CASE OF BUZURTANOVA AND ZARKHMATOVA v. RUSSIA

No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

András Sajó;Dmitry Dedov;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicants were born in 1970 and 1987 respectively. The first applicant lives in Noviy Redant, Ingushetia, and the second applicant in Mayskiy (also spelled as Mayskoye), North Ossetia-Alania. The first applicant is the sister of Mr Akhmed Buzurtanov, who was born in 1983. The second applicant is his wife.

At the material time Mr Akhmed Buzurtanov was working as a martial arts trainer in the “Ellin” sports club (gym) (in the documents submitted also referred to as the “Kaloy” sports club) in Nazran, Ingushetia. He was the mixed martial arts European champion and a well-known sportsman in the region. He and the second applicant lived in Mayskiy, a settlement on the border between North Ossetia-Alania and Ingushetia. Permanent checkpoint no. 105, also known as “Chermenskiy krug”, was located between Mayskiy on one side of the border and the settlement of Chermen on the other. The checkpoint was equipped with CCTV cameras. Every passing vehicle was checked along with the driver’s and passengers’ identity documents. From the documents submitted to the Court it appears that other traffic checkpoints were located in the area.

Between 9 and 10 p.m. on 6 December 2012 Mr Akhmed Buzurtanov was driving home from Nazran in his white Lada-Priora car with registration number AH214A06. At about 10 p.m. he called his wife saying that he would arrive soon, but he did not. The applicants tried to call him, but his mobile phone was switched off. At around 5 a.m. on 7 December 2012 the applicants and their relatives found Mr Akhmed Buzurtanov’s training shoe, socks and hat in a street in the neighbourhood.

At about 9.30 a.m. on 7 December 2012 Mr Akhmed Buzurtanov’s car was found in the vicinity of Mayskiy, not far from the motorway. The car’s front side windows were smashed and the front of the vehicle had been damaged.

According to the applicants, in the evening of 6 December 2012 Mr Akhmed Buzurtanov had been stopped about 200-300 metres from his house by masked men in military uniforms, who had followed him in three cars. The men had forced him into one of their vehicles and taken him to an unknown destination. The applicants did not witness the abduction.

On 20 and 24 December 2012 a local newspaper published an article concerning a meeting held on 17 December 2012 (in the documents submitted the date was also referred to as 20 December 2012) by the President of Ingushetia, Mr YunusBek Yevkurov, and other high-ranking officials with members of the sports club where Mr Akhmed Buzurtanov had worked. Information about the meeting, held in Ingush, was posted on various websites. At the meeting one of the officials stated that Mr Akhmed Buzurtanov had been aiding a member of an illegal armed group, Mr D. The President of Ingushetia reminded them that at his previous meetings with members of the sports community, at which Mr Akhmed Buzurtanov had also been present, he had warned them not to engage in illegal acts. The President also said that he had information concerning phone calls proving Mr Akhmed Buzurtanov’s involvement in illegal activities. A video recording of the meeting was provided to the investigating authorities (see paragraph 44 below).

The applicants have had no news of Mr Akhmed Buzurtanov since his alleged abduction.

The Government contested neither the applicants’ description of the circumstances of the abduction, nor their account of the subsequent events. However, they stated that the alleged abduction had taken place in the absence of witnesses and that there was no evidence that the perpetrators had been State agents.

In reply to the Court’s request for a copy of the contents of the criminal case file opened in connection with the disappearance, the Government submitted copies of documents running to 1,570 pages. From the documents submitted, the domestic investigation can be summarised as follows.

On 7 December 2012 the second applicant complained to the Prigorodniy District Investigations Department in the Republic of North Ossetia-Alania (“the investigations department”), stating that her husband had disappeared while driving home from Ingushetia.

On the same date the investigations department opened criminal case no. 21/1908 into the events under Article 105 of the Criminal Code (murder). The applicants were informed thereof.

On the same day the investigators examined the crime scene. They collected from the scene the hat, the training shoe and the socks.

Also on the same date, 7 December 2012, the investigators examined Mr Akhmed Buzurtanov’s car, which had been found with smashed windows eighty metres from the Vladikavkaz-Mozdok motorway. They found traces of blood in the car. The investigators collected a number of pieces of evidence, such as a finger print from pack of cigarettes, thirteen swabs of various parts of the vehicle (including the steering wheel and breaks), a number of items of clothing, two bags, a mobile telephone, eight memory cards, pieces of broken glass and a police service identity card certifying that Mr Akhmed Buzurtanov worked as a policeman in Ingushetia. On the same date a forensic expert examination of the evidence was ordered. The applicants were informed thereof.

On 8 December 2012 the second applicant was granted victim status in the criminal case.

On 10 December 2012 the investigators requested that the Prigorodniy District Court grant permission to obtain the list of calls and other connections made from Mr Akhmed Buzurtanov’s and the second applicant’s mobile telephones between 1 and 7 December and 6 and 7 December 2012. In addition, the investigators requested permission to obtain the list of all mobile connections made in the vicinity of the crime scene (see paragraph 7 above) between 6 and 7 December 2012. On 12 December 2012 the permissions were granted and on 19 and 21 December 2012 the lists were examined.

On 11 December 2012 the investigators requested that the Prigorodniy District Court grant permission to tap for thirty days the mobile telephone of Mr Akhmed Buzurtanov’s aunt, Ms Kh.B., and that of the second applicant, as earlier on the same date the investigators had obtained operational information that the perpetrators would try to call them to discuss payment of ransom for Mr Akhmed Buzurtanov.

On the same date the second applicant requested that the investigators provide her with information on the progress of the investigation and with copies of the case-file documents. On 13 December 2012 the investigators granted the request in part, stating that under national law, prior to the completion of the investigation the applicant was entitled to obtain copies of certain procedural documents but not the entire contents of the case file.

Also on the same date, 11 December 2012, the second applicant requested that the investigators provide her with information concerning the list of connections made to and from Mr Akhmed Buzurtanov’s mobile telephone from 7 p.m. on 6 December to 11 December 2012 and the information from the CCTV cameras installed at checkpoint “Kizlyar” on the motorway next to Mayskiy between 6 p.m. on 6 December and 3 a.m. on 7 December 2012. On 13 December 2012 her request was rejected, as under domestic law she was not entitled to obtain such information from the case file.

On 13 December 2012 the expert examination of Mr Akhmed Buzurtanov’s police identity card collected from his vehicle (see paragraph 16 above) concluded that the document had been forged. On 28 February 2013 the Ingushetia Ministry of the Interior confirmed to the investigators that the police identity card had been forged and that Mr Akhmed Buzurtanov had not served in the police.

On 17 December 2012 the second applicant requested that the investigators verify the theory that her husband had been abducted by residents of Beslan, North Ossetia-Alania, who on 24 June 2012 had attacked Mr Akhmed Buzurtanov’s sports team after a tournament held in that town. On the same date the investigators granted the request in full. In particular, they obtained copies of the inquiry carried out into the incident and questioned witnesses to the scuffle.

On 17 December 2012 the investigators examined the eight memory cards collected from Mr Akhmed Buzurtanov’s car and ordered their forensic expert examination. The applicants were informed thereof.

On the same date the investigators asked the Ministers of the Interior of North Ossetia-Alania, Ingushetia, Dagestan and Kabardino-Balkaria and the heads of the North Ossetia-Alania, Ingushetia, Dagestan and Kabardino-Balkaria Departments of the Federal Security Service (“the FSB”), as well as other law-enforcement agencies, whether they had any incriminating information concerning Mr Akhmed Buzurtanov and whether they had carried out a special operation in respect of him.

The investigators asked a number of banks whether they had accounts opened in Mr Akhmed Buzurtanov’s name and if so, details of the transactions on those accounts between the dates of their opening and 17 December 2012.

The investigators also asked a number of hospitals whether Mr Akhmed Buzurtanov was or had been treated on their premises.

On 19 December 2012 the investigators granted the first applicant victim status in the criminal case.

On 20 December 2012 the first applicant requested that the investigators allow nine lawyers from the human rights organisation United Mobile Group (“the UMG”) to represent her in the criminal case. On 24 December 2012 her request was rejected as the lawyers had failed to enclose their professional identity cards confirming their Bar membership. On 28 January 2013 the refusal was overruled as groundless (see paragraph 48 below).

On 20 December 2012 the first applicant provided her statement concerning the alleged abduction to the UMG lawyers. In particular, she stated that in her opinion, the abduction had been perpetrated by representatives of law-enforcement agencies for unknown reasons. The statement was provided to the investigators on the same date (see the paragraph 75 below).

On the same date, 20 December 2012, one of the UMG lawyers, Mr D.L., requested that the investigators take, amongst others, the following steps:

-to include in the case file the first applicant’s statement given to the UMG on 20 December 2012 ...

- to ask the motorway Kavkaz and the other traffic police stations between Ingushetia and North Ossetia-Alania whether in the period between 5 and 8 December 2012 three vehicles passed through them: a VAZ-2114 and two Lada Priora cars and a white Lada-Priora with registration number AH214A 06 with Mr Akhmed Buzurtanov in it;

- to request information from the “Potok” database and the video recording from the traffic police stations and checkpoints between Ingushetia and North OssetiaAlania as to whether between 5 and 8 December 2012 three vehicles passed through them: a VAZ-2114 and two Lada-Priora cars and a white Lada-Priora with registration number AH214A 06 with Mr Akhmed Buzurtanov in it;

- to request from the mobile phone service providers information on connections between 6 and 7 December 2012 ... in order to establish the whereabouts of the subscriber of telephone number 99631744448 and his mobile connections from 6 December 2012 up to the present;

Enclosures: copy of the statement of Ms L. Buzurtanova of 20 December 2012 ...”

On 29 January 2013 the investigators decided to grant the request of 20 December 2012. However, from the documents submitted it appears that the requested steps were taken only in part (see paragraph 68 below).

On 20 December 2012 the investigators received a reply from the Counter Terrorism Centre (“the CTC”) of North Ossetia-Alania promising to inform them whether they had any incriminating information on Mr Akhmed Buzurtanov and whether they had conducted any special operations against him.

On the same date the investigators examined the premises of the “Ellin” sports club. No evidence was collected from the scene.

On or before 20 December 2012 Mr Akhmed Buzurtanov’s name was included in the Russian federal database of missing persons.

On 21 December 2012 the investigators requested that the Prigorodniy district department of the interior (“the ROVD”) inform them which officers had patrolled Mayskiy between 6 and 7 December 2012. The reply with the names of four police officers was given on 14 January 2013.

On 24 December 2012 the investigators requested permission from the Prigorodniy District Court to obtain the list of calls and other connections made in the vicinity of Raduzhnaya Street in Nazran, Ingushetia between 1 a.m. on 6 December and 1 a.m. on 8 December 2012. On 25 December 2012 the permission was granted.

On the same date, the investigators asked the local TV stations to broadcast a general description of the circumstances of Mr Akhmed Buzurtanov’s abduction and to request assistance in establishing his whereabouts and the perpetrators’ identities.

Also on 24 December 2012 the Beslan investigations department informed the investigators that on 24 June 2012 Mr Akhmed Buzurtanov had participated in a fight, as a result of which he had received insignificant bodily injuries, and that he had not given any statements about the incident. On 15 September 2012 the Prigorodniy ROVD had opened a criminal case into the injuries received by eleven sportsmen, including Mr Akhmed Buzurtanov, who had been attacked on 24 June 2012 by a crowd of about fifty to one hundred young men in Beslan.

On 25 December 2012 the investigators forwarded information requests concerning Mr Akhmed Buzurtanov’s whereabouts, possible detention, hospitalisation and discovery of his body to a number of lawenforcement agencies in the Russian Federation. Replies in the negative were received.

Also on 25 December 2012 the investigators examined video footage obtained from the CCTV camera situated at traffic police checkpoint “Kizlyar” on the motorway next to Mayskiy between 8 a.m. on 5 December and 5 p.m. on 7 December 2012. Neither Mr Akhmed Buzurtanov’s car nor any other Lada-Priora cars were found on that footage.

On various dates in December 2012 the investigators received replies from the mobile telephone companies, according to which between 2008 and 2012 multiple mobile telephone numbers had been registered in the name of Mr Akhmed Buzurtanov.

On 18 January 2013 the head of the operational search unit of the Ministry the Interior of North Ossetia-Alania replied to the investigators’ request (see paragraph 42 above) stating, amongst other things:

“In reply to your request no. 240-21/1908-2012 of 17 December 2012 I inform you that the operational services of North Ossetia-Alania have obtained information that Mr Akhmed Buzurtanov, who was born in 1983, possibly had been aiding members of illegal armed groups acting in Ingushetia, that he had provided financial assistance to them and could have acted as their contact person. According to the information in our possession, Mr Akhmed Buzurtanov could have stored illegal weapons and ammunition in his home.

I inform you also that we are taking a number of operational steps to establish Mr Akhmed Buzurtanov’s whereabouts and detain persons involved in his disappearance ...”

On the same date, 18 January 2013, one of the applicants’ lawyers from the UMG, Mr A.R., requested that the investigators take the following steps:

Include in the case file the video of the meeting of the Ingushetia sportsmen with the President of the Republic, Mr Yunus-Bek Evkurov, concerning the abduction of Mr Akhmed Buzurtanov, which took place on 17 December 2012, and order a linguistic examination of the footage in order to obtain its translation into Russian.

Question former colleagues of the abducted man, including the Chief Bailiff of North Ossetia-Alania, Mr M. Ozdoyev, concerning the information provided by him during the meeting of 17 December 2012 and recorded on video.

Question the President of Ingushetia, Mr Yunus-Bek Evkurov, concerning, amongst other things, the incriminating information on Mr Akhmed Buzurtanov which was mentioned by him during the meeting with the sportsmen of Ingushetia. In particular, he stated the following: ‘There are print-outs of telephone conversations, I have not brought them with me, but people know what I mean anyway and the fellow villagers understand it too’.

Request from the Vladikavkaz prosecutor’s office the criminal case file against Mr D., who was mentioned by the Chief Bailiff of North Ossetia-Alania, Mr M. Ozdoyev, by the secretary of the Security Council Mr A. Kotiyev, and by President Evkurov. Those officials spoke of the criminal nature of Mr Akhmed Buzurtanov’s interactions with Mr D. In connection with this, it is necessary to examine the contents of the criminal case file to establish the involvement of Mr Akhmed Buzurtanov in the actions of Mr D. and his accomplices...

Inform me about the steps taken ...

...Enclosures:

- copy of the authority form

- video footage of the meeting of President of Ingushetia Mr Yunus-Bek Evkurov with representatives of the sports community of Ingushetia on 17 December 2012 ...”

On 20 January 2013 forensic experts examined the evidence collected from the crime scene (see paragraph 16 above).

On 28 January 2013 the investigators decided to grant the request of 18 January 2013 (see paragraph 44 above). However, from the documents submitted it appears that none of the requested measures was taken.

On the same date, 28 January 2013, one of the applicants’ lawyers from the UMG, Mr A.R., requested that the investigators take the following steps:

“... speak to the Mr Akhmed Buzurtanov’s neighbours to establish the identity of eyewitnesses to the abduction and question them. (According to the information from a resident of North Ossetia, Mr M.Iz., several neighbours stated that they had witnessed the abduction. This information can be found on the website of Kavakzakiy Uzel: http:Kavkaz-uzel.ru/articles/21687/);

... check whether during the same time frame other persons were abducted or detained under similar circumstances ... and examine the contents of the relevant criminal case files ...”

On the same date the request was rejected by the investigators as the UMG lawyer was not the applicants’ representative in the criminal case.

On 28 January 2013 the head of the investigations department overruled the refusal of 24 December 2012 (see paragraph 47 above) and allowed the nine UMG lawyers to represent the applicants in the criminal case. The applicants were informed thereof.

On 11 March (in the documents submitted the date is also stated as 25 March) 2013 one of the applicants’ lawyers from the UMG, Mr D.U., requested that the investigators proceed as follows:

“... According to Mr Akhmed Buzurtanov’s wife [the second applicant], he was abducted by unidentified persons driving three cars. Therefore, it is possible to conclude that before the abduction, on the way from the gym to the crime scene, Mr Akhmed Buzurtanov was under surveillance. It is also possible to presume that while driving, the abductors used some kind of device to communicate with each other. If the fact of such connections from the same sources at the time of the incident is established in the areas along Mr Akhmed Buzurtanov’s route, then it would allow the identification of the persons who used those means of communication. It would also provide grounds to question them about the reasons for their presence at the scene at the material time and why they were taking the same route as Mr Akhmed Buzurtanov.

The taking of such steps would lead to the identification of the persons involved in Mr Akhmed Buzurtanov’s disappearance.

Therefore, on the basis of Articles 119 and 120 of the Russian Criminal Procedure Code you are requested to:

- establish Mr Akhmed Buzurtanov’s route on 6 December 2012 from the sports club ... to the possible place of his abduction in Mayskiy and the place of the discovery of [his] car;

- locate the main telecommunication towers capable of receiving and issuing mobile phone signals along the above route;

- obtain from the mobile phone companies the lists of all incoming and outgoing connections, including text messages, made with the technical assistance of the above devices between 7.30 p.m. and 11.30. p.m. on 6 December 2012;

- examine the information obtained and establish the mobile service subscribers who were located on the above-mentioned route at the relevant time;

- obtain from the agencies carrying out electronic intelligence in Ingushetia and North Ossetia-Alania information concerning the use of radio devices at the relevant time along the above-mentioned route;

- identify the users of those devices and question them about the case ...”

On 21 March 2013 the Prigorodniy central district hospital provided the investigators with a copy of the registration log of urgent calls for medical assistance on 6 and 7 December 2012. Mr Akhmed Buzurtanov’s name was not indicated therein.

On 25 March 2013 the applicants requested that Mr M. Pliyev, member of the Moscow Bar, be allowed to represent them in the criminal case. On 6 April 2013 the request was granted.

On 28 March 2013 the request of the applicants’ lawyer was granted (see paragraph 48 above). However, from the documents submitted it appears that the requested measures were not taken.

On 2 April 2013 the investigators again questioned the second applicant, who stated that she still had no information concerning her husband’s whereabouts.

According to the applicants, on 4 October 2013 the first applicant told her representative at the Court that someone, whose identity she could not disclose out of fear for that person’s life, had informed her that Mr Akhmed Buzurtanov had been abducted by officers of the Federal Security Service (“the FSB”) from Ekaterinburg, Russia, and taken to the capital of North Ossetia-Alania, Vladikavkaz, for unknown reasons. It is unclear whether the applicants passed that information on to the official investigation.

According to the applicants, the case-file documents furnished by the Government did not include the list of all the mobile phone communications which had been made in the vicinity of Mr Akhmed Buzurtanov’s alleged abduction obtained by the investigation on 15 March 2013.

On 7 December 2012 the investigators questioned the second applicant, whose statement concerning her husband’s disappearance was similar to the applicants’ account submitted to the Court. In addition, she stated that her husband had used mobile telephone number 9-963-174-4448 and that he had neither enemies nor unpaid debts.

On the same date, the investigators questioned Mr R.K., who stated that on 6 December 2012 he had been with Mr Akhmed Buzurtanov at the sports club until about 10 p.m. At about 2.30 a.m. on 7 December 2012 the applicants had called him looking for Mr Akhmed Buzurtanov as the latter had not returned home. The witness and Mr I.M. had then assisted the applicants in their search and had gone to the hospitals, morgues and police stations looking for Mr Akhmed Buzurtanov, but without success. The following morning they learnt that Mr Akhmed Buzurtanov’s car had been found.

On 7 December 2012 the investigators also questioned the husband of the first applicant, Mr I.Ts., who stated that he had accompanied the first applicant in the search for Mr Akhmed Buzurtanov when the latter had not returned home. Driving around Mayskiy, they had found pieces of broken glass along with a training shoe and a sock. The first applicant had immediately identified them as belonging to Mr Akhmed Buzurtanov. They had then immediately gone to the Mayskiy police station.

On the same date, the investigators also questioned a resident of Mayskiy, Ms Z.E., who stated that after 10 p.m. on 6 December 2012 she had been at home when she had heard men shouting outside for about a minute. She had stepped outside and seen two or three vehicles; she had not been able to identify the model or make of the vehicles as it had been dark. The witness thought that it had been a squabble between young men who frequently gathered at the spot to drink alcohol, and returned indoors.

On the same date, the investigators also questioned another resident of Mayskiy, Mr M.E., who stated that he had gone to bed early on 6 December 2012 and had not seen the police examining the crime scene outside his house until the following morning.

On 8 December 2012 Mr Akhmed Buzurtanov’s mother, Ms Li.B., lodged another complaint concerning the abduction with the investigations department.

On the same date the investigators again questioned the second applicant, whose statement was similar to the one she had given on 7 December 2012 (see paragraph 17 above). In addition, she stated that Mr Akhmed Buzurtanov was a professional sportsperson, that in 2012 he had won the European mixed martial arts championship and that he did not have any enemies.

On 8 December 2012 the investigators also questioned Mr Akhmed Buzurtanov’s friend, Mr M.M., who stated that he had known Mr Akhmed Buzurtanov since childhood, that they had trained together for fifteen years and that Mr Akhmed Buzurtanov did not have any enemies. In 2011 Mr Akhmed Buzurtanov had participated in a fight with someone, but afterwards the parties to the conflict had settled the issue. The witness stated that he had learnt of the alleged abduction from the applicants and had no idea as to why Mr Akhmed Buzurtanov had disappeared.

The investigators questioned Mr Akhmed Buzurtanov’s friend, Mr R.K., who stated that he had seen him in the evening of 6 December 2012 in the gym and that he had not witnessed the alleged abduction.

The investigators also questioned Mr Akhmed Buzurtanov’s sisters, Ms F.B. and Ms Lu.B., both of whom stated that they had not witnessed the alleged abduction but had found out about it from a woman living at the corner of Zhebagiyeva Street, according to whom an abduction had been perpetrated by masked men in black uniforms driving three cars. In addition, Ms Lu.B. stated that another resident of that area, Mr M. Be., had confirmed the woman’s story and had added that one of the abductors’ cars had hit Mr Akhmed Buzurtanov’s car from the front and another had blocked it at the back.

The investigators also questioned Mr Akhmed Buzurtanov’s aunt, Ms Kh.B., who stated that she had not witnessed the alleged abduction and that she had no explanation for his disappearance.

The investigators also questioned Mr Akhmed Buzurtanov’s friend, Mr M.P., a police officer, who stated that at about 11 p.m. on 6 December 2012 he had been driving home when he had seen Mr Akhmed Buzurtanov’s white car with a dent in the front. The car had skidded and had been driven erratically. The witness had then seen two cars, one of which was a silvercoloured Lada–Priora, following Mr Akhmed Buzurtanov’s car. All of the vehicles had been heading in the direction of the border with Ingushetia.

On 9 December 2012 the investigators questioned the second applicant’s neighbour, Ms L.G., who stated that at about 10 p.m. on 6 December she had been at home with her husband when they had heard men yelling and then two cars speeding away.

On 9 December 2012 the investigators also questioned Mr Akhmed Buzurtanov’s mother, Ms Li.B., who stated that she had not witnessed the alleged abduction and had no explanation for her son’s disappearance. On the same date the investigators obtained a blood sample from the witness for a comparative examination with the evidence collected from Mr Akhmed Buzurtanov’s car and for inclusion in the regional DNA database.

On 12 December 2012 the investigators again questioned the second applicant, who reiterated her previous statements (see paragraphs 17 and 23 above) confirming that she had no explanation for Mr Akhmed Buzurtanov’s disappearance.

On 15 December 2012 the investigators questioned a police officer from traffic checkpoint no. 5, Mr A.Ts., who stated that he had been on duty at the station between 4 p.m. and 11 p.m. on 6 December 2012 and that he had not seen anything suspicious. He had no information pertaining to the alleged abduction.

On 16 December 2012 the investigators again questioned Mr Akhmed Buzurtanov’s friend, police officer M.P., who reiterated his previous statement (see paragraph 67 above), adding that he could show the investigators the place where he had seen Mr Akhmed Buzurtanov’s car on the night of the disappearance. On the same date, in order to verify the statement, the investigators took the witness to the place where he had seen the vehicle.

Between 18 and 23 December 2012 the investigators questioned Mr Akhmed Buzurtanov’s neighbours, Mr M.E., Mr M. Dzh. and Mr I.D., all of whom stated that on the night of the disappearance they had been asleep at home and, therefore, had no pertinent information about it.

On 19 December 2012 the investigators questioned the first applicant. Her statement was similar to the account submitted before the Court. She also stated that she had no theories concerning the reasons for her brother’s disappearance.

On 20 December 2012 the investigators received the first applicant’s statement concerning the alleged abduction, which she had given to the UMG lawyers (see paragraph 31 above).

On 21 December 2012 the investigators again questioned Ms Z.E. who reiterated her previous statement (see paragraph 59 above), adding that she had not been able to hear in what language the men had been shouting on the night of the alleged abduction.

On 25 December 2012 the investigators again questioned the second applicant, who stated that Mr Akhmed Buzurtanov had never worked in the police, she had never seen him with a police service identity card and that she had no theories concerning the reasons for her husband’s disappearance. At the same time she stated that she had read on the internet that her husband’s disappearance could have been related to the brawl in June 2012.

On 26 December 2012 the investigators questioned Mr Akhmed Buzurtanov’s cousin Mr U.B., who stated that he had not witnessed the alleged abduction, had no information about it or theories concerning the possible perpetrators’ identities.

On various dates between December 2012 and February 2013 the investigators questioned Mr Akhmed Buzurtanov’s acquaintances, colleagues and neighbours: Mr I.T., Mr A.E., Mr I.A., Mr A.G., Mr A.Ga., Mr Kh.Ts., Mr M.Ts., Mr V. Dzh., Mr R.Ts., Mr M.I., Mr B.Ts., Mr R.D., Mr M.B., Mr Ta.E., Mr I.Im., Ms N.K., Ms N.Ke., Ms T.K, Mr Z.K., Mr P.Kv. and Mr G.Ts. They stated that they had not witnessed the alleged abduction, had no information about it or any theories concerning the possible perpetrators’ identities.

On various dates between January and April 2013 the investigators questioned Mr Akhmed Buzurtanov’s relatives, neighbours and former colleagues Mr Is.B., Mr Ab.B., Ms Z.E., Ms G.P., Mr R.Kh., Mr M.Ko., Mr B.E., Mr R.P. and Mr M.Kh. Their statements concerning the alleged abduction were similar to the applicants’ account submitted before the Court. They also stated that they did not have any theories concerning the possible perpetrators’ identities.

From the documents submitted it appears that the proceedings are still ongoing.

The applicants maintained that it was beyond reasonable doubt that the men who, in their view, had abducted Mr Akhmed Buzurtanov had been State agents. In support of their complaint, they referred to the following facts. Witnesses had seen two vehicles following Mr Akhmed Buzurtanov’s car (see paragraphs 26 and 67 above) and the evidence collected subsequently (see paragraphs 15 and 16 above) demonstrated that the abduction had been well-planned and well-organised and that the perpetrators had taken into account Mr Akhmed Buzurtanov’s physical abilities. The manner in which the alleged abduction had been carried out demonstrated that law-enforcement officers or other State agents had been involved in it.

The Government submitted that there was no evidence of the involvement of representatives of law-enforcement agencies in the disappearance of Mr Akhmed Buzurtanov and that the applicants had failed to present a prima facie case of abduction by State agents.

The Court observes that in its extensive jurisprudence it has developed a number of general principles relating to the establishment of matters in dispute, in particular when faced with allegations of violations of fundamental rights (for the most recent summary of these, see El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, §§ 151-53, 13 December 2012).

More specifically, the Court has adjudicated a series of cases concerning allegations of disappearances in the Russian North Caucasus. Applying the above-mentioned principles, it has concluded that it would be sufficient for the applicants to make a prima facie case of abduction of the missing persons by State agents, thus falling within the control of the authorities, and it would then be for the Government to discharge their burden of proof, either by disclosing the documents in their exclusive possession or by providing a satisfactory and convincing explanation of how the events in question occurred (see, for example, concerning abductions in Dagestan, Alpatu Israilova v. Russia, no. 15438/05, 14 March 2013, and Umarovy v. Russia, no. 2546/08, 12 June 2012). If the Government failed to rebut this presumption, that would entail a violation of Article 2 in its substantive part. Conversely, where the applicants failed to make a prima facie case, the burden of proof could not be reversed (see, for example, Shafiyeva v. Russia, no. 49379/09, § 71, 3 May 2012).

Turning to the circumstances of the present case, the Court notes that no assessment of evidence was carried out by the domestic courts. Therefore, it is for the Court to assess the facts of the case as presented by the parties.

It should be noted at the outset that the documents submitted contain no witness statements of persons who could describe in detail the circumstances of the alleged abduction other than the very general descriptions of the vehicles and persons following Mr Akhmed Buzurtanov’s car on the night in question (see paragraphs 59, 65, 67, 68, 72 and 76 above). The Court also notes that the investigation obtained various theories concerning the reasons for his disappearance: kidnapping for ransom (see paragraph 20 above), abduction relating to hostile relationship (see paragraphs 24 and 77 above) and, lastly, abduction by law-enforcement agents (see paragraph 31 above). In such circumstances, in the absence of unequivocal prima facie evidence of the latter, the Court is unable to conclude that State agents or persons acting with their consent could be the sole possible perpetrators of the alleged abduction.

Therefore, it has not been established to the required standard of proof – “beyond reasonable doubt” – that State agents were implicated in Mr Akhmed Buzurtanov’s disappearance; nor does the Court consider that the burden of proof can be entirely shifted to the Government.


Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1976 and lives in Moscow.

The applicant is a political activist, opposition leader, anticorruption campaigner and popular blogger. These five applications concern his arrests on seven occasions at different public events.

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

On 5 March 2012 the applicant took part in a meeting at Pushkinskaya Square, Moscow, which began at 7 p.m. It was devoted to the allegedly rigged presidential elections in Russia and had been approved by the municipal authorities.

At the end of the meeting, at 9 p.m., State Duma deputy Mr P. addressed the participants, inviting the public to stay after the meeting for informal consultations, which began at about 9.30 p.m. and were attended by some 500 people. According to the applicant, he stayed among others at Pushkinskaya Square for a meeting with the deputy; they remained peacefully within the pedestrian area of the square and did not obstruct the traffic or access. According to the Government, the applicant was holding an irregular gathering without prior notification and was shouting political slogans.

At 10.45 p.m. the police arrived and arrested the applicant, among many others. He was taken to the Tverskoy District police station.

On the same evening two policemen drew up a report on the administrative offence, stating that the applicant had been arrested at 10.45 p.m. “in a fountain” at Pushkinskaya Square; that he had taken part in an irregular public gathering and that he had ignored police orders to disperse. The applicant was charged with a breach of the established procedure for conducting public events, an offence under Article 20.2 of the Code of Administrative Offences. The applicant was released at 12.15 a.m. on 6 March 2012.

On 15 March 2012 the Justice of the Peace of Circuit no. 369 of the Tverskoy District examined the administrative charges against the applicant. The applicant challenged the authenticity of the police reports and the witness statement of the two police officers on the grounds that he had been arrested by different police officers, but his objection was dismissed. On the basis of the written statements and testimony of two police officers the Justice of the Peace found the applicant guilty of taking part in an irregular public gathering conducted without prior notification and fined the applicant under Article 20.2 of the Code of Administrative Offences 1,000 Russian roubles (RUB), at the material time equivalent to about 25 euros (EUR).

On 10 April 2012 the Tverskoy District court of Moscow examined the applicant’s appeal. The applicant was absent, but he was represented by a lawyer. The court examined one more eyewitness, a journalist, who testified that before being arrested the applicant was standing “in a fountain, holding hands with others” and chanting political slogans. He also testified that the police officers who had placed the applicant in the police bus were the same officers who had signed the report and who had appeared at the first-instance hearing. The court examined two video recordings submitted by the applicant. It found that the State Duma deputy had indeed called a public meeting, but concluded that at the time of his arrest the applicant was not meeting the deputy but was participating in a protest assembly. It upheld the judgment of 15 March 2012.

On 8 May 2012 the applicant took part in an overnight “walkabout”, an informal gathering whereby activists met at a public venue to discuss current affairs. On this occasion, several dozen activists met up to discuss the inauguration of Mr Putin as President of Russia the previous day. On 8 May 2012 some areas of central Moscow were restricted for traffic and pedestrians due to the presidential inauguration and the Victory Day festivities.

At 4.30 a.m., according to the applicant, or at 4 a.m., according to the Government, the applicant was walking down Lubyanskiy Proyezd, accompanied by about 170 people. The group stopped on the stairs of a public building for a group photograph. While the applicant was taking the photograph he was arrested by the riot police. At 8 a.m. he was taken to a police station where an administrative offence report was drawn up. The applicant was charged with a breach of the established procedure for conducting public events, an offence under Article 20.2 of the Code of Administrative Offences. The applicant was released at 10.50 a.m. on that day.

On the same day, at 11.55 p.m., according to the Government, or at 11 p.m., according to the applicant, the applicant was walking down Bolshaya Nikitskaya Street in a cluster of about fifty people. According to the applicant, they stayed on the pavement, had no banners or sound equipment, and were causing no nuisance. They were surrounded by the riot police and the applicant was arrested without any order or warning.

At 11.58 p.m. on the same day the applicant was taken to a police station where an administrative offence report was drawn up. He was charged with a breach of the established procedure for conducting public events, an offence under Articles 20.2 § 2 of the Code of Administrative Offences. The applicant was released at 2.50 a.m. on 9 May 2012.

On 30 May 2012 the Justice of the Peace of Circuit no. 387 of the Basmannyy District examined the charges concerning the applicant’s administrative offence at Lubyanskiy Proyezd. The applicant was absent from the proceedings, but he was represented by his legal counsel, who contested the applicant’s participation in an irregular assembly and claimed that the latter had not chanted any slogans. He asked the Justice of the Peace to admit video evidence and to examine certain eyewitnesses, but she refused to do so. On the basis of written statements by two police officers the Justice of the Peace found the applicant guilty of taking part in a meeting conducted before 7 a.m., in breach of regulations, and fined him under Article 20.2 of the Code of Administrative Offences RUB 1,000. This judgment was delivered in full on 1 June 2012. It was upheld on 6 July 2012 by the Basmannyy District Court of Moscow.

On 1 June 2012 the Justice of the Peace of Circuit no. 380 of the Presnenskiy District examined the administrative charges concerning the applicant’s administrative offence at Bolshaya Nikitskaya Street. The applicant was absent from the proceedings, but he was represented by his legal counsel, who contested the applicant’s participation in an irregular assembly and claimed that the latter had not chanted any slogans. The Justice of the Peace questioned the police officer who had arrested the applicant and three eyewitnesses. The police officer testified that he had arrested the applicant because he was walking in a big group of people, obstructing traffic and chanting political slogans. The eyewitnesses testified that the applicant was walking down the street among about fifty or sixty people, and that the police had blocked their way and had arrested them without any warning; they denied hearing any slogans or amplified sound. The Justice of the Peace refused to admit video evidence and dismissed the eyewitness statements on the grounds that they were likely to be the applicant’s supporters and were therefore biased. The applicant was found guilty of taking part in a meeting conducted in breach of regulations and was fined under Article 20.2 of the Code of Administrative Offences RUB 1,000. This judgment was upheld on 25 June 2012 by the Presnenskiy District Court of Moscow.

On 9 May 2012 the applicant arrived at 5 a.m. at Kudrinskaya Square in Moscow to take part in an informal meeting with a State Duma deputy and to attend the Victory Day festivities. He was among 50 to 100 people “walking about” and discussing current affairs. According to the applicant, this gathering was not a demonstration: there had been no banners, no noise, and no one was chanting any slogans or giving speeches.

At 6 a.m. riot police arrived at the site of the meeting and arrested the applicant without any orders or warning. The applicant submitted a video recording of his arrest.

At 8.50 a.m. on the same day the applicant was taken to the Strogino District police station. At 11.50 a.m. the applicant was searched and then an administrative offence report was drawn up. According to the applicant, he was detained at the police station for more than three hours before he was brought before a Justice of the Peace. The Government confirmed that the applicant had been detained pending trial, but did not specify the time.

At an unidentified time on the same day the applicant was brought before the Justice of the Peace of Circuit no. 375 of the Presnenskiy District of Moscow. The Justice of the Peace refused the applicant’s requests for the police officers who had arrested him to be called and examined, and for video evidence to be admitted, but granted his request for three eyewitnesses to be examined. The witnesses testified that there had been a public meeting with a State Duma deputy to discuss current political developments; that no one had chanted slogans or made noise or obstructed traffic; and that the police had not given any orders or warnings before arresting the applicant. On the basis of the written statements of two police officers the court established that the applicant had taken part in an irregular public meeting and had disobeyed a lawful order from the police to disperse. It also found that the applicant had chanted the slogans “Russia without Putin!” and “Putin is a thief!” and had refused to leave the square, which needed to be cleared for the Victory Day festivities. The Justice of the Peace has rejected the statements of three eyewitnesses, on the grounds that they had different estimates of the number of people present at the venue, the number of police officers who arrested the applicant, and the time of his arrival at the meeting. The applicant was found guilty of disobeying the lawful order of the police, in breach of Article 19.3 of the Code of Administrative Offences, and was sentenced to fifteen days’ administrative detention.

On 10 May 2012 the applicant lodged an appeal.

On 12 December 2012 the Presnenskiy District Court of Moscow examined the appeal. The applicant asked for the police officers on whose reports and statements the Justice of the Peace had based the judgment to be cross-examined, as well as eight eyewitnesses, and for the video recording of the arrest to be admitted as evidence. The court dismissed these requests and upheld the judgment of 9 May 2012.

On 27 October 2012 the applicant held a static demonstration (“picket”, пикетирование), which was a part of series of pickets held in Moscow in front of the Russian Investigation Committee to protest “against repressions and torture”. According to the applicant, his demonstration was a solo picket (одиночное пикетирование) which was not subject to a prior notification to the competent public authority. In total, about thirty people consecutively took part in this event.

At 3.30 p.m. the police arrested the applicant. According to the applicant, at the moment of arrest he had finished picketing and was walking down the street on the pavement; he was not chanting or carrying any banners, but he was being followed by some people including journalists whose number he estimated as “two dozen”. According to the Government, the applicant had organised an irregular march without prior notification. The applicant was taken to the police station at 4.10 p.m. He was charged with a breach of the established procedure for conducting public events, an offence under Article 20.2 of the Code of Administrative Offences. He was released at 7.17 p.m. the same day.

On 30 October 2012 the Justice of the Peace of Circuit no. 387 of Basmannyy District examined the charges. She examined three eyewitnesses called at the applicant’s request, but his request for the police officers who had arrested him to be called and examined was refused. The applicant’s request for a video recording of the relevant events to be admitted as evidence was also refused, as was the request for a written report from an NGO that had observed the pickets to be admitted in evidence. At the applicant’s request the Justice of the Peace examined three eyewitnesses, who testified that the applicant, after he ended his picket, walked down the street while speaking with a fellow activist, surrounded by journalists; he remained on the pavement, did not chant slogans, and carried no banners; several other participants in the picket remained standing with their banners, at a certain distance from each other; the police arrested the applicant without any warning or explanation. On the basis of the written reports by two police officers the Justice of the Peace found the applicant guilty of taking part in a march which had not been duly notified to the authorities and fined him under Article 20.2 of the Code of Administrative Offences RUB 30,000 (at the material time equivalent to about EUR 740). She dismissed the witness statements in the applicant’s favour on the grounds that they contradicted the evidence in the case file.

On 7 December 2012 the Basmannyy District Court upheld the judgment of 30 October 2012.

On 24 February 2014 at 12 noon the applicant went to the Zamoskvoretskiy District Court of Moscow to attend the hearing of the activists on trial for participation in mass disorders at Bolotnaya Square in Moscow on 6 May 2012. On that day the judgment was to be delivered at a public hearing. The court-house was cordoned off by the police, and the applicant could not get in. He therefore remained outside among other members of the public wishing to attend the hearing. According to the applicant he was standing there silently, but the police suddenly rushed into the crowd and arrested him, without any order, warning or pretext. According to the official version, he was holding an irregular gathering and was chanting political slogans.

At 12.50 p.m. on the same day the applicant was taken to the police station. He was charged with a breach of the established procedure for conducting public events, an offence under Article 20.2 of the Code of Administrative Offences. The applicant was released at 3 p.m. the same day.

Later that day, at about 7.45 p.m., the applicant took part in a public gathering following the pronouncement of the judgment concerning mass disorders at Bolotnaya Square in which several activists had been sentenced to prison terms. The gathering of about 150 participants took place at Tverskaya Street. The applicant was arrested while he was standing on the pavement talking to a journalist. According to the applicant he had received no order or warning, and he did not resist the police. According to the police report, when the applicant was being seated in the police vehicle he was waving at the crowd trying to attract media attention, thus demonstrating refusal to comply with the police order and resisting the officers in the performance of their duties.

At 8.20 p.m. the applicant was taken to the Tverskoy District police station, where an administrative offence report was drawn up. The applicant was charged with disobeying a lawful order of the police, an offence under Article 19.3 of the Code of Administrative Offences. He was remanded in custody.

On the following day, 25 February 2014, at an unidentified time, the applicant was brought before the judge of the Tverskoy District Court, who examined the charges under Article 19.3 of the Code of Administrative Offences. The applicant’s request for two eyewitnesses to be examined was granted. They testified that the police had not given the applicant any orders or warnings before proceeding to his arrest. The court admitted and examined the video recording of the contested events and questioned the two police officers on whose reports the charges were based. The court established that the applicant had taken part in an irregular meeting and had disobeyed the lawful order of the police to disperse. The applicant was found guilty of disobeying a lawful order of the police, in breach of Article 19.3 of the Code of Administrative Offences, and was sentenced to seven days’ administrative detention.

On 7 March 2014 the Zamoskvoretskiy District Court examined the charges relating to the applicant’s alleged participation on 24 February 2014 in an unauthorised public gathering in front of the Zamoskvoretskiy District Court. The applicant requested that two eyewitnesses present at the court-house and the two policemen on whose reports the charges were based be examined. These requests were dismissed. The court admitted a video recording of the contested events, but decided not to take cognisance of its content because it had no date and because it had not reproduced a full sequence of events. On the basis of the written reports by two police officers the judge found the applicant guilty of taking part in a meeting which had not been notified to the competent authority in accordance with the procedure provided by law, and fined him under Article 20.2 of the Code of Administrative Offences RUB 10,000 (equivalent to about EUR 200).

On 24 March 2014 the Moscow City Court upheld the judgment of 25 February 2014.

On 22 May 2014 the Moscow City Court upheld the judgment of 7 March 2014.


No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - After conviction)

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Síofra O’Leary

The applicant was born in 1964 and is currently detained in a psychiatric hospital in Lippstadt.

In 1979 the applicant forced two seven-year-old girls, and in 1980 a four-year-old girl, to undress and hit them with a stick. In 1981 the applicant forced a seven-year-old girl to undress and lay on top of the girl on a bench. The criminal proceedings relating to these offences were discontinued because of the applicant’s lack of criminal responsibility as a minor.

On 21 January 1983 the Münster Regional Court convicted the applicant of attempted rape together with sexual assault and dangerous assault and of attempted murder and assault. Applying the criminal law relating to young offenders, it sentenced him to five years’ imprisonment and ordered his detention in a psychiatric hospital under Article 63 of the Criminal Code (see paragraph 28 below).

The Regional Court found that on 22 June 1982 the applicant, then aged seventeen, had forced a fourteen-year-old girl to follow him into a forest where he had attempted to rape her, sexually assaulted her with a stick and then attempted to kill her by strangling her to cover up his offences. When, on return to the crime scene, he realised that his victim was not dead, he forcefully hit her buttocks with a branch.

In the Regional Court’s finding, it was necessary to order the applicant’s detention in a psychiatric hospital under Article 63 of the Criminal Code. It considered that the applicant had acted with diminished criminal responsibility (Article 21 of the Criminal Code; see paragraph 27 below). Having regard to the findings of expert H., the court was convinced that the applicant had reduced mental capacities which had been caused by infantile brain damage. This damage, combined with failings in his upbringing (he had repeatedly been hit by his father with a stick himself), had caused a consciousness disorder and the sadistic sexual tendencies the applicant had disclosed in his offence. These disorders amounted to an “other serious mental abnormality” for the purposes of Articles 20 and 21 of the Criminal Code (see paragraphs 26-27 below). Moreover, a comprehensive assessment of the applicant’s personality revealed that, as a result of his condition and notably the sadistic tendencies which had manifested themselves in the offence of which he was found guilty, he could be expected to commit further unlawful acts and was therefore dangerous to the general public.

Since 29 January 1983 the applicant has been detained in a psychiatric hospital.

In December 1990, when the applicant was granted leave from detention, he attacked a twenty-six-year-old cyclist, threatened her with a knife and attempted to force her into a forest. He was chased away by a car driver. The criminal proceedings in this respect were discontinued with regard to his previous conviction.

The courts dealing with the execution of sentences reviewed the applicant’s detention at regular intervals. In particular, on 5 February 2010 the Paderborn Regional Court ordered the applicant’s detention in a psychiatric hospital to continue. It had noted, in particular, that the applicant had refused therapeutic discussions. There was stagnation in the applicant’s treatment, the representatives of the psychiatric hospital having explained that they considered substantial changes in the applicant’s personality by sex therapy no longer possible.

On 28 January 2011 the Paderborn Regional Court ordered the continuation of the applicant’s detention in a psychiatric hospital under Articles 67d and 67e of the Criminal Code (see paragraphs 29-31 below).

The Regional Court noted that external psychiatric expert T., in his report dated 28 January 2010, had diagnosed the applicant, whom he had examined in person, with an abnormality of the sex chromosomes (so-called Klinefelter syndrome). The latter had most probably caused an endocrine personality syndrome characterised by retardation and disorders in the development of a person’s personality and by an insufficient internalisation of ethical rules. The applicant had therefore developed a dissocial and schizoid personality. It was unclear whether the applicant still suffered from sadistic paraphilia. The expert considered that the applicant’s retardation had partially been offset by hormonal treatment. Moreover, the applicant’s dissocial conduct and schizoid personality disorder had been alleviated by social therapy and psychotherapy.

In assessing the risk emanating from the applicant, the expert considered that it had to be taken into account that the applicant had already committed a number of sadistic offences against children. Moreover, the seriousness of the offence of which the applicant had been convicted in 1983, and the attack on a woman at a time when he had already been detained in the psychiatric hospital in 1990, had to be taken into consideration. It appeared that it had not been possible to continuously pursue sex therapy with the applicant during his long psychiatric internment. There was a risk that, if the applicant were overstrained or frustrated, he might commit offences as a result of sadistic tendencies. The expert stated, however, that it was impossible for him to assess how far the applicant was still driven by sadistic fantasies. Consequently, the risk that the applicant would reoffend if released was difficult to assess and could only be determined in the course of further therapy.

A representative of the psychiatric hospital, in submissions to the court dated 7 December 2010, confirmed that the applicant had spoken with a psychologist on his request. However, he was still unable to reflect on the motives for his offence. Therefore, it was difficult to assess how dangerous the applicant was; there was a risk that he would reoffend if released. Furthermore, the therapist responsible for the applicant confirmed that it was impossible to make a proper assessment of the danger posed by the applicant.

The Regional Court, having heard the applicant and having regard to the evidence before it, considered that the continuation of the applicant’s detention in a psychiatric hospital had to be ordered. Despite the fact that the applicant had proved reliable during leave from detention during recent years, it could not be expected with sufficient probability that the applicant would not reoffend if released. In particular, it could not be ruled out that his sadistic tendencies persisted. The applicant was currently not undergoing therapy, in the proper sense of the term, and suffered from hospitalism.

The Regional Court further considered that the continuation of the applicant’s detention was proportionate. In support of this view, it referred to the serious offence which had led to the applicant’s placement in a psychiatric hospital, to the fact that he had relapsed during the execution of his detention order and to the potential risk, as confirmed by the expert and the psychiatric hospital staff, that the applicant would reoffend if released.

On 23 February 2011 the applicant lodged an appeal against the Regional Court’s decision.

On 15 March 2011 the Hamm Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant’s appeal.

By submissions dated 1 April 2011, the applicant lodged a constitutional complaint with the Federal Constitutional Court. He argued that his continued detention in a psychiatric hospital for more than twentyeight years was disproportionate and had therefore breached his constitutional right to liberty and the constitutional protection of the rule of law. It had been insufficient for the courts to base their assessment that he was currently still dangerous on offences dating back more than twentyeight years and on an incident during the execution of his detention order dating back more than twenty years. Moreover, the experts and courts had confirmed that he was no longer undergoing any therapy and that it was unclear whether he was still dangerous to the public.

On 27 July 2011 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint, without giving reasons (file no. 2 BvR 735/11).

The applicant underwent several courses of therapy, including social therapy and psychotherapy, during his detention in the psychiatric hospital. After the applicant had failed in his attempts to complete a sex therapy course on a number of occasions, the Lippstadt Psychiatric Hospital authorities decided to discontinue attempts at sex therapy for some time. The applicant was transferred to the so-called “long-stay” department of the hospital in 2006, where he was detained during the time covered by the proceedings at issue and where he did not undergo any sex therapy. The purpose of the applicant’s placement in the “long-stay” department was in fact to grant him a break from his failed attempts to complete sex therapy. He was being prepared for another attempt at completing sex therapy in psychotherapeutic one-to-one meetings with a psychologist. However, he had repeatedly declined offers to restart such individual or group therapy.

The applicant has been working in the factory on the premises of the psychiatric hospital. When granted leave under escort several times per year, he has visited members of his family.

On 18 January 2012 the Paderborn Regional Court, endorsing the reasons given in its previous decision, ordered the applicant’s continued detention in a psychiatric hospital. It agreed with the view expressed by the psychiatric hospital representative that sadism could not be cured and considered that there was a high risk that the applicant would again commit further serious offences against the life and sexual self-determination of others. On 20 March 2012 the Hamm Court of Appeal dismissed the applicant’s appeal.


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

Jon Fridrik Kjølbro;Paul Lemmens;Ksenija Turković

The applicant was born in 1974 and lives in Vinkovci.

By a judgment of 1 June 2006 the Vinkovci Municipal Court (Općinski sud u Vinkovcima) ordered the applicant’s former employer, the company MD Profil d.o.o. (hereinafter “the debtor company”), to pay him 20,921.18 Croatian kunas (HRK) as remuneration for overtime work, together with accrued statutory default interest, and HRK 19,495.90 in costs. On 10 March 2008 the Vukovar County Court (Županijski sud u Vukovaru) upheld the first-instance court’s judgment, which thereby became final.

By a judgment of 17 January 2008 the Županja Municipal Court (Općinski sud u Županji) found the applicant guilty of the criminal offence of embezzlement committed against his former employer, the debtor company. It sentenced him to ten months’ imprisonment, suspended for a period of two years provided that in that period he did not commit a further offence. The court also ordered the applicant to pay the debtor company HRK 20,311.78 in compensation for pecuniary damage caused by his offence.

On 14 April 2008 the applicant applied to the Đakovo Municipal Court (Općinski sud u Đakovu) for enforcement of the above judgment of 1 June 2006 (see paragraph 6 above).

The next day, on 15 April 2008, that court issued a writ of execution (rješenje o ovrsi) whereby it ordered the seizure of funds in the debtor company’s bank account in order to satisfy the applicant’s claim.

The debtor company lodged an appeal, and on 28 August 2008 the Osijek County Court (Županijski sud u Osijeku) quashed the writ of execution and remitted the case to the first-instance court. It found that the judgment sought to be enforced had not been stamped with a certificate of enforceability and that a grace period for voluntary compliance (paricijski rok) had not been set.

In the new proceedings before the Đakovo Municipal Court the applicant submitted on 25 September 2008 a copy of the judgment that he was seeking to enforce stamped with a certificate of enforceability. At the same time, he asked the court to set a grace period for voluntary compliance, pursuant to the law.

On 7 November 2008 the court issued a new writ of execution. It ordered the debtor company to pay the applicant, within a grace period of eight days (a) the sums it had been ordered to pay under the judgment of 1 June 2006 (that is to say the main debt, together with accrued statutory default interest, and the costs of the civil proceedings, see paragraph 6 above), (b) the statutory default interest accrued on the costs of the civil proceedings from the date of delivery of that judgment, and (c) the costs of enforcement proceedings, together with the statutory default interest accrued on those costs from the date of issuance of the writ of execution.

By a decision of 19 February 2009 the Osijek County Court dismissed the debtor company’s appeal and upheld the writ of execution.

Upon receiving, on 27 February 2009, the final judgment of the criminal court of 17 January 2008 (see paragraph 7 above), the debtor company on 9 March 2009 sent a letter containing a set-off statement to the applicant’s legal representative whereby it set off (prijeboj) its claim for compensation against the applicant stemming from that judgment with his claim for payment of overtime work against the debtor company stemming from the judgment he was seeking to enforce.

On the same day, 9 March 2009, the debtor company informed the court that it had received the above-mentioned final judgment of the criminal court and that it had executed the set-off described above (see the preceding paragraph). The debtor company at the same time lodged an extraordinary appeal against the writ of execution of 7 November 2008 (see paragraph 12 above) and lodged an application to postpone the enforcement.

By a decision of 27 March 2009 the Đakovo Municipal Court decided on the debtor company’s motion for postponement, instructing the debtor company to institute separate civil proceedings for the enforcement to be declared inadmissible (in full or in part). At the same time it postponed the enforcement pending the final outcome of those proceedings.

The debtor company instituted those civil proceedings on 14 April 2009. They ended on 31 March 2011, when the Osijek County Court upheld the first-instance judgment of the Đakovo Municipal Court of 21 October 2010, whereby the enforcement of up to HRK 20,095.30 was declared inadmissible. The second-instance judgment was served on the debtor company on 11 May 2011 and on the applicant a day later.

Following an appeal lodged by the applicant, on 21 January 2010 the Osijek County Court quashed the first-instance decision of 27 March 2009 (see paragraph 16 above) in so far as it allowed the postponement of the enforcement and in this respect remitted the case. It dismissed the remainder of the applicant’s appeal and upheld the first-instance decision in the remaining part.

In the resumed proceedings, by a decision of 17 June 2010 the Đakovo Municipal Court again postponed the enforcement.

On 3 February 2011 the Osijek County Court dismissed the applicant’s appeal against that decision and upheld it.

On 24 May 2011 the applicant informed the Đakovo Municipal Court that the judgment declaring the enforcement inadmissible in part had become final (see paragraph 17 above) and asked it to continue with the enforcement in the remaining part.

By a decision of 2 June 2011 that court decided to resume the enforcement in the remaining part. By another decision of the same date that court ordered the debtor company to pay the applicant: (a) HRK 599.40 for unpaid overtime work, together with statutory default interest accrued since 11 March 2009, (b) HRK 19,495.90 in costs of civil proceedings, together with statutory default interest accrued since 1 June 2006, and (c) HRK 2,606.25 in costs of enforcement proceedings, together with statutory default interest accrued since 7 November 2008. This decision became final on 17 June 2011.

On 20 June 2011 the court informed the Domestic Payments Agency (Financijska agencija – FINA) of its second decision of 2 June 2011 (see the preceding paragraph). In the execution of that decision the agency on 21 July 2011 transferred HRK 38,306.87 from the debtor company’s bank account to those of the applicant and his legal representative.

Meanwhile, on 9 October 2009 the applicant lodged a request for protection of the right to a hearing within a reasonable time (zahtjev za zaštitu prava na suđenje u razumnom roku) with the Osijek County Court, complaining about the length of the above enforcement proceedings.

By a decision of 9 November 2010 the Osijek County Court dismissed the applicant’s request. It held that, while the case was indeed important for the applicant, the proceedings complained of were complex and he had contributed to their length in that he had not initially submitted a copy of the judgment he was seeking to enforce stamped with a certificate of enforceability (see paragraphs 8-11 above).

On 25 November 2010 the applicant appealed against that decision.

By a decision of 6 June 2011 the Supreme Court (Vrhovni sud Republike Hrvatske) dismissed the applicant’s appeal and served its decision on his representative on 26 August 2011.

On 23 September 2011 the applicant lodged a constitutional complaint against the second-instance decision.

By a decision of 12 December 2012 the Constitutional Court (Ustavni sud Republike Hrvatske) declared inadmissible the applicant’s constitutional complaint and served that decision on his representative on 31 December 2012. It held that the contested second-instance decision was not open to constitutional review.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Civil rights and obligations);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Georgieva;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev

The applicant was born in 1950 and lives in Sofia.

The applicant had been employed by the National Security Service as a system operator since 1981. She submitted that, on account of the nature of her duties, she had held a security clearance permitting her access to classified information constituting State secrets. According to the applicant’s job description, being in a possession of such a security clearance had been a prerequisite to her holding her post.

On 30 April 2002 the Classified Information Protection Act (hereinafter “the Act”) was promulgated in the State Gazette. Under the Classified Information Protection Act, permits granting access to classified information that had been issued under the legal provisions existing before the entry into force of the Act were to remain valid until their replacement by security clearance allowing access to classified information. The heads of organisational units employing persons who possessed an access permit and whose positions required that they have access to classified information were to request the issuance of security clearance, in accordance with the requirements of the Act. Non-compliance with that provision would result in the invalidation of the respective existing access permits.

On 3 June 2003, in compliance with that obligation, the Director of the National Security Service issued a decision refusing the applicant security clearance allowing access to classified information. The applicant submitted that that decision had been based on a psychological test. The decision did not contain any reasoning in respect of the refusal, apart from a reference to Section 57 of the Classified Information Protection Act.

The applicant lodged an appeal against the refusal with the State Commission for Information Security. The latter, by a decision of 5 February 2004, upheld the refusal. That decision was final and not amenable to judicial review.

On 27 April 2004, the Director of the National Security Service ordered that the applicant be dismissed. The reason given for the termination of her employment was the refusal to grant her security clearance, possession of which was an indispensable condition of her being able to perform her duties.

The applicant challenged her dismissal at three levels of jurisdiction. She contested the objectivity and the lawfulness of the dismissal procedure, arguing that she had fulfilled all conditions for the issuance of security clearance and that she had been dismissed on account of the negative personal relationship between her and her direct supervisor. In the applicant’s view, the clearance had probably been refused because she had suffered from depressive neurosis in 1995, a condition which according to her was no longer relevant. The applicant’s request that a report by a psychiatric expert be commissioned was refused by the Sofia District Court.

By its judgment of 11 May 2005 the Sofia District Court rejected the applicant’s claims, reasoning that the refusal of the Director of the National Security Service to grant security clearance to the applicant was a final and valid administrative act, and it rendered the applicant’s dismissal inevitable because she was no longer able to perform her duties. The court added that the refusal was not amenable to any judicial review; therefore, the court was not competent to examine, within the framework of the dismissal proceedings, any substantial or procedural questions related to its lawfulness.

On appeal, the Sofia City Court, by a ruling of 6 April 2006 upheld the lower court’s decision, endorsing its reasoning.

On 19 June 2008, the Supreme Court of Cassation upheld those rulings.


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

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in 1990 and lives in Galashki, Ingushetia Republic.

On 11 December 2009 the applicant was abducted by S. with intent to marry her. The applicant’s mother opposed the marriage and on the same day S.’s relatives took the applicant back to her mother’s house.

On 12 December 2009 the relatives of the applicant’s deceased father made the applicant go back to S.’s, because of the presumed consummation of the marriage. They also threatened to kill S., should the applicant decide to leave him.

The applicant had to live with S.’s family as his wife. The marriage was not officially registered. She was kept locked in a room without being able to communicate with people outside S.’s family. S. moved to a different town. On rare occasions S.’s sister let the applicant use her mobile phone so that she could call her mother. She complained that S.’s family, especially her mother-in-law, treated her poorly. She did not feel well and complained about dizziness, numbing of the lower jaw and difficulty to breathe. According to the applicant’s mother, the applicant told her once that her mother-in-law did not let her see S. and claimed that the applicant would not last living with them longer than two months. On several occasions the applicant lost consciousness and foamed at the mouth.

On 28 December 2009 the applicant was taken to a municipal hospital. The doctor diagnosed her with renal colic.

On 29 December 2009 during another visit to hospital the applicant was diagnosed with poisoning by unknown substance.

On 1 February 2010 the applicant foamed at the mouth again and was taken to hospital. She was released on the same day.

On 2 February 2010 the applicant lost consciousness and was taken to hospital. A general practitioner and a neuropathologist examined her. She was diagnosed with stress and overdose of sedatives and placed in an intensive care unit. Subsequently she was diagnosed with post-hypoxic encephalopathy and vegetative state. She has not regained consciousness since then.

In April 2010 the applicant was released to her mother’s care.

On 23 September 2010 the applicant’s mother complained to the local police department and prosecutor’s office that the applicant had been forcefully held by S.’s family in inhuman conditions which led to deterioration of her health and coma.

On 10 October 2010 the investigator refused to institute criminal proceedings against S.’s family on the charges of incitement of suicide and causing damage to health.

On 24 October 2011 the applicant’s mother lodged another complaint with the local police department alleging that the applicant had been poisoned while staying at S.’s house. She also stated that the applicant had been repeatedly beaten up and deprived of her liberty.

According to the forensic medical report completed on 8 November 2011, a vegetative state, similar to the applicant’s, could be caused primarily by intoxication. The expert, however, was unable to determine the cause of the applicant’s condition.

On 24 November 2011 the investigator refused to institute criminal proceedings against S.’s family. The applicant appealed.

On 29 July 2012 the supervising prosecutor quashed the decision of 24 November 2011 and ordered further inquiry into the matter.

On 3 August 2012 the investigator refused to institute criminal proceedings on the charges of attempted murder.

On 1 October 2012 the investigator refused to institute criminal proceedings on the charges of causing serious damage to health. The applicant appealed.

On 26 July 2013 the Sunzhenskiy District Court of the Ingushetiya Republic quashed the decision of 1 October 2012. The court noted that the inquiry had been incomplete. The investigator had failed (1) to question a number of important witnesses and (2) to determine the cause of the applicant’s condition.

On 26 September 2013 the investigator refused to institute criminal proceedings reiterating verbatim his reasoning set out in the decision of 1 October 2013.

On 15 January, 14 March and 21 May 2014 the deputy head of the district police department ordered a new inquiry noting that the previous inquiry had been incomplete.

On 18 January and 18 March 2014 the investigator refused to open a criminal investigation reproducing verbatim the earlier decisions of 1 October 2012 and 26 September 2013.

On 21 May 2014 the investigator again refused to open a criminal investigation. In addition to his earlier findings, he studied the applicant’s medical case-file and concluded that it did not contain information accounting for the cause of her medical condition.

On 28 February 2015 the district deputy prosecutor quashed the decision of 21 May 2014 and ordered a further inquiry.

The case-file materials submitted by the Government contain two decisions dated 6 March 2015. The first decision was taken by the investigator who refused to institute a criminal investigation in the applicant’s case. The second decision was taken by the district deputy prosecutor who ordered a new inquiry. The Government did not inform of the outcome of the proceedings.


Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant, Mr Heinz-Werner Bäcker, is a German national, who was born in 1963 and lives in Lippstadt. He is currently confined in a psychiatric hospital in Eickelborn Lippstadt. He was represented before the Court by Mr C. Ernst, a lawyer practising in Bielefeld.

On 29 January 1981 the Hamm Juvenile Court (Jugendschöffengericht) charged the applicant with rape and attempted rape, committed on 5 August and 19 September 1980 respectively. In the first case the applicant ran into a 16-year old girl and knocked her down. He then suffocated and threatened to kill her, and raped her. In the second case he had followed a girl and wanted to rape her. As his bike was jammed, he gave up the chase and masturbated in a field. He apprehended a 25-year old woman who was walking, choked her and threatened to strangle her. As she fought him off and cried for help, some passers-by noticed them and he could not penetrate her. The court sentenced him to a year and ten months imprisonment and placed him on probation because he and his mother had consented to him being given medication and placed in a young offender’s institution.

On 24 September 1981 the applicant knocked down a 24-year old cyclist, dragged her into a ditch, suffocated her until she lost consciousness and raped her. When she regained consciousness and made an attempt to flee, he abused her and left her senseless and badly injured in a field while he drove off. The victim was hospitalised for a month, and suffered from paralysis of the eye muscle until the beginning of 1982, and was, a year after the attack, still in a terrible psychological state with suicidal and depressive tendencies.

On 17 September 1982 the Münster Regional Court convicted the applicant of rape in two cases, in one case in combination with grievous bodily harm, and in the other case with attempted rape. He received a global youth sentence of five years, which included the previous sentence of the Juvenile Court. It based its decision on the opinion, dated 19 April 1982, of an external psychiatric expert, who had examined the applicant and had seen medical, social and school reports about the applicant and his family from 1970 until 1980, which all stated that the applicant had a difficult family situation and had physical and learning difficulties. The expert found that the applicant suffered from a psychopathic personality disorder with an increased sex drive and lack of willpower. The Regional Court further held that the applicant had acted with diminished responsibility when committing the offences because of a mental disorder (pursuant to Article 21 of the Criminal Code, see Relevant domestic law below). It consequently ordered that the applicant be placed in a psychiatric hospital in accordance with the relevant provisions of German law before starting the youth sentence. At the time of committing the offences, the applicant was 16 and 17 years old respectively. He has been in a psychiatric facility since 15 October 1982.

Since 1987 the applicant has been examined regularly every three years by different external psychiatric experts, who had not treated the applicant before and who did not belong to the psychiatric facility in which the applicant is placed.

On 6 December 2010 the external expert K., a psychologist, psychotherapist and professor at a university of applied science, issued a statement after examining the applicant on 19 and 27 October 2010. In his assessment of the applicant’s legal prognosis the expert took into account the previous opinions of eight different external psychiatric experts on the applicant’s state of health dating from 1987, 1991, 1993, 1995, 1998, 2001, 2004 and 2008 as well as his medical file containing statements by attending doctors regarding the applicant’s conduct in hospital and the therapy implemented since his confinement in 1982.

The expert found that the applicant was suffering from a histrionic, narcissistic and antisocial disorder with impulsive and aggressive tendencies, that had developed as a result of him being neglected and abused at home in the past. He was easy to provoke and irritate, emotionally instable and his threshold for aggressive behaviour was low. In the course of his stay in hospital the applicant had, on a few occasions, shown aggressive and somewhat violent reactions towards fellow patients after being provoked or in situations where he had felt harassed. However, in none of these cases had the applicant tried to strangle someone or injure them badly, and there was nothing to suggest that his aggressive behaviour had increased in frequency or intensity over the years. The expert emphasised that the applicant was trusted with looking after the ward’s petting zoo and always carried out his everyday tasks.

In the expert’s view, it had to be expected that outside the hospital the applicant would commit offences similar to those which had been the reason for his confinement. When examined by the expert, the applicant had indicated that he had seen no need to continue his therapy. Further treatment and medication were however necessary with a view to minimising the risk of him reoffending. For the time being, the applicant’s release from hospital could not therefore be recommended. The expert specified in this connection that his assessment was based on the assumption that the Regional Court would come to the conclusion that the offences the applicant might commit were so serious that for the safety of the general public his continued placement was required. The expert concluded that the applicant could not be regarded as a treated sex offender.

In March 2011 the applicant, represented by a lawyer, requested that his further placement be declared disproportionate or, alternatively, that an additional psychiatric assessment be carried out. He submitted that his continued detention for the past twenty eight and a half years had violated his human rights.

On 22 March 2011, without hearing the applicant orally, the Paderborn Regional Court rejected the applicant’s request. It took into consideration a report by the psychiatric facility of 1 September 2010, which concluded that despite the applicant’s mostly satisfactory behaviour in the daily routine on the ward, it could not issue a positive legal prognosis, owing to the stagnating progress of his therapy.

On 28 April 2011 the Hamm Court of Appeal overruled the Regional Court’s decision because the external expert opinion dated 6 December 2010 had not been included in the decision-making, and neither the expert nor the applicant had been heard. The Court of Appeal referred the case back to the Regional Court for a new decision.

On 10 June 2011 the Paderborn Regional Court again ordered that the applicant’s placement in hospital be continued. Relying on written statements by the Lippstadt Psychiatric Hospital, where he was held, see paragraph 1, of 6 June 2011 and the prosecution authorities, the independent expert opinion of 6 December 2010, the applicant’s oral testimony and the applicant’s lawyer’s statement, the court found it established that the applicant’s legal prognosis was still negative. The expert had stated that the applicant was suffering from a combined personality disorder including affective instability, lack of willpower, an inability to create relationships, and denial of the crimes. According to the expert, the applicant needed the protective environment and care of an institution for a fairly long time, as he still had not shown any insight into his illness or empathy with the victims, and obstinately refused to consider any proposals by the attending doctors to adjust his psychotherapy, as was required for the long-term treatment of his disorder.

On 1 September 2011 the Court of Appeal, endorsing the Regional Court’s reasoning, dismissed the applicant’s appeal as ill-founded. It added that as long as there remained a serious risk that he could commit similar offences, and as long as he refused treatment, his continued placement in a psychiatric facility was vital and proportionate.

On 1 June 2012 the Federal Constitutional Court rejected the applicant’s constitutional complaint without giving further reasons (file no. 2 BvR 2120/11).

The applicant’s further detention was subject to annual review. On 13 June 2012 the Paderborn Regional Court ordered that the applicant’s placement be continued after hearing the applicant and taking into consideration the psychiatric facility’s report of 13 April 2012. The report asserted that the applicant continued to suffer, without any change, from a combined personality disorder including histrionic, narcissistic and antisocial aspects with an undifferentiated perception of other people, a high level of egocentrism and rigid and inflexible behaviour and thinking. The report emphasised that despite the fact that in the psychiatric hospital the applicant was well integrated into everyday life and assumed responsibility for his behaviour, he had difficulties with change. The court considered that the applicant adhered to the accompanied relaxation of his detention but he considered the medical report and a supplementary opinion as “brashness” (Frechheit) and demanded his release. The court considered that the applicant’s placement had to be continued, as his demanding and impulsive behaviour gave grounds for suspecting that he would reoffend once outside a structured environment.

On 31 July 2012 the Hamm Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision.

On 5 June 2013 the Paderborn Regional Court on the basis of a fresh report of the psychiatric facility of 15 March 2013, ruled that the applicant’s detention should be continued as the applicant continued to lack social skills and showed a high level of egocentrism which was contrary to a positive social and legal prognosis. The court found that no progress in his treatment could be established as he continued to refuse proper treatment.

On 23 July 2013 the Hamm Court of Appeal confirmed the Regional Court’s decision and specified that since the applicant had refused any offers of therapy, there was still a risk of him reoffending.

On 18 November 2013 the Federal Constitutional Court (file nos. 2 BvR 2180/13 and 2 BvR 2200/13) declared inadmissible constitutional complaints lodged by the applicant against the Hamm Court of Appeal’s decisions of 31 July 2012 and 23 July 2013. It found that the applicant had not sufficiently substantiated his complaints, as he had simply alleged that his confinement was disproportionate, that medical opinion was lacking, and that he had formulated controversial allegations against the courts without dealing with their arguments and reasoning. The Federal Constitutional Court added that it was not its task to identify the relevant legal points among the documents submitted. Even applicants who were not represented by a lawyer had to – so far as possible – substantiate their complaints.

The pertinent domestic law is reproduced in the case of Klouten v. Germany ((dec.), no. 48057/10, 19 March 2013, §§ 38-43).

In accordance with Article 21 of the Criminal Code, if an offender is only partially capable of appreciating the unlawfulness of his actions or of acting in accordance with any such appreciation because of a pathological mental disorder, a profound consciousness disorder, mental incapacity or any other serious mental abnormality, he is said to have acted with diminished responsibility.