Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in 1966 and lives in Nizhniy Novgorod.

At the material time he was the executive director of the RussianChechen Friendship Society (Общество российско-чеченской дружбы), a non-governmental organisation which monitored human rights violations in the Chechen Republic and other parts of the North Caucasus. He was also the chief editor of a monthly newspaper, Pravo-Zashchita (Protection of Rights), with a circulation of 5,000. The newspaper was published and distributed mainly in the Nizhniy Novgorod Region. At the end of each issue there was a standard disclaimer stating that the views of the editorial team might not concur with those expressed in the articles published.

In early 2004 the applicant obtained two articles from the website Chechenpress. The first, which had the headline “Address by Akhmed Zakayev, Vice Prime Minister of the Government of the Chechen Republic of Ichkeria, to the People of Russia”(«Обращение вице-премьера правительства Чеченской Республики Ичкерия Ахмеда Закаева к российскому народу» – “the first article”), was published by him in issue no. 1 (58) of Pravo-Zashchita for March 2004. It read as follows:

“A year ago a peace process that had just begun was interrupted by the tragic events in the Dubrovka [theatre]. There may be long arguments as to who was responsible for that tragedy, but there is no dispute as to who benefited from it.

Today, on behalf of Aslan Maskhadov, President of the Chechen Republic of Ichkeria, I am again addressing myself to the people of Russia. It is still not too late for us to resolve all the questions at issue. But for this, the people of Russia should get rid of those for whom peace represents the loss of power or perhaps even a trial. As long as they remain in the Kremlin, blood will continue to flow in Chechnya and in Russia.

I am extending to the people of Russia the hand of peace over the head of their president. No one needs the war except for him: neither right nor left, neither poor nor rich. Vladimir Putin left the Chechens no choice, but you have a choice and you may still choose peace by voting against Putin in March 2004. Both for you and for us this is a real opportunity.”

The article was accompanied by the editorial team’s comments (от редакции), which read as follows:

“For reasons beyond the editorial team’s control, we are publishing this document belatedly. This address was made on the eve of the presidential elections in Russia. Unfortunately, the people of Russia did not avail themselves of their historic opportunity, having again elected as their president a man who has made political capital out of a bloody war against his own people and who is leading the country towards the blind alley of a police state. Nevertheless, we are convinced that this document, which represents the legitimate Chechen authorities’ statement to the outside world, has not lost its topicality in the meantime”.

The second article, which had the headline “Address by Maskhadov, President of the Chechen Republic Ichkeria, to the European Parliament” («Обращение Президента Чеченской Республики Ичкерия Масхадова к Европарламенту» – “the second article”), was published by the applicant in issue no. 2 (59) of Pravo-Zashchita for April and May 2004 and read as follows:

“On 26 February 2004 the Parliament of the European Union adopted a declaration in which Stalin’s deportation of the Chechen people on 23 February 1944 was officially recognised as an act of genocide. The European Parliament also recommended that the European Council study the plan of the Government of the Chechen Republic of Ichkeria (the CRI) on peaceful resolution of the present military conflict [between Russia and Chechnya], which I had approved.

The total deportation to Central Asia and Kazakhstan in 1944 is one of the most tragic pages in the entire centuries-old history of the Chechens, since during this act of violence the national republic was completely liquidated and its territory separated among the adjacent regions. During the 13 years which the Chechen people spent in exile, about 70% of the population died.

It must be mentioned that the 1944 deportation was the ninth large-scale act of genocide by the military and political authorities of Imperial Russia during the period of the 400-year-long armed confrontation between the Chechens and Russians.

The very first deportation of the Chechens was carried out by Russia as early as in 1792, after the destruction of the State headed by the first Imam of the Caucasus, Sheikh Mansur. And after the destruction of the State headed by Imam Shamil, when the Russian-Caucasian war was officially declared to be over in 1859, a considerable proportion of Chechens ended up on the territory of the Ottoman Empire.

The last tsarist deportation was the expulsion of many Chechen families to cold and faraway Siberia in 1913. And the first mass deportations of the Chechens during the Soviet regime began in the years of collectivisation and cultural revolution, in other words during Stalin’s regime.

What is the aim of this historical overview? The Government of the CRI regards this political resolution by the European Parliament as an undoubtedly serious historic act on the way to achieving the long-awaited peace on blood-stained Chechen soil. More than a quarter of a million innocent civilians have already died in the CRI during the latest continuing Russian-Chechen war, the entire infrastructure of the republic has been completely devastated, many towns, villages, schools, hospitals and cultural facilities have been destroyed, and there is still no light at the end of the tunnel.

Yet the international community is watching the deliberate and systematic murder of the entire nation with complete serenity and has not the slightest desire to react in any way to this criminal madness by the bloody Kremlin regime. This in turn engenders thousands and thousands of new fighters in the republic, who replenish the ranks of the Chechen Resistance with fresh forces each day, and who believe that they have a moral right to use the enemy’s own methods against the enemy, [an approach] which we unequivocally condemn.

Even on this mournful date – the 60th anniversary of the deportation – many Chechens marked the occasion in extremely harsh conditions of unmotivated mass murders, extrajudicial executions, groundless detentions, severe ‘clear-up’ operations, tortures, kidnappings, disappearances and ‘residential’ checks by Russia’s invaders and their accomplices, who have been committing excesses in the territory of the CRI for the past five years.

As the legitimately elected President of the Chechen Republic of Ichkeria, I express, on behalf of the recalcitrant Chechen people fighting for their freedom, sincere gratitude to all the members of the European Parliament who took this fundamental decision to recognise the deportation of 1944 as an act of genocide...

Today, just as 60 years ago, the new global Russia’s terror has become our national tragedy. Its inexorable millstones are grinding the gene pool of the unique and original Chechen people, one of the indigenous nations of the ancient Caucasus, and this in the end may lead to [the Chechens’] total physical disappearance from the face of the earth.

Your decision in defence of the Chechen people, living in a situation of ongoing genocide, is an additional moral incentive in the fight for survival. We are always open to constructive dialogue with the international community, and we invite independent experts from the United Nations and the European Union to monitor the situation with their own eyes, so that the groundless and defamatory attacks on the Chechens by Russia’s propagandists, who insolently continue to pester the PACE, OSCE and other authoritative organisations, can no longer distort the real picture in the Chechen Republic of Ichkeria.

There is no doubt that the Kremlin is today the centre of international terrorism, and [the Kremlin] selected Chechnya and the Chechens as targets for testing terrorist methods which are being developed by the [Federal Security Service]. It would be naive to believe that the present regime in Russia would be too shy to use its terrorist experience in the international arena to solve its political and other problems. An example of this is the treacherous and cowardly terrorist attack by Russia’s special services in the State of Qatar, which prematurely took the life of my predecessor, Zelimkhan Yandarbiyev, and was carried out with the use of diplomatic channels.

Owing to the wide publicity given to the latest events concerning the Khanbiyev family, you have become witnesses to one of the numerous terrorist methods used by the State party of Russia, notably taking hostages from the civilian population. In the majority of cases, hostages disappear without trace, and their bodies, showing traces of torture, are later discovered in secret graves that can be found all across the territory of Chechnya.

The genocide of the Chechen people, which continues in the 21st century, is a direct and impertinent challenge to all of progressive mankind, let alone civilised and democratic Europe, which considers human rights as its main value and priority, thus making the human factor of paramount importance and the most valuable achievement of civilisation.

We would therefore like to believe that the Chechen people have a right to hope that you will soon recognise the war which the Putin regime imposed on Chechnya as genocide – a war which, in its scale, refinement, vandalism and inhumanity, overshadows the genocide of 1944.

I sincerely believe in the triumph of reason and justice on earth, and in the final victory of the Chechen people. The bright day is near when the sacred Chechen soil will be completely cleansed of the countless hordes of Russia’s invaders and their accomplices among local nation-traitors. The Chechen Resistance will inevitably accomplish it! Whatever the costs! No one in the world should have any doubt about this!”

On 28 November 2004 an officer from the prosecutor’s office of the Nizhniy Novgorod Region (прокуратура Нижегородской области – “the regional prosecutor’s office”) reported that he had established that the articles written by unidentified authors contained public appeals to extremist activity – most notably to overthrow the State regime and forcibly change fundamental aspects of Russia’s constitutional system.

The applicant was interviewed in connection with his publication of the articles. He stated that he supported the assessment given by Akhmed Zakayev in his article of the role of Mr V. V. Putin, the President of Russia, in the history of Russia over the last several years. He also stated that he strongly supported his appeal to stop the war and to resolve the military conflict in the Chechen Republic in a peaceful political way, having made a commentary to that effect after the article. As regards the second article, the applicant explained that he had considered the material to be of great public importance for the people of Russia so had published it. He added that he had intended to convey to the readers the position of the leaders of one of the parties to the military conflict in the Chechen Republic as he had considered that, in the light of the continuing tragedy in the Northern Caucasus and terrorist threat, citizens should be entitled to have an idea of that position first hand rather than having the situation presented to them by Russia’s mass media, which only reflected the point of view of the authorities of Russia.

On 11 January 2005 the regional prosecutor’s office instituted criminal proceedings under Article 280 § 2 of the Criminal Code (public appeals to extremist activity through the mass media). The applicant was questioned on several occasions as a witness.

In reports dated 18 February 2005 Ms T., a linguistic expert, stated that the articles in question contained no appeals to extremist activity but rather were aimed at inciting racial, ethnic and social discord (рознь), associated with violence (see paragraphs 20-27 below). Following that conclusion, the authorities decided to conduct a further investigation under Article 282 § 2 of the Criminal Code (incitement to hatred (ненависть) or enmity (вражда) and the humiliation of human dignity).

In a witness interview on 25 April 2005 the applicant stated, inter alia, that he had published the two articles as he had considered the material to be of great public significance and had intended to apprise readers in the Nizhniy Novgorod Region of them. He had not pursued any other aim. He also stated that he had taken the decision to publish the articles, without being asked by anyone. In his opinion, the articles were decent and reflected their authors’ point of view. He disagreed with the conclusions of the expert reports of 18 February 2005 that the articles contained statements aimed at inciting enmity between the Russians and the Chechens, or statements humiliating the human dignity of the Russians on the grounds of their ethnic origin. He also affirmed his principal position regarding that issue, namely that the actions of the Government of Russia and its armed forces during the conflict in the Chechen Republic should be regarded as a war crime and a crime against mankind. The applicant further stated that he had considered that the publication of the articles promoted friendship and peace between the people of Russia and the Chechen people. Lastly, he denied that he had obtained any payment for publishing the articles. During subsequent interviews the applicant consistently maintained his position.

By a decision of 5 May 2005 the investigator in charge suspended the proceedings as those responsible remained unidentified. The decision referred to the statements the applicant had made during witness interviews to the effect that he had obtained the impugned documents from a website and published them with a view to apprising readers in the Nizhniy Novgorod Region of them. The decision further stated that no evidence capable of refuting the applicant’s arguments had been obtained during the investigation. It went on to say that there was evidence of a crime under Article 282 § 1 of the Criminal Code in the actions of those who had published the documents online; however, since they remained unidentified the investigation had to be suspended.

The decision of 5 May 2005 was quashed by a deputy prosecutor of the regional prosecutor’s office and the proceedings were resumed on 9 July 2005.

On 2 September 2005 the applicant was formally charged under Article 282 § 2 of the Criminal Code and banned from leaving his place of residence. On the same date the investigator in charge refused a request by him for another linguistic expert examination of the articles, stating that the conclusions in the reports of 18 February 2005 were well-reasoned and consistent.

By a decision of 26 September 2005 the investigator in charge refused a request by the applicant for a comprehensive expert examination of the articles involving linguistic experts and historians including the history, culture and traditions of the Chechen people. The grounds for the refusal were similar to those stated in the decision of 2 September 2005.

On 29 September 2005 an indictment was served on the applicant and the case file was sent for trial.

In the context of the criminal proceedings against the applicant, the investigating authorities ordered a linguistic expert examination of the articles published by him. An expert was requested to answer whether they contained any appeals to extremist activity and, in particular, whether there were any appeals to activity aimed at advocating the exceptionality, supremacy or inferiority of citizens on the grounds of their racial, ethnic or social origin. The expert was also requested to reply whether the articles contained statements aimed at inciting hatred or enmity or humiliating the dignity of an individual or a group of individuals on the grounds of their race, ethnic origin, language, origin, attitude towards religion, or membership of a certain social group.

On 18 February 2005 Ms T. drew up two expert reports. In a report on the linguistic expert examination of the first article, she pointed out that the text contained statements in the affirmative to the effect that “the tragedy in the Dubrovka [theatre] and the war in Chechnya [were] beneficial for Vladimir Putin”, that “the cessation of war and a peace agreement with the leaders of the [Chechen Republic of Ichkeria meant] the loss of power for V. Putin”, and that “until V. Putin [guided] the State, blood [would] continue to flow in Chechnya and Russia”. The report then referred to the following statement:

“It is still not too late for us to resolve all the questions at issue. But for this, the people of Russia should get rid of those for whom peace represents the loss of power or perhaps even a trial. As long as they remain in the Kremlin, blood will continue to flow in Chechnya and in Russia.”

According to the report, that statement, analysed in the context of the whole article, contained a demand by the author to the people of Russia not to vote for Vladimir Putin in March 2004. It went on to note that the author was also promising that, otherwise, killings and terrorist acts would be carried out in Chechnya and in Russia (“blood will continue to flow...”), verbally threatening the people of Russia. On the basis of that analysis, Ms T. concluded that the above-mentioned statement was aimed at inciting racial, ethnic or social discord, associated with violence. The report provided no further details in respect of that conclusion. It also stated that the article contained no appeals to extremist activity or any statements aimed at advocating the exceptionality and supremacy of the Chechens on the grounds of their ethnic origin.

The other report of 18 February 2005 concerned a linguistic expert examination of the second article and stated that the following statements were aimed at inciting racial, ethnic and social hostility, associated with violence:

“...the 1944 deportation was the ninth large-scale act of genocide by the military and political authorities of Imperial Russia...”

“The very first deportation of the Chechens was carried out by Russia as early as in 1792...”

“More than a quarter of a million innocent civilians have already died in the [Chechen Republic of Ichkeria] (the CRI) during the latest continuing Russian-Chechen war...”

“...the international community ... has not the slightest desire to react in any way to this criminal madness by the bloody Kremlin regime...”

“...the 60th anniversary of the deportation ... many Chechens marked ... in extremely harsh conditions of unmotivated mass murders, extrajudicial executions, groundless detentions, severe ‘clear-up’ operations, tortures, kidnappings, disappearances and ‘residential’ checks by Russia’s invaders and their accomplices, who have been committing excesses in the territory of the CRI for the past five years...”

“Today, just as 60 years ago, the new global Russia’s terror has become our national tragedy. Its inexorable millstones are grinding the gene pool of the unique and original Chechen people...”

“...we invite independent experts from the United Nations and the European Union to monitor the situation with their own eyes, so that the groundless and defamatory attacks on the Chechens by Russia’s propagandists... can no longer distort the real picture in the Chechen Republic of Ichkeria...”

“There is no doubt that the Kremlin is today the centre of international terrorism, and [the Kremlin] selected Chechnya and the Chechens as targets for testing terrorist methods which are being developed by the [Federal Security Service]...”

“It would be naive to believe that the present regime in Russia would be too shy to use its terrorist experience in the international arena to solve its political and other problems...”

“An example of this is the treacherous and cowardly terrorist attack by Russia’s special services in the State of Qatar, which prematurely took the life of ... Zelimkhan Yandarbiyev...”

“...you have become witnesses to one of the numerous terrorist methods used by the State party of Russia, notably taking hostages from the civilian population...”

“We would therefore like to believe that the Chechen people have a right to hope that you will soon recognise the war which the Putin regime imposed on Chechnya as genocide...”

“The bright day is near when the sacred Chechen soil will be completely cleansed of the countless hordes of Russia’s invaders and their accomplices...”

The report stated that in all those statements the author of the article was directly pointing out that it was Russia and its invaders, military and political authorities, special services and State party who were carrying out “genocide”, “unmotivated mass murders, extrajudicial executions, groundless detentions, severe ‘clear-up’ operations, tortures, kidnappings, disappearances and ‘residential’ checks”, and that it was they who were “committing excesses”. It also indicated that “the expression ‘State party [of Russia]’ should be understood to mean a designation of a group of people, organisation or State set in contrast in some aspect to another group of people, organisation or State (in the present case, to Chechnya)”.

The report also pointed out that the last three sentences of the articles were exclamatory and expressed the author’s contemptuous and angry attitude. According to the report, the three sentences were “an undisputable and unequivocal statement to the effect that the Chechen Resistance [would] inevitably liberate their soil of Russia’s servicemen”. The report went on to state that the expression “Whatever the costs!” referred to the means and methods (“to use the enemy’s own methods against the enemy”, “terrorist methods”), and that it was of little importance whether those methods were condemned by the author or not, as the author’s “protective reservation” “to use the enemy’s own methods against the enemy, [an approach] which we unequivocally condemn” did not change the true meaning of the aforementioned expression.

T. also considered it necessary to note that the article contained a number of statements with contemptuous, angry stylistic connotations expressing a distinctly negative assessment of the actions of Russia’s servicemen and governance of the military and political authorities of Russia, such as “this criminal madness by the [bloody] Kremlin regime”, “Russia’s invaders and their accomplices, who have been committing excesses in the territory of the CRI for the past five years”, “the Kremlin is today the centre of international terrorism” and “the Putin regime”.

The report went on to note that the article in question also contained statements aimed at advocating the exceptionality and supremacy of the Chechens on the grounds of their ethnic origin, namely:

“...the new global Russia’s terror has become our national tragedy. Its inexorable millstones are grinding the gene pool of the unique and original Chechen people, one of the indigenous nations of the ancient Caucasus...”

“The bright day is near when the sacred Chechen soil will be completely cleansed of the countless hordes of Russia’s invaders...”

Lastly, the report concluded that the article contained no appeals to extremist activity.

At a hearing, the applicant denied the charges. He confirmed that he had decided to publish the articles in question in the newspaper Pravo-Zashchita himself and supported the views expressed in them. He further argued that it had been his responsibility as a journalist to inform his readers of the position of the other party to the Chechen conflict and of possible means to its peaceful resolution. According to the applicant, he had acted in the name of peace and friendship between various nations in Russia. He confirmed that he supported the ideas expressed in the articles.

The applicant’s defence submitted a report by a linguistic expert, Ms V., which they had obtained at their own request at the investigation stage. It stated that the two articles in question could not be regarded as inciting racial or national hatred and discord. Before the trial court, the applicant argued that Ms T.’s conclusions in the reports of 18 February 2005 were hypothetical and that she had not taken into account scientific recommendations for investigating the type of criminal offence with which he had been charged. The applicant also insisted that Ms T. had exceeded her competence as she had given a legal qualification to his actions. He also pointed to discrepancies between the reports by Ms T. submitted by the prosecution and the report by Ms V. submitted by the defence.

A number of witnesses examined at the trial gave positive references about the applicant, stating that he was a man of good character and spoke out in favour of a peaceful resolution of the conflict in the Chechen Republic.

Both experts were also cross-examined during the trial. The applicant submitted an audio recording of Ms T.’s cross-examination, which he had made at the trial. It appears from the recording that, in reply to the applicant’s questions, Ms T. refused to give definitions of the notions of “race”, “ethnic origin” and “social group”, stating that it fell outside of her field of expertise.

In a judgment of 3 February 2006 the Sovetskiy District Court of Nizhniy Novgorod (“the District Court”), sitting in a single-judge formation composed of Judge B., established that, in breach of sections 51 and 59 of the Mass Media Act, the applicant, “acting intentionally and using his official position as chief editor, [had] decided to publish two articles which contained statements aimed at inciting enmity and humiliating the dignity of a group of persons on the grounds of race, ethnic origin and membership of a certain social group”. The court then quoted the expressions referred to in the expert reports of 18 February 2005 (see paragraphs 21-22 above) and observed that 5,000 copies of each of the two issues in which the articles had been published had been distributed in Nizhniy Novgorod, Moscow, Voronezh, Kazan and the Republic of Ingushetia.

The District Court found that the applicant’s guilt had been proven “by witness statements and the case material, [in particular] by the conclusions of the forensic expert examinations, according to which the texts [of the impugned articles contained] no appeals to extremist activity, but [contained] statements aimed at inciting racial, ethnic or social discord, associated with violence”. On the basis of the evidence adduced to it, the District Court found it necessary to classify the applicant’s actions as those punishable under Article 282 § 2 (b) of the Criminal Code, namely those aimed at inciting enmity and humiliating the dignity of a group of persons on the grounds of race, ethnic origin, membership of a social group, committed through the mass media by a person using his official position.

The trial court then found that, “acting with direct intent, being aware of the nature of his actions and wishing to carry them out, [the applicant], on his own, [had taken] a decision to publish two articles which had, as their basis, statements aimed at inciting enmity and humiliating the dignity of persons on the grounds of race, ethnic origin and membership of a social group”. It observed that “during the trial [the applicant had] repeatedly expressed his support for the points of view reflected in the published articles” and had “pointed out that he [had been] carrying out his duty as a journalist by so doing”. In the court’s opinion, however, the arguments advanced by the applicant in his defence were “untenable from a legal point of view and should be regarded as [his] attempt to defend himself to avoid punishment for the committed offence of medium gravity”. The witness statements in the applicant’s favour were held “to concern only the applicant’s personality” and to be “irrelevant for the present criminal case”.

The District Court further pointed out that it had based its guilty verdict “on the lawful and well-founded expert reports [of 18 February 2005], in which [Ms T. had] thoroughly analysed the texts of both articles in their entirety and made a conclusion as to the presence in [them] of statements aimed at inciting racial, ethnic and social discord”. The court considered that it had no reason to doubt or question the conclusions of the expert reports given, in particular, “Ms T.’s competence, professional skills and [past] experience.”

The District Court further rejected the report by Ms V. as defective, saying that it was superficial and formalistic and that the expert examination in question had been carried out without due regard to an analysis of the texts. The court also noted in this connection that the applicant had paid for the report and that Ms V. had not been informed of the relevant provisions of procedural legislation which criminalised the drawing up of knowingly false expert reports.

The trial court found it necessary to exclude from the charges against the applicant reference to “the statements aimed at advocating the exceptionality and supremacy of the Chechens on the grounds of their ethnicity” “in the absence of such wording in the provisions of Article 282 of the Russian Criminal Code”.

As regards the punishment to be imposed on the applicant, the court had regard to the nature and social dangerousness of the offence with which he had been charged and the fact that he had no criminal record, had positive references and had two dependent children. It also stated that there was no evidence at that time that “[his] illegal actions had entailed any serious consequences”. The court therefore considered it appropriate to give the applicant a two-year suspended sentence and four years’ probation.

On 9 February 2006 the applicant applied to the District Court to have the trial record amended. He complained that Ms T.’s testimony, which was of crucial importance to his case, had been distorted in the record and that, in particular, it attributed certain statements to her which she had not made at the trial. He pointed out, more specifically, that during the trial Ms T. had refused, in reply to his questions, to give definitions to the notions of “race”, “ethnic origin” and “social group”, stating that it was outside of her competence as a linguist and rather fell within the competence of a sociologist or historian. However, according to the official trial record, Ms T. had defined the aforementioned notions. The applicant also asked the court to include in the case file a copy and transcript of the audio recording of the first-instance hearings, made by the defence, indicating the discrepancies between the actual statements made by Ms T. and those reflected in the trial record.

By a decision of 13 February 2006 Judge B. of the District Court rejected the applicant’s application. He noted that the trial record had been made in compliance with procedural law and fully reflected the actual testimony given by all witnesses. The judge further stated that neither the applicant nor his lawyer had notified the District Court of the audio recording of Ms T.’s cross-examination at the trial or requested that the court include it in the case file, and that there were no legal grounds at that time for entertaining the applicant’s application.

On 9, 10 and 13 February 2006 respectively the applicant’s two lawyers and the applicant lodged appeals against his conviction.

On 17 February 2006 the applicant filed supplementary appeal pleadings, reiterating his complaints concerning the shortcomings in the trial record with respect to Ms T.’s testimony and requesting that the appellate court examine the audio recording made during the trial of Ms T.’s statements and establish the discrepancy between them and those reflected in the trial record.

By a letter of 21 February 2006, Judge B. returned the applicant’s supplementary pleadings, stating that, in substance, they reflected his remarks in respect of the trial record, which had already been examined and rejected on 13 February 2006.

On 1 March 2006 the applicant resubmitted his supplementary pleadings of 17 February 2006 to the Nizhniy Novgorod Regional Court (“the Regional Court”) and complained about Judge B.’s refusal to accept them. In a letter of 13 April 2006 the Regional Court informed the applicant that it had accepted his pleadings of 17 February 2006 for examination and had examined them during an appeal hearing on 11 April 2006, and therefore the breach of his right of appeal against the judgment of 3 February 2006 had been remedied. The letter also stated that Judge B.’s actions when he had unlawfully returned the applicant’s supplementary pleadings of 17 February 2006 would be discussed by the Regional Court, but that at the same time there were insufficient grounds for instituting disciplinary proceedings against him.

In its decision of 11 April 2006 the Regional Court found the judgment of 3 February 2006 reasoned and well-founded and upheld it on appeal. It reiterated the reasoning of the trial court, stating that the applicant’s guilt for the offence with which he had been charged had been proven by the body of evidence examined during the trial – his own statements in which he had admitted having published the impugned articles and the expert reports of 18 February 2005. The Regional Court endorsed the trial court’s argument that there was no reason to question the conclusions of those reports. It also stated that the trial court had addressed Ms V.’s report, which had been favourable to the applicant, having assessed it critically.

In February and March 2006 the applicant unsuccessfully attempted to have disciplinary and criminal proceedings instituted against Judge B. for alleged falsifying the trial record, exceeding his powers and obstructing justice.


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra

The applicant was born in 1973 in Perm. He is currently detained in Kostroma Region.

In 2002 a court found that the applicant, who suffered from schizophrenia, had committed a number of criminal offences, including possession of drugs and aggravated robbery, and ordered his admission to a psychiatric hospital. The applicant was placed in a mental institution in Leningrad Region, where he remained until 30 January 2005, when he escaped.

On 21 September 2005 he was arrested by the Ukrainian border police for an unlawful attempt to cross the border. On the same day the Lychakivsky District Court of Lviv sentenced him to fifteen days administrative detention. According to a certificate issued by the Ukrainian Border Service in Lvov, the applicant was detained from 21 September to 6 October 2005.

In 2005 the police opened a criminal investigation into the arson of vehicles belonging to a private company.

According to the applicant, on 28 November 2005 he was arrested by the police in Belgorod, a town near the Ukrainian border, during a random identity search operation. He was taken to a police station and allegedly beaten up to force him to confess to the criminal offences. The following day the applicant confessed to having set a vehicle on fire on 9 August 2005.

A report indicated that the applicant was arrested on 29 November 2005. On the same day he wrote a statement, confessing to having burnt out a car together with an accomplice. The investigator assigned a legal-aid lawyer and questioned the applicant in his presence. The applicant again confessed to the arson attack. He also mentioned that several months earlier he had escaped from a psychiatric hospital, where he underwent treatment under a court’s order.

On 30 November 2005 the investigator asked the Belgorod District Court of the Belgorod Region to order the applicant’s placement in custody.

On 1 December 2005 the request was granted. The District Court held that the applicant was charged with a serious criminal offence punishable by up to five years’ imprisonment. His escape from a mental hospital and his lack of a permanent place of residence demonstrated his liability to abscond. Furthermore, relying on statements by a witness who had testified to having been approached by the applicant with a view to “discussing charges against him”, the court found that the applicant was prone to influencing witnesses and obstructing justice. It concluded that only detention could ensure the interests of justice.

The applicant was admitted to temporary detention facility no. IZ31/1 in Belgorod. He shared a cell with other detainees. There is no evidence suggesting that the detention authorities had made an effort to accommodate the applicant’s mental disorder.

The applicant submitted that after his admission to the detention facility the police officers who had allegedly beaten him up after the arrest had again driven him to the police station for questioning, had handcuffed him to a heating unit and had left him in that position until late evening. He had not been given food for the entire day and had only twice been allowed to use a toilet.

On 2 December 2005 the applicant confessed to having blown up a car with an accomplice on 5 October 2005. He later repeated the confession at the crime scene.

In January 2006 the investigating authorities charged the applicant with a robbery committed on 25 November 2005. They also asked the District Court to extend the applicant’s detention pending investigation, claiming that the case was complex and that more time was necessary to complete the investigation. The defence argued that the applicant was in need of psychiatric treatment and that he therefore should be released and admitted to a mental institution. On 26 January 2006 the court extended his detention until 16 February 2006, having considered that that there were no circumstances warranting the applicant’s release.

Another extension, based on the same reasoning, followed on 9 February 2006. The applicant was to be detained until 16 April 2006.

In the meantime, the investigators authorised a psychiatric expert examination of the applicant. In a report issued on 15 February 2006, psychiatrists indicated that the applicant suffered from paranoid continuous progressive schizophrenia and the initial stage of paraphrenia. The doctors also noted that that serious emotional disorder made the applicant particularly dangerous and thus called for his detention under constant psychiatric supervision.

Acting in response to the psychiatrists’ findings, the authorities appointed, on 16 March 2006, a legal guardian to assist the applicant in the proceedings.

On 30 March 2006 the pre-trial investigation was closed and the applicant was committed for trial before the Oktyabrskiy District Court of Belgorod. Referring to his diagnosis, the prosecution sought his admission to a psychiatric hospital.

On 7 April 2006 the applicant lodged an application with the Oktyabrskiy District Court asking for a preliminary hearing to be held in his case. He disputed the charges and declared his innocence. Without submitting documentary evidence the applicant argued that he had been detained in Ukraine between 22 September and 6 October 2005 and thus he had not committed any crime during that period. He also disagreed with the expert report of 15 February 2006, stating that a psychiatric hospital with a lighter security regime would be more appropriate for his condition. Lastly, he asked that his presence at the trial be ensured, as he doubted the efficiency of the legal aid. He noted that he had never met with his legal guardian.

On 13 April 2006 the court held the preliminary hearing. The applicant was present. The court was to decide on the applicant’s continued detention and the need for his personal presence at trial.

The applicant and his legal-aid counsel expressed different opinions on several matters. While the applicant insisted on his transfer from the ordinary detention facility to a psychiatric hospital, his legal guardian and legal-aid lawyer agreed to the extension of his detention. As regards the necessity of his presence, the applicant’s counsel argued that it was desirable, but not necessary. The legal guardian submitted that the issue could be discussed at a later stage. The applicant strongly insisted on his personal participation, as he was afraid that otherwise he could be convicted of crimes which he had not committed.

Having heard the parties, the court ordered the applicant’s detention pending trial and stated that the trial was to be held in his absence, as the personal participation of persons suffering from a mental disorder was not provided for by the Russian Code of Criminal Procedure for cases such as the one to be decided.

The applicant challenged the decision of 13 April 2006, but ten days later his claim was returned without examination on the merits. The court held that his lawyer or legal representative only had a right, under Russian law, to lodge an appeal in such category of cases.

On 25 April 2006 the court held a trial hearing in the presence of a prosecutor, the victims, their lawyers, the applicant’s counsel and legal guardian. The applicant himself was not brought to the court-house. The court read out records of the statements made by the victims at the pre-trial stage and heard testimony from one of the victims. It further read out statements by seven witnesses and studied the applicant’s written confessions made on 29 November and 2 December 2005. It examined other documents and material evidence. Neither the legal-aid counsel nor the legal guardian made any applications or objections. They did not ask any questions during the victim’s cross-examination and did not challenge the admissibility of any item of evidence, including the applicant’s confession. During their closing arguments the lawyer and the guardian acknowledged that the applicant had committed the impugned offences. They stated that owing to his mental disorder he should not bear criminal or civil responsibility and should be admitted to a high-security psychiatric hospital under intensive supervision.

On 3 May 2006 the District Court delivered its judgment. It established that on 9 August 2005 the applicant and his accomplice had set fire to a car; that on 5 October 2005 they had blown up another car and that on 25 November 2005 they had committed a robbery. Relying on the psychiatric report of 15 February 2006 the court ordered the applicant’s treatment in a high-security psychiatric institution under intensive supervision. It held that the preventive measure in the form of the applicant’s detention should remain unchanged until his admission to a psychiatric hospital.

On 12 May 2006 the applicant appealed. He also asked the court to provide him with the trial records from the first-instance court proceedings. The applicant argued that he had been unlawfully convicted of crimes he had not committed, that his confession had been given under pressure and that his defence team, comprising the legal-aid counsel and the legal guardian assigned against his will, had been manifestly ineffective. The applicant submitted that on 5 October 2005 he had still been in detention in Ukraine and therefore he could not have blown up a car in Russia on the same day.

A similar complaint was filed with the Belgorod regional prosecutor’s office.

Neither the applicant’s counsel, nor his guardian lodged an appeal against the judgment of 3 May 2006. It became final on 13 May 2006.

On 15 May 2006 the court dismissed the applicant’s application for access to the trial records as such a request could only be lodged by his defence counsel or legal guardian. Two days later the Oktyabrskiy District Court returned the applicant’s appeal against the judgment of 3 May 2006, informing him that his lawyer or legal guardian were the only ones with the authority to appeal. A similar response arrived from the prosecutor’s office on 26 May 2006.

On 11 June 2006 the judgment of 3 May 2006 was enforced and the applicant was admitted to Oryol Psychiatric Hospital.

In 2012 the Belgorod regional prosecutor’s office applied to the Presidium of the Belgorod Regional Court for supervisory review of the case referring to the breach of the applicant’s right to defence.

On 27 September 2012 the request was granted. Invoking Article 6 § 3 (c) of the Convention, the court held that the trial court’s decision to hold the hearings in the applicant’s absence had been unjustified.

On 11 October 2012 the Presidium of the Belgorod Regional Court acknowledged a violation of the applicant’s right to defence, quashed the judgment of 3 May 2006 and remitted the case to the Oktyabrskiy Regional Court for a fresh examination on the merits.

The first hearing in the case was to be held on 19 November 2012, but the court was unable to summon the applicant. The summons was returned with a note that the applicant could not be found at the indicated address. On 26 November and 6 December 2012 the District Court repeatedly attempted to inform the applicant of the hearing by registered post and telegram. The summons was not served on the applicant as he had left the place of his residence.

On 6 December 2012 the District Court held that it could not proceed with the examination of the criminal case in view of the lack of any knowledge of his whereabouts. It returned the case to the investigating authorities with an order to find the applicant.

The parties did not inform the Court of the outcome of the proceedings.

On 10 December 2005 the applicant complained to the Belgorod town prosecutor’s office about his arrest and subsequent ill-treatment. The complaint contained no references to bodily injuries or possible witnesses to the beatings. It was not supported by any other evidence.

Having questioned the alleged perpetrators, who denied any instance of ill-treatment, the prosecutor’s office refused to open a criminal case on 20 January 2006.

On 27 February 2006 a higher-ranking prosecutor overturned the decision of 20 January 2006 with an order to verify whether the applicant had had any injuries on his admission to the detention facility.

On 10 March 2006 the prosecutor’s office again refused to open a criminal case, mainly referring to the applicant’s mental disorder. On 14 April 2006 the Oktyabrskiy District Court upheld the refusal.

The applicant was detained in the following institutions: from 2 December 2005 to 11 June 2006 in the temporary detention facility; from 11 June 2006 to 4 December 2007 in Oryol Psychiatric Hospital; from 4 December 2007 to 24 February 2009 in St Petersburg High-Security Psychiatric Hospital; and from 24 February to 31 August 2009 in Kashchenko Psychiatric Hospital in St Petersburg. The applicant was then discharged for outpatient treatment.

Shortly after his admission to the temporary detention facility the applicant was seen by a resident doctor, whom he informed that he had been suffering from schizophrenia since 2001.

In the end of December 2005 he was examined by a psychiatrist. According to the doctor’s report of 21 December 2005, the applicant had maniacal schizophrenia. Having noted that his condition did not call for any drug regimen, the doctor recommended his further examination and treatment in a mental institution.

A report prepared by the detention authorities for the applicant’s examination by a psychiatric commission indicated that there were no peculiarities in his general behaviour. He had good relations with inmates and was respectful of the authorities. He never violated prison regulations.

On 15 February 2006 the applicant was examined by a commission of doctors from Belgorod Regional Clinical Psychoneurological Hospital. The experts confirmed that the applicant suffered from paranoid continuous progressive schizophrenia and paraphrenia in the initial stage. They recommended treatment in a high-security medical institution with intensive supervision, given the danger the applicant posed to those around him.

During his stay in the temporary detention facility he received no antipsychotic drugs. No aggressive outbursts or other incidents were recorded.

On admission to Oryol Psychiatric Hospital in June 2006 the applicant behaved aggressively. He was given antipsychotic medication. In the beginning of February 2007 his mental condition improved. By the end of 2007 his behaviour was satisfactory.

During his stay in St Petersburg High-Security Psychiatric Hospital and in Kashenko Psychiatric Hospital, St Petersburg the applicant received standard psychiatric treatment with antipsychotic medication. His mental condition significantly ameliorated, he was no longer in need of inpatient treatment and he was therefore released.

A chest X-ray examination performed several days after his admission to the temporary detention facility disclosed that the applicant had been infected with focal tuberculosis at the infiltration stage. The applicant was seen by a doctor. A standard treatment regimen with first-line antibacterial drugs was ordered.

Daily entries in his medical records show that between 13 January and 20 April 2006 the applicant received the prescribed anti-tuberculosis drug regimen. A scheduled break in his treatment followed.

In Oryol Psychiatric Hospital his treatment continued. A chest X-ray in February 2007 showed that the tuberculosis had been “clinically cured”, with only insignificant traces of the disease remaining in the left lung. On 10 November 2008 doctors confirmed his complete recovery.

The submitted documents indicate that during his treatment the applicant was subjected to regular X-ray examinations, and blood and sputum tests.

A blood test carried out by Oryol Psychiatric Hospital on 16 June 2006 showed that the applicant had hepatitis C. On 29 June 2006 he was seen by an infectious diseases specialist. Treatment with a regimen of drugs was prescribed. It resulted in the remission of the hepatitis in June 2007. In December 2007 the doctor confirmed the full remission. When asked by the doctor about the possible causes of the infection, the applicant stated that he had shared his safety razor with inmates in the temporary detention facility.

Subsequent medical tests and check-ups did not show any deterioration in the applicant’s health. It appears from the submitted documents that the illness has remained dormant ever since.

On 11 June 2012 the applicant was arrested in Ivanovo for drug trafficking. The Leninskiy District Court of Ivanovo authorised his detention. He was placed in a temporary detention facility. In 2013 he was transferred to a psychiatric hospital in Kostroma Region.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani

The applicant was born in 1966 and lives in Kyiv.

Prior to the events in question, he had been actively involved in Ukrainian politics. From 25 May 2006 to 15 June 2007 and from 23 November 2007 to 23 May 2008 he was a Member of Parliament and from 26 December 2007 to 24 March 2010 he was First Deputy Minister of Justice. His father-in-law was President of the Supreme Court of Ukraine from 2006 to 2011.

Between November 2005 and June 2006 and then between June and March 2008 the applicant was one of the equity partners of the law firm Magisters & Partners Ltd (subsequently renamed Magisters Ltd).

In December 2008 the State-owned joint-stock company Naftogaz Ukrayiny (hereinafter referred to as “Naftogaz”), which was involved in several serious disputes before the Arbitration Institute of the Stockholm Chamber of Commerce, decided to extend the legal services agreement which it had concluded with Magisters Ltd in 2002 and which was about to expire.

On 23 February 2009 the applicant, acting in his capacity as First Deputy Minister of Justice, sent a letter to Naftogaz, at the latter’s request, informing it of the existence of exceptional conditions, as provided under domestic law, for purchasing legal services from Magisters Ltd without inviting bids from other law firms. It was noted that Magisters Ltd had been providing Naftogaz with legal services for a long time, including in the proceedings before the Stockholm Chamber of Commerce. Accordingly, changing the legal services’ provider would be costly and unjustified.

The applicant’s letter, which was subsequently submitted to the Economy Ministry, provided the basis for Naftogaz to contract further legal services from Magisters Ltd without pursuing a bidding procedure.

On 24 June 2009 the Prosecutor General’s Office (“the PGO”) opened a criminal case under Article 366 § 2 of the Criminal Code (“the CC”; see paragraph 40 below) in respect of alleged forgery of the letter of 23 February 2009 by unspecified officials at the Ministry of Justice. On 14 September 2009 the Kyiv Pecherskyy District Court (“the Pecherskyy Court”) quashed the above ruling after a complaint by the applicant. On 21 October 2009 and 15 July 2010 the Kyiv City Court of Appeal (“the Court of Appeal”) and the Supreme Court, respectively, upheld the first-instance court’s decision.

On 1 July 2009 the PGO opened another criminal case in respect of the same facts, this time under Article 364 § 2 of the CC (see paragraph 38 below) on suspicion of abuse of office with grave consequences by unspecified Ministry of Justice officials. On 28 December 2009 the Pecherskyy Court quashed that ruling. Its decision was upheld by the appellate court on 10 February 2010. It appears that it was not challenged on points of law.

On 5 August 2010 the PGO faxed the applicant “an invitation” to go to its offices at 10 a.m. the following day for questioning about “possible abuse of office and forgery by officials of the Ministry of Justice”.

On 6 August 2010 the PGO re-sent the “invitation” to the applicant. This time his questioning was expected at 9.30 a.m. on 9 August 2010. However, he did not appear before the prosecutor.

On 20 December 2010 the PGO instructed the Kyiv city police to establish the applicant’s whereabouts and to hand him a summons for questioning at 10 a.m. on 22 December 2010. The letter noted that the applicant had not been present at his address as established by the investigation.

Also on 20 December 2010 the PGO enquired with the State Border Service regarding the applicant’s trips abroad in 2009 and 2010. According to the information it received on 21 December 2010, the applicant had left Ukraine more than thirty times during the period in question.

On 21 December 2010 an official of the Kyiv city police wrote to the PGO that its information about the applicant’s address was outdated (he had sold the flat in 2003 and had not lived there since).

On 22 December 2010 the PGO enquired with the Kyiv city and regional address bureau about the applicant’s registered address and received a reply on 23 December 2010 that he lived in Yagotyn in the Kyiv region.

On 22 December 2010 the PGO instituted criminal proceedings against the applicant under Article 365 § 3 of the CC (exceeding of powers by an official leading to grave consequences – see paragraph 39 below). In describing the applicant’s actus reus, the prosecutor found that he had bypassed the registry of the Ministry of Justice when accepting the request from Naftogaz and issuing his letter in reply; that his conclusion about the existence of exceptional conditions for Naftogaz not to pursue a bidding procedure had been in contradiction with the applicable legal provisions; and that he had had no right to put that conclusion on official Ministry of Justice paper. The subsequent extension by Naftogaz of its contract with Magisters Ltd had caused considerable losses to the State budget.

Later that day the investigator called the applicant by telephone to summon him for questioning. At the time, he was in hospital with his wife, who was giving birth to their third child.

In the afternoon of 22 December 2010, the applicant appeared before the investigator and after being questioned was arrested at 4.50 p.m. under Articles 106 and 115 of the Code of Criminal Procedure (“the CCP”; see paragraph 41 below). According to the official report, the applicant had been arrested on the grounds that “eyewitnesses, including victims, directly identified [him] as the one who had committed the offence”. His arrest was justified by the necessity to prevent him evading justice or from obstructing the establishment of the truth, and to ensure the execution of an eventual court judgment. The arrest report had the following description of the facts giving rise to the prosecution:

“... during the period from 5 to 27 February 2009 [the applicant], exceeding his official powers, issued an expert conclusion with knowingly false information, as a result of which considerable damage, amounting to 1,697,600 [Ukrainian] hryvnias [equal to about 152,000 euros at the time] was caused to [Naftogaz]. In other words, he is suspected of committing a criminal offence under Article 365 § 3 of the [CC].”

The procedural rights of arrestees were also listed. The applicant signed it with a remark that he considered his arrest as unlawful given that he had complied with the investigator’s summons in accordance with the CCP and that there was no risk of him hindering the establishment of the truth as he was no longer a civil servant.

On 23 December 2010 the applicant was officially charged under Article 365 § 3 of the CC.

On 24 December 2010 the applicant challenged his arrest before a court. He claimed that the investigator had failed to refer to any factual circumstances to justify his arrest under Articles 106 and 115 of the CCP. The applicant contended that he had appeared before the investigator upon the latter’s first summons, despite the fact that on that day his wife had been in hospital giving birth. That indicated, in his opinion, that he had had no intention of absconding or hindering the investigation.

Also on 24 December 2010 the investigator applied to the court for the applicant to be held in pre-trial detention. The necessity of that preventive measure was explained as follows:

“Having regard to [the applicant’s] role in the commission of the offence and his causing serious damage to State interests, his age, state of health, family and financial situation, and other circumstances characterising him, the investigation has grounds to believe that [the applicant] will try to influence the witnesses in this case given his extensive networks in law-enforcement bodies and among judicial authorities.

Furthermore, the case file contains sufficient evidence showing that [the applicant] avoided appearing before the investigation authorities, that he travels abroad regularly and that he is absent from his registered address. That being so, if at liberty, he will abscond or hinder the investigation and the implementation of procedural decisions.

Therefore, the application of any other preventive measure in respect of the accused ... will not be able to ensure his proper procedural conduct and the fulfilment of procedural decisions...”

On the same day the Pecherskyy Court found that the case file did not contain sufficient information about the applicant in order to take a decision on the investigator’s application. In particular, the file did not contain sufficient information about the applicant’s health, family and financial situation or his occupation. The court therefore extended the applicant’s preliminary detention to ten days as a temporary preventive measure. The decision was not subject to appeal.

On 30 December 2010 the Pecherskyy Court allowed the investigator’s application (see paragraph 25 above) as well-founded and ordered the applicant’s pre-trial detention. The court further held that that finding rendered it unnecessary to examine alternative preventive measures. It rejected the applicant’s complaint about his arrest as unsubstantiated.

On 2 January 2011 the applicant appealed. He reiterated his earlier arguments on the alleged unlawfulness of his arrest by the investigator (see paragraph 24 above). Furthermore, he complained that the Pecherskyy Court had failed to justify the application of what was the most intrusive preventive measure available in his case. He argued that the court had not taken into account the fact that he was the sole breadwinner for his three children and his wife and that their newborn child was still in hospital. Positive character references and his requests for a non-custodial preventive measure had also been disregarded.

On 4 January 2011 the President of the Ukrainian Bar Association applied to the Court of Appeal, offering his personal surety for the applicant’s release. In the alternative, he indicated that he was ready to pay bail for the applicant.

On 13 January 2011 the Court of Appeal rejected the applicant’s appeal and upheld the findings and reasoning of the Pecherskyy Court’s decision of 30 December 2010. There was no reference in the ruling to the application by the Bar Association President.

On 31 January 2011 the applicant was additionally charged with forging an official document under Article 366 § 2 of the CC (see paragraph 40 below).

On the same day the pre-trial investigation was declared completed and the applicant was given access to the case file.

On 10 February 2011 the Pecherskyy Court extended the applicant’s pre-trial detention to three months, finding that there were no grounds to change the preliminary measure to a more lenient one.

On 15 February 2011 the investigator released the applicant under an undertaking not to abscond. The change of preventive measure was explained by the fact that the applicant could no longer influence witnesses or impede the investigation. The investigator also made a general reference to the applicant’s age, state of health, family and financial situation, as well as the fact that he had children to care for, permanent employment and positive character references.

As known from public available material, some media outlets linked the applicant’s release to a private meeting between his father-in-law as the President of the Supreme Court and the President of Ukraine a day earlier, on 14 February 2011. The applicant publicly denied those rumours.

The parties did not inform the Court of any further developments in the criminal proceedings against the applicant. Publicly available material shows that he was amnestied in December 2011.


Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Torture)

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

The applicant was born in 1986 and lives in Nizhniy Novgorod.

At about 10.30 a.m. on 24 May 2004 two police officers from the Sovetskiy district police visited the applicant and invited him to answer some questions. With the permission of his mother, the applicant, a minor at the time, accompanied them to the Sovetskiy district police station in Nizhniy Novgorod.

The applicant’s interview took place in room no. 306. He was asked questions concerning the rape of a girl he knew, but stated that he had nothing to do with the crime.

According to the applicant, some police officers tied him up and put him on the floor. About forty minutes later they untied him and requested that he confess to the rape. He refused. Four or five police officers punched and kicked him in the head and body, throttled him with a baton, put a plastic bag over his head and blocked off his access to air, sat and jumped on him having covered him with a blanket, grabbed him by the ears and forced him to do the splits.

Fearing that the ill-treatment would continue, the applicant signed a self-incriminating statement at the request of the police officers. He was then taken to see S., an investigator at the prosecutor’s office. After being questioned by S. he was released. He remained at the police station for approximately ten hours. No documents concerning his detention were issued.

On 25 and 26 May 2004 the applicant underwent various medical examinations, including by a forensic medical expert. Additional opinions by forensic medical experts were given later. According to the applicant’s medical records, he sustained the following injuries: a closed head injury, concussion, abrasions on and behind the ears and on the arms and knees, bruising on the right shoulder and ribcage and bruises on the buttocks. He was unable to attend school until 15 June 2004, having been issued a sick note on 26 May 2004 for concussion.

The rape victim gave a statement saying that the applicant was not the person who had raped her. No criminal proceedings were brought against him.

On 26 May 2004 the applicant’s mother lodged a complaint with the Sovetskiy district police, alleging that the police officers had subjected her son to ill-treatment in order to make him confess to a crime which he had never committed, and requesting that they be prosecuted. On 28 May 2004 her complaint was transferred to the Sovetskiy district prosecutor’s office.

In accordance with Article 24 § 1 (2) of the Code of Criminal Procedure (“CCrP”), six refusals to institute criminal proceedings against the police officers were issued on the grounds that the constituent elements of a crime were missing. They were each set aside because a comprehensive inquiry had not been carried out. On 20 February 2006 the Nizhniy Novgorod regional prosecutor’s office instituted criminal proceedings under Article 286 § 3 (a) of the Criminal Code (abuse of authority with the use of violence).

On 28 February 2006 the applicant was granted victim status.

Police officers A. and G. gave statements saying that on 24 May 2004 they had invited the applicant to accompany them to the police station. He had remained in room no. 306 until evening and they had been present in the room, as had police officer F., who had taken statements from him. They denied any ill-treatment of the applicant.

On 11 May 2006 the applicant failed to identify A. and G. during an identification parade.

On 14 July 2006 he identified operative police officer F. from a photograph as one of the men who had ill-treated him. On the same day the investigation was suspended on the grounds that the perpetrator had not been identified.

On 27 July 2006 the investigation was resumed and the applicant identified F. during an identification parade. During his examination as a suspect F. confirmed that on 24 May 2004 he had taken statements from the applicant in room no. 306, but denied using any violence.

On 24 August 2006 a face-to-face confrontation was carried out between the applicant and F. The applicant stated that F. had taken part in his illtreatment and had taken the confession from him. He was unable to recall any specific acts of violence by him.

On 25 August 2006 the criminal proceedings against F. were discontinued under Article 27 (1) § 1 of the CCrP on the grounds that he had not been involved in the crime.

On 10 January 2007 an on-site examination of room no. 306 was carried out.

On 26 January 2007 a confrontation was held between the applicant and police officers A. and G., who again both denied using any violence towards the applicant. The applicant stated that A. had taken part in his illtreatment, but he was unable to recall any specific acts of violence by him. He explained that he had not previously identified A. because he had poor eyesight. On the same day the investigating authority refused to bring criminal proceedings against A. on the grounds that the constituent elements of a crime were missing. The applicant stated that G. had not assaulted him, but had interviewed him and had been present during his ill-treatment.

On 26 January 2007 photographs of several other police officers were shown to the applicant. He did not identify the culprits.

On the same day the criminal proceedings were suspended on the grounds that the perpetrators had not been identified. The investigation was subsequently resumed and on 19 April 2007 was suspended again on the same grounds.

In 2008 the applicant brought a civil claim against the Russian Ministry of Finance, seeking 500,000 Russian roubles (RUB) in damages in connection with his torture by the police.

On 17 November 2008 the Sovetskiy District Court of Nizhniy Novgorod (“the District Court”) acknowledged a violation of the applicant’s right not to be subjected to treatment proscribed under Article 3 of the Convention, allowed the applicant’s civil claim in part and awarded him RUB 50,000 (about 1,450 euros (EUR)).

It referred to Convention caselaw under Article 3 concerning the State’s obligation to carry out an effective investigation, notably the case of Mikheyev v. Russia (no. 77617/01, 26 January 2006). It noted that the criminal proceedings had been initiated after six refusals to do so and that it had been acknowledged that the applicant had been the victim of a crime.

The District Court gave credence to the applicant’s mother’s version of events, which it found to be consistent with other evidence in the case, in particular statements by her that the applicant had had no injuries when he had left home with the police officers and that his health had appeared to have been damaged when he had returned from the police station. Noting that the respondent authorities and the Sovetskiy district police, acting as a third party in the proceedings, had submitted no evidence capable of proving that the applicant could have received the injuries (see paragraph 11 above) in other circumstances, the District Court established that they had been sustained during his detention at the police station.

The District Court noted that the applicant had been a minor at the time and that, according to his submissions at the hearing, various acts of violence, to which the police officers of the Sovetskiy district police had, in the exercise of their duties, subjected him (see paragraph 9 above), had caused him mental and physical suffering. According to the applicant, he had suffered severe pain as a result of the police officers’ violent actions, which had included being punched, kicked, throttled with a baton, being unable to breath, being sat on and jumped on, being forced to do the splits and so on. He had been dizzy, nauseous and sick. Over the next few days he had been weak and dizzy and had felt heaviness in the back of his head. When the police officers had tried to throttle him he had feared for his life. There had been no one to ask for help. The fact that he had suffered harm at the hands of the police, who were supposed to be there to protect people, had been especially traumatic. He had been scared, subdued and depressed. His honour and dignity had been damaged. In his eyes, by forcing him to sign the confession the police officers had humiliated him.

Having examined the evidence in its entirety, in particular the medical evidence of the applicant’s injuries, the District Court found that the applicant’s mental and physical suffering had been caused by the unlawful actions of the police officers of the Sovetskiy district police department, in particular by the inhuman and degrading treatment and by inflicting bodily harm. Therefore, his rights under Article 37 of the United Nations Convention on the Rights of the Child and Article 3 of the European Convention on Human Rights had been violated.

Relying on the Russian Constitution, in particular the provisions concerning the right to compensation for damage sustained as a result of the unlawful actions of State organs (Article 53), the District Court held that the State was responsible for the applicant’s ill-treatment regardless of the fact that the guilt of specific individuals had so far not been established.

The parties appealed against the judgment. The applicant contested the amount of compensation, considering it to be disproportionate to the suffering he had endured.

On 3 March 2009 the Nizhniy Novgorod Regional Court dismissed the applicant’s appeal and upheld the judgment. However, it emphasised the fact that, being a minor at the time, to be held at the police station for approximately ten hours was a long time, and that the authorities had been unable to provide any legitimate reasons for his detention.


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

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1951 and lives in Suwałki.

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

On 24 June 1975 the applicant bought his first agricultural property of 4.79 hectares consisting of 6 plots situated in Gawrych Ruda, in the municipality of Suwałki, between lakes Długie, Okrągłe and Wigry. Three wooden buildings – a house, a barn and a pigsty – were situated on one of the plots, no. 31/1.

On 12 January 1976 the Wigry Landscape Park (Park Krajobrazowy) was created.

On 9 October 1979 the applicant bought further property extending over 7.5 hectares in Gawrych Ruda, consisting of three plots classified as farmland, nos. 30/3, 30/4 and 30/5. There were no buildings situated on these plots.

On 27 June 1988 an ordinance by the Council of Ministers created the Wigry National Park. The applicant’s land was incorporated into the area covered by the park.

The applicant submitted that he had not been informed about this incorporation at the time and had not had any means of challenging this measure, either immediately following the action or after 10 October 1994, when Protocol No. 1 to the Convention entered into force in respect of Poland.

The applicant divided his land into 64 smaller plots, sold some of them to third parties and gave some of them to various members of his family. He currently owns plots Nos. 142/9, 30/12, 30/13, 30/14, 30/16, 30/17, 30/18, 30/19, 30/20, 30/23, 30/24, 30/25, 30/26, 30/27, 30/28, 30/29, 30/30, 30/31, 30/33, 30/34, 30/36 and 31/36.

In 1994 a new local land development plan was adopted by the local municipality. Under this plan the applicant’s plots could not be used for construction purposes.

On 21 September 1999 the Director of the Park informed the applicant that his property was located in the zone of the Lakes Wigry and Długie in the Wigry National Park and that the local development plan prohibited any construction for purposes other than maintaining the water reserves of harbours and beaches.

On 19 October 1999 the Director of the Park responded to a proposal from the applicant to sell his properties in Gawrych Ruda, comprising a total surface area of 123,300 square metres, to the Park. The Director asked the applicant to reassess the price, arguing that the proposed price had been based on the assumption that the plots concerned would be suitable for construction purposes, whereas they in fact consisted exclusively of forest and farmland. The applicant was also informed that, since his plots were situated between two lakes, they fell within the protection zone which extended 200 metres out from the shore of each lake and within which no construction was allowed.

The applicant submitted that from 1999 to 2004 four dwellings had been built on plots in the immediate vicinity of his land. The Government submitted that the Director of the Wigry National Park had given consent only with regard to the expansion of existing dwellings (supplementation of the existing farm buildings).

In 1999 and 2000 the applicant divided plot No. 31/1 on which the farm dwelling (siedlisko) was located and sold it to two third parties. The new owners requested and were granted permits to develop the buildings which already existed on the acquired property.

On 30 December 2003 the local land development plan adopted in 1994 expired.

On 25 January 2003 the applicant asked the Mayor of Suwałki to inform him of the designation of his property according to the 1994 local land development plan.

On 20 February 2003 the Mayor informed the applicant that his land was situated within the limits of the Wigry National Park, falling partly within the lake protection zone and that there was no provision for construction thereon. According to the local land development plan, the applicant’s property consisted of forest area and farmland on which further afforestation was recommended.

On 16 February 2003 the applicant asked the Mayor of Suwałki to pay him compensation amounting to 149,040 Polish zlotys (PLN) for amendments made to the local land development plan which had excluded the possibility of any construction on his property.

On 7 March 2003 the Mayor replied that the applicant’s request was ill-founded because the plan in question, which had been adopted by resolution of the Suwałki Municipal Council on 10 November 1994, had not changed the designation of the applicant’s property. The previous binding development plan did not provide for any construction on the applicant’s land, which was situated on agricultural areas with recommended afforestation.

On 21 May 2002 the applicant requested that a preliminary construction permit (warunki zabudowy i zagospodarowania terenu) be granted in respect of plots nos. 30/17 and 30/19.

On 24 October 2002 the Mayor of Suwałki refused to grant the permit requested. It was found that the planned development, consisting of the construction of a house and an outbuilding, would have been situated too close to the lake shore, in an area in which no construction was allowed according to local land development plan. Moreover, the Director of the Wigry National Park had voiced a negative opinion as regards the planned development.

The applicant appealed to the Suwałki Self-Government Board of Appeal (Samorządowe Kolegium Odwoławcze). He complained, among other things, that he had been treated in a discriminatory manner because owners of the adjacent plots had obtained building permits and had been able to develop their land.

On 20 December 2002 the Board upheld the challenged decision. The Board confirmed that the development was inadmissible taking into consideration the provisions of the 1994 local land development plan which expressly prohibited construction of any new buildings in the area concerned. As regards the allegedly discriminatory treatment, the Board found that the owners of some plots situated in the neighbourhood had indeed obtained building permits. However, some buildings had previously existed on their property, so the permits relied on by the applicant were not ones that concerned new constructions. The Board did not find any discriminatory treatment because the applicant’s situation had been legally and factually different from that of his neighbours. As regards the two building permits granted to the other persons living in the vicinity, the Board further noted that proceedings had been instituted as a matter of course to declare the respective decisions null and void.

The applicant lodged a complaint against this decision with the Supreme Administrative Court (Naczelny Sąd Administracyjny).

On 17 April 2003 the Supreme Administrative Court dismissed the applicant’s complaint. The Court endorsed the reasoning of the SelfGovernment Board of Appeal’s decision and found no breach of law in the administrative proceedings complained of.

In January 2003 the applicant submitted four applications requesting that the municipality issue preliminary construction permits with regard to plots nos. 30/12, 30/13, 30/16, 30/26 and 30/29. On 10 February 2003 the Mayor of Suwałki ordered the applicant to rectify some shortcomings in his applications. The applicant failed to do so and, consequently, they were not processed.

In February 2004 the applicant requested that the municipality issue preliminary construction permits in respect of plots nos. 30/12, 30/13 and 30/17. The applicant sought permission to develop his property by constructing a new residential building, an outbuilding, a septic tank and a well, with access to public road no. 142.

The municipality invited the Park Director to state his position with regard to the applicant’s request. The Director declined to give his consent to the applicant’s project.

The applicant appealed to the Environment Minister (Minister Środowiska), who quashed the decision and ordered that the case be reexamined. It was noted that the contested decision had been based on the Conservation of Nature Act of 2004, while it should have been based on the earlier Act of 1991.

On 14 February 2005 the Director again refused to give his consent to the applicant’s request. The Director emphasised the historical and landscape values of the area in question and was of the opinion that any construction there would have a negative influence on the unique values on the landscape which the National Park had to protect.

On 18 February 2005 the Director rectified the basis for his previous decision.

On 22 February 2005 the applicant appealed to the Environment Minister.

On 9 September 2005 the Environment Minister upheld the challenged decision.

The applicant lodged an appeal against this decision with the Warsaw Regional Administrative Court (Wojewódzki Sąd Administracyjny).

On 9 May 2006 the Warsaw Regional Administrative Court gave judgment, quashing both the challenged decision and the preceding decision of 14 February 2005, finding that the administrative authorities concerned had relied on the wrong legal basis. The Court went on to say that the first-instance decision had not been consistent with the second-instance decision. The first refused the applicant permission because the land in question had not been developed and “had never been intended for construction purposes” and the second contained in its reasoning the statement that “there were already other buildings in the vicinity, which did not justify granting further construction permits”.

On 3 September 2006 an inspection of the plots 30/12, 30/13 and 30/17 took place.

On 28 September 2006 the Director of the Wigry National Park again refused to give his consent to the planned development. He considered that the planned construction failed to fulfil at least one of the requirements laid down in Section 36 of the 1991 Act on Conservation of Nature, namely “it was not consistent with the aims of the Park” (nie służy celom parku), because of its commercial purpose, amongst other things, given that the applicant was intending to run a guesthouse there. The Director admitted that there were buildings in the close vicinity of the applicant’s property and that they had recently been developed. However, the applicant intended to build on previously undeveloped land some 500 metres wide which, in the Director’s view, would negatively affect the landscape and the lakeshore.

The applicant appealed to the Environment Minister.

On 29 September 2006 a new local development plan was adopted, which came into force on 30 November 2006. According to the plan, no construction of any buildings on the applicant’s property was allowed.

Additionally, on 25 October 2006 the Environment Minister replied to the parliamentary query (interpelacja poselska) made on behalf of the applicant by J.Z., a member of the Polish Parliament. The Minister confirmed, among other things, that the local land development plan for the Suwałki Municipality, in force before the 1994, had excluded any new construction on the applicant’s plots nos. 30/12, 30/13 and 30/17.

On 27 December 2006 the Mayor of Suwałki discontinued the administrative proceedings taking the view that the entry into force of the new local development plan rendered continuation of the proceedings pointless since, even if a decision on the merits were to be given, it would have to be declared ineffectual (stwierdzenie wygaśnięcia decyzji).

In the meantime, by resolution of 29 June 2005 – before the local development plan was drawn up – the Municipal Council of the Suwałki Municipality adopted framework local planning policy guidelines (studium kierunków i uwarunkowań zagospodarowania przestrzennego gminy) which provided that the plots belonging to the applicant were to become forest land and that no construction could be carried out on them.

On 22 November 2005 the applicant requested that the municipality rectify a breach of legal order in so far as the guidelines had reflected the National Park’s Director’s position that a ban on all construction projects should be imposed on his plot. He submitted that this measure amounted to de facto expropriation without any entitlement to compensation and consequently breached the Constitution in so far as the latter guarantees the right to the peaceful enjoyment of one’s possessions.

As the municipality refused to grant his request, he submitted a complaint to the Regional Administrative Court in Białystok, contesting the lawfulness of the local planning policy guidelines. He argued that the guidelines directly affected his situation. Not only had they made it impossible for him to pursue any construction projects, they also seriously restricted his ownership rights to such an extent that they became illusory. The guidelines inflicted a serious disadvantage on him in that he was unable to build a shed and had to rent storage space from his neighbours. The restrictions did not correspond to any pressing social need as his farm was not located in virgin territory. There were six farms in the vicinity, all of them with dwellings and sheds, the land was being used for agricultural purposes, there was a road and a power supply, and the installation of a sewage system was planned in the future.

By a judgment of 6 July 2006 the Białystok Regional Administrative Court dismissed his appeal. The court first addressed the municipality’s argument that the policy guidelines were not an individual administrative measure addressed to a particular individual, and capable of affecting his legal interests, and which therefore could not be challenged before an administrative court. The court found that, despite being essentially a policy instrument addressed primarily to other municipal bodies and guiding them in the implementation of local planning policy, they affected the applicant’s legal situation to a degree sufficient to hold that he had a legal interest in challenging their lawfulness in judicial proceedings. This was so because the adoption of such guidelines would necessarily influence the outcome of future proceedings in which individuals might seek the adoption of measures falling within the scope of the local planning policy.

The court further stated that the municipality’s authority to impose on individuals restrictions regarding the exercise of their property rights was determined by the applicable laws, including those regulating environmental protection. This authority was not absolute, however, as the municipality was also obliged to respect the public interest, to weigh it against the relevant private interests in the process of land planning and development, to act rationally and to respect the principle of proportionality.

In the present case, the Law on Nature Conservation of 2004 provided for an obligation for the municipality – when adopting the guidelines – to take due note of the position of the Director of the National Park which, in so far as it concerned plots of land situated within the limits of national parks and their nearest neighbourhood (otulina), was binding on the municipality.

The court noted that the applicant had never had a right to develop his property, meaning that the adoption of the framework local planning policy guidelines had not deprived him of any rights. The plan adopted in 1994 did not provide for the applicant’s land to be used for construction purposes. It only provided for the owners to maintain their buildings in good technical condition.

In the present case the restrictions imposed on the applicant were in compliance with the applicable laws and did not breach the applicant’s individual rights. In so far as he had referred to construction projects on neighbouring plots, this issue did not fall within the ambit of the present case, in which only the lawfulness of the measures imposed on him could be examined.

The applicant lodged a cassation against this judgment with the Supreme Administrative Court. He essentially argued that the measures complained of were in breach of Article 64 § 3 of the Constitution (see paragraph 59 below) and that they amounted to an excessive restriction of his ownership rights.

On 2 February 2007 the Supreme Administrative Court dismissed his cassation appeal. Firstly it held that the lower court’s view that the municipality was obliged to ascertain the Director’s position, and was bound by it, was correct.

55’s rights, had acted in compliance with the applicable laws, was correct. The manner in which the municipality had exercised its powers did not go beyond the limits defined by the constitutional protection of property. This conclusion was reinforced by the fact that the applicant’s plots were in any event not already subject to construction under the plan adopted in 1994.

The court went on to state:

“However, the court shared the conclusions of the cassation appeal that solutions adopted in the planning policy guidelines are capable of breaching the applicant’s legal interest, given that he had expressed his wish to change the use to which his plots had hitherto been put by pursuing construction projects on them. The fact that under the previous planning instruments concerning his land the applicant was also prevented from building on it can demonstrate only that his legal situation has not changed, but is not tantamount to saying that his interest as an owner has not been breached, given that he cannot bring his projects to fruition.”

In so far as the applicant argued that the measure complained of was not justified because a number of dwellings had been constructed on neighbouring plots, the court noted that this objection went to the substance of the position formulated by the Director of the National Park. It could not be examined in the proceedings as they were concerned only with the lawfulness of the framework guidelines.

On 8 April 2009 the applicant wrote to the Director of the National Park, proposing that the situation be settled by way of the sale to the Park of four of his plots (Nos. 30/28, 30/29, 30/30, 30/31) on the Wigry lake shore, for a price to be determined by an expert, in return for the Director’s agreement to change the guidelines.

In a letter of 23 April 2009 the Director rejected the applicant’s proposal. He referred to the planning history of his plots and the planning regulation which designated the applicant’s land for afforestation. He reiterated that even on the basis of the 1994 plan, which had expired on 31 December 2003, no construction had been allowed on plots no. 30/12 and 30/13. The situation did not change after adoption of the new plan. As regards the applicant’s proposal to sell some of his plots to the Park, the Director submitted that the Park was generally interested in buying up plots on its territory and did so as long as its financial means allowed. However, he stated that it was not possible to buy the plots in return for amendments to the local development plan.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Krzysztof Wojtyczek;Ledi Bianku;Paul Mahoney

The applicant was born in 1961 and lives in Tirana.

On 31 May 1996 the Tirana Commission recognised the applicant’s and other heirs inherited title to a plot of land measuring 23,500 sq. m, of which 5,000 sq. m were restored (“the first Commission decision”). They would be compensated by way of an equivalent plot of land within their property (i njihet dhe i kthehet ish pronarit pronësia mbi këtë truall duke kompensuar me truall ekuivalent brenda truallit të tij) in respect of a plot of land measuring 966 sq. m (“the first plot of land”), of which 188 sq. m were occupied with illegal constructions. The occupiers were entitled to buy the plot of land measuring 188 sq. m or rent it on the basis of an agreement to be concluded between the parties. It also recognised the right of first refusal of a public building measuring 444 sq. m situated within the plot of land measuring 966 sq. m. It further decided that the applicant and other heirs would be compensated in one of the ways provided for by law in respect of another plot of land measuring 3,961 sq. m (“the second plot of land”). Finally, it decided to examine the applicant’s and other heirs’ inherited property right in respect of the remaining plot of land measuring 13,454 sq. m at a later stage (“the third plot of land”). To date, no Commission decision has been taken in respect of the remaining plot of land measuring 13,454 sq. m.

On 30 April 1997 the applicant’s and other heirs’ inherited title over a plot of land measuring 6,154 sq. m, of which the first plot of land was part, was registered into the land register. The relevant data entered in the land register reads as follows:

“On 30 April 1997 is registered into the land register an unoccupied plot of land measuring 5,000 sq. m; an unoccupied plot of land measuring 966 sq. m, which was compensated by way of an equivalent plot of land within their property ...”

To date, the applicant has not been provided with any compensation concerning the first and second plots of land.

On the same day, the Tirana Commission, by virtue of another decision (“the second Commission decision”), recognised the applicant’s and other heirs’ inherited title to another plot of land measuring 2,900 sq. m (“the fourth plot of land”). Since the entire plot of land was occupied, it decided that the applicant and other heirs would be compensated in one of the ways provided for by law. To date, the applicant has not been provided with any compensation.