Violation of Article 2 - Right to life (Article 2 - Positive obligations) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicants were born in 1962 and 1963 respectively and live in Snovo-Zdorovo, a village in the Ryazan Region.

On 26 May 2003 the applicants’ son, Mr Mikhail Perevedentsev (“M.P.”), born on 12 January 1985, was drafted into the army to perform two years’ mandatory military service. He was assigned to military unit no. 52157 in the village of Mulino-1 in the Volodarskiy District of the Nizhniy Novgorod Region.

The applicants regularly received letters from their son. In those letters he described various abuses that he and his fellow new recruits were suffering at the hands of more senior conscripts (Dedy) (under a system called dedovshchina or “rule of the grandfathers”): extortion, beatings, deprivation of sleep, and so on.

In a letter dated 29 June 2003 M.P. wrote:

“Stodnevka [the last hundred days before a recruit is demobilised] is hard here, guys have paid 1000 roubles each in ten days. I can’t imagine where I’m going to get such money ...”

In his next letter (undated) he wrote:

“It’s been a nightmare here, the dembels are not being discharged. And we dukhi have our own problems. We are being punished, each of us has to find 1000 roubles [to be paid] to the cherpaks. It’s probably going to be like that every month ...”

In the following letter M.P. wrote:

“The Dedy were offended that I did not bring them vodka and money, and now I do work-outs at night for two hours, the sweat is pouring ...”

In a letter dated 17 November 2003 he wrote:

“Our demobbees have left and tough times have begun. Flying in the day and working out at night. I counted that I slept eight hours [this] week. That is supposed to be a soldier’s sleep per day .... [No more easy life for us], we get bullied every day, so that it has become a routine, even though I think I’ve got a broken rib [as] I can hardly breathe, but they stop us from seeing the medics and they have dislocated my jaw, which creaks like a rusty cart.

... Mum, I’ll wait for you for one and a half weeks and then I’ll go on the run on my own, maybe with a friend. I don’t know, maybe you won’t understand, but this will be for the best as the dedy are getting wilder by the hour.”

In a letter dated 30 December 2003 M.P. wrote:

“Although I’ve left the battery I’m still assigned to it and continue to carry out my stodnevka. I now owe 2000 roubles. The Dedy say that I have to pay off 500 roubles a month and have given me a deadline of 15 January. If I don’t pay I’ll be in trouble. Mum, I understand that this is a lot of money, but believe me [when] I come back home [I will pay it back].”

In a letter dated 11 January 2004 he wrote:

“The Dedy are waiting for my payment, I borrowed 500 roubles here and gave them some. I am lucky that I have at least given them some, as some guys here got in trouble, half of them are in the medical unit with injuries and the other half all have bruises, and our commander cannot do anything about it.”

On 16 February 2004, at 11.30 a.m., M.P. was found dead with a noose around his neck.

On the same date the Military Prosecutor’s Office of the Mulino Garrison (“the Garrison Prosecutor’s Office”) instituted criminal proceedings into the death of M.P. under Article 110 of the Russian Criminal Code (Incitement to suicide). An on-site inspection and an inspection of M.P.’s body were carried out.

Also on the same date, sergeant Kolyadova O., M.P.’s immediate superior, was questioned. She stated that she was in charge of the guard dogs’ kennels to which M.P. had been assigned in November 2003. He had been responsible for helping Kolyadova O. to take care of the dogs and the premises. According to Kolyadova O., M.P. was only at the kennels during the day; from 6 p.m. to 9 a.m. he was at the watch house. M.P. was lazy and unreliable, neither too communicative nor too reserved. His behavior was normal; he never expressed suicidal thoughts or voiced any plans of running away from the military unit. Kolyadova O. had been told by M.P. that he had grown up in a happy, well-to-do family; he regularly received letters from home. He also regularly received money transfers and parcels from his parents. She knew that he had received over 1,000 Russian roubles (RUB) for his birthday and RUB 1,500 recently. Kolyadova O. criticised M.P. for asking his parents for money. She was unhappy with M.P.’s work, and often told him so. She also warned him that if he did not change his attitude she would ask the commander to send him back to the battery. Yet nothing changed. Kolyadova O. again reprimanded M.P. on 14 February [2004] and asked for his parents’ telephone number. She noticed that M.P. became frightened and asked her why she needed it. She replied that she wanted to inform M.P.’s parents of his attitude to his military service and request them not to send him so much money. M.P. reluctantly gave Kolyadova O. his mother’s mobile phone number. That evening Kolyadova O. telephoned M.P.’s mother, the first applicant, told her that M.P. was lazy and did not want to work, and asked her not to send him money too often. She also asked M.P.’s mother to come to the military unit to try and influence her son. Kolyadova O. arrived at work on the morning of 16 February 2004 to find that the kennels were once again uncleaned and the dogs unfed. She again reprimanded M.P. and told him about her conversation with his mother. M.P. took her words calmly. Kolyadova O. then left on business. On leaving it did not appear to her that M.P. was disturbed. She got back at around 10 a.m. The gate to the kennels was locked from the inside. It could be opened from the outside, but a new dog whom Kolyadova O. was still afraid of was running loose. She called to M.P., but he did not respond. Kolyadova O. thought that M.P. had gone out and started looking for him, but could not find him. She then asked the warrant officer to assign her a soldier to help her catch the dog. Afterwards Kolyadova O. entered the kennels and saw M.P. with a noose around his neck.

Again on 16 February 2004, the commander of the 22nd guards army, general lieutenant Merkuryev A. submitted to the commander in chief of the Moscow Military Command, general lieutenant Yefremov I. the following report:

“On 16 February 2004 at about 2 p.m., in the 99th mobile artillery unit of the 3rd mobile artillery division private M.P, was found hanged ....

Facts of the matter: At about 2.40 p.m. private M.P. was found hanging under the roof of a wooden shed ... by [sergeant] Kolyadova O. ...

At about 3 p.m. the commander of 99th mobile artillery unit, lieutenant colonel Mamakin I., reported the incident to the commander of the 3rd mobile artillery division and the Garrison Prosecutor’s Office.

During the inspection of the body by representatives of the Garrison Prosecutor’s Office and forensic medical experts, no abrasions or other injuries were discovered. Amongst [M.P.’s] personal items was found a letter from [M.P’s] friend [informing the latter] that his girlfriend had cheated on him.

[M.P.] received positive references during his military service. However, the results of a psychological examination which was carried out in June and December 2003 showed that the soldier belonged to the third group in respect of psychological stability [out of four, the fourth group being for the least psychologically stable who were at the highest risk for nervous breakdown]; [he] was reserved, uncommunicative, had no friends among his fellow soldiers. ...

The Garrison Prosecutor’s Office instituted criminal proceedings in connection with [M.P.’s] death.

On-the-spot inquiries are being carried out by the deputy commander of the educational unit, colonel Lazarev V.

The causes of the incident: 1. The possible reason for [M.P.’s] death could be suicide resulting from momentary nervous breakdown fuelled by a breakup with his girlfriend.

Serious omissions in the work of the command of the unit in studying the individual features of the soldiers.

Failure to take the necessary measures by the unit officials for the psychological monitoring of soldiers in need of increased psychological and pedagogical care.

Measures taken: 1. (Institution of criminal proceedings in connection with [M.P.’s] death.)

The circumstances and possible causes of the incident reported to [the command].

Additional measures by the deputy commanders of the military units and formations and military psychologists for the detection of soldiers with an increased risk of suicide to be carried out until 25 February 2004.”

On 17 February 2004 a post-mortem examination of M.P.’s body was completed. It was established that M.P. had died as a result of strangling which could have been caused by the noose submitted for examination. M. P. could have applied the noose himself. He had no traces of any injuries typical of self-defence. M.P. had died twenty to twenty-four hours prior to the examination. No alcohol was detected in his body.

On 18 February 2004 private Shuper V., a driver in the military unit, submitted that he had known M.P. since November 2003 when the latter had started working at the kennels. According to him, M.P. was calm, communicative and kindhearted. He had many friends and never complained about his military service. M.P. never told Shuper V. that he had been subjected to any bullying by other conscripts, but M.P. constantly clashed with sergeant Kolyadova O., who was in charge of the kennels. She always reprimanded M.P. for his work even though, in the opinion of Shuper V., M.P. carried out his work dutifully. In the opinion of Shuper V., M.P. had committed suicide because of his conflict with sergeant Kolyadova O., who shouted at him every day and had threatened to send him back to the battery and to telephone his mother.

On the same date, major Ogorodov N., who had been carrying out military service in military unit no. 52157 on a contract basis since 27 January 2004, submitted that on 16 February 2004, at approximately 9.30 a.m., he had heard loud noise, a crash as if something had fallen, and a woman shouting “You vagabond, not doing what you’ve been told to ...”. The shouting was coming from the kennels. He saw the door open and a soldier come out, followed by a woman shouting; her right arm was holding a ladle lifted against the soldier. Ogorodov N. then saw the woman hit M.P. on the back of his head and throw the ladle at him. He later found out that the woman was the head of the kennels and the soldier was M.P., who later the same day committed suicide by hanging himself.

On 19 February 2004 sergeant Kolyadova O. was questioned again. She submitted that on 14 February 2004 [Saturday] she had come at work at about 10 a.m. She had instructed M.P. to clean the kennels and gone to the commander to discuss the issue of a money transfer which had arrived for M.P. The commander told her that M.P. would not get any money until his mother telephoned to explain what the money was for. At about 1 p.m. Kolyadova O. returned to the kennels and saw the gate closed and a dog running loose. She then called M.P. and asked him to lock up the dog. Then, together with M.P., she entered the kennels and saw that nothing had been done. She asked M.P. what he had been doing, to which the latter replied that she would see his work on Monday. Then she told M.P. that if he continued doing nothing she would send him back to the battery, to which he responded that he would then run away. She knew that he was very afraid of going back to the battery. Kolyadova O. then ordered M.P. to chop some wood and to clean everything up until Monday, and went home.

On the same date, the statements of the witness Ogorodov N. were verified at the scene.

Also on the same date, the witness Ms Buzunova (M.P.’s aunt) submitted that she had seen and read M.P.’s letters to the applicants in which he had informed them about the beginning of stodnevka and asked them to send him money. She further submitted that the first applicant had sent M.P. RUB 1,050 in November 2003, RUB 1,000 in January 2004 and RUB 1,500 at the beginning of February 2004.

Again on 19 February 2004, the witness Mr Buzunov (M.P.’s uncle) submitted that he had known M.P. since he was eight years old. According to him M.P. was very calm, polite, and communicative; he did not suffer from any serious illnesses, had had no head injuries and had never been called to account for any administrative or criminal offences. On 26 May 2003 M.P. had been drafted into the army. In September or October 2003 Mr Buzunov had learned from the first applicant that M.P. was being subjected to beatings and extortion in the army, but that it was bearable. Later he learned that M.P. had been transferred to the kennels, that he felt much better there and was not complaining. Some time went by and then M.P. started writing in his letters that money was being extorted from him; he did not specify by whom. Then there started telephone calls from a mobile phone; but M.P. did not have a mobile phone; M.P. asked the first applicant to put credit on the account of the phone he was calling from and also to send him some credit. Once a senior conscript from M.P.’s military unit called the first applicant’s mobile phone and asked her to put credit on that telephone account. The first applicant was receiving calls on her mobile phone at all times of the day and night. In the first applicant’s last telephone conversation with M.P. he asked her to send him RUB 1,500, which he needed in order to repay a debt and to give RUB 1,000 to senior conscripts. On 14 February 2004 a woman dog handler called the home number of M.P.’s grandmother and told her that M.P. had broken a radio and that M.P.’s family needed to contact a staff officer to settle the issue by reimbursement. On 15 February 2004 the first applicant tried to contact this woman, but, when she did, the woman did not give her any clear information. The first applicant became very worried. On 16 February 2004 she tried to contact the command staff, but without success, and became even more worried. On 17 February 2004 she managed to contact the staff office and was told that M.P. had hanged himself. Mr Buzunov could not believe it, because M.P. had been a normal, even-tempered person.

On 20 February 2004 M.P.’s personal items were inspected. No money was found among them.

On 10 March 2004 lance sergeant Yelkin Ye., performing his mandatody military service since June 2003 and in military unit no. 52157 since October 2003, submitted that there were three senior conscripts in the battery – sergeant Brovkin R., private Kosarev A. and private Prudnikov Ye., all three calm and communicative. He submitted that he had not known of any brutalisation by them of the new recruits. Yelkin Ye. had not known private M.P., as the latter had always been at the kennels, and could not therefore give any impressions of him. He further submitted that he did not know when stodnevka had started for Brovkin R., Kosarev A. and Prudnikov Ye., because it did not affect his military service.

On the same date private Stryukov A., performing his mandatody military service since June 2003 and in military unit no. 52157 since November 2003, submitted that he had known M.P. for about ten days, after which the latter had been transferred from the battery to the kennels. He characterised M.P. as reserved, uncommunicative and calm. He further submitted that he had not witnessed any brutalisation of M.P. by senior conscripts Brovkin R., Kosarev A. and Prudnikov Ye., or by any other conscripts. He further submitted as follows:

“On 17 December [2003] stodnevka began for Brovkin R., Kosarev A. and Prudnikov Ye. Stodnevka began as usual. We made their beds, whichever of us was free. One of them would approach the recruits and tell them to bring them 200 roubles. They never approached me about money and never demanded money from me. Once when a parcel from home arrived for me, I decided to share it with Brovkin R., Kosarev A. and Prudnikov Ye. so that they would not touch me. I took cheese, biscuits and sweets and we ate everything together; they did not threaten me with any violence.”

Stryukov A. further submitted that M.P. would not have wanted to be transferred back to the battery, because he had been reserved and had liked it better at the kennels.

On the same date (10 March 2004), private Pavlyukovskiy V., carrying out his mandatory military service in military unit no. 52157 since November 2002, submitted that in November 2003 he had had ten days’ home leave. While at home he bought himself a mobile phone. Upon his return to the military unit he at first used his Moscow SIM card, then decided that it was too expensive and decided to buy a local (Nizhniy Novgorod) SIM card. He went to lieutenant Pestsov A., gave him some money and asked him to buy him the local SIM card; he had got the money from his parents. Lieutenant Pestsov A. bought the card at some time between 20 and 25 January 2004. Pavlyukovskiy V. used the mobile phone mostly himself and did not tell anyone that he had it for fear that the officers might take it away from him as the soldiers were not allowed to use mobile phones. Pavlyukovskiy V. had known M.P. since January 2004. According to him the latter had been reserved, uncommunicative, calm and slightly untidy. They had met at the beginning of January 2004 when M.P. had invited Pavlyukovskiy V. for tea at the kennels. The latter had told M.P. that he had a mobile phone and had decided to leave it with M.P. so that nobody would see it and steal it. He let M.P. make phone calls home. He also gave his mobile phone to privates Belov D. and Koshkin D. He never charged M.P., Belov D. or Koshkin D. for calls. At the end of January-beginning of February 2004 M.P. asked Pavlyukovskiy V. for the mobile phone to call his mother. He overheard M.P. asking his mother to send him RUB 1,500. When Pavlyukovskiy V. asked M.P. why he needed the money, the latter told that he wanted to buy himself a mobile phone. Knowing that stodnevka was beginning, Pavlyukovskiy V. asked M.P. whether he had been subjected to extortion or bullied by anyone, to which he received a negative reply. A day later Pavlyukovskiy V. received a text message informing him that his mobile phone account had been credited with RUB 100. Belov D. told him that it was his sister who had put the money on the account. M.P. also suggested calling his mother to ask her to credit Pavlyukovskiy’s mobile phone account, because he wanted to communicate with his family and friends by text messages. Pavlyukovskiy V. gave M.P. the details of his SIM card. When Pavlyukovskiy V. asked M.P. why he did not want to go back to the battery, the latter answered that he was better off at the kennels and that stodnevka had started in the battery and he did not want to be bullied by the senior conscripts. On 14 February 2004 Pavlyukovskiy V. took the mobile phone from M.P. On 16 February 2004 he was going to leave the phone with M.P. to charge the battery; however, he learned from another soldier that M.P. had committed suicide. On 18 February 2004 he received a phone call from an unknown number and a man’s voice asked: “Sanyek, is that you?”, and then “Sanya Pestsov, is that you?” Pavlyukovskiy replied to the man that he had the wrong number. The man started threatening him and he hung up. The same man called several more times on the same day. When Pavlyukovskiy answered the man introduced himself as Ismail Ibragimov. Pavlyukovskiy came to the conclusion that he had been calling about M.P. He became frightened and switched off the mobile phone. He subsequently destroyed the SIM card.

Again on 10 March 2004, private Belov D., carrying out his mandatory military service in military unit no. 52157 since 18 June 2002, gave statements identical to the statements of Pavlyukovskiy V.

Again on the same date, private Shkola V., carrying out his mandatory military service since 29 June 2003 and in military unit no. 52157 since 20 November 2003, submitted that he had known M.P. as reserved, uncommunicative and quiet. Mr Shkola further characterised Brovkin R., Kosarev A. and Prudnikov Ye. as calm and communicative and submitted that he did not know of any brutalisation by them of new recruits. He submitted that on 17 December 2003 stodnevka had started for Brovkin R., Kosarev A. and Prudnikov Ye., but that he had not seen them approaching any new recruits and extorting money from them. He personally had never had money demanded from him. Neither he nor other conscripts in the battery had been subjected to any violence by Brovkin R., Kosarev A. or Prudnikov Ye.

On the same date, private Kozarezov S., carrying out his mandatory military service in military unit no. 52157 since May 2003, gave statements identical to those given by the witness Shkola V.

Also on the same date the applicants asked the Garrison Prosecutor’s Office to grant them victim status in the proceedings.

On 11 March 2004 M.P.’s medical record was examined. Lieutenant Kolentsov S. and private Andriyantsev D., carrying out their mandatory military service in military unit no. 52157 since August 2002 and May 2003 respectively, were questioned. They gave statements similar to those given by the witnesses Shkola V. and Kozarezov S.

On 12 March 2004 sergeant Kolyadova O. was questioned again. She confirmed that she had phoned the first applicant on 14 February 2004 asking her to come and talk to M.P. because he had not been complying with his duties and risked being transferred back to the battery. The first applicant replied that she could not come because she had been feeling unwell. Then Kolyadova O. told the first applicant to call the commander and explain the reason for the money transfer made to M.P. and that otherwise M.P. would not get the money. She further stated that on 16 February 2004 she had come to work at about 9 a.m. She had seen that the dogs had been left unfed, and that the kennels had not been cleaned. She had started scolding M.P. and had told him that she had spoken to his mother, that he had squeezed the last money out of his mother and was unwilling to do anything himself. When M.P. had gone outside she had lightly and unintentionally thrown a ladle in his direction. M.P. had not paid any attention to this, and Ms Kolyadova had gone to the commander to discuss the issue of M.P.’s transfer back to the battery.

On the same date the commander of military unit no. 52157, major Ivanov A., submitted as follows: in November 2003 private M.P. was transferred to the kennels. From January 2004 sergeant Kolyadova O. began complaining that M.P. was not complying with his duties. The commander repeatedly spoke to M.P. so that the latter might change his attitude to his service duties. M.P. had been receiving money transfers from home in the amount of RUB 1,000 each time. The last money transfer had been in the amount of RUB 1,500. He had personally asked M.P. why he needed this money and asked him to get his mother to phone him, to which M.P. had replied that he wanted to buy a mobile phone and that his mother would certainly phone. On 14 February 2004 major Ivanov had called for M.P. to find out why his mother had still not contacted him. M.P. replied that she would do so. After that Ivanov had not spoken to M.P. and had received no telephone call from the first applicant.

On 15 March and 17 March 2004 privates Pribylov V. and Nikitin D., carrying out their mandatory military service in military unit no. 52157 since November 2003, submitted that by the time they joined the battery M.P. had already left for the kennels. Their subsequent statements were identical to those given by the witnesses Shkola V., Kozarezov S., Kolentsov S. and Andriyantsev D.

On 17 March 2004 sergeant Brovkin R. and lance sergeant Prudnikov Ye., carrying out their mandatory military service since June 2002 and in military unit no. 52157 since November 2002, denied having subjected M.P. or any other conscripts to any violence or extortion.

On 22 March 2004 M.P.’s fellow recruits Chemusov V. and Tsyganov A. made statements identical to those made by the witnesses Shkola V., Kozarezov S., Kolentsov S., Andriyantsev D., Pribylov V. and Nikitin D.

In the meantine, on 23 March 2004 the investigator in charge refused to grant victim status to the first applicant since the investigation had failed to identify those responsible for her son’s death. No reply followed with regard to the second applicant’s request.

On 24 March 2004 captain Volkhin S., who had been carrying out his military service in military unit no. 52157 on a contract basis since April 2000, submitted that he used to go to the kennels twice a week to check how M.P. was carrying out his military service. It was always dirty there and he made M.P. clean up. He knew from M.P.’s fellow recruits that M.P. was often reprimanded by the head of the kennels for failure to comply with his duties and forgetting to feed the dogs. He did not know if M.P. had had money extorted from him by Brovkin R., Kosarev A. and Prudnikov Ye.

On 26 March 2004 the head of the medical unit, captain Gusev V., submitted that M.P. had never come to the medical unit with any fractures.

On 29 March 2004 M.P.’s fellow recruits, Mironov K., Fedotov M., Tikhonov S. and Koryabin P., made statements identical to those made by the witnesses Shkola V., Kozarezov S., Kolentsov S., Andriyantsev D., Pribylov V., Nikitin D., Chemusov V. and Tsyganov A.

On 30 March 2004 M.P.’s fellow recruits Podkopayev V., Kozhemyakin A., Kosarev A. and Tibayev A. made statements identical to those made by the witnesses Shkola V., Kozarezov S., Kolentsov S., Andriyantsev D., Pribylov V., Nikitin D., Chemusov V., Tsyganov A., Mironov K., Fedotov M., Tikhonov S. and Koryabin P.

On 2 April 2004 the first applicant was questioned. She submitted that from November 2003 M.P. had started to complain in his letters that senior conscripts were making him do push-ups at night, that he had slept only eight hours in a whole week, that it had become unbearable in the military unit, and that he was planning to run away. Later M.P. wrote a letter informing the applicants that he had been transferred from the battery to the kennels, and that he was okay. M.P. informed the applicants that on 17 December 2003 stodnevka had started for senior conscripts and that he had to pay them RUB 1,000 every month. For the first payment he had borrowed RUB 500 from another recruit. The first applicant had sent M.P. RUB 1,050. In January 2004 the first applicant sent M.P. RUB 1,000 and in February 2004 RUB 1,500. M.P. told her that out of this sum he was planning to pay RUB 1,000 to senior conscripts and with the rest of it he was planning to buy a mobile phone. On 14 February 2004 the first applicant spoke to the woman in charge of the kennels on the phone. The latter informed the first applicant that some soldiers had broken everything at the place where M.P. was staying, including a radio. The first applicant replied that she had sent M.P. RUB 1,500 and that RUB 300 could be taken for the broken radio and the remaining sum given to M.P. The first applicant was told that she should contact the commander to resolve the money issue. When she phoned on 16 February 2004 she was told that M.P. had committed suicide. She submitted that she had not complained about the beatings and extortion because M.P. had told her that if she did, the senior conscripts would kill him.

On 6 April 2004 forensic medical expert L. submitted that aside from marks from the strangling there were no injuries of traumatic origin or signs of struggle on M.P.’s body

On 5 April 2004 attesting witnesses Sannikov A. and Mavledshin Ay., who had taken part in the on-site inspection and the inspection of M.P.’s body, submitted that they had seen no injuries on M.P.’s body.

On 12 April 2004 a post-mortem psychological and psychiatric expert report was drawn up in respect of M.P. It established that M.P.’s decision to commit suicide could have been influenced by his individual psychological peculiarities, such as immature mental processes, difficulty adapting to new conditions, sensitivity, emotionalism and a tendency to overdramatise events. M.P. had been frightened of going back to the battery because of the more difficult conditions of service there and fears of possible oppression by fellow conscripts. M.P. had been in a depressed mood and because of the immaturity of his mental processes he had not been able to constructively resolve the possible problems and had therefore consciously committed an act of autoagression. The experts excluded that M.P. could have committed suicide owing to a breakup with a girlfriend or as a result of his conflict with sergeant Kolaydova O.

On 16 April 2004 investigator B. of the Garrison Prosecutor’s Office discontinued the criminal proceedings owing to lack of any evidence that a crime had been committed. It was established that M.P. had committed suicide of his own accord on account of his individual psychological makeup and for fear of being transferred back to the battery where the conditions of service were more difficult and where he feared oppression by his fellow recruits. The decision relied on the record of the on-site inspection, the record of the inspection of M.P.’s body, a forensic medical examination report, the statements of witnesses Kolyadova O., Shuper V., Pavlyukovskiy V. and other fellow recruits of M.P., and M.P.’s post-mortem psychological and psychiatric report.

In September 2004 the applicants applied to the Military Court of the Mulino Garrison (“the Garrison Court”) seeking the setting aside of the decision of 23 March 2004.

On 22 October 2004 the Garrison Military Court held that since those responsible for the applicants’ son’s death had not been identified during the pre-trial investigation, there was no evidence that a crime had been committed and hence no victims.

On 21 December 2004 the Military Court of the Moscow Command quashed the decision of 22 October 2004 and referred the matter back to the Garrison Court.

On 21 January 2005 the Garrison Court allowed the applicants’ claim and instructed the Garrison Prosecutor’s Office to grant them victim status in the criminal proceedings instituted in connection with their son’s death.

On 22 March 2005 the Military Court of the Moscow Command upheld that decision on appeal.

In May 2005 the applicants asked the Garrison Prosecutor’s Office to provide them with copies of the court decisions regarding the instituting of the criminal proceedings, the granting to them of victim status and the termination of the proceedings.

On 16 June 2005 the Deputy Prosecutor of the Mulino Garrison refused to enforce the decision of 21 January 2005 granting the applicants victim status. He justified the refusal on the grounds that the criminal casefile was still with the court and the proceedings had not been resumed.

On 1 July 2005 the applicants’ representative asked the Garrison Prosecutor’s Office to send the case file to the applicants.

On 6 July 2005 the applicants were provided with copies of the decisions on the institution and termination of the criminal proceedings. They were further informed that there was no possibility that the instructions of the court granting them victim status would be enforced, because the criminal case was still with the court and, therefore, criminal proceedings had not been resumed.

On 9 January 2006 the applicants challenged the investigator’s decision of 16 April 2004 before the Garrison Court.

On 31 January 2006 the Garrison Court granted the applicants’ claim and ordered the Garrison Prosecutor’s Office to quash the decision of 16 April 2004. The court held as follows:

“... As established at the court hearing, by a judgment of 21 January 2005, upheld on appeal on 22 March 2005, the Military Prosecutor’s Office of the Mulino Garrison was ordered to grant [the applicants] victim status in the criminal proceedings. However, at the present moment they have not been granted victim status, [they] are not acquainted with the material in the case file, [they] have had no opportunity to give evidence, to file applications or challenges, or to exercise other powers provided for by the law. [The aforesaid], in the court’s opinion, represents a substantial violation of [the applicants’] rights. For this reason the court considers the decision to drop the criminal proceedings to be unjustified ...”

In autumn 2007 the applicants again tried to see the case file, but in vain.

In spring 2008 the case file was submitted to the Military Prosecutor’s Office of the Ryazan Region, and the applicants’ representative photographed the documents it contained with a digital camera.

On 18 August 2009 the acting head of the Military Investigations Department of the Investigative Committee of the Garrison Prosecutor’s Office quashed the decision of 16 April 2004 discontinuing the criminal proceedings. On the same day the criminal investigation into the death of the applicants’ son was resumed.

On 1 September 2009 the applicants were granted victim status in the proceedings.

On 18 September 2009 investigator S. of the Garrison Prosecutor’s Office discontinued the criminal proceedings owing to lack of evidence that a crime had been committed. The decision was worded identically to the decision of 16 April 2004.

On 22 September 2009 the deputy head of the Military Investigations Department of the Investigative Committee of the Garrison Prosecutor’s Office quashed the decision of 18 September 2009. It found that the investigation was incomplete, the circumstances of the death of the applicants’ son had not been fully investigated, and the decision was unjustified and perfunctory. In particular, the applicants had not been informed of the decision of 1 September 2009 granting them victim status in the proceedings and they had not been questioned. The criminal proceedings were resumed.

On 4 October 2010 the applicants were again granted victim status.

On 6 October 2010 the applicants were informed of the decision of 4 October 2010 and were questioned by investigator Kh. of the Military Investigations Department of the Investigative Committee of the Garrison Prosecutor’s Office.

On 11 October 2010 the proceedings were yet again discontinued owing to the absence of any evidence that a crime had been committed. The decision was worded identically to the decisions of 16 April 2004 and 18 September 2009.


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

The applicant, Mr Miroslav Kráľ, is a Slovak national, who was born in 1976, habitually resides in Ružomberok, and is currently detained in the Leopoldov prison. He was represented before the Court by Mr J. Čierny, a lawyer practising in Martin.

The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.

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

On 25 October 1999 the applicant and five others were charged with aggravated robbery on the basis of the suspicion that, on 5 September 1999, as an organised group, they had forcibly entered private forest grounds, inflicted injuries to a guard to which he later succumbed, appropriated two tractors and attempted to appropriate a third, and fled the crime scene once it had proved impossible to load the first two tractors onto a lorry.

On 28 January 2000 the applicant and the others were indicted to stand trial on the above charges in the Žilina Regional Court (Krajský súd). At the same time, a warrant was issued for the applicant’s arrest, which was followed by another similar warrant on 27 March 2000.

At an unspecified time, the Regional Court was sent a letter dated 19 December 2000 which was purportedly written and signed by the applicant, in which the author described what may be surmised to be the applicant’s version of events. The charges against the applicant were denied ‒ their factual basis, in particular, being disputed ‒ and it was alleged that the applicant had gone into hiding out of fear for his life. In his submission to the Court, the applicant has denied the authenticity of this document.

On 5 March 2001 the decision was taken that the applicant, who was still missing, should be tried in his absence (konanie proti ušlému).

Between 21 March 2001 and 4 March 2002 the Regional Court held ten hearings at which it took and assessed complex written, oral and expert evidence, including a pre-trial deposition by one of the applicant’s coaccused (A.) incriminating the applicant. The applicant’s court-appointed lawyer inspected the case file on her own initiative and attended all but the first of these hearings.

Following the hearing of 4 March 2002, on the same day the Regional Court found the applicant and his coaccused guilty.

The pre-trial deposition of A. was instrumental in establishing the guilt of the applicant and he was sentenced for thirteen and a half years’ imprisonment.

All parties appealed (odvolanie) to the Supreme Court (Najvyšší súd).

In the applicant’s case, his lawyer appealed on his behalf, arguing inter alia that the first-instance court had failed to take any notice of the applicant’s letter of 19 December 2000, that A. was not a credible witness, that two of the remaining co-accused had merely presumed that the applicant had been present at the crime scene, and that the other two had not seen him there.

The applicant’s lawyer also filed observations in reply to the appeal by the prosecution, in which she addressed the evidentiary situation and submitted that they had misconstrued it to the applicant’s disadvantage.

The Supreme Court heard the appeals on 26 September 2002, in the presence of the applicant’s lawyer. Following the hearing, on the same day, it corrected certain technical errors in the first-instance judgment and reduced the applicant’s sentence to twelve and a half years on the grounds that, combined with a previous sentence, the penalty imposed by the Regional Court was in excess of that permitted by statute.

On 21 January 2003 the Regional Court issued a warrant against the applicant for the enforcement of his sentence and ordered that he be taken to prison.

On 7 July 2004 the applicant was arrested in the Czech Republic and on 9 July 2004 was remanded by the Prague City Court (Městský soud) pending extradition to Slovakia in connection with the above proceedings and conviction.

On 5 January 2006 the Minister of Justice of the Czech Republic allowed the applicant’s extradition but at the same time suspended its implementation pending the outcome of unrelated criminal proceedings against him in the Czech Republic and, potentially, the service of his sentence imposed in those proceedings.

Later in 2006 the Czech courts found the applicant guilty and sentenced to ten years’ imprisonment, following which a new decision was taken to suspend his extradition to Slovakia pending service of this sentence.

According to the applicant, between 3 April 2005 and 14 May 2007 ‒ while still detained in the Czech Republic ‒ he had asked the Czech prison authorities four times to provide him with Slovak criminal legislation, but to no avail. In support of this allegation, he submitted four original handwritten requests. These indicate neither any addressee nor anything to show that they were actually submitted and duly received.

On 25 April 2005 the applicant requested that he be served with a copy of the firstinstance judgment. So he was, on 24 May 2005, albeit with no instructions (poučenie) regarding any possible remedies available to him in the specific circumstances of his case.

On 30 May 2005 the applicant made a submission to the Žilina Regional Court formulated as an appeal, only to have it dismissed by the Supreme Court of Slovakia on 22 June 2005 as out of time.

In that respect, the Supreme Court observed that the applicant had been convicted in his absence, that the conviction had become final and binding and that, under the Code of Criminal Procedure applicable at that time (Law no. 141/1961 Coll., as amended - “the 1961 CCP”), persons convicted in their absence by a final and binding judgment had no right of appeal.

At the same time, the Supreme Court noted that the applicant was at liberty to assert his rights by way of an application for a complaint in the interest of the law (sťažnosť pre porušenie zákona) to be lodged on his behalf by the Prosecutor General or the Minister of Justice and by a request for reopening of proceedings (obnova konania).

According to the applicant, a written version of the Supreme Court’s decision of 22 June 2005 was not served on him until 5 October 2011.

However, according to a postal delivery confirmation slip submitted by the Government, which bears the applicant’s signature, that decision was served on and received by him on 25 July 2005.

On 19 June 2006 the applicant made a request for reopening of proceedings under the Code of Criminal Procedure applicable at that time (Law no. 301/2005 Coll., as amended ‒ “the 2005 CCP”) (see paragraph 35 below), which he and his lawyer amended on 11 July 2006 and 3 May 2010, respectively. They submitted that the applicant had only learned about the events underlying the charges from television reports; that he had not been present at the crime scene; that at the request of one of his associates he had only acted as a lookout nearby; that at the time of the impugned events he had not known the remaining four co-accused; that they had implicated him to serve their own interests; and that he had left Slovakia in fear for his life after he had learned that two of his co-accused had been planning to “take out” a witness.

In addition, the applicant submitted that at no stage of the proceedings had he been heard, and that although legal representation was mandatory, he had had none at the pre-trial stage of the proceedings, which was in violation of his right to a fair trial under Article 6 of the Convention.

Moreover, he argued that the sentence had been disproportionate to his actual involvement, and that the submissions of A. made at pre-trial stage should be reexamined before a court.

In terms of new evidence, the applicant identified a fresh witness and asked that he undergo polygraph testing, and he requested a face-to-face confrontation (konfrontácia) with the other co-accused.

The request was dismissed by the Regional Court in a public session (verejné zasadnutie) held on 19 May 2010 and, following the applicant’s interlocutory appeal (sťažnosť), by the Supreme Court on 1 February 2011.

Both courts noted that the applicant was serving a ten-year sentence in the Czech Republic, which was why he could not be present in person. Under the applicable statutory rules, a reopening of proceedings would be warranted only if there was new evidence that could bring about a different outcome. Although the applicant’s testimony would constitute evidence which was new, in view of the evidential situation as a whole, no other outcome could be expected.

The courts also concluded that, since the witness identified by the applicant had refused to give evidence at the original trial, his testimony did not constitute new evidence, nor would there be any new evidence as a result of the face-to-face confrontation. Moreover, results of polygraph testing were not recognised as evidence under the 2005 CCP.

Lastly, it was not new to the court that the applicant had lacked legal representation at the pre-trial stage. However, any objection in this respect should have ‒ but had not ‒ been raised by his State-appointed lawyer at the trial stage and on appeal.

There were therefore no grounds for reopening the proceedings.

Meanwhile, the applicant’s conviction and sentencing by the Czech courts had been recognised in Slovakia with a view to having the applicant serve the remainder of his sentence there.

The applicant’s extradition was implemented and he was actually transferred to Slovakia on 19 November 2010.

The Slovakian courts then commuted the ten-year sentence imposed on the applicant in the Czech Republic to two years and ten months because, in combination with the twelve and a half year sentence previously imposed in Slovakia, the overall penalty was in excess of that permitted by statute.

The applicant is now serving the reduced sentence in Slovakia.

On 20 March 2011 the applicant lodged a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) with the Constitutional Court (Ústavný súd). At the same time, he requested that a legal-aid lawyer be appointed to represent him.

As for the substance, the applicant relied on Article 6 of the Convention and challenged the dismissal of his request for reopening of proceedings (see paragraphs 19 and 20 above) arguing that he had never been heard, that he had not had legal representation at the pre-trial stage of the proceedings ‒ despite such representation being mandatory ‒ and that the principle of equality of arms had been disregarded.

On 15 April 2011 the Constitutional Court declared the complaint inadmissible, essentially relying on its doctrine that the application of a statute in judicial proceedings in a manner consistent with the applicable procedural rules cannot amount to a violation of fundamental rights and freedoms. The complaint was thus manifestly ill-founded and there was no purpose in examining the applicant’s legal-aid request.

On an unspecified date the applicant also requested protection of his rights by means of an appeal on points of law (dovolanie) to be lodged on his behalf by the Minister of Justice.

In a letter of 6 October 2011 the Ministry informed him that his case was not amenable to the temporal application of the rules of the 2005 CCP on appeals on points of law and that, therefore, no such appeal was available.

The applicant also requested leave to appeal against the judgment of 4 March 2002 outside the time-limit. His request was dismissed by the Supreme Court as unfounded on 20 October 2011.

Article 127 reads:

“1. The Constitutional Court shall decide on complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.

If the Constitutional Court finds a complaint to be justified, it shall deliver a decision stating that the person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash that decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the [person’s] rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order that authority to refrain from violating the [person’s] fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation.

In its decision on a complaint, the Constitutional Court may grant appropriate financial compensation to a person whose rights under paragraph 1 have been violated.

The liability for damage or other loss of a person who has violated the rights or freedoms as referred to in paragraph 1 shall not be affected by the Constitutional Court’s decision.”

The implementation of the above provision of Article 127 of the Constitution is set out in more detail in sections 49 to 56 of the Constitutional Court Act (Law no. 38/1993 Coll., as amended). Pursuant to its section 53(3):

“A constitutional complaint shall be lodged within a period of two months from the date on which the decision in question has become final and binding or on which a measure has been notified or on which a notice of other interference has been given. As regards the measures and other interferences, the above period shall commence when the complainant could have become aware of them.”

The relevant provisions of the 1961 CCP are summarised in Šupák v. Slovakia ((dec.), no. 4973/03, 23 February 2010).

The 2005 CCP entered into force on 1 January 2006 and wholly replaced the 1961 CCP.

Under Article 62 § 1 submissions are always to be interpreted according to their content even if they have been given a misleading or erroneous heading. A similar provision existed under the 1961 CCP (Article 59 § 1).

The rules concerning proceedings against absent defendants are contained in Section (Oddiel) 5 of Chapter 7 (Hlava) in Part 3 (Časť).

Under these rules, convicted fugitives have the right to request, within a period of six months from the date on which they learned of their prosecution or conviction, but in any event within the applicable period of limitation, that their case be re-examined (opätovné prejednanie) by a court in their presence (Article 362 § 1).

If these conditions are met, the previous decision must be quashed and the case re-examined on the basis of the original bill of indictment (Article 362 § 2).

Requests for reopening of proceedings are governed by the provisions of Section 3 of Chapter 8 in Part 3.

In particular, an order to reopen proceedings concluded with the force of final and binding judgment may be issued if there emerge facts or evidence not known to the court in the original trial which ‒ either in themselves or in conjunction with facts and evidence known to the court at the original trial ‒ may result in a different decision as to the accused’s guilt or render the punishment imposed manifestly disproportionate to the gravity of the offence or the circumstances of the offender (Article 394 § 1).

In a decision of 7 November 2000 in appeal no. 6To 46/2000, the Supreme Court held that if a criminal trial against an absent defendant ended with a final and binding judgment, the guilty party had no right to have the judgment served on him or her and that, if he or she challenged that judgment by way of an appeal, the appeal was to be rejected as out of time.

In a judgment of 3 December 2002 in case no. III. ÚS 133/02, the Constitutional Court found that a criminal court had breached Article 6 §§ 1 and 3 (b) and (c) of the Convention in that it had tried and convicted the complainant in absentia without having properly established whether or not he could be considered a fugitive.

The Constitutional Court quashed the conviction, remitted the case to the criminal court for re-examination, ordered the complainant’s immediate release, and awarded him compensation.

As regards the statutory two-month period for introducing a complaint, the Constitutional Court held specifically that this period may only commence once the contested decision has been properly served on the complainant and that, as long as this is not the case, the period may not commence (see decision of 23 October 2002 published in the Collection of Judgments and Decisions of the Constitutional Court under no. 163/2002 and also the admissibility decisions of 16 September and 15 October 2003 in unrelated cases nos. III. ÚS 201/03 and III. ÚS 229/03).

In the context of complaints about judicial proceedings, the Constitutional Court has ‒ when determining compliance with the twomonth time-limit under section 53(3) of the Constitutional Court Act ‒ consistently considered irrelevant the dismissal of complainants’ requests for an extraordinary appeal to be filed on their behalf. It has instead held the date of the final effect of the contested judicial decisions to be relevant in that context (see, for example, decision of 28 February 2006 in the case no. IV. ÚS 42/06, with further references). A similar approach is taken with respect to terminated proceedings in relation to which a request for reopening which has been dismissed (see decision of 21 February 2008 in the case no. II. ÚS 84/08).


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Public hearing);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)

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

The applicant was born in 1987 and lives in Helsinki, Finland.

On 19 February 2007 the Harju County Court in Estonia convicted the applicant of murder. In the criminal proceedings T. was heard as a witness. In its judgment the domestic court dismissed the applicant’s argument that he had shot the victim in self-defence. The applicant was subsequently transferred to Finland to serve his prison sentence.

On 11 December 2008 V., the owner of the apartment where the applicant had committed the crime brought a civil action against the applicant before the Harju County Court. He claimed compensation for damage caused as a consequence of the offence (damaged chair which had been hit by the bullet, damaged or lost belongings (mostly various items used to wrap parts of the victim’s cut up body), damaged flooring after the police had cut out a piece of parquet with a bullet mark to serve as evidence, a lock cylinder removed for evidence, cleaning bills, unpaid utility bills) in the amount of 28,259 kroons (EEK) (corresponding to approximately 1,806 euros (EUR)). The plaintiff submitted to the court documentary evidence (material from the criminal case, photos, invoices, inventory list of the apartment attached to the contract between V. and the victim) in support of his claims.

On 14 January 2009 the County Court ruled that the action was accepted for proceedings and that the case was to be dealt with in simplified proceedings (lihtsustatud menetlus) under Article 405 § 1 of the Code of Civil Procedure (CCP) (Tsiviilkohtumenetluse seadustik). It also explained to the parties that if they wished to be heard, they would have to notify the court within fifteen days of the date of receiving the decision. The applicant was asked to provide the court with a written reply to the action.

On 8 April 2009 the applicant informed the County Court in writing that he did not object to accepting the action for proceedings but he contested the claim, arguing that he had not damaged or destroyed the items in question. He further contended that he had not committed murder but had shot the victim in self-defence; in so far as the alleged damage related to the collection of evidence, it had been caused by the police; the claims were unsubstantiated in part. He requested examination of the case at a court hearing and asked that he and two witnesses (T. and K. – Estonian and Finnish forensic experts) be summoned and questioned in court. He stated that he wished to explain that he had not caused the damage and had acted in self-defence. As to the witnesses, he also wished them to give evidence about his acting in self-defence.

On 7 May 2009 plaintiff V. replied in writing to the applicant’s submissions, stating that he did not deem it necessary for the applicant to be present in person at the court hearing. He asked the court to dismiss the applicant’s request for the summoning of witnesses, as these individuals would be unable to give testimony about the items in the apartment or their value, and their statements could not refute the findings of a final court decision. He also submitted additional evidence to the court (a photo of one of the items in question; a bank statement about the payment of utility bills; price lists to prove the cost of another damaged item and the cost of cleaning services).

On 8 July 2010 the County Court ruled that the case was to be examined in written proceedings (kirjalik menetlus) under Article 404 of the CCP. The court noted the plaintiff’s agreement to the case being examined in written proceedings and that the applicant wished to be heard. It then went on to explain that under Article 404 of the CCP a written procedure could be applied when the amount of the claim was under 50,000 kroons (EUR 3,196) and a party’s appearance in court was significantly hindered by a long distance or for any other good reason. It gave the parties a thirtyday time-limit from the date of receipt of the decision for making any written submissions. No appeal lay against this decision.

No submissions were made to the court within the thirty-day time limit.

By a judgment of 3 December 2010 the County Court adjudicated the case in simplified and written proceedings. The court noted in its judgment that it had also examined the material pertinent to the related criminal case and relied as documentary evidence on the statements made by T. in the criminal proceedings. Relying on the judgment in the criminal case, the County Court considered it established that the applicant had not acted in self-defence when he killed the victim. Based on the material of the criminal case as well as documentary evidence submitted by V., the County Court accepted V.’s claim in part, that is in the amount of EEK 22,337 (EUR 1,428, which amounted to 79% of the initial claim). The court found on the basis of the applicant’s submissions that accepting the claim was not justified in so far as it concerned the lock cylinder, unpaid utility bills and certain allegedly damaged items. It was noted in the judgment that an appeal lay to the Tallinn Court of Appeal and that the appeal could be examined in a written procedure unless examination at a court hearing had been requested in the appeal.

On 22 December 2010 the applicant filed an appeal against the County Court’s judgment. He complained that, although he had requested an oral hearing before the County Court, no hearing had been held. He had therefore been deprived of an opportunity to be examined and to explain his position, according to which he had caused no unlawful damage to the plaintiff’s property. He relied on Article 6 § 1 of the Convention and also referred to persons whose examination he had requested. He challenged the County Court’s reliance on the criminal court’s judgment and claimed that in a civil case it should be possible to challenge facts established in a criminal case.

On 7 January 2011 the Tallinn Court of Appeal refused to accept the applicant’s appeal. It noted that the County Court had examined the case in simplified proceedings (lihtmenetlus). In such circumstances, the Court of Appeal could only accept an appeal for examination if the County Court in its judgment had granted leave to appeal or a provision of substantive or procedural law had clearly been incorrectly applied or it was clear that the evidence had been wrongly assessed and this could have significantly influenced the court’s ruling. The County Court had not granted leave to appeal. The Court of Appeal did not find that in the case at hand it could be said that the County Court had clearly incorrectly applied a provision of substantive or procedural law or clearly wrongly assessed the evidence or breached the right to be heard (ärakuulamise õigus). The County Court had examined the matter under Article 405 § 1 of the CCP in simplified proceedings. Pursuant to Article 405 § 1 of the CCP, in such proceedings the court had to guarantee that the fundamental rights and freedoms and the essential procedural rights of the parties were observed and that the parties were heard (kohus kuulab menetlusosalise ära) if they so requested. However, for that it was not necessary for a court hearing (kohtuistung) to be conducted. On 8 July 2010 the County Court had ruled that the case was to be examined in written proceedings and had given the parties an opportunity to make written submissions. The applicant had thus been guaranteed an opportunity to present his position to the court. The Court of Appeal further noted that the applicant had not objected under Article 333 §§ 1 and 2 of the CCP to the County Court’s decision of 8 July 2010 whereby the court had ordered that the case be examined in simplified proceedings and requested the applicant to make his submissions in writing. Pursuant to Article 333 § 3 and Article 652 § 6 of the CCP (see paragraphs 19 and 20 below) the Court of Appeal could not therefore consider these arguments in the appellate proceedings. The Court of Appeal concluded that there was no legal basis for it to accept the applicant’s appeal for examination.

The applicant lodged an appeal against the Court of Appeal’s decision, arguing that by refusing to allow him a hearing the County Court had clearly violated procedural law and Article 6 § 1 of the Convention.

On 30 May 2011 the Supreme Court decided not to examine the appeal.


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

The applicant was born in 1966 and lives in Węglówka.

At about 5 p.m. on 26 January 2009 the applicant and his wife went by car from their home to another village. The applicant’s wife was driving. The car had been borrowed from the applicant’s friend. On a narrow section of the road they saw a police car trying to stop another car. The applicant’s wife, who apparently considered it an unsafe place to stop other cars, overtook the police vehicle and sounded the horn, though she claims to have done this by accident.

While being overtaken, the police officers noticed that the car driven by the applicant’s wife had no left rear light and that its rear registration plate was not lit. They decided to stop the car to inspect it.

They overtook the applicant and his wife, stopped the car and requested the relevant documents. They considered that the registration document of the car was partly illegible. According to the applicant, he read the contents of the registration document aloud to the officers. They tried to contact the Nowy Targ police station to confirm the identity of the driver but to no avail. The applicant and his wife spent about half an hour in the car at the side of the road. He then requested that they all drive to the police station because he wanted to speak to the officers’ supervisor. They all drove to the police station in Jabłonka, but there was no one there, so the police officers continued the inspection on the street outside.

They found that, apart from the light that did not work, the fire extinguisher in the car was too small. They wanted to fine the applicant’s wife 200 Polish zlotys (PLN). The applicant then told her: “do not sign anything for those beggars” (“Nie podpisuj nic tym dziadom”). The officers felt offended and one of them told the applicant that he would be arrested for insulting police officers.

According to the applicant, by that time the “routine” inspection had already lasted for about two hours, and he and his wife were getting nervous. His wife began to cry because the officers wanted to take her to the police station for questioning. The policemen repeated “this will cost a lot” each time they found a fault with the car. He therefore considered that they wanted him to bribe them and referred to them as “beggars”. According to the applicant, he was trying to defend his wife who, after two hours of intervention, was very anxious and upset. The officers claimed that the applicant had been disturbing their routine activities. As established by the domestic courts in the set of proceedings against the police officers, when one of the police officers had told the applicant that he would be arrested, the applicant pushed the police officer and started to run away.

As established by the domestic courts in the set of proceedings against the applicant, on the basis of the testimony of the policemen, after the comment made by the applicant the police officers tried to apprehend him, however he resisted arrest and moved a few steps back. Officer J.B. then forcefully put the applicant onto the ground and pressed down on him with his knee. The applicant continued to resist and try to get away and then kicked J.B. several times in his left leg. The other officer, D.B., then used pepper spray against him. When the applicant calmed down he was handcuffed.

The applicant was subsequently taken to the police station. His wife informed the policemen that her husband had heart problems, so they called an ambulance. The doctor who came to the police station considered that the applicant needed to be examined in a hospital so he was taken to Nowy Targ. After examination he was placed in police custody (Policyjna Izba Zatrzymań). He was released the following day. Apparently after his release he was examined again in a hospital in Myślenice.

The relevant notes from the hospitals, in so far as they were legible, contained the following information.

Notes by the Nowy Targ Hospital on 26 January 2009 read:

“Skin bruising on the right hand. Chemical burn to the right eye.”

A document dated 27 January 2009 confirming the applicant’s release from the Myślenice Hospital read:

“He claims that yesterday he was beaten up by the police officers who used pepper spray on him. Skin bruising on the right hand, chemical burn to the right eye, reddish conjunctivitis in the right eye.”

The applicant also submitted a copy of a medical certificate requesting that he be examined by an ophthalmologist, because of “burns from pepper spray”. The note was marked “urgent” but bore no date.

On 28 January 2009 the applicant lodged a complaint about his arrest with the Nowy Targ District Court (“the District Court”). He submitted that he had been apprehended by force and put onto the ground, that the police had used a whole container of pepper spray and that he had many scratches and bruises. He had been released from the police custody facility at about midday and let out by the back door without a jacket or any money. He had had to walk until he had found a taxi driver who had agreed to give him a lift and call his wife, who had apparently been waiting at the police station since 10 a.m. and had had no idea that he had been released and let out by the back door.

On 4 February 2009 the District Court refused to allow the applicant’s complaint. It found that in his complaint he had presented “his own version of events” and that his arrest had been lawful because “although there was no fear that he might go into hiding there was a reasonable suspicion that he might influence the testimony of a witness to the events in question”. The court also considered that at the moment of the arrest there were grounds to suspect the applicant of having committed the offence referred to in Article 226 § 1 of the Criminal Code and there were grounds to bring proceedings against him in an expedited manner.

Having examined the grounds, legality and appropriateness of the applicant’s arrest, the court found no shortcomings. It appears that the court did not hear evidence from any witnesses; it based its findings on a note made by the police and the arrest and examination records.

The court did not refer to the applicant’s allegations as regards the use of excessive force by the police.

On 22 February 2009 the police lodged an indictment against the applicant with the District Court. He was charged with offending police officers on duty and breaching the personal inviolability of a police officer by kicking him. On 8 April 2009 in his reply to the bill of indictment, when describing the “kicking” he stated that these could have been involuntary movements as he had been pushed to the ground and pressed down on with a police officer’s knee and pepper spray had been directed into his face. He submitted that he had not intended to hit anybody.

On 28 May 2009 the District Court found the applicant guilty as charged and conditionally discontinued the proceedings against him. The court held that in his statements the applicant had not actually denied kicking the police officer J.B. as he could not rule out that he had made the movements with his legs involuntarily, without the intention of hitting anybody. He was also ordered to pay PLN 200 to charity and the costs of the proceedings.

On 24 July 2009 the applicant appealed. He submitted that he did not feel guilty; on the contrary, he had been a victim. He also considered that he could not have violated anybody’s personal inviolability because he had been pressed against the ground and two officers had been sitting on his back trying to handcuff him.

On 8 September 2009 the Nowy Sącz Regional Court quashed the first-instance judgment and discontinued the proceedings, finding that the prohibited acts committed by the applicant had not constituted offences because the resulting harm to the public was insignificant (znikoma szkodliwość społeczna czynu).

On 28 January 2009 the applicant reported the two police officers who had arrested him on 26 January 2009 to the Nowy Targ District Prosecutor for abuse of power.

On 25 February 2009 the District Prosecutor opened an investigation into their alleged abuse of power.

On 11 March 2009 the applicant and his wife were questioned. On 9 April 2009 the prosecutor questioned officers D.B. and J.B.

On 16 April 2009 the District Prosecutor discontinued the investigation, finding that no offence of abuse of power had been committed. Referring to the relevant provisions of domestic law, in particular the 1990 Police Act, the prosecutor found that the police had had the right to use force because “the applicant had not obeyed their orders, had behaved nervously and had tried to run away”.

The applicant appealed. He argued, among other things,officers had apprehended him for no legal reason. The applicant admitted that he had been nervous because of the inspection which had lasted for about two hours, but considered that this could not have been the basis for his arrest. He further submitted that the officers had used excessive force, inappropriate in the circumstances; they had put him onto the ground with his face down and had sat on his back and used pepper spray to incapacitate him. He had had injuries afterwards and had to take over a month’s sick leave. He also referred to the circumstances of his release from the police station and the fact that his wife, who had been waiting there for him, had not been informed that he had left by the back door.

On 12 August 2009 the District Court upheld the challenged decision discontinuing the investigation. It found that the applicant had again repeated his version of events which the prosecutor had found not to be credible. The court did not refer in any way to his submissions as regards his injuries. It found that the “circumstances of the applicant’s arrest [had already been] examined because the applicant had complained about his arrest and his complaint [had been] dismissed”. The court further held that “it had been reprehensible not to have informed the applicant’s wife of the applicant’s release but this had not constituted any offence”.


MANDIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA

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

Ms Mara Mandić and Mr Krsto Bošković are Serbian nationals who were born in 1948 and 1956 respectively. Mr Strahinja Starčević is a citizen of Bosnia and Herzegovina who was born in 1937. Mr Milija Vlahović is a citzen of Bosnia and Herzegovina and a national of Serbia who was born in 1937. All the applicants live in Serbia.

Mr Strahinja Starčević was represented before the Court by Mr D. Kalaba, a lawyer practising in Sarajevo.

The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms M. Mijić.

The Serbian Government, having been informed of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), indicated that they did not wish to exercise that right.

The applicants or their spouses were officers of the JNA, the armed forces of the former Socialist Federal Republic of Yugoslavia (“the SFRY”). The present case concerns their attempts to repossess their pre-war flats in Sarajevo.

Practically all flats in the former SFRY were part of the system of “social ownership”. They were generally built by socially owned enterprises or other public bodies for allocation to their employees, who became “occupancy right holders”. All citizens of the SFRY were required to pay a means-tested contribution to subsidise housing construction. However, the amount an individual had contributed was not amongst the legal criteria taken into account with regard to waiting lists for the allocation of such flats.

On 6 January 1991 JNA members were offered the opportunity to purchase their flats at a discount on their market value (see the Military Flats Act 1990, Zakon o stambenom obezbjeđivanju u Jugoslovenskoj narodnoj armiji, Official Gazette of the SFRY no. 84/90). Between 1981 and 1989 the applicants, or their spouses, were allocated military flats in Sarajevo which they later purchased under the terms of the Military Flats Act 1990.

On 18 February 1992 Bosnia and Herzegovina suspended the sale of military flats on its territory (see the Suspension on the Sale of Flats Decree 1992, Uredba o privremenoj zabrani prodaje stanova u društvenoj svojini, Official Gazette of the Socialist Republic of Bosnia and Herzegovina no. 4/92). The Decree was respected in what is today the Federation of Bosnia and Herzegovina, and those who had purchased military flats located in that Entity could not register their ownership and remained, strictly speaking, occupancy right holders (a purchase contract does not of itself transfer title to the buyer under domestic law).

When the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, the applicants, or their spouses, continued their military careers in the VJ forces and left Sarajevo. They were thereafter allocated tenancy rights of unlimited duration on military flats in Serbia, which some of them even purchased later.

During the war, the local armed forces (namely, the ARBH, HVO and VRS forces) assumed nominal control of all non-privatised military flats on the territory under their respective control (Zakon o preuzimanju sredstava bivše Socijalističke Federativne Republike Jugoslavije u svojinu Republike Bosne i Hercegovine, Official Gazette of the Republic of Bosnia and Herzegovina nos. 6/92, 13/94, 50/95 and 2/96; Odluka o preuzimanju vojnostambenog fonda JNA, Official Gazette of the Republika Srpska no. 16/92; Zakon o sredstvima i finansiranju Armije Republike Bosne i Hercegovine, Official Gazette of the Republic of Bosnia and Herzegovina nos. 6/93, 17/93 and 13/94; Odluka o utvrđivanju namjene i prenošenju prava upravljanja i korištenja sredstvima bivše Socijalističke Federativne Republike Jugoslavije, koje je koristila bivša JNA, a koja se nalaze na području Federacije Bosne i Hercegovine; Official Gazette of the Republic of Bosnia and Herzegovina no. 24/96). Although on 1 January 2006 those forces merged into the armed forces of Bosnia and Herzegovina, non-privatised military flats are still under the nominal control of the Entities.

A more detailed background concerning socially owned flats, military flats and the involvement of foreign armed forces in the 1992-95 war in Bosnia in Herzegovina is provided in Đokić v. Bosnia and Herzegovina, no. 6518/04, §§ 5-17, 27 May 2010 and Mago and Others v. Bosnia and Herzegovina, nos. 12959/05, 19724/05, 47860/06, 8367/08, 9872/09 and 11706/09, §§ 5-8, 3 May 2012.

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

In 1982 the applicant’s husband, a JNA officer, was allocated a military flat in Sarajevo.

On 11 February 1992 the applicant’s husband bought that flat under the terms of the Military Flats Act 1990 and paid the full price in the amount of 190,385 Yugoslav dinars.

When the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, the applicant’s husband continued his military career in the VJ forces.

On 15 September 1998 the applicant’s husband applied to the competent domestic authorities to have the flat in Sarajevo restored to him. After her husband’s death, the applicant continued those proceedings (in accordance with the Housing Act 1984, which is still in force, spouses share occupancy rights).

On 26 September 2000 the Ministry of Defence of the Federation of Bosnia and Herzegovina allocated the flat to H.N., a member of the ARBH forces.

Following two remittals on procedural grounds, on 27 October 2003 the application for restitution was rejected pursuant to section 3a of the Restitution of Flats Act 1998.

On 12 July 2004 the competent Ministry of the Sarajevo Canton upheld the first-instance decision of 27 October 2003. On 28 September 2006, following an application for judicial review, the Sarajevo Cantonal Court (“the Cantonal Court”) upheld the second-instance decision.

On 1 December 2010 the applicant was allocated tenancy right of unlimited duration on a military flat in Belgrade.

It would appear that the applicant has not applied for compensation under section 39e of the Privatisation of Flats Act 1997 (see paragraph 54 below).

In 1988 the applicant, a JNA medical officer, was allocated a military flat in Sarajevo.

On 23 December 1991 the applicant bought that flat under the terms of the Military Flats Act 1990 and paid the full purchase price in the amount of 701,038 Yugoslav dinars.

When the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, he continued his military career in the VJ forces and left Sarajevo. His military service was terminated in 2002.

On 2 January 1997 the Ministry of Defence of the Federation of Bosnia and Herzegovina allocated the flat to N.A., a member of the ARBH forces.

On 11 December 1997 the applicant was allocated tenancy right of unlimited duration on a military flat in Belgrade. On 2 September 1998 he purchased that flat.

On 19 January 1998 the applicant applied for the restitution of his flat in Sarajevo.

Following one remittal on procedural grounds, on 11 February 2004 his application was rejected pursuant to section 3a of the Restitution of Flats Act 1998.

On 23 July 2004 the competent Ministry of the Sarajevo Canton upheld the first-instance decision of 11 February 2004.

On 23 February 2007 the Cantonal Court, following an application for judicial review, upheld the second-instance decision of 23 July 2004. On 8 September 2009 the Supreme Court rejected the applicant’s request for extraordinary review of that judgment (zahtjev za vanredno preispitivanje sudske odluke).

On 29 December 2009 the applicant lodged a constitutional appeal against the Supreme Court’s decision.

On 10 November 2010 the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) rejected his appeal as incompatible ratione materiae since it held that the Supreme Court’s decision had not involved an examination of the substance of the applicant’s claims but only of whether the procedural requirements for an extraordinary review of the Cantonal Court’s judgment had been met.

On 2 September 2003 the restitution commission set up by Annex 7 to the Dayton Peace Agreement, before which the applicant pursued parallel proceedings, held that the applicant was neither a refugee nor a displaced person within the meaning of Annex 7 and declined jurisdiction. On 21 December 2005 the restitution commission rejected the applicant’s request for reconsideration of his claim.

On 9 February 2010 the Court of Bosnia and Herzegovina, following an application for judicial review, quashed the decisions of 2 September 2003 and 21 December 2005 and remitted the case for reconsideration. In the meantime, however, the restitution commission had ceased to exist and its cases were taken over by the competent municipal housing authority. It would appear, however, that no decision was taken as regards the applicant’s request following remittal.

In 1989 the applicant, a JNA officer, was allocated a military flat in Sarajevo.

On 11 February 1992 he bought that flat under the terms of the Military Flats Act 1990 and paid the full price in the amount of 424,363.5 Yugoslav dinars.

When the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, the applicant continued his military career in the VJ forces.

On 10 February 1997 the Ministry of Defence of the Federation of Bosnia and Herzegovina allocated the flat to H.H., a member of the ARBH forces.

On 27 March 1997 the applicant was allocated tenancy right of unlimited duration on a military flat in Novi Sad, Serbia. On 22 May 1997 he purchased that flat.

On an unknown date he applied to the competent domestic authorities to have his flat in Sarajevo restored to him. On 3 November 2000 his application was rejected pursuant to section 3a of the Restitution of Flats Act 1998.

On 30 May 2001 the Ministry of the Sarajevo Canton upheld the first-instance decision of 3 November 2000. It would appear that the applicant did not appeal against that decision.

On 16 April 2002 the restitution commission set up by Annex 7 to the Dayton Peace Agreement, before which the applicant pursued parallel proceedings, held that the applicant was neither a refugee nor a displaced person within the meaning of Annex 7 and declined jurisdiction. On 19 November 2002 the restitution commission rejected the applicant’s request for reconsideration of his claim.

In 1981 the applicant, a JNA officer, was allocated a military flat in Sarajevo.

On 14 February 1992 the applicant bought that flat under the terms of the Military Flats Act 1990 and paid the full price in the amount of 355,965 Yugoslav dinars.

When the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, he continued his military career in the VJ forces. His military service was terminated in September 1992.

On 9 April 1997 the Ministry of Defence of the Federation of Bosnia and Herzegovina allocated the flat to S.Č., a member of the ARBH forces.

On 15 April 1998 the applicant applied to the competent domestic authorities to have his flat in Sarajevo restored to him. Following two remittals on procedural grounds, on 8 October 2003 his application was rejected pursuant to section 3a of the Restitution of Flats Act 1998.

On 28 April 2004 the Ministry of the Sarajevo Canton upheld the first-instance decision. On 26 January 2007, following an application for judicial review, the Cantonal Court upheld the second-instance decision.

On 14 October 2009 the Constitutional Court rejected the applicant’s constitutional appeal and upheld the impugned decisions.

On an unknown date the applicant was allocated tenancy right of unlimited duration on a military flat in Serbia.

It would appear that he has not applied for compensation under section 39e of the Privatisation of Flats Act 1997 (see paragraph 54 below).

On 22 December 1995 all purchase contracts concluded under the Military Flats Act 1990 were declared void (Zakon o preuzimanju sredstava bivše Socijalističke Federative Republike Jugoslavije u svojinu Republike Bosne i Hercegovine, Official Gazette of the Republic of Bosnia and Herzegovina nos. 6/92, 13/94, 50/95 and 2/96). Thereafter, the legislation regulating this matter, the Privatisation of Flats Act 1997 (Zakon o prodaji stanova na kojima postoji stanarsko pravo, Official Gazette of the Federation of Bosnia and Herzegovina nos. 27/97, 11/98, 22/99, 27/99, 7/00, 32/01, 61/01, 15/02, 54/04, 36/06, 51/07, 72/08 and 23/09) and the Restitution of Flats Act 1998 (Zakon o prestanku primjene Zakona o napuštenim stanovima, Official Gazette of the Federation of Bosnia and Herzegovina nos. 11/98, 38/98, 12/99, 18/99, 27/99, 43/99, 31/01, 56/01, 15/02, 24/03, 29/03 and 81/09), underwent numerous changes and all such contracts were declared legally valid. However, two categories of buyer are not entitled to repossess their flats and to register their title to them (see section 39e of the Privatisation of Flats Act 1997 and section 3a of the Restitution of Flats Act 1998). The first category concerns those who served in foreign armed forces after the 1992-95 war. The second concerns those who acquired occupancy or equivalent rights to a military flat in a successor State of the SFRY, like the present applicants. However, they are now entitled to compensation under section 39e of the Privatisation of Flats Act 1997. While the compensation had initially been envisaged as the refund of the amount paid for the flats in 1991/92 plus interest at the rate applicable to overnight deposits, on 30 March 2012 the Constitutional Court (decision no. U 15/11) declared that method of determining the amount of compensation unconstitutional and ordered the Parliament of the Federation of Bosnia and Herzegovina to amend it in line with Đokić (cited above, §§ 63 and 72).

For a more detailed analysis of the relevant domestic law and practice and of the relevant international documents, see Đokić (cited above, §§ 35-45) and Mago and Others (cited above, §§ 53-69).

It has no longer been possible to acquire occupancy rights in Serbia since 1992 (see section 30(1) of the Housing Act 1992, Zakon o stanovanju, Official Gazette of Serbia nos. 50/92, 76/92, 84/92, 33/93, 53/93, 67/93, 46/94, 47/94, 48/94, 44/95, 49/95, 16/97, 46/98, 26/01, 101/05 and 99/11). Instead, current and retired members of the armed forces and current and retired staff of the Ministry of Defence have thereafter been entitled to equivalent tenancy rights of unlimited duration on military flats or, in case of a lack of suitable flats, mortgage loans co-financed by the State on condition that they or their spouses or children do not have occupancy or equivalent rights to a flat in any of the former Republics of the SFRY (the Military Housing Ordinance 1994, Pravilnik o načinu i kriterijumima za rešavanje stambenih pitanja zaposlenih u Saveznom ministarstvu za odbranu i Vojsci Jugoslavije, Official Gazette of the Federal Republic of Yugoslavia nos. 30/94, 39/94 and 6/96; the Military Housing Ordinance 1995, Pravilnik o načinu i kriterijumima za davanje stanova u zakup i dodeljivanje stambenih zajmova za rešavanje stambenih pitanja zaposlenih u Vojsci Jugoslavije, Official Gazette of the Federal Republic of Yugoslavia nos. 5/95, 18/96, 56/96, 58/96, 42/97 and 9/00; the Military Housing Ordinance 2002, Pravilnik o načinu, kriterijumima i merilima za davanje stanova u zakup i dodeljivanje stambenih zajmova za rešavanje stambenih pitanja zaposlenih u Ministarstvu odbrane i Vojsci Srbije i Crne Gore, published in an internal gazette of the Ministry of Defence nos. 20/02, 36/03, 34/04 and 29/05; the Military Housing Ordinance 2005, Pravilnik o rešavanju stambenih pitanja u Ministarstvu odbrane, published in an internal gazette of the Ministry of Defence nos. 38/05, 16/08, 26/08 and 39/08; and the Military Pensioners Ordinances 1994 and 2010, Pravilnik o rešavanju stambenih potreba korisnika vojnih penzija, published in an internal gazette of the Ministry of Defence nos. 31/94, 19/95, 26/96, 1/97 and 45/08 and Pravilnik o rešavanju stambenih potreba korisnika vojnih penzija, published in an internal gazette of the Ministry of Defence no. 34/10). Therefore, those who occupied military flats in Bosnia and Herzegovina before the war have as a rule been required to give up their rights to those flats in order to qualify for a military flat or a loan in Serbia or Montenegro (see sections 6-7 and 87 of the Military Housing Ordinance 1994; sections 7-8 and 74 of the Military Pensioners Ordinance 1994; and sections 6-7 and 85 of the Military Housing Ordinance 1995).

Section 39(2) of the Housing Act 1992 provides that the holder of a tenancy right of unlimited duration in respect of a flat may purchase that flat under the same conditions as an occupancy right holder.


Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant, Mr Ilir Dybeku, is an Albanian national, who was born in 1971 and is serving a prison sentence in the Kruja prison, a special establishment for mentally ill prisoners. He is represented before the Court by his father, Mr Shyqyri Dybeku.

summarised as follows.

On 25 September 2006 the applicant lodged an application with this Court (no. 41153/06). The applicant, who suffered from chronic paranoid schizophrenia, was convicted of voluntary homicide and sentenced to life imprisonment by a final decision of the Supreme Court of 2 March 2004. The domestic courts relied on a medical report to conclude that the applicant could stand trial. The applicant was serving his sentence in the Peqin high security prison, when he complained before this Court about the inappropriate conditions of detention, the inadequacy of the medical treatment and the unfairness of domestic proceedings.

On 18 December 2007 the Court delivered its judgment in that case (Dybeku v. Albania, no. 41153/06, 18 December 2007). It found a breach of Article 3 of the Convention: the applicant’s state of health was such that he had been subjected to inhuman and degrading treatment on account of the inappropriate conditions of detention and the inadequacy of the medical treatment he had received since 2002. No other violation having been found, the Court further made general indications under Article 46 of the Convention to the effect that the Government should “secure appropriate conditions of detention and adequate medical treatment, in particular, for prisoners, like the applicant, who need special care owing to their state of health” (paragraph 64 of the judgment).

On 13 June 2008 the applicant was transferred to the Kruja prison, a special establishment for mentally ill prisoners.

On 6 February 2009 the Kruja special establishment informed the applicant’s family that the applicant was under continuous supervision by doctors, nurses as well as by a psychiatrist. He was given medical treatment every day. This was supported by extracts of medical records for a defined period of time.

On 1 February 2010 the Ministry of Justice informed the applicant’s father that the applicant received psychiatric treatment in addition to medical treatment. Biochemical tests and imaging examination had also been carried out. The Ministry invited the father to appoint a psychiatrist of his choosing in accordance with the law.

On 29 October 2010 the Ministry of Justice informed the applicant’s father that the applicant was undergoing necessary treatment at the Prisons’ Hospital Centre in Tirana. X-ray computed tomography scan (CT scan) of the head as well as magnetic resonance imaging (MRI) had been carried out.

On 24 November 2010 the Kruja special establishment provided an update of the applicant’s health, stating that the applicant was quiet, not showing any psychiatric disorders, had regularly received medicines (risperidone 2mg 2x1 tablet, parkopan 5 mg 2x1 tablet and diazepam 5 mg 2 tablets) and psychiatric treatment and had been taken to the Prisons’ Hospital Centre in Tirana, as necessary.

On 20 February 2013 the Kruja special establishment confirmed to the applicant’s father that the applicant received risperidone 2mg 2x1 tablet and parkopan 5 mg 2x1.

On 12 September 2009, relying on the Dybeku judgment (cited above), the applicant sought to review his conviction.

On 30 April 2010 the Supreme Court rejected the request as raising no grounds of appeal.

On an unspecified date, most likely in 2011, the applicant appealed against the prosecutor’s decision not to institute criminal proceedings against the doctors, whose medical report had been relied upon by the Supreme Court in 2004 for his conviction.

On 20 April 2011 the Durrës Court of Appeal upheld a lower court’s decision not to institute criminal proceedings against the doctors.

On 9 May 2011 the applicant appealed against that decision to the Supreme Court.

On 22 February 2013 the Supreme Court informed the applicant that his appeal was still pending.

In its 1092nd meeting (14 and 15 September 2010), the Ministers’ Deputies noted, as regards individual measures for the execution of the Dybeku judgment (cited above), that: (i) in June 2008 the applicant had been transferred to the Kruja special establishment which offered specialised treatment for prisoners suffering from mental disorders; (ii) the People’s Advocate (Ombudsperson), an independent institution which also monitors the conditions of detention of prisoners, reported that the applicant had been provided with the necessary medicines and his state of health was improving; (iii) no other individual measure seemed necessary in those circumstances.

In its 1164th meeting (5 and 7 March 2013), the Minister’s Deputies noted, as regards individual measures for the execution of the Dybeku judgment (cited above), that: (i) the applicant had been placed in appropriate conditions of detention with medical treatment adapted to his state of health; (ii) the People’s Advocate’s report of 19 October 2012 confirmed the above assessment; and (iii) the individual measures were thereafter connected to the implementation of general measures required to guarantee appropriate medical treatment to the applicant and to all detainees in a similar situation. The Ministers’ Deputies’ decision of 7 March 2013 noted, in so far as relevant, that:

“1. according to the information available, the applicant ...ha[s] currently access to the medical treatment required by [his] state of health;”

According to the decision, as regards the adoption of general measures, the Ministers’ Deputies:

“2. deplored nevertheless, having regard to the age of the case[s] and the seriousness of the violations in issue, that the authorities have not yet submitted detailed information to the Committee regarding the measures taken to ensure that the applicant[s], as well as all other detainees, would in the future be able to access medical treatment necessary for their state of health;

urged the Albanian authorities to submit to the Committee, without any further delay, an updated action plan containing all the missing information including, in particular, detailed information on the legal regime and practice governing the availability of medical treatment for detainees, so as to enable the Committee to assess the status of execution of these two judgments as soon as possible.”