Okresný súd) and, following an appeal lodged by the claimant, on 8 October 2009 by the Regional Court.

The District Court held a hearing and took complex documentary evidence and oral submissions from the parties.

Both courts unanimously concluded that there was a non-rebuttable legal presumption, under Article 19 § 2 of the Insolvency Code (Law no. 328/1991 Coll., as applicable at the relevant time), that the property belonged to the insolvency estate and could be lawfully sold to third parties unless its exclusion from the estate had been claimed by way of a special action (vylučovacia žaloba), which had not happened in the present case. The applicant company had acquired the property in good faith and the present action could not be used to contest that.

The dismissal of the action became final and binding on 7 January 2010.

On 13 December 2010 the claimant filed a petition with the Office of the Prosecutor General (“the PG”) requesting the latter to exercise his discretionary power to challenge the above-mentioned judgments by way of an extraordinary appeal on points of law (mimoriadne dovolanie – “extraordinary appeal”).

Having decided to accede to the request and acting through his First Deputy, on 5 January 2011 the PG challenged the contested judgments in the Supreme Court (Najvyšší súd).

He argued that the courts had erred in applying the said legal presumption which, in his view, only applied if the party concerned had been invited by the insolvency court to seek the exclusion of the property in question from the insolvency estate by the special action mentioned above and if that party had failed to act on the invitation. This had however not been the case in the present situation. Moreover, the PG argued that both the seller’s receiver in insolvency and the insolvency court should have flagged up and treated the property as contentious, especially in view of the fact that there were public roads on it.

The applicant and the claimant were both given an opportunity to comment.

On 30 April 2012 the Supreme Court quashed the challenged judgments and remitted the case to the first-instance court for a new determination.

It referred to a precedent of 11 September 2009 in case no. 5Cdo 194/08, which had been published in the “Collection of Standpoints of the Supreme Court” in 2010 (issue 3/2010, item 25), according to which there were conditions attached to the legal presumption applied by the lower courts. The present case fell within one of the exceptions.

In particular, the Supreme Court concurred with the PG’s argument that the presumption only applied on condition that the party concerned had been invited but had failed to seek to have the disputed items excluded from the insolvency estate.

However, according to the Supreme Court, there was an exception to that condition, in that the latter would only apply if there were circumstances casting doubt on whether the disputed items rightfully fell within the insolvency estate.

The Supreme Court found that, on the facts of the present case, the claimant had not been invited to seek to have the plots in question excluded from the estate. Moreover, there were reasons to doubt whether the seller had actually been the owner of those plots and whether the property had belonged to the seller’s insolvency estate.

As the receiver and the insolvency court had failed to flag up the property as being contentious, the presumption was not applicable and the sale contract was void.

Moreover, in the Supreme Court’s assessment, in view of the circumstances, the applicant company could not be considered as having been the bona fide purchaser of the property.

The contested judgments were therefore wrong in law and had to be quashed.

Since then the case has been pending at the first instance.

On 3 August 2012 the applicant company lodged a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) with the Constitutional Court (Ústavný súd).

The applicant company relied, inter alia, on Article 6 § 1 of the Convention and challenged the Supreme Court’s decision.

In particular, it contended that the Supreme Court had wrongfully reexamined the lawfulness of the insolvency court’s order of 9 July 2004, which was impermissible outside the framework of the insolvency proceedings. In any event, an extraordinary review of that order was also impermissible on account of the expiry of the applicable time-limits. In addition, the re-examination of that order was impermissible because it was in breach of the principle of res judicata.

Lastly, the applicant company disagreed with the Supreme Court’s findings on the merits.

On 11 October 2012 the Constitutional Court declared the complaint inadmissible as being manifestly ill-founded. It found no constitutionally relevant arbitrariness, unfairness or irregularity in the Supreme Court’s decision and reasoning or in the underlying procedure.

It added that, in so far as the applicant company could be understood as wishing to rely on the principle of res judicata with regard to the original insolvency proceedings, this principle did not apply in the present case because the insolvency proceedings had concerned the seller and not the claimant. Any rulings made in the insolvency proceedings therefore did not restrict the claimant from pursuing its own claims in the action at the origin of the present case.

The Constitutional Court’s decision became final and binding on 2 November 2012.


Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses)

The applicant was born in 1955 and lives in Ig.

On 9 June 2008 the police fined the applicant 333.83 euros (EUR) for verbally and physically assaulting Š.S. The applicant lodged a request for judicial review in which he contested the finding of the police that he had hit Š.S. in the head. He requested that he and two witnesses who had been present on the spot at the time of the alleged commission of the minor offence be heard.

On 4 March 2011 the Ljubljana Local Court heard the two witnesses proposed by the applicant, a police officer and another witness. On the basis of their submissions it rejected the applicant’s request for judicial review.

On 8 June 2011 the applicant lodged a constitutional appeal complaining that because the Local Court had failed to inform him and his lawyer of the hearing, he could not examine the witnesses and did not have any opportunity to be heard.

On 13 September 2011 the Constitutional Court rejected the constitutional appeal as inadmissible.