Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Pecuniary damage - claim dismissed (Article 41 - Just satisfaction);Non-pecuniary damage - award (Article 41 - Just satisfaction)

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

The applicant was born in 1938 and lives in Ravne na Koroškem.

In 1993 his former employer, company Z. R., transferred him to another company.

On 20 April 1993 the applicant instituted proceedings against the company Z.R. before the Maribor Court of Associated Labour, complaining about his transfer.

On 28 June 1994 the Convention came into force in respect of Slovenia.

In September 1995 the applicant’s case was transferred to the Slovenj Gradec division of the Maribor Labour Court.

Between February 1996 and March 1997 the court held five hearings.

On 13 March 1997 the Maribor Labour Court established that the applicant’s transfer had never taken effect and that his employment with the defendant had continued. It ordered company Z.R. to re-employ the applicant and to pay him the salary due and the applicable benefits backdated to the day of his transfer. It dismissed the remainder of the claim. The applicant appealed.

In a decision of 16 April 1999 the Slovenian Pensions and Disability Insurance Institute recognised the applicant’s right to a pension as of 1 February 1999. His employment relationship with Z.R., which as of that date had still not re-employed him, hence terminated.

On 17 June 1999 the judgment of 13 March 1997 was upheld by the Higher Labour and Social Court and became final.

As Z.R. had not executed the court’s judgment, on 6 April 2000 the applicant instituted enforcement proceedings before the Slovenj Gradec Local Court.

On 12 July 2000 the court suspended the enforcement proceedings pending a final resolution of bankruptcy proceedings which had been instituted in the meantime against Z.R. (see below).

On 3 February 2005 the court decided to terminate the enforcement proceedings, since the applicant’s claims had been recognised in the bankruptcy proceedings. The decision became final on 22 February 2005.

On 5 July 2000 the Slovenj Gradec District Court decided to institute bankruptcy proceedings against the company Z.R.

On 31 August 2000 the applicant lodged a claim in the bankruptcy proceedings, seeking 2,000,000 Slovenian tolars (SIT, approximately 8,346 euros (EUR)) payable under the judgment of 13 March 1997 (see paragraph 11 above).

On 11 October 2000 the court held the first main hearing in order to review the claims lodged by the creditors. It was decided that a committee of creditors would not be appointed. According to the applicant, both the receiver and the insolvency panel had assured him and his son, U.Z., who represented him, that they would inform them of any progress in the case, in particular of the scheduling of hearings concerning the distribution of the estate. On the same date the insolvency panel acknowledged part of the applicant’s claims and referred him to the contentious proceedings in respect of the remainder of the claims. The applicant appealed.

On 5 December 2000 the Maribor Higher Court upheld the applicant’s appeal and overturned the District Court’s decision by instructing the receiver to institute proceedings in respect of the disputed part of the applicant’s claim.

On 22 January 2000 the official receiver instituted proceedings before the Slovenj Gradec District Court, requesting it to declare that the disputed part of the applicant’s claim did not exist.

On 20 June 2001 the receiver reported to the insolvency panel that the conclusion of the proceedings was dependent on the conclusion of bankruptcy proceedings in respect T., a company that had been operated by Z.R. It was expected that a large proportion of T.’s property would be transferred back to Z.R., including a hotel and spa complex, R.V. The receiver estimated that until that had been done, the property available for sale would not even cover the costs of the bankruptcy proceedings.

On 8 April 2003 the receiver withdrew his claim against the applicant.

As a result, on 5 May 2004 the Slovenj Gradec District Court stayed the contentious proceedings.

On 1 February 2005 the receiver accepted the applicant’s claim in the full amount.

On 18 February 2005 the applicant demanded the payment of his claim.

In his regular reports to the insolvency panel submitted between 2004 and 2006, the receiver emphasised that the termination of the present proceedings was dependent on the termination of the bankruptcy proceedings in respect of company T., which in turn were dependent on the pending denationalisation proceedings in respect of the R.V. hotel complex.

In 2006 ownership of the hotel complex, R.V., was transferred to the company Z.R. According to the receiver’s reports, it could not be sold until the termination of the denationalisation proceedings.

On 24 October 2007 the denationalisation proceedings were finally resolved.

On 16 April 2008 the insolvency panel ordered the sale of the R.V. hotel complex.

At a public auction held on 18 May 2008, R.V. was sold for EUR 501,426. Reports on the sale were published online on the Bajta.si web portal, on a web portal for accountants, Racunovodja.si, on the Slovenian Press Agency website, and in the daily financial newspaper, Finance.

On 17 June 2008 the receiver submitted to the court a draft proposal on the main distribution of the estate. The receiver further proposed that the court issue a decision on the priority payment of the claim of the first creditor, F.F., concerning compensation for damage sustained at work, which had been recognised by a court decision.

On 19 June 2008 the Slovenj Gradec District Court issued a decision on the compensation to be paid to F.F. and posted it on the court’s notice board.

On 30 June 2008 the insolvency panel of the District Court endorsed a draft proposal on the distribution of the bankrupt company’s estate to the nineteen remaining creditors. It was proposed that each of them receive 2.85% of the claim acknowledged in the proceedings, which in the applicant’s case amounted to EUR 237,86. The court scheduled a further hearing for 10 September 2008 to confirm the distribution of the estate.

On the same day, 30 June 2008, the District Court published its decision and posted the notification of the hearing on the court’s notice board. It informed the creditors that they could lodge their objections in respect of the distribution proposal at the hearing itself or in writing before the hearing.

On 11 July 2008 the notification of the hearing, with its date and venue, was published in the Official Gazette.

On 10 September 2008 the District Court held the hearing on the distribution of the estate and confirmed the receiver’s distribution proposal. Its decision was posted on the court’s notice board on 11 September 2008 and could have been challenged within eight days.

As no appeal was lodged against the decision of 10 September 2008, it became final on 20 September 2008.

A few weeks later the applicant became aware that the decision on distribution had already been issued. On 24 November 2008 he sent a letter to the District Court, asking it to serve him with the decision of 10 September 2008 so that he could lodge an appeal against it.

In its reply of 27 November 2008 the District Court asked the applicant to specify whether it should consider his letter as an appeal against the aforementioned decision.

On the same day the court decided to terminate the proceedings. It ruled that since the applicant had refused to accept the sum awarded to him, it should be deposited with the court.

On 3 December 2008 the applicant amended his submission in accordance with the court’s inquiry of 27 November 2008, specifying that he was complaining against the decision of 10 September 2008 (see paragraph 37 above).

On 4 December 2008 the applicant appealed against the decision of 27 November to terminate the bankruptcy proceedings (see paragraph 41 above). He argued that he had not been properly informed about the hearing of 10 September 2008 on the distribution of the estate (see paragraph 37 above) and that it was unrealistic to expect him to follow for eight years the notices posted on the court’s board and to read all the Official Gazettes in order to be informed of the progress in the proceedings. Moreover, he maintained that he should have been awarded the full amount claimed in the bankruptcy proceedings, since, like all the other employees to whom the company owed salary arrears, he had been a priority creditor in those proceedings.

On 18 December 2008 the Slovenj Gradec District Court, considering the applicant’s submissions of 24 November and 3 December as an appeal against the decision of 10 September, rejected the appeal as being out of time.

On 29 December 2008 the applicant lodged an appeal against the above decision. He argued that he had not been properly informed about the bankruptcy proceedings, that he should have been treated as a priority creditor, and that the bankruptcy court should have ruled ex officio on whether his claims had been ranked correctly and granted him the full amount claimed.

On 4 May 2009 the Maribor Higher Court dismissed the applicant’s appeal against the decision of 27 November 2008 (see paragraph 41 above), holding that he should have challenged the ranking of his claims at the hearing before the first-instance court. Relying on section 164 of the Compulsory Composition, Bankruptcy and Liquidation Act (see paragraph 51 below), it further concluded that the hearing on the distribution of the estate had been correctly scheduled.

On 22 June 2009 the Maribor Higher Court dismissed the applicant’s appeal against the decision of 18 December 2008.

On 17 July 2009 the applicant lodged a constitutional complaint against the decisions of the Higher Court of 4 May and 22 June 2009, reiterating in substance his complaints before the lower courts.

On 4 December 2009 the Constitutional Court rejected the applicant’s constitutional complaint.


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

Krzysztof Wojtyczek;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in 1979 and is currently detained in Łódź Remand Centre.

On 25 September 2006 the Łódź District Court (Sąd Rejonowy) ordered the applicant’s detention on remand for a period of three months. He was charged with a number of offences committed with an armed organised criminal group.

In its decision, the District Court relied on a reasonable suspicion that the applicant had committed the offences in question. The court further emphasised the gravity of the offences in question, the applicant’s active role in the criminal group and the likelihood of a heavy prison sentence being imposed on him after conviction. In the domestic court’s view the fact that the applicant was at the time detained pending other criminal proceedings against him did not guarantee the proper course of the proceedings since the applicant could had been released at any time from the pre-trial detention without the relevant authorities, responsible for the impugned proceedings, being notified. Moreover, the necessity to obtain further evidence justified remanding the applicant in custody.

The applicant’s appeal against the decision of 24 September 2006 was dismissed by the Łódź Regional Court (Sąd Okręgowy) on 25 October 2006. The court emphasised that the applicant’s detention on remand was necessary even though at the relevant time he was in any event detained pending another set of criminal proceedings against him.

On 19 December 2006 and 26 June 2007 the Łódź Regional Court extended the applicant’s pre-trial detention. Subsequently, the Łódź Court of Appeal (Sąd Apelacyjny) extended the applicant’s detention on 19 September 2007, 19 December 2007, 28 March 2008, 18 June 2008, 22 October 2008 and on 23 December 2008.

On 18 March 2009 the State Prosecutor (Prokurator Krajowy) lodged a bill of indictment against the applicant with the Łódź Regional Court. The applicant was charged with several counts of extortion and robbery committed in an organised and armed criminal group and with participation in an organised and armed criminal group. The bill of indictment comprised 94 charges brought against 28 defendants. The prosecution authorities requested that 318 witnesses be heard before the court.

On 30 March 2009 the Łódź Court of Appeal extended the applicant’s detention on remand until 31 December 2009. Subsequently, the same court ordered prolongation of his detention on 21 December 2009 (detention extended until 30 September 2010), on 22 September 2010 (detention extended until 31 March 2011) and on 23 March 2011 (detention extended until 30 September 2011). The applicant lodged a number of motions to be released as well as appeals against the decisions extending his pre-trial detention, all in vain.

In their decisions the courts repeated the grounds previously given for the applicant’s detention.

On 3 April 2009 the applicant’s lawyer lodged an appeal against one of the decisions extending the applicant’s detention. The lawyer argued that the reasons for continued pre-trial detention ceased to exist since the applicant had started serving a seven years’ prison sentence imposed by the Łódź District Court in the case no. IV K 239/06.

Meanwhile, the court scheduled fifteen hearings for November and December 2009. Due to sick-leaves of the presiding judge and of some of the accused those hearings did not take place.

The trial was eventually opened on 18 January 2010. Subsequent scheduled hearings were adjourned due to absences of some of the co-accused and due to problems with sound system in the court room.

In May 2010 the Regional Court gave a severance order and decided to determine charges against two co-accused separately.

The bill of indictment was finally read out to the defendants at the hearing held on 27 May 2010.

At the hearing of 28 May 2010 the Regional Court started taking evidence from the accused. It subsequently held fourteen hearings until the end of 2010, during which some of the accused gave evidence. Five of the scheduled hearings were adjourned due to sick-leaves of the accused. One hearing was adjourned because of the motion for disqualification of the presiding judge lodged by one of the co-accused.

In 2011 the Regional Court continued taking evidence from the defendants. Of the twenty nine hearings scheduled for this year, eleven took place. The trial court adjourned fifteen hearings due to justified absences of the parties, three hearings were cancelled due to sick-leaves of the presiding judge and the lay judges.

Meanwhile, on 13 September 2011 the Łódź Regional Court lodged a motion with the Łódź Court of Appeal to extend the applicant’s pre-trial detention. On 28 September 2011 the Łódź Court of Appeal dismissed the lower court’s motion.

Consequently, the applicant’s pre-trial detention was lifted on 30 September 2011.

The Regional Court scheduled twenty hearings for 2012, of which six hearings were eventually held. At the hearing of 16 April 2012 the trial court started taking evidence from wit

nesses.

Of the fourteen hearings cancelled this year, two were adjourned because of a sick-leave of the presiding judge, three because of absences of witnesses, and the remaining nine hearings – because of absences of the parties.

Until 30 July 2013 the Regional Court scheduled nine hearings for 2013, of which seven were adjourned due to justified absences of the defendants.

The criminal proceedings against the applicant are still pending before the first-instance court.

On 27 April 2011 the applicant lodged a complaint with the Łódź Court of Appeal under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”). He sought a finding that the length of the criminal proceedings against him had been excessive and 20,000 Polish zlotys (PLN) in compensation.

On 27 July 2011 the Łódź Court of Appeal dismissed the applicant’s complaint. The court found that, considering the complexity of the case and the number of co-accused who had actively tried to obstruct the proceedings, the Łódź Regional Court had conducted the proceedings in a correct and timely manner. Consequently, the appellate court refused to award the applicant compensation.


CASE OF PARADISO AND CAMPANELLI v. ITALY

Preliminary objection allowed (Article 35-3 - Ratione personae);Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Robert Spano

I. THE CIRCUMSTANCES OF THE CASE

The applicants were born in 1967 and 1955 respectively and live in Colletorto.

The applicants are a married couple. In the application form, they indicated that, after unsuccessful attempts at in vitro fertilisation, they decided to resort to gestational surrogacy in order to become parents. To that end, they contacted a Moscow-based clinic which specialised in assisted reproduction technology. They entered into a gestational surrogacy agreement with the company Rosjurconsulting. After a successful in vitro fertilisation on 19 May 2010, two embryos “belonging to them” were implanted in the womb of a surrogate mother on 19 June 2010. There was no genetic link between this woman and the embryos.

The baby was born on 27 February 2011. The surrogate mother gave her written consent to the child being registered as the applicants’ son. Her written declaration, dated the same day, and read aloud at the hospital in the presence of her doctor, the head doctor and the head of the (hospital) department, is worded as follows (English translation of the original Russian version):

“I, the undersigned... gave birth to a boy in the ... maternity hospital in Moscow. The child’s parents are an Italian married couple, Giovanni Campanelli, born on ... and Donatina Paradiso, born on..., who expressed in writing their wish to have their embryos implanted in my womb.

On the basis of the foregoing and in accordance with section 16(5) of the Federal Law on Civil Status and Article 51 (4) of the Family Code, I hereby give my consent for the above couple’s entry in the birth record and the birth certificate as parents of the child to whom I gave birth...”

This statement, in the Italian translation appended to the original, reads as follows (in English):

“I, the undersigned... gave birth to a boy in the ... maternity hospital in Moscow. The child’s genetic parents are an Italian married couple, Giovanni Campanelli, born on ... and Donatina Paradiso, born on..., who expressed in writing their wish to have their embryos implanted in my womb.

On 10 March 2011, in accordance with Russian law, the applicants were registered as the baby’s parents. The Russian birth certificate, which contained no reference to the gestational surrogacy, was certified in accordance with the provisions of the Hague Convention of 5 October 1961 (hereafter, “the Hague Convention”) Abolishing the Requirement of Legalisation for Foreign Public Documents.

On 29 April 2011 the first applicant went to the Italian Consulate in Moscow to obtain the documents that would allow the baby to leave for Italy with her. The applicant answered questions and submitted the paperwork concerning the child’s birth. The Italian Consulate issued the documents enabling the boy to leave for Italy with the first applicant.

On 30 April 2011 the first applicant and the child arrived in Italy. A few days later the second applicant contacted the Colletorto municipality, requesting that the particulars of the birth certificate be entered in the register.

In a note of 2 May 2011 – which is not included in the Court’s casefile – the Italian Consulate in Moscow indicated to the Campobasso Youth Court, the Ministry of Foreign Affairs and the Colletorto Prefecture and municipality that the paperwork in respect of the child’s birth contained false information.

On 5 May 2011 the applicants were placed under formal investigation for “altering civil status” within the meaning of Article 567 of the Criminal Code and forgery within the meaning of Articles 489 and 479 of the Criminal Code; and also for breaching section 72 of the Adoption Act (Law no. 183/1984), since they had brought the child into the country in breach of the law and had circumvented the condition set out in the adoption authorisation obtained by them on 7 December 2006, which prohibited them from adopting such a young child.

On 5 May 2011 the State Counsel’s Office attached to the Campobasso Youth Court asked that proceedings to free the child for adoption be opened, since the child ought to be considered, for legal purposes, as having been abandoned. On the same date the Youth Court appointed a guardian ad litem (curatore special) within the meaning of section 8 of Law no. 184/1983 and opened proceedings to free the child for adoption. On 16 May 2011 the State Counsel asked for a court-appointed adviser (curatore) to be named within the meaning of sections 8 and 10 of Law no. 184/83. A court-appointed adviser was named. It appears from the case file that the applicants protested against the measures in respect of the child and had asked to be able to adopt him.

On 25 May 2011 the first applicant, assisted by a lawyer of her own choosing, was questioned by the Larino carabinieri. She stated that she had travelled to Russia alone in September 2008, carrying with her seminal fluid that had previously been collected from her husband. She had concluded a contract with the company Rosjurconsulting, which had undertaken to find a surrogate mother willing to have implanted in her womb genetic material from the first applicant and her husband, through the Vitanova Clinic in Moscow. This practice was perfectly legal in Russia, and made it possible to obtain a birth certificate which identified the applicants as parents. In June/July 2010 the first applicant had been contacted by the Russian company, which stated that a surrogate mother had been found and had agreed to the medical procedure. On 10 March 2011 the first applicant had travelled to Moscow. In April 2011, with a birth certificate issued on 10 March 2011 by the Russian authorities, she had gone to the Italian Consulate in Moscow to obtain the documents that would enable the child to leave Russia and travel to Italy. The birth certificate showed the applicants’ names and identified them as the parents.

On 27 June 2011 the applicants were heard by the Youth Court. The first applicant stated that, after eight unsuccessful attempts at in vitro fertilisation, which had endangered her health, she had resorted to the Russian clinic, since it had been possible in Russia to use ova from a donor, which were subsequently implanted in the surrogate mother’s womb.

At the same time, the child’s court-appointed adviser asked the court to suspend the applicants’ parental responsibility within the meaning of section 10 § 3 of Law no. 184/1983.

On 7 July 2011 the court ordered that DNA testing be carried out in order to establish whether the second applicant was the child’s biological father.

On 11 July 2011 the Ministry of the Interior asked the Registry Office to refuse to enter the particulars of the birth certificate in the civil-status register.

On 1 August 2011 the second applicant and the child underwent DNA testing. The result of those tests showed that there was no genetic link between them.

On 4 August 2011 the Registry Office refused to register the birth certificate. The applicants lodged an appeal with the Larino Court against this refusal. The State Counsel’s Office asked the court to give the child a new identity and to issue a new birth certificate.

The Larino Court having ruled on 29 September 2011 that it did not have jurisdiction, the proceedings resumed before the Campobasso Court of Appeal. The applicants demanded that the particulars of the Russian birth certificate be entered in the Italian register.

On 20 October 2011, on the basis of the genetic testing and the submissions of the parties, including those of the child’s court-appointed adviser, the Youth Court decided to remove the child from the applicants. This decision was immediately enforceable. In reaching its decision, the court took account of the following factors: the first applicant had stated that she was not the genetic mother; the ova came from an unknown woman; the DNA test carried out on the second applicant and the child had shown that there was no genetic link between them; the applicants had paid a large sum of money (49,000 euros (EUR)); contrary to his allegations, there was nothing to prove that the second applicant’s genetic material had indeed been transported to Russia. The only thing that was certain in this story was the identity of the surrogate mother, who was not the biological mother and who had relinquished the child just after his birth. The biological parents remained unknown. That being the case, the situation was not one of subrogated maternity, since the child had no biological link with the applicants. The latter were steeped in illegality: they had brought a child into Italy by passing him off as their son. In so doing, they had, in the first place, breached the provisions on international adoption (Law no. 184 of 4 May 1983), section 72 of which made such breaches a criminal offence, the assessment of which was not, however, a matter for the youth court. Secondly, the agreement entered into by the applicants with the company Rosjurconsulting was contrary to the Medically Assisted Reproduction Act (Law no. 40 of 19 February 2004), section 4 of which prohibited heterologous assisted fertilisation. This illegal situation had to be brought to an end, and the only way to do so was to remove the child from the applicants. The child would admittedly suffer harm as a consequence of the separation but, given the short period spent with the applicants and his young age, the child would be able to surmount this. Steps would be taken immediately to find a couple of adoptive parents. In addition, given that the applicants had preferred to circumvent the adoption legislation, notwithstanding the authorisation they had received, it could be thought that the child resulted from a narcissistic desire on the part of the couple or indeed that he was intended to resolve problems in their relationship. In consequence, the court cast doubt on whether they were genuinely capable of providing emotional and educational support. As the child had neither a biological family nor his surrogate mother, since she had relinquished him, the court considered that the Italian legislation on adoption was applicable to this case (within the meaning of section 37bis of Law no. 184/1983), entrusted the child to the social services and appointed a guardian (tutore) for his defence.

The child was placed in a children’s home (casa famiglia) in a locality that was unknown to the applicants. They were forbidden from having contact with the child.

The applicants lodged an appeal (reclamo) with the Campobasso Court of Appeal. They argued, inter alia, that the Italian courts could not call into question the birth certificate. They further requested that no measures be taken concerning the child while the criminal proceedings brought against them and the proceedings challenging the refusal to enter the birth certificate in the Italian register were pending.

By a decision of 28 February 2012, the Campobasso Court of Appeal dismissed the appeal. It transpires from this decision, among other points, that section 33 of Law no. 218/95 (Private International Law Act) did not prevent the Italian courts from refusing to comply with certified information from a foreign State. There was no issue of lack of jurisdiction, since section 37bis of the International Adoption Act (Law no. 184/1983) provided that Italian law was applicable if the alien minor had been abandoned, and that was the situation in this case. Moreover, it was unnecessary to await the outcome of the criminal proceedings, since the applicants’ criminal liability was irrelevant. On the contrary, it was necessary to take an urgent measure in respect of the child, in order to put an end to the illegal situation in which the applicants existed. It was not possible to lodge an appeal on points of law against this decision.

It appears from a memorandum dated 22 May 2012, sent by the youth court to the Ministry of Justice, that the child had not yet been declared available for adoption, since the proceedings with regard to the transcription of the child’s birth certificate were pending before the Campobasso Court of Appeal.

In the meantime, on 30 October 2011 the State Counsel attached to the Larino Court had ordered the interim attachment of the Russian birth certificate, on the ground that it was an essential piece of evidence. It appeared from the case file that not only had the applicants probably committed the offences with which they were charged, but that they had attempted to conceal them. Among other things, they had stated that they were the biological parents, and had corrected their versions of the events over time as those versions had been proved inaccurate.

The applicants appealed against the interim attachment order.

By a decision of 20 November 2012, the Campobasso Court dismissed the applicants’ appeal. The decision indicates that there existed serious suspicions that the offences in question had been committed. In particular, the first applicant had put about a rumour that she was pregnant; she had gone to the Consulate and implied that she was the natural mother; she had then admitted that the child had been born to a surrogate mother; she had stated to the carabinieri on 25 May 2011 that the second applicant was the biological father, although the DNA tests had disproved this, and had therefore made false statements; she had been very vague as to the identity of the genetic mother; the documents concerning the surrogate motherhood stated that the two applicants had been seen by the Russian doctors, which did not accord with the fact that the second applicant had not been in Russia; the documents about the birth did not have a precise date. All that was known was that the child had been born and that he had been handed over to the first applicant against payment of almost EUR 50,000. Accordingly, the hypothesis that the applicants had conducted themselves illegally with a view to having the particulars of the birth certificate entered in the register of births, marriages and deaths and to circumventing the Italian legislation appeared sound.

In November 2012 the decision regarding the interim attachment was transmitted to the youth court by State Counsel, since it had the following implications. The charges under section 72 of Law no. 184/1983 deprived the applicants of the possibility of fostering (affido) the child and of adopting him or other minors. There was therefore no other solution but to proceed with the adoption procedure for the child. The temporary placement with a foster family had been requested by virtue of sections 8 and 10 of Law no. 184/83. The State Counsel repeated his request and emphasised that the child had been removed more than a year previously, and that he had since been living in a children’s home (casa famiglia), where he had developed meaningful relationships with the persons responsible for looking after him. Thus, the child had not yet found a replacement family environment for the home that had been illegally provided by those who had brought him to Italy. He seemed destined for yet another separation, even more painful than that from the mother who had given birth to him and from the woman who was claiming to be his mother.

It appears from the file that the child was placed in a foster family on 26 January 2013.

In March 2013, at the guardian’s request, an expert examination was carried out to determine the child’s age. It found that the child was probably aged 30 months, with a margin of error of three months.

In addition, at the beginning of April 2013 the guardian asked the juvenile court to give the child a formal identity, so that he could be registered for school without difficulty. He stated that the child had been placed in a family on 26 January 2013, but that he did not have an official identity. This “lack of existence” had a significant impact on administrative matters: it was unclear under what name the child was to be registered for school, for vaccination records, or for residence. Admittedly, this situation corresponded to the aim of preventing the original family, that is, the applicants, from discovering the child’s whereabouts, for his own protection. However, a temporary formal identity would enable the secrecy surrounding the child’s real identity to be maintained, while simultaneously enabling him to have access to public services; for the time being, he was entitled only to use emergency medical services.

By an immediately enforceable decision of 3 April 2013, the Campobasso Court of Appeal ruled in respect of the birth certificate and on whether an order should be made for it to be entered in the register of births, marriages and deaths (within the meaning of Article 95 of Presidential Decree (“DPR”) no. 396/00). It dismissed the objection raised by the guardian to the effect that the applicants did not have standing before the court; it acknowledged that the applicants had capacity to act in legal proceedings, in so far as they were indicated as the “parents” in the birth certificate that they wished to have transcribed. However, it was clear that the applicants were not the biological parents. There had not therefore been a gestational surrogacy, although the applicants had referred in their pleadings to heterologous artificial fertilisation; the parties agreed that the Russian legislation presupposed a biological link between the child and at least one of the potential parents before the term surrogate motherhood could be used. The birth certificate was therefore fraudulent (ideologicamente falso). Further, given that there was nothing to show that the child had Russian citizenship, the applicants’ argument that Italian law was inapplicable ran counter to section 33 of Law no. 218/95, which stated that the legal parent-child relationship was determined by the national law governing the child at the time of his or her birth. In addition, it was contrary to public order to enter the particulars of the disputed birth certificate in the register of births, marriages and deaths, since it was fraudulent. The applicants had pleaded their good faith, alleging that they were unable to explain why the second applicant’s seminal fluid had not been used in the Russian clinic; however, this did not alter the situation, and did not rectify the fact that the second applicant was not the biological father. In conclusion, it was legitimate to refuse to enter the particulars of the Russian birth certificate in the register of births, marriages and deaths, and to grant the State Council’s request that a new birth certificate be issued. The court therefore ordered that a new birth certificate be issued, indicating that the child was the son of persons unknown, born in Moscow on 27 February 2011, and that he be given a new name (determined within the meaning of DPR no. 396/00).

The proceedings relating to the child’s adoption were resumed before the Youth Court. The applicants confirmed their opposition to the child’s placement with third persons. The guardian asked the court to rule that the applicants no longer had locus standi. The State Council asked the court not to rule on its request to declare that the child was available for adoption using the child’s original name, on the ground that, in the meantime, he had opened a second set of proceedings requesting that the child be declared available for adoption using his new identity as a child of unknown parents. On 5 June 2013, in the light of the material in the file, the Youth Court held that the applicants no longer had capacity to act in the adoption proceedings brought by them, given that they were neither the child’s parents nor members of his family, within the meaning of section 10 of Law no. 184/1983. The court stated that it would decide on the question of the child’s adoption in the context of the other adoption proceedings, referred to by State Council.


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

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

The applicant was born in 1966 and is currently being detained in Giurgiu Prison. He is married and has four children. His wife resides in Turkey together with their children.

On 28 June 2005 the Bucharest County Court convicted the applicant of aggravated murder and sentenced him to eighteen years’ imprisonment. The Bucharest County Court also decided that the applicant would be deported to Turkey at the end of his prison term.

In his letters to the Court, which he began sending on 15 July 2008, the applicant complained of the inhuman conditions in which he was being detained, first in Rahova Prison and then in Giurgiu Prison. He described a severe lack of hygiene in both prisons, with insufficient cleaning and personal hygiene products being provided by the prison authorities. He alleged that he could not sleep at night because of bed bugs. He also complained that the food was not adapted to his diabetes.

The applicant further alleged that throughout his detention in both prisons he had not been included in any educational activities and had not been allowed to do any work. He had thus been unable to integrate, to be re-educated or to have the term of his prison sentence reduced.

In 2008 the applicant was diagnosed with type II diabetes and a sleep disorder.

In Rahova Prison the applicant was detained in cells measuring 21 sq. m, which he shared with seven other prisoners (2.62 sq. m of personal space). The cells contained eight beds, a window measuring 1.2 by 1.2 m and their own bathroom with a shower, a sink and a toilet. Cold water was always available and hot water was available twice per week. Heating was provided during the winter up to a maximum temperature of 18oC.

The Government submitted that, whenever the presence of bugs was noticed, disinfection operations took place without delay. They submitted documents showing that disinfection had been performed two or three times per year in 2005, 2007 and 2008 in the cells occupied by the applicant in Rahova Prison.

The food provided to the applicant was adequate and adapted to his diabetes by substituting pork with beef.

The applicant participated in educational and recreational activities whenever necessary. The Government further indicated that the applicant’s reduced participation in the above-mentioned activities was due to his state of health.

The Government submitted that on 17 January 2009 the applicant had been transferred to Giurgiu Prison where he was currently being held in a cell measuring 21.47 sq. m together with five other prisoners (3.57 sq. m of personal space). The cell contained six beds, three bedside tables, one bench, one table and a box for shoes. It had a window measuring 1.5 by 1.8 m and a bathroom with a shower, a sink and a toilet. During the winter, a temperature of 19oC was ensured in all the cells. Hot water was provided twice per week.

With respect to the prisoners’ personal hygiene, once per month the prison administration provided each prisoner with two bars of soap, one tube of toothpaste, one tooth brush, one tube of shaving cream, one razor, and toilet paper. Concerning the hygiene in the cell, the Government submitted that prisoners were responsible for cleaning the cells and were provided with cleaning products by the prison administration. Regular disinfection was conducted once every three months.

The applicant received a menu adapted for his diabetes, which included 125 grams of meat per day.

With respect to activities in Giurgiu Prison, the Government submitted that in December 2011 the applicant had watched a folk music concert and in December 2012 he had taken part in a discussion on religious themes conducted by the orthodox priest. Also, once in 2013 and once in 2014 the applicant had taken part in a quiz on Romanian history.

In 2007 the applicant lodged a request with the Romanian Ministry of Justice based on the provisions of the Convention between Romania and Turkey on the transfer of convicted persons, seeking to serve the rest of his sentence in a Turkish prison. According to the applicant, he wanted the transfer in order to be closer to his family, who lived in a Turkish village in humble conditions and did not have the means to travel to Romania.

The Romanian Ministry of Justice acted on the applicant’s request and initiated the transfer proceedings. As a result, on 5 June 2007 the Ankara District Court acknowledged the judgment of the Romanian court which had convicted the applicant and decided that the rest of the applicant’s sentence should be served in Turkey.

On 4 February 2008 the applicant’s transfer request was brought before the Bucharest Court of Appeal. The applicant claimed before the court that such a transfer would be in accordance with the convention signed between Romania and Turkey and would allow him to see his children and to receive visits from his family, who would provide him with adequate food and treatment for his diabetes.

In a judgment of 4 April 2008 the Bucharest Court of Appeal rejected the applicant’s transfer request, on the ground that Turkey had less severe legal provisions on conditional release, which might lead to the applicant’s release in a shorter period of time. The punitive and educational purpose of his sentence would thus fail to be achieved.

On 15 December 2011 the Bucharest Court of Appeal rejected with the same reasoning a new transfer request lodged by the applicant.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in 1948 and lives in Belgrade.

The applicant was employed by “PIM – bagerovanje i vodni transport”, a socially-owned company based in Belgrade (“the debtor”).

On 30 March 2005 the Belgrade Second Municipal Court (Drugi opštinski sud u Beogradu) ordered the debtor to pay the applicant specified sums in respect of salary arrears, social security contributions and procedural costs. This judgment became final on the same date.

On 22 June 2005 the Belgrade Fourth Municipal Court (Četvrti opštinski sud u Beogradu) issued an enforcement order with regard to the said judgement.

On 29 March 2012, acting upon the applicant’s constitutional appeal, the Constitutional Court held that the applicant had suffered a breach of the “right to a trial within a reasonable time” with regard to the enforcement proceedings. The court ordered the acceleration of the proceedings and declared that the applicant was entitled to compensation for the non-pecuniary damage suffered in the amount of EUR 700, converted into the national currency at the rate applicable at the date of settlement.

The enforcement proceedings instituted on the basis of the judgment rendered by the Belgrade Second Municipal Court on 30 March 2005 continued and are still pending.


Alvina Gyulumyan;Ján Šikuta;Josep Casadevall;Luis López Guerra

The applicant, Mr Gheorghe Nicolae, is a Romanian national, who was born in 1951 and lives in Drăganu. He was represented before the Court by Mr G. Ionescu, a lawyer practising in Piteşti.

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

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

In the early hours of 18 August 2008 at around 1 a.m. the applicant, who had just returned home from a party, started arguing with his wife and twenty-one-year-old son. Fearing that the applicant might become physically violent, his wife, I.N., called the police.

Officer C.V. from the local police, accompanied by C.A.C., the night guard at the local mayor’s office, arrived shortly afterwards at the applicant’s house and entered the yard after being invited in by I.N., who complained that the applicant, who was drunk, was swearing and throwing stones. They found the applicant outside, in his underwear, in an agitated state. C.V. tried to talk to him in order to settle the dispute. After the applicant calmed down, I.N. asked the policeman not to leave, so that she could collect some personal things in order to leave the house with her son. According to C.V., at that very moment the applicant became agitated again and tried to hit his son. When C.V. stepped between them, the applicant started swearing at him, hit him in the face and then appeared to lean over to pick something up from the ground. At that point C.V., with the help of C.A.C., pushed him to the ground and handcuffed him. The applicant’s glasses were broken in the incident.

The applicant was then taken in the police car to Drăganu police station, where he was held for thirty minutes, until his wife and son arrived. He was then told he was free to leave, and walked the two-kilometre journey back home in his underwear.

In the meantime, officer C.V. had drafted an event report describing the incident (see paragraph 4 above). The applicant’s wife and son had signed the report as witnesses, stating in their own handwriting that “the facts mentioned in the present report are true”.

In addition, C.V. had drafted an offence report, fining the applicant 1,000 lei for disturbing public order. The report stated that the applicant had shouted vulgar words and insults addressed to both his wife and the police officer, both at his house and once at the police station.

Later that morning the applicant went to see a doctor and obtained a forensic medical certificate stating that he had a 2 x 2 cm excoriation on the left knee with swelling and functional immobility, three excoriations measuring 0.2 x 0.2 cm on the right knee, and a 2 x 2 cm and two smaller ecchymoses (bruises), with swelling, on the left hand. The doctor also mentioned that the applicant had complained of pain in the lumbar area, so he had recommended him an orthopaedic examination, which he had refused. His injuries were considered to require five to six days’ medical care.

The applicant contested the offence report drafted by C.V. at the time of the incident. He alleged that there were personal reasons connected to his wife and son which had provoked his behaviour that night; C.V. had abused his authority by not taking them into consideration and by handcuffing him and taking him to the police station.

On 12 January 2009 the Piteşti District Court held that the offence report drafted by C.V. was corroborated by the event report signed by the applicant’s wife and son. It was therefore in accordance with the law and presented the facts correctly. The court also took into account the fact that when asked to sign the offence report, the applicant, who refused to do so, did not make any objections concerning the facts as presented by C.V.; however, in view of the personal circumstances referred to by him, the court decided to replace the fine with a warning.

This judgment became final as the parties did not appeal.

On 20 August 2008 the applicant lodged a complaint concerning the incident with the prosecutor’s office of the Argeş County Court. He alleged that on 18 August 2008 he had not at all been violent. He had just been upset because his wife and son were constantly taking advantage of him and spending his money. The applicant considered that the police officer had only intervened that night to help I.N. take things from the family home. He further complained that he had been pushed to the ground by the officer and night guard, in spite of the fact that he was old and suffering from diabetes. He also claimed that his glasses had been broken in the incident. Lastly, he requested that the truth be uncovered.

On 17 September 2008 statements from all the parties involved in the incident, including the applicant, were taken by the investigating authorities. I.N. declared that she had been inside the house to collect some personal things and had not seen what had happened in the moments before the applicant had been pushed to the ground and handcuffed. The applicant’s son also declared that he could not see the incident as he had been busy taking things to his car. He also stated that he had offered to take the applicant home in his car on their return from the police station that night, but he had refused. A witness statement was also taken from a night guard who had been patrolling the field across from the applicant’s house. He declared that he had heard an argument that night between the applicant and his family. When the police had arrived, he had heard the applicant swearing at the police officer and had subsequently seen him resisting getting into the police car.

On 3 March 2009 the prosecutor’s office decided not to charge C.V. At first, the prosecutor classified the applicant’s complaint as a complaint of abusive conduct against C.V. Subsequently, the prosecutor held that C.V. had been invited into the applicant’s yard by his wife, who had requested protection, and that the officer had acted in conformity with Law no. 218/2002, which allows for anyone disturbing public order to be taken to a police station, and also allows the use of force in the event of any resistance on their part. In addition, the police officer acted in accordance with the same Law also when he requested support from C.A.C, who therefore was entitled to take part in the operation.

The applicant’s complaint about this decision was rejected as ill-founded on 26 March 2009 by the deputy prosecutor of the same prosecutor’s office.

The applicant contested the prosecutors’ decisions before the Argeş County Court. The applicant maintained to the court that there was no proof that he had been violent; the police officer had therefore acted unlawfully. He also highlighted the fact that he had been taken to the police station and then left to return home in his underwear. With respect to the investigation, he complained that he had neither been heard by the prosecutor nor confronted with the two alleged perpetrators, stressing that he had also lodged complaints against C.A.C., as well as both perpetrators, about the destruction of his glasses.

On 17 December 2009 the Argeş County Court decided to send the case back to the prosecutor’s office, because the applicant’s complaint about the prosecutor’s decision of 3 March 2009 had been solved by the deputy prosecutor and not the head prosecutor, as required by law.

On 8 February 2010 the head prosecutor rejected the applicant’s complaint about the decision of 3 March 2009 as ill-founded.

The applicant complained again to the Argeş County Court about the prosecutors’ decisions. He attached statements from his wife and son declaring that they did not know what they had signed at the Drăganu police station on 18 August 2008.

On 14 June 2010 the Argeş County Court rejected the applicant’s complaint as ill-founded. The applicant’s wife and son made statements to the court that on 18 August 2008 “the applicant was drunk and had an uncontrolled outburst” but had not been aggressive towards the police officer, who had reacted in an unjustified manner. The court decided not to take these statements into consideration since the two of them had mentioned, at the time of the incident, in their own handwriting, that the facts as described in the event report were true. The court further held in reply to the applicant’s allegations concerning the investigation that the initial complaint he had lodged was not clearly formulated; the prosecutor had therefore correctly classified it as a complaint of abusive conduct against the police officer who had conducted the operation on 18 August 2008. Lastly, the court concluded that C.V. had acted in accordance with Article 31 of Law no. 218/2002 on the organisation and functioning of the police in order to restrain the applicant, who had been aggressive towards his family and the police officer.

On 21 October 2010 the Piteşti Court of Appeal rejected an appeal on points of law (recurs) brought by the applicant against this judgment as ill-founded.

The applicant was represented by a lawyer of his own choosing throughout the entire proceedings before the domestic courts.

The relevant provisions of the Romanian Criminal Code in force at the time with regard to ill-treatment and abusive behaviour are summarised in the case of Ghiurău v. Romania (no. 55421/10, §§ 43 and 44, 20 November 2012).

The relevant provisions of Law no. 218/2002 on the organisation and functioning of the police, in force at the relevant time, are as follows:

“1. In the exercise of their duties, police officers are trustees of public authority and have the following rights and obligations:

b) to accompany to the police station those who pose a danger to others, public order or other social values ...; in cases of non-compliance with [their] orders, [the police] are authorised to use force ...

k) to request if needed, the help of citizens in order to track, catch, restrain and accompany to the police station those suspected of committing crimes ...”


Violation of Article 2 - Right to life (Article 2 - Positive obligations) (Procedural aspect)

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

The applicants were born in 1971 and 1974 respectively and live in Sesvete.

On 12 December 1996 at about 8.30 p.m. one D.M., a member of the Croatian army, exploded a grenade in a pizza parlour in Zagreb, as a result of which D.M. and one other person died and the second applicant was gravely injured. The first applicant, who worked in a nearby flower shop, came to the scene and found the second applicant lying on the floor, covered in blood.

An on-site inspection of the crime scene was carried out on the same evening by the military police and it was videotaped. The report drawn up by them indicates that D.M. was dressed in civilian clothes. During the enquiry the military police took statements from witnesses and on 3 July 1997 sent a report on the incident to the Zagreb County State Attorney’s Office. The relevant part of the report reads:

“On 12 December 1996 at about 8.30 p.m. at the N. pizza parlour ... soldier D.M. was consuming alcoholic beverages at the bar in the company of D.Ma., N.F. (an employee of the judicial police) and Ž.B. when all at once [D.M.] took an M-75 hand grenade out of his pocket and pulled out the safety clip and placed the grenade into the hand of waitress T.B., ... who put it on the counter saying ‘What would I need this for?’, whereupon D.[M.], seeing that the grenade had been activated, took it in his right hand and turned sideways from the counter, after which an explosion occurred. [D.M.] was killed on the spot, while D.Ma. and N.F. ... sustained grievous bodily injuries and Ž.B. ... minor bodily injuries. ... The injured were transferred to Dubrava Hospital and D.Ma. died during transport.”

No further investigation ensued.

On 1 July 1998 the applicants brought a civil action against the State in the Zagreb Municipal Court. The second applicant sought damages in connection with the life-threatening injuries he had sustained in the incident of 12 December 1996, while the first applicant sought damages on account of the stress and fear she had suffered because of the event in question. The applicants argued that D.M. had been on duty at the time when he had exploded the grenade, that he had been dressed in his military uniform and that his mother had obtained a survivor’s pension after his death under a decision which stated that he had died on duty (specifically, “at work”).

During the proceedings it was established that the second applicant had sustained numerous injuries to his head, face, chest, belly and lower extremities and that he was suffering from permanent consequences, such as frequent headaches, pain throughout his body, impaired hearing, double vision, fatigue and incapacity for work.

Their claim was allowed on 21 June 2002. That judgment was quashed by the Zagreb County Court on 25 April 2005. The first-instance court again allowed the claim on 17 September 2010. However, on 5 April 2011 the Zagreb County Court, after an appeal lodged by the defendant, overturned the judgment and dismissed the applicants’ claim. The relevant part of that judgment reads:

“The first-instance court established the following:

- D.M. was a member of the Croatian army – a military serviceman;

- D.M. used an M-75 grenade, which served a military purpose and was registered for [use by] the members of the Croatian army;

- the decision of 12 October 1998 ... issued by the Croatian Pension Fund stated that the mother of D.M., who had been a Croatian Homeland War veteran, obtained the right to a survivor’s pension because [D.M.] had been [serving in the] military when he had caused the damage, and the reasoning of that decision stated that he had died because of an injury sustained at work;

- D.M. had not been on duty.

On the basis of the thus-established facts the first-instance court concluded that the defendant was liable because the said decision of the Croatian Pension Fund stated that the death of [D.M.], as an active military serviceman, had occurred while [he had been] carrying out his official duties ...

The first-instance court also concluded that there had been a failure on the part of the defendant [to carry out a weapons] check under section 14 of the Instruction on the Allocation, Distribution, Carrying and Use of Official Short Weapons. Had the correct check (for which the military police were responsible under section 14 of the above-mentioned Instruction) [been exercised in respect of] the carrying of weapons – namely the grenade [held by D.M.] without a proper licence or an identity document, – and the grenade been taken [from D.M.], the damage most likely would not have occurred.

However, this court considers that these facts, as established [by the first-instance court], do not serve as a sufficient basis for concluding that the requirements for the defendant to be held liable for the concrete damage have been met.

First of all, D.M.’s parents’ right to obtain a survivor’s pension on the basis of a decision of the Croatian Pension Fund is not decisive for the defendant’s liability for damage since the right to a survivor’s pension was obtained on the basis of D.M.’s status as a Croatian Homeland War veteran – that is to say an insured military person. The fact that the reasoning of that decision ... states that the ‘insured party’s death occurred because of an injury sustained at work’ is not relevant for an assessment of the defendant’s liability in these civil proceedings.

An assessment of the facts shows that D.M. was not on duty on the critical evening; that the M-75 grenade was not given to him by his military unit ([according to] a letter from the I Croatian Guard Corps of 12 November 1998); that the record of the on-site inspection carried out on the day of [D.M.’s] death does not show that D.M. was wearing a uniform; and that nothing proved that the grenade in question was the property of the defendant (that D.M. had unlawfully obtained the grenade from the defendant), regardless of the fact that such a grenade serves a military purpose and is registered for [use by] members of the Croatian army; [therefore,] this court finds that the conclusion of the first-instance court regarding ... the liability of the defendant is not correct.

Lastly, this court considers ... in respect of the failure of the defendant to carry out a check on the carrying of weapons and to seize [weapons] where there is no licence [to carry them], as the basis of the defendant’s liability, that there is no proof ... that the military police had a duty to carry out a check in the pizza parlour in question on the critical evening or that the competent authorities knew that D.M. possessed a grenade and failed to seize it from him. Therefore, this court finds that the requirements for the defendant’s liability are not met ...”

The applicants’ subsequent constitutional complaint of 7 July 2011 was dismissed on 17 June 2014. This decision was served on the applicants on 3 July 2014.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)

Aleš Pejchal;André Potocki;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicants are a married couple. They were born in 1976 and 1988 respectively. The first applicant is serving a sentence of imprisonment in Kholodnogirska penitentiary no. 18. The second applicant lives in Kharkiv.

At the time of the events the applicants lived in a two-room apartment together with Ms S., the second applicant’s mother.

Ms S. had a pending judicial dispute with a certain Mr L. regarding the inheritance of a house. The applicants, being interested in improving their living conditions, provided her with various support in those proceedings.

In April 2008 the first applicant visited Mr L. with a view to dissuading him from pursuing the mentioned dispute.

On 27 June 2008 Mr L. was found dead in his house. His throat was cut and there were multiple stabs and cuts on his body. One of the windows was broken, and there was a hoe lying nearby on the floor.

On the same day a criminal investigation was opened into the murder.

At about 10 p.m. on that same day the applicants came home where several police officers were waiting for them. The applicants were taken to the Kharkiv Frunzenskyy District Police Department (Фрунзенський районний відділ Харківського міського управління Головного управління внутрішніх справ МВС України в Харківській області). According to the applicants, this was done under the pretext that they needed to be questioned in respect of the first applicant’s debt vis-à-vis some third persons. As submitted by the Government, the police apprehended the applicants on suspicion of the murder of Mr L.

The applicants were questioned regarding their whereabouts and actions on 26 and 27 June 2008. They stated that they had been together shopping, going to the cinema, having meals and so on.

Both applicants were held in the police station during the night on 27-28 June 2008. They stated in their submissions to the Court that they had not been subjected to any ill-treatment at that stage.

On 28 June 2008 the first applicant underwent a forensic medical examination. According to its report, which was completed on 1 July 2008, the examination revealed multiple bruises and sores on virtually all the body of the first applicant. They included about thirty multidirectional sores on his back and about the same number of sores on his hips, buttocks and knees. The expert gave the following possible dates of the injuries: a bruise on the left shoulder and a sore on the torso – between 22 and 24 June 2008; bruises on the right part of the torso – between 25 and 27 June 2008; sores on the torso, the back and the legs – between 25 and 27 June 2008. Those sores were assessed as having possibly originated from the impact of some protruded blunt objects, such as glass fragments.

According to the first applicant, he sustained the injuries discovered on 28 June 2008, having accidentally fallen a day before.

The first applicant submitted the following account of the subsequent events. After the aforementioned examination, he was taken to the criminal investigation department, where one of the officers suggested that he should confess to the murder of Mr L. As the first applicant refused to do so, some officers brought in a dirty mattress and a gas mask. They put wet cloths around his wrists and handcuffed him. One of the officers punched him in the solar plexus and pushed him on the mattress. The others twisted his arms behind his back and made him split his legs while beating him to his torso and genitals. The gas mask was then put on the first applicant’s face and the vent was blocked. He fainted several times and was made regain consciousness with cold water. The gas mask was repeatedly put on his face, and he was made inhale cigarette smoke. At the same time, his genitals were being twisted. The first applicant’s ill-treatment continued as described above in several rounds. The officers threated him that they would bring his wife and do the same with her in front of him. He then signed a confession to the murder of Mr L. He had, however, to adjust it many times as dictated by the police. The first applicant was made memorise his confession.

The Government maintained that the first applicant had not been subjected to any ill-treatment.

According to the detention logbook of the police station, the first applicant was detained at 8.15 p.m. on 28 June 2008 as a criminal suspect.

On the same date, 28 June 2008, the investigator appointed a lawyer, Mr M., for the first applicant. He maintained his initial confession during his questioning in the presence of the lawyer. According to the first applicant, he did so fearing further ill-treatment and not having the possibility to talk with the lawyer in private prior to the questioning.

As regards the second applicant, in the morning on 28 June 2008 she was taken from the police station to her home, where a search was conducted. The police allegedly threatened her that if she did not testify against her husband, they would accuse her of a drug-related offence having previously planted drugs in her apartment.

Thereafter the second applicant was taken back to the police station, where she made a statement, allegedly under coercion, that her husband had admitted to her having murdered Mr L. More specifically, the second applicant submitted that three police officers had hit her several times on the head and had pulled her by the hair.

On 30 June 2008 a reconstruction of the crime was conducted in the presence of the first applicant’s lawyer, during which the first applicant confessed again to the incriminated crime. About forty minutes later he, however, retracted his confession as made under duress and complained of his ill-treatment by the police. According to the first applicant, he did so after his first confidential conversation with his lawyer, which had taken place only after the aforementioned event. His lawyer subsequently stated that he had had his first confidential meeting with the first applicant prior to the latter’s questioning on 28 June 2008 (see paragraph 65 below).

On 1 July 2008 the investigator submitted for approval to the Frunzenskyy District Prosecutor’s Office (“the Frunzenskyy Prosecutor’s Office”) an application for the first applicant’s pre-trial detention as a preventive measure pending trial. The prosecutor decided to question the first applicant himself before taking a decision. He saw that the first applicant had multiple injuries and concluded that his confession had been extracted by force. Furthermore, the prosecutor noted a number of discrepancies between the confessions of the first applicant and the autopsy report in respect of the victim. The second applicant was questioned too. She submitted that she had incriminated her husband under duress.

As a result, the prosecutor refused to approve the investigator’s application, quashed the latter’s decision on bringing the charges against the first applicant and released him. The prosecutor also directed his subordinates to question both applicants about their ill-treatment in police custody and to duly report their submissions.

While the applicants were making written statements in the office of the deputy prosecutor, at about 10.30 p.m., four officers of the Frunzenskyy District Police Department, namely, the first deputy head of the department (перший заступник начальника райвідділу) Mr K. (see also paragraphs 68 and 83 below for additional information about this police officer), the head of the criminal investigation department (начальник сектору карного розшуку) Mr Pap., his deputy (заступник начальника карного розшуку) Mr Par., and the chief of the investigation unit (начальник слідчого відділу) Mr M., broke in. Disregarding the objections of the deputy prosecutor and constraining him by force, they took the applicants out. There were more police officers waiting in the corridor.

The applicants were handcuffed and taken to the Frunzenskyy Police Department, located near the prosecutor’s office. On the way, one of the officers allegedly hit the first applicant in the right hip.

The first applicant was taken to an office on the ground floor where he was made sit quiet with one of the police officers. The office was locked from inside, and the light was switched off. About an hour later, he was taken to another office where the bars on the window could be removed. He was made write a note that he had left the police station at 10.30 p.m. The first applicant was then taken outside through the window behind the building of the police station. The police officers placed him a car, parked that car in a nearby yard and waited there till 3 or 4 a.m. It is not known what happened thereafter. It appears that the first applicant remained detained (see, in particular, paragraph 31 below).

After the police had taken the applicants from the prosecutor’s office, at 11.15 p.m. the deputy prosecutor visited the Frunzenskyy Police Department. According to the visitors’ logbook, the applicants had entered the building at 10.30 p.m. and had been remaining there. Having searched the premises, the prosecution officials found the second applicant in tears in one of the offices. The first applicant could not be found. Police officer K. submitted to the prosecutor a note on behalf of the first applicant, but without his signature, that he had left the police department at 10.30 p.m. The prosecution officers went to the applicants’ home, but the first applicant was not there.

On 30 June 2008 the first applicant complained to the prosecution authorities that he had been ill-treated by the police (see also paragraph 22 above). It appears that the second applicant raised a similar complaint too.

On 2 July 2008 the Frunzenskyy Prosecutor’s Office opened a criminal case against the police officers K., Pap. and Par. under Article 365 § 2 of the Criminal Code (exceeding power by engaging in the violent or degrading treatment of a victim) in respect of the events of the evening of 1 July and the night from 1 to 2 July 2008.

On the same date the applicants were assigned victim status and questioned. Also on that day the first applicant underwent a forensic medical examination, after which he was released.

On 4 July 2008 a report of the first applicant’s examination was delivered. It documented multiple bruises on his shoulders, torso, back, chest, arms, hips, thighs and legs. Their colouring varied from yellowish to violet and purple. The first applicant also had crust-covered sores and bruises on both wrists. The expert concluded that most of the injuries had originated from the impact of blunt objects between 23 and 27 June 2008. One bruise on the first applicant’s back below the left shoulder blade was assessed as sustained between 30 June and 1 July 2008. Lastly, according to the report, some sores on the right forearm, the left elbow and the right ankle had been inflicted on the first applicant on 1 July 2008.

On 2 July 2008 the second applicant underwent a medical examination too, which did not reveal any injuries. According to the second applicant, she complained to the expert that she had headaches and was advised to apply for help to a hospital.

On 5 July 2008 she was examined by a neurosurgeon in the local hospital who reported that she had bruises of the head soft tissues.

On 8 and 9 July 2008 the applicants were questioned in respect of their alleged ill-treatment by the police. They recognised the officers K., Pap. and Par. at the photos shown to them.

On 11 and 14 July 2008 a reconstruction of the events of 28 June and 1-2 July 2008 was conducted with the applicants’ participation.

On an unspecified date the Frunzenskyy Prosecutor’s Office directed the management of the police department to establish the whereabouts of the officers K., Pap. and Par., who had not complied with the prosecutor’s summonses.

On 18 July 2008 the Chief of the Frunzenskyy Police Department wrote to the prosecutor that all those three officers were on sick leave and that their whereabouts were being established.

On 21 August 2008 the police officers K., Pap. and Par. were questioned in respect of the alleged ill-treatment of the applicants. K. and Pap. refused making any statements. It is not known what Par. stated.

On 2 September 2008 the Kharkiv Regional Prosecutor’s Office discontinued the criminal investigation in respect of the aforementioned police officers, having concluded that the wrongdoings imputed to them were to be qualified as interference with the activity of a law-enforcement official (the Frunzenskyy Prosecutor) rather than exceeding power by engaging in the violent or degrading treatment of a victim. Accordingly, a different criminal case was opened, with a new charge.

On an unspecified date in October 2008 K., Pap. and Par. were questioned again. They denied any ill-treatment of the applicants. As to their behaviour on 1 July 2008, they submitted that they had believed that the applicants had posed a danger to the deputy prosecutor.

On 21 October 2008 the prosecutor, who had been involved in the events of 1 July 2008, gave detailed statements regarding those events, when questioned as a witness in the framework of the criminal investigation against the police officers.

Between 19 and 23 December 2008 the first applicant underwent a forensic medical examination with a view to establishing the origin of his injuries documented earlier.

On 23 December 2008 the examination report was completed. It reiterated the findings of the first applicant’s examinations of 28 June and 2 July 2008 (see paragraphs 14, 31 and 32 above). Furthermore, it noted that the sores on the first applicant’s wrists could have been caused by his handcuffing. The report stated that the findings of the earlier examinations did not contradict the other materials in the case file.

On 30 December 2008 the Kharkiv Regional Prosecutor’s Office terminated the criminal investigation into the applicants’ allegations of ill-treatment, for the lack of corpus delicti in the actions of the police officers. The prosecutor noted a contradiction in the first applicant’s submissions, according to which his only injury as of 28 June 2008 had been a bruise on his right hip from an accidental falling the day earlier, and the forensic medical examination report of 28 June 2008, which had established many others injuries. The expert who had examined the first applicant on 2 July and 23 December 2008, had stated during his questioning by the prosecutor that the injuries sustained by the first applicant after 28 June 2008, were located in the body parts accessible for self-infliction, apart from the bruise below the left shoulder blade. It appeared impossible to establish the origin of that bruise. The expert had also noted that no injuries on the first applicant’s genitals had been revealed. Overall, the prosecutor concluded that those few injuries which were dated later than 28 June 2008 “could have been sustained [by the first applicant] in circumstances unrelated to any use of force by the police against him”. It was also noted in the ruling that the first applicant had never raised any complaints before the medical personnel of the detention facility. Lastly, as regards the allegations of the second applicant that she had been ill-treated by the police, the prosecutor noted that her medical examination of 2 July 2008 had not revealed any injuries. In sum, the ill-treatment allegations of both applicants were found to be without basis.

On 9 October 2009 the Kharkiv Chervonozavodskyy District Court (“the Chervonozavodskyy Court”) quashed the above decision and directed the prosecution authorities to carry out an additional investigation. It noted, in particular, that the contradictions between the first applicant’s submissions that he had had no injuries as of 28 June 2008 and the forensic medical examination report of that date, according to which he had had numerous injuries, had to be clarified.

On 27 May 2010 a reconstruction of the events of 28 June and 12 July 2008 was conducted with the participation of the first applicant. He maintained the allegations of his ill-treatment by the police.

On 27 and 28 May 2010 a forensic medical expert examined the available documents in respect of the first applicant with a view to clarifying the origin of his injuries. The case file does not contain a copy of the respective report. It appears that, according to the expert’s conclusions, only some of the first applicant’s injuries could have originated in the circumstances as described by him.

On 31 May 2010 the Kharkiv Regional Prosecutor’s Office once again terminated the investigation initiated on 2 July 2008 for the lack of corpus delicti in the actions of the police officers concerned. The prosecutor noted that, even though the first applicant had sustained some injuries while in detention, the exact time and circumstances of their infliction remained unknown. Furthermore, the location of some of the injuries allowed to presume that they could have been self-inflicted. The prosecutor also noted that the first applicant had not “personalised” his injuries: in other words, that he had not specified who exactly of the police officers had inflicted each specific injury on him. The investigator had also questioned the forensic expert who had conducted the examination of the first applicant on 28 June 2008 who had confirmed her findings.

On the same date, 31 May 2010, the Regional Prosecutor’s Office delivered two additional rulings refusing to open a criminal case following the complaints of ill-treatment by each of the applicants.

On 29 November 2010 the Kharkiv Regional Court of Appeal, acting as a court of first instance in the first applicant’s trial, ordered the Kharkiv Regional Prosecutor’s Office to investigate the first applicant’s allegation of ill-treatment by the police. It noted that, according to the first applicant, the presence of his fingerprint on the hoe seized at the crime scene was explained by the fact that the police officers had put that hoe in his hands by force during his ill-treatment.

On 28 December 2010, 25 April and 5 May 2011 the Frunzenskyy Prosecutor’s Office, to which the investigation was re-assigned, refused to open a criminal case against the police, having mainly relied on the respective rulings of 31 May 2010 (see paragraphs 49 and 50 above). All those decisions were, however, quashed as premature.

On 18 May 2012 the Frunzenskyy Prosecutor’s Office again refused to open a criminal case against the police officers allegedly involved in the applicants’ ill-treatment.

On 11 June 2012 the Kharkiv Regional Prosecutor’s Office ordered a forensic medical examination of the first applicant by an expert panel with a view to clarifying his injuries and the possible circumstances of their infliction. The investigator noted that similar examinations, which had been carried out earlier, were inconsistent in their conclusions.

On 12 July 2012 a panel of experts issued a forensic medical examination report, in which they stated, in particular, that the first applicant might have sustained all the injuries (with the exception of two bruises and one sore) at the time and under the circumstances as indicated by him during the reconstruction of the events conducted on 27 May 2010 (see paragraph 47 above).

On 6 August 2012 the Kharkiv Regional Prosecutor’s Office, which was apparently investigating the matter in parallel, refused to open a criminal case against the police officers too. On the same day it terminated, on similar grounds as earlier, the criminal investigation initiated on 2 July 2008. On 5 September 2012 the Chervonozavodskyy Court quashed both aforementioned rulings as based on an incomplete and one-sided investigation.

On 8 October 2012 the Kharkiv Regional Court of Appeal upheld that decision.

On 22 October 2012 the Kharkiv Regional Prosecutor’s Office refused to open a criminal case against the police officers in respect of the second applicant’s allegations of ill-treatment. On the same date it discontinued the criminal investigation against the police officers in respect of the first applicant’s allegations of ill-treatment, which had been launched on 2 July 2008 (see paragraph 30 above).

The first applicant unsuccessfully challenged the aforementioned decision before the domestic courts.

On 11 November 2008 the first applicant was committed for trial.

On 18 May 2009 the Kharkiv Regional Court of Appeal (“the Kharkiv Court”), sitting as a court of first instance, remitted the case for additional investigation. It noted, in particular, that the first applicant’s initial confession could not be relied on because he had later retracted it as obtained under duress and given that his ill-treatment complaint had not been duly investigated. The court also indicated a number of contradictions between the first applicant’s confessions and the case-file materials.

On an unspecified date the additional investigation was completed and the case was referred to the trial court again.

On 26 January 2011 the Kharkiv Court found the first applicant guilty of murder for profit and sentenced him to fourteen years’ imprisonment with confiscation of all his personal property. It relied, in particular, on the first applicant’s initial confessions, which he had later retracted. Furthermore, the court referred to certain material evidence inculpating the first applicant (such as the hoe with his fingerprint found at the scene of the crime, and his shorts with a blood stain possibly originating from the victim). His allegations that he had been ill-treated and that the evidence against him had been fabricated were dismissed as unsubstantiated.

On 20 September 2011 the Higher Specialised Civil and Criminal Court quashed the above judgment mainly on the ground that Article 3 of the Convention and the Court’s case-law required a proper investigation of the first applicant’s allegations of ill-treatment, which had not been done. The Higher Court also remitted the case to the first-instance court for fresh examination.

On 4 July 2012 the Kharkiv Court once again found the first applicant guilty of murder for profit and sentenced him to fourteen years’ imprisonment with confiscation of all his personal property. The court relied, inter alia, on his confessions made on 28 June 2008 and further reiterated on 30 June 2008 in the presence of his lawyer (see paragraphs 19 and 22 above). It was noted in the judgment that the first applicant’s lawyer, who had represented him on the aforementioned dates, had been questioned and had stated that he had had a confidential conversation with the first applicant prior to the first questioning and that there had been no violations of the criminal procedure.

As regards the first applicant’s allegation that he had been ill-treated on 28 June 2008, the court noted that the prosecution authorities had thoroughly investigated the matter and had decided not to institute criminal proceedings against the police officers concerned. The Kharkiv Court referred in this connection to the prosecutor’s decision of 18 May 2012 (see paragraph 53 above). At the same time, having regard to the ill-treatment allegation on the part of the second applicant, which was still under investigation, the Kharkiv Court decided not to rely on her statements incriminating the first applicant, which she had made during the pre-trial investigation.

In so far as the first applicant complained of his kidnapping by the police from the prosecutor’s office on 1 July 2008, the trial court noted that the investigation was ongoing and that it was not necessary to wait for its outcome for the pronouncement of the judgment.

The first applicant challenged the judgment on points of law. He submitted, in particular, that that there was no solid evidence proving his guilt and that the trial court had wrongly relied on his self-incriminating statements obtained under duress, without any adequate investigation of his ill-treatment complaint. He referred in this connection to the Court’s judgment in the case of Savin v. Ukraine (no. 34725/08, 16 February 2012), which concerned that applicant’s torture by K., the same police officer who was involved in the alleged ill-treatment of the applicants in the present case.

On 22 January 2013 the Higher Specialised Civil and Criminal Court upheld the judgment of the first-instance court and its reasoning.


Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect)

The applicant was born in 1958 and lives in St Petersburg. She is the mother of the late Mr Denis Aleksandrovich Vyrzhikovskiy.

On 1 October 2010 police officers apprehended the applicant’s son and his friend, Ms Z. and took them to the Moskovskiy District Department of the Interior of St Petersburg (УВД по Московскому району г. СанктПетербурга). No record of their arrest was drawn up.

For approximately six hours the applicant’s son was ill-treated by police officers He was repeatedly punched in the stomach and hit to the head, right palm and both calves. He was also subjected to the so-called “swallow” method of torture (“ласточка”), with his head, hands and legs being pulled together towards the spine.

Two police officers then took the applicant’s son and Ms Z. to another police station. Ms Z. later testified to having seen a bruise on Mr Vyrzhikovskiy’s forehead and to his having been in pain and having had difficulties getting into a police car.

Early in the morning on 2 October 2010 Mr Vyrzhikovskiy was taken from the station to a hospital. He died there eight days later. An autopsy report stated that the cause of death was “a severe fat pulmonary embolism aggravated by bronchopneumonia with cerebral edema resulted from a comminuted humeral head fracture with a tear of joint capsules and massive bruises, suffusion and strain of soft tissue and the subcutaneous fat layer.” A pathologist also found the following ante mortem injuries on Mr Vyrzhikovskiy’s body, all directly linked to his death: massive bruises covering hands, chest, upper back, neck, armpits and most of his face and ears; bruises on the left hip, right palm, right part of the stomach, right thigh, left knee, both calves; abrasions and bruises on the buttocks. All injuries had been inflicted by hard blunt objects.

On 12 October 2010 criminal investigation was initiated. The applicant was granted victim status in the proceedings. Several police officers were charged with manslaughter and abuse of powers entailing a substantial violation of individual rights, committed using violence.

On 26 March 2014 the Moskovskiy District Court of St Petersburg found the officers guilty as charged and sentenced them to various terms of imprisonment. On 1 October 2014 the St Petersburg City Court partially quashed the judgment and acquitted officers of manslaughter for lack of evidence. While having found it established that the injuries had been inflicted on the applicant’s son intentionally in the police custody, the City Court remitted the case for an additional investigation in order to identify those responsible for his death.

On 2 March 2015 the investigation was suspended because the timelimit for the investigation had expired and it was impossible to identify the perpetrators and to carry out any investigative measures in the absence of an accused. On 12 November 2015 the Oktyabrskiy District Court of St Petersburg upheld that decision as lawful. The decision became final on 27 January 2016.


Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life;Respect for private life);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

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

The applicants are Russian nationals who were born in 1952 and 1954 respectively, and live in the town of Belomorsk in the Republic of Karelia.

On 1 December 2005 the applicants’ son, Mr M. Lozovoy, was killed in St Petersburg. Criminal proceedings were instituted against a Mr O. on a murder charge.

On 18 January 2006 Ms L., an investigator of the Primorskiy district prosecutor’s office in St Petersburg, asked the head of the Primorskiy district police to identify relatives of the deceased, Mr M. Lozovoy; to establish their place of residence and to summon them to the prosecutor’s office for the purpose of granting them victim status in the criminal case.

A week later the applicants’ son was buried under his full name in St Petersburg. A record in a cemetery registration log indicated that the body had been unclaimed.

On 30 January 2006 the investigator, having concluded that it was impossible to identify relatives of the deceased, assigned the status of victim in the criminal case to a representative of the municipal authorities. The following day police officials informed the investigator that operative measures undertaken by them to identify Mr M. Lozovoy’s relatives had not produced any result.

On 2 February 2006 the applicants contacted Ms L. and informed her of their intention to come to St Petersburg to take part in the criminal proceedings.

Despite the applicants’ notice, five days later Ms L. sent the criminal case file to the Primorskiy District Court for trial.

Sometime later the applicants were invited to take part in the criminal proceedings in the capacity of victims.

On 14 February 2006 the applicants were allowed to exhume their son’s remains. Two days later they buried him in Belomorsk.

On 6 June 2006 the Primorskiy District Court found Mr O. guilty of having murdered the applicants’ son and sentenced him to six years’ imprisonment.

On the same day, responding to the applicants’ complaints about the authorities’ failure to notify them of their son’s death, the District Court issued an interim decision (частное постановление) in respect of the investigator, Ms L. The decision, addressed to the Primorskiy district prosecutor, in so far as relevant, read as follows:

“Moreover, the [finding] that the investigator, Ms L., did not take sufficient steps to find relatives of the deceased and that measures undertaken [by her] were formalistic in character is not only confirmed by the fact that the decision assigning victim status to [a representative of the municipal authority], had been taken before the information was received from the police officials, but also by the fact that criminal-case-file material contained sufficient information about [the applicants’ son], on the basis of which it was possible to establish the place of residence of his relatives ([there was] an explanation from Mr O. made on 1 December 2005, in which he had given the information about the place of residence of [the applicants’ son]; a statement made by Mr O. on 8 December 2005 in which he said that a criminal case against [the applicants’ son] was pending before a court; statements by a witness, Ms A., who asserted that [the deceased’s] mother had occasionally made telephone calls to [the deceased’s] flat; a certificate on [the deceased’s] criminal record from which it is apparent that the Primorskiy district prosecutor’s office of St. Petersburg applied a measure of restraint in the form of a written undertaking in respect of [the applicants’ son] in criminal case no. 137755; the material in the abovementioned criminal case file contain a copy of [the applicants’ son’s] passport; and so forth).

It follows that the victims’ rights envisaged by the law in force were substantially violated in the course of the preliminary investigation.

Relying on Article 29 § 4 of the Russian Code of Criminal Procedure, [the court] rules:

that the violations of criminal-procedural law committed during the preliminary investigation in the criminal case should be brought to the attention of the Primorskiy district prosecutor in St Petersburg;

that the Primorskiy District Court of St Petersburg should be informed of the measures taken no later than a month after the receipt of the present decision.”

In 2007 the applicants lodged an action against the Prosecutor General’s Office and the Ministry of Finance, seeking compensation for pecuniary and non-pecuniary damage. Relying on the Primorskiy District Court’s interim decision of 6 June 2006, the applicants argued that as a result of the investigator’s failure to promptly notify them of their son’s death, they had sustained pecuniary damage, having been forced to pay for the exhumation and transport of their son’s remains from St. Petersburg to Belomorsk. In addition, they had suffered non-pecuniary damage as they had been unaware of their son’s whereabouts for a long time and had been forced to initiate a search for him; they had been unable to properly say “goodbye” to their son and to provide him with a decent burial; they had been forced to go through a two-week bureaucratic procedure to obtain permission to exhume their son’s remains; and subsequently, after the exhumation, they had been forced to identify his disfigured remains.

On 5 February 2008 the Tverskoy District Court of Moscow dismissed the claim, having found that the investigator had not committed any unlawful actions and there had been no final decision by any domestic court to establish otherwise.

On 20 May 2008 the Moscow City Court upheld the judgment endorsing the District Court’s reasoning.