Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1981 and is currently detained in Giurgiu Prison.

On 30 December 2010 the applicant was detained pending trial, on suspicion of drug-trafficking offences. Subsequently, he was sentenced to thirteen years’ imprisonment.

The applicant was detained in Rahova Prison from: 17 July 2012 to 23 July 2013; 25 July to 17 October 2013; 31 October 2013 to 12 May 2014; and 14 May to 28 July 2014.

The applicant was in Rahova Prison Hospital for medical tests and treatment from: 23 to 25 July 2013; 17 to 31 October 2013; and 12 to 14 May 2014.

On 28 July 2014 the applicant was transferred to Giurgiu Prison, where he remains to date.

In his letters to the Court the applicant stated that he had been detained in overcrowded cells in Rahova Prison. He had had to share a cell measuring twenty-four square metres with nine other detainees. The furniture and the ten beds in the cell had taken up part of the available living space. Consequently, each detainee had been limited to only half a square metre of living space.

The applicant stated that, even though he was a non-smoker and had been assigned to a non-smoking cell, the prison authorities had also detained inmates who smoked all the time in that cell. He had complained to the prison authorities about it, but they had ignored his complaints. According to him, this problem had lasted until 30 April 2013.

The applicant also stated that some of the detainees who had occasionally shared the cell with him had had contagious diseases, such as hepatitis and human immunodeficiency virus (HIV), or had been drug addicts. Also, some of them had suffered from psychological problems and the prison authorities had been aware of their medical conditions. These detainees had either represented a hazard for the other inmates in the cell, or had not allowed them to rest properly.

The applicant further stated that warm water in the shower had only been available two days a week for ninety minutes for all ten detainees in the cell. Also, during the summer, running water had only been available six hours a day and not at all during the night, even if the detainees had needed to use the toilet.

The National Prisons Agency informed the Government that the applicant had been detained in cells 2.31, 3.9, 3.10, 3.34, 3.44, 3.48, 5.36 and 6.9 during his incarceration in Rahova Prison. The cells measured between 18.8 and 24.6 square metres, excluding the bathroom and toilet areas. He had shared these cells with nine other detainees at most. The applicant had had his own bed and at no time during his detention had the number of detainees exceeded the number of beds available in the cells.

Each cell had a window measuring 1.44 square metres. The food storage area within the cells also had a window measuring 0.72 square metres. All the aforementioned windows were fitted with bars and metal nets, but allowed for sufficient natural light and ventilation in order to comply with the relevant international standards.

The cells had bathrooms with two sinks and a shower. The toilets had natural ventilation, namely windows measuring 0.72 square metres, and were separated from the rest of the bathroom by a door.

Detainees had permanent access to sanitary facilities. Running water was always available, while warm water was available twice a week for one and a half hours, between 12 p.m. and 1.30 p.m. and between 5 p.m. and 6.30 p.m. Also, detainees were provided with protection against sexually transmitted diseases.

The cells and the sanitary facilities also had artificial light and were fitted with radiators. Heating was available intermittently, depending on the outdoor temperature. During the cold season, the temperature in the cells would be 19˚C.

Cells had furniture, in particular, bunk beds, small tables, small benches and television stands.

The prison authorities issued inmates with cleaning materials, and detainees cleaned the cells themselves. Upon their incarceration, and thereafter on a monthly basis, inmates were issued with personal hygiene products and disinfectants. They were also allowed to buy these products from the prison shop if necessary. Detainees were allowed to wash their underwear and bedlinen in the prison laundry room weekly.

In accordance with domestic regulations, each year the applicant had received two toothbrushes, twelve tubes of toothpaste, twelve rolls of toilet paper, twelve bars of soap and twelve disposable razors.

Different products and methods were used to disinfect cells and remove pests, and such work was carried out by either the prison or specialist firms. Disinfection was carried out daily, according to the characteristics of each area of the prison. The operations carried out to disinfect and remove pests from the applicant’s cell were preventive, and neither he nor the other inmates sharing his cell had requested them. However, no rats or mice had ever been found in the detention cells in Rahova Prison.

Detainees’ diets were determined according to several criteria, including, inter alia, their health and religion. Ingredients had to meet the quality criteria set out by law and had to have quality certificates provided by suppliers. Food was cooked hygienically in the prison kitchen, and stainless steel cooking utensils and equipment were used. Food quality and quantity was also checked by a detainee representative before it was distributed.

The National Prisons Agency finally informed the Government that, during his detention, the applicant had not raised complaints in respect of the conditions of detention.

In his letters to the Court the applicant stated that, as a Muslim, the prison authorities had not offered him an appropriate diet, namely food which did not contain pork. Moreover, when his visitors had brought him food from home, the prison authorities had only allowed him to receive canned food, fruits and vegetables. Although he had complained to the prison authorities about the inappropriate diet, his complaints had been ignored.

The National Prisons Agency informed the Government that, during his detention in Rahova Prison, the applicant had been provided with a diet appropriate for Muslims, and any pork had been replaced with beef.

In Rahova Prison, a detainee of a particular faith could ask the prison administration to allow him to buy the food he wanted from the prison shop.

During his detention the applicant had been visited on several occasions, but had only received one parcel.

The applicant had been allowed to practise his religion in his cell, and had taken part in various religious activities organised by the prison’s orthodox chaplain. He had never asked to receive religious objects, even though he had a lawful right to ask for them.


CASE OF ERDİNÇ KURT AND OTHERS v. TURKEY

Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Robert Spano;Georges Ravarani

The applicants were born in 1974, 1975 and 2003 respectively and live in Ankara.

In 2004 Duru Kurt’s parents took her to the Ankara SSK hospital because they thought that she was displaying symptoms of heart problems. The child was examined and then transferred to the Sami Ulus paediatric hospital, where she was treated for two years, after which the doctors decided that she should undergo heart surgery.

Before the operation, which took place on 19 July 2006, the patient’s father signed a form setting out the potential risks facing his daughter in undergoing the surgical operation, consenting to the operation (“the consent form”).

During the post-operative check-ups a leak was detected on the periphery of the membrane covering the incision.

On 8 February 2007, by decision of the hospital medical board, the patient underwent a second operation carried out by a different medical team. Prior to the operation, the patient’s father signed a consent form identical to the first one. That form did not mention any risk of a serious neurological problem, but specified that the list of possible sequelae was not exhaustive.

After that second operation, the patient suffered an oedema, a brain haemorrhage, liver failure and muscle spasticity while in intensive care.

On 6 July 2007 the applicants lodged a complaint against the doctors who had carried out the operations.

On 11 July 2007 the medical board of the Dışkapı paediatric hospital in Ankara diagnosed the child with a severe irremediable psychomotor disability (caused by hypoxic ischemic encephalopathy), estimating her disability rate at 92%.

On 16 July 2007, pursuant to standard procedure, the prosecutor’s office applied to the Governor of Ankara for authorisation to prosecute.

The report drawn up following the internal investigation commissioned by the Governor’s Office stated that the patient was suffering from a very serious congenital heart disease, that treating that disease would entail a high-risk surgical operation and that in 52% of cases a leak was noted around the membrane, necessitating a second operation. It concluded that the medical team had not been guilty of negligence during the first operation.

According to the aforementioned report, the second operation, which had been carried out to rectify the leak, had also been very risky. The report pointed out that the patient’s neurological complications had been a common occurrence during open-heart surgery and that they occurred when artificial pumps were installed to maintain blood circulation or where the patient was placed in hypothermia. It added that the patient continued to suffer from sequelae despite the treatment administered after the second operation. In conclusion, the investigator recommended not authorising a criminal prosecution. This preliminary investigation report explained that the relevant persons had been questioned by the instigator. It is not known in what capacity the author of the report, who is a doctor, was involved or to which hospital he is attached.

On 6 September 2007, as recommended by the preliminary investigation report, the Governor’s Office refused to authorise prosecution.

The applicants’ challenge to that administrative decision was dismissed by the Regional Administrative Court on 18 December 2007 on the grounds that the preliminary investigation report and the appendices thereto were not such as to enable the prosecutor’s office to instigate a judicial investigation.

Consequently, on 28 September 2008 the prosecutor’s office issued a discontinuance decision.

Concurrently with the criminal proceedings, the applicants lodged a complaint with the Ankara Medical Association.

The expert appointed by the latter submitted his report on 14 July 2008. This one-page document stated that the patient had displayed a congenital anomalous left coronary artery from the pulmonary artery (ALCAPA), that open-heart surgery had been carried out in order to irrigate the left coronary artery from the aorta, that six months later a leak had been detected on the membrane which had been applied to the incision during that first operation, that a second operation had been carried out which had resolved that problem, but that the patient had suffered a stroke. The expert pointed out that the patient’s anomaly had been extremely serious, that it was liable to be fatal, and that the probability of complications occurring during or after such an operation had been high. The expert took the view that the second operation, geared to treating a foreseeable complication stemming from the first operation, had in fact been even riskier. He considered that open-heart surgery presented risks not only to the organ being operated on but also to other organs. The expert concluded his report as follows:

“The stroke [suffered by] the patient Duru Kurt was one of the possible complications occurring during open-heart surgery.

No negligence or fault has been noted on the part of the medical teams which carried out the first and second operations. The teams showed great efficiency and a high degree of medical expertise. The complication [which occurred in the present case] was an eventuality which can be observed in cases of anomalies [such as that suffered by the patient] and as a result of open-heart surgery.”

On 23 May 2008 the applicants brought an action for damages against the doctors before the Ankara Civil Court of General Jurisdiction (“CCGJ”) alleging that they had not practised their profession properly and had caused the very severe sequelae with which their daughter Duru Kurt was afflicted. In support of their claim they submitted a private expert report dated 13 May 2008 on the amount of the damages.

On 26 March 2009 the CCGJ appointed a board of experts comprising two professors and a lecturer in cardiovascular surgery from Ankara University.

The board of experts submitted its report on 31 July 2009.

According to that report the patient had originally been diagnosed with dilated cardiomyopathy (an illness which significantly diminishes the “pumping” capacity of the heart) at Ankara University Hospital, and following more detailed examinations at the Sami Ulus Hospital, ALCAPA, also known as Bland-White-Garland syndrome, had been diagnosed.

The experts explained that the patient had undergone a Takeuchi operation to create an intrapulmonary tunnel and that a leak had been noted on the periphery of the membrane during the check-ups conducted six months later. They stated that that leak had led to a second surgical operation, that the patient had been placed on respiratory support owing to the emergence of a tonic-clonic contraction after the operation and that the neurological sequelae had appeared during that period of intensive care.

After those initial findings, the experts stated in their report that the heart disease from which the patient suffered and for which she had undergone surgery was rare, accounting for 0.5% of all congenital heart diseases. Without treatment the mortality rate was between 80% and 90%, and those affected seldom reached adulthood. The board of experts considered that the only treatment for that disease was surgery, and that the most appropriate type of surgery was the Takeuchi operation. The board added that the latter had a mortality rate of up to 23%, that in 50% of all cases a leak could occur around the membrane following such heart surgery and that, taking all types of complications together, the rate of re-operation was up to 30%.

The experts added that in 10% to 29% of cases congenital cardiovascular diseases were accompanied by neurological disorders, and that a multi-country study had shown that the rate of neurological damage in the immediate post-operative period stood at 20%.

In their conclusions, the experts pointed out that ALCAPA was a very serious heart disorder and that the patient’s parents had signed a consent form before their child’s operation. They considered that the fact of the patient’s dilated cardiomyopathy had further exacerbated the already serious risks posed by the operation. According to the report, the leak which had been observed around the membrane after the first operation had been a complication which occurred in 50 % of cases, and the operation carried out to resolve that issue had been even riskier than the first one. The experts also pointed out that the neurological damage suffered by the patient had been a complication which was often encountered in cases of patients suffering from a congenital heart defect who underwent post-operative intensive care.

The report, which quoted twenty or so bibliographical sources, ended with the following words:

“In short, this patient’s situation could be seen as one large complication. There can be no question of the doctors having committed a medical or surgical error.”

The applicants contested the report, deeming it inadequate. They considered that the document, which cited scientific studies, was more like a magazine article than an expert report. It contained no concrete and objective facts about the case in hand and would not help in determining the dispute. The applicants did not deny that there had been a risk, but considered that neither that risk nor the signing of a consent form released the doctors from their duty to practise their profession properly. They submitted, however, that the report, which lacked any explanations or reasoning on that point, had not mentioned any checks carried out with regard to the risk factors. Consequently, they asked the court to commission a second expert assessment, either from a different medical board or from a specialist section of the Istanbul Institute of Forensic Sciences.

By judgment of 3 November 2009 the CCGJ rejected the applicants request for a second expert assessment.

With regard to the expert report of 31 July 2009 and the facts set out in the prosecution investigation file, the court held that the doctors had not been responsible for the sequelae affecting the child after her high-risk operations, to which her parents had given their consent.

The parents lodged an appeal on points of law against that judgment, reiterating their previous criticism of the expert report, which they considered inadequate. They also emphasised that the report had been based on the medical file and that their daughter had not been examined by the experts. Furthermore, under established case-law, the experts should have begun by explaining the acts and procedures required by medical lege artis and comparing them with the acts which the doctors in question had actually carried out in order to determine whether and how far the said rules had been observed. Furthermore, they submitted that it was not the courts’ usual practice in this type of case to confine themselves to a single expert report. In that connection, the rejection of their request for a second expert report had amounted to a blatant injustice. They alleged, moreover, that one of the doctors who should have been present during the operation had stayed away from the theatre after having been alerted by telephone that the patient’s heart had stopped during the operation, pointing out that the expert report had neither analysed nor even mentioned that fact.

Their appeal was dismissed by judgment of 20 April 2010.

On 7 October 2010 the Court of Cassation also dismissed the applicants’ application for rectification.


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

The applicant, Mr B.T., is an Uzbek national who was born in 1977. 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 N.N. Motuz, a lawyer practising in Simferopol.

The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

The applicant complained under Article 3 of the Convention about the real risk of ill-treatment in the event of his extradition to Uzbekistan.

On 19 July 2016 the applicant’s request for an interim measure under Rule 39 of the Rules of Court was granted. It was indicated to the Russian Government that the applicant should not be extradited until further notice. At the same time the Court, acting under Rule 54 § 2 (a) of the Rules of Court, requested the Government to provide factual information regarding the extradition proceedings.

On 30 August 2016 the Government provided the requested information, arguing in particular that the applicant did not face any real risk of ill-treatment in Uzbekistan because he did not belong to any vulnerable group and because the Uzbek authorities had provided relevant assurances.

On 19 December 2013 an investigator in Uzbekistan opened a criminal inquiry into the applicant’s actions. On 25 December 2013 he was indicted on charges of trafficking in drugs, a search warrant was issued in his name and his detention was ordered in absentia.

According to the applicant, at the end of January 2014 he crossed the Russian border and subsequently moved to the Crimea.

On 29 June 2015 the applicant was arrested.

On 24 July 2015 an extradition request was submitted by the Uzbek authorities.

On 7 April 2016 the applicant’s extradition was authorised by a deputy Prosecutor General of the Russian Federation. The applicant challenged the decision in court.

On 19 May 2016 the extradition order was upheld on appeal.

On 28 July 2016 the Supreme Court of the Russian Federation upheld the appeal court’s decision. The applicant’s extradition authorisation became final and enforceable.

In response to the applicant’s arguments under Article 3 of the Convention, the Supreme Court stated that the applicant did not face a risk comparable to persons belonging to vulnerable groups identified by the international reports. They considered that he voluntarily left Uzbekistan in pursuance of family life in Russia and was charged with a drug-related offence, which was not a politically or religiously motivated crime. They referred to the assurances of the Uzbek authorities and argued that he had failed to prove that his individual circumstances justified the conclusion that he would face a risk of ill-treatment if extradited to Uzbekistan. In the relevant part the judgment read as follows:

“Having considered the complaints concerning possible torture of B.T. [in Uzbekistan], which would prevent his transfer to Uzbek authorities, [the court] notes the following.

It follows from the World Report 2016 [by Human Rights Watch] on the situation in Uzbekistan, as well as reports on the criminal justice system in Uzbekistan of the UN and international non-governmental organizations, submitted by the representative of B.T., that there are instances of the use of torture, ill-treatment by law enforcement officials, and systematic persecution of political opposition, human rights activists, journalists, [non-orthodox] Muslims and Christians.

Judicial consideration of this complaint by B.T. did not reveal circumstances capable of leading to a conclusion that he would be subjected to the risk of cruel treatment or torture in case of extradition to Uzbekistan.

In his statements after arrest and during the court hearings B.T., an ethnic Uzbek, did not claim that he belonged to any opposition movement or a religious group. He did not justify his departure from Uzbekistan by any persecution on political, religious, ethnic, faith, or social grounds. Neither did he raise these arguments in his appeal. According to B.T.’s statements in court he arrived to Crimea, where his relatives (mother and brother) reside, with the purpose of establishing a family.

The charges of drug-related offences pursued against B.T. also have no political or religious basis.

Under these circumstances the written assurances of [Uzbek authorities], compliant with international legal standards, as well as assurances that the criminal prosecution will be pursued in strict compliance with criminal procedure legislation and international treaties, must be considered sufficient...

Any other conclusion in absence of specific information on the existence of a real risk of violation of [B.T.’s Article 3 rights] would be a mere speculation.

Violations of the said Convention provision in respect of persons charged with politically or religiously motivated crimes do not substantiate the conclusion that similar violations are going to take place in respect of B.T., who is accused of a common criminal offence.”

On 22 December 2016 the applicant was released on his own recognisance because of the expiry of the maximum statutory period of detention.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review by a court;Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review by a court;Speediness of review)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

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

The applicants complained of the excessive length of their pre-trial detention. Some applicants also raised other complaints under the provisions of the Convention.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 6+6 - Right to a fair trial (Article 6-3-c - Defence through legal assistance) (Article 6 - Criminal proceedings;Right to a fair trial;Article 6-1 - Fair hearing)

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Yonko Grozev

The applicant was born in 1975. He is currently serving a life sentence in Sofia Prison.

On 2 July 1999 two armed individuals burst into a bureau de change in Burgas. Shots were fired and two staff members were killed. The criminals fled with a sum of money.

On the same day the Burgas investigatory department instigated criminal proceedings against X for armed robbery and homicide.

On 3 October 1999 the applicant, Mr Lyuben Simeonov, was arrested in Sofia by a team from the special unit of the Interior Ministry. He was transferred to Burgas.

At 8 p.m. on 4 October 1999, an investigator from the Burgas investigatory department placed the applicant in detention for twenty-four hours. He was suspected of having committed the armed robbery and the two murders of 2 July 1999, aided and abetted by a certain A.S. On the following day a prosecutor from the Burgas regional prosecutor’s office extended his detention by three days.

The applicant submitted that despite his express requests he had not been assisted by a lawyer for the first three days of his detention. During that time the officials responsible for the investigation had questioned him about the robbery and the two murders committed in Burgas on 2 July 1999.

On 6 October 1999 the investigator appointed an official lawyer to defend the applicant. At 12 noon on the same day, in the presence of his officially appointed lawyer, the applicant was formally charged with committing armed robbery in the Burgas bureau de change and of the murder of two persons, and placed in detention. He refused to answer the investigator’s questions.

On 12 October 1999 the applicant was questioned in the presence of two lawyers of his choice. He remained silent.

On 21 October 1999, assisted by his two lawyers, he confessed. His presumed accomplice, A.S., also confessed to the criminal offences charged.

The officers responsible for the investigation subsequently gathered a substantial body of evidence, including witness accounts and medical, scientific, material and documentary evidence.

On 4 January 2000 the applicant and A.S., assisted by their defence lawyers, took cognisance of the documents in the investigation file. They retracted their confessions, and their lawyers requested a fresh interrogation of their clients.

On 16 February 2000 the Burgas regional prosecutor referred the file to the investigator for further inquiries. He asked him in particular to conduct a number of investigative measures and once again to formally charge both suspects.

On 7 March 2000 the applicant was charged with an additional offence, namely the unlawful purchase of the firearm which had been used during the robbery of 2 July 1999. On the same day the two suspects were questioned in the presence of their lawyers. In his depositions the applicant related a version of events to the effect that the robbery and murders in question had been committed by a certain V., an Iranian national, aided and abetted by an unknown second person.

On 17 May 2000 the regional prosecutor’s office drew up the indictment and committed the applicant and his presumed accomplice for trial before the Burgas regional court.

The regional court considered the criminal case between 25 July 2000 and 14 June 2001. During the proceedings the applicant, who was assisted by a lawyer, submitted that he and his presumed accomplice had indeed been in Burgas on 1 July 1999 and that they had indeed intended to commit a robbery in the bureau de change, but that they had changed their minds and returned to Sofia the same day.

On 14 June 2001 the Burgas regional court delivered its judgment. The applicant was found guilty of armed robbery in the Burgas bureau de change, which crime had been accompanied by the murder of two persons and committed with the complicity of A.S. He was also found guilty of the unlawful purchase of a pistol and ammunition. The regional court imposed the heaviest sentence available under the Bulgarian Criminal Code, namely a whole-life sentence. In accordance with section 127b [1] of the Law on the Execution of Punishments, the regional court ordered the applicant’s placement under the so-called “special” prison regime.

Drawing on the evidence gathered during the preliminary investigation and at the hearing, the regional court established the facts as follows: the applicant’s former partner, D.K., had started work as a cashier in the bureau de change in question in 1997 when she was still living with the applicant. While working there she had met the first victim, a certain N.B., who was a close relative of the owner and an employee in the same establishment. In June 1999 D.K. had left the applicant and moved in with N.B. in Burgas. The applicant had then decided to kill N.B. and to steal the cash kept in the bureau de change. He had purchased a “Makarov” pistol, a silencer and ammunition. The applicant had persuaded a friend, A.S., to take part in the robbery. On the afternoon of 1 July 1999 the applicant and A.S. had arrived in Burgas by bus. They had then gone to the building in which the bureau de change was located, and had gone up to the top floor to spend the night. Next morning, just before 9 a.m., they had descended to the floor on which the bureau de change was located and noted that N.B. was in the premises alone. A.S., who had been carrying the pistol, had burst into the premises and fired one point-blank shot at the victim’s left temple. The young man had died instantly. The two accomplices had then placed the money which they had found in the bureau de change in a bag which they had brought with them. Meanwhile the armed security guard of the bureau de change, a certain P.I., had rushed into the premises where the first victim had been killed. A.S. had fired two shots at him, hitting him in the face. The security guard had been killed instantly. A.S. and the applicant had left the building. They had then concealed the murder weapon under a rubbish bin, thrown away the clothes they had been wearing and hidden the stolen money. Some time later the two men had ordered a certain E.E. to fetch the money for them, which he had done.

The applicant appealed against that judgment. He complained that insufficient reasons had been given for the conviction, that his guilt had not been established, that the first-instance court had reached an erroneous decision, that there had been several breaches of the procedural and substantive rules under domestic law and that the regional court had shown bias.

The applicant’s lawyer requested the withdrawal of all the judges of the Burgas Court of Appeal. He argued that the media coverage of the criminal case had created a climate of intolerance and hostility towards his client. The defence called for an additional witness to be summoned, the re-examination of one of the witnesses already questioned by the court of first instance, and several additional expert opinions. On 4 December 2001 the judge-rapporteur responsible for the criminal case rejected the requests for further evidence-gathering as irrelevant. He dismissed the challenge to the judges of the Court of Appeal for lack of evidence of bias.

The Court of Appeal considered the criminal case between February and July 2002. It questioned a new witness and received additional conclusions from psychiatric experts on the mental state of the two accused.

On 6 August 2002 the Burgas Court of Appeal upheld the judgment of the court of first instance, giving its full backing to the latter’s factual and legal findings. The evidence gathered during the preliminary investigation, presented before the court of first instance and produced for the first time before the Appeal Court had demonstrated that the two accused had planned and carried out the robbery in the bureau de change and that the two victims had been killed by A.S. Yet the applicant had been the instigator of those murders and had provided the weapon used by his accomplice. The Court of Appeal drew on the depositions of the many witnesses questioned during the assessment of the case, on the results of the ballistic, technical and accountants’ reports and the medical and psychiatric opinions, and also on the material and documentary evidence gathered.

The Court of Appeal observed that the accused’s initial depositions during the preliminary investigation had differed considerably from their submissions to the court of first instance. The initial depositions had corroborated the finding concerning their participation in committing the criminal offences in issue, whereas the subsequent ones set out a version of events to the effect that an Iranian national had committed those offences. The Court of Appeal gave credence to the accused’s initial depositions, which had been made to an investigator in their lawyers’ presence after they had been formally charged. The two individuals thus charged had been advised that their statements could be used in court with a view to establishing the facts, and their prior medical examination had revealed no sign of physical violence, which contradicted the defence lawyer’s allegation that the applicant’s initial confession had been extracted from him.

The Court of Appeal turned its attention to the applicant’s version of events stating that the two murders and the robbery had been committed by a certain V., an Iranian national, and that the applicant himself had been at his place of work in Sofia at the material time. Verifications carried out in the Interior Ministry database had shown that no Iranian national of that name was present in Bulgaria. It was true that the applicant had been at his place of work in Sofia on 2 July 1999. However, he had been working as a night watchman and the robbery and murders had been committed early in the morning, which had given him enough time to cover the distance between Burgas and Sofia and to arrive at work the same evening. The Court of Appeal deemed unconvincing the statement by the only witness who had corroborated the applicant’s version of events.

The Court of Appeal noted that the judgment of the court of first instance displayed none of the procedural defects mentioned by the defence. The factual and legal findings of the regional court had not been exclusively based on the accused’s confessions but on the whole body of consistent evidence gathered during the criminal proceedings. The applicant had participated actively in the proceedings and his lawyers had submitted several requests linked to the progress of the trial and the gathering of evidence. The regional court had responded to all those requests and had provided full reasons for its procedural decisions. There had been no sign of bias on the part of the judges who had examined the case, and the proceedings had been conducted in such a way as to safeguard the parties’ interests.

The Court of Appeal excluded a statement by one witness from the evidence for non-compliance with the procedural rules, but did not consider that statement decisive in terms of the factual and legal conclusions in the case. The problem was that the regional court had been dilatory in issuing its grounds of judgment. However, the defence had been able to submit additional observations on appeal after having secured a copy of the grounds of judgment.

The applicant lodged an appeal on points of law, reiterating his submissions to the Court of Appeal.

By a judgment of 17 December 2003 the Supreme Court of Cassation dismissed the applicant’s appeal on points of law. That court found that none of the circumstances mentioned by the defence demonstrated the existence of bias on the part of the judges who had considered the criminal case. The applicant had had an opportunity to defend himself effectively during the criminal proceedings: he had given evidence and challenged the evidence against him. Some of his requests for further evidence-gathering had been accepted by the lower-level courts, and proper reasons had been given for their rejection of other evidential requests as mentioned by the defence.

Furthermore, in adopting the appeal court’s other arguments, the Supreme Court of Cassation considered that the facts had been well established, that the substantive and procedural legislation had been appropriately applied and that the accused’s rights had been fully respected.

The applicant was held in Burgas Provisional Detention Facility from 5 October 1999 to 27 January 2000, and again from the beginning of March to 14 April 2000. He was incarcerated in Burgas Prison from 27 January 2000 to the beginning of March 2000, and again from 14 April 2000 to 25 February 2004. On the latter date he was transferred to Sofia Prison, where he is still being held.

The applicant submitted that he had been held in a cell without window, toilets or running water. The premises had had poor ventilation and lighting. He had not been allowed to exercise in the open air. Access to sanitation had been restricted and the time allowed for washing had been insufficient. The applicant emphasised that the conditions of hygiene in the detention facility had been deplorable. He had subsequently been moved to another cell with two other detainees. The three detainees had had to take turns sleeping because the cell only had one bench.

According to a rapport by the Director General of Prisons submitted by the Government, at the time the only furniture in the cells in Burgas Provisional Detention Facility had been a bench. The cells had had no windows and the only daylight had entered through holes in metal plates affixed to the doors. The facility in question had only had one shared toilet and bathroom and lacked any open-air facilities for detainees. The rapport also mentioned that between 2002 and 2009 the facility had been completely renovated and redeveloped to bring the conditions of detention into line with the detainees’ human dignity.

The applicant alleged that his cell in Burgas Prison had had a surface area of 6 m2. It had contained a bed and a metal rack. There had been neither running water nor toilets in his cell. He had used a plastic bucket for his bodily functions. Like all the prisoners he was allowed out of his cell for thirty minutes three times a day, in order to empty the bucket and fill his water bottle. The applicant submitted, in support of those allegations, a statement by his co-accused A.S., who had been detained with him under the same conditions in Burgas Prison. The applicant added that he had been forced to wear a convict’s uniform even though he should have been allowed to wear his own clothes, under the prison rules.

The applicant explained that at the beginning of his term in Burgas Prison he had been deprived of open-air exercise. According to A.S.’s statement (see paragraph 35 above), prisoners were allowed one-hour’s open-air exercise every other day. The applicant was not involved in any organised activity in Burgas Prison. He had submitted several requests to the prison authorities to allow him to join in the various vocational training and occupational programmes and had applied for a transfer to Sofia Prison in order to be closer to his family, but no action had ever been taken on his requests.

According to a report by the Director of Burgas Prison submitted by the Government, the applicant had problems adapting to the prison regulations; his attitude to the wardens and the prison authorities had been refractory and disrespectful. However, the applicant had enjoyed all the rights afforded to persons deprived of their liberty. He had board and lodging in accordance with normal prison standards. He had open-air exercise every day and free access to the prison library. He had consulted a psychologist on several occasions and had had a number of meetings with the official responsible for activities in the prison.

Following his transfer to Sofia Prison the applicant had been subject to a “special” prison regime involving virtually total isolation from the rest of the prison population.

The applicant submitted that over the period from February 2004 to summer 2006 he had been confined to a cell measuring 4 x 2 metres which he had shared with another prisoner. The two beds had taken up most of the floor area, leaving the two prisoners with a free area of only 2 m2. There had been no running water in the cell and the prisoners had used a bucket as a toilet.

The applicant stated that he had spent most of the day sitting on his bed for lack of free space in the cell. He had eaten his meals in the cell and had been allowed to walk in the prison yard for one hour every day. His access to the prison library had been limited to the few minutes it took to choose and borrow a book, after which he had been immediately taken back to his cell. He had been allowed to attend the prison chapel twice a year, at Easter and Christmas, although not during worship so that he would not meet other prisoners.

The applicant added that up until 2005, the high-security wing of the prison had been overcrowded and ill prisoners had not been held separately from other prisoners, which had fostered the transmission of infectious diseases. Material conditions had improved somewhat after the works in the high-security wing in 2005 and 2006. In December 2008, his prison regime had been relaxed. However, like all prisoners in his category, he had still been kept separate from the rest of the prison population and his cell had been kept locked during the day. In 2004 and 2005 he had occasionally worked in his cell folding envelopes. Since 2010 he has been allowed into an activities room where he can talk to other life prisoners and read books.

According to a report by the Director of Sofia Prison dated 11 October 2011, the high-security wing of Sofia Prison had been completely renovated in 2005 and 2006. On the date of the report in question the applicant had been held in an individual cell measuring 7.7 m2 and containing a bed, a table, a rack, a shower and private toilets. His cell had been heated and had running water and proper lighting.

Apart from the restrictions imposed by his prison regime, the applicant benefited from all the activities provided to other prisoners: he could work, visit the library and the prison chapel, receive visits from his relatives, write and receive letters. He was also eligible for relaxation of his prison regime under section 198 of the Prisons Act, subject to a favourable opinion from the relevant special commission, and could ultimately be accommodated with the rest of the prison population.

Furthermore, in 2010 the applicant applied for the annulment of a number of the provisions of the implementing regulations of the Prisons Act concerning the manner and method of execution of his life sentence. His application was finally dismissed by a judgment of 14 September 2011 delivered by the Supreme Administrative Court, which found that the challenged provisions of the implementing regulations were not contrary to the Prisons Act and that the adoption of the regulations had not involved any irregularities justifying their annulment.

In June 2001, while in Burgas Prison, the applicant began a hunger strike in protest against the authorities’ refusal to transfer him to Sofia Prison. He was monitored by the prison medical team while on hunger strike. In July 2001 his state of health worsened and he was transferred, on the initiative of the prison authorities, to the Sofia Prison hospital. On recovery he returned to Burgas Prison.

On 26 October 2004 the applicant was taken to the Sofia Prison hospital. Medical examinations revealed that he was suffering from tuberculosis. He received medicinal treatment at the hospital until 15 November 2004. He subsequently asked the prison authorities to allow him to take more exercise in the open air, which request was rejected. The applicant submitted that he had been unable to obtain a diet suited to his state of health either during or after his treatment in the prison hospital.

According to the 11 October 2011 report by the Director of Sofia Prison, after his stay in the prison hospital in 2004 the applicant had been given regular medical examinations and biological control analyses. The results of his latest examinations in 2011 had shown that his illness had not returned.

In August 2010 and January 2011 the applicant was taken into hospital for headaches and insomnia. He was examined and biological analyses were carried out. The doctors concluded that he was suffering from chronic headaches. No serious complications were detected. The applicant received medicinal treatment and the headaches ceased on release from hospital.

According to the same report, the applicant had several appointments with the prison dentist and another dentist chosen by his relatives.

Furthermore, according to the above-mentioned reports by the Directors of Sofia and Burgas Prisons, the prisons run a prevention and screening programme for tuberculosis comprising prophylactic examinations, medical analyses in cases of suspected infection and hospitalisation of prisoners positively diagnosed with the disease. Specific groups of prisoners such as drug addicts, HIV-positive persons, persons having previously suffered from tuberculosis and diabetics are the subject of special monitoring by the prison doctors.


Remainder inadmissible;Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The applicant was born in 1964 and lives in Kostrena.

Between 1 October 2003 and 1 October 2007 the applicant was the director of a municipal utility company, KD Kostrena (hereinafter “the company”), whose sole shareholder is the Municipality of Kostrena (Općina Kostrena). The company primarily provides public utility services such as parking, waste disposal, funeral services, maintaining green spaces, cemeteries and so forth.

In an article published in the daily Novi list of 19 September 2007, Mr M.U., who was the mayor of Kostrena Municipality and chairman of the company’s General Meeting (skupština) at the time, criticised the way the applicant performed her job. The relevant part of the article reads as follows:

“ ... M.U. does not hide his dissatisfaction with the work of Mirela Marunić as head of KD Kostrena.

‘I cannot speak for the others, but after everything that has happened, I can say that Mirela Marunić has betrayed the trust of the members of the General Meeting because she disclosed information which should only have been discussed at the General Meeting. Likewise, in the 2005 [annual] report she spoke in positive terms of building a sports hall, and I do not know what happened to make her change her mind.’

In his words, dissatisfaction with the functioning of KD Kostrena goes beyond the current political crisis in Kostrena and the public statements of Mirela Marunić.

‘The fact is that we had even earlier objected to Mirela Marunić’s work because [the company] has been stagnating for some time now and functioning as a means of transferring municipal funds. Our municipal utility company does not carry out the type of business for which it was established. For example, Žurkovo Bay was leased as a parking lot and a dry [dock] marina, and the same applies to the parking lot near Kostrenka. My question is, how does it benefit the concessionaires to have it and in addition pay rent for it? Had it stayed in our hands we would, apart from making a profit, also have had the chance to employ someone’. M.U. does not hide his dissatisfaction.

In a lengthy list of criticisms of the current director of KD Kostrena, M.U. states that he does not like the fact that she has been referred to as a member of his [political] party. He claims that he was the one who had advised her when she was appointed to the position as head of Kostrena’s municipal utility company not to make public statements as a member of [their political party] because someone could misinterpret [the nature of] her work and the way she came to get that position.”

In an article published in Novi list eight days later, on 27 September 2009, the applicant replied to the above criticisms. The relevant part of that article reads as follows:

“The mayor of Kostrena, M.U., has publicly criticised the current director of KD Kostrena for having disclosed information which should only have been discussed at the General Meeting and for the company’s poor performance, saying it does not engage in the type of business for which it was established.

‘They betrayed my trust by not believing me. I first informed my [political] party but there was no reaction. In particular, at a meeting held before the September session of the General Meeting [of the company] last year, I warned them of all the irregularities, the financial losses and the ruining of KD Kostrena’s business reputation. Then they asked me not to talk about it in the presence of D.G. [who was the only member of the company’s General Meeting from the ruling political party at the State level],’ says Mirela Marunić, repeating that there are written documents in respect of all the issues she had warned the General Meeting about.

As regards M.U.’s remark that the company has been stagnating under her leadership, she says that Kostrena Municipality, which does not have a development strategy, has itself been stagnating ... The main precondition for that ... would be, in her opinion, the resolution of property issues which remain outstanding in the case of most of the parking lots administered by Kostrena’s municipal utility company. Marunić illustrates this by referring to the Viktor Lenac parking lot where the municipal utility company has been charging for parking on land which was not even owned by Kostrena Municipality.

‘The legal department of Kostrena Municipality still requires [the company] to charge for parking even though [the company] Lenac refused to do so because of unresolved property issues. That case has now gone to court,’ warns Marunić, ‘and a similar situation exists with the parking lot in Žurkovo and [the one] near Kostrenka, which have been leased out.’

‘Given that my work has been called into question I demand an audit of KD Kostrena, and the involvement of the Office for the Prevention of Corruption and Organised Crime and the State Attorney’s Office. I sincerely hope that the State institutions will do their job in this case, as that will save Kostrena. Kostrena needs professionals, but they are being removed, the proof of which is the proposal to remove T.S. as a member of the General Meeting. I hope that a young and ambitious person will replace me and continue the work the municipal utility company has been doing so far.’”

By a decision of the company’s General Meeting of 11 October 2007 the applicant was summarily dismissed because of the statements she had made in the media, which were regarded as being damaging to the company’s business reputation. The relevant part of that decision reads as follows:

“On 27 September 2007 the Novi list daily published an article ... stating that the director of KD Kostrena, Mirela Marunić, had given a statement to [a] journalist of Novi list saying that KD Kostrena was acting unlawfully, that it was charging for parking where it was not allowed, that she demanded an audit of KD Kostrena, and the involvement of the Office for the Prevention of Corruption and Organised Crime and the State Attorney’s Office with a view to looking into KD Kostrena’s operations.

The director Mirela Marunić was at the time of the publication of the article ... employed as [chief executive officer] of KD Kostrena, that is, the officer who heads the company and is responsible for the consequences of her own work. Making such allegations in a daily newspaper, if those allegations are true, testifies to unlawful conduct in her job precisely because it is her duty as the officer in charge [of the company] to monitor and make sure that the utility company operates in accordance with the law. If, on the other hand, those allegations are not true but were nevertheless made in the publication that has the largest circulation in the area [of the country] then those allegations gravely harm the [business] reputation of the company because they suggest that KD Kosterna operates unlawfully.

That kind of conduct, by an employee who was at the time of the publication of the statement in the daily newspaper the director of the utility company, which she headed, who makes such allegations in the media or engages in unlawful conduct, constitutes, in the opinion of the company’s General Meeting, totally inappropriate behaviour which tarnishes the company’s [business] reputation in the eyes of the public. ..

Such conduct ... depicting the utility company in a negative light [constitutes] a particularly serious breach of employment-related duties, and is a particularly important fact which, taking into account all the circumstances and the interests of both contracting parties, makes the continuation of the employment relationship impossible [under section 107 of the Labour Act].”

On 22 October 2007 the applicant launched an internal challenge to her dismissal by lodging a request for the protection of her rights (zahtjev za zaštitu prava), a remedy which is guaranteed for every employee by the Labour Act and which employees had to use before bringing a civil action against their employer. The applicant argued, inter alia, as follows:

“I contest entirely the argument that by making statements in the media I acted inappropriately and allegedly attacked the [business] reputation of the company ...

The utility company is a public company which belongs to the [local] community ... It was my duty, as a member of the [company’s] Management, to contact the media and inform the public because it is a public company and not someone’s private property. I particularly emphasise that I have always given accurate information to the public.

It is a well-known fact that the media show a great interest in Kostrena Municipality because of political turbulence among those heading the Municipality. However, my observations were always a defence against the media attacks directed against me by the chairman of the General Meeting.

.. it is totally unclear what unlawful conduct I engaged in??? It is true that I warned about unlawful acts [by the company] but [I did so] directly to the General Meeting and the Supervisory Board. My statements were not directed against the utility company but made solely and exclusively with a view to removing any potential liability from myself. Therefore, the arguments in the dismissal decision are a twisted interpretation of the events.”

It appears that the applicant received no reply to her request. On 21 November 2007 she therefore brought a civil action for wrongful dismissal against the company in the Rijeka Municipal Court (Općinski sud u Rijeci). She challenged the decision to dismiss her and sought reinstatement. The relevant part of her statement of claim read as follows:

“The defendant obviously did not properly read the [impugned] article because the plaintiff merely states some facts in it and, as an example, refers to a particular case of unresolved property issues, which is already the subject of judicial proceedings, and calls for an audit and the involvement of [the prosecuting authorities] with a view to protecting her integrity by expressly stating: ‘Given that my work has been called into question I demand an audit of KD Kostrena, and the involvement of the Office for the Prevention of Corruption and Organised Crime and the State Attorney’s Office.’”

By a judgment of 12 June 2008 the Municipal Court ruled in favour of the applicant. The court accepted that her statements in the media had been damaging to the company’s business reputation and as such had constituted a serious breach of employment-related duties within the meaning of section 107 of the Labour Act (see paragraph 23 below), making her summary dismissal justified. However, it ruled in the applicant’s favour because it found that pursuant to her employment contract, her job as director of the company had ended on 1 October 2007, when the company had been required to transfer her to another job. That meant that she could not have been dismissed from her job as director, let alone dismissed with retroactive effect, as the decision to remove her had indicated. Furthermore, since the decision to dismiss her had specifically related only to her job as director, it could not be assumed that it had also entailed the termination of her entire employment relationship with the company, including the job to which she was supposed to have been transferred after 1 October 2007. The court thus found that the dismissal had been wrongful and that the applicant’s employment relationship had not been terminated. It accordingly ordered that she be reinstated and assigned to another job within the company.

By a judgment of 14 January 2009 the Rijeka County Court (Županijski sud u Rijeci) dismissed an appeal by the company and upheld the judgment of the firstinstance court. Its reasons, however, were different.

It first noted that, contrary to the opinion of the first-instance court, the decision to dismiss the applicant had been aimed at terminating the applicant’s entire employment relationship with the company, and not only her job as director, and had been capable of having that effect. However, the County Court also disagreed with the view of the Municipal Court that the applicant’s behaviour, namely her statements in the media, had constituted a serious breach of employment-related duties such as to justify summary dismissal. In that respect the County Court held as follows:

“... the defendant company’s [internal regulations] state that the business activities of the company are public [and] that the company informs the public by notifying the media of its organisation, the way and the conditions under which it operates, [and] the manner in which it provides services and runs its business.

It follows that neither the [internal regulations] nor the [applicant’s employment] contract prohibit public statements or criticism of the defendant company’s business activities, which are public.

Article 38 of the Croatian Constitution guarantees freedom of thought and [freedom of] expression, particularly emphasising freedom of speech and [the freedom] to speak publicly.

As established ... by the first-instance court, the plaintiff’s public statements had been made in reaction to the statements of M.U. published a few days earlier in Novi list on 19 September 2007, where he had criticised the plaintiff’s work and stated that she had betrayed the trust of the members of the General Meeting by disclosing information that should only have been discussed at the General Meeting, [had said] that the [company] was stagnating, that it did not operate the type of business for which it had been established [and so on] ...

Therefore, in this court’s view, the plaintiff’s actions should be interpreted as [the exercise of] her right to speak publicly and the right to freedom of thought, which are rights guaranteed by the Croatian Constitution.

Therefore, in the view of this court, the plaintiff’s conduct does not constitute a serious breach of employment-related duties as envisaged in section [107] of the Labour Act as grounds for summary dismissal.

Specifically, in the opinion of this court, the plaintiff’s statements are to be seen as [a way of] informing the public of irregularities in the activities of the defendant company as a public institution; [the statements] were given in the public interest and in good faith and constitute a value judgment rather than a serious breach of employment-related duties. The first-instance court therefore correctly applied the substantive law when finding the dismissal wrongful.”

The company then lodged an appeal on points of law (revizija) against the judgment of the County Court.

By a judgment of 6 October 2009 the Supreme Court (Vrhovni sud Republike Hrvatske) reversed the County Court judgment and dismissed the applicant’s action. The relevant part of that judgment reads as follows:

“The findings of the lower courts cannot be accepted. In this particular case, the aforementioned statements by the plaintiff clearly damaged the reputation of the defendant company, since an employer whose leadership structures tolerate and encourage criminal activities certainly cannot have a good reputation or be trusted in the business world. Therefore, the behaviour of the plaintiff, in stating on 27 September 2007 in the Novi list daily ... that the defendant company, which she heads, had acted illegally, namely by charging for parking when it was not allowed [to do so], asking that the [company] be audited, and also seeking the intervention of [the prosecuting authorities] with a view to verifying the activities of the defendant company, has significant repercussions on the employment relationship between the parties and gives the employer a justified reason for terminating the employment contract, within the meaning of section [107] of the Labour Act. Having regard to the given circumstances, it is precisely this which is a particularly important fact making the continuation of employment impossible ... In this particular case, the depiction by the employee of the employer’s business activities in an extremely negative light in the media is a particularly important fact of the kind which gives the employer a justified reason to terminate the employment contract.

The plaintiff’s reliance on her duty to speak publicly is unfounded. In this regard it is to be noted that the plaintiff could only have pursued her intention to prevent abuses and protect the property of the defendant company by turning to the relevant State authorities and lodging a complaint with them, which would have resulted in that information being available to the press and other media, and which could not have served as a reason for her dismissal.”

The applicant then lodged a constitutional complaint, alleging, inter alia, a violation of her freedom of expression. In so doing she explicitly relied on Article 38 of the Croatian Constitution and Article 10 of the Convention.

On 17 February 2011 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s constitutional complaint and served its decision on her representative on 14 March 2011. The relevant part of that decision reads as follows:

“The Constitutional Court observes that the complainant justifies her conduct towards the employer (namely, her media statements), on account of which the employer summarily dismissed her, by arguing that she had merely been calling for the supervision of her actions in the company by the relevant authorities. That argument is incorrect [having regard to her statements in] the article published in Novi list of 27 September 2009 ...

The Constitutional Court notes that the right ‘of a citizen’ to publicly express his or her personal opinions cannot justify a breach of employment-related rights and obligations stemming from an employment contract and the relevant legislation.”

Meanwhile, on 21 June 2002 KD Kostrena had brought a civil action in the Rijeka Municipal Court against the water and sewage utility company (Komunalno društvo Vodovod i kanalizacija d.o.o.) of Rijeka seeking to be declared the owner of the Viktor Lenac parking lot in Kostrena. By a judgment of 3 March 2008 the court dismissed KD Kostrena’s action. The final outcome of those proceedings is unknown. However, an extract from the land register concerning the two plots of land that were the subject of the proceedings suggests that the water and sewage company transferred ownership of the plots to shipbuilding company Viktor Lenac on 13 February 2014.

On 12 February 2007 the water and sewage company brought a civil action against KD Kostrena in the same court seeking repayment of the parking fees the defendant company had collected from the Viktor Lenac parking lot. The plaintiff company claimed that KD Kostrena had been charging for parking on land owned by the plaintiff. The final outcome of those proceedings is unknown.

In June 2013 the applicant won municipal elections and was elected mayor of Kostrena, replacing M.U. She still holds that position at the time of the Court’s judgment.


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 relevant details of the application are set out in the appended table.

The applicant complained of the inadequate conditions of detention and of the lack of any effective remedy in domestic law.


CASE OF CIORAP v. THE REPUBLIC OF MOLDOVA (No. 5)

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

Ján Šikuta;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani

The applicant was born in 1965 and lives in Chișinău.

The applicant was serving a sentence of eleven years’ imprisonment in Prison no. 13 in Chișinău. On 28 October 2006 he and five other detainees were in cell no. 20, reserved for the medical treatment of detainees with mental problems. Three of them, including the applicant, had a Category 2 disability. The applicant’s diagnosis was, inter alia, personality disorder.

At around 3 p.m. several men entered the cell to search for prohibited items. Some of the men wore dark masks and they were armed with rubber truncheons and metal shields. They ordered everyone out. According to the applicant, the masked men shouted at the detainees and insulted them, while hitting and pushing them. The Government dispute that any force was used or that there was any improper behaviour on the part of the men who had entered the cell. While in the corridor the detainees were ordered to stand with their faces to the wall. The search lasted for approximately half an hour. One prison officer recorded the events on video.

The detainees were then ordered back into the cell. According to the applicant, when he saw their possessions, including food brought to them by their relatives, medication and documents, scattered on the floor and in total disorder, he declared that he would return to the cell only after a prosecutor or a representative of the prison administration had made a report on the search and the disorder caused. He was then hit and thrown to the floor, kicked in the stomach, and the cell door was slammed with force while his foot was between the door and the doorpost, causing him great pain. His reading glasses fell to the ground and were smashed by one of the masked men. The Government submitted that no force had been used and that the cell had been left in good order.

After the search the applicant complained about his swollen foot and was taken by ambulance to a hospital in Chișinău at around 7 p.m. The doctor who examined him in that hospital diagnosed him with contusion of the soft tissues of the right ankle and a suspected fracture of the bone. His foot was then put in plaster.

On 31 October 2006 the applicant complained about ill-treatment to the Prosecutor General’s Office, the military prosecutor’s office and other State authorities. Four other detainees who had been held in the same cell made similar complaints.

On 28 November 2006 the applicant was examined by another doctor, who confirmed the diagnosis of a broken bone and found a haematoma on his right foot, corresponding to signs of violence and leading to long-lasting health problems (over twenty-one days). Further forensic examinations were carried out on 1 and 28 December 2006 and 3 May 2007. According to the applicant, these certificates confirmed that he had suffered an injury to his right foot. According to the Government, a further forensic examination carried out on 31 October 2007 contradicted the results of the previous ones, finding no conclusive evidence that the applicant had had a broken bone. The parties did not submit full copies of the last three reports mentioned above.

On 6 December 2006 a prosecutor from the Chișinău Military Prosecutor’s Office decided not to start a criminal investigation into the complaints made by the applicant and other detainees.

On 8 December 2006 a prosecutor from the Chișinău Prosecutor’s Office started a criminal investigation into the applicant’s allegations.

Between 28 November and 5 December 2007 several individuals, members of the “Pantera” special forces battalion who had taken part in the action of 28 October 2006, were charged with exceeding their powers by using excessive force against the applicant.

On 15 February 2008 a prosecutor from the Chișinău Prosecutor’s Office discontinued the criminal investigation. He found that on 28 October 2006 the applicant had disobeyed lawful orders of the prison staff during the search of his cell, acted provocatively, and refused to return to his cell. He had had to be taken there by force. Moreover, it could not be ruled out that he had caused injuries to himself in order to subsequently accuse the authorities of ill-treatment. The prosecutor noted that the applicant and four other detainees in cell no. 20 had confirmed, in their complaints and statements made to the investigator during the criminal investigation, that the masked men who had entered the cell on 28 October 2006 had caused great disorder, had insulted the detainees, and had hit them with rubber truncheons.

According to the statement of detainee S.B., on 28 October 2006 the detainees were taken out of cell no. 20 and ordered to stand facing the wall for approximately half an hour while their cell was being searched. They were then moved back to their cell, again by force. S.B. witnessed one of the masked officers slamming the cell door and crushing the applicant’s foot, threatening to break his hands if he continued to write complaints. Having watched the videotape of the search, S.B. submitted that the filming was selective, not showing the acts of violence in order to shield those who had carried them out from responsibility. At the end of the search the leader of the masked men did not identify himself and did not fill in any report about the incident.

Detainees A.G., V.Z. and B.I. made similar statements, each declaring that he had been personally hit and insulted and that the applicant’s foot had been shut in the cell door. The applicant’s statement was similar to those of the other detainees. He added that the video footage shown to him was only about six minutes long, while the entire event had lasted for approximately thirty minutes. Moreover, the various parts of the film were clearly not in chronological order.

One detainee, (V.S.), who had been taking his daily exercise during the search, confirmed seeing upon his return great disorder in the cell, with all the food and personal items broken up and thrown to the ground, and the detainees cleaning up the mess and complaining about being hit during the search.

Another witness, a member of the prison staff (I.V.), stated that he did not see any violence towards the detainees or any disorder being created in cell no. 20 during the search of 28 October 2006. Another member of the prison staff (P.P.), who was the head of the medical unit of Prison no. 13, stated that after the search on 28 October 2006 he saw disorder in cell no. 20, but did not see any food on the ground. The search lasted for approximately thirty minutes. He did not see the detainees re-enter their cell, but heard the conflict between the applicant and the masked men. He did not see any violence being used, but could admit that force had been used. Later on the applicant complained of pain in his foot and was taken to the emergency hospital, from which he returned with his foot in plaster.

According to witness A.P., who worked as a nurse in Prison no. 13, on 28 October 2006 she came to work at 4 p.m. and was called to cell no. 20, where the applicant was complaining of sharp pain in his foot. He was then taken to hospital by ambulance and returned with his foot in plaster. The cell was in disorder; the patients were agitated and were asking for urgent medical assistance for the applicant. During the initial examination A.P. found that the applicant’s foot was seriously swollen. He then told her that he had been hit by the officers during the search.

Witness E.B., a medical assistant in Prison no. 13, stated that she had not seen any of the events and had only heard the noise. She was later told by A.P. that after the search the applicant had asked for medical assistance to treat his foot.

According to witness P.C., a supervisor in Prison no. 13, on 28 October 2006 he was informed that someone was asking for medical assistance in cell no. 20, and sent A.P. there. When he himself entered the cell P.C. saw personal belongings and food scattered on the ground. The applicant then told him that the masked men had caused the disorder and had beaten them up, and that his foot hurt as a result of that beating. He also declared that during that day the applicant had not made any complaints about his state of health, but immediately after the search had complained of sharp pain in the foot. He was limping when he was taken to the ambulance.

According to witness M.M., a feldsher (paramedic) in Prison no. 13, on 28 October 2006 at 5 p.m he saw the applicant, who complained that he had been beaten up earlier, during the search. M.M. did not see any visible injury on the applicant’s body; the applicant could move his feet freely, but his right foot was swollen in the ankle area. The applicant limped when taken to the ambulance.

Three witnesses (A.V., O.H., and V.D.), all members of the prison staff, declared that they did not witness any violence against the detainees, or any disorder in cell no. 20.

(V.N.) stated that he had filmed “certain parts of the search” on a video recorder, using an 8 mm video cassette. He had not witnessed any disorder or violence towards the detainees.

Witnesses V.B. and I.I., who coordinated the actions of the various groups of prison staff and the Pantera special forces regiment (the masked men), declared that after the search their teams did not report having used force on anyone or having had any exceptional situation to deal with. Only the applicant had been uncooperative, but he was eventually persuaded to return to the cell without using force.

The prosecutor’s decision further analysed several reports in the file, including a report confirming the destruction of the applicant’s reading glasses. A video filmed by V.N. during the event, lasting for six minutes and thirty-six seconds and registered on a compact disk, showed the detainees leaving their cell voluntarily; the presence in the cell of masked men; the applicant’s request to be allowed to take his belongings with him and the refusal of that request; it showed various objects in the cell and the presence in it of detainee V.Z. The cell was in good order. The next scene showed the applicant refusing to comply with I.V.’s order to return to the cell. The next scene showed the applicant sitting on the ground and asking for a prosecutor to be called, affirming that he would not move until the prosecutor saw what had happened to the food and belongings in the cell and a report was made about the event. The last scene showed the cell door being closed. Someone could be heard hitting the door from the inside and the applicant’s voice shouting “I’m going to kill myself, I’m going to cut myself” and “where is the map with documents, they took my map with documents”.

The prosecutor found that the video recording did not prove that violence had been used, and that the sound of the cell door being struck, heard at the end of the recording, allowed the supposition that the injury to the applicant’s foot could have been self-inflicted.

On 10 March 2008 the deputy Prosecutor General quashed the decision of 15 February 2008 and ordered a more thorough investigation.

On 17 April 2008 a prosecutor discontinued the criminal investigation, essentially for the same reasons as those mentioned in the decision of 15 February 2008.

By a final decision of 12 August 2008 an investigating judge of the Buiucani District Court upheld the decision of 17 April 2008. The judge found that while the law allowed complaints about violations of fundamental rights and freedoms, the applicant’s complaint concerned the admissibility and evaluation of evidence obtained in criminal proceedings. However, the investigating judge did not have the competence to evaluate evidence in a criminal or civil trial.

The applicant lodged an extraordinary appeal (recurs în anulare) to the Supreme Court of Justice, and asked for the decision of 12 August 2008 to be quashed.

On 1 October 2009 the Supreme Court of Justice rejected his request, finding that the Buiucani District Court had adopted a lawful decision after analysing the evidence in the file.