CASE OF YILMAZ YILDIZ AND OTHERS v. TURKEY

Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Pecuniary and non-pecuniary damage - award

András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

The applicants are Turkish nationals who were born in 1972, 1965 and 1961 respectively. Mr Yılmaz Yıldız lives in Niğde and the others live in Mardin.

The first applicant, Yılmaz Yıldız, is a health officer and the branch chairman of the Health and Social Services Workers’ Union (Sağlık ve Sosyal Hizmet Emekçileri Sendikası – “the SES”) in Niğde. The second applicant, Kamiran Yıldırım, is a doctor and the branch chairman of the SES in Mardin. The third applicant, Mehmet Metin Çılgın, is a doctor and also a member of the SES in Mardin.

On 4 February 2005 several members of the union gathered in front of the Niğde Social Security Institution (Sosyal Sigortalar Kurumu – “the SSK”) Hospital. Subsequently the first applicant read out the SES’s press statement drawing attention to the problems that could arise as a consequence of the transfer of hospitals incorporated in the SSK to the Ministry of Health.

The statement read as follows:

“For the attention of the press and the public:

Hospitals incorporated in the SSK have been transferred to the Ministry of Health pursuant to Law no. 5283. Following that structural change patients were unable to take their medication for a long time and hospital staff have been working in a tense atmosphere.

Before the structural changes our union warned the Government and the public. The probable administrative and bureaucratic problems were pointed out: SSK was going to be under a huge economic burden, people would have to pay for health care services and an additional tax was going to be imposed on workers.

Our union maintains that the Government should allocate more funds from the budget to the health care services to redress the structural problems.

Our union states that all citizens should be provided with equal, accessible, sufficient and free health care services.”

On 25 February 2005 the second and third applicants together with another thirty persons gathered in the Mardin Yenişehir SSK Hospital yard. Subsequently, the second applicant read out the press statement in his capacity as chairman of the Mardin branch of the union.

The police did not prevent anyone from entering the yard during either gathering. Nor did they interfere with the demonstrations or the reading out of the press statements.

According to the police reports of 4 February 2005 in Niğde and 25 February 2005 in Mardin, the two groups of demonstrators had been warned verbally that their gatherings were illegal and ordered to disband for the protection of public order and safety.

The Niğde and Mardin public prosecutors filed indictments charging the applicants with intentionally disobeying orders issued by the authorities aimed at protecting public order and safety, pursuant to section 32 of the Misdemeanours Act, Law No. 5326 (see paragraph 17 below).

On 8 June and 14 July 2005 the Mardin Magistrates’ Court and the Niğde Magistrates’ Court, respectively, convicted the applicants as charged and imposed on them administrative fines of 100 Turkish liras (TRY) (approximately 62 euros (EUR)).

The applicants appealed against the courts’ decisions.

On 20 June 2005 and 26 July 2005 the Mardin Assize Court and the Niğde Assize Court, respectively, dismissed the applicants’ appeals. These decisions were notified to the applicants respectively on 15 July 2005 and 3 August 2005.

On 23 August 2005 and 11 October 2005 the applicants paid the fines to the relevant tax departments.


Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression) read in the light of Article 11 - (Art. 11) Freedom of assembly and association;Non-pecuniary damage - award

Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in 1981 and lives in Moscow.

The media reported that on 14 December 2004 a group of about forty members of the National Bolsheviks Party (also referred to herein as “the Party”) occupied the reception area of the President’s Administration building in Moscow and locked themselves in an office on the ground floor.

They asked for a meeting with the President, the deputy head of the President’s Administration Mr Surkov, and the President’s economic advisor Mr Illarionov. They waved placards with “Putin, resign!” («Путин, уйди!») written on them through the window and distributed leaflets with a printed address to the President that listed ten ways in which he had failed to uphold the Russian Constitution, and a call for his resignation.

The intruders stayed in the office for an hour and a half until the police broke through the door. During the arrest, they did not offer any resistance to the authorities.

According to the applicant, she was not a member of the National Bolsheviks Party. She was writing a master’s thesis in sociology on forms of activity of radical political movements in modern Russia. On 14 December 2004 one of the members of the National Bolsheviks Party told her about the direct action in the President’s Administration building planned for that day. She came to witness the protest action in order to collect information for her thesis. She did not take part in the occupation of the office, but merely watched the action, took notes and pictures.

The indictment of the applicant states that at 12.30 p.m. on 14 December 2004 forty Party members effected an unauthorised entry into the reception area of the building used by the President of the Russian Federation’s Administration. Some of them pushed back the guards at the entrance and occupied room no. 14 on the ground floor. They locked themselves in, blocked the door with a heavy safe and let other members of their group enter through the window.

Until the police arrived, the Party members, including the applicant, waved placards through the office window, threw out leaflets and chanted slogans calling for the President’s resignation. They stayed in the office for approximately one hour, destroyed office furniture and equipment and damaged the walls and the ceiling.

On 14 December 2004 the applicant was arrested.

On 16 December 2004 the Khamovnicheskiy District Court of Moscow ordered the applicant’s detention on the grounds that she was suspected of an especially serious criminal offence, might abscond, reoffend, interfere with the witnesses or obstruct the investigation in some other way.

On 22 December 2004 the applicant was charged with the attempted violent overthrow of the State (Article 278 of the Criminal Code) and intentional destruction and degradation of others’ property in public places (Articles 167 § 2 and 214).

On the same date the applicant asked to be released, referring to her clean criminal record, permanent residence in Moscow and permanent employment as a school teacher.

On 24 December 2004 the investigator refused her request, referring to the gravity of the charges, the absence of a registered residence in Moscow and the risk that she might abscond.

On 7 February 2005 the Zamoskvoretskiy District Court of Moscow extended the applicant’s detention until 14 April 2005, finding that the grounds on which the preventive measure had previously been imposed still persisted and there was no reason to vary the preventive measure.

On 15 February 2005 the charges against the applicant were amended to that of a charge of participation in mass disorder, an offence under Article 212 § 2 of the Criminal Code.

On 8 April 2005 the Zamoskvoretskiy District Court extended the applicant’s detention until 14 July 2005, referring to the gravity of the charge and the risk that she might abscond or interfere with the investigation.

On 7 June 2005 the investigation was completed and thirty-nine people, including the applicant, were committed for trial.

On 30 June 2005 the Tverskoy District Court of Moscow held a preliminary hearing. It rejected the defendants’ requests to be released. It stated that it had taken into account the defendants’ characters, their young age, frail health, family situation and stable way of life. However, it found, referring to the gravity of the charges, that “the case file gives sufficient reasons to believe that, once released, the defendants would flee or interfere with the trial”. It therefore ordered that all defendants should remain in custody. On 17 August 2005 the Moscow City Court rejected appeals lodged by several of the applicant’s co-defendants.

On 27 July 2005 the applicant and her co-defendants lodged applications for release. On 27 July 2005 the Tverskoy District Court rejected the applications, finding that their detention was lawful and justified. In particular, it noted that their detention had been extended by the court order of 30 June 2005 and, under the Code of Criminal Procedure, that order was valid for six months. On 5 October 2005 the Moscow City Court upheld the decision on appeal.

On 3 August 2005 the applicant and her co-defendants filed new applications for release. On 10 August 2005 the Tverskoy District Court rejected the applications. It held:

“The court takes into account the defence’s argument that an individual approach to each defendant’s situation is essential when deciding on a preventive measure.

Examining the grounds on which ... the court ordered and extended detention in respect of all the defendants without exception ... the court notes that these grounds still persist today. Therefore, having regard to the state of health, family situation, age, profession and character of all the defendants, and to the personal guarantees offered by certain private individuals and included in the case file, the court concludes that, if released, each of the applicants might abscond or obstruct justice in some other way...

In the court’s view, in these circumstances, having regard to the gravity of the charges, there are no grounds for varying or revoking the preventive measure in respect of any defendant...”

On 2 November 2005 the Moscow City Court upheld the decision on appeal.

During the trial the applicant and her co-defendants stated that they had taken part in a peaceful protest against President Putin’s policies. According to the plan of the protest action agreed in advance, they were to go to the President’s Administration building to meet officials and hand over a petition that listed the President’s ten failures to comply with the Constitution and contained a call for his resignation. They were then to talk to journalists. On 14 December 2004 they had entered the reception area of the President’s Administration building as planned and had gone into a vacant office on the ground floor. The guards had followed them and had hit those who had lagged behind, had pushed them into the office and had shut the door behind them. The guards had threatened to use force against the protesters. Taking fright, the protesters had locked the office door and blocked it with a metal safe. They had chanted slogans and distributed leaflets through the windows, thereby expressing their opinions about important political issues. They denied destroying any furniture or offering resistance to the police. They claimed that the furniture had been destroyed by the police officers who had broken down the door and arrested them.

The employees and the guards of the President’s Administration stated that on 14 December 2004 a group of about forty people had rushed into the President’s Administration’s reception area. They had pushed one of the guards aside, had scurried through the metal detectors and had jumped over tables and chairs. They had run into one of the offices, had locked the door and had started to chant political slogans. The police had arrived and ordered that the office be vacated. As the protesters had failed to comply, the police had broken down the door and arrested them. Some of the witnesses stated that the protesters had showed resistance to the police, in particular by preventing them from forcing open the door.

The police officers who had participated in the arrest stated that before breaking the door down they had ordered that the premises be vacated. Having received no response, they had forced open the door and had arrested the protesters. They denied breaking any furniture in the office, stating that it had been damaged before their arrival.

On 8 December 2005 the Tverskoy District Court found the applicant and her co-defendants guilty of participation in mass disorder. It found it established that the defendants had unlawfully entered the President’s Administration building without complying with the requisite entry formalities. In particular, they had bypassed identity and security checks and had pushed aside the guard who had attempted to stop them. They had then proceeded to one of the offices without being registered at the reception desk and without complying with the guards’ lawful demands to leave the premises. In view of their unlawful and aggressive behaviour, they could not argue that they had participated in a peaceful political action. The court also held as follows:

“[The defendants], acting in conspiracy, committed serious breaches of public safety and order by disregarding established norms of conduct and showing manifest disrespect for society... They effected an unauthorised entry into the reception area of the President of the Russian Federation’s Administration building and took over office no. 14 on the ground floor... They then blocked the door with a heavy metal safe and conducted an unauthorised meeting, during which they waved the National Bolsheviks Party flag and placards, threw anti-[Putin] leaflets out [of windows] and issued an unlawful ultimatum by calling for the President’s resignation, thereby destabilising the normal functioning of the President’s Administration and preventing its reception personnel from performing their service duties, namely ... reception of members of the public and examination of applications from citizens of the Russian Federation...

While performing the above disorderly acts [the defendants] ... destroyed and damaged property in the offices of the reception area of the President’s Administration building...”

In respect of the applicant, the court noted that it was irrelevant whether she had joined the direct action for academic or other purposes. It had been established that she had directly participated in the mass disorder together with the others. Taking into account the fact that the defendants had voluntarily compensated the pecuniary damage in the amount of 74,707.08 Russian roubles (approximately 2,200 euros) caused by their actions and that the applicant had positive character references, the court sentenced her to three years’ imprisonment, but suspended the sentence and put her on three years’ probation. She was immediately released.

In her appeal submissions the applicant complained, in particular, that she had been convicted, in breach of Article 10 of the Convention, for her participation in a peaceful assembly and for public expression of her opinions about important political issues.

On 29 March 2006 the Moscow City Court upheld the judgment on appeal.

From 16 December 2004 to 8 December 2005 the applicant was held in detention facility no. IZ-77/6 in Moscow.

According to the applicant, her cell, which accommodated forty inmates, was overcrowded. The applicant suffered from psoriasis (a skin disease), chronic pyelonephritis (a kidney infection), chronic bronchitis and allergies. She did not receive medical treatment appropriate for her conditions.

According to the Government, from 17 to 20 December 2004 the applicant was held in cell no. 307, which measured 132.1 sq. m and housed thirty-two inmates. From 20 December 2004 to 13 October 2005 and from 21 October to 8 December 2005 the applicant was held in cell no. 303, which measured 123.4 sq. m and housed twenty-seven to thirty inmates. From 13 to 21 October 2005 the applicant was held in cell no. 120, which measured 22.9 sq. m and housed two inmates. The applicant had a separate bunk at all times and was provided with bedding. In support of their position, the Government submitted certificates issued by the remand centre governor on 25 June 2009 and selected pages from the prison population register which recorded, for each day, the number of sleeping bunks and the number of inmates in each of the remand centre’s cells.

Relying on certificates of the same date from the remand centre governor, the Government further submitted that all cells had been equipped with toilet facilities which were separated from the living area by a partition. There had been forced ventilation in the cells. The windows had been large and had not been blocked by shutters. The cells had had sufficient artificial light, which had been located so as not to disturb the inmates’ sleep. There had been no insects or rodents in the detention facility, as all the cells had been disinfected every month. Hot food had been served three times a day. Inmates had been able to take an hour-long daily walk in the exercise yards. They had been allowed to take a shower at least once a week.

Relying on the applicant’s medical records, the Government submitted that the applicant had been regularly examined by specialist doctors and had been prescribed treatment when necessary.


Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-1-c - Reasonable suspicion;Reasonably necessary to prevent offence);Non-pecuniary damage - award

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

The applicant was born in 1973 and is currently serving a sentence in Daugavgrīva Prison.

On 23 August 2010 criminal proceedings were initiated concerning a burglary. On 1 September 2010 they were joined to another set of proceedings concerning another burglary.

On 3 September 2010 the applicant was officially declared a suspect.

On 6 September 2010, following a request from the police, an investigating judge of the Daugavpils Court issued a warrant for his arrest and detention. The decision reads as follows:

“The judge, having examined the case material, the arguments of the [investigative authority] and the attorney’s opinion, considers that the request is justified and should be granted.

Section 241(1) of the Criminal Procedure Law sets out the grounds for the application of a procedural compulsory measure, namely a person’s resistance to the reaching of the aim of criminal proceedings in specific proceedings or to the performance of a separate procedural action, or non-execution or improper execution of his or her procedural duties.

In accordance with section 272(1) of the Criminal Procedure Law a person may be detained only if specific factual information obtained in the course of criminal proceedings creates a reasonable suspicion that the person in question has committed a criminal offence, for which the law provides for a custodial sentence, and if no other preventive measure can ensure that they will not commit another criminal offence or obstruct or avoid the pre-trial proceedings, trial or execution of the sentence.

Section 12(2) of the Criminal Procedure Law provides that human rights may be restricted only in cases where such restriction is required for public safety reasons and according to the nature and danger of the criminal offence.

On 3 September 2013 the [applicant] was declared a suspect of a criminal offence proscribed by section 175(3) of the Criminal Law. Information obtained in the course of criminal proceedings excludes reasonable doubt about his implication in a serious criminal offence. The only possible sanction for commission of this crime is a custodial sentence.

It follows from the case material that the [applicant] has declared [to the domestic authorities] his place of residence as [address of Daugavgrīva Prison] in Daugavpils. The case material also contains [a document from another set of criminal proceedings] with [his] signature, whereby he undertakes an obligation to reside at [a particular address] in Daugavpils. On 25 August 2010 the [investigating authority] sent a notice to that address for the [applicant] to appear at a police station on 27 August 2010. On a copy of that notice the investigator has made a note that the [applicant] failed to appear at the allotted time and did not inform [anyone] about the reasons for his absence. On 2 September 2010 a decision was made to forcibly escort the [applicant] to the [investigating authority] on 3 September 2010, but [this decision] could not be executed since the [applicant] was not living at [that particular address]. Police officers verified on several occasions other possible places where the applicant might be, but it was impossible to find him or where he might be; this is evidenced by the police officers’ reports of 4 and 7 August 2010. Information has been obtained in the course of the criminal proceedings that the [applicant] is renting an apartment in the [name of a particular street] area of Daugavpils, but the specific address is unknown. In the circumstances, there are grounds to consider that the [applicant] is hiding and avoiding participation in the investigation, thereby resisting the reaching of the aim of the criminal proceedings and obstructing the normal course of the criminal proceedings and a speedy and fair resolution of issues arising from criminal law.

Information obtained from the Penalty Register shows that the [applicant] has been tried on five occasions, [reference to various crimes, including burglary]. Taking into account the time spent in pre-trial detention, he has served the [custodial] sentence imposed and ... is currently [subject to an] additional penalty – police control. In the circumstances, there are reasonable grounds to consider that at liberty, the [applicant] could continue to carry out criminal activities and would commit another criminal offence.

Taking into account the aforementioned, the judge concludes that the [investigating authority’s] request is justified and that the security measure [of] detention should be imposed on the [applicant], since imposition of another security measure could not prevent him from committing another criminal offence or from avoiding the investigation. Also, given that the [applicant’s] actual location is not known, it is necessary to issue a search warrant.”

The applicant was arrested on 9 September 2010.

On 27 September 2010 a judge of the Latgale Regional Court examined an appeal brought by the applicant and upheld the initial detention order. This decision reads as follows:

“Having assessed the reasons mentioned in the [applicant’s] complaint and his request, having heard the explanations given during the hearing, having examined the case material of the procedural compulsory measures and of the [instant] case, [and] taking into account the opinion of the [investigative authority], I consider that the decision of the investigating judge of the Daugavpils Court, to impose on the [applicant] the security measure of detention, should be upheld.

I exclude from the [6 September 2010] decision a note to the effect that the [applicant] was avoiding participation in the investigation. According to the available information...on 16 July 2010 the [applicant] was convicted of [various crimes, including burglary] and sentenced to six years and three months’ imprisonment, police control for two years and confiscation of property. Taking into account the time spent in pre-trial detention, he has served the [custodial] sentence imposed. That judgment took effect on 7 August 2010... There is no convincing evidence that [he] received the notice to appear [at the police station] or [other] procedural documents sent [to him]...

The conclusion made by the investigating judge – that detention had to be ordered for the [applicant] – is correct, since specific factual information obtained in the course of the criminal proceedings has created a reasonable suspicion that he committed a crime proscribed by section 175(3) of the Criminal Law, [for which] the law provides for a custodial sentence. Imposing another security measure could not ensure that the [applicant] would not commit another criminal offence. These reasons correspond to section 272(1) of the Criminal Procedure Law. They are confirmed by the information available within the criminal proceedings. The [applicant] has been sentenced on several occasions for crimes against property. He has also served sentences in prison but he has not drawn the necessary conclusions and has not reformed. He is suspected of an analogous crime committed while under police control [in connection with his previous conviction]. These circumstances are sufficient to conclude that at liberty, the [applicant] could commit another criminal offence. The investigating judge has rightly concluded that imposition of another security measure could not prevent him from committing another criminal offence. The [applicant’s] detention is justified. The public safety (sabiedrības drošība) is more important than the liberty of an individual who is acting contrary to the interests of society.”

On 12 November 2010 the investigating judge of the Daugavpils Court carried out a bi-monthly review of the applicant’s detention and adopted a decision in that regard. It reads as follows:

“Having heard the arguments of the [investigating authority], the [applicant’s] explanation and the attorney’s position and having examined the case material, the judge concludes that the security measure [of] detention imposed on the [applicant] should continue to be applied.

The security measure [of] detention was imposed on the [applicant] to ensure public safety and to prevent other criminal offences being committed. The grounds for detention have not changed. The [applicant] is suspected of two burglaries...a serious crime for which the law only provides for a custodial sentence. Previously, the [applicant] was tried on six occasions; his last conviction on 16 July 2010 concerned [various crimes, including burglary] and he was sentenced to six years and three months’ imprisonment, police control for two years and confiscation of property. Taking into account the time spent in pre-trial detention, he has served the [custodial] sentence imposed and he is suspected of an analogous, serious crime while under police control [in connection with his previous conviction]; therefore, a possibility continues to exist that at liberty, he could continue to carry out criminal activities and would commit another criminal offence, and the grounds for detention under section 272(1) of the Criminal Procedure Law have not disappeared. Pre-trial investigation continues within a reasonable time and there is no unjustified delay.

It is not within the investigating judge’s competence to examine and assess the evidence obtained; therefore, the [applicant’s] submission – that the detention [order] should be lifted as there is no evidence of his guilt – is not substantiated. Besides, the [applicant’s] allegations that the [investigating authority] has ignored his requests and has not carried out additional questioning should not be taken into account as they contradict the case material.

Section 277(6) of the Criminal Procedure Law provides that a person suspected of or charged with a crime may not be held in pre-trial detention for more than six months.

The [applicant] has been detained since 9 September 2010, that is, for slightly more than two months. The time-limit for detention has not been exceeded.

In the circumstances, the investigating judge considers that the [applicant’s] detention should be continued.”

On 9 December 2010 the applicant was officially charged with the two burglaries. On 20 December 2010 the pre-trial investigation was concluded and the case was forwarded for adjudication to the Daugavpils Court.

On 12 January 2011 another review of the applicant’s detention was carried out and he was retained in custody.

On 18 February 2011 the Daugavpils Court held the first hearing on the merits of the case, during which the applicant asked the court to change the security measure applied to him. In this respect, the court held as follows:

“During the hearing, the [applicant] submitted a request that the security measure [applied to him] be changed as there is no evidence for his conviction; the gathering and verification of the necessary evidence requires more than six months, therefore his continued detention is not permitted. The [applicant] undertakes to attend all hearings.

Having heard the [applicant’s] explanation [and the] opinions of the victim, attorney and prosecutor, the court considers that [his] request to change the security measure should be dismissed for the following reasons.

In accordance with section 249(1) of the Criminal Procedure Law, if during the application of a procedural compulsory measure the grounds for the application of the measure disappear or change, or the provisions for the application of the measure or behaviour of the person change, or if other circumstances are ascertained that determined the choice of the compulsory measure, an [investigating authority] should take a decision to change or lift the measure.

It follows from the wording of the decision of 6 September 2010 by the investigating judge of the Daugavpils Court that the [applicant] was detained because he was hiding and avoiding participation in the investigation... Besides, it has been ascertained that there are reasonable grounds to conclude that at liberty, the [applicant] could continue to carry out criminal activities and would commit another criminal offence.

Taking into account that the [applicant] has been charged with a serious crime, that the grounds for detention have not disappeared or changed, that the conditions for its application have not changed, and that the legal requirements concerning the length of detention have been met, the court considers that the [applicant’s] request to change the security measure should be dismissed”.

The second trial hearing was held on 7 April 2011. The applicant once again requested a review of his continued detention. In this respect, the court held as follows:

“During the hearing, the [applicant] submitted a request that the security measure [applied to him] be changed due to changes in the grounds for his detention and for application of the measure. The Latgale Regional Court excluded any reference that the [applicant] would avoid the investigation. Section 59 of the Criminal Procedure Law sets out the [types of evidence] allowing the suspicion that [a person has committed a criminal offence]. However, in the instant case there is no evidence for his conviction. The charges are not justified [as] the [applicant] has not admitted his guilt, therefore there is no reason to consider that he would continue to commit criminal offences...Detention can only be ordered with a view to preparing a judgment, but it is clear that judgment cannot be prepared for 9 September 2011 as all movements and escort (visas kustības un konvojēšanas) needs at least half a year, therefore his continued detention is of a punitive nature, which is prohibited by law. The [applicant] asks to be released, undertakes to attend all hearings and not to commit any offences.

Having heard the [applicant’s] explanation [and the] opinions of the attorney and prosecutor, the court considers that his request to change the security measure should be dismissed for the following reasons.

In accordance with section 249(1) of the Criminal Procedure Law, if during the application of a procedural compulsory measure, the grounds for the application of the measure disappear or change, or the provisions for the application of the measure or behaviour of the person change, or if other circumstances are ascertained that determined the choice of the compulsory measure, an [investigating authority] shall take a decision to change or lift the measure.

It follows from the text of the decision of 6 September 2010 by the investigating judge of the Daugavpils Court that the [applicant] was detained because he was avoiding participation in the investigation... Besides, it has been ascertained that there are reasonable grounds to conclude that at liberty, the [applicant] could continue to carry out criminal activities and would commit another criminal offence.

The [applicant] rightly points out that the Latgale Regional Court in its decision of 27 September 2010 excluded any reference to the grounds of the investigative judge’s decision that the [applicant] was avoiding participation in the investigation. However, the grounds for detention – the possibility that at liberty, the [applicant] could commit another criminal offence – have not changed. The [applicant] has been convicted on several occasions, most recently on 16 July 2010. In the instant case, he has been charged with crimes committed on 20 August 2010 and on the night of 22...August 2010; therefore, another security measure could not ensure that the [applicant] would not commit other criminal offences.

The court has not yet started proceedings and, accordingly, [its] assessment of the evidence, therefore there is no reason to decide on the lack of evidence for the [applicant’s] conviction; this has to be done when preparing a judgment in the case. When applying detention, the investigating judge and judge of the appellate court found that specific factual information obtained in the criminal proceedings created a reasonable suspicion that the [applicant] had committed a crime proscribed by section 175(3) of the Criminal Law, for which the law imposes a custodial sentence.

In the circumstances, it has to be concluded that the grounds for detention under section 272(1) have not disappeared.

Taking into account that the [applicant] has been charged with a serious crime, that the grounds for detention have not disappeared or changed, that the conditions for its application have not changed, and that the legal requirements concerning the length of detention have been met, the court considers that the [applicant’s] request to change the security measure should be dismissed.”

During a hearing on 6 June 2011 the applicant’s request to be released from detention was rejected for almost identical reasons.

On 8 August 2011 the Daugavpils Court decided to release him from detention as the maximum legal length of pre-trial detention (twelve months) was approaching.

At the time the parties to the present case finished exchanging their observations, the criminal proceedings against the applicant had not yet been concluded.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Enforcement proceedings;Article 6-1 - Access to court)

Aleš Pejchal;Armen Harutyunyan;Ledi Bianku

The applicant was born in 1947 and lives in Yerevan.

On an unspecified date the applicant brought a claim in the Arabkir and Kanaker-Zeytun District Court of Yerevan against K., a private individual, seeking payment of a certain amount of money. It appears that before the beginning of the court’s examination of the case the applicant and K. concluded an agreement to settle the debt, which envisaged, inter alia, a time-frame for payment.

On 3 May 2005 the District Court delivered a judgment upholding the settlement. It also stated that bailiffs would enforce the judgment if it was not complied with. No appeal was lodged and the judgment became final.

As K. did not comply with the terms of the settlement, the District Court issued a writ of execution and on 13 June 2005 a bailiff instituted enforcement proceedings. According to the applicant, the bailiff found no funds or property belonging to K. during the enforcement procedure.

By a letter of 7 June 2007 the bailiff informed the applicant that he had found out during the enforcement proceedings that K. had inherited a house but had not registered her ownership of it. The bailiff advised the applicant to institute proceedings against K. in order to have her ownership of the house recognised.

It appears that later in 2007 the applicant brought a claim in the Arabkir and Kanaker-Zeytun District Court to have K.’s ownership of the house recognised.

On 24 October 2007 the District Court, relying on Article 1225 § 5 of the Civil Code, granted the applicant’s claim and recognised K. as the owner of the house in question. There was no appeal and the judgment became final.

On 19 November 2007 the bailiff, acting on a writ of execution issued by the District Court, instituted proceedings to enforce the judgment of 24 October 2007.

On 22 November 2007 the bailiff requested that the State Committee of the Real Estate Registry recognise K.’s ownership of the house, register it and issue a copy of the ownership certificate.

In reply, the Real Estate Registry on 4 December 2007 informed the bailiff that in order to register K.’s rights to the house it needed an application from K., the original of the District Court’s judgment of 24 October 2007 and receipts for the State fee and other related payments. It also mentioned that K. was unlawfully occupying a plot of land whose status was unclear.

On 8 February, 4 July and 4 August 2008 respectively, the bailiff made similar requests to the Real Estate Registry in which he stated, with reference to section 22 of the Law on the State Registration of Property Rights, that an application from K. was not required. He also stated that the issue of registration-related payments would be decided upon initiation of the registration process and that receipts would be submitted.

In 2008 the applicant brought a claim in the Administrative Court against the Real Estate Registry and the bailiff, seeking to oblige them respectively to register K.’s ownership of the house and to confiscate it from her.

On 1 December 2008 the Administrative Court granted the applicant’s claim by ordering the Real Estate Registry to register K.’s rights to the house and the bailiff to confiscate it from her. In particular, the Administrative Court found that both the refusal of the Real Estate Registry to register K.’s ownership rights and the non-enforcement by the bailiff of the judgment of 3 May 2005 owing to a lack of funds on the part of K. had been groundless as K.’s ownership of the house had been recognised by the final court judgment of 24 October 2007. It appears that no appeal was lodged against the Administrative Court’s judgment and it became final.

According to the applicant, none of the three court judgments was enforced.

On 18 February 2010 the applicant sought the payment of interest by K. via a claim in the District Court. On 1 March 2011 the District Court accepted his claim and ordered K. to pay him 17,727 US dollars (USD), to be converted into Armenian drams. The judgment became final on 1 April 2011. The applicant sought enforcement of the judgment on 2 April 2012 but was refused by the bailiff since he had failed to act within the time-limit of one year starting from the final judgment. That term had expired on 1 April 2012. Moreover, the applicant had also failed to submit a power of attorney to the bailiff.

On 10 February 2012 K. submitted a receipt for the payment of the debt to the bailiff and he terminated the enforcement proceedings on 13 February 2012.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Article 5-4 - Speediness of review)

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

The applicants complained of the excessive length of their pre-trial detention. Some applicants also raised other complaints under the provisions of the Convention.


Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant was born in 1971 and lives in Paşcani.

The applicant is a journalist and chief editor of the local weekly magazine, Orizontul.

The applicant wrote an article about R.N., the mayor of Paşcani, which appeared in the 15-21 February 2005 edition of that magazine under the headline “Resignation of honour”, listing ten points advocating the mayor’s resignation. The article contained references to the mayor’s activities, with wording such as “Twenty years of local dictatorship”; “[R.N.] at the peak of the pyramid of evil”; “in Paşcani, only those who subscribe to [R.N.]’s mafia-like system can still do business”; “we have been ruled for over twenty years by a former communist who still has the reflexes of a county chief secretary”; and “[R.N.] does not represent the interests of the [local community]”.

On the same page, the applicant wrote a news piece about an investigation into the mayor’s activities. He quoted a statement by a politician about an ongoing investigation into some of the mayor’s activities by the prefectural standards board. The article also contained a statement by another politician and the mayor’s point of view on the investigation.

On 14 March 2005 R.N. lodged a criminal complaint with the Paşcani District Court, accusing the applicant of insult and defamation. He also sought civil damages.

On 19 December 2005 the court convicted the applicant of defamation and ordered him to pay a criminal fine of 10,000,000 Romanian lei (ROL) and to pay to R.N., together with the publishing company, ROL 30,000,000 in compensation for non-pecuniary damage. It acquitted him of the accusations of insult.

The court noted that the applicant had submitted official documents proving that there had been irregularities in the activities of the public administration, but considered that that proof alone was not sufficient to justify making those statements of fact. The court reiterated that a journalist had a general obligation to act in good faith:

“Although irregularities have been found in the activity of the Pașcani Agency for the Administration of Markets, this fact alone did not entitle the applicant to write that the victim was a ‘Mafioso who received bribes from businessmen’ in order to create facilities for them, as there is no evidence to support these statements.

According to the Code of Press Ethics the right to freedom of expression comes with duties and responsibilities, the journalists having an obligation to act in good faith, in order to provide accurate and credible information.”

In establishing the sentence, the court took into account the applicant’s criminal record, as he had previously been convicted of insult and defamation.

The applicant appealed on points of law, arguing, in particular, that the statement that had brought about his conviction was not an imputation of a crime, as required for the existence of calumny. Moreover, he pointed out that he had not written the sentence quoted by the District Court, namely that the mayor was a Mafioso who received bribes from local businessmen.

In a final decision of 27 April 2006 the Iaşi County Court upheld the previous decision. The court of appeal confirmed the lower court’s finding and explained that the expression “subscribe to ... a mafia-like system” was defamatory of the victim. It further reiterated the journalist’s obligation to act in good faith, and took the view that in not limiting his assertions to what was necessary to inform the public, the applicant had made value judgments intended to defame the mayor. It also noted that the applicant had failed to abide by the warnings given to him by way of previous convictions for similar facts and had persisted in his criminal behaviour.


Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-1 - Reasonable time)

The applicant was born in 1982 and lives in Bern, Switzerland. At the time of the events giving rise to the present application, he was the editorin-chief of Ülkede Özgür Gündem, a daily newspaper published in Turkey.

On 6 July 2004 an article written by Mr B.G. entitled “Analysing the Kurdish dynamic correctly” was published in Ülkede Özgür Gündem. In his article, Mr B.G. stated his views on the role of Abdullah Öcalan, the leader of the PKK (an illegal armed organisation), a number of organisations associated with the PKK in regional and international politics and political developments in Turkey. Next to the article a photograph of Abdullah Öcalan shaking hands with a group of armed men was published.

On 8 July 2004 the public prosecutor at the Istanbul Assize Court filed a bill of indictment, charging the applicant with disseminating propaganda in favour of the KONGRA-GEL under section 7(2) of the Prevention of Terrorism Act (Law no. 3713) on account of the article published on 6 July 2004. In the indictment, the public prosecutor quoted the following passage from the article:

“... Abdullah Öcalan, who has contributed to the essential dynamic of the Kurdish movement and the HPG, the PJA and the KONGRA-GEL, organisations which have acted as military, political and ideological leaders and which have represented his leadership,... [must be well understood]”.

The public prosecutor stated that a photograph of Abdullah Öcalan in which he was standing in a rural area holding a weapon had been published in the newspaper, next to the article. The public prosecutor considered as a result that the applicant had disseminated propaganda in favour of a terrorist organisation inciting others to violence or other methods of terrorism. Subsequently, criminal proceedings were launched against the applicant before the Istanbul Assize Court.

During the proceedings the applicant maintained that the article in question had been a news article and had not contained propaganda inciting to violence.

On 24 May 2005 the Istanbul Assize Court convicted the applicant of disseminating propaganda in favour of the PKK/KONGRA-GEL under section 7(2) of Law no. 3713 and sentenced him to six months’ imprisonment and a fine. In its judgment, the Istanbul Assize Court held that the content of the article and the publication of Abdullah Öcalan’s photograph amounted to dissemination of propaganda in favour of the PKK/KONGRA-GEL.

The applicant appealed. In his appeal petition, referring to a number of the Court’s judgments, the applicant claimed that he had not had the intention of disseminating propaganda in favour of a terrorist organisation and that his criminal conviction had been in breach of Articles 6 and 10 of the Convention as he had been exercising his right to impart information. He also noted that the first-instance court had failed to examine the article in its entirety.

On 16 May 2006 the principal public prosecutor at the Court of Cassation returned the case file to the first-instance court and requested that the latter revise its judgment in the light of the recent legislative amendments.

On 28 September 2006 the Istanbul Assize Court once again convicted the applicant under section 7(2) of Law no. 3713, with the same reasoning that it had adopted on 24 May 2005. The court sentenced the applicant to a fine of 1,802 Turkish liras (TRY).

The applicant appealed.

On 18 November 2009 the Court of Cassation upheld the judgment of 28 September 2006.

According to a document dated 15 January 2010, signed by the President of the Istanbul Assize Court and the Istanbul public prosecutor, the applicant was required to pay the fine of TRY 1,802.


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

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

The applicant was born in 1932 and lives in the town of Gorlivka, Ukraine.

From 1953 to 1966 the applicant worked in a mine.

In 2001-2002 the applicant asked the Lenin Mine (his former employer) and the State mining enterprise Artemvugillya (the Lenin Mine’s legal successor) to explain to him how section 43 of the Mining Act (“Гірничий закон”) (see “Relevant domestic law” below) was to be implemented, and to pay his electricity and gas costs in accordance with this provision. In reply he was informed that persons who were entitled to receive coal free of charge but were living in houses with central heating had the right to exemption from electricity and gas payments, such costs being borne by the mining companies. However, no appropriate legal mechanisms implementing “the methods of calculation and the sources of financing” had been adopted by the Cabinet of Ministers.

In 2003 the applicant complained to a prosecutor’s office that his requests to have his electricity and gas payments covered had been ignored. In a letter dated 13 February 2003 from the Tsentralno-Miskyy District Prosecutor’s Office, the applicant was informed that he was entitled to exemption from electricity and gas payments. Since the Lenin Mine had refused to accept his claims owing to the lack of funds and no compensation mechanism was provided for by law, the applicant was advised to lodge his claims with the court.

In April 2003 the applicant instituted proceedings in the Tsentralno-Miskyy District Court against the State mining enterprise Artemvugillya and local communal heating and gas providers. He claimed that under section 43 of the Mining Act the mine should cover his electricity and gas costs by means of contributions paid into the local budget. He also claimed reimbursement of amounts already paid and asked that the State mining enterprise Artemvugillya settle his heating and gas debts. The applicant also claimed compensation for non-pecuniary damage. He updated his claims in 2004.

On 7 April 2004 the Tsentralno-Miskyy District Court found against the applicant. The court held that the applicant had worked in a mine for more than ten years and thus was entitled to receive free coal for everyday domestic needs. As he lived in a house with central heating, section 43-8 of the Mining Act should apply in his case. However, no mechanism was in place for the implementation of that provision. In particular, there was no procedure for transferring funds from mining enterprises to the local budget. The court also held that the applicant’s request for reimbursement of the amounts already paid had no basis in law.

On 29 July 2004 the Donetsk Regional Court of Appeal upheld that decision.

On 4 April 2006 the Supreme Court rejected an appeal on points of law by the applicant.

In a decision of 1 December 2006 the Tsentralno-Miskyy District Court ordered the applicant to settle his heating debts, noting that section 43 of the Mining Act did not exempt him from paying for heating services. That decision was upheld on 26 June 2007 by the Donetsk Regional Court of Appeal. On 23 October 2007 the Supreme Court of Ukraine rejected a request by the applicant for leave to appeal on points of law.

In a letter dated 4 November 2008 the Gorlivka Town Council informed the applicant that at that date no mechanism had been set up to handle the compensatory payments requested by him.

In letters dated 14 May and 2 July 2009 the Ministry of the Coal Industry of Ukraine informed the applicant that the mechanism for implementing section 43-8 of the Mining Act would be set up pursuant to a corresponding decision by the Cabinet of Ministers of Ukraine.

In a letter dated 17 August 2009 the Ministry of Labour and Social Policy of Ukraine informed the applicant that on 12 August 2009 the Cabinet of Ministers had adopted the corresponding decision, which was subject to approval by the Ministry of Finance.

In a letter dated 4 August 2010 the Ministry of Labour and Social Policy informed the applicant that he had no right to any compensation payments as the mine where he had been working in was in liquidation.

In October 2010 the applicant instituted court proceedings against the Tsentralno-Miskyy Department of Labour and Social Policy of the Gorlivka Town Council requesting recognition of his rights under sections 43-7 and 43-8 of the Mining Act and a declaration that the Department’s inactivity was unlawful.

On 1 November 2010 the Donetskyy Regional Administrative Court refused to examine the applicant’s claim and informed him that it should be lodged before a court of general jurisdiction. That decision was upheld on 7 December 2010 and on 28 September 2011 by the Donetsk Administrative Court of Appeal and by the Higher Administrative Court respectively.

The Mining Act entered into force on 1 December 1999. Parts 7 and 8 of section 43 of the Act that were in force before 2 September 2008 read as follows:

“Coal-mining enterprises shall provide free coal for everyday domestic needs in the amount determined by collective agreement for the following categories of persons:

pensioners who have worked in coal-mining enterprises for 10 years (men) and 7.5 years (women)...

Persons who have the right to receive free coal but live in houses with central heating shall be exempted from paying for electricity and gas, those costs being borne by the coal-mining (processing) enterprises, which shall transfer the funds to cover the costs to the local budget.”

Pursuant to the “Transitional provisions” Chapter of the Mining Act, the Cabinet of Ministers of Ukraine had to adopt the relevant legal mechanisms with a view to implementing the Act’s provisions within four months of the date of the Act’s entry into force.

In 2008 section 43-8 was amended as following:

“Persons who have a right to receive free coal but live in houses with central heating shall receive compensation for electricity, gas and heating payments by way of contributions paid from the State budget to the local budget.”

The procedure for granting the above compensation was determined by a decision of the Cabinet of Ministers of Ukraine (no. 887 of 12 August 2009).


Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life)

Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Vincent A. De Gaetano;Georges Ravarani

The applicant was born in 1965 and lives in Szajol.

On 6 October 1990 he married Ms N.R. The couple had one daughter, R.Ó, born on 23 March 1994.

On 24 March 2006 the couple divorced and agreed on custody of the child and other parental rights. Their agreement, which was approved by the Szolnok District Court, placed the daughter with her mother and granted the applicant contact every other weekend, during the school holidays, Easter Sunday, Whit Monday, the first holiday following Christmas Eve and three weeks during the summer holidays. The applicant was also to pay child allowance, amounting to 20% of his salary, but at least 20,000 Hungarian forints (HUF approximately 66 euros (EUR)) per month.

Ms N.R. moved out of the former family home and took up residence in Budapest.

The applicant could exercise contact on 25 and 26 June and 24 July 2006. However, his daughter was reluctant to stay with him during the summer holidays and preferred to spend her holidays with her grandparents.

The applicant’s further attempts to exercise contact failed, seemingly because in the mother’s view it was up to the child to decide whether she wanted to see her father. The applicant applied to the Szolnok County Guardianship Authority to have the contact agreement enforced. In a decision of 11 September 2006 it ordered Ms N.R. to comply with the agreement, warning her that failure to do so could result in her being fined and ordered to reimburse the applicant’s travel costs. Given the strained relationship between the parents, a notary initiated child protection proceedings (védelembe vétel) on 27 December 2006. Subsequently, on a number of occasions Ms N.R. was fined for not complying with the agreement. It appears from the case file that the applicant could exercise contact between 10 July 2007 and 10 November 2008.

In 2007 Ms N.R. brought an action seeking to change the applicant’s contact rights and an increase in the amount of child allowance. In a counterclaim the applicant requested that the child be placed in his custody.

The applicant also filed a criminal complaint against Ms N.R. alleging child endangerment. The parties’ attempt to stabilise the relationship between the applicant and his daughter during the suspension of the custody proceedings were unsuccessful and the Szolnok District Court ordered that any meetings between them take place at a child protection centre.

In a judgment of 10 June 2008 the Szolnok District Court reduced the applicant’s contact with his daughter to every first and third Saturday of the month from 9 a.m. to 6 p.m. It held that the previously agreed form of contact was unlikely to be implemented and would only lead to further proceedings before the guardianship authority, which would be to the detriment of the child. The court based its judgment on an expert opinion finding that the child should have had an adaptation period to re-establish her relationship with her father. The court dismissed the applicant’s claim concerning custody, stating that the child’s wishes had to be taken into account, given that she was now fourteen years of age.

On 19 November 2008 the Jász-Nagykun-Szolnok County Regional Court upheld the first-instance judgment in essence but amended the applicant’s contact rights to every other Saturday between 9 a.m. and 4 p.m. until 31 May 2009, and all weekend-long visits every other weekend as of 1 June 2009.

In 2009 the applicant failed to turn up at numerous scheduled meetings for months, for which he was fined HUF 10,000 (approximately EUR 35).

In 2010 the applicant’s contact rights and the amount of child allowance were subject to further litigation. On 29 January 2010 the Szolnok District Court dismissed an action brought by him seeking to decrease the amount of child allowance, and a review of the way contact should be exercised. The court established that since the court decision of 19 November 2008, no contact had taken place between the applicant and his daughter and, despite a request by the applicant, the guardianship authority had taken no steps to implement the judgment on the grounds that he had made no efforts to resolve the conflict with his daughter. In particular, he had paid no heed to her request to travel by public transport instead of in his car.

The court also found that in the absence of any significant change in circumstances, there was no reason to amend the arrangements for contact.

In a final judgment of 15 April 2010 the Jász-Nagykun-Szolnok County Regional Court reviewed the applicant’s parental rights, granting him contact every other weekend on the condition that the daughter, who was by now already 16 years old, be allowed to visit him by herself. The court dismissed the applicant’s request for a decrease in the child allowance. The applicant lodged a petition for review with the Supreme Court. It was dismissed on 8 February 2011.

It appears from the case file that meetings between the applicant and his daughter only took place sporadically in 2010 and did not happen at all in 2011, despite the applicant lodging numerous enforcement requests with the guardianship authority.

In 2011 the applicant requested that the Jász-Nagykun-Szolnok Guardianship Authority and all subordinate guardianship authorities be excluded from any further proceedings for bias. On 12 December 2011 the Budapest Regional Guardianship Authority appointed the Budapest XV District Guardianship Authority to deal with any further proceedings concerning the enforcement of the applicant’s contact rights, noting that at that point there were eight enforcement requests pending, the oldest dating back to January 2010.

The applicant lodged a number of requests seeking to end his obligation to pay child allowance, which were finally accepted by the Budapest IV and XV District Court on 10 October 2012 and on appeal by the Budapest High Court on 3 September 2013. Nonetheless, an additional request by him for the reimbursement of the child allowance he had already paid was dismissed at both levels of jurisdiction.


András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant in the first case, Mr Tyrone Fenech, is a Maltese national, who was born in 1985 and lives in Birgu.

The applicant in the second case, Ms Amanda Agius, is a Maltese national, who was born in 1985 and lives in Fgura.

The applicants were represented before the Court by Dr D. Camilleri, a lawyer practising in Valletta.

The Government were represented by their Agent, Dr P. Grech, Attorney General.

The facts of the case may be summarised as follows.

On 10 February 2004 the first applicant (who was nineteen years old at the time) was arrested and interrogated on suspicion of trafficking ecstasy (a drug which is regulated by the Medical and Kindred Professions Ordinance, Chapter 31 of the Laws of Malta). During the interrogation, at which no lawyer was present, he gave a statement admitting to selling about two hundred ecstasy pills and to using ecstasy and cannabis.

On 12 February 2004 he gave another statement on oath before a magistrate, whereby he confirmed the contents of his previous statement and implicated some other individuals. The latter statement was given at the police headquarters shortly after he had been released, but it is unclear whether he was re-arrested and taken to the headquarters for further investigation, or whether he was asked to attend the police headquarters for further questioning by the inquiring magistrate.

On 10 February 2004 the second applicant (who was eighteen years old at the time) was arrested and interrogated on suspicion of trafficking and possession of ecstasy. During the interrogation, at which no lawyer was present, she gave a statement admitting to her involvement in the crime. She declared that she had been using ecstasy for nearly a year, that she smoked cannabis, and that she had helped Mr Fenech to sell about ten ecstasy pills for 5 Maltese liri (MTL) each.

On 12 February 2004 she gave another statement on oath before a magistrate, whereby she confirmed the contents of her previous statement. From the documents provided it is not possible to determine the time of this interrogation or whether the applicant was under arrest.

Subsequently the applicants were arraigned in the Court of Magistrates (as a court of criminal judicature) and their above-mentioned statements were exhibited as evidence against them.

On 1 December 2009 during the criminal proceedings, the applicants requested the court to make a referral to the constitutional jurisdictions regarding complaints they had concerning the lack of legal assistance afforded to them during investigation and interrogation. By a decision of 11 June 2009, the court granted the request and referred the case. The applicants alleged a breach of their right to a fair trial (Article 6 of the Convention) on account of the lack of legal assistance. They requested that their statements - both those made to the police and those made to the magistrate - be excluded from the prosecution’s evidence.

By a judgment of 23 January 2012, the Civil Court (First Hall) in its constitutional competence found a violation of the first applicant’s right to a fair trial, in so far as he had not had access to a lawyer before and during the police interrogation which led to his statement of 10 February 2004. The same applied in respect of his statement under oath before the magistrate, if made while under arrest. It considered that a person had just as much a right to legal assistance before making a statement to a judicial authority as he or she did before making a statement to the police.

It ordered that any statements made by the applicant while under arrest should not be used in the criminal proceedings against him. It was for the Court of Magistrates (as a court of criminal judicature), before which the case was pending, to make an order as to what was to be done with those statements in accordance with this decision. Since it was not clear whether the applicant was under arrest on 12 February 2004, it was therefore for that court to decide that matter.

Accepting that the case was not premature, and in the light of the criminal courts’ referral, it found that the first applicant’s right to a fair trial had been breached only in relation to the statement given to the police, but not the statement given before the magistrate, which could thus be admitted as evidence in the criminal proceedings against him.

It considered that the right to legal assistance was not a formality which the accused could use as a further means of defence if not respected. The right served to ensure that statements are made freely, with the knowledge of the right to remain silent, without threats and promises, violence or abuse. A breach of the right to legal assistance during interrogation would occur when a statement was obtained by abuse and not solely because there was no lawyer present. There existed no right for accused persons to be found not guilty. The role of the lawyer was to ensure that the statement was taken legitimately and not to give advice as to how to hide the truth or make a limited or selective declaration. The law aimed to establish the truth and to ensure that no false statements are obtained by abuse. Fundamental rights were meant to promote the dignity of the individual, a matter which surely would not be protected by giving rights which distort or hide the truth at the expense of the proper administration of justice. The right to legal assistance was intended to protect persons in particular situations of vulnerability, weakness or fear who as a result of which made statements which led to a finding of guilt despite their innocence. Legal assistance in such cases prevented any such abuse and counteracted the vulnerability of the individual concerned.

In the present case the applicant was only nineteen years of age at the time and may well have been vulnerable; however, someone other than a lawyer could have provided for such a guarantee, such as a magistrate (independent from the police), before whom the applicant made his second statement in accordance with domestic law.

For these reasons the Constitutional Court upheld the Article 6 violation only in respect of the statement the applicant made to the police, which could not therefore be used in the criminal proceedings against him, but not in respect of the statement made before the inquiring magistrate, which could be used in the proceedings.

By a judgment of 23 January 2012, the Civil Court (First Hall) in its constitutional competence found a violation of the second applicant’s right to a fair trial, in so far as she had not had access to a lawyer before and during the interrogation which led to her incriminating statement being used by the prosecution as a crucial piece of evidence. The same applied in respect of a further statement she made under oath before a magistrate, if made while under arrest (that is, while in police custody), since Strasbourg case-law did not make such a distinction. It ordered that any statements made by the applicant while under arrest should not be used in the criminal proceedings against her. It was for the Court of Magistrates (as a court of criminal judicature), before which the case was pending, to make an order as to what was to be done with those statements in accordance with this decision. In particular, it was not clear whether the applicant was under arrest or had already been released on 12 February 2004; it was therefore for that court to decide that matter.

On appeal, by a judgment of 22 February 2013, the Constitutional Court reversed in part the first-instance judgment. Accepting that the case was not premature, also in the light of the criminal courts’ referral, it found that the second applicant’s right to a fair trial had been breached only in relation to the statement given to the police, but not in respect of the statement given before a magistrate, which could thus be admitted as evidence in the criminal proceedings against her. It reiterated the considerations it had made in the above mentioned judgment in respect of the first applicant, Mr Fenech.

The criminal proceedings against the applicants are still pending before the Court of Magistrates (as a court of criminal judicature), which has suspended the case pending the outcome of the proceedings before this Court.

The relevant domestic law concerning the case is to be found in Dimech v. Malta (no. 34373/13, §§ 24-25, 2 April 2015).


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court)

The applicant was born in 1951 and lives in Khanty-Mansiysk.

On 11 March 2002 the applicant lodged an action against his former employer, the Khanty-Mansiysk Institute of Northern Wildlife Management (“the institute”, Ханты-Мансийский «Институт природопользования Севера»), which was affiliated to the State Agricultural Academy of Tyumen (“the Academy”, Тюменская государственная сельскохозяйственная академия), a State-owned educational institution. The applicant sought reinstatement in a job and work-related benefits.

On 13 May 2002 the Khanty-Mansiysk Town Court of the Tyumen Region (“the Town Court”) held in the applicant’s favour.

On 26 June 2002 the Court of the Khanty-Mansy Autonomous Region (“the Regional Court”), acting on appeal, reversed the above judgment and remitted the case to the Town Court for a fresh examination.

On 22 July 2002 the case file was sent to the Town Court.

On 13 August 2002 the institute was liquidated.

On 10 November 2003 the judge invited the defendant to present its objections and the applicant to specify his claims.

On 29 December 2003 the Town Court replaced the institute by the Academy as the defendant following the applicant’s request lodged on 10 November 2003.

On 19 January 2004 the Town Court joined two other persons as co-plaintiffs.

The hearing of 29 January 2004 was postponed to 2 March 2004 following the applicant’s request for collection of certain documents.

The hearing of 2 March 2004 was postponed to 26 April 2004 due to the prosecutor’s absence and the applicant’s position according to which it was impossible to examine the case in his absence.

The hearing of 26 April 2004 was postponed to 7 June 2004 following the applicant’s request to consult documents in the case file which had not been previously communicated to him.

On 7 June 2004 the applicant presented additional claims which required their communication to the respondent. The hearing was thus postponed to 2 July 2004.

The hearing of 2 July 2004 was postponed to 20 August 2004 following the applicant’s request to summon a witness and to collect additional documents.

The hearing of 20 August 2004 was postponed to 8 October 2004 due to the applicant’s health problems.

At the hearings of 8 October 2004 and 10 December 2004 the applicant amended his claims. Both hearings were adjourned to enable the respondent to study the amendments.

On 17 January 2005 the Town Court partly granted the applicant’s action, ordering his immediate reinstatement at “the Khanty-Mansiysk academy’s affiliate” as from 13 February 2002 and awarding him 474,587.05 and 20,000 Russian roubles (RUB) in arrears and nonpecuniary damage respectively.

On 27 January 2005 and on 2 February 2005 respectively the respondent and the applicant appealed.

On 21 March 2005 the prosecutor presented his objections on both appeals. On the same day the case was sent to the Regional Court.

On 5 April 2005 the Regional Court, acting on appeal, affirmed the above judgment as to the reinstatement and non-pecuniary damage, reversing and remanding it for a new trial as to the arrears.

On 17 May 2005 the sums due to the applicant under the judgment of 17 January 2005, as amended by the Regional Court on 5 April 2005, were transferred to his bank account.

In the meanwhile the Town Court was renamed the KhantyMansiysk District Court of the Khanty-Mansy Autonomous Region (“the District Court”). The applicant’s case was assigned thereto.

On 19 April 2005 an expert was appointed with a view to determining the applicant’s benefit entitlement. The next hearing was scheduled for 20 May 2005.

On 19 May 2005 the expert presented his calculations.

At the hearing of 20 May 2005 the applicant challenged the expert’s calculations. The applicant was invited to present his own calculations based on documentary evidence and examine a possibility to conclude a friendly settlement.

The hearing of 16 June 2005 was adjourned to 8 July 2005 on account of the inconsistency of the applicant’s calculations with the Labour Code. The parties were invited to establish new calculations.

The hearing of 8 July 2005 was adjourned pending the outcome of the supervisory-review appeal lodged by the respondent.

On 17 August 2005 the District Court awarded the applicant RUB 242,734.40 in arrears.

On 4 October 2005 the Regional Court upheld the above judgment on appeal.

On 5 April 2006 the sums due to the applicant under the judgment of 17 August 2005, as upheld on 4 October 2005, were transferred to his bank account.

On 10 January 2006 the applicant returned the writ of enforcement to the District Court on the ground that the name of the debtor institution was incorrectly indicated.

On an unspecified date the bailiff applied to the District Court seeking clarification of the judgments of 17 January 2005 and of 17 August 2005. The bailiff argued that both judgments were impossible to execute in view of the institute’s liquidation.

On 8 February 2006 the District Court examined his request in the presence of the Academy’s representative and the applicant.

In its first decision delivered on that date the District Court rectified the defendant’s name and held that the sums awarded to the applicant be paid by the Academy.

By its second decision, the District Court rejected the bailiff’s request for clarification of the judgment of 17 January 2005 as regards the applicant’s immediate reinstatement. The court held that the procedure of dismissal of an employee in case of liquidation of a structural subdivision of the employer was governed by the relevant provisions of the Labour Code.

These judgments were not appealed against and became final.

On 17 January 2005 the Academy lodged an application for supervisory-review with the Presidium of the Court of the Khanty-Mansy Autonomous Region (“the Presidium”). The Academy alleged that the lower courts had incorrectly applied the substantive law and consequently the judgments of 17 January and 5 April 2005 should be quashed in their entirety.

On 12 May 2006 the Presidium amended the judgments of 17 January and of 5 April 2005 as to the applicant’s immediate reinstatement. The Presidium found that in accordance with Article 81 § 4 of the Labour Code in case of the liquidation of a branch of an organisation located in another territory the termination of contracts of its employees is governed by the rules applicable to the liquidation of organisations. In accordance with point 60 of the Ruling of the Plenum of the Supreme Court no. 2 of 17 March 2004, if it is not possible to reinstate an unlawfully dismissed employee because of the liquidation of the organisation, the court finds that the dismissal was unlawful and holds that he was dismissed in accordance with Article 81 § 1 of the Labour Code as a result of the liquidation of the organisation. In view of the above, the Presidium concluded that the lower courts incorrectly applied the substantive law and amended their judgments in the part concerning the applicant’s immediate reinstatement by declaring that he should be considered as dismissed as a result of the liquidation of the employer organisation as from 17 January 2005 and that there was no need to send the matter to a new consideration. The Presidium rejected the remainder of the Academy’s supervisory-review application.


Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Uzbekistan);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

The applicants are nationals of Uzbekistan. Their initials, dates of birth, the dates on which their applications were introduced, application numbers, as well as the particulars of the domestic proceedings and other relevant information are set out in the Appendix.

On various dates they were charged in Uzbekistan with religious and politically motivated crimes, their pre-trial detention was ordered in absentia, and international search warrants were issued by the authorities.

Subsequently the Russian authorities took final decisions to remove (that is to say extradite or expel) the applicants to Uzbekistan, despite consistent claims that in the event of removal the applicants would face a real risk of treatment contrary to Article 3 of the Convention.


George Nicolaou;Guido Raimondi;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä

The applicant, Mr Viktors Pancers, is a Latvian national, who was born in 1965 and lives in Riga. He is represented before the Court by Mr A. Vidžups, a lawyer practising in Riga.

The Latvian Government (“the Government”) are represented by their Agent, Ms K. Līce.

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

On 23 August 2002 the Rīga City Vidzeme District Court authorised the applicant’s detention on remand. The term of the applicant’s detention was subsequently extended on several occasions.

On 20 September 2002 the applicant was officially charged with large scale fraud and bribery. The charges against the applicant were subsequently amended on several occasions.

The bill of indictment was finalised on 12 March 2004 and the case was transferred for adjudication to the Rīga Regional Court. On the same day the public prosecutor in charge of the criminal case against the applicant informed the director of Matīsa prison that the term of the applicant’s detention had been prolonged. The hearings in the first-instance court took place between 10 January and 1 August 2005.

On 1 August 2005 the Rīga Regional Court adopted judgment in the criminal case against the applicant and eight other defendants. The applicant was convicted of several crimes: repeated bribery; abuse of an official position; acquisition, possession and sale of cocaine; money laundering and repeated fraud. He was acquitted of the charges of incitement to bribery, illegal acquisition and sale of a firearm as well as falsification of a criminal case against a third person.

The applicant was sentenced to imprisonment of six years and one month. The court also indicated that the applicant was to be continued to be held in detention.

The applicant and two of his co-defendants appealed.

The Supreme Court started the appeal hearings on 23 May 2006. Hearings continued for three days, after which the presiding judge postponed the continuation of the trial until 30 June 2006.

On 30 June 2006 the Supreme Court, acting as an appeal court, adopted a decision by which it quashed the first-instance court’s judgment in its entirety and remitted the case to the first-instance court. The appeal court considered that the first-instance court’s judgment had not been adequately motivated and had furthermore relied on evidence which had not been presented during the hearing. The court also ruled on the applicant’s detention on remand and found it necessary to prolong the term of the applicant’s detention for three further months. The operative part of the decision of the appeal court indicated that the term of the applicant’s detention on remand was to be prolonged by three months “starting from the date of entry into force of the decision”.

On 2 July 2006 the applicant lodged a complaint on points of law about his continued detention with the Supreme Court. On 17 August 2006 the Supreme Court informed the applicant that his appeal had been received on 7 July 2006.

On 27 August 2006 the applicant submitted an additional appeal on points of law against the Supreme Court’s decision to retain him in detention.

On 7 November 2006 the Senate of the Supreme Court, after having examined the appeals on points of law submitted by the applicant and codefendants, and an opinion of the prosecutor, quashed the appeal court’s decision of 30 June 2006 in full and remitted the case to the appeal court. The Senate pointed out that upon identifying procedural flaws in the firstinstance court’s judgment the appeal court itself had a duty to examine the case on the merits and adopt a new judgment.

On 23 October 2007 the Supreme Court started hearings concerning the applicant’s appeal against the judgment of the firstinstance court. The appeal court refused to order the applicant’s release from detention, arguing that his detention had been ordered by the verdict of the firstinstance court.

On 22 September 2008 the applicant was released from prison after having completed his sentence.

On 27 February 2009 the Supreme Court adopted a judgment. It upheld the judgment of the firstinstance court in full save for one episode of fraud, of which the applicant was acquitted. The applicant’s final sentence remained unchanged.

In a final decision of 28 October 2009 the Senate of the Supreme Court rejected the appeals on points of law that had been lodged by the prosecutor, the applicant and two of the applicant’s co-defendants. The applicant had disputed the interpretation of evidence by the appeal court and the fairness of his conviction in general.

Section 570 of the Law of Criminal Procedure (in force from 1 October 2005 and at the material time) provides that:

(1) A cassation complaint or protest shall be lodged not later than within l0 days after the day when a court’s judgment or decision becomes available.

(4) An appeal or protest submitted pursuant to the procedure specified in paragraph 1 of this Article shall suspend the execution of a judgment or the entry into force of a decision."

The relevant legal provisions and the domestic case-law in relation to the right to completion of the criminal proceedings within a “reasonable time” have been summarised in the case Trūps v. Latvia (dec.), no. 58497/08, 20 November 2012.


Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Uzbekistan);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation;Positive obligations);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award (Article 41 - Just satisfaction)

Dmitry Dedov;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant, Mr Lutpiddin Bakhritdinovich Mukhitdinov (a.k.a. Sattarov, see below), was born in 1967 in the Uzbek SSR of the USSR. He claims to have lived in Uzbekistan until 1992 when he left for Saudi Arabia.

Since 1997 the applicant has been living in Russia. In 2001, he acquired Russian nationality and changed his name to Sattarov.

On 7 May 2013 the Tyumen division of the Federal Migration Service determined that the applicant had obtained Russian nationality by fraud and cancelled his Russian passport. On 25 December 2013 the Tyumen Regional Court upheld, in the final instance, the decision of the Migration Service.

According to the letter from the police chief in Namangan, Uzbekistan, dated 8 April 2013, the applicant forfeited his Uzbek nationality because of his unaccounted absence from the country for more than five years.

On 7 May 1998 a criminal case was instituted against the applicant in Uzbekistan on the charge of illegal crossing of the Uzbek State border, an offence under Article 223 of the Uzbek Criminal Code.

On 15 December 2009 further charges were levelled against the applicant under Article 159 § 3 of the Uzbek Criminal Code (“Infringement of the constitutional order of Uzbekistan”) and Article 242 § 1 (“Organisation of a criminal enterprise”). The charges related to the applicant’s alleged participation in the religious terrorist organisation The Islamic Movement of Uzbekistan (Wahhabii); he was suspected of meeting with its representatives during his stay in Saudi Arabia and of spreading the ideas of the organisation.

On 16 December 2009 the Namangan Criminal Court issued an arrest warrant.

On 30 June 2013 the applicant was arrested in Tyumen, Russia.

On 2 July 2013 the Kalininskiy District Court of Tyumen issued a detention order valid until 30 July 2013. On the latter date the District Court extended the authorised detention period until 30 December 2013. The extension was upheld by the Tyumen Regional Court on 15 August 2013.

On 11 December 2013 the Russian Prosecutor General approved the applicant’s extradition in relation to the offence of organising, and taking part in, the activities of the Islamic Movement of Uzbekistan, an extremist organisation (Article 244-2 § 1 of the Uzbek Criminal Code). It was noted that “the [applicant’s] extradition ... in relation to the extremist charges ... cannot be regarded as an obstacle for extradition since no procedural decision was taken in this respect by the competent Russian authorities” and further that the Uzbek authorities had provided “diplomatic assurances that [the applicant] ... would not be subject to torture, violence, other cruel or degrading treatment”.

On 26 December 2013 the District Court approved a further extension of the detention period until 30 March 2014. The applicant challenged the extension before the Regional Court, claiming that the maximum detention period in case of a medium-gravity offence, for which his extradition had been approved, was set by law at six months. By decision of 13 February 2014, the Regional Court quashed the extension order of 26 December 2013, finding that the District Court did not give any specific reasons for extending the applicant’s detention, and remitted the detention matter to the District Court. It directed that the applicant should remain in custody until 24 February 2014.

In the meantime, on 21 January 2014 the Tyumen Regional Court upheld the extradition order as being lawful and justified. The court noted that the Uzbekistan Prosecutor’s Office provided the appropriate assurances, that the Russian Ministry of Foreign Affairs had no information capable of preventing the applicant’s extradition, that the Russian Federal Security Service had no information about the applicant’s persecution in Uzbekistan for political motives and that counsel’s allegations of a real risk of illtreatment or torture in Uzbekistan were “unsubstantiated” (голословные).

On 21 February 2014 the District Court issued a new extension order by which the applicant’s detention was extended until 30 March 2014. The applicant challenged it on the same grounds as before. On 11 March 2014 the Regional Court granted the applicant’s complaint and released him from custody, finding that by virtue of Article 109 of the Code of Criminal Procedure his detention could not have been extended beyond the initial sixmonth period.

On 19 March 2014 the Supreme Court rejected at final instance the applicant’s challenge to the decision on his extradition to Uzbekistan. It stated that the arguments about a real risk of torture and political persecution were “unconvincing”.

In the early morning of 22 July 2014 the applicant was taken away from his home by seven uniformed officers of the Federal Migration Service. The applicant’s lawyer arrived immediately on the scene and attempted to follow them but was stopped by the traffic police.

When the applicant’s wife and son arrived at the local office of the Migration Service later on that day, they were told that he had already been released.

On 27 July 2014 the applicant’s representative before the Court sent a faxed letter to the Federal Security Service, the Border Control and the Prosecutor General’s Office, asking them to stop the applicant’s unlawful transfer to Uzbekistan. She stated that she had information that the applicant was detained in a police ward in Tyumen and that he might be placed on the next flight to Tashkent.

Further to the Court’s request for factual information (see paragraph 7 above), on 7 August 2014 the Government replied that the applicant’s current whereabouts were not known, that he had not been detained or transferred outside of the Russian territory by State agents and there was no information about him crossing of the State border.

On 20 August 2014 the Tyumen Regional Prosecutor’s office advised the applicant’s representative as follows:

“As regards [your] allegation about an unlawful arrest of Mr Mukhitdinov, I inform you that on 22 July 2014 the officers of the Tyumen regional branch of the Federal Migration Service conducted, in accordance with the approval plan on combating illegal migration, checks in the places where foreign nationals and stateless persons live, including the premises of a mosque at 9, Zhdanova street, Tyumen. Following the check, three persons, including Mr Mukhitdinov, were brought to the immigration control department. Upon identification, he was released.

According to the information provided, Mr Mukhitdinov (Sattarov) was not arrested by the police on 22 July 2014 or any other date; the police has no information about his whereabouts.”

On 1 September 2014 the Tyumen Regional Prosecutor’s office additionally informed the counsel that on 25 August 2014 the Tyumen Regional Investigations Committee instituted a criminal case into the applicant’s disappearance.


Violation of Article 6 - Right to a fair trial (Article 6 - Disciplinary proceedings;Article 6-1 - Impartial tribunal)

András Sajó;Ganna Yudkivska;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1953 and lives in Tbilisi.

On 15 May 1999 the applicant was appointed President of the Abasha District Court for a ten-year term.

On 3 December 2004 the Supreme Council of Justice initiated disciplinary proceedings against the applicant under section 2(2)-(e) of the Act of 22 February 2000 on Disciplinary Proceedings against Judges of Ordinary Courts (hereinafter, “the Disciplinary Proceedings Act” – see paragraphs 15-18 below). He was accused in particular of having retained a criminal case file for six months after withdrawing from the case on 29 October 2003.

On 23 December 2004 a Panel of the Disciplinary Council of Judges (hereinafter, “the Panel”), composed of Mr K.K. (the President of the Panel and rapporteur), Mr G.Ch, Mr D.S. and Mr Th.Th., considered the case at an oral hearing. According to the transcript of the hearing, the applicant admitted to the act of negligence he had been accused of. After examining the circumstances of the case, the Panel found the applicant guilty of the misconduct in question. It considered his conduct all the more serious because the defendants in the case had been in detention at the time and because he had had a duty, under Article 6 of the Convention, to act promptly and without fault. The Panel took into account the nature of the misconduct, which it classified as serious, and the existence of another disciplinary measure against the applicant in the past, and decided to remove him from office.

On 29 December 2004 the applicant lodged an appeal with the Disciplinary Council of Judges (hereinafter, “the Disciplinary Council”) on points of fact and law under section 60(1) of the Disciplinary Proceedings Act (see paragraph 17 below). He questioned the assessment of the circumstances of the case and the application of the legal provisions to the established facts in the decision of 23 December 2004. His appeal was examined at a plenary session of the Disciplinary Council composed of eight members, including the same four, Mr K.K., Mr G.Ch., Mr D.S. and Mr Th.Th, who had sat at the first hearing. As before, Mr K.K. acted as President and rapporteur in the examination of the applicant’s appeal.

By a decision of 27 January 2005, the Disciplinary Council unanimously upheld the Panel’s decision of 23 December 2004 in its entirety. The appellate instance confirmed that the lower body had correctly established the facts and applied the relevant law to the factual findings.

The applicant then lodged an appeal on points of law with the Supreme Court under section 74 of the Disciplinary Proceedings Act, as amended on 25 February 2005 (see paragraph 18 below). He argued that he had not been given notice that he could appear before the Panel and that there had been a delay in the Disciplinary Council examining his appeal. He also stated that under Article 6 of the Convention the four members of the Panel who had taken the decision of 23 December 2004 had not had the right to sit subsequently in the Disciplinary Council appeal hearing.

In a judgment of 11 July 2005, the Supreme Court dismissed the applicant’s cassation appeal as ill-founded. Based on the transcript, it found that he had in fact been present at the Panel hearing on 23 December 2004 and had been able to state his case without impediment, contrary to his allegation. At the hearing the applicant had admitted to the act of negligence with which he had been charged. The Supreme Court rejected the allegation of a delay in the examination of the case by the Disciplinary Council by noting that the latter had given its ruling within the statutory time-limit of one month. The Supreme Court also found that the presence of four members of the Panel as participants in the subsequent Disciplinary Council proceedings had not contravened the requirements of sections 22 and 24 of the Disciplinary Proceedings Act (see paragraph 17 below).