George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The first applicant, Mr T.H.-A., is a Russian national who was born in 1968. The second and third applicants are his wife and child who are also Russian nationals and born in 1984 and 2012 respectively. The President granted the applicants’ request for their identity not to be disclosed to the public (Rule 47 § 4). The applicants were represented before the Court by Ms Kirsi Hytinantti, a lawyer practising in Helsinki.

The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

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

The applicants are a couple and their child born in Finland on 1 July 2012. They are Russian citizens originating from the Ingushetia region and are Muslims by religion. The first applicant had lived previously in Chechnya but fled from the war in the mid-1990s back to Ingushetia. The second applicant, his wife, was born in North-Ossetia from where their family fled in 1992 to Chechnya and from there to Ingushetia in 1995. Both applicants claim that they have not been politically or religiously active and do not belong to any group.

The first applicant’s problems with the authorities started late in 2007. He was arrested, on the basis of witness testimony, by the local police in December 2007, suspected of the murder of a police officer. After a few days in detention, the court ordered his release as the witness had retracted his statement. He was not, however, released immediately but only after approximately 10 days when his brother paid money to the police. The first applicant claimed that he had lost track of time while in detention as he was deprived of sleep. The interrogations went on continuously and if he fell asleep he was immediately awakened. A bag was put over his head to humiliate him and he was verbally humiliated as well. The first applicant claimed that he was not, however, otherwise physically ill-treated. He assumed that as he was relatively wealthy and well-known in his community, the police did not dare to beat him as it would have become known in the community.

The first applicant heard from the prosecutor that the witness testimony against him had been fabricated and ordered by the FSB (the Federal Security Service of the Russian Federation) but the applicant did not know why. His legal counsel advised him to leave as, once targeted by the FSB, he would never be left alone. The first applicant did not want to leave as he did not consider himself guilty of any crime.

After his release, security troops of some sort (silovikis) searched his house. The first applicant escaped when he saw the military vehicles approaching his house. He went to live in his aunt’s house some 10 minutes’ drive from his house, where the applicants stayed for almost one year (in 2008) until they fled to Finland. The house belonging to him and his brother was searched at least three times and the applicants’ passports were taken. The first applicant was never home when the searches were made but on one occasion the second applicant was present. She and the other family members, who were at home at the time, were ordered to lie down on their stomachs on the ground for hours while the men in military uniform, who did not specify who they were, waited for the first applicant to arrive. The men shot the applicants’ kitten and stated that the applicants would soon be treated similarly. A gun was held to their heads and they were verbally intimidated. Finally the men tired of waiting and left.

The FSB left the first applicant at least one written summons to present himself for questioning about his participation in group meetings and demonstrations. The first applicant stated that he had not participated in those meetings mentioned in the summons but that he only had participated in such meetings 2 to 3 years before. His brother went to the FSB with a lawyer in 2008 to tell them that the first applicant had left and would not be returning. The applicants maintained that they did not know why the FSB was after the first applicant. He assumed that he was on their blacklist for some reason but other people were also wanted by the FSB without any real reason.

The second applicant stated that her brother had also been taken by unspecified authorities in September 2007 without notice and held for four days but then released. She did not know the reason. Her cousin’s son had been reported missing since 2008. Her sister’s husband had apparently also been killed after the applicants arrived in Finland.

Both applicants also spoke in their asylum interview more generally about the human rights problems in Ingushetia, such as house searches by masked men in military uniforms who always came in the morning, and unresolved abductions and killings. Some of the victims of these incidents were distant relatives or friends of the applicants.

After the applicants’ arrival in Finland, the second applicant had suffered from several psychosomatic symptoms which were diagnosed as post-traumatic stress disorder. She has been treated with antidepressants which apparently have not improved her health. She submitted medical certificates to the domestic courts.

On 2 February 2009 the applicants sought asylum in Finland.

On 12 July 2011 the Finnish Immigration Service (Maahanmuutto-virasto, Migrationsverket) rejected their applications and decided to order their expulsion back to the Russian Federation. The Service did not consider it credible that the FSB could have been looking for the first applicant and failed to find him when he was still in Ingushetia and residing at his aunt’s house only 10 minutes’ drive from his own home. It also found it odd that the first applicant could not state any reason why he might be wanted by the FSB. Furthermore, the Service noted that the Ingushetian authorities had acted properly when releasing him from detention when there was no evidence against him and that they had not ill-treated him. According to the Service, the first applicant was treated in a correct manner by the local Russian authorities. They also noted discrepancies, mostly in timing, in the applicants’ stories concerning the searches of their home and the disappearance of their passports. Also, the applicants managed to leave the country without problems and their families had not been harassed after their departure. As the applicants had also themselves confirmed that they had not been politically or religiously active in their home country, the Service did not find it likely that they would be of any interest to the Russian authorities.

On an unspecified date the applicants appealed to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen), also requesting an oral hearing to be held.

On 20 December 2012 the Administrative Court rejected both the appeal and the request for an oral hearing, considering the latter unnecessary as it found the applicants’ story in principle credible and thus no additional information could be obtained by organising an oral hearing. However, it considered that nothing in the applicants’ or in their family’s background, gave reasons to suspect that they would be of special interest to the FSB. It also noted that, according to the country reports, it was possible that the first applicant might be targeted only because of the previous suspicion of criminal activity. However, it did not consider that to be enough to amount to a real risk of his ill-treatment upon expulsion. Furthermore, the Administrative Court noted that the first applicant had obtained a driving licence through his brother during his absence from Russia, thus it was unlikely that the authorities would persecute him. The court noted that the general security and human rights situation in Ingushetia was relatively poor but that it was not sufficient in itself to amount to a real risk of ill-treatment of the applicants. It also noted that mental health care was available in Ingushetia for the second applicant.

By letter dated 12 January 2013 the applicants appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), requesting also an interim order to stay their expulsion for the duration of the proceedings.

On 20 March 2013 the applicants’ legal counsel was informed that no interim order was granted by the Supreme Administrative Court.

On 13 January 2014 the Supreme Administrative Court refused the applicants leave to appeal.

According to Article 9, paragraph 4, of the Constitution of Finland (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999), the right of foreigners to enter Finland and to remain in the country is regulated by an Act. A foreigner shall not be deported, extradited or returned to another country, if in consequence he or she is in danger of a death sentence, torture or other treatment violating human dignity.

According to section 87, subsection 1, of the Aliens Act (ulkomaalaislaki, utlänningslagen; Act no. 301/2004), aliens residing in the country are granted asylum if they reside outside their home country or country of permanent residence owing to a well-founded fear of being persecuted for reasons of ethnic origin, religion, nationality, membership of a particular social group or political opinion and if they, because of this fear, are unwilling to avail themselves of the protection of that country.

Section 88, subsection 1, of the Act (as amended by Act no. 323/2009) provides that an alien residing in Finland is issued with a residence permit on grounds of subsidiary protection if the requirements for granting asylum under section 87 are not met, but substantial grounds have been shown for believing that the person, if returned to his or her country of origin or country of former habitual residence, would face a real risk of being subjected to serious harm, and he or she is unable, or owing to such risk, unwilling to avail himself or herself of the protection of that country. Serious harm means: 1) the death penalty or execution; 2) torture or other inhuman or degrading treatment or punishment; or 3) serious and individual threat as a result of indiscriminate violence in situations of international or internal armed conflicts.

Under section 88a of the Act (as amended by Act no. 323/2009), an alien residing in Finland is issued with a residence permit on the basis of humanitarian protection, if there are no grounds under section 87 or 88 for granting asylum or providing subsidiary protection, but he or she cannot return to his or her country of origin or country of former habitual residence as a result of an environmental catastrophe or a bad security situation which may be due to an international or internal armed conflict or a poor human rights situation.

According to section 88b of the Act (as amended by Act no. 323/2009), the well-founded fear of being persecuted referred to in section 87b or the real risk of being subjected to serious harm referred to in section 88 may be based on incidents after the applicant’s departure from his or her home country or country of permanent residence or on acts that the applicant has participated in since his or her departure.

Section 98, subsection 2, of the Act (as amended by Act no. 432/2009) provides that the requirements for issuing a residence permit are assessed individually for each applicant by taking account of the applicant’s statements on his or her circumstances in the State in question and of real time information on the circumstances in that State obtained from various sources. After obtaining the statement, the authorities shall decide on the matter in favour of the applicant on the basis of his or her statement if the applicant has contributed to the investigation of the matter as far as possible, and if the authorities are convinced of the veracity of the application with regard to the applicant’s need for international protection.

According to section 147 of the Act, no one may be refused entry and sent back or deported to an area where he or she could be subject to the death penalty, torture, persecution or other treatment violating human dignity or from where he or she could be sent to such an area.

Section 147b of the Aliens Act (as amended by Act no. 1214/2013) incorporates into the Finnish legal system the Council Decision 2004/573/EC of 29 April 2004 on the organisation of joint flights for removals from the territory of two or more member States, of third-country nationals who are subjects of individual removal orders. The annex of the Decision contains common guidelines on security provisions for joint removals by air including, inter alia, an obligation for the member States to ensure that the returnees for whom they are responsible are in an appropriate state of health, which allows legally and factually for safe removal by air.

The World Health Organisation’s (WHO) Mental Health Atlas from 2005 provides the following information on the mental health care situation in the Russian Federation:

“Mental health is a part of primary health care system. Actual treatment of severe mental disorders is not available at the primary level. The practice of recognition and treatment of depression in primary care is developing in several regions. ... There are community care facilities for patients with mental disorders. A social rehabilitation system including workshops, rehabilitation units in industrial firms and residential homes (for about 125 000 persons) exists. Day care facilities are available for almost 15 000 persons. Home care is also provided in some cases.

The system of Russian Ministry of Health consists of 278 mental hospitals, 164 psycho-neurological outpatient clinics (dispensaries) that include day-hospitals as separate wards in their structure (each dispensary provides sectorised coverage to a population of approximately 25 000 people); 2010 psychoneurological consulting rooms in rural areas; 1117 psychotherapeutic rooms, mostly in primary care facilities. There are also beds in 442 hostels, nursing homes and ‘internats’ under the authority of the Ministry of Social Protection.

The country has specific programmes for mental health for refugees, disaster affected population and elderly. Programmes on refugees and disaster victims are carried out by the Ministry of Emergency Situations (EMERCOM). Elderly population are looked after by the Ministry of Social Protection.

The following therapeutic drugs are generally available at the primary health care level of the country: carbamazepine, ethosuximide, phenobarbital, phenytoin sodium, sodium valproate, amitriptyline, chlorpromazine, diazepam, fluphenazine, haloperidol, lithium, biperiden, carbidopa, levodopa. The Ministry of Health and Social Assistance approved the list of mentally ill who would receive free medication in 1993, the funds for which were to be allocated by local institutions.”


CASE OF MERZLYACHENKO AND OTHERS v. RUSSIA

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)

Branko Lubarda;Dmitry Dedov;Luis López Guerra

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

The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.


Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra

The applicant, Mr Justice Ojei, is a Nigerian national, who was born in 1994 and lives in Amsterdam. He was represented before the Court by Mr F.L.M. van Haren, a lawyer practising in Amsterdam.

The applicant lodged an application for asylum at Schiphol (Amsterdam) Airport on 30 March 2010.

On 31 March 2010 he was interviewed about his identity, nationality and travel itinerary (eerste gehoor). Confronted with the fact, apparent from the Eurodac database, that he had lodged a previous asylum request in Malta, he admitted that he had done so, claiming to be an adult. He stated that he had spent eighteen months detained in a Maltese reception centre where he had been badly treated. He had been refused asylum in Malta. He had travelled by boat from Malta to Italy and overland from Italy to the Netherlands.

A Dublin Claim interview (gehoor Dublinclaim) was held on 1 April 2010. The applicant stated that he had left Malta because he had been refused asylum. He alleged that he had been detained underground in a prison.

On the same day the applicant, through his counsel, submitted a document containing corrections and additions (correcties en aanvullingen) to the report of the Dublin Claim interview and “weighty advice” (zwaarwegend advies). He stated, inter alia, that if forced to return to Malta he would be locked up for a year in an underground prison known as “Paola”.

On 6 July 2010 the Minister of Justice rejected the applicant’s asylum request on the ground, in so far as relevant to the case before the Court, that under Article 16 of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (“the Dublin Regulation”) the State responsible for examining his application for asylum was Malta and Malta had agreed to take him back. The applicant had failed to make out a convincing case that he was at risk of treatment contrary to Article 3 of the Convention; moreover, he could be expected to make use of the domestic remedies offered by Malta if need be.

The applicant appealed to the Regional Court (rechtbank) of The Hague on the same day. As relevant to the case before the Court, he alleged that sending him back to Malta would expose him to conditions of detention violating Article 3 of the Convention. He submitted documents in support of this allegation. At the same time he requested a provisional measure in the form of a stay of deportation.

On 3 November 2010 the Regional Court of The Hague (sitting in Haarlem) dismissed both the request for a provisional measure and the appeal, finding that the applicant had failed to make out his case that Malta would fail to meet her Conventional obligations towards him.

Having in the meantime been informed that his transfer to Malta was scheduled for 10 November 2010, on 4 November 2010 the applicant requested the President of the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State (Raad van State) to order a provisional measure in the form of a stay of deportation. On 6 November 2010 the applicant lodged a further appeal (hoger beroep) with the Administrative Jurisdiction Division.

On 8 November 2010 the President of the Administrative Jurisdiction Division dismissed the applicant’s request for a provisional measure.

On 9 November 2010 the applicant was found to be in a psychiatric state of such seriousness that he was not fit to travel. His flight to Malta was cancelled and he was transferred to an institution for psychiatric treatment.

On 31 October 2011 the Administrative Jurisdiction Division dismissed the applicant’s further appeal on summary reasoning.

On 8 November 2010 the Court received from the applicant a request for a stay of expulsion to be indicated to the Netherlands Government. On 9 November 2010 President of the Chamber to which the case had been allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government, under Rule 39 of the Rules of Court, that the applicant should not be expelled to Malta for the duration of the proceedings before the Court.

The applicant has submitted a medical statement dated 15 September 2016 from which it appears that he continues to receive psychiatric treatment.

The relevant European, Maltese and Netherlands law, instruments, principles and practice in respect of asylum proceedings, reception of asylum-seekers and transfers of asylum-seekers under the Dublin Regulation are set out in Tarakhel v. Switzerland [GC], no. 29217/12, §§ 28-48, ECHR 2014 (extracts); Hussein Diirshi v. the Netherlands and Italy and 3 other applications ((dec.), nos. 2314/10, 18324/10, 47851/10 and 51377/10, §§ 98‑117, 10 September 2013); Mohammed Hussein v. the Netherlands and Italy ((dec.), no. 27725/10, §§ 25-28 and 33-50, 2 April 2013); Suso Musa v. Malta, no. 42337/12, §§ 23-32, 23 July 2013; and Aden Ahmed v. Malta, no. 55352/12, §§ 31-39, 23 July 2013.

By letter of 15 February 2012, the Agent of the Maltese Government submitted replies to questions of the Judge Rapporteur (Rule 44 § 3 (a) of the Rules of Court). As relevant to the case now before the Court, these included the following:

“1. When did the applicant arrive in Malta and on what basis did he request protection (asylum, subsidiary protection or other) there? In what manner has this request been dealt with in practice; what was the outcome of the procedure and was the applicant provided with shelter, subsistence and medical care during this time?

The applicant entered Malta in an irregular manner on the 3rd September 2008. Upon arrival, the applicant was served with a removal order and was put in the detention centre. Whilst in detention, the applicant was housed in a sheltered compound with adequate bedding and was provided on a daily basis with breakfast, lunch and dinner. The applicant was also given clothing and supplies to cater for his personal hygiene. Furthermore, the detention centres are equipped with the services of a medical practitioner and the services of a nurse and these services are available on a daily basis in order to assist and cater for the medical needs of persons in detention.

The applicant requested international protection at the Office of the Refugee Commissioner on the 24th September 2008. The applicant requested asylum on the basis that he claimed that he was next in kin to become the king in his village but this was not accepted by his uncle who had poisoned his father and brother and had, therefore, instilled fear for personal safety in the applicant. In the applicant’s preliminary questionnaire which was conducted on the 24th September 2008, the applicant declared that he was born on the 20th March 1985. On the basis of this information, the applicant was presumably 22 years old upon arrival. The applicant did not mention that he suffered from any particular medical condition.

On the 5th June 2009, the applicant sat for his asylum determination interview and he again confirmed his date of birth. The applicant added that apart from the problem that he had with his uncle in his country of origin, that is, Nigeria, there were no further problems in his country.

On the 20th June 2009, the Refugee Commissioner rejected the applicant’s asylum application.

On the 16th July 2009, the applicant appealed from the decision by filing an application before the Refugee Appeals Board. The appeal is still pending given that the applicant absconded from Malta in the meantime.

Furthermore, the applicant was released from detention on the 3rd September 2009 and was moved to an open centre which is run by the Agency for the Welfare of Asylum Seekers. The applicant had free medical care when he was accommodated in the open centre given that his asylum application is still pending in the appeals board. The applicant remained in the open centre until the 26th February 2010 and left the open centre without leaving any contact details.

What, if any, concrete, practical and effective steps are taken by the Maltese authorities to ensure that aliens returned to Malta under the terms of the Dublin II Regulation, considering also that the applicant is a minor with a medical condition, are provided with shelter, subsistence and medical care upon arrival in Malta?

The Government wishes to emphasize that the applicant always declared that he was not a minor upon his arrival: in fact the date of birth given to the local authorities makes it clear that the applicant was 22 years old upon arrival in Malta. Moreover, the applicant never complained that he suffered from any medical condition.

When aliens are returned to Malta, they are not being taken into police custody unless it results that an offence was committed by them in Malta.

Moreover, given that the applicant’s appeal is still pending, he is still considered to be an asylum seeker, and the applicant will be housed if he so wishes in the open centres where he will have access to free medical care pending the determination of his appeal. Moreover, if it is established that the applicant is a minor, the Agency for the Welfare of Asylum Seekers provides its services to unaccompanied minor asylum seekers under a ‘care order’ issued in terms of the Children and Young Persons (Care Orders) Act.”

The applicant replied on 13 March 2012, stating that living conditions in the open centres were very bad and unsuited to persons in his condition.

Appended to the applicant’s reply were:

(a) a report by the Commissioner for Human Rights of the Council of Europe, Mr Thomas Hammarberg, following his visit to Malta from 23 to 25 March 2011 (CommDH(2011)17, 9 June 2011). On the subject of open centres, this report stated the following:

“21. Material conditions in the open centres visited by the Commissioner were clearly sub-standard, with the Hal-Far tent village offering totally inadequate conditions of accommodation even for short periods of time. The village, which at the time of the visit hosted approximately 600 migrants, mainly from Africa, consists of tents, some of which had been damaged due to bad weather conditions, and containers, as well as offices, a classroom, sanitary facilities, a mosque, and a restaurant. Each tent is shared between approximately 20-25 men who sleep in bunk beds. The tents were clearly overcrowded and offered no privacy. Residents have complained to the Commissioner about bad sanitary conditions, including having to share the same space with persons who are sick, and about the very cold temperatures in the facilities in the winter and hot temperatures during the summer. The presence of rats was also reported by migrants. The tent village has a building with toilets, showers and basins for laundry. However, hot water is reportedly not always available. A female migrant stated that she avoided using the toilets at night as she felt unsafe covering the considerable distance between them and the container where she was accommodated. Reportedly the tent village was served by one social worker and one nurse. For medical services migrants were referred to centres outside of the tent village.

At walking distance from the tent village another complex, the Hangar Open Centre in Hal-Far, which includes a few dozen containers and a dilapidated hangar, accommodated approximately 500 migrants, mainly from Africa. At the time of the visit, the Commissioner noted that certain women and families with children were accommodated in containers separately from the male migrants. In the centre there was a recent building that included toilets and showers. The hangar was closed and not in use. However, the Commissioner was informed that following the new arrivals from Libya since his visit, the hangar has been re-opened and that tents have been placed inside of it to accommodate migrants. Material conditions in the hangar are reported to be seriously sub-standard, with lack of adequate bedding, dirty floors, toilets (which are shared by men, women and children), and kitchen, insufficient lighting, and the presence of rats. These conditions are all the more worrying as the Commissioner understands that a number of family units with young children are accommodated there, as mentioned below.

Conditions were somewhat better at the open centre in Marsa with approximately 600 male residents mostly from Somalia and Sudan. Unlike the tent village and hangar complex in Hal-Far, which are run directly by the Agency for the Welfare of Asylum Seekers (AWAS) the running of the centre in Marsa is subcontracted by the authorities to a non-governmental organisation (the Foundation for Shelter and Support to Migrants). The Commissioner notes that extensive refurbishment work, which would allow for better conditions and a more functional distribution of space, were underway during his visit. At the time of the visit however, serious overcrowding was still very obvious. Toilets visited by the Commissioner, although they had been cleaned, appeared to be run down, while the whole area of the open centre in Marsa, situated near a port, was covered by a smell which appeared to be caused by stagnating water in a neighbouring canal.”

(b) two reports by Schweizerische Flüchtlingshilfe, a Swiss NGO engaged in providing assistance to asylum-seekers and refugees, the first dated 6 September 2010, the second dated November 2011. Both describe the open centres as squalid and overcrowded and basic facilities, including for vulnerable groups, as insufficient.

(c) two letters from a child and juvenile psychiatrist who was treating the applicant, dated 23 February and 1 March 2012, describing the applicant as psychotic and potentially suicidal and expressing concern that conditions for the applicant’s reception in Malta should be appropriate to his mental state.

On 30 December 2015 the Maltese Minister for Home Affairs and National Security published a paper entitled “Strategy for the reception of asylum seekers and irregular migrants”. The following is taken from this document:

“Malta’s ratio of asylum seekers in proportion to population has consistently been among the highest, and very often the highest, among all EU Member States. In fact, Malta received a total of 20.2 asylum applications per 1,000 inhabitants between 2009 and 2013, compared to an EU average of 2.9. It is also to be stated that the Maltese Office of the Refugee Commissioner does not only receive international protection applications from irregular migrants; for during 2014 up to 824 asylum applications were also received from migrants who applied directly at the Office of the Refugee Commissioner. All this goes a long way to show that even though asylum applications may be generally constant, the number is at the same time elevated when compared to the country’s geo-physical and social circumstances and realities. Matters are further complicated by the fact that a majority of those who seek international protection in Malta are actually found to be deserving of such protection. This means that these people do not only require immediate reception arrangements, but also long-term solutions.

In view of the abovementioned circumstances, conditions in reception centres have been rendered difficult during certain periods; however over the last few years several initiatives were carried out in order to improve the living conditions of irregular migrants and asylum seekers residing in such centres, including by means of EU funding mechanisms. Similar to previous years, apposite European funding mechanisms and national funds will be utilised for the provision of adequate food supplies, bedding, clothing and medical support among other initiatives. Investment will also continue being made in reception facilities, where the required refurbishment initiatives in open and closed centres will be undertaken. Furthermore, Malta’s Open Reception capacity will be enhanced by means of a new Reception Facility, with the utilisation of EU funds, in order to better address current and future needs.

The present document seeks to build upon the existing reception system, introducing improvements at several stages with a view to ensuring compliance with new EU obligations, as well as to improve the system from the perspective of national security on the one hand and humanitarian and human rights considerations on the other.” (page 3)

and

“Asylum seekers and beneficiaries of international protection released from the Initial Reception Facility or from Detention shall, if no alternative accommodation arrangements are available to them, be offered accommodation at Open Centres managed by the Agency for the Welfare of Asylum Seekers, or an entity or NGO working in partnership with the Agency. Such accommodation shall also be offered, on the same terms and conditions, to asylum seekers who would have reached Malta regularly, wherever Malta is the State responsible for determining their asylum application, and to beneficiaries of international protection granted protection by the Maltese authorities who would have been resettled or relocated into Malta.

Persons accommodated at Open Centres shall be provided with accommodation free of charge and, so long as they are not employed, with an allowance intended to cover daily expenses, such as meals and transport.

Migrants considered vulnerable, with the exception of unaccompanied minors, shall also be accommodated at Open Centres as per above. However, such persons shall be offered additional support, be it psychological, medical or otherwise as required.” (page 19)

The United Nations Human Rights Council’s Working Group on Arbitrary Detention visited Malta between 23 and 25 June 2015. Its report of this visit was published by the Human Rights Council on 23 June 2016 (UN document A/HRC/33/50/Add.1). The following is taken from this report (page 10, advance unedited version):

“37. The Working Group also visited Hal Far Open Centre for immigrants, outside Valetta, run by the Ministry for Social Affairs. The centre has a capacity for 800 persons. 260 were persons present during the Working Group’s visit. In the open centres, migrants enjoy freedom of movement but are requested though they are requested [sic] to undergo daily movement registration and provide details of their whereabouts.

The Working Group received information that 889 persons were living in three open centres including Hal Far, which consisted of prefabricated container housing units that had replaced scores of tents. Most of them were asylum-seekers awaiting decisions on their applications. Some migrants whose applications for asylum had already been rejected were also hosted there. Residents were suffering uncomfortable living conditions given inadequate ventilation and high temperatures in the summer months, in addition to the overcrowded condition in each unit. Residents were referred to the centre by immigration authorities.

The Working Group was informed that although the open centres were locked and guarded by security officers, residents were allowed to enter and exit the premises freely. Residents were allowed to stay for a maximum period of one year. Their beds would be restored after three weeks of absence so that it could be assigned to another migrant in need. It was brought to the attention of the Working Group that some residents arrived at the centre in April 2014, which means that they had been held there for more than 12 months. The Working Group was informed that during their stay at the open centre, residents were offered accommodation; free food, and were provided with a transportation allowance to enable them to travel to the city centre. In addition, the Working Group was informed that the centre would provide English language courses, computer training and cultural orientation.”

There is a prison in Paola. Its official name is Corradino Correctional Facility. Conditions of detention in this institution were the object of Story and Others v. Malta, nos. 56854/13, 57005/13 and 57043/13, §§ 104-129, 29 October 2015.


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

The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić

The applicant was born in 1979 and lives in Kayseri.

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

The applicant, who was a sergeant in the Army had a traffic accident in 2007 and was declared “disabled” (Adi malül”).

On unspecified date, the applicant requested the General Directorate of Pension Fund (the Fund) (“Emekli-Sandığı”) to modify his retirement statute as service-disabled (“vazife malülü”), but the fund rejected that request.

On 9 August 2007 the applicant brought an action before the Supreme Military Administrative Court seeking the annulment of the Fund’s decision.

On 22 May 2008 the Supreme Military Administrative Court dismissed the applicant’s request.

On 11 September 2008 the applicant’s rectification request was rejected.

During the proceedings, namely on 12 May 2008 and 29 July 2008 the Public Prosecutor at the Supreme Military Administrative Court filed lengthy written opinions on the case. However these opinions were not communicated to the applicant.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

The applicant was born in 1970 and lives in Tirana.

On an unspecified date criminal proceedings were brought against the applicant and two other co-accused on account of premeditated murder. The applicant was subsequently arrested by the authorities.

On 21 July 1998 the applicant addressed a letter (kërkesë) to the Kavaja District Court (“the District Court”) and the Kavaja district prosecutor (“the district prosecutor”), stating that he had engaged A., a lawyer, to represent him before the district prosecutor during the investigation and during the trial proceedings. It appears that the applicant wrote this letter while he was in detention.

On 1 November 1999 the District Court found the applicant not guilty and ordered his release. He had attended the trial and had been defended by A., his chosen lawyer. The two other co-accused were convicted and sentenced.

On an unspecified date the two other co-accused and the prosecutor appealed against the District Court’s decision of 1 November 1999.

On an unspecified date the applicant left Albania. It appears that the applicant was not informed of the appeals of the two other co-accused and the prosecutor, but apparently A. was so informed.

On 28 February 2000 the Durrës Court of Appeal (“the Court of Appeal”) quashed the District Court’s decision and remitted the case for reexamination. The applicant was represented by A. in his absence.

On 21 April 2000 the Supreme Court rejected the applicant’s appeal lodged by A. against the Durrës Court of Appeal decision of 28 February 2000.

On 26 December 2000, during the retrial proceedings, the District Court convicted the applicant in absentia of premeditated murder and sentenced him to twenty-three years’ imprisonment. The applicant was represented by lawyer A. (see paragraph 9), the decision stating that A. had been appointed by the court. The two other co-accused appealed.

On 10 September 2001 and 14 December 2001 the Court of Appeal and the Supreme Court, respectively, upheld the decision of 26 December 2000. The applicant had been represented in those proceedings by a new, court-appointed lawyer.

On 14 April 2004 the applicant’s mother hired another lawyer, K., to make an application for review. It appears from the Supreme Court’s decision of 9 July 2010 (see paragraph 18 below) and the Constitutional Court’s decision of 25 February 2011 (see paragraph 21 below) that an application for review was rejected by the Supreme Court. There is no copy of the said Supreme Court decision in the case file.

On 8 July 2005 the applicant was informed of his conviction in absentia by his family members. He lodged an application for leave to appeal out of time against the decision of 26 December 2000, arguing that he had never been informed of his conviction in absentia as he had been living abroad. The applicant was represented by K. as his counsel.

On 4 November 2005, 29 September 2006 and 9 July 2010 respectively, the District Court and the Court of Appeal dismissed, and the Supreme Court rejected, his application. The domestic courts held that the applicant should have known of the proceedings as he had been represented by a lawyer of his own choosing, A., who had been informed of the prosecutor’s appeal, and as his mother had appointed a lawyer to make an application for review. They also held that the case had already been examined at all instances and that their decisions were still in effect.

Judge A.H., who had been a member of the District Court’s bench that had delivered the judgment of 26 December 2000, also sat in the District Court’s bench of 4 November 2005 that dismissed the applicant’s application. Judges V.C. and Sh.M., who had been members of the Court of Appeal’s bench that on 10 September 2001 had upheld the decision of 26 December 2000, also sat in the Court of Appeal’s bench that dismissed his appeal on 29 September 2006.

On an unspecified date the applicant, represented by his lawyer, lodged a constitutional complaint in respect of the alleged unfairness of the proceedings in absentia and the lack of impartiality of the District Court and the Court of Appeal.

On 16 March 2011 the applicant’s lawyer was informed of the Constitutional Court’s decision of 25 February 2011 to dismiss the applicant’s constitutional appeal. The Constitutional Court, noting that A. and the applicant’s mother had had knowledge of the trial proceedings, stated that there had been no exceptional circumstances which had prevented the applicant from attending the proceedings in person. It did not examine the applicant’s claim about the impartiality of the District Court and the Court of Appeal


CASE OF S.S. YENİKÖY KONUT YAPI KOOPERATİFİ v. TURKEY

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

Jon Fridrik Kjølbro;Ledi Bianku;Paul Lemmens

The applicant, S.S. Yeniköy Konut Yapı Kooperatifi, is a housing construction cooperative under Turkish law operating in İzmir.

In 1993, a third party cooperative bought a plot of land measuring 12,000 square metres and the title deed of the land was registered in its name. In 1995, construction works started on the land in question.

In 2000, the forest administration initiated proceedings before the Menderes Civil Court of First Instance for the annulment of the title deed to the land, alleging that it was part of the public forest area. In the meantime, the third party cooperative had merged with the applicant cooperative and the land had been registered in the Land Registry in the name of the latter.

On 26 December 2002 the Menderes Civil Court of First Instance ordered that 9,322 square metres of the land be registered in the name of the Treasury as it was part of the public forest area. It also ordered that the buildings constructed on this part of the land be demolished.

Subsequently, the applicant brought a case before the Menderes Civil Court of First Instance and sought pecuniary damages from the Treasury under Article 1007 of the Civil Code which provided for the State’s responsibility for any damage resulting from the keeping of the land registry records.

On 4 February 2005 the Menderes Civil Court of First Instance awarded 138,917,600,000 Turkish Liras (TRL – approximately 81,716 euros (EUR) at the time) to the applicant.

On 7 February 2006 the Fourth Civil Division of the Court of Cassation quashed the judgment of the Menderes Civil Court of First Instance on the ground that there was no illegal act or action on the part of the land registry officials that might have had a causal link with the applicant’s loss.

On 6 July 2006 the applicant submitted a further petition to the Menderes Civil Court of First Instance and indicated that there was a decision of the First Civil Division of the Court of Cassation which was in contradiction with the decision of the Fourth Civil Division. In this context, the applicant alleged that its case should be accepted according to that decision of the First Civil Division issued on 7 May 2002 and numbered E.2002/3549 K.2002/5807.

On 20 October 2006 the Menderes Civil Court of First Instance followed the decision of the Fourth Civil Division of the Court of Cassation and dismissed the applicant’s claim.

The applicant appealed. Reiterating its allegations and referring to the decision of the First Civil Division of the Court of Cassation of 7 May 2002, it repeated its compensation request.

On 1 May 2007 the applicant’s appeal was rejected by the Fourth Civil Division of the Court of Cassation. This decision became final.

In their decisions, neither the Menderes Civil Court of First Instance nor the Fourth Civil Division of the Court of Cassation expressed any reason about why they had reached a different conclusion from the First Civil Division of the Court of Cassation.


CASE OF TRAPEZNIKOV AND OTHERS v. RUSSIA

Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)

Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicants were claimants in civil proceedings.

In the applications Trapeznikov v. Russia and Bychkov and Others v. Russia, the applicants were former participants of the Chernobyl clean-up operation who sued the relevant authorities for an inflation adjustment to their social benefits.

In the application Markova v. Russia, the applicant sought the eviction of her late son’s wife and her granddaughter from the flat she was living in, alleging that she was the sole owner because her son had renounced his share in the flat in her favour.

In the application Ryabchikov v. Russia, the applicant inherited a house in accordance with a will drawn up by his late mother. Later he discovered that she had two plots of land which she transferred back in 1994 to an agricultural company to which she was a member. The applicant sought to recover the property of these two plots of land alleging that the transfer had not been duly formalised and that consequently the land formed part of his inheritance.

In all of the applications, the first-instance courts found for the applicants, the judgments were upheld on appeal and they became enforceable. Subsequently, at the defendants’ requests, the presidia of the relevant regional courts quashed the judgments by way of supervisory review. In the applications Trapeznikov and Bychkov and Others, the presidia found that the lower courts failed to take into account the specific method of calculation of indexation established by the Government for this particular category of social benefits. In the applications Markova and Ryabchikov, they concluded that the findings of the lower courts favorable to the applicants were based on the retrospective application of the law (see Appendix).


Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant is a Croatian national, who was born in 1974. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). He was represented before the Court by Ms M. Sršić, a lawyer practising in Zagreb.

The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

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

The applicant works as a police inspector in the S. Police Department (Policijska uprava s.)

On 15 January 2007, at around 6.00 p.m., the applicant’s wife requested the assistance of the police alleging that she had been beaten by the applicant in their flat in Z.

Two police officers from one of the local police stations of the Z. Police Department (Policijska uprava z.) A.H. and M.M., intervened at the scene where they found the applicant and his wife, who had a visible nose injury. She was immediately taken to the hospital where she was diagnosed with a dislocation of septum and superficial nose hematoma.

The applicant was requested to undergo an alcohol intoxication test which he refused. The police officers also found in his flat several pieces of hunting firearms which were, together with the applicant’s police handgun, seized from him. The applicant refused to sign the seizure records.

At around 6.45 p.m. the applicant was arrested and taken to the police station.

According to the applicant, inside the police station he was knocked to the ground and beaten by several police officers for refusing to sign the seizure records. He was in particular ill-treated by the police officers A.H., M.M. and M.D.

According to a report of the police officer M.D. of 15 January 2007, at around 7.35 p.m., while he was held in the police station, the applicant started shouting and disobeying the orders to calm down. M.D. therefore approached him and twisted his arm behind his back after which he was handcuffed.

On the same day, at around 8.40 p.m., the applicant was examined by a doctor at the police station. The medical examination indicated signs of alcohol intoxication but did not disclose any injuries.

On 16 January 2007, at 2.20 p.m., the applicant was again examined by a doctor who found no injuries but indicated that the applicant had low blood sugar.

Following the applicant’s release from detention (see paragraph 31 below), on 22 January 2007 he underwent another medical examination in a hospital in S. The examination indicated spinal and abdominal contusions which could, as alleged, relate to a beating dating back one week before.

On 15 January 2007 the police officer M.D. reported on the use of force against the applicant to his superiors (see paragraph 10 above).

On the same day the Chief of the police station accepted the report finding no irregularities in the use of force. These findings were forwarded to the Chief of the Z. Police Department.

On 18 January 2007 the Chief of the Z. Police Department found that the use of force against the applicant had been lawful and justified.

This finding was confirmed by the Internal Control Unit of the Ministry of the Interior (Odjel za unutarnju kontrolu Ministarstva unutarnjih poslova) on 8 March 2007.

On 18 May 2007 the First-instance Disciplinary Court of the Ministry of the Interior (Odsjek prvostupanjskog disciplinskog suda Z.; hereinafter: the “First-instance Disciplinary Court”) found the applicant guilty on disciplinary charges of inappropriate behaviour and sentenced him to dismissal from service suspended for three months and a twenty percent reduction of salary in the period of two months. This decision was upheld by the Second-instance Disciplinary Court of the Ministry of the Interior (Odsjek drugostupanjskog disciplinskog sudovanja; hereinafter: the “Second-instance Disciplinary Court”) on 13 July 2007.

On 18 April 2007 the applicant lodged a criminal complaint with the Z. Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Z.) against the police officers A.H., M.M. and M.D. alleging that they had ill-treated him during his arrest on 15 January 2007. In particular, he submitted that he had been knocked to the ground and then beaten. The applicant also alleged that M.Mi., an on-duty police officer in the police station at the time of the events, had attempted to cover up the ill-treatment by unlawfully instituting minor offences proceedings against him on charges of domestic violence (see paragraph 29 below).

On 25 May 2007 the Z. Municipal State Attorney’s Office requested the Z. Police Department to conduct an investigation into the applicant’s allegations.

The Z. Police Department submitted a report on 6 July 2007 indicating that they had interviewed the suspects and two witnesses and obtained the relevant documentation concerning the use of force against the applicant. The suspects denied any ill-treatment and one of the witnesses, also a police officer, stated that she had seen the applicant handcuffed and kneeled on the ground.

On 12 July 2007 the Z. Municipal State Attorney’s Office rejected the applicant’s criminal complaint on the grounds that there was no evidence that he had been ill-treated as alleged in his criminal complaint. The applicant was instructed that he could take over the criminal prosecution as a subsidiary prosecutor by lodging an indictment before the competent criminal court.

Meanwhile, the applicant submitted another criminal complaint before the Z. Municipal State Attorney’s Office against the police officers M.M., A.H., S.G., P.S., M.Mi. and M.P. alleging unlawful search of his flat and their unlawful conduct in the processing of his case related to the alleged domestic violence.

On 31 October 2007 the Z. Municipal State Attorney’s Office rejected this criminal complaint as unfounded on the grounds that there was nothing disclosing any unlawfulness in the conduct of the police officers.

On 11 December 2007 the applicant lodged an indictment in the Z. Municipal Criminal Court (Općinski kazneni sud u Z.) against the police officers A.H., M.M., M.D. and M.Mi. in connection with his alleged ill-treatment (see paragraph 22 above).

On 28 November 2008 the applicant sent a letter to the Z. Municipal State Attorney’s Office expressing his dissatisfaction with the manner in which the circumstances of his criminal complaint had been assessed and with the decision of 12 July 2007 (see paragraph 22 above).

The Z. Municipal State Attorney’s Office replied on 5 March 2009 indicating that all the applicant’s objections should be addressed in the criminal proceedings which he had instituted as a subsidiary prosecutor.

On 6 April 2010 the Z. Municipal Criminal Court declared the applicant’s indictment inadmissible as he had failed to inform that court of the change of his whereabouts for which reason he could not be summoned to amend the indictment in accordance with the formal requirements of the relevant domestic law. This decision was placed on the Z. Municipal Criminal Court’s public notice board from which it was taken on 26 April 2010. It was thereby considered to be served on the applicant (see paragraph 59 below).

On 15 January 2007 the police instituted minor offences proceedings against the applicant in the Z. Minor Offences Court (Prekršajni sud u Z.) on charges of domestic violence, abusive conduct towards the police officers, improper storage of firearms and failure to report the change of his whereabouts.

On 16 January 2007 the Z. Minor Offences Court ordered the applicant’s detention.

On 22 January 2007 the Z. Minor Offences Court found the applicant guilty on charges of abusive conduct towards the police officers, improper storage of firearms and failure to report the change of his whereabouts. The applicant was fined in total with 5,754 Croatian kunas (HRK) and the seized firearms were confiscated. The proceedings were discontinued in respect of the charges of domestic violence on the grounds of lack of evidence. The applicant was released from detention.

On 5 October 2007 the Higher Minor Offences Court (Visoki prekršajni sud Republike Hrvatske), acting as the court of appeal, quashed the part of the first-instance decision by which the proceedings in respect of the charges of domestic violence were discontinued and ordered a retrial, while it upheld the remainder of the first-instance decision.

On 16 January 2009 the resumed minor offences proceedings concerning the charges of domestic violence were discontinued on the grounds that they had become time-barred.

According to the applicant, on 25 May 2008, at around 2.30 p.m., while celebrating his wedding anniversary with friends, he was attacked and injured by A.H., the same police officer who had been involved in his alleged ill-treatment on 15 January 2007 (see paragraphs 9, 19 and 25 above). He sustained injuries to his head and arms. Thereafter he was arrested and placed in a psychiatric hospital from which he was released on 27 May 2008.

According to the documents submitted by the Government, on 25 May 2008, at around 2.30 p.m., the police received an anonymous call informing them that a person was lying on the ground in front of a residential building in Z. The police officers I.Z. and A.H. immediately drove to the address.

A report signed by the police officers I.Z. and A.H., dated 25 May 2008, indicates that upon their intervention at the scene they established that the person lying on the ground was the applicant, who was severely intoxicated. He also had visible injuries on his head and arms. Soon afterwards an emergency team joined them and they decided that the applicant should be taken to a hospital for further treatment. During the transfer to the hospital the applicant became aggressive and the police officer A.H. and one of the members of the medical team tried to calm him down. At the hospital, the applicant continued his aggressive behaviour and threatened to kill them all once released. The police officers thus used physical force and the measures of restraint to calm him down. It was decided that he should be taken to another hospital.

A medical report of the emergency service of 25 May 2008 indicates contusion of the applicant’s head and superficial injuries on both arms.

A medical report prepared on the applicant’s release from the hospital on 27 May 2008 indicates that the applicant sustained his injuries during a fall caused by his intoxication.

Following his release the applicant contacted another doctor on 28 May 2008. His report of the same date indicates that the applicant had contusions to the head, and hematomas on the right upper arm and left forearm which could have been caused by blows three days before, as alleged by the applicant.

On 25 May 2008 the police officers I.Z. and A.H. reported on the use of force against the applicant to their superiors. They explained that the applicant had been aggressive during his medical treatment in the hospital and that therefore I.Z. grabbed him by the left arm and twisted it behind his back while A.H. did the same thing with his right arm. He was then handcuffed.

On 28 May 2008 the Chief of the Z. Police Department found that the use of force against the applicant had been lawful and justified.

On 25 May 2008 the applicant was indicted in the Z. Minor Offences Court on charges of breach of public peace and order and violent behaviour during his medical examination.

The applicant was questioned on the same day and he denied having breached the public peace and order. He stressed that he had only refused to undergo the medical examination to which the police officer A.H. had been forcing him.

At a hearing on 7 April 2009 doctor N.L., who received the applicant in the hospital on 25 May 2008 (see paragraph 36 above), stated that the applicant had arrived at the hospital with a head injury and under the influence of alcohol. He also explained that he had not seen any violent behaviour on the part of the applicant.

At a hearing on 23 September 2010 the Z. Minor Offences Court questioned the police officer I.Z. who could not remember any details of the event at issue.

On the same day the Z. Minor Offences Court acquitted the applicant on the grounds of lack of evidence of his alleged violent behaviour and breach of public peace and order.

On 10 June 2008 the S. Police Department instituted disciplinary proceedings against the applicant in the First-instance Disciplinary Court on charges of inappropriate behaviour related to the events of 25 May 2008.

At a hearing on 13 November 2008 the applicant submitted that on the critical day he had been with his friends Ž.K., I.B. and M.V., drinking and celebrating his wedding anniversary. When they approached the building where he lived, they came across two police officers one of whom was A.H., who approached him and asked him whether they had settled their dispute. The applicant answered that the competent court would decide about that and at that point A.H. pulled him by the hand as a result of which he fell to the ground and then he lost his conscience.

On 22 December 2008 the First-instance Disciplinary Court questioned the applicant’s friends Ž.K., I.B. and M.V. and the police officers I.Z. and A.H.

Ž.K. stated that he had seen the applicant in front of the building talking with two police officers and that at one moment one of the police officers, without any particular reason, pulled the applicant by the hand after which he fell to the ground and hurt his head. I.B. and M.V. confirmed this version of the events.

In their statements the police officers I.Z. and A.H. denied any ill-treatment reiterating that they had only used force as a result of the applicant’s aggressive behaviour during his medical treatment.

On 3 March 2009 the First-instance Disciplinary Court found the applicant guilty on charges of inappropriate behaviour and sentenced him to dismissal from service suspended for twelve months. It considered that the statements of Ž.K., I.B. and M.V. were inconsistent in particular given that an analysis of I.B.’s mobile phone at about the time of the events showed that he had been in another city. It therefore rejected the applicant’s allegations that he had been ill-treated by the police officers I.Z. and A.H.

On 23 April 2009 the Second-instance Disciplinary Court upheld the first-instance decision.

The applicant then challenged the outcome of the disciplinary proceedings before the Administrative Court (Upravni sud Republike Hrvatske) and on 19 May 2010 the Administrative Court dismissed his complaints as ill-founded endorsing the reasoning of the disciplinary bodies.

The applicant further challenged the findings of the disciplinary bodies and the Administrative Court before the Constitutional Court (Ustavni sud Republike Hrvatske). On 13 September 2012 the Constitutional Court upheld the decisions of the lower bodies dismissing the applicant’s complaints as ill-founded.

The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010 and 85/2010) read as follows:

Article 23

“No one shall be subjected to any form of ill-treatment ...”

The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003) provided:

“(1) Criminal proceedings shall only be instituted and conducted upon the order of a qualified prosecutor. ...

(2) In respect of criminal offences subject to public prosecution the qualified prosecutor shall be the State Attorney and in respect of criminal offences that may be prosecuted privately the qualified prosecutor shall be a private prosecutor.

(3) Unless otherwise provided by law, the State Attorney shall undertake a criminal prosecution where there is a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution and where there are no legal impediments to the prosecution of that person.

(4) Where the State Attorney finds that there are no grounds to institute or conduct criminal proceedings, the injured party may take his place as a subsidiary prosecutor under the conditions prescribed by this Act.”

With regard to the service of the court decisions, the relevant part of the Code of Criminal Procedure provided:

(6) If a party has not reported a change of address to a court or if the party cannot be reached at the address that was previously given to the court or it is evident that he is evading receipt of a decision that is subject to appellate review other than a judgment imposing a sentence of imprisonment, the court shall put the decision on the court’s public notice board. After the lapse of the term of appeal the decision shall become final.”

(2) If ... a decision cannot be served on [a subsidiary prosecutor] to his or her current address, the court shall put ... the decision on the public notice board and, after the laps of eight days from the moment when it was put [on the public notice board] it shall be considered as duly served.”

Relevant procedures concerning the submission of and decisions on criminal complaints were provided in Articles 171 to 174, the relevant parts of which read:

“(1) All state bodies and legal entities are obliged to report any criminal offence subject to automatic prosecution about which they have been informed or about which they have otherwise learned.

“(1) Criminal complaints shall be submitted to the competent State Attorney in writing or orally.

(3) If a criminal complaint was submitted before a court, the police or a State Attorney who was not competent in the matter, they shall forward the criminal complaint to the competent State Attorney.”

“(1) The State Attorney shall reject a criminal complaint by a reasoned decision if the offence in question is not an offence subject to automatic prosecution, if the prosecution is time-barred or an amnesty or pardon have been granted, or other circumstances excluding criminal liability or prosecution exist, or there is no reasonable suspicion that the suspect has committed the offence. The State Attorney shall inform the victim about his decision ... within eight days (Article 55) and if the criminal complaint was submitted by the police, he shall also inform the police.

(2) If the State Attorney is not able to ascertain the reliability of the submissions from the criminal complaint, or if he does not have sufficient information to ask for a judicial investigation, or if he has been otherwise informed that an offence has been committed, and particularly if the perpetrator is unknown, the State Attorney shall, if he is not able to do it himself, ask the police to collect all relevant information and to take other measures concerning the offence (Articles 177 and 179).”


Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicant was born in 1966 and lives in Köthel.

In 2004 the applicant began a relationship with X, a married woman who continued to live with her husband, with whom she had six children. In early 2006, X became pregnant and disclosed this to the applicant. In October 2006, she gave birth to a girl. Shortly after, the relationship with the applicant ended.

X and her husband, the girl’s legal father, refused the applicant’s subsequent initiatives to have contact with the child. They disputed that the applicant was the biological father but refused to consent to paternity testing.

The applicant initiated various proceedings to establish his legal paternity, to have biological paternity testing conducted and to obtain joint custody. His requests were to no avail.

On 21 December 2010 the applicant applied to Obernburg Family Court to obtain regular contact with the child, referring to the Court’s judgment in the case of Anayo v. Germany (no. 20578/07, 21 December 2010) delivered on the same day. He claimed to be the child’s biological father and offered to prove this claim by means of an expert’s report. In addition, he made a sworn declaration that he had had sexual intercourse with X around the time of conception.

On 9 May 2011 the Family Court dismissed the applicant’s request. It held that the applicant’s paternity had not been established and that, consequently, he could not be granted contact.

On 14 June 2011 the applicant appealed. On 16 November 2011 he supplemented his appeal, mainly relying on the Court’s judgment in the case Schneider v. Germany (no. 17080/07, 15 September 2011) and requested contact with the child at least once a month, initially under supervision.

On 1 December 2011, the Court of Appeal orally heard the applicant and the child’s legal father. The latter declared that he knew about the relationship between his wife and the applicant and also assumed that there had been sexual contact. In October 2005 the mother had told him and the children that her relationship with the applicant was terminated although he could not rule out, and indeed considered it likely, that she had continued the relationship without his knowledge. He had learned of his wife’s pregnancy in February 2006 and concluded that he was the father. In December 2006 the applicant had told him on the telephone that he was the child’s father. At that moment, the mother had felt relieved that the time of secrets was over. This moment had been a breakthrough for them as a couple and their relationship had improved subsequently. The child had been desired by both. Even assuming that the applicant were the child’s father, he would not agree to any contact because the applicant had caused them much suffering and had to bear the consequences of his behaviour. The proceedings the applicant had instituted were a burden for the couple but did not have a negative impact on the relationship with his wife, but had rather consolidated it. Everyone in the family but the child knew that the applicant believed that he was the child’s father.

On 9 February 2012 the Court of Appeal orally heard the child’s mother. At the end of the hearing it informed the parties that it considered contact with the applicant not to be in the child’s best interest for the time being and suggested that the applicant withdraw his appeal.

On 21 June 2012 the child’s appointed guardian ad litem (Verfahrenspfleger), a psychologist, furnished a detailed written statement concluding that contact with the applicant would be detrimental to the child’s wellbeing at this age.

On 17 August 2012 the applicant requested the Court of Appeal to mandate an expert opinion on the question of whether contact would be detrimental to the child or would at least serve her best interest; to hold an oral hearing where the guardian ad litem should explain her written statement; to conduct a paternity test and to hear the child.

On 28 September 2012, the Court of Appeal informed the parties that it considered it necessary to hear the child. The child’s guardian ad litem opposed this. She submitted, inter alia, that the child had no knowledge of the applicant’s claims, that the latter could not prove his fatherhood in the absence of a legal basis and that the child’s legal parents had not submitted any proof of their allegations that the mother’s husband was also the child’s biological father.

On 29 October 2012 the Court of Appeal heard the sixyearold child in the presence of her guardian ad litem only. According to the minutes, the child was aware - without knowing the real reasons - that her parents were in dispute with the applicant, who wanted to visit her or wanted her to visit him, but that neither her parents nor herself agreed to this.

On 19 November 2012 the guardian ad litem submitted that the child’s hearing confirmed her written statement of June 2012.

On 21 November 2012 the applicant commented on the child’s hearing, submitted a private expert opinion and requested the Court of Appeal to mandate an expert opinion regarding contact rights and to appoint a new guardian ad litem. He further asked the Court of Appeal to inform the child about his application during a new hearing. He added that in the event that his appeal were to be denied, he should receive a written report on the child’s development and two recent photographs every six months.

On 13 December 2012 the Court of Appeal dismissed the applicant’s requests. It observed, at the outset, that the applicant could not rely on Article 1684 § 1 of the Civil Code as he was not the child’s legal father. He could not rely on Article 1685 § 2 of the Civil Code either, because he had never borne any actual responsibility for the child. The Court of Appeal then addressed the question of whether Article 1685 § 2 of the Civil Code could be interpreted, in the light of the Court’s judgments Anayo and Schneider (cited above), as assuming that a father who was able to prove that he had seriously tried to bear actual responsibility but failed to do so because of the mother’s or legal parent’s resistance, could be considered as having borne actual responsibility within the meaning of this Article.

This question could, however, be left open because contact had in any event to serve the child’s best interest. In this respect the Court of Appeal held that it was already contrary to the child’s best interest to address the preliminary question of whether the applicant was the child’s biological father. The child was living in a well-organised and emotionally stable family unit consisting of a father, a mother and other children. The Court of Appeal pointed out that it was convinced that this family union would be destroyed if the applicant’s paternity were established and contact rights ordered. The hearing of the child and the legal parents had shown that in the child’s perception of the world, there was only one father, the mother’s husband. There were no indications that the latter did not assume his role as a father towards the child or assumed it differently than towards his other children. The child was well-integrated in the family, where she felt protected and secure. This assessment was also consistent with the conclusions of the child’s curator ad litem.

The Court of Appeal feared that clarifying the question of paternity bore the risk that the family unit would break up, which would have considerable negative consequences on the child because she would lose her essential attachment figures. As it had indicated after the hearing, it held it to be more likely that the applicant was the child’s biological father. This question could, however, ultimately only be determined by a paternity test, to which the child’s legal parents were opposed. The mother affirmed that her husband was the biological father of her daughter and both stood firm against the applicant. According to the Court of Appeal it resulted from the hearing that the legal father trusted, in principle, his wife’s assertions but at the same time had doubts as to his paternity, although he had not explicitly expressed them. In spite of these doubts, and the long-lasting court proceedings, he did not put in question his wife’s statements. The Court of Appeal received the impression that the spouses had barricaded themselves against the applicant as if they were in a corral, as had shown the legal father’s declaration that the legal proceedings did not have a negative impact on the relationship with his wife but had rather consolidated it. The Court of Appeal concluded that the legal father could live with this uncertainty, and that his attitude had no consequences for the child. If, however, the applicant’s biological paternity were to be established, the legal father would realise that his long-standing trust in his wife was not justified. It was not possible to predict the legal father’s reaction, but the manifest risk that the spouses’ marriage would break up could not be dismissed in view of the couple’s past difficulties. The couple’s separation would amount to the breaking-up of the child’s family unit and the loss of her relationships, which would endanger her well-being.

The Court of Appeal pointed out that it was aware that, in view of the importance of the child’s well-being, it could be a long time before the preliminary question of paternity could be clarified and years before contact rights could be granted. This might evolve once the child started to ask questions, but for now it was not in her best interest to be confronted with the paternity issue. It was therefore not advisable to tell her about the applicant’s allegations or to substitute the child’s guardian ad litem.

The Court of Appeal went on to say that, even assuming that the applicant was the child’s biological father, contact with the applicant was not in the child’s best interest. Due to the highly emotional conflicts between the legal parents and the applicant, and the fact that the applicant had not ruled out that he might tell the child that he was her biological father if he saw her, contact would jeopardise the child’s well-being. Therefore it was not advisable to order an expert opinion regarding the question of whether and how the child would deal with two fathers or whether it was in general advisable to grant children contact with their biological fathers at an early stage. These issues had to be assessed in the light of the extremely tense relations between the applicant and the child’s legal parents, and in view of the predictable consequences for the child if contact were granted. The Court of Appeal added that it could decide on these questions on its own after having orally heard the persons involved, and based on the written statements of the guardian ad litem, an experienced psychologist well-known from other proceedings.

As regards the applicant’s request for information the Court of Appeal held as follows:

“The applicant’s request for information, claimed in the alternative in his lawyer’s submissions of 21 November 2012, does not exist. Such claim cannot be based on Article 1686, 1st sentence, of the Civil Code because the applicant is not, as required by this provision, the child’s legal father. Whether the provision can be interpreted in the light of the above mentioned decisions of the European Court of Human Rights, as assuming that a biological father can also claim a right for information, can be left open: that would require addressing the preliminary issue of whether the applicant was the child’s biological father. It has already been shown that clarifying this question by ordering a paternity test would be contrary to the child’s well-being.”

On 11 February 2013, the Court of Appeal dismissed the applicant’s objection alleging a violation of the right to be heard.

Previously, on 28 January 2013, the applicant had lodged a constitutional complaint with the Federal Constitutional Court (no. 1 BvR 844/13).

On 18 July 2013 the Federal Constitutional Court informed the applicant that on 13 July 2013, the Law for the strengthening of the rights of biological but not legal fathers had entered into force which, pursuant to Article 1686a of the Civil Code, provided a new possibility for biological fathers to be granted contact and information rights even if they had no social and family relationship with the child (see paragraph 32 below). It added that in court proceedings concerning the enforcement of such rights, the determination of the preliminary question of paternity could be necessary, pursuant to Article 167a § 2 of the Family Matters Act (see paragraph 33 below). It enquired of the applicant whether, under these circumstances, he would withdraw his constitutional complaint.

On 13 August 2013 the applicant replied that he would maintain his complaint because, even under the new law, he would not have obtained a more favourable decision. He pointed out that the Court of Appeal had rejected his request for contact rights, even assuming that he was the child’s biological father, since contact did not serve the child’s well-being. The Court of Appeal had thus already decided in the light of the new Article 1686a of the Civil Code. The applicant added that the same reasoning applied to his request for information. Given that, in its view, the determination of paternity would endanger the family unit, the Court of Appeal would refrain from ordering a measure of examination because the legal parents could not reasonably be expected to undergo any examination, under Section 167a § 2 of the Family Matters Act.

On 21 September 2014 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint without providing reasons.


Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman punishment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

The applicant was born in 1960 and lives in Orsk.

On 28 May 2005 the applicant, who was walking home after an evening drinking, was stopped on the street by police officers from the patrol and inspection service and driven to the Sovetskiy district police station of Orsk (Советское РОВД г. Орска). He attempted to run away, but was stopped and assaulted by the police officers, who kicked him in the stomach. He felt unwell and lost consciousness. The police officers placed him in a cell and did not react when he demanded that they call an ambulance.

The applicant was released the next morning. On the evening of 29 May 2005 he was admitted to hospital with internal bleeding. He spent six weeks in hospital.

According to forensic medical expert report no. 3634 of 25 July 2005, the applicant had blunt abdominal trauma with a ruptured intestine, which had provoked the development of serofibrinous peritonitis. This injury had been caused by impact with a hard, blunt object, possibly one to two days before the applicant’s hospitalisation, and had caused him “serious health damage”. The applicant also had abrasions on his back and forearms, and circular abrasions on his wrist joints, which had originated from impact with hard, blunt objects during the same period, and had not caused him any “health damage”.

Forensic medical expert report no. 5684 of 14 December 2011 contained similar information concerning the applicant’s injuries. The expert considered that the injuries had been caused several hours to several days before the applicant’s hospitalisation. The expert excluded the possibility that they had been caused as a result of him falling over.

On 29 May 2005 the Orsk police received information about the applicant’s hospitalisation in Town Hospital no. 2 with blunt abdominal trauma and abrasions on his body.

On 14 June 2005 an investigator from the Orsk Sovetskiy district prosecutor’s office opened a criminal case under Article 111 § 3 of the Criminal Code (physical assault causing “serious health damage”).

On 11 July 2005 the applicant was granted victim status and questioned.

On 14 October 2005 the preliminary investigation into the criminal case was suspended under Article 208 § 1 (1) of the Code of Criminal Procedure, owing to the inability to identify the individuals to be charged.

On 31 January and 25 April 2012 the preliminary investigation into the criminal case was restarted, in view of the need to take additional investigative measures.

On 1 March and 18 July 2012 the preliminary investigation into the criminal case was suspended again, on the same grounds as before.

In 2012 the applicant brought a civil claim against various State authorities, including the Russian Ministry of Finance, seeking 6,000,000 Russian roubles (RUB) in compensation for his illtreatment at the police station and the lack of an effective investigation into his complaint.

On 24 July 2012 the Leninskiy District Court of Orsk allowed the applicant’s claim in part and awarded him RUB 150,000 (the equivalent of about 3,800 euros) in compensation. It established that the applicant had been taken into police custody in good health and that his injuries had been caused at the police station, since the State authorities had failed to provide a plausible explanation for the injuries or any evidence showing that he could have sustained them elsewhere.

On 9 October 2012 the Orenburg Regional Court upheld the judgment on appeal.