Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Erik Møse;Julia Laffranque;Khanlar Hajiyev

The applicant was born in 1966 and lives in Tallinn.

On 10 October 2003 the applicant lodged an action with the Harju County Court (previously named the Tallinn City Court) for divorce and division of joint property including a number of real estates and shares of companies.

The defendant submitted his arguments to the court on 15 January 2004.

A preliminary hearing took place on 20 April 2004. An adjournment was requested because of the illness of the defendant’s lawyer. The applicant submitted a request concerning new evidence and interim measures.

On 9 November 2004 a preliminary hearing took place. The applicant submitted that she intended to supplement her action.

On 20 December 2004 the applicant submitted new arguments and a request concerning new evidence. On 5 January 2005 the defendant replied.

On 7 April 2005 a preliminary hearing took place.

On 22 August 2005 the applicant submitted a number of procedural objections and requests concerning new evidence, including a request to appoint an expert. On 2 September 2005 she requested to stay the proceedings.

On 13 September 2005 a preliminary hearing took place. As the defendant had failed to appear at the hearing, the examination of the case was adjourned.

On 25 October 2005 the defendant submitted additional evidence. On 11 November 2005 the applicant replied, submitted new arguments and a request concerning new evidence. On 11 January 2006 the defendant made further submissions.

On 17 January 2006 a preliminary hearing took place.

On 31 March and 24 August 2006 the applicant submitted new evidence, arguments and requests concerning new evidence, including a request to appoint an expert, and supplemented her action.

On 5 September 2006 a hearing took place. The applicant requested ordering an expert assessment. She had not yet submitted the list of the joint property, information about its value and relevant proof. The applicant objected to the defendant’s request that a partial judgment in respect of divorce be made.

On 15 September 2006 the Harju County Court delivered a partial judgment divorcing the marriage. The applicant appealed.

On 25 September 2006 she submitted a request for the removal of the judge and requests concerning new evidence.

On 7 May 2007 the Tallinn Court of Appeal dismissed the applicant’s appeal. On 25 July 2007 the Supreme Court refused the applicant leave to appeal.

On 20 December 2007 the applicant submitted a complete version of her claims that had been requested by the County Court since she had previously made numerous amendments to her initial claims. She also made a request concerning new evidence and an expert assessment. In the months to follow, written submissions were exchanged between the parties.

On 11 July 2008 the applicant submitted new arguments and requests concerning new evidence.

On 18 September 2008 the County Court ruled on an advance payment concerning an expert assessment.

On 10 October 2008 the applicant requested an interim judgment for the establishment of joint property. The defendant agreed. On 17 November 2008 the County Court requested the parties to submit the lists of property.

In April 2009 the parties exchanged submissions concerning the court expenses and the court ordered the parties to submit any unsubmitted evidence.

On 26 June 2009 the Harju County Court delivered an interim judgment on the composition of the joint property. Both the applicant and the defendant appealed. In September 2009 and January 2010 the parties exchanged submissions.

On 27 January 2010 a hearing took place before the Tallinn Court of Appeal which, on 16 February 2010, delivered a judgment partially granting the defendant’s appeal. Both parties lodged an appeal with the Supreme Court in respect of the partial judgment.

On 31 May 2010 the Supreme Court refused the parties leave to appeal and the partial judgment became final.

On 18 August 2010 the applicant supplemented her action and applied for interim measures.

On 19 August 2010 the County Court applied interim measures.

On 17 November 2010 the County Court ordered the applicant to make an advance payment related to expert assessments. On 21 December 2010 it ordered the assessments.

On 14 January 2011 the applicant submitted objections to the activities of the court, supplemented her action and submitted new evidence.

On 1 February 2011 the court warned the parties that they would be fined in case of failure to submit the required information to the experts. On 3 February 2011 the applicant submitted objections to the activities of the court and requested the removal of the expert. On 11 March 2011 the County Court dismissed the removal request.

On 3 May 2011 the County Court ordered the defendant to present the required documents to the expert.

On 9 May 2011 the applicant submitted an additional opinion and again requested the removal of the expert. The request was dismissed on 17 May 2011.

In May, August and September 2011 the County Court received expert assessments concerning the value of a number of real estates and of the shares of a company.

In September and November 2011 the parties exchanged proposals and submissions on the division of the property.

On 24 November 2011 the applicant requested the removal of the judge responsible for the case. This request was dismissed.

In December 2011 the applicant made further submissions and a request concerning new evidence. She also filed an objection to the court’s activities.

On 6 February 2012 the court dismissed the request concerning new evidence. The applicant filed an objection.

At a hearing of 8 March 2012 experts were heard. The applicant stated that she did not accuse the court or the defendant for the length of the proceedings and requested an adjournment of the hearing as she wished to obtain an estimation of the value of the forest on one of the real estates. The hearing was adjourned.

On 19 March 2012 the applicant submitted new requests concerning the real estate. On 21 May 2012 the court dismissed these requests and ordered the defendant to submit an estimation. The defendant requested an extension.

On 21 June 2012 the applicant submitted a supplementary opinion.

On 16 October 2012 the applicant submitted new requests.

A hearing was held on 15 November 2012.

On 21 January 2013 the Harju County Court made a judgment on the merits concerning the division of the joint property. Both parties appealed.

In March 2013 the parties exchanged submissions.

On 30 April 2013 the Tallinn Court of Appeal delivered a judgment. It partly granted the applicant’s appeal, dismissed the defendant’s appeal and partly amended the County Court’s judgment. Both parties lodged an appeal with the Supreme Court.

On 1 August 2013 the Supreme Court refused the parties leave to appeal.


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

Alvina Gyulumyan;Corneliu Bîrsan;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

The applicant was born in 1953 and lives in Bucharest.

He is a doctor with substantial experience, having been a general practitioner for more than eighteen years. In this capacity, he currently has his own private practice, with two employees. He also teaches at the Bucharest Faculty of Medicine and has authored several works in the field of general medicine.

In 2006 the applicant graduated from law school; one year later, he registered to become a lawyer, after having passed the annual entrance examination organised by the Bucharest Bar. On 18 December 2007 the Bucharest Bar issued a decision validating the results of the examination and declaring that the applicant was admitted to the Bar.

The Bucharest Bar further decided on 14 February 2008 to register the applicant as a trainee lawyer (avocat stagiar) as of 15 February 2008. A two-year traineeship period being an obligatory condition for obtaining a licence to practise as a lawyer, the applicant signed a traineeship agreement (contract de colaborare) with the B.P. private law firm. On 15 February 2008 the Bar approved the applicant’s traineeship within the firm.

On 13 March 2008 the applicant submitted a request to the Dean of the Bucharest Bar to be allowed to pursue his two-year traineeship (stagiu) in compliance with section 17 of Law no. 51/1995 regulating the legal profession, notwithstanding the fact that he simultaneously had his own private medical practice. He considered that “the medical profession was not incompatible with the dignity of the legal profession or the lawyers’ rules of conduct within the meaning of Rule 30 of the Rules governing the Legal Profession”.

On 20 March 2008, applying section 14 (b) and section 53 (2) (e) of Law no. 51/1995, the Bucharest Bar rejected the applicant’s request. In its decision the Bar held:

“the applicant’s request to practise simultaneously as a lawyer and as a doctor is dismissed, and the applicant must consequently opt for one of the two professions.”

On 21 April 2008 the applicant contested that decision before the National Bar Association. He challenged the reason for the dismissal of his request, which, citing section 14 (b), referred to ineligibility to practise as a lawyer for anyone who already pursued a “profession that infringes the dignity and the independence of the legal profession or is contrary to good morals”. He contended that his professional CV, including a Ph.D. in medicine, a career of teaching at the university and the authorship of several books on medicine, could on no account infringe the dignity of the legal profession. At the same time, he pointed to the fact that he was neither an employee nor a trader, as proscribed by the legislation regulating the activities of lawyers.

On 18 June 2008 the National Bar Association upheld the Bucharest Bar’s decision, this time on the basis of section 15 of Law no. 51/1995, which enumerated “exhaustively” the professions that were compatible with the profession of lawyer (see “Relevant domestic law” below). As the practice of medicine was not specified among those professions, the applicant’s request was dismissed.

That decision was contested before the Bucharest Court of Appeal.

In its reply to the applicant’s submissions, the respondent argued, firstly, that the combined interpretation of sections 14 and 15 of the Law led to the conclusion that no other profession could be practised in parallel with that of a lawyer, except for those restrictively enumerated under section 15; furthermore, the practice of two liberal professions at the same time was not permitted by the law, nor was it desirable, in view of the fact that each liberal profession required 100% dedication on the part of the person practising it.

On 20 January 2009 the court allowed the applicant’s claims, holding that section 14 (b) was not applicable, in so far as “the profession of doctor does not impinge on the independence of the profession of lawyer”. The court further held that any restriction on practising a profession must be expressly and unequivocally prescribed by law, which was not the case in this instance. Moreover, the Romanian Constitution protected the right to work, which could not be subject to any limitations, with a few exceptions expressly enumerated in section 53, such as national security reasons, protection of public order, health and public morals or protection of individual rights and freedoms, none of which was applicable in the applicant’s case.

Furthermore, the prohibition on practising as a lawyer while also practising as a doctor was not included in the text of section 14 (b) of Law no. 51/1995, which referred only to professions that infringed the dignity and the independence of the legal profession or were contra bonos mores.

The court further held that section 15 of the Law did not contain an exhaustive list of the professions compatible with the profession of lawyer, in spite of the National Bar Association’s interpretation of that provision to the effect that if the medical profession was not included in the text among the compatible professions, this meant, by converse implication, that it was not compatible with the profession of lawyer. The incompatible professions were enumerated exhaustively in section 14, and the profession of doctor was not among them.

The assertion that practising a liberal profession required total dedication and implicitly a lot of time on the part of the practitioner could not be taken into consideration for the assessment of the lawfulness of the decisions taken by the local and national Bars; not having enough time to devote to clients’ cases had nothing to do with the independence of the legal profession. The court thus confirmed the applicant’s right to practise both professions simultaneously, annulling the Bars’ decisions.

The National Bar Association appealed against that judgment to the High Court of Cassation and Justice. It argued that while section 14 of the Law listed the professions that were incompatible with the profession of lawyer in a generic manner, giving examples, section 15 regulated, strictly and restrictively, the exceptions that were allowed, among which the profession of doctor was not mentioned. At the same time, the simultaneous practice of both professions infringed the principle of the independence of lawyers. In wanting to practise both professions, the applicant demonstrated only his extreme mercantilism, as he “minimised the importance of these professions, treating them as mere sources of income”.

On 24 June 2009 the High Court allowed the appeal and dismissed the applicant’s request, holding that the combined interpretation of sections 14 and 15 led to the conclusion that the list of compatible situations was exhaustive and thus section 15 referred to the only professions that by law were compatible with that of a lawyer; the High Court pointed out that even if the provisions of Rule 30 of the Rules governing the Legal Profession, relied on by the applicant in his defence, also enumerated other situations of incompatibility and compatibility, they were of inferior rank to a law and therefore they could not contradict those of the law itself.

The relevant provisions of the Romanian Constitution read as follows:

“(1) The right to work shall not be restricted. Everyone has the free choice of his or her profession, trade or occupation, and workplace.”

“(1) The exercise of certain rights or freedoms may only be restricted by law, and only if necessary, as the case may be, for: the defence of national security, of public order, health or morals, or of citizens’ rights and freedoms; the conduct of a criminal investigation; or prevention of the consequences of a natural calamity, disaster or extremely severe catastrophe.

(2) Such restriction shall be ordered only if necessary in a democratic society. The measure shall be proportionate to the situation that caused it, shall apply without discrimination, and shall not impair the existence of such right or freedom.”

“(1) A person who meets the following conditions may be a member of a Bar in Romania:

(a) he or she is a Romanian citizen and a holder of civil and political rights;

(b) he or she is a law faculty graduate or a doctor of law (Ph.D.);

(c) he or she is not in one of the categories of ineligibility specified by this Law;

(d) he or she is medically fit to practise as a lawyer.

(2) Compliance with the condition in point (d) of subsection (1) above shall be proved by means of a medical certificate attesting that the person is in good health, issued on the basis of findings by a medical board constituted under the terms specified in the Rules governing the legal profession.”

“Practising the profession of lawyer shall be incompatible with:

(a) a salaried activity within a profession other than the legal profession;

(b) occupations affecting the dignity and independence of the legal profession or good morals;

(c) direct involvement in trading activities.”

“Practising the profession of lawyer shall be compatible with:

(a) the position of member of parliament or senator, or member of a local or county council;

(b) teaching activities, and offices in higher legal education;

(c) literary and publishing activities;

(d) the function of arbitrator, mediator, conciliator or negotiator, tax adviser, adviser on intellectual property, adviser on industrial property, licensed translator, administrator or liquidator in procedures of judicial reorganisation or liquidation, in accordance with the law.”

“(1) Admission to the profession shall be obtained on the basis of an examination organised by the Bar, under the provisions of this Law and the Rules governing the profession. (...)”

(2) The conditions for completing the traineeship and the rights and obligations of lawyers on probation, and of supervising lawyers and the Bar towards them, shall be regulated by the Rules governing the profession.

(3) The training term shall be suspended if the lawyer performs military service or is conscripted, if he or she is absent from the profession for good reasons, or if the professional guidance is terminated through no fault of the lawyer on probation. The training already completed shall be taken into consideration when calculating the completion of the term.

(4) After the training term is completed, the lawyer on probation shall take the examination to become a permanent lawyer.”

“(1) A Bar Council shall be composed of five to fifteen members, elected for a four-year term of office. The President and Vice-President of the Bar shall be included in that number.

(2) The powers of the Bar Council shall be as follows:

(e) to check and establish that the lawful requirements have been met as regards applications for admission to the profession, and to approve admission to the profession on the basis of an examination or an exemption from the examination; (...)”

“The Council of National Bar Associations shall have the following powers:

(o) it shall check, at the request of the persons concerned, that the decisions of the Bar Councils on admission to the profession are lawful and based on good grounds;

(p) it shall annul decisions by the Bar on grounds of unlawfulness, and settle complaints and legal disputes brought against decisions adopted by Bar Councils, in the circumstances specified by law and the Rules governing the profession; (...)”

The relevant parts of the Rules governing the Legal Profession read as follows:

“In order to be registered and to practise this profession, the lawyer must not be in one of the situations of incompatibility referred to in the law.”

“(1) The following are incompatible with the practice of the profession of lawyer, unless declared otherwise by a lex specialis:

(a) personal trading activities, performed with or without a licence;

(b) the status of associate in private companies such as a general partnership (societate în nume colectiv), a limited partnership or a partnership limited with shares (societate comercială în comandită simplă sau în comandită pe acțiuni).

(c) the status of manager of a limited partnership with shares private company (societate în comandită pe acțiuni);

(d) the status of CEO, sole manager or member of the board of directors of a private company such as limited liability or a joint-stock company (societate comercială cu răspundere limitată sau pe acțiuni).

(2) The lawyer may be an associate or partner in a limited liability or a joint- stock private company (societate comercială cu răspundere limitată sau pe acțiuni)

(3) The lawyer may be a member of the Board of a limited liability or a joint-stock private company, on condition that he/she brings this information to the Dean of the Bar [...]


No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-d - Obtain attendance of witnesses)

The applicant was born in 1970 and lives in Riga.

In 2000 a criminal investigation was conducted into suspected irregularities in customs procedures with respect to the transit of vehicles. As a result of these unlawful activities, it had been possible for third persons to legalise foreign goods (the vehicles) in Latvia using falsified documents.

Seven customs officials, including the applicant, were charged with exceeding their official powers or failing to fulfil their duties. Each of the officials had allegedly acted unlawfully at different stages of the customs procedures. The applicant was charged with negligence which had caused substantial harm to the State and public interest. This charge was brought in connection with the processing of documentation for a used semi-trailer.

Several witnesses were questioned during the pre-trial stage, including witness E.A., a Latvian national residing in Latvia, who had purchased one of the vehicles.

On 16 December 2005 the Riga Regional Court, acting as the court of first instance, found the applicant guilty and imposed on him a fine to the amount of five minimum monthly salaries.

With respect to the applicant, the court established that on 31 March 1999 at a customs control point he had acted contrary to the applicable regulations in the processing of documentation for the importation of the used semi-trailer.

In particular, the applicant had accepted a transit declaration from a person who had not been a declarant’s authorised representative. He had not verified whether the person submitting a power of attorney had been the person to whom it had been issued. The applicant had not verified whether the used semi-trailer had been in the customs zone. Further, he had not issued an administrative violation record on the non-compliance with the forty-eight hour time-limit for the delivery to the customs office of the used semi-trailer. Furthermore, the documentation processed had been incomplete.

The regional court relied on a report drawn up by the State revenue service, dated 24 March 2000. The report stated that the applicant had not complied with a number of applicable regulations.

Further, the court referred to the pre-trial statement of witness E.A. who was summoned to a court hearing but could not attend due to his hospitalisation. The court took note of a medical certificate to that effect.

E.A. had testified that he had purchased the semi-trailer at the beginning of 1999. He had come to the customs control point together with the vendor’s representative. The vendor’s representative had turned first to a customs representative and then to a customs officer who processed the documentation. The semi-trailer had not been at the customs warehouse and it could not have been inspected by the customs officer. According to the documentation, the customs clearance of the vehicle was carried out by the applicant.

After the statements were read out, the applicant’s defence asked the court to explain on what grounds a certified copy of the statements of E.A. was included in the case-file and where was its original. The request was upheld and the prosecutor provided a reply.

The court relied on a set of documentary evidence attesting to the fact that the documentation for the semi-trailer in question had been processed by the applicant and that the semi-trailer had not entered the customs territory.

The applicant appealed against the first instance court judgment.

At the appellate hearing on 8 January 2007, E.A. could not be summoned to the hearing because he was abroad at the time. The applicant requested that E.A. be summoned to the appeal proceedings.

The appellate court decided that this request be granted and E.A. was summoned to the hearings of September 2007 and February 2008. On both occasions E.A. asked the appellate court in writing to excuse his absence from the hearing on the grounds of hospitalisation (in September 2007) and his being abroad and having a technical problem with a car which had prevented him from coming to the hearing (in February 2008). He further asked the court to read out his pre-trial statements.

On 11 February 2008 the appeal proceedings were resumed.

During the court hearing, the applicant’s defence and the court questioned a defence witness – a customs expert on the customs procedure and its application.

E.A. did not appear at the court hearings on 11 and 12 February 2008. The prosecutor submitted that, by way of such conduct, E.A. avoided appearing in court and that this gave grounds for his testimony to be read out.

The applicant’s defence counsel disagreed that E.A.’s testimony could be read out. At the same time, the defence counsel submitted that he

“[did] not need witness [E.A.] anymore ... the evidence [previously] given by the expert [was sufficient]. We do not uphold the request anymore. I consider that his statements should not be read out... I consider that there are no justifiable grounds for [E.A.] not appearing in court”.

The appellate court ruled that E.A.’s testimony be read out in accordance with section 501 of the Criminal Procedure Law.

After the testimony was read out, the applicant’s defence explicitly stated that they did not have any requests and that the court adjudication could be terminated.

On 15 February 2008 the appeal court upheld the applicant’s conviction. It considered that the applicant had inadequately verified the power of attorney (see paragraph 10 above).

The appellate court referred to the evidence of witness E.A., i.e., that the semi-trailer had not been at the customs warehouse and the customs officer could not have inspected it. It also relied on the logbook indicating that the semi-trailer had not entered the customs territory. The court also relied on the applicant’s statements in which he considered that the verification on the merits had been carried out by the customs broker and therefore those tasks fell outside his duties. The appeal court dismissed the applicant’s contention that he had inspected the semi-trailer.

Furthermore, the appeal court held that the applicant had inadequately verified the payment documents. It reasoned that the payment orders in question had given the appearance that a transfer of funds had been made to the State. However, a bank report indicated that these orders had neither been registered nor confirmed by the bank.

The appeal court found that the applicant had formally performed his official duties. However, it deemed that the applicant’s contention – that a customs broker and not a customs officer had been responsible for the truthfulness of the information – indicated that, in fact, the applicant had not verified anything.

In his appeal on points of law the applicant argued that the appellate court had not ensured the attendance of E.A. He insisted that the evidence attested to the fact that he had verified the power of attorney and had compared the bank accounts indicated in the payment orders. No electronic database had existed at the time and the only way to check the payment documents had been to compare the bank accounts listed.

On 1 July 2008 the Senate of the Supreme Court dismissed the applicant’s appeal on points of law.

It reasoned that the appellate court had verified the testimonies of witnesses in accordance with section 501 of the Criminal Procedure Law. Also, the appeal court had made efforts to establish E.A.’s whereabouts and to bring him to court. Therefore, the appeal court had done everything possible in order to call E.A. to court.

This decision was final.


CASE OF KRSTANOSKI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

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

In 1957 several plots of land (agricultural land at the time) were expropriated from the applicants’ legal predecessors. The present cases concern restitution proceedings in which the applicants sought that the plots of land, which, at present, form part of a campsite on the shore of Lake Ohrid, be restored to their possession.

On 14 August 2001 the applicants instituted restitution proceedings. On 15 September 2003 the Ministry of Finance’s Restitution Commission (“the Restitution Commission”) granted the applicants’ claims and awarded them compensation, the form of which was to be determined by a separate decision. It established that according to an urban plan of 20 March 2002 the land was designated as a public green zone in a tourist area. Relying on an on-site inspection (увид) of 1 September 2002, it further held that the land was developed (уреден простор) with access paths and supporting infrastructure.

On 4 December 2003 the applicants appealed, arguing that, inter alia, the land was undeveloped and could be restored to their possession. Were the urban plan to be implemented in the future, the land could be expropriated anew.

On 31 May 2005 the the Second-Instance Administrative-Procedure Commission in the Area of Denationalisation (Комисија за решавање во управна постапка во втор степен од областа на денационализацијата – “the second-instance commission”) dismissed the applicants’ appeal finding no grounds to depart from the established facts and the reasons given by the Restitution Commission. Relying on section 10 of the Restitution Act (see paragraph 15 below), the second-instance commission held that the land in question was of public interest (јавен интерес) and could not be restored to the applicants’ possession, but that compensation should be awarded instead.

On 21 September 2005 the applicants lodged an administrative-dispute claim with the Supreme Court reiterating that the land within the campsite was undeveloped and could therefore be restored to their possession. In submissions lodged subsequently, they further referred to decision no. 44-530/1 of 7 March 2006 in which the second-instance commission had accepted a similar claim and ordered that a neighbouring plot of land located within the same campsite had been restored to possession of the claimants. In that case, the second-instance commission had held, unlike in the applicants’ case, that access paths and supporting infrastructure had not been sufficient for the land in question to be regarded as developed.

On 7 February 2008 the Administrative Court, which had in the meantime become competent to decide administrative-dispute claims, dismissed the applicants’ claim and upheld the findings of the administrative authorities.

On 28 November 2003 the Restitution Commission upheld the applicants’ restitution claim and awarded them compensation in State bonds. Relying on an on-site inspection of 13 May 2002 and a certificate of 15 September 2002 issued by the competent Ministry, it established that the plot in question was located within the boundaries of the campsite; that it had been designated as a public green zone and that pedestrian paths and other similar infrastructure were planned for construction. It concluded accordingly that the plot could not be restored to the applicants’ possession.

An appeal by the applicants of 7 April 2004 was dismissed by the second-instance commission on 15 November 2005. The latter held that, inter alia, the findings of the Restitution Commission had been based on section 10 of the Restitution Act.

The applicants lodged an administrative-dispute claim in which, alike the applicants in application no. 38024/08, they referred to the second-instance commission’s decision no. 44-530/1 and asked the Administrative Court to ensure consistent application of the law.

On 21 April 2008 the Administrative Court dismissed the applicants’ claim, finding no grounds to depart from the established facts and the reasoning given by the administrative authorities.


Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression);Violation of Article 14+10 - Prohibition of discrimination (Article 14 - Discrimination) (Article 10 - Freedom of expression-{General};Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra

The applicants were born in 1974, 1984, and 1977 respectively. The first and the third applicants live in Moscow, and the second applicant lives in Gryazy, Lipetsk Region.

The applicants are gay rights activists. They were each found guilty of the administrative offence of “public activities aimed at the promotion of homosexuality among minors” (публичные действия, направленные на пропаганду гомосексуализма среди несовершеннолетних).

On 3 April 2006 the Ryazan Regional Duma adopted the Law on Protection of the Morality of Children in the Ryazan Oblast, which prohibited public activities aimed at the promotion of homosexuality among minors.

On 4 December 2008 the Ryazan Regional Duma adopted the Law on Administrative Offences, which introduced administrative liability for public activities aimed at the promotion of homosexuality among minors.

On 30 March 2009 the first applicant held a static demonstration (“picket”, пикетирование) in front of a secondary school in Ryazan, holding two banners which stated “Homosexuality is normal” and “I am proud of my homosexuality”. He was charged with an administrative offence for doing so.

On 6 April 2009 the Justice of the Peace of Circuit no. 18 of the Oktyabrskiy District of Ryazan found the first applicant guilty of a breach of section 3.10 of the Ryazan Law on Administrative Offences. He was ordered to pay a fine of 1,500 Russian roubles (RUB, equivalent to about 34 euros (EUR)). On 14 May 2009 the Oktyabrskiy District Court dismissed the first applicant’s appeal.

On 30 September 2011 the Arkhangelsk Regional Assembly of Deputies passed amendments to the Law on Separate Measures for the Protection of the Morality and Health of Children in the Arkhangelsk Oblast. The amended law prohibited public activities aimed at the promotion of homosexuality among minors.

On 21 November 2011 the Arkhangelsk Regional Assembly of Deputies passed amendments to the Regional Law on Administrative Offences. The amendments introduced administrative liability for public activities aimed at the promotion of homosexuality among minors.

On 11 January 2012 the second and the third applicants held a static demonstration in front of the children’s library in Arkhangelsk. The second applicant was holding a banner stating “Russia has the world’s highest rate of teenage suicide. This number includes a large proportion of homosexuals. They take this step because of the lack of information about their nature. Deputies are child-killers. Homosexuality is good!” The third applicant was holding a banner stating “Children have the right to know. Great people are also sometimes gay; gay people also become great. Homosexuality is natural and normal”; it went on to list the names of famous people who had contributed to Russia’s cultural heritage and were believed to be gay. Both applicants were arrested and escorted to the police station, where administrative offence reports were drawn up.

On 3 February 2012 the Justice of the Peace of Circuit no. 6 of the Oktyabrskiy District of Arkhangelsk found the second and the third applicants guilty of a breach of section 2.13 § 1 of the Arkhangelsk Law on Administrative Offences. The second applicant was ordered to pay a fine of RUB 1,800 (about EUR 45), and the third applicant was fined RUB 2,000 (about EUR 50). On 22 March 2012 the Oktyabrskiy District Court of Arkhangelsk dismissed both applicants’ appeals.

On 7 March 2012 the St Petersburg Legislative Assembly passed amendments to the Law on Administrative Offences in St Petersburg. The amendments introduced administrative liability for public activities aimed at the promotion of homosexuality, bisexuality and/or transgenderism among minors; the same law introduced administrative liability for promotion of paedophilia.

On 12 April 2012 the third applicant held a demonstration in front of the St Petersburg City Administration, holding up a banner with a popular quote from a famous Soviet-era actress Faina Ranevskaya: “Homosexuality is not a perversion. Field hockey and ice ballet are.” He was arrested by the police and escorted to the police station, where an administrative offence report was drawn up.

On 5 May 2012 the Justice of the Peace of Circuit no. 208 of St Petersburg found the third applicant guilty of a breach of section 7.1 of the Law on Administrative Offences in St Petersburg. He had to pay a fine of RUB 5,000 (about EUR 130). On 6 June 2012 the Smolninskiy District Court of St Petersburg dismissed the applicant’s appeal.

On an unspecified date the first and the third applicants brought proceedings before the Constitutional Court of the Russian Federation. They challenged the compatibility of section 4 of the Law on Protection of the Morality and Health of Children in the Ryazan Oblast with the provisions of the Constitution, in particular with the principle of equal treatment and the freedom of expression enshrined in Articles 19 and 29 of the Constitution, and also the provisions of Article 55 § 3, setting out the conditions under which the constitutionally guaranteed rights and freedoms may be restricted.

On 19 January 2010 the Constitutional Court declared the complaint inadmissible, for the following reasons:

“Section 14 § 1 of the Federal Law clearly sets out the responsibility of the State bodies of the Russian Federation to take measures for the protection of children from information, propaganda and activism which is harmful to their health and moral and spiritual development.

The laws of the Ryazan Oblast “On protection of the morality of children in the Ryazan Oblast” and “On administrative offences” do not strengthen any measures which prohibit homosexuality or provide for its official censure; they do not contain signs of discrimination, and there is no indication in their intent of superfluous actions by the State bodies. It follows that the provisions being challenged by the appellants cannot be regarded as disproportionately restrictive of freedom of speech.”

On unspecified date the third applicant brought proceedings before the Constitutional Court of the Russian Federation. He challenged the compatibility of section 7 of the Law on Administrative Offences in St Petersburg with the Constitution.

On 24 October 2013 the Constitutional Court declared the complaint inadmissible, for the following reasons:

“... It follows that the given prohibition, determined by the fact that such promotion is capable of harming minors by virtue of the age-specific features of their intellectual and psychological development, cannot be considered as permitting a limitation on the rights and freedoms of citizens exclusively on the basis of sexual orientation.

However, this does not rule out a need to define – on the basis of a balancing exercise with regard to the competing constitutional values – the limits of the given individuals’ effective practice of their rights and freedoms, in order not to infringe the rights and freedoms of others.

’s actions with regard to the targeted and unchecked dissemination of generally accessible information were capable of causing harm to the health and moral and spiritual development of minors, including creating a distorted impression of the social equivalence of traditional and non-traditional marital relations, does not come within the competence of the Constitutional Court of the Russian Federation; nor does verification of the lawfulness and validity of the judicial decisions issued in the appellant’s case.”

On 29 June 2013 the Code of Administrative Offences of the Russian Federation was amended, introducing in Article 6.21 administrative liability for the promotion of non-traditional sexual relations among minors.

On an unspecified date the third applicant and two other persons brought proceedings before the Constitutional Court of the Russian Federation. They challenged the compatibility of Article 6.21 of the Code of Administrative Offences with the provisions of the Constitution.

On 23 September 2014 the Constitutional Court examined the complaint on the merits and dismissed it, for the following reasons:

“... Citizens’ enjoyment of the right to disseminate information concerning the question of an individual’s sexual self-determination ought not to infringe the rights and freedoms of others; in regulating of this right by means of legislation, it is necessary to ensure that a balance is struck between the values protected by the Constitution. Consequently, bearing in mind the sensitive nature of such questions, since they belong to the sphere of individual autonomy, and without encroaching on its very essence, the State is entitled to introduce, on the basis of the above-mentioned requirements of the Constitution of the Russian Federation, specific restrictions on activities linked with the dissemination of such information if it becomes aggressive [and] importuning in nature and is capable of causing harm to the rights and legal interests of others, primarily minors, and is offensive in form.

... In so far as one of the roles of the family is [to provide for] the birth and upbringing of children, an understanding of marriage as the union of a man and a woman underlies the legislative approach to resolving demographic and social issues in the area of family relations in the Russian Federation...

Regulation of freedom of speech and the freedom to disseminate information does not presuppose the creation of conditions which would facilitate the formation of other interpretations of the family as an institution, and the associated social and legal institutions, which would differ from the generally accepted interpretations nor society’s approval of them as being equivalent in value...

These aims also determine the need to protect the child from the influence of information that is capable of causing harm to his or her health or development, particularly information that is combined with an aggressive imposition of specific models of sexual conduct, giving rise to distorted representations of the socially accepted models of family relations corresponding to the moral values that are generally accepted in Russian society, as these are expressed in the Constitution and legislation.

In order to ensure the child’s healthy development, States are required, in particular, to protect the child from all forms of sexual exploitation and sexual perversion.

The aim pursued by the federal legislature in establishing the given norm was to protect children from the impact of information that could lead them into non-traditional sexual relations, a predilection for which would prevent them from building family relationships as these are traditionally understood in Russia and expressed in the Constitution of the Russian Federation. The Constitutional Court of the Russian Federation acknowledges that the possible impact on the child’s future life of the information in question, even when delivered in a persistent manner, has not been proven beyond doubt. Nonetheless, in assessing the necessity of introducing one or another restriction, the federal legislature is entitled to use criteria that are based on the presumption that there exists a threat to the child’s interests, especially as the restrictions introduced by it concern only the tendency of the information in question to target persons of a given age group, and cannot therefore be regarded as excluding the possibility of exercising one’s constitutional right to freedom of information in this area. ...

The prohibition on public activities in relation to minors is intended to prevent their attention being increasingly focused on issues concerning sexual relations, which are capable, in unfavourable circumstances, of deforming significantly the child’s understanding of such constitutional values as the family, motherhood, fatherhood and childhood, and adversely affecting not only his or her psychological state and development, but also his or her social adaptation. The fact that this ban does not extend to situations concerning the promotion of immoral conduct in the context of traditional sexual relationships, which may also require State regulation, including through [the existence of] administrative offences, is not grounds for finding that the given norm is incompatible with the Constitution of the Russian Federation from the perspective of infringing the principles of equality as applied to the protection of Constitutional values, which ensure the uninterrupted replacement of generations ...

The imposition on minors of a set of social values which differ from those that are generally accepted in Russian society, and which are not shared by and indeed frequently perceived as unacceptable by parents – who bear primary responsibility for their children’s development and upbringing and are required to provide for their health and their physical, psychological, spiritual and moral development – ... may result in the child’s social estrangement and prevent his or her development within the family, especially if one considers that equality of rights as set out in the Constitution, which also presupposes equality of rights irrespective of sexual orientation, does not yet guarantee that persons with a different sexual orientation are actually regarded in equal terms by public opinion; this situation may entail objective difficulties when trying to avoid negative attitudes from individual members of society towards those persons on a day-to-day level. This is also true for instances where the very information that is banned from dissemination to minors may be intended, from the disseminator’s perspective, to overcome such negative attitudes towards persons with a different sexual orientation...

The prohibition on the promotion of non-traditional sexual relationships does not in itself exclude the information in question from being presented in a neutral (educational, artistic, historical) context. Such transmission of information, if it is devoid of indications of promotion, that is, if it is not aimed at creating preferences linked to the choice of non-traditional forms of sexual identity and ensures an individualised approach, taking into account the specific features of the psychological and physiological development of children in a given age group and the nature of the specific issue being clarified, may be conducted with the help of experts such as teachers, doctors or psychologists.

... does not signify a negative appraisal by the State of non-traditional sexual relationships as such, and is not intended to belittle the honour and dignity of citizens who are involved in such relationships...

... cannot be regarded as containing official censure for non-traditional sexual relationships, in particular homosexuality, far less their prohibition...

... the person [disseminating information] must understand that what appears to him or her as the straightforward provision of information may, in a specific situation, resemble activism (promotion), if it is shown that the aim was to disseminate (or especially to impose) information with the above-mentioned content. At the same time, only intentional commission by a person of the corresponding public activities, directly targeted at promoting non-traditional sexual relations among minors, or intentional commission of these actions by a person who was fully aware that there could be minors among those receiving the information, is punishable...”


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - finding of violation sufficient

Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque

The applicant lives at Nesoddtangen, Norway.

In 1989 Mrs B., who was then the applicant’s wife, bought a property named Ekheim from him for 6,400,000 Norwegian kroner (NOK), currently corresponding to approximately 760,000 euros (EUR). The couple drew up marital agreements (“ektepakt”) in 1990 and 1995.

On 3 November 1995 Mrs B. and the applicant concluded an agreement stipulating that they each owned 50% of the Ekheim estate, regardless of what was stated or might follow from formal entitlements (hereinafter referred to as the joint ownership agreement).

Subsequently, after their divorce, the applicant lodged an action against Mrs B. with Fredrikstad City Court (tingrett), seeking a ruling to the effect that the marital agreements were invalid and that the joint ownership agreement was valid. By a judgment of 4 April 2001, the City Court found against the applicant and in favour of the respondent, concluding that the marital agreements were valid and that the joint ownership agreement was invalid. The applicant did not appeal against this judgment, which gained legal force.

In 2005 Mrs B. sold the Ekheim estate to Ekheim Invest AS, a limited liability company, for NOK 15,000,000 (approximately EUR 1,1780,000).

On 28 June 2007 the applicant instituted civil proceedings before the City Court against Ekheim Invest claiming that he had title to 50% of the Ekheim estate and seeking, firstly, an order that the latter convey 50% of the property to him and, secondly, that he held a pre-emption right with respect to the remaining 50%.

According to the summary of the applicant’s submissions made by the City Court in its judgment referred to below, the applicant argued in the main as follows:

(a) The question was how to interpret the former spouses’ joint ownership agreement of 3 November 1995. In the case that had previously been decided by the City Court on 4 April 2001, the subject-matter of the dispute had been whether the marital agreements from 1990 and 1995 were valid. The subject-matter in the present case was different. Two spouses having completely separate property had the opportunity to conclude a mutual agreement involving an obligation of performance for each party. According to legal doctrine, such a contract was not dependent on any condition as to form.

(b) The contract had been a reality in the present case. Ekheim Invest had purchased the half of the Ekheim estate that had been in Mrs B.’s ownership, not the half owned by the applicant, because Mrs B. had had no right to sell the other half. Consequently, Ekheim Invest ought to transfer by deed of conveyance half of the Ekheim estate back to the applicant.

(c) The applicant further submitted that in its 2001 judgment the City Court had not reviewed the validity of the joint ownership agreement. In any event, the legal force of that judgment extended only to the relationship between Mrs B. and the applicant, not between Ekheim Invest and the applicant. The applicant referred to legal doctrine, according to which a judgment as a main rule only had legal force in the relationship between the parties to the proceedings. Moreover, the parties’ arguments ought to be taken as a starting point in the assessment of whether any new factual circumstances had arisen.

(d) The applicant’s argument was that in the period since 2001 the estate had increased so greatly in value that the City Court now had to assess the ownership issue independently of the conclusion reached in the 2001 judgment. At that time the mortgages on the property had clearly exceeded its value and it had therefore been unproblematic to hold that, in light of an on-going bankruptcy at the time, the applicant would not have been in a better position in the absence of the marriage settlement agreements. It would be unreasonable if Mrs B. or her successors should be able to profit from the tremendous increase in the property’s value.

By a judgment of 21 January 2008, the City Court found in favour of the respondent Ekheim Invest, on the ground that the applicant did not have title to the property in question as the respondent company had derived its rights from Mrs B. and the City Court had ruled in her favour in its 2001 judgment. It rejected the applicant’s argument based on legal doctrine that the 2001 judgment only had legal force between the parties by referring to another passage in the legal manual in question from which it appeared that the point only applied to disputes between a private party and public authorities. The action brought by the applicant had no public-law aspects and the City Court did not consider that the legal doctrine referred to had any bearing on the present case.

The applicant appealed against the City Court’s judgment of 21 January 2008 to the Borgarting High Court (lagmannsrett). He argued in particular that the City Court had confused his pleadings and references to legal doctrine made at the oral hearing and had shortened the overall duration of the hearing from the three days initially scheduled to five hours. One hour into the hearing the City Court had truncated the hearing of the applicant’s witnesses, including the presentation of documentary evidence regarding the disputed agreements. The City Court’s hearing record had also been marred by formal mistakes.

On 4 April 2008 the High Court warned the applicant that it envisaged refusing admission of his appeal and gave him until 21 April 2008 to comment. After an extension of this time-limit to 5 May 2008 the applicant on the latter date requested that his appeal be admitted for examination or, in the alternative, that the High Court quash the City Court’s judgment and refer the case back to the City Court for fresh examination. On 5 and 11 June 2008 he filed additional submissions.

In a unanimous decision (beslutning) of 12 June 2008 the High Court concluded that it refused to admit the appeal (“Anken nektes fremmet”), giving the following reasons:

“The High Court finds it clear that the appeal will not succeed, and that its admission should therefore be refused pursuant to Article 29-13(2) of the Code of Civil Procedure.”

The applicant appealed against the High Court’s decision to the Supreme Court, arguing notably that the refusal of admission of the appeal lacked reasons.

On 19 September 2008 the Appeals Leave Committee of the Supreme Court (Høyesteretts ankeutvalg), pointing out that its jurisdiction was confined to reviewing the High Court procedure (Article 29-13 (5) of the Code of Civil Procedure), unanimously found it clear that the appeal would not succeed and therefore rejected the appeal under Article 30-9 (2).


Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

Ms Damani Kaimova, Ms Maryam Moldyyevna Kaimova, and Ms Zarina Tamiyevna Maskhurova were born on 16 February 1953, 13 January 2005, and 18 September 1981, respectively. They live in the Chechen Republic. The first applicant is the mother, the second applicant is a daughter, and the third applicant is the widow of the late Mr Kaimov.

On 23 September 2006 Mr Kaimov was arrested for being a member of an illegal military organisation in the Chechen Republic. He remained in detention throughout the investigation and trial. On 1 November 2006 the Achkhoiy-Martan District Court of the Chechen Republic found him guilty of charges related to the military organisation and illegal acquisition of weapons. He was sentenced to two and a half years’ imprisonment.

In the meantime, he was charged with attempted murder of lawenforcement officials, with making a homemade explosive, and other offences. He was convicted as charged by the Supreme Court of the Chechen Republic on 28 October 2008 and sentenced to six and a half years’ imprisonment.

Prior to his detention Mr Kaimov had been diagnosed with tuberculosis for which he had been receiving outpatient treatment in a local hospital.

On admission to a remand prison Mr Kaimov informed the custodial authorities of his history of tuberculosis. A chest X-ray in January 2007 examination revealed the signs of that disease. A standard treatment with first-line medication was prescribed.

In early 2009 Mr Kaimov was sent to serve his sentence to the Republic of Tatarstan. In March 2009 he was admitted to prison medical institution no. 1 in Nizhnekamsk, where his tuberculosis was cured as confirmed by a medical board on 7 June 2009.

On 2 October 2009 Mr Kaimov was discharged from the prison medical institution to remand prison no. IZ-16/2 in Kazan. Shortly thereafter his health worsened.

On 28 October 2009 the prison authorities ordered his admission to prison medical institution no. 2 in Kazan (“the prison hospital”) where Mr Kaimov was diagnosed with tuberculosis of the right lung at the stage of tissue destruction. Treatment with second-line drugs was prescribed.

In February and March 2010 doctors noted progression of the disease. At that time Mr Kaimov started coughing up blood. An amended intense treatment brought his condition under control.

On 14 April 2010, in response to Mr Kaimov’s “negligent attitude towards his treatment”, a doctor talked to him about the importance of taking his drugs regularly. On 22 April and 1 May 2010 the doctor had repeated talks with him on the issue.

In late May 2010, the first applicant visited her son. Mr Kaimov was in a poor health. He claimed that no treatment had been given to him and that “the medical staff [had] paid absolutely no attention to his condition”.

On 22 April, 31 May and 8 June 2010 the doctor responsible for Mr Kaimov’s treatment again noted in the medical file that the patient was not taking his drugs as prescribed and insisted that he should follow medical instructions properly. The medical records were not signed by Mr Kaimov.

By mid-June 2010 Mr Kaimov’s condition became serious. He was no longer able to leave his bed.

On 24 June 2010 an inmate of the remand prison allegedly informed the first applicant that her son’s condition had become very serious and that no medical care was being given to him.

Four days later Mr K., a lawyer working with the Russian Justice Initiative, interviewed Mr Kaimov in the prison hospital. He said that he had not received the medicines, as the prison hospital did not have them. The prison hospital’s management refused to accept parcels with drugs for detainees.

Mr Kaimov died of heart failure caused by tuberculosis on 1 July 2010. The first applicant did not allow an autopsy to take place.

According to the Government, the investigating authorities carried out a criminal inquiry into the circumstances of Mr Kaimov’s death, which ended with a decision of 21 July 2010 not to open a criminal case.

On 22 November 2010 Mr K. asked the head of the Investigative Committee of the Republic of Tatarstan to investigate the circumstances of Mr Kaimov’s death. He pointed out that the detainee had complained of the lack of treatment in detention. A copy of the interview record of 28 June 2010 was attached to the request.

The investigating authorities interviewed Mr K., who confirmed his statements, and Ms I., the head of the tuberculosis unit responsible for Mr Kaimov’s treatment in 2009 and 2010. The doctor stated that the patient had received tuberculosis treatment until late May 2010, when he had refused to take any drugs.

On 6 December 2010, citing statements by Ms I., the investigating authorities concluded that there had been no appearance of negligence on the part of the medical authorities. They decided not to open a criminal case.

Three weeks later a higher-ranking investigator overruled that decision, noting that the investigation had not been thorough, in particular, because no medical documents had been collected.

The investigator again refused to open a criminal case on 5 January 2011. That decision was annulled by the higher-ranking authority on 15 March 2011 for want of necessary investigative measures, in view of the investigator’s failure to rectify the shortcomings already identified in the previous review decisions.

Twelve days after the annulment of his previous decision, the investigator again refused to open a criminal case, having based his new decision on the same evidence and arguments as before.

In the meantime, Mr K. submitted a new criminal complaint to the Central Inter-district Department of the Investigative Committee in the Republic of Tatarstan. The authorities were called on to verify whether the alleged inaction of the medical authorities had amounted to the deprivation of medical care, an offence under the Russian Criminal Code. On 10 May 2011 the case was forwarded to the Promyshlennyiy district police station in Kazan.

A police investigator interviewed a tuberculosis specialist, who had treated Mr Kaimov, and a prison nurse. They unanimously stated that the patient had refused treatment.

On 29 May 2011 the investigator refused to open a criminal case. Relying on the above statements and Mr Kaimov’s medical history, he found that the latter’s death had resulted from his own careless decision in not taking the prescribed drugs, and that the medical authorities had taken all reasonable steps to convince him to re-initiate the treatment.

The first applicant appealed against the decision of 29 May 2011. Her appeal was rejected, in the final instance, by the Supreme Court of the Tatarstan Republic on 11 October 2011. The courts concluded that the investigation into Mr Kaimov’s death had been thorough and comprehensive. The decision refusing the institution of criminal proceedings had been based on the examination of the medical file and statements by a number of witnesses, including the medical personnel of the prison hospital. The courts endorsed the investigator’s conclusion that Mr Kaimov had refused treatment and had not followed the recommendations of the medical personnel. The courts also noted that the first applicant had been aware of Mr Kaimov’s behaviour and had not made any complaints about the quality of the treatment at that time.

Following the communication of the application to the Russian Government, they submitted that on 13 and 26 February 2015 the decisions of 27 March and 29 May 2011, respectively, had been overruled by higherranking officials and additional investigative measures had been ordered. In particular, a medical expert examination was to be performed.

According to the applicants’ correspondence of 3 July 2015, the criminal investigation was pending. There is no further information about the outcome.


Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in 1949 and lives in Makhachkala, Republic of Dagestan, Russia.

On 25 April 2006 the applicant’s son, Murad Nagmetov, participated in a public gathering in the village of Miskindzha, in the Dokuzparinskiy district of Dagestan. Several hundred people took part, raising allegations of corruption against local public officials. At around 3 p.m. officers of the special mobile unit encircled the participants and fired several warning shots in the air.

Thereafter, the gathering was dispersed by the authorities with the use of firearms (see also Primov and Others v. Russia, no. 17391/06, §§ 15-18, 12 June 2014). Murad Nagmetov was wounded by a tear gas grenade and died of his wounds. Five other people were seriously wounded; a large number of people sustained injuries and were arrested.

On the same day, the prosecutor of the Republic of Dagestan initiated criminal proceedings on charges of murder and illegally handling firearms (Articles 105 and 222 of the Criminal Code) and assigned the case to an investigator.

A forensic expert examined the deceased’s body and extracted the objects that killed him.

On the same day, the investigator commissioned a ballistics report from the Forensic Expert Centre of the Dagestan Ministry of the Interior to determine the type of the grenade, the type of rifle used to fire it and whether the grenade had striae that could be used for identifying the rifle.

On 11 May 2006 the ballistics expert issued a report and concluded as follows:

“1. The forensic expert was given the following two objects for examination: a grenade with a special charge; and an obturator with a special charge (a 23 mm cartridge used with a carbine type KS-23 (KS-23M)). It has not been possible to determine the exact make of the tear gas grenade.

... It would not be possible to use the obturator on the body of the grenade to identify the specific weapon used. It would however be possible to use the separate obturator to identify the weapon used, if the weapon were provided for examination.”

On 26 June 2006 the investigating authority commissioned another ballistics report to identify the rifle used to fire the grenade extracted from the body of the applicant’s son. On 6 July 2006 the Forensic Expert Centre of the Dagestan Ministry of the Interior declined to carry out an examination, referring to the absence of “facilities or equipment for testshooting 23 mm canisters with special gases”.

On an unspecified date, a number of carbines used by officers of the special mobile unit on 25 April 2006 were seized.

In July and August 2006 the investigating authority commissioned ballistics reports from the Forensic Expert Centre of the Dagestan Ministry of the Interior and another local expert institution. However, the reports were not produced, apparently, on account of lack of sufficient technical facilities.

On 6 September 2006 the Federal Office of Forensic Examination of the Federal Ministry of Justice was asked to prepare a ballistics report in order to determine which carbine had been fired at the victim. The investigating authority submitted the objects extracted from the victim’s body, as well as thirteen carbines.

On 19 October 2006 the authorities took the decision to open another criminal case concerning the charge of abuse of power by a public official causing death (Article 286 of the Criminal Code). It appears from the decision that it concerned other people rather than the applicant’s son. The decision read as follows:

“It was established that police officers had had recourse to firearms ... Officers of the special mobile unit fired gunshots, using 23 mm cartridges, and tear gas grenades violating a directive dated 5 November 1996 and acting in excess of their competence ... It is prohibited to fire these tear gas canisters at a person. As a result, Mr N. and Mr A. sustained injuries.”

Later on, the above-mentioned cases were joined to be investigated together.

On 8 November 2006 the Federal Office of Forensic Examination issued a report, which reads as follows:

“... As the relevant 23 mm cartridges had not been submitted for test shots, a request for 23 mm Volna cartridges was made with the relevant department of the Ministry of the Interior of the Russian Federation ... [Footnote: Volna cartridges are used for training purposes relating to the use of KS-23 and KS-23M carbines. These cartridges are similar to those normally used with these carbines. The only difference is that they do not contain the irritating chemical substance.] ...

The research part

... I note that the tear gas grenade has no striae left by the carbine used to fire it. This may be explained by the fact that the grenade could not have had contact with the interior of the carbine as it had been loaded into it with the aid of two obturators ...

Test shots have been done in respect of the KS-23 and KS23M carbines that were submitted for the examination. The purpose of the test shots was to observe the striae left on the obturators of the grenades fired from these carbines, and to compare the striae with the striae left on the obturator of the grenade used against the victim. I have used 23 mm Volna cartridges for the test shots. These cartridges are similar to those that were submitted for the examination ...

... In view of the variance of the results of the test shots, it was impracticable to identify the relevant carbine on the basis of the striae left on the obturators ... in particular, on account of the elasticity and low thermo-resistance of the material used in the obturators ...”

On 15 November 2006 another ballistics report was sought from the Forensic Science Institute of the Federal Security Service (“the Institute”). The Institute was likewise provided with thirteen carbines and the objects extracted from the victim’s body.

On 26 February 2007 the expert from the Institute issued a report stating that it was not practicable to determine which of the examined carbines had been used to shoot the cartridge. The forensic expert explained that she had been provided with Volna cartridges for the purpose of her research and for test shots, whereas the elements extracted from the victim’s body were parts of a grenade. The forensic expert specified that Volna cartridges and tear gas grenades had “different geometric parameters and are made of materials with different characteristics”.

On 26 February 2007 the investigating authority suspended the investigation.

On 30 August 2007 the applicant’s son, Mr Rafik Nagmetov, brought court proceedings challenging the alleged inaction of the investigating authority. In a judgment of 8 October 2007 Sovetskiy District Court of Makhachkala dismissed the complaint. The court held as follows:

“Over seventy people were interviewed in the course of the investigation. The necessary (medical, ballistics, criminological) examinations were carried out ... All carbines, which had been used by the officers, were seized ... All relevant officers were identified ... The logbooks concerning distribution of weapons and ammunition were examined ... On three occasions three different expert institutions were asked to submit ballistics reports. The requests were not complied with on account of the absence of the necessary equipment ... Attempts were made to identify the relevant rifle in other expert institutions ... Those were not equipped for this kind of forensic examination ... Subsequently, the Federal Office of Forensic Examination was not able to identify the weapon ... Another request is pending before the Forensic Science Institute of the Federal Security Service ... So, the investigating authority has carried out all the investigative measures that were possible in the absence of an identified suspect.”

On 14 January 2008 the Supreme Court of the Republic of Dagestan upheld the judgment.

The applicant’s son, Mr Rafik Nagmetov, also sought a judicial review of the suspension decision of 26 February 2007. On 25 July 2008 the District Court held that the suspension of the investigation was justified. However, on 8 September 2008 the appeal court quashed the judgment and ordered a re-examination of the complaint. In a judgment of 6 October 2008 the District Court granted the complaint, considering that by failing to submit appropriate comparative material to the forensic expert, the investigating authority failed to take “exhaustive measures aimed at identifying the perpetrator”.

On an unspecified date, the applicant became aware that the evidence extracted from the body of his son had been lost.

In November 2009 the applicant requested that the authorities commission an additional ballistics report and complained about the loss of the evidence.

On 16 December 2009 the investigation was resumed. It appears that the investigating authority took some measures to clarify what had happened to the evidence. In particular, armourers from the special mobile unit were interviewed. The investigator also made an enquiry with the Institute referring to his difficulties in interpreting the report of 26 February 2007. It remains unclear what reply was received to this enquiry.

According to the Government, the enquiry about the loss of evidence yielded no specific results, in particular on account of the death of the investigator in the case and the redeployment of the investigation unit.

On 16 January 2010 the investigator again suspended the investigation.

On 21 February 2011 the acting prosecutor of the Republic of Dagestan determined that this decision was unlawful and ordered a resumption of the investigation. The decision reads as follows:

“Having examined the file, I conclude that the investigation did not exhaust the measures aimed at establishing the circumstances of the crime, at collecting the evidence and identifying the rifle used to cause the victim’s death ... In particular, the request for a ballistics report to the Institute was submitted with Volna cartridges instead of the type of cartridges used for causing the victim’s death. The different geometric parameters of these cartridges prevented the experts from identifying the carbine used against the victim ...

Following the resumption of the investigation in December 2009 the investigator merely made an enquiry instead of actually submitting grenades for comparative research ...

It does not follow from the expert report of 26 February 2007 that it was impossible to identify the rifle, on the condition that cartridges of the relevant type were provided.

The evidence extracted from the victim’s body was examined for the purposes of the above expert report. Thus, the current unavailability of this evidence is not an obstacle for seeking a new ballistics report from the same institution.”

Following the resumption of the investigation the investigator made enquiries with the Institute about the possibility of carrying out a ballistics examination in the absence of the evidence extracted from the victim’s body. Whereas it remains unclear what reply was received from the Institute, it does not appear that any new ballistics examination was carried out.

On 17 April 2011 the investigating authority issued a decision suspending the investigation. This decision reads as follows:

“It follows from the evidence in the case file that on 25 April 2006 inhabitants of nearby villages and other people blocked the road with stones and logs ... In reply to lawful orders from the police requiring them to disperse, unidentified people threw stones at the police, causing various physical injuries to eleven officers. To retaliate, the police officers used firearms ...

Officers of the special mobile unit fired shots with their pump-action shotguns towards the crowd, using 23 mm cartridges, and a tear gas grenade. Thereby they violated a directive dated 5 November 1996 ... and acted in excess of their competence. As a result, [the applicant’s son] and others sustained shotgun wounds ... causing [him] to die on the spot.

It is impossible to commission another ballistics report in the absence of the cartridge. It has not been possible to identify the person who shot [the applicant’s son].”

The applicant did not challenge this decision.


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

The applicants complained of the excessive length of civil proceedings and of the lack of any effective remedy in domestic law.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award;Respondent State to take individual measures (Article 46-2 - Individual measures)

Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen

The applicant was born in 1940 and lives in Sombor.

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

On 8 July 1998 the applicant, a practising lawyer, filed a civil claim with the Municipal Court in Novi Sad, seeking payment of fees from a private insurance company (“the respondent”) for the service rendered on account of a legal fee agreement concluded in 1995.

On 17 September 1998 the Municipal Court ordered that payment (izdao platni nalog). The respondent objected to this order.

On 27 September 2001, in the course of a hearing, the respondent filed a counter-claim, requesting the Municipal Court to declare the 1995 contract null and void.

On 16 September 2002 the Municipal Court decided to join the proceeding initiated by the claim and the counter-claim.

On 24 November 2003 the Municipal Court quashed the payment order of 17 September 1998, rejected the applicant’s claim, declared a part of the contract void and decided that the other part of the contract remained in force.

On an unspecified date the applicant appealed against this judgment.

On 24 February 2005 the District Court in Novi Sad upheld this judgment on appeal.

On an unspecified date in April 2005, the applicant filed an appeal on points of law (revizija).

On 30 November 2006 the Supreme Court returned the file to the District Court, which had apparently failed to adjudicate a part of the applicant’s appeal.

On 25 April 2007 the District Court adopted a supplementary judgment (dopunska presuda), rejecting that part of the applicant’s appeal.

On 24 October 2007 the Supreme Court dismissed the applicant’s appeal on points of law (odbacio reviziju kao nedozvoljenu), stating that the applicant was not entitled to lodge it, given that Article 84 of the Civil Procedure Act 2004 prescribes that an appeal on points of law may only be submitted by an attorney at law, not the plaintiff personally. The Supreme Court specified that, according to this Act, parties to the proceedings had lost the legal capacity to file an appeal on points of law individually, even if they were themselves attorneys at law.

The decision of 24 October 2007 was served on the applicant on 14 January 2008.

On 11 February 2008 the applicant lodged an appeal with the Constitutional Court of Serbia.

On 13 May 2008 the Constitutional Court requested the applicant to specify his complaint.

On 6 June 2008 the applicant filed his amended constitutional appeal.

On 25 March 2009 the Constitutional Court dismissed the applicant’s appeal as incomplete.


Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Josep Casadevall;Vincent A. De Gaetano

The applicant was born in 1940 and lives in Odessa.

On 4 September 2005 the applicant’s daughter, Ms Ye., and her child D., when crossing a road, were hit by a car driven by Ms M. It appears that the driver called an ambulance and the police. According to her statements to the police, Ms Ye. and the child had stopped at first in the middle of the road giving her the impression that they would wait until the car passed, but then had unexpectedly started running further across the road making the collision inevitable.

On the same day the police inspected the site and questioned some witnesses. They submitted that Ms. Ye. and her daughter had been crossing the road at some distance from the marked pedestrian crossing.

On 21 November 2005 the applicant’s daughter died in hospital. As to the injuries of his granddaughter, they were not dangerous for life.

On 12 December 2005 a forensic medical examination of the body of Ms Ye., which had been started on 23 November 2005, was completed. It established that she had died from the injuries sustained in the accident. The expert also established the victim’s position in respect of the car at the collision.

On 28 December 2005 another expert report was issued. It stated that it had been technically impossible for Ms M. to avoid the accident.

On 29 December 2005 an investigator of the Traffic Accidents Investigation Unit of the Odessa Regional Department of the Ministry of the Interior (слідчий відділу розслідування дорожньо-транспортних пригод ГУ МВС в Одеській області) delivered a ruling refusing to initiate criminal proceedings in respect of the accident. It was established that Ms Ye. and her daughter had been crossing the road unexpectedly and not on a pedestrian crossing, and when the driver, Ms M., had seen them, it had been technically impossible for her to avoid the accident.

On unspecified dates thereafter three additional witnesses of the accident, whom the applicant had identified in the meantime, stated that the collision had taken place at the pedestrian crossing.

The Government submitted to the Court a copy of the notarised agreement of 14 March 2006 signed by Ms M. and her father, for one part, and the applicant, his wife, Ms Ye.’s widower Mr Dr. (the applicant’s son-in-law) and Ms Y.A., another daughter of Ms Ye., for the other part. Its contents are as follows. Ms M. and her father undertook to pay the other party UAH 101,000 (then equivalent of about 16,700 euros (EUR)) “in respect of pecuniary and non-pecuniary damage caused by the traffic accident”. This obligation would be considered discharged if the payment was made to anyone of the cosignatories for the other party. It was additionally noted that, by that time, Ms M. had also paid UAH 87,264 (then equivalent of EUR 14,400) in respect of the victims’ medical treatment. In exchange, the victims’ family undertook not to seek initiation of criminal proceedings and not to lodge any claims or complaints against Ms M. In case they did not comply, they would have to pay back to Ms M., within three days, the amount of the compensation received. As an attachment to the agreement, there was a receipt signed by Mr Dr., the applicant’s son-in-law, in confirmation that he had received the money in question.

The case file did not contain any further information or documents regarding the aforementioned agreement or any follow-up to it. The applicant neither mentioned it in any of his submissions to the Court nor commented on it in reply to the Government’s observations. Accordingly, on 5 June 2015 the Court sent a factual request to the applicant with a view to clarifying the matter. More specifically, the applicant was requested to comment on the agreement of 14 March 2006, namely, to specify whether his family had received the amounts in question and, if so, whether he had had to recover them to the other party given his subsequent criminal complaints in her respect. The applicant replied that he had signed the agreement in question without reading it while being affected by the stress and sorrow caused by the death of his only child. He further noted that it was not him, but his son-in-law, who had received the money from the driver’s family (see also paragraph 31 below).

On 4 April 2006 the applicant complained to the Main Investigation Department of the Ministry of the Interior that the investigation of the traffic accident, which had caused the death of his daughter, had been lengthy and ineffective.

On 13 April 2006 the Ministry of the Interior replied to him that the investigation had been entrusted to the Odessa law-enforcement authorities.

On 6 May 2006 the Odessa Police Department further informed the applicant that it remained open for him to challenge the decision of 29 December 2005 refusing to initiate criminal proceedings in respect of the accident (see paragraph 11 above).

On 20 May 2006 the applicant complained to the Odessa City Prosecutor’s Office (“the city prosecutor”) about the ineffectiveness of the investigation into the death of his daughter.

As a result, on 7 June 2006 the city prosecutor quashed the decision of 29 December 2005 as premature and based on incomplete investigation. He ordered additional investigation, which was to include, in particular, the following measures: establishing the gravity of the child’s injuries and considering the possibility of her questioning in a pedagogue’s presence; questioning the applicant as to how he had identified some additional eye-witnesses of the accident, of whom he had informed the investigation; questioning those witnesses; and considering the possibility of an additional on-site inspection.

On 20 July 2006 another decision not to open a criminal case in respect of the accident was delivered.

On 10 January 2007 the Odessa Regional Prosecutor’s Office (“the regional prosecutor”) quashed the decision of 20 July 2006 as premature and remitted the case to the traffic police for additional investigation.

On 25 January 2007 another forensic technical expert examination report was issued. This time the expert had, in particular, to assess the conflicting accounts of the events given by the witnesses (some of them submitted that the accident had taken place at an unregulated pedestrian crossing, while others maintained that the victims had been crossing the road at some distance from that crossing). It was found impossible to reconcile those two versions.

On 1 March 2007 the investigator again refused to initiate criminal proceedings having found that there was no case to answer.

On 24 March 2009 the regional prosecutor quashed the above decision and opened a criminal case against Ms M. on suspicion of a breach of traffic rules causing the death of the applicant’s daughter. The investigator previously dealing with the case was disciplined for the inadequate and lengthy investigation.

On 20 May 2009 the applicant was attributed the status of an aggrieved party.

On the same day the applicant signed a statement in confirmation that his right to lodge a civil claim had been explained to him. He noted that he intended to lodge such a claim later in the course of the pre-trial investigation once he decided on the amount of the damages.

On 1 June 2009 a forensic medical expert established that the death of Ms Ye. had resulted from the injuries sustained by her in the accident.

On 26 October 2009 the investigator ordered a complex forensic medical and technical expert examination. On 30 November 2009 it was completed. Having analysed the injuries sustained by Ms Ye. and her daughter, as well as the damages to the car of Ms M., the expert established the position of the victims at the time of the accident.

In November 2009 the applicant complained to the regional prosecutor once again that the investigation was not progressing.

On 18 May 2010 yet another technical examination was assigned, and on 30 September 2010 it was completed. The expert concluded that, if the victims had been crossing the road not on the pedestrian crossing, it had been technically impossible for the driver to avoid the accident. If, however, they had been on the pedestrian crossing, it had been possible for her to avoid the accident.

On 25 May 2010 the father of the driver involved in the accident, Mr M., lodged a civil claim against the applicant and his family seeking the termination of the agreement of 14 March 2006 and the recovery of the amounts paid under that agreement (see paragraph 13 above). On 19 August 2010 Mr M., however, withdrew that claim for unknown reason. The information about these events has been provided to the Court by the applicant in his reply to the factual request of 5 June 2015 (see paragraph 14 above), without any further details.

On 7 January 2011 the investigator requested the Odessa transport police to establish the whereabouts of the car involved in the accident and to find who its owner was at that time.

On 18 March 2011 the car involved in the accident was attached as material evidence in the criminal investigation.

On 24 May 2011 a reconstruction of the circumstances of the accident was conducted with the applicant’s participation. He showed where his granddaughter and the body of his daughter had been found.

Having regard to those statements of the applicant, on 6 June 2011 the investigator assigned another forensic technical expert examination. On 9 September 2011 it was completed. The expert found it impossible to establish the exact place of the accident owing to the absence of the documentation regarding the car’s brake trace. Nor could the expert establish whether it had been technically possible for the driver to avoid the accident.

On 10 May 2012 the investigator terminated the proceedings for want of evidence of the driver’s guilt. As noted in his decision, three witnesses stated that the accident had taken place on the pedestrian crossing, while other four witnesses stated that it had been outside the crossing, and it appeared impossible to establish the truth.

On 6 June 2012 the regional prosecutor quashed the above decision and ordered additional investigation. He noted that the initial investigative measures, such as the accident reconstruction, had not reflected all the issues essential for the subsequent technical expert evaluations to establish the pertinent facts with precision. Furthermore, the inquiry authorities had inadequately complied with the assignments given by the investigator.

On 5 July 2012 the investigator ordered an additional forensic medical and technical expert examination. On 6 August 2012 it was completed. It established, in particular, the position of the victims in relation to the car. The examination also confirmed that the applicant’s daughter had died as a result of the accident. Lastly, the expert found it impossible to establish at what speed Ms M. had been driving at the time of the accident.

On 28 January 2013, following the entry into force of the new Code of Criminal Procedure, the information on the case was entered in the Unified Register of Pre-Trial Investigations.

On 15 March 2013 the investigator repeatedly questioned a number of witnesses.

On 12 July 2013 another technical expert examination was assigned. Its results are unknown.

According to the most recent information from the Government, as of 29 November 2013 the investigation was ongoing.


Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-3 - Brought promptly before judge or other officer;Judge or other officer exercising judicial power)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Yonko Grozev

The applicant was born in 1971.

In connection with an investigation into an international prostitution ring, measures were taken to intercept telephone conversations in accordance with Article 706-95 of the Code of Criminal Procedure, on one mobile telephone line in particular: from 5 p.m. on 6 August 2009 until 8.39 p.m. on 19 August 2009, on the basis of an order of 5 August 2009 by the Chambéry judge responsible for matters concerning civil liberties and detention (“the liberties and detention judge”), authorising interceptions for two weeks; and from 28 August 2009 until 11 September 2009, on the basis of an order of 26 August 2009 by the same judge. Two conversations with a person using a mobile phone belonging to a certain I.K., which were recorded on 4 September 2009, appeared to incriminate the applicant: one between a woman identified as R.G. and a man known as Kiril, later identified as the applicant, and the other between the same woman and another man, in which the same Kiril was referred to in terms suggesting that he was involved in the prostitution ring.

A judicial investigation was opened on 2 October 2009 into alleged offences of living on the earnings of prostitution with aggravating circumstances, committed as part of an organised gang; trafficking in human beings, committed as part of an organised gang; and criminal conspiracy. A warrant for the applicant’s arrest was issued on 28 July 2010 by Judge N.C., the vice-president responsible for the investigation at the Lyons tribunal de grande instance. After being arrested in Germany pursuant to the warrant, which had in the meantime been converted into a European arrest warrant, the applicant was handed over to the French authorities at 11.45 a.m. on 16 December 2010; he was then brought before the Strasbourg public prosecutor and immediately placed in administrative detention in Strasbourg. At 10.56 a.m. on 20 December 2010 he was brought for the first time before B.G., the investigating judge dealing with the case, who placed him under formal investigation for the above-mentioned offences. At about 5 p.m. on the same day, the Lyons liberties and detention judge, to whom the matter had been referred by the investigating judge, interviewed the applicant and remanded him in custody pending trial.

Although the alleged offences were classified as serious crimes, the interviews and confrontations carried out during the investigation were not recorded, by virtue of the exception provided for in the seventh paragraph of Article 116-1 of the Code of Criminal Procedure, as applicable at the material time.

On 17 June 2011 the applicant applied to the Investigation Division of the Lyons Court of Appeal to have various procedural steps declared void, including the order for his detention, the interviews and confrontations carried out during the investigation and the interception of various telephone conversations. He submitted two requests for preliminary rulings on constitutionality, concerning respectively the seventh paragraph of Article 64-1 and the seventh paragraph of Article 116-1 of the Code of Criminal Procedure, pursuant to which no video recording had been made of the interviews and confrontations.

On 6 September 2011 the Investigation Division dismissed most of the application to have the procedural steps declared void (except for one point concerning the interception of telephone conversations), in particular restating the reason given in its previous decision of 13 January 2011. In two further judgments delivered on the same day, it referred the requests for preliminary rulings on constitutionality to the Court of Cassation.

On 14 September 2011 the applicant lodged an appeal on points of law, relying in particular on Article 5 § 3, Article 6 § 1 and Article 14 of the Convention and the constitutional principle of equality.

On 18 January 2012 the Court of Cassation referred the requests for preliminary rulings on constitutionality to the Constitutional Council and deferred judgment pending the Council’s decision.

In a decision of 6 April 2012 (no. 2012-228/229 QPC) the Constitutional Council declared the seventh paragraphs of Articles 64-1 and 116-1 of the Code of Criminal Procedure unconstitutional, holding that by providing for an exception to the rule of compulsory video recording of interviews in connection with serious offences where such interviews were carried out during preliminary or judicial investigations into serious offences relating to organised crime or undermining the fundamental interests of the nation, the impugned provisions infringed the principle of equality. It pointed out that the abrogation of those provisions would take effect from the publication of its decision and would apply in the case of persons in police custody or under formal investigation who were questioned or interviewed from that date onwards.

In a judgment of 10 May 2012 the Criminal Division of the Court of Cassation dismissed the applicant’s appeal on points of law. ... It rejected his argument that there had been violations of the Convention (he had relied on Articles 6 and 14 of the Convention and, more broadly, the right to a fair trial and the prohibition of discrimination) and the Constitution as a result of the application of the seventh paragraphs of Articles 64-1 and 116-1 of the Code of Criminal Procedure in his case. Firstly, it held that the Constitutional Council had specified that the abrogation of the provisions in question would apply only in the case of persons in police custody or under formal investigation who were questioned or interviewed following the publication of its decision, so that his argument had in that respect become devoid of purpose. Secondly, it observed that the applicant had not been questioned in police custody and that, although his interviews by the investigating judge had not been recorded on video, “this did not result in any infringement of his rights under the Convention, be it his defence rights or the right to a fair trial, seeing that he was given the option of receiving legal assistance, and had the opportunity to review the manner in which the questions and answers had been transcribed in the record, which had been approved by a registrar, to ask for any corrections to be made and to challenge, at any stage of the proceedings, the meaning and scope of his statements as transcribed”.

... Lastly, it held that “it is not possible for anyone other than the party concerned to complain of a breach of the substantive requirements governing police custody, or of the lack of a video recording of police questioning or interviews by the investigating judge, in support of an application to have a procedural step or document declared void”; accordingly, the applicant was not entitled to object that the judgment appealed against had stated that there was no cause to declare void any police questioning or interviews by the investigating judge concerning individuals other than himself.

In a judgment of 28 October 2011 the Lyons Criminal Court found the applicant guilty of the alleged offences, although it dismissed the charge of trafficking in human beings. It sentenced him to four years’ imprisonment and a fine of 10,000 euros (EUR).

In a judgment of 20 July 2012 the Lyons Court of Appeal upheld the judgment as to the issue of guilt and sentenced the applicant to six years’ imprisonment with a minimum term of two-thirds of the sentence, as well as imposing a fine EUR 10,000 and a five-year exclusion order from the départements of Savoie and Bas-Rhin.

An appeal on points of law by the applicant – whose sole argument was that French criminal law was not applicable – was rejected by the Criminal Division of the Court of Cassation in a judgment of 12 June 2013.

The applicant was released on 12 June 2015 after serving his sentence.