Violation of Article 14+P1-2 - Prohibition of discrimination (Article 14 - Discrimination) (Article 2 of Protocol No. 1 - Right to education-{general};Right to education);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant was born in 1989 and lives in Istanbul.

On 15 June 2004 she applied to take part in the entrance competition for the Turkish National Music Academy attached to İstanbul Technical University (“the Music Academy”) for the 2004-2005 academic year.

On 21 and 31 August 2004 she took the practical selection tests performing on the bağlama.

On 7 September 2004 the music section of the Academy administration published a list of successful candidates in the entrance examination, which included the applicant.

The applicant immediately applied to a medical board at Büyükçekmece Public Hospital for a medical report certifying her fitness to study at the Music Academy.

On 9 September 2004 that medical board drew up a report stating that the applicant had been diagnosed with hypermetropia with nystagmus and severe bilateral amblyopia. The Board concluded that the applicant should be referred to a higher medical authority.

On 16 September 2004 a medical board at the Bakɪrköy Research and Training Hospital (“Bakɪrköy Hospital”) prepared a medical report finding that the applicant could receive education and instruction in the sections of the Music Academy where eyesight was unecessary.

On the same day the Director of the Music Academy sent a letter to the applicant stating the following:

“As we have explained on several occasions to your mother, your father and yourself, since you have failed to provide a report from a fully equipped public hospital (tam teşekküllü devlet hastanesi) confirming that you can study at the Music Academy ... we have been unable to enrol you ... We look forward to receiving your report from a public hospital mentioning your admission to the Music Academy as a student as soon as possible ...”

On 20 September 2004 the applicant’s father wrote to the Director of the Music Academy to inform him that the medical report had been forwarded to the Music Academy that same day, as requested.

Also on the same day, the Director of the Music Academy wrote to the Chief Medical Officer of Bakɪrköy Hospital. Referring to the report issued by that hospital’s Medical Board on 16 September 2004, he informed the Chief Medical Officer that none of the seven sections of the Music Academy could be deemed not to require eyesight. The letter stated that in order to be able to be educated in any section of the Academy, a student had to submit a medical report stating that he or she was fit for the task. The Director of the Music Academy asked the Chief Medical Officer to prepare a fresh medical report taking account of the fact that no section of the Music Academy could be considered as not necessitating eyesight, and accordingly to specify whether or not the applicant was capable of being educated in the Music Academy.

On an unspecified date the Music Academy rejected the applicant’s request for enrolment.

On 24 September 2004 the applicant’s parents, acting in her name and on her behalf, lodged with Istanbul Administrative Court (“the Administrative Court”) an action against the administration of Istanbul Technical University to set aside the Music Academy’s decision not to enrol their daughter. That action was accompanied by a request for a stay of execution of the impugned decision. In his pleadings, counsel for the applicant argued that his client had passed the entrance examination to the Music Academy on 21 August 2004, appearing before a panel of eight teachers, and that on 31 August 2004 she had passed the final entrance competition with full marks, appearing before a panel of twenty teachers. Quoting the criteria for admission to the Music Academy, that is to say being under the age of fifteen, holding a certificate of primary education, having the requisite physical abilities for playing the chosen instrument in respect of which enrolment has been requested, not having a physical disability such as to prevent her from receiving an education in the chosen section, and passing the talent and technical standard competition. Counsel for the applicant submitted that she had satisfied all those criteria. Her enrolment in the Music Academy had been refused on the sole ground that she was blind, which was contrary to law and the equality principle. In support of her application, counsel for the applicant relied on Article 42 of the Constitution, Articles 4, 7, 8 and 27 of Basic Law No. 1739 on national education (“Act No. 1739”) and Article 9 of Legislative Decree No. 573 on specialised education. He also cited the names of former blind students who had graduated from the same Music Academy.

In a statement of defence of 12 October 2004 the administration of Istanbul Technical University submitted that when filing her application for enrolment the applicant’s father had provided no document referring to her blindness. It contended that he had concealed that fact, had behaved as if his child were disability-free and had therefore attempted to deceive the enrolment office. It stated that Article 4 of the principles governing admissions and enrolment in the Music Academy set out the “no disability” criterion. Furthermore, the applicant had failed to provide a medical report certifying that she could study at the Music Academy, which requirement applied to all applicants for admission. The statement therefore affirmed that the refusal to enrol the applicant had not been due to her blindness but stemmed from her failure to submit all the requisite documents for her enrolment, within the stipulated time-limit. It added that even though the medical report submitted by the applicant had stated that she could study in the sections of the Academy where eyesight was unnecessary, there were in fact no such sections. Finally, it pointed out that in the absence of appropriate facilities and teaching staff with the requisite expertise, the Music Academy was not in a position to provide education for blind students, or indeed for persons with any kind of disability. In that connection it explained that in 1976, when it had opened, the Music Academy had hoped to introduce facilities for teaching blind students, but the lack of teachers with a command of braille had forced it to abandon those efforts.

On 14 October 2004 the Administrative Court dismissed the request for a stay of execution of the decision on the grounds that the conditions set out in section 27 § 2 of Act No. 2577 on Administrative Procedure (“Act No. 2577”) as amended by Act No. 4001 had not been met.

On 26 October 2004, acting in her name and on her behalf, the applicant’s parents appealed against that decision to the Istanbul Regional Administrative Court. They argued that pursuant to section 27 § 2 of Act No. 2577, there had been two preconditions for obtaining a stay of execution: the existence of damage which was irreparable or difficult to repair, and the apparent unlawfulness of the administrative Act in question. The parents stated that under the circumstances of the present case it was obvious that the refusal to enrol their daughter in the Music Academy would cause her damage which would be difficult to repair. They also submitted that such refusal was unlawful. Their memorial pointed out that the applicant held a primary school certificate and, apart from her blindness, had all the requisite physical capacities for playing the bağlama. Furthermore, she had passed the entrance examination for the Music Academy, and a medical report had established that she had no disability such as to prevent her from receiving education in the music department. They submitted that the merits of that medical report could not be contested, that other students had provided medical reports from institutions similar to that which had drawn up the applicant’s report, and that the Music Academy had accepted those reports. In their view, the fact that the report had not specifically mentioned that the applicant could study at the Academy could not invalidate it. Moreover, they argued that the respondent administration’s argument that the medical report had not been submitted in time was fallacious, as that report had been submitted to the Music Academy on Monday 20 September 2004, that is to say on the first working day after receipt of the letter from the Academy requesting the report. The parents further affirmed that the applicant had met all the conditions for enrolment and submitted the requested documents within the stipulated time-limits. The only reason for the refusal of enrolment had been her blindness. In reply to the respondent administration’s plea that the Music Academy had no sections where eyesight was not required, the applicant’s parents provided the names of four blind graduates of the Music Academy. Those former students had asserted that blindness was no obstacle to playing a musical instrument, that there were many blind musicians and that the Music Academy’s argument that none of the teachers knew braille was invalid in the light of advanced technology and computer systems capable of converting braille. Finally, the applicant’s parents submitted that the impugned measure was contrary to the constitutional principle of equality and all the relevant international legal instruments.

On 28 October 2004 the Istanbul Regional Court Administrative dismissed that appeal on the grounds that the conditions for a stay of execution set out in section 27 § 2 of Act No. 2577 had not been fulfilled since the execution of the impugned decision was not such as to cause damage which was irreparable or difficult to repair and was not unlawful.

On 29 November 2004 the Chief Medical Officer of Bakɪrköy Hospital wrote to the administration of the Music Academy to inform it that the medical report du 16 September 2004 had been revised. The original sentence “can receive education and instruction in the sections of the Music Academy where eyesight is unnecessary” had been replaced by: “cannot receive education or instruction”.

On 11 March 2005, acting in the applicant’s name and on her behalf, her parents submitted a complaint to the Bakɪrköy State Prosecutor against the Bakɪrköy Research and Training Hospital, its Chief Medical Officer and the other doctors who had amended the medical report of 16 September 2004, accusing them of abuse of office. They argued that the doctors had amended the medical report arbitrarily, without examining their daughter. They affirmed that the purpose of the amendments had been to ensure that the proceedings against the administration of Istanbul University concluded in the latter’s favour.

On the same day they applied to the Istanbul Medical Association for an inquiry into the events in question.

On 23 May 2005 the Health Department attached to the Istanbul Governor’s Office adopted a decision refusing to authorise the prosecution of the Chief Medical Officer in question. That decision mentioned that the findings of the report had been amended at the request of the administration of the Music Academy and that there had been no wrongdoing or abuse of office.

On 4 July 2005 the applicant’s parents, acting in her name and on her behalf, appealed to the Istanbul Regional Administrative Court to set aside that decision and authorise proceedings against the Chief Medical Officer in question. That appeal was unsuccessful.

On 18 July 2005 they lodged an appeal with the Istanbul Court Administrative requesting the setting aside of the decision not to enrol the applicant. They relied on section 15 of Act No. 5378 of 1 July 2005 on persons with disabilities (“Act No. 5378”), which had, in their view, put an end to all forms of discrimination in the educational sphere.

On 14 October 2005 the Administrative Court dismissed the applicant’s appeal. The relevant sections of the court’s reasoning read as follows:

The principles governing entrance competitions and enrolments at the Turkish National Music Academy attached to Istanbul University were adopted by the University Senate ... at the request of the section assembly, after having been debated in the Music Academy assembly and deemed lawful by the University’s Educational Board. ... Those principles include the condition that applicants who have passed the competition for enrolment in the Music Academy should not suffer from any physical disability impeding education in the section [to which they have been admitted]. Furthermore, that condition is mentioned on the form distributed to applicants listing the documents required for final enrolment. The submission of a report drawn up by a fully equipped hospital and stating ‘is capable of studying at the Music Academy’ is mandatory.

It transpired from the assessment of the application that [the applicant] passed the entrance examination and secured the right to be enrolled. However, whereas the report prepared by Büyükçekmece Public Hospital had concluded that a report should be requested from a higher medical board, she requested a report from an equivalent medical board, namely Bakɪrköy Research and Training Hospital. It transpires from the defence of the respondent administration that in the 1970s, when the Music Academy was set up, it had enrolled a number of blind students on a trial basis, but, in the absence of teaching staff conversant with the braille alphabet and having regard to the various difficulties encountered, that experiment was discontinued. No further blind students were admitted. It has been established that the administration wrote to the Chief Medical Officer of Bakɪrköy Hospital requesting information on the interpretation of the medical report which it had issued and that the conclusions of that report had subsequently been amended. The respondent administration’s decision to refuse to enrol the applicant was not unlawful as she had been unable to provide a report drawn up by a fully equipped public hospital and stating that she was capable of studying at the Music Academy. The applicant’s allegations to the contrary are ill-founded ...”

The Administrative Court adopted that decision on a majority vote, contrary to the recommendation of the President of the court, who adopted a dissenting opinion stating, with reference to Article 42 of the Constitution and Act No. 1739, that no one could be deprived of his or her right to education and instruction. In his view, it was beyond doubt that it was incumbent on government departments to put in place an environment conducive to education and instruction and meeting the needs of blind persons. Referring to the defence put forward by the respondent administration, which had attempted to incorporate blind students in 1976, he noted that it had been possible at the time to provide blind persons with musical education. He emphasised that there were many famous blind musicians. To deprive individuals of their right to education was incompatible with a social and democratic State governed by the rule of law. He consequently held that the impugned administrative measure had been unlawful.

On 9 November 2005 the Governing Board of the Istanbul Medical Association wrote a letter to the applicant’s father in reply to his request of 11 March 2005 (see paragraph 23 above). The relevant parts of the letter read as follows:

“1. The two reports covered by the inquiry are similar in content.

However, the hospital administration’s failure to defend the initial report and its decision to make the requested amendments, on the instructions of the administration of the Music Academy ... cannot be considered as an appropriate attitude.

The letter of 22.10.2004 (no. 5821) sent by the administration of the Music Academy ... to the Chief Medical Officer of the hospital ... states that ‘inasmuch, moreover, as the teaching administered in those sections is intended for sighted students, we have no suitable educational environment for blind students (in terms of resources, equipment, technical facilities or teachers). For those reasons it is out of the question for sighted and blind students to follow common courses’.

... Having regard to the relevant international agreements and legislative provisions, the course of action expected of the administration was not to force through amendments to a report drawn up by a hospital, thus impeding a blind citizen’s right to education ... In conclusion, the Chief Medical Officer amended the form of the report, [but] its content remained the same, such that he cannot be accused of negligence. The available administrative and judicial remedies should be used to aasert the right in question ...”

On 18 April 2006 the applicant’s parents, acting in her name and on her behalf, lodged an appeal on points of law with the Council of State against the 14 October 2005 decision of the Administrative Court (see paragraph 27 above). They submitted that that decision was contrary to the Constitution, to Act No. 1739, to Act No. 5378 and to several international instruments and declarations. They submitted that the respondent administration’s defence plea that eyesight was required in all the sections of the Music Academy was fallacious, citing the names of blind former music students who held diplomas from the Academy. They requested the invalidation of the first-instance decision in accordance with the arguments set out in the opinion of the President of the Administrative Court.

On 4 January 2007 the administration of Istanbul Technical University filed its defence. It submitted that the applicant’s medical report had mentioned that she could study in the sections of the Music Academy which did not require eyesight, but that in fact the Academy had no such sections. Lastly, it affirmed that the applicant had not met all the requisite conditions for enrolment.

By judgment of 19 February 2008, served on counsel for the applicant on 28 April 2008, the Council of State dismissed the appeal on points of law and upheld the impugned decision, having found that the latter had fallen within the jurisdiction of the administrative court, had not been unlawful and had complied with the procedural rules. Moreover, it transpired from the judgment of the Council of State that the reporting judge had come down in favour of admitting the appeal on points of law. In his opinion on the appeal on points of law, the State Prosecutor with the Council of State, referring to Article 42 of the Constitution and sections 4, 7 and 8 of Act No. 1739, also stated that educational establishments were required to take into account persons who required specialist teaching and to adopt the necessary measures to guarantee their education. In the circumstances of the present case, he considered that the decision not to enrol the applicant – who had passed the entrance examination for the Music Academy and met all the legal conditions – flouted the relevant constitutional and legislative provisions and should therefore be set aside.

According to information transmitted to the Court by the applicant, after the rejection of her application to the Music Academy, she continued her education in an ordinary school before joining the Music Department of the Arts Faculty of Marmara University.


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

The applicant, Mr Osvaldo Marcelo Batista Laborde, is a Uruguayan national, who was born in 1966 and lives in Graz. He is represented before the Court by Mr K. Bernhauser, a lawyer practising in Vienna.

The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for Europe, Integration and Foreign Affairs.

On 31 January 2008 the Graz Regional Court (Landesgericht für Strafsachen Graz) convicted the applicant of partly attempted and partly realised drug trafficking and sentenced him to twelve and a half years’ imprisonment.

He was found, together with L.V., to have assisted in the shipment of more than 270 kilograms of cocaine from Callao in Peru. The transport route via the Bahamas, the United States of America, Belgium and Germany to Austria had only been interrupted as a result of the seizure of the drugs by the US authorities in the port of Charleston.

The applicant was also found to have organised the shipment, once again together with L.V., of a further 140 kilograms cocaine from Callao, via the Dominican Republic, the Bahamas, the United States of America and Belgium to Bremerhaven in Germany, with the onward transportation by road to Austria being organised by investigators from the Austrian Ministry for Interior Affairs. Finally, the applicant and L.V. were found to have attempted by means of those shipments to supply the above-mentioned quantities of illegal substances to contacts in Europe for further distribution.

According to the reasoning of the judgment of the Graz Regional Court, the applicant was the contact person of the South American cocaine sellers’ group which entered into business with a Serbian-Montenegrin buyers’ group with L.V. as mediator. L.V. was known to the US Drugs Enforcement Administration (DEA) and an informant (“Marc”) was placed close to L.V. by the US authorities. Marc was well known to the authorities and had had business dealings with L.V. in the past. He was not a police officer but was supervised by special agent S.F. of the DEA. He had also worked for the DEA and the Austrian authorities in a coordinated operation between 2001 and 2003 to uncover international drug trafficking in Eastern Europe through Austria. Due to the conduct of Marc, authorities learned in December 2003 that L.V. had contacted an international group that was interested in establishing a European infrastructure through which to traffic counterfeit cigarettes and cocaine. The information included details of possible quantities and routes. L.V. was looking for somebody who could provide the transport and the storage of the cocaine from Germany, where the drugs should be unshipped, to Croatia. Austrian authorities were asked by the DEA if they would provide these services to L.V. in the course of an undercover operation. Between December 2003 and February 2004, the Austrian police authorities initiated undercover investigations, primarily into the European partners to the deal. Austrian undercover police officers were introduced to L.V. by Marc and offered the required transport and storage services. L.V. and the two criminal groups accepted. During the business negotiations, the South American group as well as the SerbianMontenegrin group requested a security in case of loss of the drugs due to the conduct of the Austrian authorities. The undercover officers offered a deposit of EUR 400.000 which was presented to the contact persons of the two groups. After the security deposit was presented, the cocaine was shipped in South America in two tranches. On 3 November 2004 the first container left the port of Callao, Peru, with a planned arrival date in Bremerhaven, Germany, of 4 or 5 December. On board were 270.4 kilograms of best quality cocaine, consisting of 232.5 kilograms of cocaine in pure form. However, the cocaine was seized and secured in the port of Charleston, South Carolina, in the course of a police intervention by the US security authorities. The empty container was sent on to Bremerhaven. On 23 November 2004 a second container with 140 kilograms of cocaine was shipped. The first container arrived in Graz, Austria, on 12 January 2005 and was unloaded by Austrian undercover police officers. As agreed by the two criminal organisations involved, they stored the shipped goods in which the drugs had been hidden, in a storage facility in Unterpremstätten before passing them on to the group headed by N.T. and other distributors for sale in Europe. On 28 November 2004 the applicant left Uruguay for Spain via Portugal, and finally arrived in Vienna on 5 December 2004. The objective of the trip was to have a representative of the South American group present at the handover of the original freight papers. When the loading should have formally been handed over to the buyers’ group, the police arrested the applicant and the others.

There is no indication that at any point during the trial proceedings before the Regional Court the applicant filed a request that the indictment be declared unlawful and that, as a consequence, all evidence obtained in the course of thereof be excluded from the trial.

The Regional Court attributed importance to the witness statements of the undercover officers who had explained – as set out in the reasoning of the judgment – credibly and in great detail the structure and organisation of the groups involved, the details of the deal, and the conversations held during the course of planning the crime. The court emphasised that the undercover officers’ responsibility had been to put in place the planned infrastructure (the storage, for example), not to simulate drug-purchasing. In view of the international dimension of the drug deal and the involvement of an obviously substantial South American drug trafficking group, the court found it not abnormal that trust-generating measures such as the payment of EUR 400,000 as a security deposit had to be demonstrated by the undercover officers.

The applicant’s involvement was confirmed, inter alia, by the investigative results of a police officer in Montevideo who was able to confirm the contacts established early on between L.V. and the applicant in South America.

When determining the sentence to be imposed on the applicant, the Regional Court stated as mitigating circumstances the lack of any criminal record of the applicant in Austria, the length of the proceedings, and the fact that the criminal acts had remained attempts only. However, the large quantities of illegal drugs involved were deemed to constitute an aggravating circumstance.

On 23 June 2008 the applicant, represented by counsel, lodged a plea of nullity to the Supreme Court (Nichtigkeitsbeschwerde). In this plea he did not complain about incitement.

In the same submission the applicant lodged also an appeal against the sentence to the Graz Court of Appeal (Berufung). In the appeal the applicant sought mitigation of the sentence and submitted, inter alia, that the first-instance court, in imposing the sentence, had disregarded the fact that the offences had been prompted by actions on the part of domestic and American police authorities. He further stated that the DEA had also approached the German police authorities with their plan to help realise a major drug deal, but the latter had declined the proposal as being unlawful. Only then had the DEA proposed the plan to the Austrian authorities. The applicant alleged that neither the South American group nor the presumed European buyers had had the intention of organising a drug shipment to Austria. That plan had been created ‒ in contravention of Austrian law ‒ by the Agent S.F. together with Austrian officials from the Federal Ministry of Interior Affairs (Bundesministerium für Inneres). Those acts on the part of the police authorities exceeded the bounds of simple provocation, especially taking into account that the offences of which the applicant was convicted would not have come to fruition had the Austrian authorities not deposited EUR 400,000 by way of a security deposit.

On 21 January 2009 the Supreme Court (Oberster Gerichtshof) dismissed the applicant’s plea of nullity.

On 1 April 2009 the Graz Court of Appeal (Oberlandesgericht Graz) allowed the applicant’s appeal and decreased his sentence to twelve years’ imprisonment. It found firstly that the commercial character of the offences (gewerbsmässige Begehungsweise) had to be taken into consideration as an additional aggravating circumstance. As regards the significance attributed by the first-instance court to the length of the proceedings, the Court of Appeal stated that, while acknowledging the length of the proceedings as a mitigating circumstance, the Regional Court had not clearly quantified the reduction of the sentence related to that mitigating circumstance. Finally, concerning the provocation of the criminal offence that violated the fairness principle of Article 6 of the Convention, the Court of Appeal noted in respect of the co-convicted N.T. as follows:

“The objection of unlawful incitement, in breach of the principle of a fair trial under the first sentence of Article 6 § 1 ECHR, is well founded, as there was incitement to commit an offence, attributable to the State. This is especially true since the prosecuting authorities failed to prove that the appellant, although disposed to commit an offence, had not been induced – in particular via the provision of the intermediate storage facility for the drugs by the undercover investigators and the support they provided for transporting the drugs to that storage facility – to commit and continue to commit the specific punishable acts of which he was accused. The unlawful incitement should also be remedied by means of an explicit, measurable reduction in sentence.”

Applying this reasoning to the applicant’s appeal, the Court of Appeal further found that:

“The consequent breach of the right to a fair trial also found in the case of the accused Batista Laborde is likewise remedied by the appellate court by means of a reduction in sentence. This was taken into account to some extent by the first-instance court – albeit not in quantitative terms – in respect of the excessive length of the proceedings. The sentence of thirteen years’ imprisonment, which was otherwise commensurate with the degree of guilt and the seriousness of the offence (regard being had to the corrected factors considered in determining sentence and the assessment thereof), is reduced by six months for each of the two breaches of the Convention, resulting in a sentence of twelve years’ imprisonment.”

That judgment was served on the applicant’s counsel on 29 April 2009.

Article 25 of the Code of Criminal Proceedings (Strafprozessordnung 1975) in force until 1 January 2008 stated that authorities must not, on pain of imposition of a penalty, work towards the production of suspicious facts or the conviction of a suspect by inciting a person to commit, continue with or complete an offence, or by luring a suspect, through the intermediary of an undercover agent, to confess to an offence with the aim of using such confession in court proceedings.

Police undercover operations were regulated in Article 149d to 149e of the Code of Criminal Proceedings and Section 54 of the Security Police Act (Sicherheitspolizeigesetz).

Under the Code of Criminal Proceedings the two possible remedies against a judgment passed by a bench of judges at a Regional Court are a plea of nullity (Nichtigkeitsbeschwerde) and an appeal against sentence (Berufung). A plea of nullity has to be addressed to the Supreme Court while an appeal against sentence has to be addressed to the Court of Appeal. The remedies can be lodged either in the same written submission or separately. If the accused files a single written submission for both remedies, the Supreme Court will examine the case first.

A plea of nullity before the Supreme Court can be based on the specific grounds set out in Article 281 § 1 of the Code of Criminal Proceedings. The list of grounds for invalidity ‒ which is exhaustive ‒ deals with procedural aspects such as the (alleged) bias of a judge or a lack of the requisite representation by a defence counsel during the trial, and also aspects of the merits such as misinterpretation of the law.

According to Article 281 § 1.4 of the Code of Criminal Proceedings, a plea of nullity can be raised if during the main hearing the court in question has failed to deal with a request from an accused or if a [procedural] decision disregarding his request or conflicting with his declared objection has been taken by the Court and there has been a violation of either the law or fundamental procedural principles which seek to safeguard compliance with human rights ‒ especially Article 6 of the European Convention on Human Rights ‒ or other fundamental rights of the prosecution or the defense.

Under Article 281 § 1.9b of the Code of Criminal Proceedings, a plea of nullity can be raised if there are circumstances in which the act concerned is no longer a punishable offence or can no longer be prosecuted.

According to Article 285 § 1 of the Code of Criminal Proceedings the plea of nullity has to name separately and specifically the grounds for invalidity about which it is complaining, otherwise the Supreme Court will not take these grounds into consideration.

If the Supreme Court finds one or more grounds for invalidity well founded, it quashes the judgment and orders a re-trial.

If the Supreme Court has dismissed the plea of nullity and the applicant has also challenged the sentence, the Supreme Court will transfer the case file to the Court of Appeal. In this case, or if the accused has merely filed an appeal against the sentence, the Court of Appeal will only examine the sentence imposed and not consider alleged errors in proceedings, the law or the establishment of facts by the Regional Court. It may examine only the parameters which relate to the Regional Court’s decision on the sentence and therefore re-examines the weighing up of mitigating and aggravating circumstances undertaken by the first-instance court. If the Court of Appeal detects an imbalance in the weighing up of the first-instance court, it readjusts this balance by reviewing the sentence.


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

The applicant, Ms Wiktoria Strzelecka, is a Polish national, who was born in 1924 and lives in Starachowice. She is represented before the Court by Ms M. Cedro-Szyba, a lawyer practising in Kielce.

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

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

On 24 August 2000 the applicant signed a lease contract with the Starachowice Communal Housing Community, “TBS” (“Towarzystwo Budownictwa Społecznego”) concerning a two-room flat located in Starachowice. The applicant knew the flat as it had been rented until then by her son-in-law. The flat measured forty-eight square metres and the applicant was the only tenant. The applicant was to pay rent in the amount of 268 Polish zlotys (PLN).

The building in which the applicant’s flat was located was owned by the Starachowice Municipality but managed by the TBS, a legal entity designed to provide low-rent housing to households of modest means and financed by the State-owned Housing Fund (Krajowy Fundusz Mieszkaniowy). From 2007 the applicant’s flat was managed by another company. The Government submitted that it had never been considered as social housing but as low-rent accommodation for the less well-off.

The applicant’s rent, which included central heating, cold water and other charges, was increased on several occasions, and presently amounts to PLN 530.

The applicant has been paying the rent irregularly, apparently contesting the amount due for central heating, as the flat was always cold because of the poor state of the windows. Moreover, her heating costs increased as she had refused to install indicators of actual consumption of heat on her radiators. After several years she accumulated substantial debt. In 2006 the TBS obtained a court judgment against the applicant, and her granddaughter who was living with her, ordering them to pay maintenance charges. It appears that the court bailiff seized part of the applicant’s pension in execution of this order.

In 2009 the Starachowice Municipality agreed to cancel the applicant’s debt in the amount of PLN 9,600 provided that the applicant continued to pay monthly rent. Afterwards another debt of PLN 3,900 was not cancelled because the applicant had failed to comply with one of the conditions for cancellation that is to continue paying the maintenance in full. In 2013 the municipality again negotiated with the applicant to cancel her debts upon the condition of her payment of the rent in full in 2014. The municipality agreed to cancel 100% of overdue interest and 50% of the main debt. The remainder of the applicant’s debt of PLN 18,000 was spread into 402 payments of PLN 50.

Since 2001 the applicant has been receiving a monthly housing benefit in an amount which started at PLN 280 and recently reached PLN 500. This benefit, designed to help cover heating costs during winter months, was paid directly to the company managing the building. It was paid on the basis of administrative decisions which covered period from two years to several months per year. It appears that since 2008 the applicant has been receiving the benefit without interruption.

Since 2001 the applicant has repeatedly complained to the TBS, and later to the municipality, that the state of the flat was unsatisfactory. She submitted that the windows were very old and poor fitted, and she could not open or close them.

As early as March 2001 the TBS had acknowledged that the windows needed to be changed. However, it has been postponing the works due to the applicant’s non-payment of her debt.

In 2007 the applicant lodged a civil action against the TBS in which she sought payment and to be allocated another flat.

As part of the proceedings an expert opinion was ordered. The opinion submitted to the court on 21 May 2007 stated, in so far as relevant:

... “2. The windows are in very poor general condition. The glass is broken in two windows and cracked in others. Windows’s frames and glass are covered in dust and were not cleaned in years. The wooden frames are dirty and have paint missing, I think they must last have been painted about thirty years ago. About half the putty is missing, and the glass is actually sticking out of the frame, which causes a real danger of the glass falling out on to people on the pavement. No sign of using widely available window seals. I consider that due to dirty windows the amount of light in the flat is reduced by 30-40%.

In general all the walls are covered with mould, dirt and residue from the gas cooker. The same applies to the furniture. There is a discernible smell of mustiness in the flat.

The air vents (size 15 x 15 cm) in the kitchen and bathroom are not working properly, no draught was perceived; the total surface of the openings was covered with dust and soot, which is probably what blocked them...”

In his conclusions the expert considered that the damp and mould had been caused by the total lack of ventilation in the applicant’s flat. The current state of the flat was “an insult to basic requirements for inhabited accommodations”. The state of the windows places passers-by at risk, and they need urgent replacement. In general the expert considered that the applicant should be held responsible for the state of the flat due to her total lack of care, cleaning and maintenance. The expert pointed to the fact that in the neighbouring flats the windows were as old as the applicant’s but well maintained and the flats had not problem of mould or ventilation.

On 25 June 2007 the Starachowice District Court dismissed the applicant’s action. The court established that at the time of signing the lease agreement the applicant had acknowledged the good overall state of the flat except for a broken glass in one window. She noticed no mould or problems with closing and opening of the windows.

The court concluded that the state of the flat had deteriorated due to the applicant’s negligence in ventilating and cleaning it. The court also agreed with the TBS that replacement of the windows may be made conditional upon the applicant paying the debts she owned to the community.

The applicant lodged an appeal but on 7 November 2007 the Kielce Regional Court dismissed it.

In 2008 an emergency chimney sweep was organised. At the same time the Mayor confirmed to the applicant that “the Municipality’s obligations as regards refurbishment of the flat will be fulfilled after you pay your financial debts for the [maintenance of the] flat.”

The windows remain unchanged and no works have been carried out.

It appears that the applicant occupied from the beginning her flat together with her granddaughter, M, and her child. In 2003 a second child was born. Since then the applicant has been occupying the small bedroom and her granddaughter, with her children, the other room.

The relationship between the applicant and her granddaughter deteriorated. The applicant claims to have been insulted and beaten up by her granddaughter on many occasions. On 22 January 2002 the granddaughter was convicted by the Starachowice District Court of verbal and physical abuse of the applicant. She was sentenced to eight months’ imprisonment, suspended for three years.

On 23 December 2008 the applicant lodged a civil action with the Starachowice District Court for eviction of her granddaughter and her children.

On 21 May 2009 the Starachowice District Court allowed the applicant’s action and ordered the eviction of M., with her two children (file no. I C 1/09). At the same time it ordered that the defendants be allocated social housing by the municipality. The execution of the judgment was to be stayed until they had been allocated social housing.

On 18 June 2009 the judgment became final and binding.

The applicant asked the municipality on many occasions to enforce the judgment by granting social housing to M and her children.

The Starachowice Mayor replied to the applicant on 5 May and 16 December 2010 and on 13 April 2011 that her request would be dealt with speedily.

On 2 January 2012 M rejected the municipality’s offer of a social housing. Afterwards in August 2012 the municipality proposed her another flat for rent which she accepted.

The applicant submitted that in October 2012 her granddaughter had been granted a social housing and had moved out.

In 2012 the applicant was declared as suffering of permanent disability since 1999. It appears that she suffers of heart and lungs problems and has impaired hearing.

The December 2006 Amendment to the Act of 21 June 2001 on the protection of the rights of tenants, housing resources of municipalities and on amendments to the Civil Code (Ustawa o ochronie praw lokatorów, mieszkaniowym zasobie gminy i o zmianie kodeku cywilnego, “the 2001 Act”) added a new provision (subsection (5)) to section 18, which makes the municipality liable, under the rules of tort, for any damage sustained by the landlord on account of the municipality’s failure to provide the tenant with social housing. This provision reads:

“(5) If the municipality has not provided social housing to a person who is entitled to it by virtue of a judgment, the landlord shall have a claim for damages against the municipality on the basis of Article 417 of the Civil Code.”

Consequently, the municipality’s failure is statutorily deemed to be an “unlawful omission” within the meaning of Article 417 of the Civil Code.

Article 417 of the Civil Code reads in so far as relevant:

“1. The State Treasury, municipality or another legal person wielding public power by virtue of the law shall be liable for damage caused by an unlawful act or omission in the exercise of that power.”

The Supreme Court, in its ruling of 25 June 2008 (no. CZP 46/2008) concerning a claim for damages under section 18(5) of the 2001 Act read in conjunction with Article 417 of the Civil Code, confirmed that a landlord was entitled to full compensation for any damage sustained on account of a municipality’s failure to provide social housing to a tenant.

Pursuant to section 18(3) of the 2001 Act, as long as the municipality has not supplied social housing, the tenant pays the same amount of rent that he would have paid if the tenancy had not been terminated. According to section 18 (1) and (2), other tenants in respect of whom the tenancy has terminated and who have not vacated the flat pay compensation to a landlord corresponding to the market-related rent that the landlord could normally receive. If such compensation does not cover losses incurred by a landlord, he may seek supplementary compensation.

Section 19 of the 2001 Act provides that the provisions protecting the rights of the owner of the property may also be used to protect rights of a tenant.

According to the Law of 21 June 2001 the tenant is supposed to keep his flat in a proper technical, hygienic and sanitary state. The tenant is responsible for minor repairs relating to normal use of the object of lease in particular repair and maintenance of windows and doors and paining of the doors and windows.


Violation of Article 5 - Right to liberty and security (Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)

The applicant was born in 1984.

On 15 October 2009 he was arrested by the Darnytskyy District Police Department of Kyiv on suspicion of having committed a robbery in aggravated circumstances. On the same day he was charged with that crime.

On 16 October 2009 the Darnytskyy District Court of Kyiv (“the Darnytskyy Court”) ordered the applicant’s pre-trial detention for two months.

On 10 November 2009 the applicant was also charged with murder.

On 10 December 2009 the Darnytskyy Court extended the applicant’s pre-trial detention to three months, namely to 15 January 2010.

On 13 January 2010 the Darnytskyy Court extended the applicant’s pre-trial detention to four months, namely to 15 February 2010.

On 13 February 2010 the case was referred to the Kyiv Court of Appeal for consideration on the merits.

On 15 March 2010 the Kyiv Court of Appeal held a preliminary hearing in the case and ordered, inter alia, that the preventive measure in respect of the applicant should be left unchanged.

On 14 April 2011 the Kyiv Court of Appeal found the applicant guilty of robbery and murder. It convicted him to fourteen years’ imprisonment and ordered the confiscation of his property.

On 13 September 2011 the Higher Specialised Court for Civil and Criminal Matters quashed the judgment and remitted the case for a fresh trial.

On 24 December 2013 the applicant was found guilty of robbery and murder and sentenced to twelve years’ imprisonment. The court also ordered the confiscation of the applicant’s property.

The applicant lodged an appeal. No further information was provided.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Síofra O’Leary;Yonko Grozev

The applicant was born in 1984 and lives in Borgenhaugen.

On 18 September 2008 the Sarpsborg City Court (tingrett) convicted the applicant inter alia on a charge of attempted rape committed against Ms A during the night of 9 March 2008 in a car parked near a petrol station. At the time Ms A and the applicant had been seventeen and twenty-three years old, respectively. Together they had left a party at Mr C’s home in order to buy mineral water at the petrol station. The applicant had borrowed the car from Mr D, Ms A’s boyfriend. They had both attended a party at Mr C’s home one week before but they did not know each other. The applicant and Ms A had been sitting in the car talking and listening to music for a while before they had decided to return to the party. As the car’s battery was flat it would not start. The applicant had called a friend, Mr B, who worked as a taxi driver and who collected him and Ms A and brought them back to Mr C’s home. The City Court did not find credible the applicant’s explanation that he and Ms A had kissed and to a little extent touched one another voluntarily and that he had not forcibly attempted to rape her.

By a judgment of 5 February 2009, the Borgarting High Court (lagmannsrett), hearing the applicant’s appeal with a jury, convicted him on the attempted rape charge and sentenced him to one year’s imprisonment on account of this (and a number of other offences of which he had been charged in the same proceedings). It ordered him to pay 60,000 Norwegian kroner (NOK) (approximately 7,500 euros at that time) in compensation to Ms A for non-pecuniary damage.

In its reasoning the High Court described in detail how the applicant, after he had called Mr B (who could not come straight away), had attempted to obtain sexual contact with Ms A by force. It stated that in the beginning, when the applicant had tried to kiss and touch her, Ms A had told him that she was not interested because she was the girlfriend of Mr D and slapped the applicant. The applicant had not stopped, but had moved himself over to her seat and held her arms behind the neck support. Ms A tried to defend herself and after a while the situation involved into a fight between them, in which she had been physically inferior and had to come to terms with the situation. The applicant had had such control over Ms A that he was also able to call Mr B again and the fact that Mr B was on his way had not hindered the applicant from continuing, until the moment when the lights from Mr B’s car appeared.

The High Court also noted that Mr B had testified that he had not noticed anything conspicuous about Ms A; she had been cheerful and friendly and her clothes had not been in disorder. However, this did not suggest, in the High Court’s view, that she had not been exposed to sexual abuse causing a great burden on her. She had managed to pull herself together when Mr B had arrived. Her reaction had been expressed vis-à-vis others only when she and the applicant had returned to Mr C’s home, where Ms A cried and was in great despair. Her boyfriend, Mr D, had understood that something was very wrong. After opening herself gradually to him, she had explained what had happened.

During a pause in the oral proceedings before the High Court, after both Ms A and the applicant had been heard, one of the jurors –“J” – had informed the presiding judge of the High Court about her previous contacts with Ms A. When the hearing resumed after the break, the presiding judge informed the public prosecutor, counsel for the defence and Ms A’s assistant advocate (bistandsadvokat) about the matter. Counsel for the defence requested that J be disqualified from taking part in the further proceedings on grounds of lack of impartiality. Ms A’s assistant advocate (bistandsadvokat for offeret) supported counsel’s motion. The public prosecutor expressed understanding for the motion without taking a stance.

The applicant’s contestation of J’s impartiality was made with reference to section 108 of the Administration of Courts Act (domstolloven – see paragraph 23 below) and Article 6 § 1 of the Convention. According to the relevant court record, counsel for the defence had stated:

“Counsel stated that he had been informed by the High Court’s presiding judge and the other members of the court, that [J] [who was a member of the jury] had informed the presiding judge that she was the foster mother of a child who had been a pupil in the same school class as the victim, and that she had had contacts with the victim in connection with birthday celebrations at her home. [J] thought that she could recall knowing that the victim had participated in class outings which [J] had attended as a parent. The presiding judge had further informed counsel that [J] did not have any further personal knowledge of the victim, but she had a personal view [bilde] of her as a calm girl. Last time there had been any contact between the victim and [J] dated far back in time.”

The High Court withdrew to deliberate on the issue and decided that J ought not to withdraw. It pointed out that a member might be disqualified if the person in question had particular reasons for identifying himself or herself with the victim or if there were any other circumstances to the effect that he or she had a prejudging attitude because of prior knowledge of the victim. However, that was not the situation in the present case. The High Court observed that “the jury member had formed a picture [bilde] of the victim from many years ago where she at the time had experienced her as a quiet and calm person”. However, it could not see that this was capable of influencing J’s attitude to the sustainability of the victim’s explanation and J’s assessment of the question of guilt in the case. In particular the contact had been sporadic many years ago and the High Court did not find that such a contact was capable of influencing, in one way or another, the assessment in the criminal case. The High Court had special regard to the fact that the parties to the case had requested that J recuse herself, but it found the absence of partiality so clear in this case that this could not be decisive.

Consequently, juror J took part in the entire trial before the High Court, including the jury’s deliberations and vote on the questions put to it by the presiding judge on the charge of attempted rape. After the jury had answered the questions in the affirmative and the professional judges had confirmed the jury’s verdict, she took part, together with the other two jurors selected by drawing of lots, in the deliberations with the professional judges on the question of sentencing and award of compensation of non-pecuniary damage to the victim Ms A.

The applicant appealed against the High Court’s procedure to the Supreme Court (Høyesterett), arguing that J’s participation had been incompatible with section 108 of the Administration of Courts Act and Article 6 § 1 of the Convention.

By a judgment of 26 June 2009 the Supreme Court, by three votes to two, rejected the applicant’s appeal.

The majority did not consider that J’s knowledge of the victim from her attendance at birthday parties and class outings with the victim in itself indicated an identification with the victim or weakened in any other way the confidence in J’s impartiality. It had involved sporadic contacts, not a personal knowledge, and the contacts dated several years back in time. Neither had counsel for the defence alleged before the Supreme Court that this was a sufficient ground for disqualification.

Nor could the mere fact that the juror in question had formed a picture of the victim disqualify her. When it was deemed acceptable that a juror may have some prior knowledge of a victim, it ought also to be accepted that the juror has formed a picture of the latter. Therefore, the question was whether the fact that the juror had stated this to the presiding judge and the matter had thereafter been repeated by the defence counsel in open court would bring the matter into a different light.

In the majority’s view, a statement that one had a picture of a young woman one had previously met when she was younger, as a quiet and calm girl, could hardly be perceived as an expression of an assessment of the person’s credibility or give the impression of identification with, or particular sympathies for, her. This was a neutral value judgment; an observation about the child’s inconspicuous conduct. It could possibly be maintained that one could draw the conclusion that a calm girl would hardly make a fuss without any justifications for doing so, which suggested that Ms A’s crying and despair after she returned after the drive was a sign that she had actually been exposed to an attempted rape. However, there was no basis for such a conclusion and there was in any event no reason for attaching weight to such a possibility. J’s information about Ms A had emerged after she had given evidence to the High Court for one hour. At that point, the jury, including J, had a good opportunity to form an independent and updated picture of the victim as a person. That defence counsel and the assistant advocate had requested that J withdraw could not be decisive. Accordingly, there were no particular circumstances capable of calling into doubt J’s impartiality for the purposes of section 108 of the Administration of Courts Act, as interpreted in the light of Article 6 of the Convention.

The minority considered that the assessment of the impartiality issue ought to take as a starting point that the case concerned a serious and stigmatising accusation against the defendant. There was a lot at stake for the victim, as she could easily perceive a verdict acquitting the defendant to mean that the jury believed that she had made an unfounded and serious accusation against the defendant. The minority shared the majority’s view (see paragraph 16 above) that previous contacts between the victim and J could not, of their own, disqualify the latter. What was decisive was whether J’s statement made after she had heard the evidence given by the accused and the witness describing the latter as a “quiet and calm person” would lead to a different conclusion. In this regard, the minority took as a starting point that the credibility of the victim was the decisive evidence in this case. An additional factor of lesser importance was how the surrounding persons had perceived the victim’s behaviour after the alleged rape attempt.

The timing of J’s statement was of considerable importance. For the persons present in court it could seem conspicuous that the juror, after having heard both the accused and the victim’s evidence, had not confined herself to informing about her previous contacts with A but had found it correct to add that she had experienced the victim as a “quiet and calm person”. The timing of J’s affirmation could easily have given the impression that J expressed a positive assessment of the victim.

Whilst a literal interpretation of “quiet and calm person” was not directly related to the credibility assessment, the affirmation was positively loaded and, when expressed just after the victim had given evidence, could at least easily have been perceived as if, according to J, one had to do with a person who would not make a fuss and thus would not make a false accusation about an attempt of rape. That J had expressed a view on how she had perceived her “at the time”, was of secondary importance. This was a nuance that could easily be overlooked by a person overhearing her statement and which, having regard to the timing, could hardly be perceived as a reservation with regard to A’s current character.

An important, albeit not decisive, consideration under section 108 of the Administration of Courts Act was also the fact that both counsel for the defence and the assistant advocate had demanded that J recuse herself. Under Article 6 § 1 of the Convention, “the standpoint of the accused [was] important but not decisive”; in this case the “fear” of lack of impartiality by the applicant had been “objectively justified” (see Ferrantelli and Santangelo v. Italy, 7 August 1996, § 58, Reports of Judgments and Decisions 1996III).


Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The applicant, Mr Ali Sayan, is a Turkish national, who was born in 1989 and lives in İzmir.

When the present application was lodged, the applicant was in pre-trial detention in the Ankara F-type prison. On 7 January 2011 the prison disciplinary board decided to destroy a postcard sent to him, allegedly to celebrate the new year, on the grounds that the postcard “would stir up trouble” (sakıncalı) because the picture on it incited violence.

On 19 January 2011 the Ankara Enforcement Judge dismissed an objection lodged by the applicant.

On 28 February 2011 the Ankara Assize Court dismissed a further appeal lodged by the applicant.

Prisoners’ right to correspondence is mainly set forth in section 68(3) of Law no. 5275 on the execution of sentences and preventive measures and Article 91 § 3 of the Regulations on prison management and execution of sentences. Under that law, prisoners’ correspondence is monitored by a letter-reading committee and may be subjected to restrictions in the following circumstances:

if its content is considered to be a threat to order and security in the prison;

if it singles out prison officials as targets;

if it allows communication between terrorist or other criminal organisations;

if it contains false or misleading information likely to cause panic in individuals or institutions; or

if it contains threats or insults.

A full description of the domestic law and practice at the relevant time may be found in Mehmet Nuri Özen and Others v. Turkey (nos. 15672/08, 24462/08, 27559/08, 28302/08, 28312/08, 34823/08, 40738/08, 41124/08, 43197/08, 51938/08 and 58170/08, §§ 30-34, 11 January 2011).

Under Law no. 6384 a Compensation Commission was set up in Turkey to resolve, by means of compensation, applications lodged with the Court. Initially, the Commission’s competence ratione materiae was limited to applications concerning length of judicial proceedings and non-enforcement or delayed enforcement of judicial decisions. A full description of the relevant domestic law may be found in Turgut and Others v. Turkey ((dec.), no. 4860/09, §§ 19-26, 26 March 2013).

The competence ratione materiae of the Compensation Commission was extended by a decree which came into force on 16 March 2014. The Compensation Commission could thus examine other complaints such as alleged restriction of prisoners’ right to respect for correspondence in a language other than Turkish and refusal by the prison authorities, on different grounds, to hand over periodicals. A full description of the relevant domestic law may be found in Yıldız and Yanak v. Turkey ((dec.), no. 44013/07, §§ 9-17, 27 May 2014).

Furthermore, according to Article 5 § 2 of Law no. 6384, an applicant may apply to the Compensation Commission within one month following the official notification of the Court’s inadmissibility decision by the Government.

The Turkish Council of Ministers issued a decree which was published in the Official Gazette and came into force on 9 March 2016. The new decree further extended the competence ratione materiae of the Compensation Commission.

Article 4 of the decree entitles the Compensation Commission to examine, among others, complaints concerning alleged breaches of the right to respect for correspondence of detainees or convicted persons on account of the non-transmission of correspondence drafted in Turkish. The relevant part of the provision reads as follows:

“Article 4

e) Applications concerning an alleged breach of the right to respect for correspondence on account of the prison administration’s refusal to receive or send letters or similar correspondence that are drafted in Turkish.”


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading punishment;Inhuman punishment) (Substantive aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The first applicant, Mr T. P. was born in 1981 and is currently serving his prison term in Sátoraljaújhely.

On 22 November 2006 the Nógrád County Regional Court convicted the first applicant of murder committed with special cruelty and abuse of firearms. The applicant was sentenced to life imprisonment with no possibility of parole.

On 28 June 2007 the Budapest Court of Appeal upheld the judgment, adding that the murder had been committed for ‘villainous’ reasons, namely, the applicant was considered to have killed the victim in a particularly atrocious manner, so as to prevent her from reporting the initial abduction and stabbing and thereby to cover up a previous crime.

On 14 February 2008 the Supreme Court dismissed the first applicant’s petition for review.

On 5 November 2013 the President of the Republic dismissed the applicant’s request for pardon, by which he sought commutation of his life sentence to twenty years fixed-term imprisonment as well as allowing the possibility of his release on parole.

The second applicant, Mr A.T. was born in 1985 and is currently serving his prison term in Sátoraljaújhely.

On 14 May 2010 the Borsod-Abaúj-Zemplén County Regional Court convicted the second applicant of double murder and abuse of firearms. He was sentenced to life imprisonment with no possibility of parole.

On 9 November 2010 the Debrecen Court of Appeal upheld this judgment.

On 13 September 2011 the Supreme Court dismissed the second applicant’s petition for review.

On 23 October 2014 the President of the Republic dismissed the applicant’s request for pardon, by which he sought commutation of his life sentence to twenty years fixed-term imprisonment as well as allowing the possibility of his release on parole.


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Criminal charge;Fair hearing);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Procedure prescribed by law);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Inhuman treatment;Prohibition of torture);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

The applicants were born in 1976 and 1983 respectively and live in Moscow. Both applicants are political activists and opposition leaders. The first applicant is also a well-known anti-corruption campaigner and a popular blogger. The second applicant is a leader of the political movement “Solidarnost”.

On 4 December 2011 general elections of the State Duma took place in Russia.

On 5 December 2011 the applicants took part in a public demonstration (a meeting) at Chistyye Prudy, Moscow, to protest against the allegedly rigged elections. The demonstration had been duly authorised by the mayor of Moscow. The number of participants at the meeting was estimated between 5,000 and 10,000. During the meeting, conducted by the second applicant, the first applicant addressed the participants with a speech calling for fresh, fair elections and describing United Russia, the election frontrunner, as “a party of crooks and thieves”.

After the demonstration the applicants were arrested. The parties disagreed as to the circumstance of their arrest, and their respective submissions are summarised below.

The applicants claimed that at the end of the meeting they had headed, with other people, towards the Kuznetskiy Most metro station, where the first applicant had left his car. They were walking along the pavement, leaving the road clear for traffic. Suddenly their way was blocked by the riot police (сотрудники внутренних войск и OMOН). Without any introduction or demand, the police surrounded a group of about one hundred protesters, including the applicants, pressing them against a building. The surrounded group chanted “One for all, and all for one!”. The riot police then began to arrest the protesters. According to the applicants, no one put up any resistance. They obeyed the police and followed them to the police bus.

According to the Government, at the end of the meeting the second applicant called on the participants to march down Myasnitskaya Street onto Lubyanskaya Square and then to the office of the Central Electoral Commission. At 8.30. p.m. about sixty people, including the applicants, began walking down Chistoprudnyy Boulevard, Bolshaya Lubyanka Street and Rozhdestvenka Street. They walked along the road, obstructing the traffic and chanting slogans such as “This is our city!” and “Down with the police state!” At the crossroads of Pushechnaya and Rozhdestvenka Streets the police blocked the march and ordered the marchers to stop. They pushed thought the cordon and went on until they were stopped by the police again at 2 Teatralnyy Proyezd. They ignored the repeated demands of the police to stop and thereby prevented the police from carrying out their mission of securing public order. Confronted with this persistent behaviour, the police arrested the applicants.

Both applicants were arrested at about 8.45 p.m. and were taken to a police bus.

At about 9.40 p.m. the applicants were taken to the Severnoye Izmaylovo District police station, Moscow. At 11.40 p.m. the first applicant was subjected to a body search, which lasted until 12.15 a.m. His personal affairs, including his mobile phone, barrister licence, watch, money, credit cards, driving licence and some items of clothing were seized. The second applicant was searched as well, and his mobile phone, belt, watch, whistle and a badge reading “Against the Party of Crooks and Thieves” were seized. The list of the seized objects was recorded in the search report. The applicants have been unable to retrieve them, although those objects were not attached to the case file.

The applicants requested that their lawyers, who had arrived at the police station and had presented their authority, be allowed to see them, but their request was refused. The applicants were not allowed to make a phone call to their families either.

Both applicants lodged complaints at the police station alleging that their rights had been violated during their arrest and detention.

At about 12.45 a.m. on 6 December 2011 the applicants were transferred from Severnoye Izmaylovo police station to the Vostochnyy District police station, Moscow, where they arrived at about 1.45 a.m. on the same day. They requested to see a lawyer and to make a phone call, but this was refused again. The first applicant lodged a complaint about the refusal.

At 2.30 a.m. on the same night, the applicants were transferred to the Kitay-Gorod District police station, where police reports were drawn up stating that the applicants had been escorted to the police station in accordance with Article 27.2 of the Code of Administrative Offences. At 2.40 a.m. further police reports were drawn up in which it was decided to remand the applicants in custody under Article 27.3 of the Code of Administrative Offences. The applicants were charged with an administrative offence for refusing to comply with a lawful order of the police, in breach of Article 19.3 of the Code of Administrative Offences. The charges were based on the identical statements of two police officers, I. and F., who alleged that they had ordered the applicants to follow them to the police bus to give statements on the administrative offence but that the applicants had pushed them away and had therefore been arrested.

At the Kitay-Gorod police station the applicants requested permission to see their lawyers and to telephone their families, but their requests were refused.

The first applicant remained in custody at the police station until 3 p.m. on 6 December 2011, and the second applicant until 10 a.m. on that day.

The applicants claimed that the conditions of detention during their transfer between the police stations and in the cell at the Kitay-Gorod police station were inhuman and degrading. In particular, they claimed that they had spent six hours being driven to different police stations without being given any food or drinking water. At the Kitay-Gorod police station they were placed together in a cell measuring about 6 sq. m with concrete walls, a metal grill, a concrete floor, no windows and no furniture except for two narrow wooden benches. The cell was poorly lit and had no ventilation. There was no sanitary equipment, beds or bedding. The applicants did not receive any food or water until later on 6 December 2011 when they were allowed to receive a parcel from their families containing drinking water and crackers; no other food was allowed in the parcels.

The Government submitted that the applicants had spent about one hour in transit to the Vostochnyy District police station and then about forty-five minutes in transit to the Kitay-Gorod police station, which was not long enough to require the provision of meals. According to the Government, the applicants were detained at the Kitay-Gorod police station in an administrative-detention cell measuring 12.3 sq. m equipped with artificial lighting and mandatory ventilation. They claimed that the applicants had been provided with a sleeping place – a wooden bench – and bedding, which they had refused. They provided a photograph of the cell with a metal grill, a close-up photograph of the bench, showing with a measuring tape its width of 47 cm, and another photograph showing the same bench covered with a blanket and with a pillow placed on it. The Government further contended that the cells had to be cleaned and disinfected twice a day and that pest control had to be carried out once every three months, in accordance with the cleaning service agreement between the Ministry of the Interior and a private company. The Government provided a copy of the service agreement in support of that statement. They alleged that the applicants had not complained about the conditions of their detention. According to the Government, the applicants had been offered food at the Kitay-Gorod police station, but had refused to take it.

On 6 December 2011 the applicants were brought before the Justice of the Peace to have their charges examined in administrative proceedings. They met their counsels for the first time shortly before the hearing. The case of the second applicant was examined first, and then the case of the first applicant.

The administrative case was examined by the acting Justice of the Peace of Circuit no. 370 of the Tverskoy District of Moscow, Ms B. At the beginning of the hearing the second applicant challenged the judge on the grounds that she had previously found him guilty of an administrative offence and sentenced him to five days’ administrative detention. After that conviction the second applicant had lodged numerous complaints about Ms B. and had campaigned against her in his online blogs. The Justice of the Peace dismissed the challenge against her.

The second applicant requested leave to call and examine five witnesses, including I. and F., the police officers who had drawn up the arrest reports; K., the on-duty police officer at the Kitay-Gorod police station; Mr B., a fellow activist; and the first applicant. The request was granted in respect of I., F. and B.

The second applicant complained of unlawful detention during the first six hours after his arrest, poor conditions of detention at the KitayGorod police station and the acts and omissions of the officials at the Severnoye Izmaylovo police station. However, those complaints were not examined.

The Justice of the Peace questioned the witnesses. Police officers I. and F. stated that after the public meeting the second applicant had participated, together with some sixty people, in an unauthorised march from Chistoprudnyy Boulevard, through Bolshaya Lubyanka Street, Kuznetskiy Most Street and down Rozhdestvenka Street. The marchers had been obstructing the traffic, chanting slogans and ignoring police orders made on a loudspeaker to stop the march. They (I. and F.) had required the second applicant to follow them to the police bus in order to draw up a report on the administrative offence, but he had ignored them, so they had seized him by the arms; he had resisted, refusing to present his documents and calling out to the crowd.

The second applicant pleaded not guilty and contested the police officers’ testimonies. He testified that he had been arrested at the indicated address while walking alongside other people returning from the authorised meeting. He insisted that he had been arrested without any warning or orders from the police.

Witness B. testified that he “had been present during Mr Yashin’s arrest” and that “the policemen had not given Mr Yashin any orders before arresting him”.

On the same day the Justice of the Peace found the second applicant guilty of having disobeyed a lawful order of the police. She based her findings on the witness statements of I. and F., their written reports and the report on the administrative arrest. She dismissed the testimonies given by the second applicant and B. on the grounds that they had contradicted the police officers’ testimonies and reports. The second applicant was convicted under Article 19.3 of the Code of Administrative Offences and sentenced to fifteen days’ administrative detention.

The first applicant’s case was examined after the second applicant’s trial by the same Justice of the Peace, Ms B. In the interval between the two hearings the first applicant’s counsel was able briefly to access the case file of the second applicant and meet the first applicant for the first time.

According to the applicants, the proceedings in the first applicant’s case began in the absence of members of the public, who were prevented from entering the hearing room. Many were barred from approaching the courthouse, which was cordoned off by the police. Later, during the proceedings, eight journalists were allowed in at the first applicant’s insistent requests. The Government contended, on the contrary, that the proceedings in this case had been open to the public.

At the beginning of the trial the first applicant requested that the case be transferred, in accordance with the statutory rules, to a court at his place of residence; that the hearing be adjourned in order to give him time to prepare his defence; that the verbatim records of the hearing be kept open; that copies of the complaints that he had lodged at the police stations the previous night be made available to him; and that five eyewitnesses of his arrest, including the second applicant, be called and examined.

The Justice of the Peace dismissed all of the requests, except one: that T. and A. be called as witnesses. The first applicant then challenged the Justice of the Peace, unsuccessfully.

I. and F. gave testimonies identical to those they had given in the second applicant’s case. The Justice of the Peace disallowed the following questions to I. and F put by the defence counsel: “What orders did you personally give to Mr Navalnyy?”, “Who gave the order to arrest Mr Navalnyy?” and “Why were two policemen’s reports identical?”

The first applicant pleaded not guilty and contested the police officers’ testimonies. He testified that he had been returning from the authorised meeting, walking, together with other people, not marching or chanting any slogans. However, the police had repeatedly obstructed their way and had then arrested them. He insisted that he had not received any orders from the police and had not resisted the arrest.

Witness T. testified that he had seen the applicant’s arrest. It had been noisy and he had not heard the police officers giving the first applicant any orders before arresting him. The police had announced through a loudspeaker “Your actions are unlawful” while surrounding a group of people, and had then begun arresting them. He had not seen the first applicant resisting the arrest. Witness A. testified that he had been walking down Teatralnyy Proyezd and had seen people in uniform arresting the first applicant on the pavement; during the arrest the police had announced through a loudspeaker “Your actions are unlawful”; witness A. had not seen the first applicant resisting the police during the arrest.

The first applicant requested that two video recordings of his arrest, shot by T. and A., be admitted as evidence. He also requested that the court obtain and examine the video footage which the police had at their disposal. Those requests were dismissed on the grounds that the court had no technical means of playing the recordings and that it would be unacceptable to use the devices provided by the defence. Those requests were not joined to the case file on the grounds that they had been submitted at the wrong stage of the proceedings.

According to the first applicant, most of the questions put by the defence to the witnesses were disallowed by the Justice of the Peace. She also refused to entertain his complaints concerning the lack of access to a lawyer, the refusal of a statutory phone call after the arrest, the allegedly unlawful detention during the first six hours after the arrest, the seizure of his possessions during the search, and the inhuman and degrading conditions of transfer and of detention at the Kitay-Gorod police station.

On the same day the Justice of the Peace found the first applicant guilty of having disobeyed the lawful order of the police. As in the second applicant’s case, she based her findings on the witness statements of I. and F., their written reports and the report on the administrative arrest. She dismissed the testimonies of the applicant, A. and T. on the grounds that they had contradicted the police officers’ testimonies and reports, and that no reasons for mistrusting the latter had been established. The first applicant was convicted under Article 19.3 of the Code of Administrative Offences and sentenced to fifteen days’ administrative detention.

On 6 December 2011 both applicants lodged appeals, claiming that their arrest and conviction for the administrative offence had been in breach of domestic law and in violation of the Convention. They contested the findings of fact made by the first instance as regards the events following their departure from the authorised meeting. In addition, they complained about the manner in which the first-instance hearing had been conducted, in particular, about the refusal of the Justice of the Peace to grant their requests, to admit the video materials as evidence and to call all the witnesses requested by the defence. They also challenged the grounds on which the court had dismissed the testimonies of the applicants and the defence witnesses. The applicants also complained of unlawful detention during the first six hours after their arrest, lack of access to a lawyer and the conditions in which they had been transferred between the police stations and remanded in custody at the Kitay-Gorod police station.

On 7 December 2011 the Tverskoy District Court of Moscow examined the applicants’ appeals in separate proceedings. In both cases the court dismissed the complaints about the refusals to hear witnesses and to admit the evidence requested by the applicants. It also rejected the applicants’ requests to have those witnesses called. It rejected the request to admit the video recordings in evidence because of their “unknown provenance”, and it refused to keep a verbatim record of the hearing because it considered it unnecessary. It granted the request to join a photograph of the first applicant’s arrest to the case file. On the same day the Tverskoy District Court dismissed the applicants’ appeals and upheld the first-instance judgment in both cases, citing the same reasons.

In the first applicant’s case the court held, in particular:

“The Justice of the Peace has correctly established that Mr Navalnyy had disobeyed a lawful order of a police officer ..., in particular: at 8.45 p.m. on 5 December 2011 at 2 Teatralnyy Proyezd, Moscow (near Metropol hotel), after an authorised public event (meeting), in a park of Chistoprudnyy Boulevard, he participated with a group of about 60 people in a march that had not been notified to the executive authorities, went out on the road and continued walking from Chistoprudnyy Boulevard, down the side streets to Bolshaya Lubyanka Street, Kuznetskiy Most Street, and Rozhdestvenka Street in the direction of Red Square; by doing so he obstructed the traffic and created a risk of accident while shouting out “Shame!”, “This is our city!”, “Russia without Putin!”, “Down with the police state!”. In order to intercept the march a [police] cordon was set up at the crossroads of Pushechnaya and Rozhdestvenka Streets. Repeated lawful orders to stop and end the march were given through a loudspeaker; despite that, Mr Navalnyy with a group of people pushed through the cordon and came out onto Teatralnyy Proyezd while continuing to chant slogans, and there they were met by the police cordon. [He] did not react to the repeated lawful orders to stop these acts and disperse, continued his unlawful acts drawing the attention of citizens and the press. During his arrest Mr Navalnyy, in reply to an invitation to proceed to the police bus for the issuing of an administrative offence report, began to push away [I.] and [F.], trying to cause panic among people, and by doing so [he] manifested his refusal to comply with the lawful orders of the police and prevented them from carrying out their duties, an offence under Article 19.3 of the Code of Administrative Offences.

Despite his denial, Mr Navalnyy’s guilt is proven by the report on the administrative charges ..., the statements of the police officers [I.] and [F.] [and] their testimonies given to the Justice of the Peace at the court hearing.

The Justice of the Peace gave a correct and convincing assessment of this evidence, which led to the conclusion that Mr Navalnyy had deliberately refused to comply with the police officers’ lawful order to stop his actions breaching public order, and continued them in defiance of [the police order].

This evidence, which is relevant, admissible and credible, is consistent. No bias on the part of the aforementioned witnesses or grounds for them to slander Mr Navalnyy have been established [by the court], including the appeal instance; therefore the explanations of Mr Navalnyy, as well and the witness testimonies of A. and T., have been duly rejected for want of reliable corroboration; the ruling of the Justice of the Peace is sufficiently reasoned in this respect.

... As follows from the [escorting report] and the [detention report], the [police] had sufficient grounds for arresting Mr Navalnyy and for escorting him to the KitayGorod police station, Moscow, in particular, the impossibility of drawing up an administrative offence report on the spot. The reports comply with the requirements of the law, in substance and in form. At the same time the court dismisses the arguments of the defence concerning the unlawful deprivation of liberty during six hours as unsubstantiated. As follows from the case file, after his arrest at Teatralnyy Proyezd, at 2.30 a.m. on 6 December 2011 Mr Navalnyy was taken to the Kitay-Gorod police station, Moscow, where the administrative material against him was issued. On 6 December 2011 the administrative case was remitted to the Justice of the Peace. The police officers have complied with the terms of administrative detention provided for by Article 27.5 of the Code of Administrative Offences.

During the [appeal] hearing ... Mr Yashin was examined as a witness. He testified that at the time of Mr Navalnyy’s arrest he had been with him at Teatralnaya Square. At the time of arrest [they] were on the pavement near the underpass, and did not commit any unlawful acts. About 100 people were blocked by the riot police. Then both Mr Navalnyy and Mr Yashin were arrested, virtually simultaneously. At this point the police officers did not give any orders, there was no disobedience on the part of [the applicants]. The police officers [I.] and [F.] did not take part in their arrest; their court testimonies were false.

Giving its assessment of the witness testimony of Mr Yashin, the court finds it unreliable and dismisses it because it contradicts the testimonies of [I.] and [F.], which are logical, consistent, concordant and objectively corroborated by the written evidence ...”

The judgment held in the second applicant’s case was essentially the same, including the similar testimonies of the other applicant.


Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3 - Rights of defence);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty)

The applicants’ dates of birth and places of residence are given in the Appendix.

At the material time the first applicant was a chairman of the Sumgait city branch of an opposition party Musavat and the fourth applicant was a deputy chairman of the Goychay district branch of that party. The third applicant was a member of another opposition party, the Popular Front Party of Azerbaijan. The second applicant was a member of the Coordination Council of an opposition group İctimai Palata.

According to the applicants, they participated in a number of peaceful demonstrations organised by the opposition.

The number of opposition demonstrations increased in 2011. That tendency continued into the following years. Demonstrations were held, inter alia, on 2 April and 17 April 2011 and 20 October 2012.

The second applicant attended the demonstration of 2 April 2011. The first and third applicants attended the demonstration of 17 April 2011. According to the first applicant, he also intended to participate in the demonstration of 20 October 2012.

Prior to those demonstrations, on 18 March 2011, 11 April 2011 and 15 October 2012 respectively the organisers had given notice to the relevant authority, the Baku City Executive Authority (“the BCEA”).

The BCEA refused to authorise those demonstrations at the places indicated by the organisers and proposed a different location on the outskirts of Baku – the grounds of a driving school situated in the 20th residential area of the Sabail District.

The organisers nevertheless decided to hold the demonstrations as planned. According to the applicants, the demonstrations were intended to be peaceful and were conducted in a peaceful manner. The participants were demanding democratic reforms in the country and free and fair elections, and protesting against impediments on freedom of assembly.

The fourth applicant was one of the organisers of a rally planned by several opposition parties. The rally was to be held on 18 October 2011 in Goychay. The fourth applicant also intended to participate in that assembly.

According to the fourth applicant, prior to the rally of 18 October 2011, on 9 October 2011, he and the other organisers gave notice to the relevant authority, the Goychay District Executive Authority (“the GDEA”). The information about the rally was sent to the GDEA by post and the fourth applicant’s home address was indicated (for reference) as the address of the sender.

According to the fourth applicant, the rally was intended to be peaceful. Its purpose was to mark the twentieth anniversary of the Independence Day and to honour the memory of those buried in the Cemetery of Martyrs in the town of Goychay.

It appears that eventually the rally did not take place.

As mentioned above, the demonstration of 2 April 2011 was attended by the second applicant; the demonstration of 17 April 2011 was attended by the first and third applicants. However, the police began to disperse those demonstrations as soon as the protesters began to gather.

The circumstances related to the dispersal of the demonstrations of 2 April and 17 April 2011, the first, second and third applicants’ arrests and custody, and subsequent administrative proceedings against them are similar to those in Gafgaz Mammadov v. Azerbaijan (no. 60259/11, 15 October 2015) (see also Appendix).

The circumstances of the fourth and first applicants’ arrests on 15 October 2011 and 20 October 2012 respectively, their custody and subsequent administrative proceedings against them are similar to those in Huseynli and Others v. Azerbaijan (nos. 67360/11 and 2 others, 11 February 2016) (see also Appendix).

According to the first and third applicants, after being arrested during the dispersal of the demonstration of 17 April 2011 and brought to a police station, they were subjected to ill-treatment by the deputy chief of the Nasimi District Police Office, police officer S.N.

In a photograph, submitted to the Court by the first applicant and allegedly taken after his police custody, he is shown with a bruise on his forehead. In the other photograph, allegedly taken before his police custody, the first applicant is shown without any bruising on his forehead.

The third applicant submitted to the Court a medical report of 18 April 2011 confirming that he had a broken rib. According to the third applicant, that medical report was issued when he was taken to a hospital after his trial, before he was placed in a detention facility to serve his sentence. He also submitted a photograph in which he is shown with bruises on his body.

The applicants raised their ill-treatment complaints during the administrative proceedings following their arrest on 17 April 2011. Namely, in their appeals against the first-instance court’s decisions the applicants complained that they had been ill-treated during their police custody, and requested the Baku Court of Appeal to order a forensic examination of their injuries, to question particular witnesses and to obtain the review of the medical records drawn up at their check-in to a detention facility where they had served their sentence.

On 21 April and 4 May 2011 respectively the Baku Court of Appeal dismissed the applicants’ appeals and upheld the decisions of the firstinstance court (see Appendix).

The appellate court disregarded the applicants’ ill-treatment complaints and their requests related to those complaints.

On an unspecified date the applicants lodged a complaint before the General Prosecutor’s Office asking it to conduct an investigation into the alleged ill-treatment.

On unspecified dates, the applicants were summoned to the Nasimi District prosecutor’s office and questioned in connection with their complaint of ill-treatment.

On 23 May and 2 July 2011 investigator M.H. adopted decisions refusing to open criminal proceedings into allegations of ill-treatment in respect of the third and first applicants respectively.

According to the applicants, for a certain period of time neither they nor their lawyer were informed about any actions taken by the authorities to investigate their ill-treatment complaints. Only in January 2012, after making enquiries about the outcome of the investigation, did they manage to obtain copies of the investigator’s above-mentioned decisions.

The applicants did not lodge a complaint with a supervising court against those decisions.