CASE OF BERDZENISHVILI AND OTHERS v. RUSSIA

No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);No violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens-{general} (Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens);No violation of Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens-{general} (Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens);No violation of Article 1 of Protocol No. 7 - Procedural safeguards relating to expulsion of aliens (Article 1 para. 1 of Protocol No. 7 - Lawfully resident);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 - Review of lawfulness of detention);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Inhuman treatment;Prohibition of torture);No violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Inhuman treatment;Prohibition of torture);No violation of Article 13+P7-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 para. 1 of Protocol No. 7 - Lawfully resident;Article 1 of Protocol No. 7 - Procedural safeguards relating to expulsion of aliens);No violation of Article 14+P7-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 para. 1 of Protocol No. 7 - Lawfully resident;Article 1 of Protocol No. 7 - Procedural safeguards relating to expulsion of aliens)

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

During the period from the end of September 2006 to the end of January 2007 identity checks of Georgian nationals residing in Russia were carried out in the streets, markets and other workplaces and at their homes. Many were subsequently arrested and taken to police stations. After a period of custody in police stations, they were grouped together and taken by bus to a court, which summarily imposed administrative penalties on them and gave decisions ordering their administrative expulsion from Russian territory. Subsequently, after sometimes undergoing a medical visit and a blood test, they were taken to detention centres for foreigners where they were detained for varying periods of time, and then taken by bus to various airports in Moscow, and expelled to Georgia by aeroplane. Some of the Georgian nationals against whom expulsion orders were issued left the territory of the Russian Federation by their own means (for further details as to the background of the case see Georgia v. Russia (I) [GC], no. 13255/07, § 45, ECHR 2014).

The applicant entered the territory of the Russian Federation on 1 June 2006 on a multiple entry business visa, valid until 27 May 2007. On 4 October 2006 immigration officers stopped the applicant on the street, checked his identity documents and brought him to the Department of the Interior in the Vykhino District of Moscow, where he was detained. On 5 October 2006 the Kuzminskiy District Court of Moscow fined the applicant (RUB 1,000) for failure to observe the applicable registration procedure and ordered his administrative expulsion from the Russian Federation. He was subsequently, around midday, released. On 8 October 2006 the applicant left the Russian Federation by his own means.

The applicant entered the territory of the Russian Federation on 12 August 2006 on a multiple entry business visa. Subsequently he registered at his place of residence with the competent authority and worked as a driver in Moscow. On 1 October 2006 the applicant was detained in the Cheremushkinskiy militia department. On 3 October 2006 the Cheremushkinskiy District Court of Moscow found the applicant liable under Article 18.10 § 2 of the Code of Administrative Offences, as he had not applied for a work permit. The court fined the applicant (RUB 1,000) and ordered his administrative expulsion from the Russian Federation. He was subsequently transferred to the Kankova militia department, where he was detained until the next day. On 4 October 2006 he was transferred to the Centre for Temporary Detention of Aliens no.1, where he stayed until his deportation. On 6 October 2006 the applicant was taken to a military airport and was flown to Georgia with a cargo plane.

The applicant entered the territory of the Russian Federation on 6 July 2000 under the visa-free regime and settled in the village of Mescheryakovka in the Arkadakskiy District of the Saratov Region. On 10 October 2006 the applicant was arrested by police officers during an identity check operation in the area of his residence. Later that same day the Arkadakskiy Disrtict Court of the Saratov Region found him guilty of staying in the country without the required residence permit. The court fined the applicant (RUB 1,000), ordered his detention and his expulsion. Subsequently the applicant was transferred to a detention centre for aliens. On 12 October 2006, after friends of the applicant had paid the administrative fine and bought him an aeroplane ticket to Armenia for the next day, the applicant was released. On 13 October 2006 the applicant left the territory of the Russian Federation, leaving behind his property and belongings.

The applicant entered the territory of the Russian Federation in 2004 and worked on a market in Moscow. On 4 October 2006 the market was raided by a special unit of the police and the applicant, together with around twenty other Georgian nationals, was arrested. The applicant was brought to the Department of the Interior in the Southern Orekhovo-Borisovo District of Moscow. On 5 October 2006 the Nagatinskiy District Court of Moscow found her guilty of staying in the country without the required residence permit. The court fined the applicant (RUB 1,000), ordered her detention and her expulsion. Subsequently the applicant was transferred to the Centre for Temporary Detention of Aliens no. 2. On 17 October 2006 the applicant was taken to a military airport and flown to Georgia with a cargo plane.

The applicants entered the territory of the Russian Federation in December 2002/January 2003 and lived there without the required visa, at the latest since 25 December 2003. On 6 October 2006 both applicants were apprehended by the police and brought to the Ivanovskoye police station of the Department of the Eastern Administrative District of Moscow. On the same day the Perovskiy District Court of Moscow fined both applicants (RUB 1,500 each) for staying in the country without the required registration and ordered their expulsion. Subsequently both applicants were released. On 16 October 2006 the applicants left the Russian Federation by their own means with their son, leaving behind most of their belongings.

An alleged detention of the applicants’ son and the fact whether the applicants owned a car, which they had to leave behind when leaving the Russian Federation, are matters of contention (see paragraphs 50-52 below).

The applicant entered the Russian Federation on an unknown date on a multi-entry business visa, valid until 15 August 2007. She had registered her place of residence through a private agency and received a certificate valid until 16 March 2007. On 11 October 2006 the applicant was apprehended by police officers for an inspection of her identity documents and was brought to the Vykhino police station in Moscow, where she was subsequently detained. On 12 October 2006 the Kuzminskiy District Court of Moscow fined the applicant (RUB 1,000) for not complying with the applicable registration obligation, ordered her detention and expulsion. On 13 October 2006 the applicant was transferred to the Centre for Temporary Detention of Aliens no. 2, where she was detained until her expulsion. On 17 October 2006 she was brought by bus to Demododova airport and was flown to Georgia.

The first applicant stayed in the Russian Federation on a multi-entry business visa, valid until 13 February 2007, and had registered his place of residence through a private agency. The second applicant had a temporary document issued by the Consulate of Georgia, authorising his residency in the Russian Federation until 5 November 2006. On 11 October 2006 the applicants were apprehended by police officers for an inspection of their documents and brought to the Vykhino police station in Moscow, where they were subsequently detained. On 12 October 2006 the Kuzminskiy District Court of Moscow fined the applicants (RUB 1,000 each) for not complying with the applicable registration obligation and ordered their detention and expulsion. On 12 October 2006 the applicants were transferred to the Centre for Temporary Detention of Aliens no. 1, where they were detained until their expulsion. On 28 October 2006 the applicants were brought by bus to Demododova airport and were flown to Georgia.

The applicant had lived in Russia since 2005 and had a visa and registration valid until 19 October 2006. On 18 October 2006 the applicant left the Russian Federation by her own means.

An alleged detention of the applicant in the beginning of October 2006 is a matter of contention (see paragraphs 53-55 below).

The applicant had lived in Moscow since 1992. He worked as an engineer, had a visa valid until 28 October 2006 and a registration certificate, issued by a private agency, valid until the same day.

It is a matter of contention, whether the applicant had been detained, whether his expulsion was ordered by a court and whether he was deported (see paragraphs 56-59 below).

The applicants had lived in the Russian Federation since 1993, most recently in Moscow. The first applicant had a visa valid from 8 May 2006 until 7 May 2007. The second applicant had a visa valid from 30 June 2006 until 19 June 2007. Both applicants were in possession of registration certificates, valid until respectively 8 November 2006 and 30 December 2006. The applicants left the Russian Federation on 19 October 2006 by their own means.

An alleged detention of both applicants is a matter of contention (see paragraphs 60-62 below).

The applicant had lived in the Russian Federation since 2001. He had a visa valid until 30 August 2007 and a registration certificate that had expired on 18 September 2006. On 11 October 2006 the applicant was arrested by police officers and was brought to the Department of the Interior in the Vykhino district of Moscow, where he was detained. On 12 October 2006 the Kuzminskiy District Court of Moscow fined the applicant (RUB 1,000), ordered his detention and subsequent expulsion. After the decision of the District Court the applicant was transferred to the Centre for Temporary Detention of Aliens no. 1, where he was detained until his expulsion. On 28 October 2006 the applicant was brought by bus to Demododova airport and was flown to Georgia.

The applicant had lived in Moscow since 1997. She had a valid visa and a registration, but no work permit. On 27 September 2006 she was apprehended by police officers in a grocery store, and, after her identity papers had been checked and an administrative report had been drawn up, the applicant was released. On 6 October 2006 the Simonovskiy Court of Moscow found the applicant guilty of working without the required work permit and fined her (RUB 1,000). In addition the court ordered her detention and subsequent expulsion. After the court hearing the applicant was detained and brought to the Centre for Temporary Detention of Aliens no. 2, where she was detained until her expulsion. On 10 October 2006 the applicant was brought to Demododova airport and was flown to Georgia.

The applicant entered the Russian Federation in May 2005 and settled in Moscow. He had a valid visa until 1 March 2007. On 3 October 2006 the applicant was apprehended by officers of the Department of the Interior of the Mozhayskiy district of Moscow and brought to their station, where he was detained. On the same day the Kuntsevskiy District Court of Moscow fined the applicant for not observing the applicable registration procedure and ordered his detention and expulsion. The applicant was brought to the Centre for Temporary Detention of Aliens no. 1, where he was detained until his expulsion. On 11 October 2006, after the applicant’s relatives had bought him an aeroplane ticket to Georgia, he was brought to the airport and released. The applicant left the Russian Federation on that day.

The applicant had arrived in Moscow for the first time in February 2002. Since then he had lived, with short interruptions, in the Russian Federation and worked as a driver. After the last interruption he entered the Russian Federation on 4 March 2006 on a one month visa. On 6 October 2006 the Litkarinskiy Town Court of Moscow Region discontinued proceedings against the applicant for not observing the applicable registration procedure. On 23 October 2006 the Kuzminskiy District Court of Moscow fined the applicant (RUB 1,000) for not observing the applicable registration procedure. The court also ordered his expulsion from the Russian Federation. On 24 October 2006 the applicant left Russia by aeroplane.

The arrests and detentions surrounding the two court decisions are matters of contention (see paragraphs 63-66 below).

The applicant arrived in the Russian Federation in 1993 for the first time. On 6 September 2004 she was expelled from the Russian Federation due to a violation of visa-related regulations. On 8 October 2004 the applicant returned to Moscow. For the relevant time the applicant had a visa and registration, valid until respectively 8 October 2006 and 28 February 2007. The Presnenskiy District Court of Moscow decided that the expulsion decision of 2004 had included a five year ban from entering the Russian Federation. Consequently it fined the applicant (RUB 1,500), ordered her detention and expulsion. After several days of detention the applicant was expelled from the Russian Federation.

The exact circumstances and dates of the applicant’s arrest, detention, court decision and expulsion are matters of contention (see paragraphs 67-70 below).

The applicant entered the territory of the Russian Federation on 12 August 2006 on a multiple entry business visa. Subsequently she registered at her place of residence with the competent authority through a private agency. On 11 October 2006 the Tverskoy District Court of Moscow fined the applicant (RUB 1,000) for not having a valid, but a counterfeited, registration certificate. The court also ordered her detention and expulsion. At the latest on 12 October 2012 the applicant was transferred to the Centre for Temporary Detention of Aliens no. 2, where she was held until her expulsion. On 17 October 2006 the applicant was taken to a military airport and was flown to Georgia with a cargo plane.

The date of the applicant’s arrest and her detention before 12 October 2006 are matters of contention (see paragraphs 71-73 below).

The conditions of detention in the different places of detention are a matter of contention (see paragraphs 111-112 below).

The Court reiterates that the proceedings before the Court are adversarial in nature. It is therefore for the parties to substantiate their factual arguments by providing the Court with the necessary evidence. Whereas the Court is responsible for establishing the facts, it is up to the parties to provide active assistance by supplying it with all the relevant information. In this context, the conduct of the parties when evidence is being obtained has to be taken into account (Lisnyy and others v. Ukraine and Russia (dec.), nos. 5355/15, 44913/15, 50853/15, § 25, 5 July 2016, with further references).

In cases in which there are conflicting accounts of events, the Court is inevitably confronted with the same difficulties as those faced by any first-instance court when establishing the facts. As to facts in dispute, the Court reiterates its jurisprudence requiring a standard of proof “beyond reasonable doubt” in its assessment of evidence. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (Aslakhanova and Others v. Russia, nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, § 95, 18 December 2012, with further references).

Furthermore, it is to be recalled that Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio (El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 152, ECHR 2012). Under certain circumstances the Court has borne in mind the difficulties associated with obtaining evidence and the fact that often little evidence can be submitted by the applicants in support of their applications (Saydulkhanova v. Russia, no. 25521/10, § 56, 25 June 2015). According to the Court’s settled case-law, in these cases it is for the applicant to make only a prima facie case and to adduce appropriate evidence. If, in response to such allegations made by the applicants, the Government then fail to disclose crucial documents to establish the facts or otherwise provide a satisfactory and convincing explanation, strong inferences may be drawn. The prima facie threshold is reached primarily on the basis of witness statements, including the applicants’ submission to the Court and to domestic authorities, and other evidence (see Aslakhanova, cited above, §§ 97, 99, with further references). However, where the applicants fail to make a prima facie case, the burden of proof can not be reversed (see Saydulkhanova, cited above, § 56, with further references).

The Court has already found that these considerations apply to disappearances examined under Article 5 of the Convention, where, although it has not been proved that a person has been taken into custody by the authorities, it is possible to establish that he or she was officially summoned by the authorities, entered a place under their control and has not been seen since. In such circumstances, the onus is on the Government to provide a plausible and satisfactory explanation as to what happened on the premises and to show that the person concerned was not detained by the authorities, but left the premises without subsequently being deprived of his or her liberty. Furthermore, the Court reiterates that, again in the context of a complaint under Article 5 § 1 of the Convention, it has required proof in the form of concordant inferences before the burden of proof is shifted to the Government (see El-Masri, cited above, § 153, with further references).

The Court reiterates that it concluded in Georgia v. Russia (I) (cited above, § 159) that from October 2006 a coordinated policy of arresting, detaining and expelling Georgian nationals had been put in place in the Russian Federation, which had amounted to an administrative practice. While the Court does not suggest that at that time all Georgian nationals were arrested or detained in the Russian Federation, it nevertheless finds it appropriate to apply the principles concerning reversing the burden of proof to the present case. Nonetheless, where the applicants failed to make a prima facie case, no strong inferences will be drawn and proof “beyond reasonable doubt” would be required.

According to the applicants their then six year old son had been detained for five hours at the Ivanov district police department on 9 October 2006 and he was only released after the payment of a bribe. The applicants also indicated that their belongings, which they had to leave behind in Russia, included a car.

The Government objected to the allegation of the detention of the applicants’ son and stated that an inquiry by the prosecutor’s offices had not produced any proof for this allegation. The Government also indicated that no vehicle was registered in the name of the applicants in the database of the State Traffic Police Department.

The Court observes that the applicants’ submission was of a general nature and lacked several important details, such as the exact time of the detention, the amount of the paid bribe, the make, model or registration number of the car (see, a contrario, El-Masri, cited above, § 156). The Court also notes that the applicants did neither submit any documents or witness statements regarding the alleged detention of their son and the ownership of the car nor have they informed the Court of any attempts they may have made in order to obtain at least fragmentary documentary evidence to substantiate their allegations (see Lisnyy and others, cited above, § 30). Accordingly, the Court finds that the applicants have not made a prima facie case and that the information in the Court’s possession does not suffice to establish that the applicants’ son had been detained on 9 October 2006 or that the applicants had to leave behind their car (see, mutatis mutandis, Sargsyan v. Azerbaijan [GC], no. 40167/06, § 183, ECHR 2015).

The applicant alleged that on or around 28 to 30 September 2006 she was arrested by police officers and brought to the Department of the Interior, where she was detained for four days. Due to health issues, according to the applicant half her body had become paralysed, she was released on the evening of the fourth day. On 18 October 2006 she left the Russian Federation by aeroplane.

The Court observes that the applicant alleges a detention in a not closer specified police station. The Court also notes that the applicant was not able to provide the exact date of her arrest and that she did not submit any medical certificate regarding her paralysis, which was allegedly the reason for her release. Having regard to these uncertainties, the Court finds that the applicant has neither made a prima facie case nor that the applicant’s detention has been established beyond reasonable doubt (see, mutatis mutandis, Lisnyy and others, cited above, §§ 27, 28).

According to the applicant he was arrested on 10 October 2006 by officers of the migration authorities and was brought to the Department of the Interior for the Serpokhova district of Moscow, where he was kept for approximately one and a half hours. On the same day the applicant was taken to an unspecified District Court in Moscow, which ordered his detention and expulsion. Subsequently the applicant was transferred to the Serpokhova special detention centre, where he was detained until his expulsion. On 17 October 2006 the applicant was taken by bus to Domodedovo airport and he was flown, by cargo plane, to Georgia.

The Government submitted that neither the Federal Migration Service nor the Department of the Interior had any records or information about the placement of the applicant in any detention facility. It further indicated that a Serpukhovskiy temporary detention centre does not exist.

The Government provided several documents with regard to administrative proceedings concerning the applicant. These include an administrative offence report from the Leninskiy district dated 13 October 2006, indicating the applicant’s arrest on the same day at 10 o’clock and a decision of the Vidnoye Town Court of the Moscow Region, also dated 13 October 2006, fining the applicant (RUB 1,000) for not observing the applicable registration procedure, and ordering the applicant’s expulsion. The Court decision also indicates that the applicant shall be held at the Reception Centre of Serpukhov until his expulsion. Furthermore, the judgment shows a stamp of Domodova airport, dated 17 October 2006.

On the basis of the material in its possession, the Court finds it established that the applicant was arrested on 13 October 2006 and taken to the Leninskiy police station, where he was held for one and a half hours. Subsequently the applicant was brought before the Vidnoye Town Court, which fined the applicant and ordered his detention and expulsion. The applicant was then detained until 17 October 2006 in the Reception Centre of Serpukhov. On 17 October the applicant was taken by bus to Domodedovo airport and was then flown, by cargo plane, to Georgia.

The applicants submitted that on 2 October 2006 they were stopped by police officers in the street next to the Oktiaborskoe pole metro station in Moscow for identity checks. Subsequently they were taken to the Department of the Interior for the Shchukino district of Moscow. After two hours they were transferred to a special detention centre in the KhoroshevoMnevniki district. After eight days in the detention centre they were, for the first time, allowed to call their mother and were able to ask her to buy aeroplane tickets for them. After the applicants’ mother had done so and presented the aeroplane tickets to the officers of the detention centre, the applicants were released. On 19 October 2006 the applicants left the Russian Federation by aeroplane from Domodedova airport in Moscow.

The Government submitted that an inquiry into the alleged detention in the Department of the Interior for Shchukino and Khoroshevo-Mnevniki districts of Moscow did not confirm the applicants’ version of events. According to the Government the applicants had not been brought to the police station of the North-Western Administrative District of Moscow either, as that police station was closed for reconstruction at the relevant time. Lastly, the Government submitted that no criminal proceedings were instigated against the applicants.

The Court notes that the applicants have submitted copies of their passports, showing that they left Russian territory on 19 October 2006, in support of their application. However, the Court also observes that the applicants have not submitted any documents, such as the aeroplane tickets and the receipts of the purchase, or witness statements, such as from their mother, corroborating their submission regarding their detention and release. Under these circumstances the Court finds it unable to conclude that the applicants have made a prima face case. Consequently, the burden of proof can not be reversed and fully shifted to the Government (see Saydulkhanova, cited above, § 56, with further references). The Court considers it not established beyond reasonable doubt that the applicants had been detained between 2 and 10 October 2006.

According to the applicant’s submission, on 4 October 2006 four police officers of the Litkarenko Department of the Ministry of the Interior visited him at home and checked his identity documents. Owing to him being Georgian and under the pretence that he was suspected of theft, he was taken to the Litkarino police station, where he was identified in an identity parade by the theft victim. Subsequently he was detained and only after the intervention of one of the applicant’s friends, who worked for the Federal Security Service, his involvement in the alleged theft was cleared up and the investigation was dropped. The applicant was nonetheless not released but kept in a cell of the police station overnight. On 5 October 2006 he was transferred to the special detention centre in the Lubedtsi district in Moscow, where he was detained until 6 October 2006, when the Litkarinskiy Town Court of Moscow Region discontinued proceedings against the applicant for not observing the registration procedure. Approximately two weeks later the applicant was stopped by two men in plainclothes on the highway, who forced the applicant into their car and put a hood over his head. After a two hour drive, the applicant was led to an unspecified police station and placed in a cell. On the third day of detention in the police station the applicant was handed a decision of the Kuzminskiy District Court, ordering his expulsion and fining the applicant (RUB 1,000). The next day, 24 October 2006, the applicant was taken to the Sheremetevo airport by police officers and put on a flight to Gandja, Azerbaijan.

The Government submitted that the applicant was apprehended on 22 October 2006 by officers of the Department of the Interior of the Kuzminski district of Moscow and was brought before the Kuzminskiy District Court on 23 October 2006. The court fined the applicant for not observing the applicable registration procedure and ordered the applicant’s expulsion. The Government also stated that neither the Federal Migration Service nor the Department of the Ministry of the Interior had any records or information about any subsequent detention of the applicant and that the applicant was not forcibly removed from the Russian Federation, but left on his own on 24 October 2006.

The applicant submitted inter alia the decision of the Litkarinskiy Town Court of Moscow Region of 6 October 2006 and of the Kuzminskiy District Court of 23 October 2006. The Government submitted in addition to the decision of the Kuzminskiy District Court, reports concerning the arrest and detention of the applicant on 22 October 2006.

The Court observes that the applicant has not submitted any proof concerning his detention from 4 to 6 October 2006 and from 21 to 24 October 2006, and that his submission concerning the second alleged detention is partially fragmentary. The Court also notes that the Kuzminskiy District Court did not order the applicant’s subsequent detention in one of the Centres for Temporary Detention of Aliens, as the Russian courts did in other cases. Accordingly the Court considers the information submitted by the applicant insufficient to conclude that he has made a prima facie case. Therefore, the burden of proof can not be reversed and shifted to the Government (see Saydulkhanova, cited above, § 56, with further references). The Court considers it not established beyond reasonable doubt that the applicant had been detained between 4 and 7 October 2006. However, based on the information and documents provided by the Government, the Court concludes that the applicant had been detained in the Department of the Interior of the Kuzminski district of Moscow on 22 and 23 October 2006.

The applicant initially submitted that at the end of September 2006 she had submitted her passport and several other documents to her University, for the renewal of her registration. On 8 October 2006 she received a call from the University, informing her that there were problems with her passport and that she had to go to the Presninski Passport Department. When she went there the next day, she was notified about a decision to expel her, owing to her visa-related offence in 2004. On 11 October 2006 she returned to the passport department to prove that she was an internally deplaced person and had a right to stay in the Russian Federation. In the evening on the same day she was taken to the Presninski District Court, which confirmed her expulsion. Subsequently she was brought to the Police Department of the Presninski District, where she was detained until midnight. During the following hours the police attempted to bring her to several different detention centres, where she was not admitted as they were already full or only for men or for convicted persons. At around 6 o’clock in the morning of 11 October 2006 she was admitted to a Women’s Immigration Reception Centre, near Butirskaia prison, and was detained until her expulsion. On 17 October 2006 the applicant was brought to Domodedova airport and flown to Georgia by an aircraft belonging to the Ministry of Emergency Situations of the Russian Federation.

According to the Government the applicant was apprehended on 4 October 2006 by officers of the Federal Migration Service of the Presnenskiy District Division. On 5 October 2006 the Presnensky District Court of Moscow found the applicant guilty of not complying with a five year ban from entering the Russian Federation. The court fined the applicant (RUB 1,500) and ordered her expulsion and detention. Subsequently the applicant was placed in the Centre for Temporary Detention of Aliens no. 2 until her expulsion on 10 October 2006.

The applicant subsequently submitted a copy of her passport, showing a stamp leaving the Russian Federation on 10 October 2006 and entering Georgia over Tbilisi airport on the same date. The Government provided a copy of the decision of the Presnensky District Court of Moscow dated 5 October 2006.

On the basis of the material in its possession, provided by the applicant and the Government, the Court concludes the following:

The applicant was arrested on 4 October 2006 by officers of the Federal Migration Service of the Presnenskiy District Division and detained until the next day. On 5 October 2006 the Presnensky District Court of Moscow fined the applicant (RUB 1,500) and ordered her expulsion and detention. From 5 until 10 October 2006 the applicant was detained in the Centre for Temporary Detention of Aliens no. 2. On 10 October 2006 the applicant was expelled from the Russian Federation.

The applicant submitted that on 7 October 2006, after her husband Tengiz Kbilashvili, who is also an applicant (application no. 14597/07), had been deported, she went to the local passport department, to arrange her departure from the Russian Federation. In the local passport department her passport was taken from her and she was transferred to a militia department for detention. Later that day, she was transferred to the Centre for Temporary Detention of Aliens no. 2, where she was detained until her expulsion on 17 October 2006.

According to the Government the applicant was arrested on 11 October 2006 and was subsequently brought before the Tverskoy District Court of Moscow, which inter alia ordered the applicant’s detention (see paragraph 29 above). On 12 October 2006 she was transferred to the Centre for Temporary Detention of Aliens no. 2, where she was detained until her expulsion on 17 October 20006. The Government submitted several documents in this regards, including a report of the applicant’s arrest, the court decision and reports from an initial medical examination in the detention centre, all dated 11 October 2006.

On the basis of the material in its possession, and noting that the alleged earlier detention is not only not corroborated by any other evidence but also contradicted by the documents submitted by the Government, the Court can not conclude that it has been established beyond reasonable doubt that the applicant had been detained prior to the 11 October 2006. It has been established, however, that the applicant was arrested on 11 October 2006 and fined by the Tverskoy District Court of Moscow, which also ordered her detention and expulsion until 17 October 2006 (see paragraph 29 above).


András Sajó;Angelika Nußberger;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Gabriele Kucsko-Stadlmayer

The applicants, Mr Dalius Mertinas and Ms Laima Mertinienė, are Lithuanian nationals who were born in 1961 and 1959 respectively and live in Vilnius. They were represented before the Court by Ms L. Meškauskaitė, a lawyer practising in Vilnius.

The Lithuanian Government (“the Government”) were represented by their former Agent, Ms E. Baltutytė.

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

The first applicant is a known Lithuanian actor. The second applicant is his wife. She is also the daughter of the former President of the Republic of Lithuania.

On 25 August 2007 a Lithuanian newspaper, “L.T.”, published an article entitled “Naked Mertinas couple – a feast for the eyes. The Mertinas couple was showing off their beauty [private parts] in Nida (Nuogi Mertinai – desertas akims/Mertinai Nidoje demonstravo savo grožybes)”. The article was printed on the front page and continued up to the fourth page of the newspaper, and was also published online on the newspaper’s website. The front page of the newspaper had two half-page photographs of the applicants in the nude, which had been taken on the nudist beach at Nida, a seaside resort in Lithuania. Altogether, ten photos of the applicants in the nude on the beach were published.

On 24 October 2007 the Inspector of Journalistic Ethics concluded that the above-mentioned publication had breached the applicants’ right to privacy.

The applicants instituted court proceedings, arguing a breach of privacy. They claimed that the publication had caused them great distress, given that two photographs had been printed on the front page of the newspaper and presented in a sensational manner to increase the sales of the newspaper. From the content of the article and the photographs, it was clear that journalists had secretly followed the applicants and photographed them. This had taken place in a specific secluded environment – a nudist beach – where no reasonable person would wish to be photographed (as regards the interpretation of the concept of a secluded place, the applicants relied on Von Hannover v. Germany, no. 59320/00, § 74, ECHR 2004VI). After the humiliating publication of the photographs, which concerned very private aspects of their lives, the applicants and their family had been deeply psychologically affected and had also received a lot of unwanted attention. Furthermore, the photographs had been published on the newspaper’s website, which meant that readers could comment on the applicants’ appearance. Some of those comments were extremely insulting. The applicants also contended that, following the publication, the second applicant’s health had deteriorated and the first applicant had lost a job on a television show which he had been promised.

The applicants asked the court to award each of them 75,000 Lithuanian litai (LTL – approximately 21,720 euros (EUR)) in compensation for non-pecuniary damage.

On 4 April 2008 the Vilnius Regional Court granted the applicants’ claim in full. The court relied extensively on the Court’s case-law as to the need to balance the right to privacy and the right to freedom of expression, as well on the Council of Ministers’ Recommendation no. 428 (1970) to the effect that the right to privacy entailed avoidance of being placed in a false light, non-revelation of irrelevant and embarrassing facts, and prohibition to publish private photographs (see paragraph 35 below). The court noted that the applicants were well-known people in Lithuania and that, by publishing the photographs, the newspaper had blatantly damaged their honour, dignity and right to a private life. There was no public interest in publishing the photographs, given that they were private and did not concern matters which society had a legitimate interest in knowing. On the contrary, by such an act the newspaper was attempting to satisfy readers’ curiosity by creating a sensation, and was pursuing its commercial interests. For that purpose, the newspaper had consciously placed their photographs on the front page, knowing that the nude photographs of the applicants, who were well-known people in Lithuania, would no doubt attract the readers’ attention. The fact that the applicants had been photographed on a nudist beach did not diminish the breach of privacy, because nudity was an important part of private life, and publishing the applicants’ nude photographs with inappropriate (nekorektiškomis) headlines was particularly offensive.

The first-instance court also noted that that issue of the newspaper had had a large print run, and that the photographs had also been placed on the newspaper’s website, thus giving a great many people access to them. The court observed that, following the decision of the Inspector of Journalistic Ethics, the newspaper had had the opportunity to apologise to the applicants for the photographs, which could have lessened the damage, but it had failed to do so. Nor had the newspaper attempted to settle the case before the Vilnius Regional Court, thus confirming its malicious behaviour.

As for the sum to be awarded to compensate for the non-pecuniary damage the applicants had sustained, the Vilnius Regional Court observed that neither Lithuanian nor international law set out criteria to determine such a sum. However, guidelines had been provided by the Supreme Court, which had underlined the need to take into account the situation of each particular case. Of relevance was whether society had an interest in making the relevant information public, the victim’s reaction to the publication, and the actions of the media. In the case at hand, taking into account the particularly gross breach of the applicants’ right to privacy by a newspaper which had been printed in “large volume”, the Vilnius Regional Court found it reasonable to award the requested sums in full, that is each of the applicants was to receive LTL 75,000.

The applicants were also awarded LTL 5,000 for legal costs and LTL 4,724 for court fees, the expenses they had incurred when lodging the civil claim. Those sums were to be paid to them by the newspaper.

The newspaper appealed, requesting, inter alia, that the abovementioned sum in respect of non-pecuniary damage be lowered.

By a ruling of 23 September 2008 the Court of Appeal upheld the lower court’s decision, noting that the published photographs had clearly been offensive and degrading to the applicants. The situation in which they had been photographed fell within the sphere of private life, and was one in which no reasonable person would wish to be photographed. There was no public interest whatsoever in publishing ten photographs of the sort published by the newspaper.

As to the question of the sum to be awarded as compensation for non-pecuniary damage, the Court of Appeal noted that the newspaper had assets with a value of LTL 1,416,007 (approximately EUR 410,100), and that in 2008 the newspaper’s statutory capital had been increased. Therefore, the newspaper’s plea for the award in respect of non-pecuniary damage to be lowered on the basis of its allegedly difficult financial situation was unfounded. In this connection, the appellate court also observed that the photographs had been widely distributed because the newspaper had been sold throughout Lithuania, and had been printed on the front page of Saturday’s issue as the most “gossip-worthy” news of the week. To make matters worse, the photographs had been published on the internet. Following the publication, a television programme called “Super L.T.” had been announced, which had been based on the photographs in question. The only reason the programme had not been broadcast was because of a court injunction. In such circumstances, the first-instance court had correctly found that the applicants had suffered following the publication. Also taking into account that the newspaper had been unwilling to acknowledge its transgression, the sum awarded by the Vilnius Regional Court was reasonable.

The Court of Appeal dismissed the newspaper’s argument that the first-instance court had deviated from the Supreme Court’s guidelines as to the sums to be awarded as compensation for non-pecuniary damage. In fact, according to the Court of Appeal, no case analogous or very similar to the applicant’s case had [ever] been examined in Lithuania.

Lastly, the Court of Appeal ordered the newspaper to pay each of the applicants LTL 1,888 (EUR 545) in respect of lawyers’ costs at the appellate court.

An appeal on points of law being lodged by the newspaper, on 13 February 2009 the Supreme Court varied the lower courts’ decisions. It held that a nudist beach was not a public place. Accordingly, a person could reasonably expect privacy there. The applicants’ behaviour on that beach had not been in breach of good morals. The Supreme Court entirely agreed with the lower courts’ conclusion that the newspaper had gravely breached the applicants’ right to privacy by abusing its right to impart information, by imparting information merely for readers’ curiosity, and consequently to obtain pecuniary advantage.

The Supreme Court also observed that there were no legislative limits on the sum which could be awarded as compensation for nonpecuniary damage, thus giving the courts rather wide discretion in such matters. Nonetheless, it considered it important to follow its earlier case-law to the effect that, when assessing the sum to be awarded, the courts should take into account the value protected by law which had been compromised (įstatymu saugoma vertybė/teisinis gėris) (in the present case, the applicants’ right to privacy), and also adhere to the sums that the courts had awarded in analogous cases (see also paragraphs 25 and 26 below). In the case at hand, each of the applicants had been awarded LTL 75,000, which was equal to or in excess of the awards of LTL 25,000 (EUR 7,240) – LTL 50,000 (EUR 14,480) made in cases concerning nonpecuniary damage caused by severe physical injury, where more important values (such as life and health) had been at stake (see paragraph 25 below). The Supreme Court also had regard to its case-law, where awards between LTL 5,000 and 10,000 had been granted in relation to breaches of the right to protection of one’s image (teisės į atvaizdą pažeidimas) or the right to privacy (see paragraph 26 below).

In the light of the above, the Supreme Court concluded that the award of LTL 75,000 to each applicant was excessive. It was therefore reasonable to grant each of the applicants LTL 15,000 (EUR 4,350) in compensation for non-pecuniary damage. Such sums would not contradict established case-law, and would be adequate compensation for the damage which the applicants had suffered and sufficient in respect of both defending the applicants’ right to privacy and deterring the abuse of press freedom, thus balancing two competing values which were equal in weight – privacy and the freedom to impart information.

The Supreme Court also decided that the applicants were to bear some of the newspaper’s litigation costs (Article 93 § 4 of the Code of Civil Procedure, see paragraph 34 below), because only 20% of the sum which the applicants had claimed had been awarded to them. The Supreme Court also noted that the sums which both the applicants and the newspaper had paid to their respective lawyers in connection with the proceedings concerning the appeal on points of law were higher than those recommended by the Lithuanian Bar Association, and thus not entirely justified. As a result, the applicants were together ordered to pay the newspaper LTL 10,839 for litigation costs and the State LTL 423 for court fees. The applicants thus received LTL 18,748 (EUR 5,429) in total, or LTL 9,374 (EUR 2,714) each.

In December 2006 the magazine Žmonės published an article about the applicant Laima Mertinienė, where she explained how she had lost 70 kg in weight. In May 2007 the same magazine published a story where the applicant Dalius Mertinas gave an interview about his family life, also answering questions put by a journalist about the other applicant’s (his wife’s) plastic surgery, and giving details about her weight loss.

Article 22 of the Constitution of the Republic of Lithuania reads:

“A person’s private life shall be inviolable...

The law and the courts shall protect everyone from arbitrary or unlawful interference in his private and family life, or from encroachment upon his honour and dignity.”

Article 30 of the Constitution provides that compensation for pecuniary and non-pecuniary damage suffered by a person must be established by law.

The relevant provisions of the Civil Code read:

“1. A photograph (or part thereof), or some other image of a person may be reproduced, sold, exhibited, or published, and the person may be photographed, only with his consent. Such consent following a person’s death may be given by his spouse, parents or children.

Where such acts [using a person’s image] are related to a person’s public activities, his official post, or requests from law-enforcement agencies, or where a person is photographed in public places, a person’s consent shall not be required. However, a person’s photograph (or part thereof) produced under the above-mentioned circumstances may not be exhibited, reproduced or sold if such an act were to debase a person’s honour or dignity, or damage his professional reputation.

A person whose right to protection of his image has been infringed has the right to ask a court to require the discontinuance of an act and to award compensation for pecuniary and non-pecuniary damage...”

“1. A person’s privacy shall be inviolable. Information regarding a person’s private life may be made public only with his consent...

Unlawful invasion of a person’s dwelling or other private premises, including fenced private territory; keeping the person’s private life under observation ..., publication of data relating to the state of his health, in violation of the procedure prescribed by law; and other unlawful acts shall be deemed to violate the person’s private life.

The creation of a file on another person’s private life, in violation of the law, shall be prohibited. A person may not be denied access to the information contained in the file, except as otherwise provided for by law. Dissemination of the information collected on the person’s private life shall be prohibited unless, taking into consideration the person’s official post and status in society, dissemination of the said information is in line with a lawful and well-grounded public interest in being aware of that information.

The public announcement of facts concerning a person’s private life, however truthful they may be; making private correspondence public, in violation of the procedure prescribed in paragraphs 1 and 3 of this Article; invasion of a person’s dwelling without his consent, except as otherwise provided for by law; keeping his private life under observation; or gathering information about him in violation of the law; and other unlawful acts infringing the right to privacy shall form the basis for bringing an action for compensation for pecuniary and non-pecuniary damage sustained as a result of those acts...”

“1. Non-pecuniary damage shall be deemed to be a person’s suffering, emotional experiences, inconvenience, mental shock, emotional depression, humiliation, damage to reputation, diminution of opportunities to associate with others, and so on, evaluated by a court in terms of money.

Non-pecuniary damage shall be compensated for only in cases provided for by law. Non-pecuniary damage shall be compensated for in all cases where it has been sustained as a result of crime, health impairment or deprivation of life, as well as in other cases provided for by law. The courts, in evaluating the non-pecuniary damage, shall take into consideration the consequences of the damage sustained, the degree of fault on the part of the person who caused the damage, his financial status, the amount of pecuniary damage sustained by the aggrieved person, and any other circumstances important to the case, as well as the criteria of good faith, justice and reasonableness.”

In case no. 3K-3-450/250, decided on 6 September 2006, which concerned an injury at work, the Supreme Court held that, when evaluating non-pecuniary damage, it was important to consider the values being protected and their interrelationship (turi būti atsižvelgta į ginamų vertybių specifiką ir jų tarpusavio santykį), because the right to life and the right to health were absolute rights, whereas the right to privacy and the right to dignity were conditional rights (santykinės teisės) which could not be equally valued as regards damages (vertinamos vienodai neturtinės žalos dydžio aspektu). A worker who had fallen off a building platform and cracked his skull was thus awarded LTL 25,000 for non-pecuniary damage sustained as a result of that injury.

On 18 April 2007 the Supreme Court gave a ruling in civil case no. 3K3157/2007 concerning an accident at work following which the plaintiff in question had become handicapped. The Supreme Court noted that the worker was partly to blame for his injury, because he had not followed safety instructions at work. Accordingly, although the plaintiff had asked for LTL 150,000 and the first-instance court had awarded him LTL 100,000, the Supreme Court considered that a sum of LTL 50,000 would be sufficient to compensate for the non-pecuniary damage suffered.

On 20 October 2008 the Supreme Court examined case no. 3K3529/2008, which also concerned an accident at work. The plaintiff in that case was awarded LTL 50,000 for non-pecuniary damage suffered as a result of physical injury.

On 16 March 2007, in civil case no. 3K-3-113/2007, the Supreme Court held that there had been a violation of the plaintiff’s right to privacy and reputation, owing to a publication about his allegedly fraudulent manner of conducting business and his alleged debts to his business partners, and the printing of the plaintiff’s photograph. For the Supreme Court, LTL 5,000 was sufficient to compensate for the non-pecuniary damage sustained.

On 14 August 2008, in civil case no. 3K-3-393/2008, the Supreme Court considered that an award of LTL 10,000 was sufficient to compensate for a breach of the plaintiff’s right to privacy, when information which alleged that he had had a child out of wedlock was printed.

On 23 September 2008, in civil case no. 3K-3-394/2008, the Supreme Court agreed that an award of LTL 5,000 in a civil case was sufficient to compensate for the plaintiff’s mental suffering where a local television station had wrongfully accused the plaintiff of having committed a traffic violation.

On 23 March 2010 the Supreme Court gave a ruling in civil case no. 3K-3-136/2010 concerning a civil claim by a woman, J.G., for breach of privacy in respect of an article in a daily newspaper, Respublika, entitled “A date with a lesbian” (“Pasimatymas su lesbiete”). The case concerned an article which had included eight photographs. J.G. was in one of those photographs, which was in a large format. She had been photographed from the front, although her name had not been disclosed. The first-instance court considered that, “taking into account society’s negative opinion about people of non-traditional sexual orientation” (“teismas, įvertinęs susidariusią neigiamą visuomenės nuomonę apie netradicinės seksualinės orientacijos žmones”), the publication of J.G.’s photograph in such a context could cause her to be evaluated oddly (galėjo sukelti prieštaringų ieškovės vertinimų). The court also noted that the newspaper’s financial situation was good, it had a large print throughout Lithuania. The newspaper had not apologised to the plaintiff or paid her damages, even though it had initially promised to do so. However, the sum claimed by the plaintiff, LTL 65,000, was clearly excessive. It was therefore reasonable to award her LTL 10,000 in respect of non-pecuniary damage. That sum was upheld by the appellate court, which underlined that the article “A date with a lesbian” was conflicting (vertinamas prieštaringai) in a homophobic society, and people whose photographs were linked to that article could therefore experience negative consequences, as indeed in J.G.’s case. She had had to explain herself to her parents, colleagues at work and friends from times of studies. The award of LTL 10,000 would also not impede the daily commercial activity of the defendant.

The newspaper lodged an appeal on points of law, arguing that the award for non-pecuniary damage was too high. The Supreme Court noted that it was important to adhere to the principle of non-discrimination, which meant that similar cases should be decided similarly, and which also meant that, in analogous situations, awards for non-pecuniary damage should be comparable. The Supreme Court also relied on its earlier ruling to the effect that courts should not only follow the criteria established in legal norms and court practice, but should also take into account the awards already granted in analogous cases.

The Supreme Court thus distinguished three categories of cases.

Firstly, there were cases where a plaintiff’s privacy had been breached on account of the arrangement of his or her nude photographs with offensive text and headlines (the Supreme Court referred to the instant case of Dalius Mertinas and Laima Mertinienė), or where information regarding “family secrets” or health had been made public (the Supreme Court referred to its ruling of 14 August 2008 in Žvagulis’ case), or where information about private life had been published together with photographs, which had amounted to a breach of the right to a private life. The awards in those cases were, respectively, LTL 15,000, LTL 10,000 and LTL 8,000.

As to the second category, the Supreme Court referred to some cases where the press had used plaintiffs’ private photographs without permission, or had accused them of crimes, where the non-pecuniary damage awards were LTL 5,000.

The third category concerned cases where photographs of plaintiffs who were well-known people in society had been published without their consent, and for the purpose of a newspaper gaining financial benefit from advertisement, where the awards for non-pecuniary damage were LTL 1,500.

The Supreme Court then held that, in the case of J.G., the award of LTL 10,000 was too high, because it did not correspond to the abovementioned court practice. J.G.’s photograph had been published only as an illustration of the article, and neither her personal data nor information about her private life had been made public. Moreover, the photograph had been taken at a public event when J.G. was posing (viešame renginyje, ieškovei pozuojant). In the view of the Supreme Court, an award of LTL 5,000 would be fair and adequate in respect of the non-pecuniary damage sustained by J.G. in relation to the breach of her right to protection of her image, and to prevent the abuse of freedom of expression by the press.

On 15 November 2012 the Supreme Court adopted a ruling in civil case no. 3K-3-481/2012, which concerned R.C.’s civil claim for defamation against a television channel, Tele-3. In particular, R.C., who is a singer, had complained that in May 2009, during a television broadcast, a presenter had made statements about someone else allegedly being the father of R.C.’s child, had made allegations about R.C.’s actual sexual orientation, and, in the latter context, had also claimed that R.C. had been operated on in clinics in Kaunas several months ago after “he had sustained trauma to his anus from a blunt object”.

The Supreme Court held that information about R.C.’s fatherhood, his sexual orientation, and his unverified operation concerned his private life, notwithstanding R.C. being well-known because he was a singer. Moreover, disseminating such information had no public interest. On the contrary, having had regard to the manner in which the information had been presented, the Supreme Court held that the only aim in disseminating it had been to spread gossip to satisfy the curiosity of a certain category of television viewers. The fact that R.C. had communicated with the media before did not mean that he had lost his right to privacy. Having examined the case in the light of the Court’s case-law (Axel Springer AG v. Germany [GC], no. 39954/08, 7 February 2012, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, ECHR 2012), the Supreme Court held that there had been a breach of R.C.’s right to privacy.

Although R.C. asked the courts to award him LTL 80,000 to compensate for the non-pecuniary damage, the Supreme Court found that the lower courts had correctly applied Article 6.250 of the Civil Code, and had had a proper basis for their decision to award R.C. LTL 10,000 in compensation.

As concerns the division of legal costs, the Code of Civil Procedure states:

“1. A court orders the legal costs of the party to the proceedings in whose favour a court decision has been adopted to be paid by the other party to the proceedings ...

If a civil claim is granted in part, the plaintiff’s legal costs are awarded proportionately in relation to which part of the civil claim is granted, and the defendant’s legal costs are awarded proportionately in relation to which part of the civil claim is rejected.

The rules set out in this Article also apply to court fees ...

If the appellate court or court of cassation, without referring the case for fresh examination, changes a lower court’s decision or ruling, or adopts a new ruling, it accordingly changes the division of legal costs. If the appellate court or court of cassation does not change the division of legal costs, it is the court of first instance which has to resolve this question.”

On 23 January 1970 the Parliamentary Assembly of the Council of Europe adopted Resolution 428, containing a Declaration on Mass Communication Media and Human Rights, the relevant parts of which read:

“15. There is an area in which the exercise of the right of freedom of information and freedom of expression may conflict with the right to privacy protected by Article 8 of the Convention on Human Rights ... Everyone has the right to respect for his private and family life, his home and his correspondence ... The exercise of the former right must not be allowed to destroy the existence of the latter.

The right to privacy consists essentially in the right to live one’s own life with a minimum of interference. It concerns private, family and home life, physical and moral integrity, honour and reputation, avoidance of being placed in a false light, nonrevelation of irrelevant and embarrassing facts, unauthorised publication of private photographs, protection against misuse of private communications, protection from disclosure of information given or received by the individual confidentially. Those who, by their own actions, have encouraged indiscreet revelations about which they complain later on, cannot avail themselves of the right to privacy.

A particular problem arises as regards the privacy of persons in public life. The phrase ‘where public life begins, private life ends’ is inadequate to cover this situation. The private lives of public figures are entitled to protection, save where they may have an impact upon public events. The fact that an individual figures in the news does not deprive him of a right to a private life.

In order to counter these dangers, national law should provide a right of action enforceable at law against persons responsible for such infringements of the right to privacy.

The right to privacy afforded by Article 8 of the Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media. National legislations should comprise provisions guaranteeing this protection.”

The relevant passages of Resolution 1165 (1998) of the Parliamentary Assembly of the Council of Europe on the right to privacy, adopted on 26 June 1998, read:

“1. The Assembly recalls the current affairs debate it held on the right to privacy during its September 1997 session, a few weeks after the accident which cost the Princess of Wales her life.

On that occasion, some people called for the protection of privacy, and in particular that of public figures, to be reinforced at the European level by means of a convention, while others believed that privacy was sufficiently protected by national legislation and the European Convention on Human Rights, and that freedom of expression should not be jeopardised.

The right to privacy, guaranteed by Article 8 of the European Convention on Human Rights, has already been defined by the Assembly in the declaration on mass communication media and human rights, contained within Resolution 428 (1970), as ‘the right to live one’s own life with a minimum of interference’.

In view of the new communication technologies which make it possible to store and use personal data, the right to control one’s own data should be added to this definition.

The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people’s private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales. At the same time, public figures must recognise that the position they occupy in society – in many cases by choice – automatically entails increased pressure on their privacy.

Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain.

It is often in the name of a one-sided interpretation of the right to freedom of expression, which is guaranteed in Article 10 of the European Convention on Human Rights, that the media invade people’s privacy, claiming that their readers are entitled to know everything about public figures.

Certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to be informed of those facts.

It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed in the European Convention on Human Rights: the right to respect for one’s private life and the right to freedom of expression.

The Assembly reaffirms the importance of every person’s right to privacy, and of the right to freedom of expression, as fundamental to a democratic society. These rights are neither absolute nor in any hierarchical order, since they are of equal value.

However, the Assembly points out that the right to privacy afforded by Article 8 of the European Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media.


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva

A list of the applicants is set out in the appendix. They were represented by Ms Y. Renda, a lawyer practising in Nicosia.

The applicants are 63 Turkish-Cypriot relatives of 126 people who were killed during the conflict in Cyprus in 1974.

The applicants and their relatives were living in three small villages Murataga (Maratha), Sandallar (Sandallaris) and Atlilar (Aloa) on the Famagusta road close to some Greek-Cypriot villages.

On 15 July 1974 there was a coup organised against the President of Cyprus, Archbishop Makarios. The applicants submitted that the coup, which aimed at union of Cyprus with Greece (enosis) was supported by the Greek Cypriot National Guard Army which had a plan for the ethnic cleansing of Turkish Cypriots from certain areas. When the coup started, mass murders of Turkish Cypriots began.

On 20 July 1974, there were reports of Greek Cypriots arriving in the villages of Murataga and Sandallar, taking the villagers away forcibly.

On 15 August 1974 a villager returning to Atlilar found the village deserted. They found traces of a bulldozer and hundreds of bullet cases, as well as pamphlets concerning EOKA-B. On 18 August, soldiers and journalists visited the village to investigate what had happened. On 19 August, in the presence of UN observers, a small pit was uncovered in which 37 villagers’ bodies had been crammed. Their heads had been cut off, the bodies were handcuffed. The bodies had been run over by a bulldozer and had meshed together, rendering exhumation difficult. The bodies were recovered and buried together on 25 December 1974.

Investigations then took place as to what had happened in the other two villages.

Murataga had a population of 135. At noon on 20 July, armed Greek Cypriots had taken the villagers to Alanci. They had separated the men aged 15-60 from the women and took them to a military camp. The women and children were sent back to the village. Some of the men were released from the military camp in early August.

On 14 August, Greek Cypriots came to Murataga, raiding and looting the houses. They brought the villagers from Sandallar to Murataga, killed everyone after torturing them and buried them by running over them with a bulldozer on the rubbish dump. The boys had had their heads cut off. The women and girls had been raped. The bodies were crushed and unrecognizable. The site of the massacre was first uncovered by Safak Nihat whose account was published in a Turkish-Cypriot newspaper. Nihat and his family had escaped the massacre by hiding in barrels and in a hayloft. They emerged to find the village burning and empty of people. On 2 September, Nihat was helping his uncle with a herd of sheep. Nearing the garbage dump, he saw four pyramid-like heaps and became aware of a terrible smell. He saw a child’s arm protruding from a heap and ran to tell his uncle. Soldiers arrived with United Nations personnel. 89 bodies were exhumed. The victims were buried on 4 September.

The story of the three villages and the torture and massacre of men, women and children was told in a book published in 2010 – “Step by Step Genocide”, published by the Association of Murataga-Sandallar-Atlilar Martyrs. It was also recounted in the reports of the United Nations Secretary-General dated 27 August and 10 September 1974.

No official investigation was launched into the events.

In 2009, an old Greek Cypriot who wished to clear his conscience before he died called some of the applicants to the south and gave names of the perpetrators. They promised not to give his name to the police. They were shaken as most of the names were those of people they knew, who had been their neighbours from many years before 1974. The applicants drew up a petition and their lawyer submitted it to the Attorney-General on 9 December 2009. Some of the names of the alleged perpetrators also appeared in the Turkish-Cypriot press on 14 August 2009.

On 11 January 2010, the applicants learned from a newspaper that an investigation had been started by the Attorney-General of Cyprus. Their lawyer wrote to the authorities on 4 February 2010 stating that they were willing to give statements.

Following this correspondence, some applicants were summoned by Greek Cypriot police to give their complaints between 17 March 2010 and 9 March 2011.

On 7 June 2010, the applicants’ lawyer wrote to the AttorneyGeneral complaining about the lack of information about the investigation and stating his clients’ right to be informed. On receiving no reply within 30 days, the applicants lodged an action in the Cyprus courts.

On 21 March 2011, the applicants’ lawyer received an e-mail from a government lawyer that the names of the alleged perpetrators had been sent to the police for their statements to be taken. Statements from four of these suspects were submitted in the course of the court proceedings – the translations into Turkish were very poor. They stated in essence that they had left the area due to the fighting and did not know who had committed the crimes. The applicants submitted that although there were 30 names on their list the authorities had only looked for 15 persons. No further information has been forthcoming about the investigation.

The applicants’ court case was still pending. The Attorney-General is claiming in defence that the matter of investigation is an act of State not subject to judicial review, citing that Supreme Court ruling to that effect in Özalp Behiç Saricaoğlu and others v the Republic of Cyprus (nos. 589/06, 590/06, 591/06 and 593/06)

The Government provided the following information about the investigation into the deaths of the applicants’ relatives.

On 23 September 2009, following publication in August of an article in a Turkish-Cypriot newspaper about the killing of the applicants’ relatives, the Attorney-General instructed the police to carry out an investigation, in particular as regarded the fifteen persons named in the article who had lived in nearby Greek-Cypriot villages.

On 9 December 2009, five relatives wrote to the Attorney-General requesting an investigation and naming thirty Greek-Cypriot villagers as perpetrators. Fifteen of these had already been named in the newspaper.

The police investigation which had not yet been completed followed up on the names of potential suspects. These villagers had fled from the occupied areas and had to be traced. It transpired that, on verification of electoral rolls, four individuals had been named twice, that the identity of one perpetrator could not be confirmed, that one had moved abroad without discoverable address and that eleven had died.

The police obtained statements from all the remaining individuals who had been named. Supplementary statements were taken from some of them. Four persons named as witnesses by members of the families turned out to be relatives, not eye-witnesses. The police were unable to obtain information as to the identity of the Greek Cypriot who had named the alleged perpetrators. The police followed other leads, including contacting official bodies, United Nations sources, seeking inter alia to contact the Swedish monitors who had been at the site of the exhumations, other villagers from the area and any persons named in the statements taken. Some leads were still being followed up.

In his letter dated 3 July 2013, the Attorney-General stated that the investigations were still ongoing and further information might still come to light.


Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Síofra O’Leary

The applicant, Mr Yuriy Vladimirovich Portyanko, is a Ukrainian national, who was born in 1961 and lives in Bakaly. He was represented before the Court by Ms M.Y. Bogdanovich, a lawyer practising in Kyiv.

On 22 May 2008 the Constitutional Court declared unconstitutional several provisions of the Law on 2008 State Budget and Amendments to Certain Legislative Acts which had been the basis for re-calculation and eventual decrease of the applicant’s Chornobyl pension.

In July 2011, referring to the above decision of the Constitutional Court, the applicant lodged a civil claim with the Pecherskyy District Court of Kyiv against the State Treasury, complaining that as from 1 January 2008 the amount of his Chornobyl pension was too low contrary to the Constitution and seeking damages caused by a legislative act which had decreased his pension and later had been recognized unconstitutional. He invoked Articles 1173 and 1175 of the Civil Code in this respect.

By judgment of 18 July 2011, the District Court rejected the applicant’s claim on the ground that the conditions and mechanisms for implementation of the provisions of Articles 1173 and 1175 of the Civil Code had not been established by the legislation. Furthermore, the court noted that the applicant did not prove any damage caused to him, given that he alleged damages to have been sustained as from 1 January 2008, whilst the provisions found unconstitutional lost their legal force on 22 May 2008.

On 21 September 2011 and 18 October 2011 respectively the Kyiv City Court of Appeal and the Higher Specialised Court for Civil and Criminal Matters upheld the decision of the first-instance court confirming: that the applicant failed to meet the conditions laid down by Articles 1173 and 1175; and that compensation for material damage as guaranteed by Articles 1173 and 1175 would only have been possible if a special law establishing the conditions and procedure for such compensation had been enacted. The court of appeal noted in particular that, in the circumstances referred to by the claimant, the possibility of obtaining compensation in respect of pecuniary damage is linked to the existence of legislation establishing the specific conditions and the relevant procedure. It concluded that, as such legislation did not exist, the first-instance court had rightly decided that the applicant’s claims were unfounded.

The Civil Code, which came into force in 2004, lays down different obligations as to compensation in respect of damage. Among others, two articles, namely Articles 1173 and 1175, relied on by the applicant in the domestic proceedings, provide for the State to compensate the victims of unlawful decisions of State authorities. The articles in question provide as follows:

“1. Pecuniary damage caused to a natural person or legal entity by unlawful decisions, actions or omissions of State authorities, authorities of the Autonomous Republic of Crimea or local self-governance authorities in the course of the exercise of their powers shall be compensated for by the State, the Autonomous Republic of Crimea or local self-governance regardless of the fault of these bodies.”

“1. Pecuniary damage caused to a natural person or legal entities as a result of adoption by State authorities, authorities of the Autonomous Republic of Crimea or a local self-governance authority of a normative-legal act that was declared illegal and annulled, shall be compensated for by the State, the Autonomous Republic of Crimea or the local self-governance authority regardless of the fault of officers and employees of these bodies.”

“5. Provisions of the Law on 2008 State Budget and Amendments to Certain Legislative Acts, found unconstitutional, lose their legal force from the date when this decision has been adopted by the Constitutional Court of Ukraine.”


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

The applicant was born in 1980 and lives in Istanbul.

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

On 22 December 2009 the Ankara Magistrates’ Court decided to restrict access to the investigation file in accordance with Article 153 § 2 of the Code of Criminal Procedure (the “CCP”), Law no. 5271

On 9 February 2010 the applicant was arrested and taken into custody on suspicion of forming a criminal organisation and fraudulent use of credit cards.

On 11 February 2010 the applicant’s statement was taken by the police in the presence of his lawyer and he was questioned at length about his telephone conversations that had been intercepted. The police read out the transcripts of the intercepted conversations, and the applicant did not deny that he had had these conversations but claimed that they did not prove that he was guilty.

On 12 February 2010 the investigating judge questioned the applicant in the presence of his lawyer. The applicant denied that he was involved in a criminal organisation and submitted that the intercepted calls did not prove that he was guilty. The investigating judge ordered the applicant’s detention on remand taking into account the strong suspicion that he had committed the alleged offence, the risk of absconding and tampering with evidence as well as the risk of coercing some of the witnesses and victims.

On various dates the applicant requested his release pending trial. These requests were dismissed by the courts, having regard to the nature of the offence with which the applicant was charged, the existence of a strong suspicion that the applicant had committed the offence in question, the state of the evidence, the risk of absconding and tampering with evidence as well as the time spent in detention. The applicant objected to these decisions. By decisions of 22 April 2010 and 20 October 2010 the appeal courts, without holding a hearing, rejected the applicant’s objections based on the information contained in the case file.

Upon his application, on 19 January 2011, the 26th Chamber of Ankara Criminal Court ordered the applicant’s release having regard to the time he spent in detention.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

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 of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.


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

The applicant was born in 1942 and lives in Hévíz.

It appears that in 2001 an action was brought against the applicant before the Keszthely District Court. The plaintiff sought the payment of some outstanding fees.

After a first- and a second-instance judgment, on 20 January 2011 the Supreme Court gave final decision in the case.


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

The applicants were born in 1964, 1958, 1993, 1997, 1997, 2000, 1998, 1994, 1990 and 1989 respectively and live in Batman.

On 26 June 2005, the first two applicants’ son and the other applicants’ brother, A.O., aged fourteen at the time, went into Batman Stream to swim and subsequently drowned.

According to the applicants, the uncontrolled draining of sand from Batman Stream of Dicle River changed the stream’s ecological balance. Eventually, holes and vortexes which occurred as a result of uncontrolled sand drain allegedly contributed to A. O.’s drowning.

Criminal proceedings where initiated against the Beysan joint stock company (“the company”), which was conducting the sand mining business at the time of events, and the Batman Governor’s office which issued the necessary permits to run the sand mine. On 5 March 2005, the criminal proceedings before the Batman public prosecutor’s office concluded with a decision not to prosecute. On 12 March 2006, the first applicant appealed against the non-prosecution decision. However, on 19 March 2007 his appeal request was also rejected by the Batman Assize Court.

While the criminal proceedings were pending, the first applicant requested the determination of evidence from the Batman Magistrates’ Court into the incident which led to A.O.’s death. Two expert reports were issued following the scene investigation, conducted by the Batman Magistrates’ Court on 8 July 2005. According to the expert reports, it was stated that the uncontrolled sand draining from Batman Stream changed the natural flow of the water and caused artificial holes and vortexes which amounted to three meters in depth in some parts. Despite these dangers, there were no warning signs.

On 27 July 2005 the applicants being convinced that the failure of the authorities and the company to take necessary safety measures to protect A.O.’s right to life, applied to the civil court of first instance with a compensation request. They sought a total of 75,000 Turkish liras (TRY) (46,500 euros (EUR) at the time) in compensation for both pecuniary and non-pecuniary damages.

The applicants also requested legal aid for the court fees. On 15 August 2005, the Batman Civil Court of First Instance ordered the Security Directorate in Batman to investigate the economical means of the applicants. According to the report submitted by the Security Directorate, it was revealed that the applicants were unemployed and lived on state benefits and help from their neighbours. Nevertheless, the trial court rejected the applicants’ legal aid request on the basis of Sıddık Onar, the father of the deceased’s, age and his ability to work.

On 1 December 2006 the trial court notified the applicants that they were required to pay a court fee of TRY 214.76 (approximately EUR 115) within ten days in order to continue the proceedings and that the proceedings would be discontinued if they failed to do so.

On 29 December 2006 the Batman Civil Court of First Instance decided to discontinue the proceedings as the applicants had not paid the court fees.


Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion)

Alena Poláčková;Helen Keller;Pere Pastor Vilanova

The applicant was born in 1960 in the Georgian SSR of the USSR. He had lived in Russia since 1995. On 23 November 2007 his Georgian nationality was revoked by a decree of the President of Georgia.

In 1998, 2007 and 2009 the applicant was convicted of drug-related

offences in Russia and given a custodial sentence. The most recent sentence was set to expire on 11 October 2012.

On 8 October 2012 the Ministry of Justice issued a decision declaring that the applicant’s presence in Russia would be undesirable upon his release (the “exclusion order”).

On 11 October 2012 the Federal Migration Service (FMS) issued a deportation order against the applicant and asked the Abakan Town Court of the Khakassiya Republic to authorise the applicant’s placement into the detention centre for aliens pending his deportation. On the same day the Town Court granted the request, holding that the applicant should remain in the centre “until his deportation”.

On 1 November 2012 the Abakan Town Court, and on 16 January 2013 the Supreme Court of the Khakassiya Republic, confirmed the validity of the exclusion and deportation orders. On 8 April 2013 the applicant’s request for leave to appeal was rejected.

On 7 November 2012 the Supreme Court of the Khakassiya Republic heard the applicant’s appeal against the decision on his placement in custody. The Supreme Court upheld the detention order but limited it in time until 31 December 2012.

On 14 December 2012 the Abakan Town Court examined an application for an extension of the time-limit. Noting that the FMS had not yet received a response from the Georgian Interests Section as to the applicant’s nationality, it extended the time-limit until 1 July 2013.

The applicant filed an appeal. He submitted that, upon serving the sentence, he should have been given an opportunity to leave Russia of his own will but that had been refused to him.

On 24 January 2013 the Supreme Court of the Khakassiya Republic rejected the appeal. It further held that the Town Court had erred in fixing a specific time-limit for the applicant’s detention and that the applicant should remain in detention “until his deportation”. On 8 April 2013 the applicant’s request for leave to appeal was rejected.

On 1 March, 16 October and 23 November 2012 the FMS inquired the Georgian Interests Section at the Embassy of Switzerland in Moscow whether or not the applicant was a Georgian national. On 5 February 2013 the Georgian Interests Section replied that the applicant’s Georgian nationality had been revoked by the President’s decree on 23 November 2007.

On 30 January and 19 February 2013 the applicant asked the FMS to consider his deportation to Turkey where he owned real estate and where he had lived between 2001 and 2005. On 27 February 2013 the FMS applied for assistance to the Consular Department of the Ministry of Foreign Affairs (MFA). However, on 16 May 2013 the MFA explained that it was unable to issue laissez-passer documents to foreign nationals and referred the FMS to the Turkish Embassy in Moscow.

In June 2013 the FMS established a working group on the applicant’s deportation. On 1 July 2013 the group sent a request to the Turkish Embassy and also asked the Georgian Interests Section whether the President’s decree revoking the applicant’s Georgian nationality could be quashed in connection with the Georgian amnesty act of 13 January 2013.

The applicant complained to a court about an excessive length of his detention. He submitted that he had been spent more than eight months in custody owing to the FMS’s failure to act diligently in the deportation proceedings. On 26 July 2013 the Abakan Town Court agreed with the applicant’s claim, noting that more than six months had lapsed between a first inquiry to the Georgian Interests Section about the applicant’s nationality dated 1 March 2012 and the second inquiry dated 16 October 2012, that no information about any action by the FMS in the period between 27 February and 1 July 2013 had been submitted, and that a request to the Turkish Embassy had been sent more than forty-five days after receiving the MFA’s explanation. The Town Court pronounced unlawful the FMS’s failure to act but refused to fix a time-limit for the applicant’s detention, referring to the Supreme Court’s judgment of 24 January 2013 (see paragraph 13 above).

In the meantime, Georgian counsel for the applicant’s family challenged the President’s decree revoking the applicant’s Georgian nationality in the Tbilisi City Court. Hearings were held on 26 September and 11 and 22 October 2013. On 11 November 2013 the City Court granted the claim and set aside the decree. That decision was upheld on appeal on 10 January 2014.

On 24 February 2014 the applicant obtained Georgian passport. On 3 March 2014 he was deported from Russia.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant, a lawyer, was born in 1953 and lives in Matosinhos.

On 22 February 2008 the Porto Ethics Council (Conselho Deontológico do Porto) of the Portuguese Bar Association (Ordem dos Advogados) instituted disciplinary proceedings against the applicant, following a complaint introduced by the Administrative Central Court of the North (Tribunal Central Administrativo do Norte) against the latter (disciplinary proceedings no. 100/2008). In particular, the complaint concerned the applicant’s request made in the course of four different tort actions against the State, in which he was a legal representative, to have a judgment from the European Court of Human Rights translated and paid by the domestic court.

On 10 March 2008 the applicant was summoned of the disciplinary proceedings and on 13 March 2008 he presented his submissions.

On 9 November 2012 the Ethics Council dismissed the case for being time-barred.