George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant, Mr Mirosław Prandota, is a Polish national, who was born in 1938 and lives in Warsaw. He was represented before the Court by Mr A. Zakrzewski, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs.

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

Between October 1977 and October 1979 the applicant had contact with an officer of the security services. He was approached by that officer with a view to acting as the liaison between the latter and a certain A.C., editorin-chief of an underground opposition newspaper. According to the applicant, his role was to provide the newspaper with information supplied by the officer of the security services which was detrimental to the authorities.

The Law of 18 December 1998 on the Institute of National Remembrance (“the Institute Act”; Ustawa o Instytucie Pamięci Narodowej – Komisji Ścigania Zbrodni przeciwko Narodowi Polskiemu) entered into force on 19 January 1999. The Institute’s tasks included, inter alia, storing and researching documents of the communist security services. The right of access to those documents was guaranteed primarily to “injured parties” as defined in the Institute Act (see Relevant domestic law below).

On 19 December 2005 the applicant requested the Warsaw Branch of the Institute of National Remembrance to grant him access to documents concerning him and inquired about his status as an “injured party”.

The Law of 18 December 1998 on the Institute of National Remembrance was amended by the Law of 18 October 2006 on the disclosure of information concerning documents of State security agencies between the years 1944 and 1990, and the content of such documents (ustawa o ujawnianiu informacji o dokumentach organów bezpieczeństwa państwa z lat 1944-1990 oraz treści tych dokumentów) with the effect from 15 March 2007 (see Relevant domestic law below). Subsequently, the applicant’s request submitted to the Institute was treated as a request for access to documents concerning him.

On 28 December 2007 the Director of the Warsaw Branch of the Institute issued a decision no. 150/07 refusing the applicant access to certain documents concerning him. He found that those documents met the conditions specified in section 31 § 1 (2a-c) of the amended Institute Act, i.e., they indicated that the applicant had acted as a secret informant of the security services.

On 8 January 2008 the applicant was given access to some other documents concerning him.

The applicant appealed against the decision no. 150/07 of 28 December 2007. He submitted that he wished to have access to all relevant documents. Furthermore, he argued that it had been the officer of security service who had acted as his informant, not the other way round.

On 3 March 2008 the President of the Institute of National Remembrance upheld the decision no. 150/07. He endorsed the finding that in the light of the undisclosed documents the applicant had been considered by the former security services as a secret informant. Furthermore, the documents demonstrated that the applicant had undertaken to provide the security services with information.

The applicant lodged an appeal against the decision of the President of the Institute with the Warsaw Regional Administrative Court. He maintained that the President of the Institute had no evidence of his alleged collaboration with the security services. He relied, among others, on Articles 45 and 51 § 4 of the Constitution and Article 6 § 1 of the Convention.

On 3 September 2008 the Warsaw Regional Administrative Court held a hearing in camera and dismissed the applicant’s appeal. It appears that the applicant was not summoned to the hearing. No written grounds for the judgment were prepared and served on the applicant.

Subsequently, the applicant filed a cassation appeal with the Supreme Administrative Court.

On 8 January 2009 the Supreme Administrative Court held a hearing in camera and dismissed his cassation appeal. The applicant was served with the operative part of the judgment. The applicant requested the court to serve on him the written reasons for the judgment. On 27 February 2009 the Supreme Administrative Court refused his request. It noted that the impugned decision of the President of the Institute had been given pursuant to the Institute Act which also governed some aspects of the procedure before the administrative courts. Thus, in accordance with section 32 § 4 of the amended Institute Act the administrative court examined an appeal against the refusal to give access to documents at a hearing held in camera. Furthermore, section 32 § 6 of the Institute Act provided that written reasons for a judgment delivered at a hearing held in camera would only be prepared when the appeal was allowed. A copy of the judgment with written reasons would be served only on the President of the Institute and the appellant would be served with the operative part. Lastly, the Supreme Administrative Court observed that the Law on the Proceedings before the Administrative Courts was not applicable to the procedure in the present case, the provisions of the Institute Act constituting lex specialis in this respect.

In a letter dated 28 December 2014 the applicant informed the Court that the Institute had granted him access to all documents concerning him in November 2014. He submitted that the reports of his alleged activity had been fabricated by an officer of the security services.

Article 45 § 1 of the Constitution reads:

“Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.”

Article 47 of the Constitution provides:

“Everyone shall have the right to legal protection of his private and family life, of his honour and good reputation and to make decisions about his personal life.”

Article 51 §§ 3 and 4 of the Constitution states:

“3. Everyone shall have the right of access to official documents and data collections concerning himself. Limitations upon such rights may be established by statute.

Everyone shall have the right to demand the correction or deletion of untrue or incomplete information, or information acquired by means contrary to statute.”

The Law of 18 December 1998 on the Institute of National Remembrance (“the Institute Act”; Ustawa o Instytucie Pamięci Narodowej – Komisji Ścigania Zbrodni przeciwko Narodowi Polskiemu) entered into force on 19 January 1999. The Institute’s tasks included, inter alia, storing and researching documents of the communist security services. The right of access to those documents was guaranteed primarily to “injured parties” as defined in the Institute Act.

Section 6 of the Institute Act provided that an “injured party” (pokrzywdzony) was a person on whom the State security services deliberately collected information, including secretly. However, a person who subsequently became an officer, employee or a collaborator of the security services could not be considered an “injured party” (section 6 § 3).

According to section 30 § 2 of the Institute Act everyone had the right to inquire whether he or she was an injured party within the meaning of the Act. Person certified as an “injured party” had the right to obtain information from the Institute about documents concerning him (section 30 § 1). The Institute had the obligation to inform the “injured party” about the manner of access to the documents concerning him and to provide him, on request, copies of those documents (section 31 §§ 12).

In 2004 the Ombudsman challenged the constitutionality of certain provisions of the Institute Act concerning access to documents held by the Institute.

On 26 October 2005 the Constitutional Court gave judgment in case no. K 31/04. It held, inter alia, that section 30 § 1 and section 31 §§ 1 and 2 taken in conjunction with section 6 §§ 2 and 3 of the Institute Act, in so far as they deprived interested persons – other than injured parties – of the right to be provided with information about documents concerning them, were incompatible with Article 47 (protection of private life) and Article 51 §§ 3 and 4 (the right of access to official documents concerning oneself and the right to demand the correction or deletion of untrue or incomplete information) of the Constitution.

The Constitutional Court noted that the Institute Act justifiably afforded special status to the “injured party” and bestowed on this category of persons a number of rights. It identified under the Institute Act a distinct category of persons, namely those who applied for the status of the “injured party” and whose applications were refused. The refusal resulted either from the lack of documents concerning a person seeking the status or from the fact that the security services had not collected information on them. The Constitutional Court disagreed with the Ombudsman that the Institute’s refusal to classify a person as the “injured party” had been tantamount to an official declaration that such person had been an officer, employee or collaborator of the State security services. At the same time it pointed to the incoherent criteria used by the Institute in classifying persons as collaborators of the security services. It also noted that the Institute’s archives contained information which had been, in principle, collected without any legal basis and often unlawfully. The Constitutional Court underlined that the constitutional right of access to official documents (Article 51 § 3) was related solely to the documents concerning a given person as a subject of interest of the security services. It did not extend to documents which were created by a given person in his capacity of an officer, employee or collaborator of the security services.

The Institute Act was amended by the Law of 18 October 2006 on disclosing information about the documents of the State security services from the period between 1944 and 1990 and the content of these documents (“the 2006 Lustration Act”; ustawa o ujawnianiu informacji o dokumentach organów bezpieczeństwa państwa z lat 19441990 oraz treści tych dokumentów). The amendments entered into force on 15 March 2007.

The 2006 Lustration Act and the Institute Act were further amended by the Law of 14 February 2007. These amendments entered into force on 28 February 2007.

The amended sections 30 and 31 regarding access to documents held by the Institute stated in so far as relevant:

“Section 30. 1. Everyone has the right to request the Institute for access to copies of documents concerning him.

The Institute grants access to copies of available documents concerning the applicant, which are referred to in § 1, with the exception of the following:

1) documents created by the applicant or with his participation ... in connection with his employment or service in the State security agencies or in connection with his activities carried out as a secret informant or an assistant in covert gathering of information;

2) documents whose content indicates that the applicant:

a) was considered by the security services as a secret informant or an assistant in covert gathering of information,

b) undertook to provide information to the State security service or to assist such service in whatever form in its covert activities,

c) executed tasks given by the State security service, in particular provided information to the service. ...

Section 31. 1. A refusal to allow request, referred to in section 30, in so far as it concerned access to documents:

1) created by the applicant or with his participation ... in connection with his employment or service in the State security agencies or in connection with his activities carried out as a secret informant or an assistant in covert gathering of information;

2) whose content indicates that the applicant:

c) executed tasks given by the State security service, in particular provided information to the service,

is effected in the form of an administrative decision. ...”

The amended Institute Act also put specific restrictions on the judicial proceedings in which the administrative courts reviewed the lawfulness of a decision issued by the President of the Institute. Section 32 § 4 provided that the administrative court examined a complaint against such a decision at a hearing held in camera. Section 32 § 5 of the Institute Act excluded the application of Article 106 § 2 of of the Law of 30 August 2002 on Procedure before Administrative Courts in the impugned proceedings. As a result, the party to the proceedings before the administrative courts in such cases could not plead his case before the court. Section 32 § 6 of the Institute Act stipulated that a party to the proceedings before the administrative courts could solely receive an operative part of the judgment. Section 32 § 8 provided that the provisions of paragraphs 46 were applicable in the cassation appeal proceedings before the Supreme Administrative Court.

In the case no. K 2/07 the Constitutional Court reviewed the constitutionality of the 2006 Lustration Act and the Institute Act as amended which had been challenged by a group of members of parliament. It gave its judgment on the issues of lustration and access to documents held by the Institute on 11 May 2007.

With regard to the issue of access to documents, the Constitutional Court struck down as unconstitutional section 30 § 2 (2) of the Institute Act. This provision excluded access of interested persons to documents indicating that they had collaborated or assisted the former State security services in their undercover activities. The Constitutional Court noted that the Constitution guaranteed to everyone the right of access to official documents and data collections concerning oneself (Article 51 § 3) and the right to demand the correction or deletion of untrue or incomplete information, or information acquired by unlawful means (Article 51 § 4). This latter right, which was related to the right to privacy guaranteed in Article 47 of the Constitution, could not be statutorily restricted to a certain category of persons. The Constitutional Court underlined that no State interest could legitimise or justify preservation in official records of information which was untrue, incomplete or acquired in an unlawful manner.

The judgment was promulgated on 15 May 2007 and on that day the unconstitutional provisions were abrogated.

On 18 March 2010 the parliament passed amendments to the Institute Act which entered into force on 27 May 2010. According to the new wording of sections 30 and 31 of the Institute Act everyone had the right, inter alia, of access to documents concerning him which were deposited with the Institute and the right to obtain copies thereof.

In 2009 the Supreme Administrative Court and the Warsaw Regional Administrative Court put to the Constitutional Court legal questions on the constitutionality of various provisions of the Institute Act, including sections 31 § 1 (2) and 32 §§ 46 and 8.

On 20 October 2010 the Constitutional Court gave judgment. It held that section 31 § 1 (2) of the Institute Act, in its version applicable up until 26 May 2010, was incompatible, among others, with Articles 47 and 51 §§ 3 and 4 of the Constitution in conjunction with Article 31 § 3 of the Constitution (the principle of proportionality). The Constitutional Court further held that section 32 §§ 46 and 8 of the Institute Act was incompatible with, inter alia, Article 45 § 1 of the Constitution (the right to a court) in conjunction with Article 31 § 3.

The Constitutional Court relied on its findings in the judgment of 11 May 2007 (case no. K 2/07). It summarised its approach in that case as follows:

“... for institutional, functional and procedural reasons the Institute Act together with the 2006 Lustration Act constitute one instrument. In this connection, if the documents created and collected by the State security services, meant to indicate the collaboration within the meaning of section 3a § 2 of the 2006 Lustration Act, are constituting the basis for drawing adverse social, moral, political as well as legal consequences in respect of persons subjected to lustration and other persons whose data were registered and included in catalogues [of the Institute], [then] such persons, in a democratic State ruled by law, have to have the right to defend their dignity, reputation and good name. Accordingly, they have to be accorded the right of access to the full range of documents concerning them and used against them. ... This right has to encompass access to documents, deposited with the Institute, in which interested persons were attributed an involvement in the creation of these documents. This is relevant from the point of view of the content of those documents, conclusions formulated and drawn by the officers of the State security services on the basis of the transmitted information and, in particular, from the point of view of the supposed intention of a person passing on the information to “violate the rights and freedoms of a man and a citizen”.

The Constitutional Court observed that section 31 § 1 (2) of the Institute Act was of procedural character, but it further specified the grounds for a decision refusing access to certain documents. These conditions matched the content of section 30 § 2 (2) of the Institute Act which had been abrogated as a result of the finding of its unconstitutionality. Nonetheless, the administrative courts submitted to the Constitutional Court that in practice section 31 § 1 (2) had been used by the Institute as a substantive basis for decisions refusing access to documents specified in this provision. It further noted that after the said judgment the parliament amended the Institute Act on five occasions; however it did not amend section 31 § 1 (2).

The Constitutional Court found that a limitation on access to documents of persons, which were referred to in the unconstitutional section 30 § 2 (2), which was imposed in a procedural rather than substantive form in section 31 § 1 (2), amounted to unjustified interference with the informational autonomy of an individual and restricted the constitutional right to request the correction or deletion of untrue or incomplete information (Article 51 § 4). The Constitutional Court held that limitations specified in section 31 § 1 (2) of the Institute Act on access of interested persons to official documents concerning them were constitutionally disproportionate, and thus in breach of Articles 47 and 51 §§ 3 and 4 of the Constitution in conjunction with Article 31 § 3 of the Constitution.

The Constitutional Court noted that its findings were consistent with the decision of the legislator expressed in the amendments of 18 March 2010 to the Institute Act which introduced the possibility for everyone to obtain access to copies of documents held by the Institute.

Pursuant to Article 272 of the Law of 30 August 2002 on Procedure before Administrative Courts a party to the proceedings which have ended with a final judgment may request that the proceedings be reopened if the Constitutional Court has found that the legal provision on the basis of which this judgment was given was incompatible with the Constitution.


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

Iulia Motoc;Krzysztof Wojtyczek;Gabriele Kucsko-Stadlmayer

The applicant was born in 1966 and is currently detained in Arad.

By a final decision of 21 March 2001 the Arad District Court convicted the applicant of rape of a minor and sentenced him to thirteen years’ imprisonment. The applicant’s detention started on 21 January 2001 and lasted until 24 May 2011, when he was released from prison on probation. On 11 July 2013 the applicant was again detained, following a new conviction for the rape of two girls who were minors, and was incarcerated in Colibaşi Prison.

In his letters to the Court, the applicant contended that in Arad and Timişoara Prisons he had been kept in overcrowded cells.

Despite the fact that he was a non-smoker, he had had to share a cell with smokers. He lodged several complaints with the domestic authorities in this respect, claiming that he had health problems because of the smoke he had inhaled from his inmates’ cigarettes. By a final decision of 12 April 2005, the Arad County Court allowed one of the applicant’s complaints and ordered the placement of the applicant in a non-smoking cell. From the information submitted by the applicant it is not clear whether that decision was enforced, but based on his written observations it could be inferred that he had been placed in a non-smoking cell.

Moreover, the applicant alleged that he had been transferred from one prison to another or from prison to court in vans with detainees who smoked.

The applicant was mostly detained in Arad Prison, where he spent more than eight years. The prison authorities took into account the fact that the applicant had been convicted of the rape of a minor and for most of his stay he had therefore been placed alone in an individual cell of 10.40 square metres.

The applicant was detained in Timişoara Prison on several occasions, for five hundred and sixty days in total. On these occasions he was detained in the medical unit of the prison or in cells used for transit.

According to the information provided by the National Prison Administration and forwarded to the Court by the Government, the applicant was held in the following cells:

- cell no. 1 measuring 19.69 square metres, containing eight beds (that is 2.46 square metres per bed);

- cell no. 6 measuring 19.78 square metres, containing three beds (that is 6.59 square metres per bed);

- cell no. 7 measuring 17.71 square metres containing three beds (that is 5.90 square metres per bed);

- cell no. 12 measuring 7.60 square metres containing three beds (that is 2.53 square metres per bed);

- cell no 35 neasuring 20.84 square metres containing ten beds (that is 2.08 square metres per bed);

- cell no. 45 measuring 46. 22 square metres containing nineteen beds (that is 2.43 square metres per bed);

- and cell no. 66 measuring 21.16 square metres containing nine beds (that is 2.35 square metres per bed).

The Government did not provide any information concerning either the number of the detainees who had occupied the cells or the time spent by the applicant in each of the above-mentioned cells.

The Government submitted that both prisons mentioned by the applicant had adequate natural and electric lighting and ventilation. Both prisons had a central heating system providing adequate heating in the winter. All of the cells in which the applicant had been held had had the requisite furniture.

Cold water had always been available and hot water was available daily according to a schedule approved by the prison authorities.

Concerning the hygiene in the cell, the Government submitted that prisoners had been responsible for cleaning the cells and were provided with cleaning products by the prison administration.

The applicant had been transferred between the prison facilities in vehicles fitted with windows, lights, heating and sunroofs. These vehicles had had between sixteen and thirty-eight seats. Smoking was strictly prohibited during transfers, and the applicant had anyway been transported separately from smokers.


Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant, Ms M.M.R., stated that she is a national of the Democratic Republic of the Congo (“the DRC”) and that she was born in 1988. She is currently living in the Netherlands. The President decided not to disclose the applicant’s identity to the public (Rule 47 § 4). She was represented before the Court by Mr G. Vergouw, a lawyer practising in Arnhem.

The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, and Deputy Agent, Ms L. Egmond, of the Ministry of Foreign Affairs.

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

On an unspecified day in July 2010 the applicant fled from her native DRC to the Netherlands. She arrived on 8 July 2010 and applied for asylum. On 26 July 2010 she was interviewed by the immigration authorities about her identity, nationality and travel route. On 27 July 2010 she submitted corrections and additions (correcties en aanvullingen) to the report drawn up of the first interview (eerste gehoor). On 28 July 2010, the applicant was interviewed about her reason for seeking asylum. On 29 July 2010 she submitted corrections and additions to the report drawn up of the second interview (nader gehoor). In the interviews she gave the following account.

She was of Banyamulenge (ethnic Tutsi) origin and came from Bukavo, the capital of the South Kivu province in the east of the DRC. In August 2000 her father was killed in a fight with members of an angry crowd who had entered her family home in Bukavo, screaming that the Banyamulenge should leave the country. The applicant’s mother fled into the woods, together with the applicant and one of her sisters. Her older sister Ms E. and two of her brothers also fled, but after the incident she did not see them again. After the death of her father, the applicant and her remaining family were given a house and financial aid by Papa K., a friend of her father’s. In September 2004 six or seven men entered the applicant’s home, initially looking for Banyamulenge men and boys. They did not find any. The men then raped the applicant, as well as her mother and sister. Afterwards, the applicant was taken to a house where there were other women. She was raped and ill-treated on a daily basis. After four months, in January 2005, a man acting at the request of Papa K. managed to free her and took her to Papa K.’s house. After she recovered the applicant was moved at the instigation of Papa K. to her grandparents’ house in the Nguba neighbourhood in Bukavo. In 2007 anti-Banyamulenge sentiments in the Congolese population resurfaced again. The applicant was hassled at school but eventually obtained a university diploma in 2008. For a while nothing major happened. Around the end of January or early February 2009, unknown men entered her grandparents’ home, looking for Banyamulenge men and boys. They raped her grandmother, chopped off her grandfather’s arm and leg because he had refused to rape the applicant, raped the applicant, killed both her grandparents and took the applicant with them. As before, the applicant was taken to a house where there were other women and girls. She was sexually abused and ill-treated every two to three days. On 6 July 2010 a man acting for Papa K. came to the house and took the applicant with him.

On 30 July 2010 the Minister of Justice (Minister van Justitie;“the Minister”) notified the applicant of his intention (voornemen) to reject her asylum application. The certificate of loss of documents (attestation de perte des pièces) submitted by her was found to be a forgery. The certificate, which concerned the applicant’s loss of her voting card (carte d’électeur), was also found to be unauthentic in that it had not been drawn up by the competent authority. As the applicant gave incorrect statements about the document and continued to claim that it was authentic, the Minister found that serious doubts had arisen as to the applicant’s claimed identity and nationality. The absence of any other travel or identity documents and her inability to give a consistent, detailed and verifiable account of her journey to the Netherlands further detracted from the credibility of her account. The Minister also considered it odd that for someone who had lived virtually her entire life in Bukavo and who had gone to university, the applicant had hardly any basic knowledge about her hometown. For instance, she did not know the former colonial name of the town, who the mayor was, and that a “khadafi” is a petrol seller. She had to think about the name of the cathedral and anthem of the DRC, and she did not know the colour of car licence plates. The Minister therefore found it unlikely that the applicant actually came from Bukavu. As she had failed to establish her identity, her asylum claim, which was based on her having lived in Bukavu, was found to lack credibility.

In written comments (zienswijze) made on 3 August 2010, the applicant maintained her account and gave explanations for her inability to answer certain questions about Bukavu. She further requested to have a language analysis conducted to prove her origin.

In a decision of the same date the Minister rejected the applicant’s asylum application, confirming the finding that as she had failed to demonstrate her identity and nationality, her asylum claim lacked credibility. The Minister further found that there was no need for a language analysis test.

On 5 August 2010 the applicant lodged an appeal with the Regional Court (rechtbank) of The Hague, accompanied by a request for a provisional measure (voorlopige voorziening) to stay her expulsion pending the outcome of her appeal.

On 20 August 2010 a hearing took place before the Regional Court of The Hague sitting in Arnhem. It was attended by the applicant’s sister Ms E. who was living in the Netherlands and had obtained Netherlands nationality. She had been tracked down by the Dutch Council for Refugees (VluchtelingenWerk Nederland). The purpose of her attendance was to prove the applicant’s identity and nationality. To this end, Ms E. submitted documents concerning her own first asylum interview in the Netherlands, during which she had mentioned the applicant as a family member who had not accompanied her on her flight there.

By judgment of 27 August 2010 the provisional-measures judge (voorzieningenrechter) of the Regional Court of The Hague sitting in Arnhem rejected the applicant’s appeal and the accompanying request for a provisional measure. The judge accepted the Minister’s decision and the underlying reasoning. The submissions of the applicant’s sister Ms E. were not taken into account by the judge.

The applicant’s further appeal to the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State) was dismissed on 28 October 2010. The Administrative Jurisdiction Division found that there were no grounds for quashing the impugned ruling (kan niet tot vernietiging van de aangevallen uitspraak leiden). Having regard to section 91(2) of the Aliens Act 2000, no further reasoning was required as the arguments submitted did not raise any questions requiring a determination in the interests of legal unity, legal development or legal protection in the general sense. No further appeal lay against that decision.

The relevant domestic law and practice as regards asylum proceedings and enforcement of removals are set out in K. v. the Netherlands ((dec.), no. 33403/11, §§ 16-19 and §§ 25-32, 25 September 2012).

At the material time, the respondent Government’s policy on asylum seekers from particular countries was devised by the Deputy Minister of Justice (Staatssecretaris van Justitie) on the basis of official country assessment reports published by the Minister of Foreign Affairs on the countries of origin of asylum seekers.

On 10 July 2013, the Deputy Minister for Security and Justice (Staatssecretaris van Veiligheid en Justitie) adopted a moratorium on decisions on asylum applications and expulsions (besluit- en vertrekmoratorium) for asylum seekers of Tutsi origin hailing from the east of the DRC, including the provinces of North Kivu and South Kivu.

The moratorium was lifted by the Deputy Minister on 3 February 2014. That policy decision, published in the Official Gazette (Staatscourant) of 12 February 2014 (no. 4196), was based on the contents of an official country assessment report (ambtsbericht) on the DRC released by the Minister of Foreign Affairs on 27 November 2013. It was found in this report that there was no systemic, structural and organised discrimination of Tutsis in the DRC, that there was no structural violence in the DRC against the Tutsi population or other Congolese with a Tutsi background and that Tutsi groups could obtain protection from the DRC authorities. Although the general situation in the provinces of North Kivu, South Kivu, Haut-Uele and Bas-Uele in the eastern part of the DRC continued to be considered to fall within the scope of Article 15(c) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (“the Qualification Directive”; see, for further details, Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, §§ 30-32, 28 June 2011), an internal protection alternative was found to be available in other parts of the DRC, including Kinshasa, for asylum seekers hailing from those provinces who did not qualify for refugee status within the meaning of the 1951 Geneva Convention relating to the Status of Refugees.

In December 2014 the Minister of Foreign Affairs issued a new official country assessment report on the DRC, according to which the general situation in the provinces of North Kivu and South Kivu remained unsettled and unpredictable and that the situation of the Tutsis in the rest of the DRC, including Kinshasa, remained unchanged in comparison with the last reporting period. As regards the situation of women, the report reads:

“Women in the DRC occupy a subordinate position. Discrimination against women is widespread and they often have no access to decision-making, adequate healthcare, clean water, basic sanitation and legal remedies. The general position of women remained consistently bad during the reporting period. Several NGOs are active in the DRC in the area of women’s rights and the improvement of the position of women. A draft bill for equal treatment between men and women, which has been taken up for examination in parliament, has not yet been adopted during the reporting period.

The Constitution stipulates that the government is to see to it that sexual violence against women is eliminated, in particular when it is used as a weapon aiming at destabilising or disrupting the family. Such forms of sexual violence are classified in the constitution as a crime against humanity.

Sexual violence against women and girls is widespread throughout the entire country. Cases of sexual violence are most numerous in areas of war where rape is often used as a weapon in the conflict. The BCNUDH [United Nations Joint Human Rights Office] registered from January 2014 to June 2014 256 victims of sexual violence: 156 women in the Orientale province, 70 women and 3 men in North Kivu, 16 women in Katanga and 11 women in South Kivu. In August 2014 the BCNUDH registered 257 human rights violations, including 50 cases of sexual violence...

On 9 July 2014 President Kabila appointed Jeanine Mabunda Lioko Mudiayi as special advisor in the fight against sexual violence and the recruitment of child soldiers. She declared on 20 August 2014 that remarkable progress had been made in North Kivu in the fight against sexual violence. The Ministry of Defence announced [at the] end of August 2014 a national fight against sexual violence committed by Congolese soldiers. The police have trained special units in Goma and Bukavu to combat sexual violence. ...

For most women in the DRC is it difficult to call in protection against sexual violence. In theory it is indeed possible to report rape but in practice women decline to do so, due to social stigma and lack of confidence in the judicial system. When a victim decides to turn to the authorities, it remains questionable whether her case will be taken up. Police officers nearly always ask victims for a financial contribution for carrying out the investigation.

... the Congolese NGO LIZADEEL [Ligue de la Zone Afrique pour la Défense des Droits des Enfants, Etudiants et Elèves] has small centres in various towns in the DRC where victims of sexual violence are accommodated and accompanied to medical care facilities. There is a special telephone number for reporting sexual violence ...

In Kinshasa, a single woman with a job and able to fend for herself has sufficient freedom ... Single women from other parts of the country can join their own ethnic community (communauté) in Kinshasa. A single woman from out of town – who has no family in town – can temporarily find shelter with someone from their own community. Single women also seek support from the Catholic Church or one of the many awakening [evangelical] churches in Kinshasa. In Kinshasa legal training is given with a view to prosecuting perpetrators of sexual violence. The NGO LIZADEEL runs a shelter for traumatised women in Kinshasa.”

In a letter of 27 January 2015, the Deputy Minister informed the Lower House of Parliament that on the basis of the official country assessment report on the DRC of December 2014 the provinces of North Kivu and South Kivu continued to be considered to fall within the scope of Article 15(c) of the Qualification Directive, but that this qualification no longer applied to the provinces of Haut-Uele and Bas-Uele and therefore the “15(c) policy” in respect of these regions was discontinued.

The summary of the report on the “Conditions for Tutsis in Kinshasa”, published on 19 January 2015 by the Norwegian Country of Origin Information Centre, reads:

“The Tutsis’ share of the population of the Democratic Republic of Congo is fairly small, but they have played a political role in the country that is much more significant than their number would lead one to expect. The Tutsi population of Kinshasa has always been rather small. When the second Congo war broke out in August 1998, Tutsis were victims of large pogroms in Kinshasa after they were collectively blamed for Rwanda’s interference in Congolese politics by the country’s president and authorities. During and after the pogroms, the Tutsis who survived were either evacuated or managed to leave Kinshasa by themselves. Since the early 2000s, there have been no reports of human rights violations against Tutsis in Kinshasa. This can be explained partly by there being few Tutsis living there, and partly by political circumstances that differ from those present at the outbreak of the second Congo war in 1998.”

The main findings of the report “Situation des femmes seules à Kinshasa”, released on 15 January 2016 by the Swiss State Secretariat for Migration SEM (Country Analysis) states:

“In a country which ranks among the lowest according to the Human development index, women are [also] subject to obvious discrimination. Already vulnerable as a woman, a single woman deprived of a family or a social network is even more vulnerable without a means of existence. However, some single women can organise [themselves] in Kinshasa and find support to improve their living conditions and attempt to secure their financial independence.”


Violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Manifest religion or belief);Violation of Article 13+9 - Right to an effective remedy (Article 9 - Freedom of thought conscience and religion;Article 9-1 - Manifest religion or belief)

Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Pavlina Panova;Zdravka Kalaydjieva

Word of Life is an international religious organisation based in Uppsala, Sweden. In the early 1990s, three non-profit organisations affiliated with Word of Life (Слово на живот) were registered by the Sofia City Court under the Persons and Family Act, and one of these organisations opened a Bible study centre in Sofia. However, on 1 April 1994 the Supreme Court reversed the Sofia City Court’s decision to register the three organisations, on the ground that they had not submitted the necessary applications to renew their registration within the three month time-limit which had been introduced on 18 February 1994 following amendment of the Persons and Family Act. Following the Supreme Court’s decision, the three organisations affiliated with Word of Life were deleted from the registry of non-profit organisations. Moreover, the organisations were not registered in accordance with the Religious Denominations Act and the Bible study centre was not registered with the Ministry of Education. Word of Life therefore had no legal status in Bulgaria at the time of the events in question.

On an unknown date in 1994 a complaint was submitted to the office of the Sofia City Public Prosecutor by the Directorate of Religious Denominations with the Council of Ministers, raising concerns about the activities of Word of Life in Bulgaria. On 13 May 1994, having carried out an investigation, the prosecutor’s office adopted a decision stating that the “sect” had an influence on its followers which increased the risk of suicide and other psychological problems. Membership might lead to the severance of family and social ties with the wider community; followers were prohibited from watching television or reading literature other than the Bible or from undergoing any form of surgical intervention. In conclusion, the prosecutor decided to order the restriction of the right of members of the three organisations linked to Word of Life from assembling to promote their beliefs and from continuing to operate the Bible study centre. Relying on Article 185 of the 1974 Code of Criminal Procedure (“the 1974 Code”), which allowed the prosecutor to take all measures necessary to prevent the commission of a criminal offence where there was a suspicion that an offence might be committed, the prosecutor ordered the police to take measures to restrict the organisation’s access to places where it could hold meetings and preach about its beliefs and convictions. Following an appeal by members of the community, the above decision was upheld by a higher prosecutor.

At all relevant times the applicant was a member of Word of Life. Following the prosecutor’s decision of 13 May 1994, groups of Word of Life members organised meetings in private homes, including that of the applicant. On 8 September 1995 a prosecutor granted permission for a search of the applicant’s flat. On 27 September 1995 the applicant was summonsed and interviewed by the police in relation to her religious beliefs and to meetings of members of Word of Life in her home. The police then accompanied the applicant to her flat and searched it. They seized a number of items, including audio tapes with religious content, notebooks with sermons, brochures, books, magazines and video tapes.

After the search the police issued a warning order (протокол за предупреждение) under the Public Education Act instructing the applicant not to host further meetings of members of the religious community. The order relied also on the decision of the prosecutor of 13 May 1994.

On 1 December 1995 the applicant brought an action against the Sofia police, seeking return of her chattels and damages under the 1988 State and Municipalities Responsibility for Damage Act (“the 1988 Act”) in respect of the above measures, which she claimed breached her right to freedom of religion and freedom of assembly.

In a judgment of 28 February 1998 the Sofia District Court partially allowed the action, finding that the applicant’s questioning by the police and the warning order had been lawful, but that the search and the seizure had been unlawful as they had not been undertaken in the framework of any criminal investigation and as the items seized had not been intended to be used in criminal proceedings. Making an assessment under the general law of tort rather than the 1988 Act, the court awarded the applicant 25,000 Bulgarian levs (the equivalent of about 13 euros (EUR) at current rates of exchange) for damages and ordered that the items seized on 27 September 1995 be returned.

Upon appeals by the parties, on 29 July 2002 the Sofia City Court upheld the District Court’s judgment insofar as it concerned the order for the police to return to the applicant the chattels seized. It remitted the remainder of the case concerning liability for damages for fresh consideration under the 1988 Act.

Following a new examination of the case, on 8 February 2005 the Sofia District Court dismissed the claim for damages. It found that the impugned actions of the police could not be qualified as administrative acts because the police had acted pursuant to the orders of the prosecution authorities. As to the prosecution authorities themselves, they could not be held liable under the 1988 Act for decisions of the type in question.

Upon an appeal by the applicant, in a final judgment of 2 October 2006 the Sofia City Court upheld the District Court’s findings under the 1988 Act. The Sofia City Court observed that the prosecution service had ordered the measures and that the police officers who were involved had merely assisted the prosecution authorities as they were obliged to do under Article 185 of the 1974 Code.

The relevant domestic law concerning freedom of religion, the activities of unregistered religious organisations, searches and seizures and the prosecution’s power to order measures for the prevention of crime was summarised in the Court’s judgment in Boychev and Others v. Bulgaria (no. 77185/01, §§ 25-26 and 31-38, 27 January 2011).

The relevant provisions of the 1988 Act on State responsibility are set out in Krasimir Yordanov v. Bulgaria, no. 50899/99, §§ 25-26, 15 February 2007.

The relevant domestic law regarding remedies for unreasonably long civil proceedings was set out in Balakchiev and Others v. Bulgaria (dec.), no. 65187/10, 18 June 2013.


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)

Elisabeth Steiner;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The first applicant was born in 1945 and lives in Barcelona.

On 25 April 2005 the Justice of the Peace of the 3rd Court Circuit of the Kirovskiy District of Astrakhan dismissed the applicant’s action against the Astrakhan Regional Military Commissariat in which he sought the increase of monthly pension and military-related benefits.

On 29 June 2005 the Kirovskiy District Court of Astrakhan quashed the judgment on appeal and granted the first applicant’s action in part, awarding him a lump sum of 49,215 Russian roubles. The judgment became final.

On 28 February 2006 the Presidium of the Astrakhan Regional Court, by way of supervisory-review proceedings, quashed the judgment of 29 June 2005 on the ground of incorrect application of substantive law by the Kirovskiy District Court and upheld the judgment of 25 April 2005.

The second applicant was born in 1939 and lived in Ozersk, Russia. She was the widow of Mr Lev Gayev who died of cancer in 1985.

On 1 June 2005 the Tsentralnyy District Court of Chelyabinsk acknowledged that Mr Gayev had been exposed to radioactive emissions following a nuclear accident at the Mayak power plant in 1957.

In August 2006 the applicant sued the Ozersk Social Security Office for the monthly compensation in connection with the loss of the breadwinner.

On 17 October 2006 the Ozersk Town Court of the Chelyabinsk Region rejected her claim on the ground that she failed to show that she had been financially dependent on her husband on the day of his death.

On 4 December 2006 the Chelyabinsk Regional Court quashed this judgment and partly granted the applicant’s claim. It held that the Ozersk Social Security Office should pay the applicant monthly compensation to be determined in accordance with law.

On 25 July 2007 the Presidium of the Chelyabinsk Regional Court, by way of supervisory review, quashed the appeal judgment of 4 December 2006 and remitted the matter to the appeal court, noting that the lower instance court did not duly examined evidence and made wrong application of the substantive law.

The judgment of 4 December 2006 was executed between 1 March 2007 and 1 August 2007.

On 27 August 2007 the Chelyabinsk Regional Court held a new appeal hearing and rejected the second applicant’s claim.


Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in 1983 and lives in the town of Akhtubinsk, in the Astrakhan Region.

Since 2002 the applicant has been infected with hepatitis C.

On 20 December 2002 the applicant was arrested on suspicion of knifepoint rape with an accomplice.

On 22 December 2002 the Astrakhan Region Akhtubinsk Town Court (“the Town Court”) remanded him in custody pending trial. The court noted that the applicant was suspected of a serious criminal offence, and held that if he remained at large he might abscond from the investigation and the court and continue his criminal activity.

On 19 February 2003 the Town Court extended the applicant’s detention until 20 March 2003.

On 20 March 2003 the Town Court held that the preventive measure should remain unchanged and should be extended until 20 April 2003. The court reiterated that the applicant had been charged with a serious criminal offence and that gave grounds to believe that if released he might continue his criminal activity. In addition the court noted that he should not be released, because this might prevent the investigator from performing certain investigative actions.

On 18 April 2003 the Town Court ordered the extension of the applicant’s detention until 20 May 2003. It endorsed the reasons for the extension of his detention which had been given before. It also noted that the investigating authorities needed time to perform certain investigative actions, to draft a bill of indictment, and to provide him with an opportunity to study his case file. It further observed that the applicant’s neighbours had given negative references regarding his character.

On 12 May 2003 the Town Court granted the investigator’s request to extend the applicant’s detention. The request was based on the arguments that the applicant was suspected of a serious crime, and that if released he might abscond. The investigator also noted that he had to perform certain investigative actions and ensure that the applicant had the opportunity to acquaint himself with the case file. The applicant argued that he was a student who had a stable place of residence, and that he could not abscond as he required in-patient medical treatment for his hepatitis C. He also provided some positive references concerning his character. The court accepted the investigator’s arguments, and extended the detention until 20 June 2003.

The applicant appealed against the order of 12 May 2003, complaining that insufficient reasoning had been given for that decision. He also noted that his arguments had not been addressed by the Town Court, and that the investigating authorities had unnecessarily extended the period for his familiarisation with the case file.

On 23 June 2003 the Astrakhan Regional Court (“the Regional Court”) dismissed the applicant’s claim. It held that his arguments could not constitute grounds for the overturning of the impugned order on appeal.

On 20 June 2003 the investigator applied for an extension of the applicant’s detention for two months to give the applicant an opportunity to study the case file. In response to the applicant’s arguments, the Town Court noted:

“... The circumstances cited by the investigator [concerning the need to ensure the applicant’s familiarisation with the case file] were already [sufficient] grounds for the detention orders of 18 April and 12 May 2003.

The case file contains the order of 16 June 2003, which provides that [the applicant] had until 30 June 2003 to study the case file. Accordingly, the extension of his detention for two months is an excessive measure. During the hearing the investigator and the prosecutor referred to their busy schedule, which prevented the authorities from ensuring [the applicant’s] familiarisation with his 400-page file on a daily basis. The study of the file required the applicant to be transported from a temporary detention facility to a court building. However, those arguments cannot be accepted by the court, as they are not compatible with the requirements of Article 5 § 3 of the Convention, which provides that everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” The court finds that the investigating authorities unnecessarily extended the investigation. Accordingly, the request in question should be partly dismissed ...”

Taking into account the above, the court extended the applicant’s detention for one month, until 20 July 2003.

On 11 July 2003 the Regional Court quashed the decision of 20 June 2003 on procedural grounds, finding that the Town Court only had power either to uphold the investigator’s request or to reject it. The Code of Criminal Procedure of Russia did not allow such requests to be granted in part.

On 18 July 2003 the Town Court extended the applicant’s detention until 20 August 2003. This decision referred to the fact that the applicant was accused of a serious offence and that there was a need to perform “certain investigative actions”.

On 8 August 2003 the Regional Court upheld the decision of 18 July 2003 on appeal. It rejected the applicant’’s character and the necessity to perform “some investigative actions”.

On 2 July 2003 the applicant’s case file was remitted to the Town Court for examination on the merits.

By virtue of a decision of 14 July 2003 the Town Court ordered a preliminary court hearing in the applicant’s criminal case. In the descriptive part of this decision the court mentioned, among other things, that the measure of restraint which had been applied to the applicant must remain unchanged. The judge set no time-limits for the applicant’s detention. No separate court order with regard to the applicant’s detention was issued until 26 December 2003.

On 26 December 2003 the prosecution applied to the court for an extension of the applicant’s detention until 30 March 2004. It noted that the applicant was suspected of a serious criminal offence, and held that if released he might abscond from the investigation and the court and obstruct the establishment of the truth in the case. The applicant applied for release on bail, stating that he was suffering from hepatitis C and that there were no circumstances which would be capable of justifying the excessive length of his detention. The court refused his application. It held that the grounds for his detention remained unchanged and that he could receive medical treatment for hepatitis C in a detention facility. The applicant’s detention was extended until 30 March 2004.

On 18 March 2004 the Town Court extended the applicant’s detention until 30 June 2004. The court once again relied on the seriousness of the charges against the applicant. No other grounds for his detention were provided by the court.

On 15 June 2004 the Town Court extended the detention until 30 September 2004. This time the court referred to the seriousness of the charges and to the risk that if at liberty he could hamper the establishment of the truth in the case.

On 16 June 2004 the applicant appealed against the decision of 15 June 2004. His claim was received by the appeal court on 16 July 2004.

On 12 August 2004 the Regional Court upheld the impugned decision of 15 June 2004 on appeal. The appeal court added a new argument. It stated that the parties had significantly contributed to the length of the trial proceedings. This was due in particular to the fact that the last court hearing was adjourned owing to the absence of the defence lawyer, who was unwell. Taking into account the above and the information on the applicant’s character, the Regional Court found that his detention should not be lifted. By virtue of a decision of 14 January 2005 the higher court refused to review the applicant’s detention.

On 29 September 2004 the Regional Court examined a new application by the prosecuting party for an extension of the detention. Relying on the seriousness of the charges and the risk of absconding, the court extended the applicant’s detention until 30 December 2004.

On 12 October 2004, referring to the progress of his hepatitis C, the applicant asked the court to change his detention to house arrest. The Town Court refused, observing that he had been offered medical treatment but had refused to undergo such treatment in the detention facility; he had thereby deliberately damaged his own health.

On 28 December 2004 the Town Court examined the investigator’s application for an extension of the applicant’s detention and the defence’s request for a change to the measure of restraint. The court restated its earlier reasoning, and approved the extension of the detention until 30 March 2005.

On 12 January 2005 the Town Court ordered a psychiatric examination of the applicant. On 3 March 2005 he was transferred from the remand prison to a psychiatric hospital.

On 30 March 2005, after the psychiatric examination, the applicant was returned to a temporary detention facility.

On 30 March 2005 the Town Court once again extended his detention and dismissed his request for the release on bail. It repeated that the grounds for the applicant’s detention remained unchanged, that the applicant was accused of a serious offence, and that if released he could obstruct the criminal investigation. The detention was extended until 30 June 2005.

The applicant’s pre-trial detention ended on the day of his conviction, 30 May 2005.

On 8 July 2003 the prosecution case file was received by the Town Court.

On 30 May 2005 the Town Court convicted the applicant of knifepoint rape and sentenced him to eight years’ imprisonment.

On an unspecified date in 2005 the Regional Court upheld the sentence on appeal.

After the applicant’s arrest of 20 December 2002 he was placed in the temporary detention facility of the Akhtubinsk Department of the Interior of the Astrakhan Region (“the Akhtubinsk IVS”) and then remand prison IZ-30/1. He was detained in these two facilities intermittently during two years, nine months and two days, up to 25 October 2005. It appears that the principal location of his detention during this period was IZ-30/1 and that he was held in the Akhtubinsk IVS or transported there on several occasions to enable him to take part in the investigation, acquaint himself with the criminal case file, attend hearings concerning the extension of his detention (on 22 December 2002, 20 March, 18 April, 12 May, 20 June, 18 July, 26 December 2003, 18 March, 15 June, 12 August, 29 September, 12 October and 28 December 2004 and 30 March 2005) and hearings of his criminal case (as a minimum 28 July, 7 and 22 August and 30 September 2003, 14 April, 5 and 17 May, 15 June, 29 September, 30 November and 1 and 16 December 2004, and 26 April and 30 May 2005).

According to the applicant, his cell measured approximately 13.3 square metres and housed twelve to twenty persons, some of whom were suffering from tuberculosis. It was not equipped with individual sleeping places. The detainees had to sleep on a forty-centimetre podium which provided sleeping places for eight or nine of them. The interior walls were covered with rough cement. The cell was infested with rats, lice, ants, flies and other insects. It was filled with tobacco smoke, because the access of fresh air was blocked. The ventilation system did not work and the only window in the cell was covered by a metal sheet. The cell had only one 100watt lamp, which was on day and night. During the summer the temperature in the cell was around 40 degrees Celsius. In the winter the detainees suffered from “terrible cold”. They could not leave the cell without authorisation and were not allowed to move freely around the facility. Two or three times a day they were escorted to toilet facilities in groups of three to five. The cell was not equipped with a lavatory pan or running water. Inmates were provided with a single bucket for both waste and lavatory purposes. The bucket serving as a lavatory was not separated from the rest of the cell, and thus offered no privacy. The applicant and his cellmates had two meals a day of very poor quality at 2 p.m. and 6 p.m. All of them ate from one four-litre pan using five spoons.

The applicant also submitted a formal warning of 15 June 2004 no. 16-43-2004, issued by the Akhtubinsk Prosecutor’s Office (“the Prosecutor’s Office”) and addressed to the Head of the Akhtubinsk IVS. It reads as follows:

“The inspection report indicates that Akhtubinsk IVS does not satisfy the requirements of domestic legislation applicable to detention facilities. It is not equipped with medical staff. Accordingly, prophylactic and anti-epidemic measures are not performed. The detainees’ clothes and bedding are not disinfected on a regular basis. The register of medical examinations, the sanitary register and the register of disinfection are not properly completed. The detainees are not examined on admission by a medical professional. The authorities do not ensure a weekly shower. The above leads to the detention of persons with various infections, sexually transmitted diseases, skin diseases, mental disorders and other diseases alongside healthy inmates. This causes the spread of diseases among the detainees ... and the staff members of the Akhtubinsk IVS.

It has been stated that the Akhtubinsk Department of the Interior, Astrakhan Region, has a medical assistant who carries out superficial inspections of the Akhtubinsk IVS, and assesses whether the domestic standards are complied with. This is not so. This person cannot be considered an employee of the Akhtubinsk IVS, because he does not carry out the entirety of the duties of such a post.

The Prosecutor’s Office has already warned the detention facility’s management about the inappropriate sanitary conditions in the Akhtubinsk IVS, but no effective action has been taken by the authorities.

In view of the above, and the provisions of section 24 of the Federal Law pertaining to the Prosecutor’s Office (“the Prosecutor’s Office Act”)” I prescribe:

An internal investigation to determine whether a disciplinary punishment should be applied to the responsible officials.

Effective measures to prevent and put right violations of the Federal Law pertaining to detention of suspects and accused persons (“the Suspects and Accused Persons (Detention) Act”.

Action to comply with this warning without delay: the Prosecutor’s Office to be informed within one month of the action that has been taken.”

The Government argued that applicant’s cell was disinfected on a regular basis and that he was provided with meals in line with the expected standards. They agreed that overall the conditions of his detention in the Akhtubinsk IVS were incompatible with the requirements of Article 3 of the Convention.

The applicant stated that the conditions of his detention in IZ-30/1 had been appalling.

The Government noted that the applicant was held in IZ-30/1 on many occasions between 23 January 2003 and 25 October 2005. Their submissions as regards the conditions of detention in IZ-30/1 may be summarised as follows:

According to the Government, the applicant was at all times provided with an individual bed and bedding, even though the personal space afforded to him was, on certain occasions, less than the statutory 4 sq. m per person. The applicant was provided with three meals per day. The quality of the food was subject to the requisite quality control.

Every cell in the remand prison where the applicant was detained was equipped with powered ventilation. The ventilation system was in working order. Natural ventilation was achieved by means of trickle vents in the windows. The temperature in the cells was between 18 and 25 degrees Celsius. The heating and water supply were in compliance with the applicable standards. There were no metal bars on the windows. Accordingly, access to daylight was not blocked. The artificial lighting was in compliance with the applicable specifications; there were two lamps, of 100 watts and 60 watts, which were on from 6 a.m. to 10 p.m. and from 10 p.m. to 6 a.m. respectively.

The toilet was separated from the living area of the cell by a two metre high brick or metal screen ensuring privacy. The cells were regularly cleaned and disinfected.

Detainees were permitted to take a shower at least once a week for not less than fifteen minutes.

The Government lastly submitted that the detention facility had had a fully equipped medical station.

The applicant submitted that he had been frequently transported between the Akhtubinsk IVS and IZ-30/1 during his detention in these two facilities and that the conditions of his transportation had been appalling. First, he was deprived of the opportunity to sleep, because he was taken out of his cell at 11 p.m. and returned there at 3 a.m. Secondly, on the days of transportation the applicant did not receive any food (including travel rations) or water and on every occasion the prison vans were severely overcrowded. Lastly, during the transfers the detainees had to use a bottle or a plastic bag to wash themselves. There was also no possibility to use the toilet.

The Government provided the Court with the date of the applicant’s transfers (see paragraph 36 above), but did not submit any other information about the conditions of the applicant’s transportation.

The applicant stated that before his arrest he had contracted hepatitis C. During pre-trial detention he was placed in a cell with other detainees who were infected with tuberculosis, leading to his contracting that disease. He further stated that during the detention he suffered from dermatosis and dental problems. According to the applicant, he was neither provided with adequate medical treatment nor with an appropriate diet.

In accordance with a medical report of an unspecified date, submitted by the Government, during the applicant’s detention he was provided with adequate medical treatment. The report reads as follows:

“Retrospective analysis of the submitted medical records confirm that [the applicant] had been suffering from hepatitis C since 2002.

During his detention [the applicant] underwent several medical examinations and received medical treatment. The last [in-patient] treatment was provided in August 2008 in the hospital of IZ-2. The results of his medical examination indicate that [the applicant] had chronic hepatitis C of low activity. In connection with this he underwent basic treatment and antivirus treatment. He was provided with hepatoprotectors and vitamins. At the present time [the applicant] continues to receive pathogenetic and aetiological treatment.

On 23 January 2003 at admission to IZ-30/1 he underwent an X-ray examination, [which indicated no pathology] of the lungs. In 2003 and 2004 [the applicant] had two such examinations. During his stay in IZ-30/1 he was often transported to the Akhtubinsk IVS to take part in court hearings or investigative actions.

In 2004 he complained of weakness, pain in the right part of his stomach and a bitter taste in his mouth. Owing to these complaints he was diagnosed with hepatitis and on 4 March 2004 he was sent to a regional hospital, were he underwent a complex medical examination. This examination indicated that he had infiltrative tuberculosis in the lower part of his right lung, pneumonia and hepatitis C.

After anti-inflammation and anti-bacterial treatment the aforementioned diagnosis was confirmed. [The applicant] was transferred to [a special hospital] where he received specific complex anti-tuberculosis treatment from 30 March to 29 April 2004. Later, the patient refused further in-patient treatment and was transported to IZ30/1.

On 14 May 2004 an expert panel of the regional anti-tuberculosis clinic confirmed the diagnosis and concluded that his treatment had been prompt and adequate and had led to a positive health outcome.

On 14 February 2005 the expert panel stated that the [applicant] had recovered from tuberculosis. Only some insignificant traces of the disease remained in his lungs.

Until the patient’s departure for a penal colony on 25 October 2005, he received anti-relapse treatment.

[The applicant’s] disease was apparently caused by his frequent transportation to the IVS, chronic stress, hepatitis C, his anti-social behaviour and smoking.

The patient’s disease was promptly diagnosed by means of an X-ray examination, and efficiently treated in line with the relevant standards.”

The Government also submitted the applicant’s voluminous medical records, covering the period from 2003 to 2008. They show that during his detention the applicant underwent ten X-ray examinations, several HIV tests, and a variety of other medical examinations, including blood tests. Besides the history of his tuberculosis and hepatitis treatment, the medical records contain information about the treatment of his skin diseases. Thus, in January 2004 following his complaints regarding itching, the applicant was examined by a doctor, diagnosed with streptodermosis and provided with an ointment. In February 2004 he was diagnosed with a recent dermatitis and was also provided with ointments and other medicines. From 2005 to 2008 he did not complain about skin problems. On one occasion in June 2004 the applicant complained of headache. In connection with this, he was examined by a psychiatrist, who confirmed that he had no mental disorders and prescribed him nootropil and vitamins.

On 17 September 2004 the applicant applied to the Prosecutor’s Office for criminal proceedings to be instituted against the management of the Akhtubinsk IVS, who had put him in the same cell as infected detainees and failed to ensure the compatibility of the conditions of his detention with the minimum standards set forth by domestic law, and had failed to provide him with adequate medical assistance.

On 27 September 2004 the applicant’s complaint was dismissed. The Prosecutor’s Office agreed that the conditions of the applicant’s detention did not fully satisfy the requirements of domestic law and that there were some omissions on the part of the management. However, it concluded that the management’s actions did not amount to a criminal offence. The Prosecutor’s Office did not specify the established omissions of the prison authorities.

On 12 December 2004 the applicant challenged the aforementioned decision in court under Article 125 of the Russian Code of Criminal Procedure.

On 13 January 2004 the Town Court allowed the applicant’s claim and quashed the impugned decision, because the Prosecutor’s Office had not provided details of the management’s omissions.

No further decisions concerning the outcome of the examination of the applicant’s complaints were submitted by the parties.

There is no information about the examination of the applicant’s subsequent complaints of 16, 17, 19, 25, 26 and 27 July 2005, which were sent to the Prosecutor’s Office.

On 7 and 14 September 2005 the applicant lodged two claims with the Town Court, seeking compensation for damage to his health and for non-pecuniary damage, which he alleged had been caused by the inadequate conditions of his detention in the Akhtubinsk IVS and remand prison IZ30/1.

By decisions of 14 and 17 September 2005 the Town Court left the claims pending the awaited rectification of their procedural defects. The applicant was invited to clarify the list of the defendants and the factual circumstances of the alleged violations of his rights.

Later the applicant’s claims were returned unexamined on the merits, as the Town Court concluded that he had failed to comply with the court’s recommendations.

The applicant did not challenge the Town Court’s decisions on appeal.


CASE OF BENKŐ AND SOÓSNÉ BENKŐ v. HUNGARY

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - award

András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens

The applicant was born in 1937 and lived in Budapest.

On 23 April 2002 she brought an action before the Budapest XX/XXI/XXIII District Court, seeking the dissolution of common ownership.

On 22 November 2007 the Budapest Regional Court, acting as a second instance court, adopted a partial judgment in the case.

Pursuant to the applicant’s petition for review, the Supreme Court quashed the partial judgment on 25 June 2008 and remitted the case to the first instance court.

The case was terminated by the Budapest Regional Court on 1 December 2011 (service: 6 January 2012).

On 6 March 2012 the applicant’s lawyer posted a first communication to the Court, indicating an intention to lodge an application and giving some indication of the nature of the application. The communication was dated 5 March 2012.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Vote)

Armen Harutyunyan;Branko Lubarda;Carlo Ranzoni;Johannes Silvis;Kristina Pardalos;Luis López Guerra

The applicant was born in 1951 and lives in Şomoşcheş, Arad County.

At the time of the events in the present case, the applicant was serving a prison sentence for fraud, imposed by two decisions of the Timişoara Court of Appeal on 14 August 2002 and 11 November 2004. He was held mainly in Arad and Timişoara Prisons. In 2008 he spent a few days in cell no. 309 of Jilava Prison. According to the applicant’s description, the cell was dirty and lacked access to warm water.

On several occasions the applicant was kept in the court’s detention rooms where the detainees and guards were allowed to smoke. According to the applicant, he was exposed to passive smoking in the Arad County Court detention room on 15 December 2008.

According to the information provided by the prison administration and forwarded to the Court by the Government, the applicant was held in cell no. 309 in Jilava Prison from 29 May to 1 June 2008 and from 16 to 18 June 2008. The personal space available to the applicant was 1.65 sq. m during the first period of detention and 1.93 sq. m during the second period of detention. Disinfection and pest control were carried out three times per year and the cell was cleaned daily by the inmates. The same rules of hygiene applied to the toilets and shower rooms. The cell benefitted from both natural and artificial light and had beds with mattresses, tables, shelves, and a television set. In an annex to the cell there was a toilet space, consisting of two partitioned toilet bowls and two wash basins. Access to warm water was possible in the common shower room, which contained eighteen showers and to which the inmates had access in privacy once a week.

On 30 November 2008 the applicant was not allowed to vote in the parliamentary elections and, despite his requests for clarifications, the prison authorities gave him no explanations as to whether he was entitled to vote or not. The next day, he informed the Court about what had happened.

On 21 December 2009 the applicant was released on probation. He was arrested again on 2 July 2010 and served the rest of his sentence until 28 March 2011.


Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant, Mr M. D., is a Kyrgyzstan national, who was born in 1987 and currently resides in Novosibirsk. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). He was represented before the Court by Ms I.B. Kalkopf, a lawyer practising in Novosibirsk.

The Russian Government (“the Government”) were represented by Mr G. Matyushkin, 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.

The applicant is a Kyrgyztan national of an Uzbek ethnic origin.

In October 2010, after the inter-ethnic violence in the region of JalalAbad in June 2010, the applicant left Kyrgyzstan for Russia, fleeing ethnic-motivated violence.

On 30 January 2011 the Kyrgyz authorities charged the applicant in absentia with violent crimes committed in June 2010. On 1 May 2011 they issued an international search warrant.

On 30 September 2011 the applicant was arrested and placed in custody in Russia. The Kyrgyz authorities confirmed their intention to seek the applicant’s extradition.

On 30 September 2012 the detention measure was lifted and the applicant was released from custody under an obligation not to leave his place of residence.

Pending the completion of the extradition proceedings, the applicant unsuccessfully sought a refugee status, temporary asylum and political asylum in Russia.

On 4 April 2013 the Deputy Prosecutor General of Russia granted the extradition request and ordered the applicant’s extradition. The order mentioned that the Kyrgyz authorities provided diplomatic assurances that the applicant would not be tortured or subjected to inhuman or degrading treatment; the extradition request did not aim at persecuting the applicant on religious, political grounds or grounds relating to his ethnic origin; he would benefit from free access by the Russian authorities’ representative in the place of his detention.

The applicant appealed against this decision and advanced an argument that he might be subject to ill-treatment due to his Uzbek ethnic origin.

On 21 June 2013 the Novosibirsk Regional Court upheld the extradition order. As to the applicant’s arguments about alleged risk of illtreatment the court concluded that they were unfounded, since the reports provided by the applicant referred to past years, namely 2011, and the opinions of human rights activists were their own subjective opinion not based on real facts.

The applicant appealed to the Supreme Court of Russia.

On 11 September 2013 the Court acceded to the applicant’s request to apply Rule 39 of the Rules of Court and indicated to the Government that the applicant should not be extradited or otherwise involuntarily removed from Russia to Kyrgyzstan or another country for the duration of the proceedings before the Court.

On 17 September 2013 the Supreme Court of Russia quashed the judgment of 21 June 2013 and remitted the case for a fresh examination in the first instance.

On 5 October 2013 the Novosibirsk Regional Court quashed the extradition order of 4 April 2013.

On 14 January 2014 the Supreme Court of Russia dismissed the appeal lodged by the Prosecutor’s Office of the Novosibirsk Region and upheld the judgment of 5 October 2013. The extradition order of 4 April 2013 was thus annulled.

For a summary of relevant international and domestic law and practice see Abdulkhakov v. Russia (no. 14743/11, §§ 71-98, 2 October 2012).

For relevant reports on Kyrgyzstan see Makhmudzhan Ergashev v. Russia (no. 49747/11, §§ 30-46, 16 October 2012).


Preliminary objections joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation;Positive obligations) (Procedural aspect);Violation of Article 14+2 - Prohibition of discrimination (Article 14 - Discrimination) (Article 2 - Right to life;Article 2-1 - Life);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Armen Harutyunyan;Guido Raimondi;Kristina Pardalos;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Robert Spano

The applicant was born in 1965 and lives in Remanzaccio.

The applicant married A.T., a Moldovan national, and two children were born of the marriage: a daughter in 1992 and a son in 1998.

The applicant alleged that after their marriage her husband had started beating her. However, in 2011 the applicant followed her husband to Italy in order to provide her children with the opportunity of a more serene future.

The applicant submitted that her husband, who was an alcoholic, had already been physically abusing her for a long time when, on 2 June 2012, she requested the intervention of the police after she and her daughter had been assaulted by A.T.

When the police arrived, A.T. had left the family home. He was found in the street in a state of intoxication, with scratches on the left side of his face. The police drew up a report of the incident. The report stated that the applicant had been beaten and bitten in the face and the left leg and that she had a number of bruises. The report also stated that the applicant’s daughter had herself been hit after intervening to protect her mother and presented a neck injury caused by a fingernail and injuries to both arms. The applicant and her daughter were informed of their rights and expressed their intention to go to the hospital accident and emergency unit.

The applicant alleged that she had not, however, been informed of the possibility of lodging a complaint or contacting a shelter for battered women. She also submitted that she went to the accident and emergency unit in order to have her injuries recorded, but that after waiting for three hours she had decided to return home.

The Government, referring to the police report, submitted that there was no evidence that the applicant had gone to the accident and emergency unit.

The applicant submitted that after the assault on 2 June 2012 she had taken refuge in the cellar of her flat and started sleeping there.

She recounted the following events as follows. On 19 August 2012, after receiving a threatening telephone call from her husband, and fearing an attack by him, she decided to leave the house. When she returned home, she found that the cellar door had been broken. She tried telephoning a friend to ask if she could stay the night with her, but no one answered her call. She then decided to go back to the cellar. A.T. attacked her there with a knife and forced her to follow him in order to have sexual relations with his friends. Hoping that she would be able to seek help once outside, she resigned herself to following him. She asked a police patrol in the street for help.

The police merely checked her and A.T.’s identity papers, and despite the applicant’s assertions that she had been threatened and beaten by her husband, they invited her to go home without offering her help and told A.T. to keep away from her. A.T. was fined for unauthorised possession of a lethal weapon.

Shortly after she had returned home, the applicant called the emergency services and was taken to hospital. The doctors noted, among other things, that she suffered from cranial trauma, a head injury, multiple abrasions to her body and a bruise on her chest. It was deemed that her injuries would heal up within a week.

The Government indicated that, according to the incident report drawn up by the police, they had arrived at Leopardi Street shortly after midnight. The applicant informed them that she had been hit in the face. A.T. had given the police officers a knife. The applicant told the police that she wanted to go to hospital to have her injuries recorded. She had gone there and A.T. had returned home. The knife had been seized and the applicant fined for unauthorised possession of a lethal weapon.

At the hospital the applicant spoke to a social worker and said that she refused to return home to her husband. She was then given shelter by an association for the protection of female victims of violence, IOTUNOIVOI (“the association”).

The president of the women’s shelter, accompanied by police officers, went to the cellar where the applicant had been living in order to fetch her clothes and personal effects.

From 20 August onwards A.T. began harassing the applicant by telephoning her and sending her insulting messages.

On 5 September 2012 the applicant lodged a complaint against her husband for bodily harm, ill-treatment and threats of violence, urging the authorities to take prompt action to protect her and her children and to prevent A.T. from approaching them. She stated that she had taken refuge in a women’s shelter and that A.T. was harassing her by telephone.

A.T. was placed under judicial investigation on charges of ill-treating family members, inflicting grievous bodily harm and making threats. The police sent the criminal complaint to the prosecution on 9 October 2012.

On 15 October 2012 the prosecution, having regard to the applicant’s requests for protection measures, ordered urgent investigative measures, in particular requesting the police to find potential witnesses, including the applicant’s daughter.

The applicant was given shelter by the association for three months.

In a letter of 27 August 2012 the head of Udine social services informed the association that there were no resources available to take charge of the applicant or to find alternative accommodation for her.

The Government gave a different interpretation of that letter, saying that, as the applicant had not first been referred to the Udine social services, which cared for victims of violence in the context of another project, called “Zero tolerance”, the latter could not pay the association’s expenses. In their submission, female victims of violence could contact social services requesting assistance, which the applicant had not done.

On 4 December 2012 the applicant left the shelter to look for work.

She said that she had first slept in the street before being accommodated by a friend, and had subsequently found a job as an assistant nurse for elderly people and was then able to rent a flat. According to the applicant, A.T. had continued exerting psychological pressure on her to withdraw her complaint.

On 18 March 2013 the prosecution, finding that no investigative measure had been carried out, again asked the police to investigate the applicant’s allegations rapidly.

On 4 April 2013, seven months after she had lodged her complaint, the applicant was questioned for the first time by the police. She altered her statements, mitigating the seriousness of her original allegations. Regarding the episode of June 2012 she stated that A.T. had unsuccessfully attempted to hit her and her daughter. With regard to the incident that had occurred in August 2012, she said that A.T. had hit her but had not threatened her with a knife. A.T. had, however, pretended to turn the knife on himself.

The applicant also stated that at the time she had not spoken very good Italian and had not been able to express herself properly. She also stated that A.T. had not forced her to have sex with other people and that she had returned to live at the family home. She said that when she had been living at the shelter provided by the association, she had not spoken to her husband on the telephone because she had been told not to. She stated that, barring her husband’s alcoholism, the situation at home was calm. She concluded by saying that her husband was a good father and a good husband and that there had been no further episodes of violence.

The applicant submitted that she had altered her original statements because of the psychological pressure exerted on her by her husband.

On 30 May 2013 the Udine public prosecutor’s office, after noting, firstly, that the applicant, who had been interviewed in April, had mitigated her allegations against her husband saying that he had not threatened her with a knife and that she had been misunderstood by an employee from the shelter where she had taken refuge and, secondly, that no other violent episode had occurred, asked the investigating judge to close the complaint lodged against A.T. for ill-treatment of family members. Regarding the offence of grievous bodily harm, the prosecuting authorities indicated that they intended to continue the investigations.

In a decision of 1 August 2013 the investigating judge discontinued the part of the complaint concerning the allegations of ill-treatment of family members and threats. He considered that the course of the events was unclear and that, with regard to the alleged ill-treatment, the offence had not been made out because, since the applicant had complained only about the incident of August 2012, the criterion of repeated episodes of violence was not satisfied.

With regard to the complaint of threats aggravated by the use of a weapon, the investigating judge noted that the applicant’s statements were contradictory and that in the report drawn up by the hospital there was no reference to knife injuries.

With regard to the offence of causing bodily harm, the proceedings were continued before the magistrate. A.T. was committed for trial on 28 October 2013. The first hearing was held on 13 February 2014 and A.T. was ordered to pay a fine of 2,000 euros (EUR) on 1 October 2015.

It can be seen from the case file that on 18 November 2013 A.T. received notice of his committal for trial before the magistrate’s court on 19 May 2014 for inflicting bodily harm on the applicant in August 2012.

In the night of 25 November 2013 the applicant sought the intervention of the police in connection with a dispute with her husband.

The police made the following findings in their report: on their arrival they saw that the bedroom door had been broken down and that the floor was strewn with bottles of alcohol. The applicant had stated that her husband was under the influence of alcohol and that she had decided to call for help because she thought he needed a doctor. She told them that she had lodged a complaint against her husband in the past, but that she had subsequently changed her allegations. The applicant’s son had stated that his father had not been violent towards him. Neither the applicant nor her son had shown any traces of violence.

A.T. was taken to hospital in a state of intoxication. In the night he left the hospital and went to an amusement arcade.

While he was walking along the street he was arrested by the police for an identity check at 2.25 a.m.

The police report shows that A.T. was in a state of intoxication and had difficulty keeping his balance and that the police had let him go after stopping and fining him.

At 5 a.m. A.T. entered the family flat armed with a 12 cm kitchen knife with the intention of assaulting the applicant. The applicant’s son attempted to stop him and was stabbed three times. He died of his wounds. The applicant tried to escape but A.T. succeeded in catching up with her in the street, where he stabbed her several times in the chest.

On 1 October 2015 A.T. was convicted by the magistrate’s court of inflicting grievous bodily harm on the applicant, on account of the injuries he had inflicted on her during the incident in August 2012, and sentenced to a fine of EUR 2,000.

On an unspecified date in November 2013 the investigation into acts of ill-treatment was reopened.

A.T. asked to be tried in accordance with the summary procedure (giudizio abbreviato).

On 8 January 2015 A.T. was sentenced to life imprisonment by the Udine preliminary hearings judge for the murder of his son and the attempted murder of his wife and for the offences of ill-treatment of his wife and daughter and unauthorised possession of a prohibited weapon. He was also ordered to pay the applicant, who had applied to join the proceedings as a civil party, EUR 400,000 in damages.

With regard to the ill-treatment, the preliminary hearings judge, after hearing witnesses and the applicant’s daughter, considered that the applicant and her children had been living in a climate of violence. He found that A.T. had been habitually violent and held that, apart from the daily harassment suffered by the applicant, there had been four violent episodes. He added that A.T., at his trial, had confessed to experiencing feelings of hatred towards his wife. According to the preliminary hearings judge, the events of 25 November 2013 were the consequence of an attempt by the applicant to get away from A.T.

On 22 May 2015 A.T. appealed against the judgment.

It can be seen from the file that in a judgment of 26 February 2016 the judgment was upheld by the Court of Appeal. However, neither of the parties annexed the judgment to their observations.