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

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

The applicant was born in 1967 in the Russian Federation and is currently serving a prison sentence in Ukraine.

In December 2002 a group of officers from the State Security Service of Ukraine (“SSU”) and the “Berkut” special armed unit received a mission order to arrest several individuals, including the applicant, implicated in a number of crimes committed as members of a criminal association affiliated with the Odessa Komsomol (Young Communist League), including illegal arms handling, terrorism, assault and robbery with a view to preparing a communist revolution.

At about 5 p.m. on 13 December 2002 six armed officers of the SSU and two officers of the “Berkut” unit arrived at a flat in Mykolayiv occupied at the material time by the applicant and three of his acquaintances, and ordered them to lie on the floor. Two of the applicant’s acquaintances complied with the order, while the applicant and another associate started shooting at the officers with firearms. As a result of the shooting, several officers sustained bodily injuries and damage to their protective gear. Having exhausted his cartridges, the applicant attempted to detonate an explosive. At this moment, the officers knocked him onto the floor, immobilised and handcuffed him.

At about 11 p.m. on the same date an investigator with the Mykolayiv Regional Prosecutor’s Office drafted an arrest report, indicating that the applicant was suspected, in particular, of attempting to murder law-enforcement officers, that he had been notified of his procedural rights, including the rights to remain silent and to obtain legal assistance, and that he had expressed the wish to have a lawyer.

At an unspecified time on the same date the applicant was referred to a forensic medical expert to determine the gravity of his bodily injuries. According to the applicant, the expert assessment was carried out on 13 December 2002. According to the Government, it was carried out the following day (14 December 2002). The assessment revealed that the applicant was suffering from a number of bruises and abrasions to his face, limbs, chest and knees, had swollen lips and a wound on his forehead. The expert qualified the injuries as “minor” and recorded that the applicant had complained of headaches and pain in his limbs and ribs and had explained that he had sustained his injuries when resisting arrest. In particular, he had fallen, had been beaten by the “Berkut” officers and had been subjected to martial arts.

At an unspecified time on 13 December 2002 the applicant and his co-detainees were placed in police custody in the Leninskyy District of Mykolayiv.

According to the applicant, in the evening of 13 December and the morning of 14 December 2002 he was beaten by police officers, possibly in retaliation for having wounded two officers from their unit earlier that year (on 22 November 2002). Subsequently, the officers questioned him concerning the offences of which he was suspected and solicited incriminating statements concerning a number of other individuals implicated in the revolutionary communist activity. As the applicant refused to cooperate, the officers resorted to various torture techniques. In particular, they suspended him head down from a crowbar by his hands, which were handcuffed behind his knees; beat him with rubber truncheons; stuck needles under his nails; put a gas mask on his face and interrupted his air flow; banged his head against the wall; and jumped on his chest.

According to the Government, the applicant’s first questioning did not take place until the afternoon of 14 December 2002. It was conducted in the presence of Ch., who was admitted to the proceedings as the applicant’s legal-aid lawyer. They presented a copy of the police report made on that date. According to that report, which was co-signed by the applicant and Ch., in the course of questioning the applicant informed the investigative authorities that he had arrived in Ukraine in autumn 2002 to advance the revolutionary struggle of the working people against their capitalist exploitation, in particular, by distributing a newspaper and organising trade unions and strike committees. The applicant further acknowledged that he possessed various arms without a licence and had wounded two police officers of the Leninskyy police on 22 November 2002, when they had stopped him in the street and ordered him to empty his pockets. When asked about the origin of the injuries on his face, the applicant said that they had been caused during his arrest operation.

On 20 December 2002 Ch. complained to the SSU investigator that the applicant’s health was deteriorating and demanded a medical assessment.

On the same date the applicant was referred to a doctor and a neurologist of the SSU polyclinics. They noted, in particular, that the applicant’s ribs hurt when touched and that his wrists were swollen. The applicant was diagnosed with chest, face and knee contusions and was prescribed an x-ray. It was also recommended that the use of handcuffs should be limited and various medications were prescribed.

On 26 December 2002 the applicant was again examined by a neurologist from the SSU polyclinics, who confirmed the above findings and prescribed further medication.

On 29 December 2002 S., who replaced Ch. as the applicant’s lawyer, lodged a complaint with the prosecutor’s office alleging that the applicant had been beaten and tortured by Leninskyy police officers and demanding a criminal investigation of his bodily injuries.

In January 2003 the Leninskyy police collected reports from eight police officers who had been on duty on 13 December 2002 by way of an internal investigation of the applicant’s ill-treatment allegations. Referring to those reports, in which the officers denied having witnessed or taken part in any ill-treatment, it was concluded that no ill-treatment had taken place. According to the applicant, neither he nor his lawyer had been informed of that investigation and its findings.

On 3 January 2003 the applicant was examined by medical staff of the Mykolayiv pre-trial detention centre (SIZO) and in-patient treatment for pulmonary pneumonia was prescribed.

On 13 January 2003 the prosecutor’s office refused to institute criminal proceedings in respect of the applicant’s alleged ill-treatment. It noted that the applicant had actively resisted his arrest, including by using a firearm, attempting to detonate an explosive and wounding some of the police officers. As the officers had had to break his violent resistance, there were no grounds for suspecting that the minor bodily injuries recorded by the forensic experts had resulted from the application of disproportionate force or from police ill-treatment. According to the applicant, neither he nor his lawyer had been apprised of that decision.

On 14 January 2003 the applicant underwent a further forensic assessment to determine whether he was still suffering from bodily injuries and, if so, their origin and timing. The expert concluded that the applicant was suffering from several wounds and a number of abrasions on various parts of his body, which had resulted from impacts with blunt objects. However, she could not say precisely when the injuries had been sustained.

On 15 January 2003 the applicant was examined by a doctor, who diagnosed him with suspected accumulation of blood in the pleural cavity (hemothorax), dystrophy and post-traumatic neuropathy of the wrists, and prescribed treatment.

On 24 January 2003 the hemothorax diagnosis was confirmed by an X-ray and the applicant underwent a biopsy, after which his state of health slowly started to improve. Subsequently, on numerous occasions in January and February 2003 the applicant was examined by doctors, who prescribed treatment for his wrist, dystrophy and pulmonary problems.

In February 2003 the applicant was transferred to the Odessa pre-trial detention centre (SIZO) no. 21 and subsequently placed in its medical unit for in-patient treatment of pneumonia. According to the applicant, his treatment was inadequate. In particular, the unit did not have the necessary antibiotics in stock and refused him an operation to remove a fractured rib fragment, which had allegedly pierced his lung.

In April 2003 the applicant was released from the medical unit as his health had improved and placed in a regular SIZO cell. According to him, the SIZO was generally overcrowded and the sanitary conditions were poor.

In April 2003 the applicant’s lawyer, S., was replaced by T., who lodged a fresh complaint with the prosecutor’s office demanding an investigation of the applicant’s purported ill-treatment in December 2002. He alleged that the applicant had not sustained any serious injuries in the course of his arrest, as once he had exhausted his cartridges, the trained officers, who had significantly outnumbered the two resisting suspects, had quickly immobilised him. On the other hand, once in custody, the applicant had been severely beaten up and tortured by the police officers. As a result, he had sustained serious injuries, including long-term impairment of the wrist nerve function and seven fractured ribs.

On 24 April 2003 the applicant underwent a further forensic medical assessment, in which a board of experts was asked to determine whether the applicant was suffering from any illnesses at the material time and whether he was fit for detention. The board of experts concluded that the applicant had consolidated fractures of seven ribs and residual traces of pulmonary pneumonia. They further concluded that the applicant’s state of health in general was stable and that he did not need any medical intervention at the material time.

On 7 May 2003 the prosecutor’s office again refused to institute criminal proceedings in respect of the applicant’s ill-treatment allegations, having found that there was no basis to conclude that his injuries had been indicative of ill-treatment or the application of disproportionate force by the arresting officers. The decision referred to the results of the internal investigation by the Leninskyy police in January 2003, to the findings of the medical experts who had qualified the applicant’s injuries as minor, and to the accounts of the arresting officers concerning the violent nature of the applicant’s resistance during his arrest. It was also noted that the applicant had not complained of purported ill-treatment until two weeks after the relevant events.

On 27 May 2003 the applicant, along with ten other individuals implicated in criminal activity as members of the Komsomol group, was committed to stand trial before the Odessa Regional Court of Appeal (“the Regional Court”) acting as a first-instance tribunal.

According to the applicant, on the trial days he was often summoned to an overcrowded transit area early in the morning and would sometimes have to wait for several hours before being transported to the court premises. Likewise, there would be a delay in transferring him from the transit box back to his regular cell upon his return. Catering arrangements were rarely made for the detainees on the days they were scheduled for court hearings. As a result, the applicant was always exhausted on the hearing days, which impeded his ability to concentrate during his trial.

According to the Government, pursuant to the applicable regulations, the detainees scheduled for court hearings were always supplied with either a packed lunch or a hot lunch at the court building. There were no transportation delays or other inconveniences affecting the applicant’s concentration in a way which was incompatible with his effective participation in the trial.

During the trial, the applicant acknowledged that he held revolutionary communist views and had taken part in some actions mistakenly qualified as robberies, as in fact they had been “expropriations” of property obtained by the capitalists by way of exploiting the working class, to be used for revolutionary purposes. He also acknowledged that he had handled firearms and explosives without a licence, had inflicted gunshot wounds on two police officers on 22 November 2002 and had violently resisted arrest. The applicant chose to remain silent concerning the details of robberies and other crimes with which he was charged, as they had been committed in association with other co-defendants. He also stated that he had been beaten and tortured by the police in December 2002, but that the ill-treatment had not influenced his testimonies or defence strategy.

In November 2003 B., one of the applicant’s co-defendants, died in detention. Following his death, some of the defendants complained that B. had been tortured to death and demanded an investigation into his and the others’ alleged ill-treatment by the investigative authorities.

The court ordered the prosecutor’s office to investigate those allegations. Following the investigation, the prosecutor’s office reported that there was no case to answer. In particular, B. had died of cancer and the applicant had been injured as a result of the application of reasonable force during his arrest.

On 19 July 2004 the Regional Court convicted the applicant of distribution of materials propagating violent revolt against the constitutional order; membership of a criminal association; several armed robberies; attempted murder of police officers; smuggling; and illegal handling of firearms and explosives. The applicant was sentenced to fourteen years’ imprisonment. The court dismissed his allegations of ill-treatment as unsubstantiated, having accepted the findings of the prosecutor’s office that his injuries had been caused during his arrest.

The applicant, represented by T., lodged a cassation appeal. According to an uncertified and unsigned copy of that appeal presented by the applicant to the Court, in his submissions before the Supreme Court he argued that he had been arbitrarily convicted of the robberies based on the inconsistent testimonies of his co-defendants. He further alleged that he had had no intent to kill the law-enforcement officers he had wounded, and that the motives for his participation in the revolutionary communist movement were benevolent and aimed at liberating the people from an oppressive political regime. He further reiterated his complaints of ill-treatment by the police and demanded a criminal investigation.

On 29 September 2004 the applicant signed an affidavit that he had no claims against the Odessa SIZO administration or any inmates.

On 26 July 2005 the Supreme Court upheld the applicant’s conviction and sentence in principle, having made some amendments to the text. It noted, in particular, that the applicant’s conviction was based on sufficient evidence, including testimonies by some of his co-defendants and victims of his crimes and that there was no case of ill-treatment to answer. The applicant’s conviction for distribution of propaganda was neither challenged nor reviewed.

In November 2005 the applicant was transferred from the Odessa SIZO to the Perekhrestivka no. 56 correctional colony in the Sumy Region to serve his sentence.

In October 2006 the applicant was again transferred to the Kryvyy Rig no. 80 correctional colony in the Dnipropetrovsk Region, at which a less strict regime was in place.

On 30 October 2006 the administration of the Dnipropetrovsk SIZO, where the applicant had arrived by way of transit, registered the applicant’s intention to go on hunger strike.

Following a medical report by the Dnipropetrovsk SIZO medical commission, which concluded that the applicant’s health was degenerating, he was force-fed on 8, 11, 12 and 14 November 2006.

On 16 November 2006 the applicant arrived at the Kryvyy Rig Colony.

On 17 November 2006 the applicant underwent a medical examination and was found to be suffering from dystrophy. He was also diagnosed with pancreatitis and heart and liver failure, and was prescribed in-patient treatment. On the same date the applicant stopped his hunger strike and continued to receive in-patient treatment for pancreatitis for most of December 2006.

In December 2006 and January 2007 the Ukrainian authorities received several applications from Russian-based public interest groups concerning the applicant’s alleged ill-treatment by the prison authorities during his transit and on the day of his arrival at the Kryvyy Rig Colony. They noted, in particular, that according to their information, the prison authorities had arbitrarily refused to dispatch the applicant’s correspondence while he had been in transit. They continued that, in protest at this refusal, on 24 October 2006 the applicant had started a hunger strike, which had been neither registered nor medically monitored until 30 October 2006, thus leading to the deterioration of his health. Subsequently the applicant had been force-fed, which procedure had been degrading. Furthermore, following his arrival at the Kryvyy Rig Colony, the wardens had ordered him to mop the floors as a sign of his inferiority and subservience, notwithstanding his critical state of exhaustion. As the applicant had refused to comply with this order, the wardens had beaten him up and he had received no proper medical assistance.

On 20 February and 6 April 2007 the applicant, questioned by an officer from the prosecutor’s office in connection with the above-mentioned applications, indicated in writing that he had no complaints against the prison authorities and that he had been satisfied with the quality of medical supervision and assistance provided to him.

On 18 April 2007 the prosecutor’s office informed the Consulate of the Russian Federation that the applicant had no complaints concerning the conditions of his detention or the medical assistance available to him. In particular, he had undergone treatment for various diseases, including dystrophy, and his weight had increased from 44 to 53kg.

In August 2007 several Russian-based public interest groups complained to the Ukrainian authorities that the prison administration had subjected the applicant to unfair treatment. In particular, his correspondence stored in his dresser had been arbitrarily seized.

On 8 November 2007 the prosecutor’s office denied that there had been any breaches of the applicant’s rights by the prison administration. It acknowledged that the allegations that some letters from the applicant’s file had been missing were true. However, rather than having been seized by the administration, they had been mistakenly recycled by another prisoner, who had been cleaning the cell. The applicant himself had refused to pursue any claims against the administration.

Between October 2007 and September 2008 the applicant received treatment for tuberculosis, which was subsequently considered cured.

On 22 September 2008 the Dnipropetrovsk department for the enforcement of sentences informed the applicant’s lawyer that the applicant had received all the necessary medical treatment and at the material time his health was satisfactory.

On 13 May 2009 the Regional Court refused to send the applicant’s lawyer in Russia copies of various documents from his case file, referring to the lack of necessary resources for copying and posting. It further notified the lawyer that he could study the case file in court and take any extracts he considered necessary, if he so wished.

In August 2010 the applicant was transferred to the Petrivska no. 24 colony.


No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Article 5-1-f - Expulsion);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application)

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Robert Spano

The applicant was born in 1977 and lives in London.

The applicant left Somalia with his family for the Netherlands in 1992 when he was fifteen years old. After claiming asylum, it would appear that the family were given a period of leave to remain in the Netherlands. During this period the applicant married and had a son, born in 1994. The applicant’s family travelled to the United Kingdom in 1998. The applicant initially remained in the Netherlands but on 11 December 1999 he arrived in the United Kingdom, where he claimed asylum. In doing so, he provided the immigration authorities with a false name and a false immigration history in order to avoid being sent back to the Netherlands. Although the asylum application was unsuccessful the applicant was granted exceptional leave to remain until 2004.

The applicant received ten criminal convictions over the period from 16 November 2001 to 4 August 2005. In December 2007 he was convicted of a public order offence and of failing to surrender. He was sentenced to four and a half months’ imprisonment.

On 29 January 2008 the applicant was served with notice that the Secretary of State intended to make a deportation order against him. The same letter refused an application for indefinite leave to remain in the United Kingdom. The applicant lodged an appeal against the decision to deport him on 1 February 2008. That appeal was dismissed on 30 June 2008 and his appeal rights were exhausted on 8 July 2008.

On 8 February 2008, when the applicant had served half of his final custodial sentence and was eligible for release from prison, he was detained under paragraph 2(2) of Schedule 3 to the Immigration Act 1971 pending the making of a deportation order against him. The Secretary of State signed the deportation order on 29 October 2008 and he was thereafter detained under paragraph 2(2) of Schedule 3 to the Immigration Act 1971 pending his removal from the United Kingdom.

On 2 June 2009 removal directions were set for 17 June 2009. However, they were cancelled on 16 June 2009 when the applicant made an application to this Court (application no. 26023/09), which granted an interim measure under Rule 39 of the Rules of Court.

The applicant’s detention was reviewed monthly and the review forms set out the reasons for maintaining detention. The form from July 2009 includes the following statement in reference to the Rule 39 measure: “Whilst this means that enforced removal is not possible, [the applicant] could reduce the length of time he spends in detention by withdrawing voluntarily”. A similar point features in some, if not all, of the later forms. The form for February 2010 notes that “Rule 39 ECHR is a barrier to removal but I note that FRS [Facilitated Return Scheme] is an option that should be explored to the full to expedite his removal from the UK”. Likewise, the form for July 2010 states that “[t]he length of detention is a direct result of his appeals against deportation and, although it is now 29 months, he has the real option of return to Somalia with the Facilitated Returns Scheme. This option should be further explained to the subject”. Furthermore, the form from December 2010 indicated that the applicant “could minimise his time in detention by withdrawing [the application to the ECHR] and taking up FRS which is offered each month” and that he could “end his detention by volunteering to return (with or without FRS) at any time”.

Applications for bail were refused on 9 November 2009, 21 April 2010 and 14 July 2010 as the Immigration Judges were not satisfied that the applicant would answer to any conditions set. On 9 November 2009 the Immigration Judge further noted that although the applicant had been in detention for a lengthy period, “the most recent period of detention is on account of delays with his own application to the European Court of Human Rights”.

The applicant made further representations against removal on 10 June 2010. Those representations were treated as an application for revocation of the deportation order, but on 17 November 2010 the Secretary of State refused to revoke the order. However, following an appeal by the applicant, the Secretary of State withdrew the refusal decision on 12 July 2011.

On 19 November 2010 the applicant filed a claim for judicial review, contending that his ongoing detention was unlawful. Permission was granted on 17 June 2011 but a further application for bail was refused. On 13 July 2011, some two weeks after the Court ruled in Sufi and Elmi v. the United Kingdom (nos. 8319/07 and 11449/07, 28 June 2011), the applicant was granted bail.

A hearing took place on 7 October 2011. Pursuant to the principles set down by the High Court in R. v. Durham Prison Governor ex parte Hardial Singh [1984] 1 WLR 704 (see section on domestic law below), the Secretary of State cannot lawfully detain a person pending removal for longer than a reasonable period and, if it becomes apparent that the deportation cannot be effected within a reasonable period, the detention will become unlawful even if the reasonable period has not yet expired. The applicant claimed that his detention was in breach of the principles (a) on or after 16 June 2009 when the Court granted an interim measure under Rule 39 of the Rules of Court; (b) on or immediately after 16 June 2010 when he applied to revoke the deportation order; or (c) at all points after the revocation refusal on 17 November 2010.

In a judgment dated 14 November 2011 the Administrative Court dismissed the claim. It noted that in deciding whether or not there was a realistic prospect that deportation would take place within a reasonable time, the risk of absconding or re-offending were “of paramount importance” but neither risk could be regarded as a “trump card”. Moreover, the fact that the period of detention occurred while the applicant was pursuing an appeal or comparable judicial process would also be a highly relevant factor, especially if there was a risk of absconding or reoffending.

The court noted that the applicant in the present case had six convictions for absconding and the Immigration Judges had consistently concluded that he was a significant abscond risk. It agreed with the Immigration Judges and also concluded that the risk was plainly substantial on the evidence available. Equally, the court took into account the fact that the applicant had family in the country at the times he absconded and therefore, contrary to his assertions, their presence did not remove the risk of absconding. Likewise, the Secretary of State’s detention reviews had characterised the risk of the applicant reoffending as “high”. The court further noted that the applicant’s offences became less serious and more intermittent as time went on. However, the fact remained that while he was free he was committing offences of such seriousness as to require him to be imprisoned, including robbery and public order offences. The court also considered whether alternatives to detention could be used such as electronic tagging, monitoring by telephone and regular reporting. However, given the applicant’s history of absconding, it concluded that the alternatives would not have been sufficient and there was an absence of adequate assurances from the applicant.

At the time the Administrative Court noted that the interim measure under Rule 39 of the Rules of Court, was awaiting a lead judgment on returns to Mogadishu (Sufi and Elmi, cited above) and it was clear that there would be no resolution of the applicant’s claim - and the interim measure would therefore not be lifted - before that judgment was handed down. However, the Administrative Court observed that at the time the interim measure was indicated, there was uncertainty about when that judgment could be expected. Moreover, while the applicants in Sufi and Elmi would have had a reasonable to good prospect of success, a positive outcome had not been inevitable. Consequently, the Administrative Court did not accept that there was not, at the time the interim measure was indicated, a realistic prospect of removing the applicant within a reasonable time.

Furthermore, the court did not accept that by the time of the applicant’s application for a revocation order, a reasonable period had already expired or that there was no realistic prospect of deportation within a reasonable time. In addition, it observed that the Secretary of State had been entitled to take two weeks to consider the applicant’s personal situation in light of the judgment in Sufi and Elmi. It therefore did not consider his continued detention up to 13 July 2011 to be unlawful.

The applicant was granted permission to appeal to the Court of Appeal. On appeal, he restated his arguments concerning the Hardial Singh principles which had been advanced in the court below. In addition, he submitted that the detention was vitiated by two public law errors that bore directly on the decision to detain: first, following the indication of the interim measure the Secretary of State had failed to take any reasonable steps to acquaint herself with when it might be lifted; and secondly, that the detention was maintained on the unlawful basis that the applicant could reduce the length of time in detention by withdrawing his application to the Court and returning voluntarily to Somalia. Finally, the applicant argued that his detention was in breach of Article 5 of the Convention.

In its judgment of 20 October 2012, tthe applicant’s appeal against deportation as well as three separate bail applications had been rejected by immigration judges, as well as the broader context in relation to the on-going litigation concerning removals to Somalia both before the domestic courts and tribunals as well as before this Court (see §§ 28 to 32). It took into consideration the fact that the Rule 39 measure applied in the applicant’s case did not involve any specific assessment of risk towards him by this Court, since at the material time this Court had adopted a fact-insensitive approach towards Rule 39 measures in respect of removals to Somalia, and noted the consequence that from October 2008 this Court had adjourned 116 applications concerning removal to Somalia. It also took account of correspondence between the Government and the registry of this Court from which it was clear that from April 2009 the Court would be granting a fact-insensitive Rule 39 measure to any applicant with removal directions to Mogadishu as well as the separate correspondence between the Government and this Court concerning the progress of Sufi and Elmi, cited above and the linked domestic case law.

With regard to the Hardial Singh ground, the Court of Appeal stated that there could be a realistic prospect of success without it being possible to specify or predict the date by which, or the period in which, removal can reasonably be expected to occur. It accepted that at the time of receipt of the Rule 39 measure in the applicant’s case, although it was not possible to say when the proceedings before the Court would be concluded, there was nonetheless a reasonable prospect of their being concluded and of removal being effected within a reasonable time. Likewise, the Court of Appeal saw no reason to differ from the overall conclusion of the lower court on the lawfulness of the applicant’s detention at the time of the application for revocation of the deportation order or after the judgment in Sufi and Elmi was handed down. Lord Justice Elias dissented on one point only: acknowledging that “there is no one right answer to the question what is a reasonable period”, he believed that the period of two weeks which elapsed following the judgment in Sufi and Elmi before the applicant was released from detention was not reasonable in all the circumstances.

With regard to the second ground of appeal, the court accepted that if the applicant were able to show that the decisions to maintain his detention were vitiated by public law he would succeed in establishing that the detention was unlawful and would have a claim of false imprisonment. However, the Court of Appeal found that although some of the passages in the review forms were not very happily expressed, they did not involve any legal error. Moreover, as the same conclusion was reached regardless of whether or not reference was made to the question of voluntary return, it appeared that the applicant’s refusal of this offer played no material part in the assessment of whether detention should be maintained.

Finally, the court found that Article 5 § 1(f) of the Convention added nothing of substance in the present case. In reaching this conclusion, it rejected the applicant’s assertion that Mikolenko v. Estonia, no. 10664/05, 8 October 2009 was authority for the proposition that the lack of a realistic prospect of deportation within a defined period rendered detention under Article 5 § 1(f) unlawful.

The Supreme Court refused the applicant leave to appeal on 26 March 2013.


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

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković

The applicant was born in 1962 and lives in Saransk.

In 2005 the applicant brought civil proceedings against the Ministry of Internal Affairs of the Republic of Mordoviya (“the Ministry”) seeking compensation for damage to his health caused during his service in the police (“the compensation”).

On 7 November 2005 the Leninskiy District Court of Saransk (“the District Court”) found in the applicant’s favour and ordered the Ministry: (a) to pay the applicant the compensation due to him for the period from 19 November 2004 to 31 October 2005 in the amount of 77,250.12 Russian roubles (RUB); and (b) starting from 1 November 2005, to make monthly compensation payments to the applicant of RUB 6,892.92 with subsequent indexation in accordance with the law. The judgment was not appealed against and became final on 22 November 2005.

However, on 12 October 2006, following a request lodged by the Ministry, the Presidium of the Supreme Court of the Republic of Mordoviya (“the Presidium”) quashed the final judgment by way of supervisory review and dismissed the applicant’s claims. The Presidium found that the firstinstance court had erroneously applied and interpreted substantive legal provisions which had resulted in their significant violation. The Presidium held that there was no basis under domestic law for awarding the applicant the compensation sought and that he was entitled instead to insurance payments. The applicant did not provide the Court with information as to whether he had applied for those payments and/or was receiving them.

The District Court’s judgment of 7 November 2005 had been duly enforced until it was quashed by way of supervisory review.


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

Krzysztof Wojtyczek;Ledi Bianku;Paul Mahoney

The applicant was born in 1956 and lives in Borki Nizińskie.

The applicant is married with two children. Prior to his early retirement he had been employed for 23 years and had paid his social security contributions to the State.

On 18 December 2001 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) to be granted the right to an early-retirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the so-called “EWK” pension.

Along with his application for a pension, the applicant submitted, among other documents concerning his daughter’s health condition, a medical certificate issued by a specialist doctor on 14 December 2001. The certificate stated that the child (born in 1990) suffered from, among other things, urinary tract infection and chronic headaches and that she was in need of her parent’s constant care.

On 20 December 2001 the Rzeszów Social Security Board issued a decision granting the applicant the right to an earlyretirement pension.

The Social Security Board initially suspended the payment of the pension until the end of the year 2001 due to the fact that the applicant was still working on the date of the decision.

On 31 December 2001 the applicant’s employment contract expired. It had been terminated by the employer with three-month notice for reasons attributable to the employer’s financial situation.

Consequently, on 1 January 2002 the Rzeszów Social Security Board started to pay the retirement pension in the net amount of 1,324.57 Polish zlotys (PLN) (approximately 370 euros (EUR)).

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

On an unspecified date the Rzeszów Social Security Board asked the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s daughter required the permanent care of a parent. On 13 September 2002 the doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care.

On 19 September 2002 the Rzeszów Social Security Board issued simultaneously two decisions in respect of the applicant.

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

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

On 25 September 2003 the Tarnobrzeg Regional Court (Sąd Okręgowy) dismissed the applicant’s appeal.

The applicant appealed against the first-instance judgment.

On 12 October 2004 the Rzeszów Court of Appeal dismissed the applicant’s further appeal. The domestic court held that the applicant had been rightfully divested of his right to a pension under the scheme provided by the 1989 Ordinance as he had not satisfied the requirement of necessary permanent care.

A professional lawyer prepared and lodged a cassation appeal against the second-instance judgment on the applicant’s behalf.

On 22 June 2004 the Supreme Court rejected the cassation appeal (odrzucił) on the ground that the lawyer had not properly described the circumstances which would justify the examination of the cassation appeal (okolicznośći uzasadniające rozpoznanie kasacji).

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

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

More than one year after the pension had been revoked, the applicant started working on the basis on a mandate contract. He worked for three months from 20 October until 22 December 2003.

In 2004 the applicant remained unemployed for ten months. On 25 October 2004 he started to work on a permanent basis.

The Government submitted that the applicant’s gross annual income was PLN 1,100 (approx. EUR 262) in 2003, PLN 2,056.67 (approx. EUR 456) in 2004, PLN 11,464.50 (approx. EUR 2,870) in 2005, PLN 12,480 (approx. EUR 3,285) in 2006, PLN 13,080 (approx. EUR 3,535) in 2007, PLN 14,111 (approx. EUR 3,813) in 2008, PLN 17,880 (approx. EUR 4,250) in 2009.

The Government also submitted that the applicant had owned a 4.59 ha farm and had received some direct payments from the Agency of Modernisation and Restructuring of Agriculture in the amount of PLN 1,948.43 (approx. EUR 430) in 2004, PLN 1,934.50 (approx. EUR 480) in 2005, 2,327.58 (approx. EUR 612) in 2006, PLN 2,161.67 (approx. EUR 584) in 2007, PLN 3,554.03 (approx. EUR 960) in 2008 and PLN 6,592.63 (approx. EUR 1,570) in 2009. They further submitted that “there were no doubts that the applicant’s farm had constituted a source of income”; they failed however to submit any evidence to support this statement. The applicant submitted that the income from his farm had been “minimal”.

The Government also maintained that the applicant’s wife had a gainful employment. In the years 2003-2007 she earned between 20 and 39% of the average gross salary in Poland.

The applicant has a son who also worked at the relevant time. He earned 5.25% of the average gross salary in Poland in 2002, 3.31% in 2003, 13.3% in 2004, 34.02% in 2005, 33.80% in 2007, 88.86% in 2008, 96.10% in 2009. In 2006 he apparently did not work.

Under the relevant laws currently in force, it appears that the applicant will qualify for a regular retirement pension when he turns sixtyfive in 2021.


CASE OF DONPRUT S.R.L. v. THE REPUBLIC OF MOLDOVA

Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property)

Branko Lubarda;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant is a taxi cab company from Chişinău. At the time of the events it employed approximately ninety persons and was functioning on the basis of a licence issued by the Licensing Chamber (Camera de Licențiere din Republica Moldova) in July 2005.

On 13 December 2007 the Licensing Chamber issued decision no. 4891 by which the applicant company’s licence was withdrawn in view of irregularities. In particular, the applicant company failed to request the inclusion of the names of two new persons employed in administrative positions and of new cars in its licence within the ten-day time-limit provided for by law.

On 18 January 2008 the applicant company initiated court proceedings against the Licensing Chamber seeking the annulment of its order of 13 December 2007. The applicant company submitted, inter alia, that the sanction applied to it had been disproportionally harsh and in breach of the company’s right to property. It argued that ninety persons employed by the company had lost their jobs as a result of the measure applied to it and that the company had suffered losses of approximately 170,000 Euros (EUR). The applicant company submitted that it could not comply with the requirement of including all fifty-two new cars in the licence in ten days because of new regulations instituted by the Government according to which all taxi cabs had to be equipped with receipt printing machines. The company did not have sufficient time to equip all new cars because of the lengthy bureaucratic procedure and because all the taxi cab companies were attempting to do that at the same time. The company submitted that it only managed to equip twenty-eight of its cars with the new equipment.

On 9 April 2008 the Chişinău Court of Appeal found in favour of the applicant company. Referring to the alleged breach by the applicant company of the ten-day time limit to inform the authorities about the new cars, the Court of Appeal found inter alia that the formalities linked to the equipment of those cars with receipt printing machines made it impossible for the applicant company to comply with the time-limit. In that context the Court of Appeal found that all the taxi cab companies were doing the same thing at the time, which created lengthy delays. As to the applicant company’s failure to inform the Licensing Chamber about two new employees at the company, the Court of Appeal held that that breach was minor and could not justify such a severe sanction. Relying on the Court’s judgments in the cases of Megadat.com SRL v. Moldova (no. 21151/04, 8 April 2008) and Bimer S.A. v. Moldova (no. 15084/03, 10 July 2007) the Court of Appeal found that the interference with the applicant company’s right to respect for its possessions had not been proportionate with the legitimate aim pursued and, thus, that the withdrawal of the applicant company’s licences had been in breach of Article 1 of Protocol No. 1 to the Convention.

On 23 September 2008 the Licensing Chamber lodged an appeal against the above judgment. It does not appear that the applicant company lodged written pleadings with the Supreme Court of Justice.

On 12 February 2009, after an oral hearing, the Supreme Court of Justice upheld the appeal lodged by the Licensing Chamber, quashed the judgment of the Court of Appeal and dismissed the applicant company’s action. The Supreme Court held that that according to the law in force, the breaches committed by the applicant company were sufficient ground for withdrawing its licence.


No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Criminal proceedings;Right to a fair trial;Article 6-1 - Reasonable time)

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos

The applicant was born in 1953 and lives in Glyka Nera. He is the executive director of the non-governmental organisation “Greek Helsinki Monitor”.

On 26 January 2007, 11 February 2007 and 7 March 2007, Greek Helsinki Monitor published on its website some press releases, in which, inter alia, it welcomed the concluding observations of the UN Committee on the Elimination of Discrimination Against Women (CEDAW) for Greece and criticised the domestic authorities’ responses to them.

On 4 March 2007, E.T., in her capacity as General Secretary for Gender Equality of the Ministry of Interior, Public Administration and Decentralisation, gave an interview which was published in a magazine included with a Sunday newspaper. In that interview the following statement was put to her:

“Greek Helsinki Monitor accuses you of withholding information and lying before the UN about the position of Roma women, minority women, and whether polygamy is practiced in Greece.”

E.T. gave the following answer:

“What they claim is extremely unfair. They lay the country open to criticism (εκθέτουν τη χώρα) – because what they claim is false. No other NGO shares the Monitor’s position. We, in our report, may not have fully documented everything, but no one can claim that Greece is an entirely patriarchic country and that nothing has been done all these years.”

On 1 April 2007 the same newspaper published a reply sent by the applicant, as executive director of Greek Helsinki Monitor, to E.T.’s comments, in which he asked E.T. to document her statements. On 1 June 2007 the applicant lodged a criminal complaint with the public prosecutor at the Athens First-Instance Court. He submitted that E.T. in the above-mentioned interview had made false statements about Greek Helsinki Monitor which amounted to slander committed through the press. The applicant expressed his wish to join the proceedings as civil party, initially for the amount of 100,000 euros (EUR), which he later reduced to EUR 44.

Following an urgent preliminary inquiry, to which E.T. was requested to provide a statement as a suspect in the case, on 10 January 2008 the public prosecutor at the Athens Court of First Instance dismissed the applicant’s criminal complaint and filed (αρχειοθέτησε) it away, in accordance with Article 47 of the Code of Criminal Procedure. In particular, the prosecutor considered that the above-mentioned statements made within the context of the interview, did not constitute facts but value judgments and in any event, they did not overcome the necessary threshold of similar exchanges between various bodies. The prosecutor also added that Greek Helsinki Monitor had used the same expression, that is to say it had described statements included in reports prepared by the Greek Government as “false”, in various press releases, in a much more heated tone.

On 6 February 2008, following an appeal by the applicant against the order by which his criminal complaint was filed away, the public prosecutor at the Athens Court of Appeal ordered E.T.’s criminal prosecution for slander made through the press, considering that the above-mentioned statements were susceptible of harming the applicant’s honour and reputation, not only individually, but also as representative of Greek Helsinki Monitor.

On the basis of the above, E.T. was indicted and 25 June 2008 was set as the hearing date before the three-member Athens Magistrates’ Court. On 26 May 2008 E.T. appealed against her indictment. On 17 June 2008 her appeal was dismissed by the Athens Council of Magistrate Judges.

The new hearing date before the three-member Athens Magistrates’ Court was set for 18 September 2008. On that date, at the beginning of the hearing of the case, E.T. raised for the first time an objection concerning lack of competence of the trial court, arguing that her status as a lawyer meant she could not have her case heard by a three-member magistrates’ court. By judgment no. 53833/08 published on the same date, the said court declared itself not to have competence and referred the case to the three-member Athens Court of Appeal for misdemeanours (hereafter the “Court of Appeal”). On 28 November 2008 the operative part of the judgment was corrected and on 6 April 2009, the case file was transmitted to the prosecution service at the Athens Court of Appeal, marked as extremely urgent.

The new hearing date was set for 13 May 2009. On that date, the applicant’s lawyer sent a letter to the court, requesting that the hearing be postponed as he could not attend it owing to other professional obligations. Additionally, K.D., a journalist who had interviewed E.T., had not been present and the applicant submitted that he considered her testimony essential. As a result, the Court of Appeal by its judgment no. 4044/09 postponed the hearing until 5 October 2009, citing a material witness’s absence as the reason. On 5 October 2009 the case was not heard because the courts had not been sitting owing to the parliamentary elections that had taken place the previous day.

The case was again set for hearing on 17 February 2010. On that date, E.T.’s lawyer submitted certificate no. 2063/2010 of the Greek Parliament, according to which E.T. had been elected as a deputy in the parliamentary elections of 4 October 2009. On that basis, he applied to the court to have the proceedings suspended in accordance with Article 62 of the Constitution in order for Parliament to give permission. The applicant objected to the suspension and filed written submissions in which he argued, inter alia, that it was not necessary for Parliament to grant leave for the criminal proceedings against E.T. as the acts for which she was accused had not taken place in the course of her parliamentary activities. He cited in that connection the Court’s cases Tsalkitzis v. Greece (no. 11801/04, 16 November 2006) and Syngelidis v. Greece (no. 24895/07, 11 February 2010). He further stressed that the impugned acts would become timebarred on 4 September 2010 and requested that the court proceed with examination on the merits of the case.

The Court of Appeal, after having held deliberations in camera, published judgment no. 1656/2010 by which it suspended the criminal proceedings against E.T. until the Greek Parliament had granted leave and, if such leave were not granted or if no action were taken in the threemonth period from the submission of the prosecutor’s request to the Greek Parliament, until her status as a parliamentarian ended. In respect of Article 62 of the Constitution and the applicant’s objection, the domestic court held the following:

“... In addition, since Parliament has not granted leave, the prosecution is declared inadmissible if it concerns an offence committed when the defendant was a member of parliament. If, however, criminal proceedings were initiated prior to that, when the defendant was not a member of parliament, then they are suspended until the said leave is granted or until the defendant’s status as a parliamentarian ends ... It should be noted that in the present case no matter arises concerning the interpretation of Articles 61, 62 and 20 § 1 of the Constitution ... and of Article 6 § 1 of the Convention, so as for the court to rule that Parliament’s leave is not required to conduct this trial because the above-mentioned act did not take place, according to the civil claimant’s allegations, in the context of her parliamentary duties. That is because the prosecutable offence (slander for an interview that the defendant gave to a newspaper in her capacity as General Secretary for Gender Equality of the Ministry of Interior, Public Administration and Decentralisation) clearly does not concern a private dispute; it should be examined if it relates and is linked to the political activity of the defendant-deputy and in general to the exercise of her parliamentary duties. However, examination of this matter and, eventually, any conclusion thereof can only be carried out by the competent authority, the Greek Parliament ...”

The decision was published on the date of the hearing, that is to say 17 February 2010, and was finalised (i.e. entered in a special book at the registry of the criminal court) on 10 August 2010. On 13 August 2010 the applicant lodged an application with the public prosecutor of the Court of Cassation requesting an examination of points of law of the said judgment. His request was rejected on the grounds that the Court of Appeal had rightly suspended the proceedings so that Parliament could grant leave, in accordance with Article 62 of the Constitution. On 19 August 2010 the case file was transferred to the public prosecutor of the Court of Cassation, who the next day sent it to the Minister of Justice. On 23 August 2010 the Minister of Justice transferred the case file to the Greek Parliament.

On 24 October 2010 the Special Permanent Committee of Parliamentary Ethics of the Greek Parliament, having taken a deposition from E.T., ruled unanimously that the requirements of Article 83 § 3 had been met and thus E.T.’s immunity should not be lifted. On 12 January 2011 the Plenary of the Greek Parliament dismissed the request for leave to continue the criminal proceedings. On 1 March 2011 the public prosecutor at the Court of Cassation notified the public prosecutor at the Court of Appeal of the outcome of Parliament’s vote on granting leave.

On 16 July 2012 the head of the General Directorate of Human Resources of the Greek Parliament notified the Ministry of Justice that E.T. had ceased to be member of parliament since 11 April 2012. On 26 October 2012 the Court of Appeal published judgment no. 8658/2012 in which it considered that the offence of which E.T. was accused had become timebarred as more than forty-two months had passed since its alleged commission. It consequently ended the criminal prosecution. The judgment was finalised on 21 March 2013.


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

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

The applicants complained of the inadequate conditions of their detention. Some applicants also raised complaints under the Article 13 of the Convention.


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

The applicants mainly complained of the inadequate conditions of their 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;Helen Keller;Pere Pastor Vilanova

Between 2005 and 2012 the applicants were charged and subsequently convicted of different criminal offences. Their cases were examined by appeal courts in the absence of the applicants and/or their lawyers. Convictions were upheld.

Information relevant to the criminal proceedings against the applicants appears in the appended table below.


The applicants complained of the non-enforcement of domestic decisions and of the lack of any effective remedy in domestic law. Some applicants also raised other complaints under the provisions of the Convention.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award

András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Robert Spano

The applicant was born in 1988 and lives in Istanbul.

The applicant is a Palestinian who lived in the Gaza Strip until March 2008. He claims to have lost approximately twenty-five relatives to Israeli attacks over the years, and to have personally suffered three missile attacks between 2000 and 2007. According to his allegations before the Court, he was directly and personally targeted in the most recent attack, in 2007, as the missile that struck near him on that day immediately followed an anonymous call on his mobile phone asking him to confirm his name, a ruse by the Israeli forces to identify his location. That attack left him severely injured and rendered him paraplegic.

On 25 March 2008 the applicant was taken to Turkey by a humanitarian organisation, the Foundation for Human Rights and Freedoms and Humanitarian Relief (İnsani Yardım Vakfı, “İHH”), along with fortynine other injured civilians from the Palestinian territories, to have access to better medical care.

In June 2008 the Ministry of the Interior (“the Ministry”) issued the group of Palestinians with short-term residence permits in view of their continuing medical treatment in Turkey.

On 30 April 2009 the applicant married a Turkish national, who was also his physiotherapist. Because he was married to a Turkish national, he was granted a long-term temporary residence permit valid until 17 May 2010.

On 12 August 2009, at approximately 11 a.m., two police officers from the Istanbul Police Headquarters arrived at the applicant’s house. They informed the applicant and his wife that his presence was required at the police headquarters for an interview and that he would be brought back afterwards. Once he was at the police headquarters, however, he was verbally informed that his temporary residence permit had been cancelled in accordance with orders received from the Ministry and that he would soon be deported from Turkey. Without being given any further information as to the reasons for the deportation order, when it would be carried out and where he would be deported to, the applicant was placed in the Kumkapı Foreigners’ Admission and Accommodation Centre attached to the Istanbul Police Headquarters.

According to the police record drawn up on the same day at 3.30 p.m., the Ministry had decided on 27 July 2009 to deport the applicant. This decision had been taken at the request of the National Intelligence Agency of Turkey, which had received intelligence regarding the applicant’s possible involvement in acts of international terrorism. Neither the Ministry’s deportation order nor the police record in question was served on the applicant.

Upon learning of the applicant’s detention, on 12 August 2009 his wife got in touch with a local human rights organisation, Mazlumder, which in turn contacted the UNHCR to seek assistance in securing the applicant’s release and halting his deportation. Mazlumder also informed the UNHCR of the poor conditions in which the applicant was being detained, including the fact that he had spent the night sleeping on a table, that he was not able to use the squat toilets at the detention centre, and that his medical treatment had been stopped on account of his detention.

On 14 August 2009 the applicant brought an action against the Ministry before the Ankara Administrative Court seeking the quashing of the deportation order, and also requested a stay of its execution until the matter had been examined by the administrative court. He maintained before the administrative court that the deportation order was unlawful, in view of his marriage to a Turkish citizen and possession of a residence permit valid until May 2010. The unlawful deportation order had moreover not been communicated to him at any point, nor had the Ministry sought his response prior to its delivery. The State authorities had similarly not put forward any concrete evidence to demonstrate why his continued presence in Turkey was perceived as a threat to national security. The applicant claimed that in the event of his deportation to Israel or elsewhere, his right to life and right to liberty and security would be put at risk, that he would face torture or even death at the hands of Israeli forces or their collaborators, and that the unity of his family would be destroyed. Furthermore, his medical treatment would be stopped, causing irreversible harm to his health. The applicant lastly complained that his detention was unlawful, and also maintained that the conditions of his detention at the Kumkapı Foreigners’ Admission and Accommodation Centre were highly degrading, in view of the lack of basic infrastructure to accommodate people with disabilities in his situation. As he was not able to use the squat toilet available at the place of detention, he had to be taken to a hotel nearby by police officers each time he had to relieve himself. It appears that his wife was occasionally able to accompany them to the hotel. His medical treatment was also stopped during his detention there, which was likely to result in the worsening of his condition.

In a decision delivered on the very same day, the Ankara Administrative Court asked the Ministry for a copy of its deportation order of 27 July 2009, as well as all the information and documents which formed the basis of that decision. Moreover, noting the irreversible nature of the harm that might be caused in the event of the applicant’s deportation, it ordered a stay of its execution until a further decision.

On the same date, the applicant’s lawyer applied for release from the Kumkapı Foreigners’ Admission and Accommodation Centre on the basis of the Ankara Administrative Court decision granting a stay of execution.

Following a decision of the Ministry on 18 August 2009, the applicant was released from the Kumkapı Foreigners’ Admission and Accommodation Centre.

On 9 September 2009 the Ministry submitted its replies to the Ankara Administrative Court in relation to the applicant’s request for the quashing of the deportation order. It stated that the decision to deport had been taken on the basis of a National Intelligence Agency report dated 16 July 2009. The report indicated that within the context of ongoing investigations in connection with international terrorism the applicant had been identified as having had contact with some telephone numbers registered in Israel on issues such as “procurement of arms, new recruits to the group, and measures to be taken to ensure the confidentiality of activities”. His presence in Turkey was therefore perceived as a risk to national security within the meaning of section 8 (5) of the Passport Act (Law no. 5682) and section 19 of the Act on the Residence and Travel of Foreigners in Turkey (Law no. 5683). It also submitted a number of supporting documents as an annex. These documents were not made available to the applicant, nor were they later submitted to the Court.

On 16 September 2009 the Ankara Administrative Court decided that there were no elements warranting the suspension of the applicant’s deportation. It thus reversed its previous decision of 14 August 2009.

On 30 September 2009 the applicant appealed against the decision of the Ankara Administrative Court lifting the stay of execution of his deportation. He submitted that the Ministry had not put forward any tangible evidence in support of its allegation that he posed a threat to national security such as to necessitate his deportation from Turkey. If the Ministry went through with its decision, his physical integrity would be irreparably damaged on account of the termination of the medical treatment he was undergoing in Istanbul. Furthermore, his deportation would disrupt the family life he had since established in Turkey, and would deprive him of the vital assistance and care undertaken by his wife. In addition, if deported he would most certainly be subjected to torture by Israeli forces and his life would be put at risk. Lastly, the applicant drew the administrative court’s attention to his pending application to the UNHCR for refugee status, and also complained of the conditions in which he had been detained between 12 and 18 August 2009 at the Kumkapı Foreigners’ Admission and Accommodation Centre, which had lacked basic amenities to accommodate people with disabilities, such as a non-squat toilet and a lift.

On 14 October 2009 the Ankara Regional Administrative Court rejected the applicant’s appeal against the Ankara Administrative Court’s decision of 16 September 2009, which had effectively lifted the stay of execution of his deportation, without providing any reasons.

In the meantime, on 25 September 2009 the applicant had applied to the UNHCR for refugee status. On 22 October 2009 he was interviewed by the Ankara office of the UNHCR as part of the refugee status determination process.

On 22 December 2009 the applicant’s lawyer was informed by the State authorities that, pursuant to the latest decision of the Ankara Regional Administrative Court, the applicant was requested to leave Turkey within fifteen days, and that if he refused to comply with that request he would be deported forcibly.

On 24 December 2009 the applicant claimed asylum in Turkey. He stated that he had been forced to leave Gaza because of the persecution he had faced there. Following an Israeli attack on his house in Gaza, which had left him severely injured, he had come to Turkey to seek medical treatment. This treatment was still ongoing, and in the meantime he had married a Turkish citizen. He claimed that although he had never been involved in any acts of violence, he was wanted by Israel as a terrorist. Returning to his country would entail a great risk to his life, if not from Israeli attacks then because of the termination of his treatment. He would also face torture if captured by the Israelis.

On the same date, the applicant’s lawyer also sent a letter to the Foreigners’ Department of the Istanbul Police Headquarters, reiterating the grounds of appeal against the applicant’s deportation. The lawyer emphasised in the letter that the Ministry’s deportation order had not been served on the applicant, and that the administrative proceedings for the annulment of the deportation order were still pending before the Ankara Administrative Court, which had not yet delivered a judgment on the merits. She referred in this regard to the National Action Plan on Asylum and Immigration, adopted by the Government of Turkey on 25 March 2005, which held that the execution of deportation decisions was to be suspended once administrative proceedings seeking to overturn them had been instituted.

On 28 December 2009 the applicant’s representative asked the Court, under Rule 39 of its Rules of Court, to adopt an interim measure to halt the applicant’s imminent deportation from Turkey.

On 4 January 2010 the President of the Chamber to which the case was allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government of Turkey, under Rule 39 of the Rules of Court, that the applicant should not be deported to Israel or the Gaza Strip until the delivery of a decision by the UNHCR in his regard.

In the light of the interim measure applied by the Court, on 6 January 2010 the Foreigners’ Department of the Istanbul Police Headquarters ordered that the applicant be granted a three-month temporary residence permit, renewable until further notice.

On 22 April 2010 the Ankara Administrative Court quashed the deportation decision of 27 July 2009, as the applicant’s deportation had become unfeasible in view of the interim measure applied by the Court, which was binding on the Turkish authorities. The Ministry appealed against this judgment.

On 31 December 2010 the Supreme Administrative Court upheld the judgment of the Ankara Administrative Court, and on 6 July 2012 it refused the Ministry’s rectification request.

In the meantime, following a number of interviews, on 27 October 2010 the General Security Directorate of the Ministry granted the applicant a temporary residence permit for six months, apparently renewable, in view of his status as an asylum seeker.

On 1 June 2011 the applicant informed the Turkish authorities that he wanted to withdraw his asylum claim, for reasons unknown to the Court.

On 18 March 2013 the General Security Directorate of the Ministry decided to grant the applicant a long-term residence permit, valid for one year, on the basis of evidence that he had established a genuine family life in Turkey. The decision also indicated that this permit would be extended in due course if further inquiries in respect of his marriage demonstrated that he was continuing to maintain a family life in Turkey.

In June 2013 the applicant withdrew his application to the UNHCR for refugee status in order to avoid being resettled to a safe third country as a result of the refugee status determination process, which might have entailed separation from his wife.


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

The applicants are a family. They were born in 1971, 1968, 1992, 1995, and live in Samara.

On 26 April 2004 the Oktyabrskiy District Court of Samara (“the Oktyabrskiy District Court”) ordered, inter alia, the management of the State unitary enterprise “16th Military Plant” (“the company”) to provide the applicants with a suitable dwelling, while keeping their names on the list of persons awaiting housing.

On 11 May 2004 the judgment came into force.

On 28 May 2004 the Department of the Bailiffs’ Service for Oktyabrskiy District of Samara opened the enforcement proceedings.

On 22 December 2004 the enforcement proceedings were terminated as the company had no available residential accommodation.

On 1 October 2007, due to the reorganisation of the company (see paragraph 16 below), the enforcement file was sent to the Department of the Bailiffs’ Service for the Engelsskiy District of Saratov Region.

On 21 April 2008 the bailiffs ruled that it was impossible to enforce the judgment in the part relating to the housing, as the new debtor, FGUP 9 TSARZ (see paragraph 16 below), had no available accommodation. The enforcement proceedings were terminated.

On 26 August 2009 the Engelsskiy District Court of Saratov Region, following the bailiffs’ application, replaced the debtor in the enforcement proceedings from FGUP 9 TSARZ to OAO 9 TSARZ (see paragraph 17 below).

On 14 October 2009 the Oktyabrskiy District Court clarified the judgment of 26 April 2004 stating that the applicants should be provided with an apartment in Samara.

Several times in 2004-2011 the parties applied to the Oktyabrskiy District Court for changing the mode of enforcement of the judgment. Each time the courts rejected the applications finding that a payment of the amount representing the cost of an apartment would be equal to modifying the original judgment.

The judgment of 26 April 2004 remained unenforced.

The company was incorporated as a municipal unitary enterprise. According to its articles of association, the company’s aim was to produce goods and render services for the Ministry of Defense of Russia, as well as for meeting other public needs and making a profit.

Under the Order of the Federal Agency for State Property Management dated 22 September 2005 the company was joined to FGUP 9 TSARZ (FGUP 9 Tsentralnyy Avtomobilnyy Remontnyy Zavod – ФГУП 9 ЦАРЗ or ФГУП 9 Центральный Автомобильный Ремонтный Завод). The reorganisation was completed on 13 February 2007, and the latter company became the universal successor of the company.

In accordance with the Decree of the President of Russia of 15 September 2008 and the Decree of the Russian Government of 22 November 2008, FGUP 9 TSARZ was further reorganized into OAO 9 TSARZ, a publicly-traded private open joint-stock company incorporated under the laws of Russia.


Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

Aleš Pejchal;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Pauliine Koskelo;Robert Spano

On 23 March 2014 Týden.cz, an internet news portal, published an article with the headline “A ‘European’ dispute. She escaped communism and lost her property. Czech Republic reluctant to compensate her” (“‘Evropský’ spor. Utekla před komunisty a přišla o majetek. ČR ji nechce odškodnit”). The journalist introduced the applicant’s case by saying that she had been struggling against the Czech State for more than ten years because her land had been confiscated following her escape. Up to the present day, she had repeatedly won her case before the European Court of Human Rights. However, the issue of her compensation had become more complicated. The article contained the following statement:

“An appeal to the Constitutional Court did not help either. So she applied to the European Court of Human Rights, which noted ‘The Court is struck by the fact that in 1997 the municipality of Třebíč was able to take possession of the property on the basis of a 1971 judgment that had been quashed because, in the words of the Judicial Rehabilitation Act, it was incompatible with the principles of a democratic society’.

Eventually, the Czech Republic applied for a review of the judgment, which is the equivalent of an appeal, but was unsuccessful. Since then, complicated negotiations as to how the Government would compensate Ms Žáková have been underway. ‘I approached the Government Agent with a proposal for settlement regarding the provision of just satisfaction, which among other things is for pecuniary damage because there had been an interference with her property rights,’ stated Žáková’s lawyer [V.K.], adding that she had been deprived of her property in 1997 in breach of the Additional Protocol to the Convention on Human Rights.

The State is back tracking

‘That’s why I suggested providing her with compensation in the amount of the market value of the seized property and compensation for the loss of rent since 1997’, [V.K.] said. But in fact, Sylva Žáková was willing, according to him, to accept one tenth of the market rent.

However, the State refused [this proposal], noting that the Government were prepared to accept only compensation for the plots of land in the amount of their market value in 1997. Thus, it would be essentially lower than the current value; moreover, such compensation would not include reparation for the period when Sylvia Žáková had been unable to dispose of the land. ‘I confess that the Government’s approach in this regard seems to me at least dishonest and contravenes the basic principles of justice and our law, too,’ added lawyer [V.K.]. The Agent of the State, or more precisely, the Ministry of Justice for which he works, has refused to comment as the negotiations, according to him, are confidential.”

The original version of the article is as follows:

“Nepomohla ani stížnost k Ústavnímu soudu. Obrátila se proto na Evropský soud pro lidská práva. ‘Soudní dvůr je udiven skutečností, že v roce 1997 byla obec Třebíč schopna zmocnit se majetku na základě rozsudku z roku 1971, který byl zrušen, protože byl podle zákona o soudní rehabilitaci neslučitelný s principy demokratické společnosti,’ konstatoval soud.

Česká republika nakonec podala k soudu žádost o přezkoumání rozsudku, což je obdoba odvolání, ale bezúspěšně. Od té doby probíhají složitá jednání o tom, jakým způsobem vláda paní Žákovou odškodní. ‘Obrátil jsem se na vládního zmocněnce s návrhem dohody ohledně poskytnutí přiměřeného zadostiučinění, které mimo jiné spočívá ve způsobení majetkové škody, neboť došlo k zásahu do jejích majetkových práv,’ konstatoval advokát Žákové [V.K.] s tím, že její majetek jí byl v roce 1997 odňat v rozporu s Dodatkovým protokolem k Úmluvě o lidských právech.

Stát se cuká

‘Proto jsem navrhl, aby jí byla poskytnuta náhrada ve výši tržní ceny odňatého majetku a náhrada za ušlý nájem za dobu od roku 1997 do současnosti,’ řekl [V.K.] Sylvia Žáková byla přitom podle jeho slov ochotná přistoupit na desetinu tržního nájemného.

To však stát odmítl s tím, že je vláda ochotná přistoupit pouze na náhradu pozemků ve výši jejich tržní ceny v roce 1997. Tedy podstatně nižší než nyní, navíc by tato náhrada neobsahovala odškodnění za dobu, kdy s nimi Sylvia Žáková nemohla disponovat. ‘Přiznávám, že postoj vlády mi v tomto ohledu připadá mírně řečeno neseriózní a je v rozporu se základními zásady spravedlnosti a také s našimi zákony,’ dodal advokát [V.K.]. Zmocněnec státu, respektive ministerstvo spravedlnosti, pro které pracuje, se k tomu odmítl vyjádřit, protože jsou podle něj tato jednání důvěrná.”


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home)

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

The applicant was born in 1980 and lives in Moscow.

Prior to its privatisation, the 31.1 square-metre flat at 12-5 Ulitsa Lavochkina, Moscow, had been owned by the City of Moscow. Sh. had resided there as a tenant under the social housing agreement with the city.

On 17 May 2003 Sh. died.

On 25 July 2003 Sh.’s ex-boyfriend, Un., and an unidentified person impersonating Sh. had their marriage registered in the Tambov Region. Un. then applied to the local housing office, where he presented his marriage certificate and was registered as residing in Sh.’s flat as a tenant. On 31 October 2003 the title to the flat was transferred to Un. under the privatisation scheme. On 25 December 2003 the privatisation transaction and Un.’s title to the flat were registered by the Moscow City Committee for Registration of Real Estate Transactions (the “City Registration Committee”).

On an unspecified date the prosecutor’s office opened a criminal investigation into Un.’s activities in respect of the flat and on 5 May 2005 the Golovinskiy District Court of Moscow found him guilty of fraud and sentenced him to a term of imprisonment. The flat was transferred to the Department for Housing of the City of Moscow (the “Housing Department”).

On 30 August 2005 the District Court granted claims lodged by the prosecutor on behalf of the city authorities and ordered the annulment of Un.’s marriage certificate and the privatisation agreement, and the revocation of his title to the flat. The parties did not appeal against that judgment and it became final.

When Un. was released in 2011, having served a prison sentence for fraud, the city authorities had not yet informed the City Registration Committee of the judgments of 5 May and 30 August 2005. Un. was therefore still officially registered as the flat’s owner and on 28 October 2011 he sold the flat to S. On 8 November 2011 the City Registration Committee registered the sale agreement and S.’s title to the flat.

On 22 December 2011 S. sold the flat to the applicant. The sale agreement was registered by the City Registration Committee on 29 December 2011. The applicant moved in and resided in the flat with his girlfriend.

On an unspecified date the Housing Department brought a civil claim against the applicant seeking, inter alia, (1) the revocation of the applicant’s title to the flat and his eviction; and (2) restitution of the flat to the City of Moscow.

On 30 October 2012 the District Court examined the case. It conceded that the applicant was a bona fide purchaser of the flat. Nevertheless, relying on Article 302 of the Russian Civil Code, the court granted the Housing Department’s claims, pointing out that it remained open to the applicant to sue S. in order to have his rights protected. The applicant appealed.

On 12 March 2013 the Moscow City Court upheld the judgment of 30 October 2012 on appeal.

On 3 June 2013 the City Court refused to grant the applicant leave to lodge a cassation appeal against the judgments of 30 October and 12 March 2013.

On 12 February 2014 the Supreme Court of the Russian Federation, in a single-judge formation, dismissed a cassation appeal lodged by the applicant against the judgments of 30 October and 12 March 2013.

On 26 July 2013 the district bailiff’s service instituted enforcement proceedings in respect of the judgment of 30 October 2012. According to the applicant, he was evicted on 18 November 2013.

On 22 January 2014 the Sergiyev Posad Town Court of the Moscow Region granted a claim for damages against S. lodged by the applicant and awarded him 4,330,000 Russian roubles (RUB). On 28 February 2014 the judgment became final.

On an unspecified date the bailiff instituted enforcement proceedings in respect of the judgment of 22 January 2014. On 17 June 2014 the proceedings were discontinued as it had been impossible to establish S.’s whereabouts.

According to the Government, on 14 August 2014 the bailiff’s superior quashed the decision of 17 June 2014 and the enforcement proceedings are still pending.


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

The applicant, Mr Merab Gorgadze, is a Georgian national, who was born in 1977 and lives in Batumi. He was represented before the Court by Mr L. Mamuladze, a lawyer practising in Batumi. The Georgian Government (“the Government”) were represented by their Agent, Mr L. Meskhoradze of the Ministry of Justice.

The facts of the case, as submitted by the applicant and according to the case file, may be summarised as follows.

On 5 July 2009 the applicant was arrested on suspicion of unlawful purchase, possession and sale of drugs. According to the record of his personal search, nine sachets containing a brownish substance were found in the right back pocket of his trousers. The search was carried out on the spot by two police officers, who rejected the applicant’s request for the attendance of independent witnesses, reasoning that there was a risk of him hiding or destroying the evidence. The applicant refused to sign the search record and specified that he had had no drugs on him.

According to the arrest report, which was drawn up immediately after the search, the applicant had multiple injuries on his body and face. When asked about the source of the injuries, the applicant, as noted in the report, claimed that he had fallen to the ground when running away from the police officers.

Later, after his transfer to the police station, an ambulance was called for the applicant. A doctor on duty conducted a visual examination and noted that the applicant had a hematoma on his left eye and several bruises on his chest.

On 6 July 2009 in prison the applicant was seen by a prosecutor. In the presence of his lawyer, the applicant complained that he had been severely beaten by police officers immediately after his arrest and also at the police station. A special note was drawn up detailing the applicant’s allegations, including the chain of events, the time, location, duration and methods of his ill-treatment. The applicant alleged that he had been threatened with rape.

The next day, the police officers who had arrested the applicant conducted an examination of the place of his arrest and concluded that the surface was uneven, with lots of rocks and holes.

On 17 November 2009 the Batumi City Court, whilst dropping the drug-dealing charges, convicted the applicant for unlawful possession of drugs in a particularly large quantity and sentenced him to eleven years’ imprisonment and a fine. By a decision of 21 January 2010 the Kutaisi Court of Appeal upheld the applicant’s conviction in full. Like the trial court, the appeal court, based its conclusions on the statements of the two police officers who had arrested the applicant and conducted his personal search. Both instances concluded that the applicant’s injuries had been the result of him having fallen several times during his attempt to escape.

On 17 March 2010 the Supreme Court of Georgia rejected an appeal on points of law lodged by the applicant. As it appears from the case file, despite his complaints, no criminal proceedings have been instituted into the circumstances of the applicant’s alleged ill-treatment.

On 11 July 2013 the application was communicated to the respondent Government. An information note, in Georgian, on the proceedings after communication of an application was forwarded at the same time to the applicant. It included the information that the nature of all friendly settlement negotiations was strictly confidential. On 29 November 2013 the Government submitted a friendly-settlement proposal within the framework of the proceedings before the Court, and on 3 December 2013 the Court sent the Government’s proposal to the applicant.

By their letter of 11 April 2014 the Government informed the Court that the applicant had disclosed the details of the friendly-settlement negotiations conducted between the parties to the media, in violation of the confidentiality rule as enshrined in Rule 62 § 2 of the Rules of Court. They accordingly invited the Court to declare the application inadmissible.

In their letter the Government referred the Court to an interview of the applicant published by the news agency Reportiori on 8 April 2014. In that interview the applicant provided a brief factual summary of his case and disclosed the specific amount proposed by the Government with a view to securing a friendly settlement. He further claimed that his refusal to accept the compensation offered had “irritated the Minister of Justice, following which they have sent to Strasbourg documents with distorted facts.”

It appears that even before that date, on 29 January 2014, another media source – news portal Kvira, published another interview with the applicant in which the latter likewise discussed the Government’s friendlysettlement proposal and referred to the specific amount proposed by the Government. The article was accompanied by scanned copies of the relevant letters from the Court.


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

The applicant, Mr Hugo Cristian Perez Lizaso, is a Swedish and Uruguayan national, who was born in 1976 and lives in Solna. He was represented before the Court by Mr Jussi Sarvikivi, a lawyer practising in Helsinki.

The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

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

The applicant is a Swedish national who has certain family ties to Uruguay and also has Uruguayan citizenship. The applicant was wanted in Uruguay from at least 2010 as he was suspected of aggravated extortion committed in February 2009. Three other persons, including the applicant’s brother, were convicted in Uruguay on 28 September 2010 for having participated in the same crime of which the applicant was suspected. A prison sentence of 5 years and 8 months was imposed on the brother and a sentence of 5 years and 4 months on the two other perpetrators. The Uruguayan authorities tried to locate the applicant through Interpol, issuing a Red Notice alert about him.

On 11 December 2010 the applicant was arrested in Finland.

On 14 December 2010 the Vantaa District Court (käräjäoikeus, tingsrätten) ordered the applicant to be detained with a view to his extradition. The applicant complained about this decision to the Supreme Court (korkein oikeus, högsta domstolen) which rejected his complaint on 14 January 2011.

On 8 February 2011 the Vantaa District Court rejected the applicant’s request for release from detention. The applicant complained about this decision to the Supreme Court which, on 5 April 2011, rejected his complaint.

On 11 April 2011 the Vantaa District Court rejected the applicant’s second request for release from detention. The applicant did not lodge a complaint against this decision with the Supreme Court.

By letter dated 17 January 2011 the Uruguayan authorities filed a request with the Finnish Ministry of Justice, asking them to extradite the applicant to Uruguay.

On 15 April 2011 the applicant was interrogated by the Finnish National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen). The applicant opposed the extradition.

On 2 May 2011, in accordance with the Extradition Act, the Ministry of Justice asked the Supreme Court to give a statement on whether the possible extradition would be in conformity with domestic legislation and the applicable international extradition treaties.

By letter dated 19 May 2011 the applicant submitted his comments to the Supreme Court on the possible extradition. He claimed that, as a Swedish citizen, he should be treated as a Finnish citizen because Finnish citizens could not be extradited according to the domestic law. He also claimed that he could not be extradited to Uruguay because the conditions in Uruguayan detention facilities and prisons were contrary to Article 3 of the Convention. He would not have a fair and public trial there within a reasonable time, he would not be presumed innocent and he would be kept in pre-trial detention for a long time.

On 3 June 2011 the Supreme Court submitted its statement to the Ministry of Justice. It found that the request for extradition could be granted. The applicant was suspected of aggravated extortion committed together with three other persons. These three persons had been convicted in Uruguay and sentenced to imprisonment on 28 September 2010. The crime of which the applicant was suspected was such that, according to domestic law, the applicant could be extradited. The extradition was based on a detention order issued by a court. The fact that the applicant was a Swedish citizen did not prevent the extradition. No such grounds were thus shown to exist on the basis of which the applicant’s extradition to Uruguay, due to personal circumstances or special humanitarian reasons, could be considered unreasonable.

On 7 June 2011 the Ministry of Justice decided that the applicant could be extradited to Uruguay for trial. The decision stated that, after the decision had been served to the Uruguayan authorities, they had 30 days to come and collect the applicant and transfer him to Uruguay.

On 13 June 2011 the applicant lodged his application with the Court, requesting also that Rule 39 be applied.

On 15 June 2011 the Court refused to apply Rule 39 to prevent the applicant’s extradition from Finland. The applicant was requested to inform the Court whether he wished to maintain his application.

On 11 July 2011 the applicant informed the Court that he wished to maintain his application with the Court.

On 14 July 2011 the applicant was extradited to Montevideo, Uruguay where he arrived on the following day. He was then taken to Maldonado, brought before a judge and detained on suspicion of attempted extortion. From 16 July 2011 onwards he was detained in isolation in prison for one year. Thereafter he was moved to another prison for half a year, where he shared a cell with five other inmates. In September 2012 the applicant was transferred to an open department and again in February 2013 to a labour facility. In October 2013 the applicant was released by virtue of an amnesty granted by the Uruguayan Supreme Court.

After his release, the applicant returned to Sweden.

Extradition to and from Finland takes place in accordance with the Extradition Act (laki rikoksen johdosta tapahtuvasta luovuttamisesta, lagen om utlämning för brott, Act no. 456/1970, as in force at the relevant time). According to sections 16 and 17 of the Act, the Ministry of Justice decides on extradition. If the person to be extradited opposes it, the Ministry must ask the Supreme Court to give a statement on whether the possible extradition is in conformity with domestic legislation and the applicable international extradition treaties which are binding on Finland. If the Supreme Court finds that there is an obstacle to the extradition, it cannot be carried out.

The US Department of State’s Country Report on Human Rights Practices for 2010 in Uruguay of 8 April 2011 provided the following:

“Principal human rights abuses included severe overcrowding, inhuman conditions, and disrepair in the prison system; violence against women; and trafficking in persons.

Prison conditions continued to be poor, as the government did not adequately maintain aging facilities and provided insufficient resources for the prison system.

Overcrowding was a significant problem despite the government’s efforts to build more prison facilities. According to government figures, the total prisoner population as of August 31 exceeded design capacity by 1,976 prisoners, or 29 percent (the prison ombudsman’s 2009 report defined 20 percent overcrowding as "critical"). Additionally, many necessities were lacking and many prisoners depended on visitors for enough food to reach the daily minimum caloric intake.

Prisoner-on-prisoner violence continued to be a daily problem, partially due to the lack of a separate, high-security prison for violent criminals. A high percentage of prisoners reportedly used drugs.

Fire hazards and violence continued to plague the prison system. In 2009 there were 39 deaths due to violence, and fires in prisons were reported. In July a cell fire killed 12 prisoners in Rocha Province. In August 5 prisoners perished in a cell fire in Comcar Prison in Montevideo. The fires started due to handcrafted heaters that set makeshift partitions on fire. Initial investigations revealed that fire extinguishers were not adequately maintained in both facilities.

In general overcrowding and understaffing in some facilities resulted in problems related to sanitation, ventilation, temperature, lighting, access to potable water, and health. Supervision of medical care moved to the Ministry of Public Health, which implemented a pilot system in July to provide basic and emergency medical care to a prison in rural Montevideo that housed 3,000 inmates. An Anti-Tuberculosis Commission report confirmed 81 cases of tuberculosis in the prison population in 2009.”

According to the Report of the UN Special Rapporteur Manfred Nowak on torture and other cruel, inhuman or degrading treatment or punishment in Uruguay of 21 December 2009 (A/HRC/13/39/Add.2):

“Although some efforts have been made to improve overall conditions in prisons and prevent overcrowding, the conditions in some detention facilities, particularly Libertad Penitentiary and the Santiago Vázquez Prison Complex (Complejo Carcelario Santiago Vázquez, known as COMCAR), amount to inhuman and degrading treatment. The overcrowding, the non-separation of pre-trial and convicted detainees as well as the limited access to medical services is of concern in practically all of the places visited. A comprehensive reform of the whole administration of justice system, aimed at the rehabilitation and reintegration of offenders, should be a high priority.”


The applicant was born in 1951 and lives in Novi Pazar.

The applicant was employed by “Raška Holding Kompanija A.D. u restrukturiranju”, a socially/State-owned company based in Novi Pazar (hereinafter – “the debtor”).

On 22 December 2004, 5 January 2007, 10 April 2007, and 24 October 2007 the Novi Pazar Municipal Court adopted four judgments in the applicant’s favour according to which the debtor was ordered to pay certain sums.

On 11 February 2005, 5 March 2007, 21 November 2007 and 31 December 2007 respectively, the applicant lodged applications for the enforcement of the above judgments with the Novi Pazar Municipal Court.

On 22 February 2005, 11 September 2007, 22 November 2007 and 3 January 2008 respectively, the court allowed the applications and issued enforcement’s orders.


Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

Branko Lubarda;Dmitry Dedov;Luis López Guerra

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

The applicants complained under Article 5 § 3 of the Convention of the excessive length of their pre-trial detention. They further complained under Article 5 § 4 of the Convention. In particular, in application no. 49507/10 the applicant argued that a court had examined appeals against the detention orders in his and his counsel’s absence, and in application no. 76349/12 the applicant submitted that his appeal against a detention order had not been examined “speedily”.