NATIONALDEMOKRATISCHE PARTEI DEUTSCHLANDS (NPD) v. GERMANY

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Síofra O’Leary;Yonko Grozev

The applicant, the National Democratic Party of Germany (Nationaldemokratische Partei Deutschlands, NPD), is a German political party. It was represented before the Court by Mr P. Richter, a lawyer practising in Saarbrücken.

The applicant was founded on 28 November 1964. It regularly participates in elections to the European Parliament, the Federal Parliament (Bundestag), parliaments of the Länder and municipal elections. At the time the present application was lodged, the applicant was represented in the parliaments of the Land of Mecklenburg-West Pomerania and the Land of Saxony, as well as numerous city councils and county councils.

In 2001, the Federal Parliament, the Federal Council (Bundesrat) and the Federal Government (Bundesregierung) lodged an application for the ban of the applicant (Verbotsantrag) with the Federal Constitutional Court (nos. 2 BvB 1/01, 2 BvB 2/01, 2 BvB 3/01) pursuant to Article 21 § 2 of the Basic Law (see relevant domestic law and practice, paragraph 15). The plaintiffs alleged that the applicant was unconstitutional and sought to damage the free democratic basic order (freiheitlich-demokratische Grundordnung). They claimed that the applicant propagated views that were National Socialist, anti-Semitic, racist and anti-democratic and sought to abolish what it called the “system” imposed by the Allied powers at the end of the Second World War. They further stated that the applicant worked towards restoring the “community of the people” (Volksgemeinschaft) and towards replacing the multi-party parliamentary democracy by a “rule of the people” (Volksherrschaft) of the “national elites” (nationale Eliten). Finally, they alleged that the members and supporters of the applicant did not hesitate to use violence and threatened their opponents with “reckoning” (Abrechnung) upon taking power.

On 18 March 2003 the Federal Constitutional Court decided to discontinue the proceedings because the statements cited in support of the unconstitutionality of the party could not be clearly distinguished from those of undercover agents of the intelligence services. It found that the principle of separation between party and State (Staatsfreiheit), which was an essential requirement for proceedings aimed at banning the applicant, was not respected due to the influence of those agents, who were even present in the party’s leadership, on the applicant’s decision-making process.

On 8 November 2012 the applicant lodged an application against the Federal Parliament, the Federal Council and the Federal Government with the Federal Constitutional Court (no. 2 BvE 11/12), seeking a declaration that it was not unconstitutional within the meaning of Article 21 § 2 of the Basic Law. In the alternative (hilfsweise), it requested to find that the defendants violated its rights under Article 21 § 1 first sentence of the Basic Law by constantly stating that the applicant was unconstitutional, thereby causing the effects of de facto ban, without initiating party ban proceedings. In the further alternative (höchst hilfsweise) it requested to find that its rights were violated because there was no remedy allowing political parties to ascertain their constitutionality before the Federal Constitutional Court.

In support of its application, the applicant cited leading politicians –Prime Ministers and Ministers of the Interior of different Länder and members of the Federal Parliament – who had stated that the NPD was unconstitutional. The applicant alleged that its members who were working in the public sector had been subject to disciplinary measures or even been excluded from public service because of their affiliation with the party. It submitted that its candidates were not allowed to stand at municipal elections in the Land of Mecklenburg-West Pomerania and in the Land of Thuringia. The applicant submitted that it had made 328 unsuccessful requests to open accounts at public and private banks and that it had to pursue legal action against public banks in 35 cases. It further submitted that it was required to engage in proceedings before the administrative courts almost every time it intended to rent communal space for its events, because the towns had refused to let it use their premises due to a fear of acts by “the extreme left”. The applicant added that it did no longer find companies willing to provide liability insurance for its events, which was a prerequisite for renting communal space. It complained that its authorised demonstrations were regularly disturbed by opponents and that the police did not sufficiently protect these demonstrations. It pointed out that its members were regularly victims of criminal offences committed by “the extreme left”. The applicant moreover complained that public funds allocated to projects against “the extreme right” referred to it as a party of the extreme right and concluded that these funds were used to combat it. Finally, it claimed that the media did not sufficiently give it the floor.

The applicant maintained that the remedies available before domestic courts were not sufficient to protect its interests, given the extent of discrimination and restrictive measures it was confronted with on the one hand and its limited resources on the other hand. It considered that the constant “stigmatisation” and perpetual debate about its potential ban amounted to a “de facto ban”. It submitted that the defendants were, by stigmatising the applicant and by calling on the public to “combat against the far right” (Kampf gegen Rechts), also at the origin of and hence responsible for the discriminatory acts and criminal offences which private actors committed against the applicant and its members.

On 20 February 2013 the Federal Constitutional Court dismissed the application. The decision was served on the applicant on 6 March 2013.

The Federal Constitutional Court held that the application for a declaration that the applicant was not unconstitutional was inadmissible. It stated that Section 43 § 1 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz, see relevant domestic law and practice, paragraph 16) provided that only the Federal Parliament, the Federal Council and the Federal Government could apply for decision on whether a political party was unconstitutional. Domestic law did not provide that a political party could have recourse to the Federal Constitutional Court to have its constitutionality ascertained. It observed that this did not amount to a gap in legal protection, since the applicant and its members could pursue legal action before administrative, civil and criminal courts whenever its or their rights were infringed.

In response to the applicant’s argument that it did not have the resources to pursue legal action in each and every case, the Federal Constitutional Court stated that this posed a practical challenge that could be overcome with reasonable efforts. It emphasised that a political party which participated in forming public opinion had to accept being criticised as “hostile to the constitution” (verfassungsfeindlich) within the limits of freedom of expression. Where public authorities engaged in political debate, they had to respect the limits set by the Basic Law, which were subject to judicial review. The Federal Constitutional Court considered that a discussion whether or not to initiate party ban proceedings was lawful as long as it contributed to the decision-making process and was not aimed at discriminating against the party concerned. It noted that there were remedies which allowed the applicant to challenge the allegation that it was unconstitutional, such as remedies against the surveillance by intelligence services. It observed that the same held true for the applicant’s members with regard to their employment in public service and added that a lack of success in the respective court proceedings did not mean that there was a gap in legal protection.

The Federal Constitutional Court further found that the application, lodged in the alternative, to find that the defendants violated the applicant’s rights under Article 21 § 1 first sentence of the Basic Law by constantly stating that the applicant was unconstitutional, thereby causing the effects of de facto ban, without initiating party ban proceedings, was also inadmissible. It found that, even though this application could in principle be the subject of a “dispute between constitutional organs” (Organstreitverfahren, see relevant domestic law and practice, paragraphs 15, 17 and 18), it was not sufficiently substantiated. It noted that the statements and measures cited by the applicant were not made on behalf of the Federal Parliament, the Federal Council or the Federal Government, but rather by some of their members only. Therefore, they could not be attributed to these organs. Nor did the applicant substantiate that they infringed, or were about to infringe, its status as a political party.

Finally, the Federal Constitutional Court observed that the application, lodged in the further alternative, to find that the applicant’s rights were violated because there was no remedy allowing political parties to ascertain their constitutionality before the Federal Constitutional Court was manifestly ill-founded. It argued that there was no gap in legal protection for the reasons set out in relation to the main application (see paragraphs 10 and 11), which precluded a violation of the applicant’s rights.

On 3 December 2013 the Federal Council lodged a new application for the ban of the applicant pursuant to Article 21 § 2 of the Basic Law with the Federal Constitutional Court (no. 2 BvB 1/13). The proceedings are pending.

The relevant provisions of the Basic Law are worded as follows:

“(1) Political parties shall participate in the formation of the political will of the people. They may be freely established. Their internal organisation must conform to democratic principles. They must publicly account for their assets and for the sources and use of their funds.

(2) Parties which, through their aims or the conduct of their members, seek to damage or to overthrow the free democratic constitutional system or to endanger the existence of the Federal Republic of Germany shall be held to be unconstitutional. The Federal Constitutional Court shall determine the question of unconstitutionality. (...)”

“(1) The Federal Constitutional Court shall rule:

on the interpretation of this Basic Law in the event of disputes concerning the extent of the rights and duties of a supreme federal body or of other parties vested with rights of their own by this Basic Law or by the rules of procedure of a supreme federal body; (...)”

The relevant regulations governing the declaration of unconstitutionality of a political party are contained in the Federal Constitutional Courts Act and are worded as follows:

“(1) The Bundestag, the Bundesrat, or the Federal Government may apply for a decision on whether a political party is unconstitutional (Article 21 § 2 of the Basic Law).

(2) The government of a Land may make an application only against such political parties whose organisational extent is limited to that Land’s territory.”

“(1) If the application proves to be well-founded, the Federal Constitutional Court shall declare that the political party is unconstitutional.

(2) The declaration may be limited to a legally or organisationally independent section of a political party.

(3) The declaration shall be accompanied by the dissolution of the political party or of its independent section, as well as by the prohibition of establishing substitute organisations. In this case, the Federal Constitutional Court may also declare that the property of the political party or its independent section be confiscated in favour of the Federation or the Land to be used for public benefit.”

In relation to “disputes between constitutional organs”, the relevant provisions are worded as follows:

“The Federal Constitutional Court shall decide (...)

on the interpretation of the Basic Law in the event of disputes concerning the extent of the rights and obligations of one of the highest federal organs or of other parties who have been vested with own rights by the Basic Law or by the rules of procedure of one of the highest federal organs (Art. 93 § 1 no. 1 of the Basic Law) (...).”

“Applicants and respondents may only be: the Federal President, the Bundestag, the Bundesrat, the Federal Government, and such parts of these organs that are vested with own rights pursuant to the Basic Law or the rules of procedure of the Bundestag and Bundesrat.”

“(1) The application shall only be admissible if the applicant asserts that an act or omission of the respondent violated or directly threatened the rights and obligations awarded to the applicant or to the applicant’s organ by the Basic Law.

(2) The application shall state the provision of the Basic Law which was violated by the respondent’s contested act or omission.

(3) The application must be filed within six months after the applicant gained knowledge of the contested act or omission.”

It is established case-law of the Federal Constitutional Court that political parties are organs vested with own rights pursuant to the Basic Law in the meaning of Article 93 § 1 no. 1 of the Basic Law and can assert their rights by way of a dispute between constitutional organs (decision of 20 July 1954, no. 1 PBvU 1/54, which has been consistently confirmed since, see, among many others, judgment of 29 September 1990, nos. 2 BvE1, 3, 4/90, 2 BvR 1247/90).


Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicant, A, is a Norwegian national who was born in 1990. He is represented before the Court by Mr H. Birkeland, a lawyer practising in Bergen. The Chamber decided of its own motion to grant the applicant anonymity pursuant to Rule 47 § 4 of the Rules of Court.

On 6 June 2012 an indictment was lodged against the applicant for having engaged in sexual activity – intercourse – with a child who was under 14 years of age. The indictment stated that the applicant, on an occasion during June-July 2011, had inserted his penis into the vagina of X, born in 1998.

The charges were heard by the District Court (tingrett) on 4 and 5 December 2012. The applicant argued that he and X had not had intercourse. On 12 December 2012 the District Court convicted the applicant, sentenced him to three years’ imprisonment and ordered him to pay X a sum of 80,000 Norwegian kroner (NOK) (approximately 8,200 euros (EUR)) as civil redress.

The applicant appealed against the assessment of evidence relating to the question of guilt (“bevisvurderingen under skyldspørsmålet”) and the award of redress to X.

On 22 February 2013 the High Court (lagmannsrett) granted leave to appeal, and appeal hearings were held from 13 to 16 January 2014. By judgment of 17 January 2014, the jury acquitted the applicant. The civil claim submitted by X was to be decided by three professional judges, of whom a majority of two found that the conditions for civil liability had been met, and again awarded NOK 80,000.

On the issue of the civil claim for redress – which was dealt with in a separate part of the judgment, under the heading “the High Court’s professional judges’ assessments of the civil compensation claim from [X]” (“Lagmannsrettens fagdommeres vurderinger av det sivilrettslige erstatningskravet fra [X]”) – the High Court judges unanimously stated as their starting point that the applicant had been completely cleared of the criminal accusations (“fullstendig renvasket”) and acquitted of the charges with no reservations (“reservasjonsløst frifunnet for tiltalen“). He was unconditionally innocent under criminal law (“ubetinget strafferettslig uskyldig”). This was an acknowledgment of the factual situation and the judges had neither the right nor the wish to change this (“som fagdommerne hverken er berettiget til å rokke ved eller har noe ønske om å endre”).

By way of introduction the majority in the High Court noted that the criminal proceedings against the applicant was by then history (“et tilbakelagt stadium”) and that it would only consider the civil claim of X. It followed clearly from case-law of the European Court of Human Rights and the Supreme Court that a civil compensation claim could be adjudicated subsequent to a criminal case having ended with acquittal. The majority went on to examine X’s claim for financial redress, recalling that the civil rules on evidence applicable to the case required a clear or qualified preponderance of likelihood (“klar eller kvalifisert sannsynlighetsovervekt”). Upon thereafter reciting the legal basis for X’s redress claim, section 3-5 of the Compensation Act (see paragraph 22 below), it noted that the only relevant open question (“det eneste relevante åpne spørsmålet”) in the case before it was whether intercourse had taken place between the parties. If that was the case, there were no questions concerning the applicant’s intention, the half-hearted consent of X or whether the applicant had been mistaken as to X’s age.

Considering the evidence as a whole, the majority found clear preponderance of likelihood that the applicant had on one occasion had intercourse with X. Its starting point was X’s statement that had been taken by a judge (dommeravhør). X had told a friend of her own age about having had intercourse with the applicant some two-three months earlier. Her friend had told his mother, who had in turn notified the child welfare authorities. Misconceptions had at this point developed – it had been perceived that X had been raped two times by an adult – and X was ultimately contacted and asked what had happened. X had then explained that she and the applicant once had had intercourse; it had been voluntary, although she had been uncertain. X had emphasised that the applicant was kind and it was known to her family that she was in love with him. The two had also attempted to have intercourse on one other occasion, but had not carried this out.

From X’s extensive statement it followed that the intercourse had taken place late night or early morning in a cabin. Besides the applicant, X’s nephew and a girlfriend of his had also been present. X had had a few glasses of cider. The nephew and his friend had gone into one bedroom; X and the applicant into another, where they had had intercourse. X had consistently upheld her statement, whereas the applicant had consistently denied it.

The High Court’s majority found that decisive importance had to be attached to X’s statement. It had been consistent and, if anything, X had sought to downplay (“underrapportere”) the extent of what had happened and had pointed to the applicant’s positive sides when confronted with the notification that had been given to the child welfare authorities. As to that notification (see paragraph 9 above), there could be a number of reasons why it had misrepresented X’s story; X had herself been a child, who had confided in her friend – another child – who had in turn spoken to his mother. There was no evidence to indicate that X had told what the child welfare authorities had perceived. Even if it were the case that X had used the word “rape” when speaking of what had happened, this could not be decisive; also the legislator had used that term to describe intercourse with a minor.

X had grown up under demanding circumstances; her parents had left each other, her mother was alcoholic and had numerous times been admitted to psychiatric treatment. The child welfare authorities had periodically placed X in care with her siblings. She had nonetheless done well, both socially and at school. Prior to the intercourse, she had to some degree harmed herself and this situation had since deteriorated considerably; she had started to cut her skin not only on her arms but also on her thighs to give vent to pain and sorrow. She had more or less gone into hiding at the attic, skipped school and also become a victim of considerable bullying.

Also the applicant had had a difficult childhood. He had lived in a home characterised by intoxication and violence until, at the age of 13, after having been injured by a stepfather, he had packed a bag with clothes and departed for his grandmother, where he had remained.

The High Court’s majority went on to state that there was “nothing to indicate” that X had been testifying incorrectly about the intercourse, “apart from” the fact that the applicant had denied having intercourse (“[f]lertallet finner at det ikke er noe som tilsier at [X] har forklart seg uriktig om samleiet, bortsett fra at [the applicant] benekter samleie”). X’s nephew had stated that he could not understand that his friend (the applicant) could do such a thing towards his aunt – a serious infringement of the friendship between himself and the applicant – but that he also could not rule it out.

It was uncertain how long the two couples had been in the respective bedrooms during the night at the cabin, and when X had left. The majority of the High Court did not find that any importance could be attached to the nephew and his friend not having heard anything that indicated that an intercourse took place in the neighbouring room, although one could apparently “hear every sound” between the two rooms (“det skal ha vært svært lytt mellom værelsene”).

Based on an overall assessment and attaching particular importance to X’s statement and her subsequent self-harm and isolating behaviour, the majority concluded that there was a qualified preponderance of likelihood for intercourse having taken place. There was accordingly a legal basis for awarding X a “purely civil-law compensation” (“en rent sivilrettslig erstatning”).

The minority in the High Court noted in essence that the case only gave rise to the question of what had happened (“actus reus”), not the mental element (“mens rea”) of the accusations against the applicant. In the minority’s view, the majority, by finding that there had been a qualified preponderance of likelihood that intercourse had taken place, had in reality stated that it had found the evidence insufficient for criminal conviction, but sufficient for civil liability (“det flertallet i realiteten har gjort er å si at de[t] mener det nok ikke var bevis tilstrekkelig til domfellelse bare til erstatningsansvar”). This ran, in the minority’s view, contrary to the presumption of innocence.

According to the minority, the question had also to be assessed in the light of the fact that the District Court had first given reasons for its conviction of the applicant, while the jury in the High Court had not given any reasons for its acquittal, and it was unknown how many had voted in favour of acquittal or conviction, respectively. Furthermore, the reasons provided by the majority of the High Court judges in their decision on the civil claim were in reality a continuation (“påbygging”) of the reasons provided by the District Court. Moreover, the jury had not been asked a separate question on whether intercourse had taken place; instead a more complex question including all conditions for criminal liability had been asked. Lastly, although the question of civil claims had been decided subsequent to the decision to acquit the applicant of criminal liability, it was nonetheless decided in continuation of the criminal case. The minority concluded that it would not, given the specific circumstances in the present case, be possible to order the applicant to pay civil redress without impinging on his right to be presumed innocent.

On 27 February 2014 the applicant appealed against the High Court’s ruling on the civil claim to the Supreme Court (Høyesterett). He submitted that the High Court’s reasons for awarding civil redress ran contrary to the presumption of innocence as set out in Article 6 § 2 of the Convention and that it followed from Article 13 of the Convention that the High Court’s judgment, insofar as it concerned the civil claim, had to be quashed.

On 4 April 2014 the Supreme Court’s Appeals Leave Committee (Høyesteretts ankeutvalg) declared that the applicant’s right to be presumed innocent as enshrined in Article 6 § 2 of the Convention had been violated. The Committee first stated that the High Court had correctly explained the differences between the rules on evidence applicable to criminal and civil cases, respectively. It had also emphasised that the finding of civil liability did not affect (“ikke rokket ved”) the acquittal of criminal liability. The Committee went on to note that the High Court had stated as part of its reasons the above phrase that there had been “nothing to indicate that X had been testifying incorrectly about the intercourse, apart from the fact that the applicant had denied having intercourse” (see paragraph 14 above). In the Committee’s view, this phrase could give the impression that the High Court had not been in doubt that X’s testimony had been correct. In the light of the evidentiary situation in the case, the High Court had thereby cast doubt on whether the conditions for criminal liability had been met and hence violated the presumption of innocence.

The Supreme Court’s Appeals Leave Committee found that, in the circumstances (“etter forholdene”), it would be a sufficient remedy according to Article 13 of the Convention for it to declare that the presumption of innocence had been breached and to dissociate itself from the reasons provided by the High Court. It therefore unanimously found that neither the infringement of the presumption of innocence nor other submissions made by the applicant gave reasons to grant leave to appeal to the Supreme Court.

Section 3-5 § 1 of the Compensation Act of 13 June 1969 (skadeserstatningsloven) read at the relevant time:

“Section 3-5 (Compensation (redress) for non-financial injury)

Anybody who intentionally or by gross negligence

(a) injures any person or

(b) commits an infringement or an act of misconduct as mentioned in section 33

may, regardless of whether compensation for permanent injury under section 3-2 or standardised compensation under section 3-2a is paid, be ordered to pay the victim such non-recurrent amount as the court finds reasonable in compensation (redress) for injury of a non-financial kind. For offences or misconduct as mentioned in Articles 195, 196 and 200 § 3 of the Criminal Code, the nature of the act, the length of the matter, whether the act is an abuse of a relationship of relatives, care, dependency or trust, and whether the act is carried out in a particularly painful or hurtful way.”

Section 30-4 of the Dispute Act of 17 June 2005 (tvisteloven) reads:

“Section 30-4 Leave to appeal against judgments

(1) Judgments cannot be appealed against without leave. Leave can only be granted if the appeal concerns issues whose significance extends beyond the scope of the current case or if it is important for other reasons that the case be determined by the Supreme Court.

(2) The issue of leave shall be determined for each appeal. Leave may be limited to specific claims and to specific grounds of appeal, including to specifically invoked errors in the application of law, procedure or the factual basis for the ruling.

(3) The issue of leave shall be determined by the Appeals Committee of the Supreme Court by way of decision. A decision to refuse leave or to grant limited leave requires unanimity.”

The Supreme Court has several times dealt with cases in which the appellants have argued that the High Court, in the context of civil claims for compensation, had employed language incompatible with Article 6 § 2 of the Convention. In its judgment of 27 November 2003 (Norsk Retstidende (Rt.) 2003 page 1671) it concluded that the High Court’s reasons ran contrary to Article 6 § 2, and went on to examine how to remedy that situation under Article 13. The appellant in that case had maintained that the High Court’s judgment insofar as concerned the civil claim, had to be quashed in order for him to be afforded an adequate remedy.

The Supreme Court, observing that based on the evidentiary situation in the case, the High Court would certainly reach the same conclusion if the Supreme Court were to quash the judgment under appeal and the High Court, hence, would be confined with the task of pronouncing a new judgment. Since the civil liability did not require that the conditions for criminal liability be met, a decision to impose civil liability could be given without having to impute any criminal liability to the appellant. The Supreme Court considered that in such circumstances, quashing the High Court’s judgment would not give the appellant any further degree of reparation than if the Supreme Court declared that the High Court had breached the Convention and distanced itself from the High Court’s problematic reasons. The Supreme Court made reference to, inter alia, Adolf v. Austria, no. 8269/78, 26 March 1982. It also took account of how a crucial element in the Strasbourg Court’s finding of a violation of Article 6 § 2 in Y v. Norway, no. 56568/00, §§ 45-46, ECHR 2003II (extracts), had been the Supreme Court’s failure to dissociate itself from troublesome statements in the High Court’s reasons in that case.

This approach taken in Rt. 2003 page 1671 has since been followed in a number of Supreme Court decisions and judgments (inter alia, Rt. 2004 page 970; 2007 page 40; 2008 page 1292; and 2009 page 1456).


CASE OF GRAFESCOLO S.R.L. v. THE REPUBLIC OF MOLDOVA

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

Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall

The applicant is a company incorporated in Moldova.

On 13 February 2003 the Vadul lui Voda local council adopted a decision concerning the sale of a plot of land with a greenhouse on it to the applicant company. Subsequently, in March 2003, a contract was entered into for that purpose between the local council and the applicant company.

On 15 June 2006 the local council adopted a decision revoking its previous decision. The applicant initiated proceedings against the local council.

On 25 December 2006 the Vadul lui Voda local council introduced a counter action seeking the termination of the contract of sale between it and the applicant company on the grounds that the price asked for the property had been too low and that the land had been sold unlawfully owing to its proximity to a river. The applicant company opposed this action and argued, inter alia, that it was time-barred under the provisions of the Civil Code in force at the time the contract was entered into.

On 13 April 2007 the Ciocana District Court rejected the applicant’s action but accepted that of the local council and declared the contract of sale null and void. The court held that the rules governing time limitation contained in the new Civil Code should apply. The court expressed of its own motion the opinion that the local council’s action had concerned the declaration of the absolute nullity of the contract of sale and that therefore, in accordance with the provisions of Article 217 of the new Civil Code, it could not be time-barred. The applicant appealed.

On 5 September 2007 the Chişinău Court of Appeal upheld the appeal lodged by the applicant company and quashed the judgment of the first-instance court. It upheld the applicant company’s action and dismissed the counter action lodged by the local council. The local council lodged an appeal on points of law.

On 16 January 2008 the Supreme Court of Justice upheld the appeal on points of law lodged by the local council. It quashed the judgment of the Court of Appeal and upheld the judgment of the Ciocana District Court of 13 April 2007. The Supreme Court did not state any position in respect of the applicant company’s initial defence concerning the statute of limitations. Only the representative of the local council was present at the Supreme Court hearing. The judgment of the Supreme Court was final.


Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

András Sajó;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska

The applicant was born in 1991 and lives in Zakan-Yurt, Chechnya.

The facts of the case are connected to Isayeva v. Russia, no. 57950/00, 24 February 2005, and Abuyeva and Others v. Russia, no. 27065/05, 2 December 2010. These two applications were lodged by residents of Katyr-Yurt, Chechnya, who alleged that their relatives had been killed or wounded, and that they had suffered injuries and lost their property during the attack on the village from 4-7 February 2000. In the Isayeva case, cited above, the applicant and her relatives were trying to flee the fighting on 4 February 2000 when an aviation bomb exploded near their minivan, wounding the applicant and killing three of her relatives. In the Abuyeva and Others case, cited above, the applicants described how they had been trapped in the village during intense shelling and had tried to leave through what they had perceived to be a safe exit route. The Court has established a number of facts relevant to the present case, which can be summarised as follows.

Ever since the start of operations by the Russian military and security forces in Chechnya in the autumn of 1999, the village of Katyr-Yurt, situated in the Achkhoy-Martan district, had been considered a “safe zone”. By the beginning of February 2000 up to 25,000 persons were living there, including local residents and internally displaced persons from elsewhere in Chechnya. In the period leading up to 4 February 2000 the residents of Katyr-Yurt were not informed by the State authorities about the possible advance of illegal fighters into the village, even though such information was available to the military commanders. On 4 February 2000 the village was captured by a large group of Chechen fighters escaping from Grozny. The Russian military forces carried out an assault, using indiscriminate weapons such as heavy, free-falling aviation bombs, artillery, missiles and other weaponry. Although the operation was not spontaneous and involved the use of indiscriminate and highly lethal weaponry, the residents of the village were provided neither with sufficient time to prepare to leave nor with safe exit routes to escape the fighting. The two exits from the village were controlled by the military by means of roadblocks. The residents were allowed to leave through the roadblock on the road leading towards the district centre of Achkhoy-Martan, but the other one, on the road leading towards Valerick, remained closed during most of the fighting. The shelling of Katyr-Yurt continued until 7 February 2000 inclusive (see Abuyeva and Others, cited above, §§ 8 and 197-201).

The applicant and her family had been living in the village of ZakanYurt, situated about thirteen kilometres from Katyr-Yurt. In November 1999 the applicant turned eight years old. She had lived with her mother, father, two elder brothers and a younger sister. She could remember the events of winter 1999-2000 when the hostilities erupted. On 1 February 2000 a large group of insurgent fighters entered Zakan-Yurt, walking into houses and asking for clothes and food. On the same day airstrikes started. The applicant’s family went into hiding in a cellar.

On 2 February 2000 the applicant’s family decided to travel to KatyrYurt, which the applicant’s father described as a “peace zone”. The applicant’s father drove his black Volga car; her mother and brother Magomed sat in front, while the applicant, her sister Madina and brother Ruslan, as well as two cousins, Khava and Luiza Abakarovy, were in the back seat. On the same day they arrived in Katyr-Yurt and stopped in the centre of the village.

According to the applicant, they did not know anyone in the village and an unknown man invited them to stay at his house, as did many other villagers. The family stayed with this man for two nights and everything was calm. On the morning of 4 February 2000 airstrikes started, and there were a lot of explosions. The applicant’s family went into the cellar under their host’s house. Many other people also arrived, including relatives and acquaintances from Zakan-Yurt. They stayed in the cellar throughout the day, while the shelling of the village continued.

Later in the afternoon the applicant’s father said that it was too dangerous to stay in Katyr-Yurt and that they would drive to AchkhoyMartan. The applicant’s father, mother, two brothers and two cousins, as well as the applicant herself, got into the car. The applicant remembered seeing a lot of people on cars, tractors and on foot trying to get out of KatyrYurt. There were explosions.

At some point the applicant lost her conscious awareness of what was happening and found herself lying in the road. Their car was burning. She could see her sister Madina, brother Ruslan and cousin Luisa. They were all alive but wounded and burned. The applicant could not see her parents. An old man brought the applicant into the courtyard of a house. Sometime later the applicant, her sister, brother and cousin were put on a bus. The applicant lost consciousness and woke to find herself in hospital in Urus-Martan. Her legs were covered with plaster, and her face and hands were burned. She also saw her sister Madina in the same room.

On 5 February 2000 the applicant and her sister were brought by ambulance to Nazran, Ingushetia. The following morning the applicant did not see her sister and she did not know at that time where her family was.

On 4 March 2000 the applicant was discharged from the Nazran hospital, with her legs still in plaster. She was diagnosed with fractures of the left hip and right shin, and thermal burns. The circumstances of the wounding were indicated as “shelling, direct hit on the car in which the family was travelling”. The applicant went to live with her grandmother in Zakan-Yurt. There she learnt that her whole family had died. As a result of the air-strike, the following relatives of the applicant were killed:

- Mr Mansur Abakarov, born in 1955, the applicant’s father;

- Mrs Khava Zaumayeva, born in 1954, her mother;

- Mr Ruslan Abakarov, born in 1987, her brother;

- Mr Magomed Abakarov, born in 1985, her brother; and

- Mr Madina Zaumayeva, born in 1994, her sister.

The applicant’s cousin Ms Khava Abakarova was also killed.

In March and April 2000 the Achkhoy-Martan district civil registration office recorded the deaths of the applicant’s mother, father and three siblings which had occurred in Katyr-Yurt on 4 February 2000. The cause of death was recorded as splinter wounds and burns.

On 16 September 2000 the prosecutor’s office of the AchkhoyMartan district (the district prosecutor’s office) initiated an investigation into the events of 2-7 February 2000 in Katyr-Yurt in response to a complaint by the applicant in the Isayeva case, cited above.

On 19 February 2001 the investigation into the criminal case was transferred to the military prosecutor’s office of the North-Caucasus Military Circuit (the military prosecutor’s office). The case file was assigned number 14/00/0004-01.

It appears that in 2000-2001 the investigation questioned most of the applicants in application no. 27065/05, as well as other individuals who had been in Katyr-Yurt at the time.

At that time the investigation found it established that 43 civilians had been killed and 53 wounded as a result of the operation. 62 individuals were granted victim status in the proceedings. The applicant’s relatives and the applicant herself were not listed among the victims.

On 13 March 2002 the military prosecutor’s office terminated the proceedings in criminal case no. 14/00/0004-01. The decision referred to a large quantity of documents and statements from dozens of witnesses, including local residents, servicemen from various units, and commanding officers. The decision also referred to the results of the military experts’ report of 11 February 2002, which established that the actions of officers from the Internal Troops involved in the special operation in Katyr-Yurt on 4-6 February had been appropriate to the circumstances and in line with the applicable legal provisions. On this basis the investigation concluded that command corps’ actions were absolutely necessary and proportionate to the resistance put up by the insurgent fighters. It found an absence of corpus delicti in the actions of the servicemen. By the same decision the victim status of 62 individuals was withdrawn. The individuals in question were to be informed of the possibility of seeking redress through civil proceedings.

It appears that the victims were not informed by the prosecutor’s office about the termination of the proceedings and nothing happened until January 2005, when they learnt that the proceedings had been terminated.

Between January and March 2005 the applicants in application no. 27065/05 contacted the military prosecutor’s office in writing, seeking information about the progress of the investigation in case no. 14/00/000401. They referred to the circumstances of the deaths and wounding of their family members and asked to be granted formal status of victims in the proceedings.

In response to these requests, between January and April 2005 the military prosecutor’s office informed the applicants of the results of the military experts’ report, the termination of proceedings in criminal case no. 14/00/0004-01 and the withdrawal of victim status in 2002. The letters also confirmed that the investigation had established the deaths and injuries of which they had complained and informed them that they could apply to a civil court to obtain compensation. Some of these letters contained the decision of 13 March 2002 as attachment.

On 6 June 2005 26 applicants in Abuyeva and Others case lodged a claim with the military court of the North-Caucasus Military Circuit. They complained about the ineffectiveness and incompleteness of the investigation. In particular, the applicants noted that some of their relatives’ deaths had not been recorded by the investigation and that these persons had not been listed amongst those who died in Katyr-Yurt in February 2000. They asked the court to quash the decision to terminate the criminal proceedings and to oblige the military prosecutor’s office to resume the investigation in the criminal case, to grant each of them the status of victim in the criminal proceedings, and to issue them with copies of the relevant decisions. These complaints did not directly refer to the situation of the applicant’s family.

The applicants’ request was granted and the case was reopened in 2007 under the number 44/00/0026-05. However, on 14 June 2007 the investigation was closed, with the same conclusions as in March 2002, on the basis of Article 39, part 1 of the Criminal Code. The decision confirmed the deaths of 46 and the wounding of 53 local residents, without listing their names. An additional expert report was produced by the Military Academy of the Armed Forces in June 2007, which found that the actions of the command corps in planning and executing the operation had been reasonable and in line with domestic law. No copy of that report has ever been disclosed to the applicants or submitted to the Court. The decision stated in this respect:

“... The actions of the fighters (the occupation of Katyr-Yurt by a group of fighters numbering three to four thousand persons, the fighters establishing strongholds in the houses, [their] fierce resistance and their using local residents as a “human shield”) ... represented a real danger to the lives and health of the local residents, and could have entailed unnecessary losses by the federal forces ...

These circumstances required the taking of adequate measures by the command corps in order to prevent the danger of armed assault against the citizens and their lives and property (residents of Katyr-Yurt and military servicemen), in addition to [the need to safeguard] the interests of society and the State which are protected by law (the reinstatement of the constitutional order in Chechnya). After issuing a preliminary notification and giving the civilians a real opportunity to leave the village, the subsequent extermination of pockets of the fighters’ resistance by means of artillery and attack aircraft, employing area-point method (“зонально-объектовый метод”), did not exclude deaths among civilians. At the same time, the use of such means of extermination was consistent with the circumstances and with the measures taken in order to minimise losses among civilians. The actions of the command corps (commanders) during the preparation and carrying out of the special operation aimed at the liberation of Katyr-Yurt between 4 and 7 February 2000 were in line with the requirements of relevant field manuals, internal regulations and instructions, were lawful and did not contain elements of criminally ”.

The decision to grant victim status to 95 people was quashed. The military prosecutor of the United Group Alliance in the Northern Caucasus (UGA) forwarded the decision to the head of the Government of Chechnya, asking it to identify the victims’ places of residence and to inform them of the closure of the investigation, as well as the possibility of seeking compensation through the civil courts.

The name of the applicant in the present case was not listed among the 95 individuals who had been granted victim status.

After discharge from hospital, the applicant had to keep plaster on her legs for three months. Because the hostilities in Chechnya were still ongoing, her relatives took her to the Volgograd Region to continue her treatment. In 2002 the applicant was taken to Norway for treatment for one week. In 2002 her paternal grandmother, with whom she had been living after her parents’ deaths, died. After that the applicant lived with her maternal grandparents in Zakan-Yurt.

In their observations of September 2010, the Government stated that in 2001 a witness had told the investigators about the deaths of six people in a Volga car (see Isayeva, cited above, § 56) but their identities were unknown at that time. It was not until the applicant’s questioning in March 2007 (see below) that the investigation obtained this information.

In December 2006 a distant relative of the applicant’s took her to a human rights organisation, at her request, where she found out for the first time that a criminal investigation had been opened into the attack at KatyrYurt.

On 18 December 2006 the applicant wrote a letter to the military prosecutor of the UGA and informed him about the deaths of her five relatives and the injuries she suffered on 4 February 2000 in Katyr-Yurt. She attached five death certificates and her discharge papers from the Nazran hospital dated 4 March 2000.

On 19 March 2007 the applicant was questioned and granted the status of victim in criminal case no. 34/00/0026-05. At that time the applicant was a minor but the questioning took place in the absence of legal guardian or representative. According to the parties, there is no information indicating the establishment of guardianship over the applicant up to the age of majority.

She was not informed of the decision to close proceedings of 14 June 2007 (see paragraphs 26–28 above). The Government submitted in their observations that this had been an omission on the part of the investigator which had been due to the large number of victims in the case.

As is apparent from subsequent documents submitted by the applicant, the investigation into the attack upon Katyr-Yurt was reopened in September 2012. The investigators commissioned an additional expert report into the lawfulness and reasonableness of the military intervention. Neither party submitted to the Court the decision to commission the expert report, the questions put to the experts, or a copy of the report itself, nor is it clear which documents were made available to the experts. The applicant’s knowledge of and involvement in this procedural step has not been clarified. It appears that the document, as most other documents in the file, has been classified. A summary thereof and summaries of other documents are contained in a twenty-page-long extract from the decision to close the criminal investigation issued by a senior investigator of the Military Investigations Unit of the Investigative Committee in the Southern Federal Circuit on 9 March 2013 (extract dated 16 March 2013).

The aforementioned extract opensat that time. According to the text, on the night of 3 to 4 February 2000 a group of between three and four thousand fighters under the command of field commander Gelayev had entered Katyr-Yurt (also spelled Katar-Yurt). They were armed with automatic firearms, large-calibre machine guns, flame-throwers, portable anti-aircraft launchers and armoured vehicles. On 4 February 2000 the head of the operations centre (OC) of the Western Zone Alignment in Chechnya gave orders to block the village to carry out a special operation. By that time, most inhabitants had left the village and others were hiding in their houses. The decision to evacuate the civilians was taken between 7 and 11 a.m. on 4 February. The population had been informed of this possibility through the head of the administration and by means of a loudspeaker device mounted on a helicopter. Following skirmishes on the outskirts of Katyr-Yurt and casualties suffered by the security forces, at 9 a.m. artillery started to carry out pin-point strikes aimed at clusters of fighters in the centre and on the periphery of the village. After sustaining casualties, a reconnaissance group retreated from Katyr-Yurt on the morning on 4 February, following which attack aircraft were called in. Due to the fierce fighting and the artillery and air strikes upon the clusters of fighters, the residents started to leave, and by midday on 4 February “their outflow had become significant”. The extract stated that the special operation had continued for two days, although the strikes continued until 7 February. On the third night [presumably the night of 6 to 7 February] a significant proportion of the fighters, numbering about 800 in all, had left the village under cover of poor visibility and escaped into the mountains; 386 had been killed during the operation. The commanders of the special operation had taken measures to arrange the evacuation of civilians but their plans had been upset by the fighters, especially in the initial stages of the operation. Many residents trying to leave the village had been caught in the crossfire between the fighters and the security forces. Most residents had been killed or injured in the initial stages of the operation, in the central part of the village where the most intense fighting had taken place. No conclusive figure of injured or dead civilians, fighters or security forces was given in the extract.

The extract then states that the latest decision to terminate proceedings had occurred on 28 September 2012. That decision was quashed on 9 October 2012 and the investigation was extended until 9 March 2013.

The extract goes on to cite statements from various military and civilian witnesses, without indicating their names or ranks or the dates when these statements were taken (see Isayeva, cited above, §§ 42-92).

The document also refers to an additional operational-tactical expert report (“дополнительная комиссионная оперативно-тактическая судебная экспертиза”) produced on 24 September 2012 by unnamed “external experts from the military faculty of the Southern Federal University” (“внештатные эксперты факультета военного обучения Южного федерального университета”) based in Rostov-on-Don. As summarised in the extract, the experts’ conclusion did not differ from the findings reached by the previous expert reports commissioned by the investigation (see paragraphs 21-27 above). The expert report is cited as follows:

“In early February 2000 the operational situation in the area of the counter-terrorist operation in Chechnya was extremely tense and difficult. ... After the defeat suffered in the plains of Chechnya and in Grozny, [the illegal insurgents] attempted to move into harsh southern mountainous regions where they would be able to take rest and recover, in order to organise further military action. ... A very difficult situation developed in the area covered by the Western Zone Alignment. Their main task was to prevent the illegal insurgents from breaking through from the mountainous areas of Chechnya to the plains, to identify, disarm and detain members of the illegal armed groups, and to destroy them in the event of armed resistance ...

... In early February 2000 reconnaissance information was received about the taking of Katyr-Yurt by a large group of fighters. The exact number of fighters was unknown. In order to prevent any further gathering of the fighters, it was decided to surround the village and carry out a special operation there ... A plan for the special operation was worked out. The plan detailed the detachments responsible for blocking and searching, the order of fire contact in the event of armed resistance by the fighters, the location of the command headquarters and control points ... The artillery targets were established in advance along the lines of the fighters’ possible escape routes from Katyr-Yurt and potential arrival of reinforcements, outside of the village. Two control points (roadblocks) were established at the two ends of the village to ensure the exit of civilians – one towards Achkhoy-Martan and the other towards Valerik. The civilians left the village through the two roadblocks, along ‘humanitarian corridors’.

The head of Katyr-Yurt was informed of the decision to carry out a special operation. He requested postponement in order to ascertain the situation with his own resources and to drive the fighters out of the village. The special operation was postponed for one day. However, the following morning the fighters attacked OMON [special police forces] based in Katyr-Yurt and attempted to break through the lines of the security forces. The security forces sustained casualties. As became apparent during the clashes, the fighters were armed not only with firearms, but also with grenades and fire-launchers, large calibre machine guns, mine-launchers and anti-tank rocket launchers. The fighters were well prepared and were able to use artificial and natural hiding places in order to deliver combat in a populated area. The number of fighters greatly exceeded the security forces (by 4-6 times).”

The decision goes on to cite the report’s conclusion that the use of fighter jets, artillery and mine-launchers upon fortified positions had been justified and that the refusal to employ them would have resulted in heavy losses among the security forces and failure to achieve the goals as set. Over a period of three days most fighters present in the village were killed (one military unit had reported 386 killed fighters).

The report cited military field manuals and concluded that the actions of the commanders had been in full compliance with those acts. The commanders had organised and planned the enforcement of the objectives set. The pin-point air strikes upon previously agreed targets, the direct strikes by artillery and anti-tank rocket launchers, and the tank and anti-tank guns had been directed by forward air controllers and artillery pointers upon clearly established and observed targets.

Page 12 of the extract contains the following citation from the decision: “the evidential material in the criminal investigation file ... shows that over 1,000 fighters who entered Katyr-Yurt were armed with automatic firearms, large-calibre machine-guns, grenade-launchers and armoured vehicles; fortified firing points had been established in the captured houses. [In such circumstances] the use of artillery and airborne weapons between 4 and 7 February 2000 was justified ...”

As cited in the extract, the experts focused on the use of artillery and aircraft. From the operative military documents referring to the use of artillery it was impossible to discern where and when exactly, and at what targets the artillery had been employed, since all the documents reviewed by the experts were judged by them as either irrelevant to the operation in question or not containing any relevant information. As to the aircraft, they had used aviation bombs and unguided and guided missiles of undisclosed types. The number of aircraft involved and the number and timing of the mission sorties, as well as the number of missiles and bombs used, was not specified. As cited, the report established that during the mission sorties the pilots had received information from the forward controllers, because the missions were taking place in the vicinity of, or within, the populated area. The target selection was done using smoke pods or by reference to clearly identifiable topographical “highpoints”. There was no evidence of provocations by fighters or mistakes in selecting targets. The document went on to state that the identification of targets had occurred on the basis of information received prior to departure, from the forward air controllers during the flight, and from the observed activity. Since their use by illegal insurgents could not be verified, attacks on vehicles were ruled out unless very precise and distinguishable directions had been received from the ground. The aircraft attacked from a height of about two kilometres and from a distance of about two kilometres; from that distance details such as clothing and the presence of firearms could not be distinguished. For that reason, contact with the air controllers was necessary before and after hitting the selected target.

In the cited extract, the experts concluded that “such engagement of artillery and aviation munitions practically ruled out the likelihood of casualties to civilians, except those who were with the fighters in houses occupied by the latter”.

They further concluded that the “employment of a minimal amount of artillery, the choice of the most accurate target direction possible, and the use of the minimum amount of shells necessary ... guaranteed safety from injuries by splinters both for the civilians and security forces. ... Having examined the criminal investigation file, the experts concluded that the OC of the Western Zone Alignment and the head of the special operation in Katyr-Yurt had taken all possible measures in order to prevent losses among civilians while planning and carrying out the operation”.

Turning to the situation of the civilians, the experts judged that they had been able to leave the village along “humanitarian corridors” through two roadblocks. The information about the corridors had been communicated by means of a helicopter and an armoured personnel carrier (APC). The head of the administration had been properly informed of the beginning of the special operation and, at his request, its start had been postponed for a day. The civilians had been informed of the need to evacuate and two roadblocks had ensured safe and unhindered passage. The civilians had been accorded the time necessary for the evacuation and the transport carrying the civilians was able to travel back and forth through the roadblocks.

While the report, as cited in the extract, conceded that an unspecified number of civilians had been killed during the operation through the use of weapons under the control of the operation’s commanders, such measures had been in compliance with the appropriate order of decision-taking in the choice of targets and means employed during the special operation.

On the basis of this report, the investigator concluded that the measures resulting in civilian casualties had been absolutely necessary within the meaning of Article 39, part 1 of the Criminal Code (as in the previous decisions of 13 March 2002 and 14 June 2007 – see Abuyeva and Others, cited above, § 159).

The extract ended by listing the names of the 47 individuals who had been killed, but Mr Z. M. Isayev (a son of the applicant in the Isayeva case, cited above) was listed twice. It did not contain the names of the applicant’s five family members, nor of her cousin Khava Abakarova (see paragraphs 14 and 15 above). Nor did it contain the names of five relatives of applicants 2 and 24 in the Abuyeva and Others case (see Abuyeva and Others, cited above, § 156). The non-exhaustive list of the wounded included the applicant; however no separate list of victims has been drawn up; nor does it appear that a copy of that decision was sent to them.

On 26 September 2013 a lawyer representing Mrs Marusa Abuyeva, another victim in criminal investigation no. 14/90/0092-11, appealed to the Grozny Garrison Military Court against the decision of 9 March 2013 to close the criminal investigation and to terminate Mrs Abuyeva’s victim status in the proceedings. The statement of appeal was based on the following grounds: the decision had not been based on the established facts, no proper collection and examination of evidence had taken place and legal classification of the events had been incorrect.

Firstly, it was argued that the investigation had failed to establish the following pertinent facts: the number of illegal fighters in Katyr-Yurt; the timing and conditions of the transmission of information about the operation and evacuation of civilians; the purpose of the roadblocks at the two extremities of the village; and the details of the aircraft bombings. As to the number of fighters, the statement of appeal referred to various figures cited in the extract and emphasised the fact that the source of this information had not been identified. Likewise, there was a lack of clarity as to the number of fighters killed, nor were there any indications as to any names, identification procedures etc. The appeal statement also pointed out that the number of the security force personnel involved had not been given; it was therefore difficult to evaluate the numerical superiority of the fighters and the need to employ massive weapons. Furthermore, the victim challenged the statement that the administration and population of Katyr-Yurt had been informed about the operation in advance, pointing to the absence of any clear evidence in the case-file to that effect. Turning to the roadblocks set up by the security forces, the appeal statement pointed out that there were no grounds for concluding that this measure had facilitated the exit of civilians from Katyr-Yurt and reiterated the findings made in this respect by the Court in the judgments in the Isayeva and Abuyeva and Others cases (both cited above, §§ 194 and 199, accordingly). As to the details of aircraft bombing, it was argued that the investigators had accepted two mutually incompatible versions and no steps had been taken in order to clarify whether the pilots, or the aviation controllers who had coordinated the fire, had been able to observe and distinguish legitimate targets (members of illegal armed groups) from civilians. It was also pointed out that the employment of unguided missiles and free-falling general purpose bombs in any event ruled out the possibility of limiting the impact to the selected targets.

As regards the incompleteness of the investigation, it was stressed that the investigators had failed to collect the information necessary to evaluate the threat to the civilian population and the appropriateness of the use of selected weapons and ammunition, and to compile an exhaustive list of victims and damage caused. On the last point, it was emphasised that no list of those who had been killed, both civilians and fighters, had ever been compiled and that the information in this regard remained incomplete.

Finally, it was argued that the legal classification of the commanders’ actions had been incorrect and that the application of Article 39 part 2 of the Criminal Code had been unjustified without the prior

On 6 December 2013 the Grozny Military Garrison Court examined and dismissed the appeal. The court referred to the conclusions of the expert report of 24 September 2012, according to which the actions of the operational commanders had been in accordance with the relevant field manuals and other instructions and were justified in view of the numerical superiority of the fighters. The court also found that the evidence collected by the investigation justified the conclusions reached as regards each of the points raised by the appeal. As to execution of the Isayeva and Abuyeva and Others judgments, the court stressed that in accordance with Article 46 of the Convention, and in line with the Resolution of the Plenary of the Supreme Court No. 21 of 27 June 2013, the investigation had been reopened in 2012 and a number of relevant steps had been taken. In particular, a new expert report had been commissioned and carried out. The Court’s position on the ineffectiveness of the previous investigation had therefore been taken into account and the failings had been rectified.

The victim appealed. In her appeal of 23 December 2013 it was stressed that the breach of procedural obligations under Article 2 in this case had taken on a lasting character. Pointing to the relevant passages in the Isayeva and Abuyeva and Others judgments, both cited above, the appeal argued that the following fundamental defects of the investigation, as identified by the Court, had not been corrected in the new round of proceedings: there had been no independent evaluation of the proportionality and necessity of the lethal force used; no individual liability had been established for the aspects of the operation which had led to civilian losses, and these aspects had not been studied and evaluated by an independent body, preferably a judicial one. It was reiterated that the expert report of September 2012, as cited in the decision of 9 March 2013, had simply repeated the findings of two previous expert reports which had already been examined by the Court. Like the previous two, it had not been based on the pertinent facts of the case. Finally, the important question of the total number of victims had still not been resolved, as demonstrated by the failure to include some of the victims’ deceased relatives in the total.

On 6 March 2014 the Rostov Circuit Military Court examined the appeal. During the hearing, the victim’s representative submitted a number of additional points. He concentrated on the relevant precepts of international humanitarian law and the practice of international criminal tribunals which, he argued, should have guided the investigator in his examination of the case. In his view, the decision of 9 March 2013 had failed to take into account the relevant interpretation of these provisions in so far as it concerned the definition of victims as civilians, and the widespread, systematic, indiscriminate and disproportionate attacks on them.

The Circuit Military Court dismissed the appeals. It found that the Garrison Court had examined all the relevant evidence and had applied a comprehensive and consistent interpretation thereto. At this stage, the judge was unable to analyse the substance of the question of guilt or innocence, or to evaluate the correctness or sufficiency of the evidence collected. The Circuit Court stressed that the victim’s arguments regarding both the incompleteness of the investigation and the failure to take into account the European Court’s binding judgments had been thoroughly examined and dismissed.

As is apparent from subsequent documents, the victim’s Supreme Court cassation appeal was unsuccessful. On 25 September 2014 a judge of the Supreme Court refused to accept the request for review, in view of the detailed and well-reasoned decisions of the military courts. The victim’s argument that the legal position of the Court in the new round of proceedings had not been taken into account was judged to be unfounded.


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

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

The applicant was born in 1987 and is detained in Lublin.

On 1 December 2005 the applicant was arrested and remanded in custody. In 2006 he was convicted of three counts of battery and robbery and received prison sentences ranging from two to four years. On 28 November 2006 the Lublin Regional Court imposed a cumulative sentence for four criminal convictions.

On 5 November 2010 the Opole Lubelskie Prison Penitentiary Commission imposed on the applicant the so-called “dangerous detainee” regime. The commission held that the applicant had been the leader of or an active participant in a planned collective remonstrance in Opole Lubelskie Prison (Article 88a § 2 (2a) of the Code of Execution of Criminal Sentences), as the detainees refused to accept food provided by the prison authorities. The authorities learned that the detainees were planning another collective protest for 11 November 2010. The commission also considered that the applicant was particularly depraved.

On 18 January 2011 the Opole Lubelskie Prison Penitentiary Commission rejected an appeal lodged by the applicant and dismissed his request for leave to examine the appeal outside the statutory time-limit.

Subsequently, the applicant was transferred to the Lublin Remand Centre.

On 3 February 2011 the Lublin Remand Centre Penitentiary Commission reviewed and upheld the decision to apply the regime to the applicant, considering that he posed a serious threat to the security of the detention centre. The applicant appealed.

On 4 April 2011 the Lublin Regional Court dismissed the appeal. The court referred to the reasons given in the decision of 5 November 2010, holding that the decision had been lawful and justified.

On 3 March 2011 the applicant lodged a complaint with the Lublin Regional Inspectorate of Prisons. He complained that he was having difficulties in accessing educational activities in the Lublin Remand Centre. The authorities dismissed the complaint, holding that educational activities were not organised for dangerous prisoners.

On an unspecified date in 2011 the applicant notified the police of his allegedly unlawful classification as a “dangerous detainee” on 5 November 2010. He claimed that the Opole Lubelskie Prison authorities had exceeded their powers in imposing the regime on him. On 29 April 2011 the Opole Lubelskie District Prosecutor refused to open an investigation in the case, holding that no offence had been committed.

On 28 April 2011 the Lublin Remand Centre Penitentiary Commission revoked its decision to classify the applicant as a “dangerous detainee”. It considered that the applicant’s behaviour had improved and that he no longer posed a threat to the security of the remand centre.