Dmitry Dedov;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant, Mr Alen Kovačević, is a Croatian national, who was born in 1968 and lives in Zagreb. He was represented before the Court by Mr I. Žurić, a lawyer practising in Zagreb.

The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

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

On 1 April 2008 the applicant was employed as a salesman (manager for key buyers) in company I. (hereinafter: the “company”) on an indefinite contract. The contract of employment conditioned his confirmation in the post by a successful three-month probationary period.

By the company’s decision of 15 May 2008 the applicant’s employment was terminated on the grounds that he had failed to satisfy the requirements of the post. He was given seven days’ notice.

The applicant objected to the decision terminating his employment arguing, inter alia, that it was incorrect that he had failed to satisfy the requirements of the post and that the real reason for the cancellation of the employment contract had been the overall financial austerity within the company.

The company maintained its position reiterating the reasons for its decision to terminate the applicant’s employment.

On 26 June 2008 the applicant lodged a civil action in the Zagreb Municipal Civil Court (Općinski građanski sud u Zagrebu) challenging the company’s decision. He argued that he had duly complied with all relevant requirements of the post and that the real reason for the cancellation of his employment contract had been the overall financial austerity within the company. Accordingly, he contended that since the reason for the cancellation of his employment contract had not been the one cited by the company, namely his inadequate professional performance, but the economic reasons related to the company’s business performance, the termination of his employment had been unlawful. The applicant requested that the relevant documents concerning his employment contract be admitted into evidence and that two witnesses, H.B. and I.U., be questioned in court.

During the proceedings the Zagreb Municipal Civil Court questioned several witnesses, including H.B. and I.U., and examined the relevant documents submitted by the parties. Throughout the proceedings the applicant was represented by a lawyer who actively participated in the questioning of witnesses and examination of evidence at the trial.

On 6 November 2009 the Zagreb Municipal Civil Court dismissed the applicant’s civil action. It set out the scope of the case before it in the following manner:

“The cancellation of an employment contract conditioned by a probationary period should be assessed under the legal provisions concerning regular or extraordinary [dismissal], that is to say, in the concrete case, under section 106 § 1(2) of the Labour Act. This provision provides that an employer can cancel the employment contract in case of a justified reason. Under section 112 § 1 of the Labour Act the burden of proof of the existence of a justified reason is on the employer.

In these circumstances the defendant is required, under section 112 in conjunction with section 106 §(2) of the Labour Act, to prove the existence of the justified reason for a dismissal related to the [worker’s] personal circumstances, that is to say [to prove] that the plaintiff failed to satisfy the requirements of the post of a manager for key buyers. The objection of the plaintiff that his dismissal was based on some other reasons, namely economic, is irrelevant since the plaintiff is not in a position to demonstrate the existence of reasons which were not cited as the reasons for dismissal. This court therefore dismissed the plaintiff’s request for obtaining of the information from the [Croatian Social Insurance Fund] about the number of workers in the [company] in the period between April and July 2008, as well as the information from the [competent tax authority] concerning the financial reports about the defendant’s business performance in 2007 and 2008, as well as the information about the workers who were dismissed [from the company] in that period. This is because this court finds such information irrelevant given that the grounds for dismissal were not the economic reasons. It is not for the plaintiff to demonstrate [the existence of these reasons] but the burden of proof is on the defendant who is required to show the existence of the reasons cited in its decision on dismissal as that is the subject matter of this dispute.”

The Zagreb Municipal Civil Court further found that it followed from the statements of several witnesses and the relevant evidence adduced during the proceedings that the applicant had failed to meet the requirements of the post and that therefore his dismissal by the company had been justified and lawful. The Zagreb Municipal Civil Court in particular stressed:

“In the case at issue the dismissal was based on the grounds that “the worker failed to meet the requirements of the post”; that is therefore a dismissal related to the worker’s personal circumstances. ...

The court’s assessment whether the justified reasons for such a dismissal existed is based on the assumption that the communication skills, teamwork and personal initiative are the relevant characteristics and skills for the position of a manager for key buyers, and the plaintiff failed to demonstrate those characteristics and skills. As already stated above, the purpose of the probationary period is to allow the employer to verify the working skills of the worker, and the worker thereby assumes a certain risk which he or she must be aware of when concluding such a contract of employment. It should be also noted that the employer independently decides which characteristics and skills of a worker are relevant for a particular post, that is to say which are the characteristics and skills that [the employer] requires, given that [the employer] is independent in organising and managing its business. In these circumstances, and in view of the evidence adduced during the proceedings, this court finds that the plaintiff was given an opportunity to demonstrate his skills, given that he was invited to the meetings, he had free access to everything and everybody in the company and essentially free space to demonstrate his skills. However, he failed to show that he possessed the required characteristics and skills, which this court found established from the cited witness statements.”

The applicant appealed to the Zagreb County Court (Županijski sud u Zagrebu) arguing, inter alia, that, given the scope of the case set out by the Zagreb Municipal Civil Court, he had not been given an opportunity to challenge the real reasons for his dismissal which had been, in his view, related to the company’s business performance.

On 13 April 2010 the Zagreb County Court dismissed the applicant’s appeal as ill-founded. With regard to the applicant’s specific arguments, and in view of the evidence adduced during the proceedings before the first-instance court, the Zagreb County Court noted:

“In view of these findings, the first-instance court correctly examined the lawfulness of the impugned decision [on dismissal] under section 106 § 1(2) of the Labour Act. In such a case, under section 112 of the same Act, the burden of proof for the justification of the decision [on dismissal] is on the defendant. The plaintiff argued that the reasons for the dismissal were false and fabricated and that the real reasons for the termination of his employment contract had been of the economic nature, whereas he had professionally, diligently and correctly performed the assignments of his post.

Given the [relevant] factual findings, it undoubtedly follows that the reasons for the impugned dismissal are truthful and justified and that the objection of the plaintiff that these reasons are not real is unsupported by evidence and unfounded.”

The applicant further lodged an appeal on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske) reiterating his previous arguments that he had not been able to demonstrate the real reasons for his dismissal.

On 18 September 2012 the Supreme Court dismissed the applicant’s appeal on points of law as ill-founded, upholding the decisions of the lower courts.

The applicant then lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) reiterating his arguments adduced before the lower courts.

On 28 February 2013 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded. The decision of the Constitutional Court was served on the applicant’s representative on 14 March 2013.

The relevant provision of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum), 76/2010, 85/2010 and 05/2014) reads:

“In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”

At the material time the relevant part of the Labour Act (Zakon o radu, Official Gazette no. 137/2004 – consolidated text; providing for an amended enumeration of sections under the original text of the Labour Act, Official Gazette no. 38/1995, which are noted below in the brackets) provided:

“(1) At the moment of the conclusion of an employment contract a probationary period of work may be stipulated.

(2) The probationary period of work under paragraph 1 of this section shall not be longer than six months.

(3) If the probationary period of work has been stipulated, the notice period is at least seven days.”

“The employer and the worker may cancel the employment contract.”

“(1) The employer may cancel the employment contract, observing the prescribed or stipulated notice period (regular cancellation of an employment contract) if he or she has justified reason in the case:

- there is no longer need for a particular work due to economic, technical or organisational reasons (professionally conditioned dismissal);

- if the worker is unable to duly perform the assignments of his or her post due to certain permanent characteristics or skills (personally conditioned dismissal);

- if the worker breaches his or her work assignments (dismissal conditioned by a wrongful conduct of the worker).

“(1) A dismissal must be in a written form.

(2) The employer must provide reasons for the dismissal in a written form.

(3) The [decision on] dismissal must be served on the dismissed person.

(4) The notice period starts running from the moment of the service of the [decision on] dismissal.

“(1) If the employer cancels the employment contract, and this Act requires the existence of a justified reason, he or she must prove the existence of the justified reason for dismissal.

The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette no. 148/2011 – consolidated text) provides:

“(1) In the proceedings concerning the employment disputes, in particular with regard to the scheduling of hearings, the court shall always bear in mind the necessity of expeditious resolution of the employment disputes.

In the judgment no. Revr-190/07-2 of 18 April 2007, concerning extraordinary cancellation of an employment contract, with regard to the scope of the case in the employment disputes the Supreme Court noted:

“Under section 119 (section 112 [in the enumeration of the original text]) of the Labour Act the burden of proof concerning the existence of the justified reason for dismissal is on the employer. The court determines the operative facts of the case within the scope of the reasons cited for the dismissal.”

In the judgment no. Revr-835/10-2 of 9 June 2010, concerning the cancellation of an employment contract during the probationary period, the Supreme Court held the following:

“Under section 106 § 1 (section 113 § 1 of the consolidated text of the Labour Act) the employer may cancel the employment contract observing the prescribed or stipulated notice period (regular cancellation of an employment contract) if he or she has justified reason for that.

Accordingly, by relying on the cited provision, and given that the plaintiff and the defendant had concluded an employment contract under the probationary period, the plaintiff was allowed to cancel the plaintiff’s employment contract if it had justified reason for the dismissal.

This court accepts the conclusion of the lower courts according to which the defendant, upon whom the burden of proof rested under section 112 of the Labour Act, that is to say section 119 § 1 of the consolidated text of the Labour Act, proved during the proceedings that it had had a justified reason for the dismissal (section 106 § 1 of the Labour Act) given that the plaintiff had failed to meet the requirements of the post during her probationary period.”


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

Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in 1953, in Slovenia, and lives in Braga, Portugal.

On 22 November 2006 the applicant brought a liability action (ação de responsabilidade civil) in the Braga Court against F., a lawyer who had acted as her legal representative in previous proceedings, claiming damages for professional negligence.

On 12 December 2006 F. was notified of the action. On 25 January 2007 he lodged his submissions in reply (contestação) and requested the intervention of his insurance company to which he had transferred his responsibility for the acts committed by him in his capacity as lawyer.

On 8 March 2007 the applicant lodged new submissions in reply (réplica).

By a Braga Court’s decision of 11 July 2007 the intervention of the insurance company in the proceedings was accepted. The company was summoned on an unknown date. On 14 September 2007 it lodged its submissions, to which the applicant replied on 11 October 2007.

Between January and April 2008 the parties disputed the applicant’s legal capacity to be a party to the proceedings (capacidade judiciária).

On 28 April 2008 the judge gave directions (despacho saneador) absolving F. of the proceedings (absolvição do réu da instância) on the grounds of the applicant’s lack of legal capacity.

On an unknown date the applicant appealed against that decision to the Guimarães Court of Appeal (Tribunal da Relação). By a decision of 4 December 2008 the Court of Appeal considered that the applicant had legal capacity and ordered the re-analysis of the case at first instance. In February 2009, the proceedings were allocated to the Braga Court.

On 29 April 2009 the judge gave directions setting out the matters that had already been established and those that remained outstanding.

Between 28 May and 6 November 2009 the parties lodged, in total, three requests to which the judge promptly replied in less than one month.

On an unknown date the case was set down for hearing on 10 March 2010. The hearing was later adjourned to 15 June 2010. A second hearing took place on 7 October 2010.

On 29 October 2010 the Braga Court partially found in favour of the applicant.

The parties appealed against the decision to the Guimarães Court of Appeal, which dismissed the appeals on 20 October 2011.

The parties challenged the Court of Appeal’s decision before the Supreme Court.

On 29 May 2012 the Supreme Court dismissed the appeals.


No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković

The first applicant was born in 1983 and lives in Ludbreg. The second applicant was born in 1959 and lives in Slunj.

During 1991 and 1992 Serbian paramilitary forces gained control of about a third of the territory of Croatia and proclaimed the “Serbian Autonomous Region of Krajina” (Srpska autonomna oblast Krajina, hereinafter “Krajina”). At the beginning of August 1995 the Croatian authorities announced their intention to take military action with the aim of regaining control over Krajina. The operation was codenamed “Storm” (Oluja) and took place from 4 to 7 August 1995. Before the military action, the vast majority of the population of Krajina fled Croatia. Most of them went to Bosnia and Herzegovina, and also to Serbia. Some returned to Croatia after the war. The number of people who fled is estimated at between 100,000 and 150,000.

On 5 November 1997 Croatia ratified the Convention.

On 8 August 1995 the applicants’ close relatives, G.O. and M.V., were killed in a house in Veljun, a town on the territory of Krajina. The police were alerted to the killings on the same day. On 11 August 1995 the bodies were buried in a cemetery in Slunj.

On 25 January 2002 the police interviewed M.M., who said that on 8 August 1995 he had been wounded by the Croatian army in Veljun. That day he had seen G.O. and M.V. alive but did not know what had happened to them after that because he had been taken to a hospital by a member of the Croatian army.

On 20 February 2002 the police interviewed D.V. and J.V. D.V. said that on 6 August 1995 she had moved to a house in Veljun, together with the first applicant, G.O. and M.V. On 7 August 1995 the Croatian army had entered Veljun. When G.O. and M.V. had been killed she had not been in the house and had not seen who had killed them. J.V. said that he had lived in Veljun during the war. On 7 August 1995 the Croatian army had entered Veljun. On 9 August 1995 he had heard that G.O. and M.V. had been killed the day before but had not seen who had done it.

On 25 February 2002 the police interviewed the second applicant. He said that at the material time he had been serving as a Croatian policeman in Karlovac. He had learned about the killing of his wife G.O. and her mother M.V. on 8 August 1995 when his son, who had lived with his mother and grandmother, had been brought to him. The son said that on the morning of 8 August 1995 some members of the Croatian army had come to their house and asked for the keys of a Golf vehicle parked in the courtyard but that his grandmother had shouted at them. The second applicant assumed that that had angered the soldiers who had then killed his wife and her mother.

On 30 March 2006 the Karlovac State Attorney’s Office asked the Slunj police whether the Veljun area had been occupied on 7 August 1995; whether the perpetrator of the killing of G.O. had been identified; and whether G.O. had been a member of the paramilitary forces of Krajina or of the Croatian army. On 6 July 2006 the Karlovac police department replied that Veljun had not been occupied on 7 August 1995 because Serbian paramilitary forces had left the area the previous day as the Croatian forces had advanced from the direction of Slunj. However, owing to the disorganised nature of the withdrawal of the Serbian paramilitary forces, there had still been some armed members of the “Serbian army” in the area. On 7 August 1995 the Croatian forces had started to enter the area and therefore it could be said that from a military point of view that area had been in a war zone. There had been no information about the people who had killed G.O. and she had not been registered as a member of any army.

On 25 October 2006 the police interviewed the first applicant, who said that he had lived with his mother and grandmother in Slunj and that his father had been a Croatian policeman. When the war had escalated in 1991 his mother had stayed in Slunj, in occupied territory, since her mother was a disabled person who could not move at all. Some time at the beginning of Operation Storm his uncle had taken them all to a relative’s house in Veljun. On 5 or 6 August 1995 the Croatian army had entered Veljun. They had instructed them to put a white flag on their house to indicate that there were civilians living there and his mother had done so. The following day he had spent some time with Croatian soldiers, about 1,500 metres from the house where he had been staying with his family. Around noon he had heard some gunshots from the direction of the house but had not paid much attention to them. About half an hour later he had returned home and had found his mother and grandmother shot dead in the house. He had informed some of the Croatian soldiers about it. After that they had taken him to his father in Slunj. He could not remember whether there had been any dispute between his mother and grandmother and Croatian soldiers about the Golf parked in their courtyard, which had belonged to his uncle.

On 17 January 2007 the police interviewed I.B., a policeman who had carried out an inspection of the crime scene. He described how he had found the bodies of G.O. and M.V. On the same day another police officer, Z.G., made a note stating that on 8 January 2007 he had inspected the premises of the elementary school in Veljun, where he had found the following inscriptions on the walls: “Tigers, I.V. 4 August 1995, K.T., 40th regiment GSOSRH” and “Tigers TNT No 31 – Moles”.

On 1 February 2007 the Karlovac police lodged a criminal complaint with the Karlovac County State Attorney’s Office against unknown perpetrators in connection with the killing of G.O. and M.V.

On 1 August 2007 the police interviewed Mi.V. who said that she had not been in Veljun during Operation Storm and had no direct knowledge about the killing of G.O. and M.V.

On 22 October 2012 a Deputy State Attorney of the Karlovac State Attorney’s Office interviewed the applicants, who repeated their previous statements. The first applicant added that in his opinion the Croatian soldiers who had killed his mother and grandmother had not been those who had been the first to enter Veljun because that group had treated civilians correctly.

On 9 November 2012 the Karlovac police asked the Ministry of Defence about the Croatian army units which had been in Veljun between 7 and 12 August 1995, the identity of their commanders and all their members. That request was repeated on 11 December 2012.

On 9 January 2013 the first applicant asked the President’s Office, the State Attorney, the Karlovac County State Attorney, the Ministry of Justice and the State Attorney’s Department of War Crimes to identify the perpetrators of the killing of his mother and grandmother.

On 21 February 2013 the Karlovac police drew up a note on the investigation. It stated that documents about the Croatian army units present in Veljun in the material period (those documents have not been submitted to the Court by the Government) showed that on 7 August 1995 at 10.30 a.m. Veljun had been liberated by members of the 143rd Domobran Regiment of Ogulin (143. domobranska pukovnija Ogulin), under the command of Captain (satnik) N.N. On 7 August 1995 at about noon the armoured battalion of the “Tigers” First Guards Brigade (oklopna bojna 1. gardijske brigade “Tigrovi”) under the command of Captain Lj.U., as well as the Second Infantry Battalion of the First Guards Brigade (2. pješačka bojna 1. gardijske brigade) under the command of Major A.K., had arrived.

On 8 August 1995 the following Croatian army units had been in Veljun: the Second Infantry Battalion of the 143rd Domobran Regiment from Ogulin under the command of Captain M.K. and the IS-2 (izvidnička skupina IS-2) patrol group comprised of the soldiers M.I., M.B., T.N. and Z.Č., under the command of Lance Corporal (razvodnik) P.K.

Between 27 February and 28 March 2013 the police interviewed several Croatian soldiers who belonged to the units of the Croatian army that had been in Veljun on 7 and 8 August 1995.

N.N., the commander of the Second Battalion of the 143rd Domobran Regiment, said that they had entered Veljun on the morning of 8 August 1995. At the same time the First Guards Brigade under the command of I.K. had been coming to Veljun from the direction of Slunj. He had no knowledge of the killing of two women in Veljun. As regards the officers of the Second Battalion, Z.K. had been in command of the First Company (prva satnija), M.B. of the Second Company (druga satnija) and I.Z. (who had died later on) of the Third Company (treća satnija). The brigade also had a mortar unit (mitnica minobacača) under the command of N.V., a communications squad (desetina za veze) led by D.L., a medical platoon (sanitrani vod) headed by S.P. and an anti-tank platoon (protuoklopni vod) under the command of D.S.

B.S., the second-in-command of the First Battalion of the 143rd Domobran Regiment, confirmed that M.K. had been the commander. The regiment had been composed of three companies. The First and Second Companies had been under the command of I.F. and I.P. respectively, but he could not remember the commander of the Third Company. He said that owing to the passage of time he could not remember the places they had been during Operation Storm. He had no knowledge about the killing of civilians in Veljun.

Officer J.C. of the Slunj police said that he had heard about the killing of his colleague’s wife and her mother, but had no relevant information.

M.K., the commander of the First Battalion of the 143rd Domobran Regiment of Ogulin, said that that formation had comprised three battalions. His First Battalion and the Second Battalion, which had been under the command of N.N, had had about 970 soldiers. The Third Battalion had been under the command of T.L. He then described the units of the First Battalion and named the commanders he could remember. He had no knowledge about the killing of civilians in Veljun.

A.B., the commander of a platoon of the 134th Domobran Regiment, said that he and his men had spent about an hour in Veljun during Operation Storm but could not say on which day exactly. None of the soldiers in his platoon had searched for civilians in houses and he had no knowledge about the killing of G.O. and M.V.

S.P., the commander of the medical squad of the Second Battalion of the 143rd Domobran Regiment, said that his battalion had entered Veljun at about noon on 7 August 1995 and had stayed there for two days. There had been no military action and he had not given any medical assistance to anyone in Veljun. He knew nothing about the killing of two women there.

Officer I.Š. of the Slunj police said that during Operation Storm a Croatian soldier had approached him and told him that a child in Veljun needed transport. I.Š. had gone with his colleague M.V. to Veljun where they had found two dead bodies and a child in a house. They had taken the child to Slunj police station to join his father, Pave Obajdin. M.V. confirmed that statement.

S.V. said that he had been a policeman in Slunj during Operation Storm and had been the one who had found the bodies of G.O. and M.V.

Between 14 October 2014 and 21 October 2015 the police conducted further interviews with Croatian soldiers A.Ž., Z.P., B.S., B.G., V.J. and P.K., who all said they had no knowledge about the killing of G.O. and M.V. In the same period the police also interviewed the victims’ relatives G.V., D.M. and S.V., who had all heard about the killing of G.O. and M.V. but had no relevant information about possible perpetrators.


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;Non-pecuniary damage - award

Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

The applicant was born in 1961 and lives in Rīga Parish.

On 18 October 2001 the applicant, who was forty years old at the time, discovered that she was in the fifth or sixth week of pregnancy during a gynaecological examination at A. Hospital.

On Tuesday 15 January 2002, in her eighteenth week of pregnancy according to her medical notes (medical record no. 43), the applicant had an appointment with her gynaecologist, Dr L., at A. Hospital. The medical record notes that, during the appointment Dr L. issued a referral for the applicant to undergo an alpha-fetoprotein (“AFP”) test on the following Monday, 21 January 2002. The test checks the level of AFP in a pregnant woman’s blood as an indicator of potential foetal abnormalities. The applicant disputes the authenticity of medical record no. 43 and denies that any referral was made.

The applicant did not attend the appointment for the AFP test on 21 January 2002.

From February to June 2002 the applicant regularly attended appointments with Dr L. and her general practitioner.

On 5 June 2002 the applicant gave birth to a daughter with Down’s syndrome.

The applicant was discharged from hospital on 18 June 2002. She claims that a few days later she went to A. Hospital to obtain a copy of her medical records. She was given her medical records and made a copy at the hospital, before returning them. According to the applicant, her copy of medical record no. 43 contained no reference to the 15 January 2002 referral for an AFP test.

On 1 July 2002 the applicant complained to the Inspectorate for Quality Control of Medical Treatment (“the MADEKKI”) about the quality of the antenatal medical care provided by Dr L. In particular, she complained that Dr L. had failed to refer her for the AFP test, which would have indicated the risk of foetal abnormality.

On 2 July 2002 the MADEKKI requested A. Hospital to forward the applicant’s medical records.

On 15 July 2002 the MADEKKI interviewed Dr L. She explained that although the applicant had been referred for the AFP test on 15 January 2002, she had failed to attend because she had been hospitalised. Following her release from hospital there had been no point in carrying out an AFP test since she was by then in her twenty-first week of pregnancy. Dr L. referred to the fact that the applicant had been referred for a genetic consultation in her twenty-fifth week of pregnancy. Dr L. also explained that after the baby had been delivered, she had discovered that the applicant’s eldest son had a mental illness, a fact which the applicant had concealed during her pregnancy. The applicant had further concealed the excessive alcohol consumption of her partner and father of the child.

On 25 July 2002, having examined the applicant’s medical records and interviewed relevant doctors, the MADEKKI issued its opinion. It found that although the applicant had been referred for the AFP test, Dr L. had failed to ensure that the test was carried out. This failure was, it said, contrary to Ordinance No. 324 concerning antenatal and prenatal care (see paragraph 48 below). Dr L. was given an administrative fine of twenty-five Latvian lati.

On 29 July 2002 the MADEKKI informed the applicant of its finding that she had received antenatal medical care in accordance with national law, save that Dr L. had failed to ensure that she had undergone the AFP test. It noted that AFP screening results could neither confirm nor exclude a congenital foetus abnormality but would rather serve as an indicator for further examinations. It also explained that the applicant bore some responsibility herself as she had failed to inform Dr L. of her eldest son’s illness. Had Dr L. been aware of the illness, she would have arranged for a medical genetic consultation in the first months of the applicant’s pregnancy, thus ensuring a timely diagnosis. Finally, the MADEKKI informed the applicant of her right to apply to the law enforcement authorities within one month of its decision if she was not satisfied with it.

On 20 February 2004 the applicant officially requested access to her medical records. An approved copy was issued to her on 23 February 2004. She claims that she subsequently formed the view that the 15 January 2002 entry in medical record no. 43 concerning her referral for an AFP test had been added at a later date.

On 20 October 2004 the applicant asked the District Prosecutor’s Office to investigate whether the discrepancies in the two copies of medical record no. 43 amounted to falsification of documents. She also alleged negligence on the part of Dr L. In support of her allegation, she submitted the unapproved copy of her medical records which she claims to have made in June 2002 (see paragraph 12 above).

On 16 November 2004 the police interviewed Dr L. She explained that in the seventeenth week of pregnancy she had referred the applicant for the AFP test but the test had not been carried out, for unknown reasons, because the applicant had failed to attend the appointment. Dr L. referred to the applicant’s right to refuse the test. She added that the applicant had concealed the genetic illness of her eldest son. Had his situation been disclosed, Dr L. said that she would have arranged an immediate consultation with diagnosis by the twelfth week of pregnancy. As regards medical record no. 43, Dr L. explained that the entries in the record were made over an extended period of time as examination results were received and further appointments and treatment instructed. She also explained that medical record no. 43 had disappeared in January 2002 and was only recovered at a later date, when it was placed in the reception at A. Hospital outside its working hours. She told the police that it was not in the interests of the medical staff to lose or conceal the record, since it meant that all the medical examinations would have to be carried out again.

On 22 November 2004 the police refused to institute criminal proceedings for falsification of records or negligence. The investigators were satisfied that the applicant had been referred for the test but that she had not turned up for the appointment. The investigators also found that there were no technical means available to establish precisely the time when the contested data concerning the referral had been entered in the applicant’s medical file.

On 9 December 2004 the applicant appealed the decision. She sought the institution of criminal proceedings for falsification of documents by a group of persons. On 28 December 2004 the District Prosecutor’s Office quashed the decision of 22 November 2004 and ordered further investigation into the disappearance of the applicant’s medical record and the making of the contested entry.

In February 2005 further police investigations were carried out. The State Forensic Expertise Bureau confirmed that it did not have the ability to establish, by forensic methods, the date on which the contested entry was made. Dr L. was questioned again and confirmed the disappearance of the medical record in 2002. The applicant’s general practitioner and nurse were interviewed. The nurse told the police that in 2002 the applicant had frequently visited her general practitioner and brought medical record no. 43 with her, in order to record future appointments. The general practitioner had updated the record during her visits and returned it to her. Staff of A. Hospital were also interviewed and confirmed the temporary disappearance of the applicant’s medical record.

On 4 April 2005 the police refused to institute criminal proceedings for falsification of documents by a group of persons.

On 25 May 2004 the applicant appealed the decision. On 18 July 2005 the District Prosecutor’s Office quashed the decision of 4 April 2005 and again remitted the complaint for further investigation. It noted that the applicant had submitted a non-approved copy of medical record no. 43 and referred to the need to ascertain whether there were witnesses who could testify that the contested entry was missing in June 2002 when the copy was allegedly made.

On 30 September 2005, after further interviews with Dr L. and the applicant’s general practitioner, the police again refused to institute criminal proceedings. They concluded that it was not possible to determine whether the information concerning the disputed referral for the AFP test had been missing from the applicant’s medical records in June 2002.

The refusal to institute proceedings was upheld by the District Prosecutor’s Office on 19 December 2005. However, on 17 May 2006, following an appeal by the applicant to the Regional Prosecutor’s Office, the latter revoked the decision of 30 September 2005 and instituted criminal proceedings.

On 8 June 2006 the police requested forensic tests on medical record no. 43. An expert report dated 7 July 2006 concluded that the medical records were not falsified but that they had been supplemented with new information over an extended period of time.

On 12 September 2006 the applicant was informed that the criminal proceedings had been terminated owing to the expiry of the statutory limitation period.

Meanwhile, on 16 August 2005 the applicant lodged a claim for damages against A. Hospital. She contended that Dr L. had been negligent as she had not identified the applicant as belonging to a high-risk group and had not referred her for the AFP test. The applicant also alleged that Dr L. had subsequently modified the medical records in order to conceal the failure. She further claimed that Dr L. had not put in place a medical care plan in respect of her pregnancy and was therefore not in a position to provide the applicant with the necessary information on her treatment, in violation of sections 20 and 41 of the Medical Treatment Law (see paragraphs 44 and 47 below). As a result of these failings, the applicant had been prevented from availing herself of her right to agree to or decline the AFP test. She claimed that had she known that the child had a congenital disease, she would have chosen to undergo an abortion on medical grounds. She claimed compensation for pecuniary and non-pecuniary damage, including compensation for lost wages and a lump-sum maintenance award for her daughter.

A hearing took place on 20 December 2005. The applicant’s legal representative asked the court to hear the applicant as a witness in order for her to give evidence on the facts of the case. The court rejected the application without providing reasons. However, it granted the defendant’s application for Dr L. to appear as a witness and give oral evidence.

On 2 January 2006 the Riga Regional Court (Rīgas Apgabaltiesa) dismissed the applicant’s civil claim. The court held that, as it could not be proved that Dr L. had falsified the applicant’s medical records, the applicant had failed to turn up for the AFP test. It also noted that she had failed to inform Dr L. of her eldest child’s condition. It found that the applicant was not in a high-risk category merely on account of her age, and that the applicant was to blame for the fact that the AFP test was not carried out. It concluded that there was no causal link between the actions of Dr L. and the birth of the applicant’s child. Even though Dr L. had been given an administrative fine for her failure to ensure that the applicant had the AFP test, this was insufficient to prove that Dr L. had been at fault.

The applicant appealed. She argued that Dr. L had been obliged to take all medical steps to establish whether her unborn child was healthy. Since she had not done everything required of her in order to discover the child’s genetic abnormality in a timely manner, it had not been possible for the applicant to prevent the birth of a child with a congenital disorder. The applicant argued that the court had erred in finding that she did not belong to a risk group due to her age, since Ordinance No. 324 indicated that pregnant women above the age of 35 should have the AFP test. She also contended that the court had erred in concluding that she had been referred for the test. She maintained that the court’s conclusion that she herself was to blame for the fact the test was not carried out was unfounded since the case file contained no evidence in that regard. Furthermore, she claimed that the court had given no reasons for relying on the medical records used by the MADEKKI instead of the earlier copy of the medical record that she had submitted. In any event, the applicant argued that even if she had been referred for the test, the referral was already too late as on the day allegedly fixed for the test she was already in her nineteenth or twentieth week of pregnancy. She further contended that had she refused to take the test, the doctor would have made a corresponding note in the medical record. As regards her eldest son, the applicant pointed out that Dr L. had never asked her about the health of her other children and explained that her son had developed schizophrenia at the age of twelve. She insisted that there was in her view a causal link between the Dr L.’s failures and the birth of her child and that damages ought to be paid.

On 4 April 2007 a hearing took place on 4 April 2007 before the Civil Chamber of the Supreme Court (Augstākās tiesas Civillietu tiesu palāta). The applicant’s legal representatives were unable to attend but the applicant asked the court to proceed in their absence. The applicant made submissions on her own behalf, and answered questions posed by the court. The court heard evidence from a representative of A. Hospital, who explained the system of record-keeping at A. Hospital and the loss of the applicant’s medical record, and from Dr L. Dr L. testified that only an amniocentesis allowed an effective diagnosis of Down’s syndrome. Although the risk of congenital abnormalities increased with age, the fact that the applicant was forty years old was not as such an indicator that she ought to have an amniocentesis, which carried with it the risk of miscarriage. There were no objective medical indications to justify a referral for that procedure in the applicant’s case. Dr L. referred to the applicant’s failure to disclose the condition of her eldest son and to disclose her husband’s alcoholism.

On 17 April 2007 the Civil Chamber rejected the applicant’s appeal. It agreed with the first-instance court’s conclusion that applicant’s allegations concerning the alteration of her medical record had not been proven, noting that the copy of the medical record submitted by her was not certified. The court also noted the MADEKKI’s conclusion concerning the applicant’s failure to inform Dr L. of her eldest son’s illness, observing that the “mother’s passport”, which the applicant had at all times, drew attention to the importance of informing the doctor of any diseases suffered by existing children. It referred to Dr L.’s evidence that, had she known of the illness, she would have ordered additional tests and examinations. The court also pointed out that the Medical Treatment Law set out a duty on patients to comply with doctors’ instructions; the applicant was accordingly under a duty to undergo the AFP test which she had been referred. The fact that there was no record in writing of her refusal to take the test was not proof of the fact that she had never been referred for it.

Finally, the Court held that Dr L. could not be held responsible for the child’s genetic condition since no causal link could be established between the actions of Dr L. and the child’s condition. It also noted that:

“The result of the AFP test ... could neither confirm nor exclude genetic abnormality of a foetus, but would serve as an indication for further examination.

Therefore the [applicant’s] allegations that the results of the AFP test would have provided her [with] an opportunity to choose whether to continue with or terminate the pregnancy could not in itself serve as a basis to uphold the claim.”

The only shortcoming in the applicant’s medical care had been the failure to ensure that the AFP test was actually carried out. The court noted that the MADEKKI had already fined Dr L. for this omission.

As regards the alleged falsification of medical record no. 43, it found that, since the applicant’s medical record was missing at the time of her January 2002 appointment with Dr L., the latter had made her notes on a separate sheet of paper which had been added to the medical record once it had been recovered. The court noted the finding of the MADEKKI that the applicant had been referred for the AFP test and further recorded that the applicant did not dispute that she had attended an appointment with Dr L. on 15 January 2002. It referred to the decision of the police of 30 September 2005 not to institute criminal proceedings because there was no evidence that the medical record had been falsified. It therefore found that the applicant’s account of the reason for the differences in the two copies of her medical records had not been proven to be true.

On 7 May 2007 the applicant obtained a copy of the expert report of 7 July 2006 (see paragraph 28 above).

The applicant subsequently filed an appeal on points of law. She argued that the Civil Chamber had not assessed correctly whether the failure of Dr L. to ensure that the AFP test was carried out had infringed the applicant’s right to find out about any foetal abnormality. Even though the court had concluded that she had been referred for the AFP test, the judgment did not address whether the referral complied with section 41 of the Medical Treatment Law, i.e. whether she had received all the necessary information about the test (see paragraph 47 below). Further, the applicant submitted that the court should have applied section 23 of the Medical Treatment Law and insisted that any refusal of the treatment should have been in writing (see paragraph 46 below). She also submitted that the court had wrongly interpreted section 25 of the Medical Treatment Law (see paragraph 46 below) by stating that she had been obliged to carry out the AFP, as it had not taken into account the need for free and informed consent before any medical intervention. Finally, she argued that in assessing whether Dr L.’s actions had been wrongful, such as to give rise to damages, the court should have assessed whether the doctor had complied with the applicable rules, including the Ordinance No. 324. The court’s conclusions as to the lack of a causal link were not compatible with the Ordinance, since had Dr L. complied with her legal obligations, the applicant could have found out that the foetus had a genetic disease and could have availed herself of her right to have an abortion on medical grounds, thereby preventing the birth of the child. Accordingly, she maintained, the necessary causal link existed between Dr L.’s wrongful actions and the birth of the child with Down’s syndrome.

The applicant also contended that there had been a number of procedural failings before the appellate court. She alleged in particular that it had not assessed her claim for maintenance; and that it had breached the rules in relation to assessment of evidence as it had uncritically accepted the testimony given by the doctor, had attached greater weight to the copy of the medical records submitted by the hospital than to the copy submitted by her, and had relied on the conclusions of the MADEKKI without itself verifying the facts.

On 26 September 2007 the Senate of the Supreme Court dismissed the applicant’s appeal. The full text of the judgment was made available on 22 October 2007. The Senate concluded that, contrary to the applicant’s allegations, the appellate court had come to its conclusions about the referral for the test and the applicant’s failure to attend the appointment with due regard for a patient’s right to receive information. Section 23 of the Medical Treatment Law was not applicable to this case as the applicant had simply not shown up for the test. The Senate further noted that applicant’s arguments were based on the premise that she had not been referred to the test whereas the appellate court had found that a referral had been made. Her complaints of procedural flaws were rejected as unfounded

Meanwhile, on 1 August 2007 the applicant asked the Senate of the Supreme Court to reopen the civil proceedings on the basis of newly discovered evidence, namely the expert report of 7 July 2006 which she had recently seen for the first time (see paragraphs 28 and 39 above). On 5 December 2007 the Senate dismissed the request.


MUJKANOVIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicants, Ms Munira Mujkanović, Ms Asima Memić, Mr Vehidin Elezović, Mr Muharem Elezović, Ms Naila Bajrić and Ms Sabiha Huskanović are citizens of Bosnia and Herzegovina who were born in 1964, 1938, 1974, 1943, 1945 and 1965, respectively. They live in different towns near the city of Prijedor. The applicants were represented by TRIAL (Track Impunity Always), a non-profit organisation based in Geneva. Four of them had been granted legal aid.

The Government of Bosnia and Herzegovina (“the Government”) were represented by their Deputy Agent, Ms Z. Ibrahimović.

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

After its declaration of independence on 6 March 1992, a brutal war started in Bosnia and Herzegovina. It would appear that more than 100,000 people lost their lives and more than 2,000,000 people were displaced in the course of the war. It is estimated that around 30,000 people went missing and that around one quarter of them is still missing. The conflict came to an end on 14 December 1995 when the General Framework Agreement for Peace in Bosnia and Herzegovina entered into force. In accordance with that Agreement, Bosnia and Herzegovina consists of two Entities, the Federation of Bosnia and Herzegovina and the Republika Srpska.

In response to atrocities then taking place in Bosnia and Herzegovina, on 25 May 1993 the United Nations Security Council passed Resolution 827 establishing the International Criminal Tribunal for the former Yugoslavia (“the ICTY”), headquartered in The Hague. More than 70 individuals have already been convicted and proceedings are ongoing for 20 accused. In the period from February 1996 until October 2004, local prosecutors in Bosnia and Herzegovina were required to submit case files to the ICTY for review; no person could be arrested on suspicion of war crimes unless the ICTY Office of the Prosecutor had received the case file beforehand and found it to contain credible charges (the “Rules of the Road” procedure). Moreover, the ICTY had primacy over national courts and could take over national investigations and proceedings at any stage in the interest of international justice. As part of the ICTY’s completion strategy, in early 2005 war crimes chambers were set up within the Court of Bosnia and Herzegovina (“the State Court”) with primacy over other courts in Bosnia and Herzegovina as regards war crimes (for information about that court and its jurisdiction over war crimes cases, see Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, §§ 34-40, ECHR 2013). More than 100 persons have been finally convicted by the State Court.

Furthermore, the International Commission on Missing Persons (“the ICMP”) was established at the initiative of United States President Clinton in 1996. It is currently headquartered in Sarajevo. Reportedly, the ICMP has so far identified by DNA more than 14,000 missing persons in Bosnia and Herzegovina, whereas local authorities have identified more than 8,000 missing persons by traditional methods. In 2005 the Government of Bosnia and Herzegovina and the ICMP established a Missing Persons Institute, also headquartered in Sarajevo (see paragraph 26 below). It became operational on 1 January 2008.

Before the 1992-95 war, the population of the municipality of Prijedor was ethnically mixed: according to a 1991 census, out of a total population of 112,000, 44% were Bosniacs, 42.5% Serbs, 5.5% Croats; 8% others. On 30 April 1992 the Serbian Democratic Party took control of the city of Prijedor pursuant to a secret plan made in advance (notably, the Instructions for Organisation and Activities of the Organs of the Serb People in Bosnia and Herzegovina in a State of Emergency, adopted by the Main Board of the Serbian Democratic Party on 19 December 1991). Shortly thereafter, ethnic cleansing began. By the end of 1992, there were practically no Bosniacs and Croats left in the municipality of Prijedor (about the situation in the Prijedor area at that time, see the ICTY judgment in the Stanišić and Župljanin case, IT-08-91-T, §§ 500-684, 27 March 2013, not yet final).

One of the many crimes committed in the context of ethnic cleansing of the Prijedor area was the taking of approximately 150-200 male detainees from Trnopolje camp to the location called Korićanske stijene and their killing by Prijedor policemen on 21 August 1992. The men were made to leave the buses and walk towards the gorge where they were told to kneel down. Then the shooting began. The bodies fell into the gorge or were pushed over the edge. Grenades were then thrown into the gorge to make sure no one survived. The incident lasted for approximately half an hour. Fifteen policemen were reported to be involved in the incident. Only twelve persons survived the massacre, mainly by hiding under the corpses of others (ibid., §§ 641-42; and the ICTY judgment in the Mrđa case, IT-02-59-S, § 10, 31 March 2004). Mr Fahrudin Mujkanović (the husband of Ms Munira Mujkanović), Mr Asmir Memić (the son of Ms Asima Memić), Mr Fahrudin Elezović (Mr Vehidin Elezović’s father), Messrs Edin Elezović and Emir Elezović (the sons of Mr Muharem Elezović), Messrs Zafir Bajrić and Šerif Bajrić (Ms Naila Bajrić’s son and husband), and Mr Zijad Huskanović (Ms Sabiha Huskanović’s husband) were killed in that incident (see the ICTY judgment in the Stanišić and Župljanin case, cited above, §§ 1949-50, 2033-34, 2036-37, 2137-38, 2278-79, 2290-92; and the State Court’s judgment in the Ivanković case, X-KR-08/549-1, p. 2, 2 July 2009).

On 24 July 2003 Mr Darko Mrđa pleaded guilty before the ICTY to having participated in the killing at Korićanske stijene. He was sentenced to 17 years’ imprisonment.

On 31 July 2003 the ICTY convicted Mr Milomir Stakić, the leading figure in the war-time municipality of Prijedor, for, among other crimes, the killing at Korićanske stijene and sentenced him to life imprisonment. On 22 March 2006 an Appeals Chamber upheld the convictions against Mr Stakić and rendered its judgment, sentencing him to 40 years’ imprisonment.

On 27 March 2013 a Trial Chamber of the ICTY convicted Mr Mićo Stanišić and Mr Stojan Župljanin, key figures in the war-time police of the Republika Srpska, of the participation in a joint criminal enterprise to remove Bosniacs and Croats from the territory of the Republika Srpska, a natural and foreseeable consequence of which was, among other crimes, the killing at Korićanske stijene (the third category of joint criminal enterprise –a definition of this form of liability is set out in the ICTY judgment in the Tadić case, IT-94-1-A, § 204, 15 July 1999). Each of them was sentenced to 22 years’ imprisonment. The case is currently pending before an Appeals Chamber of the ICTY.

A case against Mr Radovan Karadžić, the war-time President of the Republika Srpska, is also currently pending before the ICTY. He is charged with, among other crimes, the participation in a joint criminal enterprise to permanently remove Bosniacs and Croats from the Republika Srpska, a natural and foreseeable consequence of which was the killing at Korićanske stijene (the third category of joint criminal enterprise).

As indicated in paragraph 5 above, war crimes chambers were set up within the State Court in 2005. Shortly thereafter, the Prosecutor of Bosnia and Herzegovina (“the State Prosecutor”) opened an investigation into the killing at Korićanske stijene. In the next three years, more than 150 persons were questioned. This led to indictments against 13 persons (see paragraphs 14-15 below). Furthermore, international arrest warrants were issued against two persons who are still on the run, Messrs Draško Krndija and Željko Zec.

On 8 January 2009 the State Prosecutor issued an indictment against eight persons for having participated in the killing at Korićanske stijene as a crime against humanity (namely, Messrs Damir Ivanković, Gordan Đurić, Ljubiša Četić, Zoran Babić, Milorad Škrbić, Dušan Janković, Željko Stojnić and Milorad Radaković). It entered into force on 12 January 2009. At the arraignment of 13 February 2009, the accused pleaded not guilty. However, on 22 June 2009, 26 August 2009 and 9 March 2010 three of them, Messrs Ivanković, Đurić and Četić, changed their plea to guilty. They were then sentenced to 14, 8 and 13 years’ imprisonment, respectively.

On 10 July 2009 and 17 September 2009 the State Prosecutor issued indictments against five more individuals for the same crime (Saša Zečević, Radoslav Knežević, Marinko Ljepoja, Petar Čivčić and Branko Topola). They entered into force on 13 July and 18 September 2009, respectively. All the accused pleaded not guilty at their arraignment. The State Court decided to join the cases against those five individuals on 3 November 2009.

On 21 December 2010 a Trial Chamber of the State Court found four persons guilty of participation in the killing at Korićanske stijene as a crime against humanity (Messrs Zoran Babić, Milorad Škrbić, Dušan Janković and Željko Stojnić) and sentenced them, respectively, to 22, 22, 27 and 15 years’ imprisonment. On 25 October 2011 an Appeals Chamber of the State Court quashed that judgment and scheduled a fresh hearing. On 15 February 2013 it convicted those four people of the same offence and sentenced them to 22, 21, 21 and 15 years’ imprisonment, respectively. One accused in that case, Mr Milorad Radaković, was acquitted.

On 28 June 2012 a Trial Chamber of the State Court found three more persons guilty of that crime (Saša Zečević, Radoslav Knežević and Marinko Ljepoja) and sentenced each of them to 23 years’ imprisonment. The other two accused in that case, Petar Čivčić and Branko Topola, were acquitted. An Appeals Chamber of the State Court has recently upheld that judgment.

On different dates between 1998 and 2005, the applicants sought and obtained declarations of presumed death with respect to their missing relatives.

Four exhumations have so far been carried out at Korićanske stijene: May 2003, October 2003, July-August 2009 and April 2013. Ninety victims have been identified by DNA (see the State Court’s judgment in the Zečević and Others case, S1 1 K 003365 09 KrI, pp. 88-95, 28 June 2012), including Mr Asmir Memić on the basis of four bones on 23 June 2011 and Mr Zafir Bajrić on the basis of two bones the day later. On 24 June 2011 the ICMP confirmed through DNA tests also that some fragments of bones which had been exhumed at Korićanske stijene belonged to either Mr Edin Elezović or Mr Emir Elezović (since they were brothers and did not have children, the available mortal remains were insufficient for definite identification).

Around ten burnt bodies were also exhumed (ibid., p. 7). These are impossible to identify.

In 2006 all the applicants lodged constitutional appeals alleging that the authorities’ reaction to the disappearance of their relatives amounted to a breach of Articles 2, 3, 5, 8 and/or 13 of the Convention.

On 16 July 2007 the Constitutional Court decided to join 227 similar cases and rendered a group decision finding a breach of Articles 3 and 8 of the Convention. It ordered the authorities to release any and all information in their custody pertaining to the fate or whereabouts of the missing persons in issue and to ensure that the State agencies envisaged by the Missing Persons Act 2004 (the Missing Persons Institute, Central Records and the Missing Persons Fund) become operational within six months. No compensation was awarded.

Under its mandate to examine complaints about non-enforcement of its decisions, on 27 March 2009 the Constitutional Court concluded that the decision of 16 July 2007, mentioned above, was to be considered enforced notwithstanding the fact that some of the State agencies envisaged by the Missing Persons Act 2004 (precisely, the Central Records and the Missing Persons Fund) had not yet become operational. It held that no further action was required from the Constitutional Court as the failure to enforce a similar decision had already been reported to the State Prosecutor (non-enforcement of a final and enforceable decision of the Constitutional Court amounts to a criminal offence; for the relevant law in that regard, see Bobić v. Bosnia and Herzegovina, no. 26529/10, §§ 14-15, 3 May 2012).

On different dates in 2009 and 2010 all of the applicants requested damages from the Republika Srpska for the death of their relatives under the Republika Srpska’s general compensation scheme for war damage (for more information about that scheme, see Čolić and Others v. Bosnia and Herzegovina, nos. 1218/07 et al., § 10, 10 November 2009). Their requests were either rejected as out of time or are still pending. One of the applicants, Ms Asima Memić, has lodged an appeal with the Constitutional Court of Bosnia and Herzegovina in this connection which is still pending.

The Missing Persons Act 2004 entered into force on 17 November 2004 (Official Gazette of Bosnia and Herzegovina no. 50/04). In accordance with section 3 of the Act, families have the right to know the fate of missing persons (that is, their whereabouts if they are still alive, or the circumstances of death and their place of burial, if they are dead) and to obtain their mortal remains. Under section 4 of the Act, the relevant domestic authorities have the obligation to provide any and all such information in their keeping.

Section 7 of that Act provides for the setting up of a Missing Persons Institute. In 2005 the ICMP and the Government of Bosnia and Herzegovina founded the Institute, headquartered in Sarajevo, pursuant to that provision and the Agreement on Assuming the Role of Co-founders of the Missing Persons Institute of Bosnia and Herzegovina (Official Gazette of Bosnia and Herzegovina, International Treaty Series, no. 13/05). It became operational on 1 January 2008. One of the organs of that Institute is an Advisory Board, comprised of six representatives of families of missing persons (see Article 10 of the Agreement mentioned above).

In accordance with section 9 of the Act, the status of missing person comes to an end on the date of identification. Therefore, if a missing person is declared dead but the mortal remains have not been found and identified, the process of tracing continues.

Pursuant to section 11 of the Act, the families of missing persons are entitled to monthly financial support under some conditions, notably if they were supported by the missing family member until his or her disappearance and if they are still in need of support (in other words, if they are not in paid employment and do not receive welfare benefits beyond 25% of the average salary paid in Bosnia and Herzegovina). Section 15 of the Act provides for the setting up of a Missing Persons Fund for that purpose. However, as the Fund has not yet been established, no payment has been made so far.

Families of missing persons are also entitled to, inter alia, temporary administration of the property of missing persons, burial of mortal remains at public expense and priority in access to education and employment for the children of missing persons (section 18 of the Act).

Section 21 of the Act provides for the setting up of Central Records with the aim of verifying information about missing persons from different sources (government agencies, associations of families of missing persons, the ICMP and the International Committee of the Red Cross) and creating a single database. While Central Records were founded on 3 February 2011, it would appear that the verification process is still ongoing. Once that process is completed, all those recorded as missing will be declared dead (section 27 of the Act), but the tracing process will nevertheless continue (see paragraph 27 above).

Despite the fact that the verification process outlined in paragraph 30 above is pending, any person may request that a declaration of presumed death be issued with respect to a missing person (see the Non-Contentious Procedure Act 1998, Official Gazette of the Federation of Bosnia and Herzegovina, nos. 2/98, 39/04, 73/05; the Non-Contentious Procedure Act 2009, Official Gazette of the Republika Srpska, no. 36/09). Pursuant to an amendment to section 69 of the Social Care Act 1999 (Official Gazette of the Federation of Bosnia and Herzegovina no. 39/06), which entered into force in September 2006, relatives of missing persons were required to seek such declarations with respect to their missing relatives by September 2008 if they wished to maintain the social benefits provided by that Act. There is no such an obligation in the legislation of the Republika Srpska where most of the present applicants live (all but Ms Munira Mujkanović).


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

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. 39399/08 and 23272/16, the applicants also raised other complaints under the provisions of the Convention.


CASE OF KHAVA AZIYEVA AND OTHERS v. RUSSIA

Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Liberty of person;Security of person);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Life)

Dmitry Dedov;Elisabeth Steiner;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicants are:

1) Ms Khava Aziyeva, who was born in 1983,

2) Ms Aysha Aziyeva, who was born in 2008, and

3) Mr Abdurrakhman Aziyev, who was born in 2010.

They live in Grozny, the Chechen Republic. They are the relatives of Mr Rizvan Aziyev, who was born in 1979. The first applicant is his sister, the second and third applicants are his children.

At the material time the applicants and Mr Rizvan Aziyev lived at 23 Gagarina Street, in the settlement of Staraya Sunzha in Grozny. The first applicant’s two other brothers, Mr I.A. and Mr Kh.A., had been convicted for the participation in illegal armed groups and were serving their sentences.

In 2005 Mr Rizvan Aziyev was arrested in Irkutsk, Russia, and then convicted for the participation in illegal armed groups. In 2008 he was released upon completion of the sentence.

For an unspecified period of time, prior to August 2008, the first applicant was married to Mr A.Kh. who was wanted by the authorities for active membership in illegal armed groups. On 31 October 2009 he had been killed as a result of a special operation carried out by the authorities in Grozny (see application Gaysanova v Russia, no. 62235/09 concerning alleged abduction of the applicant’s daughter Ms Zarema Gaysanova by State agents during that special operation).

On 31 October 2009 the applicants and their relatives were at home. Mr Rizvan Aziyev was not there. The applicants’ neighbours in the house across the street (at 20 Gagarina Street) were preparing a wedding dinner; their house was full of guests.

In the evening on that date a large group of servicemen in military camouflage or black uniforms arrived in about fifteen UAZ and VAZ model civilian vehicles and cordoned off several streets around the applicants’ house. According to the applicants’ neighbours, the servicemen blocked access to the nearby streets to its residents explaining that they were conducting a special operation.

At about 7 p.m. a group of about twenty to thirty armed men arrived at the applicants’ house in Gagarina Street in several vehicles. The men were in military camouflage uniforms, they were armed with automatic rifles, had portable radios and special military ammunition belts. The men spoke Chechen and Russian. The applicants and their relatives thought that these men were police officers.

Three of the men went into the applicants’ house whereas the rest remained outside blocking the building and the nearby houses. One of the three men, who was in charge of the group, demanded in Chechen that the first applicant telephoned her brother Mr Rizvan Aziyev and asked him to come home without mentioning that the police were waiting for him. Meanwhile, two other men quickly searched the house. One of the intruders received a phone call on his mobile phone and explained to someone that he was at work.

The first applicant called Mr Rizvan Aziyev and asked him to come home as soon as possible. Mr Rizvan Aziyev told her that he would be there in about ten minutes. The man in charge of the intruders’ group stood next to the applicant and listened to the conversation. As soon as the conversation was over he took the phone away from her and went outside whilst one of his colleagues remained in the house.

The first applicant looked out from the window and saw that a group of about fifteen other men was standing under the shed in the yard.

About twenty minutes later one of the policemen opened the house door and asked his colleague to come out. The first applicant tried to follow the man, but he closed the door from the outside. About two minutes later he opened it and left the yard. Immediately afterwards the first applicant heard several cars starting their engines and driving away from the house.

According to the applicants’ neighbour, Ms R.A., she saw Mr Rizvan Aziyev being taken away by the abductors who had waited for him next to the applicants’ house.

A number of the applicants’ neighbours and the wedding guests at 20 Gagarina Street witnessed the arrival of the group of the men, who had resembled police officers, to the applicants’ house and Mr Rizvan Aziyev’s removal by them. According to the applicants, the overall duration of the special operation was about half an hour.

About an hour after the abduction, the first applicant’s relative Mr A. - M.A. went to the Leninskiy district department of the interior in Grozny (the ROVD) and complained in writing about the arrest of Mr Rizvan Aziyev. The officers at the ROVD denied any involvement into the events.

On the same evening, 31 October 2009, an officer who introduced himself as Mr Isa, the district police officer, arrived at the applicants’ house, although neither the applicants nor their relatives had informed him about the events. The officer knew that Mr Rizvan Aziyev had been arrested and asked the applicants and their relatives about him and Ms Zarema Gaysanova (see paragraph 8 above). He denied having any knowledge about the whereabouts of the applicants’ relative but promised to assist the applicants in his release. Next morning the applicants’ relative, Mr A.-M.A., spoke with him. The officer denied having any information concerning Mr Rizvan Aziyev’s whereabouts. Subsequently, the applicants found out that Mr Isa had not been a district police officer but a high-ranking officer of a Chechen law-enforcement agency.

The following days the applicants and their relatives complained about the abduction to a number of local law-enforcement agencies. None of them accepted the responsibility for arresting or detaining Mr Rizvan Aziyev.

On 5 February 2011 the first applicant watched the video footage of the special operation conducted by the authorities against Mr A.Kh. on 31 October 2009 (see paragraphs 8 and 19 above) and recognised one of the law-enforcement officers who had participated in the special operation against Mr A.Kh. as the commanding officer of the group of the abductors who had taken away Mr Rizvan Aziyev later on the same date. That officer on the video had spoken with the Chechnya Minister of the Interior Mr Alkhanov. It is unclear whether the first applicant informed the authorities thereof.

The applicants’ submission concerning the circumstances of the abduction and the surrounding events is based on the statements of the first applicant lodged with the application and the additional statement dated 10 February 2011, the statement of the applicants’ neighbour Mr M.T. dated 4 February 2011, the statement of the applicants’ relative Mr A.A. dated 4 February 2011 and copies of the contents of the investigation file opened in connection with Mr Rizvan Aziyev’s abduction.

The Government did not dispute the facts as presented by the applicants. At the same time they pointed out that the abduction had been perpetrated by unidentified armed persons, whose outfits and firearms had been common among ordinary criminals, that the body of Mr Rizvan Aziyev was never found and that the witnesses to the abduction had not been sufficiently precise in the description of the abductors’ appearance.

On 1 November 2009 the first applicant complained in writing about the abduction to the Leninskiy inter-district prosecutor’s office (the prosecutor’s office).

On 2 November 2009 the investigator from the ROVD forwarded information requests to various district police departments in Chechnya asking whether Mr Rizvan Aziyev’s body had been found and/or whether he had been detained by their agents.

On 4 November 2009 a group of investigators from the prosecutor’s office arrived at the applicants’ house and briefly examined the crime scene. They only took photographs of the house and questioned Ms R.A. who stated that she had seen the abductors taking away Mr Rizvan Aziyev (see paragraph 42 below).

On 6 November 2009 the investigators again examined the crime scene and collected photos and the passport of Mr Rizvan Aziyev.

On 11 November 2009 the Leninskiy district investigating department of the prosecutor’s office (the investigating department) instituted an investigation into the abduction of Mr Rizvan Aziyev under Article 126 § 2 (aggravated kidnapping). The case file was given the number 66093.

On 12 November 2009 the interim head of the investigating department ordered that by 30 November 2009 the investigators into the abduction took, amongst others, the following steps:

“... the murder of Mr Rizvan Aziyev could have been committed by servicemen of law-enforcement agencies.

To investigate the matter fully and thoroughly and identify the perpetrators, it is necessary to ... establish eye-witness to the crime and obtain their information concerning its circumstances and the culprits ...”

On 14 November 2009 the investigators forwarded information requests to local hospitals and detention centres asking whether they had any information concerning Mr Rizvan Aziyev. The replies received were in the negative.

On 16 November 2009 the applicants’ relatives, Ms Kha.A. and Mr A.-M.A., were granted victim status in the criminal case and questioned (see paragraphs 41 and 44 below).

On 16 and 17 November 2009 the investigators reiterated their information requests to various district police departments in Chechnya asking whether Mr Rizvan Aziyev’s body had been found and/or whether he had been detained by their agents. The replies received were in the negative.

On 10 December 2009 the deputy head of the Chechnya investigating committee criticised the investigation in the criminal case and ordered that, amongst others, that the following steps be taken:

“... to correct the deficiencies of the investigation in the criminal case... it is necessary:

- to examine again the crime scene to find such evidence as fingerprints with the participation of the [relevant] forensic expert;...

- to obtain list of phone calls made by Mr Rizvan Aziyev ... and the list of all mobile phone calls made in the vicinity of the crime scene between 6 and 8 p.m. on 31 October 2009 and establish the owners of the phone numbers from which they had originated ...”

On 15 or 16 December 2009 the investigators again examined the crime scene. No evidence was collected.

On 11 February 2010 the investigation in the criminal case was suspended for failure to identify the perpetrators.

On 20 April 2010 the first applicant was granted victim status in the criminal case.

On an unspecified date between January and April 2010 the investigators obtained a detailed list of connections made from the Mr Rizvan Aziyev’s mobile telephone on the date of the abduction, 31 October 2009. According to the list, after the abduction, text-messages were received by the phone in the vicinity of the town of Argun which was about fifteen kilometres from Grozny.

According to the applicants, the investigators did not inform them of the progress in the criminal case. The applicants were able to familiarise themselves with the contents of the investigation file only after having been provided with a copy of its contents furnished by the Government upon the Court’s request to this end made on 27 August 2010.

On 4 February 2011 the first applicant complained to the head of the Chechnya investigating department that the investigation of her brother’s abduction was ineffective, stating, amongst other things, the following:

“... I familiarised myself with the contents of the criminal case file as a result of which the following has been established:

My brother had been detained at about 7.20 p.m. on 31 October 2009. The case file contains the list of his mobile phone connections for that day. According to that list, after the abduction, my brother’s mobile telephone had received a text message while being in Argun. At that time a checkpoint had been functioning on the roads leading from Grozny to Argun. Therefore, the persons who had detained my brother had taken him or his telephone to Argun; they had passed through two checkpoints of the law enforcement agencies. However, there is nothing in the case file showing that the investigators had taken any steps in respect of the staff who had manned those checkpoints on 31 October 2009.

On 31 October 2009 the persons who had detained my brother had carried out a special operation in Staraya Sunzha. From the information obtained from the local residents, they had condoned off several streets and had not allowed anyone into the sealed off area.... In addition, these persons had used at least ten vehicles ... from the case file it does not follow that the investigation took steps to verify this information.

The investigators, when questioning the local residents, could have asked them not only of the vehicles used by the abductors, but also of the direction in which they had left. However, no such steps have been taken.

Mr Rizvan Aziyev had been abducted by a large group of armed persons who had arrived in at least ten vehicles and cordoned off significant area in Staraya Sunzha. Every time if a member or several members of illegal armed groups resurface in Chechnya, the authorities take urgent steps to eliminate them. In my brother’s case, the law-enforcement agencies had failed to take any steps to search for his abductors. They had arrived at the crime scene to inspect it several days later after the crime had been reported to them, in spite of the fact that already in about an hour after the abduction my cousin Mr A.-M.A. had informed the Leninskiy ROVD of the abduction. From this it is possible to conclude that the authorities had known that the persons who had detained my brother, had belonged to law-enforcement agencies. It also follows that the investigation in the criminal case should have questioned lawenforcement officials responsible for the Leninskiy district in Grozny in order to find out the reasons for their failure to take urgent steps to apprehend the abductors ...

The persons who detained my brother on 31 October 2009 had been armed, in camouflage uniforms, had arrived as a large group, driven openly around Grozny and cordoned off large areas in the town. Nonetheless, the law enforcement authorities, having received the information about the abduction, had taken no steps to identify and arrest them. Such circumstances provide me with grounds to believe that my brother had been a victim of the State agents as a result of their special operation. In spite of those clear facts, the authorities had failed to establish the law-enforcement agencies empowered to carry out such operations in the Leninskiy district in Grozny and to questions their servicemen.

From the above it follows that the investigation should have obtained information of all special operations conducted in Grozny on 31 October 2009 and their results. From the case file it follows that no such information was requested by the investigators.

... I and my relatives believe that Zarema Gaysanova provided the authorities with information about my brother which served as the basis for his arrest. Of course, Rizvan had known my former husband [Mr A.Kh.]. In connection with this the investigation in the criminal case should verify the theory of my brother’s abduction by the same persons who had abducted Zarema Gaysanova and question the lawenforcement officer known as Mr Isa who had asked me about Zarema Gaysanova. From the case file it follows that no steps have been taken to follow up on this information.

... In the light of the above, the actions of the investigation in the criminal case which led to failure to take the above and other investigative steps are unlawful and unsubstantiated...

On the basis of the above ... I request that you:

Recognise as unlawful and unsubstantiated the actions of the investigators in criminal case no. 66093 for the failure to take all of the above investigative steps;

Oblige the investigators in the criminal case to resume the proceedings and take the above steps;

Inform me of the results of the examination of this request in accordance with the law...”

It is unclear whether any reply has been given to this request.

No further information was submitted to the Court on the progress of the proceedings; but from the documents submitted it follows that the investigation is still pending.

On 4 November 2009 the investigators questioned the applicants’ relative Ms Kha.A. who provided detailed description of the abduction similar to the applicants’ account submitted to the Court.

On 4 or 6 November 2009 (the date is illegible) the investigators questioned the applicants’ neighbour Ms R.A. whose statement was similar to that of the applicants submitted before the Court. In addition, she stated that the abductors had told her in Chechen to get back in the house and stay inside. From the conversation she had overheard between them, the witness had understood that the fair-haired intruder of medium height and solid built in embroidered scullcap (tubeteyka) had been in charge of the group.

On 6 November 2009 the investigators questioned the first applicant whose statement was similar to the applicants’ account submitted before the Court.

On 6 November 2009 the investigators also questioned Mr A.-M.A. whose statement was similar to the applicants’ account submitted to the Court.

On 16 November 2009 the investigators again questioned Ms Kha.A. and Mr A.-M.A., both of whom reiterated their previously given statements.

On 23 November 2009 the investigators again questioned the first applicant who reiterated her previously given statement.

On 23 November 2009 the investigators also questioned the applicants’ relative and the father of Mr Rizvan Aziyev, Mr L.A., whose statement was similar to the applicants’ account submitted to the Court.

On 25 November 2009 the investigators questioned the applicants’ neighbour Ms R.M. whose statement was similar to the applicants’ account submitted before the Court. In addition, she stated that the abductors had spoken Chechen and that she had subsequently learnt from the first applicant that when the abductors had arrived at their house, Mr Rizvan Aziyev had been in a shop in the 3rd district in Grozny.

On 16 December 2009 the investigators again questioned Ms Kha.A. and the first applicant both of whom reiterated their previously given statements.

The applicants maintained that it was beyond reasonable doubt that State agents had taken away Mr Rizvan Aziyev and subsequently killed him. In support of their complaint they referred to the following facts. The abductors had arrived as a large group of armed men in uniforms in numerous civilian vehicles which were typically used by the local law-enforcement agencies; the abductors had used portable radio-stations and condoned off a large area, which would have been impossible for an illegal armed group. The abductors had acted openly, without any fear of being discovered by the authorities and openly spoken with the applicants’ neighbours. The abductors had acted as an organised group under chain of command and had been able to drive unobstructed through checkpoints in the area. The authorities had not taken any urgent steps to establish the whereabouts of Mr Rizvan Aziyev in spite of the applicants’ immediate complaint about it. Finally, the authorities had motives for the abduction of Mr Rizvan Aziyev owing to his past as a member of illegal armed groups and his acquaintanceship with Mr A.Kh. who had been killed during the special operation carried out in another neighbourhood in Grozny on the same date. The applicants submitted that they had made a prima facie case that their relative had been abducted by State agents and that the essential facts underlying their complaints had not been challenged by the Government. They stressed that Mr Rizvan Aziyev had disappeared in life-threatening circumstances, that he had been missing for a long period of time and that therefore, he must be presumed dead.

The applicants further argued that the investigation of the abduction had been ineffective. In particular, they alleged that the investigators had either failed to take a number of crucial investigative steps or they had taken important steps with major delays and deficiencies. In spite of being informed of the abduction shortly after the events, the authorities opened the criminal case only on 11 November 2009 and carried out the crime scene examination without forensic experts only on 6 November 2009, almost in a week after the report of the abduction. By December 2009 the crime scene had not been examined by forensic experts (see paragraph 33 above) that had led to the loss of such evidence as the culprits’ fingerprints, and the tracks of their boots and the vehicles’ tires. Not all the witnesses to the events had been established and those who had been identified and questioned had been questioned belatedly and in a superficial manner. The investigation into the abduction had accepted the theory that the perpetrators belonged to the State authorities and forwarded information requests to verify whether Mr Rizvan Aziyev had been in State custody whereas the other theories had not been verified. Despite the clear indications to the special operation against Mr Rizvan Aziyev, the investigators neither took steps to identify and question the law-enforcement officials as to the reasons for their belated reaction to the abduction nor requested information on special operations carried out in the area on 31 October 2009. The investigation was suspended in spite of the investigators’ failure to take basic steps (see paragraph 38 above).

Referring to the cases Shaipova and Others v. Russia, no. 10796/04, § 85, 6 November 2008 the Government contended that the applicants had failed to make a prima facie case of State agents’ involvement into the abduction as the witnesses had not been sufficiently precise in the description of the perpetrators; the vehicles, uniforms and the firearms of the abductors could have been used by any other criminals and that there was no proof that Mr Rizvan Aziyev had been dead as his body was never found. They further claimed that the investigation of the incident had met the Convention requirement of effectiveness, as all possible measures available under national law were being taken to have the crime solved.

The Court points out that a number of principles have been developed in its case-law as regards applications in which it is faced with the task of establishing facts on which the parties disagree. As to the facts that are in dispute, the Court reiterates its jurisprudence requiring the standard of proof “beyond reasonable doubt” in its assessment of evidence (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001-VII). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the parties when evidence is being obtained has to be taken into account (see Taniş and Others v. Turkey, no. 65899/01, § 160, ECHR 2005VIII).

The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nonetheless, where allegations are made under Articles 2 and 3 of the Convention, the Court must apply a particularly thorough scrutiny (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, § 32, Series A no. 336, and Avşar, cited above, § 283), even if certain domestic proceedings and investigations have already taken place.

The period of time that has elapsed since the person disappeared, although not decisive in itself, is a relevant factor to be taken into account. It must be accepted that the more time that goes by without any news of the disappeared person, the greater the likelihood that he or she has died. The passage of time may therefore to some extent affect the weight to be attached to other elements of circumstantial evidence before it can be concluded that the person concerned is to be presumed dead. Such an interpretation is in keeping with the effective protection of the right to life as afforded by Article 2 (see, among other authorities, Timurtaş v. Turkey, no. 23531/94, § 83, ECHR 2000VI).

The Court reiterates that where the applicant makes out a prima facie case, it is for the Government to provide a satisfactory and convincing explanation of how the events in question occurred. The burden of proof is thus shifted to the Government and if they fail in their arguments, issues will arise under Article 2 and/or Article 3 (see Toğcu v. Turkey, no. 27601/95, § 95, 31 May 2005, and Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005II).

The Court notes that in reply to its request for a copy of the investigation file into the abduction of Mr Rizvan Aziyev, the Government furnished its contents reflecting the period of the investigation between November 2009 and August 2010. The Government furnished no further updates on the progress of the proceedings. The applicants, on their part, updated the Court on the progress in the proceedings to the extent known to them.

The Court notes that the criminal case materials in its possession reflect primarily the first year of the investigation into the circumstances of the abduction. Taking into account the importance of the first several months of an investigation into disappearance for the subsequent progress of the proceedings, the Court finds that the materials furnished by the parties suffice for the examination of the application.

In view of the parties’ submission, the Court’s’ relative. As for the Government’s reference to Shaipova and Others, cited above, § 85, the Court notes, that unlike in that case where the abductors had arrived on foot and where the applicants’ statements concerning the perpetrators had been vague, in the present one there are materials in its possession demonstrating the validity of the applicants’ allegation of special operation for the following reasons. In spite of the absence at the material time of curfew in the area and the abductors arrival at the applicants’ house in civilian vehicles – unlike in numerous other cases concerning abductions perpetrated by State agents in the same district several years prior to the events in question (see, for example, Askhabova v. Russia, no. 54765/09, § 135, 18 April 2013 concerning abduction perpetrated in August 2009) the Court would like to point out the following. Firstly, the abductors arrived as a large group in at least ten vehicles; they cordoned off several streets and acted as an organised group. Their vehicles were able to drive freely through the military checkpoints situated in vicinity of Staraya Sunzha. The abductors had informed the local residents that they had been conducting a special operation (see paragraphs 10 and 12 above). Secondly, from the investigation file it follows that the investigators took no meaningful steps to check whether the abduction could have been perpetrated for other reasons, such as a blood feud, ransom, drugs or hostility. No serious steps were taken to verify those hypotheses and no information was obtained that the abductors could have been other than State agents (see, by contrast, Zubayrayev v. Russia, no. 67797/01, § 81, 10 January 2008). Lastly, the reluctance of the authorities to verify the information concerning the connection between the abduction of Mr Rizvan Aziyev and the killing on the same date as a result of the special operation of Mr A.Kh. (see paragraphs 8, 19, 21 and 39 above) provide the Court with the grounds to conclude that the applicants have made a prima facie case that their relative was abducted by State agents. The Government’s statement that the investigators found no evidence proving the involvement of members of lawenforcement authorities in Mr Rizvan Aziyev’s disappearance is insufficient to discharge them from the above-mentioned burden of proof. Having examined the documents submitted by the parties and drawing inferences from the Government’s failure to provide another plausible explanation for the events in question, the Court finds that Mr Rizvan Aziyev was arrested on 31 October 2009 by State servicemen.

There has been no reliable news of Mr Rizvan Aziyev since his arrest. The Government have not submitted any explanation as to what happened to him afterwards.

The Court finds that, in a situation where a person is detained by unidentified police officers without any subsequent acknowledgment of the detention and is then missing for several years, that situation can be regarded as life-threatening. The absence of Mr Rizvan Aziyev or of any news of him for more than five years supports this assumption.

Accordingly, the Court finds that the evidence available permits it to establish to the requisite standard of proof that Mr Rizvan Aziyev must be presumed dead following his unacknowledged detention by State agents.


Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström

The applicant, Mr Ömer Kabul, is a Turkish national, who was born in 1990 and lives in Şırnak.

The Turkish Government (“the Government”) were represented by their Agent.

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

On 15 May 2009 the applicant was arrested by the police on suspicion of membership of an illegal terrorist organisation.

On 16 May 2009 the judge at the Şırnak Magistrates’ Court took the applicant’s statement and subsequently ordered his pre-trial detention.

On 20 November 2009 the Diyarbakır public prosecutor lodged a bill of indictment against the applicant, charging him with membership of a terrorist organisation, and storage and use of explosive materials.

During the trial, the Diyarbakır Assize Court prolonged the applicant’s detention having regard to the strong suspicion of the suspect’s having committed the offences in issue and the fact that the offences in question fell within the categories listed in Article 100 of the Code of Criminal Procedure.

On 2 January 2013 the Diyarbakır Assize Court convicted the applicant and sentenced him to seventeen years’ imprisonment for membership of a terrorist organisation and storage of explosive materials.

According to the information in the case file, the proceedings are currently pending before the Court of Cassation.