No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)

Alena Poláčková;Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Georgios A. Serghides;Guido Raimondi;Helena Jäderblom;Jon Fridrik Kjølbro;Julia Laffranque;Linos-Alexandre Sicilianos;Luis López Guerra;Nona Tsotsoria;Paul Lemmens;Síofra O’Leary;Georges Ravarani;Ksenija Turković

The applicant was born in 1959 and lives in Bijela (Montenegro).

On 29 September 1992, the applicant’s father-in-law, Vu.Z., represented by his wife K.Z., concluded a contract with F.O. and H.A. for the exchange of his house in Dubrovnik for a house in Trebinje (Bosnia and Herzegovina).

Vu.Z. died on an unknown date between 2001 and 2002.

On 14 August 2002 the applicant’s husband M.Z., who was a son of Vu.Z., represented by a certain M.Č. from Herceg Novi (Montenegro), brought a civil action in the Dubrovnik Municipal Court (Općinski sud u Dubrovniku) against F.O.’s heirs and H.A., seeking to have the contract for the exchange of the houses declared null and void and to obtain the possession of the house in Dubrovnik. M.Č. was a practising lawyer in Montenegro.

M.Z. claimed that the contract had contained incorrect information with regard to the legal status of the house in Trebinje and that K.Z. had not had the necessary authorisation to sign such a contract. He further alleged that the contract had been signed under duress because of circumstances arising from the war in Croatia. He also submitted that the difference in the values of the properties exchanged had been disproportionate in that the house in Dubrovnik was worth about 250,000-300,000 euros (EUR) and the house in Trebinje some EUR 80,000-90,000. Lastly, he stressed that it had been impossible for him to regularise his ownership of the house in Trebinje due to the irregularities in the contract.

In his action, M.Z. indicated the value of the subject matter of the dispute (vrijednost predmeta spora) at 10,000 Croatian kunas (HRK) (approximately EUR 1,300 at the time).

On 16 August 2002 the Dubrovnik Municipal Court (hereafter: “the Municipal Court”) invited M.Z. to clarify the circumstances relating to his legal representation, in particular by providing a valid power of attorney, and to provide some further documents concerning his claim.

A first hearing in the case was held on 3 March 2003. At that hearing, the Dubrovnik Municipal Court instructed M.Z. to provide documents attesting to his standing as heir of Vu.Z.

Further to this hearing, the parties exchanged pleadings and documentary evidence requested by the Municipal Court.

At a hearing on 13 December 2004 the respondents insisted that the issue of M.Z.’s representation by M.Č. needed to be clarified. The latter stated that he would no longer represent M.Z., who would instruct a lawyer in Croatia to represent him.

A further hearing was held on 1 February 2005. M.Z. was represented by I.B., a lawyer practising in Dubrovnik (who is also representing the applicant in the current proceedings before the Court). At the hearing, the lawyer I.B. corrected some clerical omissions in the civil action and reiterated the arguments for declaring the contract null and void as set forth in the civil action, namely that the contract had been signed under duress, that the legal status and ownership of the house in Trebinje had not been properly stated and that there had been a disproportionate difference in the value of the properties. In reply to a question by the trial judge concerning the validity of the power of attorney issued by Vu.Z. to his wife K.Z. (see paragraphs 10 and 13 above), I.B. stressed that he did not consider that power of attorney to be invalid as an original had been deposited in the relevant register. The respondents challenged the arguments advanced on behalf of M.Z. on the basis that there were no grounds for declaring the contract null and void.

At a hearing on 6 April 2005 the lawyer I.B. explained that following the termination of the hearing he would no longer represent M.Z., who would in future be represented by the applicant (his wife). At the same hearing, I.B. submitted two documents. In the first he requested that the validity of the power of attorney issued by Vu.Z. to his wife K.Z. (see paragraphs 10, 13 and 19 above) be examined on the grounds that there were doubts as to its authenticity. In the same document he asked that a preliminary measure (injunction) be issued preventing any disposal of the property in dispute. In the second document he explained that the value of the subject matter of the dispute had been set too low, and indicated the new value of the subject matter of the dispute at HRK 105,000 (approximately EUR 14,160 at the time).

At the same hearing, the respondents contested the suggestion that there was any issue with the validity of the power of attorney, pointing out that at a hearing held on 1 February 2005 I.B. had not challenged that validity. The respondents also opposed the request for an injunction. Finally, they objected to the change of the value of the subject matter of the dispute, arguing that it had been increased only in order to enable the claimant to lodge an appeal on points of law.

After hearing the parties’ pleas, the Municipal Court questioned the respondents as witnesses. Following their questioning, at M.Z.’s request the Dubrovnik Municipal Court adjourned the hearing in order to obtain the original of the impugned power of attorney and reserved its decision on the request for an injunction. No decision was adopted with regard to the change of the value of the subject matter of the dispute.

On 25 April 2005 the Municipal Court ordered M.Z. to pay court fees of HRK 1,400 (approximately EUR 190 at the time) for bringing the civil action. It assessed the fees by reference to a value of the dispute set at HRK 105,000.

At a hearing on 13 September 2005 the Municipal Court examined the materials available in the file, following which it concluded the hearing.

By a judgment of 27 September 2005 the Municipal Court dismissed M.Z.’s claim and the request for an injunction. It found that despite repeated attempts to summon M.Z. to the hearing, he had failed to appear without providing any valid reasons. Also, in the light of the parties’ arguments, including on the issues regarding the power of attorney on the basis of which the contract had been concluded, it found no grounds to doubt the validity of the contract. The Municipal Court ordered that M.Z. was to bear all the litigation costs, including the expenses of the opposing parties, in the amount of HRK 25,931.10 (approximately EUR 3,480 at the time). It assessed the costs of the proceedings by reference to the value of the subject matter of the dispute indicated at the hearing on 6 April 2005, namely HRK 105,000. The relevant part of the judgment reads as follows:

“... [T]he costs of the proceedings were awarded to the respondents [and assessed] according to ... the value of the dispute indicated by the claimant (HRK 105,000 (page 58 [of the case-file]) which this court accepted.”

On 12 December 2005 the first-instance court ordered M.Z. to pay court fees of HRK 1,400 for the judgment. It also assessed these fees by reference to a value of HRK 105,000 for the dispute.

By judgment of 1 October 2009 the Dubrovnik County Court (Županijski sud u Dubrovniku; hereafter: “the County Court”) dismissed an appeal by M.Z. and upheld the first-instance judgment. The relevant part of that judgment reads as follows:

“In view of the fact that the [first-instance judgment] is challenged in its entirety, thus including also the decision on the costs of the proceedings, and although the appeal is not specified in that respect, [it is to be noted that] the decision on the costs of the proceedings is based on the relevant law and adequate reasons are provided.”

On 24 May 2010 M.Z. lodged an appeal on points of law (revizija) with the Supreme Court challenging the findings of the lower courts.

On 7 October 2010 M.Z. died. The proceedings were taken over by his wife Vesna Zubac, the applicant, as his heir.

By a decision of 30 March 2011 the Supreme Court declared the appeal on points of law inadmissible ratione valoris, finding that the value of the subject matter of the dispute was below the statutory threshold of HRK 100,000 (approximately EUR 13,500 at the time). It held that the applicable value of the subject matter of the dispute was that set out in the claimant’s statement of claim in the civil action. The relevant part of that decision reads as follows:

“With regard to section 40 (3) of the Civil Procedure Act if, in a situation referred to in subsection 2, it is obvious that the value of the subject matter of the dispute indicated by the claimant is too high or too low, so that an issue arises concerning jurisdiction over the subject matter, the composition of the court, the type of proceedings, the right to lodge an appeal on points of law, the authorisation for representation or the costs of proceedings, the court shall, ex officio or upon the objection of the respondent, by the latest at the preparatory hearing or, if no preparatory hearing has been held, at the first session of the main hearing before the respondent has begun litigation on the merits of the case, quickly and in an appropriate manner verify the accuracy of the value specified and, by a decision against which no separate appeal is allowed, determine the value of the subject matter of the dispute.

It follows that when an action does not concern a sum of money the claimant is obliged to indicate the relevant value of the subject matter of the dispute in the civil action, after which the claimant is not allowed to change the [indicated] value of the dispute. Only a court may set the value of the subject matter of the dispute, ex officio or if an objection is raised by the respondent, if it establishes that the value indicated in the civil action is too high or too low, by the latest at the preparatory hearing or, if no preparatory hearing has been held, at the main hearing before the examination of the merits.

In the present case the value of the subject matter of the dispute indicated in the statement of claim is 10,000 Croatian kunas.

Later on, at the hearing of 6 April 2005, the claimant’s representative indicated the value of the subject matter of the dispute at 105,000 Croatian kunas considering that it had been indicated too low in the civil action. However, the claimant did not amend the claim at the same time. The first-instance court did not adopt a decision on a new value for the dispute because the procedural requirements under section 40 (3) of the CPA [Civil Procedure Act] were not met.

It follows that the relevant value of the subject matter of the dispute is the one indicated by the claimant in the civil action, namely 10,000 Croatian kunas, because the claimant was not allowed to change the indicated value if he did not amend his claim at the same time.”

By a decision of 10 November 2011 the Constitutional Court summarily declared a constitutional complaint by the applicant, complaining, inter alia, of a lack of access to the Supreme Court, inadmissible on the grounds that the case raised no constitutional issues. On 30 November 2011 it served its decision on the applicant’s representative.


Preliminary objection joined to merits and dismissed (Article 34 - Victim);No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Yonko Grozev

The first applicant was born in 1992, the second applicant in 1995, and the third applicant in 1993. They are female and reside in Latvia.

The relevant facts of the case as submitted by the parties and emerging from the documents furnished to the Court may be summarised as follows.

From a young age the applicants trained in modern pentathlon. In 2007 they enrolled in a State sports school in Riga.

According to their submission, the first and third applicants commenced training with the sports school’s coach O.B. in summer 2008 and the second applicant was coached by him during the summer of 2009.

In addition to the above-mentioned training, O.B. organised sports summer camps on the school’s campus, which the first and third applicants attended in 2008 and all the applicants attended in 2009.

At the time of the events in issue, the applicants were under eighteen years of age.

On 4 January 2010 the mother of the first and second applicants submitted a complaint to the State police alleging that the coach, O.B., had sexually abused her daughters.

The same day the police opened a criminal investigation under section 162 of the Criminal Law (Krimināllikums) (sexual abuse (pavešana netiklībā)) with respect to the period between summer 2008 and September 2009.

In the course of investigation the police took statements from various individuals, including the applicants and their parents, and O.B.’s former students and their parents.

On 4 January 2010 the mother stated that she had learnt from her daughters that O.B. had requested that after training they attend the sauna fully undressed. The coach had explained that wearing clothes was unhealthy. The second applicant had refused. However, other girls between thirteen and sixteen years of age, including the first applicant, had attended the sauna naked. The mother named the girls who had attended the sauna naked.

On one occasion when the second applicant had been in the sauna half-undressed, O.B. had entered the sauna and had told her that she was still little, thereby embarrassing her.

On another occasion, after the sauna O.B. had massaged the first applicant while touching her intimate body parts.

He had furthermore watched the girls changing and had touched their intimate body parts.

The first and second applicants’ mother submitted with regard to the third applicant that she had travelled with O.B. to a competition in Lithuania, where he had pressurised her to share the same bed. The third applicant however had refused.

On 5 and 14 January 2010 the police took statements from the three applicants, who were granted the status of injured parties in the proceedings. The police took an additional statement from the third applicant on 1 April 2010 and from the second applicant on 6 April 2010.

The applicants stated that the sauna sessions took place after training around twice a week. The second applicant had attended the sauna only twice.

Having arrived for the sauna, the first and second applicants had seen the other girls undressing fully. The other girls had told that it had been O.B.’s request that the sauna be attended naked. O.B. had said that it was very healthy to attend the sauna in that way.

At the beginning, the first applicant had felt shy. Yet, as she had seen the other girls attending the sauna naked, she had started doing so. For the same reason, the third applicant had also started going to the sauna naked.

The second applicant had removed only the top part of her swimsuit and had entered the sauna. Suddenly O.B., wearing shorts and a cap, had entered, which had startled the second applicant. She therefore had covered herself with her hands, to which O.B. had reacted by telling the other girls to look at how little she still was and saying that the other girls were already grown up and therefore naked. The second time, she had attended the sauna wrapped in a towel.

According to the applicants’ account, even though girls had been in the sauna naked, O.B. – dressed in shorts – had come in and massaged them using a special bath brush (a birch “besom” for a steam bath, used to swat or massage the body during a steam-bath procedure). Although the second applicant had refused that massage, she had witnessed O.B. asking the other girls to lie on their back and then massaging them. The second applicant had seen O.B. telling the third applicant to go to the sauna, and that he would come to massage her. The third applicant had listened to him. The second applicant stated as follows:

“... when [O.B.] was massaging [the girls] in the sauna, he did not touch [their] intimate body parts, [he] touched [their] bodies only with the bath brush, [he] did not touch [them] with [his] hands.”

The second applicant had told the other girls that the abovementioned practice was not normal. However, they had responded that, as it had been requested by the coach, it had to be complied with. The first and third applicants stated that O.B. had been their trainer and teacher, whom they had to obey. The second applicant, however, considered that there had been a possibility to refuse. To her mind the other girls had attended the sauna as they had not wished to disobey O.B. They had practically worshipped him, and had listened to everything he said.

From the documents furnished to the Court it appears that the applicants gave the police the names of the other girls who had attended the sauna, A.F., A.B. – who appears to have been a relative of O.B. – and V.A. The third applicant indicated that V.A. had rarely been to the sauna. According to the second applicant’s account, there had been another girl, K.D.

The first applicant also recounted an occasion when she had experienced pain in her leg. O.B. had told her that he would give a massage and after the sauna had laid her on a bed and massaged her while she had been wearing only underpants. O.B. had touched the lower part of her stomach.

The applicants stated that there had been times when O.B. had entered the girls’ changing room as if looking for someone. When passing by them he had – as if accidently – touched the girls’ intimate body parts. The second applicant stated that he had also tried to touch her, which she had prevented.

The first applicant stated that she had heard that in November 2009 the third applicant and some boys had travelled with O.B. to a competition in Lithuania. There he had told the third applicant that she would sleep with him in the same bed. The third applicant had gone to a separate bed to sleep and O.B., while drunk, had entered the room and had pulled at the children’s legs, including those of the third applicant.

The third applicant also gave evidence regarding the trip to Lithuania with O.B. and the other two boys, whose names she provided.

At a hotel O.B. had told her that she would sleep with him in the same bed. She had spoken to one of the boys and had taken one of the single beds. At around 10 p.m. O.B. had returned to the hotel room drunk. After some time he had gone to sleep. The third applicant had felt afraid that O.B. might do something bad to her.

During all three days of the competition, O.B. had consumed alcohol, even though he had also been driving a vehicle.

In April and May 2010 the police ordered a psychologist’s report regarding the applicants.

During the psychologist’s examination the first applicant commented that she had been surprised that the sauna had to be attended and that girls had attended it naked and that O.B. would enter and massage them with a besom, which had not seemed normal and had been unpleasant. However, the first applicant had felt afraid to tell her parents. O.B. had often touched her body, putting his arm around her waist, sitting her on his lap and hugging her, and also during massages. On one occasion during a massage he had touched her between her legs. The first applicant had been confused as to whether the coach’s behaviour had been normal or bad. She had not wished to tell O.B. anything bad as he had helped her a lot. However, at the workplace he had almost always been under the influence of alcohol. When any of the girls had not wished to sit on his lap, he would use force to pull them down.

The second applicant likewise told the psychologist that she had been very surprised about all the girls attending the sauna naked and O.B. entering and massaging them with a besom. She had tried to persuade the girls that it was not normal and had gone to the sauna dressed in a swimsuit. O.B. had ridiculed her about it in front of the other girls, saying that she was so shy because she was little. Also, the coach had always been trying to touch her, and to put his arm around her waist. It had been unpleasant and she had tried to avoid him. The second applicant had gone to the sauna twice. She had gradually started telling her parents about O.B.’s behaviour.

The third applicant did not wish to speak about the events in issue. Thoughts about O.B.’s behaviour caused negative emotions in her and she was trying to forget it. She confirmed her earlier testimonies. The psychologist noted her statements to the police of 14 January and 1 April 2010. Concerning the sauna sessions, the third applicant had not found it normal that the sauna needed to be attended naked. However, she had started doing the same as the other students. The report referred to the applicant’s character report from her previous school, which stated that on 1 September 2009 the applicant had been observed in a tense condition, unwilling to participate in extracurricular activities, in low spirits and suffering from loss of concentration. Suddenly in the mid-December 2009 she had decided to change school.

According to the psychologist’s report, the three applicants had been able to understand the nature and meaning of actions directed towards them.

However, the first applicant’s ability to object could have been diminished due to personality traits such as a difficulty in saying “no” and in objecting, especially to older persons, and the wish to avoid conflict situations and to maintain a friendly relationship with everyone. The third applicant’s ability to resist could have been diminished by personality traits such as a difficulty in expressing her own opinion where it contradicted the expectations of others, in assessing her own attitude and feelings with regard to events, judging what is right and what is not, an insecurity in communication, and the wish to avoid conflict situations and to maintain a friendly relationship with everyone. With regard to the second applicant, the psychologist’s report stated that she had been able to exhibit resistance appropriate to the situation.

The report noted that the events in issue had caused the first applicant unpleasant feelings, insecurity, and anger and had made her distrustful in her communication with other coaches and with older men. With regard to the second applicant the report stated that she had retained anger, and had felt offended and guilty. The third applicant had been in low spirits, unable to concentrate, tense, and unwilling to participate in extracurricular activities, but this had lessened over time. She had felt offended. She still retained shame, anger, unpleasant thoughts and memories about the coach’s conduct.

The report concluded that the alleged conduct of the coach had not caused the applicants to suffer psychological trauma. Owing to their psychological condition, however, the applicants’ participation in a trial or confrontation was not recommended.

On 27 January 2010 the police apprehended and questioned O.B. as a suspect.

According to O.B., girls had entered the sauna either wrapped in towels or wearing swimsuits. He had not entered the sauna with naked girls. They had exited the sauna dressed. O.B. would ask a particular child whether they required a massage. If the child responded in affirmative he would enter the sauna and massage the child with a besom.

In the sauna O.B. had massaged the first and third applicants at their request. He continued that during the massage they had been fully naked. No complaints however had been made. He had massaged by first lifting up one or both legs and massaging them and had then moved on to massage their arms. He had not touched the girls’ intimate body parts. He had known that touching breasts during massage was unhealthy. He had not known how it had come about that girls had been in the sauna naked. He had not told them that they needed to attend the sauna in that way.

O.B. stated that in summer 2009 he had massaged the first applicant on her hip muscle. It had been hurting and she had asked him to massage it.

On 29 January 2010 the police released O.B. subject to his not changing his place of residence and complying with a prohibition on approaching the applicants or the sports school.

On 21 January 2010 the mother of the third applicant gave evidence. In September 2009 her daughter had told her that girls attended the sauna naked together with O.B., who himself had been dressed in shorts. She had also mentioned a trip to Lithuania during which O.B. had touched her leg and she had run into the bathroom.

Of the other students mentioned by the applicants, it appears that the police interviewed V.A. on 14 January 2010 and her mother on 19 January 2010. Also, K.D.’s statement was taken on 13 August 2010 and her mother’s had been taken on 1 February 2010.

In particular, V.A. stated that she did not like the sauna. She had attended it only twice. Girls had attended the sauna naked and O.B. had massaged them. She had had good relations with O.B. According to V.A.’s mother, V.A. did not like the sauna in principle and it was unlikely that she had often attended it.

According to K.D.’s account of events, she had trained with O.B. until 2008. He had been a good coach (the copy of K.D.’s statement furnished to the Court by the Government in some parts was illegible). At a sports camp in summer 2005 her mother had gone into the sauna together with the girls. K.D. had told her that, as a sports doctor, O.B. would usually massage them. The mother had asked her: “...but how, naked?” Her daughter had replied that they would cover their bodies up with towels. Therefore the mother had understood that O.B. had not massaged them naked.

With regard to the other students referred to by the applicants, the police interviewed the mother of A.F. on 15 January 2010. The latter stated that her daughter had not paid any attention to attending the sauna naked as she had trained with O.B. from a young age. She had seen the other girls undressing for the sauna and had followed their example. A.F. had stated that the coach had not harassed them. In the view of A.F.’s mother, O.B. should not have allowed the girls to attend the sauna undressed and should have informed the parents. She stated that she would allow A.F. to be questioned only on a prosecutor’s authorisation.

On 25 January 2010, the police questioned D.B. – who had been referred to by the first and second applicants’ mother – and D.B.’s mother. D.B. had trained with O.B. between 2005 and 2008. From a copy of D.B.’s statement furnished to the Court by the Government it appears that she stated:

“... at the beginning [students] were going to the sauna in swimsuits, but [O.B.] said that [they] should not be shy and should attend the sauna without swimsuits in order for the body to relax fully. [D.B.] had started to take massages naked, as had the other girls.”

D.B. had not found it inappropriate, because the coach had entered the sauna only in order to demonstrate how to massage using a besom. Neither D.B. nor her mother had any complaints to lodge against him.

Between January and August 2010 the police also took other statements.

It emerges that the police interviewed a parent of one of O.B.’s students at the time of the investigation; specifically, on 3 February 2010 they questioned A.K., whose son, V.K., trained with O.B. He did not have any complaints concerning the coach and did not know any details about the situation in issue.

The police also questioned numerous former students of the coach. On 28 January 2010 J.R. gave evidence that she had been coached by O.B. until 2004. She described him positively. With regard to O.B.’s massaging naked girls in the sauna, she believed that he had done it through ignorance or a lack of understanding about the situation. But at the same time, he had done it in order to prepare aspiring athletes. She did not believe that he had had a sexual purpose. Parents of O.B.’s former students, J.P., J.A., and I.S.H., and also N.I. – who had herself trained with O.B. between 1991 and 1992 – described O.B. as a very good coach. I.S.H. had learnt from her son that boys had taken sauna massages wearing swimming trunks. Two other former students of O.B., A.D. – coached between 1994 and 2001 – and J.M., described O.B. as a very good coach.

On 1 February 2010 the doctor L.G. submitted evidence that the sauna was one of the most important renewal procedures after training. However, if a male was present in the sauna together with girls, it was recommended that they all wear swimwear.

On 18 October 2010 the investigator, T.M., terminated the investigation.

In her decision T.M. cited the evidence collected. She concluded that the investigation had revealed that the sauna sessions had been voluntary. Girls had attended the sauna fully undressed, either on their own initiative or because that had been the practice by others. As explained by O.B., sauna sessions were healthy and necessary after training. He had massaged students at their request. During massages they had been undressed but O.B. had had no interest in the girls. He had merely assisted with the massages.

T.M. could not establish that O.B. had acted with a sexual purpose, an element required under section 162 of the Criminal Law (sexual abuse). For that reason and referring to the principle of in dubio pro reo T.M. closed the investigation against O.B. for the lack of elements of crime.

On 29 October 2010 the applicants’ parents appealed to the prosecutor’s office against the termination decision. In November 2010 they supplemented the appeal.

They claimed that the applicants’ allegations had been ignored. The first applicant had indicated that O.B. had touched her intimate body parts; according to the second applicant, O.B. had ridiculed her in front of the other girls with regard to undressing in sauna; and the third applicant had recounted her experience in Lithuania. The allegation that O.B. had entered the changing rooms had not been addressed.

Contrary to the parents’ request, the students who had travelled to Lithuania together with O.B. and the third applicant had not been questioned. The statements of children present in the sauna had not been taken.

The parents contended that their reference to a recognised trainer who maintained that sauna sessions harmed the health of athletes under the age of eighteen had been neglected. They named a witness in that regard and asked that a statement be taken from him. They also requested that the first applicant’s current coach and the school psychologist be interviewed.

They furnished the report by the psychologist, K.V., to the effect that the first and second applicants had suffered psychological trauma. The appeal therefore sought the commissioning of another expert report.

On 1 December 2010 the prosecutor I.G. dismissed the appeal.

She reasoned that the applicants had been questioned thoroughly. Sixteen of O.B.’s former students, and their parents had been interviewed, as had two further witnesses as regards the usefulness of sauna.

Endorsing the investigator’s conclusion, I.G. stated that the investigation had not shown that O.B. had acted with a sexual purpose. All the witnesses had stated that O.B. had never touched students’ naked body parts other than with a besom and when massaging parts causing pain. Accordingly, the elements of crime under section 162 of the Criminal Law (sexual abuse) were not present. Nor could the elements under section 174 of the Law (cruelty and violence against a minor) be identified. None of O.B.’s students had stated that O.B. had treated his students in a cruel or violent way. The phrase he had used [with regard to the second applicant] had not reached that threshold.

I.G. dismissed the parents’ requests that further evidence be collected. Likewise, the report of the psychologist, K.V. concerning the first and second applicants could not be included in the investigation file as it had already been closed.

On 13 December 2010 the applicants’ parents appealed against the aforementioned decision to a higher prosecutor. In January 2011 they supplemented the appeal.

They disputed the conclusion that the element of a sexual purpose had not been present. In particular, they noted that according to the first applicant O.B. had touched the lower part of her stomach, the area between her legs, and her breasts during massages. The second applicant had told of O.B. ridiculing her in front of the other girls regarding undressing for the sauna. The third applicant’s account regarding the events in Lithuania had been ignored and other students who had been present on the trip to Lithuania had not been interviewed. No consideration had been given to the allegation of O.B. entering changing rooms and, as if by accident, touching girls’ breasts.

The appeal referred to the report by the psychologist, K.V., stating that the first applicant exhibited symptoms associated with violence or serious psychological trauma.

On 14 January 2011 the higher prosecutor, E.B., dismissed the appeal.

He endorsed the findings of the lower prosecutor, including the view that O.B. had regarded sauna sessions as beneficial to athletes’ health and had offered them to his students for this reason. Attendance of the sauna had been voluntary. Students had been naked because that had been the practice of the other students. Sometimes O.B. had entered the sauna but in order to perform massages only.

With regard to the episode in Lithuania, E.B. deemed that the third applicant’s allegation had not in itself revealed that a crime had been committed and statements from students present were therefore unnecessary. The investigation had been thorough and no further investigative actions were required.

On 26 January 2011 the applicants’ parents lodged an appeal against the aforementioned decision to the chief prosecutor, V.O.

They maintained their previous requests and arguments, including the contention that the girls had attended the sauna naked because O.B., using his coach’s authority, had convinced them that wearing swimsuits was harmful to health. Initially all the applicants had been wearing swimsuits but the other girls had told them that O.B. had insisted on their being undressed.

No regard therefore had been given to the claim that the first and third applicants had undressed due to pressure from O.B.

That aspect and the reasons which had led children to undress for the sauna had not been investigated. Even though the testimonies of other parents stated that their children had also attended the sauna naked, these children had not been interviewed.

Furthermore, according to boys coached by O.B. they had not been asked to attend the sauna undressed, which, in the parents’ submission, signalled that O.B. had been interested in naked girls. None of the other coaches at the sports school had massaged their students in the sauna, especially not naked. Moreover, O.B. had been in the habit of entering the sauna without the applicants’ permission.

The parents further argued that the lower prosecutor had referred to the allegation that during a massage O.B. had touched the first applicant between her legs without specifying further detail, even though the first applicant had specifically stated that the coach had touched her intimate body parts. The first applicant had spoken about it to the psychologist, who had affirmed that she had been speaking the truth.

On 28 February 2011 the chief prosecutor, V.O., dismissed the appeal and affirmed the closure of investigation.

V.O. endorsed the lower prosecutor’s findings. With regard to the parents’ request for the hearing of further witnesses, V.O. stated as follows:

“[A]fter having assessed [the applicants’] testimonies in that part, no grounds exist to conclude that a crime has been committed. Moreover, in these testimonies [the applicants] gave no evidence on the circumstances mentioned in the appeal in question.”

No appeal lay against the aforementioned decision.

On 17 June 2011 the mother of the first and second applicants, arguing that the report by the psychologist, K.V., constituted newly discovered facts, asked the State police to reopen the investigation. She stated that K.V. had concluded that the first applicant had suffered psychological trauma.

By a final decision of 1 September 2011 that request was dismissed.

On 22 November 2011 the mother of the third applicant, arguing that the report of the psychologist, K.V., constituted newly discovered facts, asked the police to reopen the investigation. According to K.V.’s report, the third applicant exhibited possible post-traumatic stress symptoms.

By a final decision of 6 February 2012 that request was dismissed.

In the meantime, on 20 April 2011 a compensation claim against O.B. was lodged on behalf of the applicants before the Riga City Vidzeme District Court (Rīgas pilsētas Vidzemes priekšpilsētas tiesa).

Relying on Article 92 of the Constitution (Satversme) (right to compensation) and section 1635 of the Civil Law (Civillikums) (right to compensation), it was requested that O.B. pay compensation of 3,000 Latvian lati (LVL) (roughly corresponding to 4,286 euros (EUR)) with regard to the first and the third applicants and LVL 1,000 (roughly corresponding to EUR 1,428) with regard to the second applicant.

On 30 October 2013 the District Court delivered its judgment.

According to the District Court, it was not disputed that the first and third applicants had started to train with O.B. in June 2009 and the second applicant in August 2009 (sic). The first and second applicants had trained with him until September 2009 and the third applicant until November 2009.

It was established that O.B. had recommended sauna sessions to his students. It was not, however, established that O.B. had psychologically influenced the applicants with regard to attending the sauna. At the same time, the District Court continued, it was not proved that the sauna sessions had been necessary in order to achieve good results in sports without harming health. They had not been included in the training programme. It was not proved that either the applicants or their parents had consented to the coach’s presence in the sauna together with naked girls. The applicants had been minors and therefore unable to fully understand or assess the situation. They had trusted and obeyed a person of the age of majority and could not have fully protected themselves against interference with their privacy.

According to generally accepted ethical norms, it was not a tradition in the society of the region to appear naked – even in the sauna – in front of the opposite sex. Massaging naked girls with a besom had been unethical and in contravention of general moral principles, as had been the suggestion to a girl under the age of eighteen to sleep with the coach in the same bed. The District Court found that these actions on part of O.B. had violated the applicants’ right to privacy.

Noting, inter alia, that none of the applicants had been caused grievous or irreversible consequences, the District Court ordered that O.B. pay LVL 300 (roughly corresponding to EUR 428) each to the first and third applicants and LVL 100 (roughly corresponding to EUR 143) to the second applicant.

As submitted by the Government and not disputed by the applicants, on 2 December 2013 O.B. lodged an appeal against the aforementioned judgment before the Riga Regional Court (Rīgas apgabaltiesa). No appeal, however, was lodged by the applicants.

On 12 March 2014 O.B. withdrew his appeal. On 19 March 2014 the appeal proceedings were discontinued and the judgment of the District Court became final on 1 April 2014.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Kristina Pardalos;Paul Mahoney;Pauliine Koskelo

On 30 May 2003 the Gjirokastra Commission recognised, amongst others, the applicants’ inherited property rights over an agricultural land measuring 655,400 sq. m. The applicants and other heirs would be awarded compensation in the sum of 2,297,398 Albanian leks (“ALL”) in respect of the entire land.

To date, no compensation has been paid.

On 15 September 1995 the Korça Commission recognised, amongst others, the applicant’s inherited property rights over some land measuring 2,800 sq. m of which 300 sq. m were restored. Since the remaining plot measuring 2,500 sq. m, which was situated within the village boundaries and used to be arable land, was occupied, the applicant and other heirs would be compensated in State bonds in the event the buildings located on the land were not privatised (“u kompensohet me obligacion shtetëror sipërfaqja 2,500 m2 ish tokë arë, brenda vijave kufizuese të Zvarishtit, në rast se objektet (...) nuk do të privatizohen”). The Commission stated that the applicant owned one sixths of the land.

On 21 December 1998 the Korça Commission recognised, amongst others, the applicant’s inherited property rights over another plot of arable land and meadow measuring 19,796 sq. m. Since the arable land and meadow were occupied, the applicant would be compensated in State bonds equivalent to a financial amount of ALL 36,890.

To date, no compensation has been paid.

On 10 April 1996 the Tirana Commission recognised, amongst others, the applicant’s inherited property rights over a plot of land measuring 766 sq. m of which 94 sq. m were restored. Since the remaining plot measuring 672 sq. m was occupied, the applicant and other heirs would be compensated in one of the ways provided by law.

To date, no compensation has been paid.

On 28 August 2000 the Kavaja Commission recognised, amongst others, the applicant’s inherited property rights over two plots of land totalling 17,500 sq. m. Since the plots of land were occupied, the applicant and other heirs would be compensated in kind in respect of a plot measuring 10,000 sq. m and in State bonds in respect of another plot measuring 750 sq. m. No decision was taken in respect of any right to compensation as regards the remaining plot measuring 6,750 sq. m.

To date, no compensation has been paid.

On 13 December 1996 the Devoll Commission recognised the applicants’ inherited property rights over an agricultural land measuring 27,200 sq. m. The applicants would be awarded compensation by way of State bonds in the sum of ALL 367,000.

To date, no compensation has been paid.

On 23 June 1995 the Tirana Commission recognised the applicant’s inherited property rights over a plot of land measuring 836 sq. m of which 513 sq. m were restored. Since the remaining plot was occupied, the applicant would be compensated in one of the ways provided by law.

On 17 March 2008 the Agency on Restitution and Compensation of Properties amended in part the Commission decision and decided that the applicant would be compensated in one of the ways provided by law even in respect of the plot of land measuring 513 sq. m.

To date, no compensation has been paid.


ANEMA-KWINKELENBERG AND OTHERS v. THE NETHERLANDS

Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Kristina Pardalos;Luis López Guerra

A list of applicants is set out in the appendix. The applicants were represented by Mr G.J.H. van Hoof, a lawyer practising in IJsselstein (hereafter also: the applicants’ representative).

Before the events complained of, the applicants variously held shares or subordinated bonds (the latter under diverse designations) issued by SNS REAAL N.V., a public limited company (naamloze vennootschap, “N.V.”) incorporated under Netherlands law, or one or more of its subsidiaries. The events complained of, which concern the expropriation of those shares and subordinated bonds, are set out in Stefania Adorisio and Others against the Netherlands and three other applications (dec), no. 47315/13, 14 January 2014. Appeals against the expropriation decision were dismissed by the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State (Raad van State) on 25 February 2013. Proceedings relating to compensation are currently pending before the Supreme Court (Hoge Raad).

B. Relevant Court procedure

The Rules of Court

At the time of the proceedings in issue, the Rules of Court, as pertinent, provided as follows (footnotes omitted):

Rule 36 – Representation of applicants

“1. Persons, non-governmental organisations or groups of individuals may initially present applications under Article 34 of the Convention themselves or through a representative. ...”

Rule 44A – Duty to cooperate with the Court

“The parties have a duty to cooperate fully in the conduct of the proceedings and, in particular, to take such action within their power as the Court considers necessary for the proper administration of justice. This duty shall also apply to a Contracting Party not party to the proceedings where such cooperation is necessary.”

Rule 45 – Signatures

“1. Any application made under Articles 33 or 34 of the Convention shall be submitted in writing and shall be signed by the applicant or by the applicants’ representative.

Where an application is made by a non-governmental organisation or by a group of individuals, it shall be signed by those persons competent to represent that organisation or group. The Chamber or Committee concerned shall determine any question as to whether the persons who have signed an application are competent to do so.

Where applicants are represented in accordance with Rule 36, a power of attorney or written authority to act shall be supplied by their representative or representatives.”

Rule 47 – Contents of an individual application

“1. Any application under Article 34 of the Convention shall be made on the application form provided by the Registry, unless the President of the Section concerned decides otherwise. It shall set out

(a) the name, date of birth, nationality, sex, occupation and address of the applicant;

and be accompanied by

(h) copies of any relevant documents and in particular the decisions, whether judicial or not, relating to the object of the application.

Failure to comply with the requirements set out in paragraphs 1 and 2 of this Rule may result in the application not being examined by the Court.

The date of introduction of the application for the purposes of Article 35 § 1 of the Convention shall as a general rule be considered to be the date of the first communication from the applicant setting out, even summarily, the subject matter of the application, provided that a duly completed application form has been submitted within the time-limits laid down by the Court. The Court may for good cause nevertheless decide that a different date shall be considered to be the date of introduction. ...”

The Practice direction on the institution of proceedings

Clarification of the above Rules, among others, was provided by a Practice direction on the institution of proceedings issued by the President of the Court under Rule 32 of the Rules of Court. At the time of the proceedings here in issue, it read as follows, in its relevant parts and in the redaction in force since 24 June 2009 (footnote omitted):

“4. If an application has not been submitted on the official form or an introductory letter does not contain all the information referred to in Rule 47, the applicant may be required to submit a duly completed form. It must be despatched within eight weeks from the date of the Registry’s letter requesting the applicant to complete and return the form.

Failure to comply with this time-limit will have implications for the date of introduction of the application and may therefore affect the applicant’s compliance with the six-month rule contained in Article 35 § 1 of the Convention.

Applicants may file an application by sending it by fax. However, they must despatch the signed original by post within eight weeks from the date of the Registry’s letter referred to in paragraph 4 above.

On receipt of the first communication setting out the subject-matter of the case, the Registry will open a file, whose number must be mentioned in all subsequent correspondence. Applicants will be informed thereof by letter. They may also be asked for further information or documents.

Failure to provide further information or documents at the Registry’s request (see paragraph 7) may result in the application not being examined by the Court or being declared inadmissible or struck out of the Court’s list of cases.”


CASE OF S.C. FIERCOLECT IMPEX S.R.L. v. ROMANIA

Remainder inadmissible (Article 35-3-a - Manifestly ill-founded);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property)

Branko Lubarda;Carlo Ranzoni;Iulia Motoc;Kristina Pardalos;Luis López Guerra;Mārtiņš Mits

The applicant, S.C. Fiercolect Impex S.R.L., was a Romanian limited liability company, with a registered office in Cluj-Napoca.

On 7 March 2002 the Cluj Prefecture issued the applicant company with an operating permit, which was valid until 7 March 2005. The applicant company was required to apply for an extension of the permit if the initial conditions of operation did not change. Its main activity consisted in collecting and recycling scrap iron.

Under Article 5 of Order no. 265/2001 (see paragraph 28 below) an application for extension of the operating permit had to be submitted at least thirty days prior to the expiry of the previous permit. As the applicant company’s permit was due to expire on 7 March 2005, on 4 January 2005 it applied for an extension of the existing permit.

The applicant company also applied to the Regional Environment Agency (“REA”) for an environmental permit, which according to the law had to accompany the application for extension of the operating permit.

REA registered the applicant company’s application but refused to accept the accompanying documents on the grounds that on 20 December 2004 a new order providing for the authorisation of activities with a significant impact on the environment had been adopted and the guidelines for implementing the new order had not yet been published.

The relevant guidelines were published on 11 January 2005.

In a letter of 25 January 2005, REA informed the applicant company that under the new Order no. 876/2004, its activity was considered to have a significant impact on the environment and that it should therefore follow the authorisation procedure set out in that order. The applicant company was invited to submit new supporting documents within thirty days.

The applicant company submitted the requested documents on 27 January 2005.

A new environmental permit was issued on 24 March 2005. On 14 April 2005 the prefecture issued a new operating permit.

Between 7 March and 14 April 2005 the applicant company continued to carry out its activity.

Following an inspection carried out at the applicant company’s headquarters, on 6 May 2005 the Cluj Finance Inspectorate (Garda Financiară Cluj) fined the company ROL 25,000,000 (approximately 694 euros) and ordered the confiscation of ROL 768,471,700 (approximately EUR 21,347), representing the market value of the scrap iron collected for recycling between 8 March and 14 April 2005. The finance inspectorate based its decision (proces-verbal de constatare şi sancţionare a contravenţiilor) against the applicant company on Article 13 (a) of Emergency Government Ordinance no. 16/2001.

The applicant company lodged a complaint against the decision of the Cluj Finance Inspectorate, claiming that the competent authorities were responsible for the delay in issuing the operation permit. In this connection, it argued that the application for an extension of the operating permit had been lodged in good time, namely on 4 January 2005.

On 2 August 2005 the Cluj-Napoca District Court dismissed the complaint as unfounded. It noted that the decision of 6 May 2005 was in accordance with Article 17 of Government Ordinance no. 2/2001. It also noted that the applicant company had continued to carry out its activity despite the fact that its operating permit had expired on 7 March 2005; it had therefore infringed Article 7 § 1 in conjunction with Article 13 (a) of Emergency Government Ordinance no. 16/2001. The court dismissed the applicant company’s claim that liability for its situation lay with the authorities for failing to issue its environmental and operating permits in time, holding that such a claim would be relevant only within the framework of a tort action and could not be raised as a reason for exonerating a company that had committed an administrative offence.

The applicant company appealed. On 2 December 2005 the Cluj County Court dismissed the appeal, upholding the decision of the firstinstance court on the same grounds.

The applicant company brought administrative proceedings against REA, seeking to recover the damages incurred as a result of the late issuing of the environmental permit. It based its action on Law no. 554/2004. It claimed that because of the amendment to the legislation concerning the procedure for issuing permits, the competent authority had not issued its permit in due time. It pointed out that even after the publication of the guidelines for the application of the new order on 11 January 2005, REA had not acted effectively, as it had not written to the applicant company until 25 January 2005. Moreover, REA had interpreted the applicant company’s application as a request for a new permit instead of for an extension of the existing permits, given that the operation conditions had not changed. That had further delayed the authorisation procedure.

On 10 March 2006 the Cluj County Court dismissed the action as premature, holding that the applicant company had not followed the prior procedure required by law before lodging an action with the court.

The applicant company lodged an appeal, claiming that the dismissal of its action as premature had been unjustified given that the defendant agency had already submitted its observations on the merits.

On 31 May 2006 the Cluj Court of Appeal allowed the applicant company’s appeal. It quashed the first-instance judgment and remitted the case to the first-instance court for examination on the merits.

On 15 September 2006 the Cluj County Court dismissed the applicant company’s action. It held that the applicant company had not complied with the obligation to lodge an application for a new environmental permit forty-five days prior to the expiry of the existing permit, as provided for by Article 16 of the new order regulating the procedure for obtaining an environmental permit, namely Order no. 876/2004. It noted that the previous order, no. 265/2001, had provided only for the obligation to obtain an environmental permit, without establishing the procedure to be followed in that respect. It concluded that the competent agency had issued the environmental permit within the ninetyday deadline provided for by the new order and could not therefore be held liable for the damages incurred by the applicant company.

The applicant company lodged an appeal on points of law, pointing out that on 4 January 2005 when it had lodged its application for an extension of the operating permit, the guidelines for implementation of the new order had not yet been published. It also claimed that it had been unable to apply for a new permit forty-five days prior to the expiry of its existing environmental permit on 31 January 2005, as the new order had entered into force on 20 December 2004 and the relevant guidelines had not been published until 11 January 2005. The applicant company also complained that the first-instance court had interpreted Article 16 of Order no. 876/2004 to mean that the administrative authority had the option of extending the existing permit if the operating conditions had not changed, instead of an obligation to extend the permit. In this connection, the applicant company pointed out that, like the previous order, the new order provided for the ope legis extension of an existing permit for up to five years if the company’s operating conditions had not changed. It also pointed out that at the time of lodging its application for a new permit on 4 January 2005, the applicable law was Order no. 265/2001, which provided for a time-limit of thirty days for the issuance or renewal of an operating permit.

On 8 February 2007 the Cluj Court of Appeal dismissed the applicant company’s appeal on points of law, upholding the firstinstance judgment. It held that the law applicable to the applicant company was Order no. 876/2004, which had entered in force before the expiry of the applicant company’s environmental permit. It concluded that even assuming that the administrative authorities were liable for non-compliance with the applicable legislation, the applicant company had had no right to continue an illicit activity in the absence of the authorisation required by law. The applicant company should have suspended its activity until it had obtained the necessary permits and should then have brought proceedings seeking to recover any damages – as long as it could prove the existence and extent of such damages.

Following a request lodged by the sole shareholder of the applicant company on 10 February 2010, the National Chamber of Commerce took note of the voluntary dissolution of the company.

In January 2013, before the Court had communicated the applicant company’s complaints to the respondent Government, the administrator and sole shareholder, Mr Teodor Morar, informed the Court of the company’s dissolution on 24 February 2010 and his intention to continue the procedure initiated before the Court by the applicant company.


András Sajó;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant, Ms Luminiţa Chiriac, is a Romanian national, who was born in 1969 and lives in Iaşi. The applicant was allowed to represent herself in the proceedings before the Court.

The Romanian Government (“the Government”) were represented by their Agent, Mrs C. Brumar, from the Ministry of Foreign Affairs.

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

On 12 April 2004, two individuals, one of whom was the applicant’s brother, were taken to an Iaşi Police station charged with disturbance of public order due to drunken behaviour. Following a call from her brother, the applicant went to the same police station in her capacity as a lawyer in order to represent the two aforementioned individuals.

On 23 April 2003 a local newspaper published an article entitled “Big row in the middle of the night between a lawyer and police officers from Station II” (Mare tărăboi în miez de noapte între un avocat şi poliţiştii de la Secţia II). The article related the events of 12 April 2004. It included the following quote from the deputy to the head of the police station: “... both the lawyer and her client were under the influence of alcohol and caused a furore in the police station”.

On 16 May 2003 the applicant lodged a criminal complaint of defamation against the journalist who had written the article and the police officer who had been quoted in it. She argued that as a result of the publication of the article, including the allegation that she had been under the influence of alcohol, her reputation had been damaged. Several clients had rescinded their representation agreements with her and her family had been negatively affected subsequent to the publication of the article. On 2 December 2003 the applicant joined the proceedings as a civil party claiming 25,000 euros in compensation.

On 20 April 2004 the Iaşi Court of Appeal sent the file to the prosecutor’s office attached to it, instructing the prosecuting authorities to examine the applicant’s complaint under Article 37 § 2 of the Legal Profession Act (Law No. 51/1995).

On 29 November 2004 the prosecutor attached to the Iaşi Court of Appeal dismissed the applicant’s complaint in respect of the police officer for lack of sufficient evidence that he had made defamatory statements and in respect of the journalist on the grounds that he had not acted with the intention to defame. The prosecutor based his decision on Article 10 (a) of the Criminal Code.

The prosecutor noted that on the evening of 22 April 2004 the journalist had had a private conversation with police officer B.P. but that, according to a few witnesses who had been present, B.P. had refused to give any details about the incident of 12 April 2004 and had invited the journalist to seek the information from the officer tasked with providing information to the press. The prosecutor noted that the versions of the two defendants concerning the journalist’s source for his article of 23 April 2004 differed. While the journalist contended that police officer B.P. had given him information concerning the applicant’s alcoholic intoxication on the evening of 12 April 2004, officer B.P. denied it.

On 26 January 2005 the chief prosecutor upheld his decision.

The applicant lodged a complaint with the Iaşi Court of Appeal against the prosecutor’s decision not to open a criminal investigation. She contended that the circumstances of the incident of 12 April 2003 had not been accurately reflected by the prosecutor in his decision. She maintained that on the evening of the incident she had complained to the prosecutor in charge about the abusive behaviour of the police officers towards her and the two individuals who had been handcuffed and taken to the police station (one of whom was her brother) and that a criminal investigation had been opened in this connection.

On 12 May 2005 the Iaşi Court of Appeal dismissed the applicant’s complaint. The applicant lodged an appeal on points of law.

By a judgment of 12 January 2006 the High Court of Cassation and Justice allowed the applicant’s appeal on points of law and remitted the case for further investigation to the prosecutor’s office attached to the Court of Appeal. The court reasoned that the applicant’s complaint had been dealt with superficially and that the investigation should have addressed the crime of defamation of a lawyer, as provided for under Article 37 § 2 of the Legal Profession Act.

On 4 May 2006 the prosecutor’s office attached to the Iaşi Court of Appeal dismissed the applicant’s criminal complaint, basing its decision on Article 10 (a) of the Criminal Code. It concluded that police officer B.P. had not made any defamatory statements about the applicant and that the journalist had written the article on the basis of a report drawn up by the police on the evening of 12 April 2003 without the intent to defame the applicant.

On 5 June 2006 the chief prosecutor upheld that decision.

On 10 October 2006 the Iaşi Court of Appeal allowed an appeal lodged by the applicant against the prosecutor’s decisions. It quashed the prosecutor’s decision on the grounds that the applicant’s complaint should have been examined in the light of Article 37 § 2 of the Legal Profession Act and sent the case-file back to the prosecutor’s office for a fresh examination.

By a decision of 27 September 2007 the prosecutor’s office attached to the Iaşi Court of Appeal dismissed the applicant’s criminal complaint.

The applicant challenged the prosecutor’s decision before the courts.

An appeal on points of law lodged by the applicant was finally dismissed by the High Court of Cassation and Justice on 6 March 2008. The court upheld the reasoning of the lower courts that the offence did not fall under the provisions of the Legal Profession Act, as the acts complained of had not occurred during the exercise of the applicant’s duties. Furthermore, the High Court of Cassation and Justice held that although the acts complained of may have fallen under the provisions of the Criminal Code regarding defamation, those charged with such acts could no longer be prosecuted because from 2006 to 2007 defamation had been decriminalised. The defendants were therefore able to benefit from the application of the more favourable law. No reference was made to the civil action lodged by the applicant.

Article 206 of the Code of Criminal Procedure (CCP), as in force at the time of the events, read as follows:

“Anyone who makes a statement or allegation in public concerning a particular person which, if true, would render that person liable to a criminal, administrative or disciplinary penalty or expose them to public opprobrium shall be liable to a fine ....”

Law No. 278/2006 amended certain provisions of the CCP and repealed the Articles on insult and defamation.

However, by its decision no. 62 of 18 January 2007 the Constitutional Court declared the repeal unconstitutional.

The relevant provisions of the CCP in force at the time of the relevant facts read as follows:

“(1) Criminal proceedings cannot be instituted and, if instituted, cannot be continued if ...

(b) the act is not proscribed by the criminal law;”

“The aim of a civil action is to establish the civil liability of the accused and the liability for the payment of damages of any other person who may be held legally responsible.

A civil action can be brought together with a criminal action in a criminal trial, by way of joining the proceedings.”

“A person who has suffered civil damage may join the criminal proceedings ...

He or she may do so either during the criminal investigation ... or before the court ...”

“The findings contained in a final judgment of the criminal court concerning the issue whether the act in question was committed and the identification of the perpetrator and establishment of his guilt are binding on the civil court when it examines the civil consequences of the criminal act.”

“(1) In the event of a conviction or an acquittal, or the termination of the criminal trial, the court shall deliver a judgment in which it also decides on the civil action.

(2) Where acquittal has been pronounced for a reason provided for in Article 10 (b1) or because the court has identified an element that removes the criminal nature of the act, or because one of the constitutive elements of an unlawful act is missing, the court may award pecuniary and non-pecuniary damages in accordance with the civil law.

(3) Civil damages cannot be awarded if the acquittal was decided because the offence does not exist or has not been committed by the defendant.

(4) The criminal court shall not settle the civil action if it decides to acquit for reasons provided for in Article 10 (b) or if it decides to terminate the criminal proceedings for one of the reasons provided for in Article 10 (f) and (j) or in the event of withdrawal”.

The provisions of Articles 19 and 20 of the CCP are mentioned in Forum Maritime S.A. v. Romania (nos. 63610/00 and 38692/05, §§ 64 and 65, 4 October 2007).

Articles 999 and 1000 of the Civil Code, as in force at the relevant time, provided that any person who had suffered damage could seek redress by bringing a civil action against the person who had negligently caused it.

Article 37 § 2 of the Legal Profession Act, as in force at the time of the events, read as follows:

“(2) Insulting, defaming or threatening a lawyer during the exercise of his or her profession and in connection with the profession shall be punished by a term of imprisonment from three months to two years or by a fine.”


CASE OF MUSTAFA SEZGİN TANRIKULU v. TURKEY

Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Paul Lemmens;Robert Spano

The applicant, who was born in 1963, is a member of the Turkish Parliament and lives in Ankara. At the time of the events giving rise to the present application he was the president of the Diyarbakır Bar Association.

On 2 June 2005 the daily newspaper Hürriyet reported statements by a senior intelligence officer, who claimed that the National Intelligence Agency of Turkey (“MİT”) had been intercepting the telephone conversations and email correspondence of a number of people on the basis of approximately ninety court decisions over the previous ten years. The intelligence officer stated that the surveillance had been continuous until March 2005, when the MİT had stopped it in order to wait for the entry into force of the new Criminal Code. However, when a bomb attack had occurred in March in Kuşadası, killing a police superintendent, the MİT had gone to the Sixth Division of the Diyarbakır Assize Court (“the Diyarbakır Assize Court”) to seek permission for the interception of communications.

In a decision dated 6 May 2005, relying on Article 22 of the Constitution and sections 2, 4, 11 and 16 of Law no. 4422, the Diyarbakır Assize Court had granted the MİT permission to monitor and examine all electronic communications in order to identify and arrest terrorist suspects with international connections as well as to collect evidence and to prevent crime by having early intelligence of it. The MİT had obtained permission to intercept all domestic or international telephone calls and communications provided between 8 April and 30 May 2005 by national telecommunications company Türk Telekom, private mobile network operators and Internet providers and to obtain information contained in SMS, MMS, GPRS and fax communications, as well as caller IDs, correspondents’ IP addresses and all other communication-related information.

On 6 June 2005, after reading the article, the applicant filed a criminal complaint with the Diyarbakır Principal Public Prosecutor’s Office against the judge, S.T., who had delivered the Assize Court decision in question, the public prosecutor, the MİT agents who had sought permission to monitor and examine communications, and the MİT agents who had implemented the decision. Relying on a number of newspaper and online articles, the applicant alleged that S.T. had decided that the records of all domestic and international electronic communications between 8 April and 30 May 2005 should be given to the MİT by the telecommunications companies. The judge had made that decision in complete disregard of the legislation then in force and without carrying out any research or requiring proof. The impugned decision had been of a very general nature since it had not included the names of any suspects or indicated the date, location or address of people whose communications would be intercepted. As a consequence, any person, including himself, who had used a landline or mobile telephone to communicate between the above-mentioned dates, had been a victim of the impugned decision. The applicant maintained that the decision had violated his rights protected by Article 8 of the Convention and had also contravened Articles 20 and 23 of the Constitution, which protected private life and the freedom of communication respectively, since the accused had obtained records of his communications and restricted his freedom of communication without any justification. Lastly, the applicant contended that the implementation of the decision, which had been in contravention of section 2 of Law no. 4422, required the punishment of those responsible.

On 20 June 2005 the Diyarbakır Principal Public Prosecutor decided to disjoin the case concerning the MİT officials and to register it separately because the prosecution of MİT officials required the Prime Minister’s permission.

On 30 September 2005 the Diyarbakır Principal Public Prosecutor decided not to prosecute the MİT officials who had implemented the Diyarbakır Assize Court’s decision. He decided that the MİT officials had merely implemented the court’s decision when intercepting and examining communications and that the implementation of court decisions was required by law and did not constitute a crime. In any event, there was no evidence that the telecommunications companies had given any records to the MİT officials or that they had monitored communications over the Internet. The Public Prosecutor also referred to a decision by the Ankara Principal Public Prosecutor not to prosecute over the same issue (decision no. 2005/35575, 17 June 2005) in relation to a number of other complaints brought against the Diyarbakır Assize Court’s decision.

On 25 October 2005 the applicant filed an objection with the Siverek Assize Court against the above decision, alleging that the Diyarbakır Public Prosecutor had failed to carry out an investigation into his complaints concerning an alleged violation of his rights guaranteed by Articles 8 and 13 of the Convention.

On 30 November 2005 the Siverek Assize Court dismissed the applicant’s objection, holding that the Principal Public Prosecutor’s decision against prosecution had complied with the legislation since the MİT officials had implemented a court decision and had not committed any offence.

On 6 April 2006 the Ministry of Justice decided not to take an action against the public prosecutor and the judge as it found that their acts fell within judicial discretion. The Ministry considered that although the impugned interception decision had been in breach of the national and international legal norms, the aim was to locate the terrorists before they acted and to take the necessary security measures against them. For the Ministry, the decision did not display ‘ill-will’ towards any individual or institution and the complainants had failed to demonstrate that they had been affected by the impugned decision in any way. On an unspecified date the applicant filed an objection against this decision. On 31 October 2007 the Third Division of Ankara Administrative Court dismissed the objection.


No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

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

The applicant was born in 1958 and lives in Grozny. She is the mother of Mr Muslim Saydulkhanov, who was born in 1982.

At the material time the applicant and her family, including Mr Muslim Saydulkhanov, lived in Vedeno, Chechnya. Checkpoints were located on the roads leading to and from the settlement which was situated at high altitude. Since January 2002 Mr Muslim Saydulkhanov worked as a policeman at the Argun district department of the interior (“the Argun ROVD”) providing security in the building of the Vedeno district department of the State Pension Fund (the Pension Fund). The applicant’s husband was the head of the Pension Fund.

According to the applicant, on an unspecified date in September 2002 Mr Muslim Saydulkhanov was abducted by a group of servicemen from the ‘Vostok’ battalion of the Russian federal forces which was staffed by ethnic Chechens under the command of Mr Sulim Yamadayev. The applicant’s son was apprehended on the suspicion of membership in illegal armed groups and released on the following day upon payment of ransom.

On or around 7 or 8 January 2004 a group of men in camouflage uniforms had arrived at the Pension Fund’s building and asked the on-duty colleagues of Mr Muslim Saydulkhanov, Mr A.M. and Mr. D. Kh., to show them their identity documents saying that they were from the Yamadayev’s battalion and were checking the posts. The men were looking for Mr Muslim Saydulkhanov.

At about 7.30 a.m. on 13 January 2004 a grey UAZ vehicle with three Chechen armed men in camouflage uniforms arrived at the Pension Fund. The men asked the on-duty servicemen Mr A.M. and Mr. D. Kh. at what time employees of the fund came to work. When the on-duty officers asked them to show their identity documents, the men refused and said that they were checking the posts.

On 13 January 2004 Mr Muslim Saydulkhanov was at work at the Pension Fund. He was supposed to be on the overnight duty until the morning of 14 January 2004. At about 5 p.m. he went home to have dinner. At about 6 p.m. he left home with his service gun to return to work and disappeared on the way to the Pension Fund.

In the morning of 14 January 2004 the applicant’s husband went to work and found out that his son was missing. He immediately started searching for him. At about 1 p.m. the applicant was informed by the head of the Vedeno district administration Mr Pashayev that Mr Muslim Saydulkhanov had allegedly been detained at the Vedeno military commander’s office where he had been taken in the evening of 13 January 2004 for an identity check.

On or around 20 January 2004 the applicant and her husband went to Gudermes, Chechnya, to visit the head of the ‘Vostok’ battalion, Mr Sulim Yamadayev. The latter promised to assist them in the search for their son in exchange for 10,000 American dollars (USD). The applicant explained to him that they did not have the required amount.

In February 2004 unidentified officers from the Vedeno ROVD who were working there on mission from the Perm Region in Russia provided the applicant with information about her son’s abduction. According to the officers, on 13 January 2004 servicemen from ‘Vostok’ battalion in an UAZ minivan (‘tabletka’) had allegedly arrested Mr Muslim Saydulkhanov on the street and taken him to the military commander’s office where he had been detained between 13 and 16 January 2004. Two officers from the criminal search division of the Vedeno ROVD, Mr V.St. and Mr P.K., had allegedly participated in the arrest.

At some point in the spring of 2004 an unidentified serviceman from ‘Vostok’ battalion visited the applicant’s fellow villager Ms R.V. and told her that he had been detained in a basement in Gudermes together with Mr Muslim Saydulkhanov who had been arrested on 13 January 2004 on the way to work by servicemen of the ‘Vostok’ battalion.

There has been no news of Mr Muslim Saydulkhanov ever since.

The Government submitted a copy of “the entire contents of criminal case-file no. 43018” into the abduction Mr Muslim Saydulkhanov on 114 pages. The information submitted may be summarised as follows.

On 15 January 2004 the applicant complained about her son’s disappearance to the Vedeno department of the interior (the Vedeno ROVD) stating that her son “left for work but never arrived there”.

On 15 February 2004 the Vedeno ROVD refused to initiate a criminal investigation into the alleged abduction.

On 27 April 2004 the supervising prosecutor from the Vedeno district prosecutor’s office overruled the decision of 15 February 2004 as unlawful and ordered that the district prosecutor’s office initiate an investigation into the events under Article 126 of the Criminal Code (abduction). The criminal case file was given the number 43018. On the same day the applicant was informed thereof.

On 28 May 2004 the applicant was granted victim status in the criminal case and questioned (see paragraph 33 below).

On 27 June 2004 the investigation of the criminal case was suspended for failure to identify the perpetrators.

On 22 August 2005 the supervising prosecutor overruled the decision to suspend the investigation as unlawful and premature and ordered that it be resumed and a number of investigative steps taken. In particular, he pointed out that the investigators had not taken such basic steps as questioning of a number of witnesses including relatives and neighbours of the disappeared, crime scene examination, and forwarding information requests to various law enforcement agencies concerning Mr Muslim Saydulkhanov’s possible arrest by their agents.

On 22 September 2005 the investigation of the criminal case was again suspended for failure to identify the perpetrators.

On 27 November 2006 the supervising prosecutor again overruled the decision to suspend the investigation as unlawful and ordered that it be resumed and a number of investigative steps taken.

On 6 December 2006 the investigators forwarded information requests to various law enforcement agencies asking for information on possible whereabouts of Mr Muslim Saydulkhanov and that of his service gun. No replies in the positive were received.

On 27 December 2006 the investigation of the criminal case was again suspended for failure to identify the perpetrators. The applicant was informed thereof.

On 14 January 2010 the applicant requested that the investigators provided her with an update on the progress of the proceedings, allowed to access the case file and resumed the investigation.

On 16 January 2010 the investigators replied that it was impossible to resume the suspended investigation as all possible investigative steps had been already taken.

On 1 December 2011 the investigation was again resumed. The criminal proceedings are still pending.

On 15 January 2004 the police questioned the applicant who stated that in the evening of 13 January 2004 her son had gone to work and disappeared.

On 5 February 2004 the police investigators questioned the applicant’s neighbour Ms Z.G. who stated that she had learnt of Mr Muslim Saydulkhanov’s disappearance from her neighbours.

On 27 February 2004 the investigators questioned Mr Muslim Saydulkhanov’s supervisor, Mr R.N., who stated, among other things, that about a week prior to Mr Saydulkhanov’s disappearance five or six men in camouflage uniforms had arrived at the Pension Fund in a light UAZ minivan. They had checked officer V.D.’s identity documents introducing themselves as belonging to “Djamaat “and acting under the command of Yamadayev. According to the witness, they could have been from the first military regiment stationed in the village of Oktyabrskaya. Then, the witness and his colleagues had understood that the men had been looking for Mr Muslim Saydulkhanov. In the afternoon of 13 January 2004 these men had arrived again and asked for water. Mr Muslim Saydulkhanov who had been standing at the entrance had gone to fetch it, but when he had returned those men had already left. In the witness’ opinion, it was possible that Mr Muslim Saydulkhanov had been kidnapped for ransom since his father was the head of the Pension Fund and dealt with large sums of money. The witness further stated that he had conducted his own investigation and found out that the military servicemen who had manned the checkpoint next to the exit from Shali, a settlement situated in about thirty kilometres from Vedeno, had stopped UAZ minivan ‘tabletka’ on the night of the abduction; inside the vehicle a man had been lying on the floor. To the question as for the man’s identity, the men in the vehicle had replied that it was a bandit caught in Vedeno. One of the servicemen at the checkpoint, being from Vedeno, wanted to check who this person was, but the men had told him that the bandit was not originally from Vedeno, that he had only been caught there and that his surname had been Dzhabrailov.

On 28 May 2004 the investigators questioned the applicant who stated that on 13 January 2004 her son, Mr Muslim Saydulkhanov, had gone to work. However, the next day her husband had found out that Mr Muslim Saydulkhanov had not been at work that night. She had learnt from unspecified local residents that her son had been abducted by servicemen from ‘Vostok’ battalion. She pointed out that in January 2004 she had been told by an unidentified serviceman from the rifle regiment (стрелковая рота) that her son had been detained by a group of servicemen under the command of Yamadayev and some FSB officers and that the abductors would release Mr Muslim Saydulkhanov in exchange for USD 10,000 and that if she were to complain of the abduction, they would kill her and her family members. In March 2004 an unidentified serviceman of Chechen ethnic origin had told her on the street that when the ransom would be ready she would need to pass it on through him. The applicant further stated that when she had been interviewed by the police investigator in January 2004 about the circumstances of the disappearance, she had not mentioned the ransom and even requested that officer that the police would not open a criminal case into the matter as she had been afraid of her safety.

On 3 June 2004 the investigators questioned Mr Muslim Saydulkhanov’s colleague, Mr V.D., who stated that on 13 January 2004 he had been on duty with Mr Muslim Saydulkhanov. At about 5 p.m. in the afternoon Mr Muslim Saydulkhanov had gone home for dinner but had not returned. The next morning Mr Muslim Saydulkhanov’s father had come to search for his son and he had learnt from him that Mr Muslim Saydulkhanov had eaten at home and had then left for work. Two days later the witness had learnt that Mr Muslim Saydulkhanov had allegedly been abducted.

On 29, 30 and 31 August 2005 the investigators questioned Mr Muslim Saydulkhanov’s colleagues Mr M.S., Mr M.Kh. and Ms Kh.D. all of whom stated that they had learnt of his abduction from their colleagues.

On the same dates, 29, 30 and 31 August 2005, the investigators also questioned other colleagues of Mr Muslim Saydulkhanov, Mr D. Kh., Mr A.M. and again Mr R.N. All of them stated that they had learnt of his abduction from their colleagues. The witnesses further added that prior to the events, in the morning of 13 January 2004, at about 7.30 a.m. right before they were to pass on the duty to Mr Muslim Saydulkhanov and Mr V.D., a grey UAZ minivan with blackened windows and without official registration numbers had pulled over at the Pension Fund’s building. Three armed men without masks, in camouflage uniforms of ‘NATO’ type, had gotten out and asked them in Chechen at what time the employees of the Pension Fund arrived at work. In reply the witnesses asked for the men’s identity documents. The latter had refused to show the documents, said that they were just “checking the posts” and then they had driven away. In addition, Mr D.Kh. stated that a few days prior to the abduction, he had learnt from a fellow villager, that armed men in camouflage uniforms had arrived at the building of the Vedeno military commissioner’s office and asked who guarded the Pension Fund’s building and what had been the regular security routes of that building’s security guards.

On 5 December 2006 the investigators again questioned the applicant who reiterated her previous statement (see paragraph 33 above).

On 6 December 2006 the investigators again questioned Mr Muslim Saydulkhanov’s supervisor Mr R.N. who stated that he had no new information to add to his previous statements (see paragraphs 32 and 36 above) other than that one of the men he had mentioned in his previous statements concerning the events surrounding Mr Muslim Saydulkhanov’s disappearance had been called Alikhan and that this person had subsequently moved from Chechnya to the Astrakhan Region in Russia.

The applicant argued that it was beyond reasonable doubt that her son had been unlawfully detained and then killed by State agents. In support of her allegations she referred to the following: the area where Mr Muslim Saydulkhanov had disappeared was under the authorities’ exclusive control as the roads leading to and from the settlement were blocked by checkpoints (see paragraph 6 above), that Mr Muslim Saydulkhanov’s supervisor had found out that the servicemen who had been on-duty at the checkpoint in Shali in the morning following the disappearance had stopped a UAZ minivan the drivers of which had refused to show them the person detained in their vehicle (see paragraph 32 above) and that the Government failed to provide information concerning the identity of that person allegedly apprehended in Vedeno and taken to Shali.

The applicant further stated that the witnesses Mr R.N., Mr A.M. and Mr D.Kh. had stated that prior to the disappearance of Mr Muslim Saydulkhanov military servicemen from the ‘Vostok’ battalion had taken interest in security officers working at the Pension Fund in Vedeno and that they had previously searched for her son (see paragraph 36 above).

The applicant pointed out that the Government did not refute her assertions that the head of Vedeno administration confirmed her son’s detention at the Vedeno military commander’s office, that the officers from the Vedeno ROVD had participated in his abduction and that he had subsequently been detained in Gudermes (see paragraphs 11, 13, 14 and 33 above).

Finally, the applicant submitted that her son must be presumed dead as more than eight years elapsed since his disappearance.

The Government stated that from the documents submitted that there was no evidence confirming either that State agents had not been involved in the abduction of Mr Muslim Saydulkhanov or that he was dead.

A number of principles have been developed by the Court when it has been faced with the task of establishing the facts of events on which the parties disagree (see El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, §§ 151-53, 13 December 2012): the factual findings should be based on the standard of proof “beyond reasonable doubt”; such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001-VII, and Taniş and Others v. Turkey, no. 65899/01, § 160, ECHR 2005VIII).

Applying the above principles to cases concerning allegations of disappearances in Chechnya, the Court has concluded that it is sufficient for applicants to make a prima facie case that their missing relatives have been abducted by servicemen, such abduction thus falling within the control of the authorities, and it is then for the Government to discharge their burden of proof either by disclosing the documents in their exclusive possession or by providing a satisfactory and convincing explanation of how the events in question occurred (see, among many examples, Aslakhanova and Others, cited above, § 98, and Gakayeva and Others v. Russia, nos. 51534/08, 4401/10, 25518/10, 28779/10, 33175/10, 47393/10, 54753/10, 58131/10, 62207/10 and 73784/10, § 360, 10 October 2013).

When adjudicating on disappearance cases in Chechnya, the Court has borne in mind the difficulties associated with obtaining evidence and the fact that, often, little evidence can be submitted by the applicants in support of their applications. The prima facie threshold has been reached primarily on the basis of witness statements, including the applicants’ submissions to the Court and to the domestic authorities, and other evidence attesting to the presence of military or security personnel in the area concerned at the relevant time. The Court has relied on references to military vehicles and equipment; the unhindered passage of the abductors through military roadblocks, in particular during curfew hours; conduct typical of security operations, such as the cordoning off of areas, checking of identity documents, searches of premises, questioning of residents and communication within a chain of command; and other relevant information about special operations, such as media and NGO reports. Given the presence of those elements, it has concluded that the areas in question had been within the exclusive control of the State authorities in view of military or security operations being conducted there and the presence of servicemen (see, for example, Ibragimov and Others v. Russia, no. 34561/03, § 82, 29 May 2008; Abdulkadyrova and Others v. Russia, no. 27180/03, § 120, 8 January 2009; and Kosumova and Others v. Russia, no. 27441/07, § 67, 7 June 2011). If the Government failed to rebut that presumption, this would entail a violation of Article 2 in its substantive part. However, where the applicants failed to make a prima facie case, the burden of proof could not be reversed (see, for example, Shaipova and Others v. Russia, no. 10796/04, § 87, 6 November 2008; Tovsultanova v. Russia, no. 26974/06, §§ 77-81, 17 June 2010; and Movsayevy v. Russia, no. 20303/07, § 76, 14 June 2011).

Thus, the Court’s case-law cited above attests that since 1999 antiterrorist operations have been carried out routinely in the Northern Caucasus region, which in the past few decades has been plagued by serious disturbances of law and order. As the Court has found, these operations can entail the detention of individuals in the context of non-acknowledged security operations, and such detention can be considered life-threatening (see Aslakhanova, cited above, § 101).

However, in the present case the Court notes that the incident took place in the absence of any witnesses. Unlike in many other cases concerning alleged abductions perpetrated by State agents in the Chechen Republic, the documents submitted by the parties in the present case contain neither any first-hand accounts describing the events nor any other information pertaining to the actual circumstances of the disappearance (see, by contrast, among many other cases, Dzhabrailov and Others v. Russia, nos. 8620/09, 11674/09, 16488/09, 21133/09, 36354/09, 47770/09, 54728/09, 25511/10 and 32791/10, § 309, 27 February 2014 and Akhmatov and Others v. Russia, nos. 38828/10, 2543/11, 2650/11, 2685/11, 7409/11, 14321/11 and 26277/11, § 226, 16 January 2014). As for the applicant’s information concerning the events surrounding the disappearance, the Court notes that in her statements given to the domestic authorities she had not mentioned that she had received information concerning her son’s detention either from the head of the local administration or unidentified police officers (see paragraphs 11, 13 and 14 above). Further, as for the information concerning the alleged passage of the abductors through the checkpoint in Shali (see paragraph 32 above), the Court does not consider that it provides enough grounds for a firm presumption that these had been the abductors of the applicant’s son and that they had belonged to State authorities. In such a situation the Court has insufficient evidence on which to draw the conclusion that State agents had been involved in the disappearance of Mr Muslim Saydulkhanov as the factual circumstances of the incident as presented by the applicant do not include any evidence corroborating her account to a decisive extent (see, for a similar situation, Şeker v. Turkey, no. 52390/99, §§ 9 and 64, 21 February 2006).

On the basis of the material in its possession, the Court considers that the actual circumstances in which Mr Muslim Saydulkhanov disappeared remain a matter of assumption and that, accordingly, there is an insufficient evidentiary basis for a finding that the perpetrators belonged to the security forces or that a security operation was carried out in respect of him.

Accordingly, it has not been established to the required standard of proof – “beyond reasonable doubt” – that State agents were implicated in the disappearance of Mr Muslim Saydulkhanov; nor does the Court consider that the burden of proof can be shifted to the Government, having regard, in particular, to the fact that they submitted a copy of the relevant documents from the investigation file as requested by the Court.


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The first applicant was born in 1971 and lives in Leverkusen, Germany. She is the daughter of the second and third applicants who were born in 1943 and 1942 respectively and lived in Tambov, Russia. The second applicant Ms Galina Zabelina died in 2013.

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

On 25 April 2007 Mr P.Z., the brother of the first applicant and the son of the second and third applicants, was charged with large-scale fraud; his name was placed on the list of fugitives from justice. He was accused of embezzling the assets of the companies under his management. The wronged companies filed a claim for compensation in respect of pecuniary damage.

On 12 May 2007 a senior operational officer from the Federal Security Service sent a letter to the investigator in charge of P.Z.’s case to inform him that “according to the available information, the real estate property owned by [the first applicant] (four flats) and by [the second applicant] (one flat) had been purchased at the expense of their close relative P.Z.”

On 22 May 2007 the investigator asked the Basmannyy District Court in Moscow to authorise attachment of the applicants’ property, including three flats owned by the first applicant, a flat owned by the second applicant, and a car owned by the third applicant. He referred to undisclosed sources allegedly confirming that all that property had been purchased by P.Z.

On 24 May 2007 the District Court issued the requested writs of attachment. It observed that, “according to the information from the investigation”, P.Z. had used the stolen money to purchase the property which he had registered in the name of his family members. It considered therefore necessary to attach the property which the District Court described as being owned by P.Z. The District Court explained that the application for writs was to be granted because “it [had been] lodged in the framework of a criminal case by the competent official and with the prosecutor’s approval, it [was] well-reasoned and [complied] with the requirements of the Code of Criminal Procedure”.

The applicants filed an appeal. They produced evidence showing that they had paid for the impugned property out of their pocket and that the link to P.Z. was the investigator’s conjecture without basis in fact. They were not defendants in any criminal proceedings or respondents in any civil claim and there were no legal grounds for attaching their property.

On 13 August 2007 the Moscow City Court rejected their appeals, stating that the District Court had “carefully reviewed the materials enclosed with the investigator’s request and reached the justified conclusion that there were sufficient grounds for seizing” the listed property.

The attachment of the applicants’ property has remained in place to date.