Aleš Pejchal;André Potocki;Angelika Nußberger;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The first applicant, Mr Christer Johansson, is a Swedish national born in 1969 and the second applicant, Ms Annie Johansson, is an Indian national born in 1971. They are residing in Sweden. They were represented before the Court by Ms R. Harrold-Claesson, a lawyer practising in Olofstorp, Sweden, and Mr R. Kiska, a lawyer practising Vienna, Austria.

The applicants are a married couple who have a son, X, born in 2001. On 24 June 2009, the Social Council (Socialnämnden) of the Region Gotland decided to take X into immediate compulsory public care and the decision was implemented the following day. Initially, the applicants were prohibited from having any contact with X but this prohibition was later revoked.

This decision was followed by an application by the Social Council to the County Administrative Court (förvaltningsrätten) of the County of Gotland for compulsory public care of X, which was granted 13 August 2009. The court found that there were psychological and physical care deficiencies in the applicants’ care of X, resulting in his health and development being at risk.

The applicants appealed to the Administrative Court of Appeal (kammarrätten) in Stockholm which upheld the lower court’s judgment in full. On 27 January 2010 the Supreme Administrative Court (Högsta förvaltningsdomstolen) refused leave to appeal.

By decision of 21 December 2009, which was upheld by the Social Council on 12 January 2010, the applicants’ right to contact X was again limited. The applicants were granted a supervised visit with X, for one hour every fifth week, and a supervised telephone call, for fifteen minutes every two weeks. E-mails and letters from the applicants were also forwarded to X. The applicants were specifically instructed not to discuss the legal process with X, but did not comply with this instruction.

On 27 January 2010, the applicants requested the Social Council to revoke the decision to keep X in compulsory public care. On 12 May 2010, the Social Council rejected the request. The decision was appealed against to the County Administrative Court in Stockholm which, on 21 September 2010, found that X was still in need of care and so upheld the Social Council’s decision.

On 21 January 2011, the first applicant was convicted by the District Court (tingsrätten) of Gotland of minor narcotics offences and unlawful deprivation of liberty (olaga frihetsberövande) after having abducted X by force. Probation (skyddstillsyn) was ordered, combined with the obligation to undergo therapeutic treatment and two months’ imprisonment, which he had already served in pre-trial detention. The judgment was later upheld by the Svea Court of Appeal (hovrätten).

On 8 March 2011, as a consequence of the conviction, the Prosecution Authority (Åklagarmyndigheten) issued a restraining order against the first applicant vis-à-vis X, initially for one year but later extended up to and including 2 March 2013.

On 1 July 2011, upon appeal by the applicants, the Administrative Court of Appeal upheld the lower court’s judgment to keep X in public care. It took into consideration the first applicant’s conviction as well as the restraining order. It further considered that, on 26 November 2010, the Social Council had decided to ban all visits and contact between the applicants and X. One, or both, of them had published or provided for publication on the internet confidential information regarding X. The court concluded that the applicants’ ability to care for X had not improved but rather worsened.

On 12 January 2011, the Social Council requested the District Court to transfer legal custody (vårdnad) of X from the applicants to a specially-appointed guardian (särskilt förordnad vårdnadshavare). It based its request on the information obtained during the previous proceedings and submitted that, due to the first applicant’s abduction of X, there was a long-term need to limit the applicants’ contact with their son. X was also found to have a need for long-term care. The Social Council further claimed that as long as the applicants had custody of X, it was not possible to keep information regarding him confidential from them and so prevent such information being published on the internet. Considering the complexity of the matter and the applicants’ behaviour towards the social workers, it was not considered possible to transfer custody to X’s foster home parents or a social worker in the near future. Instead, a third party was suggested.

On 19 December 2011, the District Court rejected the interim request to appoint a specially-appointed guardian for X and, on 13 June 2012, it rejected the request finally. It took into account the reasons given by the Social Council but also noted that compulsory public care should only be used when it was absolutely necessary and that the aim was that it should cease as soon as was possible. Considering that the applicants had requested the administrative courts to repeal the compulsory care, it could thus not be concluded that a reunion was impossible. Friends and family of the applicants had furthermore stated that they were able to care for their son. In the court’s view, a decision to transfer custody would most likely render the applicants even more angry and frustrated which would rather increase the risk of their interfering in X’s care. In conclusion, it found that it was not in X’s best interest to transfer custody from his parents.

The Social Council appealed against the judgment to the Court of Appeal. It submitted a psychiatric evaluation of X, dated 9 August 2012, and performed by a chief physician specialised in child psychology and a psychologist specialised in clinical psychology with focus on neuropsychology. The evaluation stated, inter alia, that X had had nightmares for about one year after his father had abducted him, that he had described the situation to be the worst thing that ever had happened to him, that he had found information about himself and his father on the internet which had made him afraid, that he did not want to live with his parents and that he was found to have a great need to be able to develop in peace and quiet in his foster home. The chief physician was also called as a witness. The Court of Appeal granted leave to appeal.

The applicants requested the appellate court to order an additional psychological assessment of X, requested disclosure of certain documents and asked for a number of new witnesses to be heard. Their requests were rejected by the Court of Appeal as it found no reason to order an additional psychological assessment of X and since the new evidence produced by the applicants, as well as the requested documents, aimed to prove circumstances that were not relevant to the case.

On 10 December 2012, the Court of Appeal, after having held an oral hearing, reversed the lower court’s judgment and transferred custody of X from the applicants to a specially-appointed guardian. It took into account Article 8 of the Convention and also noted that the possibility to transfer the custody of a child from his or her parents should be used restrictively. However, it found that the applicants had failed in their care of X, both physical and psychological. It specifically pointed to the fact that X had not been allowed to go to school and had been kept isolated from children of his own age. It further considered the applicants’ actions after X had been taken into compulsory public care, in particular the first applicant’s abduction of X and the publication of confidential information on the internet. The court found it clear that the applicants, if they had the possibility, would interfere with X’s care. They were also found to be in denial about their failings in providing X with proper care as well as concerning the results of X’s psychiatric evaluations. The appellate court concluded that the situation was such that custody should be transferred, even taking into consideration the applicants’ right to family life under Article 8 of the Convention. It further found that, considering the applicants’ behaviour, it would be an unreasonable burden to place on the foster home parents to require them to deal with questions regarding the applicants’ contact with X. It therefore considered that the best solution was to appoint an experienced family law advocate as X’s specially-appointed guardian.

One of the three legally qualified judges dissented and considered that it was not in X’s best interest to transfer custody from his parents.

The applicants appealed to the Supreme Court (Högsta domstolen), maintaining their claims and adding, inter alia, that one of the three legally qualified judges had been biased since he had been working at the County Administrative Court at the time when the question of compulsory public care had been decided.

On 25 April 2013, the Supreme Court refused leave to appeal.

It follows from Chapter 6, section 1, of the Parental Code (föräldrabalken, 1949:381, hereafter the “Code”) that all children have a right to care, security and a good upbringing. They shall be treated with respect for their person and individuality and may not be subject to corporal punishment or other degrading treatment.

A child is under the custody either of both parents or one of them, unless a court has transferred custody to one or two specially-appointed guardians (Chapter 6, section 2 (1), of the Code). Anyone who has custody of a child is responsible for the child’s personal circumstances and for ensuring that the child’s needs under Chapter 6, section 1, are satisfied. The guardian is also responsible for the child having the supervision needed due to the child’s age, development and other circumstances, and should ensure that the child is adequately provided for and receives adequate education (Chapter 6, section 2 (2), of the Code).

What is in the best interest of the child shall always be decisive in decisions regarding custody, residence and contact (umgänge) (Chapter 6, section 2a (1), of the Code).

If a parent, in his or her care of his or her child, abuses or neglects or in any other way fails in taking care of the child in such a way that would lead to a permanent risk for the child’s health or development, the court shall remove the right of custody (Chapter 6, section 7 (1) of the Code). If the child is under both parents’ custody and what is stated in paragraph 1 applies only to one of them, custody shall be entrusted to the other parent. If that parent also fails in taking care of the child, the court shall transfer the custody to one or two specially-appointed guardians (Chapter 6, section 7 (2), of the Code).

When custody of a child has been transferred to one or two specially-appointed guardians, the court may, upon request by one or both parents or the Social Council, transfer it to one or both parents (Chapter 6, section 10 of the Code).


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

The applicants were detained in Korydallos Prison in Athens when they lodged their application with the Court.

The first applicant was detained in Korydallos Prison on 7 March 2013, and was still in detention at the time his observations to the Court were submitted. His detention in Korydallos Prison was temporarily interrupted when he was transferred to Ioannina Prison from 3 July 2013 until 11 July 2013, and to Komotini Prison from 2 December 2013 to 17 December 2013. The second applicant was detained in Korydallos Prison on 22 March 2013 and the third applicant on 21 August 2013; they were still in detention when they submitted their observations to the Court. The fourth applicant was detained in Korydallos prison from 26 June 2013 to 1 May 2014, except for the periods from 17 July 2013 to 3 September 2013, from 27 November 2013 to 10 December 2013, and from 6 February 2014 to 17 February 2014, during which time he was detained in Chania Prison. The fifth applicant was detained in Korydallos Prison from 22 May 2013 to 19 June 2014, except for the period between 20 March 2013 and 28 March 2013. The sixth applicant was detained in Korydallos Prison from 30 January 2013 to 15 August 2014.

The applicants alleged that the prison held 2,400 prisoners, while it had been designed to accommodate 700. The applicants were detained in wings A and D in various cells which all measured 9 sq. m, including the space for sanitary facilities, and accommodated three or four prisoners; the living space for each prisoner was therefore less than 3 sq. m.

The toilet facilities were partially separated from the rest of the cell. In addition, there was insufficient heating and hot water. Inmates had to use a washbasin to wash themselves, as well as their dishes and clothes. Cells were dirty and overrun with cockroaches and other pests, and no attempt was made to exterminate them. Rubbish was not properly collected and food remains were left in the cells and corridors for days. Prisoners were not sufficiently separated according to their health conditions or whether or not they were drug users. There was no adequate medical care, in particular as regards psychological health.

The inmates were confined to their cells for sixteen hours per day, as recreational or educational activities were not provided. They had to take their meals, which were poor in terms of quality and nutritional value, inside their cells.

Moreover, the prison was understaffed and unable to secure the prisoners’ safety.

The Government asserted that the first to fifth applicants had been detained in various cells in wings A and D. All cells measured 9.60 sq. m. and accommodated three or, on rare occasions, four detainees. The first applicant had also been detained in two cells in wing E: one which measured 10.44 sq. m., and another which measured 42.78 sq. m. and accommodated ten to twenty-two detainees, although it had only accommodated twenty-two detainees for a short period of time.

All cells had a window ensuring sufficient light. Every cell was furnished with a washbasin, a toilet, beds, a table, chairs and, usually, wooden shelves. Wings A, B, C and D had twelve communal showers each, and wing E had nine communal showers. Each wing could provide 2,000 litres of hot water every day. Detainees were provided with sheets and blankets, except for when they chose to use their own.

The prison had a central heating system, and inmates were provided with fans during the summer. Cells were regularly disinfected and cleaned twice a day by cleaning crews consisting of detainees. All wings had rubbish bins.

All detainees had access to the prison’s infirmary, which was open twenty-four hours per day, and there were eighteen doctors with different areas of specialism and three nurses who offered appointments to the prisoners. When inmates’ conditions could not be dealt with in the infirmary, they were transferred to Korydallos Prison Hospital, Korydallos Psychiatric Hospital or an external hospital. The Government submitted the applicants’ medical records, to demonstrate that they had been treated on various occasions. Additionally, the prison’s social services took care of detainees’ needs, including those of the applicants, who had used those services on a number of occasions.

As regards prisoners’ meals, the Government submitted the menu for ten days selected at random to demonstrate that meals were varied.

Prisoners were able to spend four to five hours in the prison yard every day, practising sport. They were allowed to have a television in the cells, and the prison had a lending library and a book club. In addition, detainees had the opportunity to take one of the available jobs or attend “second chance” school.

The Government did not submit observations concerning the sixth applicant (see below, paragraphs 24-26).


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

Alena Poláčková;Helen Keller;Pere Pastor Vilanova

The applicant was born in 1953 and lives in Katyr-Yurt, the Chechen Republic. He is the father of Mr R., who died of tuberculosis in a prison hospital.

In 2004 Mr R. arrived at correctional colony no. 4 in the Arkhangelsk Region where he was to serve his twelve-year sentence. On admission to that facility, he underwent a general medical check-up permed by a prison doctor who concluded that he was healthy. Two routine chest X-ray examinations in March and October 2004 confirmed that conclusion.

On 10 March 2005 Mr R. complained to the prison medical authorities of fatigue and a cough. Acute rhinopharyngitis was diagnosed and a standard treatment for that condition was prescribed, but the symptoms persisted. Eleven days later, the prison doctor diagnosed acute pneumonia of the left lung. Mr R. was admitted to the prison medical unit and prescribed medication and a special dietary regime.

On 6 April 2005, in view of the absence of any positive changes in Mr R.’s health, he was moved to a prison tuberculosis hospital. A chest Xray examination performed on the day of his admission showed a massive infiltration in the lungs.

The next day Mr R. underwent a sputum test, which revealed his affliction with tuberculosis combined with pneumonia. Treatment with five first-line drugs was prescribed. It was started about two weeks later, but had no effect on Mr R.’s health.

On 12 April 2005 a drug susceptibility test was performed. The test result was only received on 18 July 2005 (see paragraph 15 below). An additional chest X-ray examination on 18 April 2005 indicated further progress of the diseases.

In the light of the above, on 23 April 2005 Mr R. was transferred to the Arkhangelsk regional prison tuberculosis hospital (“regional prison hospital”), where his treatment continued as previously prescribed.

According to the applicant, Mr R. was unsatisfied with the quality of his treatment. In early May 2005 both the applicant and Mr R. unsuccessfully sought the latter’s transfer to a medical facility located in a southern region, where Mr R. could have been provided with adequate treatment in a more suitable climate.

In the meantime, regular chest X-ray examinations showed that Mr R.’s health was continuing to deteriorate. By mid-July 2005 pulmonary cavities had appeared, and his condition had become serious.

On 18 July 2005 the regional prison hospital received the result of the drug susceptibility test of 12 April 2005. It revealed that Mr R.’s tuberculosis was resistant to four antibiotics being used in his treatment.

According to a medical entry made at the top of a page outside the related fields in Mr R.’s medical file, on 28 July 2005 he was prescribed treatment with advanced antibiotics. There are no regular entries showing the actual intake of the new drugs.

In August 2005 Mr R.’s condition was assessed as “of medium gravity”, but on 10 September 2005 he died. According to an autopsy report drawn up two days later, the cause of death was cardio-respiratory insufficiency provoked by tuberculosis.

In September 2006 the applicant asked for criminal proceedings to be instituted into the circumstances leading to his son’s death. He alleged that the authorities responsible for protecting the life and wellbeing of his son had failed to comply with their obligations.

On 21 October 2006 the Primorskiy Inter-District Prosecutor’s Office refused to open a criminal case. Its page-long decision was based on the autopsy report and general information on Mr R.’s treatment submitted by the prison medical authorities. The investigator concluded that Mr R. had died of tuberculosis for which he had received medical treatment, and that the patient’s detention in a northern region had not breached Russian law.

In November 2006 the applicant repeated his request, having argued that the custodial authorities bore responsibility for his son’s death because they had failed to protect him from tuberculosis and to ensure prompt diagnosis of the disease.

By a letter of 9 January 2007 a prosecutor informed the applicant that a criminal inquiry had established that his son had contracted tuberculosis in early March 2005. The correctional colony had promptly identified the disease and had ensured treatment keeping the disease under control. The investigating authorities did not assess the quality of the medical services provided between late April and September 2005.

The applicant appealed against the decision of 21 October 2006, insisting that the investigator’s finding had not been supported by expert evidence. He further argued that the detention authorities had failed not only to diagnose his son’s tuberculosis promptly, but also to provide him with adequate care in the regional prison hospital.

On 3 July 2007 the Isakogorskiy District Court of Arkhangelsk examined the claim. Ms B., the head of the regional prison hospital’s unit responsible for Mr R.’s treatment, was heard. She stated that Mr R. had been admitted to the hospital on 23 April 2005. Shortly thereafter he had undergone medical testing. Ms B. stressed that the testing had been complex and that the hospital had only received the test result in August 2005. On 26 August 2005 the doctors had learned that Mr R.’s tuberculosis had been drug resistant. They had prescribed treatment with advanced antibiotics. However, by that time pathological changes in the patient’s body had already become irreversible.

Having regard to the investigation file, the court noted that the investigating authorities had solicited neither the autopsy report nor medical documents concerning Mr R.’s treatment and that they had not interviewed any doctor involved in the treatment. The court thus concluded that the criminal inquiry had not been thorough. It overruled the prosecutor’s decision of 21 October 2006 not to open a criminal case.

On 14 August 2007 the Arkhangelsk Regional Court quashed the District Court’s decision on appeal. It noted that it was not for the investigative authorities to assess all possible versions of the events and that there was no obligation on them to resolve each inconsistency in the case. The court found that the documents obtained by the firstinstance court and the statement by Ms B. had remedied the alleged shortcomings in the investigation. The case was remitted to the District Court for a fresh examination.

Ten days later the District Court re-examined the case. It concluded that the criminal inquiry had been carried out in compliance with the requirements of the Russian Code of Criminal Procedure, and that the impugned decision of 21 October 2006 had been based on sufficient evidence duly assessed by the investigating authorities. The applicant’s claim was accordingly rejected.

On 23 November 2007 the Regional Court upheld the abovementioned decision on appeal.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in 1966 and lives in Nizhnevartovsk, in the Khanty-Mansiyisk Region.

At the material time the applicant leased a flat in a block of flats in Noyabrsk (a town in the Yamalo-Nenetskiy Region). On 16 February 2006 at about 6 a.m. the applicant’s neighbours called the police. They informed the police of loud screams that they had heard from the applicant’s flat. Two police officers arrived at 6 a.m. and took the applicant to the Noyabrsk police station (“the police station”).

According to a logbook of people taken to the police station, the applicant arrived at the station at 7.05 a.m. and was handed over to an investigator “for further proceedings” at 7.55 a.m. on 16 February 2006. According to the applicant, the investigator, Ch., repeatedly questioned him as “a witness to the incident”.

According to the applicant, he was released on 16 February 2006 at about 11 p.m. and summoned to appear before the investigator the next day at 2 p.m. The applicant alleges that he was under the constant supervision of police officers between 6 a.m. and 11 p.m. on 16 February 2006 and was not allowed to leave the police station.

In 2011 the applicant sued the police station, claiming compensation for unrecorded detention.

On 5 August 2011 the Noyabrsk Town Court of the YamaloNenetskiy Region dismissed his claim.

On 5 September 2011 the applicant lodged an appeal against that decision. However, he was required to correct some errors in his claim.

On 28 September 2011 the Noyabrsk Town Court returned the claim to the applicant, stating that he had failed to correct the errors in his claim.

The applicant did not lodge an appeal against that decision.

On 17 February 2006 the investigator opened a criminal investigation into an offence of rape. The applicant formally became a suspect. On the same day the investigator arrested him and drew up formal records of his arrest. Between 18 February 2006 and 22 June 2006 the applicant was kept in the temporary detention centre of the Noyabrsk police station (“the IVS”).

The applicant provided the following description of the conditions in the IVS. He was held in cell no. 9 measuring 15 sq. m. The cell housed between nine and twelve inmates who took it in turns to sleep. The overcrowding caused a lot of conflict and tension between the inmates.

The window of the cell measured 0.6 m by 0.3 m and was covered with metal blinds blocking access to daylight and fresh air. There was no ventilation in the cell. The lack of air was aggravated by the detainees’ smoking.

There was no sink with a tap or toilet. The inmates had to use a bucket, which smelled very bad and was only emptied once a day in the morning. The bucket was not separated from the main area. The dining table was only 1.5 m away from the bucket. The detainees were provided with meals once a day. The quality of the food was completely unsatisfactory. There was not enough drinking water for everybody.

The detainees were allowed to take a shower once every ten days for fifteen minutes, and there were three shower heads for nine to ten people. The drains in the shower room did not work, and the water temperature was not adjustable. There was no changing room, the detainees had to undress before the shower and dress after it in a corridor. Only twice during the applicant’s detention in the IVS was he allowed to have outdoor exercise.

The ceiling of the cell was covered with mould. The cells were infested with bugs, lice, cockroaches and rats, and the administration did nothing to disinfect the facility.

It was cold in winter (there was a maximum temperature of 6˚C) and hot in summer (a maximum temperature of 45˚C).

The detainees were provided with neither bedding nor items of personal hygiene. They were also unable to buy them in the IVS. Mattresses had tar stains, and there was no possibility to wash clothes. Inmates were not provided with newspapers, reading material, or any information concerning their rights. The applicant was held in a cell with persistent offenders and ill persons.

On 15 June 2006 the Noyabrsk Town Court convicted the applicant of rape and sentenced him to six and a half years’ imprisonment in a “strictregime correctional colony”.

On 28 August 2006 the Yamalo-Nenetskiy Regional Court upheld the judgment of 15 June 2006 on appeal. Between 29 September 2006 and 16 June 2011 the applicant served his sentence in correctional colony IK-8 located in Labytnangi, in the Yamalo-Nenetskiy Region.

The applicant provided the following description of the conditions of his detention in the correctional colony, and submitted a detailed plan of the accommodation, with a description. The dormitory where he lived consisted of two sections measuring 132 and 144 sq. m respectively and accommodated 230 to 250 individuals.

The sanitary facilities were extremely busy: all the detainees had to use five taps and four toilets. There was not enough water. Water was only available from 5 a.m. to 7 a.m. and from 8 p.m. to 11 p.m. While there was no running water, the detainees had two water tanks at their disposal – one which contained drinking water and the other which contained water which was not drinkable. Per day, they could use 50 litres of drinking water and 300 litres of water which was not drinkable. This was clearly not enough, since the water in the tanks would be used up by about 10 a.m. The toilets smelled extremely unpleasant, since there was no water to flush them after 10 a.m.

The floor of the dormitory was based on a frame made of used railway sleepers impregnated with creosote. It smelled so strongly that the detainees had to leave the windows open permanently, even in winter, to get rid of the smell. The smell caused headaches and the open windows caused colds. The roof of the dormitory had at least eighteen visible leaks and there would be puddles on the floor if it rained. The dining room in the dormitory measured 32 sq. m and was equipped with one electric stove with four burners, one refrigerator and four sockets. The dormitory was infested with rats.

The detainees were allowed to take a shower once a week for fifteen minutes, and there were ten shower heads for up to forty people. Just before the applicant’s release, four extra shower heads were installed, but the time for washing was reduced to ten minutes.

According to the applicant, in 2008 the detainees were provided with winter clothes only at the end of November when the temperature dropped below minus 28˚C.

As regards the conditions of the applicant’s detention in IK-8 in Labytnangi, the Government submitted information which can be summarised as follows:

They also submitted that the toilets had been separated from the canteen and dormitory, and the units had been naturally ventilated and regularly disinfected. No failures in the water or electrical supply system had been identified. Detainees had taken showers weekly and had been provided with food and clothes “in accordance with the established schedule”.

On an unspecified date in 2010, while serving his sentence in the correctional colony, the applicant brought civil proceedings against the Noyabrsk police station and the Russian Ministry of Finance, seeking compensation in respect of non-pecuniary damage resulting from the poor conditions of his detention in the IVS in 2006. The applicant was not represented in those proceedings.

On 23 July 2010 the Noyabrskiy Town Court dismissed the applicant’s claim in his absence.

On 30 August 2010 the applicant lodged an appeal against the decision of 23 July 2010. He complained in particular that he had not been allowed to personally address the court, despite a request he had made to this effect, and he asked the appeal court to arrange for him to attend the appeal hearing.

On 25 November 2010 the Yamalo-Nenetskiy Regional Court upheld the decision of 23 July 2010 on appeal. It stated that the law did not make provision for transporting detainees to a civil court hearing.


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award

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

The applicants were each targeted in undercover operations conducted by the police in the form of a test purchase of drugs under sections 7 and 8 of the Operational-Search Activities Act of 12 August 1995 (no. 144-FZ). Those operations led to their criminal conviction for drug dealing.

The facts of each individual criminal case, as submitted by the parties, are summarised below. The applicants disagreed with the Government on the underlying causes and the circumstances leading to the test purchases, and where this is so both versions are given. As regards the factual details of the covert operations, it is common ground that the applicants knowingly procured drugs in the course of the test purchases.

The applicants are brothers. At the time of arrest they were vendors working in a video- and audio-rental kiosk. At the time of lodging their applications they were serving prison sentences in correctional colonies following their criminal conviction in respect of which they lodged these applications.

On an unspecified date the Federal Service for Drug Control (ФСKН, the drugs police) received information from an undisclosed source that the applicants were involved in drug dealing. On that basis the police decided that an undercover policeman, X, would infiltrate the group and carry out test purchases of cannabis from the applicants.

It is undisputed by the parties that X approached Ivan Lagutin through an acquaintance and asked him whether he could supply him with cannabis. The parties differ as to whether Ivan Lagutin agreed to do so. According to the Government, which relied on X’s testimony, Ivan Lagutin had readily agreed to supply him with cannabis. According to the applicants, he had replied that he did not have any but could ask his dealer who occasionally passed by his kiosk.

The applicants contended that after that conversation X had called Ivan Lagutin repeatedly to ask if he had cannabis. Ivan Lagutin thought that X was a drug user, and being a cannabis smoker himself he decided to help him. When the dealer eventually came to the kiosk Ivan Lagutin asked him to supply cannabis for X as well, and when the dealer agreed the applicant called X back to tell him. He bought the cannabis for X with money borrowed from the kiosk cash till which he refunded after X had paid him back. On that occasion it was Viktor Lagutin who had passed the parcel to X at his brother’s request. After that, X had continued to call Ivan Lagutin regularly. In total Ivan Lagutin had bought cannabis for X on three occasions, all of which had been test purchases.

The official records of the three test purchases contain the following account. On 16 October 2007 undercover policeman X was assigned to carry out the first test purchase of cannabis from the applicants. He was given 350 Russian roubles (RUB) in banknotes that had been photocopied. He met the applicants at the kiosk, they went inside and he purchased 7.5 grams of cannabis. Ivan Lagutin took the money and Viktor Lagutin handed him a paper bag with the drug inside. He asked the applicants if he could come back for more in future, and they confirmed that he could. Afterwards, he handed the cannabis to the police. The second test purchase took place on 1 November 2007, allegedly following a phone call from Ivan Lagutin telling X that he had obtained the cannabis. After being given RUB 500 that had been photocopied X called Ivan Lagutin to arrange a meeting, picked him up in town and drove to the kiosk where he purchased 7.8 grams of cannabis wrapped in paper. Afterwards, he handed the packet of cannabis to the police. The third test purchase took place on 23 November 2007, this time for RUB 1,000. X pre-arranged it by telephone, then left the money at the kiosk with another vendor and came back later to get the drugs from Ivan Lagutin, who gave him 10 grams of cannabis which X then handed over to the police.

The telephone communications between X and the applicants were not recorded or intercepted.

On 14 December 2007 the police searched the kiosk and seized 7.6 grams of cannabis wrapped in newspaper and a cut-off plastic bottle with paper foil inside, which was allegedly a device for smoking cannabis. The applicants were arrested and charged with procuring large quantities of narcotic drugs, acting in conspiracy, and illegally possessing drugs.

The case was examined at first instance by the Promyshlennyy District Court of Stavropol. The applicants pleaded guilty in part, but claimed that they had committed the crime as a result of police entrapment. They pointed out that there had been no evidence of their prior involvement in drug dealing. They maintained that Ivan Lagutin had only exceptionally agreed to assist X in acquiring the drugs because he believed that he was a cannabis smoker like himself. As regards Viktor Lagutin, he had not been directly involved in the transactions with X, although he knew that his brother had occasionally smoked cannabis.

The court cross-examined X, whose identity had been disclosed, and the witnesses, who gave a detailed account of the test purchases. The court also examined the video recordings of the first two test purchases.

X testified that he had infiltrated the group in order to verify operational information received by the drugs police concerning the supplying of cannabis. He had approached the applicant at a party asking if it was possible to obtain any, and the applicant had agreed to help. Defence counsel asked whether X had been aware that the law prohibited incitement to commit criminal offences, but the judge rejected the question as irrelevant.

The court also cross-examined S, an operations officer who had been in charge of the undercover operation. He testified that the police had received information from an undisclosed source that the applicants were selling drugs. He testified that the information had not come from X, but refused to provide any details on the grounds that it was classified information. He testified that X had been instructed to infiltrate the group but had not been obliged to disclose his methods of undercover work and had not reported back to his superior about the manner of his communications with the applicants prior to, and between, the test purchases. In particular, he did not know and was not interested in how X had come to an agreement with the applicants about supplying the drugs. He did not know whether the transaction had been initiated by X or one of the applicants.

On 1 October 2008 the Promyshlennyy District Court of Stavropol convicted the applicants as charged and sentenced Ivan Lagutin to six years’ and Viktor Lagutin to five years’ imprisonment. The applicants appealed, pleading, in particular, police entrapment and alleging that the results of the test purchases had to be excluded from the body of evidence as unlawfully obtained. They contested the allegation that the police had had information indicating that they had previously sold drugs.

On 26 November 2008 the Stavropol Regional Court dismissed the appeal, without expressly addressing the allegation of entrapment, and upheld the first-instance judgment.

On 28 January 2011 the Deputy Prosecutor of the Stavropol Region lodged a request for supervisory review of the case on the grounds that the operational-search activity against the applicants had ceased to be lawful after the first test purchase, which had yielded sufficient proof of their criminal activity. The Deputy Prosecutor considered that the police should have instituted criminal proceedings immediately after the episode of 16 October 2007 and that therefore the second and third episodes constituted entrapment contrary to the Operational-Search Activities Act. Those episodes should therefore be excluded from the grounds of their conviction.

On 16 February 2011 a judge of the Stavropol Regional Court dismissed the prosecutor’s request and refused to reopen the criminal proceedings in the applicants’ case, having dismissed the arguments concerning entrapment.

On an unidentified date the Deputy Prosecutor General of the Russian Federation lodged a request for supervisory review of the case on essentially the same grounds.

On 26 January 2012 the Presidium of the Stavropol Regional Court granted the request. It found that the first test purchase had been carried out on the basis of operational information that two persons, Ivan and Viktor Lagutin, had been selling cannabis. During the test purchase that information had been confirmed and at the same time the criminal offence had been committed, which was sufficient to bring charges. There had been no need for any further test purchases as these had not been aimed at investigating the chain of supply of drugs. The second and third episodes were therefore to be considered as intentional incitement to commit the drug offences. The evidence relating to those two episodes was declared inadmissible and excluded from the grounds of the applicants’ conviction. Ivan Lagutin’s sentence was commuted to five years and two months’ imprisonment, and Viktor Lagutin’s sentence remained unchanged.

The applicant is a drug user. He claims to have become a heroin addict in prison where he was serving his first sentence. At the time of his arrest he was unemployed. At the time of lodging his application he was serving his third prison sentence in a correctional colony following his criminal conviction in respect of which he lodged this application.

According to the official version, the drugs police received operational information that the applicant was selling drugs. The Government claimed that the drugs police had been keeping a file on the applicant’s involvement in drug dealing for a year and a half prior to the test purchase. On 18 November 2005 the interception of his mobile phone was authorised by a court. On the basis of that preliminary information, on 25 November 2005 the police decided to carry out a test purchase of heroin from the applicant. It was carried out by a police informant, “Ivanov”, whose identity remained undisclosed in the ensuing proceedings. During the test purchase the applicant sold four packets of heroin and a syringe with heroin to “Ivanov”, who paid him RUB 5,000.

According to the applicant, he knew “Ivanov” as a fellow drug addict. On 25 November 2005 “Ivanov” called him to tell that he had RUB 1,000 and was looking to buy heroin with that amount. The applicant told him that his dealer was selling only 5-gram doses for RUB 5,000, that he had only RUB 700 and was suffering from withdrawal symptoms, and suggested sharing a dose between them. “Ivanov” called him back later and told him that he had found RUB 5,000, and they agreed to share the purchase. “Ivanov” brought the money to the applicant’s flat and the applicant asked him to wait outside to avoid crossing with the dealer. When the dealer brought the drug the applicant paid him with “Ivanov’s” cash. He then reimbursed “Ivanov” RUB 700 and they consumed part of the heroin together. “Ivanov” took the remaining heroin away with him.

After the test purchase a search was carried out at the applicant’s flat. No money was found, but the police seized an empty sachet with traces of heroin, a piece of cotton wool soaked in heroin and an empty syringe, also with traces of heroin. The applicant was charged with drug trafficking.

The Moskovskiy District Court of Cheboksary examined the case at first instance. The applicant denied having been involved in drug dealing. He pleaded guilty to having acquired heroin on behalf of “Ivanov” but explained that he had only done so because of the arrangement to consume it together, as he was suffering from withdrawal symptoms. He alleged that he had committed the offence as a result of entrapment.

“Ivanov” was called as a witness and examined during the trial, although his identity was kept secret. He testified that he had called the applicant asking him to supply him with heroin and that he had purchased four sachets of the drug at the applicant’s flat. When cross-examined, “Ivanov” refused to answer the following questions: whether he knew the applicant; whether he knew the applicant’s heroin dealer; whether he knew that the dealer was coming after he had left the money with the applicant; whether it was his initiative to conduct a test purchase from the applicant; whether he had previously bought drugs from the applicant; and whether he had previously been arrested by the drugs police.

On 5 May 2006 the first-instance court found the applicant guilty of selling drugs and sentenced him to six years’ imprisonment, having found him to be a serial offender. In its judgment the court relied, among other evidence, on the transcripts of the applicant’s intercepted telephone calls which had taken place between him and “Ivanov” during the transaction on 25 November 2005. It noted that the audio recording had confirmed receipt of the money and that the applicant had given drugs to the informant.

The applicant appealed on the grounds, inter alia, that he had been convicted of an offence committed as a result of police entrapment.

On 6 July 2006 the Supreme Court of the Republic of Chuvashiya dismissed the applicant’s appeal, upholding, in substance, the first-instance judgment. At the same time it reclassified the offence as attempted sale, having reduced the sentence to five years and eleven months’ imprisonment.

On 18 August 2006 the Presidium of the Supreme Court of the Republic of Chuvashiya examined a request by the applicant for supervisory review and decided that the applicant was not a serial offender. It reduced the applicant’s sentence to five years and nine months’ imprisonment and upheld the remainder of the earlier judicial decisions.

The applicant is a drug user. At the time of her arrest she was unemployed. At the time of lodging her application she was serving a prison sentence in a correctional colony following her criminal conviction in respect of which she lodged this application.

On the night of 6 to 7 October 2007 the drugs police conducted two test purchases whereby the applicant first procured 5 grams of cannabis for police informant “Smirnov” and about one and a half hours later procured 5.8 grams of cannabis for an undercover police officer, “Zhirkov”. The parties differ as to the reasons for ordering the test purchases and as to the circumstances in which the applicant had agreed to procure the drugs. According to the Government, the drugs police had been in possession of operational information from an undisclosed but reliable source that the applicant was trafficking in cannabis. According to the applicant, the police had had no preliminary information about her alleged criminal activity and had ordered the test purchase without a valid reason. She claimed that she had procured drugs for the undercover agents as a result of entrapment.

On the basis of the test purchases the applicant was charged with selling drugs.

The Sovetskiy District Court of Krasnodar examined the case at first instance. At the trial the policemen and the witnesses testified regarding the test purchases. They all pointed out that during the test purchase the applicant had been in a state of narcotic intoxication. A forensic report also confirmed that at the time of arrest the applicant had been under the influence of opiates.

The court asked the prosecutor if the investigating authorities had had any classified information incriminating the applicant. The prosecutor replied that all confidential material relating to the conduct of the test purchase had been disclosed. However, when the court subsequently examined the police officers they testified that, prior to the test purchase, the police had received operational information that the applicant was selling cannabis at RUB 350 per box, but they could not name the source or expand on that information at the hearing because the information remained confidential.

“Smirnov” and “Zhirkov” were called as witnesses and were examined during the trial, although their identity was kept secret.

“Zhirkov” testified that he had met the applicant in September 2007 and that she had immediately offered to purchase cannabis for him. He had called her back in October 2007 and asked her to supply him with cannabis. She had sold him two sachets for RUB 800 during the test purchase, and he had paid her with banknotes marked with a UV marker pen. He denied having been acquainted with “Smirnov” and also denied the involvement of any intermediary between himself and the applicant.

“Smirnov” testified that he was an occasional cannabis smoker and that he had collaborated with the drugs police. He had met the applicant in autumn 2007 and she had asked him if he was taking drugs. He stated that the applicant had offered to buy him drugs but could not remember in what circumstances. He had then reported on her to the drugs police, who had decided to carry out a test purchase in which he would act as a buyer. The transaction had taken place inside the entrance to a block of flats, and the applicant had handed him two sachets of cannabis. When cross-examined, he denied having consumed drugs with the applicant during the test purchase.

The applicant alleged that she was a cannabis smoker but had never been involved in drug dealing. She pleaded guilty to having acquired cannabis on behalf of “Smirnov” but explained that she had only done so exceptionally and as result of entrapment. She testified that she had met “Smirnov” when she was renting a room in his flat. She knew that he was a drug user and they had once smoked cannabis together. On one occasion he had told her that he wanted to overcome his addiction to strong drugs and needed some “weed” to ease the withdrawal pains. The applicant could see that he was suffering and out of compassion had agreed to buy cannabis for him from her dealer. On 6 October 2007 she had met “Smirnov” to take the money before going to the dealer, and he had then introduced her to “Zhirkov”, who had also asked for cannabis and complained of withdrawal symptoms. The applicant replied that she could find cannabis for “Smirnov”, but not for “Zhirkov”. Later on the same day she had met “Smirnov” to give him the cannabis that she had purchased for him. They had entered a block of flats so that she could pass it over to him and then “Smirnov” had produced a syringe of heroin and offered it to the applicant. She had accepted, although she was not a heroin user, and “Smirnov” had injected her with it. He had then told her to wait for “Zhirkov” and to pass part of the cannabis to him. Feeling disorientated from the effects of the drug, she had done as she was told and when “Zhirkov” came she had passed him the cannabis and then been arrested.

On 5 March 2008 the first-instance court found the applicant guilty of selling drugs and sentenced her to five years and six months’ imprisonment. The applicant appealed, inter alia, on the grounds that she had committed the offence as a result of police entrapment.

On 9 April 2008 the Krasnodar Regional Court dismissed the applicant’s appeal, having found, in particular, that there had been sufficient evidence that the applicant had procured drugs on the night of 6 to 7 October 2007. It noted that the police officers had testified that they had received preliminary information that the applicant had been selling drugs. It also found that the police had acted in accordance with the law and therefore rejected the defence of entrapment. It upheld the first-instance judgment.

The applicant is a drug user. At the time of his arrest he was working for his father’s company. At the time of lodging his application he was serving a prison sentence in a correctional colony following his criminal conviction in respect of which he lodged this application.

On an unspecified date the Kaluga regional office of the drugs police received information from an undisclosed source that the applicant was involved in drug dealing. On that basis the police carried out a test purchase of MDMA pills, commonly known as “ecstasy”, from the applicant. The test purchase was carried out by an undercover police officer acting under the pseudonym of “Azamatov”.

According to the Government, “Azamatov” had infiltrated a group of people close to the applicant, all of whom were dealing in and/or using drugs, pretending that he was a drug user himself. The first time he met the applicant and his acquaintance, Ms S., they had told him that they were MDMA users and that they could help if he wanted to buy some, the price of one MDMA pill being RUB 600. They gave him their cell phone numbers.

According to the applicant, he was approached by an acquaintance, “Timagin”, with a request to buy some “ecstasy” for him. He knew that Ms S had a contact, a drug dealer, and he asked her to help him purchase four MDMA pills for his friend. “Timagin” picked him up in a car, with another person, “Azamatov”, who was supposedly in need of the drug. They then met Ms S. and she took them to a night club where she met the dealer and purchased four pills for “Azamatov” with the latter’s money (RUB 2,400).

The official records of the three test purchases contain the following account. On 2 April 2007 the police officer “Azamatov” was assigned to carry out the first test purchase of the MDMA pills from the applicant. “Azamatov” was given RUB 2,400. The banknote numbers had been noted, but they were not otherwise marked or photocopied. He met the applicant and Ms S. at around midnight the same day, handed the applicant RUB 2,400 and they drove together to a night club where Ms S. left them for a few minutes and returned with a packet containing four pills. “Azamatov” came back to the police station and handed in the pills. It was later established by an expert that only one of the four pills contained an active MDMA ingredient, while the other three did not contain any narcotic substances.

The telephone communications between “Azamatov”, the applicant and Ms S. prior to the test purchase were not recorded or intercepted, but an audio recording was made in the course of the transaction, starting at 11.30 p.m. on 2 April 2007.

On 12 April 2007 the President of the Kaluga Regional Court authorised the tapping of the applicant’s and Ms S.’s telephones for up to three months. Several recordings were made, the transcripts of which were appended to the case file, but they were not used as evidence during the trial. Transcripts made available to the Court included four conversations during which the applicant spoke about drugs, in jargon. It transpires from those conversations that he and his correspondents lived in constant search of drugs, shared information about their sources and purchased them together from whatever dealer they could find.

On 6 June 2007 “Azamatov” called the applicant and asked him to purchase drugs for him. The applicant said that he could not help him, but they agreed to meet. When they met the applicant was arrested and charged with procuring large quantities of narcotic drugs on 2 April 2007 in conspiracy with Ms S.

The case was examined at first instance by the Borovskiy District Court of Kaluga Region. The applicant and Ms S. pleaded guilty in part but claimed that the crime they had committed was the result of police entrapment. The applicant pointed out, in particular, that there was no evidence of his prior involvement in drug dealing. He maintained that he had only agreed to assist “Timagin” in acquiring drugs because he had believed that he was an occasional “ecstasy” user, like himself. He had not intended to purchase it for “Azamatov”, but had ended up doing so because of “Timagin’s” manipulation.

The court cross-examined “Azamatov” under a procedure whereby his identity was concealed from the participants in the proceedings, except the judge. He testified that his infiltration and the covert operation had been ordered because of the information about the applicant and Ms S. received by the police, but he refused to name the source of that information. He stated that the applicant and Ms S. had told him that they could sell him MDMA pills, but he had never bought any from them prior to the test purchase and had never seen either of them selling drugs to anyone. The court also cross-examined another police officer who had taken part in the test purchase and the witnesses in the investigation who had given details of the test purchase. The court also examined extracts of the recordings made during the test purchases, which were about five minutes long.

Ms S. testified at the trial that the applicant had called her at about 10 p.m. on 2 April 2007 and asked her to find some drugs for his friend, who was “unwell”. She had refused to begin with, but in the end he had persuaded her to help. She had called her dealer and found out that he had MDMA pills available. She had called the applicant back and confirmed that they could go and get the pills, and they had driven together to the night club to meet up with the dealer. There had been four people in the car: the applicant, herself, “Azamatov” and “Timagin”. Before she left the car the applicant had given her RUB 2,400 and she had purchased the packet of four pills with that money. She had then returned to the car and handed the packet to “Azamatov”.

The applicant’s defence counsel referred in oral pleadings to the guidelines adopted on 15 June 2006 by the Plenary Supreme Court of the Russian Federation on jurisprudence in criminal cases involving narcotic drugs or psychotropic, strong or toxic substances. He claimed, in particular, that it had not been established that the applicant had intended to engage in drug trafficking prior to being contacted by the undercover agent, or that he had carried out any preparatory steps to the commission of the offence.

On 7 February 2008 the Borovskiy District Court of Kaluga Region convicted the applicant as charged and sentenced him to five years and six months’ imprisonment.

The applicant appealed. He reiterated his plea of entrapment and claimed, inter alia, that the police had no information suggesting that he had previously sold drugs. He also complained that the authorities had not made any attempts to find and question “Timagin”, who had played a key role in the test purchase and could have cast light on the role of the police in the offence he had committed. He claimed that the first-instance court had failed to follow the guidelines adopted by the Plenary Supreme Court of the Russian Federation on 15 June 2006.

On 1 July 2008 the Kaluga Regional Court upheld the first-instance judgment. It did not address the plea of entrapment, having limited itself to the finding that the applicant’s conviction had been lawful and well founded. It also noted that the undercover operation had been based on preliminary information indicating that the applicant was involved in drug dealing.


No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Syria);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life)

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

The applicant, M.E., is a stateless Palestinian. It appears that he was born in Syria in 1982. Currently he lives in Sweden.

The applicant entered Denmark with his stepmother and two siblings in February 1990, when he was seven years old. He was granted asylum in October 1993, the same year his father entered Denmark. The latter was granted a residence permit in 1994. The applicant’s mother, two half-siblings and his paternal uncles live in Syria.

It appears that in 1997, when the applicant was fifteen years old, he returned to Syria for six months and worked as a painter. According to the Danish Central Office of Civil Registration, he stayed in Syria from 20 December 1998 to 22 February 1999, but that appears to be disputed by the applicant.

He returned to Syria for a month in November 2003.

In Denmark, the applicant married and divorced twice. From each marriage he had a child, a son born in August 2001 and a daughter born in March 2004.

The applicant has a criminal record. Among other things, in February 1998 he was convicted of assault, for which he was given a suspended sentence of twenty days’ imprisonment. In August 1998 he was convicted of making threats against witnesses and possession of a weapon, for which he was given a suspended sentenced of five months’ imprisonment. In 2002 he was sentenced to thirty days’ imprisonment for theft and human trafficking.

On 17 December 2004 the applicant was arrested and charged with drugs offences, and by a judgment of 26 January 2006 the High Court of Eastern Denmark (Østre Landsret, henceforth “the High Court”) convicted the applicant of twenty-six counts of drugs offences relating to 2.68 kg of heroin and cocaine, committed throughout 2004. The High Court considered that the applicant had a leading role and sentenced him to seven years’ imprisonment. A profit of approximately 400,000 Danish kroner (DKK) (equal to approximately 53,700 euros (EUR)) was confiscated. In addition, he was expelled from Denmark with a ban on returning.

When issuing the expulsion order, the High Court had regard, inter alia, to an opinion which had been obtained from the Immigration Board (Udlændingestyrelsen). The latter had held an interview with the applicant about his personal situation and ties to Denmark and Syria, which included information about schooling, language skills, work, family etc. Before the Immigration Service the applicant stated that he speaks and understands Arabic. He does not read or write Arabic. He also stated that he speaks, reads and writes Danish well. However, an interpreter was used in connection with the interview regarding his personal circumstances which was held on 26 April 2005. The Immigration Board also considered the applicant’s submission that he feared being returned to Syria because he had not sorted out the issue of compulsory military service and because he feared being punished by the Syrian authorities if they found out that he had been sentenced for drugs offences in Denmark. The Immigration Board referred to a consultation response of 9 February 2004 from the Ministry of Foreign Affairs, which included an expert opinion of 6 January 2004 obtained by a named professor and former dean at the Faculty of Law of Damascus University, concerning the principle of ne bis in idem set out in Article 27 of the Syrian Penal Code. That provision stated that no Syrian or foreigner will be charged in Syria with an offence on Syrian territory, if he has been convicted and has served his sentence abroad or if the punishment has lapsed owing to the limitation legislation of the relevant country or if he has been pardoned. According to Article 28 of the Syrian Penal Code, a judgment delivered abroad did not prevent prosecution for an offence falling under Article 19, which applied to any Syrian or foreign national who breached the law or committed a serious offence outside Syrian territory harming national security or who forged Government stamps or forged or counterfeited Syrian or foreign bank notes or debt instruments, which were lawful means of payment or in general circulation in Syria.

The High Court did not find that an expulsion order would contravene Article 8 of the Convention. It stated as follows:

“When balancing the considerations mentioned in section 26, subsection 1 of the Aliens Act and the serious drugs offences committed by the applicant in the form of organizing the dealing in hard drugs of which the applicant has been found guilty, the High Court takes into account on the one hand that the applicant must be deemed poorly integrated in Danish society: he never completed lower secondary school and has not at all participated in the labour market. [The applicant] has also previously been convicted of assault, making threats against witnesses, human trafficking and theft. The High Court further emphasizes that [the applicant] speaks Arabic and has retained certain ties with Syria, where his mother, two half-siblings and other family members are living, and [the applicant] has also stayed in Syria several times, including a period of six months in 1997 when he worked as a painter.

Factors weighing against expulsion are that [the applicant] entered Denmark at the age of seven and has now lawfully resided in Denmark for about fifteen years and has thus had his formative years and schooling here. It must also be taken into account that [the applicant] is married to and cohabits with a Danish national, a former stateless Palestinian, with whom he has a daughter of just under two years. In addition, [the applicant] has been married by an Islamic ceremony to another woman of Lebanese origin living in Denmark, now a Danish national, with whom he has a son of four and a half years. [The applicant] has visiting rights to his son, but in reality has only sporadic contact with his son.

In view of the gravity of the offences committed and the sentence imposed, the High Court finds on an overall assessment that none of the considerations mentioned in section 26, subsection 1, of the Aliens Act constitutes a decisive argument against expulsion, nor can expulsion of [the applicant] be considered contrary to the considerations of proportionality following from Article 8 of the Convention...”

On appeal, on 25 August 2006, the judgment was upheld by the Supreme Court (Højesteret), referring to the reasoning by the High Court.

In February 2009, by virtue of section 31 of the Aliens Act, and since the applicant was nearing the end of his sentence, the police requested the relevant immigration authorities to determine whether, and in the affirmative, to which country the applicant could be returned. The applicant was interviewed and anew he objected to the expulsion. He maintained, inter alia, that although originally he had stated that he was born in Syria, where he was also registered, in reality he was born in Lebanon. The applicant did not wish to return to Syria, as he did not wish to perform his military service there. He also feared being returned to Syria due to his father’s political past there. Moreover, he was in conflict with a Syrian family, because he had had an affair with their daughter in 1999 and she had subsequently falsely accused him of rape. Finally, he was afraid of being sentenced again in Syria for the drugs crime he had committed in Denmark. He added that in December 2007 he had found a new girlfriend, who visited him in prison every week. The applicant said that he would agree to being sent to Germany, where he had an aunt. He had nine siblings in Denmark and two in Sweden.

By decision of 10 August 2009, the Aliens Service (Udlændingeservice), the former Immigration Board, found that the applicant could be expelled to either Syria or Lebanon. It took into account that the applicant had maintained all along that he was born in Syria, that in the public register in Syria he was recorded as a Palestinian from Homs in Syria, and that he had relied on his fear of being called up for military service there. The fact that, during an interview on 25 May 2009, he had stated that he was born in Lebanon and produced a copy of a birth certificate, could not lead to another assessment. The Aliens Service did not find the applicant’s story about the girl in Syria credible. It noted that he had not provided any information in this respect until the interview held on 25 May 2009, and found it unlikely that the girl’s family would persecute him since allegedly he had ended the relationship in 1999. In addition it found that a related document produced by the applicant, allegedly issued by the Syrian authorities, was not authentic. It did not find credible either the applicant’s allegation that he could not return to Syria because of his father’s political activities, notably since the applicant could not give any details about those activities. Finally, the Aliens Service did not find that the fact that the applicant had not performed compulsory military service in Syria or that he had been convicted for a drugs offence in Denmark could bar his expulsion. With regard to the latter, it referred to the consultation response from the Ministry of Foreign Affairs of 4 February 2004 (see paragraph 12).

The applicant appealed against the decision to the Refugee Appeals Board (Flygtningenævnet), before which he was represented by a lawyer, heard in person and able to submit observations. By decision of 2 December 2009, the Refugee Appeals Board upheld the Aliens Service’s decision, but found that the applicant could be expelled only to Syria, the country where he had lived at least from 1983 to 1988 and which he had visited from December 1998 to February 1999 and again in 2003.

In the meantime, on 16 August 2009, in accordance with the provisions of section 50 of the Aliens Act (Udlændingeloven), the applicant had instituted proceedings before the District Court in Svendborg (Retten i Svendborg) claiming that there had been material changes in his circumstances, for which reason he requested the court to review the expulsion order. The applicant relied on Article 8 of the Convention and referred in particular to his two children in Denmark and to his new girlfriend, who had a child from a previous relationship, born in June 2008. Before the District Court the latter stated that she would follow the applicant to Syria.

On 29 March 2010 the District Court rejected the applicant’s request as it did not find that his situation had changed to such an extent that there was any reason to revoke the expulsion order. Upon appeal, the applicant submitted that he had married his girlfriend according to Arabic tradition, that she was expecting their child, and that she no longer wanted to follow him to Syria.

On 26 May 2010 the High Court upheld the District Court’s decision and stated:

“For the reasons stated by the District Court and because the [applicant’s] present girlfriend, with whom he is married by an Islamic ceremony, no longer wants to accompany him to Syria [even though] she has recently become pregnant and is expecting the [applicant’s] child, the outcome cannot be different. In this regard the High Court has emphasised that the parties’ relationship commenced after the Supreme Court’s judgment of 25 August 2006, for which reason the parties are considered not to have such justified expectations of being able to live together in Denmark that the expulsion can be revoked.”

Leave to appeal to the Supreme Court was refused on 19 August 2010.

The applicant was deported to Syria on 3 November 2010. According to a report procured by the Danish police, the applicant’s father and uncle had travelled to Syria beforehand to meet the applicant upon arrival. Three police officers accompanied the applicant on the plane. They submitted the applicant’s travel documents and a document translated into Arabic, stating that the applicant had fully served his sentence in Denmark, to the security staff on board and the immigration authorities at the airport in Damascus.

Before being deported, on 8 October 2010, the applicant lodged a complaint with the European Court of Human Rights and requested the application of an interim measure pursuant to Rule 39 of the Rules of Court.

Since he only relied on Article 8 of the Convention and invoked his separation from his two children, his new wife, her child from a previous marriage, and their future child, his request for a Rule 39 indication was not submitted to the President for a decision, of which fact he and his representative were informed in a letter from the Registry of 12 October 2010.

Subsequently, the applicant’s representative informed the Court that upon arrival at Damascus airport, the applicant had allegedly been detained and placed in different prisons, interrogated, notably about his conviction in Denmark, whether he was addicted to drugs and whether there were persons involved in Syria. During this time, the applicant had regularly been subjected to torture.

On 4 December 2010, he was allegedly released in order to commence thirty months’ military service in Homs, but he was exempted after one month because he suffered from heart problems.

Allegedly, he was also summoned to appear before the court in Homs to explain about his conviction in Denmark. It appears that that case has been discontinued.

The applicant’s wife and their child went to Syria to visit him.

On 12 September 2011, the applicant’s representative informed the Court that the applicant had fled Syria and entered Greece, where he was detained.

On 21 November 2011, the applicant’s representative informed the Court that the applicant had entered Sweden and requested asylum there.

The applicant was granted asylum in Sweden some time during the summer of 2013.


Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić

The applicant was born in 1961 and lives in Adana.

On 16 February 2006 a gathering was held in Adana on the anniversary of the arrest of Abdullah Öcalan, the leader of the PKK (Kurdistan Workers’ Party), an illegal armed organisation. The protesters gathered in front of the building of the Adana branch of the Democratic Society Party (Demokratik Toplum Partisi) (DTP), where a press statement was read out. Being a member of the DTP, the applicant participated in the gathering.

Subsequently, clashes occurred between police officers and some demonstrators who were attempting to block the traffic. According to police reports, two police officers were injured as a result of objects thrown from the DTP building. The police then entered the DTP building and arrested 223 people, including the applicant. The next day, the applicant was detained on remand.

On 10 March 2006 the Adana public prosecutor charged the applicant and sixteen other people with membership of the PKK under Articles 220 § 6 and 314 of the Criminal Code. The prosecutor alleged that the accused had participated in the public gathering in question in response to calls made by the PKK and had resisted the police officers, and that they had therefore acted on behalf of the PKK.

On 5 May 2006 the applicant was released pending trial.

On 10 September 2008 the Adana Assize Court convicted the applicant under section 7(2) of the Prevention of Terrorism Act (Law no. 3713). The assize court did not find it established that the applicant had attended the reading out of the press statement in response to calls made by the PKK or that she had injured any police officers. It therefore concluded that the applicant could not be convicted of membership of the PKK or resistance to the police. The court nonetheless considered that on 16 February 2006 the applicant had gone to the DTP building with a view to disseminating propaganda in support of the PKK and that she should therefore be convicted under section 7(2) of Law no. 3713. The applicant was sentenced to ten months’ imprisonment.

Taking into account the applicant’s good behaviour during the trial and the absence of any previous criminal record, the court suspended the pronouncement of her conviction on condition that she did not commit another intentional offence for a period of five years, under Article 231 of the Code of Criminal Procedure (hükmün açıklanmasının geri bırakılması).

On 20 November 2008 the court dismissed an objection lodged by the applicant against the above-mentioned decision. The final decision was served on the applicant on 9 January 2009.


CASE OF DUŠKO IVANOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses)

Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in 1971 and lives in Skopje.

On 4 February 2003 the applicant was apprehended by the police on a location in Skopje and searched. As indicated in the search record, which the applicant duly signed, the search was carried out without a court warrant and in the absence of witnesses, as provided for in sections 200(4) and 202(2) of the Criminal Proceedings Act (“the Act”, see paragraph 32 below). The police confiscated 13 keys and a mobile phone from him. The search was completed at 2.10 pm.

On that date, an investigating judge of Skopje Court of First Instance (“the trial court”) issued two separate search warrants (Kri.br.34/03 and Kri.br.35/03) concerning two apartments (nos. 8 and 9 in the building in which the applicant lived) and other premises (наредба за претрес на дом и други простории) owned by the applicant’s father. The search warrants were issued on the reasonable suspicion that the applicant had been involved in drug trafficking.

Both apartments and the accompanying cellars were searched that day in the presence of the applicant’s father and two neighbours, who acted as witnesses. Seven packages containing an unknown substance were found. An authorised police officer, the neighbours, as well as the applicant’s father, who was specified in the search records as the occupier of the premises, signed the search records without any objection. The searches were completed at 6 pm. and 7.30 pm. At the request of those attending the search, the following note was included in the search record concerning apartment no. 9:

“The packages were found in the cellar belonging to apartment no. 10 of the same building, which was opened with a key confiscated during the personal search of [the applicant] ....”

As indicated in that search record, a certificate of confiscation of property (“the certificate”) was issued concerning the seven packages found in the cellar. It stated that the packages had been confiscated in relation to a crime punishable under the Criminal Code (drug trafficking). The applicant had not been present in the cellars while those were being searched but was brought to the premises afterwards (see § 16 below). He signed the certificate of confiscation as a person from whom the packages had been confiscated.

On 5 February 2003 the Criminal Investigations Bureau at the Ministry of the Interior (“the Bureau”, Сектор за криминалистичка техника) carried out an expert examination of the padlock which had secured cellar no.10 and 13 keys that had been confiscated from the applicant. According to the expert report of that date (no. 10.2.6-5520/1), the locking system of the padlock had been damaged and it could be opened with any object, including all keys confiscated from the applicant.

In another expert report (X-164/2003) of that date, the Bureau confirmed that five packages found in cellar no.10 contained 2.296 kg of heroin. As to the remaining 0.991 kg found in the two other packages, the report stated that they contained two substances that were often mixed with heroin. That was confirmed by an additional expert report of the Bureau dated 10 February 2003 (no. X-164/2/2003). As indicated in the report X-164/2003, each of six packages found in the cellar contained between 486gr and 527gr. The dimensions of the largest package were 20x10x2.2 mm.

A third expert report of the Bureau (SK-164/2003) of 5 February 2003 that concerned a fingerprint found on one of the packages confiscated in cellar no.10 stated:

"The fingerprints found were entered into the system of automatic search of fingerprints ... it was determined, after verification of the list of suspected candidates, that [the fingerprints] corresponded to (the applicant’s) right middle finger ..."

On the same date, the Ministry of the Interior lodged a criminal complaint with the public prosecutor accusing the applicant of drug trafficking. In support, it submitted the evidence described above (see paragraphs 6-12 above) and a number of photographs.

On 5 February 2003 an investigating judge of the trial court examined the applicant in the presence of his lawyer. The applicant remained silent. He confirmed, however, that he had signed the record of his personal search and two certificates of confiscation of property. The investigating judge opened an investigation against the applicant and ordered his pre-trial detention for thirty days.

On 17 February 2003 the public prosecutor lodged an indictment with the trial court charging the applicant with having been in possession of and offering for sale 5 packages containing 2.396 kg (the weight was specified to 2.296 kg later at the trial) of heroin and 0.991 kg of other prohibited substances, which had been found in the cellar of the building in which he had lived.

At a hearing held on 19 March 2003, the trial court examined the applicant, who denied any connection with the drugs found in the cellar. As to the cellar, he submitted that it belonged to a third party, whom he did not know. He further stated that after he had been arrested, he had been brought with a police car in front of the building in which he had lived. He had waited in the car for an hour or two before the police had brought him to the cellar. He submitted that there had been many people (мешаница) there, including five police inspectors who had asked him to hold the packages in his hands in order to photograph him. The applicant also stated:

“They forced me to touch the drugs; I don’t remember what the packages looked like and how many there were. At that point, maybe I touched (the drugs), I don’t remember. Then they photographed me; I refused [to cooperate] the whole time. My father was also present. Then, they brought me to the police (station) where they again forced me to take the [package of] drugs, to hold it in my hands in order to take photographs... Then, they started beating me and jumping over handcuffs (put) on my hands in order to [make me] touch the drugs. Then, they took my fingerprints. I was again physically ill-treated. They stopped when my lawyer arrived...”

As regards the alleged ill-treatment by the police, he stated that he had neither asked for medical assistance nor had he informed the investigating judge due to fear of further ill-treatment by the police. He had not seen how and what key had been used to open the door of the cellar because he had been, at that time, in the police car. He further stated that he had signed the search records in the presence of a police officer and two witnesses. He had voluntarily signed the confiscation records regarding the keys found in his possession. As regards the certificate of confiscation concerning the drugs he stated:

“... I most probably signed it when they (police officers) gave me five sheets of paper to sign...”

The applicant’s lawyer requested that the court examine the applicant’s father regarding the place where the drugs had been found and title to the apartment. In a statement, the applicant’s father confirmed that the police had shown him two search warrants and that the search had been carried out in his presence and that of two neighbours. He also stated:

“... I use other cellars in the building, namely two small cellars that I have constructed and another one which belongs to... When they did not find anything (in his cellars), a policeman ... entered cellar no.10, which is currently used by the sister of P.G., who owns the apartment and the cellar. After some time, policemen opened the padlock with the keys confiscated from [the applicant]... After half an hour, a policeman called me and said that he had found something in the cellar’s ventilation shaft... I saw a plastic bag. After he had taken the bags out, I noticed that there were seven bags. He put them on a metal sheet. Before doing so, he called the witnesses, namely the two neighbours, who confirmed what they were looking at. They called my son Duško. When he arrived, [the police officer] told him to stand next to the metal sheet in order for him to be photographed. Actually, he pushed him against the metal sheet and then [the applicant], in order not to fall down, touched the metal sheet with his hands. Thus, he touched the packages. They photographed him with the packages and took him away again. Then they brought the dog. Then we went upstairs to the apartment. [The police officer] forced me to sign the record that the packages had been found in cellar no.10, which I did. That meant that they did not find anything in my place, but in the [cellar belonging to] apartment no.10...”

As indicated in the record, the applicant’s father reiterated that cellar no.10 had been opened with a key found in the applicant’s possession, which belonged to another padlock. He also stated:

“I want to say that two keys of ours (the applicant’s and his) fitted in that padlock. [The police officer] actually opened (the padlock) with one of my keys and found out that one of the keys that Duško had fitted in the padlock. [They] were a pair, of which I had one and Duško had the other.”

The applicant’s father also stated that the police officer had not been wearing gloves when he had taken the packages out. He had put gloves on later.

In his concluding remarks made at the trial, the applicant’s lawyer objected that no search warrants had been issued regarding the personal search of the applicant and the search of cellar no.10. In the absence of any eyewitnesses, there had been no direct evidence that would link the applicant with the drugs, which had been hidden in a cellar that had belonged to a third party and could have been opened with any key. He also argued that the applicant’s fingerprint had been secured in the absence of an expert and that the police had sought an expert examination ex post facto. He maintained that expert report SK-164/2003 (see paragraph 12 above) had been unclear and imprecise because it had contained no information as to the manner and circumstances under which that fingerprint had been secured. Furthermore, it would have been impossible for the applicant to manipulate the packages with only one finger. He further argued that no fingerprints had been found on the padlock and the cellar where the drugs had been found.

He also challenged the expert examination of the substance found in the packages, arguing that the latter had been too small to contain compacted material in the quantity indicated in the expert report X-164/2003 (see paragraph 11 above). In this connection he argued that it had not been established the place and person who had determined the quantity of the substance. He also submitted that the expert examinations had been carried out in his absence. Furthermore, he challenged whether the substance found had been pure heroin. In this connection he also stated:

“I think that the problem [arising from] the practice that the prosecuting body also carries out expert examinations means that the evidence [obtained thereby] is not impartial.”

On 20 March 2003 the trial court convicted the applicant, who had a previous criminal record (suspended prison sentence for an act of violence), of drug trafficking and sentenced him to two-and-a-half years’ imprisonment. The court established that he had stored, with the aim of offering for sale, the five packages containing 2.296kg of heroin found in cellar no.10. The court held inter alia:

"Cellar no.10 where the drugs were found had been locked with a padlock that could be open with any keys besides the original ones.

The court established these facts on the basis of admitted written evidence ... The expert examinations of [the Bureau] confirmed that the substance found in the compacted packages was 2.296kg heroin. The expert examination confirmed that the fingerprint, which had been found and secured during the on-site examination, corresponded to the accused’s right middle finger ...

The court examined the arguments presented by the defense ...., but it finds that they are unsubstantiated because the court established ... that the written evidence, notably the record concerning the search of home and other premises had been drawn up in lawful procedure in the presence of two witnesses and on the basis of a search warrant issued earlier. The attending witnesses are neighbours who were present there by accident and whom [the applicant’s father] knew. The court established that the accused had signed the certificate for confiscated property without any qualification. He did not contest his signature.

The court examined the arguments of [the applicant’s lawyer] that there were no witnesses to corroborate that the accused had hidden the drugs in order to offer it for sale and that the accused could not be brought in connection with the drugs hidden in a cellar that did not belong to him, but (the court) dismissed those arguments on the basis of a written evidence, notably the (fingerprint) expert opinion by [the Bureau], which confirmed that the fingerprint corresponded to the [applicant’s] middle finger. Accordingly it is irrelevant that the drugs were found in the cellar belonging to a third person.

The court examined the statement produced by [the applicant’s father] according to which the police officers had pushed his son against the metal sheet where drugs had been put and that, in order not to fall down, he had touched (the packages) but it gave no weight because the responsible police officers acted in compliance with their official duty and after they had found the drugs they photographed him next to (the packages). There was no reason for them to push the accused or to secure evidence with the use of force. The father’s statement was biased because it concerns his son and it is understandable that he wants to help [the applicant] avoid criminal liability ...”

In an appeal of 17 June 2003, the public prosecutor complained that the sentence given to the applicant had been too lenient.

On 24 July 2003 the applicant appealed against the trial court’s judgment, arguing that his conviction had been based on inadmissible evidence, namely there had been no court warrant authorising the search of cellar no.10 and the expert examinations of the substance and the fingerprint found on one of the packages in that cellar. He reiterated his complaints regarding the quality and reliability of the fingerprint expert evidence (see paragraph 21 above). In this connection he complained about the trial court’s failure to examine the police officers who had secured his fingerprint in his absence, as well as the experts who had drawn up report SК-164/2003 and requested that they be examined. He further argued that the trial court could not have validly based its judgment on those expert examinations since they had been carried out by the Bureau, a body that operated within the Ministry, which had set in motion the criminal proceedings against him. Accordingly, the examinations had been biased. He also sought to have alternative expert examinations conducted. That concerned both the fingerprint expert evidence, which according to him, had been the sole evidence linking him with the drugs, as well as the expert examination of the substance. As to the latter examination, he reiterated his complaints raised in the concluding remarks (see paragraph 22 above).

The applicant also requested that the court examines the neighbours (providing their names and addresses) who had attended the search regarding his allegations that his fingerprint found on one of the packages had been the result of an argument which he had had in the cellar with the police after he had refused to comply with their order to touch the packages.

At a public session held on 20 May 2004 in the presence of the applicant and his lawyer, the Skopje Court of Appeal dismissed the appeals and upheld the trial court’s judgment. It held that:

As evident from the case-file, the search of the accused’s home and other accompanying premises ... and the personal search of the accused were carried out in accordance with the (relevant) statutory provisions ...

The search of the home and other premises was carried out by competent officials on the basis of a written warrant by the investigating judge ... in the presence of two adult citizens, as witnesses and the occupier of the premises-[the applicant’s] father. Search records were drawn up and duly signed by the competent official, the occupier and the attending witnesses, in accordance with sections 198, 199 and 200 of the Act. The personal search of the accused was carried out without a court warrant and in the absence of witnesses, but it was done by competent officials on account of a reasonable suspicion ... in accordance with section 202(2) of the Act. Accordingly, the search records are a valid ground on which the court judgment was based.

The court examined the complaint ... concerning the lack of an order by the investigating judge for the expert examinations carried out by [the Bureau] ... regarding the nature and composition of the substance and the origin of the fingerprint evidence; however, the Ministry has competence to request expert examinations ...

... On the basis of admitted evidence, especially that the accused was in possession of the keys from the door of the cellar; [the applicant’s] fingerprint found on one of the packages containing drugs and the certificate for confiscated property signed by the accused, the trial court had undoubtedly established [the applicant’s] identity as the perpetrator of the criminal offence ...

The court examined the complaint regarding the quantity and composition of the drugs, but it dismissed it finding that the trial court had established [the quantity of the drugs], on the basis of the expert opinion by [the Bureau], which applied (it gave a description of the used methodology).

The court dismissed the complaint regarding the objectivity of the expert opinions of [the Bureau], since it was a department that was founded and operated within the Ministry of the Interior, as a State body, which had been authorised to carry out expert examinations, as specified in section 234(2) of the Act ... (furthermore, the expert reports) ... had been based on scientific methods, which enable valid results ... on the basis of the case-file, it can be established that after the competent officials had discovered the criminal offense, (they) secured evidence which had been transmitted to [the Bureau] whose experts had determined [the applicant’s] identity applying the system of automatic search of fingerprints.

The court considered the complaint regarding the examination of [the neighbours] as witnesses ... but it dismissed it because ... [the neighbours] had signed the search records without any objection, which means, for all practical purposes, that they had confirmed [the record’s] veracity regarding the search. Accordingly, it is not necessary for them to be examined ..."

On 6 July 2004 the applicant lodged an application for extraordinary review of a final judgment (барање за вонредно преиспитување на правосилна пресуда), arguing that there had been no direct evidence corroborating his guilt. In this connection he reiterated his complaints that cellar no.10 had been searched without a court order; that the trial court should have summoned the experts and police officers regarding his fingerprint; and that the Court of Appeal had wrongly found that their examination and the examination of the neighbours would have been irrelevant. In this connection, the applicant’s lawyer stated that:

“... the (police) officers present in cellar (no.10) forced [the applicant] to touch the packages in order to confirm whether they [contained] compacted [material]. [The applicant] refused to comply with the officers’ order to touch the packages and due to the mass of people pushing each other (поради настаната мешаница и турканица), he was again taken to the police station. The same method of treating [the applicant] continued in the police station, where he was forced to touch the packages in order to obtain his fingerprint [on them]...”

He further reiterated his concerns regarding the quality and impartiality of the expert examinations carried out by the Bureau (see paragraphs 21, 22 and 25 above) and sought alternative expert examinations of the fingerprint and heroin found.

On 2 November 2004 the Supreme Court dismissed the applicant’s application and confirmed the lower courts’ judgments. The relevant parts of the judgment read as follows:

"... the evidence admitted at the trial on which the judgment was based do not contain such deficiencies so as to be regarded unlawful evidence that cannot serve as a legal basis for the judgment, within the meaning of section 15(2) of the Act. The lower courts correctly established that the search of the accused’s home and other accompanying premises ... and the personal search of the accused had been carried out in accordance with the (relevant) statutory provisions ...The search of the home and other premises, as evident from the admitted written evidence, was carried out, according to this court, by competent officials on the basis of a written warrant by the investigating judge ... in the presence of two adult citizens, as witnesses and the occupier of the premises-[the applicant’s] father. Search records were drawn up and duly signed by the competent official, the occupier and the attending witnesses, which implies that sections 198, 199 and 200 of the Act had been respected.

It is true that the personal search of the accused was carried out without a court warrant and in the absence of witnesses, but the lower courts correctly held that such measures had been taken by competent officials on account of a reasonable suspicion ... in accordance with section 202(2) of the Act. Accordingly, the search records are a valid ground on which the court judgment could be based.

The Supreme Court examined the complaint ... concerning the lack of an order by the investigating judge for the expert examinations carried out by [the Bureau] ... regarding the nature and composition of the substance and the origin of the fingerprint evidence, but it dismissed them as unsubstantiated. The court had decided in compliance with section 234(2) of the Act ... [The court] cannot accept the allegation raised in the extraordinary review request regarding the objectivity of the expert opinions of [the Bureau], since it was a department that was founded and operated within the Ministry of the Interior, as a State body, which could be requested to carry out expert examinations, as specified in section 234(2) of the Act ...

The Supreme Court considers that in the ordinary proceedings the trial court decided in accordance with section 339(2) of the Act. In establishing the facts, it had into consideration and assessed all evidence admitted at the trial, i.e. it assessed the evidence separately and taken together, and on the basis of such assessment, it drew conclusion if certain fact was established ...

In view of the foregoing, it is clear that in the ordinary proceedings all legally relevant facts were correctly established ..."

On 17 February 2005 the public prosecutor informed the applicant that there were no grounds for lodging a request for the protection of legality with the Supreme Court.