CASE OF KORNEYKOVA AND KORNEYKOV v. UKRAINE

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary

The applicants are a mother and child born in 1990 and 2012 respectively.

On 16 January 2012 the first applicant, who was in the fifth month of pregnancy, was detained by the police on suspicion of robbery.

On 26 January 2012 the Dzerzhynskyy District Court of Kharkiv (“the Dzerzhynskyy Court”) ordered her pre-trial detention as a preventive measure pending trial.

On the same date she was placed in the Kharkiv SIZO.

On 22 May 2012 the first applicant was taken to Kharkiv Maternity Hospital no. 7 (“the maternity hospital”).

On the same date she gave birth to the second applicant. He measured 49 cm and weighed 2.9 kg.

Three female security officers guarded the first applicant in the hospital. According to her, they stayed on the ward at all times. The Government submitted that they had left the ward during the delivery.

The first applicant alleged she had been continuously shackled to her hospital bed or to a gynaecological examination chair, the only exception being during the delivery when the shackles had been removed. It is not clear from her submissions exactly how she had been shackled; on one occasion, she submitted that after the delivery she had had her foot shackled to the bed. At the same time, she submitted that the guards had only removed the shackles from her wrists for breastfeeding.

According to the Government, the first applicant was never handcuffed or shackled in the maternity hospital.

On 25 May 2012 the applicants were discharged.

On 12 November 2012 the first applicant wrote in a statement for the SIZO administration (see paragraphs 41 and 76) that the maternity hospital staff had treated her well, that she had not been handcuffed or shackled, and that the two female security officers who had been on her ward had been helping her take care of the baby.

In December 2012 and January 2013 the prosecution authorities questioned some maternity hospital staff and the security officers who had guarded the first applicant with a view to verifying her allegations, particularly as regards her shackling (see also paragraphs 76-82 below).

On 21 December 2012 the chief doctor of the maternity hospital wrote to the governor of the Kharkiv SIZO, in reply to an enquiry by the latter, to say that during her stay in the maternity hospital the first applicant had been guarded by SIZO officers at all times, that the officers in question had not been on the delivery ward, and that the first applicant had not been handcuffed or shackled during the delivery.

On 24 December 2012 the chief obstetrician, Ms Ti., gave a written statement to the prosecution authorities. She submitted that the first applicant had been shackled by the wrists to the gynaecological examination chair during her examinations both in the admissions unit and later in the obstetric unit, and that it was usual practice for detainees to be shackled and guarded by three guards.

Two other obstetricians, Ms F. and Ms S., and a nurse, Ms To., made similar statements. Ms F. submitted that she could not remember any details regarding the second applicant’s delivery. Ms To. specified that the first applicant had not been shackled during the delivery or subsequently during breastfeeding.

The chief doctor of the neonatal unit Ms Vl. also submitted that the first applicant had been shackled to a gynaecological examination chair. Furthermore, she indicated that two guards had been staying on the ward near the applicants, with a third near the door.

The security officers who had guarded the first applicant denied that she had been handcuffed or shackled in hospital.

The applicant’s lawyer enquired with a former nurse, Ms P., about the conditions faced by women in detention during delivery, with reference to her related work experience. On 7 February 2013 Ms P. wrote to him indicating that she had indeed worked as a nurse at Donetsk Regional Childcare and Maternal Health Centre from 1996 to 2005, and that in 2004 or 2005 a detained woman had been shackled to her bed during her baby’s delivery there.

While the first applicant was held in several different cells in the SIZO, her application form referred only to the conditions of her detention with her baby in cell no. 408, in which she had been held from 14 March to 8 November 2012. The summary of facts below therefore only concerns that cell.

The cell, situated in a semi-basement, was cold and damp. There was no hot water and only an irregular supply of cold water. The first applicant therefore rarely had the opportunity to take a shower and bath her new-born son. She also had to store cold water in plastic bottles for her own use. She boiled water on a defective electric cooker in a kettle, which she had to borrow from the administration and which was provided to her for no longer than fifteen minutes each time. The toilet and shower were in a niche not separated from the living area. The toilet was often blocked. There was no baby changing table or cot in the cell.

The first applicant was not provided with any baby hygiene products. Nor did she receive nutrition suitable to her needs. On the days of court hearings her only meal was breakfast, which consisted of bread and tea. No packed lunches were provided to her.

The applicants were able to have outdoor walks of about ten minutes per day, but not every day, in a communal walking area.

Lastly, one of the inmates she shared with was HIV positive.

Cell no. 408 was a high-comfort cell designed for pregnant women and women with children. It was located on the ground floor, measured fifty-two square metres and could accommodate up to six people. The first applicant shared it with two or sometimes three inmates.

The cell had three windows measuring over eight square metres in total. There was hot and cold water, as well as a drinking water cooler with a capacity of ten litres.

Furthermore, there were all the necessary furniture and facilities such as air conditioning, a refrigerator, an electric stove, a baby cot and a pram. There was also a supply of nappies and hygiene products. The toilet and shower were separated from the living area.

The first applicant was provided with adequate nutrition in accordance with the applicable standards (the total energy value of her daily meals being 3,284 kilocalories). She received three hot meals per day with the exception of hearing days, when she missed lunch. She breastfed her son and refused the baby food provided by the SIZO. There were no restrictions on food or other parcels she received from her relatives.

The applicants had a daily two-hour walk in a specially designated area.

They never shared a cell with inmates with HIV.

The Government provided four colour photographs of cell no. 408, showing a spacious and light room in a visually good state of repair. There were three large windows with sheer curtains. The cell had a washbasin. There was also a lavatory with a bidet and a shower cubicle, both separated from the living area by opaque glass doors. Also on the photographs were a wardrobe, two beds with bedside cabinets, a cot, a table with two stools, a baby stool, a shelf with some tableware, a microwave, a television and a baby changing table.

Another photograph showed a walking area for detained mothers with babies, with a flowerbed and a wall with a nature mural. The first applicant and her baby were on the photograph, as well as another woman with a pram.

On 1 and 2 February 2012 the local sanitary and epidemiological service inspected the SIZO in the context of an unspecified investigation. It observed that there was a special cell for women with babies, with all the essential amenities. It was noted in the report that there had been no pregnant inmates or inmates with babies in the SIZO at the time of the inspection.

On 24 May 2012 the sanitary and epidemiological service also inspected the drinking water in the SIZO to check that it complied with the relevant standards. No irregularities were found.

On 22 October 2012 the Kharkiv Regional Prosecutor’s Office informed the Agent of the Government that there had been no complaints from the first applicant regarding the conditions of detention or the second applicant’s medical care in the SIZO.

On 12 November 2012 the first applicant wrote a statement giving a detailed description of her cell in the SIZO similar to that submitted by the Government (see paragraphs 30-37 above). The last paragraph also concerned her stay in the maternity hospital (see paragraph 17 above).

On 13 November 2012 one of the SIZO staff wrote to the State Prisons Service to say that the first applicant’s statement had been made freely.

During her detention in the Kharkiv SIZO the first applicant received about thirty food parcels from her mother, often with basic foodstuffs such as bread, butter, tea, sugar and milk.

The first applicant lodged numerous requests for release with the trial court dealing with her criminal case, subject to an undertaking not to abscond (dated 6 July, 6, 26 and 31 August, 3 September and 9 October 2012). She alleged, in particular, that the conditions in the SIZO were not adequate for her baby. The court rejected those requests.

The applicants’ case received some media coverage. For example, in November 2012 the article “Baby as a victim of inhuman treatment” was published online by the Kharkiv Human Rights Group. In December 2012 a television programme was broadcast, in which the first applicant and the State authorities gave accounts, particularly as regards the conditions of the applicants’ detention in the SIZO. The parties did not submit to the Court a copy of the relevant article or video footage or a transcript of the television programme.

On 12 December 2012 one of the detainees, Ms B., wrote a statement addressed to the head of the local department of the State Prisons Service. She submitted that in November 2012 she had been held in the same cell as the first applicant and had been satisfied with the conditions of detention there. It was noted in the statement that there had been large windows in the cell, a shower cubicle with hot and cold water and all the necessary furniture and appliances, including a refrigerator and a television.

On 19 December 2012 the Kharkiv Regional Department of the State Prisons Service issued a memorandum stating that the first applicant had not submitted any complaints during her detention in the Kharkiv SIZO.

The case file contains three statements by detainee Ms M. concerning the conditions of detention in the SIZO. She wrote two of them while detained there (on an unspecified date and on 25 December 2012), and a third on 30 January 2013 when she had already begun serving her prison sentence elsewhere. In the first two statements Ms M. described the conditions of her detention in cell no. 408 as quite satisfactory and comfortable. Her account was similar to that given by the Government (see paragraphs 30-32 above). The first two statements also contained critical remarks regarding the first applicant claiming, in particular, that she had displayed a careless attitude towards her baby and had acted in bad faith in applying to the Court. In her third statement, Ms M. stated that the food in the SIZO had been poor. More specifically, the bread had been stale and the meat had been tinged blue. She also submitted that there had been no hot water in cell no. 408. Lastly, she submitted that on two occasions she had witnessed the first applicant requesting medical care for her baby when he had had stomachache, but her requests had been ignored.

On 28 December 2012 a former detainee, Ms Sa., wrote a statement for the first applicant’s lawyer and had it certified by a notary. She stated that she had shared cell no. 408 with the first applicant from an unspecified date in March to 19 April 2012. Ms Sa. had been pregnant at the time. She described the conditions of their detention as follows. The cell was located in a semi-basement and inmates saw practically no daylight. The windows were so high that they could not be opened without the assistance of a guard. There were about seven inmates in the cell, some of them with HIV and some suffering from other illnesses. The toilet was separated from the living area by a waist-high wall and leaked. As a result, there was always a bad smell. The shower also leaked and the cubicle door was broken. It was so humid in the cell that the plaster had fallen off the ceiling and the walls were covered in mould. The cell was infested with mice and lice. There were no household appliances like a kettle or microwave. Nor were there any beds or bedside cabinets as shown by the State Prisons Service on television (see paragraph 45 above). Ms Sa. specified that in fact none of the detainees had ever been held in the cell presented by the authorities on television. There was no hot water and the pressure in the cold water taps was so low that inmates had to store water for their own use. Furthermore, the SIZO administration did not provide them with any tableware. Their daily walk lasted only twenty minutes and took place in a small walking area covered with bars. Furthermore, according to Ms Sa., the food in the SIZO was neither fresh nor tasty. Lastly, she stated that she had been shackled to her bed when undergoing some treatment in the maternity hospital in Kharkiv while pregnant.

On an unspecified date Ms Ve., who had also shared cell no. 408 with the first applicant (the exact period is unknown), wrote a statement about the conditions of detention there. Her description was similar to that given by Ms Sa. as regards the leaking toilet, high humidity levels, lack of hot water and irregular supply of cold water, as well as the duration and conditions of the daily outdoor walks and poor nutrition.

On 25 May 2012 the applicants were discharged from the maternity hospital. The second applicant was found to be in good health.

According to a letter from its chief doctor to the first applicant’s lawyer dated 12 December 2012, on 25 May 2012 the second applicant was transferred to Children’s Hospital no. 19 (“the children’s hospital”). All the other relevant documents in the case file indicate that on 25 May 2012 both applicants were taken to the Kharkiv SIZO.

As submitted by the first applicant and noted in a letter by the chief doctor of the children’s hospital to the first applicant’s lawyer dated 6 September 2012, a paediatrician from that hospital had examined the second applicant on 28 May 2012. The baby was found to be in good health but to have phimosis (a condition of the penis where the foreskin cannot be fully retracted).

However, according to the second applicant’s medical file kept by the SIZO, the first time a paediatrician of the children’s hospital examined him was on 31 May 2012. He was found to be in an adaptation period and the first applicant received advice regarding childcare.

According to the second applicant’s medical file, on 12 June 2012 he was examined again by a paediatrician, who diagnosed him with intestinal colic and recommended Espumisan, massage, feeding on demand and outdoor walks. The doctor also suspected that the boy had a patent (open) foramen ovale (PFO; the foramen ovale allows blood circulation in the fetal heart and closes in most individuals at birth).

The second applicant’s next medical examination appears to have taken place on 20 July 2012. It was noted in his medical file that the paediatrician had given advice to the first applicant regarding feeding and care.

The first applicant denied that any of the examinations following that on 28 May 2012 had taken place. She alleged that her baby had not been examined by a paediatrician until 10 September 2012. She submitted that the records of her son’s earlier examinations in the medical file had been forged. According to her, the first page of that book referred to an examination on 10 September 2012, whereas the records of his earlier examinations had been written on separate pages and subsequently glued into the file. The case file as it stands before the Court contains a separate copy of each page of the file, which makes it impossible to verify the first applicant’s allegation.

On 28 August 2012 the first applicant’s lawyer asked the Kharkiv SIZO administration to provide him with details of when the second applicant had been examined by a paediatrician and whether the conditions of detention had been appropriate for such a small baby. He also requested copies of the relevant documents.

On 4 September 2012 the SIZO administration replied that it would be able to provide comprehensive information on the second applicant’s health after a complete medical examination in the children’s hospital, which was due to take place.

On 31 August 2012 the first applicant asked the judge dealing with her case to order a medical examination of her son “given that the SIZO administration [was] ignoring her requests to that effect”. It appears that her request was rejected.

On 6 September 2012 the chief doctor of the children’s hospital wrote to the first applicant’s lawyer in reply to an enquiry by him dated 5 September 2012. He said that with no paediatrician at the Kharkiv SIZO, a paediatrician from that hospital monitored babies born there. He also indicated that the second applicant had been examined by the hospital paediatrician on 28 May 2012 (see also paragraph 53 above). In so far as the lawyer enquired about the baby’s medical condition at the material time, the chief doctor stated that it was impossible to provide him with such information because the first applicant had not requested any medical care for him until then.

On 10 September 2012 a dermatologist, cardiologist, ear, nose and throat specialist, neurologist and paediatrician all examined the second applicant. He was found to have allergic dermatitis, dysplastic cardiomyopathy and phimosis. Furthermore, the patent foramen ovale diagnosis had been called into question (see paragraph 55 above). The doctors concluded that the second applicant did not require any medical treatment, but recommended that the mother follow a hypoallergenic diet.

According to the first applicant, the examination was carried out in the context of custody proceedings initiated by the second applicant’s stepfather. She specified that it had been done with her consent so that the second applicant could be taken from the SIZO, where he was not receiving adequate care.

On 14 September 2012 the SIZO sent a copy of the second applicant’s medical file to the applicants’ representative, further to a request made by him on 28 August 2012 (see paragraph 58 above).

On 18 October 2012 the chief doctor of the children’s hospital wrote to the first applicant’s lawyer, in reply to an enquiry made on 10 October 2012, to say that hospital was in charge of the medical supervision of children in the Kharkiv SIZO where needed, subject to the SIZO administration making the relevant application. It was also noted that the second applicant required an additional examination in the regional cardiology centre, and that the children’s hospital had already requested the SIZO administration’s cooperation in that regard.

On 19 October 2012 a paediatrician and a cardiologist examined the second applicant again. He was diagnosed with a patent foramen ovale (a heart condition, see paragraph 55 above for further details) and an additional examination was recommended.

On the same date the second applicant underwent an echocardiogram and was found to be healthy.

On 14 November 2012 the first applicant refused to allow her son to undergo a paediatrician examination, which she had been offered.

The following day the first applicant was released (see also paragraph 75 below).

On 30 November 2012 the first applicant’s lawyer enquired with the children’s hospital whether it had kept a medical file in respect of the second applicant and whether he had been vaccinated during his stay with the first applicant in the SIZO.

On 4 December 2012 the chief doctor replied that the children’s hospital provided medical care to children residing permanently in its catchment area. As regards children residing there temporarily, a written application by one of the parents was required. The first applicant had never submitted such an application. Accordingly, the hospital had not opened a medical file in respect of the second applicant. At the same time, its doctors had examined him when requested by the SIZO administration. The results of each examination had been reflected in the medical file provided by the SIZO. In so far as the second applicant’s vaccinations were concerned, it was noted that he had always been brought for examinations without his mother, and without her consent no vaccinations had been given.

On 12 April, 17 May, 15 June, 2 and 31 August and 15 November 2012 the first applicant participated in court hearings, during which she was held in a metal cage. Her requests not to be placed in a cage were rejected.

On 14 March 2013 the judge of the Dzerzhynskyy Court, who had been in charge of the first applicant’s case, wrote to the Agent of the Government, in reply to the latter’s request, to say that the first applicant had indeed been held in a metal cage in the courtroom during hearings. The judge emphasised that it was a legal requirement to place criminal defendants in a metal cage and there were no exceptions to this rule. Furthermore, he considered that allowing the first applicant to remain outside the cage in the courtroom would have been equal to her temporary release, contrary to the custodial preventive measure applied.

On 15 March 2013 the Ministry of the Interior confirmed once again to the Agent of the Government that the first applicant had been held in a metal cage in the courtroom during hearings. It further specified that the second applicant had remained with the SIZO medical specialist outside the cage and had been passed to her for breastfeeding when requested.

On 15 November 2012 the first applicant was released on an undertaking not to abscond.

On 25 December 2012 she complained to the Kharkiv Regional Prosecutor’s Office that she had been shackled to her bed in the maternity hospital at all times, including during the delivery. She also complained that the conditions of detention and nutrition in the SIZO had been inadequate. Lastly, the first applicant alleged that the statement she had written on 12 November 2012 expressing her satisfaction with the conditions of detention had been made under psychological pressure (see paragraphs 17 and 41 above).

On 27 December 2012 the State Prisons Service completed the internal investigation it had undertaken following the media coverage of the applicants’ case (see paragraph 45 above). The first applicant’s allegations were dismissed as unsubstantiated.

On 2 January 2013 the first applicant complained to the Kharkiv Zhovtnevyy District Prosecutor’s Office (“the Zhovtnevyy Prosecutor’s Office”) that she had not been provided with adequate medical care during her pregnancy and the delivery; that she had been shackled by her wrists and feet to a gynaecological examination chair or her bed in the maternity hospital at all times, including during the delivery; that the conditions of her detention in the Kharkiv SIZO had been poor; and that neither she nor her baby had received adequate medical care there. On the same date her complaint was registered in the Integrated Register of Pre-trial Investigations and the investigation was started.

On 18 January 2013 the Zhovtnevyy Prosecutor’s Office ordered a forensic medical examination of the case material with a view to establishing: (i) whether the first applicant had any injuries and, if so, how they had been caused; (ii) whether there was any forensic medical evidence that the first applicant had been handcuffed or shackled between 26 January and 15 November 2012; (iii) whether there was any forensic medical evidence that the applicants had not been provided with adequate or sufficient medical care in the Kharkiv SIZO; (iv) whether there was any forensic medical evidence that the applicants had not been provided with adequate or sufficient medical care in the maternity hospital; and (v) if the applicants had not received adequate or sufficient medical care, whether this had had any negative impact on their health.

The aforementioned examination continued from 18 January to 26 March 2013. The answers in the report to all five questions were negative.

On 1 April 2013 the Zhovtnevyy Prosecutor’s Office discontinued the criminal investigation for lack of evidence of a criminal offence.

Also in April 2013 the State Prisons Service, following an enquiry by the Government’s Agent, undertook an internal investigation as regards the lawfulness of the second applicant’s detention in the SIZO. On 22 April 2013 it was completed, with the conclusion that there had been no violation. It was noted in the report that, although in August 2012 the first applicant had verbally expressed her intention to transfer the custody of her baby to her mother, she had later changed her mind as she had been breastfeeding.


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

The applicant was born in 1955 and lives in Simferopol. She is a single mother and has a son who at the time of the accident in question was eight years old.

On 24 July 1995 the applicant was knocked down by a trolley bus. She suffered an open craniocerebral injury and contusion of the brain. As a result, the applicant received the status of a disabled person with the lowest degree of disability (третя група інвалідності).

In January 1996 the applicant instituted proceedings in the Tsentralnyy District Court against the Simferopol Trolley Bus Company, claiming compensation for pecuniary and non-pecuniary damage to her health caused by the accident. In particular, as pecuniary damage the applicant claimed compensation for medicines, additional nutrition, treatment in a sanatorium, transport expenses, and compensation for loss of earnings.

On 25 February 2003 the applicant lodged an application with the Court (Litvinyuk v. Ukraine, no. 9724/03) complaining, inter alia, under Article 6 § 1 of the Convention about the lengthy examination of her case by the domestic courts.

On 1 February 2007, while the proceedings were still pending before the national courts, the Court delivered a judgment on the applicant’s first application (no. 9724/03), finding that the length of the proceedings in her case had been excessive. The Court took into consideration the period after 11 September 1997, when the Convention had come into force in respect of Ukraine. The length of the proceedings within the Court’s competence was nine years and twenty two days.

The Court, in particular, noted the following:

“47. As for the issues that were at stake for the applicant, the Court notes that following the traffic accident the applicant was seriously injured and received a disability degree. Given that the applicant was a single mother and had a child to raise, the compensations for loss of earnings and for expenses sustained as a result of a poor state of her health were of undeniable importance for the applicant. The Court therefore considers that what was at stake for the applicant called for an expeditious decision on her claims.”

On 27 March 2007 the Simferopolskiy District Court found against the applicant. On 24 December 2007 the Court of Appeal of the Autonomous Republic of Crimea quashed this decision and remitted the case to a first-instance court for fresh examination. On 23 April 2008 the Supreme Court of Ukraine upheld the decision of the court of appeal.

On 13 May 2009 the Simferopolskiy District Court partly found for the applicant. On 29 July 2009 the Court of Appeal of the Autonomous Republic of Crimea quashed this decision and remitted the case to a first-instance court for fresh examination. On 15 October 2009 the Supreme Court of Ukraine upheld the decision of the court of appeal.

On 10 November 2009 the Simferopolskiy District Court left the applicant’s case without consideration because she had failed to appear in court without giving plausible reasons on 28 October 2009 and 10 November 2009. The applicant lodged an appeal against this decision stating that she had not been aware about the above-mentioned hearings. On 27 January 2010 the Court of Appeal of the Autonomous Republic of Crimea rejected the applicant’s appeal. The court noted that the applicant had been duly notified about the date of the hearings. On 5 October 2011 the Supreme Court of Ukraine upheld the decisions of the lower courts. A further attempt by the applicant to have the above decisions reviewed in the light of newly discovered circumstances was to no avail.


CASE OF VARDANEAN v. THE REPUBLIC OF MOLDOVA AND RUSSIA

No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) (the Republic of Moldova);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) (Russia);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Independent tribunal) (the Republic of Moldova);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Independent tribunal) (Russia);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for home) (the Republic of Moldova);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for home) (Russia);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application)

Dmitry Dedov;Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Ksenija Turković

The applicants, Mr Ernest Vardanean and Ms Irina Vardanean, are Moldovan nationals who were born in 1980 and live in Chisinau.

The background to the case, including the Transdniestrian armed conflict of 1991-1992 and the subsequent events, is set out in Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, §§ 28-185, ECHR 2004VII) and Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04, 8252/05 and 18454/06, §§ 8-42, ECHR 2012).

The applicants are husband and wife and are journalists. At the time of the events they were living in the self-proclaimed “Moldovan Republic of Transdniestria” (the “MRT”). The first applicant was employed by a Russian news agency and by a Moldovan newspaper.

On 7 April 2010 the first applicant was arrested by agents of the secret service of the “MRT” on charges of treason and/or espionage undertaken for the Republic of Moldova. A search was carried out in the applicants’ apartment and many of their belongings – such as pictures, computers and a bank card – were seized.

On 16 December 2010, a tribunal from the “MRT” convicted the first applicant and sentenced him to fifteen years’ imprisonment. Following international pressure, on 5 May 2011 the president of the “MRT” pardoned him. After that date, the applicant and his family moved to Chisinau.

During his detention the first applicant met on several occasions with representatives of the “MRT” secret services, including the chief of the secret services, and was led to believe that his family might suffer if he refused to cooperate with them. He was asked to record a video of himself admitting having worked for the Moldovan secret services. That video was aired on Transdniestrian television. On another occasion he was asked to write a letter to the foreign ambassadors to Moldova “disclosing” the fact that the Moldovan secret services were spying on the foreign embassies based in Chisinau. He subsequently was given to understand by representatives of the “MRT” secret services that the letter had served the purpose of creating tensions between Chisinau and western countries and that the whole matter, including his arrest, was being coordinated from Moscow.

The second applicant could only visit the first applicant on a limited number of occasions during his detention and lawyers representing the first applicant in the proceedings before the Court were denied access to him on the grounds that they were not members of the “Transdniestrian Bar Association”.

In the meantime, the Moldovan authorities made numerous attempts to secure the first applicant’s release. In particular, the problem of his detention in the “MRT” was raised by the Moldovan authorities with the European Union and the United States authorities in April 2010 in Brussels. The Moldovan delegation distributed a circular letter during the April 2010 session of the Parliamentary Assembly of the Council of Europe and raised the first applicant’s situation during meetings of the Committee of Ministers of the Council of Europe in January and February 2011. The first applicant’s situation was also raised by the Moldovan authorities in their discussions with the OSCE representatives in Chisinau, and a criminal investigation was initiated by the Moldovan Prosecutor’s Office in respect of the applicant’s detention in the “MRT”. However, the criminal investigation was later discontinued.

The Moldovan Government also awarded financial assistance to the first applicant’s family during the period of the first applicant’s detention in the “MRT” and transferred to them ownership of a flat in Chisinau worth 53,000 euros (EUR) after the first applicant’s release from detention.


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

Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant was born in 1968 and lives in Zaporizhzhya.

On 4 January 1994 the Leninskyy District Court of Zaporizhzhya ordered the applicant’s former husband, S., to pay her child maintenance in respect of their daughter, who was living with the applicant.

According to a bailiff’s report of 24 January 2006, the outstanding arrears to the applicant at that date were 7,546 Ukrainian hryvnias ((UAH), at the time equivalent to about 1,200 euros (EUR)), of which UAH 2,052 (about EUR 330) was owed for 2005. The bailiff’s calculations were based on the average salary indicators in the district where S. lived, since he had been unemployed at the time.

On 1 April 2006 the same bailiff issued a fresh report, assessing the total amount of the arrears at 31 March 2006 at UAH 667.50. The sum owed for 2005 was assessed at UAH 480. The bailiff recalculated the earlier established amount on the basis of a tax return submitted by the applicant’s ex-husband for the last quarter of 2005, which showed that he had earned UAH 3,000 for that period. Viewed as his actual earnings for the whole year, that amount was lower than the average salary, which would have otherwise been taken as a basis for the arrears’ calculation.

On 4 April 2006 the report of 1 April 2006 was served on the applicant, who had ten days to challenge it.

On 11 April 2006 the applicant sought to challenge the accuracy of the report before the Khortytskyy District Court of Zaporizhzhya (“the Khortytskyy Court”).

On 24 May 2006 the Khortytskyy Court allowed her application and invalidated the impugned report as erroneous. It concluded that the bailiff had had no reasons to depart from the earlier calculation, since the tax return submitted by S. concerned only the last quarter of 2005. In the absence of any appeal, the ruling became final.

On 6 June 2006 the bailiff issued another report, according to which the outstanding child maintenance arrears owed to the applicant at that date were UAH 7,671 Ukrainian hryvnias, of which UAH 2,358 was owed for 2005.

On 29 June 2006 the bailiff reassessed the arrears owed by S. to the applicant, concluding that they were UAH 6,606 at 1 June 2006 (as S. had made some payments during that year), of which UAH 2,358 was owed for 2005.

On 19 October 2006 the Bailiffs’ Service terminated the child maintenance enforcement proceedings because on 2 October of that year the applicant’s daughter had reached the age of majority. The bailiff assessed the outstanding arrears at 2 October 2006 at UAH 8,637.32 (equivalent to about EUR 1,300 at that time); the sum owed for 2005 remained unchanged (UAH 2,358, equivalent to about EUR 330). Neither the applicant nor her former husband challenged this assessment.

On 26 January 2006 the applicant lodged a civil claim against S. for penalties to be imposed on him for late child maintenance payments. She relied on the bailiff’s report of 24 January 2006 (see paragraph 7 above).

On 16 March 2006 the court adjourned its hearing on the applicant’s request with a view to summoning the bailiff who had issued the aforementioned report. S. did not object to that, but submitted that he had requested recalculation of the arrears owed to the applicant.

On 3 April 2006 the Khortytskyy Court allowed the applicant’s claim in part and awarded her UAH 141.58 (about EUR 22) in penalties to be paid by her former husband. It based its calculation, in so far as the arrears for 2005 were concerned, on the bailiff’s report of 1 April 2006 (see paragraph 8 above), which had been presented by the bailiff at the hearing on 3 April 2006. Having regard to the bailiff’s explanations as to the reasons for the recalculation, the court held that the aforementioned report took precedence over the report of 24 January 2006 relied on by the applicant. According to the minutes of the hearing, the applicant did not object to the completion of the examination of the case on the merits, but insisted that the court should rely on the report adduced by her.

On 12 April 2006 the applicant appealed, claiming that the court had wrongly relied on the report of 1 April 2006, which she had only become aware of on 3 April, the day the court had given judgment. She further pointed out that the report in question had not been formally served on her until the following day (4 April 2006) and that she had challenged it in accordance with the established procedure (see paragraphs 9 and 10 above).

On 23 May 2006 the Zaporizhzhya Regional Court of Appeal (“the Court of Appeal”) upheld the Khortytskyy Court’s decision of 3 April 2006. It held, without giving further details, that the first-instance court had rightly relied on the bailiff’s report of 1 April 2006.

The applicant appealed in cassation for the decisions of 3 April and 23 May 2006 to be quashed and a fresh examination of the case to be carried out. She complained that the courts had disregarded, without any explanation, the key piece of evidence adduced by her – the bailiff’s report of 24 January 2006. It had not been challenged by any of the parties and was final. She reiterated the arguments of her appeal as regards the bailiff’s report of 1 April 2006 (see paragraph 18 above), pointing out that her complaint about that report had been successful and that it had been invalidated on 24 May 2006.

On 21 November 2006 the Supreme Court, sitting in a single-judge formation, rejected her request for leave to appeal in cassation. Its reasoning was limited to a statement that the cassation appeal was unfounded, and that its arguments did not warrant any verification of the case file materials in accordance with Article 328 § 3 of the Code of Civil Procedure (see paragraph 29 below).

On 21 November 2006 the applicant lodged with the Khortytskyy Court a civil claim against her former husband, seeking recovery of the child maintenance arrears as assessed by the bailiff on 19 October 2006 (see paragraph 14 above), with an inflationary adjustment and additional penalties.

On 22 January 2007 the court found against the applicant. It held that the Bailiffs’ Service had already determined the outstanding arrears S. had to pay (UAH 8,637.32 – see paragraph 14 above), and that the applicant was not entitled to any further indexation or penalties.

Following an appeal by the applicant, on 26 April 2007 the Court of Appeal quashed that decision and ordered the applicant’s former husband to pay her UAH 4,964 in arrears (equivalent to about EUR 740). As regards the arrears owed for 2005, it relied on the Khortytskyy Court’s decision of 3 April 2006 based on the bailiff’s report of 1 April 2006 (see paragraphs 8 and 17 above).

The applicant appealed in cassation. She argued that the final amount of outstanding child maintenance arrears owed to her by S. at 2 October 2006 was UAH 8,637.32 (equivalent to about EUR 1,290). The applicant emphasised that none of the parties had ever challenged the accuracy of that calculation. The appellate court had nevertheless chosen to rely on the bailiff’s earlier report of 1 April 2006, which had been invalidated by the Khortytskyy Court on 24 May 2006 after she complained.

On 19 July 2007 the Supreme Court, sitting in a single-judge formation, rejected her request for leave to appeal in cassation. Its reasoning was identical to that given in the ruling of 21 November 2006 (see paragraph 21 above).

On 28 April 2006 the applicant lodged a civil claim with the Khortytskyy Court, seeking an increase of the child maintenance to be paid by her former husband from that date onwards.

On 20 June 2006 the court allowed her claim in part and assessed the amount of monthly child maintenance at UAH 165, to be paid from 3 May until 2 October of that year, the date their daughter reached the age of majority. No appeal was lodged and the decision became final.


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

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

The applicants complained that they had been denied an opportunity to appear in person before the court in the civil proceedings to which they were parties.


CASE OF KHAMTOKHU AND AKSENCHIK v. RUSSIA

No violation of Article 14+5 - Prohibition of discrimination (Article 14 - Discrimination) (Article 5 - Right to liberty and security;Article 5-1 - Deprivation of liberty);No violation of Article 14+5 - Prohibition of discrimination (Article 14 - Discrimination) (Article 5 - Right to liberty and security;Article 5-1 - Deprivation of liberty)

András Sajó;André Potocki;Angelika Nußberger;Branko Lubarda;Dmitry Dedov;Erik Møse;Guido Raimondi;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Luis López Guerra;Mārtiņš Mits;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Stéphanie Mourou-Vikström;Gabriele Kucsko-Stadlmayer;Ksenija Turković

The applicants, Mr Khamtokhu and Mr Aksenchik, were born in 1970 and 1985 respectively. They are currently serving life sentences in the Yamalo-Nenetskiy Region of Russia.

On 14 December 2000 the Supreme Court of the Adygea Republic found the first applicant guilty of multiple offences, including escape from prison, attempted murder of police officers and State officials, and illegal possession of firearms, and sentenced him to life imprisonment.

On 19 October 2001 the Supreme Court of the Russian Federation upheld the first applicant’s conviction on appeal.

On 26 March 2008 the Presidium of the Supreme Court of the Russian Federation quashed the appeal judgment of 19 October 2001 by way of supervisory review and remitted the matter for fresh consideration.

On 30 June 2008 the Supreme Court of the Russian Federation upheld the first applicant’s conviction on appeal. The court reclassified some of the charges against him but the life sentence remained unchanged.

On 28 April 2010 the Tomsk Regional Court found the second applicant guilty on three counts of murder and sentenced him to life imprisonment.

On 12 August 2010 the Supreme Court of the Russian Federation upheld that conviction on appeal.


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Italy);Non-pecuniary damage - finding of violation sufficient

András Sajó;André Potocki;Dean Spielmann;Guido Raimondi;Helen Keller;Helena Jäderblom;Ineta Ziemele;Isabelle Berro-Lefèvre;Josep Casadevall;Julia Laffranque;Ledi Bianku;Linos-Alexandre Sicilianos;Mark Villiger;Nebojša Vučinić;Nona Tsotsoria;Paul Lemmens;Paul Mahoney;Peer Lorenzen

The facts of the case may be summarised as follows.

On an unspecified date the first applicant left Afghanistan for Pakistan, where he met and married the second applicant. The couple subsequently moved to Iran, where they lived for fifteen years.

On an unspecified date the couple and their children left Iran for Turkey and from there took a boat to Italy. According to the findings of the Italian police and the identification forms annexed to the observations of the Italian Government, the applicants (the couple and their five oldest children) landed on the coast of Calabria on 16 July 2011 and were immediately subjected to the EURODAC identification procedure (taking of photographs and fingerprints) after supplying a false identity. The same day the couple and the five children were placed in a reception facility provided by the municipal authorities of Stignano (Reggio Calabria province), where they remained until 26 July 2011. On that date they were transferred to the Reception Centre for Asylum Seekers (Centro di Acoglienza per Richiedenti Asilo, “CARA”) in Bari, in the Puglia region, once their true identity had been established.

According to the applicants, living conditions in the centre were poor, particularly on account of the lack of appropriate sanitation facilities, the lack of privacy and the climate of violence among the occupants.

On 28 July 2011 the applicants left the CARA in Bari without permission. They subsequently travelled to Austria, where on 30 July 2011 they were again registered in the EURODAC system. They lodged an application for asylum in Austria which was rejected. On 1 August 2011 Austria submitted a request to take charge of the applicants to the Italian authorities, which on 17 August 2011 formally accepted the request. On an unspecified date the applicants travelled to Switzerland. On 14 November 2011 the Austrian authorities informed their Italian counterparts that the transfer had been cancelled because the applicants had gone missing.

On 3 November 2011 the applicants applied for asylum in Switzerland.

On 15 November 2011 the first and second applicants were interviewed by the Federal Migration Office (“the FMO”) and stated that living conditions in Italy were difficult and that it would be impossible for the first applicant to find work there.

On 22 November 2011 the FMO requested the Italian authorities to take charge of the applicants. In their respective observations the Swiss and Italian Governments agreed that the request had been tacitly accepted by Italy.

In a decision of 24 January 2012 the FMO rejected the applicants’ asylum application and made an order for their removal to Italy. The administrative authority considered that “the difficult living conditions in Italy [did] not render the removal order unenforceable”, that “it [was] therefore for the Italian authorities to provide support to the applicants” and that “the Swiss authorities [did] not have competence to take the place of the Italian authorities.” On the basis of these considerations it concluded that “the file [did] not contain any specific element disclosing a risk to the applicants’ lives in the event of their return to Italy.”

On 2 February 2012 the applicants appealed to the Federal Administrative Court. In support of their appeal they submitted that the reception conditions for asylum seekers in Italy were in breach of Article 3 of the Convention and that the federal authorities had not given sufficient consideration to their complaint in that regard.

In a judgment of 9 February 2012 the Federal Administrative Court dismissed the appeal, upholding the FMO’s decision in its entirety. The court considered that “while there [were] shortcomings in the reception and social welfare arrangements, and asylum seekers [could] not always be taken care of by the authorities or private charities”, there was no evidence in the file capable of “rebutting the presumption that Italy complie[d] with its obligations under public international law.” With more particular reference to the applicants’ conduct it held that “in deciding to travel to Switzerland, they [had] not given the Italian authorities the opportunity to assume their obligations with regard to [the applicants’] situation.”

On 13 March 2012 the applicants requested the FMO to have the proceedings reopened and to grant them asylum in Switzerland. They submitted that their individual situation had not been examined in detail. The FMO forwarded the request to the Federal Administrative Court, which reclassified it as a “request for revision” of the judgment of 9 February 2012 and rejected it in a judgment dated 21 March 2012, on the ground that the applicants had not submitted any new grounds which they could not have relied on during the ordinary proceedings. The applicants had based their request mainly on a more detailed account of their stay in Italy and the fact that their children were now attending school in Switzerland.

In a letter of 10 May 2012 which reached the Registry on 15 May, the applicants applied to this Court and sought an interim measure requesting the Swiss Government not to deport them to Italy for the duration of the proceedings.

In a fax dated 18 May 2012 the Registry informed the Swiss Government’s Agent that the acting President of the Section to which the case had been assigned had decided to indicate to the Swiss Government under Rule 39 of the Rules of Court that the applicants should not be deported to Italy for the duration of the proceedings before the Court.


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);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

The applicants were born in 1958, 1974, 1979, 1982 and 1974 respectively and live in Adana and Mersin.

Murat Kasap was the first applicant’s son and the other applicants’ brother.

At around 8.30 p.m. on 29 September 2006, Murat Kasap and his friend R.S. were riding on a motorcycle in the Adana district. When they realised that two police officers wanted them to stop, they panicked because they did not have driving licences. They started driving away and the two officers, I.H.Y. and H.B., gave chase until Murat Kasap and R.S. crashed into a wall.

Immediately after the accident, H.B. arrested R.S. but Murat Kasap started to run away, followed by the officer I.H.Y.

Meanwhile, R.S. made an attempt to escape. In order to stop him from running away, the officer who stayed with him fired two shots in the air. R.S. told the officer that there was no need to open fire, and explained that Murat Kasap was running away because he had panicked. If he were to be allowed to telephone him, his friend would give himself up. He also stated that he knew where Murat Kasap lived.

I.H.Y. heard the shots fired by his colleague and thought that Murat Kasap might have a gun. According to his statement, he ordered Murat Kasap to stop and fired three shots in the air. While he was running after Murat Kasap, he lost his balance and his pistol went off. The bullet hit the ground, ricocheted, and entered the back of the body of Murat Kasap, who died on the way to hospital.

The incident was notified to the Ceyhan public prosecutor, who immediately gave instructions for security precautions to be taken. A crime scene examination team arrived at the site of the incident and encircled the crime scene with barrier tape.

At 9.15 p.m. on the same night, a prosecutor went to the site of the incident. The prosecutor questioned the eyewitness and prepared an incident report.

On the same night, R.S. was questioned by two police officers at the Ceyhan Police Headquarters. He described the incident but was not aware of the death of Murat Kasap.

On the same night at 10.50 p.m., the guns of the police officers were seized as evidence.

At 12.45 a.m. on the same night, a post-mortem examination was carried out on the body of Murat Kasap. The public prosecutor and the doctor observed a bullet entry wound on his back. The doctor was of the opinion that a full autopsy was needed to establish the cause of death. After the examination, Murat Kasap’s clothes were seized in order to be able to determine the exact shooting range.

At 2.15 a.m. on the same night, the public prosecutor questioned the officer H.B. at a police station.

According to a crime scene investigation report which was drawn up by two other police officers under the supervision of the public prosecutor, six bullet cases and a bullet jacket were found at the site of the incident.

On 30 September 2006 at 7.00 a.m. a complete examination of the motorcycle was carried out.

On 30 September 2006 a full autopsy was carried out on Murat Kasap’s body. The public prosecutor and the experts observed that the cause of death was internal bleeding caused by the entry of a deformed bullet.

On the same day, the officer I.H.Y. was questioned by the Ceyhan public prosecutor. According to his statement, the death of Murat Kasap was the result of an accident. He maintained that he had not shot Murat Kasap intentionally but that his pistol had gone off accidentally when he lost his balance.

Also the same day, and after having been questioned by the Ceyhan public prosecutor, the officer I.H.Y. was brought before the Ceyhan Magistrates’ Court (Sulh Ceza Mahkemesi), where he pleaded not guilty and reiterated the statement he had made before the public prosecutor earlier in the day.

Also on 30 September 2006, the Ceyhan Magistrates’ Court ordered I.H.Y.’s detention.

On 2 October 2006, the applicants found another bullet case at the site of the incident and handed it to the public prosecutor.

On 4 October 2006 the parents of Murat Kasap made an official complaint to the Ceyhan public prosecutor and asked for those responsible for the death of their son to be punished.

On 1 November 2006 the Ceyhan public prosecutor filed an indictment with the Ceyhan Criminal Court of First Instance and charged the officer I.H.Y. with the offence of causing death by negligence.

On an unspecified date, Murat Kasap’s parents joined the criminal proceedings against the officers as civil parties (müdahil).

On 29 November 2006 the Ceyhan Criminal Court of First Instance considered the possibility that the officer I.H.Y. might have acted with intent to kill and decided that that would necessitate a reclassification of the offence attributed to him. It therefore decided to forward the case file to the Ceyhan Assize Court, which has jurisdiction to deal with such offences.

Following an objection by the officer I.H.Y., on 30 November 2006 the Ceyhan Assize Court ordered I.H.Y.’s release pending trial.

On 19 January 2007 the Ceyhan Assize Court declined jurisdiction to examine the case on the grounds that the offence attributed to the officer I.H.Y. was causing death by negligence. It decided that the Ceyhan Criminal Court of First Instance had jurisdiction over this offence. The Assize Court also decided to transfer the case file to the governor’s office for authorisation to be granted in order to prosecute the officer.

The parents of Murat Kasap lodged an objection against the decision of non-jurisdiction and on 19 March 2007 their objection was accepted by Osmaniye Assize Court.

On 29 August 2007 the Ceyhan governor’s office decided not to grant authorisation for the prosecution of I.H.Y.

On 9 October 2007 Murat Kasap’s parents lodged an objection against the governor’s decision.

On 14 November 2007 the Adana Regional Administrative Court quashed the governor’s decision and forwarded the case file to the Ceyhan public prosecutor.

On 11 December 2007, the Ceyhan public prosecutor filed an indictment with the Ceyhan Assize Court and charged the officer I.H.Y. with the offence of murder with dolus eventualis (“olası kast”).

On an unspecified date, the Ceyhan Assize Court concluded that further ballistic examinations were necessary to establish how the trigger had been pulled. On 20 October 2008 the Forensic Medicine Institute issued a report, in which the experts noted that the pistol could only have been fired if pressure of between two and five kilograms had been applied to the trigger.

According to the Forensic Medicine Institute’s report dated 12 January 2009, both the bullet cases and the bullet jacket found at the crime scene came from the accused police officer’s pistol.

On 30 June 2009 the Ceyhan Assize Court found that, although the officer I.H.Y. had not attempted to kill Murat Kasap, he had used disproportionate force and caused his death by negligence. The Assize Court sentenced the officer to two years’ imprisonment but then reduced the sentence to one year and eight months’ imprisonment. Moreover, having regard to Article 231 of the Code of Criminal Procedure, it suspended the pronouncement of the judgment.

On an unspecified date, the first applicant submitted a petition to the High Disciplinary Council of the Ministry of the Interior asking for the officer I.H.Y. to be dismissed from his job as a civil servant.

By a letter dated 15 July 2009 the first applicant was informed that I.H.Y. had been suspended from his job for a period of ten months.

On 3 July 2009 the applicants lodged an objection against the Ceyhan Assize Court’s decision of 30 June 2009.

The objection was dismissed by the First Division of the Osmaniye Assize Court on 5 October 2009.

Meanwhile, on 20 July 2007 Murat Kasap’s parents had brought a case before the Adana Administrative Court against the Ministry of the Interior, requesting 200,000 Turkish liras (TRY) in compensation for the death of their son.

On 17 November 2009 the Adana Administrative Court allowed the claim in part and awarded Murat Kasap’s parents TRY 6,975 (approximately 3,150 euros (EUR) at the time) for pecuniary damage. The administrative court also awarded them TRY 20,000 (approximately EUR 9,000 at the time) in respect of non-pecuniary damage.

On an unspecified date, Murat Kasap’s parents lodged an appeal against the Adana Administrative Court’s decision. The examination of the appeal is still continuing before the Supreme Administrative Court.

After the Government had been notified of the present case, on 7 March 2013 the Human Rights Department of the Ministry of Justice applied to the General Directorate of Criminal Affairs of the Ministry of Justice requesting that a written order be issued pursuant to Article 309 of the Criminal Code to quash the judgment of the Ceyhan Assize Court dated 30 June 2009. As is apparent from the documents submitted to the Court, no such order was issued by the Ministry.

The suspension of the pronouncement of the judgment is regulated by Article 231 of the Code of Criminal Procedure, the relevant paragraphs of which read as follows:

(5) If the accused, after being tried on the charges against him, is sentenced to a judicial fine or to imprisonment for less than two years, the court may decide to suspend the pronouncement of the judgment ... The suspension of the pronouncement of the judgment means that the judgment does not have any legal consequences for the offender.

(6) Suspension of the pronouncement of the judgment may be decided provided that;

a) the offender has never been found guilty of a wilful offence;

b) the court is convinced, taking into account the offender’s personality traits and his behaviour during the proceedings, that there is little risk of any further offence being committed; and

c) the damage caused to the victim or to society has been repaired by way of restitution or compensation.

(8) If the pronouncement of the judgment is suspended, the offender will be kept under supervision for the following five years.

(10) If the offender does not commit another wilful offence and abides by the obligations set out in the supervision order, the judgment of which the pronouncement has been suspended shall be annulled and the case discontinued.

(11) If the offender commits another wilful offence or acts in violation of the obligations of the supervision order, the court shall impose the sentence. Nevertheless, the court may assess the offender’s situation and may decide that a certain part of the sentence, up to the half of the total sentence, will not be executed. If the conditions so permit, the court may also suspend the execution of a sentence of imprisonment or commute it to other optional measures.

(12) An objection may be lodged against the decision to suspend the pronouncement of the judgment

Article 309 of the Code of Criminal Procedure, concerning references to the Court of Cassation by written order of the Ministry of Justice (Kanun yararına bozma), provides:

“Where the Ministry of Justice has been informed that a judge or court has delivered a judgment that has become final without coming under the scrutiny of the Court of Cassation, it may issue a formal order to the Chief Public Prosecutor requiring him to ask the Court of Cassation to set aside the judgment concerned ...”


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

Alena Poláčková;Helen Keller;Pere Pastor Vilanova

The applicant was born in 1975 and lives in Rudinská.

On 17 December 2008 the applicant lodged a civil action with the Žilina District Court (file no. 8 C 240/2008) seeking an order for the defendant (a municipality) to enter into a contract with her concerning the transfer of a flat, in which she resided.

The District Court scheduled two hearings for 8 June and 8 July 2009; it ruled on the merits of the action and granted the action on the latter date.

The applicant lodged an appeal; the judgment was quashed by a court of appeal on 8 April 2010 and the matter was remitted on 4 June 2010 to the District Court.

The applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court contesting the length of the proceedings in so far as those had been held before the District Court.

On 11 October 2012 the Constitutional Court (file no. II. ÚS 423/2012) rejected her complaint on the ground that, prior to lodging her constitutional complaint, the applicant had failed to exhaust ordinary remedies, in particular lodging a complaint with the President of the District Court under the Courts Act (Law no. 757/2004).

The Constitutional Court noted that the court of appeal had transferred the case file to the District Court on 4 June 2010 and that the applicant had lodged her constitutional complaint on 27 September 2012. It found that, within that period, the District Court had failed actively to proceed with the matter for one year and a half.

The Constitutional Court observed that the Court’s previous case-law – such as Ištván and Ištvánová v. Slovakia (no. 30189/07, 12 June 2012), which concerned a delay of more than six years – dealt with unjustified delays imputable to the courts that were substantially longer than those in the present case (one year and a half). The Constitutional Court considered that, because the unjustified delays in the present case had been shorter (compared to those in respect of Ištván and Ištvánová and other similar cases), it was justified in requiring – before turning for protection to the Constitutional Court – that the applicant lodge a complaint with the President of the District Court with a view to accelerating her proceedings.

Following the Constitutional Court’s decision, the District Court scheduled a hearing for 9 September 2015. At the time of communication of the application the proceedings were still pending.


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

Kristina Pardalos;Pauliine Koskelo;Ksenija Turković

The applicant was born in 1971 and at the time of introduction of the application to the Court he was detained in Diavata Prison.

The applicant is serving a life sentence for drug dealing. He was initially placed in Diavata Prison from 1 October 2014 until 24 November 2015. On that date he was transferred to Malandrino Prison, from where he was transferred back to Diavata Prison on 9 May 2016. Lastly, on 20 December 2016 he was transferred back to Malandrino Prison.

The applicant alleged that he had been detained initially in cell no. B 14, which had measured 9 sq. m and had held four detainees in total. On 7 August 2016 he had been placed in cell no. GR 2 on the ground floor, which had measured 24 sq. m and had held ten detainees. In both cases, therefore, the living space afforded to him had been less than 3 sq. m. Overcrowding had exposed him to infectious diseases and he had suffered from passive smoking. In addition, detainees had had barely any space to move within their cell and their bunk beds had been low, not allowing them to sit up comfortably.

Apart from the overcrowding, the applicant submitted that the conditions of his detention had been very poor. Access to natural light and ventilation had been inadequate. Sanitary facilities and supplies had been old, broken and insufficient to ensure the detainees’ wellbeing and personal hygiene. Heating had been provided only for one hour per day from 9 p.m. to 10 p.m., while hot water during winter had been provided for two hours per day and had not sufficed for all detainees. They had been forced to wash themselves using buckets of water, as the water pressure in showers had been insufficient. In each ten-person cell there had been five bunk beds, five stools, a small table and five side tables but no lockable space for personal belongings. In the four-person cell there had been two bunk beds and two stools. The mattresses had been old, mouldy and smelly, and sheets and towels had not been provided.

In general, detainees had lacked access to cultural, recreational and sports activities. They had had to rely on visits from friends and family in order to obtain any newspapers or magazines, which had intensified their feeling of isolation. The hours that they had been allowed to spend in the corridors had been insufficient, taking into account that they had coincided with the meal times as well as with the times they had been allowed to receive visits or make phone calls. The yard had included a football field but no balls had been provided to the detainees and the yard had not offered any opportunities for spending time creatively. The applicant further complained of the quantity and the quality of the food, claiming that it had been repetitive and lacking any nutritional value.

Lastly, the applicant submitted that the conditions of his detention had led him having several cardiac arrests.

The Government, referring to a document provided by the prison authorities, submitted that Diavata Prison had a capacity of 358 detainees on the basis of allocation of 4 sq. m per detainee according to the minimum standards set by the CPT. At the time the applicant had been detained, the prison facility had exceeded its capacity by accommodating 460 to 500 detainees. The applicant had been detained in cell no. 11 on the first floor, which had measured 24 sq. m, including a toilet measuring 2 sq. m. The cell had had a capacity of ten detainees; however, following a new law in April 2015 aimed at relieving overcrowding in prisons, many detainees had been released and that had resulted in the applicant sharing the cell with four to six detainees. Therefore, the living space afforded to the applicant had ranged from 3.14 to 4.4 sq. m.

As regards the rest of the applicant’s complaints, the Government argued that the prison had had a central heating system, in addition to the electric heating devices that had been provided to each cell. The cell in which the applicant had been detained had had large windows. Detainees had had access to hot water and had been provided regularly with personal hygiene products. The cells had been regularly disinfected. As regards prisoners’ meals, the Government submitted the menu of various random weeks to demonstrate that they had been comprised of a variety of food.

The Government submitted the applicant’s medical file in order to prove that the applicant had already suffered from cardiac conditions when his incarceration had started. The applicant’s medical needs had been fully fulfilled during the time he had spent in Diavata Prison either by visits to the prison doctor or by his transfer to nearby hospitals. Lastly, the applicant had been granted fifteen days of leave in order to take matriculation exams.


Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra

The applicant, Mr A.M., is a Syrian national of Kurdish origin, who was born in 1993 and lives in Geneva. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4 of the Rules of Court). The applicant was represented before the Court by Mr B. Wijkstrom, a lawyer practising in Geneva.

The applicant arrived in Italy on an unknown date. His fingerprints were recorded in the EURODAC system on 17 December 2012. On 29 December 2012 the applicant entered Switzerland from Italy and sought asylum the same day. Soon after reaching Geneva, the applicant started to suffer from mental illness.

The applicant’s sister had arrived in Switzerland on 19 December 2012, had applied for asylum and had received a temporary permit which entitled her to remain on Swiss territory for the duration of her own asylum application. She was married to a man who had been granted temporary refugee status.

On 17 January 2013, the Swiss Federal Migration Office (“FMO”) requested that its Italian counterparts take charge of the applicant’s asylum request, pursuant to Article 10 § 1 of Regulation no. 343/2003/EC (the “Dublin Regulation”). On 21 February 2013, the Italian immigration authorities explicitly accepted the FMO’s request. On 22 February 2013, the applicant’s asylum request was rejected by the FMO on the basis of the fact that he had entered Switzerland from another “Dublin” State. The FMO refused the application of the humanitarian clause provided for in § 15 of the Dublin Regulation.

On 24 April 2013, the applicant was diagnosed with post-traumatic stress disorder, depression and back pain. He was put on a course of weekly psychiatric sessions and was given an anti-depressant (Zoloft, 50mg/day). According to the medical report, the stabilization of his psychological and social environment was a precondition for the successful outcome of the applicant’s therapy. According to a subsequent medical report, dated 6 June 2013, the applicant showed some risk of self-harm, which could go as far as suicide if he were returned to Italy, where he had been allegedly abused by the police. The report clearly stated, however, that the applicant’s death thoughts were passive and did not disclose any concrete plan (“sans projet concret”).

The applicant appealed against the decision of the FMO to the Federal Administrative Court. The appeal was rejected on 28 May 2013.

The relevant domestic law is set out in the Court’s judgment in the case of Tarakhel v. Switzerland ([GC], no. 29217/12, §§ 22-23 and 26-27, 4 November 2014).

The relevant instruments and principles of European Union law are set out in the same judgment (§§ 28-36).

In particular, the Court recalls that the Dublin Regulation is applicable to Switzerland under the terms of the association agreement of 26 October 2004 between the Swiss Confederation and the European Community regarding criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland (OJ L 53 of 27 February 2008). The Dublin Regulation was recently replaced by Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 (the “Dublin III Regulation”), which is designed to make the Dublin system more effective and to strengthen the legal safeguards for persons subject to the Dublin procedure.

The Dublin III Regulation entered into force on 1 January 2014 and was passed into law by the Swiss Federal Council on 7 March 2014.

A detailed description of the asylum procedure and the legal framework and organisation of the reception system for asylum seekers in Italy is also set out in the Tarakhel judgment (§§ 36-50).


Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Kyrgyzstan);Non-pecuniary damage - finding of violation sufficient (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 1979 in the town of Osh, Kyrgyzstan, and lives in St Petersburg.

The applicant is an ethnic Uzbek. In June 2010 ethnic violence erupted in the town of Osh, where the applicant lived at the material time, during which around 400 people were killed.

On 15 July 2010 the applicant came to Russia, and has not returned to Kyrgyzstan since.

On 9 April 2012 the police of the town of Osh charged the applicant in absentia with participation in the mass riots and several other offences.

On 10 April 2012 the Osh Town Court issued an arrest warrant against the applicant, and on 20 April 2012 his name was put on the crossborder wanted list.

On 23 January 2013 the applicant was arrested in St Petersburg and remanded in custody two days later by a court order. His detention was extended several times.

On 7 March 2014 the St Petersburg transport prosecutor noted the interim measure indicated by the Court and ordered the applicant’s release from detention under the personal guarantee of his lawyer.

On 11 February 2013 the Kyrgyzstan Prosecutor General’s Office requested the applicant’s extradition for prosecution for participation in mass riots in June 2010, intentional infliction of grievous bodily injury and use of violence against a police officer, car-jacking, and intentional destruction of property.

On 24 May 2013 the applicant’s lawyer submitted to the Prosecutor General of Russia a letter referring to reports of international organisations and the Court’s case-law evidencing that there was a high risk that the applicant would be subjected to inhuman treatment if he were extradited.

On 24 July 2013 a deputy Prosecutor General of the Russian Federation granted the request of the Kyrgyzstan Prosecutor General’s Office for the applicant’s extradition. He held that there were no grounds in Russian or international law for refusing to extradite the applicant.

The applicant appealed, maintaining that, as a member of the ethnic Uzbek community which was being persecuted and discriminated against, he ran a serious and real risk of being subjected to torture in detention.

On 6 November 2013 the St Petersburg City Court rejected that appeal, finding as follows:

“Taking into account the materials submitted, there are no grounds under Article 464 of the Criminal Procedure Code of Russia that exclude the possibility of extraditing an individual ...

The applicant’s argument that the extradition is unlawful because he has refugee proceedings pending is untenable, and the arguments about his possible persecution by the law-enforcement authorities of Kyrgyzstan because of his ethnic origin are unsubstantiated and do not constitute a ground to refuse the extradition. The information of [the Ministry for Foreign Affairs of Russia] according to which the examination of the criminal case against [the applicant] by the authorities of Kyrgyzstan might be biased, is conjecture and is not based on any proof ...

The Prosecutor General of Kyrgyzstan has provided assurances that, according to the standards of international law and the criminal law of Kyrgyzstan, [the applicant] would be afforded all means of defence, including legal assistance, would not be handed to a third country without the approval of the Russian Prosecutor General, or charged with and convicted of any offence committed before the extradition and for which he was not extradited. He would not be subjected to torture or to cruel, inhuman and degrading treatment or punishment ...

Furthermore, the requesting party provided assurances that, after [the applicant’s] extradition to the Republic of Kyrgyzstan, Russian diplomats would be allowed to visit [the applicant] in remand prisons to ensure respect for his rights ...

The evidence submitted by the defence, according to which persecution of ethnic Uzbeks in connection with the events of 2010 continues in Kyrgyzstan, concerns isolated cases and cannot be regarded as evidence that [the applicant] will be subjected to cruel treatment, bearing in mind that he is accused of an offence which is not political in nature; there are currently measures put in place by the authorities of the Republic of Kyrgyzstan to remedy the violations of human rights disclosed by international organisations ... furthermore, the requesting party provided sufficient and real assurances that [the applicant’s] right to a fair trial would be respected and that he would not be subjected to ill-treatment. The general situation in the Republic of Kyrgyzstan was thoroughly analysed in the decision refusing [the applicant] refugee status by the St Petersburg Regional Office of the Federal Migration Service.”

The applicant’s lawyers appealed against that decision, arguing that the first-instance court had failed to address their arguments concerning the risk that the applicant would be subjected to inhuman treatment if extradited.

By its final decision of 25 February 2014 the Supreme Court of the Russian Federation, having endorsed the lower court’s reasoning, rejected the appeal.

On 6 February 2013 the applicant asked the St Petersburg Regional Office of the Federal Migration Service to grant him refugee status. He pointed out that he feared returning to Kyrgyzstan, where he would face arbitrary prosecution and inhuman treatment.

On 29 May 2013 the St Petersburg Regional Office of the Federal Migration Service refused the above request for lack of reasons which would justify the applicant’s allegations. In particular, it found that the latter had referred to the events of 2010 as a pretext to avoid criminal prosecution. The Regional Office further analysed the situation in Kyrgyzstan on the basis of several news items of mainly Kyrgyz and Russian newspapers and information agencies. Referring to these items, it stated that “... the situation in Kyrgyzstan had substantially changed, the inter-ethnic clashes had ceased, and the government was taking enhanced measures to protect citizens and to improve the social and economic situation in the country”.

On 23 August 2013 the Federal Migration Service of the Russian Federation upheld this decision. The applicant complained before the Moscow Basmanniy District Court.

On 3 December 2013 the Basmanniy District Court dismissed the complaint. It endorsed the findings of the migration authorities and noted that the applicant was not a member of any political, religious, military or non-governmental organisations. Neither had he been persecuted or threatened by the authorities. Therefore, there was neither a threat to the applicant’s life nor any medical indications indicating a need for urgent medical intervention.

On 20 May 2014 the Moscow City Court upheld the decision of 3 December 2013 on appeal.

On 20 September 2013 the applicant asked the St Petersburg Regional Office of the Federal Migration Service to provide him with temporary asylum in the Russian Federation.

On 26 November 2013 his request was refused. According to the applicant, he was not informed of this decision.

On 5 May 2014 the applicant lodged a new application for temporary asylum, which was dismissed on 1 August 2014.

On 1 October 2014 the applicant’s lawyer lodged an appeal against the decision of 1 August 2014. However, the outcome of the appeal remains unknown.


Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall

The applicant, Ms Valentina Marin, is a Romanian national, who was born in 1971 and lives in Giurgiu. She was represented before the Court by Mr B.O.S. Ujeniuc, a lawyer practising in Giurgiu.

On 20 March 2010 the applicant’s son was hit by a car while crossing the road and died.

On the same date the domestic authorities identified the driver and opened a criminal investigation against her for unintentional killing. In addition, they collected evidence, including inter alia witness testimonies and photographs of the scene of the accident.

On the same date the Giurgiu Medical Forensic Service produced a necropsy report which concluded that the victim’s lethal injuries had been caused by the car accident. It also noted that the victim had a large quantity of alcohol in his blood.

On 20 July 2010 the applicant joined the criminal proceedings as a civil party and claimed pecuniary and non-pecuniary damage.

On 6 September 2010 a technical expert report was produced in the case. It concluded that the applicant’s son had been responsible for the accident because he had crossed the road through an area that did not allow pedestrian crossing and without taking the required precautions. The car was driving within the lawfully allowed speed limit and the driver could not have prevented the accident.

By a decision of 26 October 2010 the Giurgiu Prosecutor’s Office discontinued the criminal proceedings against the driver on the ground that not all the elements of an offence had been met. The applicant challenged the decision before the hierarchical prosecutor.

By a final decision of 6 December 2010 the hierarchical prosecutor attached to Giurgiu Prosecutor’s Office dismissed the applicant’s challenge as ill-founded. The applicant appealed against the decision before the domestic courts. She argued that according to some of the witness statements there was reason to believe that the passenger in the car had also contributed to the accident. Consequently, she requested that the court allowed a new technical expert report in order to clarify the circumstances of the accident, that the witnesses be confronted with one another and that they undergo a polygraph test.

On 16 March 2011 the Giurgiu District Court allowed the applicant’s action, quashed the prosecutor’s orders and ordered the reopening of the criminal investigation. In addition, it instructed the prosecutor’s office to rehear and confront all the witnesses in the case and to order a new technical expert report which could clarify the level of the passenger’s involvement in the accident. In addition, it left the applicant’s request for polygraph tests to the prosecutor’s margin of appreciation, given that those involved in the events had to consent to the test.

On 20 April 2011 the Giurgiu Prosecutor’s Office reopened the criminal investigation and administered the additional evidence requested by the domestic court.

On 20 October 2011 the technical expert report produced by the Bucharest Forensic Laboratory concluded that the driver was driving within the lawful speed limit. Both the driver and the victim could have prevented the accident if the victim had not continued crossing the road and the driver had applied the brakes. However, it was impossible to determine if and how the passenger influenced the outcome of the accident.

By a decision of 24 November 2011 the Giurgiu Prosecutor’s Office, relying on the available evidence, indicted the driver and sent the case to trial before the Giurgiu District Court.

Between 24 November 2011 and 31 October 2012 the Giurgiu District Court adjourned the proceedings several times in order to allow the parties inter alia to prepare their defense, to submit evidence as well as oral and written observations.

On 8 October 2012 the National Forensic Institute in Bucharest produced a third technical expert report in respect of the case following the request of the first-instance court. Its conclusions confirmed the conclusions of the technical expert report produced on 20 October 2011.

By a judgment of 31 October 2012 the Giurgiu District Court convicted the driver for unintentional killing and sentenced her to two years imprisonment, suspended. In addition, it ordered jointly the driver and the insurance company covering the car to pay the applicant EUR 400,000 for non-pecuniary damage. It held that the driver had seen the applicant’s son and his group of friends and she had realized that they amounted to a potential danger because they had been agitated and loud. She had honked the horn of the car, had reduced the speed of the car and had tried to move away from the group by changing lanes. But once the youngsters started running across the street, the driver had no reaction to break until after she had hit the applicant’s son. Consequently, she had failed to act in a way that could have been reasonably expected of her. While applying the brakes might not have changed the outcome of the accident, the driver would have been acquitted, because she would have done everything possible to avoid the accident. In respect of the driver’s civil liability, the court noted that the victim was more responsible for causing the accident than the driver was. Consequently, it dismissed the applicant’s claim for pecuniary damage. The driver and the insurance company appealed on points of law (recurs) against the judgment.

By a final judgment of 23 January 2013 the Bucharest Court of Appeal allowed the appeals on points of law, quashed the judgment of the first-instance court, acquitted the driver and dismissed the applicant’s civil claims. It held that the driver had not broken any driving regulations at the time of the accident. In addition, it considered that in determining whether the driver could have avoided the accident and could have acted even more diligently than she had, a whole range of factors needed to be considered including the driver’s personal circumstances, namely her age and driving experience. The criminal liability would have been engaged even if the driver had obeyed all the rules, but had proved to be insufficiently concentrated on driving and if it could have been shown that by paying better attention she could have avoided the accident. According to the available evidence, including the expert report ordered by the first-instance court, the driver had two seconds to react to the group’s and the victim’s behavior. While the applicant’s son was running across the road, speaking on the phone, intoxicated and not paying attention to the incoming traffic, he had an unexplained moment of hesitation. Consequently, the driver was caught by surprise and had no time to react by breaking. In addition, the fact that the driver was young and an inexperienced driver who had obtained her driving license in 2009 also needed to be taken into account. In these circumstances, the driver could not be blamed for failing to apply the brakes at the time of the impact. Therefore, she could not be held responsible for the accident. The court also justified the dismissal of the civil action joined to the criminal proceedings on the lack of any guilt on the part of the car’s driver.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)

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

The applicant was born in 1975 and prior to her arrest had a permanent address in Artsyz in Odessa Region.

In 2009 the applicant was diagnosed with HIV.

In September 2012 she was arrested on suspicion of drug dealing.

In December 2012 the applicant started receiving anti-retroviral therapy (“ART”).

On 16 September 2013 the Odessa Malynovsky District Court convicted the applicant of a number of drug-related offences and sentenced her to six years and six months’ imprisonment.

On an unspecified date the applicant appealed on points of law to the Higher Specialised Civil and Criminal Court (“the HSC”).

On 5 October 2014 the applicant arrived at Zbarazh Correctional Colony no. 63 (“the Colony”) to serve her sentence.

On 17 October 2014 a cytology test revealed indications of cervical cancer.

On 6 December 2014 the applicant was transferred to the oncology department of the hospital at the Lviv Pre-Trial Detention Centre (“the Oncology Facility”) for medical examination.

On 15 December 2014 the Oncology Facility issued its conclusion concerning the applicant. In addition to stage IV HIV, she was diagnosed with cervical cancer. The opinion stated that due to the state of the applicant’s immune system, surgery was to be ruled out. It was recommended that the applicant be transferred to the hospital at Daryivska Correctional Colony no. 10 in Kherson Region, which specialised in HIV treatment (“the HIV Treatment Facility”) for normalisation of T-cell levels, and then transferred back to the Oncology Facility.

On the same day the applicant was transferred back to the Colony.

On 3 March 2015 the applicant was admitted to the HIV Treatment Facility. Upon conclusion of a course of ART, on 11 March 2015 the HIV Treatment Facility issued a certificate stating that the applicant had been receiving ART without interruption since December 2012. Her diagnosis was recorded as stage IV HIV with heavy immunosuppression, cervical cancer, chronic hepatitis in remission, ovarian cysts, fibroma of the vocal cords, and oral candidiasis. It was recommended in particular that the applicant continue ART and take hepatoprotectors. The applicant was referred to the Oncology Facility.

On 17 March 2015 the applicant left the HIV Treatment Facility under guard and on 5 April 2015 arrived back at the Colony where she was put under the supervision of the prison doctor (a general practitioner) as an outpatient and continued with her ART.

On 16 April 2015 the applicant left the Colony under guard and on 22 April 2015 arrived at the Kyiv Pre-Trial Detention Centre (“the Kyiv SIZO”) in order to be able to attend the appeal hearings in her case.

On 25 May 2015 the applicant lodged a request with the Kyiv Shevchenkivsky District Court (“the Shevchenkivsky Court”) seeking release on health grounds.

In an undated letter submitted to the Shevchenkivsky Court on 8 June 2015 the Kyiv SIZO governor and the head of its medical unit informed the court that the applicant was receiving ART at the SIZO but her cancer could only be treated with radiation therapy, which could not be provided at the SIZO.

On 10 June 2015 a test revealed that the applicant had (an apparently low) viral load of less than forty copies per ml.

On 25 June 2015 the Shevchenkivsky Court rejected the applicant’s request for release.

On 1 July 2015 the Acting President of the Section decided, upon the applicant’s request under Rule 39 of the Rules of Court, to indicate to the Government that they should present the applicant urgently for medical examination by a specialist doctor; secure immediately, by appropriate means, treatment of the applicant appropriate to her conditions, and inform the Court by 1 August 2015 about the applicant’s state of health and the measures undertaken.

On 6 July 2015 the Government Agent’s office asked the prison authorities to take appropriate action to ensure the applicant’s examination and treatment and to inform it of the applicant’s situation.

On 8 July 2015 the SIZO governor asked the Kyiv City Clinical Oncology Centre (“the Kyiv Oncology Centre”), a specialist civilian institution, to arrange for the examination of the applicant by one of the Centre’s specialists.

On 13 July 2015 the applicant was examined by a gynaecological oncologist from the Kyiv Oncology Centre. The doctor recommended that the applicant (i) have a further consultation with an infectious diseases specialist concerning the possibilities for cancer treatment in the light of her living with HIV and (ii) undergo radiation therapy at an institution specialising in gynaecological oncology.

On 16 July 2015 the applicant was examined by an infectious diseases specialist. The specialist recommended a change in the ART scheme and noted that there were no contraindications for treatment of her cervical cancer.

On 29 July 2015, the applicant refused to change the ART scheme stating that “no viral load has been found” in her (вирусная загрузка у меня не выявлена).

On 30 July 2015 the applicant wrote a statement to the SIZO governor informing him that she did not wish to start her radiation therapy at that moment because she feared she would not have enough time to complete it while at the Kyiv SIZO, where she would be held until HSC examined her appeal against her conviction.

On 31 July 2015 the Government informed the Court of the steps taken by the authorities after the Court had indicated the interim measure and provided the relevant medical documentation.

On 7 August 2015 the applicant was examined by a panel of specialists at the Kyiv Oncology Centre. Her diagnoses were confirmed and she was prescribed radiation therapy.

On 27 August 2015 the HSC upheld the applicant’s conviction but reduced her sentence to four years.

On 14 September 2015 the applicant wrote to the Court, alleging that the Government had failed to comply with the interim measure indicated by the Court. In particular, she alleged that she was still not receiving the recommended radiation therapy. She also alleged that her transfer to the Oncology Facility would be conducted by rail in conditions incompatible with her state of health.

On 16 September 2015 the applicant left the Kyiv SIZO for the HIV Treatment Facility, travelling through the Odessa SIZO, where she was held from 17 to 19 September, and the Kherson SIZO, where she was held from 20 to 24 September 2015. On 24 September 2015 she arrived at the HIV Treatment Facility.

On 17 September 2015 the Court asked the Government to provide factual information concerning the reasons for which the applicant had not been treated with radiation therapy and the specific plans for her future treatment.

From 24 September 2015 the applicant started a course of examinations and treatment at the HIV Treatment Facility and at the Kherson Regional Oncology Clinic.

On 25 September 2015 the Government again informed the Court of the medical examinations the applicant had undergone during the period following the Court’s decision to indicate the interim measure.

From 5 to 27 October 2015 the applicant underwent radiation treatment at the Kherson Regional Oncology Clinic; she was recommended another course starting on 17 November but on 14 November 2015 she refused to undergo it citing the side effects of the previous treatment.

On 25 October 2015 the Government informed the Court of the applicant’s first radiation therapy course.

On 30 October 2015 the applicant left the HIV Treatment Facility and on 14 November 2015 she was admitted to the Oncology Facility.

On 4 January 2016 the applicant was released on health grounds.