Violation of Article 6 - Right to a fair trial (Article 6 - Disciplinary proceedings;Article 6-1 - Access to court;Civil rights and obligations);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in 1959 and lives in Bratislava. He is and at the relevant time was a Supreme Court judge.

The Judicial Council of the Slovak Republic is the supreme governing body of the judiciary in Slovakia. It has eighteen members, including its President (section 3(1) of the Judicial Council Act (Law no. 185/2002 Coll., as amended)). Under Article 141a of the Constitution (Law no. 460/1992 Coll.), as applicable at the relevant time, the President of the Supreme Court automatically held the office of the President of the Judicial Council. Of the remaining seventeen members, eight were elected by judges and three were appointed by each the National Council of Slovakia, the President of Slovakia, and the Government of Slovakia.

On 8 September 2009, sitting it the above mentioned composition, the Judicial Council decided under section 22(1) and (2) of the Judges and Assessor Judges Act (Law no. 385/2000 Coll., as amended – “the Act”) to suspend (dočasné pozastavenie výkonu funkcie sudcu) the applicant in the exercise of his function with immediate effect. This decision followed another decision of the Judicial Council taken on the same day under section 120(2)(c) of the Act to file disciplinary charges against the applicant.

The accusation was that the applicant had committed what was classified as a “serious disciplinary offence” by failing to comply with his duties, such as abstaining from behaviour which might cast doubt on the respectability of his judicial office, abiding by the principles of judicial ethics and enhancing the good reputation of the judiciary.

In particular, reference was made to the fact that the applicant (i) had filed a criminal complaint accusing the President of the Supreme Court of abuse of authority, and (ii) had publicly stated that the distribution of cases at the Supreme Court had been modified with a view to allowing its President to influence the outcome of proceedings.

In terms of a sanction, the Judicial Council proposed that the applicant’s post as a judge be revoked.

Under section 22(7) of the Act, the decision to suspend him entailed a 50% reduction in the applicant’s salary for the duration of the disciplinary proceedings. The same provision prevented him from spending time at the workplace, with the exception of time which was necessary for asserting his rights in relation to the administration of human resources. Under section 22(5) of the Act, the suspension could last at most two years. The withheld part of the applicant’s salary might or might not be restored to him, depending on the outcome of the disciplinary proceedings (section 22(8) and (9) of the Act).

The applicant sought protection of his rights in relation to the decision to suspend him as a judge by way of what he termed an appeal (rozklad) to the Judicial Council of 29 October 2009, an administrative-law action of the same day, and a constitutional complaint of 2 November 2009.

On 25 November 2009 the Constitutional Court declared the complaint inadmissible. It noted that the applicant’s applications before the Judicial Council and administrative tribunals were still pending and considered that, under the principle of subsidiarity, his constitutional complaint was accordingly premature.

As to the applicant’s submission to the Judicial Council, its president responded to it in a letter of 27 January 2010 informing the applicant that the law did not allow for decisions of the Council to be challenged by means of appeals to the Council and that its decisions were reviewable by administrative tribunals.

On 13 May 2010 the Bratislava Regional Court discontinued the proceedings on the applicant’s administrative-law action and on 23 February 2011 the Supreme Court upheld that decision following an appeal lodged by the applicant.

The courts found that the decision to suspend the applicant had been of a preliminary nature, that it had not amounted to a determination of his rights with final effect, and that as such it had no bearing on his fundamental rights and freedoms. In such circumstances, the decision was excluded from judicial review under Article 248 (a) of the Code of Civil Procedure (Law no. 99/1963 Coll., as applicable at the relevant time).

On 17 June 2011 the applicant lodged a fresh complaint with the Constitutional Court, alleging a breach of Article 6 § 1 of the Convention on account of the ordinary courts’ decisions, as detailed above.

On 7 December 2011 the Constitutional Court declared the applicant’s complaint of 17 June 2011 inadmissible as being manifestly illfounded. It held that the Supreme Court had given sound reasons for its decision, and its decision was not arbitrary or otherwise contrary to the applicant’s right to a fair hearing.

According to a communication from the Judicial Council dated 6 August 2016, submitted and relied on by the Government, the applicant had addressed various submissions to the Council, but had never requested it to lift his temporary suspension, pursuant to section 22(5) of the Act (as applicable at the relevant time – see paragraph 24 below).

The disciplinary charges against the applicant fell to be determined by the Supreme Court, sitting as a disciplinary tribunal.

In accordance with a legislative amendment which took effect on 1 May 2011, the Minister of Justice became a party to pending disciplinary proceedings against judges which had been initiated by the Judicial Council.

On 9 May 2011 the Minister of Justice withdrew the application to discipline the applicant.

On that ground the Supreme Court discontinued the disciplinary proceedings against the applicant on 13 May 2011. The applicant challenged that decision by way of an appeal, only to withdraw it on 11 August 2011. The decision thus became final on 27 September 2011.

The part of the applicant’s salary that was retained from him during the time of his suspension (see paragraph 10 above) was restored to him in July 2012.


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)

Krzysztof Wojtyczek;Ledi Bianku;Paul Mahoney

The applicant was born in 1951 and lives in Łańcut.

Prior to her early retirement she had been employed for 23 years and had paid her social security contributions to the State. Between October 1992 and November 1997 she received a disability pension.

On 6 March 2000 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) to be granted the right to an early-retirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the so-called “EWK” pension.

Along with her application for a pension, the applicant submitted, among other documents concerning her son’s health condition, a medical certificate issued by a specialist doctor. The certificate stated that the child (born in 1985) suffered from chronic asthma and that he was in need of his parent’s constant care.

On 19 April 2000 the Rzeszów Social Security Board issued a decision granting the applicant the right to an earlyretirement pension with effect of 1 March 2000.

Due to the applicant’s employment the Social Security Board initially suspended the payment of the pension until the end of April 2000. The payment started on 1 May 2000.

The EWK pension granted to the applicant amounted to 773.89 Polish zlotys (PLN) (approximately EUR 193).

The applicant was issued with a pensioner’s identity card marked “valid indefinitely” and she continued to receive her pension without interruption until the date of the revocation of the right.

On an unspecified date the Rzeszów Social Security Board asked the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s son required the permanent care of a parent. The doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care.

On 25 April 2003 the Rzeszów Social Security Board issued simultaneously two decisions in respect of the applicant.

By virtue of one decision, the payment of the applicant’s pension was discontinued with immediate effect. By virtue of the other decision, the Social Security Board revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an earlyretirement pension under the scheme provided for by the 1989 Ordinance.

The applicant appealed against the respective decisions divesting her of the right to an early-retirement pension. She submitted that she should receive the benefit because her child required constant care, as confirmed by the medical certificate attached to the original application for a pension. Moreover, the applicant alleged that the revocation of her retirement pension was contrary to the principle of vested rights.

On 12 May 2004 the Rzeszów Regional Court (Sąd Okręgowy) dismissed the applicant’s appeal.

The applicant appealed against the first-instance judgment.

On 6 October 2004 the Rzeszów Court of Appeal dismissed the applicant’s further appeal. The domestic court held that the applicant had been rightfully divested of her right to a pension under the scheme provided by the 1989 Ordinance as she had not satisfied the requirement of necessary permanent care.

On 24 February 2004 the Supreme Court refused to examine the applicant’s cassation appeal. The Supreme Court’s decision was served on the applicant’s lawyer on 15 March 2005.

Following the social security proceedings the applicant was not ordered to return her early-retirement benefits paid by the Social Security Board, despite the revocation of her right to an early-retirement pension.

Throughout the whole period of receiving the EWK pension the applicant did not work.

On 1 May 2003 the applicant registered her business activity which she continued until 8 November 2005. Between 22 June and 1 August 2005 the activity was suspended.

Between 1 February and 31 October 2006 the applicant was employed.

The Government submitted that the applicant’s gross annual income in 2006 amounted to PLN 8,293 (approx. EUR 262) which constituted 27.90% of the average salary in Poland at the relevant time.

On 1 November 2006 the applicant turned 55 and she was granted a right to early retirement. Between 2006 and 2010 the early retirement amounted to PLN 1,150-1,300 (approx. EUR 290-325) which constituted approx. 40% of the average net salary at the relevant time.

The Government submitted that “between 2003 and 2005 the applicant was making profits of her business activity”, however, they were unable to submit information as regards the amount of the profits.

The applicant submitted that her business activity was a small shop in a modest wooden pavilion. She was forced to undertake this activity because of her economic situation after the revocation of her EWK pension. The profits were irregular and very modest. Sometimes she could not afford to pay the taxes and social insurance premiums and had to borrow money to do so. She produced her tax declarations for the years 2003-2009 from which it emerges that from her business activity she earned PLN 3,237.09 (approx. EUR 737) in 2003, PLN 1,404.49 (approx. EUR 312) in 2004 and PLN 912.90 (approx. EUR 234) in 2006. In 2005 her tax declaration showed a loss of PLN 3,751.85 (approx. EUR 938).


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant, who was born in 1972, is serving a thirty-year prison sentence imposed on 31 May 2007 by the Meurthe-et-Moselle Assize Court for murder, attempted murder and assault involving the use or threatened use of a weapon. He has been imprisoned since 17 May 2002 and will become eligible for release on 18 July 2027.

On 18 March 2006, while he was in prison in Nancy, the applicant fell several metres during an attempted escape and suffered a fractured spine. He spent several months at the Fresnes rehabilitation clinic before being transferred to Mulhouse Prison, where he encountered substantial difficulties (particularly on account of the staircases, which made it impossible for him to move about unaided), and Metz Prison, where his cell was not equipped for wheelchair use. He was subsequently transferred back to Fresnes from 5 November 2008 until 28 May 2009. From that date until 17 September 2014 he was held in Uzerche Prison, before being transferred to Poitiers-Vivonne Prison, where he is currently detained.

On 12 August 2010 the applicant applied to the Tulle judge responsible for the execution of sentences to have his sentence suspended on medical grounds, under Article 720-1-1 of the Code of Criminal Procedure (see paragraph 27 below). He explained that as a wheelchair user with paraplegia, he was not being detained in appropriate conditions since the premises were not designed for wheelchair use, and he was unable to receive the care he required. He noted that access to the toilet in his cell was undignified, that he could not reach all parts of the prison premises unaided, and that the provision of medical and paramedical care was inadequate, particularly as regards physiotherapy. He pointed out that he was unable to go to the showers autonomously and that the prison had assigned a prisoner to assist him for a payment of fifty euros per month. This prison orderly was responsible for cleaning the applicant’s cell and accompanying him to the showers and washroom.

In an order of 27 September 2010 the judge appointed two doctors as experts. They submitted their reports on 2 and 14 November 2010.

The report by Dr G., drawn up on 21 October 2010, concluded:

“... Mr Mohammed Helhal has incomplete paraplegia with total effective urinary incontinence requiring self-catheterisation and round-the-clock use of a nappy. He also has major haemorrhoidal irregularities, for which he has refused any treatment.

Mr Mohammed Helhal currently has active muscle relaxation in the two lower limbs, for which physiotherapy is required several times a week on a regular, long-term basis.

That being so, Mr Mohammed Helhal’s state of health is not incompatible with imprisonment, subject to the express condition of being detained in a facility catering for his disability, where he can undergo regular physiotherapy and have appropriate access to a gym.”

The report by Dr R. was drawn up on 28 October 2010 and read as follows:

“... On 17 November 2009 ... Dr Dubois stated: ... ‘his condition requires treatment by a physiotherapist in a specialist environment and daily pressure-sore relief’. ...

The most recent assessment at Bordeaux University Hospital, where the patient stayed from 5 to 12 March 2010, confirms that there has been a good sensorimotor recovery in the lower limbs and that mobility is possible with two walking sticks and a frame, whereas at present the patient mainly moves about in a wheelchair.

Appropriate physiotherapy focusing on both the joints and the muscles would clearly enable the prisoner to perform his own transfers with technical support, which would also have the benefit of easing the complications at the pressure points. At the same time, alongside the favourable progress in this post-traumatic condition, the patient has an anal disorder as a result of haemorrhoid surgery, and this essentially causes discomfort on a functional level.

Conclusion

- The prisoner displays sensorimotor damage resulting from a thoracolumbar spine fracture;

- The damage is stable with clear evidence of motor recovery in the lower limbs;

- Daily physiotherapy would be justified to improve motor skills in the lower limbs and the quality of transfers, but this is not possible at Uzerche Prison as there is no on-site physiotherapist;

- There is permanent sensory damage in the L5-S1 region requiring self-catheterisation, which is being adequately managed on a day-to-day basis by the prisoner;

- All of these spinal conditions are currently stable and unlikely to worsen, but could improve with proper treatment;

- The various disorders observed, in terms of both traumatic spinal cord injuries and anal damage, are not life-endangering for the prisoner;

- The prisoner’s state of health is in my opinion not incompatible in the long term with continued detention;

- The disorders currently observed are stable and will continue to develop on a chronic basis, justifying palliative care.”

In a judgment of 3 February 2011 the Limoges Post-Sentencing Court dismissed the application for suspension of the applicant’s sentence. It took into account the two concurring medical opinions in finding that the applicant’s state of health was compatible in the long term with his imprisonment. However, the court observed that “Uzerche Prison manifestly fails to satisfy the criteria for ensuring a suitable detention regime for the applicant, in terms of both the premises and the availability of paramedical care, despite the undisputed efforts by the prison’s management and staff to ease the prisoner’s living conditions as far as possible”. It then noted that there were custodial facilities that were equipped to cater for the applicant’s condition, such as Fresnes Prison or Roanne Prison, “which is designed and organised in a manner compatible with accommodating disabled prisoners, and where [he] will be able to have the regular physiotherapy sessions that he rightly demands, since a masseur/physiotherapist comes to the prison almost every day”. The court concluded as follows:

“It therefore appears from all of the above considerations, both from a medical perspective and in terms of the prospect of arranging suitable conditions of detention, that the prisoner does not satisfy the requirements for having his sentence suspended on medical grounds.”

The applicant appealed against the judgment of 3 February 2011. He reiterated that besides the structural inadequacy of Uzerche Prison, he had not been offered any special arrangements in terms of medical and paramedical care (physiotherapy and access to the gym). He also submitted that Roanne Prison was no more suitable than Uzerche Prison as it did not have a rehabilitation facility.

In a judgment of 3 May 2011 the Post-Sentencing Division of the Limoges Court of Appeal upheld the judgment of 3 February, holding:

“The two experts concurred in concluding that [the applicant’s] condition was not incompatible in the long term with detention provided that he was given physiotherapy and access to a gym. While it is indeed not possible for these requirements to be fulfilled at Uzerche Prison, where [the applicant] has been transferred at his own request to be closer to his family, it has not been shown that he cannot be accommodated in conditions catering for his disorders at Roanne Prison, and therefore the criteria for suspending the execution of his sentence have not been satisfied, particularly since [the applicant] continues to deny – as stated in his letter of 23 March 2011 – the serious criminal acts that led to his conviction.”

The applicant appealed on points of law. In a judgment of 31 August 2011 the Court of Cassation declared the appeal inadmissible.

In a letter of 28 February 2012 to the Registry of the Court, the applicant contended that he was not undergoing any physical rehabilitation, there being no physiotherapist at Uzerche Prison, and that he had no access to the gym. He wrote that his health was deteriorating on a daily basis and that he was being mistreated through the lack of provision of care.

According to the Government, the applicant has received the following medical assistance:

(a) twelve occasions of escorted leave between 3 May 2011 and 26 June 2012 for specialist consultations and medical imaging tests at Tulle Hospital and Limoges University Hospital;

(b) thirty-three medical appointments with a doctor from the prison medical unit, consisting of a medical examination on 28 May 2009 followed by consultations spread across his time at the prison (ten in 2009, three in 2010, ten in 2011, six in 2012, one in 2013);

(c) three stays in hospital for several days in 2010, 2011 and 2012;

(d) technical assistance from nurses on fifty-five occasions between 2009 and 2013, plus weekly meetings with the prison nurse;

(e) eight psychiatric consultations and sixteen meetings with a psychiatric nurse;

(f) provision of medical equipment to alleviate or offset disabilities, including a walking frame (June 2009), an anti-pressure-sore cushion (August 2009), spectacles (January 2010), a new wheelchair (September 2012), and an electrostimulation device (February 2013).

In addition to the treatment described above, the Government informed the Court that from September 2012 the applicant had attended physiotherapy sessions at Uzerche Prison. The physiotherapist’s services had been engaged following three letters dated 18 November 2011, 28 December 2011 and 19 March 2012 in which the interregional director of the Prison Service had alerted the Director General of the Limousin Regional Health Agency to the detrimental effects of the lack of physiotherapy on the care provided to prisoners.

The Government added that the applicant had been offered the opportunity to attend yoga classes but had been removed from the list of those enrolled for the classes because of his non-attendance.

The applicant confirmed the occasions of escorted leave mentioned by the Government but pointed out that on each occasion he had been transferred by ambulance – with his wrists and ankles handcuffed – and had had to undergo a full body search beforehand and a rub-down search afterwards. He added that the full body searches carried out whenever he received visits and when he was escorted outside the prison were deeply humiliating; he was obliged to have his nappy inspected, and in order to proceed more quickly, several warders carried out this task together. During one inspection, a senior warder had said in front of everyone that “the boss had given instructions to inspect his nappy”. The applicant maintained that as a result of these practices, he had asked his sister to visit him less frequently.

With regard to the applicant’s complaints about the instances of escorted leave and the body searches, the Government pointed out that the physical damage he had suffered could not be regarded as having eradicated any security risk, since his health had no bearing on his potential connections on the outside and the risk of his escaping. To that end, they produced copies of two decisions dated 2011 (month illegible) and June 2012 ordering individual (full body) searches in connection with escorted leave for medical reasons. They noted that in May 2013 the applicant had been sent to a punishment cell for ten days following an assault on a fellow prisoner and the discovery of a mobile telephone in his cell. They stated that searches in the prison were not carried out systematically but on the basis of incidents noted during visits or in the cells. They produced three decisions ordering individual searches, dated 14 May and 26 December 2011 and 10 May 2013 (involving searches of the applicant’s cell), and seven decisions ordering a one-off search of a specific sector of the prison after the visits received on 10 June 2011, 10 November 2011, 26 June 2012, 1 October 2012, 14 December 2012, 22 March 2013 and 31 May 2013.

With regard to physiotherapy, the applicant pointed out that he had only started receiving it in September 2012 and that it was limited to a weekly fifteen-minute session. He produced a medical certificate issued on 10 May 2013 by a doctor from the Outpatient Consultation and Treatment Unit (unité de consultation et de soins ambulatoires – “the UCSA”) stating that his “condition requires daily rehabilitation, which Uzerche Prison is unable to provide, both on account of the lack of qualified staff and because the premises are not suitably equipped. As a result, the patient cannot remain in this facility without his health suffering. He must be given the possibility of admission to a specialised facility.” The applicant submitted that the doctor was repeating what his colleagues had already noted on 17 November 2009 (see paragraph 10 above) and 11 March 2011; he produced a medical certificate signed on the latter date by a doctor from the UCSA who stated that the applicant could not remain in the facility without his health suffering and added that “his paraplegia must be treated in a rehabilitation centre”.

With regard to the electrostimulation device, the applicant submitted that his doctor had obtained the funds needed to purchase it but that the prison authorities had not allowed him to do so. As to the possibility of attending yoga classes, the applicant pointed out that he had been urged to go no more than once a week in order to avoid “monopolising” the lift leading to where the classes were held.

The applicant again stressed that he was dependent on the prison orderly responsible for assisting him in his everyday activities. The prisoner currently “assigned” to that duty was the third since his admission to the prison, and the applicant was dependent on him for supplying incontinence products, accompanying him to the showers (there was a step preventing unassisted wheelchair access) and cleaning his cell. This level of dependency and the problems associated with his incontinence complicated his relationship with the orderly. Going to the shower was a stressful time because the structure did not shield him from the view of others and his incontinence exposed him to extremely humiliating situations, causing irritation or even hostility on the part of his fellow inmates, who were unwilling to put up with such inconvenience in the course of their personal hygiene activities.

Lastly, the applicant informed the Court that he had been temporarily transferred to a cell in the secure unit, further to a decision by the classification board, after a mobile phone had been found in his cell. Under the resulting regime, he had access to one hour’s exercise in the morning and one hour in the afternoon, despite the fact that a doctor had issued a certificate on 7 June 2013 stating that his condition required access to at least five hours’ exercise a day. The Government stated that the applicant had been transferred back to his cell on 26 June 2013.

The applicant submitted that although the prison management had indeed encouraged him to request a transfer to Roanne Prison, their approach had been guided by purely administrative considerations unconnected to his care-related needs. The management had refused to give the slightest undertaking about the conditions in which he would be accommodated in Roanne and the care he could be given there. They had been unable to provide any guarantees as to care arrangements as there were six cells for disabled prisoners at that facility and they were all occupied, and a single physiotherapist came to the prison for four half-days a week to provide services for five hundred prisoners. The applicant contended that he had not applied for a transfer on the grounds that the prison in question did not offer appropriate care facilities and would simply have represented a further upheaval and ordeal for him following his repeated moves from one prison to another (twelve transfers between 2002 and 2009). He referred to information obtained from International Prison Watch (Observatoire international des prisons – OIP) by his sister and his lawyer and produced a copy of an email sent by OIP to his lawyer on 3 January 2011, reading as follows:

“I do not think that Meaux and Roanne are particularly well equipped although, like all recent establishments, they do have disabled cells. I attach a decision in which the Douai Court of Appeal found, in relation to another wheelchair user, that ‘no custodial facility is equipped to cater for the applicant’s condition’ and accordingly suspended the execution of his sentence. ... Nevertheless, I consider it important to stress the consequences of a change of prison, not only in terms of family ties but also as regards the procedure for requesting a suspension of the sentence, since that procedure would then have to be started over again. ...”

The applicant emphasised in any event that the medical unit at Uzerche Prison had not recommended his transfer to Roanne but rather the provision of treatment in a specialist facility.

The Government submitted that the applicant’s transfer to Roanne Prison had been envisaged by the health-care professionals at Uzerche Prison but observed that he had never actually requested such a transfer; after mentioning a transfer request, he had indicated the following day (9 August 2011) that he did not intend to pursue it, for reasons that were unclear. The Government also produced a note drawn up on 12 June 2012, which in their submission suggested that “the applicant’s main motivation related to the previous decisions of the judicial authorities on requests for suspension of sentences, rather than to the treatment he might receive”. They rejected the applicant’s arguments about the inability of Roanne Prison to accommodate him and submitted, in their additional observations, that only three of the six cells reserved for people with reduced mobility were occupied. They produced a copy of an email sent by the Prison Service in July 2013 indicating the availability of such cells. They also pointed out that an agreement had been signed in June 2013 between Roanne Prison, the UCSA and a non-governmental organisation with a view to providing appropriate care for dependent prisoners with specialist professional assistance.


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

The applicant, Mr Kevin Maguire, is a British national, who was born in 1983 and lives in Glasgow. He was represented before the Court by Callahan McKeown & Co. Ltd., a firm of solicitors based in Renfrew.

On 18 September 2011 the applicant attended a football match at Ibrox football stadium in Glasgow. The stadium was home to Rangers Football Club, who were that day playing Celtic Football Club (the two teams are collectively known as the “Old Firm”). Sectarian violence between the two clubs’ respective rival Protestant and Catholic supporters often accompanies Old Firm matches. Because of the history of trouble there was a heavy police presence at the match.

The applicant was wearing a black top which, in bright green letters approximately three to four inches in size, displayed on the front the letters “INLA”. On the back of the top, in large bright green letters, was the slogan “FUCK YOUR POPPY REMEMBER DERRY”. The initials INLA refer to the Irish National Liberation Army, which is a proscribed organisation in terms of the Terrorism Act 2000 (“the 2000 Act” – see paragraphs 30-31 below). In the United Kingdom, the poppy symbolises remembrance of the members of the armed forces who have died in the line of duty and is widely worn around 11 November (“Remembrance Day”). Derry is a town in Northern Ireland where thirteen civil rights protesters and bystanders were killed by soldiers of the British Army during a civil rights march in January 1972 (“Bloody Sunday”).

After the football match ended, the applicant, together with other Celtic supporters, was leaving the stadium when he was approached by two police officers whose attention had been drawn by the top he was wearing. He was arrested and taken to the police station where he was initially charged with an offence under section 13 of the Terrorism Act 2000 (see paragraphs 30-31 below), namely that he was wearing a garment in such circumstances as to arouse suspicion that he was a member or supporter of a proscribed organisation. That charge was not pursued and the applicant was instead subsequently charged with breach of the peace.

The trial took place on 28 August 2012. The charge read:

“[O]n 18th September 2011 at Edminston Drive, Glasgow, you ... [did] conduct yourself in a disorderly manner wear[ing] a top which displayed slogans of an insulting and abusive nature and commit a breach of the peace ...”

The applicant pleaded not guilty to the charge. The prosecution called as witnesses the two police officers who had arrested the applicant.

The officers gave evidence that their attention was drawn to the applicant because of the top he was wearing. He had not been shouting, swearing, gesticulating or engaging in any other behaviour that caused concern. The officers explained that because the initials “INLA” referred to a proscribed organisation under the 2000 Act, they had considered that they had reasonable cause to suspect that the applicant was a member or supporter of a proscribed organisation. The wearing of the insignia of a proscribed organisation in a public place was an offence under section 13 of the 2000 Act. The officers testified that in the volatile atmosphere in the aftermath of a football match between Rangers and Celtic it was likely that the insignia would be regarded as offensive and inflammatory by Rangers football fans and the officers had been concerned that this would provoke disorder or cause a disturbance.

The officers also gave evidence that any reasonable person would consider the slogan on the back of the top offensive and would be upset by it. In a context where there had been widespread media coverage of the issue of football players wearing poppies on their strips, such a slogan was inflammatory and likely to provoke disorder. The officers considered that any member of the public who had a connection with the armed forces would be upset and angered by the slogan. In the highly volatile situation of the immediate aftermath of a football match between Rangers and Celtic, they were genuinely concerned that it might cause a disturbance.

In cross-examination, the applicant’s solicitor put to the officers that members of the public attending the match would have been unlikely to know the significance of the initials “INLA”. The officers did not agree, responding that a significant proportion of members of the public attending that particular match would be well aware what the initials denoted. It was also put to the officers that the area in which the applicant was arrested was segregated and heavily policed and that surrounding members of the public were Celtic supporters. The officers replied that it was possible that Rangers supporters would have been able to see the applicant and, in any case, around one hundred yards down the road the two sets of fans intermingled. They were alarmed about the risk of a serious disturbance at that point.

The officers were also asked in cross-examination whether they had received any complaints prior to the applicant’s arrest. They confirmed that they had not. When asked why they did not initially charge the applicant with breach of the peace, the officers referred to the fact that the applicant had been arrested while still in the segregated area of Celtic football fans and that they had decided to act pro-actively. They had therefore considered the appropriate charge to be one under section 13 of the 2000 Act. Although it was clear at the police station that his conduct also amounted to a breach of the peace, it was not considered appropriate for two charges to be libelled in relation to the same conduct.

At the close of the prosecution case counsel for the applicant submitted that there was no case to answer. He argued that while there was evidence that the conduct was pertinent to a charge under section 13 of the 2000 Act, there was insufficient evidence to establish fear or alarm causing a serious disturbance to the community since the arrest had occurred in a segregated area which was heavily policed. The prosecution argued that there was ample evidence to convict. In particular, it was important to have regard to the context in which the conduct had occurred and to the fact that football matches, particularly those between Celtic and Rangers, were often marred by disturbances.

The sheriff rejected the no-case-to-answer submission. She observed that both police officers had given evidence that they were offended by the slogan on the back of the applicant’s top and were further alarmed that the wearing of the garment in the particular context was likely to provoke disorder or violence. She noted that violence at Old Firm football matches was by not uncommon. In her stated case prepared in the context of the applicant’s later appeal (see paragraph 19 below), the sheriff explained:

“[18] ... While there was no evidence of actual distress or alarm on the part of members of the public in the immediate vicinity at the time of the offence, in my view ... the appellant’s conduct was likely to cause distress or alarm to a reasonable person in the vicinity. First, while the appellant was wearing the garment within a segregated area the police cordon was not a closed one and the evidence was that Rangers supporters may have been able to see him. Secondly, members of the public in the immediate vicinity were likely to be offended and upset by the slogan ‘fuck your poppy remember Derry’ particularly those with any personal connection to those serving in the armed forces. Celtic supporters were also likely to be alarmed about the potential that the appellant’s conduct had to provoke violence or disturbance to the community. Finally, there was substantial risk of both violence and disorder when the appellant walked 100 metres ... and mingled with Rangers supporters.”

The sheriff convicted the applicant. Sentence was deferred for a Criminal Justice and Social Work report to be prepared.

On 25 September 2012 the applicant was sentenced to a two-year football banning order. The order prohibited the applicant, inter alia, from entering any premises for the purpose of attending any regulated football matches in the United Kingdom

In her subsequent stated case, the sheriff referred to the applicant’s criminal record, which included convictions for three separate charges of breach of the peace in 2008, the second of which had been subject to an aggravation for religious prejudice. She noted the applicant’s explanation that it had taken place in the context of an assault on the applicant by members of the Orange Order (a Protestant organisation). She also referred to the fact that the present offence had been committed while the applicant was on bail. She took into account that fact that the applicant had been a Celtic season ticket holder for over twenty years and had never previously come to the attention of the police in the context of football-related offending.

As to the applicant’s explanation that he had received the top as a present from his uncle and was unaware of what the lettering meant, the sheriff found this not to be credible. She considered that since the applicant had attended Celtic matches in Glasgow for over twenty years, had close family members living in Northern Ireland and had previously been assaulted by members of the Orange Order, he was likely to have been very well aware of what the initials stood for. In any case he could not have failed to be aware of the significance and offensive nature of the slogan on the back of the top. He would also have been well aware of the volatile atmosphere which accompanied Old Firm football matches and the potential for disorder or violence in that context.

Finally, the sheriff considered the Criminal Justice and Social Work report, which suggested a disposal prohibiting the applicant from attending football matches. She considered that the offence for which the applicant had been convicted was a football-related offence in terms of section 51(5) of the Police, Public Order and Criminal Justice (Scotland) Act 2006 (see paragraphs 32-33 below) and constituted precisely the type of conduct to which that legislation was directed. In her stated case, she concluded:

“The imposition of a football banning order was not only appropriate in terms of the nature of the offence by correlating the penalty directly to the conduct involved but will further serve to protect the public from further conduct of this nature during the period of the order.”

The applicant sought leave to appeal and a stated case was prepared by the sheriff. The applicant argued, inter alia, that the sheriff had erred in finding the charge of breach of the peace proven beyond reasonable doubt and was wrong to convict him. He also argued that the imposition of a twoyear football banning order was excessive.

Leave to appeal was refused at the first sift on 10 December 2012. The judge considered that the sheriff had applied the correct test in law and that the sentence was well merited and within the range open to her.

The applicant appealed to the second sift. In addition to the grounds of appeal previously provided, he submitted an opinion of a solicitoradvocate. In that opinion, it was argued that in a case such as the applicant’s it was necessary to bear in mind the importance of freedom of expression under Article 10 of the Convention and that the courts had the duty to act compatibly with the Convention. It was further argued that the arrest of the applicant was disproportionate to the legitimate aim of preventing disorder.

On 7 January 2013 leave to appeal against conviction and sentence was granted.

The Appeal Court of the High Court of Justiciary handed down its judgment on 28 February 2013. It dismissed the appeal against conviction and sentence.

As regards the argument that the breach of the peace charge had not been proven, the court referred to the test set out in Smith v Donnelly (see paragraph 27 below) and considered that, applying that test to the evidence and the facts as found by the sheriff, there was no difficulty in concluding that the applicant’s conduct had amounted to a breach of the peace. It explained:

“9. ... His actions in wearing this top were not part of a legitimate protest. Rather they amounted to a deliberately provocative gesture, calculated to cause precisely the type of disturbance which the court referred to in Smith v Donnelly. His conduct, in the context of this football match and its aftermath, presented as genuinely alarmingly and disturbing to any reasonable person.”

As to the applicant’s argument that his arrest and conviction breached his right to freedom of expression, the court said:

“10. The court does not consider that the appellant’s right to freedom of expression was in any way affected by his arrest and subsequent conviction. Even if the appellant does wish to engage in genuine protests, either in relation to Remembrance Day, the events of ‘Bloody Sunday’ or about the proscription of the INLA, he has plenty of suitable opportunities in which to do so without intentionally provoking serious disturbance, including violence, in the community.”

In respect of the appeal against sentence, the court noted that although the applicant had no specific previous convictions relative to football-related offending, he had previous convictions for public disorder, one of which had involved a sectarian element. It therefore concluded:

“11. ... When the present conviction is seen in light of his criminal record, the court has no difficulty in holding that this was a case in which the imposition of the banning order was entirely proportionate.”

The leading case as to what constitutes a breach of the peace under Scots law is Smith v. Donnelly 2002 JC 65, where the Appeal Court said:

“17. The crime of breach of the peace can be committed in a wide variety of circumstances, and, in many cases, it is a relatively minor crime. It has therefore been said, more than once, that a comprehensive definition which would cover all possible circumstances is neither possible nor desirable. Equally, in our view, it is neither possible nor desirable to derive a comprehensive definition from a close analysis of the facts of individual cases in which it has been held that a breach of the peace had been committed ... [I]t is, in our view, clear that what is required to constitute the crime is conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community ... What is required, therefore, it seems to us, is conduct which does present as genuinely alarming and disturbing, in its context, to any reasonable person.

That interpretation is supported by the fact that ... if there is no evidence of actual alarm, the conduct must be ‘flagrant’ if it is to justify a conviction. ‘Flagrant’ is a strong word and the use of that word points to a standard of conduct which would be alarming or seriously disturbing to any reasonable person in the particular circumstances ... We therefore conclude that the definition of the crime found in the principal authorities does meet the requirements of the Convention.”

In Her Majesty’s Advocate v. Harris [2010] HCJAC 102, the Appeal Court, citing Smith, emphasised that it was now clear that the crime of breach of the peace involved two elements: conduct (1) severe enough to cause alarm to ordinary people and (2) which threatened serious disturbance to the community.

The maximum sentence for breach of the peace depends upon the court in which the offence is tried. When prosecuted in summary proceedings in the Sheriff Court, the maximum sentence is a fine of up to five thousand pounds sterling or imprisonment of one year.

Section 13(1) of the 2000 Act provides that a person in a public place commits an offence if he wears an item of clothing or wears, carries or displays an article in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation.

Schedule 2 to the 2000 Act sets out a list of proscribed organisations. It includes the Irish National Liberation Army.

Section 51 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 provides that where a person has been convicted of an offence, the court may make a football banning order against him provided that it is satisfied that the conditions in section 51(3) are met. Those conditions are:

“(a) that the offence was one to which subsection (4) applies; and

(b) that there are reasonable grounds to believe that making the football banning order would help to prevent violence or disorder at or in connection with any football matches.”

Subsection (4) applies where the offence involved the person who committed it engaging in violence or disorder; and the offence related to a football match. An offence is deemed to relate to a football match if it is committed at a football match or while the person committing it is entering or leaving the ground; on a journey to or from a football match; or otherwise, where it appears to the court from all the circumstances that the offence is motivated (wholly or partly) by a football match.

The Scottish Government are committed to eradicating sectarianism in Scotland. The Minister for Community Safety and Legal Affairs appointed the independent Advisory Group on Tackling Sectarianism in Scotland in August 2012 to provide Scottish Ministers with impartial advice on tackling sectarianism in Scotland.

The Advisory Group submitted its report to Scottish Ministers on 13 December 2013. The specific form of sectarianism considered by the Advisory Group was that arising from the Catholic-Protestant tensions that are part of the historic legacy of Scotland. The report proposed the following “working definition” of sectarianism:

“Sectarianism in Scotland is a complex of perceptions, attitudes, beliefs, actions and structures, at personal and communal levels, which originate in religious difference and can involve a negative mixing of religion with politics, sporting allegiance and national identifications. It arises from a distorted expression of identity and belonging. It is expressed in destructive patterns of relating which segregate, exclude, discriminate against or are violent towards a specified religious other with significant personal and social consequences.”

The foreword of the report explained:

“While we recognise that sectarianism in Scotland is a complex social issue which needs to be addressed in a wide range of ways, we also have a great deal of hope for the future and believe that it is well within the capabilities of people from across Scottish society to tackle sectarianism once and for all. It is, perhaps, not surprising that the deep rootedness of sectarianism in Scotland has led to a culture which fluctuates between silence and sensationalism, while other equality issues have been driven forward in a more holistic and coordinated way. But what has been obvious to us is that sectarianism has had its day in Scotland, and there is an increasingly large groundswell of people who are tired of its worn-out rhetoric and the way in which it manifests itself in exclusionary and confrontational behaviour.”

The report summarised the Group’s findings and conclusions regarding sectarianism in football as follows:

“16. Football is an integral part of Scottish life and has a powerful influence and impact. However, it is impossible to ignore the fact that sectarianism continues to exist at many levels in Scottish football. We need to go beyond tokenistic and superficial gestures to deeply embed an anti-sectarian ethos into, and across, every area. There are good examples of where this has been done and Scottish football’s governing bodies should consider how anti-sectarian work can become deeply embedded in this way ... In addition, we believe that Scottish football’s governing bodies and clubs should financially support work to tackle sectarianism through grassroots football, including pro-active work to tackle sectarianism within youth, amateur and junior football ...

We also believe that sporting sanctions should be introduced and applied to clubs where sectarianism persists. We recommend that Scottish football’s governing bodies introduce a system of penalties for football clubs along the lines of the UEFA (Union of European Football Associations) anti-racism guidelines ...

We also recommend that:

Scottish football’s governing bodies and clubs should provide active support to allow coaches and officials to tackle any sectarian behaviour they encounter ...;

Scottish football’s governing bodies, clubs and supporter groups should publicly recognise that sectarianism belittles everyone involved in football and actively work to define football clubs in a positive rather than negative way ...;

Football clubs should clearly and publicly disassociate themselves from sectarian behaviour, both inside and outside the grounds, through positive, public cross-club engagement and by becoming role models of anti-sectarian behaviours ...;

Police Scotland should be given full support by football’s governing bodies and clubs to deal with criminal football-related sectarianism in appropriate and proportionate ways and to standardise the policing of such behaviour across Scotland ...”

A Football Summit, chaired by the First Minister and attended by Scottish Ministers, the police, football clubs and football authorities, took place on 8 March 2011. The Summit was organised to try and address a pattern of increased violence and disorder during Old Firm games. Following the Summit, a joint statement was issued which included an eight-point commitment plan to tackle violence, bigotry and alcohol misuse in Scottish football and more widely across Scottish society.

A Joint Action Group was set up to take forward the commitments of the Summit. On 11 July 2011 it published a report containing recommendations to help improve the game and to contribute positively to wider efforts to tackle these social issues.

The Scottish Parliament subsequently enacted the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, which entered into force on 1 March 2012. The Act criminalises behaviour which is threatening, hateful or otherwise offensive at a regulated football match. It also criminalises the communication of threats of serious violence and threats intended to incite religious hatred.

The European Convention on Spectator Violence and Misbehaviour at Sports Events and in particular at Football Matches (CETS No. 120) was ratified by the United Kingdom in 1985.

In its preamble, it expresses concern at violence and misbehaviour amongst spectators at sports events, and in particular at football matches. It further notes that violence is a current social phenomenon with wide repercussions, whose origins lie mainly outside sport, and that sport is often the scene for outbreaks of violence. It sets out a number of measures, aimed at preventing violence and controlling the problem of violence and misbehaviour by spectators at sports events. These measures include close co-operation between police forces involved; prosecution of offenders and application of appropriate penalties; strict control of ticket sales; restrictions on the sale of alcoholic drinks; and appropriate design and physical fabric of stadia to prevent violence and allow effective crowd control and safety.


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 35-3 - Continuing situation);Preliminary objection joined to merits and dismissed (Article 34 - Victim);Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 of Protocol No. 1 - Positive obligations;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Possessions);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life;Respect for home;Respect for private life);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Just satisfaction reserved (Article 41 - Just satisfaction)

Alvina Gyulumyan;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Egidijus Kūris;Elisabet Fura;Françoise Tulkens;Ganna Yudkivska;George Nicolaou;Giorgio Malinverni;Guido Raimondi;Ineta Ziemele;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Luis López Guerra;Mark Villiger;Nicolas Bratza;Paulo Pinto De Albuquerque;Peer Lorenzen;Robert Spano;Sverre Erik Jebens;Ksenija Turković

At the time of the demise of the USSR, the Nagorno-Karabakh Autonomous Oblast (“the NKAO”) was an autonomous province of the Azerbaijan Soviet Socialist Republic (“the Azerbaijan SSR”). Situated within the territory of the Azerbaijan SSR, it covered 4,388 sq. km. There was at that time no common border between Nagorno-Karabakh (known as Artsakh by its Armenian name) and the Armenian Soviet Socialist Republic (“the Armenian SSR”), which were separated by Azerbaijani territory, at the shortest distance by the district of Lachin, including a strip of land often referred to as the “Lachin corridor”, less than ten km wide.

According to the USSR census of 1989, the NKAO had a population of around 189,000 consisting of 77% ethnic Armenians and 22% ethnic Azeris, with Russian and Kurdish minorities.

In early 1988 demonstrations were held in Stepanakert, the regional capital of the NKAO as well as in the Armenian capital of Yerevan, demanding the incorporation of Nagorno-Karabakh into Armenia. On 20 February 1988 the Soviet of the NKAO appealed to the Supreme Soviets of the Armenian SSR, Azerbaijan SSR and the USSR that the NKAO be allowed to secede from Azerbaijan and join Armenia. The request was rejected by the Supreme Soviet of the USSR on 23 March. In June it was also rejected by the Supreme Soviet of Azerbaijan whereas its counterpart in Armenia voted in favour of unification.

Throughout 1988 the demonstrations calling for unification continued. The district of Lachin was subjected to roadblocks and attacks. The clashes led to many casualties and refugees, numbering hundreds of thousands on both sides, flowed between Armenia and Azerbaijan. As a consequence, on 12 January 1989 the USSR Government placed the NKAO under Moscow’s direct rule. However, on 28 November of that year, control of the province was returned to Azerbaijan. A few days later, on 1 December, the Supreme Soviet of the Armenian SSR and the NagornoKarabakh regional council adopted a joint resolution, “On the reunification of Nagorno-Karabakh with Armenia”.

In early 1990, following an escalation of the conflict, Soviet troops arrived in Baku and Nagorno-Karabakh, and the latter province was placed under a state of emergency. Violent clashes between Armenians and Azeris continued, however, with the occasional intervention by Soviet forces.

On 30 August 1991 Azerbaijan declared independence from the Soviet Union. This was subsequently formalised by means of the adoption of the Constitutional Act on the State Independence of 18 October 1991. On 2 September 1991 the Soviet of the NKAO announced the establishment of the “Nagorno-Karabakh Republic” (hereinafter “the NKR”), consisting of the territory of the NKAO and the Shahumyan district of Azerbaijan, and declared that it was no longer under Azerbaijani jurisdiction. On 26 November 1991 the Azerbaijani Parliament abolished the autonomy previously enjoyed by Nagorno-Karabakh. In a referendum organised in Nagorno-Karabakh on 10 December 1991, 99.9% of those participating voted in favour of secession. However, the Azeri population boycotted the referendum. In the same month, the Soviet Union was dissolved and Soviet troops began to withdraw from the region. Military control of NagornoKarabakh was rapidly passing to the Karabakh Armenians. On 6 January 1992 the “NKR” having regard to the results of the referendum, reaffirmed its independence from Azerbaijan.

In early 1992 the conflict gradually escalated into full-scale war. By the end of 1993, ethnic Armenian forces had gained control over almost the entire territory of the former NKAO as well as seven adjacent Azerbaijani regions (Lachin, Kelbajar, Jabrayil, Gubadly and Zangilan and substantial parts of Agdam and Fizuli).

On 5 May 1994 a ceasefire agreement (the Bishkek Protocol) was signed by Armenia, Azerbaijan and the “NKR” following Russian mediation. It came into effect on 12 May.

According to a Human Rights Watch report (“Seven years of Conflict in Nagorno-Karabakh”, December 1994), between 1988 and 1994 an estimated 750,000-800,000 Azeris were forced out of NagornoKarabakh, Armenia, and the seven Azerbaijani districts surrounding Nagorno-Karabakh. According to information from Armenian authorities, 335,000 Armenian refugees from Azerbaijan and 78,000 internally displaced persons (from regions in Armenia bordering Azerbaijan) have been registered.

According to the Armenian Government, the “NKR” controls 4,061 sq. km of the former Nagorno-Karabakh Autonomous Oblast. While it is debated how much of the two partly conquered districts is occupied by the “NKR”, it appears that the occupied territory of the seven surrounding districts in total amounts to 7,500 sq. km.

Estimates of today’s population of Nagorno-Karabakh vary between 120,000 and 145,000 people, 95% being of Armenian ethnicity. Virtually no Azerbaijanis remain.

No political settlement of the conflict has so far been reached. The self-proclaimed independence of the “NKR” has not been recognised by any State or any international organisation. Recurring breaches of the 1994 ceasefire agreement along the borders have led to the loss of many lives and the rhetoric of officials remains hostile. Moreover, according to international reports, tension has heightened in recent years and military expenditure in Armenia and Azerbaijan has increased significantly.

Several proposals for a peaceful solution of the conflict have failed. Negotiations have been carried out under the auspices of the OSCE (Organization for Security and Co-operation in Europe) and its so-called Minsk Group. In Madrid in November 2007 the Group’s three Co-Chairs – France, Russia and the United States – presented to Armenia and Azerbaijan a set of Basic Principles for a settlement. The Basic Principles, which later have been updated, call, inter alia, for the return of the territories surrounding Nagorno-Karabakh to Azerbaijani control, an interim status for Nagorno-Karabakh providing guarantees for security and self-governance, a corridor linking Armenia to Nagorno-Karabakh, a future determination of the final legal status of Nagorno-Karabakh through a legally binding referendum, the right of all internally displaced persons and refugees to return to their former places of residence, and international security guarantees that would include a peacekeeping operation. The idea is that the endorsement of these principles by Armenia and Azerbaijan would enable the drafting of a comprehensive and detailed settlement. Following intensive shuttle diplomacy by Minsk Group diplomats and a number of meetings between the Presidents of the two countries in 2009, the process lost momentum in 2010. So far the parties to the conflict have not signed a formal agreement on the Basic Principles.

On 24 March 2011 the Minsk Group presented a “Report of the OSCE Minsk Group Co-Chairs’ Field Assessment Mission to the Occupied Territories of Azerbaijan Surrounding Nagorno-Karabakh”, the executive summary of which reads as follows:

“The OSCE Minsk Group Co-Chairs conducted a Field Assessment Mission to the seven occupied territories of Azerbaijan surrounding Nagorno-Karabakh (NK) from October 7-12, 2010, to assess the overall situation there, including humanitarian and other aspects. The Co-Chairs were joined by the Personal Representative of the OSCE Chairman-in-Office and his team, which provided logistical support, and by two experts from the UNHCR and one member of the 2005 OSCE Fact-Finding Mission. This was the first mission by the international community to the territories since 2005, and the first visit by UN personnel in 18 years.

In traveling more than 1,000 kilometers throughout the territories, the Co-Chairs saw stark evidence of the disastrous consequences of the Nagorno-Karabakh conflict and the failure to reach a peaceful settlement. Towns and villages that existed before the conflict are abandoned and almost entirely in ruins. While no reliable figures exist, the overall population is roughly estimated as 14,000 persons, living in small settlements and in the towns of Lachin and Kelbajar. The Co-Chairs assess that there has been no significant growth in the population since 2005. The settlers, for the most part ethnic Armenians who were relocated to the territories from elsewhere in Azerbaijan, live in precarious conditions, with poor infrastructure, little economic activity, and limited access to public services. Many lack identity documents. For administrative purposes, the seven territories, the former NK Oblast, and other areas have been incorporated into eight new districts.

The harsh reality of the situation in the territories has reinforced the view of the CoChairs that the status quo is unacceptable, and that only a peaceful, negotiated settlement can bring the prospect of a better, more certain future to the people who used to live in the territories and those who live there now. The Co-Chairs urge the leaders of all the parties to avoid any activities in the territories and other disputed areas that would prejudice a final settlement or change the character of these areas. They also recommend that measures be taken to preserve cemeteries and places of worship in the territories and to clarify the status of settlers who lack identity documents. The Co-Chairs intend to undertake further missions to other areas affected by the NK conflict, and to include in such missions experts from relevant international agencies that would be involved in implementing a peace settlement.”

On 18 June 2013 the Presidents of the Co-Chair countries of the Minsk group issued a joint statement on the Nagorno-Karabakh conflict:

“We, the Presidents of the OSCE Minsk Group Co-Chair countries – France, the Russian Federation, and the United States of America – remain committed to helping the parties to the Nagorno-Karabakh conflict reach a lasting and peaceful settlement. We express our deep regret that, rather than trying to find a solution based upon mutual interests, the parties have continued to seek one-sided advantage in the negotiation process.

We continue to firmly believe that the elements outlined in the statements of our countries over the last four years must be the foundation of any fair and lasting settlement to the Nagorno-Karabakh conflict. These elements should be seen as an integrated whole, as any attempt to select some elements over others would make it impossible to achieve a balanced solution.

We reiterate that only a negotiated settlement can lead to peace, stability, and reconciliation, opening opportunities for regional development and cooperation. The use of military force that has already created the current situation of confrontation and instability will not resolve the conflict. A renewal of hostilities would be disastrous for the population of the region, resulting in loss of life, more destruction, additional refugees, and enormous financial costs. We strongly urge the leaders of all the sides to recommit to the Helsinki principles, particularly those relating to the non-use of force or the threat of force, territorial integrity, and equal rights and self-determination of peoples. We also appeal to them to refrain from any actions or rhetoric that could raise tension in the region and lead to escalation of the conflict. The leaders should prepare their people for peace, not war.

Our countries stand ready to assist the sides, but the responsibility for putting an end to the Nagorno-Karabakh conflict remains with them. We strongly believe that further delay in reaching a balanced agreement on the framework for a comprehensive peace is unacceptable, and urge the leaders of Azerbaijan and Armenia to focus with renewed energy on the issues that remain unresolved.”

The applicant, an ethnic Armenian, states that he and his family used to live in the village of Gulistan in the Shahumyan region of the Azerbaijan SSR. He claims to have had a house and outhouses there.

Geographically, Shahumyan shared a border with the NKAO and was situated to the north of it. The region did not form part of the NKAO, but was later claimed by the “NKR” as part of its territory (see paragraph 19 above). According to the applicant, 82% of the population of Shahumyan had been ethnic Armenians prior to the conflict.

In February 1991 Shahumyan was abolished as a separate administrative region and was formally incorporated into the present-day Goranboy region of the Republic of Azerbaijan.

In April-May 1991 the USSR Internal Forces and the specialpurpose militia units (“the OMON”) of the Azerbaijan SSR launched a military operation with the stated purpose of “passport checking” and disarming local Armenian militants in the region. However, according to various sources, the government forces, using the official purpose of the operation as a pretext, expelled the Armenian population of a number of villages in the Shahumyan region, thus forcing them to leave their homes and flee to NagornoKarabakh or Armenia. The expulsions were accompanied by arrests and violence towards the civilian population. In 1992, when the conflict escalated into a full-scale war, Shahumyan region came under attack by Azerbaijani forces.

The parties’ positions differ in respect of the applicant’s residence and possessions in Gulistan.

The applicant maintained that he had lived in Gulistan for most of his life until his forced displacement in 1992. In support of this claim he submitted a copy of his former Soviet passport issued in 1979, from which it can be seen that the applicant was born in Gulistan. He also submitted his marriage certificate, which shows that he and his wife, who was also born in Gulistan, got married there in 1955. In addition, the applicant asserted that, having grown up in Gulistan, he left for some years to complete his military service and to work in the town of Sumgait. A few years after his marriage he returned to Gulistan where he lived until June 1992.

The applicant submitted a copy of an official certificate (“technical passport”) when he lodged the application. According to that document, dated 20 May 1991, a two-storey house in Gulistan and outhouses of a total area of 167 sq. m and 2,160 sq. m of land were registered in the applicant’s name. Furthermore he submitted a detailed plan of the main house.

According to the technical passport, of the 167 sq. m on which the house stood, 76 sq. m were occupied by the main house and 91 by various outhouses including a cow-shed. Of the 2,160 sq. m of land 1,500 were a fruit and vegetable garden. The document also contains information of a technical nature (for instance the building materials used) concerning the main house and the outhouses.

The applicant explained that he had obtained the land by permission of the Village Council to divide his father’s plot of land between him and his brother. The decision was recorded in the Village Council’s register. With the help of relatives and friends, he and his wife built their house on that plot of land in 1962-63. Their four children grew up in the house and he and his wife continued to live there until they had to flee in June 1992. Furthermore, the applicant explained that he had been a secondary school teacher in Gulistan and had earned his living partly from his salary and partly from farming and stock-breeding on his land while his wife had been working at the village’s collective farm since the 1970s.

In addition to the technical passport and the plan of the house mentioned above, the applicant submitted photos of the house and written statements dating from August 2010 from two former officials of the Village Council, Ms Khachatryan and Mr Meghryan. The former states that she was the secretary of the Village Council from 1952 to 1976. She confirms that the Village Council allowed the applicant to divide his father’s plot of land between himself and his brother. Both, Ms Khachatryan and Mr Meghryan who states the he was a member of the Board of the Village Council for some years in the 1970s, claim that entries about the allotment of land to villagers were made in the registration book of the Village Council. A number of further written statements from May 2010 from family members (including the applicant’s wife, two of their children and his son-in-law), former neighbours and friends from Gulistan provide a description of Gulistan and confirm that the applicant was a secondary school teacher and had a plot of land and a two-storey house in the village. They also confirm that a number of outhouses and a fruit and vegetable garden belonged to the applicant’s house, where he and his family lived until June 1992.

The applicant described that Shahumyan region was subjected to a blockade by the Azerbaijani Government in the early 1990s. In 1992 the armed forces started attacking the region. In June 1992 Gulistan came under direct attack by Azerbaijani forces. From 12 to 13 June 1992 the village was heavily bombed. The population of the village, including the applicant and his family members, fled in fear for their lives. The above-mentioned statements of a number of witnesses also provide a description of the blockade of Shahumyan region during the conflict, of the attack on the village and the flight of its inhabitants.

The applicant and his family fled to Armenia. Subsequently, the applicant and his wife lived as refugees in Yerevan. In 2002 the applicant obtained Armenian citizenship. He was seriously ill from 2004 and died on 13 April 2009 in Yerevan.

The respondent Government submitted that it could not be verified whether the applicant had actually lived in Gulistan and had any possessions there. For the period from 1988 to the present date, the relevant departments of the Goranboy region did not possess any documentation concerning the plot of land, house or other buildings allegedly owned by the applicant. Moreover, certain archives of the former Shahumyan region, including the Civil Registry Office and the Passport Office, had been destroyed during the hostilities. No documents relating to the applicant were available in the Goranboy regional archives today.

In support of their position the Government submitted a number of documents, namely: a statement, dated 22 July 2007, by Colonel Maharramov, Head of the Goranboy Regional Police Department confirming that the archives of the Civil Registry Office and of the Passport Office of the former Shahumyan Region had been destroyed during the conflict; a letter from the State Registry Service for Immovable Property of 31 July 2007 according to which the relevant Regional Department’s Archives did not contain any document concerning the applicant’s alleged property rights; a statement dated 5 March 2012 by Mr Mammadov, Chairman of the State Land and Mapping Committee of the Republic of Azerbaijan, according to whom only the Executive Committee of the Soviet of People’s Deputies of the Districts and Cities had been empowered to allocate land under the Land Code of the Azerbaijan SSR.

The parties’ positions also differ in respect of the current situation obtaining in Gulistan. The Armenian Government, as a third-party intervener, also made submissions on the issue.

Regarding the situation in Gulistan, the applicant asserted that the Republic of Azerbaijan had control over the village and in particular that they had positions in the village itself and on its outskirts. In his view there was nothing to prove that Gulistan was on the Line of Contact (LoC) between Azerbaijani and “NKR” forces as claimed by the respondent Government.

In the proceedings prior to the admissibility decision, the applicant submitted a written statement from an anonymous senior officer of the “NKR” armed forces dated 11 August 2010, according to whom Gulistan was under the de facto control of Azerbaijani military forces (see paragraphs 51 and 58 below). Moreover, the applicant asserted that fellow villagers had tried to return to Gulistan on several occasions but had been unable to enter the village as they would have risked to be shot at by Azerbaijani forces.

The Government accepted throughout the proceedings that Gulistan was located on the internationally recognized territory of the Republic of Azerbaijan.

In their submissions prior to the admissibility decision, the Government asserted that Gulistan was physically on the LoC between Azerbaijani and Armenian forces, which had been established by the ceasefire agreement of May 1994. The village was deserted and the LoC was maintained by the stationing of armed forces on either side and by the extensive use of landmines. It was thus impossible for the respondent Government to exercise any control over the area or to have any access to it.

In their submissions after the admissibility decision the Government stated that they did not exercise sufficient control over the village. Referring to the statements of a number of military officers who had served in the Goranboy region and had made statements on the situation in Gulistan (see, paragraph 62 below) they submitted in particular that the village, situated in a “v” shaped valley on the northern bank of the river Inzachay was on the LoC, meaning that it was surrounded by armed forces of Azerbaijan on the one side (in the north and east) and of Armenia on the other side (in the south and west). Armenian forces held strategically advantageous positions on a steep, forested slope south of the river, while Azerbaijani positions on the north bank of the river were situated in lower, relatively open territory. The Government asserted that, as a matter of fact, Gulistan was not under the effective control of either side. It was a contested area and constituted a dangerous environment. The village and its surroundings were mined. Violations of the ceasefire agreement occurred frequently. There were no safe buildings in the area as the village had been destroyed and deserted.

In their pleadings at the hearing of 5 February 2014, the Government underlined that Gulistan was exposed to fire from Armenian military positions situated across the river on a steep slope. In addition, they referred to the AAAS report on Gulistan (see paragraphs 74 and 75 below), noting that it confirmed, apart from the fact that Gulistan was on Azerbaijani territory, that the area around Gulistan was mountainous and was the object of sustained military activity and that the village had been destroyed. They maintained that the area was mined and inaccessible to any civilian.

The intervening Government maintained throughout the proceedings that the respondent Government had full, effective control over Gulistan.

At the hearing of 15 September 2010 they had contested the respondent Government’s assertion that Gulistan was on the LoC. Referring to the written statement of 11 August 2010 by an anonymous senior officer of the “NKR” armed forces serving near Gulistan which had been submitted by the applicant, the Agent of the Armenian Government had declared that he had been personally present when the statement had been made and confirmed its correctness. On the basis of this statement, the Armenian Government asserted that in the area at issue, the dividing line between the armed forces of the “NKR” and the Republic of Azerbaijan was a gorge through which the river Indzachay was flowing. Gulistan was situated north of the riverside and was under the control of Azerbaijani armed forces who had military positions in the village itself and on its outskirts, while “NKR” forces were stationed on the other side of the gorge. They also referred to the DVD containing footage of the village submitted to the Court by the applicant in 2008 (see paragraph 56 below) claiming that the person who can be seen walking between the houses, was an Azerbaijani soldier. The Armenian Government maintained that it was impossible for “NKR” forces or any Armenian to have access to the village.

In their submissions following the admissibility decision, the Armenian Government disclosed the identity of the senior “NKR” officer at the Court’s request. The officer in question is Colonel Manukyan of the “NKR” Defence Army. Moreover, the Armenian Government submitted that their Agent, Mr Kostanyan, had obtained permission from the “NKR” authorities and had visited the territory near Gulistan in May 2012. He had obtained DVD material and recorded interviews with three “NKR” officers describing the situation on the ground in and near Gulistan (see paragraph 71 below). The Armenian Government also replied to the Court’s question concerning their assertion made at the hearing of 15 September 2010 that the man walking between the ruins on the DVD submitted by the applicant in 2008 was an Azerbaijani soldier: While stating that they were not in a position to comment on that man’s identity, they referred to statements of the “NKR” military officers according to whom there were Azerbaijani military positions in Gulistan, while there was no presence of civilians.

At the hearing of 5 February 2014 the Armenian Government repeated their description of the situation pertaining in Gulistan. Moreover, they asserted that Azerbaijani military presence in the area had also been confirmed by the AAAS report.

The parties have submitted extensive documentary material in support of their respective positions. The following paragraphs contain a short description of the main items of evidence.

A map of Gulistan and its surroundings: It appears to be a copy of an official map with names in Azeri, showing the entire village on the north bank of a river (Indzachay). The alleged positions of the Azerbaijani forces are indicated as follows: one is in the middle of the village, a few more are on its northern edge, others are also spread out on the north bank of the river but are further away, most of them apparently on the heights around the village.

A DVD, submitted with his observations of 21 February 2008, containing footage of Gulistan and its surroundings. The village is situated on a hillside. Many of the houses are in ruins, while a few still have intact roofs. Smoke is rising from some chimneys. At one point a man walking between the ruins appears. On a hillside situated in some distance from the village, constructions are to be seen which appear to be firing positions.

A letter by the “Minister of Defence of the NKR” of 14 February 2008 describing the situation on the ground in Gulistan and claiming in particular that the Azerbaijani Armed Forces had several posts and shooting points right in the village.

A statement dated 11 August 2010 by a senior officer of the “NKR” forces serving in a military position near the village of Gulistan since 2005 (see the summary of the statement at paragraph 51 above). The statement was accompanied by a hand-drawn map of Gulistan and its surroundings and a number of photos showing the area. The officer, who had initially remained anonymous, is Colonel Manukyan from the “NKR” Defence Army.

A statement of Mr Aloyan, assistant to the representative of the applicant, who recorded the statement by the “NKR” officer on the spot, i.e. at the military unit near Gulistan, confirming the contents of that officer’s statement and that the photos were taken from the “NKR” military position.

A Statement of Mr Kostanyan, Agent of the Armenian Government, in whose presence the senior “NKR” officer made his statement at his military unit close to Gulistan.

Statements dated March 2012 from three former villagers of Gulistan who claimed that they had unsuccessfully tried to return to the village of Gulistan between 2002 and 2004. They claim to have approached the area on the “NKR” side of the ceasefire line, two of them state that they were able to look down on the village from the height of Napat, but were prohibited from moving any further by the “NKR” soldiers accompanying them due to the risk of sniper fire from the opposing forces. One of them states that with the aid of binoculars, he was able to see a number of entrenchments in the village and a soldier standing there.

A map of Gulistan and its surroundings. The map shows the entire village on the north bank of the river Indzachay, the Azerbaijani military positions are also on the north bank of the river mostly on the heights around the village. The “NKR” positions are on the south bank of the river the closest being right opposite the village.

A map of Nagorno Karabakh submitted by the Armenian Government in Chiragov and Others v. Armenia (cited above). The map shows Gulistan on the very border of the “NKR” to the north of a river.

A map of Azerbaijan published in 2006 by the State Land and Cartography Committee of the Republic of Azerbaijan. The map shows Gulistan on the very border of the area occupied by the “NKR”. On the map the occupied areas are shaded and surrounded by a red line; Gulistan is on that red line but outside the shaded area, to the north of a river.

Two DVDs containing footage of Gulistan and its surroundings, (one submitted in September 2008, the other in July 2012). The first shows the village in a hilly landscape, with most houses in ruins, plus some constructions on the crest of a hill which appear to be firing positions. The second again shows the village (houses in ruins and destroyed agricultural machines) and the surrounding landscape and is accompanied by a text explaining in particular that there is no habitation in the village, that the Armenian positions are on a forested slope and control the village with large calibre guns, while Azerbaijani positions are at a distance of some 2.5 km and can only visually control the village.

Statements made in March 2012 by six Azerbaijani army officers, Colonel Babayev, who served in a military unit in Goranboy region from 1994 to 1997, and Colonel-lieutnants Abdulov, Mammadov, Ahmadov, Abbasov, and Huseynov who served in military units in Goranboy region at various periods between 1999 and 2009 and describe the situation on the ground in Gulistan as follows:

- Gulistan is on the north bank of the river Indzachay;

- Azerbaijani military positions are on the north bank of the river in the east and north-east of Gulistan settlement, situated in lowlands, at distances between 1 and 3 km from the destroyed village;

- Armenian military positions are on the south bank of the river in the west and south-west of Gulistan settlement, situated on strategically better upland positions (steep slopes covered with forest). The estimates given by the officers in respect of the distance at which the nearest Armenian positions are located vary between 200-300 m and 1 km;

- ceasefire violations by the Armenian forces are frequent;

- they contest the Armenian Government’s assertion that some of the houses in the village have been repaired and are being used as military positions by the Azerbaijani forces;

- the Azerbaijani positions and the village itself are within shooting range of the Armenian positions (fire with large-calibre machine guns); military staff can therefore not move freely in the area but only on designated routes;

- there are no civilians in the village;

- most of the buildings (some 100 houses) in the village were destroyed during the hostilities. As the village has been deserted since 1992 houses have decayed, roofs have collapsed and trees are now growing inside the destroyed buildings. There are currently no habitable buildings left; after the hostilities, Armenian forces mined the territory of the settlement, these mines are sometimes triggered by animals;

- Colonel-lieutenant Abdulov states to have observed movements of Armenian military in the ruins in the south part of Gulistan settlement, Colonel-lieutenant Mammadov claims to have seen Armenian military servants moving from their positions towards the river. Colonel-lieutenants Abbasov and Huseynov state that they observed Armenian military forces destroying buildings and using the material for their fortifications.

Information by the Azerbaijani Ministry of Defence covering the period from 2003 to 2010 on ceasefire violations indicating an increase from 2008 (20 in 2008, 35 in 2009 and 52 in 2010) and casualties in the area of Gulistan as a result of mine explosions (5 soldiers killed on 5 August 2003) or violations of the ceasefire (one soldier killed on 25 February 2005).

A letter by the Director of the National Agency for Mine Action dated 12 July 2010 stating that Gulistan village in the Goranboy region was “defined as a territory with an extensive mine and unexploded ordinance (UXO) contamination”.

Statements made in March 2012 by eight villagers living in neighbouring settlements, Meshali village and Yukhari Aghjakand town. They describe that the village of Gulistan is deserted and that the surroundings are mined and regularly come under fire from the Armenian positions.

Two press releases of October 2006 from an Armenian source relating to an OSCE mission monitoring the border line between NagornoKarabakh and Azerbaijan near village Gulistan.

Numerous press releases from the Azeri Press Agency issued between June 2010 and May 2012 mentioning ceasefire violations in various areas including the area of Gulistan. The text most frequently used by these press releases reads as follows: “Armenian Armed Forces fired on the opposite Azerbaijani Armed Forces from posts near Gulistan village” or “...from posts in nameless upland near Gulistan village” or “enemy units fired on the positions of Azerbaijani Armed Forces from the posts [...] near Gulistan village of Azerbaijan’s Goranboy region. One of these press releases, dated 3 March 2012 reports that “Azerbaijani lieutenant Gurban Huseynov has stricken a mine in Gulistan village in the frontline of Goranboy region. Consequently, he lost his leg”.

A statement by International Campaign to Ban Landmines of 20 September 2013 expressing concern about the increased placement of anti-personnel landmines by the Nagorno-Karabakh authorities along the Armenian-Azerbaijani line of contact east and north of the disputed territory.

A map of Gulistan and its surroundings, which shows the entire village on the north bank of the river Idzachay. The Azerbaijani positions are also on the north bank of the river and very close to the village (to the east and west of it and on its northern edge) while the “NKR” positions are on the south bank of the river, the closest being just opposite the village.

A DVD, submitted in July 2012, containing footage of Gulistan and its surroundings and interviews taken on the spot by Government Agent, Mr Kostanyan, with three “NKR” army officers serving in the military unit near Gulistan (for their contents see paragraph 71 below). It shows the village, which most houses in ruins, and the landscape around it. Towards the end of the video, a herd of sheep and some persons can be seen moving behind the destroyed village.

Transcripts of the interviews recorded in May 2012 with Unit commander Sevoyan, Sergeant Petrosyan and officer Vardanyan, serving in the “NKR” military unit located near Gulistan. They describe the situation on the ground as follows:

- the Azerbaijani military forces have positions in the village and sometimes perform combat duties there, but their permanent location point is in the rear;

- there are no mines in the village itself but the area surrounding it has been mined by the Azerbaijani forces (they notice that from time to time animals trigger a mine);

- sometimes there are ceasefire violations by the Azerbaijani side; if they are negligent they risk to be shot at from the Azerbaijani positions;

- it happened several times that former villagers of Gulistan came to the area wishing to visit their village. Due to dangers from snipers or combat weapons’ fire from the Azerbaijani side, they did not allow them to approach the village.

On 12 September 2013 the Court requested the American Association for the Advancement of Science (“the AAAS”) in the framework of its “Geospatial Technologies and Human Rights” programme to provide a report on the following issues: the location of military positions such as trenches and fortifications in and around the village of Gulistan, for the period between the entry into force of the Convention in respect of Azerbaijan (15 April 2002) to the present, and also on the state of destruction of buildings in the village and of the village’s cemeteries at the time of the Convention’s entry into force (15 April 2002).

The report “High-resolution satellite imagery assessment of Gulistan, Azerbaijan, 2002-2012” (“the AAAS report”) was submitted to the Court in November 2013. On the basis of interpretation of highresolution satellite images from 2005, 2009 and 2012 obtained from public sources, the report provides the following information.

In respect of military structures it notes that there are trenches and revetments in the village and adjacent to it in the 2005 and 2009 images, a build-up having taken place in the intervening period, while after 2009 trenches seem to have fallen into disuse, as is shown by the fading visual signature of these trenches in the 2012 image. In the area surrounding Gulistan military activity was apparent. Military build-up in the 2005 to 2009 period, concerning trenches, revetments, military buildings, vehicles and vehicle tracks was followed by continued military development in the region over the period 2009 to 2012, but of a different type, in that trenches and revetments fell into disuse, while military buildings and vehicle presence continued to increase.

In respect of the destruction of buildings, the report indicates that most of the approximately 250 houses in the village are destroyed, the term “destroyed” meaning that they are no longer intact. The report notes that building degradation and vegetation overgrowth obscured building footprints and made structure counts difficult. While in 2005 some 33 buildings remained intact, there were only 17 in 2009 and 13 in 2012. For most of the destroyed buildings outer and interior walls have been preserved while roofs have collapsed. While the state of the buildings suggests burning as a possible cause of destruction, the report underlines that the cause of the destruction could not be determined via satellite imagery, in particular, it was not always possible to state whether or not buildings had been destroyed deliberately. No cemeteries were identifiable on the satellite imagery. The report suggests that this might be due to vegetation overgrowth.