Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in 1971. He is a migrant worker who arrived in Voronezh in 2002 and has been working on construction sites and in repairs. He lives in the village of Mikhnevo, Nizhnedevitskiy district of Voronezh region.

At about 2 p.m. on 26 April 2009 the applicant arrived at a meeting place as requested by his employer, Mr G., who was acting on police instructions. Three police officers in plain clothes knocked the applicant to the ground, handcuffed him and pushed him into their unmarked car. They did not explain who they were, where they were taking him or why. According to G., who witnessed the scene, they were armed with pistols.

The police officers took the applicant to the Zheleznodorozhniy district police department of Voronezh (отдел внутренних дел Железнодорожного района г. Воронежа, “the Zheleznodorozhniy ROVD”), where he was led to an office on the upper floor. Two police officers in uniforms demanded that he confess to a murder. He refused to do so and was punched.

The uniformed police officers and those in plain clothes subjected the applicant to various acts of physical violence. They removed the handcuffs from him and bound his hands with scotch tape instead. He was seated on the floor with his arms around his bended knees. A metal bar was passed under his knees. The police officers lifted him and hung him on the bar, the ends of which were put on two tables. The police officers continued punching him in the head and the rest of his body. The pressure caused by the bar behind his knees was such that it prevented his blood from circulating. The police officers hit him several times on the head with an empty glass beer bottle. The applicant felt unwell. He was taken off the bar and untied for a short time. The police officers then hung him again in the same way and attached wires from a special device to his ears. They subjected him to electric shocks by rotating a handle on the device. The applicant felt sharp pain.

Then four men in masks and rubber gloves entered the office. They undressed the applicant completely, including his underwear, tied his arms and legs with his own shirt and leather belt, and hung him with a rope on the door of the office, head down. They showed him a syringe containing a yellowy fluid and threatened him with an intravenous injection. One of them tied a rope to his penis and pulled it, thereby opening and shutting the door on which the applicant was hanging. They squeezed his testicles. Several times the applicant said that he agreed to confess to the murder, but his answers did not satisfy the policemen. At some point they loosened the rope and he fell onto his head.

The treatment described above continued until the next morning, when the applicant was placed in a cell for administrative detainees at the same police station. A young man who was detained in that cell advised him to do as the police had requested. Two or three hours later the applicant was taken to an office and given some food. His questioning by the police officers continued. He was warned that he would not be able to support two more days of such treatment. He then confessed to the murder of a certain D., as dictated by them. In the evening he was again placed in the cell for administrative detainees, where he spent the night.

On 28 April 2009 police officers B. and E.S. took the applicant in handcuffs to the Zheleznodorozhniy district investigation department of the investigative committee at the Voronezh regional prosecutor’s office (Следственный отдел по Железнодорожному району Следственного управления Следственного комитета при прокуратуре РФ по Воронежской области, “the district investigative committee”) for questioning by an investigator as a witness in a criminal case concerning the murder of D. During the questioning the applicant remained in handcuffs. He was requested to sign a paper in Russian, which he could not read. He was then transferred back to the cell at the Zheleznodorozhniy ROVD.

At the end of the day the applicant was taken out of the cell and given back his papers and mobile phone. He was asked to sign a document which he could not read and was released. The applicant’s landlady, Ms S., who had been phoning the police in vain for the past two days to find out about his whereabouts, saw him arrive home at about 8 p.m. with a swollen eye, bruises on his wrists, a swollen leg, a lesion on his right ear resembling a burn mark and suffering from sharp pains in his chest.

No criminal proceedings were brought against the applicant.

The following morning, on 29 April 2009, accompanied by his landlady, the applicant was examined at the emergency unit of town hospital no. 1 and received a medical certificate diagnosing him with bruising of the soft tissue of his face and his rib cage.

On 30 April 2009 the applicant was examined at the Voronezh Regional Forensic Medical Bureau. He described his ill-treatment at the Zheleznodorozhniy ROVD. According to the expert’s forensic medical report (акт судебномедицинского освидетельствования), the applicant had bruises each measuring 3 to 4 centimetres above and below his right eye and on his left eyelid, a bruise on his right cheek, bruises on his chest (two bruises measuring 3 to 4 cm and a bruise of 1 to 2 cm), a bruise of 3.5 to 4.5 cm on his scrotum, abrasions on his forearms and right wrist, a bruise of 4 to 5 cm on his left forearm, and bruises measuring 1 to 2 cm and 2 to 3 cm behind his right and left knees respectively.

On 14, 15 and 18 May 2009 the applicant was examined at town clinic no. 3. On the basis of an Xray examination he was diagnosed with a fracture of the ninth rib on the right side.

According to a report prepared as a result of a forensic medical examination of the applicant carried out on 19 and 20 October 2009, his injuries could have been inflicted on 26-28 April 2009.

According to police records, at 9.15 p.m. on 27 April 2009 police officer M. arrested the applicant, who had allegedly used obscene language in the street, and at 9.30 p.m. brought him to the Zheleznodorozhniy ROVD. The applicant was found guilty of petty hooliganism and sentenced to a 500 Russian rouble (RUB) administrative fine. He was allegedly released at 12 noon on 28 April 2009.

On 16 July 2009 the applicant was given access to documents concerning the administrative proceedings against him. On 29 July 2009 the Zheleznodorozhniy District Court of Voronezh examined an appeal lodged by the applicant against the decision of the Zheleznodorozhniy ROVD of 28 April 2009 to give him an administrative fine. The District Court quashed the decision and terminated the administrative proceedings against the applicant for lack of an administrative offence.

According to the applicant, on 7 May 2009 the deputy head of the district investigative committee refused to receive his complaint of illtreatment by the police and allegedly threatened to call the migration service and have him deported from the country.

On 14 May 2009 the applicant’s counsel lodged a complaint of illtreatment with the district investigative committee, describing the illtreatment in detail. She supported the allegations by submitting the medical certificate of 29 April 2009 (see paragraph 14 above) and the forensic medical report of 30 April 2009 (see paragraph 15 above). She requested that criminal proceedings be brought against the police officers concerned for abuse of power (Article 286 of the Criminal Code) and torture (Article 117 of the Criminal Code). She asked for specific investigative measures to be carried out, in particular an opportunity for the applicant to identify the police officers who had been on duty on 2628 April 2009 and a forensic medical expert examination of the applicant with a view to establishing the possible cause and time of the infliction of the injuries.

An investigator of the district investigative committee carried out a preinvestigation inquiry. He interviewed the applicant, who gave a detailed account of his alleged ill-treatment (see paragraphs 6-12 above), Ms S., who saw the applicant arrive home with the injuries after his alleged illtreatment (see paragraph 12 above), and police officer B., who stated that on 26 April 2009 he had stayed home and that on 27-28 April 2009 he had performed duties at the Zheleznodorozhniy ROVD which had had nothing to do with the applicant. The investigator also interviewed police officers Sh. and E., who stated that on 28 April 2009 they had held a “conversation” (беседа) with the applicant in one of their offices, at the request of the head of the criminal unit of the Zheleznodorozhniy ROVD, about the applicant’s involvement in the murder of D. After the “conversation” they had taken the applicant, at the request of their supervisor, to investigator G. of the district investigative department. Both of them denied any violent behaviour on their part. The investigator also obtained the police records, according to which the applicant had been brought to the Zheleznodorozhniy ROVD at 9.30 p.m. on 27 April 2009 (see paragraph 18 above).

On 25 May 2009 the investigator refused to institute criminal proceedings concerning the applicant’s complaint for lack of elements of a crime in the acts of police officers Sh. and E., pursuant to Article 24 § 1 (2) of the Code of Criminal Procedure (“CCrP”).

The applicant appealed against the decision to the Voronezh Zheleznodorozhniy District Court under Article 125 of the CCrP. On 18 June 2009 the District Court terminated the proceedings because the previous day a deputy head of the district investigative committee had quashed the investigator’s decision as unlawful and unfounded. In particular, he had ordered that the head of the criminal police unit of the Zheleznodorozhniy ROVD, S., be interviewed in the course of an additional preliminary inquiry.

The investigator’s subsequent decisions of 27 June and 6 August 2009 that no criminal proceedings would be instituted on the applicant’s allegations were likewise revoked on the same grounds by the district investigative committee (on 27 July and 1 September 2009). Court appeals lodged by the applicant were not examined for the same reason (the Zheleznodorozhniy District Court’s decisions of 28 July and 1 September 2009). In his decision of 1 September 2009 the head of the district investigative committee ordered that police officers M. and Se., who had brought the administrative proceedings against the applicant, be interviewed. He also noted that the identity of all the police officers present during the “conversation” with the applicant at the ROVD had not been established.

On 11 September 2009 the district investigative committee again refused to institute criminal proceedings for lack of elements of a crime in the acts of police officers Sh., E., S. and R. On 8 October 2009 the investigative committee at the Voronezh regional prosecutor’s office (следственное управление Следственного комитета при прокуратуре РФ по Воронежской области, “the regional investigative committee”) set aside as unlawful and unfounded the district investigative committee’s refusal. It noted, in particular, that the applicant’s allegations were supported by the forensic medical report of 30 April 2009 (see paragraph 15 above), the explanations of Ms S. (see paragraph 12 above) and the police records certifying the applicant’s presence at the police station at the relevant time (see paragraph 18 above). It concluded that there were sufficient data disclosing elements of a crime under Article 286 § 3 (a) and (b) of the Criminal Code (see paragraph 42 below) committed by unidentified police officers at the Zheleznodorozhniy ROVD, and opened criminal proceedings.

On 16 October 2009 the applicant was given victim status in the criminal proceedings.

On 8 April 2010 the criminal proceedings were suspended for failure to establish the identity of a person to be charged, pursuant to Article 208 § 1 (1) of the CCrP.

The proceedings were subsequently reopened and suspended again on the same grounds several times, the last time on 25 November 2010. The investigator established in that decision that at about 2 p.m. on 26 April 2009 three unidentified police officers had taken the applicant to the Zheleznodorozhniy ROVD by force and in handcuffs. In an office on the upper floor of the ROVD two other unidentified police officers in uniforms had demanded that the applicant confess to a murder. He had refused and had been beaten up by the officers who had taken him in. During the period from 26 to 28 April 2009 both uniformed and plain-clothes police officers had subjected the applicant to various acts of physical violence, in particular punching him and hitting him with a glass bottle on his head and other parts of his body, subjecting him to electric shocks via wires attached to his ears and genitalia, and to other forms of torture, as a result of which he had confessed to the murder of D.

During the preliminary investigation the regional investigative committee had questioned witnesses, including police officers who had been on duty at the ROVD during the relevant period, the head of the criminal police unit and his deputies, the police officers of the criminal investigation unit, witnesses to the applicant’s apprehension, persons detained in the cells for administrative offenders during the period concerned and the doctor who had examined the applicant on 29 April 2009. It examined the offices where the illtreatment could have taken place and held identification parades to enable the applicant to identify the alleged perpetrators from among a number of the police officers who had been working at the Zheleznodorozhniy ROVD. While a number of those identification parades had not resulted in an identification (for example, police officer D.M. who was found to have been using a phone number from which calls to the applicant’s employer G. had been registered (see paragraph 6 above) had not been identified by the applicant), the applicant had identified police officers B. and S. as participants in his ill-treatment. The investigator found their identification insufficient for the prosecution in view of its alleged inconsistency with the applicant’s statements describing the perpetrators and in view of their alibi, as neither of them had according to their statements allegedly been present at the ROVD during the period concerned.

On 9 March 2011 the first deputy to the Voronezh regional prosecutor dismissed an appeal lodged by the applicant against the investigator’s decision of 25 November 2010 (see paragraph 29 above).

On 19 April 2011 judge G. of the Leninskiy District Court dismissed a further appeal lodged by the applicant under Article 125 of the CCrP. That decision was upheld by the Voronezh Regional Court on 14 June 2011. In particular, the applicant, represented by his counsel, argued in the court proceedings that the identity of the alleged perpetrators had been established since he had identified police officers B. and S.; hence, it had been wrong to suspend the proceedings for failure to identify the alleged offenders. The courts rejected his submissions and found the investigator’s decision lawful and well-reasoned.

Some of the applicant’s allegations – notably that the administrative charge of petty hooliganism against him had been trumped up and that police officer B. had unlawfully handcuffed him on 28 April 2008 when taking him for questioning to the investigator in the murder case – were the subject of separate proceedings. The district investigative committee’s initial refusal to open a criminal case was followed by the regional investigative committee’s decision of 5 December 2011 to open criminal proceedings concerning the alleged forgery of administrativecase documents under Article 292 § 2 of the Criminal Code and their subsequent suspension. On 7 September 2012 the district investigative committee’s initial refusal to open a criminal case into the applicant’s handcuffing was revoked and an additional preliminary inquiry was ordered.

The applicant’s counsel requested the transfer of the criminal cases concerning the applicant’s ill-treatment to a new division at the Central Federal District investigative department, which had been created pursuant to order no. 20 of the chairman of the investigative committee to investigate crimes committed by police officers (see paragraph 43 below).

On 31 August 2012 the regional investigative committee replied to the applicant that firstly, it was not competent to take such a decision as, under Article 152 § 6 of the CCrP, a criminal case could only be transferred for investigation to a superior investigative authority by a reasoned decision of the head of that authority, and that secondly, order no. 20 did not provide for obligatory transfer of cases of this kind to the new investigative divisions.

On 28 September 2012 the central office of the investigative committee of the Russian Federation sent the applicant’s transfer request back to the regional investigative committee, which, in a letter of 6 November 2012, gave the applicant the same reply as before (see paragraph 34 above).

The applicant brought civil proceedings for damages sustained as a result of his unlawful arrest, detention at the police station, torture, handcuffing and unlawful questioning about his involvement in a criminal offence. He claimed RUB 1,200,000 in respect of non-pecuniary damage and RUB 1,435 in respect of pecuniary damage. Judge Sh. of the Leninskiy District Court of Voronezh held a hearing with the participation of the applicant, his lawyer and his interpreter, representatives of the Ministry of Finance, the Voronezh regional department of finance and budget policy and the Voronezh regional police department acting as a third party, and a prosecutor.

In its judgment of 29 November 2011 the District Court noted that the investigative measures conducted by the investigative committee after the opening of a criminal case had allowed it to establish the fact of the applicant’s unlawful arrest, handcuffing and detention during the period from 26 to 28 April 2009 in the offices of police officers of the criminal investigation unit (сотрудников уголовного розыска) of the Zheleznodorozhniy ROVD and in a cell for administrative detainees, as well as the fact that he had been subjected to physical violence with the aim of obtaining his confession to a murder and had had bodily injuries inflicted on him on the premises of the Zheleznodorozhniy ROVD (see paragraph 29 above). As a result of the physical and psychological violence, the applicant had confessed to a murder. He had not been detained as a suspect, nor charged with, or found guilty of, any crime.

On the basis of the preliminary investigation, which had established the elements of a crime under Article 286 § 3 (a) and (b) of the Criminal Code, the Zheleznodorozhniy District Court’s judgment of 29 July 2009 terminating the administrative proceedings against the applicant for lack of an administrative offence (see paragraph 19 above) and the evidence submitted by the applicant in the civil proceedings, the District Court found it established that the applicant had been subjected to the abovementioned unlawful acts by police officers, despite the failure to identify them all. Of those identified, the District Court noted M., G. and Ch., who had signed the records and the decision concerning the administrative offence allegedly committed by the applicant. The physical violence to which the applicant had been subjected had not been made necessary by his conduct, had diminished his human dignity and had as such been a violation of the law. The District Court awarded the applicant RUB 840,000 in respect of nonpecuniary damage and RUB 835 in respect of pecuniary damage, to be paid by the federal and regional treasuries, and rejected the remainder of his claims.

According to the internet site of the Voronezh Regional Court, on 22 March 2012 it examined the case following appeals lodged by the respondent authorities. No appeal against the Leninskiy District Court’s judgment had been lodged by the applicant, who was represented before the appeal court by his counsel. The Regional Court rejected the appeals and upheld the judgment.

A complaint about the applicant’s ill-treatment was also lodged with the Voronezh regional police department, which informed the applicant’s counsel on 23 July 2009 that police officer M. had been disciplined for his failure to identify an alleged witness to the applicant’s administrative offence.

Police officer S., identified by the applicant as one of those who had participated in his illtreatment (see paragraph 30 above), was promoted on 1 October 2010 as head of a district police department.


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

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicant was born in 1976 and is detained in Togliatti, Samara Region.

On 19 October 2006 the applicant was arrested on suspicion of drug dealing.

On 20 October 2006 the Samarskiy District Court of Samara remanded the applicant in custody. The court held that the applicant was suspected of a serious crime, that he could abscond, commit crimes, destroy evidence, threaten witnesses or in any other way interfere with the investigation.

On 18 December 2006 the District Court extended the applicant’s pre-trial detention. The court reproduced the reasoning of the previous detention order. The court also indicated that the applicant had played a leading part in the criminal activities.

On 15 February 2007 the District Court extended the applicant’s pretrial detention on the ground that the investigation was still pending and it was necessary to conduct some investigative activities. The court further referred to the same grounds as in the previous detention orders.

The Samara Regional Court rejected the applicant’s appeals against the detention orders.

On 1 June 2007 the Bolshechernigovskiy District Court of the Samara Region convicted the applicant of drug trafficking and sentenced him to 11 years’ imprisonment and a fine. On 21 August 2007 the Samara Regional Court upheld his conviction on appeal.


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in 1971 and lives in Chelyabinsk.

On 17 January 2005 the applicant was detained on suspicion of having committed a robbery.

By decision of 11 March 2005 the court extended the applicant’s pre-trial detention until 22 March 2005. According to the applicant, his pretrial detention continued on 23 March 2005 since the investigator sent his criminal case to the court with a one day delay.

On 25 April 2005 the Tsentralniy District Court of Chelyabinsk convicted the applicant of robbery and sentenced him to nine years of imprisonment. The applicant appealed.

By decision of 22 July 2005 the Chelyabinsk Regional Court upheld the judgment with certain modifications.

The applicant subsequently lodged a request with a court to initiate supervisory review proceedings in his case. On an unspecified date the applicant’s request was granted.

On 22 November 2006 the Presidium of Chelyabinsk Regional Court amended the judgment and reduced the applicant’s sentence to eight years and six months of imprisonment.

During the trial the applicant was transported to the Tsentralniy District Court of Chelyabinsk to take part in the examination of his criminal case.

While waiting for hearings in the Tsentralniy District Court of Chelyabinsk the applicant was put in a convoy cell, a barred room measuring approximately 4 sq. metres with one bench. According to the applicant, he was usually kept in the convoy cell with six other accused. On 29 June 2005 as many as nine accused were kept in the convoy cell. The cell did not have a toilet and the detainees were taken to the toilet on the wardens’ orders. Though the accused leaving for a court were provided with a packed lunch, no hot meal or hot water was distributed. The accused were not allowed to smoke.

The applicant did not provide any detailed information as to how many times and how long he had been detained in the convoy cell.

He stated that the average time spent in the convoy cell by an accused was 4-5 hours a day.

On 30 June and 18 July 2005 the applicant complained to the court and the Head of the Court’s Convoy Service about the conditions of detention in the convoy cell.

By letter of 28 July 2005 the Tsentralniy District Court of Chelyabinsk replied to the applicant’s complaint. The relevant part of the letter reads as follows:

“... on 29 June 2005 twenty accused were brought to the court’s convoy cells, the cells were filled up to the limit because according to the Order no. 41 ... the following categories of individuals should be detained separately: men and women, minors and adults, individuals with previous criminal record and first time accused, suspects and convicted, suspects and accused in one case.

According to the Federal Law ... smoking is prohibited in all premises of the Tsentralniy District Court of Chelyabinsk, including the convoy cell.”

By letter of 9 August 2005 the Head of the Court’s Convoy Service replied to the applicant’s complaint. The relevant part of the letter reads as follows:

“On 29 June 2005 the convoy staff was obliged to seat the accused brought to the court according to the rules in force, thus 9 individuals were put together in one of the convoy cells.

On 25 July 2005 the applicant asked the prosecutor to institute criminal proceedings against the wardens of the courthouse. The prosecutor ignored the applicant’s motion and the applicant challenged his inaction in court. By decision of 18 October 2005 the Chelyabinsk Regional Court rejected the applicant’s complaint in the final instance. The relevant part of the decision reads as follows:

“The court’s conclusion that there are no grounds to record the applicant’s complaint under Article 144 of the Code of Criminal Procedure (CCP) and to adopt a procedural decision under Article 145 of CCP correlates It follows from the applicant’s statement of appeal ... that he complained of the conditions of the detention in the convoy cell of the Tsentralniy District Court of Chelyabinsk, namely the smoking ban and the overcrowding of the cells. The complaint does not contain any information on committed crimes and does not require institution of criminal proceedings. These circumstances were established during the court hearing and confirmed by the record of the hearing. For the reasons mentioned above the court of first instance reasonably dismissed the applicant’s complaint.”

The Government submitted that the courthouse convoy premises measuring 50 sq. metres in total had four cells, 4 sq. metres each. They had adequate ventilation and lighting, the entrance was secured by metal grill doors. Each cell was equipped with one bench. The cells did not have sanitary facilities, but the convoy premises had two lavatories. The applicant had access to the toilet at any time upon request. The Government provided undated photographs and a plan of the convoy premises.

Relying on a certificate issued by the director of facility IZ-74/1 on 21 October 2009, the Government claimed that the applicant was brought to the Tsentralniy District Court of Chelyabinsk seven times: on 11 March, 7, 19, 22 and 25 April, 29 June and 31 August 2005.

The Government submitted that the documents confirming the number of detainees in the convoy cells and their time of arrival and departure were destroyed on 16 January 2009 due to expiry of the timelimit for their storage.

With reference to the applicable regulations, the Government submitted that on the dates of the applicant’s transfers to the District Court the applicant had received a dry ration (bread, tinned meat or fish, tea, salt, sugar and disposable tableware before 2 August 2005, and instant first and second course, sugar, tea, disposable tableware from 2 August 2005). The Government provided a copy of the invoice dated 15 June 2006 confirming the purchase of a water boiler by the District Court.

The Government acknowledged that on 29 June 2005 the convoy premises were crowded to the limit. According to the statement by the Deputy Head of the Convoy Service dated August 2005, there were twenty detainees in four cells in the convoy premises. The statement does not provide exact numbers for each cell.


CASE OF KHALILOVA AND AYYUBZADE v. AZERBAIJAN

Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence)

The applicants were born in 1974 and 1994 respectively and live in Baku. At the material time the first applicant was a member of one of the main opposition parties in the country, the Popular Front Party of Azerbaijan, and the second applicant was a member of an opposition group, Nida.

The applicants participated in an assembly on 6 May 2014. According to the applicants, they were among people who gathered near the Baku Assize Court to support members of Nida (an opposition group), who were being tried on that day. The courtroom was full, and therefore some people gathered outside the court to wait for the outcome of the proceedings. When the court announced its judgment, those who had gathered outside began to protest against the judgment, since they considered it unfair. The protest was brief, spontaneous and peaceful. Immediately after the protesters started chanting slogans, police officers and people in plain clothes began to forcibly disperse the demonstration.

The applicants were arrested during the dispersal operation and were taken to a police station, where they were kept overnight.

The applicants were questioned at the police station.

On the day of the applicants’ arrest, administrative-offence reports on them (inzibati xəta haqqında protokol) were issued, which stated that they had committed an administrative offence under Article 298.2 of the Code of Administrative Offences (“the CAO”): participation in a public assembly organised not in accordance with the law.

According to the applicants, they were never served with copies of the administrative-offence reports or other documents from their case files. They were not given access to a lawyer either after their arrest or while they were in police custody.

According to a police officer’s decision and an order dated 6 May 2014, a State-funded lawyer (Mr O.A.) was invited to defend the first applicant. Similarly, according to a police officer’s decision and an order dated 6 May 2014, a State-funded lawyer (Mr A.B.) was invited to defend the second applicant.

The applicants were brought before the Nasimi District Court on the day following their arrest.

According to the applicants, the hearing before the first-instance court was very brief in both cases. Members of the public were not allowed inside the courtroom, even though the court had not taken a formal decision to close the hearing to the public.

According to the applicants, they were not given an opportunity to appoint lawyers of their own choosing.

A State-funded lawyer was invited to defend the first applicant. It was the same lawyer, Mr O.A., who had been invited to defend her in accordance with the above-mentioned police officer’s decision of 6 May 2014.

The second applicant was not represented by a lawyer. According to the transcript of the hearing in his case, he refused the assistance of the State-funded lawyer and decided to defend himself in person.

According to the transcript of the hearing concerning the first applicant, the State-funded lawyer did not make any oral or written submissions.

The only witnesses questioned during the hearing concerning the first applicant were police officers who, according to official records, had arrested her or issued the administrative-offence report on her. They testified that the applicant had staged an unauthorised protest. With respect to the second applicant, the court did not question any witness.

According to the transcript of the hearing concerning the first applicant, she stated that she had participated in the protest of 6 May 2014 and had rightfully used “improper language” in the course of the protest.

According to the transcript of the hearing concerning the second applicant, he stated that he had simply protested against an unfair judgment against the Nida members, and had not committed any unlawful action.

In both cases the Nasimi District Court found that the applicants had participated in an unauthorised demonstration. The court convicted the applicants under Article 298.2 of the CAO, and sentenced them to a period of administrative detention of thirty and twenty days respectively.

On unspecified dates the applicants lodged appeals with the Baku Court of Appeal, arguing that their convictions had been in violation of their rights, because the protest in which they had participated had been spontaneous and peaceful. The applicants also complained that their arrests had been unlawful, and that the hearings before the first-instance court had not been fair. They asked the Baku Court of Appeal to quash the firstinstance court’s decisions in their respective cases.

The first applicant was assisted by a lawyer of her own choosing before the Baku Court of Appeal. The second applicant was not represented by a lawyer.

On 16 and 22 May 2014 respectively the Baku Court of Appeal dismissed the applicants’ appeals and upheld the decisions of the firstinstance court.


Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

Jon Fridrik Kjølbro;Ledi Bianku;Paul Lemmens

A list of the applicants is set out in the appendix.

On 21 November 1994 the applicants were taken into police custody. Their statements were taken by the police in the absence of a lawyer. All the applicants confessed to having committed the crimes with which they had been charged. On 28 December 1994 they were remanded in custody.

On 24 January 1995 the Public Prosecutor at the Diyarbakır State Security Court filed a bill of indictment against the applicants (except for Eyyup Yaşar), charging them under Section 125 of the former Criminal Code with carrying out activities with the aim of bringing about the secession of part of the national territory.

On 18 June 1999 the Constitution was amended and the military judges sitting on the bench of the State Security Courts were replaced by civilian judges.

On 4 December 2001 the Diyarbakır State Security Court convicted the applicants as charged.

On 20 November 2002 the Court of Cassation quashed the convictions.

State Security Courts were abolished on 16 June 2004 pursuant to Law no. 5190. The case was accordingly transferred to the Diyarbakır Assize Court.

On 22 February 2007 the Diyarbakır Assize Court again convicted the applicants under Section 125 of the Criminal Code and sentenced them to life imprisonment.

On 6 February 2008 the Court of Cassation upheld the convictions.


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

All the applicants were party to civil proceedings in which the firstinstance and appeal courts found in their favour. These judgments became final but were subsequently quashed by the supervisory review courts on the grounds of incorrect application of substantive law or incorrect assessment of evidence by lower courts (for more details see the Appendix).


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in 1980 and lives in Baku.

On 15 November 2007 there was a bomb explosion in Moscow. Criminal proceedings were instituted in connection with this explosion and on 13 December 2007 the applicant was charged with unlawful possession of explosive materials under Article 222.2 of the Criminal Code of the Russian Federation.

On 21 December 2007 the Preobrazhensky District Court, Moscow City, ordered the application of the preventive measure of remand in custody in respect of the applicant and issued an arrest warrant.

On 26 December 2007 the arrest warrant was sent to the Ministry of Internal Affairs (“the MIA”) of Azerbaijan.

It appears from a letter of 30 October 2008 signed by the head of the Criminal Investigation Department of the MIA that following the transfer of the arrest warrant to the Azerbaijani authorities the police contacted the applicant, who was in Azerbaijan, sometime in January 2008. The applicant came voluntarily to the MIA and submitted that he had no link with the explosion in question. The MIA established that the applicant was an Azerbaijani national and decided to transfer his statement to the relevant Russian authorities. At the request of the Russian authorities, on 31 January 2008 the applicant was again questioned at the MIA with the participation of two Russian police officers about his possible involvement in the explosion. Following a two-hour interrogation, no action was taken against the applicant and he left the premises of the Ministry.

On 30 June 2008 the applicant lodged a complaint with the Organised Crime Department (“the OCD”) of the MIA about an alleged misappropriation of his property by a certain E.H. and others. Dissatisfied with the progress in the case, the applicant subsequently lodged complaints with various State authorities about the failure of the OCD to investigate his complaint.

On 18 September 2008 the applicant was summoned to the OCD and on arrival there he was arrested. The applicant was not allowed to contact his family or a lawyer, and his arrest was not documented.

As the applicant’s family had no information about his whereabouts, on 21 September 2008 they lodged a criminal complaint with Khatai District Police Station No. 36 related to the applicant’s disappearance, and submitted a photograph of him to the police.

On 22 September 2008 the OCD informed the applicant’s family by telephone that the applicant had been arrested and detained in the temporary detention facility of the OCD.

On 24 September 2008 the applicant’s brother was allowed to visit him in the temporary detention facility of the OCD. However, the applicant’s family was not informed of the reasons for the applicant’s arrest and detention.

On 26 September 2008 the applicant’s family contacted a lawyer for the applicant’s defence and at around 10 a.m. on 27 September 2008 a contract was concluded between them.

At around 3 p.m. on 27 September 2008 the lawyer went to the OCD and tried to meet the applicant. However, the lawyer was informed that he could not meet the applicant without the authorisation of the investigator. The lawyer immediately sent telegrams to the MIA, the Prosecutor General’s Office and the Ombudsman complaining that he had been prevented from meeting the applicant.

At around 9 p.m. on 27 September 2008 the applicant was brought before a judge of the Narimanov District Court who ordered his detention on remand (see paragraph 22 below). His lawyer was not informed about the hearing; the applicant was represented by a State-appointed lawyer.

While detained in the temporary detention facility of the OCD, he was during the period from 18 September to 2 October 2008 forced to change his statement in the criminal case concerning the misappropriation of his property by E.H. and others.

As regards the criminal complaint lodged by his family (see paragraph 12 above), by letter of 2 October 2008 the head of Khatai District Police Station No. 36 informed the applicant’s family of the investigator’s refusal to institute criminal proceedings in connection with his disappearance. The relevant part of the decision reads as follows:

“On 21 September 2008 citizen B. Nagiyev lodged a complaint with Khatai District Police Station No. 36, stating that his brother, Nagiyev Asif Najaf oglu [the applicant], born in 1980, left his home at around 1.15 p.m. on 19 September 2008 and has not returned.

Citizen B. Nagiyev also made a statement confirming the content of his complaint.

A report was prepared and transferred to Khatai District Police Station No. 36 in connection with the search for Asif Nagiyev [the applicant]. During the search, all the police stations in Baku were instructed and other measures were taken.

During the search, non-official information was received indicating that Asif Nagiyev had been arrested by the OCD of the MIA because he was wanted in Russia. An enquiry in this regard was sent to the OCD, but no response has yet been received.

The whereabouts of A. Nagiyev have not yet been clearly established.

Taking into account that there is no evidence that a crime has been committed, institution of criminal proceedings in connection with this subject should be rejected.”

The applicant was arrested at around noon on 27 September 2008. The relevant part of the official record of the applicant’s arrest (cinayət törətmiş şəxsin tutulması barədə protokol) of 27 September 2008 reads as follows:

“... At around noon on 27 September 2008, Nagiyev Asif Najaf oglu [the applicant], whose identity was established later, born on ... and in ... was arrested in the district of Narimanov in Baku and taken to the department. It was established during questioning there that on 21 December 2007 Nagiyev Asif Najaf oglu was charged under Article 222.2 (unlawful possession of explosive materials) of the Criminal Code of the Russian Federation by the Moscow City Prosecutor’s Office ... an arrest warrant was issued, and the application of the preventive measure of remand in custody was ordered ...

Nagiyev Asif Najaf oglu was transferred to the temporary detention facility of the OCD ...”

It appears from the extracts from the logbook of the OCD’s temporary detention facility submitted to the Court by the Government that the applicant arrived at the detention facility at 4 p.m. on 27 September 2008 following a decision of a Narimanov District Court judge.

On 27 September 2008 a judge of the Narimanov District Court, relying on the Russian court’s detention order of 21 December 2007, ordered the application of the preventive measure of remand in custody in respect of the applicant for a period of two months. At the hearing the applicant was represented by a State-appointed lawyer. The judge relied on the provisions of the Code of Criminal Procedure (“the CCrP”) of the Republic of Azerbaijan relating to detention with a view to extradition when she ordered the applicant’s detention. The judge justified this measure as follows:

“Taking into account the fact that Nagiyev Asif Najaf oglu committed a less serious criminal offence and, if released, would obstruct the objective functioning of the investigation by absconding from it, I consider it necessary to confirm the decision of 21 December 2007 of the Federal Court of Preobrazhensky District, Moscow City, to apply the preventive measure of remand in custody in respect of him for a period of two months.

In fact, according to Article 495.1 of the CCrP of the Republic of Azerbaijan, upon receipt of a request for extradition of a person and a copy of a detention order in respect of him from the competent authority of a foreign State, the prosecuting authority of the Republic of Azerbaijan to which the request is addressed may, if necessary, take measures in compliance with the provisions of this Code to have the person arrested and detained before a decision on extradition is taken.”

Following a series of complaints to the various domestic authorities, on 8 October 2008 the applicant’s lawyer was provided with a copy of the record of the applicant’s arrest and the Narimanov District Court’s decision of 27 September 2008.

On an unspecified date the applicant appealed against the Narimanov District Court’s decision of 27 September 2008, claiming that his arrest and detention had been unlawful. In particular, he submitted that he had been unlawfully arrested on 18 September 2008 and that there were no criminal proceedings pending against him in Azerbaijan. He further argued that as he was an Azerbaijani national he could not be extradited to a foreign State, which followed from Article 53 of the Constitution of the Republic of Azerbaijan and Article 13 of the Criminal Code. He also submitted that his arrest and detention had not been carried out in accordance with domestic and international law, since no official request accompanied by the relevant documents for his detention and extradition was ever submitted by the Russian authorities. The applicant’s lawyer also submitted a request for restoration of the time-limits for lodging an appeal. In this connection, the lawyer stated that although at 10 a.m. on 27 September 2008 the applicant’s family had appointed him as a lawyer for the applicant’s defence, he had not been informed of the Narimanov District Court’s hearing, which was held at around 9 p.m. on 27 September 2008. He further noted that he had been provided with a copy of the detention order only on 8 October 2008.

On 3 November 2008 the Narimanov District Court granted the request for restoration of the time-limits for lodging an appeal and forwarded the applicant’s appeal to the appellate court for examination.

On 7 November 2008 the Baku Court of Appeal upheld the Narimanov District Court’s decision of 27 September 2008 without considering the applicant’s specific complaints.

On 27 November 2008 the Narimanov District Court granted the prosecutor’s request for the extension of the applicant’s detention for a period of two months, relying on Article 159 of the CCrP concerning the extension of detention periods pending criminal proceedings. In its decision, the court noted that as the applicant was an Azerbaijani national he could not be extradited to a foreign State, and for this reason the Azerbaijani Prosecutor General’s Office had requested the Russian Prosecutor General’s Office to transfer the applicant’s criminal case to the Azerbaijani authorities. The court thus justified the extension of the applicant’s detention period by the fact that more time was needed for the submission of relevant documents relating to the applicant’s case from the Russian Prosecutor General’s Office to the Azerbaijani authorities. The relevant part of the decision reads as follows:

“As the extradition of Nagiyev Asif Najaf oglu to Russia is impossible because he is a citizen of the Republic of Azerbaijan, a request was sent to the Russian Prosecutor General’s Office for the criminal case to be transferred to the Azerbaijani Prosecutor General’s Office for the criminal inquiry to be continued in the Republic of Azerbaijan.

Taking into account the fact that more time is needed for the transfer of the criminal case relating to the accused Nagiyev Asif Najaf oglu from the Russian Prosecutor General’s Office to the Azerbaijani Prosecutor General’s Office, but that the detention period of Nagiyev Asif Najaf oglu ends on 27 November 2008, I consider the request justified in order to ensure the criminal prosecution of Nagiyev Asif Najaf oglu in the future and to prevent him from absconding from the court proceedings.

Taking into account the above-mentioned matters and relying on Articles 159, 448 and 454 of the CCrP, I decide that the detention period of Nagiyev Asif Najaf oglu born on ... and in ... must be extended for a period of two months, until 27 January 2009.”

The applicant appealed against this decision, claiming that the extension of his detention was unlawful. He noted in particular that although the court had relied on Article 159 of the CCrP concerning the extension of detention periods pending criminal proceedings when it ordered the extension of his detention, there were no criminal proceedings pending against him in Azerbaijan, and therefore his detention could not be extended on this basis. He also submitted that the court had failed to justify the extension of his detention, and that his continued detention was in breach of the relevant international conventions. The applicant further reiterated the complaint concerning his unlawful detention from 18 to 27 September 2008 in the OCD, noting that the main reason for his detention was his complaint concerning misappropriation of his property by E.H. and others. In this connection he disputed the content of the official record of his arrest, stating that his family could not possibly have known about his arrest at 10 a.m. on 27 September 2008 and concluded a contract with his lawyer for his defence, if he had been arrested at noon on 27 September 2008 as indicated in the official record.

On 5 December 2008 the Baku Court of Appeal dismissed the applicant’s appeal. The appellate court made no mention of the applicant’s particular complaints.

On 12 December 2008 the applicant lodged a request with the Narimanov District Court, asking the court to replace his remand in custody with the preventive measure of house arrest. He claimed, in particular, that his detention had not been justified and that there was no reason for his continued detention. In support of his request, the applicant pointed out that he had a permanent place of residence and that there was no risk of his absconding from or obstructing the investigation.

On 19 December 2008 the Narimanov District Court dismissed the request.

On 27 January 2009 the Narimanov District Court extended the applicant’s detention for a period of one month, relying on Article 159 of the CCrP concerning the extension of detention periods pending criminal proceedings. As to the justification for the extension of the applicant’s detention, the court relied on an almost identical wording as that of the court’s decision of 27 November 2008.

On 29 January 2009 the applicant appealed against this decision, reiterating his previous complaints. He noted in this regard that the domestic courts had ignored his complaint concerning his unlawful detention in the temporary detention facility of the OCD from 18 to 27 September 2008. He further stated that although the Russian authorities had never submitted any extradition request or a request for institution of criminal proceedings against him in Azerbaijan, he had been detained in breach of the domestic and international law. In particular, he referred to Article 497.1 of the CCrP, which provides that a person arrested with a view to extradition must be released if no official request for his extradition is received by the Azerbaijani prosecuting authority within forty-eight hours of his arrest.

On 2 February 2009 the Baku Court of Appeal upheld the first-instance court’s decision. The appellate court made no mention of the applicant’s specific complaints.

On 27 February 2009 the Narimanov District Court again extended the applicant’s detention for a period of one month. The court’s decision was almost identical in its wording to the decisions of 27 November 2008 and 27 January 2009.

On 2 March 2009 the applicant appealed against this decision. He reiterated that the domestic courts had ignored his complaint concerning his unlawful detention in the temporary detention facility of the OCD from 18 to 27 September 2008. He further stated that it was not legitimate for the domestic courts to order the extension of his detention on the ground that more time was needed for the transfer of relevant documents from the Russian authorities to their Azerbaijani counterparts.

On 10 March 2009 the Baku Court of Appeal granted the applicant’s appeal and ordered his release. The appellate court quashed the Narimanov District Court’s decision of 27 February 2009, holding that the first-instance court had erred in extending the applicant’s continued detention. The relevant part of the decision reads as follows:

“It appears from the OCD’s decision of 22 September 2008, concerning an operational-search measure and which was added to the case file, that a decision concerning an operational-search measure in respect of Nagiyev Asif Najaf oglu, who was wanted for a crime committed in Russia, was taken.

The record of the applicant’s arrest, drawn up by ..., indicates that Nagiyev Asif Najaf oglu was arrested on 27 September 2008.

In accordance with the requirements of Article 495.1 of the CCrP of the Republic of Azerbaijan, upon receipt of a request for extradition of a person and a copy of a detention order in respect of him from the competent authority of a foreign State, the prosecuting authority of the Republic of Azerbaijan to which the request is addressed may, if necessary, take measures in compliance with the provisions of this Code to have the person arrested and detained before the decision on extradition is taken ...

In accordance with paragraph II of Article 53 of the Constitution of the Republic of Azerbaijan, a citizen of the Republic of Azerbaijan may under no circumstances be extradited to a foreign state.

In accordance with Article 13 of the Criminal Code, a citizen of the Republic of Azerbaijan who has committed a crime on the territory of a foreign state shall not be extradited to that foreign state ...

In accordance with the requirements of Article 75 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 13 January 2004, if a request for extradition, as provided for in Article 67 of the Convention, and accompanying documents were not transferred within forty days of the date of arrest of the person arrested, the person must be immediately released.

It appears that A. Nagiyev has been in detention for five months and thirteen days, or one hundred and sixty-three days, and that during this period no additional material concerning him was sent from the Russian Federation to the Azerbaijani authorities ...

Therefore, taking into account the above-mentioned findings, the panel of the court considers that the appeal of the lawyer must be granted and that the Narimanov District Court’s decision on extension of A. Nagiyev’s detention period must be quashed.”


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment)

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

The applicant was born in 1971 and lives in Daugavpils.

On 16 January 1995 Inspector S.K. of the Daugavpils City Police arrested the applicant and took him to the police station. The applicant, who had category 2 disability status in relation to his eyesight, did not offer any resistance. Subsequently, S.K. beat up the applicant by delivering several blows to his head, near to his eyes. When the applicant fell to the ground, S.K. kicked him at least once in the chest.

After this injury, the deterioration of the applicant’s sight accelerated, leading to retinal detachment. In 1995 and 1996 he had several eye operations, including three in a hospital in Moscow, but the retinal detachment continued to progress. In April 1996 he was granted category 1 disability status for complete loss of vision.

On 30 January 1995 criminal proceedings were initiated against S.K. On the same date the applicant was joined as a civil party to those proceedings.

In February 1995 a forensic medical report was drawn up. It stated that on 16 January the applicant had sustained numerous injuries, which by their nature were considered moderate, resulting in long-term health problems of more than twenty-one days and permanently reducing his capacity to work by at least a third.

On 22 March 1995 charges were brought against S.K. and on 8 August 1995 the case was sent to the Daugavpils Court for adjudication.

S.K. did not appear at the first hearing on 1 November 1995. The Daugavpils Court held that the case could not be heard in his absence and issued a warrant for his arrest. In December 1995 the warrant was sent to the Daugavpils police station.

During the same hearing the applicant’s lawyers asked the trial court to order a second forensic medical report in an attempt to establish the nature and seriousness of the injuries sustained. The prosecutor supported the request and the Daugavpils Court ordered a report.

In January 1998, January 1999 and August 1999 the Daugavpils Court asked the Daugavpils police station for information about the measures taken and results achieved in executing the arrest warrant. In reply to each request the police sent identical responses stating that S.K. was wanted and that the trial court would be informed when he was caught. In August 1999 the police informed the Daugavpils Court that, according to information received, S.K. had left Latvia.

In December 1996 the forensic medical service reminded the Daugavpils Court that it had not received any original medical documents. In July 1998 and January 1999 the Daugavpils Court asked the Russian authorities for assistance in obtaining originals of medical records relating to the applicant’s operations (see paragraph 7 above). For unknown reasons the documents were not obtained and as a result, the report could not be drawn up.

On 16 November 1999 the prosecutor asked the trial court to order a forensic medical examination to confirm the classification of the offence. After the initial forensic medical report the applicant’s health had deteriorated and he had completely lost his sight. According to the prosecutor, there were therefore grounds to consider that that might be related to the injuries which had been inflicted on the applicant in 1995. The Daugavpils Court upheld the prosecutor’s request and ordered the third forensic medical examination. A medical panel was asked to comment on what kind of trauma had caused the injuries; whether the applicant had lost his sight as a result of the injuries inflicted on him in 1995; to what extent he had been incapacitated before the injuries and their severity.

On 7 December 1999 a medical report was drawn up. It stated that on 16 January 1995 the applicant had sustained injuries which by their nature were considered minor, resulting in health problems of no more than six days. The report continued that prior to the injuries the applicant had had serious and progressively deteriorating myopia. The applicant’s sight problems had become worse as a result of the head injuries sustained on 16 January 1995, and that had led to further deterioration of his sight.

It was also noted that, under domestic law, the worsening of a preexisting condition did not as such serve as grounds for reclassifying the seriousness of an injury. Serious eye disorders could develop and result in the loss of sight even without trauma. In the light of the above, the report did not establish a direct causal link between the injuries inflicted on the applicant in 1995 and his loss of sight.

In April 2000 the Daugavpils Court refused to grant the applicant’s request for another medical report for lack of reasoning.

From June 2000 to February 2003 a total of five hearings were postponed because experts, doctors, including an ophthalmologist, did not attend and several medical experts needed to be called. In particular, on two occasions between 27 September 2001 and 9 January 2002 and between 18 December 2002 and 24 February 2003 hearings were postponed at the request of the applicant, as he had asked for a doctor and a forensic expert to be summoned.

On 10 April 2002, at the request of Daugavpils Court, a panel of experts drew up the fourth medical report which stated that the applicant had suffered at least one blow to his right eye and to his thorax. The injuries sustained by him were considered minor. The report continued by stating that on 16 January 1995 the applicant had suffered injuries to his head that had resulted in a serious worsening of his eye disorder (myopia) with the recurrence of retinal detachments in both eyes followed by further deterioration of his sight. The worsening of a pre-existing condition, including after earlier injuries, did not in itself provide a basis for determining a more serious classification of bodily injury. A severe and progressive eye disorder (myopia) could deteriorate and lead to retinal detachment even if no injuries had been suffered, and eventually lead to complete loss of vision. The experts concluded that the applicant’s head injuries of 16 January 1995 had no direct causal link with the subsequent deterioration of his vision and his category 1 disability status.

On 23 February 2003 the applicant lodged a claim with the trial court for compensation for pecuniary and non-pecuniary damage.

On 27 February 2003 the Daugavpils Court found guilty S.K. in absentia for abusing his official power in a violent and disrespectful manner. He was sentenced to three years’ imprisonment.

In relation to the applicant’s civil claim the Daugavpils Court held that the total amount claimed, namely 156,853 Latvian lati (LVL) (around 224,075 euros (EUR)) and 8,400 United States dollars (USD) had not been supported by evidence. The majority of the documents confirming payment of the medical expenses had been submitted in German and English, and in order to invite a translator it would have to delay the adjudication. In addition, the applicant had not stated which part of the expenses related to the consequences of the injuries sustained. Accordingly, the trial court decided as follows:

“To recognise the [applicant’s] rights to compensation from the State for material, pecuniary and non-pecuniary damage caused by the criminal offence, and to remit (nodot) the question of the precise amount to be awarded/enforced (piedzīt) to the court to decide in civil proceedings”.

The judgment became final on 11 March 2003.

On 20 April 2004 the Riga Regional Court registered the applicant’s civil claim dated 23 March 2003 against the Ministry of the Interior and the State Police. The applicant claimed compensation for damage caused by the criminal offence committed by Inspector S.K. In the claim the applicant relied on the operative part of the judgment of the Daugavpils Court (see above), section 27 of the Law on Police and various provisions of the Civil Law which regulated tort liability. Relying on sections 2347 and 2349 of the Civil Law in particular, the applicant claimed pecuniary and non-pecuniary (morālo kaitējumu) damages of LVL 197,624.31 (EUR 282,320) for blindness, mutilation and disfigurement (sakropļojums un izķēmojums), loss of future income (atrautā peļņa) and medical expenses.

On 2 February 2006 the Riga Regional Court, acting as a firstinstance court, relied, amongst other provisions, on Article 92 of the Constitution and section 27 of the Law on Police, and accepted the applicant’s civil claim in part. He was awarded LVL 90,000 (EUR 128,500) in non-pecuniary damages for the damage caused to his health and LVL 4,502.81 (EUR 6,432.58) in pecuniary damages from both defendants on a pro rata basis for his medical expenses.

According to the Riga Regional Court, the applicant’s claim for compensation for non-pecuniary damage came within the scope of section 2349 of the Civil Law, a lex specialis providing no specific criteria for awarding compensation. The court referred to the findings of the experts in the criminal proceedings and stated that the applicant’s bodily injuries caused by the police officer might have been the reason for the worsening of his eye disorder (myopia) that had resulted in a rapid deterioration of his sight and eventually complete loss of vision.

On 27 September 2006 the Supreme Court reviewed the case following appeals by the applicant, the State Police and the Ministry of the Interior. It ruled that the first-instance court had been incorrect in concluding that the applicant’s injuries had amounted to mutilation and disfigurement under section 2349 of the Civil Law. The applicant’s claim for compensation for non-pecuniary damage was dismissed. The pecuniary damages were reduced to LVL 4,427.81 (EUR 6,325.44).

Regarding the applicant’s claim for pecuniary damages, the Supreme Court ruled that the judgment adopted in the criminal proceedings against S.K. only proved that he had committed a crime using violence against the applicant. The four usual criteria for establishing tort liability and compensation thus had to be satisfied (see paragraph 30 below). In the judgment of 27 February 2003 the first and fourth criteria had been established. The Supreme Court analysed all the medical data before it concerning the applicant’s health and concluded that the State Police were liable to pay pecuniary damages to the applicant for his medical expenses under section 2347 of the Civil Law.

Regarding the applicant’s claim for non-pecuniary damages, the Supreme Court concluded that the loss of the applicant’s sight had occurred under specific circumstances, including his previous state of health. It was also noted that the loss of his sight was not directly linked to the bodily injuries sustained by him on 15 January 1995. There was therefore no evidence to prove that his bodily injuries had amounted to mutilation or disfigurement, as provided in section 2349 of the Civil Law.

In a preparatory meeting on 22 February 2007 the Senate of the Supreme Court dismissed an appeal on points of law by the applicant as not raising any relevant legal issues.

In a letter dated 21 October 2010 addressed to the Government, the Supreme Court stated that there were no grounds for the national courts to extend the scope of the applicant’s claim and decide on the awarding of non-pecuniary damages on the following grounds. The applicant had claimed pecuniary and non-pecuniary damages for injuries sustained as a result of police ill-treatment. In this regard he had relied on sections 2347 to 2349 of the Civil Law, which provided that compensation could be claimed for mutilation and disfigurement. In order to determine whether the consequences of the alleged injuries were those stipulated in the legal provision, the domestic courts had to establish the essential conditions of tort liability, namely (i) unlawful conduct, (ii) damage, (iii) a causal link between the unlawful conduct and damage claimed and (iv) fault. In the applicant’s case, no such conclusions could be drawn on the basis of the medical documents. The applicant had lost his sight owing to various coexisting circumstances, not as a result of the injuries sustained in January 1995.

The Supreme Court also stated that with the amendments of 1 March 2006 the Civil Law contained a general legal provision (section 1635 of the Civil Law) for claiming non-pecuniary damages. Nevertheless, it did not have retroactive effect and therefore the national courts could not apply it in the applicant’s case. According to the Supreme Court, no such obligation could be inferred from any other legal acts on the account that the subject matter of the present civil dispute did not concern the public law obligation which the Latvian State had undertaken in the area of human rights.

Furthermore, the Supreme Court indicated that in the applicant’s case the ten-year statutory limitation period for claiming damages had started to run on 11 March 2003, the day the final judgment in the criminal case became effective. The Supreme Court therefore considered that the applicant still had the right to rely on Article 92 of the Constitution and lodge a claim for compensation for damage caused by a criminal offence. In that regard the Supreme Court referred to the judgment of 16 December 2009 in the so-called “Talsi tragedy” case, in which it ruled that a person has the right to receive compensation for violations of his or her human rights.


CASE OF CIOBANU v. THE REPUBLIC OF MOLDOVA

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

Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra

The applicant was born in 1984 and lives in Fîrlădeni.

Her late husband, Mr Alexandru Ciobanu (“the victim”), was a taxi driver and died at work, in a car accident on 6 April 2008. He was twenty-seven years’ old at the time and the father of a three-year-old child. The present application is about the circumstances of his death and the investigation carried out by the Moldovan authorities into those circumstances.

The accident happened at approximately 11.30 p.m. on 6 April 2008 in an illuminated two-way street with two lanes in the town of Hîncești. The speed limit was 40 k.p.h. and a solid line in the centre of the road indicated that no overtaking was allowed. A petrol station was located on one side of the road and there was a short broken line allowing cars to enter the petrol station from the opposite side of the road.

There are two versions of the events leading to the accident. The first version is based on the accounts of two eyewitnesses. According to them, the applicant’s husband was driving his Lada (“the victim’s car”) along the street and when he was level with the petrol station located on his left, he slowed down, indicated a left turn and then turned to the left. When his car had crossed the line in the centre of the road and was perpendicular to the road in the lane for traffic from the opposite direction, a speeding 5 series BMW car (“the grey car”) came from behind and hit it in the left side doors. The impact was so powerful that the victim’s car was lifted spinning up in the air at a height of several meters and was propelled onto a lamp post on the left side of the road. The grey car passed under the victim’s car and continued on its way for a while before coming to a complete stop.

The second version of the events was that of the grey car driver involved in the accident. He submitted that he had been driving at a speed of between 40 and 50 k.p.h. and had not overtaken any cars, when suddenly the victim, whose car had been parked on the right-hand side of the road, had started to turn left without looking out or indicating. The grey car driver claimed that he could not have applied his brakes or avoided the impact. He had a passenger in his car who submitted that he had not seen anything as he had been talking on the telephone at that very moment. Neither of the grey car occupants was injured in the accident.

According to measurements made by the police at the scene of the accident, the distance between the two cars involved in the accident after their complete stop was thirty-three metres. Experts later established that the grey car had hit the victim’s car at an angle of approximately ninety degrees. There were no skid marks, meaning that the grey car driver did not apply his brakes before impact. The victim died on the spot from multiple lethal injuries.

The police carried out an immediate examination of the scene of the accident and the grey car driver was taken to hospital, where he tested negative for the presence of alcohol in his blood. A criminal investigation was initiated the next day.

One of the witnesses questioned during the criminal investigation was a taxi driver, C., who had been driving along the same street and in the same direction as the victim. He submitted that the victim’s car had been further ahead but within sight. C. had been driving at a speed of approximately 60 to 70 k.p.h. when a speeding grey car had overtaken him in spite of the solid line on the centre of the road. He estimated that the grey car had been moving at a speed of 120 to 130 k.p.h. After overtaking his car, the grey car continued to drive in the lane for traffic coming from the opposite direction. C. claimed that he had seen the victim’s car ahead of him slowing down and indicating a left turn in front of the petrol station. As the victim’s car was turning left, the speeding grey car, which was still driving in the opposite lane, smashed into its left side.

Another witness was a student, G., who had been at a car wash across the road from the petrol station. He was standing there waiting for a taxi which he had ordered over the telephone and saw the entire scene. He was questioned on 17 October 2008 and submitted that the victim had been driving along the street before slowing down and indicating a left turn. After turning to the left, he was hit by a speeding grey car which had come from behind him in the lane for traffic coming from the opposite direction. G. estimated that the grey car driver had been travelling at approximately 100 k.p.h. and had not applied his brakes before the impact.

On 16 May 2008 an experiment was conducted by the prosecutor in charge of the case with the participation of the grey car driver and witness C. The applicant was not informed about it. The experiment consisted of measuring the time needed for a car to turn left at the place where the accident had happened and in the manner indicated by C. As a result of the experiment, it was established that the victim had needed approximately two seconds to make the manoeuvre of turning left.

On 27 May 2008 the prosecutor in charge of the investigation granted the grey car driver’s request to return his car to him. It had been held as a piece of evidence until that date.

On 28 May 2008 the applicant requested that a technical forensic investigation be conducted in order to determine, inter alia, the speed of the grey car, judging by the damage to both vehicles; the distance between the two cars when the victim’s car had started its manoeuvre; and whether the grey car could have avoided the impact by braking, had its driver been keeping to the legal speed limit. The request was partly granted by the prosecutor on 30 May 2008 and an expert from the Ministry of Justice was asked to reply only to the question whether the grey car could have avoided the impact if it had been moving at 50 k.p.h. and on the basis that the victim’s car had needed approximately two seconds to turn left. The expert was not provided with other information. The applicant was notified about the decision to conduct the forensic investigation on 19 June 2008.

In the meantime, on 3 June 2008, an expert from the Ministry of Justice issued a report in which he had taken as the basis of his investigation the fact that the grey car had been moving at 50 k.p.h. when the victim’s car had turned left. The report indicated that when the victim’s car had started its manoeuvre to the left, the grey car could have been twenty-eight metres behind it. It did not disclose the origin of the information concerning the distance of twenty-eight metres, nor did it contain any suggestion as to how the expert had come up with that figure. The report also indicated that the braking distance of a BMW of the kind involved in the accident moving at a speed of 50 k.p.h. was between thirty-one and thirty-nine metres. On the basis of the above figures, noting that the braking distance of the grey car was longer than the distance of twenty-eight metres between the cars, the report concluded that the grey car could not have avoided the impact by braking.

On 19 June 2008 the prosecutor in charge of the investigation ordered a new technical forensic investigation to determine the position of both vehicles involved in the accident in relation to each other and the road.

On 8 July 2008 another expert from the Ministry of Justice issued a report in which he concluded that the grey car had hit the left side of the victim’s car at an angle of approximately ninety degrees. The expert could not establish the position of the vehicles in relation to the road at the time of the impact since he had not been provided with sufficient information.

On 29 August 2008 the prosecutor in charge of the case ordered a third technical forensic investigation to determine the speed of the grey car, judging by the damage to both vehicles; the distance between the two cars when the victim’s car had started its manoeuvre; whether the grey car could have avoided the impact by braking, had it been keeping to the legal speed limit; and the manner in which both drivers should have behaved had they been respecting the provisions of the traffic code.

On 22 September 2008 the expert who had issued the first report on 3 June 2008, relying again on the facts as submitted by the grey car driver, concluded, inter alia, that there was no way of calculating the grey car’s speed; the grey car could not have avoided the impact by braking because its braking distance was longer than the distance between the two cars when the victim’s car had started the manoeuvre; the distance between the two cars when the victim’s car had turned left could not be determined, but on the basis of previous findings (see paragraph 17 above) it could have been around 27-28 metres; and that the grey car should have stopped when the victim’s car had started its manoeuvre, but had been unable to do so.

On 14 October 2008 a confrontation was conducted between witnesses C. and the grey car driver. Each of them kept to their initial version of the facts.

On 26 November 2008 the prosecutor in charge of the case ordered another forensic technical investigation by a commission of experts. The experts were requested to answer whether the grey car driver had had the right to overtake the victim’s car; whether before starting his manoeuvre the victim had been entitled to believe that the grey car driver would respect the traffic code rules; and what the grey car driver should have done when the victim’s car indicated a left turn and started its manoeuvre.

On 1 December 2008 the applicant requested that an independent expert of her choice be involved in the commission of experts. She nominated an engineer who was also a university professor and had a PhD in the field of traffic security. However, on 2 December 2008 the prosecutor rejected the request on the ground that the person proposed by the applicant was not licenced to practise as a judicial expert. It was decided that the person proposed by the applicant should participate in the commission of experts in the capacity of “specialist”.

On 19 December 2008 the expert who had issued the first report on 3 June 2008 together with another expert issued a forensic investigation report in which they refused to give answers to the first two questions because they were of a legal character. In answer to the third question, the experts said that the grey car driver should have reduced his speed. The specialist proposed by the applicant was not informed that a forensic investigation had been carried out.

On 23 March 2009 the Hâncești Prosecutor’s Office decided to discontinue the criminal investigation into the circumstances of Alexandru Ciobanu’s death. The prosecutor considered the testimonies of witnesses C. and G. unreliable because they had been contradicted by the findings in the forensic technical reports. On the other hand, the findings in those reports were found to be consistent with the submissions of the grey car driver. Accordingly, the prosecutor accepted the latter’s version of the facts and concluded that the victim had been responsible for the accident because, having been parked on the right-hand side of the road, he had turned left without looking out and making sure that the manoeuvre was safe. The applicant appealed, arguing, inter alia, that no independent experts of her choice had been involved in the forensic investigations and no confrontation had been carried out between the grey car driver and witness G.

On 9 April 2009 the next level of prosecutor from the Hâncești Prosecutor’s Office dismissed the applicant’s appeal and upheld the decision of the Hâncești Prosecutor’s Office of 23 March 2009. He argued that no independent expert opinion or supplementary confrontations had been necessary because the facts of the accident had been clearly established. The applicant challenged the decision of the Hâncești Prosecutor’s Office of 23 March 2009 before the investigating judge, who dismissed her appeal on 14 May 2009.


CASE OF HADŽIMEJLIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA

Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Procedure prescribed by law);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicants were born in 1959, 1978 and 1958, respectively, and are currently in the Drin social care home (“Drin”).

On 23 November 2006, at the request of the Visoko Social Work Centre, the Visoko Municipal Court deprived the applicant of legal capacity. It was established that she had been diagnosed with paranoid schizophrenia and that placement in a social care home would be in her best interest.

On 26 December 2006 the Visoko Social Work Centre placed the applicant under the guardianship of her sister.

On 23 January 2007 the Visoko Social Work Centre placed the applicant in Drin in accordance with the social care legislation.

On 13 June 2011 the applicant lodged a constitutional appeal concerning the lawfulness of her detention.

On 25 April 2013 the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) held that the applicant’s deprivation of liberty had not been “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention as she had been held in psychiatric detention without a decision of the competent civil court. It also found that Article 5 § 4 of the Convention had been breached because of lack of judicial review of the lawfulness of the applicant’s detention. The Constitutional Court ordered the Visoko Social Work Centre to take measures to ensure respect for the applicant’s rights under Article 5 §§ 1 and 4 of the Convention. The relevant part of the decision reads:

“27. The Constitutional Court recalls that it examined the same factual and legal situation in the decision no. AP 2472/11[...]. Therefore, instead of a separate legal analysis in this case, it refers to the reasoning set out in that decision...

As regards Article 5 § 1 of the European Convention...the Constitutional Court concluded that the appellant was placed in the social care home under the social care legislation of the Federation of Bosnia and Herzegovina and of the [Zenica-Doboj] Canton, which do not regulate the procedure for compulsory admission of mentally ill persons to social care homes. That procedure is regulated in the sections 22-42 of the Mental Health Act 2001. Section 41 of that Act prescribes that a mentally ill person released from a hospital, who is incapable of living on his/her own and has no relatives or others who are required by law to care for him/her, shall be placed in a social care home under the social care legislation of the Federation of Bosnia and Herzegovina. However, in that case, a hospital is under a duty to inform the competent court of such placement immediately... [I]t is evident from the case-file that the appellant was detained without a decision of the competent civil court...thus her initial deprivation of liberty was not in accordance with the Mental Health Act 2001... [T]herefore the court concludes that the deprivation of liberty in the appellant’s case was unlawful and thus in violation of Article 5 § 1(e) of the Convention.

There has been a violation of Article 5 § 1(e) of the Convention in the present case because the appellant was placed in the social care home under the Federal and Cantonal social care legislation, whereas the compulsory placement of mentally ill persons is regulated by the Mental Health Act 2001 which was not applied in this case. In view of that, her placement was not ‘lawful’. There has also been a violation of Article 5 § 4 of the Convention because the appellant’s placement and the prolongation of that placement was never examined by the competent court...”

On 3 June 2014 the Visoko Social Work Centre asked the Kiseljak Municipal Court to examine the necessity of the applicantʼs placement in Drin in accordance with the Mental Health Act 2001 and the Constitutional Courtʼs decision of 25 April 2013.

On 8 September 2014 the Kiseljak Municipal Court concluded, on the basis of the expert medical report, that the applicantʼs current state of health did not warrant continued confinment in Drin. That decision became final on 26 September 2014.

The applicant has not yet been released from Drin.

At the recommendation of the Psychiatric Clinic in Sarajevo where the applicant was treated for schizophrenia, on 15 September 2004 the Vareš Social Work Centre placed him in Drin in accordance with the social care legislation. It was established that his illness rendered him incapable of living on his own and that his family circumstances did not allow proper care at home.

On 25 March 2005 the Visoko Municipal Court deprived the applicant of his legal capacity.

On 21 April 2011 the applicant was placed under the guardianship of N.G., a director of the Vareš Social Work Centre.

On 2 September 2011 the applicant lodged a constitutional appeal concerning the lawfulness of his detention.

On 25 June 2013 the Constitutional Court held that the applicant’s deprivation of liberty had not been “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention as he had been held in psychiatric detention without a decision of the competent civil court. It also found that Article 5 § 4 of the Convention had been breached because of lack of judicial review of the lawfulness of the applicant’s detention. The Constitutional Court ordered the Vareš Social Work Centre to take measures to ensure respect for the applicant’s rights under Article 5 §§ 1 and 4 of the Convention and awarded him 3,000 convertible marks (BAM). The relevant part of the decision reads:

“34. The Constitutional Court recalls that it examined the same factual and legal situation in the decision no. AP 2472/11 [...]. Therefore, instead of a separate legal analysis in this case, it refers to the reasoning set out in that decision...

As regards Article 5 § 1 of the European Convention...the Constitutional Court concluded that the appellant was placed in the social care home under the social care legislation of the Federation of Bosnia and Herzegovina and of the [Zenica-Doboj] Canton, which do not regulate the procedure for compulsory admission of mentally ill persons to social care homes. That procedure is regulated in the sections 22-42 of the Mental Health Act 2001. Section 41 of that Act prescribes that a mentally ill person released from a hospital, who is incapable to live on his/her own and has no relatives or others who are required by law to care for him/her, shall be placed in a social care home under the social care legislation of the Federation of Bosnia and Herzegovina. However, in that case, a hospital is under a duty to inform the competent court of such placement immediately ... [I]t is evident from the case-file that the appellant was detained without a decision of the competent civil court...thus his initial deprivation of liberty had not been in accordance with the Mental Health Act 2001..[T]herefore the court concludes that the deprivation of liberty in the appellant’s case was unlawful and thus in violation of Article 5 § 1(e) of the Convention.

36... In the above-mentioned decision, the Constitutional Court noted that the Federal and the Cantonal social care legislation, under which the appellant was placed in a social care home, do not envisage mandatory judicial control of the lawfulness of such placement...

Turning to the present case, the Constitutional Court notes that the appellant was placed in the social care home at the recommendation of the Psychiatric Clinic in Sarajevo...It was established that he had been diagnosed with SCH, F23, a condition which requires constant supervision and regular therapy which he cannot have at home in view of his family’s circumstances (a mother was also deprived of her legal capacity due to mental illness, a father’s whereabouts are unknown, and his sister is placed under guardianship)...The court further notes that since 2004, when the appellant was placed in the social care home, the Social Work Centre revised his placement on three occasions, at the recommendation of the relevant Ministry and with the consent of his guardian Ms N.G. However, those revisions were focused on the financial aspect of the appellant’s placement without any consideration for his health condition and a potential release. The fact that the Social Work Centre was the only domestic body which ever examined the appellant’s placement...raises issues under Article 5 §§ 1(e) and 4 of the Convention.

Furthemore, although under the Mental Health Act 2001 a decision about compulsory admission of mentally ill persons must be made by a court, the appellant’s case has never been examined by the competent court...

Accordingly, as regards “deprivation of liberty”, the placement in the social care home and the review of the lawfulness of such placement, the court concludes, in view of the facts of the case and the reasons set out in the decision no. AP 2472/11 of 31 January 2013, that there had been a violation of Article 5 §§ 1(e) and 4 of the Convention in the present case.”

On 25 September 2013 the applicant received BAM 3,000 awarded to him by the Constitutional Court.

On 29 November 2013 the Kiseljak Municipal Court concluded, on the basis of the expert medical report, that the applicantʼs current state of health did not warrant continued confinment in Drin.

On 18 March 2014 the Novi Travnik Cantonal Court upheld the decision of 29 November 2013 and it thus became final.

On 6 May 2014 the Vareš Social Work Centre informed the Visoko Municipal Court that it considered that the applicant’s continued placement in Drin was in his best interest for reasons of social protection.

The applicant had not yet been released from Drin.

In different intervals in 1997, 1998 and 1999 the applicant was treated for schizophrenia at the Psychiatric Clinic in Tuzla.

On 8 October 1999 the Tuzla Municipal Court deprived the applicant of his legal capacity.

On 8 December 1999 the Tuzla Social Work Centre placed him in Drin.

On 2 March 2000 the applicant was placed under the guardianship of A.B., his cousin. On 10 June 2010 he was placed under the guardianship of S.P., his sister.


CASE OF ÜNSPED PAKET SERVİSİ SAN. VE TİC. A.Ş. v. BULGARIA

Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Just satisfaction reserved (Article 41 - Just satisfaction)

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Yonko Grozev

The applicant company runs logistics services. On 23 June 2007 one of the company’s lorries was stopped for inspection at the Yambol customs post. The Bulgarian authorities discovered and seized the following substances from the cabin and trailer: 500,060 tablets (with a total value of 24,584.2 Bulgarian levs (BGN) or 12,200 euros (EUR)); 3,564 grams of white tablets (with a total value of about EUR 40) which included ephedrine hydrochloride; and, 6,880 pills which included testosterone enanthate (with a total value of about EUR 15,000). The lorry was also seized as material evidence. Criminal proceedings were opened against the driver of the lorry.

On 26 June 2007 the applicant company, as the owner of the lorry, asked the Yambol Regional Prosecutor to return its vehicle. The prosecutor rejected the request on the grounds that the lorry had to be retained as material evidence until the end of the criminal proceedings (see paragraph 23 below).

On 3 August 2007 the applicant company again applied to the Yambol Regional Prosecutor’s Office asking that the lorry be returned in accordance with Article 111 of the Code of Criminal Procedure. In particular, the applicant company claimed that: there had been no hidden compartment in the lorry; the driver had abused his position; the holding of the lorry was no longer justified as a forensic expert report had already been prepared; the lorry’s value (around EUR 83,000) was over three times the value of the drugs and therefore the lorry could not be confiscated under Article 242 § 8 of the Criminal Code (see paragraph 16 below); and, lastly, the company faced significant losses because of the lorry’s seizure. At the time of this request the case file was no longer with the prosecution service as it had been transferred to the courts, so the Yambol Regional Prosecutor’s Office did not reply to the request.

In the meantime the lorry driver concluded a plea bargain agreement with the prosecutor. The terms of the agreement included a one-and-a-half-year prison sentence for the driver and the forfeiture of the lorry.

On 8 August 2007 the applicant company asked the criminal court competent to approve the plea bargain agreement not to confiscate its lorry. The applicant company emphasised in particular its inability to participate in the criminal proceedings against the driver and to state its position. It further pointed out that as the value of its lorry was three times higher than the value of the smuggled goods, according to the relevant national law the vehicle should not be forfeited (see paragraph 16 below).

On 14 August 2007 the Yambol Regional Court confirmed the plea bargain agreement in accordance with Article 382 § 7 of the Code of Criminal Procedure (see paragraph 22 below). In the agreement the driver confessed that he was guilty of smuggling under Articles 242 § 1 (d) and 242 § 3 of the Criminal Code and accepted the forfeiture of the transported drugs and the lorry under Article 242 §§ 7 and 8 of the Criminal Code. The decision was not subject to appeal and became enforceable on the same day.

On 26 May 2008 the applicant company brought proceedings before the Istanbul Second Enforcement Office (“the Office”) against the lorry driver, seeking damages. The Office found that the driver was liable to pay EUR 110,116.75 to the applicant company for the damage his actions had caused. However, the applicant company could not collect any of this amount as the lorry driver had no assets at the time.