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

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in 1963 and is currently serving his term of imprisonment in Nizhniy Tagil.

Since 12 June 2011 the applicant waited trial in remand prison IZ21/2 in the Republic of Chuvashiya. According to him, between 15 June 2011 and 15 April 2012 he was transported by prison van on approximately one hundred occasions between the remand prison and temporary detention facility of Cheboksary (IVS) which was the closest secure facility to the court building. Although on some rare occasions the applicant was alone in the van, during other trips he was either placed in a single occupancy cell measuring 0.25 sq. m or remained on his feet because there were no free seats. There were no toilets in the vans, prisoners used plastic bottles. On the days of transport, the applicant did not receive food rations. Lengthy check-in and check-out procedures resulted in two-hour wait at either facility with inmates staying inside vans. The applicant submitted a certificate issued by the remand prison governor showing the dates of his transport.

The Government provided a description of the applicant’s conditions of transport, relying on transport logs concerning fifty-five trips, photographs of the vans, and two certificates issued by the Ministry of Interior of the Republic. One of the certificates lacked references to any original documentation and mentioned fifty-five trips and the one referred to “extracts from the prisoner transport logs” and listed sixty-six trips on different dates. The Government stated that they could not provide the full information about the conditions of the applicant’s transport. They added that the applicant was transported on fifty-five occasions in total, on thirteen of which he was in the van alone. The number of prisoners did not exceed the maximum capacity of vans, an average trip lasted 35-40 minutes, some of the vans were equipped with toilets, and the applicant was provided with dry food rations.


Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)

Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Síofra O’Leary

The applicant was born in 1988 and lives in Gladbeck (Germany). When lodging his application, he was detained in Essen Prison.

On 9 October 2008 the Gladbeck District Court convicted the applicant of several counts of extortion, robbery, burglary, embezzlement and assault. Applying the criminal law relating to young offenders, it sentenced him to two years’ imprisonment. The District Court suspended the execution of the sentence and granted probation. In a separate decision of the same day, the District Court imposed conditions on the applicant during the probation period, which was to run until 16 October 2010. The applicant was not to reoffend; in addition, he was ordered, inter alia, to complete at least 200 hours of unpaid social work.

On 11 December 2008 the applicant’s counsel informed the District Court that he represented the applicant in the proceedings concerning the applicant’s probation.

On 15 June 2009 the Gladbeck District Court issued a detention order against the applicant, which was confirmed on appeal. The courts found that there was a strong suspicion that the applicant had committed a burglary on 31 May/1 June 2009 in a hotel in Gladbeck. The suspicion was based on the witness statement made by the applicant’s former girl-friend S. to the police.

By a letter dated 5 October 2009 the applicant’s counsel notified the Essen Public Prosecutor’s Office, which received the letter on 8 October 2009, that he represented the applicant also in the investigation proceedings concerning the burglary on 31 May/1 June 2009.

On 7 October 2009 the applicant was arrested. He was heard on 8 October 2009 by the investigating judge at the Herford District Court, without his counsel being present, on suspicion of having committed the burglary in a hotel on 31 May/1 June 2009 in Gladbeck. The applicant, who had been informed of his rights to remain silent and to consult a defence counsel at any time, admitted having committed the offence described in the detention order of 15 June 2009.

On 20 October 2009, in a hearing before the Gladbeck District Court for review of the necessity of his further detention on remand, the applicant, in the presence of his counsel, revoked his confession of 8 October 2009. He submitted that he had only admitted having committed the burglary on 31 May/1 June 2009 as a police officer had told him at the time of his arrest that he had good chances of being released from detention on remand if he did so.

Subsequently, on 23 October 2009, the Essen Public Prosecutor’s Office charged the applicant with the burglary committed in Gladbeck.

On 22 October 2009 the Gladbeck District Court, relying on section 26 § 1 of the Juvenile Courts Act (see paragraph 28 below), revoked the suspension on probation of the applicant’s prison sentence granted in that court’s judgment of 9 October 2008.

The District Court noted that in its decision of 9 October 2008 to suspend the sentence on probation, the applicant had been imposed the condition not to reoffend during the probation period. He had breached that condition as he had confessed having committed a burglary on 31 May/1 June 2009 in Gladbeck. His new offence was similarly serious as the offences he had been convicted of on 9 October 2008.

The District Court further observed that the applicant had failed to comply with additional conditions imposed in the probation order. In particular, he had not completed the unpaid social work he had been obliged to carry out and had not contacted his probation officer without having a valid excuse.

On 27 October 2009 the applicant lodged an appeal against the District Court’s decision. He contested the court’s finding that he had reoffended. He stressed, in particular, that he had revoked his confession of 8 October 2009. Moreover, a confession alone, the credibility of which had not been tested, was not sufficient to be proved guilty of an offence. In any event, under the standards of European law, the revocation of the suspension of a sentence on probation could only be based on a final conviction of a new offence. He had to be presumed innocent until proved guilty according to law.

On 16 November 2009 the Essen Regional Court dismissed the applicant’s appeal against the District Court’s decision. The Regional Court considered that the revocation of the suspension on probation of the applicant’s prison sentence under section 26 of the Juvenile Courts Act could not be based on the applicant’s failure to carry out the unpaid social work he had been imposed in the probation order because the District Court had failed to specify in which institution the applicant was to do that work.

The Regional Court further found: “However, ultimately it was nevertheless correct to revoke the suspension on probation as the convicted offender, as the District Court had correctly found, committed another offence during the probation period.” (“Der Widerruf der Bewährung ist jedoch im Ergebnis gleichwohl zu Recht erfolgt, denn der Verurteilte ist, wie das Amtsgericht zutreffend angenommen hat, innerhalb der Bewährungszeit erneut straffällig geworden.“).

The Regional Court confirmed that the revocation of the suspension of the applicant’s sentence did not require that the applicant had been convicted by a final judgment of the offence on which the revocation was based. It was sufficient that the court revoking the suspension of the sentence had obtained certainty by other means that the person concerned had committed the offence. The presumption of innocence laid down in Article 6 § 2 of the Convention did not warrant a different conclusion. That presumption only related to proceedings in which a decision on the charges against the accused had to be taken and not to proceedings concerning the revocation of the suspension of a sentence on probation. Referring, in particular, to a decision of the Federal Constitutional Court of 9 December 2004 (see paragraphs 30-31 below), the Regional Court found that it was therefore sufficient, in particular, that the court revoking the suspension on probation of the penalty was convinced that the person concerned was guilty of a new offence on the basis of a credible confession that person made before a judge.

In the case before it, the Regional Court then found that in view of the applicant’s confession on 8 October 2009 before the investigating judge, it was of the “firm conviction that the applicant had again committed an offence” (“sichere Überzeugung von einer erneuten Begehung einer Straftat durch den Verurteilten”), namely a burglary on 31 May/1 June 2009 in a hotel in Gladbeck. The applicant’s confession was credible, in particular, as it was supported by the detailed description of the applicant’s acts before and after the offence given by witness S. before the police. The subsequent revocation of the confession by the applicant, who had further contested S.’s statements, arguing that S. wanted to take revenge following the breakdown of their relationship, was not credible in the light of the results of the investigations undertaken to date. The Regional Court referred in this respect, in particular, to the reports of the witness statements made by S. and by Z., an employee of the hotel concerned, before the police. The Regional Court therefore concluded that the applicant had demonstrated by his new offence that he had not fulfilled the expectations on which the suspension of his sentence had been based.

On 7 December 2009, following a decision of the Gladbeck District Court, the applicant’s detention on remand was interrupted in order for him to serve the sentence imposed on him in the Gladbeck District Court’s judgment of 9 October 2008.

On 10 December 2009 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the decisions of the Gladbeck District Court dated 22 October 2009 and of the Essen Regional Court dated 16 November 2009. He argued, in particular, that the said courts’ finding, on the basis of the case-file alone, that he had committed another burglary had disregarded the rule of law and the presumption of innocence as guaranteed by the Basic Law and by Article 6 §§ 1 and 2 of the Convention. His initial confession before the investigating judge was irrelevant as he had revoked that confession, the credibility of which had not been tested by the courts revoking the suspension of his sentence on probation. He further took the view that the question whether he had committed a new burglary had to be determined by the competent criminal courts following a trial. The domestic courts’ finding that he had committed another burglary before he had been convicted thereof by a final judgment also disregarded the European Court of Human Rights’ findings in a judgment of 3 October 2002 (Böhmer v. Germany, no. 37568/97).

On 23 December 2009 the Federal Constitutional Court, without giving reasons, declined to consider the applicant’s constitutional complaint (file no. 2 BvR 2888/09).

On 19 January 2010 the Gladbeck District Court convicted the applicant of burglary, committed on 31 May/1 June 2009 in a hotel in Gladbeck, and sentenced him to one year’s imprisonment. The judgment became final on 2 June 2010.

The applicant was released from prison on 5 August 2011.


Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Kyrgyzstan);Violation of Article 5 - Right to liberty and security (Article 5-4 - Take proceedings)

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

The applicant was born in 1991 and lives in Vladivostok.

The applicant is an ethnic Uzbek. He lived in the town of Osh in Kyrgyzstan. After the mass disorders and inter-ethnic clashes in the region in June 2010, he left Kyrgyzstan for Russia.

On 4 July 2010 the applicant arrived in Russia.

On 9 July 2010 the Kyrgyz authorities charged the applicant in absentia with violent crimes related to these clashes, including the kidnapping and murder of two law-enforcement officers.

On 10 July 2010 they ordered the applicant’s arrest.

On 12 July 2010 the applicant’s name was put on a national wanted list, and on 16 September 2010 on an international wanted list.

On 23 January 2014 the applicant was apprehended in Vladivostok, Primorsk Region, and placed in detention.

Shortly after his arrest, the applicant gave an explanation (объяснение) in which he admitted having participated in the beating of one of the law-enforcement officers in June 2010 but denied his involvement in other crimes for which he was to be prosecuted in Kyrgyzstan. He also indicated that although he had not been directly informed about the charges being brought against him in Kyrgyzstan, he knew that his father had been sentenced to life imprisonment for the murder of the same law-enforcement officers and suspected that he was himself also wanted by the Kyrgyz authorities.

On 24 January 2014 the Frunzenskiy District Court of Vladivostok decided to remand the applicant in custody. His detention was subsequently extended several times.

On 29 January 2014 the Russian Prosecutor’s Office informed the Kyrgyz authorities about the applicant’s arrest.

On 16 January 2015 a judge of the Primorsk Regional Court extended the applicant’s detention until 23 July 2015. The applicant’s lawyer appealed, arguing that the applicant would be deprived of judicial review of his detention for a long period of time.

On 11 February 2015 the Primorsk Regional Court upheld the extension order on appeal. It did not address the applicant’s argument that he would be deprived of judicial review of his detention for a long period of time.

On 27 July 2015 the applicant was released. It appears that the applicant is currently at large.

On 11 February 2014 the Kyrgyz General Prosecutor’s Office requested the applicant’s extradition. The request was accompanied by assurances that the applicant would not be subjected to torture or inhuman treatment and that Russian diplomats would be granted the opportunity to visit him.

On 17 October 2014 the Deputy Prosecutor General granted the extradition request submitted by the Kyrgyz authorities.

On 6 November 2014 the applicant appealed, arguing that as an ethnic Uzbek charged with serious crimes in relation to the mass disorders of June 2010 he would face a serious risk of torture and ill-treatment if extradited. He also referred to the principle of nonrefoulement of asylum seekers pending the examination of his application for refugee status.

On 12 December 2014 the Primorsk Regional Court rejected his appeal in the light of the diplomatic assurances given by the Kyrgyz authorities and the improvement of the situation in Kyrgyzstan. As to the nonrefoulement principle, the Regional Court noted that the applicant’s application for refugee status had been refused by the migration authority.

On 25 March 2015 the Supreme Court rejected the applicant’s appeal and the extradition order became final. It noted in particular that in addition to the diplomatic assurances provided in writing by the Kyrgyz authorities, the representatives of the General Consulate of the Russian Federation in this country were able to monitor the situation of persons already extradited to Kyrgyzstan, including those held in relation to the mass disorders. For instance, on 30 and 31 July 2014 Russian diplomats had visited some such detainees, who had made no complaints in relation to their transfer, detention, prosecution or treatment. In the Supreme Court’s view, such a monitoring mechanism was effective in observing compliance by the Kyrgyz authorities with their obligations to ensure the rights of the extradited persons, including the right not to be subjected to torture and inhuman treatment.

The Supreme Court noted that the applicant belonged to a vulnerable group whose members were at risk of being subjected to torture by the lawenforcement agencies, according to international reports. It considered, however, that in the absence of specific evidence submitted by the applicant that he would personally be subjected to torture or inhuman and degrading treatment, these circumstances were not in themselves enough to reject an extradition request, since he had been charged with ordinary criminal offences to some of which he had confessed on 23 January 2014.

On 7 February 2014 the applicant applied to the Primorsk Region Department of the Federal Migration Service (Управление Федеральной миграционной службы по Приморскому краю) (hereinafter the “Primorsk Region FMS”) seeking refugee status.

On 23 April 2014 the Primorsk Region FMS refused the applicant’s application for refugee status. Although it referred in its decision to interethnic conflicts existing in Kyrgyzstan, it considered that the applicant’s arrival in Russia had rather been motivated by the unemployment situation existing in his country of origin and his wish to escape from criminal prosecution.

The applicant appealed to the Federal Migration Authority, (Федеральная миграционная служба (ФМС)) (hereinafter the “FMS”). He claimed that he was being persecuted on the grounds of his ethnic origin and, if extradited, would be subjected to torture.

On 18 July 2014 the FMS dismissed his appeal on account of his prolonged failure to apply for refugee status and in view of the opportunity offered to the Russian diplomats to monitor the compliance by the Kyrgyz authorities with international standards as regards persons extradited from Russia.

On 13 November 2014 the Basmannyy District Court of Moscow upheld the refusal of the FMS to grant the applicant refugee status, referring in particular to his protracted failure to apply for refugee status. It also indicated that the applicant was not a member of any political, religious, military or public organisation, had neither served in the army nor taken part in any military activities, had never been prosecuted or threatened by the authorities, and had not been involved in any violent incidents.

On 8 April 2015 the Moscow City Court upheld this judgment on appeal. The City Court endorsed the reasoning of the District Court, referring in addition to several international sources demonstrating positive developments in the human rights situation in Kyrgyzstan during the period 2011-2012.


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

The applicants are Mr Aleksandar Matić (“the first applicant”) and Polonia DOO (“the second applicant”).

The first applicant is a Serbian national who was born in 1961 and lives in Mladenovac. He is also the second applicant’s authorised representative. The second applicant is a limited liability company based in Mladenovac. Both applicants were represented before the Court by Mr M. Grujičić, a lawyer practising in Belgrade.

The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić.

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

In 2005 the second applicant bought a cargo ship (teretni brod) outside of Serbia. This ship’s estimated worth was approximately 545,000 Euros (“EUR”).

In September 2005 the first applicant, acting on behalf of the second applicant, retained the services of a forwarding company (špediter), which company specialised in customs-related matters.

On 13 September 2005 the forwarding company filed a declaration with the customs authorities, supplementing it with the relevant documentation provided by the applicants.

On 7 November 2005 the Belgrade Customs Office (carinarnica), having, inter alia, heard a number of witnesses, established that the ship had been improperly classified (svrstan pod pogrešni tarifni stav), as a sea-going vessel, which classification, in turn, implied that no customs duty would be payable. The forwarding company and its authorised representative, as well as the applicants in the present case, were thus found guilty of a customs offence (cariski prekršaj) and fined in accordance with the relevant legislation (see paragraph 16 below). In particular, the first and the second applicants were ordered to pay 10,000 and 3,000,000 Serbian Dinars (“RSD”) respectively, whilst the forwarding company and its authorised representative were fined in the amount of RSD 3,000,000 and 10,000 in that order. The Customs Office noted that its own classification of the ship, as primarily a river-going vessel, was based on the assessment of one of the two expert organisations which had submitted opposing opinions during the proceedings. The Customs Office also referred to an attesting declaration, issued by the German authorities and provided by the applicants themselves, to the effect that the ship was “suitable for sailing on the Rhine, between Basel and the open sea”. In any event, the head of the Customs Office, at one point, recommended that the ship be classified as a river-going one, but the applicants refused to do so.

On 11 October 2006 the Ministry of Finance (Ministarstvo finansija) partly accepted the appeals filed by the four defendants, and in so doing amended the fines imposed at first instance. In particular, the first and second applicants were ordered to pay RSD 5,000 and RSD 2,000,000, (approximately EUR 60 and EUR 23,600 at that time), respectively, whilst the forwarding company and its authorised representative were fined less, i.e. RSD 500,000 and RSD 3,000 (approximately EUR 5,900 and EUR 35 at that time) respectively. The Ministry of Finance stated that the reason for this distinction was that the forwarding company had merely complied with the applicants’ request for the improper classification of the ship in question, as established on the basis of a witness statement given in the course of the proceedings. Also, the Ministry of Finance accepted that there was no intent on the part of the applicants to deceive the authorities, which was why they were found guilty under Article 340 of the Customs Act, an offence not requiring the existence of such intent but rather the mere failure to provide accurate information upon submission of a customs declaration.

On 25 October 2006 the applicants lodged an appeal on points of law (zahtev za vanredno preispitivanje pravosnažnog rešenja), which appeal was supplemented on 8 December 2006, 31 January 2008 and 12 February 2008. Therein, the applicants maintained, inter alia, that: (a) although the Belgrade Customs Office had taken into account two expert opinions regarding the classification of the ship, it had accepted, without proper explanation, one opinion and effectively given no credence to the other; (b) they had had no expertise to navigate their way through the complex customs proceedings, which was why they had hired the forwarding company to deal with this issue; and (c) the impugned decisions of the customs authorities had been inconsistent with their decisions in other similar cases.

On 26 December 2007 the Supreme Court (Vrhovni sud) ruled on the applicants’ appeal on points of law. The first applicant’s claims were rejected as inadmissible (odbačeni), since the amount of the fine imposed in his case was below the statutory threshold of RSD 100,000 (see paragraph 22 below), whilst the second applicant’s claims were considered on their merits and rejected (odbijeni). The Supreme Court endorsed the reasoning contained in the impugned decisions issued by the administrative authorities. The applicants received the Supreme Court’s judgment on 10 March 2008.

The second applicant was granted the possibility to pay the fine in monthly instalments, and by January 2008 the fine was paid in full.

The above-described proceedings were conducted on the basis of the Minor Offences Act 1989, as amended in 2004, as well as the Customs Act 2003 (see paragraphs 16-24 below).

Between 25 September 2006 and 10 December 2010 the Ministry of Finance and the Supreme Court of Cassation (Vrhovni kasacioni sud), applying Article 340 of the Customs Act, issued six decisions in respect of situations broadly similar to that of the applicants. Specifically, they noted that it was the responsibility of the importer to provide accurate documentation to the forwarding company and the forwarding company’s duty to properly classify the goods in the customs declaration. No intent to deceive the authorities was deemed necessary for the existence of the said offence. In two of these cases the importers were, ultimately, acquitted or formally cautioned (opomenuti), without being fined, whilst in the remaining four cases they were fined in accordance with the applicable legislation (see, for example, rešenja Ministarstva finansija od 25. septembra 2006. i 21. januara 2007, Pžc nos. 1349/05 i 667/07; as well as presude Vrhovnog kasacionog suda od 12. februara 2010, 26. marta 2010, 11. juna 2010. i 10. decembra 2010, Upr nos. 2/10, 115/10, 12/10 i 110/10).

Article 340 provides, inter alia, that a company, as well as its authorised representative employed therewith (odgovorno lice), shall be liable for failing to provide accurate information upon submission of a customs declaration. They shall further be fined therefor in the amount of up to RSD 25,000 or the threefold value of the imported goods, as regards a natural person and a corporate entity respectively.

Article 35 § 1 provides that should a natural person (fizičko lice), fail to pay the fine imposed, it shall be converted into a prison term on the basis that one day in prison shall be worth RSD 500, but that the imprisonment may not exceed a period of thirty days in all.

Article 36 § 2 provides that should a corporate entity fail to pay the fine imposed, it shall be collected “forcibly” (naplatiće se prinudnim putem).

Article 41 § 1 provides, inter alia, that a defendant may be formally cautioned, rather than fined, where there are serious extenuating circumstances.

Article 84 identifies, inter alia, the courts entrusted with conducting customs-related proceedings.

Article 234 § 1 (9) provides that proceedings shall be terminated if there is no proof that the defendant had committed the offence with which he has been charged.

Article 272 provides, inter alia, that a natural person, as well as an authorised representative of a corporate entity employed therewith (odgovorno lice u pravnom licu), shall be entitled to lodge an appeal on points of law if they have been fined in the amount of RSD 100,000 or more.

In accordance with Article 277, the Supreme Court shall, should it accept an appeal on points of law lodged by one of the parties concerned, have the power to overturn and/or amend the impugned decision or quash it and order the re-examination of the issue before the competent administrative authorities.

Article 17 of the Amendments Act adopted in 2004 amended Article 84 of the Minor Offences Act 1989, whereby administrative authorities were given the competence to conduct customs-related proceedings at first and second instance.

On 1 January 2007 this Act repealed the Minor Offences Act 1989, as amended in 2004.

Article 306 of the Minor Offences Act 2005 provides that it shall be applicable to all pending cases where no second instance decision has been rendered on the merits by 1 January 2007. By implication, as regards all other pending cases, including the present case, the Minor Offences Act 1989, as amended in 2004, remained applicable until their very conclusion.


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

The applicant was born in 1927 and lives in Rīga.

On 10 August 1998 the Office of the Prosecutor General separated materials of the criminal case no. 81204496 and initiated new criminal proceedings in respect of the applicant’s activities during the period from 1948 to 1953, when he was an investigator at the Ministry of State Security of the Soviet Socialist Republic of Latvia. According to the Office of the Prosecutor General, the applicant had participated in political repressions of the Soviet regime.

On 23 October 1999 the prosecutor informed the applicant that he was suspected of having committed genocide. More specifically, the Office of the Prosecutor General alleged that the applicant had participated in military operations against members of the Latvian armed resistance, collected evidence in criminal proceedings against them, arrested them and their supporters and collected evidence and arrested people who had possessed anti-Soviet manuscripts. On the same date the prosecutor for the first time questioned the applicant as a suspect.

From 29 October 1999 to 28 December 1999 the applicant was detained on remand.

On 25 November 1999 the applicant was charged with crimes against humanity and genocide.

On 26 July 2000 the prosecutor drafted the bill of indictment and sent the case to the Riga Regional Court for adjudication. The indictment concerned seven different episodes involving thirteen alleged victims.

On 23 October 2002 the applicant’s new defence counsel requested the Riga Regional Court to postpone at least for three weeks the hearing, which was scheduled for 24 October 2002, so that he would have enough time to acquaint himself with the applicant’s criminal case file.

On 24 October 2002 the hearing was postponed indefinitely due to the responsible judge’s illness.

On an unknown date the applicant’s criminal case was taken over by another judge of the Riga Regional Court. On 14 September 2004 the judge informed the applicant’s defence counsel that the hearing was scheduled for 11 October 2004.

The Riga Regional Court held hearings on 11, 12 and 18 October 2004. The next hearing was scheduled for 13 December 2004. However, on 7 December 2004 the judge informed the applicant that the hearing was postponed to 21 March 2005 due to a protracted examination of another criminal case.

On 21 March 2005 the Riga Regional Court continued examination of the applicant’s criminal case and on 4 April 2005 the court delivered its judgment, acquitting the applicant.

The prosecutor appealed against the judgement. On 19 December 2005 the Criminal Cases Chamber of the Supreme Court quashed the first-instance court’s judgment and remitted the case to the first-instance court. This decision was finalised on 16 March 2006.

On 23 March 2006 the applicant’s defence counsel appealed against the appellate court’s decision of 19 December 2005. With a decision of 28 April 2006 the Senate of the Supreme Court quashed this decision and remitted the case to the appellate court.

On 2 May 2006 the judge of the Criminal Cases Chamber of the Supreme Court scheduled the appeal hearing for 7, 8 and 9 February 2007.

Upon the prosecutor’s request, on 7 February 2007 the appellate court suspended the case pending an expert medical report on the applicant’s capacity to participate in the hearing and to serve a prison sentence.

On 17 April 2007 the court’s decision ordering the forensic examination was forwarded to the State Centre for Forensic Medical Examination. On 24 April 2007 also the applicant’s criminal case file was sent to this institution. On 28 August 2007 the State Centre for Forensic Medical Examination delivered the results of the forensic examination.

Following the applicant’s forensic expertise, the examination of the applicant’s criminal case before the appellate court was continued on 27 and 28 February 2008. On 7 March 2008 the appellate court upheld the judgment of the Riga Regional Court of 4 April 2005 acquitting the applicant. The decision was finalised on 9 May 2008.

On 19 May 2008 the prosecutor appealed against this decision.

With a final decision of 27 August 2008 the Senate of the Supreme Court upheld the decision of the appellate court.


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

The applicant, Mr Edgar Savisaar, is an Estonian national who was born in 1950 and lives in Lääne-Virumaa. He is represented before the Court by Mr Oliver Nääs, a lawyer practising in Tallinn.

The applicant, who had been the mayor of Tallinn since 9 April 2007, was re-elected to the Tallinn city council on 20 October 2013 and on 14 November 2013 the city council re-elected him as mayor. On the same date the city council confirmed the appointment to office of the members of the municipal government, thereby giving the applicant the authority to exercise his mayoral powers.

On 22 September 2015 the applicant was arrested on suspicion of accepting substantial bribes. On 23 September 2015 the applicant was prohibited from leaving his place of residence as a preventive measure. It does not appear from the materials before the Court how long those measures were in force.

On 23 September 2015 the State Prosecutor’s Office petitioned the Harju County Court to suspend him from office as a precautionary measure. The petition detailed numerous acts which had been investigated and which were deemed to constitute a criminal offence. It was noted in the petition that all the acts in question related to the applicant’s service as mayor of Tallinn and the issuing of instructions to persons employed by the Tallinn city government in abuse of his office. The State Prosecutor’s Office found that there was reasonable suspicion that he had committed a criminal offence and that if he continued to serve as mayor he might i) destroy or conceal documentary evidence, or ii) create new evidence seeking to justify the said acts, or iii) influence officials of the Tallinn municipal government to give witness testimony that would be favourable to him.

On 23 September 2015 a hearing was held in Harju County Court to ensure the applicant’s rights of defence. This hearing was postponed to 24 September 2015 in order to allow the State Prosecutor’s Office to provide the applicant with a copy of its petition.

On 30 September 2015 the Harju County Court adopted a decision suspending the applicant from the office of mayor of Tallinn for the duration of the criminal proceedings. The first-instance court determined that there was sufficient evidence to warrant reasonable suspicion that the applicant had committed the crime of repeatedly accepting bribes for his own benefit and also for the benefit of his political party. In arriving at this conclusion, the court examined all the evidence in the case as provided by the State Prosecutor’s Office. This body of evidence consisted of surveillance reports and extracts from bank statements. The first-instance court did not agree that there was a risk that the applicant might destroy or conceal documentary evidence, as all such evidence had been seized by the authorities during the search of his home and his cars. Nor did it agree that the applicant might create new evidence to justify the said acts. The court did agree, however, that there was a risk that the applicant might influence municipal officials to give favourable witness testimony if he were to continue to serve as mayor. The court found this suspicion substantiated by surveillance reports providing evidence of the applicant issuing instructions to municipal officials to engineer favourable resolutions to the problems of people who had promised him certain benefits. In the light of the specific nature of the alleged crimes and the manner in which the crimes were committed, the court held that there was reason to believe that the applicant might commit offences impeding the administration of justice and thus hamper the effective conduct of proceedings. Given the importance of preventing any such obstruction of justice, the court deemed this risk sufficient to justify the applicant’s suspension from office.

The applicant’s suspension from office entailed the temporary loss of his remuneration as mayor.

On 12 October 2015 the applicant filed an appeal against the decision of the Harju County Court, requesting that the decision of the firstinstance court be quashed. The applicant argued that the decision did not contain sufficient reasons explaining how he could influence witnesses if he were to continue to serve as mayor. He further argued that the suspension from office was a disproportionate measure for the purposes of achieving the State Prosecutor’s Office’s objective.

On 22 October 2015 an oral hearing was held in the Tallinn Court of Appeal. The State Prosecutor’s Office submitted to the appellate court all gathered evidence forming the basis for a reasonable suspicion of a criminal offence. At the hearing the applicant’s defence counsel submitted a request for permission to examine this evidence, since in his opinion the Convention guaranteed defence counsel the right to examine such material. The Court of Appeal noted that in his appeal the applicant had not challenged the existence of reasonable suspicion and held that this request was therefore beyond the scope of the appeal. The defence counsel further stated that he wanted to examine the evidence forming the basis for the prosecutor’s belief that the applicant would influence witnesses. The prosecutor argued that the defence counsel had not made any such request in the firstinstance court, even though the latter was aware that the firstinstance court had also examined all the evidence gathered in the case. The request was therefore not admissible in the appeal proceedings. The prosecutor also argued that the defence counsel’s right to examine evidence could be restricted in these proceedings, which concerned only the applicant’s suspension from the office of mayor. He further submitted that the court’s task was to determine whether sufficient evidence had been gathered in support of his suspension from office.

The court of appeal dismissed as premature the request for access to all the evidence on the grounds that it was not until the end of the investigation in the criminal case that the applicant was legally entitled to be acquainted with all the evidence gathered in the case. It also held that the applicant’s counsel was in a position to defend him in the proceedings concerning his suspension from office.

On 23 October 2015 the Tallinn Court of Appeal upheld the firstinstance court’s decision to suspend the applicant from office. The appeal court noted that the first-instance court had based its assessment of the risk that the applicant might influence witnesses on the evidence presented in the surveillance reports. It had also considered the substantial power and influence that the office of mayor gave him over his subordinates, the specific nature of the offences, and the manner in which they had allegedly been committed. This included evidence of the applicant issuing instructions to certain witnesses to secure the benefits promised to various individuals in return for bribes. The appellate court noted that it was not possible to give a detailed account of the circumstances described in the surveillance reports as this might prejudice the criminal proceedings. The appellate court found that, based on the information in those reports, the suspect might have influenced witnesses and the testimony they were going to give in court. The Court of Appeal also stated that it had examined the evidence contained in the surveillance reports and agreed with the firstinstance court’s assessment that the evidence was indicative of the applicant’s behaviour in the past and thus allowed the applicant’s future behaviour to be predicted. It concluded that the risk that the applicant would prejudice the proceedings and continue to commit offences against the administration of justice had been sufficiently demonstrated and that suspension from office was a proportionate measure.

On 2 November 2015 the applicant filed an appeal with the Supreme Court against the decision of the Tallinn Court of Appeal. In addition to the arguments in the first appeal, the applicant argued that the proceedings to suspend him from office had not been adversarial and fair, thereby breaching the civil limb of Article 6 § 1 of the Convention. The applicant had asked the Court of Appeal to allow him to examine the evidence forming the basis for the belief that the applicant might influence witnesses, but that request had been rejected.

On 1 December 2015 the Supreme Court declined to examine the appeal.

At the time of submission of the present application the pre-trial proceedings were still ongoing.

Under section 28 (3) of the Local Government Organisation Act a city or rural municipality mayor acquires the authority prescribed by law and in the by-laws of the respective rural municipality or city with effect from the date on which the appointment of the government to office is confirmed.

Article 141 (1) of the Code of Criminal Procedure (Kriminaalmenetluse seadustik) provides:

“(1) A suspect or accused shall be suspended from office at the request of a prosecutor’s office and on the basis of an order of a preliminary investigation judge or on the basis of a court order if:

1) he or she may continue to commit criminal offences if he or she remains in office;

2) his or her remaining in office may prejudice the criminal proceedings.”

Article 1412 of the Code of Criminal Procedure provides in its relevant parts:

“(1) A suspect or accused or his or her counsel may, upon the expiry of four months from the suspension from office or application of a temporary restraining order, submit a request to a preliminary investigation judge or court to review the reasons for the suspension from office or application of a temporary restraining order or to amend the conditions of application of such a temporary restraining order. A new request may be submitted four months after the review of a previous request.

(2) A preliminary investigation judge or court shall review such a request within five days of the receipt thereof. The prosecutor, suspect or accused and, at the request of the suspect or accused, his or her counsel shall be summoned before the preliminary investigation judge or court. ...

(3) Such a request shall be adjudicated by a court ruling. A ruling made in the context of reviewing such a request is not amenable to appeal ...”

In its judgment of 15 January 2016 in constitutional review case no. 3-4-1-30-15 the Supreme Court ruled that a city or rural municipality mayor who has been suspended from office continues to be the holder of the office of mayor during the period of suspension but is not authorised to exercise any mayoral powers.


Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant, Mr Ivan Mykolayovych Serebryanskyy, is a Ukrainian national, who was born in 1926 and lives in Pervomaysk. He had been granted legal aid and is represented by Mr V. Galkin, a lawyer practising in Toshkivka, Ukraine.

The Ukrainian Government (“the Government”) were represented by their Agent, most recently, Ms Nataly Sevostianova, of the Ministry of Justice of Ukraine.

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

The applicant is entitled to a lump sum payment in accordance with section 12 of the War Veterans Status and Social Protection Guarantees Act (Закон України «Про статус ветеранів війни, гарантії їх соціального захисту»), payable to him every year by 5 May (the “Victory Day payment”). In 2004 the applicant received 120 Ukrainian hryvnias (UAH), UAH 250 in 2005, UAH 250 in 2006, UAH 280 in 2007 and UAH 310 in 2008.

In March 2008 the applicant instituted proceedings in court, stating that the above-mentioned lump sums should have been equal to five times the minimum pension and claiming the unpaid difference for 2004-08.

On 4 August 2008 the Pervomaysky Town Court awarded the applicant UAH 3,870 in unpaid lump sums for 2007-08 in the light of the Constitutional Court decision of 9 July 2007 (see the “Domestic law” part below). The court held that the applicant was entitled to these payments, and the dispute was limited only to their amounts. From 9 July 2007 the applicant was entitled to a payment in the amount of five times the minimum pension. The court noted that the decision of the Constitutional Court had been adopted after the payments were due to be made, but that the Constitutional Court could not adopt a decision which would not be enforced.

On 30 October 2008 the Donetsk Administrative Court of Appeal upheld that decision.

On 24 June 2010 the Higher Administrative Court of Ukraine quashed those decisions and rejected the applicant’s claims. It held that the Constitutional Court decisions did not have retrospective effect. It further rejected the applicant’s claims related to 2004-06, because the applicant had missed the one-year time-limit for lodging his claim.

Section 2 of the War Veterans Status and Social Protection Guarantees Act provides that legal acts which reduce the rights and privileges of war veterans laid down by the Act are null and void.

In accordance with section 12 of the War Veterans Status and Social Protection Guarantees Act war veterans shall receive each year by 5 May a lump sum in the amount of five times the minimum pension. In accordance with section 17(1) of this Act those who did not receive the payment before 5 May can still request payment by 30 September of the same year.

The State Budget Acts of 2006 and 2007 suspended the above-mentioned provision for 2006 and 2007 respectively. They also set a different level of payment. On 9 July 2007 the Constitutional Court of Ukraine found the amendments in respect of 2007 to be unconstitutional (see Kolesnik and Others v. Ukraine (dec.), nos. 57116/10, 74847/10 and 10642/11, § 46, 26 June 2014). It appears that no similar complaint was lodged in 2006.

The State Budget Act 2008 amended section 12 of the War Veterans Status and Social Protection Guarantees Act to provide that the amount of the lump sum should be determined by the Cabinet of Ministers. Decision no. 183 of the Cabinet of Ministers of 12 March 2008 set the amount of this payment at UAH 310. On 22 May 2008 the changes introduced by the State Budget Act 2008 were found to be unconstitutional by the Constitutional Court of Ukraine.

The minimum pension for 2007-08 was set at UAH 410.06 and UAH 481 respectively.

Lastly, the Code of Administrative Justice in force as of 1 September 2005 set a one-year time-limit for lodging claims under the administrative justice procedure.

On 1 May 2009 the Higher Administrative Court of Ukraine issued a general analysis of the administrative courts’ practice in cases related to the social protection of children of war, war veterans and victims of the Nazi persecutions. The Higher Administrative Court of Ukraine noted that:

“An analysis of the courts’ practice shows that disputes are mainly caused by shortcomings in the legislative regulation of social protection; in particular, since legal acts of equal force exist on the matter, it is difficult to establish which provision has higher legal force and should thus be applied in the dispute in question.

The main legal acts in question include the Constitution of Ukraine, the Children of War Social Protection Act, the War Veterans Status and Social Protection Guarantees Act [...].

The State Budget Acts for 2006-2008 introduced changes to those legal acts, suspending some provisions and reducing some payments.

On 9 July 2007 and 22 May 2008 some changes introduced by the State Budget Acts were found to be unconstitutional by the Constitutional Court of Ukraine.”

The Higher Administrative Court of Ukraine further noted that the national courts had not always correctly decided which legal act should be applied. In respect of the lump sum payment under section 12 of the War Veterans Status and Social Protection Guarantees Act it noted that in 2006 the provisions of the State Budget Act 2006 were to be applied, since this Act was adopted later than the War Veterans Status and Social Protection Guarantees Act.

As for the 2007-2008 payments, the Higher Administrative Court of Ukraine noted that the relevant provisions of the State Budget Acts of 2007-2008 had been found to be unconstitutional. However, since the Constitutional Court decisions could not be applied retrospectively, the relevant persons had “the right to receive the 5 May lump sum payment in the amount set by the War Veterans Status and Social Protection Guarantees Act only after the dates of adoption of the relevant decisions of the Constitutional Court”. In particular, only those who did not receive the relevant payment before 5 May could receive it before 30 September under section 17(1) of the War Veterans Status and Social Protection Guarantees Act.

In a letter of 14 August 2009 sent to the heads of the administrative courts of appeal the Higher Administrative Court of Ukraine reiterated its position.


Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo

The applicants, Ms M.R. and her two minor children, are Iraqi nationals who were born in 1980, 2005 and 2008 respectively. They were represented before the Court by Ms Sini Ruutu, a lawyer practising in Helsinki.

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

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

The applicant mother is a Kurd from Kirkuk, Iraq, who escaped from Iraq with her husband and two children due to persecution. The applicants claimed that the husband had been threatened by the “Islamic State” for having denounced to the authorities persons who were in possession of firearms. He had subsequently received many death threats, for which reason the family was relocated elsewhere in Northern Iraq. Despite the internal flight, the persecution continued. The family fled first to Turkey, where their persecutors tried to kidnap the children. They then fled to Italy.

The applicant mother fell gravely ill after her second pregnancy in 2009. Both of her kidneys were removed and she received a kidney transplant. Due to a lack of proper medication, she was in very poor condition during their escape from Kurdistan and does not even remember being in Italy.

The applicants apparently arrived in Finland in July 2015 and sought asylum on 29 July 2015. The applicant mother was immediately admitted to hospital and was thereafter admitted to hospital on a monthly basis for periods of varying length. It appears that her husband has in the meantime been convicted of rape and that she has decided to divorce him. Upon their application for asylum in Finland on 29 July 2015, it was discovered that the applicants had previously been registered in Italy on 11 July 2015.

On 2 February 2016 the Finnish Immigration Service (Maahanmuuttovirasto, Migrationsverket) rejected the applicants’ application and decided to order their return to Italy. The Service found that, on 31 August 2015, the Finnish authorities had informed the Italian Government about the applicants’ family situation and the scheduled arrival of the applicant mother and her children, and that the Italian authorities had not opposed to receive them. The parents were capable of taking care of their children and removal to Italy was not against the best interest of the children, in whose interest it was to live with their parents. Italy had agreed to comply with the fundamental rights guaranteed by the EU Charter on Fundamental Rights and was to examine the applicants’ asylum application. The applicants had a right to services provided by Italian authorities. In a Dublin transfer decision the substance of the asylum claim is not examined, so the decision regarding the applicants did not deal with the applicant mother’s illness or her factual position as a single mother due to the pre-trial detention of the children’s father.

By letter dated 10 February 2016 the applicants appealed to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen), requesting also a stay on removal.

On 12 February 2016 the Administrative Court decided not to grant a stay on removal.

By letters dated 17 February and 8 March 2016 the applicants made their second and third requests for a stay on removal. On unspecified dates the Administrative Court refused these requests.

The proceedings before the Administrative Court are still pending. However, a Dublin transfer decision is enforceable, notwithstanding that the case has not been finally determined.

The application was lodged with the Court on 11 March 2016. On 15 March 2016 the duty judge of the Court decided to suspend the examination of Rule 39 of the Rules of Court until receipt of information from the respondent Government and to put factual questions to the Finnish Government under Rule 54 § 2 (a), which concerned, inter alia, the guarantees obtained from the Italian authorities in relation to the applicants’ scheduled transfer to Italy.

The Finnish Government submitted their reply on 29 March 2016. In their letter, the respondent Government noted that the Italian authorities had informed the Finnish authorities of the guarantees for vulnerable cases, including families with children, by their letters of 8 June 2015 and 15 February 2016. A copy of these circular letters sent by the Dublin Unit of the Italian Ministry of the Interior (Ministero dell’Interno) was attached to the Government’s letter. In these circular letters the Italian Dublin Unit set out the new policy of the Italian authorities on transfers to Italy of families with small children and provided an updated list of accommodation available to such families.

The Finnish Government noted that the Immigration Service would transfer the medical information detailing the special needs of the applicants to the competent authorities in Italy and, accordingly, those needs would be taken care of in such a manner that the applicants would receive any necessary medical care in Italy without interruption. They noted that the Finnish authorities had made sufficient efforts to obtain individual and specific guarantees from the Italian authorities, and that there was no reason to suspect that the applicants would be separated from each other or subjected to any treatment contrary to Article 3 of the Convention upon arrival in Italy. The examination of the applicants’ application by the Court was premature, as no final decision by the relevant domestic courts had yet been made. Accordingly, the Government considered that the applicants’ application should be declared inadmissible by virtue of Article 35 § 1 and 4 of the Convention for non-exhaustion of domestic remedies.

On 1 April 2016 the applicants were sent a copy of the Government’s letter for information.

On 5 April 2016 the duty judge of the Court decided, under Rule 39, to indicate to the Finnish Government that the applicants should not be transferred to Italy for the duration of the proceedings before the Court.

On 22 April 2016 the applicants commented on the information submitted by the Government, maintaining that they had not been informed to date of any individual or specific guarantees concerning their possible removal to Italy. A mere agreement between Finland and Italy to keep families with children together and to arrange accommodation for them could not be regarded as sufficient. The applicants’ situation would be unclear if Italy could give no individual guarantees by the time of the possible removal. According to the applicants, the children’s father had been convicted of rape and sentenced to two years’ imprisonment. The applicant mother was certain that her marriage was over, but acknowledged that the children’s well-being was fully dependent on their father’s presence. Regular family visits to prison had already been arranged for the children. The applicants wished the Court to continue the examination of their case.