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

Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1976 and lives in Barnaul. He has been disabled since childhood and has lacked legal capacity since 1999. The application was brought on his behalf by his mother.

At about 5 p.m. on 28 August 2007 the applicant was arrested on suspicion of robbery and taken to Industrialniy district police station, Barnaul (Индустриальный РОВД г. Барнаула, “the Industrialniy ROVD”) by Officers K., S. and Ch., who allegedly beat him when they arrived at the police station.

A report on the applicant’s arrest was drawn up at 9 p.m., following which the applicant’s mother was informed about his arrest. She arrived at the police station shortly afterwards. The applicant complained, in the presence of his mother and a lawyer, that he felt unwell and that he had been beaten by the police officers who had arrested him.

An ambulance was called to the police station at 10.29 p.m. on 28 August. The applicant was diagnosed as having facial and chest contusions. He told the ambulance medics that he had been physically assaulted by the police.

Another ambulance was called for the applicant at 12.24 a.m. on 29 August 2007, to the temporary detention facility. He was diagnosed as having a contusion on the soft tissues of the face and an X-ray examination was recommended. The applicant told the medics that he had injured himself while drunk two days previously after falling down and hitting his head on the ground.

The applicant was taken to hospital the same day for the X-ray examination and was diagnosed as having a closed fracture of his nose bones with displacement of bone fragments and a chest contusion. He gave the same explanation for the injuries as he had given previously that day to the ambulance medics at the temporary detention facility.

Upon admission to the temporary detention facility, staff seized, among other items, a pledge ticket for a silver chain and cross which were in pawn until 5 September 2007 (worth 4,840 Russian roubles (RUB) and RUB 990 respectively).

On 30 August 2007 the Industrialniy District Court of Barnaul (“the District Court”) ordered the applicant to be kept under arrest for an additional forty-eight hours, until 2.30 p.m. on 1 September 2007.

On 1 September 2007 the applicant was released.

On the same day the District Court granted an application from the investigator to place the applicant in a psychiatric hospital for a psychiatric forensic examination.

On 4 September 2007 the applicant was admitted to a psychiatric hospital, where he stayed until 4 October 2007.

On 4 October 2007 the report on the forensic psychiatric examination of the applicant was concluded. It established that at the time of the events in question the applicant could understand and take responsibility for his actions.

On 11 October 2007 the pawn shop ticket was returned to the applicant.

On 9 November 2007 the applicant underwent planned surgery for a fracture of the nose (rhinoplasty).

On 17 March 2008 the criminal proceedings against the applicant were discontinued owing to a lack of evidence of his involvement in the crime in question.

On 29 August 2007 the applicant’s mother complained to the prosecutor’s office that the applicant had been beaten by the police.

On 19 September 2007 a forensic medical expert held that the closed fracture of the applicant’s nose had been caused by a blow from a hard, blunt object with a limited area of impact and that it had resulted in moderately severe health damage. The report went on to say that the injury had occurred shortly before the applicant had sought medical assistance and that it could have been caused on 28 August 2007. The possibility of the injury being caused by a fall or that the applicant had inflicted it on himself was excluded. The diagnosis of a chest contusion was found to be unsubstantiated by the information in the medical documents.

On 4 October, 25 November and 24 December 2007, and 1 February and 15 March 2008 the prosecutor’s office refused to institute criminal proceedings against the police officers who had allegedly ill-treated the applicant for lack of the constituent elements of a crime in their actions. The applicant’s statements were found to be contradictory and not consistent with the injuries sustained. The applicant’s mother had not witnessed the alleged beatings and, because the applicant was mentally disabled and had been inebriated when arrested, his statements were assessed in critical fashion. There was also evidence that the applicant had possibly had injuries prior to his arrest. The initial refusal to institute criminal proceedings referred to the following evidence:

- the statements of the applicant’s mother, who submitted that the applicant had had no injuries when he had left home on 28 August 2007 and that she had found him at the police station later that day with a swollen face, bruises on his back and with his clothes covered in blood;

- a statement by the applicant’s mother that on 26 August 2007 she had witnessed a quarrel between her son and a certain Kar., that she had called the police and that the police had helped her take the applicant home;

- statements by a witness, B., who had seen the applicant on 28 August 2007, shortly before his arrest, drunk, but without any visible injuries; B. later saw police officers escorting the applicant to a police car, with the applicant showing no resistance. B. did not see the police officers using physical force against the applicant;

- the applicant’s statements on the circumstances of his arrest. He submitted, in particular, that the beatings had taken place at the back entrance to the police station and in an out-of-the-way office inside the police station; the police officers had hit him with truncheons on his back, bottom and legs (at least four to five blows), and had then punched him on the head and nose (no less than seven to ten blows). The applicant had started bleeding and the officers had threatened him, warning him not to tell anyone about the beatings;

- information on the applicant’s health and his disability, as well as his previous criminal and administrative offence records;

- documents on the applicant’s arrest;

- documents on the ambulance doctors’ examination of the applicant on 28 August 2007 in connection with complaints of a bleeding nose and chest pain;

- the forensic medical report of 19 September 2007 (see paragraph 21 above);

- statements by Officers S. and K. on the circumstances of the applicant’s arrest. In particular, they submitted that when the applicant had seen them he had started to run in the opposite direction. He had stumbled and fallen forward onto the pavement. When they had lifted him up they had noticed that he had old abrasions on the left side of his face and a bleeding nose, probably from falling on the pavement. His breath had also smelt of alcohol. The applicant had then been escorted to the police car and taken to the police station. He had not resisted arrest and no physical force had been applied to him;

- statements by Officer Ch., who had been waiting for S. and K. in the police car. He submitted that he had seen S. and K. escorting the applicant to the car and that the applicant had been visibly drunk. He had had abrasions and dried blood on his face and his clothes had been dirty. No physical force had been used against him;

- statements by police officers on duty at the police station on 28 August 2007 about the absence of any conflict situations there on that day or any complaints of ill-treatment from the applicant;

- statements by Ts., A., D., detained at the police station at the same time as the applicant. They submitted that they had not witnessed any clashes between the applicant and the police and had not seen the police use physical force against him;

- statements by the investigator, N., who had questioned the applicant on 28 August 2007 and to whom he had explained that his injuries (a scratch on the face and a swollen nose) had been sustained while he was drunk, either by falling down or in some other way, the applicant had not remembered exactly. The investigator had later called the applicant’s mother. After she had arrived, the applicant had started complaining that he felt unwell and that he had been beaten by the police, after which an ambulance had been called for him;

- statements by the investigator D., who said that she had questioned the applicant on 31 August 2007 at the temporary detention facility. He had stated that he had been drinking in the courtyard of his house on 26 August 2007 and had picked a fight with a certain Kar., with whom he had drunk before;

- information from the temporary detention facility on the applicant’s injuries at the time of his admission (a closed fracture of the nasal bones and an abrasion on the left cheek) and a handwritten note from the applicant to the effect that he had received the injuries after falling down while in an inebriated state and that he had no complaints about the law-enforcement bodies;

- statements by a certain R., who submitted that on 26 August 2007 the applicant and her husband Kar. had been drinking together and had had a quarrel.

The subsequent decisions also took into account the following evidence:

- statements by Kar., who submitted that he had been drinking alcohol with the applicant on 25 August 2007, that they had been so drunk they could not walk in a straight line and had had to hold to one another, and that on their way home they had fallen down several times. On 26 August 2007 Kar. and the applicant had again spent all day drinking together, but had had no arguments. He could not remember whether the applicant had had any injuries on 25 and 26 August 2007;

- an additional forensic medical report of 18 December 2007 which showed that the injury could have been caused on 26 August 2007 but that it could not have been caused by the applicant’s falling down;

- statements by the doctors who examined the applicant on 28 and 29 August 2007 and performed the X-ray examination and by the expert who conducted the initial forensic medical examination.

The supervising authority set aside all those decisions, except for the most recent one, as unfounded and ordered additional pre-investigation inquiries.

In the meantime, on 13 December 2007 the chief of inquiries at the investigations department of the Industrialniy ROVD instituted criminal proceedings against unidentified persons under Article 112 § 1 of the Criminal Code for the intentional infliction of moderately severe damage to the applicant’s health at an unidentified place and time, but no later than midnight of 19 September 2007.

On 14 February 2008, 11 March 2009, 20 October 2010 and 5 May 2012 forensic medical examinations of the applicant’s medical file were conducted. The conclusions of the examinations showed that the closed fracture of the nose and swelling of the soft tissues in the nasal area could have been caused between 26 August and 28 August 2007. It was not possible to completely exclude the possibility that the above injury had originated as the result of the impact of a slightly protruding object. The injured area was also accessible to the applicant himself. The report of 20 October 2010 excluded the possibility that the applicant had been injured by falling on the pavement while running away from Officers S. and K. given the absence of other injuries on prominent parts of his face (nose, cheekbones or forehead) or on other parts of his body (the stomach or his extremities).

On 12 January 2008 the chief of inquiries at the investigations department of the Industrialniy ROVD decided to suspend the investigation.

However, on 29 January 2008 the acting prosecutor of the Industrialniy District of Barnaul set that decision aside. He noted that the case file contained information that police officers at the Industrialniy ROVD had allegedly inflicted the applicant’s injuries and transferred the criminal case from the investigations department of the Industrialniy ROVD to the Barnaul investigations department of the investigation committee of the Altay Regional Prosecutor’s Office.

On 11 February 2008 the chief of inquiries at the investigations department of the investigation committee of the Altay Regional Prosecutor’s Office resumed the case.

On 13 February 2008 a witness, I., (the victim in the proceedings against the applicant on suspicion of robbery) submitted that when the alleged robbery had taken place, at about 3 p.m. on 28 August 2007, she had noticed that the applicant had an old abrasion on his face. She did not exclude the possibility that she could have scratched the applicant in the course of the struggle, but she had not hit him and had not seen any injuries on his face later that day when she had seen him at the police station.

On 16 February 2008 Officer Ch. was questioned as a witness.

On 11 April 2008 the proceedings were suspended for the second time. The decision mentioned that the operational-search activities conducted to identify the perpetrator of the assault had not led to any positive results. It provided no further details on the exact measures taken by the investigator.

On 16 April 2008 the deputy head of the investigations department set that decision aside and held that it was necessary to give the applicant victim status in the proceedings and question him. He also wanted to give the applicant’s mother the status of the applicant’s legal representative and question her, to carry out a comprehensive psychological and psychiatric examination of the applicant, to question a number of witnesses on the circumstances of the alleged ill-treatment (among them Officer S.), and to join references from work on Officers K., S. and Ch. to the case file.

On 17 April 2008 the applicant was given the status of a victim in the proceedings and was questioned as such. The applicant’s mother joined the proceedings as his legal representative and was questioned.

On 19 May 2008 the proceedings were suspended for the third time, with reference to the fact that the operational-search activities to identify the perpetrator had not led to any positive result. However, on 21 May 2008 the deputy head of the investigations department set that decision aside and held that it was necessary to question the witnesses to establish all the relevant circumstances of the alleged ill-treatment.

Between May and August 2008 the head of the Industrialniy ROVD and the officers present there at the time of the applicant’s arrest were questioned as witnesses.

Meanwhile, on 26 June 2008 a fourth decision on suspending the proceedings was taken. However, on 2 July 2008 the deputy head of the investigations department set the decision aside and listed in detail the investigative measures that were needed. They included questioning the police officers S., K. and Ch. about the circumstances of the applicant’s arrest, a forensic psychiatric examination of the applicant and, depending on the results of that examination, deciding on the possibility of carrying out identification parades involving the applicant and S., K. and Ch.

On 7 August 2008 Officer K. was questioned as a witness.

The proceedings were suspended for the fifth time on 14 September 2008, but were again resumed on 29 September 2008. The acting head of the investigations department considered it necessary, inter alia, to put further questions to certain witnesses. He also wanted to carry out a comprehensive psychological and psychiatric forensic examination of the applicant and, depending on the results of that examination, to decide on the possibility of carrying out identification parades involving the applicant and S., K. and Ch. In addition, he wanted to request documents on the applicant’s hospital treatment after 4 September 2007 and join them to the case file and to carry out an additional forensic medical examination.

On 23 October 2008 another witness, D., (an acquaintance of the applicant’s mother) stated that he had seen the applicant’s arrest on 28 August 2007. The applicant had been escorted by two people – one wearing a police uniform and the other in plain clothes. The applicant had not shown any resistance, had had no visible injuries and had not been subjected to physical force.

On 28 October 2008 the applicant had an additional forensic psychiatric examination, which established that at the time of the alleged beatings he could not correctly perceive the factual aspect of events or understand the meaning and nature of actions taken in his respect.

On 30 October and 8 November 2008 two witnesses, Z. and M., stated respectively that they had seen the applicant on 28 August 2007, shortly before his arrest, that he had been dressed tidily and had had no injuries on his body or blood stains on his clothes. They had later seen him being escorted by two police officers to a police car, the applicant had acted calmly, his clothes had been tidy and no physical force had been applied to him. A similar statement was made by the witness B.

On 14 November 2008 the investigator decided to suspend the proceedings for the sixth time. He relied on the results of the applicant’s forensic psychiatric examination of 28 October 2008 and therefore the impossibility for the investigation to rely on his statements, as well as the absence of eyewitnesses of the circumstances in which the applicant had received his injuries. However, on 30 December 2008 the District Court found that decision unlawful and unsubstantiated.

On 12 February 2009 the proceedings were resumed, only to be suspended for the seventh time on 12 March 2009 for the same reasons as given in the decision of 14 November 2008. However, on 7 April 2009 the District Court found the decision of 12 March 2009 unlawful and unsubstantiated, and on 14 May 2009 the proceedings were again resumed.

On 15 June 2009 the proceedings were yet again suspended. The decision said that the applicant’s statement about his alleged ill-treatment by the police officers S., K. and Ch. could not be admitted as evidence in view of the results of the forensic psychiatric examination of 28 October 2008. The applicant’s mother’s statements had derived from those of the applicant himself. There was no direct evidence proving that the applicant had sustained his injuries at the hands of S., K. and Ch. The fact that those officers had arrested the applicant and taken him to the Industrialniy ROVD had not proved that they had been involved in the alleged ill-treatment. Exhaustive measures had been taken to establish the time the applicant had sustained his injuries. The witnesses B., D. and Z., who had seen the applicant’s arrest, had stated that they had not seen the police officers use any physical force against him.

On 12 January 2010 the proceedings were resumed and subsequently suspended for the ninth time on 15 February 2010. The investigation established that on 28 August 2007 the applicant had been taken to the Industrialniy ROVD by Officers S., K. and Ch. The applicant had complained that those officers had beaten him after his arrest. According to the forensic medical examination of 14 February 2008, the applicant had had a closed fracture of bones in the nose and swelling of the soft tissues in the nasal area, which had been caused by the impact of a hard, blunt object and could have occurred between 26 August and 28 August 2007. The investigation had not confirmed any fact of ill-treatment of the applicant by S., K. and Ch. That was in accordance with the statements by the police officers, who had denied inflicting any injuries on the applicant, the witnesses who had seen the applicant’s arrest, the records of identification parades and other evidence. There had been no other evidence attesting directly to the fact that a crime had been committed by the police officers. In addition, the decision reiterated that the applicant’s statements could not be relied on in view of the results of the forensic psychiatric examination of 28 October 2008 and could not be a basis for bringing charges against the police officers. The mother’s statements had derived from those of the applicant and therefore could not be relied on either.

On 27 April 2010 the District Court found the decision of 15 February 2010 unlawful and unsubstantiated and on 1 June 2010 the proceedings were again resumed.

On 8 June 2010 P., an expert in psychiatry – a doctor of medical sciences and a professor – was questioned as a witness. He submitted that the conclusions of the psychiatric expert examination of 28 October 2008 on the applicant’s mental state at the time of the events in question were more consistent and reliable than those of the applicant’s previous psychiatric expert examination on 4 October 2007.

On 11 June 2010 the proceedings were suspended for the tenth time. The decision referred to the applicant’s arrest on 28 August 2007, his statement as to the alleged ill-treatment by the police officers S., K. and Ch., the results of the forensic medical examination of 14 February 2008 with a description of his injuries and the time they were inflicted, and the police officers’ denial of the alleged ill-treatment.

Proceedings were resumed on 12 July 2010. Formal confrontations were carried out between the witnesses B. and Z., Officer K. and Z., Officer Ch. and Z., the applicant and the investigator N., the applicant’s mother and N., the applicant and the police officer who had taken him from the Industrialniy ROVD to the temporary detention facility and had allegedly threatened him on their way there by warning him not to tell anyone about the beatings, and the applicant and Officer K.

On 19 July 2010 the proceedings were suspended for the eleventh time. The decision noted that it had been impossible to reconcile the statements of the police officers and the witnesses as to whether the applicant had had any injuries on his face at the time of his arrest. However, on 31 August 2010 the District Court found that decision unlawful and unjustified and the proceedings resumed again on 19 October 2010.

On 21 August 2010 another police officer, S., was questioned as a witness (the case file contains no earlier record, if any, of the questioning of S. as a witness).

The proceedings were again suspended on 26 October 2010, 14 January, 10 February and 17 February 2011, and resumed respectively on 12 January, 8 February, 15 February and 7 April 2012. In addition to the previously collected evidence, the decisions on suspension relied on:

- statements by the investigator N.;

- statements by Ts., D. and Yer., detained at the police station at the same time as the applicant;

- a radiology laboratory assistant K. and the radiologist R.;

- an expert, Kl., on the nature of the applicant’s injuries;

- statements by Kar.;

- a statement by the witness, S., who submitted that she had seen a fight between the applicant and the witness I., but that she had not seen any injuries on the applicant’s body at that time;

- Kr., who submitted that she had seen no injuries on the applicant on 26 August 2007 and that when she had seen him on 1 September 2007 he had had a swollen nose. He had had no other visible injuries;

- a statement by the officer on duty at the temporary detention facility, P., who called an ambulance for the applicant on 29 August 2007;

- the ambulance medics who examined the applicant on 28 August and 29 August 2007, but who could not remember any circumstances of value to the investigation given the length of time since the events in question;

- the neurosurgeon R., who examined the applicant on 29 August 2007 at the hospital and submitted that he could have received his injuries several days prior to the examination;

- the lawyer M., present at the applicant’s questioning at the police station on 28 August 2007. Owing to the passage of time, he could not remember whether the applicant had any visible injuries or if he had told him anything about the circumstances of the alleged beatings.

On 10 May 2012 the proceedings were suspended for the sixteenth and last time. Taking into account the evidence that had been collected, the investigating authority came to the conclusion that the applicant had received his injuries no later than 10.37 p.m. on 28 August 2007 (the time of his examination by ambulance medics at the Industrialniy ROVD). However, it was impossible to make an objective and reliable conclusion as to the exact time and circumstances of the injuries. The results of the applicant’s psychiatric expert examination precluded the investigating authority from relying on the applicant’s submissions as evidence and there was no other evidence proving beyond doubt that his injuries had been inflicted in the circumstances he had described. In addition, the experts had arrived at the conclusion that the injury could have been caused anytime between 26 August and 28 August 2007.

According to the applicant, while the investigator was questioning him as a suspect on 28 August 2007, a trainee police officer, I., had taken the keys to his flat and had gone there and searched his room. A gold bracelet had allegedly gone missing after the search.

According to the applicant, Officers A. and B. had allegedly threatened him on the same day, warning him not to reveal that he had been beaten at the police station and to say instead that he had injured himself several days before in a fight.

From 2008 the applicant’s mother sought to have criminal proceedings instituted against I. and Officers A. and B. for abuse of position.

The investigator refused several times to institute criminal proceedings.

The most recent refusal to institute criminal proceedings against I. is dated 15 October 2009. On 10 December 2009 the Altay Regional Court found at final instance that the aforementioned decision was lawful and justified. It had been established that the applicant’s mother had let I. into the flat, answered his questions, and had then let him into the applicant’s room and helped him search it. It had also been established that the disappearance of a gold bracelet had been alleged long after the events complained of. For those reasons, there could not reasonably have been an expectation that the incident would be investigated.

The most recent refusal to institute criminal proceedings against A. and B. is dated 31 May 2010. The inquiry found no evidence to support the applicant’s allegations. There is no information in the case file as to whether the applicant challenged the lawfulness of that decision in court.

The applicant’s mother brought civil proceedings against the Ministry of Finance on behalf of herself and the applicant, seeking compensation for non-pecuniary damage caused by the unlawful prosecution of the applicant and the resulting medical treatment. She also sought compensation for pecuniary damage, representing the cost of the silver chain and cross which could not be recovered from the pawnshop and other costs and expenses.

On 10 March 2010 the District Court granted the claim in part and ordered the Ministry of Finance to pay the applicant RUB 15,000 for the non-pecuniary damage caused by his unlawful prosecution. It refused the claim for recovery of the cost of the silver chain and cross, holding that the mother, as the applicant’s legal representative, could have recovered them from the pawnshop herself.

On 21 April 2010 the Altay Regional Court upheld the above judgment on appeal, increasing the amount awarded in respect of nonpecuniary damage to RUB 40,000. The court further held that the applicant’s mother had failed to submit any evidence that she had asked the investigator to return the pawnshop pledge ticket and that such a request had been refused.


No violation of Article 5 - Right to liberty and security (Article 5-1-c - Reasonably necessary to prevent fleeing);No violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)

The applicant was born in 1979 and lives in Warsaw.

On 11 February 2004 the applicant was charged with domestic violence.

On 27 February 2004 a bill of indictment in respect of the applicant was lodged with the Warsaw District Court. Subsequently, on an unknown date the case was returned to the prosecution authorities in order to amend the charges.

On 20 August 2004 the Warsaw District Court ordered the applicant to undergo a psychiatric assessment in a psychiatric hospital. The applicant did not lodge an interlocutory appeal against this decision.

On 11 April 2005 the applicant was brought by the police to the Warsaw Psychiatric Hospital in order to undergo the psychiatric assessment. However, he refused to stay and left the waiting room. On the same day he was ordered to come to the hospital on 18 April 2005, on pain of detention on remand. On 18 April 2005 the applicant came to the hospital. However, he refused to stay for the assessment, explaining that he had many urgent matters to attend to.

On 7 June 2005 the Warsaw District Court ordered the applicant’s detention on remand in accordance with Articles 249 § 1 and 258 § 1 (1) and (2) of the Code of Criminal Procedure (“the CCP”) (see paragraphs 25 and 26 below). The court held that in view of the applicant’s parents’ and his sister’s testimonies there was a reasonable suspicion that the applicant had committed the offences with which he was charged. In addition, there was a reasonable risk that the applicant would obstruct the proceedings or that he would go into hiding. The court noted that the applicant’s mother had admitted that he had stayed irregularly at his home address: he had been coming home late in the evening and leaving early in the morning. Furthermore, the applicant had failed to comply with the order of 20 August 2004 to undergo a sixweek psychiatric assessment (see paragraph 8 above). The court noted the applicant’s parents’ submissions that his mental condition was bad, he was not able to function independently and he was in need of urgent medical assistance. The court also attached importance to the fact that the applicant had previously behaved in a similar manner. He had been admitted to a psychiatric hospital on 23 October 2001, however the next day he had left the hospital on his own initiative. Consequently, in the court’s view the applicant’s submissions that he would comply with the order to undergo a psychiatric assessment were not convincing.

An appeal lodged by the applicant was dismissed by the Warsaw Regional Court on 20 September 2005. The court mainly referred to the fact that the applicant had still to undergo a psychiatric assessment. It also noted the fact that the applicant stayed irregularly at his home address, therefore once released he might go into hiding.

The applicant’s detention was subsequently prolonged on the following dates: 28 September 2005 (until 4 January 2006), 27 December 2005 (until 4 February 2006) and 1 February 2006 (until 4 March 2006). The court relied on the grounds previously given. The applicant unsuccessfully appealed against all those decisions.

On 18 October 2005 the Warsaw District Court ordered that the applicant undergo a psychiatric assessment at the hospital wing of the Warsaw Detention Center. The applicant underwent this assessment between 21 November 2005 and 1 February 2006.

On 3 February 2006 the amended bill of indictment was lodged with the Warsaw District Court. The applicant was charged with domestic violence and possession of 1.15 grams of marijuana.

On 16 February 2006 the Warsaw District Court again extended the applicant’s detention (until 4 May 2006). The court stressed that there was a reasonable risk that the applicant would obstruct the proceedings and that he would go into hiding. This risk was particularly valid in view of the difficulties which the applicant had caused in the past by his repeated refusal to undergo a psychiatric assessment.

During a hearing held on 23 March 2006 the applicant’s father and sister refused to testify. The applicant was released from detention on the same day. Subsequently, on 5 April 2006, the applicant’s mother also refused to testify.

The Warsaw District Court held further hearings on 27 April, 7 July and 16 October 2006 and on 24 January and 12 March 2007.

On 12 March 2007 the Warsaw District Court gave judgment, acquitting the applicant on charges of domestic violence and convicting him of possession of a small amount of marijuana. The court sentenced the applicant to five months’ imprisonment stayed for three years.

Following an appeal by the applicant, the judgment was quashed (in its part concerning possession of drugs) by the Warsaw Regional Court on 9 August 2007. The proceedings were subsequently discontinued by the Warsaw District Court on 6 November 2007. The court found that the prohibited act committed by the applicant had not constituted an offence because of its insignificant social consequences (znikoma szkodliwość społeczna czynu).

On 5 November 2008 the applicant instituted proceedings for compensation for unjustified detention under Article 552 of the CCP (see paragraph 27 below) before the Warsaw Regional Court. He stated that while the main reason for his detention on remand had been a six-week psychiatric assessment, he had been kept in detention for nearly one year. Moreover, the assessment had begun only five months after his arrest. He also stressed that there had been no risk that he would have attempted to obstruct the proceedings.

His claim was dismissed by the Warsaw Regional Court on 18 March 2010. The court referred at the outset to the Supreme Court’s Resolution of 15 September 1999 (see paragraph 28 below). It further noted that in the present case there had been no breach of procedural provisions of the CCP since the detention on remand had been applied mainly in view of the applicant’s repeated refusal to comply with the courts’ orders. Consequently, the applicant’s detention on remand had been undoubtedly justified, even though eventually he had been acquitted.

On 16 July 2010 the Warsaw Court of Appeal dismissed the applicant’s appeal. The court repeated the reasons given by the Regional Court. It stressed that the applicant had clearly obstructed the proceedings by refusing to undergo a psychiatric assessment. Furthermore, there had been a risk that he could have gone into hiding. Lastly, the court noted that as soon as the applicant’s parents and sister had refused to testify, the applicant had been released.

On 31 May 2011 the applicant’s cassation appeal was dismissed as manifestly ill-founded by the Supreme Court.


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

Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos

The applicant was born in 1968. On 25 October 2010 the Supreme Court of the Chuvash Republic found the applicant guilty of murdering his girlfriend and sentenced him to thirteen years’ imprisonment in a high-security facility. On 27 December 2010 the Supreme Court of the Russian Federation upheld the conviction on appeal.

Since 31 January 2011 the applicant has been serving his sentence in the IK-11 facility (Russian designation УЗ-62/11), a correctional institution located in the Nizhniy Novgorod Region. The sleeping area was severely overcrowded, with each prisoner having less than two square metres of personal space.

The Government submitted copies of the supervising prosecutor’s infringement reports showing that a severe overcrowding had been a constant problem in the IK-11 facility at least until 2013.


André Potocki;Angelika Nußberger;Carlo Ranzoni;Mārtiņš Mits;Sergiy Goncharenko;Síofra O’Leary

The applicant, Mr Anatoliy Yosypovych Bats, is a Ukrainian national who was born in 1947 and lives in Balta.

The applicant was represented by Mr V. Kutsokon, a lawyer practicing in Stara Synyava of the Khmelnytsk Region. The Ukrainian Government (“the Government”) were represented, most recently, by their Agent, Mr I. Lishchyna, of the Ministry of Justice.

Mrs G. Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). The President of the Fifth Section decided to appoint Mr S. Goncharenko to sit as an ad hoc judge (Rule 29 § 1(b)).

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

Between 1993 and 2005 the applicant was dismissed several times from his position as chief forester at Balta Forestry and reinstated following court proceedings.

On 22 December 2005 the applicant was again dismissed from his position for inadequate performance of his professional duties.

On 17 January 2006 the applicant instituted civil proceedings in the Baltskiy District Court to be reinstated and claiming various payments in compensation.

On 21 February 2007 the District Court allowed the applicant’s claims in part. In particular, it found that the defendant, Balta Forestry, had failed to substantiate its allegations that the applicant’s performance at work had been inadequate and ordered his reinstatement. It also awarded him part of the sum claimed in compensation.

The defendant appealed, maintaining that the applicant had been dismissed lawfully.

On an unspecified date the Odessa Regional Court of Appeal (“the Court of Appeal”) scheduled a hearing for 27 September 2007.

On 13 September 2007 the Court of Appeal sent to the applicant, by registered mail with acknowledgement of receipt, an envelope which the applicant received on 15 or 16 September 2007 (see paragraph 13 below).

A copy of the envelope submitted to the Court bears no indication of its contents and the parties disagree as to those contents:

The applicant received the envelope on 15 or 16 September 2007. A copy of the acknowledgement slip provided to the Court by the Government contains a signature, purportedly that of the applicant, and a handwritten note, “27.09.07”, in the field of the slip for the “collect payment on delivery” arrangements. According to the applicant, even though he received the envelope, he was not familiar with the contents of the slip, did not sign it and the signature appearing on it was not his.

According to an undated certificate issued by the Court of Appeal’s clerk, on 3 (sic) September 2007 both the applicant and the defendant were informed of the hearing, to be held at 2 p.m. on 27 September 2007.

On an unspecified date the applicant lodged written comments with the Court of Appeal in reply to the appeal.

On 27 September 2007 the Court of Appeal examined the case in the applicant’s absence but in the presence of the defendant’s representative, who gave oral submissions to the effect that he maintained the appeal. The court found no reason warranting an adjournment on account of the applicant’s absence as the applicant had not filed any such request and had been duly notified of the time of the hearing. It examined the evidence in the file and the applicant’s written comments.

On the same date the court reversed the judgment of the trial court. Having looked again at the evidence, it concluded that the applicant had systematically failed to carry out his professional duties and had therefore been lawfully dismissed.

In November 2007 the applicant appealed in cassation, arguing that he had performed his professional duties properly. The applicant also complained that the appellate court had had no basis whatsoever to state that he had been duly notified of the appeal hearing. The only judicial correspondence he had received in connection with the preparation of the appeal hearing had contained a copy of the other party’s appeal. He had never been served with any summonses for the hearing informing him of its date and time. As a result, he had been deprived of the opportunity to confront his adversary before the Court of Appeal, which had led to the reversal of the earlier judgment in his favour.

On 11 June 2008 the Supreme Court dismissed the applicant’s application for leave to appeal, concluding that the Court of Appeal had complied with the substantive and procedural law in adjudicating the applicant’s case.

On 17 March 2010 the District Court refused to provide the applicant with a copy of the summons notifying him about the appeal hearing or evidence that such a summons had been delivered, stating that there were no such documents in the case file.

Following communication of the case to the respondent Government, on 15 August 2013 the District Court informed the Government Agent’s office that there was no summons for the hearing at the Court of Appeal in the case file because it had been sent to the applicant. The case file contained an acknowledgment slip showing that the summons in question had been served on the applicant in person.

The relevant provisions of the Code of Civil Procedure of 2004 as worded at the material time read as follows:

“1. Parties to proceedings shall be summoned via judicial summonses (повістками про виклик) ...

A judicial summons shall be served in a manner that provides the persons summoned with sufficient time to appear before the court and to prepare for taking part in the judicial examination of the case, but it shall be served no later than seven days before the court session ...

A judicial summons and a slip acknowledging receipt ... shall be delivered by registered mail ... or via couriers to the address declared by the party or another person engaged in the proceedings. A party or his/her representative upon their consent may be given a judicial summons to be served on the respective participants of civil proceedings ...”

“1. A judicial summons addressed to an invidual shall be handed to them against their signature ...

The slip acknowledging receipt of a summons with a mention of the date of service shall be returned ... to the court on the same day ...”

“1. The appellate court shall adjourn should a party fail to appear, where there is no information about whether he/she has been served with the summons ...

Failure to appear by the parties or other persons engaged in the proceedings who have been duly notified of the time and place of the examination of the case shall not prevent the [the court] from examining the case.”

“1. A court decision must definitely be quashed and the case remitted for fresh examination if: ...

3) the case was examined in the absence of any person engaged in the proceedings who was not duly notified of the time and place of the hearing; ...

Other instances of a breach or incorrect application of procedural rules may only be grounds for quashing a court decision where the breach has resulted in incorrect adjudication of the case ...”

By Resolution no. 1155 of 17 August 2002 the Cabinet of Ministers enacted a set of Postal Rules, which were in effect at the material time and which were repealed on 5 March 2009. Point 20 of the Rules provided that summonses were to be accepted for delivery by registered mail, with an acknowledgement of receipt, in envelopes which bore the words “Judicial summons”.


CASE OF İZZETTİN DOĞAN AND OTHERS v. TURKEY

Violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Freedom of religion);Violation of Article 14+9-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 9-1 - Freedom of religion;Article 9 - Freedom of thought conscience and religion);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;André Potocki;Dean Spielmann;Guido Raimondi;Helen Keller;Johannes Silvis;Jon Fridrik Kjølbro;Josep Casadevall;Julia Laffranque;Ledi Bianku;Mark Villiger;Paul Lemmens;Robert Spano;Yonko Grozev

The applicants, whose names are listed in the Annex to the present judgment, are followers of the Alevi faith.

On 22 June 2005 the applicants individually submitted a petition to the Prime Minister, the relevant parts of which read as follows:

“1. ... I am a citizen of the Republic of Turkey and adherent of the AleviIslamic (Alevi, Bektashi, Mevlevi-Nusayri) faith. The Alevi faith is a Sufi and rational interpretation and practice of Islam based on the unity of Allah, the Prophecy of Muhammad and the Koran as Allah’s Word ...

Freedom of conscience and religion is recognised by Articles 2, 5, 10, 12, 17 and 24 of the Constitution, and by Articles 9 and 14 of the European Convention on Human Rights and Article 2 of the additional Protocol, which take precedence over domestic law by virtue of Article 90 of the Constitution ... The State is required to take the necessary measures to guarantee the effective exercise of the right to freedom of conscience and religion. It must comply with that obligation by ensuring that everyone can effectively exercise those freedoms on an equal footing. In the constitutional order this obligation is regarded as a public service and this concept is enshrined in the Constitution.

Under the terms of Article 136 of the Constitution, ‘[t]he Religious Affairs Department [“the RAD”], which is part of the general administration, shall carry out the functions assigned to it under the special law by which it is governed’, in conformity with the principle of secularism, while remaining detached from all political views or ideas and with the aim of promoting national solidarity and union. The RAD was set up with a view to achieving those objectives.

Section 1 of the RAD (Creation and Functions) Act ... provides that ‘the RAD, operating under the Prime Minister, is responsible for dealing with matters of Islamic beliefs, worship and moral tenets and administering places of worship’.

Under the terms of that Act, the RAD is invested with powers to manage all matters relating to Islam as a religion and is also responsible for administering places of worship.

In practice, the RAD confines itself to cases concerning only one theological school of thought [mezhep] pertaining to Islam and disregards all the other faiths, including ours, which is the Alevi faith. Although the State has an obligation under the Constitution and supranational provisions to take all the necessary measures to ensure that the right to freedom of conscience and religion can be freely exercised, the rights of Alevis are disregarded, their places of worship, namely the cemevis, are not recognised as such, numerous obstacles prevent them from being built, no provision is made in the budget for running them, and the exercise of their rights and freedoms is subject to the good will of public officials.

To date, all the demands made by the Alevi community with regard to practising their religion have been rejected as a result of the RAD’s biased approach, which is divorced from scientific and historical fact and based on one theological school of thought alone. As has been emphasised by the European Court of Human Rights, ‘the State’s duty of neutrality and impartiality, as defined in its case-law, is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs.’

In the light of the foregoing, we request that

a. services connected with the practice of the Alevi faith constitute a public service,

b. Alevi places of worship (cemevis) be granted the status of places of worship,

c. Alevi religious leaders be recruited as civil servants,

d. special provision be made in the budget for the practice of the Alevi faith,

On 19 August 2005 the Prime Minister’s public relations department sent the applicants a letter in reply saying that it was impossible to grant their requests. The relevant parts of the letter read as follows:

“1. ... The services provided by the Religious Affairs Department in accordance with the legislation in force are available to everyone and are general and supradenominational. Everyone has a right to benefit from these general religious services on an equal footing.

Having regard to [the current legislation] and to the courts’ case-law, it is impossible to grant the status of place of worship to cemevis.

Everyone has the right to be recruited as a civil servant, in accordance with the provisions of the relevant legislation. In that regard no group of persons can be granted a privilege on the basis of their faith or beliefs and be recruited according to those criteria. As the functions carried out by the Religious Affairs Department constitute a public service, its staff are recruited on the basis of nationality and objective criteria.

It is impossible to make provision in the budget for services that are not provided for in the Constitution or the law.”

Following receipt of that letter, 1,919 people, including the applicants, lodged an application with the Ankara Administrative Court (“the Administrative Court”) for judicial review of the decision refusing to grant their requests. The relevant parts of their notice of application are worded as follows:

“... It is estimated that there are currently between twenty and twenty-five million followers of the Alevi faith (Alevi, Bektashi, Mevlevi-Nusayri) in our country. Up until the 1950s almost all Alevi citizens lived in rural areas. Subsequently, they started migrating to the towns and began practising their faith there.

With regard more particularly to cemevis, before migrating to the towns, Alevis, who led a reclusive lifestyle, practised their religious worship in the largest house in their village ...

Mass migration made it impossible to practise religious worship in houses ...

Moreover, the cemevis which used to exist in the cities, for example in Istanbul, could no longer meet the growing needs of the community. Today’s cemevis, which were built before the conquest of Istanbul, such as Karacaahmet Sultan Dergahı and Şahkulu Sultan Dergahı, could no longer meet the increasing demands of the Alevi community.

... [C]itizens of the Alevi faith have used their own funds to acquire land on which to build cemevis. However, these places of worship have given rise to numerous instances of arbitrary conduct. Whilst certain municipalities had made provision for the construction of cemevis in their urban development plans, many others rejected applications for planning permission, with the RAD continuing to consider that cemevis could not be regarded as places of worship. That attitude has been adopted not only by the municipalities, but by the administration as a whole.

As a result of this arbitrary attitude on the part of the authorities, which is not based on any historical fact, cemevis have not been recognised as places of worship in the Republic of Turkey. Consequently, they are not eligible for any of the advantages linked to that status ...

Citizens who have built their cemevis also pay the religious leaders whom they have recruited to officiate in these places of worship. These religious leaders, who follow a Sufi interpretation of Islam, train and teach the faith using their own means. Like all religious leaders, they play a crucial role in the moral and social progress of society. Yet the authorities do not contribute in any way towards their training ...

As can be seen from the position briefly described above, the authorities almost completely disregard Alevi citizens; their places of worship – the cemevis – are regarded as cultural centres, with the result that they lack the status of places of worship and the attendant advantages. Likewise, the semah, which is one of the basic rituals of Alevi religious ceremonies, is reduced to a picturesque show. Thus, in determining the manner in which citizens must practise their religion, which places are considered as places of worship and the very nature of the faith itself (a belief or culture), the authorities are manifestly infringing the right to freedom of conscience and religion.

Further, the Ministry of Education continues to disregard the Alevi faith and to offer religious education based on one particular Islamic theological doctrine. In doing so, it undermines peaceful co-existence and encourages discrimination from a very young age.

In conclusion, no service is provided to citizens of the Alevi, Bektashi or MevleviNusayri faith, which constitutes a serious oversight ...

According to the Constitution and the relevant legislation, the RAD carries out the functions assigned to it under the special law by which it is governed (a) in conformity with the principle of secularism, (b) while remaining detached from all political views or ideas, and (c) with the aim of promoting national solidarity and union.

In that connection, if regard is had to the RAD (Creation and Functions) Act (Law no. 633) it can be concluded that this body was set up not only for the needs of the Muslim religion (the majority religion), but for those of all religions. However, the present application sets out to challenge the practice of the authorities, of which the RAD is an integral part, with regard to the Muslim religion.

The principle of equality requires that no distinction be made between users regarding either access to public services or the benefit of those services. Where a public service is concerned, equality must be observed in every sphere ... Otherwise, it is a privilege and not a public service ...

Under section 1 of Law no. 633, the RAD is responsible for (a) dealing with matters of Islamic beliefs, worship and moral tenets, (b) enlightening society about matters pertaining to religion, and (c) administering places of worship.

It should be pointed out in this regard that the legislature did not seek to legislate for one particular branch of Islam or one theological doctrine or movement within Islam, but for the Muslim religion as a whole. Accordingly, the RAD is responsible for providing a public service to all citizens who are followers of Islam.

We now come to the facts regarding the practices of the RAD ... The RAD employs approximately 113,000 people, administers some 100,000 mosques and masdjids [prayer rooms for religious practice] and has a budget of several billion Turkish liras set aside in the general budget to carry out the functions assigned to it. In carrying out its functions, the RAD, although its powers encompass the Muslim religion as a whole, confines itself to the demands of the Sunni schools of thought, and in particular the Hanafi school, while disregarding all the other movements and branches of Islam. The general budget is funded mainly by revenue from the taxes paid by all citizens. No distinction on grounds of religion or membership of a religious movement is made where tax collection is concerned. On the contrary, this is based on nationality. However, the RAD, which receives billions of Turkish liras from the general budget, offers a public service only to the followers of one particular theological school of thought ...

It is entirely normal for a religion to encompass several different theological doctrines, movements, beliefs ...”

Referring to the case-law of the European Court of Human Rights, the applicants further contended that, contrary to the position of the RAD describing the Alevi faith as a cultural asset and considering mosques as the only place of Muslim worship, cemevis were places of worship where cems, that is, Alevi religious ceremonies, were conducted. In their submission, it was not for the RAD to decide whether cems were or were not religious ceremonies. Relying on examples taken from speeches by the Head of the RAD, they submitted that it was a matter exclusively for followers of the Alevi faith, and not for a State body, to determine what should be regarded as a religious ceremony.

On an unspecified date the Prime Minister’s Legal Department submitted its memorial in reply. It disputed, first of all, the standing of the applicants to act, submitting that they could not lodge an application on behalf of all Alevis. They observed in that connection that, according to some sources, the number of Alevis in Turkey varied from between four to five million and twenty to twenty-five million and that there was no uniform approach regarding either the definition of the faith or the demands of its followers.

With regard to the merits, the Legal Department went on to dispute the claimants’ arguments. The relevant passages of its memorial read as follows:

“Law no. 677 ... prohibits the bearing of certain religious titles such as sheikh, dedelik [an Alevi religious leader], dervichlik, and so forth, the practices connected with those titles, and the designation of a venue for ceremonies conducted by Sufi orders (tarikat ayini). Failure to comply with these prohibitions is punishable by a term of imprisonment and a fine. Moreover, the same Law orders the closure of tekke and zaviye and their conversion into mosques or masdjids...

The Department carries out its functions in accordance with Articles 10, 136 and 174 of the Constitution and Laws nos. 633 and 677. In carrying out its functions, it encompasses all Islamic beliefs, modes of worship and moral tenets and extends to all people on an equal footing. It is accordingly incorrect to claim that the Department, which carries out its functions in a supra-denominational manner, confines itself to the Sunni branch of Islam ... It is impossible to offer a service to banned Sufi orders (tarikat); this would also be contrary to the principle of secularism and national solidarity.

Article 3 of the Regulation implementing the Law governing the wearing of certain dress defines places of worship as follows:

‘Places of worship (mabedler) are closed areas created in accordance with the relevant procedure and designed in the case of each religion for the practice of religious worship’ ... Having regard to the foregoing, a place cannot be regarded as a place of worship unless it is associated with a religion. In that regard, churches, synagogues and mosques or masdjids are the places of worship of the Christian, Jewish and Muslim faiths respectively. It is clear that everyone has the right to practise his or her faith in private at his or her own home or elsewhere. Accordingly, there is no prohibition or obstacle preventing Alevi citizens from saying their prayers, the zikir or the semah in cemevis. However, the creation, in addition to mosques and masdjids, of places of worship for the followers of a particular interpretation or movement of Islam is not in conformity with religion. Furthermore, an application for designation of a place of worship, appointment of religious functionaries and allocation of a budget on the basis of belief in an opinion or interpretation of the Muslim religion or adherence to a particular theological doctrine would inevitably create an insoluble problem and chaos within that religion ... Moreover, history has shown that the namaz [five compulsory prayers] are never said collectively in the tekke, dergah and zaviye [Dervish monasteries], but that they are said in the mosques or masdjids that are invariably located alongside such places ...

As specified in the notice of application, the Alevi faith (Alevilik) ... is an interpretation and practice of Islam. The Alevi and Bektashi faith is a Sufi interpretation superficially containing elements pertaining to belief in twelve imams and mystical elements (batini). In the past it was practised in dergah in towns. As there were no dergah in the villages, the most appropriate house was chosen. Nowadays, places such as Şahkulu Sultan and Karacaahmet Sultan are the dergah of the Bektashi, that is, tekke ...

To recognise cemevis as places of worship would be contrary to Law no. 677 ... Moreover, a development of that kind would lead to the legalisation of other Sufi orders and many of them that are banned (Naqshbandi, Qadiri, Rufai, Cerahi, and so on) would request legal status ... A number of sectarian groups would then be likely to start appearing around a sheikh ...”

On 4 July 2007 the Administrative Court dismissed the preliminary objections of the authorities and examined the application on the merits. It dismissed the application on the grounds that the refusal by the respondent authorities was in conformity with the legislation in force.

In its reasoning, referring to Articles 2, 90, 136 and 174 of the Constitution and to Laws nos. 633 and 677, and also to the international instruments concerning freedom of religion and the prohibition of discrimination and to the judgment in Hasan and Eylem Zengin v. Turkey (no. 1448/04, 9 October 2007), the Administrative Court observed at the outset that the Alevi faith attained a certain level of cogency, seriousness and cohesion and, as an interpretation of Islam, enjoyed the protection of Article 9 of the Convention. It considered, further, that the object of the application did not relate solely to the State’s negative duty of noninterference but that the applicants were also claiming privileges which, in their view, were granted to the Sunni branch of Islam (allocation of a budget, status of civil servant for Alevi religious leaders, recognition of cemevis as places of worship). It stressed the importance of the principle of neutrality in public services. However, the court found that it had not been established that all Alevis supported the claims submitted by the applicants. Moreover, in the court’s view, the provision of a public service to all interpretations of Islam could hardly be reconciled with the principle of secularism.

The Administrative Court also found that the allocation to the RAD of funds from the general budget was not contrary to the law, as it would be unrealistic to link the payment of general taxes to citizens’ convictions or beliefs. In that connection it stressed that the European Court of Human Rights had not judged it contrary to the Convention to allocate a budget to the secular activities of a church (keeping registers of marriages and deaths, and so forth) or to levy a general tax without specifying how it would be used. The relevant parts of the judgment read as follows:

“... It is clear from the examination of the file that the Administrative Court is being asked in the present case to set aside the Prime Minister’s refusal of the request made in a petition of 22 June 2005 to have religious services provided to Alevi citizens in the form of a public service; to have the cemevis, where Alevi citizens practise their faith, granted the status of places of worship; to have a sufficient number of competent individuals, recognised as such by Alevis, recruited as civil servants for the purpose of the religious rites required by the Alevi faith; to have funds set aside in the general budget to pay for the services required in that regard; to have provision made in the Finance Act for the funds concerned, while taking the necessary action to that end; and to take all the necessary measures in order to grant the requests set out in the abovementioned petition.

Assessing the case in the light of the relevant provisions of domestic law, it can be seen that part of the general budget is allocated to the Religious Affairs Department created under Law no. 633; that the Department does not establish, but rather administers, the mosques ... recognised as ‘places of worship’; that the staff assigned to manage them are religious leaders who are recruited and paid as civil servants to administer religious services in connection with the beliefs, worship and moral tenets of the Muslim religion; and that application of the prohibitions introduced by Law no. 677 is guaranteed by the Constitution.

Hence, it is clear from the interpretation of the provisions of Law no. 633 and Article 128 of the Constitution that it is not possible to recognise a place other than a mosque as a ‘place of worship’ ..., to recruit civil servants for the purpose of the religious rites required by the Alevi faith, or even to make provision in the Finance Act for the funding of the services to be provided in that regard. This would be contrary to the statutory provisions governing the civil service and it is therefore not possible, in accordance with the only statutory provisions of domestic law in force, to grant the requests made in that connection without amending the legislation.

Nevertheless, under the terms of Article 90 of the Constitution, the issue must also be examined from a legal standpoint in the light of the provisions of the international conventions to which the Republic of Turkey is a Party ...

[Reference is made to Article 18 of the United Nations Universal Declaration of Human Rights].

In principle, freedom of religion and belief – which may be defined as adherence to a religion or belief (internally) and the observance, in the place of the individual’s choosing (externally), of the precepts of that religion or belief, alone or in community with others, in so far as this does not disturb public order – is governed by the above-mentioned Articles 10, 14 and 24 of the Constitution of the Republic of Turkey ..., which must be interpreted in a manner consistent with the provisions of the international treaties.

Thus, it must be assessed to what extent Laws nos. 633 and 677 which are in force in Turkey, and existing practices as regards freedom of religion and belief, which are at issue in this case, can be said to be consistent with the judgments of the European Court of Human Rights concerning Article 9 in similar cases.

In the present case it [is generally accepted] that the Alevi faith [enjoys the protection afforded] by Article 9. There can be no doubt in this regard, especially in the light of the practice prevailing in Turkey (see Hasan and Eylem Zengin v. Turkey).

Further, while the European Court of Human Rights considers that the existence of a State Church system is not in itself contrary to the Convention, and while it does not require the State to treat the different religions and beliefs in absolutely identical fashion and does not criticise the existence of an official State religion (see Kokkinakis v. Greece), it nevertheless regards compulsory membership of such a church as a violation of the Convention (see Darby v. Sweden).

The Administrative Court is of the view that, where criticism of or attacks against a religion or belief attain a level liable to jeopardise the exercise of freedom of religion and belief ..., indifference in this regard on the part of the public authorities engages the responsibility of the State. Furthermore, where those same authorities restrict the freedom to manifest one’s religion or belief in the public sphere, the restriction in question must be examined in the light of the following criteria: whether there was interference and, if so, whether the measure in question was lawful, pursued a legitimate aim and was necessary in a democratic society.

There is no provision of the Constitution establishing a State religion. Moreover, in the present case, no specific examples have been provided suggesting that Alevis encounter obstacles in exercising their right to freely manifest their religion or that they are subjected to pressure to adopt a different form of belief.

As to the issue of taxpayers contributing to the funding of the religious activities of a church to which they do not belong, the European Court of Human Rights considers it contrary to Article 9 to collect a tax which directly benefits a church to which the taxpayers do not belong. However, it has found there to be no such violation where the tax is used to fund the church’s secular activities (the keeping of registers of marriages and deaths, and so forth) (see Kustannus Oy Vapaa Ajatellija AB and Others v. Finland, no. 20471/92, Commission decision of 15 April 1996, DR 85, p. 29) or where it is levied as a general tax without it being clear how it is to be used.

Furthermore, a portion of the revenue collected in general taxation from the citizens of the Republic of Turkey is allocated to the Religious Affairs Department. Accordingly, not only can there be no question of any contradiction or inconsistency with the Court’s judgments, but also, if the applicants’ request had to be granted, persons opposed to armaments, war, nuclear power or technology because of their beliefs could not be taxed individually, as it would be impossible to determine who was liable for the tax and public order could no longer be ensured.

As to the argument that the officials recruited by the State to deal with religious matters are not the same individuals as the religious leaders whom other belief communities have themselves chosen, the European Court of Human Rights has held that the State is the ultimate guarantor of the freedom to manifest a religion or belief and that in a situation of this kind the State in a pluralist democracy has a duty, in view of the tensions that are liable to arise, to promote tolerance between the parties and may not subject the different groups to pressure or interfere with their rights and freedoms (see Serif v. Greece, Hasan and Chaush v. Bulgaria, and Kokkinakis v. Greece).

As is clear from the provisions of the above-mentioned international treaties and from the judgments of the European Court of Human Rights, the State, fundamentally and ideally, has a negative obligation in the sphere of freedom of religion and belief to refrain as far as possible from hindering those freedoms. In other words, the ideal system is one in which the State is neutral. Accordingly, seeking to achieve equality does not mean eliminating differences but rather preventing privileges from being granted to certain groups. In the present case, however, the applicants are claiming a number of measures of positive discrimination on behalf of the Alevi community by arguing that, although they are Muslims, Alevis interpret and practise Islam in a different way, and are requesting the Religious Affairs Department to grant them the privileges which, they contend, are granted to Sunni Muslims. There is no doubt that Alevism is a serious and coherent set of beliefs, that it is an interpretation of Islam, and that a large section of the population claims adherence to it. However – and bearing in mind also the general principles set forth in the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief – while it is true that there are indeed differences amongst Alevis as regards the forms of belief and practice and the manner in which they define themselves, and while the applicants also recognise this, there is no specific evidence that all Alevis support the claims made in the present case. Accordingly, from the perspective of freedom of belief, this court reiterates that the ideal is a neutral State which undertakes to protect individuals against being forced to participate against their will in the religious activities of a religious group to which they do not belong.

In the light of all these considerations, examination of the facts from the standpoint of the constitutional principles of the Republic of Turkey demonstrates that

- as regards freedom of religion and belief seen from a normative viewpoint, Articles 10, 14, 15 and 24 of the Constitution were drafted in a manner consistent with the provisions of the relevant international treaties, since no provision of the Constitution of the Republic of Turkey establishes a State religion;

- a portion of the revenue in the general budget is allocated to the Religious Affairs Department, which is part of the general administration;

- the Religious Affairs Department is generally acknowledged to carry out its administrative functions pertaining to matters of Islamic belief, worship and moral tenets by taking as its basis the shared identity of all Muslims and, in accordance with the Constitution and the principle of secularism, while remaining detached from all political views or ideas and with the aim of promoting national solidarity and union; and

- as regards the State practices complained of, the European Court of Human Rights has held in its judgments that these are not contrary to the above-mentioned applicable legislation, which does not overstep the limits of Article 9.

Further, if the State were to respond to all expectations and demands by providing the corresponding public service, for instance by recognising places of worship for groups professing forms of belief linked to the various Islamic schools of law (mezheb), the various Sufi orders (tarikat) and the various understandings and interpretations of Islam that have emerged in the course of history, granting the status of civil servants to the religious leaders of those groups, setting aside a portion of the budget for them and placing them under the authority of a public body, there would be a risk not only of engendering debate on the extent to which State action and the discretion exercised by the Religious Affairs Department in its activities in the public sphere satisfy the spiritual needs of the different groups of believers, but also of breaching the principle of State secularism by upsetting the balance to be struck between religious and legislative rule-making, and of exacerbating different forms of belief. This could ultimately lead to restrictions on freedom of religion and belief, and thus to an outcome that runs counter to the very aim which the applicants sought to achieve in lodging their claims, which were based precisely on their difference.

In these circumstances, the administrative decision refusing the applicants’ requests ... cannot be said to be in breach of the statutory provisions.”

The applicants appealed against the first-instance judgment. They submitted that provision of a public service exclusively to Muslims adhering to Sunni theological doctrines was incompatible with the constitutional principles of secularism and neutrality of public services. They rejected any suggestion that they were requesting the State to grant them positive privileges, arguing that the basis of their claims was the principle of equality. They added that the Turkish State could not be regarded as neutral with regard to religions as it took measures which favoured one religious interpretation to the detriment of others. In the applicants’ view, the courts did not have the right to rule on the legitimacy of a belief or its practices. They furnished expert reports in support of their submissions.

In a judgment of 2 February 2010, served on the applicants on 24 March 2010, the Supreme Administrative Court dismissed the appeal and upheld the first-instance judgment as being in conformity with the procedure and laws.

Although Turkey is a “secular State” according to Article 2 of the 1982 Constitution, the Muslim faith as practised by the majority of citizens enjoys special status for historical reasons.

In Turkey, after the proclamation of the Republic on 29 October 1923, separation of the public and religious spheres was achieved through a series of revolutionary reforms: on 3 March 1924 the caliphate – supreme institution of Muslims – was abolished; on 10 April 1928 the constitutional provision declaring Islam the State religion was repealed; and, lastly, on 5 February 1937 a constitutional amendment was passed according constitutional status to the principle of secularism (see Article 2 of the 1924 Constitution – as amended in 1937 – and Article 2 of the 1961 and 1982 Constitutions). Article 24 of the 1982 Constitution also guarantees the right to freedom of religion and conscience.

Following the abolition of the caliphate the Unification of Education Act (Tevhidi Tedrisat) was passed, abolishing the traditional religious educational institutions. In parallel, the Ministry of the Sharia and Religious Foundations (Şeriye ve Evkaf Vekâleti) and all the religious courts were abolished, and the Diyanet İşleri Reisliği (governing body of the Religious Affairs Department), as it was called at the time, was founded by Law no. 429 of 3 March 1924. By virtue of section 1 of that Law, this body, which was responsible for implementing “all the provisions relating to Islamic worship and faith and the administration of religious institutions”, was placed under the authority of the Prime Minister. The Law provided that this body had no powers in terms of religious education, which was transferred to the Ministry of Education.

In 1950 the administration of mosques and prayer rooms, which had initially been transferred to the Department of Religious Foundations in 1931, was brought back under the supervision of the governing body of the Religious Affairs Department.

The Religious Affairs Department (Creation and Functions) Act (Law no. 633) was enacted on 22 June 1965 and published in the Official Gazette on 2 July 1965 (see paragraph 46 below).

Section 36 of the Civil Servants Act (Law no. 657) of 20 July 1965 introduced a category of civil servants dealing with religious matters. That category includes all civil servants who have received religious training and carry out a religious function, namely the muezzin (those who call the faithful to prayer from the top of the minaret), imam-hatip, vaiz (preacher) and mufti (jurisconsult who interprets Muslim laws and Koranic law).

In its judgment of 21 October 1971 (E. 1970/53, K. 1971/76), published in the Official Gazette on 15 June 1972, the Constitutional Court held that the creation of a category of civil servants dealing with religious matters was compatible with the constitutional principle of secularism. In its reasoning it considered that secularism meant the separation between temporal power and spiritual power. Neither of those powers could interfere in the affairs of the other. The Constitutional Court found that the existence of a clergy and a religious service in the Catholic religion, and the acceptance by Catholics of the Pope as spiritual leader, had played an important role in that conception of secularism. However, in the Muslim religion there was no clergy and the staff responsible for places of worship had no spiritual power. Accordingly, the Constitutional Court held that, as the two religions were different, their religious functionaries could not have the same status. In that connection it observed that it was only in Christian countries that a separation could be imagined between religious functionaries and the State. In the Constitutional Court’s view, the principle of secularism sought to promote the progress of the Turkish nation and did not allow the creation of religious movements pursuing aims that were incompatible with that purpose.

Consequently, and despite the “secular” nature of the Turkish State, the “Islamic religious service” is regarded as a “public service”. In accordance with Article 136 of the Constitution, the RAD – which is in charge of this public service – is part of the general administration and is therefore endowed with public powers, despite not having the status of a publiclaw entity. According to the statistics published by the RAD (http://www.diyanet.gov.tr/tr/kategori/istatistikler/136), in 2013

– the number of civil servants assigned to the department was 121,845;

– the number of mosques was 85,412; and

– the number of Koranic schools (Kuran kursu) managed by the RAD was 13,021.

In Turkey there is no religious tax. Accordingly, since the RAD was created its revenue has always come from the State budget. In that connection, the documents submitted by the parties show that, in 2013, the amount allocated to the RAD was 4,604,649,000 Turkish liras (“TRY”) (approximately 1,960,000,000 euros (EUR) on the basis of the exchange rate at the time). In 2014 the budget came to TRY 5,552,000,000 (approximately EUR 1,933,670,000). For the year 2015 a budget of TRY 5,743,000,000 (approximately EUR 2,036,524,800) was set aside. In their observations the applicants also provided information according to which the budget allocated to the RAD for the period 1996 to 2015 came to a total of TRY 37,275,900,000. The applicants submitted that, on the basis of the relevant exchange rate, that sum corresponded to 16 billion United States dollars (USD). Moreover, according to the data provided by the Government, 95% of the RAD’s budget is allocated to staff expenditure. The Government also pointed out that mosques and district mosques were built on the initiative of volunteer citizens and through their efforts. Lastly, the Government stated that under section 6(3) of Law no. 6446, lighting costs for places of worship were met by the RAD. Thus, in 2014 the sum of TRY 38,529,463 had been set aside in the RAD’s budget to pay the electricity bills of mosques, district mosques, churches and synagogues. No provision was made in the budget for places of Sufi practice such as cemevis, mevlevi houses (mevlevihane) or qadiri houses (kadirihane).

The RAD, as the administrative body responsible for matters pertaining to the Muslim religion in Turkey, has a sort of monopoly over these matters. In that connection, religious services pertaining to Islam are considered to fall within the legal framework governing the public service. This special status is explained, according to the Government, by the fact that the Muslim religion does not have an absolute religious authority or religious organisation comparable to the Church in the Christian religion, nor does it have a clergy or other privileged groups.

It emerges from the articles furnished by the applicants and written by specialists in administrative law that, although the legal framework governing the public service is based on the principle of neutrality, which is a component of the wider concept of a secular State, the attitude of the RAD towards other branches of the Muslim religion has been the subject of widespread criticism in Turkey. The RAD has responded by stating that, in accordance with the principle of secularism, it performs its tasks not by reference to the preferences or religious traditions of a particular faith or a particular religious group or order, but on the basis, among other things, of sources of the Muslim religion accepted by all Muslims. In its view, these traditions and sources are common to all Muslims and are spiritual rather than temporal. Likewise, the services it provides are general and supradenominational and are made available to everyone on an equal footing.

The applicants, however, relying on the articles referred to above, disputed the claim that the RAD’s services were provided to everyone and were general and supra-denominational. They maintained that the RAD provided a religious service based on the SunniHanafi understanding of Islam.

With regard to the status of other beliefs and religions, Turkish law does not provide for any specific procedure by which religious communities can obtain special status under public or private law or religious denominations can be recognised and registered. Consequently, religious communities, except those endowed with the status of recognised religious minority under the Treaty of Lausanne (especially the Greek, Armenian and Jewish communities) or other international treaties (especially the Bulgarian Orthodox community), can only operate as foundations or associations.

In their observations the applicants submitted that, in addition to the Alevis, numerous other religious groups were in the same unfavourable position, namely members of the Protestant churches, Jehovah’s Witnesses, Yazidis, Syriacs and Chaldeans.

The absence of a clear legal framework governing unrecognised religious minorities causes numerous legal, organisational and financial problems. First of all, the religious leaders of these communities have no legal status and there is no appropriate establishment able to train staff involved in the practice of the religion or creed in question. Secondly, their places of worship do not have any legal status and do not enjoy any legal protection. The ability to build places of worship is uncertain and is subject to the good will of the central or local authorities. Arrangements for the upkeep of immovable property with a cultural heritage, which in some cases is literally falling into ruin, are complex. Thirdly, the communities in question cannot officially receive donations from members or State subsidies. Lastly, as they do not have legal personality, these communities do not have access to the courts in their own right but only through foundations, associations or groups of followers.

In addition, there are numerous legal obstacles for religious communities trying to operate as a foundation or an association. Whilst many communities have created their own foundations, under Article 101 § 4 of the Civil Code it is illegal to create a foundation “whose aim is to support ... a specific community” (see, for example, Özbek and Others v. Turkey, no. 35570/02, 6 October 2009). Furthermore, although many communities have created their own associations to serve their specific interests, Turkish law does not provide for any special form of religious association open to religious communities.

In its opinion on the legal status of religious communities in Turkey and the right of the Orthodox Patriarchate of Istanbul to use the adjective “ecumenical”, adopted by the Venice Commission on 15 March 2010 (CDLAD(2010)005f), the latter made the following observations:

“32. The basic problem in Turkish law as regards religious communities is that they cannot register and obtain legal personality as such. There is no clear arrangement in the legal system for this, and no religious community has so far obtained legal personality. Instead they have to operate indirectly through foundations or associations.

Although the lack of legal personality in principle applies equally to all religious communities in Turkey, there is in practice a clear distinction between Muslims and non-Muslims. For Muslim activities, these are administered through the Presidency of Religious Affairs (the Diyanet), which is formally part of the administration and reports directly to the Prime Minister. The Diyanet has responsibility for regulating the operation of the country’s 75,000 registered mosques and employing local and provincial imams, who are civil servants. For the Muslim communities issues related to representation are therefore handled through the Diyanet.

For non-Muslim religious communities, the Diyanet cannot be considered representative. They, therefore, do not legally exist as themselves. Instead, the model provided for under Turkish law is for their members to register foundations or associations, which may (to some extent) support the religious communities. Both these legal structures – foundations and associations – have clear limitations for religious communities, but both have recently been reformed, making them somewhat more usable.”

Although this opinion concerns only the legal status of nonMuslim religious communities in Turkey, it provides an overview of the situation of religious communities in general.

In reply to a question from the Court the applicants specified that the Alevi faith was a belief with particular features which distinguished it in many respects from the Sunni understanding of Islam. Alevis recognised Muhammad as their Prophet and the Koran as their holy book. They asserted that it was a faith which followed an esoteric interpretation of the Koran and believed in man’s “divine essence”, with no distinction being made between the divine being and human essence. Unlike Sunni Muslims, Alevi men and women practised their faith together in the cemevis.

The Government specified that there were no official statistics on the Alevi population in Turkey, as the population censuses did not include any questions concerning religious affiliation. However, referring to the report on Turkey prepared by the USCIRF (United States Commission on International Religious Freedom) (Turkey Chapter – 2014 Annual Report), the applicants submitted that at least 15 to 25% of the total population of Turkey were followers of the Alevi faith, that is, approximately twenty million people. They added that many members of the Alevi community also avoided disclosing their own beliefs. They concluded that the total Alevi population in Turkey was somewhere between twenty-five and thirty million. They also submitted to the Court an extract from the statements made on 1 March 2014 by Mr Özpolat, a Member of Parliament for the CHP (People’s Republican Party), according to which research into the Alevi population showed that

- there were 12,521,792 Alevis in Turkey;

- whilst Alevis lived nearly everywhere in the country, more specifically there were 4,388 areas in which Alevis were the majority population, including 3,929 villages, 9 districts and 2 cities.

- 60% of those people described themselves as “Alevis”, 18% as “Kurdish Alevis”, 10% as “Turkmen Alevis”, 9% as “Muslims” and 3% as “atheists”.

The Government stated that there were 1,151 cemevis in Turkey. The applicants submitted that it could be seen from the discussions in Parliament on adoption of the State budget in 2013 that there were 895 cemevis in cities and approximately 3,000 cemevis in villages.

Cemevis do not have the status of places of worship under Turkish law as they are not regarded as places designed for religious worship in the strict sense of the term (regarding the status of cemevis in Turkey, see in particular the judgment in Cumhuriyetçi Eğitim ve Kültür Merkezi Vakfı v. Turkey, no. 32093/10, §§ 29-31 and §§ 44-52, 2 December 2014). In many opinions the RAD has said that it regards the cemevi as a sort of monastery (tekke), that is, not strictly speaking a place of worship but merely a place of assembly where spiritual ceremonies are held. In its view, the Alevi faith is an interpretation of Islam influenced by Sufism and with specific cultural features, and cannot be regarded as a religion in its own right or as a branch (mezhep) of Islam. Consequently, it associates the status of cemevis with that of the legal entity to which they belong.

The Government stated that seven Alevi workshops (Alevi çalıştayları) had been organised in Turkey between June 2009 and January 2010, with a view to examining questions relating to the Alevi community in the context of the Alevi initiative (Alevi açılımı). The workshops were attended by more than 300 participants including Alevi spiritual leaders –among them the applicant Mr İzzettin Doǧan, who is a dede (Alevi religious leader) – theologians, public figures sympathetic to the problems of Alevis and State representatives. In that connection, a special meeting was organised in the county of Sivas, which had been the scene of bloodshed on 2 July 1993 when intellectuals and Alevis had been persecuted by rightwing extremists outside any legal framework.

During the workshops the issue of the status of the cemevi, affecting the teaching of the Alevi faith and the funding of religious activities, was also discussed. In the final statement adopted at the end of the workshops by Mr F. Çelik, Minister of State, and published on 31 March 2011, the wish was expressed to see the cemevi acquire official status. It was considered that such recognition would allow the Alevi community to take advantage of the many privileges granted to places on which that status was conferred.

According to the final report (Alevi Çalıştayları Nihai Raporu hereinafter “the Final report”) adopted following the workshops, the Alevi question had to be addressed on the basis of a conception of secularism that was compatible with the rule of law, and a solution had to be found without creating new forms of segregation. The report, which is over 200 pages long, addresses the various issues affecting Alevis (Alevi sorunu). The Government produced a copy of the report, the relevant parts of which are set out at paragraph 53 below.

The Government submitted that after the Alevi workshops, on 30 December 2010, the syllabus of the “compulsory religious education and ethics” classes had been changed in order to respond – to a considerable degree, according to the Government – to the demands of the Alevi religious leaders (see Mansur Yalçın and Others v. Turkey, no. 21163/11, 16 September 2014). On 14 March 2015 work had begun on building the Hacı Bektaşi Veli lower secondary school where, among other subjects, the Alevi faith would be taught. Furthermore, Nevşehir University had been renamed Nevşehir Hacı Bektaşi Veli Üniversitesi.

In their observations before the Court the Government submitted that the movements that had emerged in the Muslim world based on Islamic jurisprudence or faith or on the Sufi schools of thought (or Sufi orders) could not be accepted as the only correct forms of Islamic teaching. Consequently, there was no clear distinction between these schools of thought, unlike in the Christian faith. Hence, unlike Christians, the members of a Sufi brotherhood or movement, when asked about their religious identity, would define themselves first and foremost as Muslims without mentioning the fact that they adhered to Sufi beliefs or belonged to a Sufi order. Furthermore, Alevism – whose roots could be traced back thousands of years – could not be considered as a new religious movement.

The Government added that, in Muslim societies, there existed a kind of institutional Islam founded on the Koran and on the practices of the Prophet Muhammad. The differences that had emerged subsequently did not relate to Islam itself, as generally understood, but to the way in which religion and religious life as a whole were perceived, and could not therefore be regarded as a schism within Islam.

In support of their argument the Government submitted an “academic opinion” (Bilimsel Görüş) signed by six professors of theology and a professor of sociology. According to the opinion, on the basis of the overall classification accepted by religious academics, religious groups comprised three primary structures, namely religions, sects and mystical groups. It went on to state that Sufi thought and practice, including the Alevi faith, represented the third category (mystical groups) within Muslim societies. Alevis adhered to Islam and acknowledged that the Koran was the last holy book and that Muhammad was the last prophet. The opinion further considered that prayer (namaz), fasting (oruç) and pilgrimage (haç) were rituals common to all Muslims irrespective of their adherence to a particular branch or theological doctrine. Alevi sources placed strong emphasis on prayer and on the Ramadan fast, and sociological research had found that, in various regions of the country, there were Alevis who practised these rituals. The opinion added that the Alevi faith should be regarded as a Sufi tradition or order tailored to a social system organised around “family groups” (ocak, a sort of tribal organisation), according to the divine trinity of Haqq, Muhammad and Ali. This meant that there was only one God (Allah), that Muhammad was his prophet and that Ali was his saint. Another central concept to the Alevi community was the term Ahl alBayt, which referred to the family of Muhammad.

According to the opinion, the term “Sunnism” referred to “Sunnah” or Ahl al-sunnah, representing the way of life of the prophet Muhammad. The term was generally considered to refer to the theological branches of Islam such as Salafism, Asharism and Maturidism and to the branches of the schools of law, namely Hanafism, Malikism, Shafiism and Hanbalism. According to scholars of Sunnism, in order to be able to draw precise conclusions from the nasses (dogma of Islam comprising rules from the Koran and the Sunnah) and find an answer to controversial questions, it was necessary to take solid verses from the Koran as a basis, to have regard to the undisputed Hadiths (prophetic tradition), to attempt to understand the nasses in their entirety and, in general, to subordinate rationality to revelation, by accepting the apparent meaning of the nasses.

The opinion also stated that it was technically incorrect to compare the Alevi faith to Sunnism or the status of cemevis to that of places of worship, in so far as cemevis were merely places where “customs and ceremonies” (adap ve erkan) were practised by followers of the Alevi faith. Consequently, Alevism could only be compared to other Islamic Sufi groups such as Qadiriyya or Naqshbandiyya (Sufi orders).


CASE OF SHER AND OTHERS v. THE UNITED KINGDOM

Remainder inadmissible (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Review of lawfulness of detention);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home;Respect for private life)

Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Yonko Grozev

At the time of the facts set out below the applicants resided in the United Kingdom on student visas. Their details are set out in the appendix.

On 8 April 2009 the applicants were arrested, along with nine others, under the Terrorism Act 2000, as amended (“the 2000 Act”), in various locations in the North West of England. The arrests occurred in the context of Operation Pathway.

Mr Sher was arrested at 6.35 p.m. on 8 April under section 41 of the 2000 Act (see paragraph 91 below) on suspicion of being involved in the commission, preparation and instigation of acts of terrorism. According to the custody record, his detention was authorised to secure and preserve evidence and to obtain evidence by way of questions.

At around 10 p.m. a review of Mr Sher’s detention was carried out by a senior police officer. Mr Sher made no representations. His continued detention was authorised as necessary in order to secure and preserve evidence and to obtain evidence by questioning.

At 7.40 a.m. on 9 April a notice (“TACT 5 form”) was served on the applicant’s solicitor, Mr Yousaf. The notice set out, inter alia, the following:

“You are hereby informed that