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

The applicant, Mr Paweł Rozumecki, is a Polish national, who was born in 1980 and is detained in Łomża. He was represented before the Court by Mr J. Brydak, a lawyer practising in Warsaw.

On 18 June 1997 two people were shot dead in Komorów, in a forest area situated near allotment gardens. The victims were later identified as cell phone dealers who were at the same time robbed of several cell phones. Their bodies were buried in the ground after the shooting.

The events were witnessed by three people (hereafter: the anonymous witnesses nos. 2, 5 and 6) from a distance of approximately 125 metres, who at that time were in the nearby forest. Whereas the anonymous witness no. 2 started paying attention to a suspicious group of people even before the shots were fired, the other persons only witnessed the aftermath of the shooting.

On the same day the anonymous witness no. 2 notified the Police by phone of the alleged offences and indicated the scene of the crime.

At the crime scene the police secured material evidence, in particular the bodies of the victims. The victims’ car was found at a distance of approximately 700 metres from the crime scene. In the subsequent analyses the fingerprints of the applicant’s sister M.R. and of a certain M.T. were found on the car. M.T.’s and the applicant’s individual scents and a certain K.M.’s scent were detected in the car. The analysis of telephone connections of the victims and the applicant’s sister allowed the prosecution authorities to establish the identity of another person involved: a certain A.B., who was seen by several witnesses waiting in his car in the allotment gardens near the forest. Eventually, the buyers of the stolen cell phones were established and recognised M.R., M.T. and A.B. as their sellers. The stolen cell-phones were secured by the police.

On 9 September 1997 the anonymous witness no. 2 was heard by the prosecution authorities. A decision on keeping his personal data confidential was issued by the Warsaw Regional Prosecutor (Prokurator Okręgowy) on 23 October 1997.

The prosecution authorities arrested four people on suspicion of participation in the commission of the double murder and aggravated robbery. The applicant’s sister M.R. was arrested on 19 June, A.B. was arrested on 20 June, K.M. - on 14 October and M.T. – on 9 December 1997.

On 22 October 1997, the applicant, who was at that time seventeen, left for Mexico with his mother.

On 12 December 1997 the Warsaw Regional Prosecutor decided to press charges against the applicant and issued an international wanted notice (list gończy) on suspicion of double murder and aggravated robbery.

On 18 March 1998 the Warsaw Regional Prosecutor severed the determination of the charges against the applicant to a separate set of proceedings. The investigation against the applicant was suspended because he remained in hiding.

Meanwhile, the proceedings against the applicant’s sister, M.R., and three other persons A.B., K.M. and M.T. were continued. Initially, the applicant’s sister and M.T. testified that K.M. had shot the victims. Subsequently, M.T. withdrew his testimony claiming that it was “suggested” to him by the police and that K.M. did not take part in the events. Also M.R. withdrew her statements against K.M. eventually claiming that a third unknown person shot the victims.

The anonymous witness no. 5, a person whom the anonymous witness no. 2 revealed in his subsequent testimony as having accompanied him on the day of the events in question, testified for the first time in March 1999.

On 6 August 1999 the Warsaw Regional Court (Sąd Okręgowy) convicted M.R., and K.M. of double murder and aggravated robbery, M.T. of aggravated robbery and A.B. of handling stolen goods.

On 24 January 2001 the Warsaw Court of Appeal (Sąd Apelacyjny) upheld the convictions of M.R., M.T. and A.B. but remitted the case for re-examination as regards the charges against K.M.

On 18 July 2002 the Warsaw Regional Court acquitted K.M. The judgment became final.

On 30 August 2006 the applicant was deported from the United States of America and the investigation against him was resumed.

On 5 September 2006 the Warsaw District Court decided to remand the applicant in custody relying on the reasonable suspicion that he had committed double murder and robbery.

On 14 May 2007 the Warsaw Regional Prosecutor lodged a bill of indictment against the applicant with the Warsaw Regional Court.

The Warsaw Regional Court heard the anonymous witnesses nos. 2 and 5 on 5 February 2008. The presiding judge conducted the hearing, the prosecutor, the applicant’s lawyer and another professional judge from amongst the members of the bench sitting in the applicant’s case participated in the hearing via video-link. They could ask the witnesses questions. For unspecified reasons the applicant was not allowed to participate in the hearing.

On 15 July 2008 the Warsaw Regional Court convicted the applicant of double murder and aggravated robbery and sentenced him to a cumulative penalty of twenty-five years’ imprisonment.

The court established that the applicant had been fully aware of his sister’s plans to kill and rob the victims. On the day before the planned crime, a hole was dug in the ground. On 18 June 1997 the applicant and M.T. awaited at the agreed place. M.R. travelled with the victims in their car and asked them to stop there on the pretext of searching for an address of a client. It was the applicant who shot the victims and immediately drove off in their car to a place near the allotment gardens where A.B. awaited in another car. They reloaded the cell phones and the victims’ personal things into that car. Meanwhile, M.R. and M.T. buried the bodies in the ground and disappeared in the forest. The applicant drove back to the crime scene but, as no one was there, he drove off again and abandoned the victim’s car 700 metres away. The perpetrators drove off together in A.B.’s car towards Pruszków and proceeded to sell the cell phones.

The court found the applicant’s testimony that he had arrived at the crime scene only after the shots incredible and unsupported by any other evidence apart from his sister’s statement. The applicant claimed to have been unaware of his sister’s plans and stated that he had waited for his sister with A.B. Only after hearing the shots he had arrived at the crime scene and then drove off in the victims’ car in an attempt to “help” his sister. M.R. testified that the applicant had not been at the crime scene during the shooting and had only arrived after the shots. It was another person, whom she refused to identify, who shot the victims.

The court noted that A.B. did not confirm that the applicant had been with him. M.T. testified that he did not remember the events. However, it was the testimony of the anonymous witness no. 2 which was crucial to contradict the version of the applicant and his sister. This witness testified that his attention had been drawn by a loud argument of a group of five people. The witness heard four shots altogether, at that moment he saw silhouettes of three people, one of them a woman. Whereas he did not see a gun, on the basis of characteristic movements he stated that a man who was standing the closest to him was the shooter. After the shooting the perpetrators started to drag something and then a car drove off, which came back shortly afterwards and left again. During that time a woman and a man, after having buried something in the ground, left the crime scene.

The court considered that the testimony of the anonymous witness no. 2 was logical and consistent and that on its basis it was possible to establish who shot the victims. This witness was a third person, with no personal relations to any of the perpetrators. It followed from that testimony that it was the applicant who shot the victims. The anonymous witness no. 5 confirmed this testimony as regards several circumstances but could not give a clear chronological account of the events.

The applicant appealed against the first-instance judgment. He challenged the assessment of evidence by the first-instance court. He argued, in particular, that the evidence of the anonymous witness no. 2 did not confirm that the applicant had been the shooter. He further argued that, in violation of the provisions of the Code of Criminal Procedure his requests for evidence had been refused.

On 13 November 2008 the Warsaw Court of Appeal quashed the impugned judgment and remitted the case for re-examination. It considered the applicant’s complaint about the assessment of evidence well-founded. It found that the first-instance court had failed to analyse the evidence in its entirety and that it had established certain facts without a sufficient basis in evidence. Moreover, despite the applicant’s lawyer’s request in this regard, the first-instance court had failed to hear as a witness a person who at the time of the events in issue had been with the anonymous witnesses nos. 2 and 5.

The appellate court also considered that, when re-examining the applicant’s case, the first-instance court should carefully establish the extent of the applicant’s criminal responsibility. Whereas the applicant had confirmed that on 18 June 1997 he had been present at the crime scene, the court should establish whether he had shot the victims and, if not, if it had been his intention that the victims be shot, or whether it had been only his intention to commit a robbery.

During the retrial the Warsaw Regional Court heard the anonymous witnesses no. 2 and 5 on 30 April and 4 September 2009, respectively. All the members of the bench were present at those hearings. The applicant and his lawyer participated in the hearings via audio link and could ask the witnesses questions.

On 8 September 2009 the trial court inspected the crime scene (oględziny miejsca zdarzenia) and the place from which the anonymous witnesses had observed the events. The prosecutor and the applicant’s lawyer were present.

As regards the third person accompanying on 18 June 1997 the anonymous witnesses nos. 2 and 5, on 25 May 2009 the trial court decided that the circumstances which could reveal the identity of this witness should be also kept confidential due to the character of the case and the witness’ fear of reprisals. The witness was to be referred to hereafter as “the anonymous witness no. 6” and was summoned to appear before the court.

The anonymous witness no. 6 failed to attend the hearings scheduled for 4 September and 13 October 2009.

On 18 November 2009 the Warsaw Regional Court decided not to hear the anonymous witness no. 6 as the attempts to summon this witness had been futile.

On 19 November 2009 the Warsaw Regional Court gave a judgment and convicted the applicant of double murder and aggravated robbery and sentenced him to a cumulative penalty of fifteen years’ imprisonment.

The court found that the applicant’s role in the offences could be established mainly on the basis of the evidence given by the anonymous witness no. 2 assessed in the light of the results of the inspection of the crime scene carried out by the court. According to the first and the most precise testimony given shortly after the events, which this witness confirmed during subsequent questioning, after the shots he had seen a woman and three men at the crime scene. Immediately afterwards, the woman and one man started dragging something on the ground and the two other men drove off in a white car. The anonymous witness no. 5 also stated that he had heard several people speaking and that immediately after the shots a white car drove off. Whereas the applicant claimed that he had arrived at the crime scene only after having heard the shots from the place where he had awaited with A.B., the court considered that it would have been impossible to cover this distance within merely few seconds. Accordingly, he was present at the crime scene during the shooting.

The court further found that, while on the basis of the available evidence it could not be established whether it had been the applicant who shot the victims, his intent of murder was evident due to the earlier preparations undertaken, namely the grave-like hole which had been dug in the ground. The court found that the applicant acted in complicity with M.R. and an unidentified person in committing the murders.

Finally, the court considered that there were no reasons to question the credibility of the anonymous witnesses, having regard to the fact that they had immediately notified the police about the crime. Moreover, they had testified in a careful and moderate manner, taking into account the considerable distance from which they had witnessed the events.

The applicant appealed against the first-instance judgment. He challenged the assessment of evidence by the trial court arguing that the testimony of the anonymous witnesses could not constitute a basis for establishing a number of people present during the shooting at the crime scene. The anonymous witness no. 2 stated that before the shooting he had seen a group of five people, but - after two people had been shot – he was to have seen four people. The anonymous witness no. 5 did not add anything substantial. He further referred to Article 6 §§ 1 and 3 (d) of the Convention arguing that in accordance with the Court’s case-law a conviction should not be based solely or to a decisive extent on the evidence of anonymous witnesses. He also challenged the first-instance court’s decision not to hear the anonymous witness no. 6 and requested the appellate court to rectify this shortcoming.

In the course of the criminal proceedings the applicant’s detention on remand was continually prolonged by the domestic courts. The last decision was issued in this regard on 23 September 2010, the Warsaw Court of Appeal dismissed the applicant’s appeal against an extension of his detention.

On 12 November 2010 the Warsaw Court of Appeal heard the anonymous witness no. 6. All of the members of the bench were present at the hearing. The applicant and his defence lawyer participated in the hearing via video link. They were allowed to ask questions. The witness confirmed in his testimony that he had been with the anonymous witnesses nos. 2 and 5 on that day, that he heard the shots and saw a woman with some men there. He could not give any details as regards the number of people present.

On 19 November 2010 the Warsaw Court of Appeal altered the first-instance judgment and convicted the applicant of aggravated robbery. It sentenced him to a cumulative penalty of fourteen years’ imprisonment.

The appellate court agreed with the first-instance court’s finding as regards the applicant’s presence at the crime scene during the shooting. It observed that the applicant’s version that at the time of the shooting he had been with A.B. at a distance of approximately 200-250 metres from the crime scene was not corroborated by any other evidence apart from his sister’s testimony which she had moreover withdrawn during the retrial. Not only was his version inconsistent but also contradicted by other evidence obtained in the proceedings.

The appellate court agreed with the first-instance court’s finding that it was the evidence of the anonymous witness no. 2 which allowed it to establish the role of the applicant in the commission of the offences. It noted that this witness consistently testified that immediately after the shots he had seen a woman and three men at the crime scene and that two of those men had immediately driven off in a white car. It further observed that also the anonymous witness no. 5 confirmed this extremely prompt departure of the car after the shots. Having regard to the fact that all of the perpetrators, including the applicant, submitted that the applicant himself had started the car and driven off towards A.B., his presence at the crime scene during the shooting was certain.

However, taking into account that the anonymous witness saw three men at the crime scene, namely the applicant, M.T. and an unidentified individual, the applicant could not be found to be the shooter. Moreover, contrary to the first-instance court’s findings, the criminal intent of murder could not be inferred solely from the applicant’s presence at the crime scene. On the other hand, having regard to his prompt actions as regards the stolen property, the appellate court found that the intent of committing the robbery was clearly established.

It further agreed with the first-instance court’s finding that the testimony of the anonymous witness no. 2 was fully credible. It added in this regard, that not only this witness did not know the applicant personally, but also the witness had never identified the applicant as the perpetrator. What is more, the first testimony was given by this witness when the applicant had not been a suspect in the investigation. Some minor inconsistencies in the statements given by this witness at different stages of the proceedings were natural given the passage of time. Moreover, the differences in the number of people before and after the shooting in the account of this witness could be explained by the nearness of the forest, in which some of the perpetrators could have hidden. They thus could not be held against the witness. Both the evidence of the anonymous witness no. 5 and of the anonymous witness no. 6 generally confirmed the account of events as given by this witness.

As regards the applicant’s argument challenging the conviction as based solely or to a decisive extent on the evidence of anonymous witnesses, the Court of Appeal found as follows:

“It should be recalled that this witness does not directly, or even indirectly, state that [the applicant] was present at the crime scene, or – for that matter – that he was the perpetrator. The [anonymous] witness no. 2 had not previously known [the applicant] and did not identify him in the proceedings. He also did not describe any features which could indicate his identity. Accordingly, the conviction in the present case is not, as suggested by the applicant, solely based on the evidence of the anonymous witness. The facts as established by the appellate court result from the analysis of the entirety of evidence gathered which cumulatively constitutes a basis for finding the accused guilty of the offence [of robbery].

In this connection it should, however, be acknowledged that the evidence in question is circumstantial evidence.

The testimony of the anonymous witness no. 2 thus constitutes a basis for establishing a “circumstantial fact”(“poszlaka”) that, immediately after the two victims had been shot, two of the four people present at the crime scene moved towards the car of the victims and drove off from there. Only after linking this fact with other [facts] clearly established in the present case, in particular such as: that it was [the applicant] (as the first one) who after the shots started the victims’ car and drove off in it from the crime scene (which [the applicant] confirms), the fact that [the applicant] reloaded the stolen cell phones to another car, and that he abandoned the victims’ car at a park place, and the fact that he participated in selling the stolen phones ... this enables [the court] to establish the chain of facts from which the categorical conclusion as to the existence of the “main fact” is drawn, namely that [the applicant] is guilty of [robbery].

The certainty of the conclusion as regards [the applicant’s] guilt derives from linking logically the above facts into the chain of facts, entirely excluding a possibility of a different interpretation of the events in issue.”

On 19 October 2011 the Supreme Court (Sąd Najwyższy) dismissed the applicant’s cassation appeal as manifestly ill-founded (oczywiście bezzasadna). No reasons were given for this ruling.

Article 184 of the Code of Criminal Procedure as in force at the relevant time provided, in so far as relevant, as follows:

“1. In case of a justified fear of danger to life, health, freedom or significant property of a witness or of a person close to the witness, the court, and in the preparatory proceedings the prosecutor, may decide to keep confidential the circumstances which could reveal the identity of the witness, in particular the personal data of the witness, if they are of no relevance to the outcome of the case.(...)

If a decision referred to in paragraph 1 is issued, the circumstances referred to in this provision should be known only to the court and the prosecutor (,,,). The records of the testimony of the witness shall be made accessible to the accused and the defence in a manner preventing the disclosure of the circumstances referred to in paragraph 1.

The witness shall be heard by the prosecutor, and by the court – which may designate one judge from amongst the members of the bench to carry out this task – in a place and in a manner preventing the disclosure of the circumstances referred to in paragraph 1. The prosecutor, the accused and the defence have a right to participate in the hearing of the witness. (...)

The witness and the accused, and in the proceedings before the court also the prosecutor, may appeal against the decision on keeping confidential the circumstances referred to in paragraph 1 with a time-limit of three days. (...)”


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

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

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

The applicants, who were detained at the material time in Russian penal facilities, were claimants in separate sets of civil proceedings. Most of the applicants were seeking compensation for various aspects of the conditions of their detention, for unlawful criminal prosecution, or for lack of adequate medical care.

None of the applicants were able to attend the hearings at which their claims were examined. The domestic courts at both levels of jurisdiction refused to allow them to be present. In most of the cases the courts held that there was no domestic legal provision for bringing detainees to court and referred to Article 77.1 of the Code on the Execution of Sentences and the relevant provisions of the Code of Civil Procedure. They also noted that the applicants had had the opportunity to submit written pleadings and to retain counsel to represent them in court.

The applicants’ claims were refused at two levels of jurisdiction. The dates of the final judgments are set out in the appended table.


Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković

The applicant, Mr Apandi Magomedovich Apandiyev, is a Russian national who was born in 1978 and lives in Tadmagitli in the Republic of Dagestan. He is currently serving a prison sentence in the Sverdlovskiy Region. The Russian Government (“the Government”) were represented by their Agent, Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.

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

On 11 February 2002 criminal proceedings were instituted in connection with a double murder and arson committed the previous day.

On the same date the applicant was questioned as a witness. He made no self-incriminating statements. In the transcript of the questioning it was noted that the applicant spoke Russian, did not need an interpreter’s assistance and wished to be interviewed in Russian. The transcript was signed by the applicant, who also made a handwritten note in Russian to the effect that the content of the transcript correctly reflected his statement. The investigator also seized a number of the applicant’s personal items, including the boots, trousers, shirt, sports jacket and leather jacket that he was wearing at the time, so as to attach them as exhibits.

According to the applicant, on 11 February 2002 police officers escorted him to a police station and interviewed him as a witness in the case. After they seized his clothes, he was provided only with old trousers and was not given any footwear. Thereafter the police officers and one of the attesting witnesses – who, in the applicant’s submission, was known to the police officers – started beating him with truncheons and kicking him in an attempt to extort a confession from him. Allegedly, he was beaten for several hours and then, wearing only trousers and socks, was placed in a cold cell, where he spent the next two days, during which time he was not given any food.

According to the Government, before the questioning on 11 February 2002 the applicant’s rights were explained to him. However, neither during the questioning nor afterwards did the applicant make any complaints concerning either his health or the actions of the police officers.

On 12 February 2002 the applicant was again questioned as a witness. As in the course of his questioning he confessed to the murder, he was subsequently detained as a suspect, and a record of detention was drawn up. As the applicant expressed the wish to be provided with counsel, lawyer R. from the Sverdlovsk bar association was assigned to him. After her arrival the applicant was again questioned as a suspect and confirmed his previous statement in the presence of counsel. In the transcript of the applicant’s interview as a suspect dated 12 February 2002 and signed by him it was noted that he spoke Russian, did not need an interpreter’s assistance and wished to be interviewed in Russian. The transcript also contained a handwritten note by the applicant to the effect that his statements were reflected accurately in the transcript, that he had made them without any duress, and that he confirmed them.

According to the applicant, in the course of the questioning on 12 February 2002 the police officers beat him again and the investigator put pressure on him, forcing him to sign the transcripts of the interviews of that day. The applicant allegedly requested the investigator to provide him with a lawyer and an interpreter, as his mother tongue was Avarian and he had a poor understanding of Russian, which meant that the contents of the transcripts were unclear to him. Allegedly, these requests were refused and, unable to resist the beatings and physiological pressure, the applicant finally signed the transcripts without reading them.

According to the Government, before the questioning on 12 February 2002 the applicant’s rights were again explained to him. However, as on the previous day, neither during the questioning nor afterwards did the applicant make any complaints concerning either his health or the actions of the police officers.

On 13 February 2002 the applicant was taken to the scene of the incident, where a reconstruction of the events was carried out in his presence and that of his lawyer and the attesting witnesses. It was video recorded.

Later that day the applicant was escorted from the police station to the Ekaterinburg temporary detention facility (“the IVS”).

Also on 13 February 2002, the applicant was seen by a doctor, who issued a certificate stating that the applicant had an abrasion on his back that he had sustained two weeks earlier.

According to the applicant, the IVS authorities refused to admit him without a medical certificate. The police officers then took him to city hospital no. 36 where a doctor issued him with a certificate attesting to the presence of abrasions on his back. As he had been allegedly threatened by the police officers who escorted him, the applicant did not disclose the cause of his injuries to the doctor, and the latter, upon the police officers’ advice, noted in the certificate that the injuries had been received by the applicant a fortnight before.

Thereafter the applicant was taken back to the IVS, where he remained until his transfer to remand prison IZ-66/1 on 15 February 2002.

On 15 February 2002 formal charges of aggravated murder were brought against the applicant in the presence of lawyer G., who had been assigned to represent him. On the same date the applicant confirmed in writing in the presence of his lawyer that he preferred to give evidence in Russian, and he was subsequently questioned. In the transcript of the questioning it was indicated that Russian was his mother tongue. The applicant also made a handwritten note in Russian on the transcript to the effect that he admitted his guilt in part but wished to avail himself of the right to remain silent until he had had a chance to study all the case-file materials. He also noted that he had written the note in his own hand and under no pressure. The text was followed by the signatures of the applicant’s counsel and the investigator. There is no indication that the applicant made any complaints concerning the alleged ill-treatment.

On 15 February 2002 the applicant was transferred from the IVS to remand prison IZ-66/1, where he remained until 6 June 2003. The applicant had no injuries when he was admitted to the remand prison and during his custody there he never requested medical treatment.

The applicant and his counsel studied the case-file on 2 August 2002 from 9 a.m. to 2 p.m., on 27 September 2002 from 9 a.m. to 11 a.m., and on 28 November 2002 from 9 a.m. to 12 noon. The applicant and his counsel made handwritten notes on the relevant procedural records to the effect that they had studied the case-file materials in their entirety. On 25 November 2002 the investigator also familiarised the applicant with eight forensic examination reports.

On 11 December 2002 a bill of indictment was served on the applicant.

In the proceedings before the trial court the applicant was represented by lawyer R.

According to the transcript of the hearing of 16 January 2003, the applicant requested the court to allow him access to the case file, the exhibits and the video recording of the reconstruction of events, stating that he had been unable to study the case file fully at the pre-trial stage. He further requested the court to call the witnesses he had previously indicated, stating that they could give oral evidence regarding the circumstances of the incident. Lastly, the applicant requested the court to provide him with an interpreter. He claimed that his understanding of legal terminology in Russian was insufficient. In reply to the court’s questions, the applicant confirmed that he understood the words “murder”, “being accused” and “[he] committed”. He went on to say that he had learned Russian at school, that he had lived in Ekaterinburg for two years before the relevant events and, that he understood everyday language well.

In the prosecutor’s opinion, the applicant did not need an interpreter’s assistance as he had been born and had grown up in Russia, had done his military service there and had written documents in Russian.

Having examined the parties’ submissions, the court rejected the applicant’s request to be provided with an interpreter, noting that he spoke and wrote Russian adequately. The court further rejected the applicant’s request concerning witnesses as premature. It also dismissed his request regarding the exhibits, stating that those items had been seized from the applicant and were therefore familiar to him. The court further ordered that the applicant be allowed additional time to study the case file and, to that end, suspended the proceedings until 20 January 2003.

The applicant studied the case-file on 16 January 2003 from 3 p.m. to 4 p.m. and on 17 January 2003 from 10.30 a.m. to 12.30 p.m. Thereupon the applicant made a hand-written note in the procedural record to the effect that he had studied the case-file materials. Neither the applicant nor his lawyer made any requests for additional time to study the case file.

During the subsequent hearings the applicant stated that he understood the charges against him and pleaded not guilty. He further gave his version of the incident, alleging that the murder had been committed by another person. The applicant repudiated his self-incriminating statements made during the preliminary investigation, stating that they had been extracted under duress and threats of ill-treatment. He stated that he had been beaten by the police officers, with the result that he had signed certain documents without reading them and had copied his “confession” rather than written it voluntarily.

The court called and examined a number of witnesses, including expert witness Ts. and witnesses S. and M.V. The court further noted that it had not been possible to call witness R., as she was paralysed. Her statements and those of witness Ves. made during the preliminary investigation were read out in court, after the applicant gave his consent. The applicant also stated that he no longer insisted on the examination of witness Sm.

The court further called and examined the investigators in charge of the case, Ye. and K.. They denied putting any pressure on the applicant or using any unlawful methods of investigation, such as beatings. Investigator K. also testified that while studying the case file the applicant had not requested an interpreter’s assistance, and that at a certain point he had refused to continue with the study of the case file, following which the materials in the file had been photocopied and given to him. Investigator K. also stated that the video record of the reconstruction of events of 13 February 2002 had been shown to the applicant.

By a judgment of 3 February 2003 the Regional Court convicted the applicant of aggravated murder and sentenced him to fifteen years’ imprisonment.

The court admitted in evidence the applicant’s confession made during the preliminary investigation, rejecting as unsubstantiated his allegation that it had been extorted under duress. In this regard the court noted that the applicant had always been questioned in the presence of a lawyer, and a lawyer had also participated in the reconstruction of events of 13 February 2002. Moreover, after being detained, the applicant had been informed on several occasions of his right not to testify against himself. The court also noted that the applicant had not objected to Ye.’s statement made in court to the effect that Ye. had not put any pressure on the applicant during the investigation. As regards the applicant’s allegation of beatings by the police officers, the court stated that the medical certificate of 13 February 2002 only attested to the presence of abrasions on his back sustained two weeks earlier and did not mention any “dark blue” bruises on the applicant’s legs and shoulders, as he had alleged in court.

The court further based its findings on other pieces of evidence, including statements by a number of witnesses, several expert reports, and, in particular, a forensic report on the clothes seized from the applicant on 11 February 2002 which attested to the presence on the applicant’s trousers of blood, which could have come from of one of the victims.

In their appeal submissions, the applicant and his lawyer complained, inter alia, that the self-incriminating statements made by the applicant during the preliminary investigation had been extorted from him as a result of ill-treatment by the police.

On 28 April 2003 the Supreme Court of Russia (“the Supreme Court”) granted the applicant’s request to be present at the appeal hearing.

On 10 June 2003 the applicant was transported from remand prison IZ-66/1 in Ekaterinburg to remand prison IZ-77/3 in Moscow.

On 21 June 2003 the Supreme Court notified the applicant and counsel R., who had represented him before the trial court, that the appeal hearing was scheduled for 21 July 2003.

The applicant requested an interpreter’s assistance for the examination of his case before the appeal court. He further requested the appeal court to allow him to study the case file, alleging that he had not been given enough time to do this at the pre-trial stage.

The applicant and his counsel were present at the hearing of 21 July 2003. The Supreme Court noted that during the proceedings before the trial court the applicant had demonstrated sufficient command of Russian, being well able to understand what was being said to him in Russian and to express himself clearly in that language. Nevertheless, noting that everyone had the right to use his mother tongue, the appeal court decided to grant the applicant’s request and provide him with an interpreter during the examination of his appeal. The Supreme Court accordingly postponed the hearing to 18 August 2003.

At the hearing of 18 August 2003 the applicant was present but his counsel did not appear. The applicant did not make any requests in this regard, such as for the postponement of the hearing. The Supreme Court refused the applicant’s request for additional time to study the case file. It referred to the case-file materials, stating that on 28 November 2002 the applicant and his lawyer had had access to and studied all the materials, including the exhibits and the video recording, and that they had not made any requests upon the completion of their study. Moreover, the first-instance court had granted the applicant additional time to study the case file, which he had done on 16 and 17 January 2003.

On the same date the Supreme Court, in the presence of the applicant and the prosecutor, upheld the judgment of 3 February 2003. It confirmed that the trial court had correctly assessed the evidence and applied the domestic law. It noted, in particular, that on 12 February 2002 the applicant had been interviewed as a witness and that the procedural law then in force had not provided for a lawyer’s assistance during such interviews. However, after the applicant had made self-incriminating statements during his witness interview, he had then been questioned as a suspect in the presence of a lawyer and confirmed his statement. The applicant’s defence counsel had been present at all subsequent interviews and investigative actions.

The court further rejected as unsubstantiated the applicant’s allegations of ill-treatment during the investigation, stating that they were not corroborated by the results of the applicant’s medical examination as recorded on the certificate of 13 February 2002. It also pointed out that the applicant had not complained about any injuries upon his arrival at the IVS, nor had he complained at the pre-trial stage about the alleged ill-treatment, although he had had the opportunity to do so, as he had always given oral evidence in the presence of his defence counsel and, during the reconstruction of events, also in the presence of the attesting witnesses.

The court went on to note that when his rights were being explained to him at the pre-trial stage, the applicant had stated that he understood his rights, that he spoke Russian, would give oral evidence in that language and did not need an interpreter’s assistance. Furthermore, when interviewed both as a suspect and an accused, the applicant had expressed his wish to give oral evidence in Russian and refused an interpreter’s assistance. Further, when studying the file of his criminal case, the applicant had not requested an interpreter’s assistance. The court further noted that the case file contained the applicant’s confession written in Russian, his handwritten notes made on the transcript of his interview of 15 February 2002 and other documents which confirmed that he had an adequate command of Russian. The appeal court added that the applicant had received secondary education in Russia, had learned Russian at school, had done his military service in 1995-1997 in Russia and had lived in Ekaterinburg since 2000. During the hearings before the trial court the applicant had stated that he understood everyday Russian, had testified in Russian and had actively participated in the examination of his criminal case. The appeal court therefore concluded that in such circumstances the fact that the applicant had not had an interpreter’s assistance during the preliminary investigation and before the first-instance court had not violated his rights.

The applicant’s attempts to have his case reopened in supervisory review proceedings were to no avail.

On 20 August 2009 the applicant’s sentence was reduced to thirteen years and four months’ imprisonment because of changes in the criminal law.

On 15 December 2002 the applicant complained in writing to the prosecutor’s office of the Sverdlovskiy Region about various irregularities in the preliminary investigation, including ill-treatment by the police and refusals of his requests to be provided with a lawyer and an interpreter, to have the case-file materials and the bill of indictment translated into his mother tongue, and to be granted access to the exhibits.

On 3 February 2003 the prosecutor’s office of the Kirovskiy District of Ekaterinburg refused to institute criminal proceedings in respect of the applicant’s allegations. It noted in its decision that it was clear from the medical certificate of 13 February 2002 that the applicant had sustained the abrasion on his back two weeks before the examination, that is, in late January 2002, before he was questioned and subsequently detained. Thus, there was no evidence of an offence.

A copy of that decision was sent to the applicant on 4 February 2003.

On an unspecified date the applicant resubmitted his complaint to the prosecuting authorities.

In a letter of 10 November 2003 the prosecutor’s office of the Sverdlovskiy Region informed the applicant that the inquiry into his allegations of ill-treatment by the police officers carried out by the prosecutor’s office of the Kirovskiy District of Ekaterinburg had been incomplete and that therefore the decision of 3 February 2003 had been quashed and the relevant materials sent back to the prosecutor’s office of the Kirovskiy District of Ekaterinburg for an additional inquiry. The letter further stated that the applicant would be apprised of the results of that inquiry.

On 18 November 2003 the prosecutor’s office of the Kirovskiy District of Ekaterinburg again refused to institute criminal proceedings in respect of the applicant’s allegations on the ground that following an additional inquiry they had been found to be unsubstantiated. In particular, there was no evidence that the applicant had sustained any injuries apart from an abrasion on his back that had been sustained approximately two weeks before he had been questioned and detained. A copy of the decision was sent to the applicant.

In the autumn of 2004 the applicant contested the decision before a higher prosecutor’s office. His complaint was dismissed by the prosecutor’s office of the Sverdlovskiy Region on 23 November 2004.

On 14 January 2004 the authorities of detention facility USHCH349/52 (“the prison authorities”) accepted for dispatch from the applicant an envelope addressed to the Court which contained a completed application form which, with its enclosures, totalled eighty-one pages. The next day, the applicant was informed that it had been entered in the prison correspondence register under number 225 and sent out.

On 27 January 2004 the prison authorities returned the envelope to the applicant. They explained that it had been returned by the postal service on the ground that the stamps placed on the envelope by the applicant, which corresponded to the postage for a standard letter, were insufficient, and that the applicant needed to pay 120 Russian roubles (RUB) in postage for the excess weight.

According to the applicant, on 29 January 2004 he again handed his letter to the prison authorities and requested them to take the necessary amount from his account to cover the postage. However, the authorities returned the letter to him. He allegedly resubmitted it for dispatch on 4 February 2004.

Between 14 January and 9 February 2004 there was no money in the applicant’s account. On the latter date the account was credited with the amount of RUB 1,000.

On 12 February 2004 the applicant requested the prison authorities to send a letter to the International Protection Centre, an NGO based in Moscow, and to debit his account for the amount of the postage. In the letter he asked the International Protection Centre to forward his application to the Court.

On 14 May 2004 the Court received a five-page letter from the applicant dated 6 April 2004, which was the first piece of correspondence it had received from him. In the letter the applicant explained that on 14 January 2004 he had tried to send an application form to the Court but it had subsequently been returned on account of insufficient postage. He went on to note that as he had then had to apply to the International Protection Centre with a request for his application to be forwarded to the Court, there might be a delay in the application reaching the Court.

On 27 May 2004 the Court acknowledged receipt of the applicant’s letter of 6 April 2004 and invited him to submit a duly completed application form.

On 8 July 2004 the Court received a four-page letter from the applicant dated 17 June 2004. In the letter the applicant again described his attempt to send the application form to the Court on 14 January 2004 and his subsequent application to the International Protection Centre. He added, however, that the International Protection Centre had refused to forward his application form to the Court and that he had being trying to send it to the Court himself. He noted, without specifying any reasons, that he was having difficulty in doing so, which might lead to the dispatch of the application form being delayed. He therefore asked the Court not to reject it on the ground of expiry of the six-month time-limit.

On 31 August 2004 the Court reminded the applicant that he still had to submit a duly completed application form.

On 1 February 2005 the Court received a two-page letter from the applicant dated 22 December 2004, in which he stated that he had been unable to send the application form to the Court because of the prison authorities’ refusal to forward it, but that he would persist in his attempts to send it.

On 2 March 2005 the Court received an eight-page letter from the applicant dated 23 December 2004, in which he again outlined his previous attempts to send the application form to the Court and made lengthy observations on the Court’s admissibility criteria, in particular the application of the six-month time-limit.

On 9 and 23 March 2005 the Court again reminded the applicant that he still had to submit a duly completed application form.

On 29 April 2005 the Court received a letter from the applicant dated 16 March 2005 in which he asked it to confirm receipt of the application form.

On 3 May 2005 the Court received a letter from the applicant dated 16 February 2005 enclosing the application form dated 14 January 2004.

On 9 May 2005 the Court received an additional application form sent by the applicant on 30 March 2005. The applicant once again stated that, following the return of his application form of 14 January 2004 and after his account had been credited with a sum of money, he had asked the prison authorities to send the form to the International Protection Centre on 12 February 2004.

On 20 May 2005 the Court confirmed receipt of both application forms.

Thereafter the applicant continued to send correspondence to the Court on a regular basis. The following documents, inter alia, were enclosed with the applicant’s correspondence:

– An undated certificate signed and stamped by the head of detention facility USHCH-349/52 confirming that the applicant had indeed submitted an application to the Court to the prison authorities on 15 January 2004, which had been registered under the outgoing number 68/52-225 and forwarded to the post office, which had then returned it, stating that the envelope containing the applicant’s correspondence weighed more than twenty grams and therefore additional payment needed to be made. The certificate also indicated that the prison authorities had sent out the application immediately upon receipt of the necessary sum of money from the applicant.

– A letter of 8 April 2005 from the Main Department for Execution of Punishments of the Sverdlovskiy Region informing the applicant that his application to the Court comprising eighty-one pages had been registered by the prison authorities on 15 January 2004 under the number 68/52-225. The letter went on to say that the post office to which the applicant’s letter had been taken had pointed out that its weight exceeded the maximum allowed and that therefore it was necessary to pay a supplement; however, at that time there had been no money in the applicant’s account and therefore his letter had been sent out later, when the necessary sum had been credited to the account.

– A letter of 16 May 2005 from the head of detention facility USHCH349/52 informing the applicant that his application had been sent to the Court after 15 January 2004, when the supplement for the postage had been paid. The letter assured the applicant that 15 January 2004, the date on which his letter had been accepted for dispatch by the prison authorities, would be considered as the date of dispatch.

Article 91 (1) of the Penal Code states that detainees may receive and send unlimited letters, postcards and telegrams at their own expense. The correspondence sent by detainees must comply with the applicable postal requirements. After receipt of requests by detainees, the prison administration informs them of the transfer of their correspondence to the postal service for delivery to the addressee.

Article 125 of the Russian Code of Criminal Procedure provides for judicial review of decisions, acts or failure to act on the part of an inquirer, investigator or prosecutor which affect constitutional rights or freedoms. The judge is empowered to verify the lawfulness and reasonableness of the decision, act or failure to act, and to grant the following forms of redress: (i) to declare the act or failure to act unlawful or unreasonable and order the relevant authority to remedy the violation; or (ii) to reject the complaint.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

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

The applicants complained of the inadequate conditions of their detention. Some applicants also raised complaints under Article 13 of the Convention.


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 1 of Protocol No. 7 - Procedural safeguards relating to expulsion of aliens (Article 1 para. 1 of Protocol No. 7 - Expulsion of an alien);No violation of Article 5 - Right to liberty and security (Article 5-2 - Information on reasons for arrest);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Non-pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in 1973 and lives in New Delhi, India.

The applicant arrived in Latvia in May 1999 [in his observations, he mentions 1989 or 1992 and studies at Riga Aviation University]. He married a Latvian national on 2 July 1999. They have two daughters, born in Latvia on 19 January 1999 and 18 April 2000 respectively.

In August 1999 and August 2000 the applicant was issued a temporary residence permit for one year and four years respectively on the grounds of his marriage to a Latvian national. Under the domestic law which was applicable at the material time, following the expiry of the fouryear period the applicant was entitled to a permanent residence permit.

On 21 June 2004 the applicant’s documents for the permanent residence permit were accepted.

On 11 August 2004 the applicant’s wife asked the Office of Citizenship and Migration Affairs (Pilsonības un migrācijas lietu pārvaldes Ārzemnieku apkalpošanas departaments) to check the information submitted by the applicant for the permanent residence permit in relation to his employment in Latvia.

On 21 September 2004 the Office of Citizenship and Migration Affairs refused to grant the permanent residence permit to the applicant on the grounds that he had submitted false information and did not have sufficient financial means to stay in Latvia.

According to the Government, on 30 September 2004 the applicant’s wife wrote the Office of Citizenship and Migration Affairs a short letter stating that “my husband ... was refused a permanent residence permit; I would like to object to this.” This objection was accompanied by another letter requesting to ignore the former, as it had been drawn up under threat by the applicant. She asked for help and for the applicant to be refused leave to remain in Latvia.

The applicant disagreed with the allegations contained in this letter.

On 13 November 2004 the Office of Citizenship and Migration Affairs overturned the decision of 21 September 2004 (see above). It was concluded that the applicant had sufficient financial means and that no false information had been submitted by him. A permanent residence permit, valid until 9 July 2010, was then issued for the applicant.

On 6 December 2004 the applicant’s wife reported a domestic conflict to the police. According to her, on 4 and 5 December, when she had attempted to talk to the applicant about a divorce, he had allegedly tried to suffocate her and had inflicted bodily injuries on her. The applicant disagreed with his wife’s version of events; he submitted to the police that he had not inflicted any bodily injuries on his wife. The cause of their conflicts had been the fact that his wife had taken their children to live in another city in Latvia.

Following a forensic examination, unspecified minor injuries were found on the applicant wife’s body. On 29 December 2004 the police refused to open criminal proceedings, on the ground that no offence had been committed. No appeal was lodged against that decision.

Meanwhile, on 9 December 2004, the applicant’s wife applied to the Office of Citizenship and Migration Affairs with a view to withdrawing the applicant’s permanent residence permit and expelling him from Latvia on the grounds that he presented threats to her life and health and those of their children. She mentioned her previous letters to the Office of Citizenship and Migration Affairs. When the applicant had found out about them, he had asked for them to be recalled and had promised to stop the abuse he had been engaging in. She had done so. Nevertheless, when the permanent residence permit had been issued “it had started all over again”. The applicant had allegedly threatened to cripple her if he had to leave Latvia, and also to kill her, the children and himself.

The applicant denied the allegations contained in this letter.

On 15 December 2004 her letter was forwarded to the Security Police (Drošības policija) for an assessment of the applicant’s character and to determine if he presented threats to national security or public order.

On 10 January 2005 the Security Police informed the Office of Citizenship and Migration Affairs that the applicant constituted a threat to public order and safety.

On 20 January 2005 the Minister of Interior decided to include the applicant in the blacklist for an indefinite period of time, on the ground that he constituted a threat to public order and safety, and decided to refuse him entry to Latvia. This decision was not amenable to judicial review at the time. Following legislative changes (see paragraph 45 below) the persistence of the grounds for the inclusion in the blacklist could be re-examined by the Minister of Interior; the applicant attempted to avail himself of this remedy (see paragraph 21 below).

On 24 March 2005 the Minister of Interior replied to the applicant’s enquiry of 22 February 2005 and, having reviewed the applicant’s case, concluded that the applicant could not be removed from the blacklist.

On 14 April 2005 the applicant’s wife applied to the Ministry of the Interior claiming that notwithstanding her previous letters expressing her wish for the applicant to leave the country their relations had improved and she wished to maintain her family and not to separate the applicant from their children. If he had to leave she and their children would probably follow him. In reply, the Minister explained that her subjective feelings towards the applicant did not imply a change in the circumstances on the basis of which the applicant had been included in the blacklist.

On 25 May 2005 the applicant applied to the Minister of Interior with a view to removing the prohibition on entering Latvia. He submitted that the relationship with his spouse had improved and that she and their children did not wish him to leave Latvia.

On 27 May 2005 the Security Police wrote to the Ministry of the Interior informing them that the applicant constituted a threat to public order and safety. On 31 May 2005 the Security Police informed the Office of Citizenship and Migration Affairs that the applicant had been included in the list of persons prohibited from entering in Latvia, confirming their view that the applicant constituted a threat to public order and safety; there had been no change in those circumstances. In view of this, they asked the State Border Guard Service to detain and expel the applicant in accordance with section 51, paragraph 1, part 2 of the Immigration Law.

On 13 June 2005 the Minister of Interior adopted decision no. 121 and refused to remove the applicant from the blacklist. The decision was sent to the applicant’s address in Jēkabpils. In the decision, the Minister relied on the letter of 27 May 2005 informing him that the circumstances on the basis of which the applicant had been included in the blacklist had not changed. Thus the Minister could not remove the prohibition on entering Latvia. The applicant’s submissions could not serve as the basis for his removal from the blacklist, since a person could not choose his country of residence under either domestic or international law. States were not obliged to respect couples’ choices concerning their country of residence. Nor were there any reasons detected why the applicant’s family could not join the applicant in India and enjoy their family life there. The Minister concluded that the restrictions on the applicant’s right to respect for his family life were justified in the interests of public order and safety and were proportionate. As regards the procedure for appeal, a reference was made to section 76, paragraph 2 and section 188, paragraph 2 of the Administrative Procedure Law which provided for an appeal to the administrative court.

The applicant did not appeal.

On 1 February 2005 the Office of Citizenship and Migration Affairs adopted decision no. 823 by which the applicant’s permanent residence permit was withdrawn on the grounds that he had been included in the blacklist (section 36, paragraph 1, part 2 of the Immigration Law). The decision was based on the decision of 20 January 2005 (see paragraph 18 above). It was drawn up on the basis of information and documents received from the Ministry of the Interior. The decision indicated that pursuant to section 70 of the Administrative Procedure Law (see paragraph 50 below) it was to take effect upon notification to the applicant. The decision also stated that the applicant was obliged to leave the country within forty-five days. On 14 February 2005 the applicant was informed of the decision and of the fact that he was to leave the country by 26 March 2005. The applicant lodged an appeal against this decision with the Office of Citizenship and Migration Affairs.

On 15 March 2005 the Office of Citizenship and Migration Affairs rejected the applicant’s appeal against the withdrawal of the residence permit. It found that the applicant had been lawfully included in the list of persons prohibited from entering in Latvia. Taking into account that the decision to include the applicant in the blacklist was in force and had not been declared unlawful, it was impossible for the applicant to stay in Latvia. It further considered that the contested decision complied with the rule of law, and that it was taken in the interests of national security, public order and safety and for protection of the rights of others, namely the spouse and children. It was proportionate because the protection of the interests of society in assuring national security and public order and safety in the State outweighed the individual interests of the applicant. The applicant was not heard ’s case-law on immigration control, to Article 8 of the Convention under which the interference with the applicant’s family life could be justified, and to the 2004 report of the Committee on the Elimination of Discrimination against Women (CEDAW) concerning Latvia.

On 23 March 2005 the applicant’s appeal against the decision to withdraw his permanent residence permit was allowed by the Administrative District Court.

On 12 April 2005 the Administrative District Court forwarded to the applicant’s address in Jēkabpils the written submissions of the Office of Citizenship and Migration Affairs in his case. The applicant was asked to indicate by 2 May 2005 if he would agree for the court to examine his case in written proceedings (rakstveida procedūra). Since he did not reply, the court could not examine the case without a hearing.

Following four hearings (on 19 December 2006, 16 January and 12 June 2007, and 5 August 2008), the case was left without determination on the grounds that the applicant had failed to appear before the court. This decision took effect on 16 August 2008. All the court correspondence was sent to the applicant’s address in India. His wife was invited as a third party to the proceedings.

Meanwhile, on 7 June 2005 the applicant was detained by State Border Guard Service officials under section 51, paragraph 1, part 2 of the Immigration Law on the ground that he constituted a threat to national security or public order and safety. The detention record also stated that by a decision of the Minister of Interior the applicant had been included in the blacklist, and that on 14 February 2005 his permanent residence permit had been withdrawn. The applicant signed the detention record and he was placed in a short-term detention facility in Jēkabpils, where he stayed until 17 June 2005.

The applicant lodged a complaint with a prosecutor, arguing that he had been unlawfully detained on the grounds of lack of a valid residence permit. On 14 June 2005 a prosecutor replied that the applicant’s detention was lawful and had been ordered on national security or public safety and order grounds. He could be detained for ten days on these grounds, following which a court order was necessary for continued detention. It was noted that on 31 May 2005 the Security Police had informed the State Border Guard Service that the applicant had been included in the blacklist. Finally, it was noted that the applicant’s detention as such did not automatically entail his expulsion. An expulsion order should be issued within ten days of the applicant’s detention. The applicant was informed that he could lodge an appeal against this reply with a superior prosecutor.

On 13 June 2005 the Jēkabpils branch of the Office of Citizenship and Migration Affairs adopted an expulsion order, no. 23-7 (lēmums par ārzemnieka piespiedu izraidīšanu) under section 47, paragraph 1, part 2 of the Immigration Law, on the grounds that the applicant had been detained by the State Border Guard Service in Latvian territory. He was informed that he would be excluded from Latvian territory for a five-year period. The decision took effect the same day, when it was notified to the applicant. On 14 June 2005 the applicant lodged an appeal against the expulsion order with the Head of the Office of Citizenship and Migration Affairs.

On 16 June 2005, following a closed hearing, a judge of the Jēkabpils District Court authorised the applicant’s detention for two more months. The judge heard the applicant and decided that he was to be transferred to an accommodation centre for foreign detainees in Olaine. He could not yet be expelled because he had lodged an appeal against order no. 23-7, and thus the judge considered that it was necessary to extend his detention. No appeal against the decision was lodged.

On 17 June 2005 the applicant was transferred to an accommodation centre for foreign detainees in Olaine.

On 30 June 2005 the Office of Citizenship and Migration Affairs adopted a decision under section 61, paragraph 4, part 3 of the Immigration Law (see paragraph 46 below), including the applicant in the list of persons prohibited from entering in Latvia until 13 June 2010. The applicant did not lodge an appeal against this decision with the administrative courts.

On 11 July 2005 the Head of the Office of Citizenship and Migration Affairs dismissed the applicant’s appeal against the expulsion order (see paragraph 32 above). The decision stated that it came into effect pursuant to section 70 of the Administrative Procedure Law and could be amenable to judicial review by the administrative court within one month of its coming into effect.

On 13 July 2005 this decision was sent to the accommodation centre for foreign detainees in Olaine. It was not served on the applicant because meanwhile, on 12 July 2005, the applicant had been expelled from Latvia to India.

Upon the applicant’s request, on 30 March 2011 the Minister of Interior adopted decision no. 26 entitled “Removal of prohibition on entering the Republic of Latvia”. On the basis of information received from the State Police and the Security Police and section 64, paragraph 1, part 1 of the Immigration Law the Minister decided to remove the applicant from the blacklist. The decision took effect immediately.

On 29 April 2011, in response to an email from the applicant, the Ministry of the Interior explained that he had been included in the blacklist on the basis of decision no. 72 of 20 January 2005 and that he could not appeal against the decision, but he could ask the competent authority to review that decision (reference was made to paragraph 7 of the transitional provisions of the Immigration Law). They also informed him that according to the Immigration Law the reasons for the applicant’s inclusion in the list could not be disclosed. Having received the applicant’s request for a review of the decision, the Ministry of the Interior had made enquiries with the State Police and the Security Police. They had received answers that threats under section 61, paragraph 1 of the Immigration Law were not present. Accordingly, the above decision was adopted. Lastly, in response to the applicant’s question whether he could now enter Latvia or receive a permanent residence permit, reference was made to the Immigration Law and the procedure established therein.


ĆALDOVIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva

Mr Ivan Ćaldović, Mr Milisav Petković and Mr Milorad Ivanović are citizens of Bosnia and Herzegovina and citizens of Serbia who were born in 1955 and 1950, respectively. Ms Danica Mikić is a citizen of Serbia who was born in 1938. All the applicants live in Serbia.

The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms M. Mijić.

The Serbian Government, having been informed of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), indicated that they did not wish to exercise that right.

The applicants or their spouses were officers of the JNA, the armed forces of the former Socialist Federal Republic of Yugoslavia (“the SFRY”). The present case concerns their attempts to repossess their pre-war flats in Bosnia and Herzegovina.

Practically all flats in the former SFRY were part of the system of “social ownership”. They were generally built by socially owned enterprises or other public bodies for allocation to their employees, who became “occupancy right holders”. All citizens of the SFRY were required to pay a means-tested contribution to subsidise housing construction. However, the amount an individual had contributed was not amongst the legal criteria taken into account with regard to waiting lists for the allocation of such flats.

On 6 January 1991 JNA members were offered the opportunity to purchase their flats at a discount on their market value (see the Military Flats Act 1990, Zakon o stambenom obezbjeđivanju u Jugoslovenskoj narodnoj armiji, Official Gazette of the SFRY no. 84/90). Between 1980 and 1988 the applicants, or their spouses, were allocated military flats in Sarajevo (Mr Ćaldović, Mr Petković and Mr Ivanović) and in Mostar (Ms Mikić) which they later purchased under the terms of the Military Flats Act 1990.

On 18 February 1992 Bosnia and Herzegovina suspended the sale of military flats on its territory (see the Suspension on the Sale of Flats Decree 1992, Uredba o privremenoj zabrani prodaje stanova u društvenoj svojini, Official Gazette of the Socialist Republic of Bosnia and Herzegovina no. 4/92). The Decree was respected in what is today the Federation of Bosnia and Herzegovina, and those who had purchased military flats located in that Entity could not register their ownership and remained, strictly speaking, occupancy right holders (a purchase contract does not of itself transfer title to the buyer under domestic law).

When the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, the applicants, or their spouses, continued their military careers in the VJ forces and left their flats. They were thereafter allocated tenancy rights of unlimited duration on military flats in Serbia, which some of them even purchased later.

During the war, the local armed forces (namely, the ARBH, HVO and VRS forces) assumed nominal control of all non-privatised military flats on the territory under their respective control (Zakon o preuzimanju sredstava bivše Socijalističke Federativne Republike Jugoslavije u svojinu Republike Bosne i Hercegovine, Official Gazette of the Republic of Bosnia and Herzegovina nos. 6/92, 13/94, 50/95 and 2/96; Odluka o preuzimanju vojnostambenog fonda JNA, Official Gazette of the Republika Srpska no. 16/92; Zakon o sredstvima i finansiranju Armije Republike Bosne i Hercegovine, Official Gazette of the Republic of Bosnia and Herzegovina nos. 6/93, 17/93 and 13/94; Odluka o utvrđivanju namjene i prenošenju prava upravljanja i korištenja sredstvima bivše Socijalističke Federativne Republike Jugoslavije, koje je koristila bivša JNA, a koja se nalaze na području Federacije Bosne i Hercegovine; Official Gazette of the Republic of Bosnia and Herzegovina no. 24/96). Although on 1 January 2006 those forces merged into the armed forces of Bosnia and Herzegovina, non-privatised military flats are still under the nominal control of the Entities.

A more detailed background concerning socially owned flats, military flats and the involvement of foreign armed forces in the 1992-95 war in Bosnia in Herzegovina is provided in Đokić v. Bosnia and Herzegovina, no. 6518/04, §§ 5-17, 27 May 2010 and Mago and Others v. Bosnia and Herzegovina, nos. 12959/05, 19724/05, 47860/06, 8367/08, 9872/09 and 11706/09, §§ 5-8, 3 May 2012.

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

In 1988 the applicant, a JNA officer, was allocated a military flat in Sarajevo.

On 4 March 1992 the applicant bought that flat under the terms of the Military Flats Act 1990 and paid the full purchase price in the amount of 636,330 Yugoslav dinars (around 7,486 German marks (DEM) at the time).

On 10 October 1997 the Ministry of Defence of the Federation of Bosnia and Herzegovina (Ministarstvo odbrane Federacije Bosne i Hercegovine; “Ministry of Defence”) allocated the flat to a family of a killed member of the ARBH forces.

On 18 August 1998 the applicant applied for the restitution of his flat in Sarajevo.

On 28 March 2002 his application was rejected pursuant to section 3a of the Restitution of Flats Act 1998. The applicant failed to appeal against that decision.

On 9 July 2002 the restitution commission set up by Annex 7 to the Dayton Peace Agreement, before which the applicant pursued parallel proceedings, held that the applicant was neither a refugee nor a displaced person within the meaning of Annex 7 and declined jurisdiction. On 19 November 2002 the restitution commission rejected the applicant’s request for reconsideration of his claim.

On 4 November 2003 the applicant complained to the Human Rights Chamber (a domestic human-rights body set up under Annex 6 to the 1995 General Framework Agreement for Peace) about the inability to repossess his pre-war flat.

On 2 August 2005 the Human Rights Commission (the legal successor of the Human Rights Chamber) rejected his case on non-exhaustion grounds as he had failed to appeal against the first-instance decision of 28 March 2002 (see paragraph 17 above).

On 29 July 2011 the applicant was allocated tenancy right of unlimited duration on a military flat in Belgrade.

It would appear that the applicant has not applied for compensation under section 39e of the Privatisation of Flats Act 1997 (see paragraph 59 below).

In 1980 the applicant’s husband, a JNA officer, was allocated a military flat in Mostar.

On 13 February 1992 the applicant’s husband bought that flat under the terms of the Military Flats Act 1990. It would appear that the whole purchase price was covered by the contribution he had paid for the housing construction (see paragraph 5 above).

When the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, the applicant’s husband continued his military career in the VJ forces and was killed on 16 June 1992 in a military action near Mostar.

On 27 May 1996 the applicant was allocated tenancy right of unlimited duration on a military flat in Novi Sad, Serbia. On 15 April 1999 she purchased that flat.

On 9 October 1998 the applicant applied to the competent domestic authorities for the restitution of the flat in Mostar (in accordance with the Housing Act 1984, which is still in force, spouses share occupancy rights).

On 25 September 2003 her application was rejected pursuant to section 3a of the Restitution of Flats Act 1998.

On 3 February 2004 the competent Ministry of the Herzegovina-Neretva Canton upheld the first-instance decision of 25 September 2003.

On 24 January 2005 the Ministry of Defence allocated the flat to D.L., a member of the HVO forces.

On 24 February 2005, following an application for judicial review, the Mostar Cantonal Court upheld the second-instance decision of 3 February 2004.

On 19 September 2007 the Supreme Court of the Federation of Bosnia and Herzegovina upheld the decision of 24 February 2005.

In 1983 the applicant, a JNA officer, was allocated a military flat in Sarajevo.

On 11 February 1992 the applicant bought that flat under the terms of the Military Flats Act 1990 and paid the full price in the amount of 153,500 Yugoslav dinars (around DEM 1,823 at the time).

When the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, he continued his military career in the VJ forces and left Sarajevo. His military service was terminated in 2003.

On 5 February 1997 the Ministry of Defence allocated the flat to S.H., a member of the ARBH forces.

In 29 December 2000 the competent domestic authority rejected the applicant’s request for restitution of his flat in Sarajevo pursuant to section 3a of the Restitution of Flats Act 1998. It would appear that the applicant did not appeal against that decision.

On 2 September 2003 the restitution commission set up by Annex 7 to the Dayton Peace Agreement, before which the applicant pursued parallel proceedings, accepted his application for the restitution. However, on 21 October 2005 the restitution commission accepted the request for reconsideration submitted by the Ministry of Defence and quashed its decision of 2 September 2003.

On 11 December 2007 the applicant was allocated tenancy right of unlimited duration on a military flat in Ćuprija, Serbia.

On 12 March 2008 the applicant made a new application for the restitution of his flat. On 17 April 2008 the competent domestic authority rejected his application pursuant to section 39e of the Privatisation of Flats Act 1997.

On 13 June 2008 the competent Ministry of the Sarajevo Canton upheld the first-instance decision of 17 April 2008.

On 21 October 2008, following an application for judicial review, the Sarajevo Cantonal Court upheld the second-instance decision of 13 June 2008.

On 23 November 2012 the Constitutional Court of Bosnia and Herzegovina found a violation of Article 1 of Protocol No. 1 to the Convention in the applicant’s and thirty-one other cases (decision no. AP 1370/08) as regards the method of determining the amount of compensation envisaged under section 39e of the Privatisation of Flats Act 1997, in line with its decision no. U 15/11 of 30 March 2012 (see paragraph 59 below).

On 17 January 1992 the applicant bought that flat under the terms of the Military Flats Act 1990 and paid the full price in the amount of 171,369 Yugoslav dinars (around DEM 2,637 at the time).

On 24 August 1998 the applicant applied for the restitution of his flat in Sarajevo.

On 27 November 2002 the competent Ministry of the Sarajevo Canton quashed the first-instance decision of 28 March 2002 for procedural reasons. After having examined the applicant’s request, it rejected it on the same date pursuant to section 3a of the Restitution of Flats Act 1998.

On 25 August 2005 the Ministry of Defence allocated the impugned flat to A.M., a member of the ARBH forces.

The applicant, in the meantime, complained to the Human Rights Chamber about the inability to repossess his pre-war flat and about the length of the proceedings for repossession.

On 9 February 2005 the Human Rights Commission found that there had been a violation of Article 6 of the Convention as regards the length of the proceedings for repossession and awarded the applicant 1,000 convertible marks (BAM; approximately 50 euros) in respect of pecuniary and non-pecuniary damage. As regards the complaint about the inability to repossess the pre-war flat, the Commission held that there had been no violation of Article 1 of Protocol No. 1 to the Convention.

On 29 January 2007, following an application for judicial review, the Sarajevo Cantonal Court upheld the second-instance decision of 27 November 2002 (see paragraph 51 above).

On 5 April 2007 the applicant lodged a constitutional appeal. On 17 September 2009 the Constitutional Court rejected his appeal as manifestly ill-founded.

In the meantime, on 20 April 2007 the applicant received compensation under section 39e of the Privatisation of Flats Act 1997 (see paragraph 59 below) in the amount of BAM 21,098.40 (approximately 10,787.44 euros).

On 11 May 2011 the applicant was allocated tenancy right of unlimited duration on a military flat in Belgrade.

On 22 December 1995 all purchase contracts concluded under the Military Flats Act 1990 were declared void (Zakon o preuzimanju sredstava bivše Socijalističke Federative Republike Jugoslavije u svojinu Republike Bosne i Hercegovine, Official Gazette of the Republic of Bosnia and Herzegovina nos. 6/92, 13/94, 50/95 and 2/96). Thereafter, the legislation regulating this matter, the Privatisation of Flats Act 1997 (Zakon o prodaji stanova na kojima postoji stanarsko pravo, Official Gazette of the Federation of Bosnia and Herzegovina nos. 27/97, 11/98, 22/99, 27/99, 7/00, 32/01, 61/01, 15/02, 54/04, 36/06, 51/07, 72/08 and 23/09) and the Restitution of Flats Act 1998 (Zakon o prestanku primjene Zakona o napuštenim stanovima, Official Gazette of the Federation of Bosnia and Herzegovina nos. 11/98, 38/98, 12/99, 18/99, 27/99, 43/99, 31/01, 56/01, 15/02, 24/03, 29/03 and 81/09), underwent numerous changes and all such contracts were declared legally valid. However, two categories of buyer are not entitled to repossess their flats and to register their title to them (see section 39e of the Privatisation of Flats Act 1997 and section 3a of the Restitution of Flats Act 1998). The first category concerns those who served in foreign armed forces after the 1992-95 war. The second concerns those who acquired occupancy or equivalent rights to a military flat in a successor State of the SFRY, like the present applicants. However, they are now entitled to compensation under section 39e of the Privatisation of Flats Act 1997. While the compensation had initially been envisaged as the refund of the amount paid for the flats in 1991/92 plus interest at the rate applicable to overnight deposits, on 30 March 2012 the Constitutional Court (decision no. U 15/11) declared that method of determining the amount of compensation unconstitutional and ordered the Parliament of the Federation of Bosnia and Herzegovina to amend it in line with Đokić (cited above, §§ 63 and 72).

For a more detailed analysis of the relevant domestic law and practice and of the relevant international documents, see Đokić (cited above, §§ 35-45) and Mago and Others (cited above, §§ 53-69).

D. Relevant Serbian legislation

It has no longer been possible to acquire occupancy rights in Serbia since 1992 (see section 30(1) of the Housing Act 1992, Zakon o stanovanju, Official Gazette of Serbia nos. 50/92, 76/92, 84/92, 33/93, 53/93, 67/93, 46/94, 47/94, 48/94, 44/95, 49/95, 16/97, 46/98, 26/01, 101/05 and 99/11). Instead, current and retired members of the armed forces and current and retired staff of the Ministry of Defence have thereafter been entitled to equivalent tenancy rights of unlimited duration on military flats or, in case of a lack of suitable flats, mortgage loans co-financed by the State on condition that they or their spouses or children do not have occupancy or equivalent rights to a flat in any of the former Republics of the SFRY (the Military Housing Ordinance 1994, Pravilnik o načinu i kriterijumima za rešavanje stambenih pitanja zaposlenih u Saveznom ministarstvu za odbranu i Vojsci Jugoslavije, Official Gazette of the Federal Republic of Yugoslavia nos. 30/94, 39/94 and 6/96; the Military Housing Ordinance 1995, Pravilnik o načinu i kriterijumima za davanje stanova u zakup i dodeljivanje stambenih zajmova za rešavanje stambenih pitanja zaposlenih u Vojsci Jugoslavije, Official Gazette of the Federal Republic of Yugoslavia nos. 5/95, 18/96, 56/96, 58/96, 42/97 and 9/00; the Military Housing Ordinance 2002, Pravilnik o načinu, kriterijumima i merilima za davanje stanova u zakup i dodeljivanje stambenih zajmova za rešavanje stambenih pitanja zaposlenih u Ministarstvu odbrane i Vojsci Srbije i Crne Gore, published in an internal gazette of the Ministry of Defence nos. 20/02, 36/03, 34/04 and 29/05; the Military Housing Ordinance 2005, Pravilnik o rešavanju stambenih pitanja u Ministarstvu odbrane, published in an internal gazette of the Ministry of Defence nos. 38/05, 16/08, 26/08 and 39/08; and the Military Pensioners Ordinances 1994 and 2010, Pravilnik o rešavanju stambenih potreba korisnika vojnih penzija, published in an internal gazette of the Ministry of Defence nos. 31/94, 19/95, 26/96, 1/97 and 45/08 and Pravilnik o rešavanju stambenih potreba korisnika vojnih penzija, published in an internal gazette of the Ministry of Defence no. 34/10). Therefore, those who occupied military flats in Bosnia and Herzegovina before the war have as a rule been required to give up their rights to those flats in order to qualify for a military flat or a loan in Serbia or Montenegro (see sections 6-7 and 87 of the Military Housing Ordinance 1994; sections 7-8 and 74 of the Military Pensioners Ordinance 1994; and sections 6-7 and 85 of the Military Housing Ordinance 1995).

Section 39(2) of the Housing Act 1992 provides that the holder of a tenancy right of unlimited duration in respect of a flat may purchase that flat under the same conditions as an occupancy right holder.