No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review)

Armen Harutyunyan;Carlo Ranzoni;Johannes Silvis;Luis López Guerra;Mārtiņš Mits

The applicant was born in 1959 and resides in Riga.

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

The applicant was the chairman of the State-owned joint stock company L. On 14 June 2010 the Bureau for the Prevention and Combating of Corruption (Korupcijas novēršanas un apkarošanas birojs) opened a criminal investigation into suspected unlawful activity by the company’s officials.

On 15 June 2010 at 7 a.m. investigator A.R. ordered a search of the applicant’s apartment. It was possible that he was involved in the offences under investigation, and there was reason to believe that unlawfully obtained money and some other items were located there.

Between 7.40 and 10.40 a.m. officers from the Bureau carried out the search. The applicant was allowed to telephone his lawyer who, according to him, arrived at 9.38 a.m.

The applicant submitted that during the search he had not been free to leave the apartment.

The search record, however, stated that he and his wife had been informed of their right to remain present and make remarks about the investigators’ actions. They had attended the search. His lawyer had noted down in the record that the decision authorising the search did not comply with certain provisions of the Criminal Procedure Law (Kriminālprocesa likums). It was signed by all three of them.

At about 11 a.m. the applicant telephoned a security guard at company L. to ask that his driver place his briefcase in a car.

At 11.15 a.m. the officers informed the applicant he was under arrest.

Between 11.21 and 11.34 a.m. investigator G.B. drew up an arrest record specifying that the applicant had been arrested at 11.15 a.m. on suspicion of abuse of office with intent to obtain a material benefit and assisting money laundering, and that a witness had identified him as a perpetrator. He and his lawyer signed the record, noting also that his arrest was unjustified.

At 6.30 p.m. the applicant was interviewed.

The investigating authorities performed thirty searches in total that day and, according to the applicant, arrested seven other individuals. The Government submitted, without indicating when, that nine individuals had been arrested. They further drew attention to the large scale of the crimes under investigation and various investigative actions.

On 17 June 2010 at about 9 a.m. A.R. served on the applicant a decision declaring him a suspect and an application addressed to the Riga City Centre District Court (Rīgas pilsētas Centra rajona tiesa) for his pre-trial detention. His lawyer was present at the time.

According to A.R. there was a strong suspicion that, between 1 January 2006 and 15 June 2010 the applicant, in his position as chairman of company L., had secured decisions favourable to companies ANS and GGSMT for the reconstruction of hydro units and regarding a thermal power plant project. A sum of no less than 1,130,000 euros (EUR) obtained as a result of this unlawful activity had allegedly been laundered through companies registered in Latvia and abroad, by way of property transactions and investments in companies owned by the applicant and K.M. By doing so, the applicant had allegedly committed the offences of abuse of office with intent to obtain a material benefit and assisting money laundering.

The applicant, referring to his lawyer’s handwritten application, contended that at 9.20 a.m. that morning his lawyer had applied to A.R. for leave to consult, prior to the detention hearing, the documents in support of the application for detention. She had refused the request. The Government, however, submitted that neither the applicant nor his lawyer had made any complaints about access to the case file.

Between 10.04 a.m. and 1.30 p.m. an investigating judge of the Riga City Centre District Court held the hearing.

The applicant’s lawyer requested A.R. to provide evidence in support of the application for detention. She refused to do so and the hearing continued.

The lawyer submitted that the officers had controlled the applicant’s movements in the apartment from the start of the search. He had therefore requested them to draw up a record of his client’s arrest. In this connection, he pointed out that no one could be held in custody for more than forty-eight hours.

The investigating judge granted A.R.’s application and ordered the applicant’s detention pending trial. With regard to the suspicion that he had committed the offences in question, the judge reasoned as follows:

“...search records, inspection records, statements [and] other material of the criminal proceedings give rise to grounds for suspicion that [the applicant] has committed the offences in relation to which the criminal proceedings have been instituted...”

As regards access to the case file, the judge stated:

“Section 375(1) of the Criminal Procedure Law provides that case material is a secret of the investigation ... material and evidence that justify [the applicant’s] detention contain secret information ... [the investigator] has the right to disclose this material ... only to officials involved in the criminal proceedings.”

On 21 June 2010 the applicant’s lawyer lodged an appeal against this decision. On 5 July 2010 he submitted his arguments in support thereof.

He requested the Riga Regional Court (Rīgas apgabaltiesa) to grant him access to the case file so as to be able to effectively challenge the applicant’s detention. It did not grant the request.

On 6 July 2010 an appeal hearing was held. The lawyer maintained that he had the right to access the documents upon which the applicant’s detention had been based.

The Regional Court dismissed the appeal and upheld the original ruling. With regard to the suspicion that the applicant had committed the offences in question, the judge stated:

“The court has had sufficient time to examine the case material furnished to it. The court, like [the lower court], concludes that information has been obtained ... giving rise to grounds for suspicion that [the applicant] has committed the accused offences. The court reached that conclusion having examined ... records of investigative actions [and] witness statements, and with special attention paid to information obtained by ... special investigative actions ... carried out long before the criminal proceedings were instituted.”

As regards access to the case file, the judge reasoned as follows:

“An official in charge of criminal proceedings presents case material to an investigating or higher judge for them to assess grounds of pre-trial detention. An investigating or higher judge examines the case material ... [which] is kept secret from the parties not conducting the proceedings.”

No appeal lay against this decision.

On 18 August 2010 the investigating judge released the applicant on bail.

On 30 June 2010 the applicant’s lawyer lodged a complaint regarding his client’s arrest with the Office of the Prosecutor General.

On 8 July 2010 prosecutor V.J. dismissed it. Neither the applicant nor his lawyer had noted in the search record that the applicant’s freedom of movement or his liberty had been restricted during the search; they had not noted anything in the arrest record to say that he had been deprived of his liberty before this either. The applicant’s lawyer had not specified the manner in which his client had been deprived of his liberty. It could not therefore be established that he had been deprived of his liberty during the search.

By a final decision of 11 October 2010 chief prosecutor A.K. dismissed the complaint.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)

Carlo Ranzoni;Ganna Yudkivska;Marko Bošnjak;Paulo Pinto De Albuquerque;Georges Ravarani

The applicant was born in 1986 and lives in Gyál.

On 26 February 2011 the Pest Central District Court remanded the applicant in custody under Article 129 § 2 (b) and (c) of the Code of Criminal Procedure, on suspicion of aggravated murder within the meaning of Article 166 § 1 of the Criminal Code. It summarised the suspicions against him, referred to police reports, an autopsy report, the victim’s medical documents, examinations of various exhibits and witness testimonies, and concluded that there was a reasonable suspicion that the applicant had poisoned the victim on 8 April 2010. The court found it established that there was a need for the applicant’s detention, because otherwise he would tamper with evidence by exerting pressure on the witnesses, as evidenced by his previous conduct whereby he had threatened them. It dismissed an argument by the applicant that he had committed the criminal offence more than a year before, thus the prosecutor’s office had erred in stating that he could tamper with evidence or influence witnesses. The court also held that the applicant’s “unclear” financial situation and the severity of the possible punishment demonstrated that there was a risk of his absconding. The court gave no consideration to an application by the applicant’s lawyer for the applicant to be placed under house arrest.

An appeal against that decision was dismissed on 3 March 2011.

On 21 March 2011 the Buda Central District Court extended the applicant’s pre-trial detention until 26 May 2011. It noted again that because of the severity of the possible punishment and the fact that the applicant had neither a permanent address nor a regular income, there were grounds to believe that he would abscond. The court held that there was a risk of his interfering with the investigation if he were to threaten the witnesses or destroy physical evidence.

The applicant appealed, arguing that the conditions for pre-trial detention had not been fulfilled because there was no risk of his absconding or influencing witnesses. He argued that his well-established personal circumstances – the fact that he lived with his common-law wife and two children, his parents, and his brother’s family – and the fact that he had no criminal record excluded the risk of his absconding. He further submitted that he had cooperated with the investigating authorities. Alternatively, the applicant requested that he be released and placed under house arrest.

The first-instance decision was upheld on appeal by the Budapest Regional Court on 15 April 2011, and the court’s reasoning was that the public interest in the applicant being detained was more important than his interest in his right to liberty being respected.

On 23 May 2011 the Buda Central District Court extended the applicant’s detention until 26 August 2011. The court maintained its previous reasons justifying the need for his detention. It emphasised that there was a risk of his absconding, owing to the severity of the possible punishment and the fact that he had no declared employment and had previously not been reachable at his permanent address. It added that, if released, the applicant might influence the witnesses or destroy evidence.

On 22 June 2011 the Budapest Regional Court upheld that decision.

On 24 August 2011 the Buda Central District Court extended the applicant’s detention until 26 November 2011 under Article 129 § 2 (b) (risk of absconding) and (c) (risk of collusion) of the Code of Criminal Procedure. As regards the risk of absconding, the court found that although the applicant had previously not been reachable at his permanent address and had only had temporary jobs, his temporary residence had been known and he had no criminal record. However, given the seriousness of the potential punishment and his “unstable” financial circumstances, his presence at the proceedings could only be ensured through the most restrictive measure. As regards the risk of collusion, the court dismissed an argument by the applicant’s lawyer that the prosecution authorities should have questioned all the witnesses by that stage of the proceedings. It held that although the majority of the witnesses had been heard, further questioning could still be necessary.

On 26 August 2011 the Budapest Regional Court upheld the lower court’s decision under Article 129 § 2 (b) and (c) of the Code of Criminal Procedure.

Subsequently, the applicant’s pre-trial detention was extended on a number of occasions. In particular, on 23 November 2011 the Buda Central District Court extended his detention until 26 February 2012. The court found that he had failed to attach a “hosting declaration” (befogadó nyilatkozat) and a declaration of his host’s financial capacity to his application to be placed under house arrest. According to the court, although the investigation was about to conclude, based on previous witness testimonies, there was a risk that the applicant would intimidate witnesses. It also held that this last reason could justify the applicant being detained until the closure of the investigation. That decision was upheld on appeal by the Budapest Regional Court on 1 December 2011. Although by that time the applicant had submitted a hosting declaration, the appeal court objected to his release for the reason that he had not provided a declaration of his host’s financial capacity.

Furthermore, on 24 February 2012 the Budapest High Court held that the unclarified financial situation of the applicant and the seriousness of the crime substantiated the risk of his absconding. It also found, without giving further reasoning, that there were still grounds to believe that at that stage of the proceedings the applicant would influence the witnesses. In an appeal, the applicant argued that the investigating authorities had implemented no procedural measures, the proceedings had been unreasonably lengthy, and previously he had always been reachable at his temporary residence. As regards the risk of his influencing witnesses, the applicant submitted that no such risk could be established two years after the alleged criminal offence. On 8 March 2012 the Budapest Court of Appeal dismissed the applicant’s appeal, stating that the investigation was being conducted in a timely manner and witness testimonies had previously evidenced that the applicant had tried to exert pressure on the witnesses.

On 25 April 2012 the applicant’s pre-trial detention was extended by the Budapest High Court until 26 June 2012. The court maintained that, under Article 129 § 2 (b) of the Code of Criminal Procedure, his detention was still necessary because of the risk of his absconding. It considered that the applicant had no “financial or essential” ties counterbalancing the risk of him escaping an eventual serious punishment. Although he had family ties, a child who was a minor, and a relative willing to give assurances to provide for him if he were released, given the seriousness of the charges, the gravity of the possible punishment and his unstable financial circumstances, there was a real risk that he would abscond. However, the court did not find that the risk of collusion (Article 129 § 2 (c) of the Code of Criminal Procedure) was substantiated, since there was no way to influence any of the investigative measures which the prosecution had relied on. In particular, the witness who the investigating authorities still intended to hear was unlikely to testify, given the fact that he was ill and unreachable. The court also considered that although it was likely that the applicant’s acquaintances and relatives had tried to influence witnesses in the two years following the commission of the crime, there was no reliable information that this had actually taken place, and a hypothetical risk of further attempts to do so could not substantiate the risk of collusion.

That decision was upheld on appeal on 7 May 2012.

On 22 June 2012 the applicant’s pre-trial detention was extended until 26 August 2012. The court agreed with the applicant’s argument that his unsettled personal circumstances could not be relied on to justify his detention after the passing of a lengthy period of time following his arrest. It nonetheless held that, in the absence of any financial ties, his family ties could not counterbalance the risk of his absconding, also having regard to the severity to the potential punishment.

That decision was upheld on appeal by the Budapest Court of Appeal on 28 June 2012, and an appeal by the applicant to the effect that less restrictive measures could be applied in his case was dismissed.

The Budapest High Court extended the applicant’s pre-trial detention on 21 August 2012, reiterating the same arguments as before. It dismissed the applicant’s arguments that no investigative measure had been implemented for a considerable period of time. It also found that the hosting declaration of the applicant’s family member, the fact that he was raising a child who was a minor, and the fact that his legal residence had also been clarified were irrelevant, and did not diminish the risk of his absconding. The second-instance court upheld the decision on 24 August 2012.

On 24 October 2012 the applicant’s pre-trial detention was extended again for a month under Article 129 § 2 (b) of the Code of Criminal Procedure. However, the Budapest High Court expressed doubts as to whether there was enough evidence to conclude that there was a reasonable suspicion that the applicant had committed the crime. It dismissed an argument by the prosecutor’s office that the applicant would hinder the investigation. It considered that, irrespective of the seriousness of the charges, it appeared that there was less risk of his absconding, since he was raising two children who were minors and he had no criminal record. On appeal, the Budapest Court of Appeal upheld the first-instance judgment but extended the applicant’s detention by two months.

On 21 December 2012 the applicant’s detention was extended; the Budapest High Court again referred to the fact that, at the time of his arrest, the applicant had been unreachable at his permanent address and had been earning a living from temporary jobs, which, taken together with the severity of the potential punishment, substantiated the risk of his absconding. The decision was upheld on appeal on 10 January 2013.

On 22 February 2013 the Budapest High Court released the applicant from pre-trial detention and placed him on bail under house arrest. According to that decision, besides the suspicion against the applicant, the only grounds for restricting his liberty were the risk of his absconding, given the gravity of the offence, and this in itself could not justify his continued pre-trial detention. On appeal, the Budapest Court of Appeal reversed the first-instance decision and placed the applicant in detention on 28 March 2013. It noted that, given the seriousness of the offence, there was a danger of his absconding, irrespective of his family ties.

On 23 April 2013 the Budapest High Court released the applicant from detention upon his giving an undertaking not to leave his place of residence. Relying on the Court’s case-law, the High Court found that pretrial detention could only serve as a measure of last resort, and the applicant’s continued detention would only serve as an anticipated punishment. The decision was overturned by the Budapest Court of Appeal on 26 April 2016, and the applicant was placed in detention for the same reasons as those given before.

On 17 June 2013 the Budapest Chief Public Prosecutor’s Office preferred a bill of indictment.

On 25 June 2013 the Budapest High Court extended the applicant’s detention until the date of the first-instance court’s judgment, under Article 129 § 2 (b) of the Code of Criminal Procedure (risk of absconding), for essentially the same reasons as those given before.

On 28 January the applicant applied for release, but the application was dismissed on 18 February by the Budapest High Court on the grounds that, given the gravity of the offence and the complexity of the case, pretrial detention did not constitute an anticipated punishment. That decision was upheld on appeal by the Budapest Court of Appeal on 18 February 2014. A further application by the applicant of 18 April 2014 was dismissed on 8 April 2014 (the dismissal was upheld by the second-instance court on 24 April 2014) on the grounds that the applicant had not relied on new circumstances warranting his release.

The applicant’s detention was reviewed on 16 July 2014 by the Budapest Court of Appeal. It held that the gravity of the offence, the applicant’s lack of financial resources and essential ties, and the fact that he had only notified the authorities of his place of residence once he had been placed in detention substantiated the risk of his absconding.

On appeal, that decision was upheld by the Kúria on 24 September 2014, which endorsed the reasons given by the lower court. The Kúria also found that the applicant’s pre-trial detention was both necessary and proportionate, and no less restrictive measure would be sufficient to ensure the purpose of the criminal proceedings.

On 29 October 2014 the applicant was found guilty of aggravated murder and sentenced to eighteen years’ imprisonment by the Budapest High Court.


CASE OF DAMJANOVIĆ AND EUROMAG D.O.O. v. BOSNIA AND HERZEGOVINA

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

The first applicant was born in 1955 and lives in Belgrade, Serbia. The second applicant is a privately owned company, founded by the first applicant in 1990, with its registered seat in Ilijaš - Podlugovi, Bosnia and Herzegovina.

On 19 December 2001 the second applicant requested a licence to build a petrol station on the main highway in Bosnia and Herzegovina.

On 21 October 2002 the Federal Road Directorate of Bosnia and Herzegovina (“the Directorate”) rejected the request. The second applicant appealed on 31 October 2002.

On 28 February 2003 the Federal Ministry upheld that decision.

On 28 March 2003 the second applicant initiated proceedings for judicial review before the Supreme Court of the Federation of Bosnia and Herzegovina (“the Supreme Court”).

On 25 August 2005 and 24 August 2006 the second applicant urged the Supreme Court to expedite the proceedings.

On 22 November 2006 the Supreme Court quashed the decisions of 21 October 2002 and 28 February 2003 (see paragraphs 7-8 above) on procedural grounds, and remitted the case to the Directorate.

On 9 May 2007 the second applicant informed the Supreme Court that the decision of 22 November 2006 had not been enforced yet.

On 16 August 2007 the Directorate rejected the second applicant’s request. On 30 August 2007 the second applicant appealed.

On 8 November 2007 the second applicant complained to the Administrative Inspectorate of the Federal Ministry of Justice about the inaction of the administration.

On 12 November 2007 the Federal Ministry upheld the decision of 16 August 2007 (see paragraph 13 above). The decision was served on the second applicant on 18 April 2008.

On 30 May 2008 the second applicant initiated proceedings for judicial review with the Supreme Court seeking it to quash the decisions of 16 August 2007 and 12 November 2007 (see paragraphs 13 and 15 above). On 31 August 2009 the Supreme Court referred the claim to the Mostar Cantonal Court, as the competent court.

On 27 November 2009 the Mostar Cantonal Court rejected the application for judicial review.

On 6 January 2010 the applicant submitted a request for an extraordinary review of the decision of 27 November 2009 with the Supreme Court, which request was rejected as unfounded on 12 May 2010. That decision was served on the second applicant on 9 July 2010.

On 6 September 2010 the second applicant lodged a constitutional appeal before the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) complaining, notably, about the length of the above administrative proceedings.

On 23 December 2013 the Constitutional Court rejected the appeal as unfounded. It noted that the relevant proceedings had lasted eight years and five months in total, that seven different decisions had been rendered by the competent authorities and that, therefore, the length of the proceedings had not been excessive.


Preliminary objection dismissed (Article 37-1 - Striking out applications);Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Stand for election);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in 1952 and lives in Sumgayit.

The applicant nominated himself to stand as an independent candidate in the parliamentary elections of 7 November 2010 and applied for registration as a candidate in the single-mandate Sumgayit-Absheron Electoral Constituency No. 44.

As the Electoral Code required that each nomination as a candidate for parliamentary elections be supported by a minimum of 450 voters, on 6 October 2010 the applicant submitted to the Constituency Electoral Commission (“the ConEC”) twelve signature sheets containing 600 voter signatures collected in support of his candidacy.

Before the ConEC’s decision on the question of the applicant’s registration as a candidate, the accuracy of the signature sheets and other registration documents submitted by the applicant were to be first examined by a special working group (işçi qrupu) established by the ConEC.

On 11 October 2010, the applicant was invited to the ConEC. He was informed that the validity of supporting signatures submitted by him had already been examined by the ConEC working group and that, based on the results of that examination, the ConEC had held a hearing on whether to register him as a candidate. According to the applicant, he orally protested to the fact that he had not been informed of the time of the examination by the working group of his signature sheets and that the ConEC had taken a decision without his participation.

On 12 October 2010 the applicant was informed that by a decision of 11 October 2010 the ConEC had refused the applicant’s request for registration as a candidate. The ConEC found that, according to the opinion of the working group, a number of submitted supporting signatures were invalid, and that the number of the remaining valid signatures was below 450. According to the ConEC decision, the working group had relied on opinions of two of its experts. In particular, expert M.M. found that 172 signatures were not authentic, because they had been executed repeatedly by the same persons who had already signed the signature sheets. Expert A.V. found that a total of 243 signatures were invalid. No more detail was given in the ConEC decision as for the reasons for the invalidation of those signatures.

The applicant was provided with a copy of the ConEC decision on 12 October 2010. However, the relevant expert opinions were not made available to him until a further written request by the applicant to this effect.

According to the applicant, the expert opinion by M.M. was undated, while the expert opinion by A.V. was dated 11 October 2010. No copies of those expert opinions were submitted to the Court either by the applicant or the Government. However, it can be discerned from other documents in the case file that, according to those expert opinions, the following grounds were given for invalidation of some of the signatures: (a) 86 groups of signatures, consisting of a total of 258 signatures, had been “probably (ehtimal ki) executed by the same person in each group”; for these reasons, 86 of those signatures were deemed valid, while the remaining 172 were considered invalid; (b) eight signatures were found to be invalid because the information on voters’ addresses was incomplete (only the city of residence was mentioned); and (c) 60 signatures were considered invalid because the information on the relevant voters’ addresses omitted the city of residence (all those voters lived in Sumgayit).

On 14 October 2010 the applicant lodged a complaint with the Central Electoral Commission (“the CEC”) against the ConEC decision to refuse registration. He complained, inter alia, of the following:

(a) contrary to the requirements of Article 59.3 of the Electoral Code, the applicant had not been invited to participate in the process of examination of the signature sheets by the ConEC working group and, thus, deprived of the right to give necessary explanations to the experts;

(b) contrary to the requirements of Article 59.13 of the Electoral Code, he had not been provided with a copy of the record on the results of the examination of the signature sheets at least twenty-four hours prior to the ConEC meeting on the applicant’s registration;

(c) the applicant’s presence at the ConEC meeting of 11 October 2010 had not been ensured; and

(d) the findings of the ConEC working group that such a large number of signatures were invalid were factually wrong, arbitrary and unjustifiably formalistic. In particular, the finding that 172 signatures were “executed by the same person” was accepted as an established fact merely on the basis of an indication of such probability by the expert, in the absence of any further factual verification. Furthermore, invalidation of the remaining signatures owing to incomplete information on the voters’ addresses had been wrong, because such information was not “incorrect” within the meaning of Article 59.7.1 of the Electoral Code (on which the ConEC had relied), but simply incomplete and could, therefore, be rectified if the applicant had been given an opportunity to do so as required by the Electoral Code. In the applicant’s view, taking into account the territorial location of the constituency, it should have been clear to the ConEC that the relevant voters resided in Sumgayit, even though they had not mentioned the city of residence on the signature sheets.

Enclosed with his complaint to the CEC, the applicant submitted written statements by ninety-one voters, whose signatures had been declared invalid, affirming the authenticity of their signatures. He also submitted photocopies of ID cards of several voters in order to clarify the situation with their residence addresses. However, according to the applicant, those documents were not taken into consideration by the CEC.

The CEC conducted another examination of the signature sheets by members of its own working group. The applicant was not invited to participate in this process. According to the working group’s minutes of 15 October 2010 and two expert opinions, a total of 178 signatures were considered to be invalid. In particular, expert A.A. found that three signatures were invalid because they belonged to persons with no right to vote (minors under eighteen years of age) and that three other signatures had been executed by persons whose identification document number was stated incorrectly. Expert U.A. found that “45 groups of signatures, consisting of a total of 217 signatures, had been probably executed by the same person in each group” (“217 ədəd imza 45 qrup olmaqla öz aralarında ehtimal ki, eyni şəxs tərəfindən icra olunmuşdur”). This meant that one signature in each such group should be considered valid (a total of 45), while the remainder should be considered invalid (a total of 172).

The applicant was not invited to the CEC meeting dealing with his complaint against the ConEC decision of 11 October 2010.

By a decision of 17 October 2010 the CEC dismissed the applicant’s complaint and upheld the ConEC decision of 11 October 2010. It found that, based on the findings of the CEC’s own working group, 178 out of 600 signatures submitted by the applicant were invalid and that the remaining number of 422 valid signatures was below the minimum required by law.

The applicant was given copies of the CEC decision and the relevant working group documents on 18 October 2010.

On 20 October 2010 the applicant lodged an appeal against the CEC decision with the Baku Court of Appeal. He reiterated his complaints made before the CEC concerning the ConEC decision and procedures. Moreover, he raised, inter alia, the following complaints:

(a) contrary to the requirements of the electoral law, the CEC failed to notify him of its meetings and to ensure his presence during the examination of the signature sheets and the examination of his complaint;

(b) the relevant CEC documents had been made available to him in a belated manner, which was contrary to the requirements of the electoral law and had deprived him of the opportunity to challenge the decisions of the CEC and its working group more effectively;

(c) both electoral commissions’ decisions were based on expert opinions that contained nothing more than conjecture and speculation (that the signatures were “probably” (“ehtimal ki”) falsified), instead of properly established facts;

(d) the CEC had ignored the written statements by ninety-one voters confirming the authenticity of their invalidated signatures and had failed to take them into account; and

(e) the CEC had failed to provide any reasoning and had not addressed any of the applicant’s arguments in its decision.

By a judgment of 23 October 2010 the Baku Court of Appeal dismissed the applicant’s appeal. In its judgment, the court took note of the ConEC and CEC decisions, proceeded to cite a number of provisions of the Electoral Code and the Code of Civil Procedure without explaining their relevance to the facts of the case at hand, did not address any of the applicant’s arguments, and dismissed his appeal as “unsubstantiated” without providing reasons for reaching such a conclusion.

On 30 October 2010 the applicant lodged a further appeal with the Supreme Court, reiterating his previous complaints and arguing that the Baku Court of Appeal had not carried out a fair examination of the case and had delivered an unreasoned judgment.

On 2 November 2010 the Supreme Court dismissed the applicant’s appeal as unsubstantiated, without examining his arguments in detail and finding no grounds for doubting the findings of the electoral commissions and the Court of Appeal.


Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Article 5-1-b - Secure fulfilment of obligation prescribed by law);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in 1966 and lives in Belgorod.

The applicant had a university degree in law; he did not seek admission to the Bar as an advocate (адвокат). He made his living as a registered private entrepreneur providing legal services. He worked for and later managed Vityaz Arbitration Bureau (арбитражное бюро «Витязь»), a private legal entity in the town of Belgorod. In April 2005 the applicant undertook to provide legal services to a private company in relation to administrative-offence proceedings against it. The company issued two originals of an authority form for the applicant.

According to the applicant, one original was inserted in the file of a then pending case before a commercial court; the other one was used in submissions before the Chief Fire Protection Inspector.

In June 2005 criminal proceedings were instituted against the applicant on suspicion of forgery of the administrative-offence record (“the offence record”) in the above case. According to the authorities, the applicant had added a handwritten note to the record which said, “We want counsel to be present during the compiling of the offence record”, and modified the date on which a copy of the record had been handed over to the defence.

Up until 21 June 2005 the official database had Vokzalnaya Street as the applicant’s registered residential address. It appears that before or after that date, the applicant moved from his flat (on Vokzalnaya Street) to reside in his mother’s flat in the same town (on Kostyukova Street). He notified the residence registration office about that change.

The investigator dealing with the case issued a summons (sent to the applicant’s address on Vokzalnaya Street) requiring his attendance at her office on 11 July 2005 in order to carry out investigative measures. On 8 July 2005 a police officer reported that he had not delivered the summons since nobody had answered the door at that address.

On 13 July 2005 the applicant was informed of the decision to institute criminal proceedings against him. On the same date, Investigator T. interviewed the applicant, who added handwritten comments to the interview record. It was mentioned in the interview record that the applicant was (temporarily) residing in Shagarovka village; the address on Vokzalnaya Street was mentioned as his official residence; the record also contained a note of the telephone number provided by the applicant.

Further interviews were scheduled for 15 and 19 July 2005, when the applicant refused the services of a legal-aid lawyer, Y. He also refused to sign an undertaking to appear at subsequent interviews when requested by the investigator.

Subsequently, the case was reassigned. On 12 September 2005 a new investigator in charge of the case made telephone calls to the number which had been previously given by the applicant. The applicant abruptly put an end to the conversations.

On 13 September 2005 the investigator called again and talked to the applicant’s wife, who refused to assist the authorities in delivering the summons to the applicant. However, she clarified that the applicant was residing at his mother’s flat (on Kostyukova Street). According to the Government, this address was different from the one he had previously given to the investigating authority.

On 21 September 2005 the investigator interviewed the applicant’s wife, who stated that the applicant was living on Kostyukova Street and had been residing in Shagarovka during the summer.

On 27 September 2005 the investigator issued a decision, under Article 113 of the Code of Criminal Procedure (“the CCrP”) (see paragraph 50 below), ordering that the applicant be brought before her on 3 October 2005 at 10 a.m. It was noted that the applicant resided at his mother’s address and had previously failed to comply with summonses.

A similar decision was then issued on 3 October 2005, apparently, because the decision of 27 September 2005 had not been enforced.

On 21 October 2005 the chief officer of the investigating authority issued a decision, under Article 210 of the CCrP (see paragraph 52 below), requiring that measures be taken to locate the applicant. The decision read as follows:

“On several occasions the suspect was summoned for the purpose of investigative measures ... but failed to appear, without reference to any valid excuse. The measures for establishing his current whereabouts have not produced any positive results. The investigating authority has reason to consider that the suspect is taking action to flee prosecution ...”

On 25 January 2006 the police talked to the applicant’s mother, who provided information about the applicant’s office address. At around 10.30 a.m. the police arrived there. The applicant was informed that his name was on the list of wanted persons and that he was to follow the police officer in order to be taken before the investigator with a view to enforcing the decision of 21 October 2005.

According to the applicant, despite having requested it, he was not shown any official authorisation for such an order. In reply to his refusal to comply, the officers warned him that they would employ force. Thus, he was compelled to follow them to the police station to be taken before the investigator. The latter explained that she was not in possession of the case file at that time. At the investigator’s request, the applicant gave a written undertaking to appear before her on 6 February 2006. No other investigative measures were taken on 25 January 2006 in relation to the criminal case. The applicant left the Investigations Unit at around 1 p.m.

It is unclear whether the interview on 6 February 2006 took place.

Subsequently, the applicant brought proceedings under Article 125 of the CCrP complaining of having been deprived of his liberty on 25 January 2006 and also about the decision of 21 October 2005. By a judgment of 21 August 2006, the Sverdlovskiy District Court of Belgorod rejected his claim. It held as follows:

“The court dismissed as having no legal basis [the applicant’s] allegation that the circumstances of the case required the drawing up of an arrest record under Article 92 of the CCrP. Such a record ‘may be’ drawn up (that is to say it is not an obligation) if there are grounds cited in Article 91 of the Code ...

Article 92 of the Code contains strict rules concerning arrest and detention of a suspect. Following escorting to the competent official, it is necessary to draw up, within three hours, an arrest record. It should indicate the dates and that notification of the procedural rights has been made. [The applicant] was present in the police station and the Department of the Interior offices for two and a half hours to clarify some details relating to the investigation of the criminal case and to take a decision concerning the pending request regarding [the applicant’s] whereabouts. After this he was free to go. Thus, the court does not accept that the applicant was held within the meaning of Article 91 of the Code.

Therefore, it was not incumbent on the escorting officer or the investigator to provide counsel, to apprise [the applicant] of his rights or to compile an arrest record.

Under Article 5 of the CCrP, arrest is defined as a measure of procedural compulsion used by an enquiring or investigating officer for a period not exceeding forty-eight hours after the actual taking of the person into custody on suspicion of a criminal offence ...

[The arresting officer] was a law-enforcement officer and thus the court has no doubts that his actions concerning [the applicant’s] escorting to the police station and then to the Department of the Interior were within the scope of his functional responsibilities.”

The applicant appealed, arguing as follows. While agreeing with the court that the situation did not fall within the ambit of “escorting” under Article 113 of the CCrP, he insisted that the court, in substance, had denied the fact of his “deprivation of liberty” and had failed to cite another applicable statutory basis for it. In particular, the Police Act could not supply a valid basis since it only concerned escorting for identification purposes. In the applicant’s view, Article 92 was applicable and thus the non-observance of its requirements (namely, the drawing up of an arrest record and notification of procedural rights) disclosed unlawfulness. The reference to three hours for drawing up the record did not imply that there had not been “deprivation of liberty” if a person was held for less than three hours, or that Article 92 of the CCrP would not apply.

On 4 October 2006 the Belgorod Regional Court upheld the judgment in the following terms:

“The available material and testimonies do not disclose that the applicant was restricted in his right to liberty and personal security. The court rightly concluded that the investigator had lawfully issued the decision to determine the applicant’s whereabouts. The police had acted on the basis of the investigator’s decision, the enforcement of which required [the applicant’s] escorting to the police. Thus, the police’s actions could not be declared unlawful ...

[The applicant] was kept in the police station and before the investigator for less than three hours, which means that he was not ‘arrested’ [or] ‘detained’ within the meaning of Article 92 of the CCrP.”

On an unspecified date in February or March 2006, the investigation was suspended. It was resumed on 31 March 2006. The applicant was summoned for an interview with Investigator R. “on 7 March 2006 at 3 p.m”. According to the applicant, he received the summons only on 7 April 2006. It turned out later on that there had been a mistake in the summons: the interview was planned for 7 April 2006.

On 14 April, 23 May and 1 June 2006 the investigator issued orders for the applicant to be taken to the investigating authority (Article 113 of the CCrP). According to the Government, the police did not enforce these orders since the applicant was not present at his residential and office addresses.

On 28 June 2006 Investigator U. ordered that the applicant be brought before him on 5 July 2006 at 11 a.m.

On 1 July 2006 Investigator B. ordered that the applicant be brought before him on 7 August 2006 at 10 a.m. It was indicated that the applicant had previously failed to comply with summonses (on unspecified date(s)), most recently by referring to an illness but failing to submit any related document.

On 27 July 2006 the chief investigating officer came to the applicant’s office and interviewed him. The applicant made a written statement concerning the criminal case. It appears that the investigating officer issued summonses for further interviews to be held on 28 and 31 July 2006.

According to the applicant, on the same day he gave a written note to the officer indicating that he would not be able to attend on account of his state of health. The applicant did not attend the interview on 28 July 2006. It also appears that the applicant did not attend the interview on 31 July 2006.

A further decision to bring the applicant in for interview was issued on 1 November 2006.

On 2 November 2006 Investigator B. issued a decision ordering the authorities to determine the applicant’s whereabouts and suspending the investigation.

A further decision to bring the applicant in for interview was issued on 7 November 2006.

On 30 November 2006 the deputy town prosecutor ordered the resumption of the investigation.

On 22 December 2006 the chief investigating officer issued an order indicating that the applicant had failed on several occasions without a valid excuse to attend interviews with the investigator(s). Thus, he ordered that the applicant be brought before him on 25 December 2006 at 3 p.m.

On 25 December 2006 the police arrived at the applicant’s office at around 2.45 p.m. and compelled him to follow them to the police station instead of the Investigations Department, which was situated elsewhere. At the police station, the applicant was locked in a room and then provided with a copy of the order of 22 December 2006. The applicant was again informed, in the presence of counsel, of his rights and the decision to carry out a forensic examination. The applicant was interviewed and stated that he had received the summons for an interview scheduled in September or October 2006, but could not come on account of his illness and had informed the investigating authority accordingly; he had not submitted any medical certificate because, according to him, “it [had been] his constitutional right not to do so”. It is unclear whether the applicant left the police station at 5 or 7 p.m.

According to the Government (who referred to the police station’s logbook), the applicant was kept in the police station without being locked up between 3 and 4 p.m. and was then taken before the investigator. The Government submit that the applicant was in one of the offices and that the building entrance door was equipped with an electronic lock for security measures.

The applicant brought proceedings under Article 125 of the CCrP complaining about his arrest on 25 December 2006. By a judgment of 15 January 2007, the District Court rejected his claim. The court held that the applicant had not been arrested, only compelled to appear before the investigator. The court also indicated that it was not possible to challenge the police actions under Article 125 of the Code. On 21 February 2007 the Regional Court upheld that judgment.

On 30 May 2007 the authorities discontinued the criminal proceedings against the applicant due to the expiry of the statutory prosecution period. Apparently, on an unspecified date this decision was quashed. On 1 November 2010 the case against the applicant was discontinued due to the absence of corpus delicti. The applicant was informed that he was entitled to claim compensation from the State (Chapter 18 of the CCrP).

It appears that the applicant’s wife was a private entrepreneur and managed the Vityaz Arbitration Bureau. In October 2005 she employed the applicant as a legal consultant. It appears that on an unspecified date he was appointed as the managing director of the firm.

According to the applicant, following a strained situation at home vis-à-vis his mother and wife on account of the pending criminal investigation against him, he temporarily moved into his office, using part of it as a dwelling. The office had electricity and heating facilities; it was accessible between 6 a.m. and 10 p.m. Apparently, the applicant did not notify the investigating authority of this change in his personal situation.

On 13 October 2006 the investigator in charge of the criminal case against the applicant issued a warrant authorising the search of Vityaz’s offices, referring to Article 182 of the CCrP (see paragraph 57 below). The investigator indicated that a forensic examination of the applicant’s handwriting was necessary. For this, it was necessary to seize handwriting samples of the applicant and the original of the authority form issued to him by the client private company (see paragraph 6 above). In the investigator’s view, these documents could be found at the premises of Vityaz Arbitration Bureau.

According to the applicant, on 13 October 2006 several officers, including the investigator, arrived in the office. They allowed the applicant to read the search-and-seizure order. He made no request for a lawyer to be present during the search. The officers then carried out the search in the presence of attesting witnesses and examined the applicant’s medical file and asked him questions about the information contained therein.

The applicant sought judicial review of the search-and-seizure order and the manner in which it was implemented.

By a judgment of 23 October 2006 the Sverdlovskiy District Court of Belgorod dismissed the claims. The court held as follows:

“Under Article 50 of the CCrP a suspect, accused or another person on his or her instructions may retain counsel. When requested, an [officer involved in a preinvestigation inquiry], investigator, prosecutor or a court shall appoint counsel.

Before the beginning of the search [the applicant] made no request for counsel while having had access to the search order ...

Under [Articles 38 and 182 of the CCrP] it is within the investigator’s purview to decide whether a search is opportune and, if so, to issue the relevant order, except for a search of residential premises. It is also up to the investigator to decide which documents or other evidence are important for the case ...

[The applicant’s] allegation that the office ... was his ‘abode’ is unsubstantiated, within the meaning of Article 139 of the CCrP ... Thus there was no legal requirement to obtain a court order for the search.”

On 29 November 2006, following an appeal by the applicant, the Belgorod Regional Court upheld the judgment, endorsing its reasoning.


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

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

The applicants complained that they had been unfairly convicted of drug offences following entrapment by State agents.


Remainder inadmissible;No violation of Article 14+P1-3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 of Protocol No. 1 - Right to free elections-{general};Stand for election)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary

The applicant party was founded in 2007 and is based in Aurich. It claims to represent the interests of the Frisian minority in Germany but limits its political activities to the Land of Lower Saxony (Niedersachsen) where the East Frisians traditionally settle. The applicant party estimates the number of people of Frisian origin within the territory of Lower Saxony at about 100,000 out of the total population of approximately 7,900,000. The Frisians have their own language and cultural identity which is similar among the West Frisians in the Netherlands and the North Frisians in the Land of Schleswig-Holstein, while the East Frisians in Lower Saxony have mainly stopped speaking their language.

Under the Electoral Law of Lower Saxony (Niedersächsisches Landeswahlgesetz, see relevant domestic law, paragraph 16 below), parliamentary seats – apart from those seats attributed to the candidates obtaining the majority of the votes in their constituency – are allocated under the D’Hondt system of proportional representation. Under section 33 § 3 of the Electoral Law, seats are attributed only to parties which obtain a minimum threshold of 5% of the total of votes validly cast. This threshold is also included in Article 8 § 3 of the Lower Saxonian Constitution (see relevant domestic law, paragraph 15 below).

By letter of 27 September 2007 to the Prime Minister of Lower Saxony and by letter of 17 December 2007 to the President of the Lower Saxony Parliament, the applicant party asked to be granted an exemption from the minimum threshold for the upcoming elections. The request was refused.

In the elections of 27 January 2008, the applicant party attained an overall total of 10,069 votes, amounting to approximately 0.3% of all votes validly cast. Irrespective of the minimum threshold, the number of votes received would not have been sufficient to obtain a parliamentary mandate.

On 6 March 2008 the applicant party lodged an objection against the validity of the election result. The applicant party submitted, in particular, that it represented the interests of the Frisian people residing in Lower Saxony. The Frisian people formed a national minority within the meaning of the Framework Convention for the Protection of National Minorities (“the Framework Convention”, ETS No. 157, see Council of Europe documents, paragraphs 20-23 below). The applicant party complained, in particular, that the minimum threshold resulted in their factual exclusion from participating in the parliamentary elections and amounted to discriminatory treatment visàvis other small political parties which were, at least theoretically, capable of reaching that threshold. The applicant party further relied on Article 14 in conjunction with Article 3 of Protocol No. 1 to the Convention.

On 9 May 2008, the Election Supervisor of Lower Saxony (Landeswahlleiter), jointly with the Ministry of the Interior, submitted written comments on the objection. They considered, firstly, that it was doubtful whether the group of Frisians qualified as a national minority. Under the declaration submitted by the German Government when signing the Framework Convention, only the Danes of German citizenship and members of the Sorbian people with German citizenship were recognised as national minorities in the Federal Republic of Germany. Conversely, the declaration merely stated that the Framework Convention also applied to the ethnic group of Frisians with German citizenship. It was thus clear from the wording of the declaration that the Frisians did not qualify as a national minority. Even assuming that the ethnic group of Frisians had the status of a national minority, this did not necessarily entail the obligation to exempt the applicant party from obtaining the minimum threshold of 5% of the votes. There was no such obligation under the Basic Law or under the constitution of the Land of Lower Saxony or under the Framework Convention. Neither could such an obligation be derived from section 6 § 6 of the Federal Electoral Law (Bundeswahlgesetz), as the Länder were competent to pass their own electoral laws without being bound by the Federal Law. The privileges enjoyed by the Danish Minority Party in the Land of Schleswig-Holstein did not allow any further conclusions, as the protection and promotion of the Danish minority was prescribed by the constitution of the respective Land. Finally, and again assuming the minority status of the ethnic group of Frisians, it was questionable whether the applicant party would qualify as the party of the Frisian national minority. The assessment of this question did not only depend on the party’s vision of itself, but on an overall assessment of all factual and legal circumstances.

On 2 February 2009 the Parliamentary Committee on the Scrutiny of Elections (Wahlprüfungsausschuss) held a public hearing on the applicant party’s objection.

On 19 February 2009 the Lower Saxony Parliament rejected the applicant party’s objection as being unfounded. Relying on the submissions made by the Election Supervisor jointly with the Ministry of the Interior, the Parliament considered that an obligation to exempt the applicant party from the minimum threshold could neither be derived from the Constitution of Lower Saxony, nor from Federal or International Law. It followed that the applicant’s objection was unfounded.

On 6 April 2009 the applicant lodged a complaint with the Constitutional Court of Lower Saxony (Niedersächsischer Staatsgerichtshof). The applicant party requested the Constitutional Court to quash the parliamentary decision of 19 February 2009 and to declare the result of the elections held on 27 January 2008 invalid; or, alternatively, to declare section 33 § 3 of the Electoral Law unconstitutional.

On 30 April 2010 the Constitutional Court of Lower Saxony rejected the applicant party’s complaint as being unfounded. The Constitutional Court observed, at the outset, that the relevant provisions did not allow for an exemption from the minimum threshold for national minorities. The Constitutional Court further considered that the minimum threshold interfered with the principle of equality of the vote. This interference was justified because it pursued the legitimate aim of safeguarding the functioning of the elected parliament. Parliamentary work within a democracy necessitated that the parliaments remain able to take decisions and that they were not inhibited in their work by the participation of splinter parties. The Constitutional Court further referred to the case-law of the Federal Constitutional Court regarding the 5% minimum threshold. There was no obligation under the Basic Law to exempt parties of national minorities from the 5% threshold. It was true that certain electoral laws provided for such exemptions. This was, in particular, the case with the Federal Electoral Law, which provided an exemption for parties of national minorities, and with the Electoral Laws of the Länder of Brandenburg and Schleswig-Holstein, providing for exemptions for the parties of the Sorbian and the Danish minorities, respectively. However, both Länder provided special rights for national minorities in their respective constitutions. No such provisions could be found in the Constitution of the Land of Lower Saxony. The Federal Constitutional Court had declared the respective provision in the Federal Electoral Law constitutional, even though the Basic Law did not contain special rights for national minorities. However, the Federal Constitutional Court had also emphasised that the legislator enjoyed a margin of appreciation in this respect. The Lower Saxony Constitutional Court finally considered that the alleged right could be derived neither from the European Convention on Human Rights nor from the Framework Convention. The European Convention on Human Rights did not contain any special rights for national minorities. Relying on the wording of Article 15 of the Framework Convention, the court considered that this provision did not contain any obligation to exempt national minorities from the minimum threshold, but left the question undecided as to how to create the conditions necessary for the effective participation of persons belonging to national minorities in public affairs. It followed that the contracting parties enjoyed a wide margin of appreciation in this respect. In Germany, participation of national minorities in public life was already guaranteed by the constitutional system. By including the 5% threshold in the Constitution of the Land of Lower Saxony without providing for an exemption, the Constitutional Assembly had given precedence to the functioning of the parliament over granting privileges to national minorities. Accordingly, the Lower Saxony Constitutional Court did not find it necessary to determine whether the Frisians qualified as a national minority and whether the applicant party qualified as the political party of this national minority.


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

Dmitry Dedov;Julia Laffranque;Khanlar Hajiyev

The applicant was born in 1971 and lives in Nizhniy Novgorod.


Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Georges Ravarani;Ksenija Turković

The applicants, whose details are set out in the appendix, are Turkish nationals. They are represented before the Court by Mr Mahmut Birlik, a lawyer practising in Şanlıurfa. The Turkish Government (“the Government”) were represented by their Agent.

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

In 2000, the Ministry of Energy and Natural Resources (“the Ministry”) expropriated certain plots of land belonging to the applicants for construction of a dam in Birecik. The applicants initiated compensation proceedings for additional compensation plus interest at the statutory rate. The payments were made five to six years after the date of expropriation. The details of the applications appear in the attached table.

A description of the relevant domestic law may be found in Turgut and Others v. Turkey ((dec.), no. 4860/09, §§ 19-26, 26 March 2013).


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

The applicant was born in 1956 and lives in Staryy Oskol.

The applicant took part in the cleaning up operation at the Chernobyl nuclear disaster site.

On 5 July 2002 the Staryy Oskol Town Court of the Belgorod Region granted the applicant’s action against the Belgorod Regional Administration and awarded him and his family, comprising two members, a flat in the town of Staryy Oskol and 3,000 Russian roubles (approximately 100 euros) in compensation for non-pecuniary damage. The representative of the Regional Administration did not attend the hearing: in writing he had requested the Town Court to adjudicate the case in his absence.

The judgment was not appealed against and became final on 15 July 2002.

On 19 August 2002 the Staryy Oskol Town Court issued a writ of execution and enforcement proceedings were instituted.

On 9 October 2002 the Belgorod Regional Administration lodged a statement of appeal against the judgment of 5 July 2002. The Administration also asked the Town Court to restore the ten-day time-limit for lodging the appeal. The Administration claimed that it had received a copy of the judgment of 5 July 2002 by fax on 8 October 2002. The Administration asked to stop the enforcement proceedings.

The applicant insisted that there had been no reason to restore the time-limit. He noted that a copy of the judgment had been forwarded to the Regional Administration at the end of July 2002.

On 14 October 2002 the Staryy Oskol Town Court restored the time-limit for lodging the appeal, accepted the Administration’s statement of appeal and stopped the enforcement proceedings.

On 19 November 2002 the Belgorod Regional Court examined the Administration’s appeal, quashed the judgment of 5 July 2002 and remitted the case for a fresh examination to the Town Court.

On 20 January 2003 the Staryy Oskol Town Court, in the new examination of the case, accepted the applicant’s action in part. The relevant part of the judgment read as follows:

“Order that the Belgorod Regional Administration should provide ... Mr Babynin G.A. and his family with housing premises, which satisfy sanitary and technical requirements, in their turn according to the housing waiting list of families having persons with disabilities and individuals who had taken part in the cleaning operation at the site of the Chernobyl nuclear plant.

Dismiss [the claim] for compensation for non-pecuniary damage.”

The judgment was not appealed against and became final on 31 January 2003.

On 13 February 2003 a writ of execution was issued and enforcement proceedings were instituted.

According to the applicant, from 5 to 12 March 2004 a group of five people, including the applicant, began a hunger strike to protest against the poor level of welfare protection provided for the Chernobyl victims.

On 16 April 2004 the mayor of Staryy Oskol decided to provide the applicant with a flat measuring 55,05 m².

On 21 April 2004 the applicant received from the mayor an occupancy voucher in respect of the flat assigned to him. He found the flat satisfactory.


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

Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1949 and lives in Budapest.

From 1 July 2002 the applicant was employed as a civil servant at the Prime Minister’s Office. Her service was terminated by the employer on 15 May 2010.

Under new legislation (see paragraph 7 below) the applicant’s severance pay was subject to special tax at a 98% rate in its part exceeding 3,500,000 Hungarian forints (HUF). Accordingly, special tax was levied upon her severance pay in the amount of HUF 5,511,909 (approximately 18,400 euros (EUR)).


Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

André Potocki;Ganna Yudkivska;Síofra O’Leary

The applicant was born in 1951 and lives in Kremenchuk.

On 19 June 1998 the applicant’s 17-year-old daughter, M., was found dead in a field in the Kharkiv region. Her body was naked and had numerous injuries.

According to the information submitted by the Government, on 20 June 1998 a post mortem was carried out. It established that M. had been strangled and that her body had been dragged to the place where it had been discovered. There was no indication that she had been raped. She had not been pregnant. Nor had she been under the influence of alcohol or drugs.

On 22 June 1998 the Kharkiv inter-district prosecutor’s office opened a criminal case in respect of the murder.

On 24 June 1998 the applicant was admitted to the proceedings as an aggrieved party.

On 28 June 1998 the police inspected the scene of the crime. They discovered the remnants of a fire and two plastic bags not far from the place where M.’s body had been found. Samples of the coal and the bags were collected as material evidence.

On 30 June 1998 another examination of the crime scene was carried out and the following objects were found: some matches, two cigarette ends, two plastic bags, a burnt notepad with some notes written by M. (her parents identified her handwriting later). Furthermore, the police discovered the burnt remains of a calendar, some tampons, a student ID with a stamp containing the word “Law” (M. was a student at the Kharkiv Law Academy), and a lighter.

On 24 August 1998 a forensic cytological examination established that it was not M. who had smoked the cigarettes.

On 1 October 1998 the police seized one of M.’s shoes, which had been discovered by a villager at some distance from the crime scene.

On 18 January 1999 a witness stated that on the evening of 18 June 1998 she had twice seen a beige car belonging to a certain B., with two male passengers and a girl resembling M., near the crime scene. The witness also submitted that B. had apparently had the car seat covers changed shortly thereafter.

On 14 April 1999 the investigator in the case instructed the police to verify whether B. and his two passengers of 18 June 1998 could have been involved in the murder and to identify the girl who had been seen with them. The police questioned those seen in the car and concluded that sufficient grounds did not exist to treat them as suspects. As regards an inspection of the car and the covers of the seats, it appears that none was carried out at the time as the investigator had to order one again on 22 February 2010. That belated inspection produced no tangible results.

The investigation of M.’s murder has been unsuccessful. Between 1998 and 2010 it was suspended at least thirteen times for failure to establish who had committed the murder. At least five of those decisions were quashed as premature and as not based on a comprehensive investigation. In the remaining instances the investigation was resumed without any further details being given in the respective decisions. At least four times (in particular, in 1998, 2001 and 2009) the investigator complained to his supervisors that his instructions to the police had not been complied with. In particular, on 20 January 2009 the investigator, when instructing the police to undertake certain investigative measures, noted that earlier instructions to that effect, given in 2000, had not been followed up. Overall, throughout the period in question, the investigator’s instructions to the police remained the same: to identify all the possible witnesses to the murder and to verify whether any of M.’s acquaintances, or any people with a criminal record living nearby, could have been involved in it.

The applicant submitted numerous complaints to the prosecution authorities about the length and ineffectiveness of the investigation. He also put forward his own version of events and mentioned the names of several people whom he suspected of being involved in the crime. He was informed on at least four occasions that there had indeed been omissions in the investigation and that the police officers responsible had been disciplined. As regards the applicant’s requests for access to the case file, they were rejected on the grounds that under the applicable procedural legislation, an aggrieved party could only have such access after the pre-trial investigation had been completed.

The applicant also brought a civil claim against the prosecution authorities, but courts at three levels of jurisdiction found against him.

There is no information in the case file about any developments in the investigation after 2010.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

Branko Lubarda;Dmitry Dedov;Luis López Guerra

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 detention during their transport. The applicants also raised other complaints under the provisions of the Convention.


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant, Ms Mieczysława Barańska, is a Polish national, who was born in 1949 and lives in Busko Zdrój. She is represented before the Court by Ms M. Pecyna, a lawyer practising in Cracow.

The Polish Government (“the Government”) are represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs.

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

The applicant’s daughter, E., had been suffering from schizophrenia since approximately 1998. She had been hospitalised on numerous occasions.

On 4 March 2008 E. was admitted to a psychiatric hospital in Morawica (Świętokrzyskie Centrum Psychiatrii). She had already been admitted to that hospital on six previous occasions.

E. was placed in room no. 8 in the observation area of ward no. 5. The ward was divided into two areas – an “observation” area and a “peaceful” area for male patients. The areas were separated by a lockable door. The patients were free to circulate in their own areas and to use the bathroom.

According to her medical records, at the time of her admission E. had been behaving strangely. She showed symptoms of restlessness and agitation, and her behaviour was aggressive and loud. Contact with her was difficult and communication was limited. On 16 March 2008 she made an unsuccessful attempt to flee the ward, but was prevented from doing so by the staff.

A copy of the medical record kept by the hospital staff from 4 to 17 March 2008 was submitted to the Court. No reference to suicidal tendencies or thoughts on E.’s part was made throughout that time.

At 4.15 a.m. on 16 March 2008 three nurses on duty in the ward were dealing with an aggressive patient in room no. 8. A nurse from ward no. 6, M.P., was called to help them.

While the nurses were busy trying to overpower the patient, E. tried to commit suicide by hanging herself in the bathroom, using torn sheets from her bed. Another patient found her there and alerted the nurses. Nurse L.G. removed the “rope” made from the torn sheets from E.’s neck. Three nurses on duty, W.K., T.N. and L.G., attempted to resuscitate E. The doctor who was on duty that night was alerted, and participated in the resuscitation attempt. An ambulance equipped with intensive-care equipment was called.

The ambulance left the Kielce Regional Specialist Hospital (Wojewódzki Szpital Specjalistyczny w Kielcach) at 5.12 a.m. and arrived at the psychiatric hospital at 5.24 a.m. The ambulance doctors took over the resuscitation attempts and took E. to the Kielce hospital. They arrived there at 5.52 a.m. and the resuscitation attempt continued.

E. did not regain consciousness and remains in a coma.

The police arrived at the psychiatric hospital at 6.30 a.m. on 16 March 2008. On the same date they started an investigation into the circumstances of the accident with a view to establishing whether the offence of exposing someone to the risk of loss of life or detriment to health, within the meaning of Article 160 of the Criminal Code, had been committed. A note drawn up by the police on the same day stated that E. had not been suffering from depressive tendencies.

The applicant was questioned on 18 March 2008. She stated that E. had been diagnosed with paranoid schizophrenia ten years earlier and had been admitted on numerous occasions to Morawica hospital.

The applicant was informed that an official note had been prepared to the effect that E. had hanged herself from the bars of the bathroom window by a rope made of torn sheets which she had taken from her bed. The applicant commented that it was difficult to understand how E. could have hanged herself as the bars on the window were covered by wire mesh. She was also of the view that the staff had failed to exercise their duty to supervise the patients properly.

The applicant made no comments at that stage about possible thirdparty involvement in the incident.

Nurse W.K. was questioned on 19 March 2008. She stated that she had been on duty on the critical night with nurses L.G. and T.N. At around 4 a.m. one of the patients had started to behave aggressively towards her and other patients. The witness had requested the assistance of other nurses in overpowering that patient and taking her to the isolation room. She had earlier checked on E., who had not been asleep but had been lying on her bed.

Shortly afterwards, W.K. had been checking on the patient in the isolation room when she had heard nurse L.G. cry out. W.K. had run to the bathroom, where she had seen E. hanging from the window bars. L.G. had been trying to hold her aloft. Together they had taken E. down, carried her to the corridor and started resuscitation. They had called T.N., who in turn had alerted the doctor on duty. Resuscitation attempts had continued until the arrival of the ambulance from the Kielce hospital. E.’s heartbeat had been restored after the arrival of the ambulance. E. had been a patient of the hospital on many occasions; she had never had suicidal tendencies and there had been no indication that she might try to take her life.

Nurses L.G. and T.N. were also questioned on 19 March 2008. Their testimonies were essentially concordant with the account of the facts given by W.K.

L.G. stated that she had been alerted by one of the patients crying out that someone had hanged herself in the bathroom. She ran to the bathroom and saw E. hanging by a rope from the window bars. She had tried to hold her aloft and called for the help of other nurses. After W.K. had arrived, L.G. untied the sheet from E.’s neck. They carried E. to the corridor and started to resuscitate her.

T.N. stated that at around 4 a.m. the cries of the aggressive patient in room no. 8 had woken up other patients in that room, including E., who had covered herself with a blanket. W.K. uncovered her head to check on her, to which E. objected. T.N. heard L.G. cry out five to ten minutes after the nurses had finished dealing with the aggressive patient. In T.N.’s view, there had been no indication that E. would try to commit suicide.

When questioned subsequently on 24 May 2008, T.N. stated that the window frames in the bathroom were old and had no handles. The windows could be easily opened, as the frames were dilapidated. It had already happened before that the patients had been able to open them. For that reason, bars had been fixed on the outside to prevent the patients from jumping out of the window. It was allowed to open the windows in order to air the bathroom.

On 23 April 2008 the police visited the bathroom and found that the window had no handles inside, and had bars on the outside. The window ledge was 95 cm from the floor.

On the same day the applicant submitted written comments, having been given access to the case file. She expressed the view that the investigation had been insufficient. She still failed to understand how it had been possible for her daughter to hang herself from the outside bars of the window. She asked the prosecution to check what had been happening between 4.15 a.m. and 6 a.m. on the critical date; whether the medical records properly recorded E.’s suicide attempt; whether there were records available concerning the handling of the aggressive patient; and whether blood samples had been taken to establish which medication E. had been on. She further stated that during her visits to the ward she had often seen patients left without reasonable supervision.

On 8 May 2008 M.O., the chief physician of the intensivecare ward of the Kielce hospital, was questioned. He stated that E. remained in a coma and that her condition had not improved since she had been brought to the hospital on 17 March 2008. On the day in question there had been a bruise on the patient’s neck caused by hanging; no blood samples had been taken on that day as there had been no grounds for doing so.

On 16 May 2008 A.K., the chief physician of the psychiatric ward, was questioned. He stated that he had spoken with E. on 16 March 2008 and that she had been calm and reasonable. She had not demonstrated any symptoms of depression or suicidal tendencies.

On 24 May 2008 W.K. was questioned again. She confirmed her previous statement (see paragraph 13 above). She further stated that the bars were on the outside of the window and that they had been installed to prevent the patients from fleeing. There was no obligation to keep the windows closed and in any event it was easy to open them, despite the fact that they had no handles, as the window frames were old. T.K., who was questioned again on the same date, confirmed W.K.’s statement.

On 30 May 2008 the Kielce district prosecutor discontinued the investigation. The written grounds for that decision read as follows:

“The investigation into the circumstances in which E.B. had been exposed to a risk to her life was conducted under the supervision of the Kielce-Zachód District Prosecutor.

All the witnesses in the case were questioned. An on-the-spot inspection of the scene of the suicide attempt was carried out.

As the findings of fact did not lead to the conclusion that the incident had been caused by any acts of third persons, the investigation was discontinued, as a criminal offence punishable under Article 160 § 2 of the Criminal Code had not been committed.”

The applicant appealed. She argued that the decision had been excessively succinct and had failed to give a reasonably detailed account of the relevant facts. In particular, no findings had been made as to whether the hospital staff had complied with their duty of care. It had not been explained how it could have been possible for E. to leave her room unobserved, take her bed sheets with her, go to the bathroom, tear the sheets, open the window and hang herself from the window bars on a kind of rope she had made from the torn sheets. The only people to have been questioned were nurses who had a vested interest in giving their own version of events. No forensic examination of E. had been carried out to check whether she had any injuries or bruises. In particular, it had not been established whether she had any injuries on her neck typical of hanging. The orderly of the ward had not been questioned. The report on the handling of the aggressive patient by the nurses on duty during the night at issue had not been included in the file. No steps had been taken to establish whether and how it had been possible to open the window in the bathroom and how that window was secured, if at all.

The applicant added that E. had not been suffering from depression at that time. On the whole, the contested decision was obviously flawed and the investigation should be conducted again in a thorough manner.

Following an appeal lodged by the applicant, on 23 June 2008 the Kielce Zachód district prosecutor set the contested decision aside, finding that the applicant’s objections should be addressed by way of further investigative measures. The investigation was resumed.

On 15 August 2008 Dr M.O. was questioned again as to the circumstances of E.’s admission to the hospital.

A further four witnesses were heard. Neither their professions nor their connection to the facts of the case were specified.

On 18 August 2008 the Kielce district prosecutor discontinued the investigation. The relevant decision read:

As the findings of fact did not lead to the conclusion that the incident had been caused by any acts of third persons, the investigation was discontinued as a criminal offence punishable under Article 160 § 2 of the Criminal Code had not been committed.”

The applicant appealed, essentially reiterating the arguments which she had raised in her earlier appeal. She argued in particular that the decision had been excessively succinct and had failed to give a reasonably detailed account of the relevant facts.

On 19 February 2009 the Kielce District Court, Municipal Division (Sąd Grodzki), upheld the contested decision. It was of the view that no one had a case to answer and that it could not be said that the staff had failed in their duty to take appropriate care of E. It further stated that the prosecuting authorities had taken all the necessary evidence and examined it carefully.

Article 160 of the Criminal Code reads as follows:

“1. Anyone who exposes a human being to an immediate risk of loss of life, serious bodily injury, or a serious impairment of health shall be subject to the penalty of deprivation of liberty for up to 3 years.

If the perpetrator has a duty to take care of the person exposed to danger, he shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.”


Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić

The applicant was born in 1979 and lives in Adana.

On 8 March 2002 the applicant was arrested and taken into custody on suspicion of membership of an illegal organisation.

On 9 March 2002 the applicant’s statements were taken by the police in the absence of a lawyer. During the interrogation, the applicant gave a detailed account of her acts within the illegal organisation PKK (the Kurdistan Workers’ Party).

On 11 March 2002 the applicant was heard by the public prosecutor and the investigating judge at the Istanbul State Security Court, again in the absence of a lawyer. Before the public prosecutor and the investigating judge, the applicant partially retracted her previous statements maintaining that she had given statements to the police under duress. On the same day, upon the order of the investigating judge, the applicant was placed in pretrial detention.

On 18 March 2002 the public prosecutor at the Istanbul State Security Court filed an indictment accusing the applicant of membership of an illegal terrorist organisation under Article 168 of the former Criminal Code.

At a hearing held on 31 May 2002, the applicant gave evidence in person in the presence of her lawyer. She stated that she had left Turkey through her own means and that she went to Romania, Bulgaria, Greece and Iran with the help of the people whose names she could not remember anymore. She further stated that she had stayed in camps in Greece and Iran. While she was at the camp in Iran she was not involved in many activities owing to her young age. She further maintained that she had wanted to return to Turkey due to her health condition and for family reasons. She further stated that she had turned back to Turkey through the mountains with the help of people who knew the area well. While the applicant was staying at her elder sister’s house, she was arrested by the police. The applicant also claimed that she did not know any of the other accused in the case and that she had not received any training in the camps. Lastly, she stated that she had been called the code name “Ariel” at the camp in Iran.

When asked about her statements to the police, the applicant denied them, claiming that they had been taken under duress. When asked about her statements to the public prosecutor, she denied them except for the parts concerning her travel. When asked about her statements to the investigating judge, she denied them claiming once again that the police had put pressure on her.

On 16 April 2008, relying on, inter alia, the applicant’s statements to the police, the Istanbul Assize Court convicted the applicant under Article 314 § 2 of the new Turkish Criminal Code and sentenced her to six years and three months’ imprisonment.

On 23 December 2010 the Court of Cassation upheld the judgment of the Istanbul Assize Court.