Remainder inadmissible;Violation of Article 6+6-1 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-3-c - Defence through legal assistance) (Article 6 - Right to a fair trial;Article 6-1 - Fair hearing);No violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicant was born in 1976 and is currently detained at the Corradino Correctional Facility in Paola.

By Act III of 2002 the Maltese Parliament introduced the right to legal assistance at the pre-trial stage. However, the law only came into force in 2010 by means of Legal Notice 35 of 2010. Prior to this Legal Notice Maltese law did not provide for legal assistance during pretrial investigations and specifically during questioning, whether by the police or by a magistrate in his investigative role. Before questioning, however, suspects would be cautioned, that is, informed of their right to remain silent and that anything they said could be taken down and produced as evidence. At the time, no inferences could be drawn by the trial courts from the silence of the accused at this stage.

The applicant, at the time twenty-seven years of age, was arrested on 15 April 2003 on suspicion of importation and trafficking of drugs (heroin) in relation to two episodes in March and April 2003. On 17 April 2003 while under arrest and precisely during questioning, after being duly cautioned about his right to remain silent, the applicant, in the absence of a lawyer, gave a statement to the police, which however he refused to sign.

In his statement he said that he regularly drove a white Ford Escort and that he was married to a Thai national. In reply to questioning, he stated that he did not remember his whereabouts on 3 March 2003 and that he did not know a certain N. and M. and three other Turkish nationals (K., R., and M.I.). Neither had he ever paid or received money from the aforementioned persons. He further stated that he had never made or received calls to and from Turkey. He denied having, on 4 March 2003, made contact with any foreigner in Paceville, or having received anything from M. or ever having made a phone call to two specific numbers shown to him by the police. He further denied having gone to Paceville with his wife in his car and making contact with M. on 5 March 2003; he also denied that on that day M. had given him heroin capsules in the presence of his wife. He claimed however to have gone to Paceville at 10 a.m. to look for a person who had stolen his car stereo. The applicant availed himself of the right to remain silent in respect of questions as to whether he had a drug problem, whether he had ever used heroin, and when was the last time he had done so. On being asked whether he had written the two names found on a piece of paper in his car and what was their purpose, he replied that he had himself written the two names but that he did not know the people and that he was unaware of the purpose of the paper, which had been in his car for a very long time.

On the same day (17 April 2003) the applicant was arraigned before the Court of Magistrates as a Court of Criminal Inquiry (committal proceedings) and his above-mentioned statement exhibited as evidence against him. The prosecution also produced another two statements implicating the applicant, given by two prosecution witnesses (N. and M., two Turkish female drug couriers, mentioned above) who had also been arrested and investigated in connection with the same crimes, and who had also not been legally assisted during the police investigation into their case.

In the meantime, on 15 April 2003 the duty magistrate (C.) had been informed that the applicant had been arrested, that a search had been carried out at his place of residence, and that certain items had been seized. Instead of proceeding herself to the spot to conduct the inquest for the purpose of the in genere inquiry (inkjesta), she appointed the police investigating officer to hold an on-site inquiry, and at the same time appointed a number of experts to assist him (see Articles 546 - 548 of the Criminal Code, relevant domestic law, paragraph 31 below). In their document of appointment, however, the experts were required to report their findings to her within three days. The following day she acceded to the Commissioner of Police’s request that she order the relevant telephone companies to give all the information requested in connection with the mobile phones seized in the course of the investigation. In the procès-verbal of 23 April 2003 no findings were reported by her, given that on 21 April 2013 the Commissioner of Police had requested the said magistrate to close the inquest since committal proceedings (kumpilazzjoni) had already started in respect of the applicant (see paragraph 9 above). All the relevant documents were attached to the procès-verbal and the record of the in genere inquiry sent to the Attorney General.

The same magistrate (C.) was assigned (by lot) the case in the Court of Magistrates sitting as a Court of Criminal Inquiry. She eventually decided that there was enough evidence to put the applicant under a bill of indictment. The resulting bill of indictment was filed by the Attorney General on 14 June 2006.

In consequence the applicant was tried by a jury and by a judgment of the Criminal Court of 16 January 2008 he was found guilty of importing, causing to be imported, or taking steps preparatory to the importation, of heroin between February and 15 April 2003; that between February and April 2003 he conspired with other persons to import, sell or traffic heroin, or promoted, constituted, organised or financed such a conspiracy; and that in the same period he had in his possession the drug heroin in circumstances which indicated that it was not for his exclusive use. The Criminal Court sentenced him to twenty-one years’ imprisonment and a fine of 70,000 euros (EUR). During these proceedings the applicant had objected to the statements made by N. and M. on various grounds, however these objections were withdrawn on 30 October 2006, apart from one objection concerning the inadmissibility of the results of the identification parade.

The applicant appealed, claiming an incorrect application of the law (unrelated to legal assistance), a wrong assessment of the facts, and a disproportionate punishment.

During the appeal proceedings the applicant requested the Court of Criminal Appeal to refer the case to the constitutional courts on constitutional grounds (different from those raised below). On 20 November 2008 the Court of Criminal Appeal found his claims to be frivolous and vexatious and rejected his request.

By a judgment of the Court of Criminal Appeal of 19 May 2011 the applicant’s appeal was dismissed and the first-instance judgment confirmed (apart from a slight change in respect of the timing of the third charge).

In so far as is relevant, the Court noted that the jury had had the advantage of seeing and hearing all the witnesses, and that the jurors had arrived at the conclusion that they should not rely on the version of events given by the applicant in his statement. The first issue which the jury had to decide was whether the two couriers (N. and M.) had made contact with the applicant in March 2003. In his statement to the police the applicant denied knowing the two women and other people mentioned by them, and also denied that he had made and received calls to and from Turkey. However, the two women identified the applicant as being the person they made contact with in March 2003, namely as the person who had given N. food, gloves, disinfectant and a laxative, and to whom M. had given the capsules they had carried in their stomachs. A number of factors gave credibility to the women’s identification of the applicant: (i) the circumstances of the meetings they had with him at which time he was using a white four-door car and was in the company of an Asian woman; (ii) the applicant’s statement that he habitually made use of a white four-door Ford Escort and that he was married to a Thai woman; (iii) the fact that when arrested N. and M. had separately identified the applicant in photographs; (iv) moreover, the two women had separately identified the applicant in identification parades supervised by a duty magistrate; and they did the same without hesitation when they testified, both during the committal stage and before the jury. In the light of all those factors the jurors could reasonably conclude that the person N. and M. had met in March 2003 and to whom they had delivered the capsules was the applicant.

This having been established, the jury had to determine what the capsules delivered to the applicant contained and whether the applicant was connected to the delivery of April 2003 intercepted by the police. The experts had stated that the capsules contained heroin. The court rejected the applicant’s argument that the delivery of March 2003 concerned cannabis, given that studies showed that drug couriers were used in connection with heroin and cocaine and sometimes ecstasy, and that Turkey was considered a key transit route to Europe for heroin.

It appeared from the evidence given by the two women that they had imported heroin in April 2003, which was the second time they had come to Malta. They had been forced to return in April since, in March, M. had lost most of the capsules she was carrying when vomiting on board the flight. The court considered that a recipient would expect to receive the full delivery, and that therefore it was logical for the supplier to force the courier to deliver what had been missing because of her fault. It followed that, from their testimony, it was reasonable for the jury to conclude that what N. and M. had carried in March 2003 was also heroin. The court considered that this was the only possible conclusion to be arrived at. Neither was it conjecture to conclude that the drug being carried in April was destined for the applicant. Indeed during the trial by jury M. had indicated the applicant as the recipient. The court rejected the applicant’s argument that he could not be the recipient because the women had referred to someone whose father had passed away, which was not the case for the applicant. It considered the relevant part of the statement by the women as hearsay evidence and in any event it was a statement which referred to a third person and not the applicant.

The court further noted that on 15 April 2003, when the delivery was meant to take place, the police had seen the applicant drive around the area (at least three times) in his white Ford Escort, a short time before M. was arrested. Indeed the jurors had not believed the applicant’s version that he had gone to Paceville to look for someone who had stolen his car stereo. Moreover, the jurors could not have ignored that in his statement the applicant had denied any connection with Turkey, despite the fact that he could not explain the Turkish names written on a piece of paper which was found in his car and which he admitted he had written himself, and that N. had testified that the applicant had spoken to a Turkish person on the telephone.

The Court of Appeal decided that in the light of the above considerations and all the evidence produced, the jurors could legally and reasonably conclude that the applicant was guilty of the first and second charge, but only partly as to the third charge, since he had never received the delivery of April 2003.

The applicant instituted constitutional redress proceedings, claiming a breach of his right to a fair trial (Article 6 § 3 (c)) on account of the lack of legal assistance during the investigation and interrogation, both in his respect and in respect of the witnesses who had also been under investigation, their statements having repercussions on his trial. He further complained that the same magistrate who had conducted the in genere inquiry was also the magistrate who had conducted the compilation of evidence in the committal proceedings. He requested a remedy including, but not limited to, a declaration that the criminal proceedings be cancelled and compensation paid.

By a judgment of 4 June 2012 the Civil Court (First Hall) in its constitutional competence rejected the applicant’s claim.

In respect of the statement made by the applicant on 17 April 2003 the court noted as follows: (i) the applicant had not raised the issue before his criminal proceedings came to an end, and the judgment was now res judicata; (ii) neither had he raised the issue in his referral request pending the criminal proceedings before the Court of Criminal Appeal; (iii) the applicant’s statement was not determinant to finding him guilty: in his statement he had not admitted to trafficking in drugs or that he knew N. and M., and he had chosen to remain silent when questioned about drug use; (iv) while it was true that the Court of Criminal Appeal had referred to extracts from his statement, this was not the basis of his conviction, which was based on the evidence given in court by M. and N. and on the results of the previous identification parades – indeed he had said nothing relevant in his statement.

The court concluded that the proceedings having ended it had to look at the entirety of the proceedings, and it was not for it to substitute the findings of the jury. During the trial the applicant was represented by a lawyer and had ample opportunity to submit evidence and contest any evidence brought against him, and the fact that he did not have legal assistance during questioning did not have an irreparable effect on his right to defend himself.

The court rejected the second complaint in relation to legal assistance for the witnesses, in so far as the applicant had no standing in that respect. Moreover, their statements had remained unchanged; the applicant could have challenged them during the trial but had opted not to do so.

Lastly, in relation to the third complaint it held that the magistrate conducting the in genere inquiry was independent of the police, did not act as a prosecutor, and in the present case did not express an opinion as to whether there was sufficient evidence for the police to institute proceedings in respect of the applicant. The applicant’s case was also tried by a jury and then reviewed by the Court of Criminal Appeal. Furthermore, the applicant had not raised the issue in the committal proceedings in 2003 - indeed a comment somewhat related to the issue had been explicitly withdrawn on 30 October 2006 before the Criminal Court - and he should not therefore be allowed to benefit from his own passivity.

By a judgment of 25 January 2013 the Constitutional Court dismissed the applicant’s appeal and confirmed the first-instance judgment, with costs against the applicant. It noted that a correct interpretation of Salduz v. Turkey [GC] (no. 36391/02, ECHR 2008) had to be made in view of the circumstances of that case, where indeed Mr Salduz had been in a vulnerable position when he had made his statement. The rationale of the right was precisely that, and not to allow guilty persons to be let off scotfree because of a formality which had no real or serious consequences. In the present case the applicant did not claim that he was forced to make the statement, or that he was in any other way vulnerable when he made his statement. The right to a lawyer was aimed at avoiding abuses, which in fact did not happen in the applicant’s case. Thus, while there was no procedural obstacle for the applicant to complain at this stage, namely before the constitutional jurisdictions, despite the fact that he had not raised the issue in the criminal proceedings, the element of vulnerability was missing in the applicant’s case, and thus there could be no violation of his rights. The Constitutional Court held that even if the statement had been determinant for the finding of guilt, that finding was not necessarily tainted unless the statement had been obtained under duress, which was not so in the present case. Nevertheless, in the instant case the statement was of no relevance whatsoever, as the applicant had not admitted to anything and the Court of Criminal Appeal had only referred to the statement in saying that the jury had not believed the applicant’s version. It had been other evidence that had led to his finding of guilt. Lastly, the Constitutional Court noted that it could not agree to a general view that the moment a statement was made without legal assistance it became ipso facto invalid and brought about a breach of Article 6.

As to the complaint related to the witnesses, the court did not rule out the applicant’s locus standi, which could come into play if their statements had been made under duress. However, it was not so in the present case, where the witnesses had reiterated their statements even before the trial courts. It followed that those statements were also admissible. Lastly it confirmed the reasoning of the first-instance court relating to the impartiality of the magistrate, finding the applicant’s argument opportunistic.


Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)

The applicants, Mr İrfan Dündar and Mr Fırat Aydınkaya, were born in 1972 and 1979 respectively and live in Istanbul. At the material time, the applicants were the legal representatives of Abdullah Öcalan, the leader of the PKK, an illegal armed organisation.

On 29 and 30 April 2004 the newspaper Ülkede Özgür Gündem published two interviews with the applicants. The interviews contained the applicants’ statements following meetings with their client, Abdullah Öcalan, in prison. The first interview was included in two articles in the issue of 29 April 2004 entitled “Lawyers convey Abdullah Öcalan’s opinions concerning developments within the KONGRA-GEL” and “The pain of change”. The second interview published on 30 April 2004 was entitled “Abdullah Öcalan is an opportunity for Turkey” and “Abdullah Öcalan’s opinions are important for an enduring peace”.

In their interviews published on 29 April 2004 in the two articles cited above, the applicants commented on the following issues: the difficulties they encountered in getting to İmralı island, where Abdullah Öcalan was detained, their need to have a meeting with their client prior to the hearing to be held before the European Court of Human Rights on 9 June 2004, their client’s state of health , the alleged fake news published in some newspapers regarding the applicants’ meetings with their client, their client’s opinions regarding the current state of politics in Turkey, in particular his view that democrats in Turkey should form a coalition with a view to establishing social peace and enabling Turkey’s access in European Union, Abdullah Öcalan’s views on the conflicts occurring within the KONGRAGEL, and in particular, his views that democratisation of the “Kurdish organisations” would allow the State of Turkey to be more democratic, his opinions on the pro-Kurdish legal political parties, and his view that individuals should liberate themselves before trying to liberate others.

In the interview published the following day, 30 April 2004, the applicants made statements on the following issues: Abdullah Öcalan’s criticism of the failure of the pro-Kurdish political groups during the municipal elections held on 28 March 2004, the view of Abdullah Öcalan and his lawyers that “the Kurdish movement” had failed to take into account Abdullah Öcalan’s opinions and projects, the criminal and disciplinary investigations and the criminal proceedings instituted against the applicants for disseminating their client’s views, Abdullah Öcalan’s criticism of “Kurdish organisations”, problems between Abdullah Öcalan and the leaders of the “Kurdish movement”, the applicants’ role both as legal and political representatives of Abdullah Öcalan and their meetings with individuals close to the State of Turkey as well as representatives of foreign States on behalf of their client, and the applicants’ view that Abdullah Öcalan’s opinions offered an opportunity for resolving the Kurdish issue in a democratic/political manner and that his opinions had transformed the State of Turkey.

On 30 April 2004 the public prosecutor at the now defunct Istanbul State Security Court filed a bill of indictment under section 7(2) of the Prevention of Terrorism Act (Law no. 3713), charging the applicants with disseminating propaganda in favour of the PKK/KONGRA-GEL on account of the interview published on 29 April 2004. In the indictment, the applicants were accused of acting on Öcalan’s instructions and conveying messages from him about the PKK’s strategy. Subsequently, criminal proceedings were launched against the applicants before the Istanbul Assize Court.

On 7 May 2004 the Istanbul public prosecutor filed a second bill of indictment against the applicants, again charging them with disseminating propaganda in favour of the PKK under section 7(2) of Law no. 3713 on account of the interview published in the 30 April 2004 issue of the newspaper.

On 24 August 2004 the Istanbul Assize Court decided to join the two sets of criminal proceedings against the applicants owing to the factual and legal similarities between them.

During the proceedings the applicants maintained that they had made the statements with a view to providing information to the press, since the case against Abdullah Öcalan had attracted media interest, but that they had been misquoted to a certain extent in the newspaper. They stressed that they had not acted with the intention of disseminating propaganda in favour of any illegal organisation.

On 18 February 2010 the Istanbul Assize Court convicted the applicants of disseminating propaganda in favour of the PKK/KONGRAGEL under section 7(2) of Law no. 3713. It sentenced them to ten months’ imprisonment each, but decided to suspend pronouncement of their convictions on condition that they did not commit another intentional offence for a period of five years, in accordance with Article 231 of the Code of Criminal Procedure.

In its judgment, the Istanbul court held that the applicants had overstepped the limits of the lawyer-client relationship and made statements in a manner that induced and promoted the adoption, dissemination and enrootment of Abdullah Öcalan’s opinions in society. The first-instance court considered that in the light of the applicants’ role, the readers they targeted, the aim of the publication, and the manner in which their applicants’ interviews were perceived by the readership, the interviews could not be deemed to be protected by the right to freedom of expression or the privilege of the lawyer-client relationship. The court further considered that the right to freedom of expression carried with it duties and responsibilities and could be restricted for the purpose of protecting national security and territorial integrity in a democratic society. The Istanbul Assize Court concluded that the reported interviews were aimed at disseminating propaganda in favour of the PKK/KONGRA-GEL and found the applicants guilty.

On 20 September 2010 the applicants’ objection to the assize court’s judgment was dismissed by the same court.


Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Effective investigation;Positive obligations);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicants were born in 1978 and 1986 respectively and live in Bucharest and Curtea de Argeş respectively.

On 3 June 2006 the applicants participated in the annual gay march in Bucharest. It was organised by ACCEPT, a non-governmental organisation whose goal is to provide information and to assist the LGBTI community. The march was given police protection. Several individuals who had actively expressed their disapproval over the gay march were stopped by the police, their pictures taken and their identity papers checked and noted.

At around 7 pm, at the end of the march, the applicants and four other participants left the area using the routes and means of transport recommended by the authorities in the guidelines prepared by the organisers for march participants. As recommended in the same leaflet, they wore no distinctive clothing or badges that would identify them as having participated in the march.

After boarding a metro train, they were attacked by a group of six young men and a woman wearing hooded sweatshirts. The attackers approached the victims directly and started punching them and kicking their heads and faces. They also swung from the metal bars above their heads, kicking their victims. During the attack they kept on shouting: “You poofs go to the Netherlands!” (Poponarilor, duceţi-vă în Olanda!)

The victims were pushed into a corner of the carriage. One of them tried to protect the others with his body, but the second applicant remained exposed and suffered several blows.

The attack lasted for about two minutes. On their way out of the carriage, the attackers punched the first applicant again in the face.

The other passengers withdrew to the opposite side of the carriage during the attack. Among them was a photographer, Z.E., who had also been at the march. The victims asked him to take pictures of the incident, which he did. As a consequence, the attackers hit him as well.

The same evening, accompanied by a representative of ACCEPT, the victims went to the Mina Minovici National Forensic Institute and to Bagdasar Emergency Hospital for medical consultations.

The forensic medical certificate stated that the first applicant had bruises which could have been produced by blows from a hard object; they did not require “days of medical care”.

The second applicant was diagnosed with multiple contusions (related to the incidents), minor cranio-cerebral trauma, contusion on the left shoulder and the left side of his face, and bruises. No bone damage was found. The forensic medical certificate concluded that the applicant needed one to two days of medical care.

Later that night of 3 to 4 June 2006 the victims, including the applicants, and a representative of ACCEPT went to Bucharest Police Station no. 25. They filed a criminal complaint against the attackers and stated that the assault was based on the victims’ sexual orientation. They reiterated not having worn any visible signs that could have given away the fact that they were returning from the gay march. They argued that the attackers had identified them at the march (as they had not worn masks) and followed them afterwards, with the intention of harming them. They informed the police about the offensive remarks made during the attack.

According to the applicants, the police agents were surprised when they realised that the applicants and the other victims, although gay, were affluent individuals with regular jobs and positions of responsibility. They tried to dissuade them from pursuing their complaint, warning them that they would have to confront their aggressors in court.

On 5 June 2006 the applicants’ representative submitted to the police several pictures of the attack taken by Z.E. In some of the pictures the attackers’ faces were visible, as their hoods were down. The photographer gave statements and was able to identify one of the perpetrators.

The first applicant was also shown pictures taken by the police during the march. She was able to identify two of the individuals from their photos. The police had the suspects’ names and addresses on record.

The victims gave statements to the police.

On 8 June 2006 the police received copies of fifteen police reports drawn up on the day of the march concerning administrative fines imposed on counter-demonstrators.

Due to a reorganisation within the police force, the case file was moved from one police station to another, and on 4 April 2007 it was registered at the Metro Police Station.

As it appeared that nothing was happening in the case, the applicants sought information on the progress of the investigation by means of letters sent by ACCEPT on 25 September 2006, 28 March 2007 and 20 July 2011. On 19 March 2007 they also complained to the Ministry of Internal Affairs about the lack of an effective investigation in the case, but to no avail.

On 27 April 2007 they were informed that, following the reorganisation within the police force, their file had finally been logged by the Metro Police Station. The letter also informed the applicants that the investigation was ongoing and steps were being taken to identify the culprits.

On the same day, the police submitted a request to the Romanian Intelligence Service (the “SRI”) to confirm whether R.S.A. – an intelligence officer who had been identified among the attackers – had been on an official mission that night. On 24 May 2007 the Intelligence Service asked for clarification concerning the nature of the request. It was not until September 2007 that the police were able to obtain a statement from R.S.A., who declared that he had been off duty that day and offered information on one other person in the group of attackers. The actions undertaken by the police to identify the other individuals remained without success.

The Metro Police received, on 12 June 2007, a list of forty five names and identification numbers of persons who had been fined by the police during the gay march.

As one of the suspects was believed to be a Steaua football club supporter, the investigators attended twenty-nine football matches between 16 September 2007 and 13 December 2009 in an attempt to identify him. On 12 February, 14 May, 4 August and 7 December 2010 and 10 March 2011 the investigators tried to identify the suspects at metro stations. On eight occasions between 12 June 2007 and 6 July 2011, the investigators successfully asked the prosecutor to extend the deadline for completing the investigation.

On 10 June 2011 the police stated their view that the investigation should come to an end and asked the prosecutor’s office not to institute criminal proceedings in the case. The police gave the following explanation for their request:

“... the investigation was rendered difficult by the fact that the file arrived at the Metro Police Station ... almost one year after the incidents, and the police agents ... who had been in charge of the case until September 2006 could not continue the investigation as the Intelligence Service had refused to cooperate and allow their agent ‒ who was the only identified eye-witness to the events ‒ to be interviewed; it is to be noted that the police lost their motivation to use the information for the purposes of finding the truth in this case, of identifying and bringing to justice those responsible. In addition, to a certain extent the victims lost their interest in how their complaint was being dealt with (they did not ... adduce the medical certificates ... which had been obtained at the request of the police ... on 27 October 2009 when it was noted that none of the victims had needed more than two days of medical care). It is observed that all the evidence-gathering methods for this type of crime have been exhausted and, given the lapse of time from the date when the complaints were lodged, the validity and relevance of the evidence gathered ... [have decreased], leaving the investigation into the identity of the culprits without an outcome. At the same time, it is observed that ... the criminal acts had become time-barred, removing criminal responsibility from the culprits.

On 9 August 2011, in response to a request from the applicants for information, the Metro Police informed them that their intention was to not institute a criminal prosecution (neînceperea urmăririi penale) as the alleged crimes had become statute-barred (s-a împlinit prescripţia specială). The police explained that the investigation had been rendered more difficult by the fact that the file had not arrived at the Metro Police office until a year after the events. Moreover, all the actions undertaken by police in order to identify the alleged culprits had failed.

On 4 October 2011 the prosecutor’s office attached to the Bucharest District Court of the Fourth Precinct endorsed the police proposal and decided to terminate the investigation. The decision was sent to the first applicant’s home on 27 February 2012.

On 19 March 2012 the applicants lodged a complaint with the ProsecutorinChief against the decision of 4 October 2011. They argued that the prosecutor should have investigated the more serious crime of organising a criminal group (asocierea pentru savârşirea de infracţiuni), which had not yet become time-barred. They also complained that the investigators had failed to pursue their allegation that the attack had been motivated by their sexual orientation.

The prosecutor-in-chief dismissed their objections on 18 June 2012.

The applicants reiterated their objections against both the decisions delivered by the prosecutors in two separate complaints lodged with the Bucharest District Court.

On 9 August 2012 the District Court dismissed the complaint lodged by the applicants against the prosecutor’s decision of 4 October 2011. The court made the following observation:

“It is true that the authorities were apparently not sufficiently diligent in carrying out within a reasonable time an effective investigation capable of identifying and punishing those responsible for the criminal acts (the long periods of police inactivity, the transfer of files, the lack of cooperation from some authorities are all duly noted). On the other hand, this situation – although not imputable to the [applicants] – cannot prevent the application of the statute of limitation of criminal responsibility.”

On 12 November 2012 the District Court dismissed the complaint lodged against the prosecutor’s decision of 18 June 2012 as a mere reiteration of that already dealt with by the court in its decision of 9 August 2012.

Throughout the proceedings the applicants repeatedly sought access to the prosecution file. It was partially granted on 9 May 2012 and the applicants gained full access to the file once their objections had been lodged with the courts.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Article 5-4 - Speediness of review;Article 5-5 - Compensation);Violation of Article 5 - Right to liberty and security (Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

André Potocki;Mārtiņš Mits;Síofra O’Leary

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

The applicants complained of the excessive length of their pre-trial detention. Some applicants also raised other complaints under the provisions of the Convention.


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

The applicant was born in 1960 and was serving a prison sentence at the time in question. The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant was arrested on 20 July 2003 and sentenced by the first-instance court on 19 May 2004 to twelve years’ imprisonment for murder. His conviction was upheld on appeal by the Supreme Court of the Autonomous Republic of Adjara on 19 July 2004.

According to the available medical file (covering the periods between 30 July-10 September 2005, 25 January - 27 March 2008, and 5 June – 8 September 2008), the first time the applicant was transferred to the prison hospital after his arrest was on 30 July 2005. At that time he was diagnosed with viral hepatitis C, chronic cholecystitis, and radiculitis. The applicant complained of suffering from sleeping disorders and anxiety and was placed in the psychiatric ward of the prison hospital. On 16 August 2005 he was transferred to the infectious ward, where he was treated for his viral hepatitis C. The applicant was discharged from the prison hospital on 10 September 2005.

According to the applicant, in October 2007 he had an operation for an ingrowing toenail on his right foot. After the operation the scar became infected and the applicant was sent to the prison hospital on 25 January 2008 on account of his deteriorating health. At that time the applicant’s diagnosis was as follows: chronic arterial insufficiency of the lower limbs, arterial occlusion and obliterating arteritis, and subungual panaritium.

On 29 January 2008 the applicant had his toenail removed. He spent the post-surgery period under permanent medical supervision in the prison hospital. Although he was provided with painkillers and treated with antibiotics, the applicant, according to the case file, complained every day about severe pain in his right foot. On 25 February 2008 he was seen by an angiosurgeon, who recommended that he undergo a dopplerography of the legs and that his transcutaneous oxygen pressure (“Tc PO2”) be measured. The surgeon would decide on the need to amputate the big toe on the applicant’s right foot on the basis of these tests.

According to a note made by a prison hospital doctor in the applicant’s medical file on 25 March 2008, the dopplerography and Tc PO2 test could not be organised in the prison hospital for technical reasons. The doctor noted an improvement in the applicant’s general condition and concluded that in any event, and notwithstanding the specialist’s recommendation, there was no need for those examinations, given that there were no “absolute indications” that surgery was called for. On 27 March 2008 the applicant was discharged from the prison hospital and sent back to Tbilisi Prison no. 1 with a recommendation that he continue palliative treatment on an outpatient basis.

At the request of the applicant, on 5 May 2008 the board of forensic experts of the Ministry of Justice – having examined him – drew up a medical report (“the 5 May 2008 medical report”), which diagnosed the applicant as suffering from the following: arteritis, occlusion of the arteries in the right shin, stenosis of the arteries in the left shin, artery deficiency in the right lower limb (at stage IV of the disease), necrosis of tissue in the right big toe, cardiac ischaemia, second-degree angina pectoris, seconddegree arterial hypertension, second-degree cardiac insufficiency, and lowactivity chronic hepatitis C. The experts concluded that from a cardiological point of view the applicant’s condition was potentially serious. As for his vascular condition, the main blood vessels in both of his legs were damaged and his condition was serious. They recommended that he be placed in a specialist cardiology clinic and have his toe amputated.

On 20 May 2008 the applicant’s lawyers complained to the Director of the Prisons Department of the Ministry of Justice (“the Prisons Department”) that their client, who had been in the prison hospital since 25 January 2008, had been sent to Tbilisi Prison No. 1, despite the seriousness of his state of health, and that the treatment in that hospital had not produced any results. They complained that the applicant’s condition had deteriorated there. The lawyers requested that the applicant be taken to hospital on the grounds that his life was in danger. On the same day they sent the same request to the director and the head doctor at the medical unit of Tbilisi Prison No. 1.

On 27 May 2008 the head of the welfare unit of the Prisons Department referred the lawyers’ request to the prison governor and a group of qualified medical experts “for an opinion”. He observed that, in accordance with ministerial order no. 717, patients were hospitalised on the orders of the prison governor, following a report by the head doctor of the prison’s medical unit.

Following that letter, on 3 June 2008 one of the applicant’s lawyers contacted the prison governor reminding him of the terms of ministerial order no. 717 and asking him what the response of the head doctor had been and enquiring as to when the applicant would be hospitalised.

On 9 June 2008 the Prisons Department informed the lawyers that the applicant had been placed in the prison hospital on 5 June 2008.

According to the daily notes made in his medical file, the applicant continued to suffer from pain in the right foot. It can be seen from the contents of the medical file that his right foot was treated with antiseptic products and bandaged daily. During that period the applicant was examined by a vascular specialist twice: on 11 June and on 31 July 2008. On 11 June 2008 the vascular specialist recommended that the bandage be changed regularly and the toe treated with antiseptic products. He also prescribed Alprostapint infusions. On 31 July 2008 the vascular specialist recommended a Tc PO2 test in order to assess the possibility of amputating the toe, and prescribed continuing palliative treatment. It appears from the case file that the relevant drugs were administered to the applicant by his wife and other family members.

On 7 August 2008 the applicant underwent a Tc PO2 test at a specialist hospital. On the basis of the results of the test the examining doctor concluded that the microcirculation in the lower limbs of the applicant (particularly in the right foot) was very low. In his view, surgical intervention was not appropriate because the particularly low level of oxygen in the right foot would have hampered the healing of the resulting wound.

On 8 September 2008 the applicant was discharged from the prison hospital because of the appeal court’s decision to suspend his prison sentence (see paragraph 28 below).

On the basis of the 5 May 2008 medical report (see paragraph 11 above), and in view of the fact that his treatment at the prison hospital was producing no results, on 14 May 2008 the applicant applied to the Tbilisi City Court for his sentence to be suspended on health grounds (under Article 607 § 1 (a) of the Code of Criminal Procedure – “the CCP”). A representative of the Prisons Department opposed the application on the grounds that the prison hospital had “a medical service capable of treating the applicant” and that “if necessary he [would] be transferred to a specialist clinic”. One of the experts who had produced the above-mentioned report confirmed to the court judge that the applicant was seriously ill. However, as he had no knowledge of the medical facilities at the prison hospital, he said he could not judge whether it was appropriate to keep the applicant there. He also confirmed that the applicant’s right big toe had to be amputated.

On 11 June 2008 the Tbilisi City Court dismissed the applicant’s request, on the grounds that the prison hospital had a medical service capable of providing the necessary treatment and that the applicant, who was being looked after by specialist doctors, would be transferred to a specialist clinic if necessary.

On 18 June 2008 the applicant’s lawyer submitted to the court his comments on the record of the hearing of 11 June 2008. The record of the hearing, according to those comments, did not refer to the expert’s opinion in respect of the risk to the applicant’s life. The expert had said that the applicant’s gangrene, which was now at the fourth (and last) stage, could cause septicemia and death if not properly treated. Regarding the applicant’s heart condition, the expert had said that the applicant needed treatment in a specialist clinic to prevent sudden death. On 19 June 2008 the court granted that request and ordered that the record of hearing be amended by adding the expert’s comments.

The applicant appealed against the decision of 11 June 2008, pointing out that, according to the medical experts who had examined him, the treatment at the prison hospital had produced no results and that, if he was not properly treated, the question of the amputation of various parts of his right lower limb could arise. The applicant’s lawyers pointed out that prisoners frequently died as a result of a lack of treatment at the prison hospital. They also complained about the Prisons Department having joined the trial as a party to the proceedings, which was in breach of Article 617 § 4 of the CCP. In their view, a representative of the Prisons Department was not in a position to assess the danger that detention might pose to the life of the applicant. Subsequently, the lawyers requested that the applicant’s doctor and the doctor from the specialist hospital who had treated the applicant on 7 August 2008 be heard as witnesses (see paragraph 17 above). At the examination in the specialist hospital in question, apart from the findings of the above-mentioned expert report, Buerger’s disease of the lower limbs had also been diagnosed.

At a hearing before the Court of Appeal on 4 September 2008 the applicant’s lawyers requested that the representative of the Prisons Department be debarred from joining the proceedings as a party, in accordance with Article 617 § 4 of the CCP. The Court of Appeal allowed that request but authorised the representative in question to attend the hearing in order to reply to any questions. It also decided to call the prison hospital surgeon, the vascular specialist (see paragraph 17 above), and the forensic expert (see paragraph 11 above) as witnesses.

At the next hearing on 8 September 2008 the forensic expert repeated that the applicant’s state of health was serious, and that Article 7 § 2 of order no. 72/N (issued by the Health Minister) concerning the early termination of prison sentences on health grounds was indisputably applicable. He added that necrosis of the tissue of the lower limb had set in and was progressively affecting the limb from the bottom up. If that were to continue, the applicant might develop septicemia and die. In his view, it was impossible to cure the applicant completely.

The applicant’s doctor – a surgeon who was a member of the prison hospital’s permanent staff – also gave evidence before the Court of Appeal, explaining the diagnosis and confirming that his patient was seriously ill, with the arterial disease having reached the fourth and final stage. He said that he had seen the applicant in December 2007 and also in May 2008 and that no serious necrosis had been observed at that time. He further explained that at that stage of the disease the treatment usually prescribed was either palliative or surgical. The applicant was being given palliative treatment with medicines (antioxidants, protective drugs, sedatives). An operation was not recommended because it might make his condition worse. The likelihood of the scar healing was nil. The doctor was gradually removing the necrosed tissue in the right foot. The doctor also confirmed that the applicant’s illness was chronic, progressive and that he needed constant medical treatment. He added that he could not be cured at the prison hospital but that there was a clinic outside the prison that could treat this kind of patient. In answer to a question from the judge, the doctor said that the applicant had been hospitalised twice after his operation and that at the relevant time the necrosis had not reached such an advanced stage. At that time the prison hospital doctors had done all they could to halt the development of the necrosis but without much success. If the situation continued, the applicant might have to have his entire right leg amputated.

The vascular specialist – a doctor at the prison hospital – said that he had examined the applicant in December 2007 and found that the gangrene had already affected the big toe of the right foot. This had then quickly spread, despite the treatment administered. Shortly before the hearing the applicant had been prevented from lying down and had been made to stay in a sitting position. His state of health was worsening daily. The results of the Tc PO2 test had shown that the oxygen tension in the right foot stood at level 2 in the lying-down position and at level 21 in the sitting position (the normal level being 60-70; an indicator of 30 was necessary if the wound could be expected to heal properly). Accordingly, amputation was impossible. The vascular specialist said that the prison hospital was complying with his orders but that there was no specialist unit. In his view, the applicant’s lower left limb was also damaged, but not yet affected by gangrene. At the time it was a question of saving the applicant’s life and subsequently considering whether to amputate the right leg.

In his final address the applicant’s lawyer drew the Court of Appeal’s attention to the fact that, despite the presence of gangrene as early as December 2007, the applicant had been sent to Prison No. 1 and left there untreated. Given that, according to the doctors, the applicant could not be cured, the lawyer requested that her client be dispensed from having to serve the remainder of his prison sentence (under Article 608 § 1 of the CCP).

In a judgment of 8 September 2008 the Court of Appeal ordered that the applicant’s prison sentence be suspended pending a substantial improvement in his state of health, provided that he undergo a medical examination every six months and provide the court with the results thereof. The applicant was immediately released.

According to a medical report of 6 March 2009, the applicant suffered from cardiac ischaemia, second-degree angina pectoris, thirddegree hypertension and second-degree heart failure. From a cardiological point of view, his heart condition remained serious. With regard to his arteries, the applicant suffered from Buerger’s disease, occlusion of the arteries in the right tibia, stenosis of the arteries in the left tibia, chronic arterial deficiency in the right lower limb at the fourth stage of the disease and gangrene of the tissue in the right big toe. The gangrene was still described as progressive. The experts concluded that the applicant required cardiological and angiological treatment in a specialist institution.

Over May and June 2011 the applicant underwent another forensic examination. It appeared from the report of 21 June 2011 that on 6 February 2011 the applicant had had the lower part of his right leg amputated. At the same time he was diagnosed with gangrene on the big toe of the left foot. While confirming his diagnosis from a cardiological point of view as potentially serious the four experts involved in the examination also concluded that the applicant’s angiological condition had deteriorated as a result of ischemia. Thus, from the angiological point of view he was categorised as a seriously ill patient.


Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant, Mr E.B., was an Austrian national, born in 1947. The President granted the applicants’ requests for his identity not to be disclosed to the public (Rule 47 § 4). He was represented before the Court by Mr H. Graupner, a lawyer practising in Vienna.

The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

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

On 1 December 2004 the Vienna Regional Court convicted the applicant of sexual acts with persons under the age of 14 (Article 207 of the Criminal Code) and with persons under the age of 16 not mature enough to understand the act, taking advantage of this immaturity (Article 207b of the Criminal Code), and sentenced him to three years’ imprisonment. His criminal record, which at the time consisted of twelve convictions, of which nine concerned sexual offences involving adolescents, was treated as an aggravating circumstance. These previous convictions were as follows:

- In 1978 the applicant was convicted in a Dutch court of indecent acts with adolescents (unzüchtige Handlungen mit Jugendlichen), for which he was sentenced to two weeks’ imprisonment and fined.

- On 23 September 1982 the Innsbruck Regional Court convicted him of homosexual acts with consenting male persons between 14 and 18 years of age (Article 209 of the Criminal Code, as in force at the time) and sentenced him to ten months’ imprisonment. On 10 August 1983 the Innsbruck Court of Appeal reduced the sentence to seven months’ imprisonment.

- In 1989 the applicant was convicted in the Feldkirch Regional Court of attempted fornication with persons under the age of 14 (Article 207 of the Criminal Code) and fined.

- In 1990 the applicant was convicted in the same court of an offence under the same provision, namely fornication with persons under the age of 14. He was sentenced to nine months’ imprisonment.

- In 1992 the applicant was convicted in a German Court of sexual abuse of persons under the age of 14 and sentenced to six months’ imprisonment.

- In 1995 the applicant was convicted in a German Court of the same offence and sentenced to one year and ten months’ imprisonment.

- In 1997 the applicant was convicted in a Hungarian court of sexual abuse involving minors (sexueller Missbrauch von Minderjährigen) and sentenced to three years’ imprisonment.

- On 18 November 1999 the Vienna Regional Court convicted him of an offence under Article 209 of the Criminal Code, as in force at the time and sentenced him to two years and six months’ imprisonment. On 30 March 2000 the Supreme Court partly acquitted him and reduced the sentence to one year’s imprisonment.

- On 6 April 2001 the Vienna Regional Court convicted him of an offence under the same provision and sentenced him to one year’s imprisonment. The applicant did not appeal.

On 22 March 2005 the Supreme Court rejected a plea of nullity lodged by the applicant and on 3 May 2005 the Vienna Court of Appeal dismissed an appeal lodged by him against the judgment of 1 December 2004 (see paragraph 4 above).

On an unspecified date the applicant asked for early release from prison.

On 27 April 2006 the Korneuburg Regional Court dismissed the applicant’s request. It noted that under Article 46 of the Criminal Code a court may grant early release if a prisoner has served two thirds of his sentence, unless there were specific reasons to expect that this person would commit criminal offences while at liberty. The Regional Court considered that the applicant had not shown that he had seen sense and was still playing down the offences committed by him. Moreover, his numerous previous convictions for sexual offences involving minors (Minderjährige) had not succeeded in getting him to conform to standards of law-abiding behaviour (normangepasstes Verhalten). For that reason he had to serve his entire prison sentence.

On 16 May 2006 the applicant lodged an appeal against the decision refusing his early release. He submitted that the Regional Court’s reliance on his previous convictions under Article 209 of the Criminal Code constituted a breach of Article 14 read in conjunction with Article 8 of the Convention, because Article 209 had been quashed by the Constitutional Court on 21 June 2002 as being unconstitutional.

On 13 June 2006 the Vienna Court of Appeal dismissed the applicant’s appeal, holding that the Regional Court had acted correctly in taking also the applicant’s Article 209 convictions into account, even though the provision was constitutionally problematic. Having examined the files concerning the criminal proceedings against the applicant under that provision, it was apparent from the circumstances of the criminal acts, as well as the age and personality of the victims, that a conviction of the applicant would have also been justified under the legal provisions brought in to replace Article 209, which were constitutionally compliant. In view of these considerations, and also taking into account the applicant’s other convictions, the Regional Court had been correct in concluding that the conditions for the applicant’s release under Article 46 § 2 of the Criminal Code were not fulfilled because of the applicant’s incorrigible personality, as he resisted all measures of social reintegration, played down his acts and showed no remorse.

Accordingly, the applicant served the full sentence. He died on 14 September 2008.


Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

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

The applicant was born in 1969 and lives in Morozovsk in the Rostov Region.

On 7 July 2004 the applicant was arrested and placed in a temporary detention centre at the Morozovsk police station («Изолятор временного содержания», «ИВС», “IVS”) on suspicion of murder.

The applicant was detained in the IVS on four separate occasions: between 7 and 24 July 2004; 17 August and 8 October 2004; 24 October and 16 November 2004; and 4 and 16 December 2004.

In the applicant’s submission, the conditions of his detention in the IVS during those four periods were essentially identical and as described below.

The IVS was situated in the basement of the police station. The applicant was placed in a cell measuring approximately 12.5 square metres, which housed six to seven people. The walls, floor and ceiling were all covered with cement. There was no ventilation in the cell and consequently it was stuffy. The windows were covered with exterior and interior metal plates with minuscule openings, which gave practically no access to natural light. The cell was lit by a lamp set high up in an alcove in the wall, so there was insufficient light for reading or writing.

In summer, temperatures inside exceeded 40˚C and the cell had a high level of humidity. There was no glass in the windows and in winter it was cold.

No mattresses, bedding, cups, eating utensils or toiletries were distributed. There were no pest control measures in place to eliminate cockroaches and mice. The cell was not connected to a sewer and detainees had to relieve themselves in a bucket, which was removed from the cell once a day to be emptied. The water which was distributed once a day (ten litres per cell) was not drinkable. There was no provision for outside exercise or showers.

The applicant was fed once a day. The food was wholly inadequate, both in terms of quality and portion size.

The applicant sustained an injury to his head prior to his arrest. While in the IVS, he did not receive adequate medical treatment for the injury. The applicant – who had contracted tuberculosis in 2001 – shared a cell with a person who was actually suffering from the open form of the disease at the time of his detention, and this represented a potential risk to his health.

Each of the IVS cells in which the applicant was kept measured approximately 15 square metres and had six sleeping places. However, it was impossible to provide more detailed information, as the registration logs for the IVS had been destroyed.

According to the findings of the inquiry carried out by the Morozovskiy district prosecutor’s office on the basis of the applicant’s complaint, the applicant shared one of the cells in which he was kept – which was equipped with six sleeping places – with four inmates. At some point, he was transferred to a solitary confinement cell upon his request. The applicant received three meals a day. There were no mice or insects in the cells. The bucket that acted as a substitute for sanitary facilities was cleaned daily. The applicant had access to drinking water and toiletries. The applicant was provided with adequate medical assistance on request.

On 12 November 2004 the Morozovskiy District Court of the Rostov Region convicted the applicant of murder and sentenced him to eleven years’ imprisonment. On 15 March 2005 the Rostov Regional Court upheld the conviction on appeal.

The applicant was then sent to serve his sentence at a postconviction detention facility in the town of Pechora in the Komi Republic. The journey there included train travel and accommodation in SIZO-type detention facilities («следственный изолятор временного содержания», «СИЗО»). These facilities generally serve as remand prisons, yet can also be used for the temporary detention of people who have already been convicted.

At certain times between 24 July 2004 and 6 June 2005, the applicant was kept in Novocherkassk detention facility no. IZ-61/3.

The applicant was detained in a cell measuring 28 square metres, which was designed to hold ten people. However, he shared this cell with fifteen other detainees, so they had to sleep in shifts. The bedding supplied was dirty, worn out and covered in bloodstains. Mattresses were also worn out and infested with insects. There was no ventilation. Lights were on day and night. No toiletries were supplied.

In summer, the cell was extremely humid and stuffy. Owing to water shortages lasting up to two or three days, the applicant had difficulties in obtaining drinking water and flushing the lavatory. The cell was infested with insects such as cockroaches. Conditions were unsanitary and no showers were available.

While in detention facility no. IZ-61/3, the applicant was kept in the following cells:

- cell no. 247 measuring 25.7 square metres;

- cell no. 243 measuring 23 square metres;

- cell no. 244 measuring 25.7 square metres;

- cell no. 284 measuring 18.5 square metres;

- cell no. 162 measuring 33.8 square metres;

- cell no. 337 measuring 18.7 square metres;

- cell no. 372 measuring 18.7 square metres;

- cell no. 402 measuring 10.5 square metres;

- cell no. 393 measuring 10.5 square metres;

- cell no. 385 measuring 18.5 square metres;

- cell no. 316 measuring 18.7 square metres;

- cell no. 304 measuring 18.5 square metres;

- cell no. 326 measuring 10.5 square metres;

- cell no. 332 measuring 10.4 square metres;

- cell no. 330 measuring 10.4 square metres.

The Government did not specify the actual number of sleeping places in the cells in question and/or the number of inmates who had shared the cells with the applicant, referring to the fact that the detention facility’s logbooks had been destroyed.

The Government provided a number of documents dated 30 April 2009 and signed by the governor of detention facility no. IZ-61/3, which stated in particular that: (a) the number of inmates kept together with the applicant in the fifteen cells of Novocherkassk detention facility had not exceeded the number of sleeping places available; (b) on 1 December 2005 an additional new building to accommodate 500 inmates had been opened; (c) there had been no rodents or insects in the facility and the cells had been regularly cleaned and disinfested; (d) each of the fifteen cells had been equipped with lavatories which were separated from the living areas and sinks; and (e) detainees had been provided with good-quality food pursuant to internal regulations.

The Government provided three handwritten undated statements from IZ-61/3 officials who stated that they “certainly remembered” that the applicant had been kept in fifteen cells at the facility. In their statements, the officials listed the numbers of the cells and confirmed that he had been provided with an individual sleeping place in each of those cells.

Between 7 June and 9 July 2005 the applicant was kept in Ryazan detention facility no. IZ-62/1.

In the applicant’s submission, he was kept in a transit cell measuring 49 square metres, which was designed for twenty-two detainees. Instead, during the relevant period, the cell housed no fewer than forty-two people, who had to sleep in shifts. The applicant suffered from a lack of food and found the food which he was given to be of poor quality. He also sustained numerous painful insect bites which left marks on his body.

According to the Government, the applicant was kept in cell no. 32 (measuring 49 square metres), cell no. 46 (measuring 56 square metres) and cell no. 56 (measuring 32 square metres). The number of sleeping places and/or inmates who had been kept in the cells with the applicant was unknown, as the facility’s logbooks had been destroyed.

The Government provided documents dated 4 May 2009 which had been signed by the deputy governor of IZ-62/1 and which stated that: (a) cell no. 32 had been equipped with a sink; (b) during the applicant’s detention, a private contractor had regularly carried out disinfestation procedures at the detention facility pursuant to a contract which had been concluded on 9 January 2008; and (c) detainees had been provided with three meals a day, pursuant to the relevant regulations. The Government also enclosed a photo of a sink and invoices from the disinfestation contractor which were dated July 2008.

Between 20 and 27 July 2005 the applicant was kept in Yekaterinburg detention facility no. IZ-66/1.

According to the applicant, he was placed in a cell measuring 25 square metres, together with twenty-three other inmates. No bedding was supplied. The cell was infested with insects. After some days there, he was moved to another cell measuring 22.5 square metres, which housed thirtyfive people. The cell had a row of benches, which were no use for sitting on, let alone sleeping on. No food or drinking water was provided.

In the Government’s submission, the applicant was kept in cell no. 137 (measuring 12.5 square metres), cell no. 302 (measuring 31.4 square metres), cell no. 307 (measuring 29.2 square metres) and cell no. 404 (measuring 15.2 square metres). In each cell, he was provided with an individual sleeping place and bedding. The number of inmates who were kept in the cells with the applicant was unknown, as was the number of sleeping places which were available, as the logbooks had been destroyed.

The Government provided documents dated 5 May 2009 and signed by the governor of IZ-66/1 confirming that the applicant had been detained in the facility between 20 and 27 July 2005. There had been no rodents or insects in the cell during this period, and the cell had been equipped with sanitary facilities. The applicant had been provided with access to a shower upon his arrival at the facility and had been provided with food, pursuant to the relevant regulations. The cell had been equipped with sixteen sleeping spaces and had housed four to sixteen inmates. The Government also enclosed contracts for disinfestation services, as well as relevant invoices.

Another document dated 5 May 2009 and signed by the head of the Sverdlovsk regional department of the Federal Prison Service (“the Sverdlovsk FSIN”) stated that, between 20 and 27 July 2005, the applicant had been kept in cell no. 307 at IZ66/1. According to the document, this cell measured 29.2 square metres and was equipped with twenty sleeping places, and the applicant had shared it with four to sixteen other inmates.

The applicant made a complaint to various public authorities, including the prosecutor’s office and courts, in relation to the alleged lack of adequate medical assistance and the conditions of detention in the IVS (see paragraphs 6 to 15 above). In particular, he alleged that he had sustained a post-traumatic brain injury, contracted tuberculosis and become ill with gastritis, astigmatism, alimentary anaemia and muscular hypotrophy while in detention.

As regards his complaint to the prosecutor’s office it appears that on 5 November 2005 the Morozovskiy district prosecutor’s office refused to initiate criminal proceedings regarding the alleged poor conditions of the applicant’s detention in the IVS. The applicant was not provided with a copy of that decision. A further refusal was issued on 16 February 2006. However, the prosecutor found that the applicant’s allegations concerning the conditions of detention in the IVS “had been confirmed in part”, but that such conditions did not constitute a crime under the Criminal Code. He also indicated that the head of the police station had been instructed to remedy the irregularities which had been identified. The applicant was not given access to the prosecutor’s inquiry file.

On 20 March 2007 the Morozovskiy District Court of the Rostov Region upheld the prosecutor’s decision. On 28 August 2007 the Rostov Regional Court upheld the first-instance judgment.

As regards other court proceedings, in 2007 the applicant initiated civil proceedings, claiming compensation for the nonpecuniary damage caused by the conditions of detention in the IVS and the lack of adequate medical assistance rendered to him in that facility. On three occasions – on 26 November and 26 December 2007, and on 11 January 2008 – the Morozovskiy District Court invited the applicant to eliminate discrepancies in his statements of claim. The applicant did not comply with the court’s requests, neither did he appeal against the court’s rulings. The Morozovskiy District Court left the claims unexamined.


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

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

The applicant was born in 1947 and lives in Bratislava.

On 9 May 2007 the applicant lodged an action with the Bratislava V District Court (Okresný súd) seeking a ruling declaring that a meeting of flat owners in a block of flats held on 24 April 2007 was contrary to the law, and that the decisions adopted at that meeting were void.

The defendant of the action was an entity with legal personality referred to as a community of owners of residential and non-residential premises in the given building (“the defendant”). Such entities are officially registered with the local District Authority (obvodný úrad). The defendant was so registered with the District Authority in Bratislava.

On 2 January 2008 a submission was made to the District Court by a lawyer indicating that he was acting on behalf of the defendant and informing the court that on 14 December 2007 the defendant had ceased legally to exist. In that connection he submitted a letter from the District Authority which indicated that the defendant had been struck out of the relevant register on that date, the context being that the administration of the building was no longer the responsibility of the defendant and that that responsibility had been transferred to a specialised agency.

On 24 January 2008 the applicant requested that a hearing scheduled before the District Court for 28 January 2008 be postponed sine die. She submitted that she had just learned of the striking out of the defendant by consulting the relevant register, and that she would make a further submission once she had analysed the situation, for which she needed time. The hearing scheduled for 28 January 2008 was accordingly adjourned.

On 3 March 2008 the District Court discontinued the proceedings, on the grounds that the defendant had ceased to exist and had no legal successor. In particular, the District Court held that neither the individual owners of the flats in the building nor the newly contracted administration agency could be considered as having succeeded to the defendant’s position in the proceedings.

On 20 March 2008 the applicant appealed (odvolanie), raising two principal arguments.

First, she submitted that the administration agency was the successor to the original defendant, and that consequently the proceedings should have continued against it.

Second, even assuming that the first contention was not correct, the court should not have terminated the proceedings but should rather have stayed them pending the outcome of another set of proceedings before the same District Court, in which a decision was being contested which had been taken at another meeting of the flat owners on 11 September 2007, to the effect that the defendant should be wound up (zrušenie). If that other set of proceedings ended with a ruling declaring the winding up of the original defendant void, its striking out of the given register would lose basis and the proceedings could continue against that defendant. More details about those other proceedings are set out below (see paragraphs 18 et seq.).

On 30 May 2008 the Bratislava Regional Court (Krajský súd) upheld the first-instance decision, noting that the defendant had been struck out of the relevant register and had thereby lost capacity to be a party to the proceedings, in which situation there was no alternative to a discontinuance of the proceedings. The relevant legal provisions were referred to, but no reasons were offered for the latter conclusion.

On 7 July 2008 the applicant appealed on points of law (dovolanie), relying on Article 237 (f) of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended) (“the CCP”), under which such an appeal was admissible if the courts had prevented a party to the proceedings from pursuing a case before them. In particular, she argued that the Regional Court had provided neither any factual nor legal grounds for its conclusion, as a result of which it was not amenable to review. In addition, she pursued and further developed the same line of argument as in her appeal.

On 7 May 2009 the Supreme Court (Najvyšší súd) declared the applicant’s appeal on points of law inadmissible, holding that the shortcomings alleged by the applicant did not fall within the purview of Article 237 (f) of the CCP. This applied specifically to the alleged deficiency in the Regional Court’s reasoning and the alleged errors of fact and law in the lower courts’ decisions.

In addition, in so far as the applicant had contested an error of procedure in that the courts had failed to stay the proceedings rather than to terminate them, the Supreme Court held that staying the proceedings was an option and not a duty of the court concerned, and that the fact that the present proceedings had not been stayed did not make out the admissibility ground cited by the applicant.

As the appeal was not admissible, the Supreme Court did not examine the merits of the case.

On 17 August 2009 the applicant lodged a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) with the Constitutional Court (Ústavný súd). She directed the complaint against all three levels of the ordinary courts and pursued and further developed in principle the arguments described above.

She considered that the discontinuance of the proceedings had been unlawful, submitted that it had been a mistake of the ordinary courts not to have examined the merits of her claim, and argued that this had amounted to a breach of her rights of access to court and to a fair hearing under Article 6 § 1 of the Convention.

On 16 December 2009 the Constitutional Court declared the complaint inadmissible. It considered it separately with reference to the individual levels of ordinary jurisdiction involved.

As regards the alleged shortcomings in the proceedings leading to the Regional Court’s decision of 30 May 2008, it held that the applicant had failed to submit her complaint within the statutory time-limit of two months.

As regards the Supreme Court, it observed that the central argument in the applicant’s appeal on points of law was the alleged error of law. In that regard, it went on to hold, inter alia, that:

“The Supreme Court ... rightfully emphasised ... that, as there were no grounds on which the applicant’s appeal on points of law would be admissible, it was not possible for it to review the merits of the Regional Court’s decision. The Supreme Court did not exclude in a binding manner that the decision of the Regional Court was the result of a wrongful legal assessment of the matter, nor did it exclude the possibility of there having been another error in the proceedings before it which had resulted in a wrongful decision on the merits.”

Nevertheless, the Constitutional Court found that, as regards the admissibility of the applicant’s appeal, the Supreme Court had given relevant reasons for its decision and that that decision was not arbitrary.

In particular, it also noted that, should the other set of proceedings end with a ruling declaring the winding up of the defendant void, this would create for the applicant the opportunity to seek reopening of the proceedings in her case. Future examination of that case on the merits thus could not be completely excluded. However, at the same time, the Constitutional Court noted that even if the winding up of the defendant were to be declared void, this would not automatically mean that the defendant would legally come into existence once more. The coming into being of a legal entity such as the defendant required incorporation, which in turn necessitated a decision of the District Authority, and could not result directly from a judicial decision.

The Constitutional Court’s decision was served on the applicant on 5 February 2010.

On 26 September 2007 an individual brought proceedings against the above-mentioned defendant as well as the above-mentioned newly appointed management agency, seeking a ruling declaring void a decision to wind up the defendant taken at a meeting of flat owners in the block held on 11 September 2007 (see paragraph 10 above).

After the first dismissal of the action was quashed following the claimant’s appeal, the action was again dismissed by the District Court on 4 April 2012 and, following the claimant’s appeal, by the Regional Court on 19 March 2014.

On 14 July 2014 the claimant challenged the judgments last mentioned by way of a complaint to the Constitutional Court.

The complaint appears to be still pending.


Preliminary objection joined to merits and dismissed (Article 34 - Victim);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković

The applicant was born in 1968 and lives in Diyarbakır.

At the time of the events in question the applicant was the vicepresident of HAK-PAR (Hak ve Özgürlükler Partisi – the Rights and Freedoms Party).

On 4 January 2004 the party held its first ordinary congress at a restaurant in Ankara, where the applicant was elected by the delegates to act as the meeting’s chairman.

On 28 February 2005 a public prosecutor at the Ankara public prosecutor’s office filed an indictment with the Ankara Criminal Court of First Instance against thirteen members of HAK-PAR, including the applicant, for acting in violation of section 81 (c) of Law no. 2820 during the congress on the grounds, inter alia, that there had been banners in Kurdish and that most of the speeches given by the delegates had been in Kurdish.

The applicant acknowledged before the first-instance court that he had not intervened as the chairman when certain delegates had spoken in Kurdish. In this connection, he submitted that, as a founder member of HAKPAR, he believed that Kurdish should be used in all areas of life; that those who spoke Kurdish were speaking in their mother tongue; and that he believed that it was neither legal nor ethical for him to intervene to force people to speak in a language other than their mother tongue. He maintained that such speeches could not have constituted an offence, when taking into account laws that had been enacted in compliance with the conditions for membership of the European Union, and the provisions of the European Convention on Human Rights. In this connection, the applicant also submitted that the relevant provisions of Law no. 2820 were contrary to the Constitution.

On 7 December 2005 the first-instance court dismissed an application from the defendants to suspend the proceedings and transfer the case to the Constitutional Court for examination of the compatibility of the relevant provisions with the Constitution.

On 14 February 2007 the Ankara Criminal Court of First Instance convicted the applicant of the charges. In particular, the court considered that the applicant had, despite warnings from a government superintendent present at the congress, continued to allow certain delegates to give their speeches in Kurdish, in breach of section 81 (c) of Law no. 2820. The applicant was sentenced to one year’s imprisonment.

On 23 March 2011 the Court of Cassation quashed the judgment of the first-instance court on the ground that the latter had failed to give any consideration to whether the conditions for suspending the delivery of the judgment against the defendants, pursuant to Article 231 of the Code of Criminal Procedure, had been met.

On 6 December 2011 the Ankara Criminal Court of First Instance ordered that the criminal proceedings against the applicant and the other defendants be terminated, on the ground that the statutory time-limit prescribed under domestic law had expired.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

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. The applicants also raised other complaints under the provisions of the Convention.


No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)

On 31 January 2006 the applicant submitted a traffic accident report to an insurance company. According to that report she had been involved in a traffic accident in her car on 26 January 2006. On 3 March 2006 the applicant submitted additional explanations to the insurance company. She stated that she had not known the other persons involved in the accident, that she had completed the accident report in her vehicle after the accident and that her friend P. had come to pick her up at the scene of the accident. The insurance company suspected fraud and informed the police. On 6 April 2006 criminal proceedings were opened. The applicant was charged with insurance fraud and inciting P. knowingly to give false testimony. The other accused were P., K., T. and V.

On 16 May 2008 a prosecutor drew up a bill of indictment against the applicant, P., K., T. and V. According to the bill of indictment, it had been established in the criminal investigation that the applicant, contrary to her allegations, had not been at the scene of the alleged accident. This was confirmed by the positioning of her mobile phone at the time of the accident, her phone call records and P.’s statement. It was established that the applicant together with the other accused had submitted false information to the insurance company concerning the occurrence of an insured event, the persons who had been involved in the traffic accident, and the circumstances of the accident. The applicant was therefore charged with insurance fraud. In addition, it was established that the applicant had incited P. to give false testimony concerning the fact that she had gone to pick the applicant up at the scene of the accident. This had been confirmed by P.’s statement. The applicant was therefore charged with inciting another person knowingly to give false testimony. It was noted in the statement of charges that no pecuniary damage had been caused by the offences because the insurance company had declined to make the corresponding payout when the suspicion of an offence arose. On the basis of this statement of charges the applicant was committed for trial.

On 2 and 3 December 2008 the Tartu County Court held a hearing in the criminal proceedings against the applicant, P., K., T. and V. At this hearing the prosecutor asked the court to discontinue the criminal proceedings against the applicant and P. under Article 202 (1) of the Code of Criminal Procedure (Kriminaalmenetluse seadustik). According to the minutes of the hearing, the prosecutor stated that the applicant had committed offences of a less serious nature (“in the second degree”), that she had been involved in the commission of those offences at the instigation of the co-accused, thereby demonstrating that her guilt was less, and that she had no previous convictions. In requesting the imposition of certain public law obligations, the prosecutor had also taken into account the fact that the applicant had been raising a small child on her own. The applicant and her counsel explicitly accepted this reasoning put forward by the prosecutor in support of discontinuance of the criminal proceedings. They also consented to the prosecutor’s request that the applicant be ordered to pay the procedural costs and perform community service.

By a ruling of 3 December 2008 the Tartu County Court discontinued the criminal proceedings in respect of the applicant and P. on the basis of Article 202 (1) and (2) of the Code of Criminal Procedure (the “CCrP”). The applicant was ordered to pay 1,178 kroons (EEK) (75 euros (EUR)) to the public purse and perform eighty hours of community service. In the event of the applicant’s failure to perform these obligations, the court would ‒ at the request of the Public Prosecutor’s Office ‒ resume the criminal proceedings.

The County Court’s ruling contained a detailed description of the charges against the applicant and P. It further noted that the prosecutor had requested the discontinuance of the criminal proceedings in respect of the applicant and P. on the basis of Article 202 of the Code of Criminal Procedure since the offence in question had been an offence in the second degree, both the applicant and P. had been involved in it at the instigation of other persons, and neither of them had had a previous criminal record. Their guilt had been negligible and there had been no public interest in the continuation of the criminal proceedings. The prosecutor had requested the imposition on the applicant of the obligations indicated above. The court also noted that both the applicant and P. ‒ as well as their lawyers ‒ had agreed to the discontinuance of the proceedings and the imposition of the obligations requested by the prosecutor. The part of the ruling setting out the County Court’s conclusion read as follows:

“The criminal proceedings in respect of the charges against [the applicant] ... have to be discontinued on the basis of Article 202 (1) and (2) of the [Code of Criminal Procedure] as all the legal requirements have been fulfilled. This is an offence in the second degree, the guilt of the accused is negligible, no proprietary damage has been caused and there is no public interest in the continuation of the proceedings.

On the basis of Article 202 (2) points 1 and 2 of the [Code of Criminal Procedure] the obligations requested by the prosecutor have to be imposed on the applicant ... ”

By a judgment of 3 December 2008, in settlement proceedings concerning the same criminal case, the Tartu County Court convicted K., T. and V. of insurance fraud. It was noted in the judgment that V. and the applicant ‒ whose name was replaced with initials in the judgment ‒ had not been present at the scene of the alleged accident. It was also stated that the applicant and K. had drafted and that the applicant, T. and V. had signed and submitted to the insurance company documents containing false information about the traffic accident. It was further stated that by these acts K., the applicant, T. and V. had jointly created the illusion of the occurrence of an insured event with the aim of claiming an insurance payout.

On 4 March 2009 the applicant claimed EEK 190,282.71 (EUR 12,161) from the insurance company by way of compensation related to the traffic accident that had given rise to the above criminal proceedings. The insurance company rejected the claim, arguing that it had been established by the Tartu County Court’s judgment of 3 December 2008 that the traffic accident had been staged.

By 23 May 2009 the applicant had performed the obligations imposed on her in the ruling of 3 December 2008.

On 2 June 2009 the applicant brought a civil suit against the insurance company. In support of her insurance claim, the applicant submitted as evidence to the court the claims sent to the insurance company after the event in 2006, a copy of the 3 December 2008 ruling ordering discontinuance of the criminal proceedings, and documents proving the extent of the damage. The insurance company, for its part, submitted to the court the 3 December 2008 judgment in the criminal case (see paragraph 10 above). The defendant argued that the judgment, together with the ruling ordering discontinuance of the proceedings, was sufficient to negate the applicant’s claim that a genuine traffic accident had taken place as she alleged.

The applicant’s claim was dismissed by a judgment of Tartu County Court on 23 December 2009. The court held as follows:

“Tartu County Court established by a final judgment in the criminal case ... that the traffic accident which, according to the [applicant’s] allegations, had taken place on 26 January 2006, had been staged. According to the judgment ... three individuals were found guilty of having staged a collision between an Opel Ascona, an Audi A6 and a Volvo S60 allegedly driven by the [applicant] at around 9 p.m. on 26 January 2006. The [applicant] made a claim to the [insurance company] for compensation for the damage caused to the vehicle by the alleged traffic accident ... . According to the claim the [applicant] had been driving the car that was involved in the accident. It was established by the Tartu County Court’s ruling of 3 December 2008 ... that the [applicant] had not been at the scene of the traffic accident and that it had been staged. Nevertheless, ... the [applicant] submitted to the [insurance company] a statement containing false information and a claim for compensation for damage caused by an alleged insurance event. The [applicant] was charged with an offence under Article 212 § 1 of the [Penal Code], namely intentionally causing an insured event to happen and creating the illusion of the occurrence of an insured event with the intention of obtaining compensation from the insurer. The prosecutor requested ... the discontinuance of the criminal proceedings on the basis of Article 202 of the [Code of Criminal Procedure] since it was an offence in the second degree, the guilt of the accused was negligible, and there was no public interest in the continuation of the proceedings. The [applicant] erroneously concluded that, because of the [prosecutor’s] request and the discontinuance of the criminal proceedings, [she] had a right to claim the insurance payout. An insurance payout is made by an insurer only if an insured event has occurred. In the present case it had been established by a judgment and a ruling of a court that no insured event had occurred and that the traffic accident had been staged. The [applicant] therefore had no grounds for claiming the payout ... from the [insurance company]. ... In the present case, no accident took place.

The [applicant] is wrong in her understanding that she is not guilty because of the discontinuance of the criminal proceedings against her [on the basis of] Article 202 § 2 (1) and (2) [of the Code of Criminal Procedure]. Article 202 § 1 [of the Code of Criminal Procedure] provides that if the object of criminal proceedings is a criminal offence in the second degree and the guilt of the person suspected or accused of the offence is negligible, and he or she has remedied or has begun to remedy the damage caused by the criminal offence or has paid the expenses relating to the criminal proceedings, or has assumed the obligation to pay such expenses, and there is no public interest in the continuation of the criminal proceedings, the Public Prosecutor’s Office may request discontinuance of the criminal proceedings by a court with the consent of the suspect or accused. It follows from this provision that the person’s guilt exists but it is negligible and that he or she has begun to remedy it or has assumed the obligation to pay the expenses relating to the criminal proceedings.”

The applicant appealed, complaining, inter alia, about the breach of her right to the presumption of innocence by the County Court. Although there had been no judgment finding her guilty in connection with the traffic accident of 26 January 2006, the County Court in its judgment of 23 December 2009 in a civil case had regarded her as being guilty of the offence. She argued that her consent to pay the expenses relating to the criminal proceedings did not mean that she had committed the offence. By its judgment of 3 December 2008 in a criminal case the Tartu County Court had convicted K., T. and V. but not the applicant.

On 3 May 2010 the Tartu Court of Appeal dismissed the appeal and upheld the County Court’s judgment, holding as follows:

“7. The [applicant] is mistaken in arguing that the County Court had wrongly interpreted the legal nature and the evidentiary value, in respect of the person’s admission of guilt, of the ruling ordering discontinuance of the criminal proceedings.

The County Court has correctly found, relying on what was established by the Tartu County Court’s ruling and judgment of 3 December 2008, that the [applicant] took part ... in the staging of a traffic accident the aim of which was to cause an insured event to happen and to create the illusion of the occurrence of that insured event with the intention to obtain compensation from the insurer.

According to Article 272 § 2 of the [Civil Code] court decisions in other cases are deemed to be documentary evidence.

Discontinuance of criminal proceedings under Article 202 § 1 of the [Code of Criminal Procedure] does not prove that the suspect or the accused has not committed the act he or she is accused of. The premise of the discontinuance of the criminal proceedings according to the provision referred to is that the object of the criminal proceedings is a criminal offence in the second degree and the guilt of the person suspected or accused of the offence is negligible, and that he or she has remedied or has begun to remedy the damage caused by the criminal offence or has paid the expenses relating to the criminal proceedings, or has assumed the obligation to pay such expenses, and that there is no public interest in the continuation of the criminal proceedings, but that the act as such was nevertheless committed.

The Court of Appeal finds that the fact that the applicant committed the act consisting of causing the insured event to happen and creating the illusion of the occurrence of an insured event with the intention of obtaining compensation from the insurer was established by the Tartu County Court’s ruling of 3 December 2008. If the [applicant’s] position was that she did not commit the act, she would have submitted evidence to prove her argument, but she has not done so. The mere assertion by the [applicant] that she did not commit the act referred to in the Tartu County Court’s ruling of 3 December 2008 does not imply the conclusion that the applicant did not participate in an insurance fraud aimed at obtaining compensation.

In the present case it is established that the [applicant] as the policyholder intentionally caused the insured event and the [insurance company] is therefore exempted from the obligation to satisfy the claim.”

The applicant appealed to the Supreme Court repeating, inter alia, her complaint about a breach of her right to the presumption of innocence.

On 22 June 2010 the Supreme Court decided not to examine the appeal.