A list of the applicants is set out in the appendix. All the applicants are nationals of Bosnia and Herzegovina and are represented by Ms T. Drobnjak, a lawyer practicing in Belgrade.

The Serbian Government (“the Government”) are represented by their Agent, Ms N. Plavšić.

Following its declaration of independence from the former Socialist Federal Republic of Yugoslavia (SFRY) in March 1992, a brutal war broke out in Bosnia and Herzegovina. More than 100,000 people were killed and more than 2,000,000 others were displaced as a result of “ethnic cleansing” or generalised violence. The following local forces were the main parties to the conflict: the ARBH (mostly made up of Bosniacs and loyal to the central authorities in Sarajevo), the HVO (mostly made up of Croats) and the VRS (mostly made up of Serbs). The conflict ended in December 1995 when the General Framework Agreement for Peace (“the Dayton Agreement”) entered into force between Bosnia and Herzegovina, Croatia and the Federal Republic of Yugoslavia (succeeded by Serbia in 2006).

Žepa, a town in eastern Bosnia and Herzegovina, is situated some twelve kilometres from the border with Serbia. Before the war it had a population of less than 3,000, of whom the majority were Bosniacs. During the war, Žepa was one of three Bosniac enclaves in eastern Bosnia surrounded by the VRS. In 1993 it was declared a “safe area” by the United Nations Security Council.

In 1995, there were between 6,500 and 8,000 people living in Žepa, of whom some two-thirds were displaced persons from other parts of Bosnia and Herzegovina.

On 12 July 1995 the VRS attacked the Žepa “safe area”, capturing it on 25 July. In the days that followed, several hundred Bosniacs – predominantly able-bodied men who had refused to surrender to VRS forces – managed to cross the border and flee into Serbia. The present applicants were among them.

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

When Žepa was captured by the VRS, the applicants crossed into Serbia from Bosnia and Herzegovina, hoping that they would be able to find refuge in a third country. They were discovered by the border guard of the VJ and taken to two detention camps. The applicants claim that they received notification that they had prisoner-of-war status; it would appear that some of them were indeed members of ARBH but some were civilians. The first camp, Šljivovica, was situated in the municipality of Čajetina and the second, Mitrovo Polje, in the municipality of Aleksandrovac, both in Serbia. The Šljivovica detention camp was located in an abandoned workers’ barracks and the Mitrovo Polje camp in a former children’s recreational facility.

During their existence the camps were visited by representatives of the International Committee of the Red Cross and the State Commission for Missing Persons of Bosnia and Herzegovina. The latter compiled a report in which it found that the conditions of detention were disturbing.

Between January and April 1996 the UNHCR facilitated the transfer of the camps’ detainees to third countries and the camps were closed in April 1996.

On 6 September 2011 the Humanitarian Law Centre (Fond za humanitarno pravo), a Belgrade-based NGO, lodged a criminal complaint on behalf of the applicants with the Office of the War Crimes Prosecutor of Serbia against more than 50 individuals for alleged war crimes. In the criminal complaint it was alleged that, when the applicants were discovered at the Serbian border, the army and the police had used force against them and transported them to the aforementioned camps. Both camps had been guarded by officers of the Serbian police force and none of the applicants had been allowed to leave them. According to the applicants, during the time they spent in the camps they had been regularly verbally abused, taken to mock executions, kicked and punched, and beaten with fists, batons, cables, shovels and metal rods. Some of the applicants had had burning cigarettes held against their skin, had been forced to drink water mixed with motor oil and some had also been sexually abused (in particular, some of the applicants had been forced to perform sexual acts on each other). The applicants who had been suspected of being members of the ARBH had suffered particularly harsh treatment and had been forced to engage in mutual fights, look directly into the sun, move heavy rocks and had been denied medical assistance.

In its criminal complaint the Humanitarian Law Centre submitted statements by the camps’ detainees, medical documentation, documentation from the International Committee of the Red Cross and the State Commission for Missing Persons of Bosnia and Herzegovina, and other evidence. Amongst those who were alleged to have taken part in torture, the Centre identified members of the State Security Agency of Serbia, police officers, and military servicemen of various ranks.

On 23 September 2011 the Office of the War Crimes Prosecutor undertook preliminary verification of the information submitted by the applicants and requested that the Ministry of Interior and the Ministry of Defence submit information regarding the criminal complaint.

On 17 November 2011 and 2 December 2011 the Ministry of Interior submitted two reports to the Office. In their reports it was stated that the situation in the camps had been generally good, that the camps had not been enclosed behind a fence, and that residents who were given refugee status had had access to health services, a canteen, a post office, a phone, a bank, and both private visits and visits by officials from international organisations. While one of the reports describes the conditions in Šljivovica camp as unsatisfactory, the conditions in Mitrovo Polje were described as lodgings with the quality of “hotel accommodation”.

On 1 March 2013 the Office of the War Crimes Prosecutor notified the Humanitarian Law Centre that it did not find any grounds for initiating criminal investigation since the alleged acts could not be classified as war crimes or any other crime under the jurisdiction of the Office of the War Crimes Prosecutor. On 8 April 2013 the applicants lodged a constitutional appeal before the Constitutional Court of Serbia claiming violations of Articles 2, 3 and 6 of the Convention. On 4 February 2014 the Constitutional Court rejected the applicants’ constitutional appeal as incompatible ratione materiae with the provisions of the Constitution, finding that the notification in question was not an act which was decisive with respect to the applicants’ human rights.

On 13 June 2014 Belgrade Court of Appeal, acting upon a civil action for damages brought by two of the applicants, Enes Bogilović and Mušan Džebo, delivered a final judgment in civil proceedings in which it found that the applicants in question had suffered “intensive torture and inhumane treatment” and that the “applicants survived what was without a doubt the harshest suffering an individual [could] experience”. The court further described the actions of the guards towards the two applicants and other detainees as “conduct ... hardly worthy of a human being”. Each plaintiff was awarded 300,000 Serbian dinars (RSD) in non-pecuniary damage.

The decision of the Constitutional Court was delivered to the applicants’ representative on 2 July 2014.

The Criminal Code of the Socialist Federal Republic of Yugoslavia 1976 (Official Gazette of the Socialist Federal Republic of Yugoslavia – OG SFRY – nos. 44/76, 36/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90, 45/90 and 54/90, in the Official Gazette of the Federal Republic of Yugoslavia nos. 35/92, 16/93, 31/93, 37/93, 24/94 and 61/01, and in OG RS no. 39/03) was in force until 1 January 2006. The relevant provisions thereof are set out hereunder.

Article 95 governs the statutory limitation periods in respect of criminal liability. The relevant parts are worded as follows:

“(1) If not prescribed differently by this Code, criminal liability shall be statutebarred:

1) twenty-five years from the date on which the offence was committed in instances where the law provides for the death penalty or twenty years’ imprisonment;

2) fifteen years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding ten years;

3) ten years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding five years;

4) five years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding three years;

5) three years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding one year;

Article 100 of the same Code is worded as follows:

“The statutory limitation of criminal liability does not apply to the crimes covered by Articles 141-145 of this Code [genocide and war crimes] or to crimes for which statutory limitation is proscribed by international treaties.”

The Criminal code of the Republic of Serbia (Official Gazette of the Republic of Serbia, nos. 85/2005, 88/2005, 107/2005, 72/2009, 111/2009, 121/2012 and 104/2013) entered into force on 1 January 2006.

Article 103 governs the statutory limitation periods in respect of criminal liability. The relevant parts are worded as follows:

1) twenty-five years from the date on which the offence was committed where the law provides for thirty to forty years’ imprisonment;

2) twenty years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding fifteen years;

3) fifteen years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding ten years;

4) ten years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding five years;

5) five years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding three years;

6) three years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding one year;

“The statutory limitation of criminal liability does not apply to crimes covered by Articles 370-375 of this Code [genocide and war crimes] or to crimes for which statutory limitation is proscribed by ratified international treaties.”

Article 142 - War crime against the civilian population

“Whoever, acting in violation of the rules of international law applicable in time of war, armed conflict or occupation, orders that a civilian population be subject to killing, torture, inhumane treatment, biological experiments, immense suffering or violation of their bodily integrity or health; dislocation or displacement or forcible conversion to another nationality or religion; forcible prostitution or rape; application of measures of intimidation and terror, hostage-taking, imposition of collective punishment, unlawful transfer to concentration camps or other illegal arrests and detention, deprivation of rights to fair and impartial trial; forcible service in the armed forces of the enemy’s army or in its intelligence service or administration; forced labour, starvation of the population, property confiscation, pillaging, illegal and intentional destruction or large-scale stealing of property that is not justified by military needs, taking an illegal and disproportionate contribution or requisition, devaluation of domestic currency or the unlawful issuance of currency; or personally commits one of the aforementioned actions, shall be punished by not less than five years’ imprisonment or the death penalty.”

Article 144 - War crime against prisoners of war

“Whoever, acting in violation of the rules of international law, orders the murder, torture or inhumane treatment of prisoners of war, including biological experiments, extreme suffering or serious injury to their bodily integrity or health, compulsory enlistment in the armed forces of an enemy power, or deprivation of the right to a fair and impartial trial, or personally commits any of the aforementioned acts, shall be punished by not less than five years’ imprisonment or by the death penalty.”

The Criminal Code of the Socialist Republic of Serbia (Official Gazette of the Socialist Republic of Serbia nos. 26/77, 28/77, 43/77 and 20/79) was in force in until 1 January 2006. Its relevant provisions read as follows:

Article 53 – Serious bodily harm

“(1) Whoever causes serious injury to another, or serious impairment of another’s health, shall be punished by imprisonment for six months to five years.

(2) Whoever causes serious injury to another or impairment of another’s health resulting in the endangering of the life of that person or the destruction or permanent significant damage to or weakening of a vital function of his body or an organ thereof, or permanent serious health impairment or disfigurement, shall be punished by one to ten years’ imprisonment.”

Article 121 – Serious bodily harm

(2) Whoever causes serious injury to another or impairment of another’s health resulting in the endangering of the life of that person or the destruction or permanent significant damage to or weakening of a vital function of his body or an organ thereof, or permanent serious health impairment or disfigurement, shall be punished by imprisonment of one to eight years’ imprisonment.

(3) If the actions specified in paragraphs 1 and 2 of this Article result in the death of the injured party, the offender shall be punished by imprisonment of two to twelve years.

Article 137 – Ill-treatment and Torture

“(1) Whoever ill-treats another or treats a party in a humiliating and degrading manner shall be punished by a fine or imprisonment for up to one year.

(2) Whoever causes anguish to another with the aim of obtaining information or a confession from him or another person or of intimidating him or a third party or of exerting pressure on such persons, or does so for motives based on any form of discrimination, shall be punished by imprisonment from six months to five years.

(3) If the offence specified in paragraphs 1 and 2 of this Article is committed by an official whilst discharging his duty, that person shall be punished for the offence in described in paragraph 1 by imprisonment from three months to three years, and for the offence described in paragraph 2 by one to eight years’ imprisonment.”

Article 371 – Crime against humanity

“Whoever, acting in violation of the rules of international law, orders as part of a wider and systematic attack against a civilian population: murder; placement of the group in living conditions calculated to bring about its complete or partial extermination, enslavement, deportation, torture, or rape; enforced prostitution; forcible pregnancy or sterilisation aimed at changing the ethnic balance of the population; persecution on political, racial, national, ethical, sexual or other grounds, detention or abduction of persons without disclosing information about such acts in order to deny such person legal protection; oppression of a racial group or establishing domination of one such group over another; or other similar inhumane acts that intentionally cause serious suffering or serious impairment of health, or personally commits any of the aforementioned offences, shall be punished by imprisonment of at least five years or imprisonment of between thirty and forty years. ”

Article 372 – War crime against civilian population

(1) Whoever, acting in violation of international law in time of war, armed conflict or occupation orders: an attack on the civilian population, a settlement, particular civilians, persons incapable of combat or members or facilities of humanitarian organisations or peacekeeping missions; wanton attack without target selection that harms the civilian population or civilian buildings under the special protection of international law; an attack against military targets knowing that such an attack would cause collateral damage among civilians or damage to civilian buildings that is evidently disproportionate to the military effect; the infliction on the civilian population of bodily injury, torture, inhumane treatment, biological, medical or other research experiments, or the taking of tissue or organs for transplantation or the performing of other acts that impair health or inflict great suffering or the deportation or relocation or forced change of nationality or religion; forcible prostitution or rape; applying intimidation and terror measures, taking hostages, collective punishment, unlawful deprivation of freedom and detention; deprivation of the rights to a fair and impartial trial; declaration of the prohibition, suspension or non-admissibility in court proceedings of the rights and acts of enemy nationals; the coercion into service of a hostile power or its intelligence or administration services; the coercion into military service of persons under seventeen years of age; forced labour; starvation of the population; unlawful seizure, appropriation or destruction of property not justified by military needs; taking unlawful and disproportionate contributions and requisitions; devaluation of local currency or unlawful issuing of currency, or personally commits any of the above offences, shall be punished by at least five years’ imprisonment.

Article 374 – War crimes against prisoners of war

“(1) Whoever, acting in violation of international law, orders the injury, torture, or inhumane treatment of prisoners of war, or biological, medical or other research experiments on them, or the taking of their tissues or body organs for transplantation or the commission of other acts harmful to health and causing them serious suffering, or compels prisoners of war to serve in the forces of a hostile power or deprives them of the rights to fair and regular trial; or personally commits any such offences, shall be punished by at least five years’ imprisonment.

(2) Whoever orders the murder of prisoners of war or personally commits such an offence, shall be punished by at least ten years’ imprisonment or imprisonment of between thirty and forty years.”

This Act (published in Official Gazette of the Republic of Serbia no. 67/03, amendments published in Official Gazette nos. 135/04, 61/05, 101/07 and 104/09) entered into force on 9 July 2003. The War Crimes Prosecutor, the War Crimes Police Unit and the War Crimes Sections within the Belgrade Higher Court and the Belgrade Court of Appeal were set up pursuant to this Act. They have jurisdiction over serious violations of international humanitarian law committed anywhere in the former Yugoslavia (see section 3 of this Act).

In a number of previous cases concerning war crimes, this Office has treated the war in Bosnia and Herzegovina between 1992 and 1995 as an internal armed conflict (see judgments in cases Škorpioni, Zvornik I, Bijeljina, Prijedor, Zvornik II and Stari Majdan). The majority of the indictments in these cases came into force by 2006. The final judgments in the majority of these cases were adopted by the domestic courts by 2010.

Articles 199 and 200 of the Obligations Act (Zakon o obligacionim odnosima; published in the OG SFRY nos. 29/78, 39/85, 45/89, 57/89 and 31/93) provide, inter alia, that anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of his or her personal rights (prava ličnosti) is entitled, depending on the duration and intensity of the breach, to sue for financial compensation in the civil courts and, in addition, to request other forms of redress capable of affording adequate non-pecuniary satisfaction.


CASE OF ANDONOSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

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

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

The applicant was born in 1968 and lives in Prilep.

The applicant was a taxi driver. On 25 July 2007 his car was parked on a taxi post at the Prilep bus station. As established in the course of the subsequent criminal proceedings (see paragraph 9 below), P.K., accompanied by S.O. and G.F., all Albanian nationals (“the migrants”), asked the applicant to drive them to the village of Vitolište, Mariovo. Only P.K., who was fluent in Macedonian, told the applicant that they were going to Vitolište to work. S.O. and G.F. did not speak during the journey. At around 4 p.m. they were stopped by the police at a place called Sliva. The migrants had no travel documents. The applicant and the migrants were arrested. The applicant’s car was also seized. A receipt for temporarily seized objects was issued to him.

On 26 July 2007 an investigating judge of the Prilep Court of First Instance (“the trial court”) opened an investigation against the applicant and P.K. on grounds of a reasonable suspicion of migrant smuggling, punishable under Article 418-b of the Criminal Code (see paragraph 15 below).

On 8 August 2007 the public prosecutor withdrew the charges against the applicant for lack of evidence. In a written statement of that date the public prosecutor indicated that there was no evidence that the applicant had known or had reasonable grounds to believe that he had transported illegal migrants. He had met them for the first time at the Prilep bus station. He had never had any contact with them before. Since P.K. was fluent in Macedonian, the applicant could not have suspected that he (P.K.) was a migrant. The other two migrants had not spoken during the journey. Furthermore, P.K. had confirmed that he had misled the applicant, since otherwise nobody would have driven them. For that reason, he had advised S.O. and G.F. not to speak. When the police had stopped them, he had apologised to the applicant. That had been confirmed by S.O. and G.F. and two police officers who had stopped them on the day in question. On the same day, the investigating judge discontinued the investigation concerning the applicant. The latter decision indicated that the applicant had no previous criminal record.

On 3 September 2007 the trial court convicted P.K. of migrant smuggling and sentenced him to one year’s imprisonment. The court established that P.K. had told S.O. and G.F., illegal migrants from Albania, that he could transfer them illegally into Greece. They had paid him 270 euros (EUR). They had crossed the Macedonian-Albanian border illegally; they had used a taxi to travel to several cities in the respondent State and to arrive ultimately at the Prilep bus station. There, P.K. had agreed with the applicant, who participated in the proceedings as a witness, to transport them to the village of Vitolište, from where all the migrants had intended to cross the border on foot.

The trial court also ordered, under Articles 100-a and 418-b of the Criminal Code 2004 (see paragraphs 14 and 15 below) confiscation of the applicant’s car, as the means by which the criminal offence had been committed (“the confiscation order”). The relevant part of the judgment reads as follows:

“According to Article 100-a(2) and (3) taken in conjunction with Article 418-b(5) of the [Criminal Code], the court confiscated ... from [the applicant] the vehicle which had been used for transportation of [S.O. and G.F.], because [the applicant] could have known that [they] were migrants, since both of them – the witnesses [,] had not talked, had not had any equipment with which they would work as construction workers or lumberjacks, and also the time in the afternoon when he had transported them to Mariovo indicated that they were not going to work, but [had intended] to cross the Macedonian-Greek border illegally at night, which should have been known to the [applicant] as an experienced taxi-driver. [The applicant] also stated that he had been suspicious about one of the witnesses, because he had been thin, which meant that he could have known that they had been migrants and not (ordinary) persons who were going to Vitolište to work, as he himself had known that the border was illegally crossed near the villages Vitolište, Canište and Bešište.”

The applicant appealed, arguing that the confiscation order had not been based on any fact. He had not been convicted of any crime and the trial court was not entitled to order confiscation of his car. P.K., who was convicted, had been travelling in the car as a passenger. The fact that the public prosecutor had withdrawn the charges against him confirmed that he had not known that he was transporting illegal migrants. No evidence had been adduced to prove otherwise. Lastly, he had never been involved in migrant smuggling.

On 7 November 2007 the Bitola Court of Appeal dismissed the applicant’s appeal and upheld the confiscation order. The relevant part of the decision reads as follows:

“It is true that the first-instance court, in the operative part and in the reasoning of the impugned judgment concerning the confiscation of the [car], provided reasons, [i.e.] referred to Articles 100-a (2) and (3) in conjunction with Article 418-b (5) of [the Criminal Code], which constitute an incorrect application of the substantive law, and an incorrect application of [the Code]. Article 100-a of [the Code] concerns the confiscation of objects, and paragraph (3) refers to objects used for the commission of a criminal offence. When those objects are owned by a third person, they may be confiscated only if third persons knew or could and ought to have known that the objects are being used or are intended to be used to commit an offence. In the present case there is no need for the application of this rule, because the rule contained in Article 418-b (5) necessarily requires the confiscation of the objects and the means of transport used to commit the offence, irrespective of whom they belong to, whom they are for, or whom they come from.

In such circumstances, coupled with the fact which was established beyond any doubt, (namely) that this offence was committed by the accused with the [applicant’s] vehicle, the court was correct to confiscate the vehicle by its decision contained in the operative provision of the judgment.”

On 23 January 2008 the public prosecutor notified the applicant that there were no grounds to institute legality review proceedings (барање за заштита на законитоста).


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

Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

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

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


Remainder inadmissible;No violation of Article 4 - Prohibition of slavery and forced labour (Article 4 - Positive obligations;Article 4-1 - Trafficking in human beings);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

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

The first and second applicants were born in 1984 and 1982 respectively and live in Vienna. The third applicant was born in 1972 and lives in Switzerland.

The following summary of the background of the case and the events in Austria is based on the submissions by the applicants. The account of the investigation in Austria is based on the submissions by both parties.

The applicants are all nationals of the Philippines. The first and third applicants were recruited in 2006 and 2009 respectively by an employment agency in Manila to work as maids or au pairs in Dubai (United Arab Emirates). The second applicant travelled to Dubai in December 2008 for the same purpose, at the suggestion of the first applicant, not via an agency. All of the applicants had their passports taken away by their employers. During the course of their work in Dubai, they allege that they were subjected to ill-treatment and exploitation by their employers, who also failed to pay them their agreed wages and forced them to work extremely long hours, under the threat of further ill-treatment.

In late 2006 the first applicant contacted an agency in Manila in order to find a job abroad. She is a single mother with one daughter who was eight months old at the time. She signed a contract in which she agreed to work for a family in Dubai for two years, from December 2006 until December 2008. The contract also stipulated that she would be paid 700 United Arab Emirates dirhams (AED – approximately 150 euros (EUR) at that time) per month to work for eight hours each working day. Upon her arrival in Dubai the first applicant was taken to her employers, who were two sisters or sisters-in-law sharing one large residence with their families. One of them took possession of her passport.

For most of the initial two-year contract the first applicant was not subjected to physical abuse or direct threats of harm by her employers, and she was paid regularly. However, she had to work from 5 a.m. to midnight throughout the initial two-year period. Her duties included looking after her employers’ children, preparing meals, cleaning the house, doing the laundry and numerous other jobs around the house and garden. During the first nine months she was required to perform this work seven days per week without a single day off, and was not allowed to leave the house unsupervised. She was not allowed to have her own telephone and was only allowed to call her family in the Philippines once a month, the costs of these calls being deducted from her wages. Further, the first applicant was forbidden from speaking to any of the other workers from the Philippines in their native language. She was constantly hungry, as she was generally only given the family’s leftover food. Only when she accompanied the family to the supermarket approximately once a month was she allowed to buy some basic food for herself.

After approximately nine months, the first applicant faced the first punishments by her employers. She was forced to sleep on the floor when they found out that she had been talking to another employee from the Philippines in their native language. When she became ill after sleeping on the cold floor, her employers prevented her from buying medicine or contacting a doctor; instead, she had to continue working the same hours.

Towards the end of her two-year contract, the first applicant’s employers informed her that they wished her to stay, and offered her better pay, more days off and a telephone of her own, as well as permission to visit her family, provided that she recruited someone to take over her job while she was away. The first applicant finally agreed to extend her contract and returned to the Philippines for three months. Owing to the incentives and the prospect of improved working conditions, she asked the second applicant to take over her role in Dubai during the time she was away.

While the first applicant was in the Philippines, she received threats from her employers that if she did not return to Dubai to work, she would be banned from ever going back there, and the second applicant would be subjected to ill-treatment. The first applicant therefore returned to Dubai in April 2009.

After she returned to Dubai, she was taught how to drive. After she failed her first driving test, she was forced to pay for further lessons and tests out of her own salary, with four further driving tests costing AED 700 each, a month’s salary. While she was driving, one of her employers hit her on the shoulder on a number of occasions to force her to speed up. The employer also started to slap or hit her regularly for no or little reason. She also repeatedly threatened to let her husband hit the first applicant if she did not follow her orders or made any mistakes.

The first applicant accompanied her employers on trips to Europe, Australia, Singapore and Oman, where she spent significant amounts of time locked up in hotel rooms or under the close supervision of her employers. She only had to visit one embassy in person to obtain entry documents, and that was in relation to a trip to London, at which time she was ordered by her employers to lie about her work conditions. When they arrived in London, the first applicant was not allowed at any time to leave the apartment in which they were staying.

The second applicant was married with three young children in the Philippines. Her husband had no regular work. Because she expected better pay in Dubai, she agreed to work for the same employers as the first applicant. The employers in Dubai arranged a visiting visa for her, under false pretences. As a result of this arrangement, the second applicant did not approach the employment agency in the Philippines and did not have a written contract with her employers. Her understanding was that she would get AED 700 per month, which would be paid directly to her family in the Philippines.

In December 2008 the second applicant started to work in Dubai. After the first applicant returned to the Philippines for three months in January 2009 (see paragraph 11 above), the employers significantly changed their conduct towards the second applicant. They threatened not to pay her family if she made any mistakes. They refused to let her leave Dubai, including by refusing to return her passport and ordering her to repay them her travel costs and related expenses. They also told her that she would be put in prison if she ran away or went to the authorities in Dubai for help. They physically and emotionally abused her, and there was one incident when one of her employers struck her across the shoulder using significant force. She was also forced to work from around 5 or 6 a.m. until midnight or 1 a.m. the following day.

Between April 2009 and June 2010 the violent and threatening behaviour of the employers increased. The second applicant was punched by one of her employers on one occasion, and in another incident the employer aimed a hard slap at her face, but instead struck her across the shoulder.

The third applicant’s family were desperate for money to pay for crucial medical treatment for her brother. Therefore, in 2009 she contacted an employment agency in the Philippines and was offered work as a maid in Dubai. She was informed that she would be earning between AED 800 and 1,000 (approximately EUR 160 to 200 at that time) per month, roughly twice her salary in the Philippines. Upon her arrival in Dubai in 2009 she had to hand over her passport and mobile phone to someone supposedly working for the employment agency. She was told that these items would be returned to her when she finished her work in Dubai.

The third applicant was working for a family member of the first and second applicants’ employers. The applicants got to know each other, as the two families met every Friday. They secretly shared their experiences on these occasions.

The third applicant was also bound by working hours going from 6 a.m. to midnight. Her employer forced her to clean her car in the sun and in unbearable heat, and she was prohibited from going to the toilet without letting her employer know. She was only allowed to call her family in the Philippines once a month, and only in the presence of her employer. She did not receive any remuneration at all for the first three months of her employment. Afterwards, she only received approximately AED 750 per month, less than what had been agreed. On one occasion she was slapped by her employer, and on a different occasion she witnessed another employee being hit over the head.

When the third applicant told her employer that she wished to return to the Philippines, she was told that she would have to pay the cost of the flight and the agency fees, which her employer knew she could not afford at that point. Her employer also made it clear that, in any event, her passport would not be returned to her until she had completed at least nine months of work in Dubai. Subsequently, the third applicant was too scared to ask to leave Dubai again, owing to her fear that her employer would take her earnings from her or refuse to return her passport for an even longer period.

On 2 July 2010 the applicants’ employers took them along on a short holiday trip to Austria. The applicants all stayed at the same hotel in the city centre of Vienna. The applicants slept in their own, separate apartment together with the female children. The male children slept in the same apartment as their parents. As in Dubai, the applicants had to take care of all of the employers’ children and perform numerous other domestic duties. They were still required to work from approximately 5 or 6 a.m. until midnight or even later. The third applicant was regularly shouted at by her employer, for example if she failed to get all the children ready early every morning. In addition, their employers woke the first applicant up at around 2 a.m. and forced her to cook food for them. Furthermore, the first applicant was forced to carry the employers’ twenty suitcases into the hotel by herself. While the applicants were in Austria, their passports remained with their employers. In the hotel in Vienna in which the applicants were staying, they became acquainted with N., an employee at the hotel who could speak Tagalog, the first applicant’s mother tongue.

When the applicants accompanied their employers to a zoo one or two days after their arrival in Austria, one of the children went missing for some time. One of the employers started screaming at the first and third applicants in a manner which the applicants had not experienced before. The first applicant found the level of verbal abuse extreme, and this was a particularly distressing and humiliating experience for her. The employer threatened to beat the third applicant, and said that “something bad” would happen to her if the child was not found safe and well. By this stage, the third applicant had formed the impression that this employer, of whom she lived in a constant state of fear, was a dangerous person who might try to hurt her very badly. She had the feeling that the violence towards her was likely to escalate at any time. Therefore, she believed that something bad was going to happen to her if she remained with the family. Similarly, the first applicant believed that they could not live with their conditions of work any longer, and did not want to risk waiting to see what happened if they travelled with their employers from Vienna to London, as they were scheduled to do. The applicants therefore decided to speak to N., the Tagalog-speaking employee at the hotel, to see whether she could help them.

The night following the incident – that is, two or three days after their arrival in Austria – the applicants left the hotel with the help of N., who had organised a car to pick them up in a side street near the hotel and take them to a “safe place”. The applicants subsequently found support within the local Filipino community in Vienna.

In April or May 2011, approximately nine months after they had left their employers, the applicants contacted a local NGO called “LEFÖ” for assistance in reporting their ill-treatment, abuse and exploitation to the police. LEFÖ is actively involved in the fight against trafficking in human beings in Austria. It is financed though government funds, in particular for the provision of assistance to victims of trafficking. In July 2011 the applicants decided to turn to the Austrian police and filed a criminal complaint (Strafanzeige) against their employers. They explained that they had been the victims of human trafficking. On 11 and 21 July and 17 August 2011, accompanied by representatives of LEFÖ, they were interviewed at length by officers from the Office to Combat Human Trafficking (Büro für Bekämpfung des Menschenhandels) at the Federal Office of Criminal Investigations (Bundeskriminalamt). In their report, the officers concluded that the offences had been committed abroad.

The applicants were informed that their employers had also made allegations about their conduct, alleging, inter alia, that they had stolen money and a mobile phone from them when they had fled the hotel. Those allegations were subsequently formally recognised by the Austrian authorities as false. The applicants all expressed their willingness to actively cooperate with the authorities and to engage in criminal proceedings against their employers.

On 4 November 2011 the Vienna public prosecutor’s office (Staatsanwaltschaft Wien) discontinued the proceedings under Article 104a of the Criminal Code (Strafgesetzbuch – hereinafter “the CC”) relating to human trafficking (see paragraph 35 below), pursuant to Article 190 § 1 of the Code of Criminal Procedure (Strafprozessordnung – hereinafter “the CCP” – see paragraph 36 below). On 14 November 2011 the public prosecutor gave a short written decision with reasons for the discontinuation of the proceedings. In the public prosecutor’s view, the offence had been committed abroad by non-nationals, and did not engage Austrian interests within the meaning of Article 64 § 1 (4) of the CC.

On 30 November 2011 the applicants lodged an application to continue the investigation (Fortsetzungsantrag) with the Vienna Regional Criminal Court (Straflandesgericht Wien). They submitted that Austrian interests had indeed been engaged, and that their employers had continued to exploit and abuse them in Austria. In their view, the elements of the crime punishable under Article 104a § 1 (2) of the CC had been present.

The Vienna public prosecutor’s office then submitted a statement to the Vienna Regional Criminal Court, specifying its reasons for discontinuing the investigation. There had been no indication in the case file that any of the criminal actions exhaustively listed in Article 104a of the CC had occurred in Austria, particularly since the offence had already been completed in Dubai (zumal das Delikt bereits in Dubai vollendet wurde), and the accused were not Austrian citizens. Furthermore, from the applicants’ statements (looking after children, washing laundry, cooking food), it did not appear that they had been exploited in Austria, especially since they had managed to leave their employers only two to three days after their arrival in Vienna.

On 16 March 2012 the Vienna Regional Criminal Court dismissed the applicants’ application. The relevant parts of the decision read (translation from German):

“The decision to discontinue [criminal proceedings] requires – by implication – that the facts of a case are sufficiently clear, or a lack of indication that investigations would be promising.

There is no reason for further prosecution if, on the basis of the ... results of the investigation, a conviction is no more likely than an acquittal ...

According to Article 64 § 1 (4) of the CC, if Austrian interests have been harmed by the offence or the perpetrator cannot be extradited, Austrian criminal laws apply independently of the criminal laws of the place where the crime was committed, for example in relation to the offence of kidnapping for ransom under Article 104a of the CC. Owing to the fact that the applicants spent approximately three days in Vienna, the conditions regarding the fulfilment of the elements of the crime under Article 104a § 1 (2) of the CC have not been met, since the relevant acts relating to the exploitation of labour must be committed over a longer period of time; therefore, the commission of the offence in Austria is ruled out.

The jurisdiction of the Austrian criminal-law enforcement authorities cannot be deduced from Article 64 § 1 (4) of the CC either.

Austrian interests are engaged if either the victim or the perpetrator is an Austrian citizen, or if the criminal acts have a concrete connection to Austria, or if an obligation arises under international law in relation to the prosecution of certain offences. Austrian interests are, in any event, engaged if a criminal offence under Articles 102, 103, 104 or 217 of the CC is committed against an Austrian citizen, or if Austrian funds or Austrian securities (Wertpapiere) are the subject of offences under Article 232, or Article 237 in conjunction with Article 232, of the CC.

The applicants’ argument that the elements of the crime under Article 104a of the CC had also been fulfilled in Austria therefore fails, and the plea that the alleged criminal actions against them by their employers in Dubai ... would lead to an obligation on the part of Austria under international law is likewise not convincing. In relation to the present case, [this latter argument] also cannot be inferred from the quoted [Supreme Court] judgment no. 11 Os 161/81, which affirmed that Austrian interests had been damaged as a result of the import into Austria of a large amount of narcotics for transport...”

This decision was served on the applicants’ counsel on 23 March 2012.

In January 2013 two of the three applicants lodged a civil claim against their employers with the Vienna Labour and Social Court (Arbeitsund Sozialgericht) in order to claim their wages. However, they alleged that because of the high risk of having to pay the costs of the proceedings because the employers did not reside in Austria, they withdrew the action.

The NGO LEFÖ not only assisted the applicants in filing a criminal complaint against their employers, but also supported them in applying for a special residence permit in Austria for victims of human trafficking, under the former section 69a of the Residence Act (Niederlassungs- und Aufenthaltsgesetz – see paragraph 46 below).

All three applicants were granted a residence permit for special protection purposes in January 2012, valid for one year initially. Subsequently, because of their progressing integration, they were granted other types of residence permits with longer periods of validity.

The applicants were officially registered in the Central Register (Melderegister) from the point when LEFÖ started supporting them. A personal data disclosure ban was enacted on the Central Register for their protection, so that their whereabouts would not be traceable by the general public.


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

André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicant was born in 1993 and is detained in Jēkabpils. On 9 February 2011 he reached the age of majority.

The applicant (who was a minor at the time of the criminal trial) and his co-accused, V.P., P.V. and F.Č., were charged with the aggravated murder of a fifteen-year-old girl, and the intentional destruction of property. The case was heard in May 2010 by the Riga Regional Court (Rīgas apgabaltiesa). The applicant pleaded “partially guilty” (vainu atzīst daļēji). He was held in detention on remand in Riga Central Prison (Rīgas centrālcietums) and was transported to the Riga Regional Court for the hearings.

The applicant submits that on the trial days, that is to say on 20, 21, 24 and 25 May 2010, in the holding area in the basement of the Riga Regional Court, he was insulted and physically assaulted by the detainee escort officers to make him confess to the crimes. He was made to perform different exercises, such as a “wall-sit” exercise, push-ups and a “duck walk” (walking slowly in a squatting position). While the applicant was performing the exercises he received blows to the back with a rubber truncheon. The applicant submits further that the escort officers assaulted him before and after the hearings and during the breaks. They beat him on different parts of the body. During the beatings they expressed their opinion regarding the criminal proceedings and manifested a negative and belittling attitude towards him. They also threatened to kill or mutilate the applicant if he did not plead guilty. Having been psychologically broken and without having consulted his lawyer, during the hearing of 25 May 2010 the applicant admitted his guilt and refused to testify.

On 26 May 2010 the applicant’s mother visited him in Riga Central Prison. On the following day the applicant’s mother, acting as his representative, lodged a complaint with the prosecution service. She stated that the escort officers had kicked her son on his body, arms, legs and head, and that he had shown her many bruises. She requested the prosecution service to institute criminal proceedings in respect of these events. On 31 May 2010 the prosecution service forwarded the complaint to the Riga regional division of the State Police. On 2 June 2010 the applicant’s mother lodged a similar complaint with the Internal Security Office of the State Police (Valsts policijas Iekšējās drošības birojs – hereinafter “the Internal Security Office”) (see paragraph 17 below).

On 26 May 2010 employees of the Ombudsman’s Office visited the applicant in Riga Central Prison. On the following day the Ombudsman wrote a letter to the Internal Security Office stating that the applicant had alleged that the escort officers had assaulted him. He had borne traces of the alleged violence – a haematoma on his side and abrasions on his arm and legs. The Ombudsman requested the Internal Security Office to examine the actions of the escort officers. He informed the Riga Regional Court about this letter.

On 27 May 2010 the applicant’s lawyer visited him in Riga Central Prison. Following the meeting, the applicant’s lawyer lodged a complaint with the prosecution service. He stated that between 20 and 25 May 2010 the applicant had been beaten by the detainee escort officers in order to make him confess to the crime. The applicant had shown him his injuries. As a result of this coercion at the hearing on 25 May 2010 the applicant had admitted his guilt, contrary to his defence position. The applicant’s lawyer requested the prosecution service to institute criminal proceedings in respect of these events. On 2 June 2010 the prosecution service sent the complaint to the Riga regional division of the State Police.

At a hearing on 28 May 2010 the applicant stated that on all four trial days he had been assaulted, as a result of which he had admitted his guilt. He maintained his earlier plea of “partially guilty”. Moreover, the applicant’s co-accused also stated that they had been assaulted. The applicant’s lawyer stated that the applicant had a black eye and that he had been hit on his head. He argued that the applicant was unable to testify. The judge adjourned the hearing in order to request information from Riga Central Prison on the applicant’s and his co-accused’s state of health.

On 28 May 2010 Riga Central Prison faxed to the Riga Regional Court a copy of a medical certificate issued after the applicant had been medically examined on 26 May 2010. The handwritten medical certificate, dated 26 May 2010, provided to the Court by the Government stated that the applicant had the following injuries: wounds on his lower legs and on the right hand “in the typical area”; a haematoma on the left forearm; and a haematoma on the right side. The applicant had stated that he had been beaten with a truncheon while being escorted on 20, 21 and 24 May. The Government also provided a typewritten report, dated 14 June 2010, from Riga Central Prison. According to the report, the applicant’s state of health on 26 May 2010 had been satisfactory; he had had several injuries covered by scabs on his lower legs; injuries covered by scabs on the “typical area” of the right hand caused by the use of handcuffs; a haematoma four centimetres in diameter on his left forearm; and a haematoma six centimetres in diameter in the “phase of absorption” on the right side in the area of the kidney.

At a hearing on 29 May 2010 the applicant stated that he was unable to testify because he had a headache. His lawyer argued that the applicant’s medical examination had been superficial. The prosecution was of the view that the applicant was seeking to delay the proceedings. The judge decided to proceed with the trial. The same day the Riga Regional Court found the applicant and his co-accused guilty and sentenced him to ten years’ imprisonment. The applicant and his mother lodged appeals indicating inter alia that the applicant had been assaulted by the escort officers. The case was forwarded to the Criminal Chamber of the Supreme Court (Augstākās tiesas Krimināllietu tiesu palāta).

At a hearing on 30 January 2013 the prosecution informed the appellate court that the criminal investigation in relation to the applicant’s “bodily injuries” had been terminated, that that decision had taken effect and that no appeal had been lodged against that decision. The relevant material was included in the case file. At a hearing on 9 December 2013 the applicant admitted his guilt in full and asked the court to review his conviction only in so far as it concerned his sentence.

On 11 December 2013 the Criminal Chamber of the Supreme Court upheld the applicant’s conviction, but reduced his sentence to nine and a half years’ imprisonment. In setting the sentence the court took into account that the proceedings before it had included a period of inactivity of more than one year and thus had lasted for unreasonably long time.

On 29 October 2014 the Supreme Court with a final decision dismissed the applicant’s appeal on points of law.

As submitted by the Government, on 7 June 2010 the Internal Security Office instituted an internal inquiry. It requested the applicant’s medical records from Riga Central Prison. On 18 June 2010 the Internal Security Office, referring to the complaint lodged by the applicant’s mother (see paragraph 8 above), sent a copy of the file to the Riga regional division of the State Police for it to decide on the lawfulness of the actions of its employees. The Internal Security Office stated that the file did not indicate that the escort officers had committed a criminal offence.

On 28 June 2010 the applicant lodged a complaint with the Internal Security Office regarding his alleged ill-treatment, stating that he would be able to identify the alleged perpetrators. The Internal Security Office sent the complaint to the Riga regional division of the State Police.

On 3 August 2010 the Riga regional division of the State Police, terminated the internal inquiry. It noted that according to the medical documentation concerning the applicant provided by Riga Central Prison the applicant’s state of health on 26 May 2010 had been satisfactory. He had had several wounds on his lower legs covered by scabs; wounds on the right hand covered by scabs, caused by the use of handcuffs; a haematoma four centimetres in diameter on his left forearm; and a haematoma six centimetres in diameter “in the phase of absorption” on the right side. The Riga regional division of the State Police noted the injuries found on V.P. At the same time, there had been no visible injuries found on P.V. or F.Č. According to explanations (paskaidrojumi) obtained from sixteen officers, neither the applicant nor his co-accused had been assaulted. The Riga regional division of the State Police concluded that the information gathered did not indicate that the officers had committed a disciplinary offence. It returned the file to the Internal Security Office.

On 11 August 2010 the Internal Security Office refused to institute criminal proceedings in view of the fact that the constituent elements of the offence of “exceeding official authority” under section 317(2) of the Criminal Law (Krimināllikums) were lacking in the officers’ actions. The applicant’s mother appealed against this decision.

On 26 August 2010 the prosecution service found that the Internal Security Office had based the impugned decision on an inquiry conducted by another institution of the State Police and medical documentation provided by Riga Central Prison. It was necessary to question the applicant and his co-accused regarding the circumstances of their transportation and to find out whether any of the employees of Riga Central Prison had seen injuries on them prior to and after their transportation and whether any of the employees had received any complaints from them in this regard. It was also necessary to find out whether between 20 and 25 May 2010 or earlier the applicant or his co-accused had been involved in any kind of conflict in the prison as a result of which they could have sustained the injuries. The prosecution service referred the case back to the Internal Security Office.

In reply to a request from the Internal Security Office, on 22 October 2010 Riga Central Prison provided information that prison employees who had between 20 and 25 May 2010 searched (pārmeklēt) the applicant and his co-accused each time prior to and after their being transported had not seen any injuries on them. The applicant and his co-accused had not made any complaints. There were no records showing that between 1 and 26 May 2010 they had been involved in any conflicts in the prison. On 5 November 2010 the Internal Security Office obtained explanations from the applicant and his co-accused, who maintained that the escort officers had assaulted them. As regards the daily physical security checks that they had undergone in the prison, they stated that prison employees had not asked them to undress. Therefore their injuries had remained undetected.

On 10 November 2010 the Internal Security Office again refused to institute criminal proceedings, stating that the information gathered during the additional inquiry did not indicate that the officers had committed any offence under section 317(2) of the Criminal Law. The applicant’s mother appealed against this decision.

On 17 December 2010 the prosecution service quashed the decision as it had been based on an incomplete inquiry. It instructed the Internal Security Office to question the persons with whom the applicant and his coaccused had shared cells between 20 and 25 May 2010 and to obtain information regarding breaks during the trial days on which the applicant and his co-accused had allegedly been assaulted. It was also necessary to question further the escort officers.

On 29 November 2011 the Internal Security Office obtained information from Riga Central Prison regarding the applicant’s and his coaccused’s cellmates. In December 2011 and January 2012 it took explanations from them. According to the applicant’s cellmate, A.D., the applicant had told him that the escort officers had assaulted him and his coaccused. He had shown him marks left by the beatings. It was difficult for A.D. to recall details as a long time had passed. Between 19 and 30 January 2012 the Internal Security Office questioned the escort officers, who stated that they had not assaulted the applicant or his co-accused.

On 31 January 2012, for the third time, the Internal Security Office refused to institute criminal proceedings, stating that the information gathered during the additional inquiry did not indicate that the officers had committed any offence under section 317(2) of the Criminal Law. The applicant’s mother appealed against this decision.

On 22 February 2012 the prosecution service quashed the decision. It considered that the Internal Security Office had not clarified the contradictions between the statements of the applicant and his co-accused on the one hand, and the statements of the escort officers on the other hand, and the circumstances in which the applicant and V.P. had obtained the injuries established on 26 May 2010. In view of the information gathered during the internal inquiry it was possible that above-mentioned offence under section 317(2) of the Criminal Law had been committed. Accordingly, the prosecution service instituted criminal proceedings and returned the file to the Internal Security Office for further investigation. On 23 February 2012 the prosecution service informed the applicant’s mother that the criminal proceedings had been instituted.

Between 29 February and 21 March 2012 the Internal Security Office questioned as witnesses fifteen escort officers, who gave largely the same statements. They had not beaten the applicant or his co-accused. They explained that officers wore belts which they never removed because handcuffs, truncheon, gun, pepper spray and gun belt were attached to them. They could not give more detailed statements as a long time had passed since the events. One escort officer, M.S., who was questioned as a witness on 11 April 2012, stated that he had seen bruises on the applicant and his co-accused during their personal search in the court building. M.S. had thought that they had been beaten in the prison. The escort officers had not assaulted them.

On 20 March 2012 an inspector of the Internal Security Office questioned one of the applicant’s co-accused, V.P., as a witness.

V.P. stated that on the first trial day the escort officers had made him perform push-ups and a “duck walk”, during which two escort officers had hit him on his back, abdomen, legs and chest with their legs, fists, a belt and truncheons. The escort officers had also beaten the applicant, who had been next to him. The officers had placed V.P. in a holding cell, and after some time they had escorted him to the court room.

P.V. and F.Č., the applicant’s co-accused, stated that on the second trial day the escort officers had made them perform push-ups and a “duck walk”. While they had been performing the exercises the escort officers had beaten them. P.V. had been hit during a break by two escort officers with a black belt on his back ten to twelve times. F.Č. had been hit by one escort officer on his back and legs approximately ten times. He had also been hit on his buttocks with a belt twenty to thirty times.

P.V. had heard the applicant screaming. On the way back to the prison the applicant had told P.V. that he had been beaten; later, in the prison, he had shown him two bruises on his chest. After the occurrence of the alleged beating had been raised during the trial P.V. had been examined by a prison doctor. He had had no injuries.

V.P., P.V. and F.Č. stated that they would not be able to identify the officers who had beaten them. They could not recall the events in detail. They did not wish to be declared victims in the proceedings.

On 3 April 2012 the applicant was questioned as a witness. He stated that on the trial days in the basement of the court building the escort officers had made him perform different exercises, such as a wall-sit exercise, pushups and a “duck walk”. While he had been performing the exercises, the escort officers had beaten him. He further stated that the escort officers had beaten him on different parts of the body. They had also hit him with a belt. On 7 June 2012 the inspector presented photographs of the escort officers to the applicant for the purposes of identification. He could not identify the officers who had allegedly assaulted him.

As submitted by the Government, on 2 May 2012 the Riga Regional Court confirmed that the court building premises were equipped with a video surveillance system. However, they stated that video recordings were stored for two to three months and then erased.

On 3 May 2012 the Internal Security Office requested an expert medical report.

In respect of V.P., P.V. and F.Č. the report concluded that their medical documentation contained no records of injuries sustained over the time period in question. In respect of the applicant the report stated that the description of the injuries contained in the medical documentation, in the record of the applicant’s questioning by the police, and in the hearings transcripts was incomplete. Therefore, it was not possible to determine the exact time at which the injuries had been sustained, how extensive they had been, and the degree of trauma or force that had been employed to inflict them. However, it could not be excluded that the injuries had appeared between 20 and 25 May 2010 in the circumstances indicated in the record of the applicant’s questioning. While it was indicated in the record of the applicant’s questioning and in the hearings transcripts that injuries had also been inflicted to the applicant’s face, abdomen, buttocks, lower part of the back, back, and left side of the thorax, such injuries had not been identified in the medical examination of 26 May 2010.

On 18 May 2012 the Internal Security Office questioned P.V.’s former cellmate, V.A., who stated that he had seen red patches on P.V.’s back. P.V. had told him that the escort officers had beaten him in the basement of the court building; they had also beaten the applicant. According to V.A. this had happened prior to 5 May 2010. V.A. had heard that the applicant had also been beaten in the prison.

On 20 July 2012 the Internal Security Office terminated the criminal proceedings on the grounds that the elements of the offence had not been made out. There was no irrefutable evidence that the escort officers had inflicted the injuries as alleged. According to the expert report, the injuries had not been recorded in the medical documentation precisely. The persons involved in the criminal proceedings had given contradictory accounts of the circumstances in which the injuries had been inflicted.

On 6 August 2012 the applicant’s mother lodged an appeal with the prosecution service against the decision to terminate the criminal proceedings, the applicant having on 21 October 2011 granted her power of attorney (universālpilnvara) to take any action concerning his property. This included the right to represent the applicant before the police, the courts and other institutions in relation to all rights vested in him as a victim. Prior to the authorisation she had represented the applicant on the grounds of his being a minor. In the wording of the appeal the applicant’s mother indicated that she was acting on behalf of the applicant.

She complained of deficiencies in the criminal investigation which had precluded obtaining important information. Namely, the presentation of photographs to the applicant for the purpose of identifying the alleged perpetrators had been organised in a manner intended to impede justice while he had been shown the small black-and-white frontal photographs he had been surrounded by seven escort officers in an effort to intimidate him. She asked that the investigating authorities organise an identity parade for the applicant and his co-accused and question the applicant’s co-accused regarding the events in question.

On 6 September 2012 a prosecutor dismissed her appeal, noting that during the presentation of photographs the applicant had been assisted by his lawyer. They had not made any remarks or requests as regards this procedure. The investigating authorities had established that no force had been used against the applicant and his co-accused and that no threats had been made. From the moment at which the trial had started the Ombudsman had paid particular attention to the applicant and his co-accused. All of the escort officers had been questioned as witnesses. They had had no interest in the outcome of the trial. Therefore, there had been no reason to doubt their account of the events. The applicant’s co-accused had also been questioned and their evidence assessed. There was no need to take any further investigative steps as the constituent elements of the offence under section 317(2) of the Criminal Law were lacking in the officers’ actions. The prosecutor indicated that her decision was amenable to appeal before a higher prosecutor.

On 22 September 2012 the applicant’s mother appealed against the aforementioned decision before a higher prosecutor. She indicated that she was acting on behalf of the applicant. In addition to the issues raised previously she complained that a long time had passed before criminal proceedings had been instituted. She considered that it had been a deliberate delay to hide any traces of assault. Furthermore, during the internal inquiry the Internal Security Office had “interviewed” the applicant and the coaccused, who had been minors at the relevant time, in the absence of a lawyer or a representative. After those “interviews” the co-accused had all refused to testify.

On 24 October 2012 a higher prosecutor dismissed the applicant’s mother’s appeal. He upheld the findings of the lower prosecutor – the decision to terminate the criminal proceedings had been lawful as the constituent elements of the offence had been missing. At the same time, he noted that the applicant had not been declared a victim in the criminal proceedings and hence could not be represented by another person. Furthermore, at the time when the criminal proceedings had been instituted he had reached the age of majority. The higher prosecutor indicated that the applicant’s mother did not have the right to complain about the decision to terminate the criminal proceedings and that it had been wrong for the lower prosecutor to examine her complaint on the merits. That being said, the higher prosecutor also examined her complaint on the merits for the reason of legal certainty as the lower prosecutor had done so. He concluded by indicating that the applicant’s mother could not lodge further complaints about the decision to terminate the criminal proceedings.

On 9 November 2012 the applicant lodged an appeal with the prosecution service against the aforementioned decision. He stated that his mother had been authorised to lodge complaints in his name under the power of attorney that he had granted her on 21 October 2011. He further noted that the assessment of the flaws in the proceedings had been superficial and had not properly addressed the points raised by his mother. He emphasised that no explanation had been given for the injuries that he had sustained while in custody or for the delay in the institution of the investigation and the superficial manner in which it had been conducted. He argued that it might have been that the State, acting through its agents, had been willing to cover-up his assault.

On 12 December 2012 a chief prosecutor responded that the applicant’s procedural status was that of a witness and that, unlike victims, witnesses had no right to authorise other persons to exercise their procedural rights on their behalf. Furthermore, the applicant himself did not have a right to challenge the response that had been given to his mother, as he was not the addressee of this letter sent to her. Lastly, because he had not been the one who had lodged the initial appeals, the applicant had missed the time-limit for lodging an appeal against the decision of 20 July 2012 terminating the criminal proceedings. Accordingly, the applicant’s appeal was not examined. The applicant was informed of the fact that in accordance with domestic law this decision was not amenable to appeal.

On 28 July 2011 the applicant complained to the Ombudsman, who then instituted an inquiry and requested information from Riga Central Prison, the State Centre for Forensic Medical Examination (Valsts tiesu medicīnas ekspertīzes centrs) and the Internal Security Office.

On 16 May 2012 the Ombudsman delivered a report in which he observed that, as the criminal investigation was still ongoing, it would be premature to assess the proceedings as a whole. However, with regard to the internal inquiry, the Ombudsman expressed concerns regarding the institutional independence of the Internal Security Office when analysing offences allegedly committed by the police officers.

Furthermore, the internal inquiry had lasted one year and seven months – beyond a reasonable time-limit. The inquiry had not been carried out with the requisite diligence, as exemplified by the repeated quashing of decisions not to institute criminal proceedings. The Ombudsman expressed concerns that flaws in the internal inquiry might render it impossible to establish whether the applicant’s injuries had been inflicted by the police officers. Thus, the internal inquiry undertaken by the State Police could not be regarded as constituting an effective remedy within the meaning of Article 13 of the Convention. Nonetheless, the Ombudsman considered that it would be premature to pronounce on a violation of Article 3 of the Convention.


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

The applicant claims to be a Somali national, born in 1994. At the time of the introduction of the application, he was in the Netherlands. He is represented before the Court by Ms J. van Veelen-de Hoop, a lawyer practising in Rotterdam.

The Government of the Netherlands are represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs. The Italian Government are represented by their Agent, Ms E. Spatafora, and their CoAgent, Ms P. Accardo.

The facts of the case, as submitted by the parties and the Italian Government, may be summarised as follows. Some of the facts are disputed.

The applicant claims to hail from Mogadishu and that he belongs to the Gaaljecel clan, a Hawiye sub-clan. He further claims that in August 2008 members of al-Shabaab came to his school where they called upon the applicant and his brother I. to join al-Shabaab. The applicant and I. refused. Some days later, on 17 August 2008, the applicant’s parental home had been attacked and I. killed. Considering that it had been a targeted attack owing to the refusal to join al-Shabaab, the applicant left Somalia on 20 August 2008 and, via Kenya, Uganda, Sudan and Libya, travelled to Italy.

On 11 April 2009 the applicant entered Italy in a group of about 200 persons who had landed in Ibleo Pozzallo (Ragusa province). The next day the local police took his fingerprints and registered him as having illegally entered the territory of the European Union. He stated that his name was M.A., that he was a Somali national and that he was born on 1 January 1985. On 14 April 2009, the applicant was transferred to the BariPalese Reception Centre for Asylum Seekers (Centro di Accoglienza per Richiedenti Asilo; “CARA”), where he applied for international protection, giving slightly different personal details, namely that his name was A.M.I., that he was a Somali national and that he was born on 1 January 1990.

On an unspecified date, the applicant was granted an Italian residence permit for subsidiary protection under Article 15(c) of the European Union 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 (“Qualification Directive”). This residence permit was valid for three years, i.c. until 23 August 2012. On 7 May 2009, the applicant left the Bari-Palese reception centre of his own volition for an unknown destination.

On 29 October 2009, the applicant applied for asylum in the Netherlands, stating that his name was A.R.M.E., that he was a Somali national and that he was born in Mogadishu on 28 May 1994. The next day, the Netherlands immigration authorities conducted a first interview (eerste gehoor) with the applicant, during which he declared inter alia that he had travelled by road from Somalia to Kenya from where he had travelled by air, with a stopover in Egypt, to the Netherlands. He wrote down his name, his date and place of birth and his last address, and signed this document.

The examination and comparison of the applicant’s fingerprints by the Netherlands authorities generated a Eurodac report on 29 October 2009, indicating that he had been registered in Pozzallo on 13 April 2009 and in Bari on 7 May 2009.

On 31 October 2009, a Dublin Claim interview (gehoor Dublinclaim) was held with the applicant. After the results of the Eurodac report had been put to him, he confirmed that he had been in Italy. He had lied about his age in Italy. He had stated that he was an adult. He had further been forced to give his fingerprints. He denied having applied for asylum in Italy and further stated that he had not had shelter or food in Italy.

On 1 November 2009, the Deputy Minister of Justice informed the applicant of her intention to reject his asylum request. The applicant filed his written comments (zienswijze) on this intention on 25 November 2009.

On 16 April 2010 the Netherlands authorities requested the Italian authorities to take back the applicant under the terms of Article 16 § 1 (c) of Council Regulation (EC) no. 343/2003 of 18 February 2003 (“the Dublin Regulation”). As the Italian authorities failed to react to that request within two weeks, they were considered under Article 20 § 1 of the Dublin Regulation as having acceded implicitly to that request.

The applicant’s asylum request filed in the Netherlands was rejected on 2 June 2010 by the Deputy Minister, who found that, pursuant to the Dublin Regulation, Italy was responsible for the processing of the asylum application. The Deputy Minister rejected the applicant’s argument that the Netherlands could not rely on the principle of mutual interstate trust in respect of Italy. The Deputy Minister did not find it established that Italy fell short of its international treaty obligations in respect of asylum seekers and refugees, and rejected the applicant’s argument that he risked treatment in breach of Article 3 of the Convention in Italy.

The applicant’s appeal against this decision, filed on 2 June 2010, was rejected on 29 July 2010 by the single-judge chamber (enkelvoudige kamer) of the Regional Court (rechtbank) of The Hague. It rejected, as insufficiently substantiated, the applicant’s claim that the reception of minor aliens in Italy was deficient and also rejected his argument that, in his case, the Italian authorities had fallen short of their international obligations in respect of asylum seekers. It noted inter alia that the applicant had been given the opportunity to apply for asylum in Italy and found that it did not appear that the applicant had no access to adequate legal remedies. As regards the alleged risk of refoulement from Italy to Somalia, the Regional Court considered that he should and could raise this in proceedings in Italy and did not find it established that, where it concerned his possible removal from Italy, he would not be given the possibility to use a legal remedy against removal, including requesting the Court for an interim measure under Rule 39 of the Rules of Court.

On 27 August 2010, the applicant filed an objection (verzet) against this ruling with the Regional Court.

On 6 September 2010, the Minister of Justice notified the applicant of his intention to transfer the applicant to Italy on 22 September 2010 and not later than 1 November 2010.

The application was introduced to the Court on 7 September 2010. On 10 September 2010, the President of the Section decided, under Rule 39 of the Rules of the Court, to indicate to the Netherlands Government that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Court not to remove the applicant to Italy.

On 22 December 2010, following a hearing held on 7 December 2010 and apparently after a decision to accept the applicant’s objection of 27 August 2010, a three-judge chamber (meervoudige kamer) of the Regional Court of The Hague examined and rejected the applicant’s appeal of 2 June 2010. The Regional Court held that the applicant had not demonstrated that Italy would fall short of its obligations under the 1951 Refugee Convention or Article 3 of the Convention. This finding was not altered by the fact that, on 10 September 2010, a Rule 39 indication had been given to the Netherlands as this temporary measure could not be interpreted as an indication about the eventual finding on the merits by the Court.

On 20 January 2011, the applicant filed a further appeal with the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State (Raad van State). On 11 November 2011, the Administrative Jurisdiction Division accepted the further appeal, quashed the judgment of 22 December 2010, accepted the applicant’s appeal against the Deputy Minister’s decision of 2 June 2010, and quashed this decision but ordered that its legal effects were to remain entirely intact. In view of the Court’s judgment of 21 January 2011 in the case of M.S.S. v. Belgium and Greece [GC], no. 30696/09, ECHR 2011, it noted that the applicant had relied from the outset on documents containing general information and found that these had not been examined in the manner as described in the M.S.S. v. Belgium and Greece judgment. As it did, however, not find any reason for reaching a different decision in the applicant’s case, the Administrative Jurisdiction Division decided that the legal consequences of the impugned decision of 2 June 2010 were to remain intact. No further appeal lay against this decision.

On 18 January 2012, the President of the Section decided that information was required from the Italian Government and a number of factual questions were put to the Government of Italy which concerned the applicant’s situation in Italy before his arrival in the Netherlands. The Italian Government submitted their replies on 12 March 2012 and the applicant’s comments in reply were submitted on 13 May 2012. He stated, inter alia, that he had lied about his age at the time of his initial arrival in Italy as well as when he later applied for asylum, fearing that admitting that he was a minor would entail his separation from his countrymen with whom he had arrived in Italy. The applicant denied having left the Bari-Palese centre of his own volition. He was forced to leave this centre because it was about to be closed down. As no subsequent reception facilities were provided to him, he had been forced to live in the streets in horrendous circumstances.

The relevant European, Italian and Netherlands law, instruments, principles and practice in respect of asylum proceedings, reception of asylum seekers and transfers of asylum seekers under the Dublin Regulation have recently been summarised in Tarakhel v. Switzerland [GC], no. 29217/12, §§ 28-48, 4 November 2014; Hussein Diirshi v. the Netherlands and Italy and 3 other applications (dec.), nos. 2314/10, 18324/10, 47851/10 & 51377/10, §§ 98-117, 10 September 2013; Halimi v. Austria and Italy (dec.), no. 53852/11, §§ 21-25 and §§ 29-36, 18 June 2013; Abubeker v. Austria and Italy (dec.), no. 73874/11, §§ 31-34 and §§ 37-41, 18 June 2013; Daybetgova and Magomedova v. Austria (dec.), no. 6198/12, §§ 25 29 and §§ 32-39, 4 June 2013; and Mohammed Hussein v. the Netherlands and Italy (dec.), no. 27725/10, §§ 25-28 and 33-50, 2 April 2013.


Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 2 of Protocol No. 4 - Freedom to leave a country);Violation of Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens-{general} (Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens);No violation of Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens-{general} (Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment;Positive obligations) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment;Positive obligations)

Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The first applicant, Ms Lia Shioshvili, was born in 1977 and lives in Gurjaani (Georgia). She is the mother of the second, third, fourth and fifth applicant, all Georgian nationals and born respectively in 1995, 1997, 2000 and 2004.

During the period from the end of September 2006 to the end of January 2007 identity checks of Georgian nationals residing in Russia were carried out in the streets, markets and other workplaces as well as at their homes. Many were subsequently arrested and taken to police stations. After a period of custody in police stations, they were grouped together and taken by bus to a court, which summarily imposed administrative penalties on them and gave decisions ordering their administrative expulsion from Russian territory. Subsequently, some were taken to detention centres for foreigners where they were detained for varying periods of time, and then taken by bus to various airports in Moscow, and expelled to Georgia by aeroplane. Some of the Georgian nationals against whom expulsion orders were issued left the territory of the Russian Federation by their own means (for further details as to the background of the case see Georgia v. Russia (I), cited above, § 45).

On 29 May 1998 the first applicant, her husband and her two children arrived in the Russian Federation for the first time. At that time there was no visa requirement for Georgian citizens in place. In the subsequent years the first applicant, her husband and the children had been back and forth several times between the Russian Federation and Georgia.

In 2003 the first applicant and her children again entered the territory of the Russian Federation with a visa valid for one month. They settled together with their husband/father in the village of Karinskoye, in the Odintsovski district of Moscow city.

In September 2004 the first applicant gave birth to her fourth child, the fifth applicant. The first applicant did not apply for a birth certificate for the fifth applicant at that time, since she was unlawfully residing in Russia.

At the beginning of October 2006, the applicants moved to the city of Ruza in order to avoid expulsion.

On 18 October 2006 a police officer visited the applicants’ family home in Ruza and requested the first applicant to produce her identity papers. Owing to the absence of visa documents the officer asked all applicants to follow him to the local police station, where an administrative offence report was drawn up. The applicants left the police station after approximately 30 minutes. The police officer informed the first applicant that a court hearing concerning her case would take place soon. He further advised her to apply for a birth certificate for the fifth applicant.

On 25 October 2006 the Georgian Consulate in Moscow issued a temporary birth certificate for the fifth applicant, valid until 14 November 2006.

On 7 November 2006 a hearing before the Ruzskiy District Court of the Moscow Region took place, following which an expulsion decision was issued. The court only ordered the expulsion of the first applicant, even though mentioning in its decision that she was mother to four children. The hearing lasted about ten minutes and despite the first applicant’s limited knowledge of the Russian language, she was not assisted by an interpreter.

On 20 November 2006, after having received the expulsion decision of 7 November 2006 all five applicants left Moscow. Due to suspended air, rail, road, sea and postal communications between the Russian Federation and Georgia, the applicants took the train from Moscow to Baku (Azerbaijan). The first applicant was eight months pregnant at the material time and her four minor children were eleven, nine, six and two years old.

According to the applicants their train was stopped by Russian migration officers on 22 November 2006 at approximately 10.30 pm near the Russian/Azerbaijani border and all Georgian nationals were asked to get off the train with their belongings. The officers collected the applicants’ identity and travel documents and confiscated 400 USD from the first applicant, which allegedly had not been declared. The officers informed all the Georgians including the applicants, that there were various irregularities in their documents and that they could not continue their journey, whereas all nonGeorgians could resume their journey on the train.

The five applicants were then requested to walk with the other Georgian nationals to a bus, which went to Derbent. Two migration officers escorted the group but would not inform them of the authorities’ intention nor where the group was being taken. Due to the cold weather and her advanced pregnancy the walk and the bus ride were particular difficult for the first applicant. In particular, since she had to carry a suitcase and her youngest child. Her oral complaints to the officers about these circumstances were of no avail.

Once the group arrived in Derbent, the migration officers asked the group to accompany them to the migration service office. The first applicant was unable to continue walking and waited outside for two hours with her children. She was worried for the health of her minor children and for the unborn child.

On 23 November 2006, at about 3 am, the group was taken to Derbent train station for the night. They had to pay 500 rubles to the police officers, who guarded them, to be allowed to go to the toilet. No water or food was provided.

At daybreak, the police officers asked the group to go to the migration service office again, where they spent the whole day waiting outside at a temperature of 5o C.

In the evening the first applicant’s health deteriorated, her children were crying and coughing and no shelter, water or food was offered by the authorities. Finally, the group of Georgians rented an unheated, four-room basement flat in Derbent, for which the first applicant had to pay 200 rubles per day for her and the children. Three women and six children from the group of Georgians, including the applicants, settled in one room, which had four beds. The remaining three rooms were occupied by more than 20 Georgian men.

According to the applicants the migration officers regularly visited the flat, but the first applicant’s complaints about her worsening health were to no avail.

On 29 November 2006 the first applicant tried to cross the Russian/Azerbaijani border with her three eldest children, the second, third and fourth applicant. The fifth applicant stayed with the other Georgians, as her birth certificate had expired on 14 November 2006. However, they were stopped by the customs officers who indicated that the court’s expulsion decision only concerned the first applicant and not her children. They were subsequently sent back to Derbent.

The first applicant’s health worsened, she suffered from a cold and had a fever, became depressed and had repeated asthma attacks.

On 3 and 4 December 2006, after having gone back and forth to the migration service office, and with the help of an employee from the consulate service of the Georgian Embassy in Moscow, the first applicant finally obtained transit visa for her children and all other necessary documents, so that all five applicants could leave for Georgia.

Several national broadcasting television companies reported on the Georgians’ situation in Derbent on a daily basis between 1 and 7 December 2006.

According to the Government the border control services, which conducted immigration controls in the trains going to the Republic of Azerbaijan, did not bring any Georgian nationals to the migration services on 22 or 23 November 2006. However, on 23 November 2006 the name of the fifth applicant was registered by the Line Division of the Interior at Derbent station in the register of passengers put off trains. She was, however, registered as a Russian national. The other four applicants were not registered in the aforementioned register.

The Government further explained that according to the normal procedure persons, who are put off international trains, are invited to the Police Line Division to include their personal data in the register. These persons, however, are neither coerced to do so, nor accompanied on their route to the station, nor passed over to the migration service department.

Further investigations by the Russian authorities revealed, according to the Government, that the first applicant temporarily resided in a house in Derbent with the consent of the house owners. According to the testimony of the house owners the first applicant lived there free of charge, was not accompanied by children and no police officer or other official visited the first applicant in the house.

On 5 December 2006 a group of 30 Georgians, including the applicants, travelled to the Russian/Azerbaijani border in two buses that they had hired. At the border the customs officers checked the documents for several hours, while the applicants had to wait standing outside.

With another bus the group travelled through the city of Baku to the Azerbaijani/Georgian border. The last 5 kilometres to the border the applicants had to walk, as the bus driver had asked them to get off the bus: The first applicant and her youngest child, the fifth applicant, were able to take a taxi to the border, but the three other applicants had to continue walking; the temperature was below 3o C.

After having arrived in Georgia, the first applicant’s health was particularly bad. She suffered from a severe cough and fever, her right leg had grown numb and her general condition was extremely weak. Owing to her financial situation and the lack of health insurance the applicant did not visit a hospital right away. On 11 December 2006 a pregnancy examination showed that the pregnancy was progressing and that the fetus was well.

On 12 December 2006, the first applicant’s health worsened, she had an asthma attack and severe abdominal pain.

On 14 December 2006, the first applicant was taken to hospital where she gave birth to a stillborn child the next day.

According to the death certificate issued by the Ministry of Health and Social Affairs on 15 December 2006, the child died as a result of “intranatal hipoqsy” caused by a viral infection. The birth history no 364/12, issued on the same date, stated that “the stress experienced by the pregnant mother during the expulsion could be considered a reason for the child’s death”.

During the following months, the first applicant suffered from severe depression and panic attacks. Furthermore, the fourth applicant developed a very bad cough and caught pneumonia. The fifth applicant, the first applicant’s youngest child, was deeply affected psychologically by the expulsion: she was constantly crying and afraid of other people and diagnosed with “behavioral disorder”.

On 23 July 2008, the first applicant lodged a complaint with the General Prosecutor’s office of the Russian Federation. She directly mentioned violations of Articles 3 and 14 of the Convention and requested a thorough investigation and the punishment of those responsible.

On 9 October 2008, the first applicant’s representative received an answer, informing him that the complaint had been forwarded to the Prosecutor of Derbent and that he would be notified about further procedural actions taken in this respect.

However, he received no further information from the Russian authorities.

The Court observes that it is confronted with a dispute over the events starting from 22/23 November 2006 and reiterates that the proceedings before the Court are adversarial in nature. It is therefore for the parties to substantiate their factual arguments by providing the Court with the necessary evidence. Whereas the Court is responsible for establishing the facts, it is up to the parties to provide active assistance by supplying it with all the relevant information (see Lisnyy and others v. Ukraine and Russia (dec.), nos. 5355/15, 44913/15, 50853/15, § 25, 5 July 2016, with further references).

The Court must therefore reach its decision on the basis of the evidence submitted by the parties. In the proceedings before it, there are no procedural barriers to the admissibility of evidence or predetermined formulae for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005VII).

The Court notes that the applicants submitted documents regarding their medical history and confirming the death of the first applicant’s unborn child. In relation to the events in question they provided copies of their passports and of the train tickets and records from the before mentioned television reports (see paragraph 29 above). In addition they submitted the complaint to the General Prosecutor’s office as well as its reply.

The Government provided the Court with the expulsion decision of the Ruzskiy District Court of the Moscow and the correlating administrative offence report.

In regards to the parties’ submissions and the provided documents the Court notes the following: The Government confirmed that the fifth applicant, a two year old child, was put off the train and registered by the Line Division of the Interior at Derbent station. Having particular regard to the age of the fifth applicant, this fact allows the inference that the other applicants accompanying the fifth applicant were also put off the train but not registered by the Line Division of the Interior. This inference is further corroborated by the television reports, showing the applicants in Derbent, and the applicants’ detailed submission to the Court as well as to the Russian General Prosecutor’s office.

In sum the Court finds it established that the applicants’ train travel from Moscow to Baku was interrupted by Russian authorities, that the applicants were put off the train in the night of 22/23 November 2006 and that they awaited the issuance of transit visa in Derbent until the 4 December 2006.