Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicant was born in 1945 and lives in Naxxar.

The applicant served as a member of parliament between 1976 and 1996, and he served as a government minister between 1987 and 1996. Even before he was elected to Parliament he had already established himself as a political commentator in the media and regularly authored opinions related to national politics which were published in national newspapers. Upon his retirement from Parliament the applicant began writing weekly opinion columns in the newspaper Maltatoday and another weekly paper.

On 6 May 2007 Dr Michael Falzon (referred to hereinafter as M.F., for ease of reference – as he has the exact same name as the applicant), the deputy leader of the Malta Labour Party (MLP), delivered a speech in public, which was reported on the national media. During the speech he informed the public that he had received an anonymous email and threatening letters, in respect of which he had complained directly to the Commissioner of Police (CoP). He furthermore referred to the discussion he had had with the latter during which he had asked him to investigate the issue.

The most relevant parts of the speech read as follows (translation done by the Registry):

“...But the fact that today, one opens the newspaper Illum, front page, and reads the editorial by S.B., who chose to speak about a pending police investigation, about an anonymous email that I received and about a threatening letter that I received... this is a level which should not be acceptable in our country. And whoever is behind these stories – wherever he might be – and let me be clear – wherever he might be – he should be ashamed...ashamed!

Yes I received an anonymous email...and I received threatening letters last November. I did not disclose this to my family. Today they were told by Maltatoday...I can tell them myself...But when something illegal occurs, I go to the police. And that’s what I did. And I went to the CoP, since people who put forward such stories can disclose them I can also do so now for everyone to know. So I went to the CoP. I will tell you what I told him...and he will confirm it. He told me: ‘What will we do, Mike, if it were to [turn out to] be X or Y?’ I told him: ‘I am telling you as of now, Mr R. Be it whosoever in this country, I am authorising you as from now, in advance, even before you start the investigation, to proceed. Because what is illegal, I condemn it, and we as a party always condemned illegality.

And we come to [the subject of] the anonymous email [U wasalna fuq email anonima].

And today ... K.S.N. [a journalist], this person phoned me yesterday as well, told me ‘But you know, this is an innocuous email, it contains nothing.’ And I tell K.S.N. and [other purveyors of] this type of journalism, that when they saw [that] there is a police investigation, is it you, you decide what is illegal and what is not [?]

Because [he was] an admirer. And [the sender] of this email, true. I will speak to him, of course. But note, that he sent it anonymously! Generally admirers tell you, ‘Hi, Mike, is everything alright?’ They do not write anonymously. And K.S.N said other things as well, and so did S.B. [the editor of Maltatoday]. Among other things he said because he knows a lot he also phoned me yesterday, and I told him. I told him: ‘You are breaking the law. It is now up to the police’. He also said that apparently apparently from the investigation into the email conducted by the police, nothing had emerged, and that it will stop there. And I will tell him now in public: ‘Mr K.S.N. and Mr S.B., you have not discovered America!’ Words to that effect have been said by an employee of our party for weeks...at the Centre...for weeks. And he told me that I will make a fool of myself. I will not interfere. I will not interfere with the police investigation. That is for them to see.

But yesterday I told the CoP, and Inspector C., that such discourse had long been doing the rounds at the Centre [party club]. I gave [them] the names, and it is now up to the police to decide whether to find out where this information originated from, and who is deciding matters in this country.”

On the same day K.S.N., a journalist, published an article in the newspaper Illum, entitled “Email sent to M.F. brings admirer before the Police”. The article started off by stating that an innocent email sent to the deputy leader of the MLP had been passed on to the police, who in turn had identified the sender and subsequently questioned him. It concluded with the statement that when M.F. was asked about him reporting the matter to the police, the deputy leader of the MLP (that is to say M.F.) replied that “he would not confirm nor deny” that he was aware of the case.

On 13 May 2007 Maltatoday published an opinion by the applicant entitled “Policing one’s enemies”, prompted by the above-mentioned speech, in which the applicant queried the manner in which the two main political parties perceived the police force. The article’s opening paragraphs read as follows:

“During a recent short visit to London, I had the opportunity to watch the film ‘The Lives of Others’ (original title: Das Leben Anderen [sic]) an Academy Awardwinning German movie, set in the 1984 cultural scene of East Berlin, monitored by secret agents of the Stasi: the secret police of the former German Democratic Republic (East Germany). The film puts the methods of the Stasi at the centre of the plot and as a result clearly exposes their repulsive behaviour.

The police force, I believe, is simply responsible for making sure that people obey the law, for protecting people and property and for arresting criminals. Using the police in a different context and for the purpose of controlling people’s freedoms is the basic notion of the typical police state, even if you insert the word ‘democratic’ in your country’s official title.

For me, the biggest unease was caused by the realisation that the film was set in a period that is only some twenty-two years ago, which in Malta corresponds to the Mintoff [former Labour Party leader and Prime Minister] years when I was already active in politics. Little did I think that events that were to unfold when I was back in my country would make me wonder whether the PN [Nationalist Party] and the MLP look at the duties of the police in somewhat different manner.”

Other relevant parts of the article, read as follows:

“I say this with deep regret, but I can only be seriously perturbed by the ease with which MLP Deputy Leader Michael Falzon [M.F.] persuaded the Commissioner of Police to investigate the source of a trivial and unimportant anonymous e-mail that he had received. More so, when this e-mail could only have been misguidedly considered ‘suspicious’, and even then in an absolutely far-fetched way, in the context of the infighting and internal feuds within the MLP.

According to what Dr. Michael Falzon [M.F.] said, the Police Commissioner who apparently is on familiar first name speaking terms with Dr. Falzon [M.F.] asked whether he would proceed in the same fashion whether the culprit eventually proved to be X or Y; implying that the Commissioner was offering to act in a discriminatory way according who the ‘guilty’ person was.

Matters are even more worrying because when the police successfully traced the original writer and dispatcher of the e-mail, they impounded his computer and obliged him to go and sign daily at the Police Headquarters even though he was not accused of any crime.

Has not MLP Deputy Leader Michael Falzon [M.F.] successfully used the Police Force to control the freedom of an innocent, law-abiding private citizen whom he suspected could be a political enemy? And has not somebody in the police force abused of his powers by condescending to do this for the advantage of the faction led by Michael Falzon [M.F.] in the MLP’s internal squabbles? Why should the police force interfere in Labour’s internal politics where, it is obvious, there are too many cooks spoiling the broth?”

“Yet the ease with which the MLP Deputy Leader phones him up to complain, and even worse the ease with which this leading politician is provided with a service that cannot be linked in any way with the pursuit of ‘criminality’ as we know it makes one wonder.”

“These events seem to indicate that within Labour there are people who can influence and interfere in decisions taken by the Police Force. This is happening when they are still in Opposition. Asking what would happen in this area, once they are in government is, therefore, a legitimate question.”

“So what is the Government doing about this? Does the MLP Deputy Leader who happens to be my namesake, carry more weight and influence with the Commissioner of Police than the Deputy Prime Minister who is politically responsible for the Police Force?”

“I firmly believe that Tonio Borg [then Minister of Interior] should set up a high powered inquiry with the specific task of getting to the bottom of this sordid soap opera. He owes it to those who dedicated the best years of their life to ensure the personal freedom of each and every citizen of Malta. He owes it to all present and future Maltese citizens who did not live the past so that they will live in a future where no one controls their freedom and hence their lives.”

On 17 July 2007 M.F., the deputy leader of the MLP, instituted libel proceedings against the applicant (and against the editor of the newspaper) under Article 28 of Chapter 248 of the Laws of Malta (see the “Relevant domestic law” section below), and sought damages, claiming that the abovementioned extracts of the article had been defamatory.

By way of defence the applicant claimed that (a) the published article had contained his opinion and had consequently constituted a fair comment and the expression of a value judgment, (b) any facts had been substantially correct and based on what had been declared publicly by M.F. himself a few days prior to the impugned publication, and (c) the claimant was a person occupying a public office and was consequently bound to accept a wider level of criticism.

During the proceedings the Court of Magistrates heard the testimony of the plaintiff (M.F.), the CoP, the applicant, the editor (S.B.), and two other journalists (A.B.D. and K.S.N.). It saw documentation submitted consisting of an email exchange between the MLP deputy leader and a third person (J.B.), as well as the transcript of the deputy leader’s speech and copies of two articles, both entitled “Email sent to deputy leader brings an admirer before the Police” (one having been published online and one in print).

The CoP testified as follows (as summarised by the firstinstance court):

- He denied that M.F. had persuaded him or influenced him in respect of his doing his job in connection with the case at issue;

- M.F. had requested and obtained a normal appointment with the CoP; when they met M.F. had showed him a letter which the CoP considered to be “injurious and full of threats” towards M.F.; the latter requested the CoP to investigate the contents of the letter;

- M.F. also informed the CoP that he had received an email, which was later passed on to the CoP, following an invitation to do so by the same CoP;

- The CoP asked M.F. whether he intended to initiate proceedings against the person who should result to be responsible, given that the prosecution of such a crime would require the injured party to lodge a complaint;

- The documents which had been passed on to the CoP had in turn been passed on to the Criminal Investigation Department (C.I.D.) for further investigation, and the CoP had had no further contact with M.F. concerning the case, which had not been given any particular priority on his part.

The applicant failed to make written submissions within the stipulated timeframe, and his late submissions were not accepted by the court that proceeded to judgment.

By a judgment of 4 May 2010 the Court of Magistrates found the applicant guilty of having defamed the deputy leader of the MLP and was ordered to pay him 2,500 euros (EUR) in damages. Costs were also to be paid jointly by the applicant and the editor (who was also ordered to pay EUR 1,000 in damages).

The court referred to the CoP’s witness testimony to explain the factual situation. In its view, while noting that public figures such as politicians were subject to wider limits of acceptable criticism, they were nevertheless protected under Article 10 § 2 – their protection having to be weighed in relation to the interests of the open discussion of political issues. The court considered the article defamatory as it had tarnished and impinged on the claimant’s reputation. It rejected the applicant’s defence, noting that it had not been proved that: i) M.F. had manipulated the CoP due to the political office that he held in the party in which he militates; ii) that with his actions M.F. had offended the Police Force since he used the Police Force for his personal aims; iii) that M.F. was some deus ex machina who pulls the strings of the Police Force, from behind the scene, to reach his goals.

The applicant appealed.

By a judgment of 6 October 2010 the Court of Appeal (in its inferior jurisdiction) rejected the appeal and confirmed the firstinstance judgment. It considered it appropriate to analyse and mention all the relevant evidence that had not been referred to by the firstinstance court:

- M.F., as plaintiff and now respondent, submitted that the reader had been induced to believe that he had persuaded the police to harm someone, when all he had done was to file a report requesting that the anonymous letters and emails he had received be investigated.

- The court also referred to the statements made by the CoP (see above).

- The applicant (appellant before the Court of Appeal) explained that in his view the email received by M.F. had been innocuous and that M.F. had thus reacted disproportionality. According to the applicant, from the speech delivered by M.F. publicly (at the Labour Centre in Rabat), it transpired that there was a certain familiarity between him and the CoP; indeed if that had not been so M.F. would have reported the incident at a police station like an ordinary citizen, and not with the CoP. In his view it was natural to question whether M.F. had used the CoP in connection with the internal affairs of the party. Even when cross-examined, he reiterated that influence had been exerted by M.F. on the CoP.

- The editor testified that in his opinion the speech delivered by the deputy leader of the MLP indicated that the latter had put pressure on the CoP to investigate the matter when he had met up with him to discuss the emails and the anonymous letters.

- In reply to a question, while being cross-examined, as to whether M.F. had put pressure on the CoP, K.S.N. replied that he was aware that a report had been filed concerning the email and that on the same day of publication, M.F. had declared that he was authorising the CoP to institute proceedings against whomever turned out to be the culprit.

The Court of Appeal was of the view that, having examined all the relevant evidence and thus gaining an understanding of the circumstances preceding and surrounding the article, the applicant’s assumption could not be considered as constituting fair comment. In the eyes of the ordinary reader, the comments and criticism made by the applicant could not be considered as objectively reasonable, made in good faith and balanced, given that they were based on a certain assumption – that M.F. had exercised influence over the CoP with the aim of controlling people’s freedom; the attack on M.F. had thus exceeded the limits of just criticism. M.F. had had every right to file a report, and the fact that he was politically active had not justified such an attack, which had not been corroborated by factual evidence. It considered that even though the manifestation of free expression was an established principle, that freedom was to be exercised within those just limits of the canon of objective veracity of facts and restraint (entro l-limiti ġusti ta’ dak ilkanoni tal-verita’ oġġettiva tal-fatti u tal-kontinenza), as elaborated by the most progressive doctrine and jurisprudence on topical issues and the exercise of criticism.

On 9 March 2011 the applicant instituted constitutional redress proceedings complaining that he had suffered, inter alia, a breach of Article 10 of the Convention as a result of the judgments in the libel proceedings. He argued, in substance, that his opinion piece had consisted of criticism, which was a legitimate manner of expressing an opinion about the work of a public figure and was allowed in a democratic society noting that the extensive protection given to such a public figure served to silence free expression. He further claimed that the ordinary courts had referred to insinuations and allegations which had not been made or implied by the applicant in his article, such as the statement by the Court of Magistrates to the effect that M.F. had “manipulated” the CoP or that the latter had been subjected to pressure which had “impeded the exercise of his function” as well that M.F. “was a deus ex macchina pulling the strings of the Police Force”. The applicant emphasised that these were gratuitous inventions by the ordinary court which had not been mentioned in the article.

By a judgment of 30 March 2012 the Civil Court (First Hall) in its constitutional competence dismissed the applicant’s claims.

It considered that the applicant was attempting to obtain a revision of the ordinary proceedings and noted that it was not quite true that the applicant had never implied that M.F. had “manipulated” the CoP indeed his article had precisely questioned “has not the MLP deputy leader MF successfully used the Police Force to control the freedom of an innocent lawabiding private citizen whom he suspected could be a political enemy?”. In any event, even if the applicant considered the statements made by the Court of Magistrates in its reasoning to be invented, this had not constituted a breach of his Article 10 rights.

The court noted the reference to the Stasi with which the applicant had started his article and his narrative of M.F.’s actions, which had resulted in an individual being investigated and subsequently having his computer seized. In that context he had asked whether M.F. had “used” the police against a political opponent. The applicant criticised the CoP for following up on the indications given by M.F., to the extent that the applicant had called on the Minister of the Interior to look into the matter. Indeed, the CoP was also an object of the applicant’s criticism.

According to the court, the word “uses” did not mean “manipulate”, as implied by the Court of Magistrates, but within the context of the article at issue, it nevertheless implied an element of abuse. The criticism against M.F. was that he had taken advantage of his political position to put pressure on the police in order that the latter would take action in persecuting an innocent citizen. The court considered that it was legitimate for a victim of a crime to complain to the police, and then it was for the police to act on the matter. Further, the initial reference to the “Stasi” in the opening of the article had been regrettable; even if it was not intended to do so, it had given the impression of a comparison being made.

In its view, even accepting that a public person was subject to greater limits of acceptable criticism, given the article at issue, the ordinary courts had not failed to strike a fair balance between the competing rights.

The applicant appealed.

By a judgment of 11 January 2013 the Constitutional Court dismissed his appeal.

It noted that the ordinary court judgments and the penalty inflicted constituted an interference with the applicant’s rights under Article 10, which had been prescribed by law (Article 28 of the Press Act). It emphasised the importance of free expression for the press; nevertheless, it noted that the press could not exceed certain limits and had to exercise its function in a manner consistent with its obligations and responsibilities particularly as regards the reputation and rights of others. Acknowledging that politicians were subject to wider limits of acceptable criticism, it nevertheless noted that they remained holders of their right to the protection of their reputation. The quest for reasonableness and proportionality in such circumstances had to be seen against the background of the importance of public debate.

Noting the difference between facts and value judgments (the latter not being subject to the need for proof), it considered that a person could not hide behind an opinion or value judgment to impute untrue facts in respect of other persons. It considered that the Court of Appeal had reached a legitimate conclusion in finding that the applicant’s opinion piece had contained declarations which assumed as a fact that the MLP deputy leader had illegitimately and abusively influenced the police and also that the exercise of illegitimate and abusive pressure on the CoP had not been proved as a fact.

The Constitutional Court noted that while the article had contained a series of questions (in respect of which the applicant argued that it was for the reader to answer), it had also contained assertions, some of which had not reflected the real facts, according to the Court of Appeal. Further, the Constitutional Court considered that just because an alleged fact was given the form of a question, this did not entail that it was no longer a factual assertion but rather became a value judgment. Even the way in which the question was posed, namely “Has not M.F. ...” clearly included a factual affirmation and clearly invited a positive reply. Similarly, the quest “Does the MLP Deputy Leader, who happens to be my namesake, carry more weight and influence with the Commissioner of Police than the Deputy Prime Minister, who is politically responsible for the Police Force?” was nothing but an allegation of fact in the form of a question.

Lastly, the Constitutional Court noted that the amount of the fine had not been particularly severe, so much so that the quantum had not been appealed. There was therefore no violation of Article 10.


IGNAOUA AND OTHERS v. THE UNITED KINGDOM

Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicants, Mr Habib Ignaoua (“the first applicant”), Mr Mohammed Salah Khemiri (“the second applicant”) and Mr Ali Ben Zidane Chehidi (“the third applicant”), are Tunisian nationals, who were born in 1960, 1954 and 1972 respectively. They were represented before the Court by Mr D. Guedalla of Birnberg Peirce & Partners, a firm of solicitors based in London.

s, may be summarised as follows.

The applicants arrived in the United Kingdom on unknown dates. The first and second applicants subsequently claimed asylum on the ground that they had previously been detained and tortured by the Tunisian authorities and feared being subjected to similar treatment if they returned. The second applicant was granted asylum in 2001.

On 4 June 2007, while the first applicant’s request for asylum was pending, an Italian court issued a European Arrest Warrant (“EAW”) in respect of the applicants, under a European Union Framework Decision (see paragraphs 41-43 below), seeking their surrender to Italy. They were accused of membership of a criminal organisation for the purposes of terrorism. They were subsequently arrested in the United Kingdom pursuant to the EAW.

By letter dated 28 June 2007, the Prosecutor to the Republic of Italy stated:

“If the United Kingdom judicial authority agrees to extradite [Mr Ignaoua] to Italy, [Mr Ignaoua] will not be extradited to another state without the consent of the United Kingdom. The only purpose of this extradition request is to secure the surrender of [Mr Ignaoua] to Italy to stand trial for the offence alleged against him. I can confirm categorically that his extradition is not sought for the purpose of deporting him to Tunisia.”

On 20 May 2008 an extradition hearing took place at the City of Westminster Magistrates’ Court. It was accepted in the proceedings that if the applicants were returned to Tunisia there would be a real risk of a breach of their Article 3 rights, following this Court’s ruling in Saadi v. Italy [GC], no. 37201/06, ECHR 2008. The question was whether there were substantial grounds to believe that Italy would extradite, expel or deport the applicants to Tunisia. The judge explained:

“9. I propose to deal very shortly with any further onward extradition request, or an order of expulsion from Italy that might be linked to a sentence of imprisonment following conviction ... [T]here are recognised routes of appeal that are available to a person subject to an extradition request (by Tunisia should there ever be one) or an expulsion order (to Tunisia) to enable the highest court in Italy to make a determination as to whether or not, if such an order were allowed to proceed, the defendant’s Article 3 rights would be prejudiced. That is, there is effective judicial oversight, with guaranteed rights of appeal, available to any defendant who might feel aggrieved by an order for his removal from Italy.”

The judge considered the provisions of the Italian “Pisanu Law” (see paragraphs 37-40 below) which governed deportation from Italy at the relevant time. He observed that notwithstanding the apparent inability under that law for a person whose expulsion had been ordered to obtain a stay of execution pending an appeal, expert evidence presented to the court had suggested that it was in practice possible to obtain a stay from the Court of Cassation. However, he accepted that there was potential for a person to be deported before being able to persuade a court to suspend the process. He accordingly found that the Pisanu Law failed to provide the necessary guarantees required by Article 13 of the Convention. However, he noted that Mr Saadi was not deported prior to this Court’s hearing in Saadi, cited above, nor had he been deported since. While some evidence from Italian lawyers showed a reluctance to accept that Italian courts were bound to ensure that the rulings they made were in accordance with the Convention, the judge rejected that aspect of their evidence. He observed that the lawyers had “a low opinion of the competence and integrity of the Italian judiciary” which he did not share, referring to the expert evidence submitted by the judicial authority which sought the applicants’ extradition. He therefore concluded:

“20. (1) Since the 28th February 2008 there will have been many people in the Italian civil service giving anxious consideration to the decision in Saadi v Italy, all trying to devise a solution to the ‘dilemma’.

(2) It is highly likely new provisions will shortly be in place, and that would make this whole discussion, based as it is on the Pisanu law, somewhat academic.

(3) I am not surprised the Minister of Justice has declined to give an undertaking that the Pisanu law will not be applied to any of these three men. There are many reasons why it might not be appropriate to offer such a guarantee. The lack of it does not suggest that, if extradited, the Pisanu law would be applied to them.

(4) I consider it unlikely, unless and until the circumstances allow it, the Minister of the Interior would make a deportation against any of these three men requiring their return to Tunisia.

(5) ... I am confident, given all the activity these defendants have generated with the authorities in Italy and their situation being now so ‘high profile’ that they would have no difficulty accessing the Italian courts, should they wish to challenge any deportation order.”

He found no reason to suppose that any future deportation proceedings would not be in accordance with the Convention and the Saadi judgement. He did not consider that evidence of what had undoubtedly happened in the past was evidence that such an approach would be repeated in future, since Saadi would “cause the Italian authorities to rethink its approach to this issue.” The judge therefore held that there were no substantial grounds for believing that the applicants would be expelled from Italy to Tunisia.

He added that the Framework Decision on the European Arrest Warrant was based on mutual trust and confidence between EU Member States and that he was confident that the Italian authorities could be relied upon not to act contrary to the Convention.

The applicants appealed to a Divisional Court. They argued that, if returned to Italy, there was a real risk of their onward transmission to Tunisia, in breach of Article 3 of the ECHR.

In early June 2008, while the case was pending before the Divisional Court, an expulsion order was made by the Italian authorities against Mr Sami Essid Ben Khemais, ordering that he be expelled to Tunisia. He was then removed to Tunisia, despite Rule 39 having been applied by the Court on 29 March 2007 (see Ben Khemais v. Italy, no. 246/07, 24 February 2009). The applicants brought the matter to the attention of the Divisional Court as evidence of the inadequacy of judicial safeguards in the Italian deportation procedure.

On 28 July 2008 the Divisional Court handed down its judgment in the applicants’ case. Lord Justice Pill, delivering the judgment of the court, noted first that the applicants accepted that the EAW was a genuine exercise of the power conferred under the relevant Framework Decision with a view to bringing criminal proceedings against the applicants in Italy. It was not a device to achieve deportation to Tunisia.

Pill LJ examined in some detail a number of reports concerning the procedures in place in Italy, including a 2005 report by the Council of Europe’s Human Rights Commissioner and a 2007 report by the United Nations Committee Against Torture. He considered carefully the submissions of the applicants and those of the judicial authority. He accepted that the 2007 assurance by the Italian Prosecutor of the Republic (see paragraph 5 above) covered all three applicants. For essentially the same reasons as the District Judge, he did not consider the absence of an assurance that Italy would not seek to deport the applicants as an indication that it did not intend to fulfil its legal obligations.

Pill LJ concluded that a real risk of expulsion to Tunisia had not been established in the cases. He explained:

“46. ... It is relevant that the extradition to Italy will be effected under the Framework Directive ... The Italian authorities are under Article 3 duties in any event, but the Framework Directive adds an additional dimension. It requires cooperation between judicial authorities on the basis of trust and a high level of confidence ...

47 ... [F]or better or worse we have committed ourselves to this system. Under the Framework Decision, we can assume that the trust placed in the Italian authorities will be justified. The Framework Decision provides a safeguard and a disincentive to the Italian authorities, as with the authorities of any Member State, not to act in breach of Article 3 of the Convention. Article 34 of the Treaty [on European Union] provides for sanctions against States failing to comply with the basic principles of the Treaty. Bilateral trust also arises. This is bilateral action premised on the existence of a high degree of confidence. Courts in a returning state would be likely to have a real sense of grievance, having regard to the contents of the Framework Directive, if a receiving state subsequently ignored its duty under Article 3 of the Convention. The Italian government had not hitherto deported in an Article 3 case a person received under the Framework Directive and had not deported in the case of Saadi.

He also noted that when the Italian authorities received a person under the Framework Directive, the entire judiciary was likely to be alerted to its duties under Article 3 of the Convention, which he said was “certainly so” in the applicants’ cases. He was not prepared to disagree with the District Judge’s assessment of the witnesses or his rejection of the applicants’ witnesses’ low opinion of the Italian judiciary. He continued:

“50. It is disturbing if the evidence before the court is correct – and the court has to take it at face value – that the Italian executive in the case of [Ben Khemais] have apparently disregarded an interim direction of the ECtHR. I cannot regard that act, or the statement of a representative of the Ministry of Justice which is claimed also to have been made, as destroying the trust and confidence which is to be assumed in the context described. I am not prepared to hold, on the basis of a single post-Saadi case, that the Italian State will in the present cases ignore its duties under Article 3 of the Convention as confirmed in Saadi.”

On the risk of further deportation by the Italian authorities, he added:

“51. ... The risk on return has to be assessed on present evidence, and there is no risk of deportation while the contemplated criminal proceedings and any resulting custodial sentence are extant. That being so, any risk is, to that extent, remote from the current situation.

52 The District Judge’s optimism about Italian legislation has not yet been justified by events in the post-election period. There are, however, clear limits, in my view, to the extent to which a court assessing current risk should speculate as to events in the long term or even medium term future ... Circumstances can change. The remoteness factor ... adds weight to a conclusion that the appellants have not established a real risk of being deported to Tunisia within the meaning of the authorities.”

An application for a certificate of a point of law of general public importance was dismissed by the Divisional Court on 30 September 2008.

On 9 and 10 October 2008 the applicants made an application to the Divisional Court for habeas corpus to reopen their appeals, based on fresh evidence. The fresh evidence in question largely consisted of documents in the proceedings before this Court in respect of Mr Ben Khemais. The applicants contended that the documents revealed an attitude on the part of the Italian authorities which was prepared to deport suspected terrorists irrespective of Article 3 risks, particularly where diplomatic assurances had been obtained from the receiving State.

On 30 October 2008 the application was refused. Lord Justice Keene, with whom Lord Justice Owen agreed, considered that the new evidence did not provided a reliable guide to Italy’s future conduct; that there had still been only one instance of Italy deporting a person in breach of interim measures or Article 3 since the Saadi judgment; that there was no evidence of any willingness to deport a person who had been extradited under an EAW so the mutual trust and confidence remained intact; and that nothing in the fresh evidence undermined the previous finding that the applicants were genuinely wanted for trial in Italy, which made any risk of further deportation remote in any case.

The House of Lords subsequently refused to grant permission to appeal.

Meanwhile, on 30 September 2008, the applicants made a request to this Court for interim measures pursuant to Rule 39 of the Rules of Court to prevent their extradition to Italy. The request was refused by the Fourth Section on 7 October 2008. The letter to the applicants explained:

“The Section found that it would be open to your clients to make an application against Italy, including an application under Rule 39, if it appeared that they would be surrendered from Italy in breach of their rights under the Convention.”

The Italian Government was informed of the Court’s decision in the following terms:

“I write to inform you that on 30 September 2008 the above applicants lodged a request for interim measures under Rule 39 of the Rules of Court to prevent their extradition from the United Kingdom to Italy. They argued that if extradited, they would be at real risk of onward removal to Tunisia where they would be subjected to ill-treatment contrary to Article 3 of the Convention. They relied on the Grand Chamber’s recent ruling in Saadi v. Italy [GC], no. 37201/06, ECHR 2008 ... and further relied on the fact that in the domestic proceedings in their case, both the District Court and the High Court accepted that Law 155 of 31 July 2005 (‘the Pisanu Law’) failed to provide the necessary guarantees that are required by Article 13 of the Convention. Finally, they relied on your Government’s decision to remove Mr Sami Essid Ben Khemais to Tunisia despite this Court’s Rule 39 indication in his case.

On 7 October the Fourth Section decided to refuse their request. The decision to do so was based on the express understanding that Italy as a Contracting State would abide by its obligations under Articles 3, 13 and 34 of the Convention and in particular the obligation to respect the terms of any interim measure which the Court might indicate in respect of Italy at the request of the applicants. The Section also expressed its confidence that your Government would comply with their obligations under Council Framework Decision of 13 June 2002 (on the European arrest warrant and the surrender procedures between Member States) and in particular their obligation under Article 28(1) of the Framework Decision not to extradite to a third State a person who has been surrendered pursuant to a European Arrest Warrant without the consent of the competent authority of the Member State which surrendered the person.”

On 1 November 2008 the applicants were extradited to Italy. On three occasions between 13 December 2008 and 1 May 2010, the Italian authorities deported individuals to Tunisia, contrary to Rule 39 indications made by the President of the Second Section (see Trabelsi v. Italy, no. 50163/08, 13 April 2010; Toumi v. Italy, no. 25716/09, 5 April 2011; and Mannai v. Italy, no. 9961/10, 27 March 2012).

On 8 July 2010 the Milan Assize Court acquitted the applicants of the charges for which they had been extradited. The Italian authorities subsequently issued expulsion order against them. They were taken into immigration detention. The United Kingdom authorities issued decisions to exclude the applicants from returning to the United Kingdom and the second applicant’s refugee status was revoked.

On 9 July 2010 the Milan Magistrates’ Court authorised the expulsion of the applicants.

In July 2010 the acting President of the Second Section of the Court decided to apply Rule 39 of the Rules of Court and indicated to the Government of Italy that the applicants should not be deported to Tunisia until further notice.

The enforcement of the Italian expulsion orders was suspended pending the outcome of the applications before this Court.

By a decision of 6 August 2010, the second and third applicants were released from immigration detention in August 2011. They were instructed to leave Italy within five days.

The second applicant went to Switzerland. On 27 August 2010 he was deported from Switzerland to the United Kingdom. He was taken into immigration detention in the United Kingdom.

The third applicant went to France. Upon arrival he claimed asylum.

On 7 December 2010 the Second Section of the Court lifted the interim measures granted in favour of the second and third applicants since they were no longer at risk of expulsion to Tunisia.

On 21 February 2011 the second applicant was released on bail in the United Kingdom. His refugee status was subsequently reinstated.

On 14 April 2011 the United Kingdom lifted the exclusion decision in respect of the third applicant. He returned to the United Kingdom.

In December 2010 the first applicant was released from immigration custody in Italy to await the outcome of a prosecution appeal against his acquittal and a second trial. After obtaining legal advice, he made an asylum claim in Italy. His current situation is not known.

Extradition from the United Kingdom is governed by the Extradition Act 2003 (“the 2003 Act”). The Act implements the provisions of the EAW Framework Decision (see paragraphs 41-43 below).

Pursuant to section 21 of the 2003 Act the extradition judge must decide, before ordering extradition, whether the person’s extradition would be compatible with the Convention. If he decides that extradition would not be compatible with the Convention, he must order the person’s discharge.

Deportation from Italy was at the relevant time governed by the Pisanu Law (Law 155 of 31 July 2005).

Article 3(1) of the Pisanu Law stated that:

“...[T]he Interior Minister or, if he so delegates, the prefect, may order the expulsion of a foreigner ... where there are well-grounded reasons to believe that his presence in Italy would in some way facilitate terrorist organisations or activity, including international organisations or activity.”

The order had to be approved by a Magistrates’ Court.

An appeal could be lodged against the order to the Regional Administrative Tribunal but the appeal did not suspend the enforcement of the deportation order.

On 13 June 2002 the Council of the European Union adopted Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States. The Framework Decision created a simplified extradition procedure between member States of the European Union. Member States are required to execute any EAW on the basis of the principle of mutual recognition and in accordance with the provisions of the Framework Decision.

Recital 13 of the preamble to the Framework Decision provides that no person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. Article 3(1) confirms that the Framework Decision does not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.

Under Article 28(4) of the Framework Decision, where a person has been extradited pursuant to an EAW, the receiving State may not extradite the person to a third State with without the permission of the extraditing State which surrendered the person.


Violation of Article 5 - Right to liberty and security (Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention)

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

The applicant was born in 1962 and lives in Amsterdam.

The applicant was suspected of membership of a crime ring organised around one H., a person widely known to have amassed criminal convictions for serious crimes; of complicity in extortion; and of possession of an illegal firearm.

On 30 January 2006 the applicant was arrested. On 2 February 2006 he was taken into initial detention on remand (bewaring) for fourteen days by order of an investigating judge of the Haarlem Regional Court (rechtbank). The order included the following grounds:

“(post alia)

Considering in addition that it appears that there is a serious reason of public safety requiring the immediate deprivation of liberty;

Considering in this connection:

that there is a suspicion of a [criminal] act which, according to the law, carries a maximum sentence of imprisonment of twelve years or more and that act has caused serious upset to the legal order (een feit waarop naar de wettelijke omschrijving een gevangenisstraf van twaalf jaren of meer is gesteld en de rechtsorde ernstig door dat feit is geschokt);

that there is a serious likelihood (dat er ernstig rekening mee moet worden gehouden) that the suspect will commit a crime (misdrijf) by which the health or safety of persons will be endangered, since the framework of the suspicion encompasses the display of aggressive and unrestrained behaviour by the suspect;

that detention on remand is necessary in reason for discovering the truth otherwise than through statements of the suspect; ...”

On 14 February 2006 the applicant was taken into extended detention on remand (gevangenhouding) for thirty days by order of the Haarlem Regional Court following a hearing in camera. This decision stated the following grounds:

“considering that the Regional Court finds, after examining the case, that the suspicion, indications and grounds which have led to the order for the suspect’s initial detention on remand still obtain;

considering that the existence of these grounds is borne out by the conduct, facts and circumstances stated in the order for the suspect’s initial detention on remand, given on 2 February 2006, which the Regional Court adopts as its own; ...”

The Regional Court renewed its order for a further term of thirty days on 11 April 2006. The applicant appealed against this decision; his appeal was dismissed by the Amsterdam Court of Appeal (gerechtshof) on 17 May 2006.

The order for the applicant’s extended detention on remand was renewed periodically by the Regional Court until its suspension.

On 7 May 2007 the Haarlem Regional Court ordered the suspension (schorsing) of the applicant’s detention on remand with effect from noon the following day. The reason stated was the following:

“The Regional Court is of the view that the serious reasons and grounds stated in the order for extended detention on remand (bevel tot gevangenhouding) still exist and that Article 67a § 3 of the Code of Criminal Procedure (Wetboek van Strafvordering) is not yet applicable.

Even so, the Regional Court considers it appropriate, in view of the circumstance that it has today ordered the suspension of the trial until a date next September, to decide as follows as to the execution of the detention on remand.

The suspension of the trial is directly linked with the state of health of a co-suspect and the Regional Court’s decision in principle (uitgangspunt) to pursue the proceedings against all suspects simultaneously.

That being so, and also in light of the length of the detention on remand until today, the Regional Court is led to suspend the detention on remand until the day on which the trial of the suspect will be pursued.”

The co-suspect referred to was H., who needed time to recover from heart surgery which he had undergone in detention before his trial could resume.

The suspension of the applicant’s detention on remand was made subject to the following conditions:

“1. that the suspect not seek to evade the execution of the detention on remand order if its suspension should be terminated;

that the suspect, should he be sentenced to a custodial sentence other than [in lieu of a fine or a community service order] for the criminal act for which the detention on remand was ordered, not seek to evade its execution;

that the suspect not perpetrate a new criminal act during the time in which his pre-trial detention shall be suspended;

that the suspect attend the remainder of his trial;

that the suspect immediately obey any summons from the police, the prosecution or the court (politie en justitie);

that the suspect not have any direct or indirect contact with (any one of) his co-suspects or the witnesses ...

that the suspect hand in his passport and/or his identity card ...

that the suspect shall report in person twice a week (zich tweemaal per week dient te melden) at times and places indicated to him by the public prosecution service (openbaar ministerie).”

On 20 August 2007 the applicant submitted a request for his detention on remand to be lifted altogether (opheffing van het bevel tot voorlopige hechtenis).

On 22 August 2007 the Haarlem Regional Court gave a decision in the following terms:

“This court’s decision of 7 May 2007 suspended the suspect’s pre-trial detention in connection with the special circumstances mentioned in that decision, which did not concern the suspect himself, which entailed the interruption of the trial for a considerable time.

The Regional Court has allowed the interest of the suspect in awaiting the resumption of his trial in freedom to prevail over the prosecution interest in keeping the suspect in detention on remand on the grounds stated in the order for extended detention on remand only because of that special situation and only for as long as that situation might continue. As the suspect’s trial will resume before long and the said special situation will from then on no longer exist, there will, from then on, be no reason to allow the suspension of the suspect’s detention on remand to continue.

The Regional Court takes the view that the serious reasons and grounds, with the exception of the ground related to the investigations, still exist and considers that Article 67a § 3 [of the Code of Criminal Procedure] is not yet applicable. The mere fact stated by the suspect’s counsel that since the suspect’s liberation there has been no large-scale public protest and that the suspect has complied unreservedly (onverkort) with the suspension conditions do not mean that there is no longer any ‘serious upset to the legal order’ within the meaning of Article 67a § 2 under 1 or the danger of an offence within the meaning of Article 67a § 2 under 2.

Considering also the nature of the first-mentioned ground – briefly, an offence carrying a twelve-year sentence that has caused serious upset to the legal order –, the Regional Court does not consider the arguments submitted sufficient reason to suspend the detention on remand, as is requested in the alternative as a less intrusive way of using this means of coercion (minder bezwarende wijze van toepassing van dit dwangmiddel). ...”

No appeal was possible against this decision.

The trial resumed on 25 September 2007. The applicant, through his counsel, made a request at the hearing for the detention on remand order to be lifted, or in the alternative, for the suspension to be continued. He argued that his release had not caused any public outcry.

According to the official record (proces-verbaal) of the hearing, the Regional Court gave a refusal, stated by its president in the following terms:

“The Regional Court refers to its decision of 7 May last. At the time, the medical situation of the co-suspect H., the Regional Court’s desire to consider the cases together, and the fairly long duration of the detention on remand led to the decision to suspend the detention on remand until such time as the trial would resume.

As soon as these reasons cease to apply the Regional Court must consider the situation afresh.

This does not mean that the Regional Court will look back to see how well things have gone and what ripples your release has caused (hoeveel rumoer er over uw vrijlating is ontstaan), but that it will consider whether the serious reasons and grounds still exist. It takes the view that such is the case.

As regards the alternative request, the Regional Court takes the view that the prosecution interest would not be served in sufficient measure if you could, within the framework of a suspension of your detention on remand, await the outcome of your criminal case in freedom. Your personal interest in awaiting the determination of your case in freedom does not outweigh the prosecution interest. Your detention on remand should therefore continue, given also that there is no question at the present time of applying Article 67a § 3 of the Code of Criminal Procedure.

The president stresses that the Regional Court will continue to consider ex officio whether it is necessary for the detention on remand to continue, and whether there may be grounds to order a variant as regards the modalities of its execution.

The Regional Court dismisses both the principal and the alternative requests.”

The applicant was taken back into detention on remand on 27 September 2007.

On 15 November 2007 the applicant’s counsel submitted a further request for the lifting or, in the alternative, the suspension of the detention on remand order. This too was refused.

On 4 December 2007 the Regional Court lifted the applicant’s detention on remand. The decision was in the following terms:

“That the Regional Court, sitting in camera, has come to take the view that serious reasons and grounds referred to in the order for extended detention on remand still exist, but that at this point Article 67a § 3 of the Code of Criminal Procedure leads the Regional Court to take the appertaining decision.”

On 21 December 2007 the Regional Court convicted the applicant and sentenced him to eighteen months’ imprisonment.

The applicant appealed. On 3 July 2009 the Amsterdam Court of Appeal quashed the first-instance judgment on technical grounds. Convicting the applicant afresh, it sentenced him to eighteen months’ imprisonment, six months of which was suspended.

The applicant lodged an appeal on points of law (cassatie) with the Supreme Court, which dismissed the appeal on 12 October 2010.


CASE OF HELDENBURG v. THE CZECH REPUBLIC

Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction)

Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano

The applicants sent five letters to the Court in total: on 7 September 2014, on 6 and 21 January, and on 2 and 18 March 2015. Each of the letters contained information concerning their claims for just satisfaction and their friendly-settlement negotiations, and specifically the sums that the Government had offered to them in a letter of 6 January 2015. In the letter of 21 January 2015, the applicants repeated the statements they had made in their letter of 6 January 2015 and compared the sum offered by the Government with that in the case of Šumbera v. the Czech Republic (no. 44410/09, 11 June 2015 (just satisfaction)). They also transmitted to the Court the content of the Government’s letters on friendly-settlement negotiations held on 30 September and 18 November 2014 and 16 January 2015.

By a letter of 13 February 2015 the applicants, invoking the Free Access to Information Act 1999, asked the Ministry of Justice about the method used to calculate the sum offered to them in the friendly settlement. On 17 March 2015 the applicants requested that the Ministry of Justice review its previous response under that Act. They attached the Government Agent’s letter of 18 November 2014 sent to them in the context of the friendly-settlement negotiations. They once again asked about the method used to calculate the sum offered to them for the friendly settlement.

On 31 March 2015 the applicants lodged an application to reopen the original proceedings before the Constitutional Court.


Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)

André Potocki;Angelika Nußberger;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicant was born in 1954 and is serving his prison sentence in Gorodyshche Town. Before his arrest he lived with his partner Te. in a privately owned house located in the Rusanovskiye Sady District of Kyiv.

The police received intelligence information that a group of people were detaining a man in a privately owned house in Rusanovskyie Sady, and were illegally selling apartments owned by third parties.

On 9 February 2004 police officers B., T., and S. entered the applicant’s house and asked whether or not he had any firearms. The applicant showed them a gun and some ammunition which a certain Va. had brought round to his house earlier. The police took the applicant to the police station. The applicant’s arrest was recorded on video. Before the Court the applicant stated, without providing any further details, that during and after his arrest police officers B., T., and S. had subjected him to physical and psychological ill-treatment.

According to the Government’s version of events, on the same day the applicant voluntarily, in the presence of investigator Ch., gave a written statement saying that from July to August 2003 he had kept a certain Mr N. in his house at the request of Kr. and Ko. In September 2003 Kr. and Ko. brought Mr V. and Ms Sh. to his house and asked to keep them in the basement. The applicant agreed in return for payment. In November 2003 V. and Sh. died in the basement because of cold. The applicant buried them in his backyard and thoroughly cleaned the basement.

In his first letter to the Court, the applicant stated, without providing further details, that police officers T. and B. and investigator Ch. had forced him into making the above self-incriminating statement by means of physical and psychological pressure. In his application form, the applicant stated that he had not written the above statement and did not know who had written it.

On 10 February 2004, during reconstruction of events which was conducted by investigator Ch. and recorded on video, the applicant showed where he had buried V. and Sh., and the police sent their bodies for forensic examination. The experts established that the victims had died of cold in November 2003.

On the same day investigator Ch. ordered the applicant’s detention, and instituted criminal proceedings against him on suspicion of having illegally stored a firearm and concealed the deprivation of liberty and death of two people. The applicant’s defence rights were explained to him, and he expressed a wish to have a lawyer.

On 11 February 2004 investigator Ch. appointed a lawyer, R., under legal aid scheme to act as the applicant’s defence counsel. Upon being questioned by Ch. on 11 and 12 February 2004 in the presence of that lawyer, the applicant confirmed his previous statements. He also said that he had been aware that V. and Sh. had been put in his basement in order to prevent them from hindering the illegal sale of their apartments.

On 13 February 2004 the Dniprovskyy District Court of Kyiv ordered the applicant’s detention pending trial. On the same date a medical doctor examined the applicant and found no injuries on his body. The applicant did not raise any complaints of ill-treatment or his health condition.

On 20 February 2004 investigator Ch. charged the applicant with murdering Sh. and V.

On the same date the applicant was questioned in the presence of lawyer R. and confirmed his previous statements.

On 17 May 2004 the applicant had a formal confrontation with Kr. in the presence of R. The applicant confirmed his previous statements.

On 3 June 2004 investigator Ch. appointed another lawyer, K., under legal aid scheme as the applicant’s defence counsel instead of R. The latter was no longer able to perform his duties as a defence lawyer because of illness.

On the same date the applicant was questioned in the presence of lawyer K. and denied all the statements he had given earlier. He stated that he had given self-incriminating statements previously because he had been in a state of “shock”.

On 6 July 2004 investigator Ch. instituted criminal proceedings against the applicant for having participated in the fraudulent sale of the apartments belonging to Sh. and V.

On an unspecified date the applicant complained to Ch. that during and after his arrest he had been ill-treated by police officers B., T., and S. It is unclear whether the applicant provided any details about such ill-treatment because a copy of the complaint available to the Court is unreadable.

On 11 July 2004 investigator Ch. questioned B., T., and S., who denied that they had put the applicant under any pressure.

On 13 July 2004 Ch. refused to institute a criminal investigation into the applicant’s allegations of ill-treatment and the applicant did not appeal against that decision. A copy of the decision is available to the Court, but is unreadable. On the same date Ch. refused the applicant’s request to have a formal confrontation with his girlfriend, Te. Later that day, the applicant absconded from the detention facility where he was being held, but was found by the police and brought back to the facility on the same date.

On the same day, the police instituted criminal proceedings against the applicant for absconding.

On an unspecified date the police questioned Pl., who worked as a doctor in a hospital in the town of Svetlovodsk. Pl. said that N. had been admitted to the hospital in the autumn of 2003. N. had told Pl. that he had been the victim of fraud, and that his apartment in Kyiv had been sold without his knowledge or consent.

On an unspecified date the police questioned Ru., who said that in the summer of 2003 he had sold his house to a woman called Olya. N. had lived in that house and had told Ru. that he had been the victim of fraud.

The applicant asked the investigator if he could have a formal confrontation with a certain Ro., but this request was refused.

On 5 August 2004 the investigator appointed another lawyer, V., to act as the applicant’s defence counsel under legal aid scheme instead of lawyer K. The reason for that decision remains unknown. On 8 September 2004 the pre-trial investigation was completed, and the applicant studied all the material in the criminal file.

The indictment stated that a group of people, including Kr., had asked the applicant to keep N. in his house while N.’s apartment had been sold without his knowledge or consent. The applicant had agreed in return for payment, and had kept N. in his house for about a month. After that, the same group of people had asked the applicant to keep V. and Sh. in his basement in order to prevent them from hindering illegal sale of their apartments. V. and Sh. had died of cold in the basement, and the applicant had buried them in his yard. The apartments of N. and V. had been sold while they had been kept in the applicant’s house. The apartment belonging to Sh. had been sold before she had been brought to the applicant’s basement. According to the indictment, by holding N., V., and Sh. in his house, the applicant, acting jointly with others, participated in fraud entailing the illegal sale of the victims’ apartments.

On 2 February 2005 a TV channel transmitted a programme called “Black Square”. According to the applicant, in that programme an investigator dealing with his criminal case spoke about his arrest and “persuaded the public” that the applicant was guilty as charged. Neither a recording of that programme, nor any further information about its contents was made available to the Court.

On 3 February 2005 the Kyiv Court of Appeal, composed of two professional judges and three lay judges and acting as the first-instance court in the applicant’s case, commenced the trial.

On 8 February 2005 the court appointed Krav. as the applicant’s lawyer under legal aid scheme instead of lawyer V. The grounds for that decision remain unknown.

Before the court, the applicant stated that when he had been detained by the police “his head had not been working” because he had been drunk. After the arrest, he had drunk some vodka given to him by the police, and that was why he did not remember what he had said or done from 9 to 11 February 2004. He “was not sure” that he had written the self-incriminating statement on 9 February 2004. Investigator Ch. had promised to charge him with only the offence of concealment if he admitted that he had kept V. and Sh. in his basement. Actually, V., Sh., and N. had voluntarily stayed in his house and none of them had been forcefully held in the basement. In November 2003 Sh. and V. had drunk too much vodka, had fallen asleep in one of the rooms of his house, and had died of cold. He did not know that the victims’ apartments had been sold without their consent. He had been afraid of the police and for that reason he had not reported the deaths of V. and Sh. and had buried them in his yard. After his arrest the police officers had not beaten him.

The court questioned investigator Ch. in the applicant’s presence and the latter asked him questions. Ch. stated that the applicant had not been drunk on the day of his arrest and the police had not given him any alcohol from 9 to 11 February 2003. Ch. denied that he had subjected the applicant to any pressure or promised to charge him with only the offence of concealment.

The court questioned experts who had examined the bodies of V. and Sh. and the applicant’s lawyer asked them questions. The experts stated that they could not exclude the possibility that V. and Sh. had died of cold while they had been asleep in one of the rooms of the applicant’s house. They said that it was also possible that they had died in the basement.

On 17 March 2005 Ro. was questioned by the court in the applicant’s presence and stated that he had seen V., still alive, in the applicant’s basement, and had heard how V. had asked the applicant to release him. Later, Ro. had seen V.’s dead body in the applicant’s basement. Ro. had met N. in the applicant’s house on several occasions, and N. had told him that a group of people intended to “sell” him, and were keeping him in the applicant’s house. The applicant asked Ro. questions during the hearing and received answers.

Upon being questioned by the court, N. stated that in July 2003 certain “Olya” and “Volodya” had taken some of his documents, had brought him to the applicant’s house and had left him there until the end of August 2003. The applicant had not allowed him to leave the house and had told N. that he had had a gun. While N. had been staying in the applicant’s house he had observed the applicant, Olya, Volodya, and Kr., and had concluded that they had been acting as an organised group and had intended to sell his apartment without his consent. In August 2003 Olya had moved N. to the house which she had bought from Ru. In September 2003 Volodya and Olya had placed N. in a hospital in the town of Svetlovodsk. From there, N. had called his relatives in Kyiv and had learned that his apartment in Kyiv had been sold. He had then returned to Kyiv and had complained to the police. When N. had returned to the building where his apartment was located, the neighbours had told him that several people had been moving his furniture out of the apartment. They had described one of those people and N. had understood that it had been the applicant. The applicant was present during N.’s questioning by the court and asked him questions.

On 31 March 2005 the court questioned the applicant’s girlfriend, Te., in the applicant’s presence. She stated that N. had been living in the applicant’s house for about a month because he had been “having a rest” there. She further stated that a man and a woman had been locked in the basement of the applicant’s house against their will. The people who had brought N. to the applicant’s house had instructed Te. not to allow him to leave the house and not to talk to him about the apartment. She had been told that N.’s apartment was being sold in accordance with his wishes, but she had understood that, in fact, he had not known that the apartment was being sold. Once, the applicant had brought various pieces of furniture to the house and had explained Te. that the furniture belonged to N. Kr. had visited the applicant and had brought him food and money for feeding V., Sh., and N.

On 8 April 2005 the applicant asked the court to recall Te. as witness so that he could question her again. That request was granted, however, Te. did not appear before the court because the police could not find her at her permanent place of residence.

Kr. stated before the court that he had brought N., a man and a woman to the applicant’s house, where they had voluntarily stayed. In the autumn of 2003 the applicant had informed Kr. that the man and the woman had died in one of the rooms of his house and he had moved their bodies to the basement. Kr. had helped the applicant to carry two dead bodies from the basement to the yard and to bury them.

The applicant asked the court if he could call and question Pl. and Ru., because, according to him, their statements contradicted those of N. The request to call Pl. was granted but Pl. refused to appear before the court stating that he was too busy with his work in the Svetlovodsk hospital. The request to call and question Ru. was not granted by the court. The applicant requested (unsuccessfully) that the court order a forensic examination of his basement, such an examination being aimed at establishing whether or not V. and Sh. had indeed spent several weeks there.

On 25 May 2005 the Kyiv Court of Appeal convicted the applicant of having forcefully held N., V., and Sh. in his house, an action which led to the deaths of V. and Sh. The court also found the applicant guilty of absconding from detention facility, illegal storage of firearms and participating in the fraudulent sale of the apartments belonging to N. and V. The applicant was sentenced to fifteen years of imprisonment. On the same date the lawyer Krav. stopped representing the applicant for unknown reasons. In his observations submitted in reply to those of the Government, the applicant stated that he had unsuccessfully lodged requests for the appointment of a lawyer to represent him before the Supreme Court. The case file does not contain copies of any such requests.

On 11 August 2005 the applicant appealed against his convictions. He stated that the trial had not been objective or fair, and that the first-instance court had misinterpreted the facts of the case, and had refused to call witnesses proposed by him. Ru. and Pl. had not been questioned at a court hearing, although their statements contradicted those of N., while the statements of Te. and Ro. contained contradictory and false information. His request for examination of his basement had also been refused.

On 22 December 2005 the Supreme Court upheld the applicant’s convictions and sentence, having found no irregularities in the first-instance court’s decision.

On 7 June 2006 the applicant sent his first letter to the Court. On 29 August 2006 he submitted a duly signed and completed application form. On 29 September 2006 and 21 March 2007 the Court asked the applicant to provide a copy of his cassation appeal, and copies of his complaints concerning the alleged ill-treatment by the police. The applicant asked the Kyiv Court of Appeal to send those documents to him, but on 14 May 2007 that request was refused on the ground that the law did not empower the applicant to obtain copies of case documents after the conclusion of criminal proceedings.

On 24 January 2008 the Kyiv Court of Appeal sent the applicant the copies which he had requested (see paragraph 43 above).

In October 2011 the applicant requested the same court to send him various materials from his case file, in particular, all the courts’ decisions, reports of medical experts and copies of all the statements and requests which the applicant had made during the criminal proceedings. The applicant stated, without elaborating further, that he needed those documents to “substantiate his complaints” before the Court. On 18 November 2011 the Kyiv Court of Appeal refused the applicant’s request on the same grounds as on 14 May 2007.

Before the Court the applicant stated that the services provided to him by his lawyers had been of low quality. They were not interested in his case because he did not have any money to pay them.

According to the applicant, the conditions of his detention at the pre-trial detention facility (ITT) in which he was detained for three periods between 9 February and 27 July 2004 were inhuman and degrading.


Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 6 - Right to a fair trial (Article 6-1 - Criminal charge;Fair hearing)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant was born in 1971. He is currently serving a prison sentence.

On 1 May 2007, at about 1 a.m., the corpse of Ms Kh., the applicant’s wife, from whom he was separated, was discovered with multiple stab wounds.

Later on 1 May 2007, at about 3 a.m., the police apprehended and questioned the applicant. His questioning was documented as that of a witness. The applicant confessed to the murder of Ms Kh.

The applicant described the circumstances in which that confession was given as follows. He had been taken to Gorodok Town Police Station, where the police had threatened him with a view to extracting a confession. As the applicant had refused to confess, they had handcuffed his hands behind his back, pulled a black cap over his head, covering his eyes, and had taken him somewhere downstairs. The applicant had been made to sit on a chair and his feet had been tied to the chair legs. The applicant had felt something touching his head behind the ears and something being pressed against his temples, and as his body started to shake and jerk realised that electric shocks were being administered to him. This had been repeated several times. The applicant had fallen off the chair. Thereafter a police officer had unzipped the applicant’s trousers and attached electric wires to his genitals. After several electric shocks had been administered to his genitals, the applicant had agreed to confess to the incriminated murder. After saying that he could not remember certain details, more electric shocks had been administered to him. One of the police officers involved in the ill-treatment had complained to the applicant that the latter had ruined his birthday celebration and had expressed his determination to obtain a confession from him.

According to the Government’s account of the events, the applicant had not suffered any ill-treatment and had confessed to the murder of his own free will.

On the evening of 1 May 2007 the applicant’s “voluntary surrender to the police” was documented, and he was questioned again, this time as a suspect. He signed a report confirming that his right to legal assistance had been explained to him. As noted in the questioning report, at first the applicant had expressed the wish to be represented by a lawyer, but had later decided to waive his right to legal assistance. He stated during the questioning that his waiver had not resulted from any ill-treatment.

On the same day an expert from the Yarmolyntsi Town Forensic Expert Examination Bureau examined the applicant on the investigator’s instruction with a view to establishing whether he had any injuries, if so, what their location and nature were, and finally whether those injuries could have been caused by a struggle with the victim.

With effect from 2 May 2007, the applicant was represented by lawyer B., who had been contracted by his sister. He was questioned as a suspect in the presence of his lawyer and maintained his confession. He further maintained it during the reconstruction of the crime conducted on the same day with the participation of his lawyer.

On 3 May 2007 the expert who had examined the applicant on 1 May 2007 completed the examination report. It documented a bruise on the applicant’s left shoulder blade, a bruise on the left side of his torso, a bruise beneath the right shoulder blade, a bruise on the left shoulder and another bruise in the upper part of the left forearm, a bruise on the left wrist, a bruise on the back of the right hand and on the right wrist, and an abrasion and a bruise on the left ear. The injuries in question were assessed as having originated one or two days prior to the examination from blows inflicted by blunt objects with a limited surface, and by falling against a blunt surface. They were assessed as insignificant. In addition, the expert reported two abrasions behind the applicant’s right ear, which could have originated from blunt hard objects with a limited surface and a slightly sharp edge (such as nails). The age of these sores was assessed as one day prior to the examination. Some older bruises (three to five days old) were also discovered.

On 4 May 2007 the applicant was again questioned in the presence of his lawyer. He maintained his confession. As regards his injuries, he explained that he had sustained them while working on a construction site and during his fight with Ms Kh. The applicant stated that the police had not ill-treated him.

On the same day the Gorodok Town Court remanded the applicant in custody pending trial. During the hearing he repeated his confession and did not lodge any complaints.

Still on that date, 4 May 2007, the applicant was examined by a panel of doctors in the Gorodok Central City Hospital. They found him to be in good health.

With effect from 8 May 2007 the applicant was represented by lawyer T. instead of lawyer B. He immediately retracted his confession and complained of his ill-treatment to the Gorodok town prosecutor’s office. The applicant submitted that he had incriminated himself as a result of coercion and that he had not committed the crime in question. He alleged that he had sustained electric shocks at the hands of the police and stated that no other ill-treatment had been used on him. As to his bruises, the applicant noted that they could have been caused by his falling to the floor whilst tied to a chair. He further explained that even when represented by lawyer B., he had been afraid to tell the truth and had repeated his confession as the lawyer had recommended.

On 10 May 2007 the applicant was questioned in the presence of his lawyer T. While maintaining the complaint concerning his ill-treatment, he submitted that his ear had been injured earlier, prior to his encounter with the police.

On 7 June 2007 an additional forensic medical examination report was delivered in respect of the applicant. The question before the expert was whether the applicant had any injuries demonstrating that electric shocks had been administered to him on 1 May 2007. According to the report, the applicant had three superficial wounds to his genitals, which had been inflicted at least two weeks before the examination. The expert found it impossible to establish whether those wounds had originated from electric shocks. However, he stated that it was equally impossible to exclude that possibility.

On 14 November 2007 the prosecutor questioned the forensic medical expert who had examined the applicant on 1 May and 7 June 2007 (see paragraphs 11, 13 and 19 above). She submitted, in particular, that the bruises discovered on his wrists on 1 May 2007 could have been caused by handcuffs. The expert also noted that the applicant had not complained before 7 June 2007 that electric shocks had been administered to him. It was not possible to state with precision when the wounds on his genitals could have been inflicted. Their healing time could vary significantly depending on individual characteristics. Overall, the expert considered it improbable that the applicant might have sustained those injuries on 1 May 2007 and in the circumstances described by him.

On the same day the prosecutor also questioned the dermatologist who had participated in the examination of the applicant on 4 May 2007 (see paragraph 16 above). The doctor stated that she had examined the applicant’s genitals and that no wounds or other signs of ill-treatment had been discovered. She also noted that the applicant had not raised any complaints.

During the period between May 2007 and January 2008 the prosecution authorities refused on six occasions to institute criminal proceedings against the police officers involved in the alleged ill-treatment of the applicant. Five of those rulings were quashed for the incompleteness and superficiality of the investigation. As to the sixth ruling, of 29 January 2008, it is not clear whether it was eventually quashed. The report of 7 June 2007 was mentioned in only one ruling, that of 16 November 2007. The prosecutor, however, concluded that it could not be regarded as sufficient evidence that electric shocks had been administered to the applicant.

On 27 February 2008 the Dunayivtsi Town Court found the applicant guilty of the premeditated murder of Ms Kh. and sentenced him to thirteen years’ imprisonment. It relied, in particular, on the applicant’s “surrender to the police” and subsequent self-incriminating statements. As to his allegation of ill-treatment by the police, it was dismissed as unsubstantiated.

The applicant appealed. He submitted that he had incriminated himself under duress and pointed out certain discrepancies in the evidence.

On 14 May 2008 the Khmelnytskyy Regional Court of Appeal (“the Khmelnytskyy Regional Court”) upheld the first-instance court’s judgment.

The applicant lodged an appeal on points of law, in which he maintained the arguments advanced earlier in his appeal.

On 14 April 2009 the Supreme Court quashed the ruling of 14 May 2008 and remitted the case for fresh examination by the appellate court. It stated that the Khmelnytskyy Regional Court had not sufficiently addressed the applicant’s arguments. The Supreme Court also criticised the lower courts for formalistic examination of the applicant’s allegations of ill-treatment. It stated that no evaluation had been made of the medical evidence in the case file, according to which it could not be ruled out that his injuries had been sustained in the circumstances as described by him.

On 27 July 2009 the Khmelnytskyy Regional Court quashed the judgment of 27 February 2008 and remitted the case to the Gorodok Prosecutor for additional investigation. It referred to the issues pointed out by the Supreme Court.

On 17 March 2010 the Dunayivtsi Court pronounced a new verdict, the operative part of which was identical to that of 27 February 2008. As before, the court relied on the applicant’s initial confessions, including that of 1 May 2007, which was documented as his “voluntary surrender to the police”. The court dismissed all the defence arguments, considering them to be nothing more than the applicant’s attempts to avoid criminal liability. As to his motives for the murder, the court considered them to have been his jealousy and his wish to reunite with Ms Kh. Allegations of aggressive behaviour towards the victim in the past had been confirmed by several witnesses. Lastly, the applicant’s allegation about having suffered electric shocks was rejected as unsubstantiated. The court noted in that regard that the applicant had made his confessions in the presence of his lawyer B.

The applicant submitted an appeal, and later an appeal on points of law, reiterating his earlier argumentation.

The Khmelnytskyy Regional Court and the Supreme Court upheld the judgment of 17 March 2010 on 26 May 2010 and 24 March 2011 respectively.