Remainder inadmissible (Article 35-3-a - Ratione personae);No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Robert Spano;Stéphanie Mourou-Vikström

The applicant was born in 1963 and lives in Tallinn.

In 2006 the applicant’s son O., who was born in 1983, was diagnosed with malignant melanoma. He was operated on in 2006, and underwent regular check-ups. In April 2009 a metastasis was removed from his brain, and he received radiation therapy.

In September 2009 O.’s state of health deteriorated. He was vomiting and felt weak and dizzy.

On 19 September 2009 the applicant called an ambulance and O. was taken to the North Estonia Medical Centre (“the NEMC”) (Põhja-Eesti Regionaalhaigla) for examination. A computerised tomography (CT) scan was performed on him. According to the applicant, O. was told that the scan had not revealed any problems with his health. He was prescribed an anti-vomiting drug and discharged from the hospital the same evening.

On 24 September 2009 the applicant again called an ambulance for O., who had been complaining of feeling generally unwell, of a numbness of one side of his face, a rash around his nose and dizziness. O. was admitted to the NEMC. A CT scan and magnetic resonance imaging (MRI) of O.’s brain were performed the same day and the following day, respectively. An additional CT scan of O.’s neck, lungs, abdomen and pelvic area was performed on 29 September 2009. The MRI scan and the CT scan of 29 September 2009, taken together, indicated a leptomeningeal pathological process involving the cranial nerves, a probable meningeal metastatic process and probable multiple metastases in the liver and other organs of the abdominal cavity. He was given hormonal and infusion therapy, but his health deteriorated rapidly. He developed breathing and walking problems and a speech impediment, and his eyesight worsened. On 28 September 2009 a hospital medical council decided to proceed with palliative care. It found that because of the spread of the tumour, oncological treatment would not be effective. The applicant pointed out that the medical council’s decision had not been signed by O.

For one week starting from 5 October 2009, O. was physically restrained to a bed with magnetically locking restraints on both arms, apparently in order to prevent him from hurting himself, given his disturbed state of mind.

On 6 October 2009 O. was transferred to an intensive care unit because he was suffering from progressive respiratory failure and a disturbed state of mind. He was also diagnosed with pneumonia and, in the light of that finding, was given additional antibacterial treatment. According to the medical record (nurse’s notes), on 6 October 2009 O. was intubated because he was having breathing difficulties. On the same day the medical council found that a surgical cure would not be possible and decided to continue with palliative treatment supporting the vital functions. The applicant again pointed out that the medical council’s decision was not signed by O.

On 9 October 2009 a tracheotomy was performed on O.

On 12 October 2009 O. stopped breathing and mechanical ventilation was applied. On 13 October 2009 characteristics corresponding to brain death were ascertained. According to information in a report drawn up by the Estonian Forensic Science Institute based on an analysis of O.’s medical records, an electroencephalogram performed the same day revealed serious diffuse brain damage and only minimal electrical activity. O.’s active treatment and feeding were discontinued, but the infusion therapy was continued. The applicant disagreed with this finding and rather considered that O. had fallen into a coma following an overdose of medicine. She maintained that O.’s pulse had reacted to her speech the following day, 14 October 2009, which had indicated that O. had not been brain-dead. According to the applicant, the protocol for verifying brain death was never fully and properly carried out. The administration of food and medicines was not resumed, despite the applicant’s requests. The applicant alleged that during the night of 14 October 2009, O.’s blanket had been removed and he had been left with only a sheet near an open window, which had caused his body temperature to drop to 35 degrees Celsius.

On 15 October 2009 O.’s heart stopped and the mechanical ventilation was terminated.

On 15 October 2009 the applicant called the police on the general emergency number, complained about O.’s treatment and asked that an expert examination be commissioned. Her phone call was registered as an information notice (infoteade) and not as the reporting of a crime. The applicant was advised to contact the Expert Committee on the Quality of Health Care Services (Tervishoiuteenuse kvaliteedi ekspertkomisjon; hereinafter “the Expert Committee”).

On 16 October 2009 an autopsy was performed at the NEMC. The medical death certificate (arstlik surmateatis) indicated cerebral oedema as the immediate cause of death, and melanoma with multiple metastases as the medical condition that had brought about the immediate cause of death. According to the autopsy report (lahangu protokoll), O. died of malignant melanoma with multiple metastases in the brain, which also caused cerebral haemorrhage and oedema as complications.

On 2 November 2009 the applicant complained to the Health Board (Terviseamet) of O.’s inhuman treatment and about the circumstances of his death.

On 8 March 2010 the Health Board informed the applicant that the case had been transmitted to the Expert Committee. The Expert Committee examined O.’s medical records, obtained written explanations from several members of the medical staff who had treated O., and ordered two expert opinions, one to be prepared by one of its members and the other by another doctor, both professors emeriti. The Expert Committee also heard the applicant. In its decision given on 25 March 2010, it found no medical malpractice in O.’s treatment. According to the report of the Expert Committee’s meeting of 25 March 2010 at which the applicant was also present, the Expert Committee gave oral answers to the applicant’s questions regarding the possible radiation of O. during his previous treatment; the decision not to offer chemotherapy to O.; and the alleged late detection of pneumonia. In addition, the Expert Committee’s decision contained written answers to the applicant, stating that O. had not suffered from a stroke; that the deterioration in his health had not been caused by the administration of specific medication or the withdrawal thereof, but rather by the metastatic developments in his brain; and that based on the medical records, O. had not been starved, nor had his mechanical ventilation been stopped before his death. The applicant was also notified of the possibility to request an alternative medical expert opinion and was informed that tissue samples gathered while the patient was alive as well as after his death, would be maintained for thirty years at the NEMC pathology centre and were available on demand. The applicant considered that the Expert Committee had not been impartial, that it had lacked a quorum at its meeting of 25 March 2010 and that the decision it had adopted contained false statements. An action lodged by the applicant to have the Expert Committee’s report declared unlawful and claiming damages for it was dismissed by a final judgment of the Supreme Court on 2 December 2015.

In the meantime, on 22 March 2010 the applicant lodged an offence report with a prosecutor’s office. Criminal proceedings under Article 123 of the Penal Code (placing or leaving another person in a situation which is life-threatening or likely to cause serious damage to the person’s health) were initiated on 1 April 2010.

In the course of the criminal investigation, several individuals (doctors, nurses, the applicant, and O.’s friends who had visited him in the hospital) were interviewed. Requests for documentary evidence (the Expert Committee’s opinion, O.’s medical file as well as the autopsy report) were submitted and documents were received; a forensic medical examination was ordered from the Estonian Forensic Science Institute. The prosecutor posed ten questions to the forensic medical experts addressing, inter alia, O.’s diagnoses; the adequacy of the treatment with respect to his state of health (including the tracheotomy); the restraining of O. to the bed; the administration of medicine on 12 October 2009 and whether this could have caused O.’s breathing to stop; the decision to cease the administration of medicine and food on 13 October 2009; the assertion that O. was brain-dead; and the decision to stop mechanical ventilation.

According to the forensic medical report dated 30 August 2012, O. had received treatment appropriate for his condition. The forensic medical experts also concluded that the medicine administered to O. had been appropriate and had not caused his breathing to stop. They considered that the restraining of O. to the bed could have been justified in the instant case. As the characteristics corresponding to brain death had been ascertained, the discontinuation of feeding and the continuation of infusion therapy had been medically justified. The experts also concluded that the mechanical ventilation had been turned off only after his heart had stopped and thus could not have been the cause of his death. The forensic medical assessment found that O.’s death had been caused by malignant melanoma with multiple metastases, with further complications of cerebral haemorrhage and oedema.

On 25 October 2012 the criminal proceedings were terminated as the commission of an offence had not been proven based on the evidence gathered. An appeal lodged by the applicant with the Office of the Prosecutor General was dismissed on 10 December 2012. On 28 January 2013 the Tallinn Court of Appeal dismissed a further appeal lodged by the applicant.

Following the termination of the criminal proceedings, the Office of the Prosecutor General dismissed complaints lodged by the applicant regarding the refusal to initiate additional criminal proceedings against the chief inspector of the Health Board’s supervisory department, against the experts of the Estonian Forensic Science Institute who had drawn up the forensic medical report during the original criminal proceedings (this refusal was later upheld by the Court of Appeal), against two prosecutors and the judge of the Court of Appeal. The Office of the Prosecutor General also dismissed an application lodged by the applicant to reopen the original criminal proceedings.


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

The applicant, Mr Zbigniew Koceniak, is a Polish national, who was born in 1963 and lives in Mielec. He is represented before the Court by Ms A. Żuraniewska, a lawyer practising in Kraków.

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

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

On 16 February 1994 the Mielec Municipal Office (Urząd Gminy) issued a building permit allowing the applicant’s neighbour, H.K., to construct a storehouse (budnek inwentarsko-składowy) and a midden (gnojownia) on her land adjacent to the applicant’s plot. It was specified that the building should be situated along the boundary between the plots, half a metre from the applicant’s land. It was further required that the walls facing the applicant’s property should be without windows or doors and that rainwater should run off onto H.K.’s land. It appears that on an unspecified date in 1993 another of the applicant’s neighbours, K.Ś., obtained a similar construction permit concerning her land.

On 11 October 1996 the applicant wrote to the Mielec District Office (Urząd Rejonowy) to complain that H.K. and K.Ś. had constructed on their land large buildings serving as slaughterhouses (ubojnia) and meatprocessing plants (masarnia). The applicant submitted, inter alia, that H.K.’s building was too close to his property and that rainwater from her roof ran off directly onto his land. He maintained that the neighbours’ activities were a nuisance to him and his family.

On 17 October 1996 the Mielec District Office scheduled an inspection of the properties concerned, which was carried out on 28 October 1996. It was established that H.K.’s building on the land adjacent to the applicant’s was being constructed in accordance with the building permit issued on 16 February 1994 by the Mayor of the Mielec Municipality. It was further established that despite the fact that the building had not yet been completed, H.K. was already using it as a meatprocessing plant. H.K. was fined in the amount of 50.00 zlotys (PLN).

As regards the property of K.Ś., the applicant submitted that he had not been informed of the result of the relevant inspection or the course of the administrative proceedings which had followed. This was so because the authorities considered that he had no legal interest in the outcome of those proceedings since her land did not directly adjoin his.

On 15 November 1996 the Mielec District Office ordered that the construction work on H.K.’s land be stopped. The order was to remain valid for two months and a new decision as to the continuation of the work was to be issued before its expiry. Subsequently, on 18 December 1996 the Mielec District Office ordered H.K. to submit, by 30 June 1997, certain technical documents concerning the construction. The authority informed her that if she wanted to use the building as a meat-processing plant, she would have to apply for so-called “initial planning permission” (decyzja w sprawie warunków zabudowy i zagospodarowania terenu). It was further established that the dimensions of the building were smaller than those stipulated by the original building permit of 16 February 1994; windows and doors had been placed in different places; the rainwater draining system was inadequate, mainly because the building was situated very close to the boundary between the plots; and the building was already being used as a slaughterhouse and a meatprocessing plant.

On 21 December 1996 the Mielec District Office issued a similar decision in respect of K.Ś.’s land. The decision was subsequently quashed by the Rzeszów Governor. On 18 May 1998 the National Building Inspector upheld the Governor’s decision.

On 12 June 1997 the Mielec District Sanitary Inspector gave a positive opinion with regard to the sanitation of the building on H.K.’s property. The inspector considered that the modification of the use of that building as a slaughterhouse and meat-processing plant was legally permitted, on condition that a maximum of 50 porkers were slaughtered per month. On 8 July 1998 the Rzeszów Regional Sanitary Inspectorate quashed that decision.

Following a request by the applicant, on 8 June 1998 the Mielec District Office summoned the applicant and H.K. to another inspection of H.K.’s property to be carried out on 29 June 1998. It was established during that inspection that H.K. had failed to comply with the terms of the original building permit. On 16 July 1998 the Mielec District Office asked the Minor Offences Adjudicative Board to impose a fine on her.

On 26 June 1997 the applicant complained to the Mielec District Office that his neighbours had not ceased their business activities. He submitted that H.K.’s company was slaughtering approximately ten animals per day and continuing the meat-processing activities. He asked for an expert in environmental matters to be appointed to inspect the property. In reply, on 15 July 1997 the Mielec District Office informed the applicant that the deadline which had been set for H.K. to submit the relevant technical documents (see paragraph 8 above) would expire on 30 November 1997 and that the proceedings had therefore been stayed until that date.

By way of a decision given on 29 August 1997, the Rzeszów Governor ordered H.K. to submit, within four months, an environmental impact assessment of the slaughterhouse and meat-processing plant, referring to an ordinance of 13 May 1995 issued by the Minister for Environmental Protection, Natural Resources and Forestry.

On 5 November 1997 the Mielec District Office warned H.K. that noncompliance with the deadline for submission of the documents which she was obliged to submit could lead to criminal sanctions under the Construction Act 1994 (Prawo budowlane) (“the 1994 Act”).

On 12 November 1997 H.K. submitted the environmental impact assessment in respect of her slaughterhouse and meat-processing plant to the regional office of the Department of Environmental Protection.

In his letter of 18 September 1997 the applicant asked the Rzeszów Governor to carry out an environmental impact assessment of H.K.’s business. He complained that H.K. and K.Ś. were running two slaughterhouses and meat-processing plants, which were causing pollution and posed a real risk to the health of the neighbourhood. He stressed that his complaints to the Mielec Municipal Office and District Office, the Rzeszów Regional Sanitary Inspectorate (Państwowy Wojewódzki Inspektorat Sanitarny) and the Rzeszów Veterinary Hygiene Inspectorate (Wojewódzki Weterynaryjny Inspektorat Sanitarny) had been to no avail. On 3 October 1997 the Governor’s Office forwarded the letter to the Regional Environmental Protection Inspectorate and on 8 October 1997 asked the Regional Veterinary Hygiene Inspectorate to inform the Governor’s Office and the applicant about the measures taken as a result of his complaint.

On 16 October 1997 the Regional Veterinary Hygiene Inspectorate informed the applicant that on 29 April 1997 the Mielec District Veterinary Surgeon (Powiatowy Lekarz Weterynarii) and the State Sanitary Inspectorate had conducted an on-site inspection of the company and established that the applicant’s allegations were unfounded. The inspectors had no objections to the sanitation of the sites. The liquid sewage was drained to concrete containers with covers and removed by a waste-disposal company at least once per week. The owners had been keeping records of the water used and sewage removed from the premises.

On 29 October 1997 the Regional Environmental Protection Inspectorate informed the regional office of the Department of Environmental Protection that four inspections had been carried out on the sites of both companies between October 1996 and May 1997. As a result, certain obligations had been imposed on the owners in order to rectify any irregularities identified during the inspections. Otherwise, the inspectors had found that the companies had been complying with the applicable environmental requirements. In particular, the bacteriological soil tests confirmed that the land had not been contaminated and that no danger to health or the environment could originate from it.

On 9 February 1998 the applicant applied to the Mielec District Office for an order to demolish the buildings constructed by K.Ś. and H.K. on their plots. He argued that the buildings did not comply with the original building permits issued in 1993 and 1994. On 12 March 1998 the Rzeszów Governor informed the applicant that he had enquired into why the firstinstance authority had not yet enforced decisions concerning the illegal construction on H.K.’s land.

On 28 April 2000 the Mielec District Office informed the applicant that section 48 of the 1994 Act, which provided for the demolition of buildings constructed in breach of building permits, was not applicable to the buildings on K.Ś.’s and H.K.’s property. This was so essentially because the local land development plan allowed for the type of business activity conducted in those buildings. A demolition order could not therefore be issued in respect of those buildings.

On 25 November 1997 H.K. lodged an application for retrospective permission to use the building on her property as a slaughterhouse and meat-processing plant (postępowanie w sprawie zalegalizowania poprzez wydanie pozwolenia na użytkowanie budynku gospodarczego za zmianą sposobu uzytkowania jego części na rzeźnięmasarnię wybudowanego niezgodnie z pozwoleniem). She submitted the documentation requested on 18 December 1996 by the Mielec District Office (see paragraph 8 above). On 16 January 1998 the Rzeszów Governor’s Office (Urząd Wojewódzki) informed her that under the Environmental Protection Act of 29 August 1997 (Ustawa z dn. 29.08.1997 o zmianie ustawy o ochronie i kształtowaniu środowiska) (“the 1997 Act”) she was obliged to lodge her application for a retrospective permit with the Mielec District Office. It was pointed out that the new application should contain a report on the environmental impact of her business activities.

On 10 February 1998 the Mielec District Office informed H.K. that her application could not be examined as it did not meet the formal requirements. On 17 February 1998 H.K. renewed her application. On 11 March 1998 the Mielec District Office, having noted that the building on her land did not comply with the original building permit, requested an expert opinion from the Rzeszow Regional Office as to the compatibility of the meat-processing plant with the provisions of the 1997 Act.

On 7 April 1998 the Director of the Environmental Protection Department of the Rzeszow Governor’s Office (Wydział Ochrony Środowiska Urzędu Wojewódzkiego) refused H.K.’s application for a retrospective conversion permit on the grounds that her business plan was flawed. It was further noted that appropriate tests should be performed to assess the environmental impact of her business activities on the neighbourhood. On 8 June 1998 the Mielec District Office requested another expert opinion from the Rzeszow Regional Office as to the compatibility of that business with the requirements of the environmental legislation.

On 29 June 1998 the Rzeszów Regional Office ordered H.K. to submit, by 15 July 1998, supplementary documents concerning her company (concerning, inter alia, the results of soil contamination tests, noise levels caused by the operation of the plant and the waste disposal survey). On 15 July 1998 she complied with that order. On 23 July 1998 she informed the Rzeszów Regional Office that the regional agronomy laboratory had been commissioned to carry out the soil contamination test. However, the test could not be carried out because the applicant had not allowed soil samples to be taken from his property. Subsequently, samples were taken from H.K.’ s property close to the boundary with the applicant’s property.

On 29 July 1998 the director of the environmental protection department of the Rzeszów Governor’s Office issued an administrative decision declaring that H.K.’s business activity was compatible with the requirements of the environmental legislation. It was held that it had not caused any environmental degradation and its continuation was unlikely to pose any environmental risks in the future. The meat-processing plant fulfilled the requirements laid down by environmental protection regulations. In particular, its operation did not exceed permissible levels of pollution and noise, and the waste and sewage-disposal system worked properly. On 10 August 1998 the applicant appealed against that decision to the Minister for Environmental Protection, Natural Resources and Forestry.

On 17 March 1999 the Minister quashed the contested decision, stating that under new environmental legislation that had entered into force on 1 August 1998 (when the proceedings were ongoing) it was no longer necessary to determine whether the plant complied with environmental requirements, essentially because the plant could not be qualified as being particularly harmful to the environment and/or human health. The proceedings were therefore discontinued.

On 8 June 1998 the Mielec District Office scheduled an inspection of H.K.’s property. On 23 June 1998 the applicant informed the Office that H.K. had continued the construction work. On 28 June 1998 the inspection was carried out. There were no signs of ongoing construction work at that time. It was established that H.K. had continued to run her meat-processing business in the unfinished building. On 21 July 1998 the Mielec District Office ordered H.K. to refrain from using her slaughterhouse and meatprocessing plant, since the building was considered an illicit construction (samowola budowlana). H.K. appealed. On 7 September 1998 the Rzeszów Governor quashed the contested decision and remitted the case to the firstinstance authority.

On 23 November 1998 the Mielec District Office stayed the proceedings ex officio because H.K. had, in the meantime, applied to have her case decided under the legal provisions applicable at the time when the construction work had stopped. On 3 December 1998 the applicant lodged an interlocutory appeal against that decision. On 14 January 1999 the Rzeszów Governor quashed the contested decision and remitted the case to the first-instance authority. On 18 April 2000 the District Building Inspectorate (Rejonowy Inspektor Nadzoru Budowlanego) informed the Mielec District Office that H.K. had complied with the requirements imposed on her by the decision of 18 December 1996 (see paragraph 8 above).

On 2 May 2000 the Mielec District Office issued a decision authorising H.K. to run her business on her property (decision No. AB 7353/16/00). The applicant appealed. On 23 August 2000 the Podkarpacki Governor quashed the first-instance decision and refused to issue the permit sought (no. AB V 7114/12/1/00). On 23 October 2002 the Supreme Administrative Court quashed both the first and second-instance decisions. It referred to the number of proceedings conducted in H.K.’s case and found that all of them, including the proceedings concerning the request for retrospective permission to use the building as a meat-processing plant should have been dealt with by the District Building Inspectorate.

On 21 June 2004 the Mielec District Office gave a positive opinion with regard to the partial use of the building on H.K.’s property as a slaughterhouse and meat-processing plant. It had regard to a report concerning that business’s environmental impact. By a decision of 29 November 2004 the Podkarpacki Regional Building Inspectorate (Wojewódzki Inspektor Nadzoru Budowlanego) authorised H.K. to use part of the building for meat-processing activities (decision No. 79/2004). On an unspecified date the applicant appealed against that decision. On 20 April 2009 the Regional Building Inspectorate quashed the contested decision and remitted the case to the first-instance authority. The applicant and H.K. appealed. On 29 July 2009 the Rzeszów Regional Administrative Court rejected the applicant’s appeal. On 12 October 2009 the court rejected H.K.’s appeal.

A number of decisions given in subsequent proceedings were quashed upon appeal and the case was remitted to the firstinstance authority. On 15 February 2011 the local Building Inspectorate again authorised H.K. to use part of the building for meat-processing activities. This decision was quashed upon appeal. The owner was ordered to submit an expert opinion on the technical state of the building. In the proceedings conducted afterwards H.K. acknowledged, in December 2013, that she had been conducting meat processing business in a building which had never been certified as suitable for these purposes within the meaning of construction laws. On 17 January 2013 the local Building Inspectorate ordered the owner to cease operation of her business. This decision was subsequently quashed and the proceedings were discontinued. The applicant’s efforts to have them reopened remain unsuccessful. In the relevant correspondence the authorities stated repeatedly that in his complaints the applicant had failed to make it clear what procedural steps should be taken by the authorities in respect of the decision to discontinue the proceedings.

By a decision of 18 December 1996 (see paragraph 8 above) the head of the Mielec District Office ordered H.K. to apply for a permit to continue construction of the storehouse. On 21 July 1999 the District Building Inspectorate discontinued the proceedings, finding that they had become devoid of purpose given that the construction had been finalised. On 14 October 1999 the Podkarpacki Regional Building Inspectorate quashed that decision as premature and remitted the case to the firstinstance authority.

On 2 December 2002, in accordance with the Supreme Administrative Court’s judgment of 23 October 2002 (see paragraph 29 above), the Mielec District Office transmitted the case file to the District Building Inspectorate. On 4 February 2003 the inspector summoned H.K. and the applicant to participate in an administrative hearing and inspection of H.K.’s property. By a decision of 6 May 2003 the District Inspectorate ordered H.K. to stop using the storehouse for meat-production purposes, having noted that she had not obtained the relevant retrospective permission (decision No. NB 7355/38/99-03). On 29 July 2003 the Podkarpacki Regional Building Inspectorate upheld that order (decision No. OA 7144/12/14/03).

On 7 October 2003 the authority inspected H.K.’s property. It was established that she had continued to use the building for meat-processing purposes in breach of the decision of 6 May 2003. As a result, H.K. was fined on the basis of a judgment given on 5 April 2004 by the Mielec District Court.

On an unspecified date H.K. appealed against the decision of 29 July 2003 (see paragraph 34 above) to the Rzeszów Regional Administrative Court. On 28 April 2005 that court stayed the appellate proceedings because the applicant’s sister, who was a party to the proceedings, had died. On 4 September 2006 the proceedings were resumed. On 23 January 2007 the Rzeszów Regional Administrative Court quashed the decision of 6 May 2003 and the subsequent decision given on 29 July 2003. On 4 June 2008 the Supreme Administrative Court quashed that judgment and remitted the case to the Rzeszów Regional Court. The proceedings are apparently pending.

On 4 January 1995 H.K.’s company began to operate under its business licence of 2 January 1995 issued by the Mielec Municipal Office. The District Veterinary Surgeon (Rejonowy Lekarz Weterynarii) was charged with administrative supervision of the company. Subsequently, after the local administration reform of 1999, the County Veterinary Surgeon (Powiatowy Lekarz Weterynarii) took over.

On 3 March 2000 the company obtained a favourable opinion from the District Sanitary Inspectorate with regard to the wastedisposal system on her land. On 27 March 2000 the County Veterinary Surgeon issued a decision obliging H.K. to eliminate some irregularities found in the functioning of the company during a previous inspection.

On 24 July 2000 the applicant complained to the County Veterinary Surgeon about the company’s operation and requested that it be closed down. On 31 July 2000 the County Veterinary Surgeon inspected the company’s premises. The inspection established certain shortcomings as to the compatibility of the company’s operation with animal husbandry regulations. The company was ordered to rectify them by 15 August 2000. On 1 August 2000 the County Veterinary Surgeon informed the applicant about the results of the inspection and the obligations imposed on the owner. On 22 August 2000 the County Veterinary Surgeon conducted a further inspection and found that the orders had been complied with.

On 11 January 2001 the applicant again complained to the County Veterinary Surgeon. On 17 January 2001 that authority conducted an inspection of the company with a view to checking whether the previous orders had been complied with. It was established that the orders concerning the meat-processing plant had been fulfilled for the most part, but those concerning the slaughterhouse had not been followed.

Certain obligations imposed on H.K. were subsequently modified by a decision of 17 January 2001. On 25 January 2001 the County Veterinary Surgeon ordered H.K. to cease operation of the slaughterhouse until the orders had been complied with. On 26 January 2001 the applicant was informed accordingly. On 27 February 2001 the County Veterinary Surgeon conducted another inspection of the company. It was established that all obligations imposed previously on the owner had been met. On 1 March 2001 the County Veterinary Surgeon revoked his decision of 25 January 2001 accordingly.

On 7 March 2001 the applicant again complained of the alleged nuisance caused by the company. A new inspection of the site was carried out on 14 March 2001. No infringements of the applicable regulations were found. In his letters of 7 and 14 March 2001 the County Veterinary Surgeon informed the applicant accordingly.

Subsequent inspections were carried out on 23 May and 5 July 2001. No breach of the applicable regulations was established. The company remained under regular supervision by the County Veterinary Surgeon, who inspected its site in order to take samples for analysis on the following dates: 10 August, 22 August, 18 September, 5 November 2001, 28 January, 30 January, 1 March, 13 March, 13 May, 5 June, 16 July, 12 September, 22 October, 12 December 2002, 12 March, 21 May, 25 June, 30 June, 16 September, 9 October, 2 December 2003, 6 January, 23 February, 15 March, 17 June, 21 July, 16 September, 5 November 2004, 17 January, 14 April, 30 August, 20 October 2005, 15 February, 5 April, 1 June 2006, 29 March, 24 April 7, 3 July, 3 October 2007, 25 April, 10 September, 23 October 2008, 26 March, 2 July, 17 November 2009, 13 January, 22 February and 4 June 2010. The results of the tests were in accordance with the applicable norms.

With regard to the outcome of those inspections the County Veterinary Surgeon issued decisions of 27 October 2003, 5 September 2005, 7 April 2006 and 25 February 2010 ordering H.K. to bring certain aspects of the company’s operation into conformity with the law. On 29 March 2007 H.K. was fined for certain irregularities. Subsequent inspections showed that all irregularities had been removed and the requirements of the sanitation laws had been fulfilled.

As a result of a serious flood which occurred in June 2010, the company ceased to operate. On 7 July 2010 the County Veterinary Surgeon inspected the site and ordered its cleaning and disinfection. Tests carried out after cleaning of the site showed that there was no contamination, and the administrative authority renewed authorisation for production.


No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-a - After conviction)

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary

The applicant was born in 1943 and is currently detained in Riedstadt Psychiatric Hospital.

The applicant has previous convictions for rape dating from 1968 and for indecent assault combined with causing bodily harm by dangerous means dating from 1990.

On 14 January 2002 the Darmstadt Regional Court convicted the applicant of rape combined with the infliction of bodily injury. The judge incorporated a prison term arising from a previous conviction and sentenced him to a total of four years and six months’ imprisonment. Simultaneously, the court ordered the applicant’s placement in a psychiatric hospital pursuant to Article 63 of the Criminal Code (see paragraph 31 below). It held that the applicant was suffering from a disturbance in his sexual preference taking the form of sadism and found that the commission of further crimes was to be expected. The verdict of the Regional Court was based mainly on the conclusions of a psychiatric expert opinion but also took into account the applicant’s previous conviction for indecent assault in 1990. It also observed that the applicant had tried to subjugate several prostitutes whom he had been seeing in recent years. The Regional Court found that this indicated an evolution in his behaviour. It noted that the applicant had refused psychiatric therapy so far and shared the expert’s opinion that the applicant would not be able to resist his urge to humiliate and abuse women in order to satisfy his sexual drive. The Regional Court concluded that similar crimes were to be expected and the applicant therefore represented a danger to the public.

The applicant was arrested on the same day and placed in the Haina Clinic for Forensic Psychiatry.

The applicant’s detention in psychiatric hospitals has been reviewed at regular intervals (compare Articles 67d and 67e of the Criminal Code, see paragraphs 32 and 33, below) and has been extended annually. In the course of the respective proceedings, the courts have requested annual forensicpsychiatric expert opinions on the necessity of his detention in hospital. All expert opinions concluded that the applicant was likely to reoffend.

On 2 April 2003 the Haina Clinic for Forensic Psychiatry delivered an initial expert opinion, affirming the diagnosis of antisocial behaviour as an adult and abuse of alcohol. However, the expert opinion did not diagnose sexual sadism. Referring to the Diagnostic and Statistical Manual of Mental Disorders ‒ which is published by the American Psychiatric Association and offers a common language and standard criteria for the classification of mental disorders ‒ it found that the necessary criteria were not met. It concluded that this diagnosis seemed rather unlikely but could not be absolutely excluded without an extensive and credible sexual anamnesis.

On 13 May 2004 the applicant was transferred to the Hanau Clinic for Forensic Psychiatry.

On 21 November 2005 the applicant was examined by an external psychological expert who criticised in detail the diagnosis of sexual sadism during the trial, in particular the lack of information about the applicant’s inner experiences during the onset of the disorder, its further development, and the failure to evaluate his previous offences. The expert concluded that it remained doubtful whether a diagnosis of sexual sadism could be made (“Es bleibt also weiterhin fraglich, inwieweit ein sexueller Sadismus wirklich vorliegt”).

On 11 December 2006 the Hanau Clinic for Forensic Psychiatry delivered a further expert opinion. Although it mentioned the presumptive diagnosis of sexual sadism, it found that this presumption was not tenable in view of the history and the personality structure of the applicant. Even assuming that the applicant might have a sadistic sexual disposition, he experienced this without suffering and had no desire to change. According to the verdict of the trial court, the applicant had probably fulfilled his sexual inclinations with prostitutes in order to avoid being charged with an offence. Neither the files nor his statements revealed the development of an addiction or of a pressing perverted imagination or of pathologic impulsiveness. There was no call for therapy as the applicant neither suffered from his behaviour nor desired to change it. The clinic therefore concluded that the applicant’s committal to hospital had been erroneous.

On 3 September 2007, on 20 August 2008 and on 18 August 2009 similar forensic psychiatric expert opinions were delivered by the Hanau Clinic for Forensic Psychiatry. Although all of them also mentioned the presumptive diagnosis of sexual sadism, they confirmed the previous findings. All the expert opinions concluded that there were no indications for the diagnosis of sexual sadism apart from the facts contained in the verdict of the trial court. In each expert opinion the applicant was described as a classic instance of an erroneous hospital treatment order.

On 29 December 2009 the applicant refused to be examined by an external psychiatric expert.

On 26 January 2010 the applicant was transferred to the Haina Forensic-Psychiatric Hospital.

On 30 September 2008 the Frankfurt am Main Court of Appeal allowed the re-opening of the criminal proceedings which had been terminated by the judgment of the Darmstadt Regional Court dated 14 January 2002.

In 2010 the Kassel Regional Court appointed a new external psychiatric expert. The expert concluded that the applicant was suffering from sexual sadism, subject to the reservation that he had not examined the applicant in person but had based his evaluation on the medical files only. The Kassel Regional Court subsequently dismissed the request to reopen the criminal proceedings. The applicant’s appeal against this dismissal was dismissed.

On 17 September 2013 the Federal Constitutional Court declined to consider the applicant’s related constitutional complaint without providing reasons (file no. 2 BvR 1364/12).

On 15 March 2011 the Haina Clinic for Forensic Psychiatry, where the applicant was detained, delivered an expert opinion on the necessity of the applicant’s further detention in hospital. It made the diagnosis of a dissocial personality disorder, alcohol abuse and a presumptive diagnosis of sexual sadism. Although it found a high risk that the applicant would reoffend, it confirmed the prior assessment that the applicant represented a classic instance of an erroneous hospital treatment order. This conclusion was drawn from the fact that the applicant’s behaviour during treatment never gave any grounds for diagnosing a mental disorder such as would have been expected from a person suffering from a psychiatric disorder.

On 24 May 2011 the Darmstadt Regional Court asked the applicant to inform the court whether he agreed to being examined by the external expert Dr. Egg.

On 29 May 2011 the applicant wrote to the Regional Court and refused a medical examination.

On 26 July 2011 the Regional Court heard the applicant and his counsel in person as well as a psychological expert from the Haina Clinic for Forensic Psychiatry.

On 28 July 2011 the Regional Court declined to terminate the applicant’s placement in hospital and refused to release him on probation as the requirements of Article 67 d §§ 2 and 6 of the Criminal Code were not met (see paragraph 32, below). It explained that detention in a psychiatric hospital could be terminated on the grounds of an erroneous treatment order only if it was established with certainty that the applicant was not suffering from a mental illness warranting his detention under Article 63 of the Criminal Code owing to a diminished criminal responsibility from the very beginning. In this context the Regional Court observed that neither the statement by the psychological expert at the hearing nor the current and prior expert opinions had excluded the possibility that the applicant was suffering from sexual sadism, although this diagnosis had been found to be rather unlikely (see paragraphs 10 to 14, above). Furthermore, the court took into account that the applicant had refused to provide credible and full information about his sexual history and had thus rendered a certain diagnosis impossible. It therefore held that a committal to hospital by mistake had not been established beyond doubt. For this reason alone, therefore, the conditions for application of Article 67 d § 6 of the Criminal Code were not met. Lastly, the Regional Court noted, but explicitly without basing its decision on this fact, that the expert opinion which had been delivered in the course of the re-opening proceedings of the criminal trial had confirmed the diagnosis of sadism.

In conclusion, the Regional Court found that the applicant could not be released on probation as he had refused investigation of his problems relating to sexuality and violence. The evolution of the applicant’s detention and his lack of awareness regarding his crimes rendered it very probable that he would re-offend.

On 29 September 2011 the Frankfurt am Main Court of Appeal upheld the decision of the Regional Court. It observed that, for exceptional reasons, an examination of the applicant by an external psychiatric expert was not necessary. Such an expert report would have to be based on the files only, since the applicant had announced his refusal of any examination. Under these circumstances the Court of Appeal found that no new conclusions could be expected from such an external expert opinion. Moreover, it found that the applicant’s condition and dangerousness had not changed since his last examination as he had refused to undergo any therapy. The Court of Appeal further rejected the applicant’s allegation that the Regional Court had reproached him for failing to undergo therapy, while the hospital considered him to be an erroneous admission. It held that in any event the root cause of the applicant’s serious sexual crimes should be reappraised through therapy. In its view that would have been a requirement even if the applicant had been sentenced to imprisonment. The applicant himself had to bear the consequences of his refusal to participate in any therapy as the hospital offered therapy in order to reappraise the causes of crime even for patients who had been placed in hospital erroneously.

On 16 August 2012 the Federal Constitutional Court (file no. 2 BvR 2679/11) refused to admit the applicant’s constitutional complaint for its consideration without giving any further reasons.

On 23 April 2014 the Darmstadt Regional Court decided not to suspend the order for the applicant’s placement in a psychiatric hospital and not to grant probation after obtaining an external expert opinion dated 22 February 2014 and having heard the expert and the applicant’s counsel. The expert, who had not examined the applicant in person due to his refusal to permit such examination, found that the applicant was suffering from a disturbance of his sexual preference in the form of sadism and that the commission of further crimes was to be expected. The applicant’s appeal in this respect was dismissed by the Court of Appeal. The proceedings before the Federal Constitutional Court are still pending.

On 19 January 2015 the Darmstadt Regional Court again decided not to suspend the order for the applicant’s placement in a psychiatric hospital and not to grant probation after obtaining a written opinion from the Haina Forensic-Psychiatric clinic in which the applicant has been detained and after hearing the applicant. The applicant’s appeal in this respect was dismissed by the Court of Appeal.


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

The applicant, Mr Hubertus Wilhelminus Petronella Schreurs, is a Netherlands national, who was born in 1976 and lives in Tegelen. He was represented before the Court by Mr J. Boksem, a lawyer practising in Leeuwarden.

Between January 2008 and March 2008 the applicant published a number of advertisements on internet web sites offering goods for sale. He obtained payment in advance by bank transfer into bank accounts of accomplices. He withdrew the sums thus received in cash but never delivered the goods purportedly sold.

The applicant was arrested and taken into police custody (inverzekeringstelling). Subsequently he was taken into detention on remand (voorlopige hechtenis). In all, the applicant spent 188 days in pre-trial detention.

On 21 October 2011 the Roermond Regional Court (rechtbank) found the applicant guilty of “making a habit of complicity in money laundering” (witwassen; Articles 420bis and 420ter of the Criminal Code (Wetboek van Strafrecht)). It sentenced him to 210 days’ imprisonment, 22 days of which was suspended for one year, and ordered him to compensate his victims.

The applicant appealed.

On 26 February 2013 the ‘s-Hertogenbosch Court of Appeal (gerechtshof) gave judgment acquitting the applicant of all involvement in money laundering. Its reasoning included the following:

“It is apparent from the information contained in the case file and the investigation at the hearing that the suspect has, by publishing advertisements on the internet and making use of bank accounts of third parties, induced the persons named in the indictment to part with sums of money (by bank transfer) without delivering what was promised in return. Such a course of action may, in the circumstances of the present case, be qualified as fraud (oplichting).”

On 11 April 2013 the applicant submitted a request to the Court of Appeal for compensation for the damage he claimed to have suffered as a result of his pre-trial detention (Articles 89 and 90 of the Code of Criminal Procedure (Wetboek van Strafvordering; see below)).

Having held a hearing in camera on 14 June 2013, the Court of Appeal gave a decision on 28 June 2013 dismissing the request. Its reasoning included the following:

“It appears from the case file that the former suspect was charged with (complicity in) habitual money laundering, or in the alternative, a number of counts of (culpable) money laundering. The former suspect was acquitted on the charges by the judgment of 26 February 2013.

In addition, the Court of Appeal, in its said judgment, found the following:

‘It is apparent from the information contained in the case file and the investigation at the hearing that the suspect has, by publishing advertisements on the internet and making use of bank accounts of third parties, induced the persons named in the indictment to part with sums of money (by bank transfer) without delivering what was promised in return. Such a course of action may, in the circumstances of the present case, be qualified as fraud.’

The Court of Appeal takes the view that, considering the content of the said judgment, there are no reasons in equity to award any compensation.”

Provisions of the Criminal Code relevant to the case are the following:

“1. He who, with intent unlawfully to gain for himself or for someone else an advantage, induces someone to part with goods of any description, deliver a service, make available information, contract a debt or annul a claim, whether by assuming a false name or a false quality or by cunning tricks or a web of lies, shall be guilty of fraud and shall be punished with a term of imprisonment not exceeding four years or a fifth-category fine [i.e. up to a maximum of 78,000 euros]. ...”

“1. The following shall be guilty of money laundering and punished with a term of imprisonment not exceeding four years or a fifth-category fine:

a. he who conceals or dissimulates the true nature, origin, location, transfer or relocation of an object, or conceals or dissimulates the identity of the person who is entitled to an object or has it in his possession, knowing that the object constitutes the proceedings of an indictable offence (misdrijf) directly or indirectly;

b. he who obtains, has in his possession, transfers, transforms or uses an object, knowing that the object constitutes the proceedings of an indictable offence directly or indirectly.

The expression ‘object’ shall be understood to mean all goods and all pecuniary rights.”

“He who makes a habit of money laundering shall be punished with a term of imprisonment not exceeding six years or a fifth-category fine

Provisions of the Code of Criminal Procedure relevant to the case are the following:

“1. If a case ends without the imposition of a punishment or measure, or when such punishment or measure is imposed but on the basis of a fact for which detention on remand is not allowed, the court may, at the request of the former suspect, grant him compensation at the expense of the State for the damage which he has suffered as a result of police custody, clinical observation or detention on remand (voorlopige hechtenis). Such damage may include non-pecuniary damage. ...”

“1. Compensation shall be awarded in each case if and to the extent that the court, taking all circumstances into account, is of the opinion that there are reasons in equity to do so.

In the determination of the amount, the personal circumstances (levensomstandigheden) of the former suspect shall also be taken into account. ...”


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in 1965 and lives in Kharkiv, Ukraine.

In 1999 he obtained a Russian passport.

On 29 December 2006 the Leninskiy District Court of Dnepropetrovsk, Ukraine, ordered to arrest and bring the applicant to the court in order to determine the preventive measure during the investigation of his alleged robbery. The applicant’s name was put on the international list of wanted persons.

On 26 September 2007 the applicant was arrested in Moscow. As the applicant was a Russian national, he was released.

On 14 October 2007 the Ukrainian authorities sought the applicant’s extradition from Russia in relation to the criminal proceedings against him.

On 21 December 2007 the Russian Federal Migration Authority concluded that the applicant had fraudulently obtained his Russian passport by falsifying a number of documents. They ordered to seize his passport and put his name on the federal wanted list. The applicant’s subsequent attempts to challenge the Federal Migration Authority’s decision on his Russian passport were unsuccessful.

On 13 May 2008 the applicant was arrested. On 15 May 2008 a prosecutor authorised his detention considering that the decision of 29 December 2006 of the Leninskiy District Court of Dnepropetrovsk had authorised the applicant’s “placement into custody”, as mentioned in Article 61 § 1 of the Minsk Convention.

On 24 June 2008 a district prosecutor decided that the applicant should be “placed in custody” considering that the decision of the Leninskiy District Court of Dnepropetrovsk of 29 December 2006 authorised “placement into custody”, as required under Article 466 § 2 of the Russian Code of Criminal Procedure (“the CCrP”).

On several occasions the applicant unsuccessfully complained about his detention to the prosecuting authorities. On 4 September 2008 the Perovskiy District Court of Moscow dismissed the applicant’s complaint considering that his arrest and detention in relation to the Ukrainian extradition request had been and remained lawful. On 24 November 2008 the Moscow City Court upheld this decision of 4 September 2008 concluding that “matters relating to lawfulness and reasons for detention should be raised under another procedure prescribed by law”.

On 3 October 2008 the Russian Prosecutor General’s Office granted the extradition request. On 18 November 2008 the Moscow City Court confirmed the decision of 3 October 2008. On 29 January 2009 the Supreme Court of Russia upheld the judgment of 18 November 2008 on appeal.

On 20 May 2009 the applicant was transferred to the Ukrainian authorities in the town of Kharkov. On 26 May 2009 he was transferred to the town of Dnepropetrovsk. On 6 June 2009 a Ukrainian court refused to order the applicant’s detention pending the investigation. The applicant was released.


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

The applicants were born in 1957, 1961 and 1980 respectively and live in Svetlograd, Stavropol Region. The first and second applicants are husband and wife. The third applicant is their son.

According to the first applicant, on 8 August 2003, at approximately 11.30 p.m., a police patrol car approached his car on a dark village road. A police officer, using a loudspeaker, ordered the first applicant to pull over. The first applicant replied that he would stop at the nearest road police post. The officer repeated his order, noting that he needed to borrow gasoline for the police car. The first applicant kept driving. Near Svetlograd the police officers blocked the road. When the first applicant stopped the car, one of the five policemen pulled him out of the car and hit him in the face. The police officers threw him against the hood of his car, kicked him in the shins and hit him with a butt of a machine gun. The first applicant fell down and fainted. After he regained consciousness and stood up, the police officers claimed that he was drunk and told him to take a breath test which showed that the first applicant was sober. The police officers checked his documents, searched his car and left. The first applicant got into his car and drove away in the same direction. Having driven approximately 500 metres, he saw that the police car had stopped and that the police officers had gathered around it. The first applicant approached the officers. The officer in charge identified himself as Ye. and apologised for the excessive force his subordinates had used towards the first applicant.

The first applicant arrived home at approximately 2.30 a.m. on 9 August 2003. On the same day the first and third applicants filed a complaint about the incident with the local police station.

At 9 a.m. on the same date the first applicant visited the second applicant who underwent a medical treatment in hospital. According to the second applicant, her husband told her about the altercation with the police. He also had visible bruising on his face. At 10.30 a.m. the first applicant underwent a medical examination at the same hospital. Having been diagnosed with multiple injuries, he was admitted for in-patient treatment. An extract from a medical record drawn up in the hospital indicated that the first applicant had injuries on the right cheek, the left shin and the lower back and the swelling of soft tissues.

On 13 August 2003 the first applicant was admitted to the Stavropol Regional Hospital where he was diagnosed with “a multisystem trauma; closed craniocerebral injury; a light brain contusion; an injury of the soft tissues of the right temporal region; a closed uncomplicated stable vertebra medullispinal injury, a compression fracture of the Th. VII vertebra; an intramuscular haematoma of the right side of the lumbar region; a neurologic form of the lumbar plexitis.” Ten days later he was released from hospital on conditions of bed rest and subsequent supervision by a neurologist and orthopaedist.

On 11 August 2003 investigator G. questioned the police officers who denied the first applicant’s allegations. They claimed that they had ordered the first applicant to pull over because they had suspected that he had been driving under the influence of alcohol. The first applicant had refused to comply and had verbally insulted them demonstrating obscene hand gestures. After having searched the first applicant and his car, they had let him go.

On the same date the investigator ordered a forensic medical examination of the first applicant. Having examined the first applicant, the forensic expert documented multiple injuries on the right cheek and the lumbar region, multiple bruises all over the body and swelling of the soft tissues. The expert considered that those injuries could have resulted from the impact of solid blunt objects or from the fall.

On 20 August 2003 the investigator refused to institute criminal proceedings against the police officers. It appears that his decision was quashed on a later date.

On 9 September 2003 the first applicant underwent another forensic medical examination. The expert documented the first applicant’s injuries considering that they might have resulted from the impact of solid blunt objects.

According to the first applicant, on 20 September 2003 an investigator of the district prosecutor’s office refused to institute criminal proceedings against the police officers. On 3 October 2003 the district prosecutor dismissed the first applicant’s complaint against the investigator’s decision. Ten days later, the Petrovskiy District Court of the Stavropol Region quashed the prosecutor’s decision and authorised a new round of inquiry.

On 28 October 2003 the police issued a report on the inquiry conducted in response to the first applicant’s complaint. Having examined the forensic medical documents and the statements made by the police officers, the first applicant and the witnesses, the police investigator concluded that the first applicant might have sustained injuries as a result of the force used by the police officers in response to his unlawful actions.

On 21 December 2003 investigator G. ordered a new forensic medical examination of the first applicant in order to reconcile inconsistencies in the experts’ findings.

It appears that the first applicant’s complaint about the police brutality was dismissed by the authorities on another six occasions. Each time a superior prosecutor or a court quashed those decisions considering the investigator’s findings incomplete and unsubstantiated and ordering further inquiry into the first applicant’s allegations.

On 22 July 2005 the district prosecutor opened a criminal investigation into the first applicant’s allegations of ill-treatment by unidentified police officers.

On 22 December 2005 the investigator V. stayed the criminal proceedings, holding that it was impossible to establish the alleged perpetrators who had assaulted the first applicant.

On 2 February 2006 the first deputy of the regional prosecutor quashed decision of 22 December 2005 noting that the investigation had not been completed and reopened the proceedings.

On 6 March 2006 the investigator concluded that there was no evidence showing that the first applicant’s injuries had been caused by the police officers and that he was unable to establish the real perpetrator. The first applicant appealed.

On 3 April 2006 the district prosecutor partly accepted the first applicant’s complaint and resumed the investigation. At the same time the prosecutor endorsed the investigator’s reasoning that there was no evidence showing that the offence had been committed by the police officers. A week later the proceedings were again stayed because the perpetrator of the offence remained unknown.

On 6 June 2006 investigator D. again discontinued the criminal investigation. The investigator established that, when searching the first applicant and his car, one of the police officers had punched him on the right cheek and hit him in the back twice with a blunt solid object. The investigator also accepted that, as of the morning of 9 August 2003, the first applicant had bruises on the right cheek, the back and the left shin. He further noted that the forensic medical experts had not ruled out a possibility that the first applicant might have sustained those injuries as a result of the altercation with the police, as alleged by him. The investigator dismissed the first applicant’s allegations referring to his prior criminal record. He also noted that a number of the first applicant’s neighbours had not confirmed that the latter had had any injuries on him on 9 August 2003. As regards the statements made to the contrary by the other neighbours, the investigator found them to be unsubstantiated. Lastly, the investigator took into account that all the police officers denied the first applicant’s accusations. However, it was impossible for the investigator to establish the alleged perpetrator for lack of relevant evidence.

It appears that the decision of 6 June 2006 was quashed and the case was re-opened.

On 17 July 2006 investigator D. discontinued the criminal investigation reproducing verbatim his earlier decision of 6 June 2006. He also considered that the first applicant had willfully made false accusations against the police officers and should be held liable for his actions. The investigator forwarded the relevant material to the prosecutor’s office.

On 14 January 2011 the deputy head of the supervision unit of the Investigative committee considered the decision of 17 July 2006 unlawful and unsubstantiated, quashed it and remitted the matter for further investigation. He noted, inter alia, that the investigator had failed (1) to establish what each of the police officers had done once they had pulled over the first applicant’s car; (2) to check whether any of the police officers had had a machine gun as claimed by the first applicant; and (3) to establish the reasons why the witnesses who had initially claimed that they had seen the police officers beating the first applicant had revoked their statements.

On 1 March 2011 the senior investigator with the district investigative committee dismissed the first applicant’s accusations against the police officers duplicating the findings summed up in the earlier decisions on the matter. Nevertheless, he allowed that the first applicant’s injuries could have resulted from the beatings and that a criminal investigation should be opened on charges of battery. He transmitted the materials to the head of the district investigative committee. The parties did not inform about the outcome of the proceedings.

On 30 September 2004, at approximately 11.00 p.m., the applicants, suspecting that their neighbour had committed a number of thefts and intended to steal their property, beat him up, broke into his car, took the documents for the car and refused to return them until the arrival of a police patrol car.

On 15 June 2005 the Petrovskiy District Court found the applicants guilty of vigilantism and sentenced each of them to two and half years’ imprisonment. The sentence was suspended on eighteen months’ probation. On 4 August 2005 the Stavropol Regional Court upheld the applicants’ conviction on appeal.


CASE OF SAKİNE EPÖZDEMİR AND OTHERS v. TURKEY

No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect)

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

The applicants were born in 1947, 1966 and 1968, respectively, and live in Istanbul. The first applicant is the wife and the second and third applicants are the sons of Mr Şevket Epözdemir.

The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows.

The deceased was a lawyer and the chairman of the Tatvan provincial branch of a pro-Kurdish political party, the Democracy Party (“DEP”).

The applicants submitted that between August and December 1993, DEP party buildings were bombed and ten of its members and administrators were killed. The applicants also alleged that during a meeting with political party representatives, General K.T., who was the commander of the Tatvan 6th Armoured Brigade, had threatened their relative, Şevket Epözdemir, and one of his colleagues, the chairman of DEP’s Bitlis provincial branch, Mr İshak Tepe. The General had told the two men that “they would meet their deaths very soon”. Subsequently, Mr Tepe’s son had been abducted and killed.

On the morning of 25 November 1993 Mr Epözdemir left his house to go to his office, which was nearby. At around 8 p.m. the same day Mr Epözdemir telephoned his wife, the first applicant, and told her that he was leaving his office to come home. When he failed to arrive the family became concerned and contacted the authorities.

At midday the following day the first applicant went to the police station in Tatvan, where she asked the police officers to find her husband. She told the police officers that when her husband had failed to come home the previous evening she had telephoned the local prosecutor and asked him whether her husband had been arrested. After the prosecutor had told her that her husband had not been arrested, she had informed members of her family about her husband’s disappearance, and then waited up all night.

Unbeknown to the first applicant, some half an hour before she went to the police station the body of her husband had been found by soldiers in the vicinity of the nearby town of Güroymak, in a ditch at the side of a road which connected the town of Tatvan to the city of Bitlis. He was blindfolded and there was a gunshot wound on his face. The police officers who subsequently arrived at the scene informed the soldiers that it could be the body of Şevket Epözdemir, whose disappearance had been reported to them by his family.

The local prosecutor arrived at the scene at 1.45 p.m. on the same day and gave instructions for the deceased’s body to be taken to the hospital in Bitlis, where it was formally identified by Mr Epözdemir’s brother, Şakir Epözdemir, who also informed the prosecutor that after his brother had failed to come home the previous evening the family had telephoned the local police at 9.30 p.m. because they feared that he might have been abducted. He added that his deceased brother had been a prominent figure in the town of Tatvan and that that had been the reason for the family’s suspicions that he might have been abducted.

On the same day Mr Epözdemir’s body was examined by two doctors, who noted that there was a bullet entry hole on the face and a corresponding exit hole on the back of the head. The doctors also noted the existence of widespread injuries on many parts of the face and the body which, according to the doctors, had been caused by physical trauma. The doctors, who established the cause of death as cerebrovascular haemorrhagic shock caused by the gunshot wound, did not consider it necessary to carry out a full autopsy.

On the same day the Tatvan prosecutor opened an investigation file into the killing and informed the Ministry of Justice.

On 27 November 1993 the Tatvan police headquarters sent a letter to the governor’s office in the town of Güroymak, in whose administrative jurisdiction the body had been found, and asked the governor whether the applicants’ relative had been in Güroymak on 25 November 1993 and whether they had any information about anyone in Güroymak who might have harboured hostile feelings towards Mr Epözdemir.

On 29 November 1993 the second applicant asked the Tatvan prosecutor whether there had been an outstanding arrest warrant in respect of his father. On the same day the prosecutor informed the second applicant that no such warrant had been issued.

On 6 December 1993 the Bitlis prosecutor decided that he did not have the requisite jurisdiction ratione materiae to investigate the case and forwarded the investigation file to the prosecutor’s office at the Diyarbakır State Security Court, which did have jurisdiction to investigate such offences.

On 21 December 1993 the prosecutor at the Diyarbakır State Security Court sent a letter to the Bitlis prosecutor and asked him to resume his investigation into the killing and to inform him every three months about developments.

On 5 June 2003 the applicants sent letters to the offices of the Van and Tatvan prosecutors and asked to be provided with information regarding the steps taken in the investigation over the course of the previous ten years.

On 26 June 2003 the Van prosecutor’s office decided that it had no jurisdiction ratione loci to investigate the incident and forwarded the applicants’ letter (mentioned in the preceding paragraph) to the office of the prosecutor in Tatvan. On 30 June 2003 the Tatvan prosecutor decided that his office did not have jurisdiction ratione loci either and sent the letter to the prosecutor’s office in Güroymak. On 24 July 2003 the Güroymak prosecutor took a decision of non-jurisdiction ratione materiae and sent the letter to the prosecutor’s office at the Van State Security Court.

On 14 August 2003 the prosecutor at the Van State Security Court replied to the applicants’ letter of 5 June 2003 and informed them that the investigation was still continuing. On the same day the prosecutor also issued a standing search order and asked the Güroymak prosecutor to continue to search for the perpetrators and to inform his office every three months about developments.

On 10 May 2010 the Güroymak prosecutor instructed the local gendarmerie to search for the perpetrators until 26 November 2013 (the date of the expiry of the time-limit prescribed by the statute of limitations). On 1 December 2010 and 24 March 2011 a number of gendarmes visited the place where the body had been found in 1993 and noted that there was no evidence there to help solve the killing.

In the meantime, on 10 January 1995 the applicants brought compensation proceedings against the Ministry of the Interior. In their petition the applicants argued that the perpetrators of the killing had not been found, despite the fact that more than one year had elapsed since the incident. They submitted that their relative had been a well-liked person in Tatvan and that he had never had any problems with anyone. The applicants argued that States were responsible for protecting their citizens’ lives and that in the event that they failed to do so, they had a duty to find and punish the perpetrators of any resultant unlawful death; otherwise they themselves should be held responsible for such loss of life. The applicants also submitted that, because of the failure to find and punish the perpetrators of the killing of Şevket Epözdemir, they had suffered immeasurable pain and stress and the State had thus an obligation to compensate them for the damage that they had sustained. They argued that the State’s liability arose from its failure to protect the deceased’s life. In any event, even if no such failure could be said to have occurred, they further argued that the State nevertheless had an “absolute liability” to compensate them.

On 10 June 1996 the Bitlis police headquarters informed the Van Administrative Court, in response to an apparent query from the latter, that the applicants’ relative, Şevket Epözdemir, had never requested protection from the authorities.

On 16 December 1997 the Van Administrative Court decided to award compensation to the applicants, in accordance with Article 125 of the Constitution (see paragraphs 32-34 below). It held that when carrying out their duties the public authorities had an obligation to take the necessary measures and to show due diligence in doing so. In the present case the public authorities had failed to comply with that obligation.

The Ministry of the Interior appealed, arguing that it had not failed in that obligation because the reason for the killing and the identity of its perpetrators had not yet been established.

The applicants did not submit any observations in reply to those of the Ministry of the Interior.

In its decision of 6 November 2000 the Supreme Administrative Court quashed the decision of the Van Administrative Court because it considered that, given that the reason for the killing had not been established and the perpetrators had not been identified, no causal link could be said to exist between the damage caused by the killing and any actions on the part of the public authorities. It added that for the public authorities to be said to have failed in their obligation, it was necessary to establish that they had either not performed their duties at all, or had failed to perform them in a timely manner, or had performed them in an unsatisfactory fashion. The Supreme Administrative Court further held that the lack of the above-mentioned causal link also prevented the courts from awarding compensation to the family on the basis of the public authorities’ “absolute liability” because the sole fact that the deceased had been a “member of society” was not sufficient. For it to be able to award compensation on the basis of the “social risk doctrine” it was a precondition for the damage to have arisen in a setting within which public servants were carrying out their duties.

On 15 May 2001 the Van Administrative Court re-examined the case in the light of the Supreme Administrative Court’s decision and decided to reject the applicants’ claim for compensation. In reaching its conclusion, the administrative court noted that the investigation into the killing was still ongoing and, in any event, the deceased had never sought protection from the State. It thus held that the public authorities had not acted in breach of their duties. It further held that, as the conditions of the “social risk doctrine” had not been satisfied, it was not possible to award compensation to the family on the basis of the State’s “absolute liability”.

The applicants lodged an appeal with the Supreme Administrative Court against the decision and argued that a citizen need not officially seek protection from the authorities in order to trigger the State’s obligation to protect such a citizen’s life. To argue otherwise would be at odds with the Constitution and the international treaties to which Turkey was a party. The applicants also submitted that at the time of the killing, a state of emergency had been declared in their part of the country; this had created a climate that was conducive to the perpetration of such crimes. The fact that some eight years after the killing the perpetrators had still not been identified was an indication that the public authorities had failed in their duties. The applicants maintained that the authorities had failed to take the necessary steps to prevent the attack on their relative and to find the perpetrators. The Ministry was therefore responsible for the pecuniary and non-pecuniary damage arising from the failures on its part.

The appeal lodged by the applicants was rejected by the Supreme Administrative Court on 17 April 2003. A request made by the applicants for the Supreme Administrative Court’s decision to be rectified was also rejected, on 14 November 2005. The final decision was served on the applicants on 3 January 2006.


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

Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek

The applicant was born in 1946 and lives in Bucharest.

On 24 April 2002 she was hit by a car while crossing the street. The driver left the scene of the accident and took the applicant to hospital, where she was diagnosed with a fractured spine. She underwent surgery five days later and was released from hospital on 14 May 2002.

The police opened an investigation to clarify the circumstances of the accident.

On 19 June 2002 the police took a statement from the applicant, in which she complained that the driver had caused her bodily harm. She also requested 20,000 US dollars (USD) from him in civil damages.

On 5 July 2002 the police officer in charge of the investigation ordered a technical expert report.

On 8 July 2002 an eyewitness was interviewed by the police.

On 23 August 2002 a forensic medical report was attached to the investigation file. It stated that the applicant had suffered injuries which required forty to forty five days of medical care.

According to reports drafted by the investigating police officers, on 30 November 2002 and 16 January 2003 the applicant failed to attend the police station to take note of the objectives set for the expert report. On 5 June 2003 the applicant went to the police station, where she submitted additional questions to be answered by the expert.

On 18 February 2004 the police requested the assistance of an expert to prepare the technical expert report in the case.

On 29 March 2004 the expert examined the scene of the accident in the presence of the driver and the applicant. The driver declared that he agreed with the expert’s findings.

The technical expert report was finalised on 25 August 2004. It stated that the applicant was to blame for the accident because she had crossed the street in an unmarked place without paying attention. The driver, who had been turning his vehicle at the time, had not breached any traffic regulations. The expert appointed by the driver agreed with the report, while the expert appointed by the applicant drafted a dissenting opinion concluding that the fault lay entirely with the driver, who had turned his car without paying attention.

The applicant took note of the expert opinions on 23 November 2004. On 17 January 2005 she submitted objections, to which she received a reply on 25 January 2005.

On 31 January 2005 the Prosecutor’s Office attached to the Bucharest District Court decided not to prosecute the driver, since the fault of the accident lay entirely with the applicant. The applicant lodged a complaint against that decision, but it was rejected as ill-founded by a hierarchically superior prosecutor on 4 April 2005.

A complaint by the applicant against the two decisions was declared inadmissible by the Bucharest District Court on 2 June 2005. She lodged an appeal on points of law (recurs) against that judgment. On 4 August 2005 her appeal was allowed by the Bucharest County Court, which decided to send the case back to the prosecutor for a more thorough investigation since numerous facts had not been clarified.

On 29 December 2005 the applicant made enquiries with the prosecutor’s office about the status of the investigation.

On 26 April 2006 the same eyewitness was interviewed again.

A new expert report was requested by the prosecutor on 7 July 2006, and on 19 July 2006 the applicant informed the authorities that she would need additional time, until 9 September 2006, to decide whether to instruct a counter expert on her behalf.

On 10 August 2006 a first written statement was taken from the driver.

In statements given to the police on 11 May and 19 October 2006, the applicant mentioned that a new expert report would not be necessary in the case.

According to three reports drafted between 2 October and 29 November 2006 by the police officer in charge of the investigation, the applicant could not be contacted, or had failed to come to the police station to give the name of her counter expert.

On 23 January 2007, holding that a new expert report was not necessary, the prosecutor decided again not to prosecute the driver since the fault for the accident lay entirely with the applicant. The decision was upheld by a hierarchically superior prosecutor on 21 February 2007.

The applicant’s complaint against the prosecutors’ decisions was allowed by the Bucharest District Court on 8 May 2007. The court held that the investigative authorities had failed to follow the instructions given in the previous judgment of 4 August 2005. The judgment became final on 26 September 2007 when an appeal on points of law by the prosecutor was dismissed by the Bucharest County Court.

On 9 June 2008 the Prosecutor’s Office attached to the Bucharest District Court noted that the limitation period for the crime under investigation had expired on 24 April 2007 and decided to close the case.

The applicant appealed against that decision before the courts. She claimed 25,000 euros (EUR) in respect of non-pecuniary damage from the driver and the Prosecutor’s Office. She considered that the prosecutor was liable for the excessive delays in the investigation which had triggered the expiry of the limitation period for the crime committed against her.

On 27 August 2008 the Bucharest District Court rejected the applicant’s claim. The court held that because the limitation period for criminal responsibility in the case had expired it could not rule on the applicant’s claim for compensation. It further held that the applicant could bring such a claim before the civil courts. The judgment became final on 15 October 2008 when an appeal by the applicant was dismissed by the Bucharest County Court.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 5 - Right to liberty and security (Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

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

The applicants complained of the excessive length of their pre-trial detention. In applications nos. 5403/07 and 12097/09, the applicants also raised other complaints under the provisions of the Convention.


Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Paul Lemmens;Robert Spano;Ksenija Turković

The applicant was born in 1967 and lives in Strathfield in Australia.

At the material time he had been a correspondent with an Australian newspaper in Turkey. He had also been working voluntarily for a bookshop specialising in books on Christianity.

On 24 June 1997 he appeared in a television documentary broadcast in the framework of the programme Son çare (“Last Resort”), hosted by Ms Hülya Koçyiğit.

During the programme the hostess introduced the documentary by pointing out that it concerned covert activities conducted in Turkey by “foreign pedlars of religion” (yabancı din tüccarları).

The ensuing documentary was along the following lines:

Over footage of mosques and then Christian religious ceremonies, a voice stated that everyone, whether a member of the Muslim majority or a religious minority, had the right to belong to the religion of his or her own choosing and the freedom to practise that religion. According to the voice-over, it was strange that some proselytising activities were being carried out in a covert manner, despite the freedom of conscience and religion.

Against a background of images of a dhikr ceremony performed by a Muslim brotherhood, showing followers in a state of trance, the voiceover asked whether, “in order to combat such instances of bigotry (yobazlık), an attempt was being made to set up groups of Christian converts, plunging the country into chaos”.

The voiceover explained that the aim of the programme was not to judge any specific religion but to show that whatever their nationalities or religious beliefs, the pedlars of religion all used the same methods.

The voiceover explained that the programme producers had been contacted by a certain A.N., who lived in Samsun. This person had been intrigued by an advertisement asking “would you like to read books free of charge?”, and had replied. In return, he had received a number of books by mail, all of them concerning Christianity. He had written back and had once again received books on the same subject. The second dispatch had been accompanied by a letter thanking him for his interest in the subject.

There had subsequently been a telephone exchange between A.N. and the sender, who had proved to be the applicant.

After that exchange it had been agreed that the applicant would travel to Samsun to meet A.N.

It was at that point that A.N. had decided to inform the programme producers and to invite them to make a documentary on the subject.

On 17 June 1997 the applicant had travelled to Samsun to meet A.N. and some of his “friends [purportedly] interested in Christianity” for the first time, in a restaurant. The conversation had been filmed by a hidden camera.

According to the voiceover, the applicant had then presented the teachings of the Bible. He had continued by comparing Christianity with other religions, emphasising his own beliefs. However, that sequence was not shown, on the grounds that the aim of the documentary was not to discuss the merits of specific beliefs but to expose the methods used.

A.N. and the applicant had arranged to meet up again the next day in an apartment, again accompanied by a group of A.N.’s friends purportedly desirous of learning about the Christian religion.

During that second meeting the applicant had explained that he was not alone but was part of a group working throughout Turkey. He had said that premises could be rented in Samsun for the converts, but that he would have to talk to his “boss” about that. The question of where the money would come from was difficult, but an open, intelligent attitude had to be adopted to such matters because converts could be accused of having changed religions thanks to pecuniary considerations rather than conviction.

The documentary then showed the following dialogue between the applicant and one of the participants:

“Participant:

- Have you read the Koran?

Applicant:

– Yes.

Participant:

– What did you think of it?

Applicant:

– I liked it. Some of the verses are good, but...

Participant:

– ... but there is also some nonsense?

Applicant:

– No, I wouldn’t say that, but it cannot save me, because I know I am a sinner.

Applicant:

– The knowledge which God has sent us is set out in the Bible, the Torah and the Book of the Psalms of David. [That knowledge] is complete in itself. We need no other prophet, because Jesus is divine in essence ...”

Just as the applicant was apparently preparing, with the help of a bowl of water, to explain to the participants the ritual of baptism, the person hosting the programme, Hülya Koçyiğit, burst into the room with a camera and a microphone.

She told the applicant that she had heard about the meeting and had come to make his acquaintance. She asked him who he was and where he came from.

The applicant replied that he was Australian and held an identity card up to the camera. He added that he was a journalist, and was involved in explaining the Christian faith on a voluntary basis.

Asked why the latter activity was covert, he answered that it was not covert, and that he had come to Samsun with full trust in the person who had contacted him.

The documentary then presented an interview between Ms Koçyigit and an academic from the Istanbul Faculty of (Islamic) Theology. The latter explained that Muslims were duty-bound to respect and believe in the divine nature of the holy books of all the monotheistic religions, pointing out that Islam was a religion of tolerance. However, he voiced his surprise at the covert nature of the activities shown in the documentary.

At the end of the programme the applicant was shown walking along carrying a bag. The voiceover described him as “Dion, the pedlar of religion, on his way to the police station to give a statement”.

According to the applicant, the hostess of the TV programme had been accompanied by police officers when she had burst into the room, and the officers had remanded him in custody after the discussions.

He had been released the following day, after having given his statement.

On 25 June 1997 the Samsun prosecutor’s office brought criminal proceedings against the applicant for insulting Allah and Islam.

On 28 April 1998 Samsun Criminal Court found the applicant innocent given that no evidence had been provided of a criminal offence.

On 24 June 1998 the applicant filed an action for damages against the programme presenter and producers.

Istanbul Regional Court (“IRC”) dismissed that action by judgment of 18 March 2003 on the grounds of the public interest of dissemination of information.

By judgment of 15 June 2004 the 4th Civil Chamber of the Court of Cassation set aside the latter judgment, by four votes to one.

In its reasoning the Chamber noted that the case concerned a conflict of rights between freedom of expression, on the one hand, and personality rights on the other. Having reiterated the fundamental importance of freedom of the press, it pointed out that that freedom nevertheless had its limits. It considered that the claimant had not committed any unlawful act but had merely exercised his rights to freedom of expression and freedom of conscience, which two rights were secured under both the Constitution and the European Convention on Human Rights. That being the case, the claimant’s right to respect for his private life had suffered a twofold violation, first of all when he had been filmed by a hidden camera, and secondly when the images had been broadcast, accompanied by such expressions as “pedlar of religion” and “bigotry”.

On 18 March 2003, ruling on the case referred back to it, the TGI decided not to follow the reasoning of the 4th Civil Chamber and instead to maintain its previous judgment.

In the face of such resistance from the IRC, the case was referred ex officio to the Assembly of Civil Chambers of the Court of Cassation. By judgment of 7 December 2005, that Assembly upheld the finding of the first-instance court by thirty-five votes to eleven.

In their reasoning, the judges of the superior court held that the impugned images had not concerned details of the applicant’s private life, but had been part of a documentary on a topical issue of interest to the general public. They considered that there had been a major public interest in broadcasting the documentary at issue and that the documentary-makers had struck a fair balance between the merits and the formal aspects of the subject.

According to the case file that judgment was served on the applicant on 28 February 2006.

The applicant submitted that the owner of the apartment which he had rented had ended his lease following the transmission of the documentary for security reasons.

He added that he had been expelled to Bulgaria.