CASE OF MUSTAFA ERDOĞAN AND OTHERS v. TURKEY

Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - award;Non-pecuniary damage - award

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

The first and the second applicants were born in 1956 and 1975 respectively.

At the time of the events the first applicant Mr Mustafa Erdoğan was a professor of constitutional law at the University of Hacettepe in Ankara. The second applicant Mr Haluk Kürşad Kopuzlu was the editor of the quarterly publication Liberal Thinking and the third applicant Liberte A. Ş. was a joint-stock company and the publisher of Liberal Thinking (hereinafter: “the publishing company”). Mr Buhay Baytekin, the president of the board of members of Liberte A. Ş. at the material time, applied to the Court on behalf of the publishing company.

In 2001 an article entitled ‘Turkey’s Constitutional Court problem in the light of its decision to dissolve the Fazilet [Virtue] Party’ written by the first applicant was published in Liberal Thinking. It read as follows:

“The Constitutional Court has finally delivered its judgment on the Fazilet Party at the end of a long period, which lasted more than two years, and has dissolved the party on the grounds that it had become ‘a hub of activity contrary to [the] principles of secularism’. As a result, the high court has decided that Nazlı Ilıcak and Bekir Sobacı, who were members of parliament at the date of the judgment, [should be] stripped of their parliamentary status and it has prohibited former parliamentarians Merve Kavakçı, Mehmet Sılay and Ramazan Yenidede from participating in political activities for the next five years. Only three members of the Court have dissented and I am of the opinion that their names should be mentioned: Haşim Kılıç, Sacit Adalı and Samia Akbulut.

The judgment of the Constitutional Court has naturally created widespread discontent throughout the country. Apart from a few fanatical individuals in the media who have character deficiencies, everyone who is sensible and whose conscience has not been paralysed has considered the judgment legally wrong and politically inappropriate. Even people whose sensitivities to democratic issues have never been that obvious have criticised the Constitutional Court about this judgment. Nevertheless, it is clear that concerns about the difficulties that the judgment might cause Turkey in its dealings with the Council of Europe and the European Union have played a great role in the emergence of this reaction. Moreover, it is commonly believed that this judgment was not the product of the free will of the Constitutional Court but that it was brought about under pressure [from] and at the suggestion of military circles.

It is certain that the dissolution of the Fazilet Party is closely related to the current political situation, the direction of which has been determined by the status quo powers (‘the deep State’). However, it seems to me that we cannot be sure whether the Court was put under direct pressure. The first point is important to find out the nature of the present regime in Turkey. From a legal point of view, however, what is more important is how the Constitutional Court gave such a judgment. In other words, the people who should be criticised and who should be held responsible are the eight judges at the Court, all of whom are ‘adults’ and ‘sensible’. The real issue is to examine to what extent the professional backgrounds and intellectual capacities of these individuals are sufficient for such a job and to question whether they had the right to act in accordance with their prejudices. This can be done only through analysing the judgment from a legal point of view. As a matter of fact, the reasons for judgment have not yet been published. But there is nothing wrong in subjecting the judgment to such an analysis in its form as pronounced to the public. Besides, I do not think that the reasons for judgment when they are published in a few weeks’ time will invalidate our first analysis. Our observations and information regarding the previous judicial approach of the Court demonstrate that the reasoning in the judgment will be ‘prearranged’. In other words, in the established practice of the Court the thing which is termed ‘the reasoning’ is fabricated and formulated at subsequent stages to justify the predetermined judgment [made] on the basis of prior opinions. Now we can submit our first legally relevant observations and evaluation of this judgment.

The Constitutional Court did the right thing by not dissolving the Fazilet Party on the grounds that ‘it was a continuation of a party’. The Court might have acted in this way for two reasons: firstly, the Court might have maintained the type of interpretation which it adopted in its previous judgments on the meaning of ‘being a continuation’ of a party. This means that a distinction was made between continuation in the sociological sense and the continuation of a political tradition, and continuation in a technical legal sense among consecutive political parties. This is an extraordinarily appropriate legal understanding. If this is the case, it means that the Constitutional Court considered that the Fazilet Party, while continuing the political line represented by Milli Nizam (national order) and the Milli Selamet Party in the sociological and political sense, was not the continuation of the Refah Party with another title.

A second possibility might be the fact that the Constitutional Court adopted the view which is insistently voiced by some constitutional law experts, including the author of this article. According to this view, the Constitution stipulates that ‘a party which was dissolved cannot be re-established under another title’, but neither the Constitution nor the Law on Political Parties require that the sanction of dissolution be applied to such a party if it has acted contrary to the Constitution. If this was the reason for which the Constitutional Court refused the Chief Public Prosecutor’s request to dissolve the Fazilet Party on the basis of it being a continuation of the Refah Party, this only demonstrates that the court did not, at least, violate the positive law in this respect. This in itself does not deserve praise, since acting to the contrary would have been openly unlawful.

On the other hand, the Constitutional Court’s decision to dissolve the Fazilet Party on the grounds that it had become ‘a hub of activity contrary to the principles of secularism’ is clearly contrary to the law and has no factual or legal basis. This judgment is faulty on two grounds. Firstly, the activity which is claimed to be ‘contrary to secularism’ – in fact, it is only comprised of words [and] statements – does not have such characteristics. Most of them concern expressions of concern [about] the social consequences of the lack of freedom created by the prohibition on wearing the headscarf. In other words, these statements have the nature of being demands for freedom voiced by Members of Parliament – mostly from the podium of Parliament. Criticism of a prohibition, especially if it is voiced by members of parliament, cannot be contrary to any democratic and constitutional regime. As long as it is voiced in a peaceful way, a demand for freedom cannot be contrary to the principles of secularism and democracy, even if the right or freedom which constitutes the subject of the demand has not been recognised in positive law. Besides, wearing the headscarf is not prohibited for university students in Turkish law. The prohibition on wearing the headscarf which has been implemented in Turkey in recent years is not a requirement of the current legal order, but it is a result of current power relations. In other words, the existence of this prohibition is a de facto and not a de jure phenomenon.

Secondly, even if it was against the law for university students to wear the headscarf, this would not make the party whose members are criticising the prohibition and demanding its removal contrary to secularism in a democratic system. Let us leave this fact aside and let us assume that such criticism and such a demand for freedom are contrary to secularism. Even in this case, the fact that some MPs or party members are making such criticism individually does not make the party “a hub” of that activity. In fact, being the “hub” or “focus” of any kind of activity for an organisation means the following: that the activity arose from the centre of that organisation, it is directed, controlled and administered by that centre; and that the activity is performed intensively, decisively and continuously. The facts in the trial record clearly demonstrate that these criteria did not apply to the legal personality of the Fazilet Party. Apart from [the fact that it was] far from being in a position to become the “hub” of the [relevant] activity, the Fazilet Party did not become a determined follower of the issue of the headscarf ban in addition to many other issues. In fact, this party has been the most “obedient” party of the system for the last three years and did not hold a clear and decisive view on any major issue, probably because of the fear of being dissolved.

It seems that the Constitutional Court considered Merve Kavakçı’s election as an MP for the Fazilet Party – she is still an MP – and the support given by the party to her as proof of the claim that the party had become “a hub of activity contrary to the principles of secularism”. In other words, according to the Constitutional Court, the election of a citizen who wears a headscarf as an MP and her attempt to take the oath in Parliament while wearing the headscarf are contrary to secularism. This is an unsound understanding for many reasons. First of all, if “national sovereignty” is one of the true – not fake – basic principles of Turkey’s constitutional order, no constitutional organ, particularly the Constitutional Court, whose legitimate authority stems from this principle, can impose any restrictions on the nation’s right to elect its representatives. Merve Kavakçı was put forward as a candidate by the Fazilet Party, but she was elected by the Turkish nation. If the Constitutional Court had found this fact to be contrary to secularism, it would have “annulled” the nation. Secondly, there is no provision in the Constitution stipulating that a person who wears a headscarf cannot be an MP and that she cannot take the oath in Parliament in a headscarf. [Nor does] such a provision exist in Parliament’s standing orders. This can be understood from the fact that an initiative was recently launched in Parliament to add such a prohibition to its standing orders. Besides, even if there were such a provision, this would be considered null and void because it would be contrary to the Constitution. In fact, the Turkish Grand National Assembly does not have the right to act [in a way] which would bring about the abolition of the citizens’ rights to elect representatives and to be elected as representatives, which are one of [their] basic rights. Actually, since the aim of the standing orders is to ensure the conduct of Parliament’s activities in an orderly way, a right cannot be annulled with such a procedural action.

This judgment demonstrates that the dominant majority of the Constitutional Court continues to apply its incorrect understanding of what “secularism in a democratic system” is. Unfortunately, the High Court has interpreted secularism in many of its judgments in a totalitarian manner. According to the Court, secularism is not a pro-freedom and pro-peace principle restricting the State, but is a higher principle legitimising the imposition by the State of a certain way of life on citizens. The Constitutional Court considers secularism as the categorical refusal of the demands of religion in the social, public and political arenas. Therefore, it thinks that secularism authorises the State to remove manifestations of religion in society. Moreover, it exalts this principle to the level of being the most important value of the constitutional order. According to this understanding, democracy, the rule of law and human rights are all secondary values, which should [only] be recognised to the degree allowed by secularism.

Here, the more interesting point is that the Constitutional Court insists on continuing the doctrine of “secularism as a project of social engineering”, which was developed during the authoritarian (occasionally totalitarian) one-party era, in the democratic-pluralist environment. It also stubbornly ignores the pro-freedom/democratic criticism of this notion. Despite the fact that even the Turkish literature on the subject of “secularism in a democratic system” has expanded to a considerable degree in the last ten or fifteen years, our judges in the Constitutional Court turn a blind eye to this literature. Furthermore, in this trial at least, our senior judges did not need to undertake additional efforts to obtain new sources and information on this issue. For example, there was detailed information in the defence brief on how secularism is understood and implemented in contemporary democracies, but it seems that the members of the Court did not read these passages or if they did, they ignored it.

In this connection, the two judgments of the Constitutional Court which directly concerned the issue of wearing headscarves and its judgments dissolving the Refah Party and the Fazilet Party indicate that this matter has become the key focus of secularism. The conclusion which the Court has reached can be formulated as the following: “to demand the freedom of wearing the headscarf means categorically being against secularism – and indirectly against the Constitution.” This is a totally wrong idea regardless of the perspective one has: it is anti-democratic, it is anti-freedom, it is contrary to secularism and it is pro-conflict. It is anti-democratic because it restricts in an arbitrary way the field of democratic politics and the sphere of activity of democratic political actors. It is anti-freedom because it is oppressive and imposing. It is contrary to secularism because it oppresses religious choices and creates discrimination on the grounds of religion. Finally, it is pro-conflict because it forces the State to quarrel with society and in this way it allows the State to destroy the social peace and order.

The part of this judgment which ends the MP status of some politicians and prohibits them from involvement in further political activities does not contain valid grounds pertaining to the relevant individuals. Specifically, the application of the sanctions against Nazlı Ilıcak on the grounds that she “was one of the people who brought about the dissolution of their party with their activity contrary to secularism” bears no relation to reality and is a ridiculous assertion. The situation is really awkward. A high court imagines that it protects “secularism” by prohibiting a person from being involved in political activities and by ending the MP status of that individual, who meets the criteria of a “contemporary way of life” and “contemporary personal appearances” perfectly. Everybody knows that she has never been in favour of a political regime established on the basis of religion and that she has never made any effort in this direction. This is a typical example of the attitude of the Court demonstrating the absurd results [its] formalist legal reasoning can produce.

All these explanations highlight that the statement of the chairman of the Constitutional Court to the effect that “there is nothing we can do, the laws force us to act in this way, if you do not want us to do so, change the laws”, has no value from a legal point of view. It is true that the Constitution and the laws in Turkey are not pro-freedom; therefore, it is, of course, necessary to improve the positive law. But the major problem in the judgment which dissolved the Fazilet Party is not the unsuitable character of the current law. The problem is that the Constitutional Court interprets the Constitution and the laws which are in force in an authoritarian and narrow-minded way. Let us leave the necessity of the Constitutional Court complying with the provisions of the European Convention on Human Rights and the Strasbourg case-law [to one side]. There are no serious grounds for dissolving the Fazilet Party, even on the basis of the Constitution and the Law on Political Parties. But there is no need [to know] the [provisions of those] laws to understand this fact. The notions which are needed are the notion of law, which does not see legitimacy as the same as the law [itself], a considerable amount of knowledge about the technique of interpretation and legal reasoning and sensitivity to freedom and democracy. In other words, our problem is the fact that most of our constitutional law judges do not know the law, and do not have knowledge of democracy, political and constitutional theory or secularism. Nor do they intend to acquire it.

It is assumed that the pro-freedom and pro-democracy case-law of the European Court of Human Rights is brought about by the strict interpretation of the Convention. The real situation is different from the one which is assumed: when deciding on cases on the basis of the Convention, which does not include the concept of a “political party”, the Strasbourg Court concludes them by applying a broad interpretation to the provisions concerning freedom of association and expression in accordance with [general] principles and the universal understanding [of those concepts]. The Turkish constitutional court judges, if they wished to do so and could develop the necessary intellectual skills, could ease the restrictive provisions of positive law in Turkey. So long as they wanted to do so.

Moreover, it is difficult to consider the aforementioned statement of the chairman to be sincere. If the problem is [one of] making changes to the Constitution and the law, the Turkish Grand National Assembly actually enacted a statutory amendment, which defined [what it means] for political parties to become a “hub” in a highly reasonable way and which set criteria to ensure its implementation. Why did the Constitutional Court annul this amendment in accordance with an authoritarian understanding? In this case, the problem is related to the fact that our constitutional court judges have not taken on board freedoms, rather than the assertion that the current laws are unsuitable.

This latest judgment of the Constitutional Court has demonstrated another thing: the professional capabilities of most of the court members are insufficient for the job. Moreover, they are not willing to compensate for this insufficiency. They are closed to knowledge, they have no passion for their jobs and they are incapable of becoming open-minded. They try to fulfil the requirements of their vital duty, finding their way out by sticking together, without feeling uneasy about it. It is because of this reason that the obstacle to freedoms in Turkey is not Parliament, which does not change the Constitution and which does not enact the necessary laws. The real obstacle is the Constitutional Court, which does not shy away from being the systematic shredder of freedoms. It is urgently necessary to deal with the issue of membership in the Constitutional Court.”

It appears that following the publication of the article all members of the Constitutional Court brought separate civil actions against Mr Mustafa Erdoğan, Mr Haluk Kürşad Kopuzlu and the publishing company (hereinafter “the defendants”), seeking damages for the injury they claimed to have sustained as a result of the applicants’ serious attack on their honour and integrity through the publication of the above article, which had contained, in their view, defamatory passages.

The present applications concern the damages claims brought against the applicants by Ms F.K., Mr Y.A. and Mr M.B., judges and in the case of the last claimant, the president, of the Constitutional Court at the material time.

Before the domestic courts the applicants maintained that, while the expressions used in the article had been severe in terms of form and style, they had remained within the limits of the freedom of expression, as they had had a basis in fact. In this connection, the applicants, referring to the case-law of the European Court of Human Rights, asserted that the article in question had criticised the judgment of the Constitutional Court with respect to its decision to dissolve the Fazilet Party, that the acceptable limits of criticism should be more extensive for judges, high level public officials and politicians than others, and that value judgments which were made on the basis of fact were in conformity with the law.

On this latter point, the applicants, relying on the views of various academics, politicians and journalists, underlined that a segment of the public believed – rightly or wrongly – that the judgment of the Constitutional Court had been given under the influence of the military and that there were certain parallels between the outcome of the judgment and the general political situation existing in Turkey at the time. Likewise, again relying on various articles, notably certain statements made by a number of judges sitting on the bench of the higher courts, including the Constitutional Court, the applicants argued that the statements regarding the lack of skill of the judges sitting at the Constitutional Court were not without any factual basis.

The applicants submitted that numerous criticisms had been voiced against the judgment of the Constitutional Court by academics, journalists and politicians, and underlined that the first applicant, who was a professor of constitutional law, had consistently emphasised in his publications that the basic function of constitutional courts – or similar organs – in constitutional democratic systems is to serve as the guarantee of basic rights against arbitrary actions of the State and that high court judges – and indeed judges in general – have to avoid giving judgments corresponding to their ideological opinions and political tendencies.

On 28 March 2002 the 17th Chamber of the Ankara Civil Court of First Instance ordered the applicants to pay Ms F.K., jointly, 2,500,000,000 Turkish lira (TRL – approximately 2,000 euros (EUR)) in damages, plus interest at the legal statutory rate running from the date the article in question was published.

In its judgment, the court referred to the following passages:

“...it is commonly believed that this judgment is not the product of the free will of the Constitutional Court but that it was brought about under pressure from and at the suggestion of military circles... it is certain that the dissolution of the Fazilet Party is closely related to the current political situation, the direction of which has been determined by the status quo powers (‘the deep State’). However, it seems to me that we cannot be sure whether the court was put under direct pressure... From a legal point of view, however, what is more important is how the Constitutional Court gave such a judgment. In other words, the people who should be criticised and who should be held responsible are the eight judges at the court, all of whom are ‘adults’ and ‘sensible’. The real issue is to examine to what extent the professional backgrounds and intellectual capacities of these individuals are sufficient for such a job and to question whether they had the right to act in accordance with their prejudices... In other words, our problem is that most of our constitutional law judges do not know the law and do not have knowledge of democracy, political and constitutional theory and secularism. Nor do they intend to acquire it ... This latest judgment of the Constitutional Court has demonstrated another thing: the professional capabilities of most of the court members are insufficient for the job. Moreover, they are not willing to compensate for this insufficiency. They are closed to knowledge, they have no passion for their jobs and they are incapable of becoming open-minded. They try to fulfil the requirements of their vital duty, finding their way out by sticking together, without feeling uneasy about it.”

The court held that the author, in the above statements, had asserted that the members of the Constitutional Court had rendered their judgment under pressure, that the judges of the court did not know the law, and that their professional knowledge and intellectual capabilities were insufficient. It considered that these expressions constituted defamation of the members of the Constitutional Court, including the claimant, who had rendered the judgment ordering the dissolution of the Fazilet Party.

On 19 December 2002 the Court of Cassation held a hearing and upheld the judgment of the first-instance court.

On 24 March 2003 the Court of Cassation dismissed the defendants’ request for rectification of its decision. The defendants were fined in accordance with Article 442 of the Code of Civil Procedure. This decision was served on the applicants’ lawyer on 26 April 2003.

In the meantime, on 16 July 2002 the 20th Chamber of the Ankara Civil Court of First Instance ordered the applicants to pay Mr Y.A., jointly, TRL 3,000,000,000 (approximately EUR 1,755) in damages plus interest at the legal statutory rate running from the date of the publication of the article.

In its decision, the court observed that, when read as a whole, the article, instead of merely criticising the establishment, development, and selection of members of the Constitutional Court or providing a technical criticism of the judgment, had contained severe attacks against the judges themselves and their professional or analytical capabilities. Referring to various passages, notably those mentioned by the 17th Chamber above, the 20th Chamber considered that the author, who had accused the judges of serious misconduct such as receiving instructions, of acting irresponsibly and of not being independent and lacking reasonable logic and conscience, had gone beyond objective and technical criticism of the Constitutional Court and its judgment and that the article had therefore defamed the claimants.

On 15 April 2003 the Court of Cassation held a hearing and upheld the judgment of the first-instance court.

On 3 July 2003 the Court of Cassation dismissed the defendants’ request for rectification of its decision. The defendants were fined in accordance with Article 442 of the Code of Civil Procedure. This decision was served on the applicants’ lawyer on 30 July 2003.

Likewise, on 12 December 2002 the 9th Chamber of the Ankara Civil Court of First Instance ordered the applicants to pay Mr M.B., jointly, TRL 2,500,000,000 (approximately EUR 1,557) in damages, plus interest at the legal statutory rate running from the date the article in question was published.

In its decision, the court, referring to similar passages to those relied on by the other Chambers, considered that the contents of the article had upset the balance between freedom of expression and the need to protect a person’s dignity and honour, and that the author had overstepped the boundaries of acceptable criticism and had used words which constituted defamation.

In this connection, the court stated that the aim of press freedom is to provide correct and truthful news regarding issues of public interest, and that the privileges attached to press freedom were not without limits. It noted in that regard that the freedom of the press was limited by the private law rights and obligations established by the relevant provisions of the Code of Obligations and the Civil Code. The court underlined that in its duty to inform, the press was limited in its criticism by the following rules: truthfulness, public interest, topicality and interconnectedness between the thoughts, the subject and the words used.

The court opined that in the present case, while the overall content of the author’s article had been within the boundaries of criticism, certain remarks contained in the article had gone beyond the limits of acceptable criticism, there had not been harmony between the form and the content, the content had gone beyond the subject of criticism, and words used in the article had constituted defamation of the claimant. It held that the author could have made the same criticism without the use of these words.

On 18 November 2003 the Court of Cassation held a hearing and upheld the judgment of the first-instance court.

On 29 April 2004 the Court of Cassation dismissed the defendants’ request for rectification of its decision. The defendants were fined in accordance with Article 442 of the Code of Civil Procedure. This decision was served on the applicants’ lawyer on 7 June 2004.


CASE OF GERASIMENKO AND OTHERS v. RUSSIA

Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect)

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

The applicants were born in 1990, 1989 and 1990 respectively and live in Moscow.

D.E. was a major in the police. He was born in 1977.

On 28 November 2008 he was promoted to chief of the Tsaritsino branch of the Moscow Department of the Interior.

On the evening of 26 April 2009 D.E. had a birthday party. Shortly after returning home from the venue, he left again.

Between 12.30 and 1.20 a.m. on 27 April 2009 D.E. took a taxi to the Ostrov shopping centre on Shipilovskaya Street in Moscow. He was wearing police uniform and was armed with a handgun.

Initially, he fired several gunshots at the driver, E., who died of his injuries in hospital.

After D.E. got out of the car, he walked between some apartment blocks. Near one of them he saw two people he did not know, Ms S. and Mr K. Without saying anything, he opened fire and shot Ms S. three times and Mr K. twice. After a while he saw Mr L. and shot at him, also without saying a word. Mr L. however managed to run away.

D.E. then walked towards the Ostrov shopping centre. As it was open twenty-four hours a day, there were always people inside. D.E. opened fire at a group of people who were near the entrance, firing at least two shots at the first applicant and at least one shot at the second and third applicants. Another person, Ms B., was also wounded.

D.E. entered the shopping centre and approached Mr T. and Ms P. Without saying a word, he shot Mr T. in the head. After he fell to the ground, D.E. took Ms P. by the arm, pointed the gun at her head and, holding her hostage, continued moving through the shopping centre. Eventually, Ms P. managed to break free and run away.

When he passed a checkout counter, D.E. shot at a cashier, Ms T., who was killed instantly.

Staff and customers of the shopping centre tried to hide from D.E. Some of them used the fire exit and found themselves in the service yard of the shopping centre. D.E. followed them and, threatening them with his gun, ordered all the women who were hiding behind some boxes to step forward. One of them, Ms F., was trying to protect her pregnant daughter who was hiding together with her. She obeyed and approached D.E. He then pointed the gun at her head and pushed her towards a wall. He apparently intended to shoot her, but was distracted by a police unit that arrived at the scene. The police ordred him to let the people go, and surrender. D.E. started shooting at the police and Ms F. was able to escape, as were the other people hiding in the service yard. D.E. was subsequently apprehended by the police.

In the course of the events D.E. killed two people and wounded several others.

The first applicant suffered injuries to his head and body. He had a bullet entrance wound to the side of the face (parotic region) and an exit wound near the nose. He also had concussion and fractures to the walls of the right maxillary sinus and lower jaw. He also had a penetrating wound to the lumbar region, a ruptured spleen, a penetrating wound to the liver and diaphragm ligaments and a foreign body in the mediastinum.

The second applicant suffered head wounds. She had a perforating wound to the left cheek and oral cavity with a fractured lower jaw.

The third applicant had a non-penetrating wound to the left of the neck, a fractured left shoulder blade and a foreign body in the neck muscles.

On 27 April 2009 criminal proceedings were instituted against D.E. on two counts of murder and twenty-six counts of attempted murder in and around the Ostrov shopping centre.

On 5 May 2009 D.E. was dismissed from the police with effect from 27 April 2009.

On 7 May 2009 the first applicant was granted victim status in the criminal proceedings.

On 14 May 2009 D.E.’s mother was questioned. She submitted, in particular, that as a child he had had head injuries. At the age of between eleven and twelve years old he had suffered from severe headaches and throughout his school years he had been under the supervision of a neuropathologist. After the seventh grade he had been transferred to a different school because he would frequently have disagreements with his schoolmates. After the ninth grade he had been exempted from his school examinations on medical advice.

Between 25 June and 23 July 2009 a forensic psychological and psychiatric examination of Major D.E. was conducted by three psychiatrists and a psychologist. According to the conclusions set out in report no. 514 of 23 July 2009, D.E. did not suffer from any mental disorder, but had “accentuated” personality traits. The conditions he had suffered as a child and head injuries had led to the development of emotional instability, excitability, anxiety and demonstrative behaviour. This explained the difficulties in his adapting to school life and his behavioural deviations, which required psychiatric help. At the time of committing the offences he was accused of D.E. had not suffered from any temporary psychiatric disorder – that was apparent from the lack of evidence of his being in a psychotic state accompanied by delirium or hallucinations. He was able to understand the meaning of his actions and control them. He was neither a drug addict nor an alcoholic, although at the time of the events he had been in a moderate state of alcohol intoxication, as confirmed by an expert medical examination.

The psychologist who participated in the forensic examination stated that after his promotion in December 2008 until the time of the events D.E. had been in a “subjectively complex” situation. This had included an increased volume of work and management of a new team. D.E.’s qualities such as perfectionism, being highly demanding toward himself and others, needing to control all areas of professional activity and intolerance towards colleagues lacking diligence or competence had required, in the given situation, full use of his physical and personal resources. At the same time he had not been as enthusiastic about his new job as he had been about his previous job. Significant limitations on his independence and permanent accountability coupled with a lack of satisfaction from his work had led to emotional tension. D.E. had repeatedly wished to leave his job, but had felt responsibility for his duties and towards his subordinates. He had felt exhausted and had asked for leave, which his superiors had not granted him at the time. A complicated relationship with his wife had constituted another source of frustration. Furthermore, news of his direct supervisor leaving his job had constituted an additional traumatic factor, causing feelings of confusion unusual for D.E. The evening before the events D.E. had had his birthday party, which he had organised in the hope that he could relax in the company of his family and friends. However, on the morning of the party he had been busy at work and after leaving for the day, had expected to be called back. He had therefore been in a state of emotional tension. The fact that his wife and her father had been late for the party and the subsequent strained conversation he had had with her, coupled with his work-related anxiety and the feeling that the party had not gone as planned, had amplified the accumulated emotional tension and exhaustion. At the time of committing the offences D.E. had not been in an emotionally disturbed state.

In October 2009 (the exact date is illegible) the second applicant was granted victim status in the criminal proceedings.

On an unspecified date the third applicant was also granted victim status in the criminal proceedings.

On 19 February 2010 the Moscow City Court convicted D.E. of two murders, twenty-two counts of attempted murder, including the attempted murder of the applicants and law-enforcement officials, and the unlawful use of firearms. He was sentenced to life imprisonment. The court also stripped him of the rank of major.

When questioned in court D.E. pleaded partially guilty. He submitted that he had no recollection of the events and could not explain where and how he had come into possession of the handgun or cartridges. However, he did recognise himself on the footage of the CCTV at the shopping centre and therefore admitted that he had killed a man and tortured a woman, although he could not explain why he had done so. He pleaded not guilty with regard to all the other charges.

The court questioned numerous witnesses, who confirmed the account of events given in the preceding paragraphs. In particular, D.E.’s wife submitted that on returning from his birthday party he had behaved strangely. After he had left, she had called his parents and they had started to search for him. Police officers F. and Ya., who had apprehended D.E. at the Ostrov shopping centre, submitted that when they had asked him why he had done it, he had responded that “[you] should live [your] life in such a way that [you] would not want to live it again”. According to police officer Ya., D.E. also said that if he had had a machine gun “[it] would have been more fun” and, in response to a question about where he had got the firearms, he responded that, being police officers, they should know.

The court also noted that D.E. had had a 1968 Makarov ShI 3192 handgun and at least thirty-three cartridges. It further referred to information provided by the Tula Cartridge Factory on 26 August 2009 to the effect that the cartridges used by D.E. had been manufactured at the factory in 2002 and 2004. It had supplied cartridges to, in particular, the Moscow Department of the Interior. There had been no instances of cartridge theft reported. The court also referred to information provided by the Moscow Department of the Interior to the effect that the handgun used by D.E. had been reported stolen from the arms store of the North Caucasus Department of the Interior for the Rostov Region. It also referred to a judgment issued by the Proletarskiy District Court of Rostov-on-Don on 19 March 2001 convicting two officials of the theft of 128 handguns from that arms store in the period between June 1998 and April to May 2000, which included the handgun used by D.E.

According to the Government, on 23 March 2010 a criminal investigation into arms trafficking was instituted under Article 22 of the Criminal Code with respect to the sale of the handgun and ammunition to D.E. However, it was subsequently suspended as the culprit could not be identified.

On 8 June 2010 the Supreme Court of Russia upheld D.E.’s conviction and sentence on appeal.

On 17 September 2009 M., an investigator from the Investigative Committee at the Prosecutor’s Office of the Russian Federation, addressed the Minister of the Interior with a recommendation on measures to be taken with a view to rectifying the circumstances that had been conducive to the crime being committed. The recommendation noted that according to the forensic psychiatric examination, D.E. had been found to be of sound mind. However, since childhood he had been under the supervision of a neuropathologist on account of his psycho-emotional instability, but this had not been taken into account by the military medical panel which had found him fit to serve in the police. In the course of the psychological examination it had been established that one of the reasons for his psychologically traumatic situation had been his promotion to the position of chief of the Tsaritsino branch of the Moscow Department of the Interior. Referring to the findings of the forensic examination (see paragraph 26 above), the recommendation mentioned that D.E. had not been as interested and enthusiastic about his new duties as he had been about his previous work in the criminal police. Significant limitations on his independence and permanent accountability together with a lack of satisfaction from his work had led to emotional tension.

The recommendation went on to say that on 14 November 2008 D.E. had undergone an appraisal. The Appraisal Board had decided that he corresponded to the position he held and considered his promotion a possibility. However, the investigation established that D.E. had not been fit for the position of chief of the Tsaritsino branch of the Moscow Department of the Interior due to his moral and professional qualities. In particular, he had a poor knowledge of police service in the domain of public security and was irritable with his subordinates. The Appraisal Board had therefore had a very perfunctory attitude towards its duties, and the appraisal had not corresponded to the objectives set by the applicable regulations. Improper performance of duties by staff members of the human resources services of the agencies of the interior and their perfunctory attitude towards recruitment and the promotion of staff had led to persons unfit due to their personal and professional qualities being promoted to senior positions. Furthermore, the Ministry of the Interior had failed to conduct explanatory work with its staff to ensure respect for the rule of law, despite its functioning being based precisely on the principles of respect for human rights and humanism. The actions of D.E. had thus discredited the police.

The recommendation concluded that the above-mentioned failures on the part of the agencies of the interior had contributed to D.E committing serious crimes. It advised that measures should be taken aimed at their rectification.

On 19 February 2010, the date D.E. was convicted, the Moscow City Court also issued a special ruling. It stated that in the course of the trial it had been established that in his childhood D.E. had been treated for conditions related to mental disorders and disorders of the central nervous system in medical institutions of agencies of the interior. However, those circumstances had not been taken into account when D.E. had been accepted to serve in the police and subsequently promoted to chief of the Tsaritsino branch of the Moscow Department of the Interior, even though the relevant medical data had been available at the institutions that provided medical care to the staff of the agencies of the interior. There had thus been a breach of section 19 of the Police Act, sections 130 and 131 of the Order of the Ministry of the Interior of 14 July 2004 and section 9.7 of the Order of the Ministry of the Interior of 14 December 1999.

Furthermore, the court noted that in the course of the trial it had been established that when committing the offence D.E. had used cartridges that had been manufactured in the Tula Cartridge Factory which had supplied cartridges to, in particular, the Moscow Department of the Interior. According to information submitted by the factory, no instances of cartridge theft were reported. The court thus concluded that, while holding the position of chief of the Tsaritsino branch of the Moscow Department of the Interior, D.E. had obtained the cartridges in breach of the Instruction concerning the storage of firearms established by Order of the Ministry of the Interior no. 13 of 12 January 2009 and had later used them for committing particularly serious offences.

Having regard to the irregularities in the functioning of the Ministry of the Interior which had contributed to the offences committed by D.E., the court ruled that it would draw the attention of the Minister of the Interior to the said irregularities and invite him to take measures aimed at their rectification.

The first and second applicants sued D.E. for damages. The first applicant claimed compensation for medical expenses in the amount of 114,609 roubles (RUB), and the second applicant in the amount of RUB 27,631. Each applicant also claimed RUB 2,000,000 as compensation for non-pecuniary damage.

On 31 July 2012 the Nagatinskiy District Court of Moscow partially allowed the claims. The court established that D.E. had been responsible for causing injuries to the first and second applicants. The court awarded RUB 19,980 (approximately 500 euros (EUR)) to the first applicant and RUB 27,631 (approximately EUR 691) to the second applicant for pecuniary damage. It stated, in particular, that whereas the first applicant’s medical expenses in the amount of RUB 19,980 had been necessarily incurred, he had also claimed RUB 94,629 in respect of surgery he would have to undergo in order to extract a bullet from his anterior mediastinum. However, according to the forensic expert examination conducted, such surgery was not recommended since the bullet was separated from the tissue and did not pose a danger to the first applicant’s health, whereas any attempt to extract it might lead to unexpected complications. Having regard to the defendant’s financial situation and making its assessment on an equitable basis, the court also awarded RUB 350,000 (approximately EUR 8,750) to the first applicant and RUB 250,000 (approximately EUR 6,250) to the second applicant for non-pecuniary damage.

On 4 December 2012 the Moscow City Court upheld the judgment on appeal.

On an unspecified date the first and second applicants instituted proceedings against the Ministry of the Finance, the Federal Treasury and the Moscow Department of the Finance for damages, arguing that they had suffered injuries as a result of the unlawful actions of a State official. D.E. participated in the proceedings as a third party.

On 29 July 2009 the Nagatinskiy District Court of Moscow dismissed the first applicant’s claim. The court stated that under Articles 52 and 53 of the Constitution and Articles 1064 § 1 and 1069 of the Civil Code, the State was liable for the unlawful actions of a State official performed in the course of his duties. However, if a State official caused damage as a result of activities unrelated to exercising the duties of the State service, he was liable under Article 1064 § 1 of the Civil Code. The court found that in the case at hand D.E.’s unlawful actions that had caused damage to the first applicant had taken place between 12.30 and 1.20 a.m. at the Ostrov shopping centre, outside D.E.’s working hours and the territorial jurisdiction of the Tsaritsino branch of the Moscow Department of the Interior. They had therefore been unrelated to his duties as a State official. The fact that at the relevant time he had held the position of chief of the Tsaritsino branch of the Moscow Department of the Interior and had had the rank of major did not constitute grounds for the State’s liability under Article 1069 of the Civil Code, as it had been established that D.E. had caused damage as a result of activities unrelated to the duties of his service. The court also dismissed the first applicant’s arguments that the State should be held liable for the damage because (i) at the time of the events D.E. had been dressed in police uniform; (ii) he had used cartridges that had belonged to the Tsaritsino branch of the Moscow Department of the Interior; (iii) under Section 18 of the Police Act a police officer carried out his or her duties irrespective of the time, place or his or her position; and (iv) D.E. had been dismissed from service for discrediting the police. The court held that under section 18 of the Police Act, as a general rule a police officer carried out his or her duties taking into account his or her position, duty hours and whereabouts. Exceptions to that rule were provided in section 18(3) and (4) and concerned instances where a police officer had to take urgent measures to provide assistance to victims of offences, save lives, prevent a crime being committed or apprehend a person suspected of committing an offence. In such cases a police officer had to perform his or her duties irrespective of his or her position, duty hours and whereabouts. However, this was not the situation at hand and therefore D.E. had not been acting in the exercise of his State duties and there were no grounds to hold the State liable for his actions. The fact that he had been wearing police uniform and had used cartridges that had belonged to the Tsaritsino branch of the Moscow Department of the Interior had no bearing. The fact that D.E. had been dismissed for discrediting the police meant that his actions had been incompatible with the status of a police officer, but not that he had performed the actions that had caused damage to the first applicant in the course of his duties.

On 6 October 2009 the Moscow City Court upheld the judgment. It noted that there was no evidence that would unequivocally confirm that the actions in question had been performed by D.E. in the course of his duties as a civil servant.

On 23 September 2009 the Nagatinskiy District Court of Moscow dismissed the second applicant’s claim. The court’s reasoning was identical to that in its judgment of 29 July 2009 in respect of the first applicant’s claim.

On 1 December 2009 the Moscow City Court upheld the judgment. As in its decision of 6 October 2009, it noted that there was no evidence that would unequivocally confirm that the actions in question had been performed by D.E. in the course of his duties as a civil servant.

Subsequently, having regard to the special ruling of the Moscow City Court of 19 February 2010, the first and second applicants applied for the civil proceedings to be reopened in the light of newly discovered circumstances.

On 9 April 2010 the Nagatinskiy District Court of Moscow dismissed their requests in two separate rulings. It held that there were no significant new circumstances that would warrant reopening the proceedings.

On 15 November 2010 the third applicant underwent a polygraph test to assess her perception of the police officers after the events of 27 April 2009. According to the results of the test, on 27 April 2009 she had taken D.E. for a police officer and, as a result of the events, had developed feelings of fear and apprehension towards police officers.

Between 19 November and 5 December 2010 an expert psychological examination was conducted with a view to establishing how the fact that at the time of the events D.E. had been wearing police uniform had affected the third applicant’s psychological state. According to the results of the examination, police uniform affects a person’s behaviour as in general people tend to display loyalty and obedience towards symbols of authority due to the latter’s legitimacy and conventionality and their fear of reprisal in the event of their refusal to obey. The fact that the perpetrator had been wearing police uniform had undoubtedly affected the third applicant’s behaviour and psychological state and had limited her ability to choose a behavioural pattern aimed at protecting her life and health. At the time of the examination the third applicant felt an uncontrollable fear of officials wearing police uniform. When she saw one she felt anxiety, apprehension and panic. There was a direct connection between the events and the third applicant’s psychological state characterised by depression, emotional tension and instability, negative feelings, the tendency to avoid new experiences, a pessimistic outlook on life and a change in moral values.

On 29 September 2011 the third applicant instituted proceedings against the Ministry of Finance for damages. She argued that damage had been caused as a result of a police officer’s unlawful exercise of his powers. She argued, in particular, that (i) D.E. had used firearms that he had obtained in the course of his service in the police; (ii) any judicial decision recovering damages from D.E. would remain unenforced since, being convicted to life imprisonment, he would have no sources of income and therefore no assets to recover the judgment debt from; (iii) the polygraph test had proven that on the night of the events the third applicant had taken D.E. for a police officer; and (iv) according to the results of the expert psychological examination, the fact that D.E. had been wearing police uniform had affected the third applicant, rendering her defence difficult.

On 7 December 2012 the Tverskoy District Court of Moscow dismissed the claim. Relying on Articles 150, 151, 1064 § 1 and 1069 of the Civil Code and referring to D.E.’s conviction, the court found no evidence that damage had been caused to the third applicant by the unlawful actions of a law-enforcement officer. The court found that the claim had been brought against the wrong defendant and that it should have been brought against D.E. It dismissed the argument that any judgment against D.E. would remain unenforced as speculative. The third applicant’s reference to the fact that D.E. had used cartridges that had belonged to the Moscow Department of the Interior was also dismissed as “being based on a wrong assessment of the facts established by the court”. The court also stated that the third applicant’s personal perception of the perpetrator dressed in police uniform did not constitute grounds for allowing the claim. It further noted that the reference to the Court’s case-law in the statement of claim constituted an arbitrary interpretation of judicial decisions irrelevant to the case.

On 16 April 2012 the Moscow City Court upheld the judgment on appeal.


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment);No 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);No 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 - Free legal assistance;Insufficient means);No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant is a Russian national who was born in 1960 and lived before his arrest in Vatazhnoe, a village in the Astrakhan region.

On or around 22 December 2003 the applicant sold drugs to B. and O.

On 1 March 2004 B. and O. sold a quantity of those drugs to Su., a police officer taking part in an undercover operation.

In March 2004 the Voronezh branch of the Federal Drug Control Service (“FSKN”) instituted criminal proceedings against B. and O. When questioned they submitted that they had purchased drugs from the applicant, who lived in Astrakhan.

On 20 May 2004 the FSKN instituted criminal proceedings against the applicant and ordered a “test purchase” from him, to be carried out with the help of B. and two undercover police officers, Sh. and P.

The covert operation took place between 3 and 5 June 2004 in a hotel in Astrakhan, where Sh. had booked a room. Audio recording devices were installed in the room and the hotel was placed under surveillance. The applicant alleged that during the operation the police had poisoned him with an unknown substance, which had resulted in him being admitted to a prison hospital.

According to the arrest record drafted at 3.30 p.m. on 5 June 2004, police arrested the applicant in the hallway of the eighth floor of the hotel on the grounds that “witnesses and eyewitnesses indicated that the applicant had committed a criminal offence”. The record also indicated that immediately after his arrest the applicant had been apprised of his right to be assisted by counsel and that he had been searched. The search and its results were described as follows:

“... Mr Chukayev was asked to hand over of his own free will any powerful narcotic substances ... he had been keeping on himself unlawfully, money acquired illegally... In reply to the investigator’s request, Mr Chukayev explained that he had none of those things except money, which he had made illegally from selling a narcotic substance, heroin, in a quantity of approximately 38-50 grams. He also explained that the money he had made illegally was in his bag, and submitted that he wished to give it [to the investigator] of his own free will. As a result of the personal search, Mr Chukayev took the money out of his bag voluntarily ...”

According to the applicant, investigator L. refused to provide him with a lawyer immediately after his arrest on the grounds that no investigating activities were being carried out in respect of him, therefore he did not need a lawyer. The applicant also stated that he had not been questioned on the day of his arrest.

According to the arrest record, which he had signed, the applicant had made no comments concerning its contents or any other matters, and his wife had been notified of his arrest over the telephone.

Following the personal search, the investigator seized other money found in his pockets along with his identity papers, mobile phone and some other items. The personal search was photographed.

On the same day the investigator ordered fingerprint and palm print chemical expert reports. The applicant’s fingerprints and palm prints were taken. The applicant alleged that he had not been informed of the request for these reports or their results. He had only learnt of the expert analyses while reviewing the criminal case file in March 2005.

On 6 June 2004 the investigator started questioning the applicant as a suspect. According to the interrogation report, lawyer Or. was present during questioning. The applicant alleged that he had refused to give a statement for health reasons, whereas the interrogation report stated that he had invoked his right not to incriminate himself and refused to testify. According to the interrogation report, which he had signed, the applicant had no comments concerning its contents or any other matters.

On 6 June 2004 the Kirovskiy District Court of Astrakhan (“the District Court”) remanded the applicant in custody. He alleged that counsel Or. had not represented him properly at that hearing. His detention was extended on several subsequent occasions. He remained in detention until his conviction on 14 October 2005.

On 11 June 2004 the applicant was charged with drug offences and questioned in the presence of counsel I. It is apparent from the record of that interview duly signed by him that he had understood the charges against him and denied all of them. He refused to make a statement.

On 16 August 2004 new charges were brought against the applicant in the presence of his counsel. He was charged with two counts of drug trafficking, namely unlawfully acquiring, transporting and possessing drugs with intent to sell, and selling drugs to B. and O. in December 2003 and Sh. on 5 June 2004.

On 17 February 2005 the District Court returned the criminal case to the prosecutor because the applicant had not had sufficient time to review the criminal case file. In March 2005 he finished doing so.

The trial took place in the District Court between April and October 2005. The applicant was represented by counsel M. and I. The court heard him and several witnesses, and examined the pre-trial statements of absent witnesses as well as physical evidence.

The applicant denied all the charges against him. He testified, in particular, that he had met B. in November 2003 and had helped him to buy fish wholesale. On 5 June 2004 they had met because B. had brought some money he had owed him and had wanted to arrange another purchase of fish from him with Sh.

During the examination of the first set of charges against the applicant, namely unlawfully acquiring and possessing drugs and selling drugs to B. and O. in December 2003, the District Court heard, and the applicant questioned, O., Av., Le., Sv., Iv. and Yu. as witnesses.

Witness O. testified that in November 2003 he and B. had gone to Astrakhan from Voronezh and had bought fish from the applicant. Later, the applicant had contacted them and said that he could supply more fish. They had gone to Astrakhan again, where B. had bought drugs from someone. At the end of the investigation of the criminal case against him and B., the police had asked them, in exchange for a more lenient sentence, to go to Astrakhan again and incite the applicant to sell them drugs. He had refused, whereas B. had agreed.

O.’s testimony in court contradicted his earlier statements made during the pre-trial investigation and the prosecutor asked to have his pretrial statement read out in court. The applicant did not object to this request and it was granted.

It was apparent from O.’s pre-trial statement that he and his business partner B. had been buying fish in Astrakhan and selling it in Voronezh. In November 2003, during their stay in Astrakhan, B. had met the applicant, who had promised to help them purchase some fish. In December 2003 they had again been in Astrakhan, where they had bought heroin from the applicant and transported it to Voronezh.

Witness Av., a police officer, testified that he had taken part in the planning of the covert operation in June 2004 and had been present at the time of the applicant’s arrest and personal search. He had heard the applicant say at the time of his arrest that he had made money from selling drugs.

Witnesses Le. and Sv., police officers from the Voronezh police department, submitted that they had taken part in B. and O.’s arrest in March 2004 after they had tried to sell drugs to an undercover police officer.

Witness Iv. submitted that in March 2004 police had asked him to be an attesting witness during a search of B.’s apartment in Voronezh.

Witness Yu. submitted that in March 2004 police had asked him to be an attesting witness in the covert operation.

The prosecutor submitted two requests to have B. summoned as a witness; however, according to medical documents submitted to the District Court, B. could not attend the hearing because he had a serious oncological condition (cancer) and accompanying speech problems. The District Court then granted the prosecutor’s request, despite the applicant’s objections, to have B.’s pre-trial statement read out and admitted as evidence.

Witness B. testified in his pre-trial statement that his business partner O. had introduced him to the applicant in November 2003. The applicant had agreed to be an intermediary in his business, which involved supplying fish in Voronezh. On or around 15 December 2003 B. and O. had come to Astrakhan to buy fish. The applicant, however, had not had enough fish for them. B. had serious financial difficulties so O. had suggested buying drugs from the applicant. O. had assured B. that he had an established drug distribution network in Voronezh and that he would help B. to sell drugs within three days to resolve his financial troubles. That had been the first time B. had learnt that the applicant sold drugs. On or around 18 December 2003 the applicant had sold 1.5 kilograms of heroin to B. and O. They had then transported it to Voronezh. The police had arrested them there when they had been trying to sell heroin.

The District Court also read out and admitted pre-trial statements of five prosecution witnesses as evidence.

Witness R. testified in his statement that in March 2004 he had organised and supervised the covert operation during which B. and O. had sold drugs to undercover officer Su.

Witness Su. testified that he had gone undercover to buy drugs from B. and O. during the covert operation in March 2004. He described the manner in which it had been carried out.

Attesting witnesses M., D. and Z. testified in their statements that in March 2004 the police had asked them to serve as attesting witnesses in the undercover operation, during which they had observed the manner in which the test purchase had been carried out in respect of B. and O.

During the examination of the second set of charges against the applicant the District Court questioned three police officers (Sh., K. and Sha.) and two attesting witnesses.

Witness Sh. submitted that in June 2005 he had taken part in the test purchase from the applicant. B. had identified the applicant as the dealer. During the covert operation he and B. had met the applicant several times in the hotel room. At their last meeting the applicant had sold Sh. about 50 grams of heroin.

Witness K. testified that he had been responsible for monitoring the undercover operation in respect of the applicant in the summer of 2004.

Witness Sha. testified that he had arrested the applicant immediately after the test purchase, and that he had said at the time of his arrest that he had made money from selling drugs.

Witnesses Shi. and Ba. testified that the police had asked them to serve as attesting witnesses in the undercover operation, during which they had observed the manner in which the test purchase had been carried out in respect of the applicant.

The District Court also read out a pre-trial statement of absent witness B.

B. testified that he had agreed to take part in the test purchase from the applicant. A police officer, Sh., had been designated as the buyer. In late May B. had called the applicant to inform him that he had already sold the drugs to a certain person, someone who was interested in buying more drugs from him, but as wished to do so in person he would come to Astrakhan. The applicant had agreed and said that he would arrange the deal.

B. then described in detail how the covert operation had been carried out between 2 and 5 June 2004. In particular, he had called the applicant several times over those days to arrange a meeting with him. On 3 June 2004 the applicant had come to their hotel and B. had introduced him to Sh., who had asked the applicant to supply him with 2 kilograms of heroin and discussed other terms of the deal. The applicant had said that he could only get 1.2 kilograms of heroin and they had agreed to meet the following day. On 4 June 2004 the applicant had come to their hotel and said that he had contacted the dealers and that they would call him back. They had all stayed in the hotel room until the applicant had received a telephone call. The applicant told them that he would bring the heroin the next day. On 5 June 2004 the applicant had come to their hotel with about 38 grams of heroin. When Sh. had asked him about the remaining amount, the applicant had explained that he could bring more in two days. However, he had 9 grams on him for personal use so Sh. had agreed to buy that too. Sh. had handed money over to the applicant, who had said that he would go downstairs to get change. When he had left the room he had been arrested by the police.

On 14 October 2005 the District Court sentenced the applicant to nine years’ imprisonment, after finding him guilty of drug offences, in particular the sale of drugs to B. and O. in December 2003 and Sh. on 5 June 2004. The court admitted the following material as evidence:

(i) the statements made during trial by O., Av., Le., Sv., Iv. and Yu. and the pre-trial statements of B., R., Su., M., D. and Z;

(ii) the statements made during trial by Sh., K., Sha., Shi. and Ba. and the pre-trial statement of B.

(iii) a record of the examination of the banknotes used to buy drugs from the applicant;

(iv) the test purchase record;

(v) the arrest record of 5 June 2004;

(vi) a transcript of the audio recording made in the course of the test purchase;

(vii) forensic chemical examination reports of substances seized at the crime scene;

(viii) a forensic examination report of the applicant’s palm prints.

The court did not examine the forensic report of the applicant’s fingerprints or admit it as evidence.

The forensic examination report of the applicant’s palm prints showed that the applicant had had no drug residue on his palms.

The District Court did not use the applicant’s interrogation report of 6 June 2004 as evidence.

In his appeal against the conviction the applicant complained, among other things, that the trial court had not ensured the presence of a key prosecution witness, B.

On 2 March 2006 the Astrakhan Regional Court (“the Regional Court”) upheld the applicant’s conviction. It held that according to medical certificates, B. was suffering from cancer and could not speak. The trial court had therefore lawfully decided that his situation could be considered to be “other exceptional circumstances” which had prevented him from appearing at the hearing, and that his testimony could be read out in accordance with Article 281 of the Code of Criminal Procedure (see paragraph 77 below).

On an unspecified date in 2006 the applicant applied to the Presidium of the Regional Court for a supervisory review of his conviction.

On 29 August 2006 it examined the applicant’s case by way of supervisory review. Neither the applicant nor his counsel were present at that hearing. The Presidium amended the judgment of 14 October 2005 as upheld on 2 March 2006 in so far as the applicant’s actions on 5 June 2004 had been classed as a drug offence, and held that his actions should have been classed as an attempt to commit a drug offence. It upheld the remainder of the judgment of 14 October 2005.

On 6 March 2009 a judge of the Supreme Court of the Russian Federation (“the Supreme Court”) referred the case to the Presidium of the Supreme Court for examination on the merits, at the request of the Prosecutor General of the Russian Federation.

On 2 April 2009 the Supreme Court quashed the decision of 29 August 2006 by way of supervisory review, on the grounds that the applicant had not been duly informed of the date of the hearing, and had therefore been unable to attend. It remitted the case to the Presidium of the Regional Court for fresh examination.

On 19 May 2009 the applicant requested the Presidium of the Regional Court (“the Presidium”) to provide him with legal aid counsel for the hearing before it. He claimed that he had insufficient means to pay for a lawyer.

On 2 June 2009 the Presidium examined the criminal case against the applicant by way of supervisory review. He was present at the hearing and was assisted by legal aid counsel K.

The applicant objected to the panel of the Presidium on the grounds that it had already examined his case by way of supervisory review on 29 August 2006. The Presidium dismissed this objection, finding that the decision of 29 August 2006 had been quashed on procedural grounds. There was therefore no reason to exclude these judges from the new examination of the case.

The applicant submitted on the merits of the case that at the time of his arrest he had not been informed of his rights or provided with a lawyer and that the record of his arrest had been forged. He also had not received a copy of the arrest record or been able to question key prosecution witness B. at the trial.

Having examined the case file, the Presidium found that the applicant’s grounds of appeal were unsubstantiated. In particular, it held that the arrest record of 5 June 2004 had been duly authenticated and signed by the applicant, who had been informed of his rights, including the right to be represented by counsel. He did not however request that counsel be instructed or make any comments in the record. The Presidium also noted that statements by prosecution witnesses had been read out at trial in accordance with the law.

The Presidium amended the judgment of 14 October 2005 as upheld on 2 March 2006, held that the applicant’s actions on 5 June 2004 should have been classed as an attempt to commit a drug offence, and upheld the remainder of the judgment of 14 October 2005.

By a decision issued on the same day the Presidium ordered the recovery of counsel’s fees in the amount of 1,485.85 Russian roubles (RUB) (about 30 euros (EUR)) from the applicant for the representation in the supervisory review proceedings.

In the course of the criminal proceedings the applicant was detained in remand prison IZ-30/1 in Astrakhan during the following periods:

(a) between 6 and 9 June 2004;

(b) between 9 July and 16 December 2004;

(c) between 28 December 2004 and 11 April 2006; and

(d) between 27 February and 26 March 2008.

During the first three periods the applicant was detained in different cells. All of them were overcrowded and infested with insects. They measured about 25 square metres each and contained six bunk beds. He did not have an individual sleeping place and inmates had to take turns to sleep. Some cells were not equipped with ventilation system, while in others it was not working. The electric lighting was always on. The toilet was not separated from the rest of the cells.

During his last period of detention the applicant was detained in cell 5 located in the basement. He was not provided with any bedding or cooking utensils. Remand prison officers told him that he should have brought his own bedding. The cell was very cold and damp. Since he did not have any bedding he was obliged to sleep in his clothes. The windows were closed all the time and let in no daylight. The cell was never ventilated. The toilet was in the corner of the cell and offered no privacy. The dining table was very close to the toilet. The cell was infested with insects. Detainees could take a fifteen-minute shower once a week.

On an unspecified date the applicant was transferred to correctional colony IK-2 in the Astrakhan region to serve his sentence. It appears that in 2010 he was transferred to correctional colony IK-6, also in the Astrakhan region.

The applicant submitted that the authorities of IK-2 and IK-6 had opened and read a number of the Court’s letters to him, in particular one dated 13 September 2006 acknowledging receipt of his application and giving him further information on the conduct of the proceedings before the Court, and others dated 21 November 2006, 15 January, 20 February, 22 and 29 May 2007, and 26 February 2008. The applicant provided the Court with copies of these letters. All of them had been stamped by the colony authorities.

The applicant also submitted that the colony authorities had delayed in sending the Court’s letters to him.

The Government claimed that during his detention in IK-2 and IK-6 the applicant had sent one letter to the Court and had received 11 letters from the Court. The receipt and dispatch of letters had been properly recorded in the prison log book. Some letters addressed to the applicant had been opened for registration purposes only. They had not been censored and had been handed over to the applicant in their entirety. One letter had been forwarded to the applicant after a four-day delay due to an omission by one of the prison employees who had been duly reprimanded in the intervening period.


Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicant, Emil Beybala oglu Gafarov (Emil Bəybala oğlu Qafarov), is an Azerbaijani national, who was born in 1986 and lives in Sumgayit.

The applicant had been granted legal aid and was represented before the Court by Mr A. Mustafayev, a lawyer practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.

At approximately 11 p.m. on 11 September 2008, after having participated in a robbery with another person, the applicant voluntarily appeared at a police station. According to the applicant, on arrival at the police station he was arrested.

At 5 p.m. on 12 September 2008 the investigator in charge of the case drew up a record of the applicant’s arrest as a suspect (tutma haqqında protokol). The record was signed by the investigator and the applicant.

On 13 September 2008 the applicant was charged with the criminal offence of robbery as defined under Article 180.2.1 of the Criminal Code. On the same day the prosecutor requested that the preventive measure of remand in custody be applied in respect of the applicant.

At approximately 11 a.m. on 15 September 2008 the Sumgayit City Court granted the prosecutor’s request and remanded the applicant in custody for a period of three months. The court also held that the beginning of the detention was to be calculated from 12 September 2008.

According to the applicant, at the hearing before the first-instance court his lawyer complained that under domestic law, a suspect should not be detained for more than forty-eight hours, but the court left the complaint without consideration. However, according to the record of the hearing – the content of which was not disputed by the applicant – held in the presence of the applicant and his lawyer, the lawyer only asked the court not to apply the preventive measure of remand in custody in respect of the applicant because he was young and had confessed to the crime.

The applicant did not appeal against the Sumgayit City Court’s decision of 15 September 2008.

On 16 September 2008 the applicant’s lawyer lodged a request with the Sumgayit City Court, asking the court to place the applicant under house arrest in lieu of being remanded in custody. He submitted that the applicant had voluntarily presented himself to the police, that there was no risk of his absconding, that he was suffering from a kidney disease, and that he was a student.

On 19 September 2008 the Sumgayit City Court dismissed the request, finding that there was no need to change the preventive measure of remand in custody. It appears from the record of the hearing that the applicant’s lawyer raised the same arguments in support of the request during the hearing in the court.

On the same day the applicant lodged an appeal with the Sumgayit Court of Appeal. In his appeal, the applicant asked the court to replace his detention on remand with house arrest, noting that, when ordering his pre-trial detention, the court had not taken into consideration the fact that he had no criminal record, that he had voluntarily given himself up to the police, as well as his state of health and other personal circumstances. The applicant also complained about his detention as a suspect from 11 to 15 September 2008, claiming that he had not been brought before a judge within forty-eight-hours of his arrest as required by domestic law.

On 26 September 2008 the Sumgayit Court of Appeal partially granted the appeal and replaced the applicant’s remand in custody with the preventive measure of house arrest. The appellate court’s decision made no mention of the part of the complaint relating to the applicant’s alleged unlawful detention in excess of the maximum forty-eight-hour period.

The relevant provisions of the Code of Criminal Procedure (“the CCrP”) concerning arrest on suspicion of having committed a criminal offence are described in detail in the Court’s judgments in Farhad Aliyev v. Azerbaijan (no. 37138/06, §§ 84-88, 9 November 2010) and Salayev v. Azerbaijan (no. 40900/05, §§ 25-29, 9 November 2010).

Chapter LII of the CCrP lays down the procedure by which parties to criminal proceedings may challenge actions or decisions of the prosecuting authorities before a court. Article 449 provides that a victim or his counsel may challenge actions or decisions of the prosecuting authorities concerning, inter alia, arrest and detention on remand or violation of the rights of an arrested person. The judge examining the lawfulness of the prosecuting authorities’ actions or decisions may quash them if he or she finds them to be unlawful (Article 451). The judge’s decision may be challenged before an appellate court in accordance with the procedure established in Articles 452 and 453 of the CCrP.


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty)

André Potocki;Angelika Nußberger;Helena Jäderblom;Josep Casadevall;Síofra O’Leary;Vincent A. De Gaetano

The applicant was (to her knowledge) born in 1996 and at the time of the introduction of the application was detained in Lyster Barracks, Ħal Far.

The applicant entered Malta in an irregular manner by boat on 27 May 2012. Upon arrival, she was registered by the immigration police, given an identification number (12H-006), and presented with two documents in English, one containing a Return Decision and the other a Removal Order.

The Return Decision stated that she was a prohibited immigrant by virtue of Article 5 of the Immigration Act (Chapter 217 of the Laws of Malta) because she was in Malta “without means of subsistence and liable to become a charge on public funds”. The Return Decision also informed the applicant that her stay was being terminated and that she had the possibility to apply for a period of voluntary departure. The Removal Order was based on the consideration that the applicant’s request for a period of voluntary departure had been rejected. It informed the applicant that she would remain in custody until removal was effected, and that an entry ban would be issued against her. The two documents further informed the applicant of her right to appeal against the Decision and Order before the Immigration Appeals Board (“the IAB”) within three working days.

According to the applicant, the contents of the decision in English were not explained to her, although she could not understand the language. According to the Government, in practice the immigration police inform the migrants verbally in English about their right to appeal, and the migrants translate for each other.

The applicant was further provided with an information leaflet entitled “Your entitlements, responsibilities and obligations while in detention” in Arabic, a language she did not understand. According to the Government the applicant did not request a booklet in another language.

In accordance with Article 14(2) of the Immigration Act (see Relevant domestic law), the applicant was detained in Lyster Barracks.

During the registration process upon her arrival, in the absence of an interpreter, the applicant’s age was recorded as twenty-six (born 1986). She claims to have told the authorities that she was sixteen years old. According to the Government, it emerged from the authorities’ records (not submitted to the Court) that the applicant declared that she was born in 1986.

On 30 May 2012 the applicant appealed against the Removal Order and Return Decision. By the date of the introduction of the application (4 February 2013), no date had been set for her appeal hearing by the IAB.

A few days following her arrival the applicant was called for an information session provided by the staff of the Office of the Refugee Commissioner. She was assisted in submitting the Preliminary Questionnaire (PQ), thereby registering her wish to apply for asylum under Article 8 of the Refugees Act, Chapter 420 of the Laws of Malta (see Relevant domestic law below). She stated on the form that she was sixteen years old.

On an unspecified date some two months after her arrival in Malta, the applicant was called for an interview with a member of Agency for the Welfare of Asylum Seekers (AWAS) staff, who informed her that as she had claimed to be sixteen years old she would be interviewed by three members of AWAS staff with a view to assessing the veracity of her claim that she was a minor.

About a week later, three people from AWAS interviewed her. During the interview a male detainee provided interpretation services. After the interview they informed her that as they could not confirm her minor age through the interview they would send her for a further age verification (FAV) test - an X-ray of the bones of the wrist. The applicant was taken for the FAV test about two months after her interview, on 5 October 2012.

At the beginning of November, as the applicant had not received any decision from the AAT, she asked a woman from AWAS (who was visiting the detention centre to conduct interviews with other detainees who had health problems) whether she knew anything about her case. The woman told her that her X-ray was being assessed and if she was found to be a minor she would be released soon. Some three weeks later, on 22 November 2012, some other people from AWAS went to the centre and told her that according to the test she was not a minor but an adult. During the latter meeting a fellow (female) detainee provided translation.

By the date of the lodging of the application the applicant had not received a written decision informing her of the outcome of the age assessment procedure. According to the Government a decision on the applicant’s age was taken on 14 January 2013; no date was submitted regarding notification. The Government submitted that since no care order was issued the applicant was obviously not a minor.

The applicant was detained in Hermes Block in Lyster Barracks (see paragraph 10 above), in conditions which she considered prison-like and basic. The Government contested this allegation.

She explained that the Block is divided into five self-contained zones (one on the ground floor, two on the first floor and two on the second floor) and four of the zones (B,C,D,E) were virtually identical. For the first few days of her detention she had been held in Zone E which at the time accommodated families (i.e. couples with or without children), and then she was moved to Zones C and D with other single women.

These zones contained a number of dormitories (containing bunk beds but no lockers or cupboards for personal belongings), ten showers and toilets, a small kitchen with one or two hot plates and a fridge (no further storage for food, which was stored in open boxes accessible to insects, was available), and a common room with six basic metal tables and benches screwed to the ground, together with a television. Blankets hanging from bunk beds were the only means of privacy.

Access to the zones was through metal gates which were kept locked all day, and detainees could leave the zone for one and a half hours per day, which they could spend in a small dusty yard. Windows were barred and most of them glazed with opaque Perspex (which was removed in the summer months for air, though they then let air through in the cold winter months). On the one hand, in summer the facility was often crowded and the heat would become oppressive despite the presence of ceiling fans. On the other hand, in winter it was unbearably cold as the facility was not heated and, moreover, was exposed to the elements as there were no adjoining buildings.

The applicant considered that the facility was shared by too many people – in summer the applicant’s dormitory (one out of three in the zone) was shared by twenty women – and agreement amongst so many different persons having cultural and linguistic differences was difficult. However, at the time of the introduction of the application, the applicant was in less crowded conditions, sharing an entire zone with only twenty-five other women, most of whom were Eritrean and Somali.

The applicant noted that since her arrival she had only been provided with two bed sheets, a small towel, a blanket, a T-shirt, one pillow and a pillow case, a few items of underwear and a pair of flip-flops, as well as a plastic plate, cup, and set of cutlery. Other items of clothing were distributed sporadically. She stated that she was never provided with a quilt, a bra or running shoes. While toilet paper was distributed on a monthly basis, certain basic items such as sanitary pads were missing. In winter detainees were not systematically provided with warm clothes and closed shoes, which were distributed according to what was received by way of donation and which was not sufficient to supply the needs of all detainees. Although blankets were distributed to everyone, the building was not heated and winter months were unbearably cold.

Detainees had little to do all day, and only limited access to open air. In particular, the applicant noted that she was let out into the small dirty yard for the first time only after a few months of detention. While in the yard, other male detainees called out names and picked on the women from the windows of their rooms overlooking the yard. The applicant referred to the report “Not here to stay: Report of the International Commission of Jurists on its visit to Malta on 26 – 30 September 2011”, May 2012 (see paragraph 45 below).

She also noted that although telephone cards were distributed (each of 5 Euro (EUR)), the credit they contained was often insufficient to make long distance calls and no cheaper ways of keeping contact with the family or outside world were available as they had no internet access. By the time she lodged her application she had received EUR 25 in credit. The applicant also considered inappropriate that detainees were given the same soap to use for their bodies, hair, clothes and floor. The applicant further made reference to an incident with a detention officer who had pushed her down the stairs and tried to forcefully resuscitate her by slapping her and grabbing different parts of her face leaving her in pain – she, however, admitted that she could not recognise the officer in question and that she had feared reprisal had she reported the matter.

Furthermore, as could be seen from the results of the Jesuit Refugee Service (JRS) Europe study on detention of vulnerable asylum seekers, the physical conditions of detention and their impact on the physical and mental well-being of detainees were exacerbated by other factors. These factors included: length of detention, lack of constructive activities to occupy detainees, overcrowding, limited access to open air, difficulties in communication with staff and with other detainees, and lack of information about one’s situation. Moreover, there was a lack of any real possibility of obtaining effective redress and inmates knew that detention was not serving any useful purpose and was in no way proportionate to the aim to be achieved.

The applicant submitted that all of those objective factors had had a particular impact on her because of her personal circumstances, particularly her young age, her inability to communicate in anything but Somali and the fact that as a young woman she was detained in a facility administered almost exclusively by men.

On 24 January 2013 the applicant was called for an interview with the Refugee Commissioner. By means of a decision of the Refugee Commissioner of 2 February 2013, the applicant was granted subsidiary protection in Malta. She was notified of this decision and released on 7 February 2013.