Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

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

The applicant was born in 1986 and lives in Pskov.

At about 2 a.m. on 17 August 2005 the applicant was travelling in a car with B. – who was driving – M. and T. Their car was stopped by the police. Police Officers F. and K. asked for their ID cards. The applicant, who did not have his ID card on him, was taken to Zavelichenskiy police station in Pskov.

The applicant described events at the police station as follows. F. and K. had demanded that he stand facing a wall, hands raised, and had searched him. They had allegedly insulted him verbally and physically. In particular, they had punched him repeatedly in the face and the lumbar region and had tried to knock him down.

They then took him to the Pskov regional addiction-treatment clinic. When coming out of the police station they were approached by B., M., T. and I., the applicant’s brother. According to statements by B. and I., the applicant was depressed, his sweater was dirty and the bridge of his nose was red. I. also saw injuries on the applicant’s torso when he asked the applicant to lift his sweater.

At 2.56 a.m. a doctor at the addiction-treatment clinic carried out a breath test and tested his coordination. She stated in a record of “medical examination for establishment of alcohol consumption and state of inebriation” that the applicant’s examination had been initiated by Officer K. in connection with an administrative offence, and that the applicant had consumed alcohol but had revealed no signs of inebriation. She noted in the part of the record concerning the tested person’s “appearance” that the applicant had no injuries, and in the part concerning “vegetative-vascular reactions” that his face was “hyperemic”.

According to the applicant, the doctor did not ask him to undress and did not examine his body. Nor was he asked to sign the record of his examination or given its copy.

After the test the applicant was taken back to the police station. At the request of a police officer he signed a statement that at about 1 a.m. on 17 August 2005, when passing by a bus stop in B.’s car, he had called out through an open window to girls at the bus stop inviting them for a drive in the car. After that a police car had followed them and B. had stopped the car. The police officers had ordered him to proceed with them to the police station “for the reason that he had used foul language”.

At about 5 a.m. he was released.

At 10 a.m. the applicant was examined at his request by a forensic-medical expert at the Pskov Regional Forensic-Medical Bureau. The applicant explained that he had been punched and kicked by two police officers at about 2 a.m. that day. According to the medical report, the applicant had the following injuries: (i) an abrasion measuring 1.2 by 0.2 cm on the bridge of the nose, (ii) a bruise measuring 2 cm by 2 cm in the area of the right cheekbone, (iii) a bruise measuring 2.5 by 1 cm on a finger of the left hand, and (iv) a bruise measuring 2.5 by 2 cm on the left side of the lumbar region. The expert concluded that the injuries, which were not considered harmful to the applicant’s health, could have been caused on that day by hard blunt objects, for example by fists or feet.

On the same day Officer K. lodged a criminal complaint that at 2.10 a.m. on 17 August 2005 the applicant had sworn at him through an open car window when passing by. In the course of enquiries into the police officer’s allegations the applicant denied swearing or any other misbehaviour on his part. The Pskov police found no elements of criminal offences such as hooliganism (Article 213 § 1 of the Criminal Code) or insult of a public official (Article 319 of the Criminal Code) in the applicant’s actions and refused to institute criminal proceedings against him (decision of 24 August 2005).

On 22 August 2005 the applicant complained to the Pskov town prosecutor’s office about the unlawful actions of the police officers, indicating their service identification numbers.

Investigators of the Pskov town prosecutor’s office carried out a preinvestigation inquiry and refused to institute criminal proceedings into the applicant’s complaint. Their two decisions of 7 October and 2 December 2005 were annulled by their superiors, who considered that the decisions had been based on an incomplete inquiry.

In the most recent refusal of 23 December 2005 to institute criminal proceedings for lack of the elements of a crime in the actions of the police officers, the investigator established the facts as follows, relying on the police officers’ statements. At 2 a.m. on 17 August 2005 the applicant had addressed F. and K. with foul language from the window of his car, which had stopped near their police car. After that, the car with the applicant had started driving away. F. and K. had pursued the car and stopped it. They had taken the applicant to the police station. K. had explained to the applicant that he had been arrested for having committed a criminal offence under Article 319 of the Criminal Code (insult of a public official). On their way to the police station the applicant had behaved provocatively and threatened the police officers that they would have problems at work and would be dismissed. During the applicant’s escorting to the police station the police officers had not used physical force or any means of restraint. F. and K. had taken the applicant from the police station to an addiction-treatment clinic for a medical examination because he had been drunk. Before leaving for the clinic they had been approached by the applicant’s brother, who had enquired about the reasons for the applicant’s detention and a further procedure. The applicant’s brother had suggested that the applicant should have simulated concussion and complained that he had been beaten up by the police officers.

The investigator further noted that the drug-clinic doctor had not recorded any injuries on the applicant; and that in his statement signed at the police station the applicant had not denied using foul language and had not complained of any use of force or means of restraint against him. The investigator dismissed statements by I., M. and T. in support of the applicant’s allegations as unreliable and held that the applicant’s allegations had not been confirmed.

On 31 January 2006 the Pskov Town Court dismissed the applicant’s appeal against the investigator’s decision of 23 December 2005. It noted that F. and K. had “categorically” denied that they had beaten up the applicant. It held that there was no evidence of the applicant’s illtreatment at the police station and that his injuries could have been received in “other circumstances”. On 22 March 2006 the Pskov Regional Court upheld the Town Court’s decision on the applicant’s appeal. It stressed that there had been no eyewitnesses to the applicant’s alleged ill-treatment, and that the applicant had not complained of any ill-treatment to the drug-clinic doctor. Referring to the “categorical” denial of any ill-treatment by F. and K., the Regional Court held that the applicant had failed to prove his ill-treatment and that he could have received his injuries in “other circumstances” on 17 August 2005, in a time span between his examination at the addictiontreatment clinic and his examination by the forensic-medical expert.

The applicant was born in 1987 and lives in Novyy Toryal in the Mariy-El Republic.

At about 1 a.m. on 31 March 2007 a car without a licence plate, in which the applicant and other young men were going home after a party, was stopped by the traffic police officer. Soon another police car arrived with four or five police officers who, according to the applicant, pushed him and the other young men to the ground, and punched and kicked them. The applicant identified the police officers as M., O., S., V. and Zh.

The applicant and the other three men were taken to the police station in Novyy Toryal, where they arrived at 1.45 a.m.

According to the applicant, the events at the police station were as follows. Police Officers M., O. and S. interviewed him, asking who had been driving the car and whether the car had been stolen. The applicant denied that he had been driving the car and stated that the driver had run away and that he did not know him. The police officers repeatedly punched and kicked him in the head and on other parts of his body.

At 3.20 a.m. the applicant and the others were released. The applicant’s mother met them at the police station and called the ambulance. All four men were taken to the emergency unit of Novyy Toryal Central District Hospital, where they were recorded as having injuries.

The applicant was examined at 3.26 a.m. and admitted to the hospital surgical unit in a condition of “medium seriousness” at 4.20 a.m. His right ear was swollen and bleeding. He had a swelling on the back of the head measuring 7 by 4 cm, numerous bruises on the face and temples, and numerous abrasions on the back, neck, shoulders, the right side of the torso and one of his fingers. He had no alcohol on his breath. He was diagnosed with closed craniocerebral injury, brain contusion, traumatic perforation of the right eardrum and numerous contusions to the head and the lumbar region. He was exempted from attending school until 22 April 2007 due to his temporary disability on account of the closed craniocerebral injury and concussion. The hospital communicated information about the applicant’s hospitalisation with injuries allegedly received as a result of his illtreatment by police officers to the Novyy Toryal police.

On 31 March 2007 the Novyy Toryal police officers reported to their superior that they had pursued a car which had had no licence plates and had not stopped at their initial order. When the car had eventually stopped, several young men, seemingly drunk, had sworn at them, refused to get into the police car and tried to run away. The police officers had used force to overcome their resistance, managing to restrain them on the ground and search them, and had then taken them to the police station.

On the same day the applicant’s mother complained to the Novyy Toryal district prosecutor’s office about the unlawful actions of the police officers. An investigator of the Novyy Toryal district prosecutor’s office carried out a pre-investigation inquiry into her complaint.

On 4 April 2007 the applicant was examined by a forensic-medical expert from the Novyy Toryal division of the Mariy-El Republic ForensicMedical Bureau. The applicant had bruises around both eyes and an abrasion measuring 4 by 2 cm on the back of the head. Having examined the applicant’s hospital records, the expert concluded in a report of 13 April 2007 that the applicant’s injuries, notably brain contusion, traumatic perforation of the right eardrum, bruises on the face, abrasions on the head, torso and limbs and swelling in the lumbar region, could have been sustained on 31 March 2007 by impacts from hard, blunt objects. The injuries had resulted in short-term health issues for the applicant including a temporary incapacity for work lasting up to three weeks, that is to say minor harm to his health.

On 8 May 2007 the Novyy Toryal police brought administrative proceedings against the applicant, issuing administrative-offence records and a decision which stated that at 1 a.m. on 31 March 2007 the applicant had driven a car without a licence plate and without a driving licence and had not stopped the car on a police officer’s repeated order. A fine was imposed on the applicant.

On 9 May 2007 a deputy prosecutor of the Novyy Toryal district prosecutor’s office decided that material concerning the applicant’s unlawful driving on 31 March 2007 should be examined separately from the material concerning the applicant’s alleged ill-treatment.

On 20 May 2007 the Novyy Toryal police decided that no criminal proceedings should be brought against the applicant, whose actions disclosed no elements of a crime under Article 166 § 1 of the Criminal Code (carjacking). It found that it had been the applicant who had been driving the car with no licence plates before being stopped by the police on 31 March 2007. The applicant had bought it from a third person. However, he had not paid the full price and the previous owner had not given him the documents necessary for reregistering the car in his name and obtaining licence plates.

Investigators of the Novyy Toryal district prosecutor’s office thrice refused to institute criminal proceedings in respect of the applicant’s alleged ill-treatment for lack of the elements of a crime in the police officers’ actions. The refusals were annulled by their superiors, who considered that the inquiry was incomplete.

In the most recent decision of 22 June 2007 the investigator, relying on the police officers’ statements, established the facts as follows. During the night of 30-31 March 2007 the applicant, who had been driving a car without a licence plate, had disobeyed a traffic policeman’s order to stop and had tried to escape, thereby violating the traffic rules and committing administrative offences. However, administrative proceedings had not been brought against him in accordance with the law as a result of negligence on the part of the police officers responsible for drawing up administrative-offence records. The police had acted lawfully in apprehending the applicant and taking him to the police station. Officers O., M., S., V., S.K. and N.K. had lawfully used physical force in the course of the applicant’s apprehension, as a result of which he had sustained the injuries described in the forensic-medical expert’s report.

That decision was declared lawful and well-founded by the Novyy Toryal district deputy prosecutor (report of 24 June 2007) and by the Novyy Toryal District Court (decision of 14 August 2007, upheld by the MariyEl Supreme Court on 26 September 2007).

On 25 February 2013 the Mariy-El Republic deputy prosecutor annulled the decision of 22 June 2007 as unlawful and unfounded and ordered a fresh pre-investigation inquiry.

The applicant was born in 1988 and lives in Diveyevo in Nizhniy Novgorod Region.

At about 11 p.m. on 24 March 2007 the applicant was attending a discotheque at the Diveyevo Cultural Centre when he was approached by Police Officer K., who led him to the police car and took him to the Diveyevo district police station. According to the applicant, Police Officer K. twisted his arms behind his back when leading him to the car.

According to the applicant the events at the police station were as follows. He was requested to stand facing the wall. K., who wore army-type boots, kicked him at least ten times on the legs. Then he was placed in an administrative-detention cell, where he stayed until his release at about noon on 26 March 2007.

In reports to their superiors dated 24 March 2007 Officer K. and two police trainees stated that at 11.30 p.m. on 24 March 2007 at the Diveyevo Cultural Centre the applicant, who had been drunk, had used foul language in their presence, ignoring their orders to stop.

N., a police officer on duty at the Diveyevo police station, drew up an administrative-detention record, in which he stated that the applicant, who had committed petty hooliganism, had been subjected to administrative detention for the purpose of the averting the offence. No injuries on the applicant were mentioned in the part of the record concerning the routine procedure of inspection of detainees for injuries. The time of the record was drawn up was indicated as 11.30 p.m. on 24 March 2007.

Officer T. drew up an administrative-offence record, in which he stated that at 11.30 p.m. on 24 March 2007 at the Diveyevo Cultural Centre the applicant, who was drunk, had used foul language and ignored police officers’ orders to stop. He had thereby committed an administrative offence of petty hooliganism. The time of the drawing-up the record was indicated as 11.40 p.m. on 24 March 2007. The acting head of the Diveyevo district police issued the applicant a fine of 1,000 Russian roubles (RUB). The applicant did not appeal against that decision.

After his release from the police station, at 3.20 p.m. on 26 March 2007 the applicant was examined by a doctor at Diveyevo Hospital, who recorded bruises on the interior of the left calf (in the upper and middle parts), an abrasion on the front of the left shin, a bruise on the left ankle, a bruise on the right knee, a bruise on the left elbow, and an abrasion on the left hand. The applicant was diagnosed with contusions of the left shin, left ankle, right knee and left elbow, and abrasions of the left shin and left hand.

The hospital passed on information about the applicant’s injuries, allegedly inflicted by the police, to the Diveyevo district prosecutor’s office. On the same day the applicant lodged a criminal complaint seeking K.’s prosecution. An investigator of the prosecutor’s office carried out a preinvestigation inquiry.

On 27 March 2007 the applicant was examined by a forensicmedical expert from the Nizhniy Novgorod Regional ForensicMedical Bureau. The applicant had two bruises on the interior of the left calf (in the upper and middle parts) measuring 7 by 3 cm and 10 by 5 cm, a 1.5 by 0.5 cm bruise on the front of the left shin, a 2 by 1 cm bruise on the left ankle, and a 3 by 1.5 cm bruise on the left elbow. He also had an abrasion on the front of the left shin measuring 1.5 by 0.8 cm, an abrasion on the right ankle measuring 1 by 0.4 cm and an abrasion on the left hand measuring 3 by 2 cm. The areas of the back of the left shoulder in the middle part, the left knee, the left shin and the left ankle were painful at palpation. The expert concluded that the injuries, which had not resulted in harm to the applicant’s health, had been caused by hard blunt objects two or three days before the examination, as a result of at least five traumatic impacts (report of 27 March 2007). In reply to the investigator’s additional question as to whether the applicant could have received the injuries when getting into the police car, the expert stated that such a possibility could not be excluded.

The Diveyevo district police carried out an internal inquiry into the applicant’s allegations of ill-treatment, in the course of which K., other police officers and witnesses gave statements about the events in question. On 28 April 2007 the head of the Diveyevo district police approved a report on the inquiry in which the facts were established as follows. After 10 p.m. on 24 March 2007 K. and two police trainees had approached the applicant and rebuked him for using foul language; he had ignored their commands and continued swearing; K. had ordered that he go with them to the police station but he had refused; K. took him by the sleeve and led him to the police car; they took the applicant to the police station. It was established that no physical force had been used against the applicant. A number of other internal inquiries into the same events were carried out later, with the most recent one (report of 4 March 2013 approved by an acting head of the Nizhniy Novgorod regional police force) finding no disciplinary misconduct in K.’s actions. There was no mention in the report of the applicant receiving injuries when getting into the police car. Nor did K. mention it in his statements given in the course of the internal inquiry on 30 November 2007. K. stated that no physical force or means of restraint had been used against the applicant for lack of resistance on his part.

Investigators refused to institute criminal proceedings against Police Officer K. Their refusal was annulled five times by their superiors, who considered that their inquiry was incomplete.

The most recent refusal to institute criminal proceedings for lack of the elements of a crime in K.’s actions was taken on 2 September 2008 by an investigator from the Sarov investigative committee of the Nizhniy Novgorod regional prosecutor’s office. Relying on statements by K. and other police officers, who had denied any violence against the applicant, the investigator held that the applicant could have received the injuries when getting into the police car before being taken to the police station on 24 March 2007. The investigator’s decision was declared lawful and wellfounded in the Sarov Town Court’s decision of 16 January 2009, upheld by the Nizhniy Novgorod Regional Court on 13 March 2009.

In May 2013 the applicant was examined by a psychiatrist. He complained of a sleep disorder on account of his ill-treatment in police custody on 24 March 2007. He was diagnosed with sleep disorder related to the legs injuries sustained on that day and recommended a consultation and treatment by a neurologist and a trauma specialist.

The applicant was born in 1969 and lived in Cheboksary.

At about 12.30 a.m. on 29 June 2006 the applicant’s car was stopped by Officers V. and Z. of the traffic police. According to the applicant, they knocked him to the ground and kicked him repeatedly. The police officers then drew up records, stating that he was drunk. He disagreed, requesting that he be taken for a medical examination which would confirm that he was not. The police officers took him to the Kaliniskiy district police station instead.

According to records drawn up by V. between 12.30 a.m. and 1.50 a.m.: (i) the applicant was suspended from driving because he had signs of alcohol intoxication (alcohol on his breath, red eyes and slurred speech); (ii) he had been ordered to undergo a medical examination to determine whether he had been in a state of alcohol intoxication, but he had refused to do so; (iii) his car had been impounded; and (iv) the applicant had been found to have committed an administrative offence by refusing to undergo a medical examination at the request of the police.

At the police station V. and Z. reported to their superior that the applicant had disobeyed their order to stop his car; that they had pursued him until he had eventually stopped; that he had resisted arrest; and that in order to apprehend him they had twisted his arm behind his back, as a result of which he had fallen.

At about 5 a.m. the applicant was released from the Kaliniskiy district police station.

On the same day both the applicant and Officer Z. lodged criminal complaints with the Kalininskiy district prosecutor’s office, Cheboksary. The applicant complained that he had been beaten up by V. and Z. The latter complained that in the course of the applicant’s apprehension he had hurt his hand when they both had fallen.

On 30 June 2006 an investigator ordered the applicant’s forensicmedical examination, which was carried out on 3 July 2006. A forensic-medical expert from the Chuvashia Republic Forensic-Medical Bureau recorded ten abrasions measuring from 0.2 by 0.1 cm to 10 by 5 cm on the upper and middle parts of the lower right arm, on the right wrist and on both knees. The applicant also had four bruises on the middle part of the right upper arm and on the upper and middle parts of the left upper arm, measuring 1.6 by 1.2 cm, 1.7 by 1.3 cm, 0.9 by 0.3 cm and 0.2 by 0.2 cm. The expert concluded that all injuries, which had not resulted in harm to the applicant’s health, could have been caused by hard blunt objects.

On 3 August 2006 the Justice of the Peace of Court Circuit no. 7 of the Kalininskiy District of Cheboksary held a hearing in the administrative proceedings against the applicant. The applicant contested the police officers’ versions of events on 29 June 2006 and stated that he had not been drunk and had demanded to undergo a medical examination that would have confirmed that fact; however, the police officers had not let him be examined. His statements were supported by a witness. The court found the applicant guilty of disobedience of a police officer’s lawful order to undergo a medical examination to detect alcohol intoxication, and sentenced him to the seizure of his driving licence for a year and a half. On 31 August 2006 the Kalininskiy District Court, following a prior appeal by the applicant, upheld the judgment.

Investigators refused to institute criminal proceedings into the applicant’s alleged illtreatment by the police officers. Their refusals were annulled by their superiors more than twenty times on the grounds that they had been based on an incomplete inquiry. On several occasions the Kalininskiy District Court of Cheboksary rejected the applicant’s appeals on the grounds that the investigators’ decisions had already been annulled. On two occasions the District Court granted the applicant’s appeals and found the decisions unlawful and unfounded.

The most recent refusal to institute criminal proceedings for lack of the elements of a crime in the police officers’ actions was issued on 28 September 2009 by an investigator from the Cheboksary inter-district investigative committee. Relying on the reports by Officers V. and Z. and similar statements given by them later, the investigator held that the applicant’s injuries had been the result of the lawful use of force by the police officers during his arrest. The investigator’s decision was declared lawful and wellfounded in the Kalininskiy District Court’s decision of 12 November 2009, and was upheld by the Chuvashia Supreme Court on 17 December 2009.

In the same decision of 28 September 2009 the investigator dismissed the criminal complaint lodged by Z., finding no fault on the part of the applicant as Z. had fallen and hurt his hand when arresting him.

The applicant brought civil proceedings, seeking to have the investigating authority’s failure to carry out an effective investigation declared unlawful and claiming compensation. On 26 May 2008 the Leninskiy District Court dismissed his application, finding that he had failed to prove that the investigating authority had acted unlawfully, that he had been harmed as a result of its actions or inaction, that there had been a causal connection between specific unlawful behaviour and any harm, and that there had been evidence of an alleged tortfeasor’s liability. It held that domestic law did not provide for compensation of nonpecuniary damage in a case of a delayed decision in reply to a criminal complaint or in a case of the annulment of such a decision. On 30 June 2008, following an appeal by the applicant, the Chuvashia Supreme Court upheld the judgment.

The applicant was born in 1989 and lives in Novocheboksarsk.

At about 6 a.m. on 8 February 2008 the applicant and other young men, who were sitting in his parked car, were approached by traffic-police officers and taken to Novocheboksarsk police station following a complaint from a certain P. that they had broken a window in her car and tried to steal a child seat. The applicant was handcuffed.

The applicant described events at the police station as follows. One of the police officers had grabbed him by the neck with one hand and by his head with the other and hit his face against a wall. The applicant’s two front teeth had fallen out and he had felt unwell. Later, he had asked to have the handcuffs removed as they had been causing him pain. Instead, a police officer lifted his hands shackled behind him, inflicting more pain.

According to the records drawn up by Officer B. between 6.50 a.m. and 9.20 a.m. on 8 February 2008: (i) the applicant was suspended from driving because he had signs of alcohol intoxication (alcohol on his breath, red eyes and trembling fingers); (ii) he was ordered to undergo a medical examination for detecting alcohol intoxication, but refused to do so; (iii) his car was impounded; and (iv) the applicant was found to have committed an administrative offence by refusing to undergo a medical examination at the request of the police. The applicant was subsequently found guilty of disobeying a police officer’s lawful order to undergo a medical examination for detecting alcohol intoxication, and sentenced to the seizure of his driving licence for a year and a half (judgment of the Justice of the Peace of Court Circuit no. 5 of Novocheboksarsk of 14 March 2008, and was upheld by the Novocheboksarsk Town Court on 19 May 2008).

In a report to his superior, Officer M. stated that the applicant had behaved aggressively at the police station and that he himself had hit his head against a wall and had broken his tooth.

No criminal proceedings were brought against the applicant in relation to P.’s complaint in respect of the attempted theft of a child seat (Novocheboksarsk town police decision of 18 February 2008).

After his release at about 6 p.m. on 8 February 2008 the applicant was examined by a doctor at the traumatology unit of the Novocheboksarsk town hospital. The applicant had abrasions on the right side of his face, his lip, the left side of his neck and the wrists, and the crowns of two upper teeth on the right side were broken. On the same day he was examined by a dentist who recorded that the upper front tooth on the right was missing, the crown of the next tooth to the right was broken, and that the two lower front teeth were loose as a result of a traumatic subluxation.

On 12 February 2008 the applicant lodged a criminal complaint that he had been ill-treated at the police station. The Novocheboksarsk investigative committee at the Chuvashiya Republic prosecutor’s office carried out a pre-investigation inquiry.

An investigator obtained an opinion of a forensic-medical expert from the Novocheboksarsk division of the Chuvashia Republic Forensic-Medical Bureau, who considered that the applicant’s injuries could have been received within twenty-four hours of the applicant’s medical examination on 8 February 2008, as a result of an impact from a hard blunt object, for example as a result of hitting a wall as regards the injuries to the front teeth, lip and face. The injuries had resulted in short-term health problems lasting up to three weeks, that is to say minor harm to the applicant’s health.

Investigators of the Novocheboksarsk investigative committee refused to institute criminal proceedings into the applicant’s alleged illtreatment by the police. Their refusal was annulled fourteen times by their superiors, who considered that it had been based on an incomplete inquiry, and a fresh preinvestigation inquiry was ordered.

The most recent refusal to institute criminal proceedings for lack of the elements of a crime in the police officers’ actions was taken by an investigator on 5 November 2009. He cited the police officers’ statements that the applicant had tried to run away, they had therefore handcuffed him in order to take him to the police station, where the applicant himself had struck his face against a wall. Relying on the police officers’ statements, the investigator concluded that the applicant had inflicted the injuries on himself by striking his face against a wall at the police station, and that the abrasions on his neck and wrists had been a result of the lawful use of force by the police officers in the course of his arrest. The investigator’s decision was declared lawful and well-founded by the Novocheboksarsk Town Court’s decision of 23 April 2010, and was upheld by the Chuvashia Supreme Court on 25 May 2010.

The applicant was born in 1971 and lives in Moscow.

At about 5.20 a.m. on 28 May 2008 the applicant was arrested by Police Officers P. and V. in a twenty-four-hour shop and taken to the Mitino district police station of the Moscow North-Western administrative circuit. According to the applicant, in the police car he was slapped in the face several times, and at the police station the police officers repeatedly punched him in the head and other parts of the body and kicked him in the chest.

In their reports concerning the incident the police officers did not mention that the applicant had had any injuries.

In a record of the applicant’s administrative detention at 5.30 a.m. on 28 May 2008, drawn up at 5.32 a.m. that day, an officer on duty at the police station noted the applicant’s complaint that the police officers had inflicted injuries on him. The record further stated that the applicant’s examination had revealed no injuries on him.

At 6 a.m. the applicant was examined by a doctor at an addictiontreatment hospital and was found to be in a state of alcohol intoxication. The doctor noted that the applicant was handcuffed and had abrasions on his face.

According to an administrative-offence record drawn up on 28 May 2008 by the officer on duty, at 5.20 a.m. on 28 May 2008 the applicant had breached public order by using foul language in a public place and ignoring police officers’ requests to stop. On the same day the Justice of the Peace of the Mitino District Court Circuit no. 175 found that the applicant had committed petty hooliganism and imposed a RUB 500 fine on him. The applicant, who pleaded guilty, did not appeal against the judgment. He was released after the hearing.

On the same day he was examined by a doctor at polyclinic no. 229 who recorded bruising to the area of both eyes and the nose, bleeding of the sclera of both eyes, a fractured nose and a possible concussion. On 3 June 2008 the applicant was examined at town hospital no. 71 and diagnosed with acute rightside perforated post-traumatic otitis and bruising of the soft tissue of the head, in particular in the area of the left eye and the cheek bones. On 9 June 2008 he was examined at polyclinic no. 2 and diagnosed with hearing difficulties on both sides and acute rightside perforated posttraumatic otitis.

Following the applicant’s criminal complaint of 2 July 2008, the Tushinskiy district investigative committee at the Moscow prosecutor’s office carried out a preinvestigation inquiry.

The applicant’s medical records were examined by a forensicmedical expert from the Moscow City Forensic-Medical Bureau. The expert concluded that the bruising and fracture of the nose (which had resulted in short-term health problems lasting up to three weeks, that is to say minor harm to the applicant’s health), the bruising in the area of both eyes and the cheek bones and the bleeding to the sclera of both eyes could have been sustained on 28 May 2008 as a result of impacts from hard blunt objects. As no injuries had been recorded in the area of the external right ear, the expert doubted that the perforated otitis had been a result of trauma or its connection to the alleged police ill-treatment (the expert’s report of 9 October 2009).

Investigators refused to institute criminal proceedings for lack of the elements of a crime in the police officers’ actions. Their three refusals issued between July 2008 and October 2009 were annulled because they were based on an incomplete inquiry.

In the most recent refusal to open a criminal case of 28 January 2010 an investigator held that the applicant, who had been drunk, could have fallen and injured himself. It relied, inter alia, on Officer P.’s report dated 7 July 2008 that the applicant had been brought to the police station with “visible injuries”. That decision was declared lawful and well-founded in the Tushinskiy District Court’s decision of 19 March 2010, and later upheld by the Moscow City Court on 17 May 2010.


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in 1977 and lives in Zagreb.

By a judgment of the Zagreb County Court (Županijski sud u Zagrebu) of 4 July 2005, upheld by the Supreme Court (Vrhovni sud Republike Hrvatske) on 15 October 2008, the applicant was sentenced to one year and seven months’ imprisonment on charges of drug abuse.

Basing its judgment on the applicant’s convictions by the Zagreb County Court of 12 December 2006 and the Zagreb Municipal Criminal Court of 19 February 2007 on charges of robbery and drug abuse, on 17 July 2008 the Zagreb Municipal Criminal Court (Općinski kazneni sud u Zagrebu) sentenced the applicant to a single prison term of one year and three months.

On 2 September 2010 a three-judge panel of the Zagreb County Court took into account the above convictions and sentenced the applicant to a single prison term of two years and eight months.

The applicant started to serve his prison sentence, which had originally been imposed by the Zagreb County Court on 4 July 2005 (see paragraph 6 above), in Bjelovar Prison (Zatvor u Bjelovaru) on 22 March 2010.

Following a request by the Bjelovar Prison administration of 17 December 2010 and a decision by the Prison Administration of the Ministry of Justice (Ministarstvo pravosuđa, Uprava za zatvorski sustav) of 30 December 2010 the applicant was transferred to Zagreb Prison (Zatvor u Zagrebu) on 5 January 2011.

During his stay in Bjelovar Prison the applicant was accommodated in four different cells.

According to the applicant, three of the cells measured 17.13 square metres, including the sanitary facilities, and he had shared those cells with seven other persons (cell no. 5 between 22 March and 4 August 2010); four other persons (cell no. 4 between 4 and 10 August 2010); and five other persons (cell no. 1 from 3 September 2010 until 5 January 2011). The fourth cell, no. 11, measured 6.24 square metres and he had had to share it with one other person between 10 August and 3 September 2010. Those cells had open sanitary facilities, were dirty and did not have sufficient lockers for all inmates. Moreover, he had not been provided with sufficient medical care, which had caused him additional distress.

According to the Government, during his stay in Bjelovar Prison the applicant had on average 3.46 square metres of personal space. In particular, he stayed in cell no. 5/I, measuring 21.75 square metres, for 141 days with four to seven other persons. He then spent twenty-two days in cell no. 11/1, measuring 9.72 square metres, together with one other person. He was then placed in cell no. 1/O, measuring 19.7 square metres, where he stayed for 125 days; and cell no. 4/O, measuring 22.36 square metres, where he spent two days. The Government did not provide information about the exact number of inmates placed together with the applicant in the two latter cells.

The Government also submitted that cells nos. 5/I, 1/O and 4/O had toilets that were completely separated from the living area, and that the toilets were equipped with their own ventilation systems. In cell no. 11/1 the toilet was separated from the living area by a wall measuring 168 centimetres in height and the cell had its own ventilation system. All the cells had installations providing access to drinking water, and all had windows allowing access to daylight and fresh air. During the winter, the cells were heated through a central heating system. They were constantly maintained and in 2007, 2009 and 2010 the necessary refurbishment and improvement of the prison facilities was carried out, which the Government substantiated with photographs.

The Government also explained that for three hours per day, between 4 p.m. and 7 p.m. the applicant had been allowed to circulate freely outside his cell. In addition, he had had the opportunity to use a gym, which had been open from 8 a.m. to 12.30 p.m. and from 2 p.m. to 6 p.m., and a basketball court, which had been open on working days from 3 p.m. to 6 p.m. and at weekends both in the morning and in the afternoon. The prison was equipped with a badminton court, table-tennis tables and chess boards, which the applicant had also been able to use. He could also have borrowed books from Bjelovar library, which provided its services to the prison, and he had been allowed to watch television and to borrow films.

As to the applicant’s medical care, the Government submitted that on 17 February 2010, before his transfer to Bjelovar Prison, the applicant had claimed that he had no serious health issues. He had confirmed this when examined by a doctor in Bjelovar Prison on 1 June 2010. On 29 September 2010, at his request, the applicant was examined by a psychiatrist, to whom he complained of problems with sleeping but refused to accept any treatment. On 5 October 2010 the applicant again refused to accept treatment. During his stay in Bjelovar Prison the applicant was provided with dental treatment eight times and examined by a prison doctor six times. In support of their arguments, the Government provided the applicant’s relevant medical records.

On 14 September 2010 the applicant complained to the Government’s Office for Human Rights (Ured za ljudska prava Vlade Republike Hrvatske) about the conditions of his detention. He alleged in particular that Bjelovar Prison had been overcrowded, that the cells had been dirty and poorly ventilated, that they had not been appropriately equipped, and that the medical treatment had been inadequate. The applicant’s complaint was forwarded to the Prison Administration of the Ministry of Justice, as the body competent to deal with the matter.

On the same day, citing the inadequate conditions of his detention, the applicant invited the Bjelovar Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Bjelovaru) to make a friendly settlement agreement before he lodged a civil action with the competent court.

On 21 September 2010 the applicant complained to a sentence-execution judge of the Bjelovar County Court (Županijski sud u Bjelovaru, sudac izvršenja) about the conditions of his detention, reiterating his arguments.

On 10 December 2010 the Bjelovar Municipal State Attorney’s Office declined the applicant’s request for a friendly settlement on the grounds that it had not found any violation of his rights concerning the conditions of his detention.

On 11 October 2010 the sentence-execution judge of the Bjelovar County Court dismissed the applicant’s complaints as ill-founded. She explained that the information received from Bjelovar Prison did not suggest that the applicant had been placed in overcrowded cells, and that, as regards the general conditions of Bjelovar Prison, she had herself visited the prison facilities and had found that in general they had not been inappropriate. She also emphasised that every cell had a sanitary facility which was clean and well maintained, and the cells were equipped with fresh water taps. The judge also emphasised that the applicant had been examined by a dentist several times and had also been provided with psychiatric care. Lastly, the judge pointed out that the applicant had been given sufficient opportunity to practise sport and free access to outdoor areas.

The applicant appealed against that decision to a three-judge panel of the Bjelovar County Court on 18 October 2010.

On 21 October 2010 the three-judge panel of the Bjelovar County Court examined the applicant’s appeal and, endorsing the reasoning of the sentence-execution judge, considered that in essence the applicant’s rights had not been breached.

On 5 November 2010 the Prison Administration of the Ministry of Justice replied to the applicant in respect of his complaints of 14 September 2010 (see paragraph 17 above). It explained that during his stay in Bjelovar Prison he had been placed in four cells: nos. 5/1, 4/0, 2/0 and 1/0, which had measured 21.2 square metres, 19.8 square metres, 6.3 square metres and 17.2 square metres. It did not specify any further details. It accepted that there had been an issue of overcrowdings in general, but said that any problem in that regard had been compensated for by allowing inmates freedom of movement and the opportunity to participate in daily activities. Furthermore, it argued that the Bjelovar Prison facilities had been regularly maintained and renovated, notably in 2008 and 2009. The inmates were provided with sufficient outdoor exercise, namely a variety of sports activities and free access to outdoor areas for three hours per day, between 4 p.m. and 7 p.m. In addition, it emphasised that the applicant had been examined by the prison doctor six times, by a psychiatrist once and by a dentist eight times.

On 9 November 2011 the applicant complained to the Bjelovar County Court about the decision of its three-judge panel of 21 October 2010 (see paragraph 23 above).

On 22 November 2011 the applicant also lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske), relying on Article 14 § 2 (equality before the law), Article 26 (equality before the State authorities) and Article 29 (right to a fair trial) of the Constitution, and complaining of inadequate medical treatment and lack of personal space in Bjelovar Prison, as well as discrimination following the alleged misinterpretation of the relevant law by the Bjelovar County Court.

On 30 December 2010 the applicant lodged a request with the Bjelovar Prison administration to continue with his education while serving his prison sentence.

On 5 June 2012 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded. The relevant part of the decision reads:

“In his constitutional complaint, the appellant was unable to show that the Bjelovar County Court had acted contrary to the constitutional provisions concerning human rights and fundamental freedoms or had arbitrarily interpreted the relevant statutory provisions. The Constitutional Court therefore finds that the present case does not raise an issue of the complainant’s constitutional rights. Thus, there is no constitutional law issue in the case for the Constitutional Court to decide on.”

The decision of the Constitutional Court was served on the applicant’s representative on 20 June 2012.


Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to impart ideas;Freedom to impart information;Freedom to receive ideas;Freedom to receive information);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström;Ksenija Turković

Mr Cengiz was born in 1974 and lives in İzmir. He is a lecturer at the Law Faculty of İzmir University and is an expert and legal practitioner in the field of freedom of expression.

Mr Akdeniz and Mr Altıparmak were born in 1968 and 1973 respectively. Mr Akdeniz is a professor of law at the Law Faculty of Bilgi University. Mr Altıparmak is an assistant professor of law at the Political Science Faculty of Ankara University and director of the university’s Human Rights Centre.

YouTube (http://www.youtube.com) is the leading video-hosting website on which users can upload, view and share videos. Most videos on the site or on YouTube channels can be viewed by any Internet users, but only users with a YouTube account may upload video files. The platform is available in more than seventy-six countries. Over one billion users visit the site each month, viewing more than six billion hours of videos.

On 5 May 2008, under section 8(1)(b), (2), (3) and (9) of Law no. 5651 on regulating Internet publications and combating Internet offences (“Law no. 5651”), the Ankara Criminal Court of First Instance made an order for the blocking of access to the website http://www.youtube.com and the IP addresses 208.65.153.238-208.65.153.251 providing access to the website. The court held, among other things, that the content of ten pages on the website (ten video files) infringed Law no. 5816 prohibiting insults to the memory of Atatürk.

On 21 May 2010 the first applicant lodged an objection against the blocking order of 5 May 2008. Relying on his right to freedom to receive and impart information and ideas, he sought to have the order set aside.

On 31 May 2010 the second and third applicants, as YouTube users, also lodged an objection against the blocking order of 5 May 2008. They sought to have the order set aside, arguing that there was a public interest in having access to YouTube and that the blocking of such access seriously impaired the very essence of their right to freedom to receive information and ideas. They also submitted that six of the ten pages to which the order of 5 May 2008 related had already been deleted and that the other four were no longer accessible from inside Turkey. This meant, in their submission, that the blocking order had become devoid of all purpose and constituted a disproportionate restriction on the rights of Internet users to receive and impart information and ideas.

On 9 June 2010 the Ankara Criminal Court of First Instance dismissed the applicants’ objection, holding in particular that the blocking order complied with the requirements of the legislation. Addressing the inaccessibility of the video files from inside Turkey, it stated that while access to the files had indeed been blocked by YouTube within Turkey, the videos in question had nevertheless not been removed from the website’s database and thus remained accessible to Internet users worldwide. It also held that as they had not been parties to the investigation procedure, the applicants did not have locus standi to challenge such orders. Lastly, the court noted that an objection against the same blocking order had already been dismissed on 4 June 2008.

On 2 July 2010 the Ankara Criminal Court upheld the decision of 9 June 2010 of the Ankara Criminal Court of First Instance, holding that it had complied with the procedural rules and fell within the court’s discretion.

On 17 June 2010 the Ankara Criminal Court of First Instance adopted a further decision concerning YouTube, ordering the blocking of access to the website http://www.youtube.com and forty-four other IP addresses belonging to the site.

On 23 June 2010 the second and third applicants lodged an objection against the additional blocking order of 17 June 2010.

On 1 July 2010 the Ankara Criminal Court of First Instance dismissed the objection lodged by those two applicants and by representatives of YouTube and the Internet Technology Association. Addressing the inaccessibility of the video files from inside Turkey, it reiterated that while access to the files had indeed been blocked by YouTube within Turkey, the videos in question had nevertheless not been removed from the website’s database and thus remained accessible to Internet users worldwide. It also held that as they were not parties to the case, the applicants did not have locus standi to challenge such orders. It added that, given that the website in question had continued to infringe the law by remaining active, the blocking order was compatible with the requirements of the legislation. Lastly, it rejected the argument that the provision applied in the present case was unconstitutional.

In the judgment of 2 July 2010 referred to above (see paragraph 11), the Ankara Criminal Court also upheld the decision of 1 July 2010 of the Ankara Criminal Court of First Instance.

The Government indicated that in the period before and after the order blocking access to YouTube, between 23 November 2007 and 1 July 2009, 1,785 complaints had been made to the Telecommunications and Information Technology Directorate (“the TİB”) to the effect that YouTube was hosting content that was illegal under Law no. 5651, in particular concerning sexual abuse of minors and insults to the memory of Atatürk.

The Government also stated that prior to the order of 5 May 2008, the domestic courts had already made thirty-four orders blocking access to YouTube on account of illegal content hosted by the site. Following the orders, the TİB had contacted YouTube’s legal representative in Turkey under the “notice and take down” procedure. The order of 5 May 2008, according to the Government, indicated that there were ten web addresses (URLs) hosting defamatory content about Atatürk. Access to six of the pages had been blocked, but the other four had remained accessible both from within Turkey and abroad. Accordingly, the TİB had notified YouTube of its decision to remove the content in question. However, YouTube had not stopped hosting the offending pages and the TİB had had no other solution than to block access to the entire YouTube website, as Turkey had not set up a URL filtering system.

The applicants stated that following the order of 5 May 2008, access to YouTube had been blocked in Turkey by the TİB until 30 October 2010. On that date, the blocking order in respect of YouTube had been lifted by the competent public prosecutor’s office following a request from a company claiming to own the copyright to the videos. However, from 1 November 2010 YouTube had decided to restore the videos, finding that they did not infringe copyright. The second and third applicants also pointed out that they had discovered that in January 2015, four video files (nos. 1, 2, 7 and 8) out of the ten concerned by the order of 5 May 2008 were still accessible on YouTube. They noted that among those files, videos nos. 2 and 7 did not include any content that could be construed as insulting the memory of Atatürk and thus fell outside the scope of section 8 of Law no. 5651. In particular, video no. 2 was fourteen seconds long and showed a burning Turkish flag. Video no. 7 was forty-nine seconds long and showed a former chief of staff of the Turkish armed forces. Only videos nos. 1 and 8 might have been regarded as insulting, but there had been no proceedings to establish that their content was illegal.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court)

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

The applicant was born in 1967 and lives in Stari Bar, Montenegro. At the relevant time he was a professional basketball player.

On 9 July 1997 the applicant brought a claim against the basketball club for which he had been playing, Vojvodina BFC (Košarkaski klub Vojvodina BFC), based in Novi Sad. The club had the status of a citizens’ association.

On 17 February 1998 the Novi Sad Municipal Court (hereinafter “the Municipal Court”) ruled in favour of the applicant, ordering Vojvodina BFC (hereinafter “the debtor”) to pay him, within fifteen days, the sum of 110,550 dinars (RSD – approximately 10,000 euros (EUR) at the time) and RSD 8,500 (approximately EUR 730) in costs, together with statutory interest. The judgment became final on an unspecified date in 1998.

Following a request by the applicant on 15 October 1998 for enforcement, on 19 October 1998 the Municipal Court issued an enforcement order.

On 25 December 1998 the applicant informed the court that the debtor did not have sufficient funds in its bank account and proposed that the judgment be enforced by the sale of the debtor’s immovable assets situated on the premises of the Vojvodina Sports and Business Centre. On 17 March 1999 an enforcement order to that effect was issued.

In the meantime, a new basketball club, NIS-Vojvodina, was formed.

On 25 December 2002 the Central Bank in Novi Sad informed the court that the debtor’s bank account had been frozen.

On 14 March 2003 the applicant informed the court of another bank account in the debtor’s name. On 9 May 2003 he asked the court not to carry out the enforcement by sale of the debtor’s immovable assets as he had asked previously, because it appeared that assets did not belong to the debtor, but to the basketball club NIS-Vojvodina.

On 12 May 2003 the Municipal Court ordered enforcement in accordance with the applicant’s request of 14 March 2003.

On 25 June 2003 the Central Bank in Novi Sad informed the court that the account details the applicant had provided did not concern the debtor but the basketball club NIS-Vojvodina, and that the debtor’s account was still frozen.

On 14 July 2003 NIS-Vojvodina appealed against the enforcement order of 12 May 2003. It claimed not to be the debtor’s legal successor.

On 1 April 2004 a three judge panel of the Municipal Court (hereinafter “the panel”) refused to hear the appeal until the enforcement judge determined the debtor’s liabilities.

On 24 June 2004 NIS-Vojvodina filed a submission, denying any connection with the applicant’s debtor.

On 19 October 2004 the Municipal Court asked the applicant to comment on NIS-Vojvodina’s submission and propose another method of enforcement.

As the applicant failed to do so, on 11 January 2005 the Municipal Court suspended (obustavio) the enforcement against NIS-Vojvodina. The applicant appealed.

On 14 February 2005 the panel instructed the enforcement judge to establish if there was any relationship between the debtor and NISVojvodina before transferring the file back to it again.

On 30 May 2005 the Ministry of Education and Sport informed the Municipal Court that the applicant’s debtor had appeared on their register of sports organisations since 3 August 1999, while NIS-Vojvodina had never been registered.

In the proceedings that followed, the enforcement judge, relying on the Ministry’s information note of 30 May 2005, found that NIS-Vojvodina was not the debtor’s legal successor and transferred the case file to the panel on 1 September 2005.

On 16 March 2006 the panel upheld the decision of 11 January 2005, finding that there were no grounds to continue enforcement against NIS-Vojvodina.

On 1 September 2011 the Novi Sad Commercial Court opened insolvency proceedings in respect of the debtor and adopted the restructuring plan it had devised. According to the plan, the debtor would pay the applicant RSD 1,229,332.42 (approximately EUR 10,000) over five years, paying him one fifth of the total amount each year.

. On 17 September 2012 the debtor paid the applicant one fifth of the above-mentioned sum, that is to say RSD 245,866.48 (approximately EUR 2,000).

There is no information in the case file as to whether the applicant received any payments thereafter.


Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo

The applicant, Ms R.A., is a British national, who was born in 1982 and lives in Telford. The President granted the applicant’s request for her identity not to be disclosed to the public (Rule 47 § 4). She is represented before the Court by Woodfines Solicitors, a firm of solicitors based in Milton Keynes.

The facts of the case may be summarised as follows.

On 28 November 2009 the applicant reported to the police that she had been raped by her husband. Her husband was immediately arrested. He denied the offence and was subsequently charged with six counts of rape. On 10 December 2009 he was released on conditional bail, with a specific condition that he should not contact any prosecution witness, including the applicant.

On 7 January 2010 the applicant contacted the police to withdraw her complaint against her husband. She indicated that she wanted to put everything behind her and move forward for her own sake and the sake of her children. The police explained that the case might still proceed and that, if it did, she might be required to give evidence.

On 14 January 2010 the applicant was informed that the prosecution would proceed. On 18 January 2010 the applicant’s husband pleaded not guilty and the trial date was fixed.

On 7 February 2010 the applicant told the police that she had lied about having ever being raped by her husband. A police officer explained that she needed to think very carefully about what she was saying and be sure that what she was saying was in fact the truth. The applicant said that she was not bothered about what happened to her and did not care if she was charged or dealt with for “whatever offence”. She was told that the Crown Prosecution Service would have to be consulted and that when a decision had been made she would be informed.

On 11 February 2010 the applicant attended the police station voluntarily. She said that the rape allegations were lies. The police warned her of the potential seriousness of having made false allegations of rape. She was given legal advice and cautioned. A solicitor attended the police station to represent and advise her. The applicant provided a written statement to the police and maintained that her allegations were false.

On 12 February 2010 the applicant’s husband appeared at the Crown Court. In light of the applicant’s retraction of her complaint, the prosecution had no alternative but to offer no evidence against him. Not guilty verdicts were accordingly entered. He was released from custody.

A criminal investigation subsequently commenced into the applicant’s admission that she had made a false allegation of rape against her husband. On 16 April 2010 she was arrested. A tape-recorded interview in the presence of her solicitor took place. The police discussed with her whether her husband had put emotional pressure on her to withdraw the allegation, whether she was concerned about the position of her children and whether her support network was limited. The police told her that if the allegations were true and the retraction was in fact a lie, she could tell them about it. She insisted that the allegations were untrue.

On 23 June 2010 the applicant was charged with perverting the course of justice by making a false allegation against her husband.

On 5 August 2010 the applicant contacted the police. She said that she had come to her senses and that she had in fact been raped.

On 31 August 2010 the applicant was arrested and, with her solicitor present, interviewed. She said that the significance of lying about the rape had become clear when her counsel had told her that she would receive a sentence of twelve to eighteen months’ imprisonment.

On 16 September 2010 the applicant was charged with an additional offence of perverting the course of justice by falsely retracting a true allegation of rape.

On 15 October 2010 at the Crown Court, the applicant pleaded guilty to the charge of having falsely retracted a true allegation of rape. She pleaded not guilty to the charge of making a false allegation of rape and, the prosecution having offered no further evidence, a not guilty verdict was entered in respect of this charge.

On 5 November 2010 the applicant was sentenced to eight months’ imprisonment. She was taken into custody.

The applicant lodged an immediate appeal against sentence. Her appeal was granted by the Court of Appeal on 23 November 2010. In its judgment, the court emphasised the public interest in the investigation and, if appropriate, the prosecution and conviction of those who had committed crime. For this reason, perverting the course of justice was not confined to making false allegations or giving false evidence but also extended to the retraction of truthful allegations or the retraction of truthful evidence. However, the court recognised that the difference between the culpability of an individual who had instigated a false complaint against an innocent man and a complainant who had retracted a truthful allegation against a guilty man would often be very marked. It referred to pressures resulting from relationships and, in particular, the vulnerability of women who had been ill-treated by their partners. In such cases, it said, the sentencing court should recognise and allow for the pressures to which the truthful complainant in such a relationship had been exposed and should be guided by a broad measure of compassion for a woman who had already been victimised. It concluded:

“23. This is an exceptional case. We hope that it will be very exceptional for cases of this kind to be prosecuted to conviction in the Crown Court. The sentence for perverting the course of justice normally is, and will normally continue to be, a custodial sentence. That is a requirement of the administration of justice and, where possible, the reduction of crime. But this was not such a case. We have come to the conclusion that the appropriate sentence in this case is a community sentence with a supervision order for a period of two years.”

The applicant was immediately released.

The applicant’s conviction was widely reported. On 16 December 2010 The Guardian newspaper published an article about the conviction. The article explained that the Director of Public Prosecutions (“DPP”) had ordered a change in the way Government lawyers dealt with cases against women who withdrew rape claims, acknowledging “failings” in the handling of the applicant’s case. In future, similar cases would require his personal approval.

On 7 July 2011 the Crown Prosecution Service published revised policy guidance in relation to prosecutions concerning rape and domestic violence. The revised guidance applies to cases where a complainant of rape or domestic violence makes a false allegation, retracts an allegation or withdraws a retraction.

Meanwhile, the applicant instructed new solicitors and obtained advice on appeal against conviction dated 15 June 2011. Counsel expressed the view that she had a complete defence to the indictment which ought to have been considered and pursued on her behalf in the exceptional circumstances of her case. The advice stated that her guilty plea had been equivocal and should not be a bar to an appeal; and that the guilty plea had ignored the defences of duress and coercion and had ignored “human rights and international law, the experience of the courts, the experience of those experts in the field, the experience of victims and plain common sense”. Counsel suggested that the original prosecution should have been stayed as an abuse of process for, inter alia, the following reasons:

“It would have been untenable for the Crown to argue that the [applicant] ... was not a victim of rape and domestic violence...

We contend that the [applicant’s] behaviour was arguably both normal and understandable for a victim of such abuse.

We would have called the Crown’s own acknowledged expert in this field ... [who] is able to comment on the dynamics and effects of domestic violence. This will show that far from having an intent to pervert the course of justice the [applicant] was behaving normally for a victim of such extreme abuse.

The prosecution was in breach of its own policy, the European Convention on Human Rights and International Law.”

The grounds of appeal against conviction were as follows:

“1. The conviction is unsafe.

The appellant’s plea was equivocal and ignored her defences in law of duress, coercion and those human rights and international law arguments outlined in counsel’s advice.

The original criminal proceedings should have been stayed as an abuse of process.

This is a conviction in a case where the DPP is on public record as saying justice was not done or seen to be done when offering an unreserved apology to the appellant.

The Lord Chief Justice, in the appeal against sentence, commented that ‘This is an exceptional case. We hope that it will be very exceptional for cases of this kind to be prosecuted to conviction in the Crown Court’.”

In their response to her grounds of appeal, the prosecution did not seek to raise any positive argument in support of the safety of the applicant’s conviction. They explained that the acceptance of the guilty plea in respect of the false retraction implied acceptance that the rape allegation had been truthful, and conceded that the applicant would in all likelihood not have been prosecuted had her case been considered at the time of the response, applying the criteria now contained in the revised guidance (see paragraph 19 above).

Leave to appeal conviction out of time was granted.

In the applicant’s subsequent written submissions to the Court of Appeal dated January 2012, she referred extensively to the DPP’s comments and the revised guidance (see paragraphs 18-19 above). She made, first, further arguments in respect of her first ground of appeal and the part of her second ground of appeal related to the defences of duress and coercion (see paragraph 21 above). There was reference to development of the abuse of process and human rights arguments “at paragraph 68 below” and, later, to the arguments regarding human rights issues “in paragraph 68 below”.

Paragraph 68 simply repeated the second part of her second ground of appeal and her third to fifth grounds of appeal (see paragraph 21 above). Further arguments in respect of these matters followed in subsequent paragraphs. There was a section on recent domestic case-law on prosecuting victims, a section on the revised guidance and a section on the Code for Crown Prosecutors. The latter section contended that the applicant’s prosecution was unfair for a number of reasons, including because “the case was brought in circumstances that breached the applicant’s human rights”. It went on to explain that the applicant met none of the criteria tending in favour of prosecution, while her situation fell under some of the factors tending against prosecution.

Finally, there was a section in the written submissions headed “Human Rights”, in which it was submitted that the applicant’s treatment had breached her human rights. The written submissions referred to a number of judgments of this Court concerning domestic violence against women which, it said, clarified that States had positive obligations in this area, including an obligation to protect victims from violent behaviour, by reference to Articles 2, 3 and 8 (citing Kontrová v. Slovakia, no. 7510/04, 31 May 2007; Bevacqua and S. v. Bulgaria, no. 71127/01, 12 June 2008; Opuz v. Turkey, no. 33401/02, ECHR 2009; E.S. and Others v. Slovakia, no. 8227/04, 15 September 2009; A. v. Croatia, no. 55164/08, 14 October 2010; and Hajduová v. Slovakia, no. 2660/03, 30 November 2010). It continued:

“It is clear from this line of authority that domestic violence can potentially engage Articles 2, 3, 8 and 14 of the ... Convention ... States have a positive obligation to protect the rights of victims. It is when a State becomes aware of a domestic violence situation that they have the obligation to take steps to protect people.”

The submissions explained that the applicant had suffered years of domestic abuse which had been exacerbated by her subsequent dealings with the police. It should have been abundantly clear to the officers that the applicant was under extreme duress when she retracted her rape complaint. However, rather than make proper investigations they had accepted her story and charged her. To treat her as a criminal while releasing the perpetrator indicated “degrading treatment”, as defined in the Court’s Article 3 case-law.

In their response of February 2012, the prosecution acknowledged the applicant’s argument that her Convention rights were engaged and that her prosecution amounted to a breach of those rights. Much of the response was devoted to addressing the submissions concerning the defences of duress and marital coercion and the safety of the conviction in light of the revised guidance. In the context of their response to the abuse of process submission, the prosecution accepted that the Convention attached special significance to the protection of vulnerable groups and argued that what it required was that the decision to prosecute be taken following careful analysis of the circumstances and characteristics of the individual and the case against her. The prosecution pointed out that the cases cited did “not reflect the position in this case” and were of “little if any assistance”. They emphasised the important distinction to be made between the role of those who investigated crime and those who prosecuted, noting that in many of the cited cases the impugned failure was a failure to investigate.

The applicant’s appeal against conviction was dismissed on 13 March 2012. The Court referred to the remarks made by the Court of Appeal in the sentencing appeal and to the publicity that the applicant’s conviction had received in the press, in particular the reporting of the DPP’s comments (see paragraphs 16 and 18 above). It pointed to the revised guidance (see paragraph 19 above) and accepted that, had the guidance been in force at the date of the applicant’s conviction, she would in all likelihood not have been prosecuted. However, it considered that while the applicant had plainly been under pressure, the pressures were far removed from constituent elements of the defence of duress. It was also satisfied that there had been no abuse of process. Guidance issued by the DPP did not, and as a matter of law could not, create any immunity or defence. It merely publicly reflected the considerations which, in an individual case, were considered to be relevant to the exercise of the prosecutorial discretion not to bring the case to trial notwithstanding admissible evidence which would otherwise justify a prosecution. The court concluded that the final submission came down to the proposition that it was somehow not fair for the applicant to remain convicted. However, the principles relating to abuse of process had not extended to enabling the court to quash a conviction on a broad, somewhat nebulous basis of unfairness where the conviction, following due process, was in every respect safe.

The applicant applied for certification of a point of law of general public importance and permission to appeal to the Supreme Court. In her application for leave, she identified two points of law of general public importance, namely:

“i. Whether or not an individual subject to an accepted background of rape and/or domestic violence, as in the current case, can raise in law a defence of duress to a criminal charge, which is capable of being left to a jury?

ii. Whether or not the prosecution of a victim of rape and domestic violence, as per the circumstances of the current case, amounted to an abuse of process by the Crown and/or was a breach of fundamental human rights?”

In respect of ground (ii), the application referred to the DPP’s comments and to the revised prosecution guidance (see paragraphs 18-19 above). It explained that a senior lawyer from the Equality and Human Rights Commission had expressed an interest in the case and continued:

“This case clearly raises important issued of equality and human rights and we would welcome any intervention by the Commission into this appeal ... That ... perhaps serves to further demonstrate the public importance of this proposed appeal.”

The prosecution lodged submissions dated April 2012. As to whether there had been a breach of fundamental human rights, they noted that, as previously submitted, the applicant could not reasonably argue that her Convention rights had not been protected. They contended that where an individual had conducted herself so as to deliberately and knowingly place herself beyond the State’s protective reach and in jeopardy of a prosecution by denying her status as a victim, she had no arguable complaint when she found herself charged with a criminal offence. They maintained that the applicant’s submissions continued to confuse the role of investigators and prosecutors, and that the Convention required the decision to prosecute to be taken in application of the Code for Crown Prosecutors on a case-by-case basis. As the decision to prosecute had arisen from a correct application of the Code, there had been no failure to protect the applicant’s Convention rights.

On 22 May 2012 the Court of Appeal refused to certify a question for the Supreme Court.

At the relevant time, the Code for Crown Prosecutors provided that a prosecution would usually take place unless the prosecutor was sure that there were public interest factors tending against prosecution which outweighed those tending in favour.

On 7 July 2011 the Crown Prosecution Service published revised policy guidance in relation to prosecutions concerning rape and domestic violence. It stated that when applying the public interest stage of the Code test, prosecutors should bear in mind the comments of the Lord Chief Justice in the applicant’s appeal against sentence. The revised guidance sets out the relevant factors in favour of and against prosecution.

The Human Rights Act 1998 (“the Human Rights Act”) incorporates the Convention into United Kingdom law. Under section 7(1) of the Act, a person who claims that a public authority has acted in a way which is incompatible with Convention rights may rely on the Convention rights concerned in any legal proceedings. Section 2 of the Act requires a court determining a question which has arisen in connection with a Convention right to take into account the case-law of this Court.

The case of G v. R [2008] UKHL 37 concerned an appeal against conviction by a defendant convicted of raping a girl under the age of thirteen. At the time of the offence the applicant had been fifteen years old and had believed that the girl was the same age. He argued that his prosecution for rape, instead of a less serious offence, and his subsequent conviction were disproportionate in the circumstances of his case and thus violated his right to respect for private life protected by Article 8 of the Convention. The Court of Appeal dismissed the appeal in April 2006, although it accepted that the prosecution of a minor for rape in the circumstances of the applicant’s case might in certain cases give rise to a violation of Article 8. In June 2008 the Supreme Court dismissed the appeal, holding by three judges to two that there had been no violation of Article 8. The majority found that even if the defendant’s Article 8 rights had been engaged, his prosecution and conviction were proportionate in the pursuit of the legitimate aims of the protection of health and morals and of the rights and freedoms of others.

The claimant in S.H.X. v Crown Prosecution Service [2014] EWCA Civ 90,


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

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

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

The applicants complained of the non-enforcement or delayed enforcement of domestic decisions according to which the applicants were entitled to various pecuniary amounts and/or to have certain actions taken by State authorities in their favour. Some applicants also raised other complaints under various Articles of the Convention.


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

The applicant was born in 1978 and lives in Mysłowic

From 22 October 2002 to 21 February 2003 the applicant was detained on remand in Mysłowice Remand Centre. Subsequently, from 13 October 2003 to 26 November 2003, from 31 August 2005 to 7 March 2006 and from 21 April 2006 to 30 July 2007 he served his sentence of imprisonment there.

On 3 May 2006 the applicant received a disciplinary punishment of 14 days of solitary confinement. He was also subject to certain restrictions concerning accessibility of the prison canteen, religious service, outdoor activities, etc. Furthermore, he was limited in receiving packages until the end of that quarter.

The applicant submitted that throughout his detention in Mysłowice Remand Centre he had been held in overcrowded cells which did not meet the basic standards of hygiene. According to the official statistics published by the Prison Service (Służba Więzienna) at the relevant time the overcrowding in the facility ranged from 23 to 67%.

The Government did not submit any information as to the number of detainees held in Mysłowice Remand Centre.

On 27 February 2006 the applicant brought a civil action in tort against Mysłowice Remand Centre, seeking compensation for the infringement of his personal rights on account of the inadequate conditions of his detention.

On 15 May 2006 the Mysłowice District Court (Sąd Rejonowy) acknowledged that, at times, the applicant had indeed been held in overcrowded conditions. It dismissed his claim, finding that this practice had not been unlawful, as the penitentiary judge had been duly informed about the situation. The District Court also held that the applicant had failed to demonstrate that he had suffered any harm as a result of the overcrowding. It further considered that the overall sanitary conditions and the quality of food in the defendant remand centre had been adequate.

On 2 June 2006 the applicant appealed against the above first instance judgment.

On 8 June 2006 the Mysłowice District Court decided to exempt the applicant from the court fee for appeal. The applicant was called to rectify the appeal by providing the court with a copy of the appeal, by informing the court about the scope of his appeal, by informing the court about the content of his appeal request and by paying the basic fee of 30 Polish zlotys [PLN] (approx. 7 euros [EUR] within 30 days. The court also informed the applicant that lack of rectification would result in rejection of the appeal.

On 22 June 2006 the same court rejected the applicant’s appeal for failure to pay the basic court fee.

The applicant’s interlocutory appeal against that decision was rejected on 28 July 2006 for failure to pay the applicable court fee. The applicant did not appeal against the latter decision.

On 26 March 2007 the applicant filed a complaint about the conditions of his detention to the Regional Inspectorate of the Prison Service (Okręgowy Inspektorat Służby Więziennej).

On 22 May 2007 the Inspectorate acknowledged that the applicant had been occasionally held in overcrowded cells and it apologised for this situation, but refused to remedy the situation, finding that the problem affected Poland’s entire penitentiary system.

On an unspecified date the applicant filed a request for a temporary release from prison (przerwa), arguing that the release was necessary in order to allow him to participate in person in two sets of court proceedings which he had instituted.

On 17 July 2006 the Katowice Regional Court (Sąd Okręgowy) refused to grant the release. The court considered that neither the reasons invoked by the applicant nor his family situation nor the state of his health warranted such release. The applicant, who attended the sitting, was also advised that he had a right to lodge, within seven days, an interlocutory appeal against that decision.

On 19 July 2006 the applicant requested to be served with a copy of the decision, which was served on him on 1 August 2006.

On 11 August 2006 the Katowice Regional Court refused to entertain the applicant’s appeal, filed on 7 August 2006, finding that it had been lodged out of time.

On 6 September 2006 the Katowice Court of Appeal (Sąd Apelacyjny) dismissed the applicant’s interlocutory appeal against the Regional Court’s refusal. It held that the time-limit for filing an appeal against the Katowice Regional Court’s decision, delivered on 17 July 2006, had expired seven days after the day of its delivery.

On 17 July 2006 the applicant requested the Katowice Regional Court to release him on probation.

On 9 January 2007 the court granted the applicant’s request. The court observed that the applicant’s overall behaviour in detention had been correct, that he could be given a relatively positive socio-criminological forecast and that his resocialisation process could be continued at liberty.

Following an appeal by the prosecutor, on 7 February 2007 the Katowice Court of Appeal amended the Regional Court’s decision and refused to release the applicant on probation. The Court of Appeal did not share the Regional Court’s findings and considered that the applicant’s sociocriminological forecast was a negative one. It stressed that the applicant had been an unrepentant, habitual offender who had often been subjected to disciplinary penalties while in detention. Lastly, the court observed that the applicant had not shown any interest in following an individualised resocialisation programme and that he had no specified plans for the future.

On the applicant’s request, filed on 20 March 2006, on 26 June 2006 the Katowice District Court issued an aggregate sentence composed of the applicant’s previous convictions (wyrok łączny).

On 27 October 2006 the Katowice Regional Court upheld the firstinstance court’s judgment.

The applicant applied for a legal-aid lawyer for the purposes of a cassation appeal. Simultaneously, he drafted his own cassation appeal and lodged it with the Katowice Regional Court.

On 1 December 2006 the Katowice Regional Court appointed a legalaid lawyer for the purposes of the cassation proceedings. By a letter of 5 January 2007 the lawyer informed the Katowice Regional Court that he had not found any grounds to lodge the cassation appeal. By a letter of 9 January 2007 the Katowice Regional Court informed the applicant of the legal-aid lawyer’s refusal. Furthermore, the applicant was instructed that he could appoint a lawyer of his choice and that the time-limit of thirty days for lodging a cassation appeal by that lawyer would start to run on the date of service of that letter. The court’s letter was served on the applicant on 11 January 2007. The applicant did not appoint a lawyer of his choice.

On 8 March 2007 the Katowice Regional Court refused to accept the applicant’s cassation appeal as it had not been prepared by a lawyer as required by law.


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

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

The applicants complained of the inadequate conditions of their detention and of the lack of any effective remedy in domestic law.