CASE OF STANKIEWICZ AND OTHERS v. POLAND (No. 2)

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

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Yonko Grozev

The first two applicants were born in 1974 and 1953 respectively. The first applicant is a journalist working for the daily newspaper Rzeczpospolita and the second applicant was, at the material time, its editorinchief. The third applicant is Gremi Media sp. z o.o. (at the material time Presspublica sp. z o.o.), the publisher of Rzeczpospolita. It is a limited liability company represented by the chairman of its board of directors, Mr P. Bien, and its vice chairman, Mr R. Dobrzyński. Its registered office is in Warsaw.

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

In October 2004 the Polish government submitted a draft amendment to the Tax Act (Ordynacja Podatkowa) to the Sejm. During the drafting process various bodies and individuals, including the National Council of Legal Advisers (Krajowa Rada Radców Prawnych), were invited to submit their comments. Their opinion was prepared by Ms D.S., a former senior civil servant, who was a well-known expert on tax law and a member of its legislative committee. She further acted as an expert and adviser at meetings before the parliamentary finance subcommittee where amendments to the Tax Act were being examined. One of the amendments proposed by the Council to section 181, and defended by Ms D.S. at the meetings, consisted of limiting what could be used as evidence in tax proceedings to material collected in criminal proceedings, but only once they had been concluded. The law as it stood did not contain such a limitation and allowed, for instance, material collected in a pending criminal investigation to be used as evidence. Her proposal was accepted by the subcommittee and later by the Sejm and, together with other amendments to the Tax Act, entered into force on 1 September 2005.

On 14 and 15 September 2005 the first applicant wrote three articles describing the possible consequences of the amendment to section 181 of the Tax Act, the legislative process leading to its adoption and the role that Ms D.S. had apparently played. One of the articles contained comments made by Ms D.S. and featured her photograph.

The first applicant and another journalist analysed the recordings of all the parliamentary finance subcommittee meetings during which amendments to the Tax Act were discussed. Two articles which appeared in Rzeczpospolita on 14 September 2005 contained transcripts of the subcommittee’s meeting of 17 February 2005 at which the section 181 amendment was discussed. The journalists interviewed Mr J.K., a Member of Parliament who chaired the subcommittee, Mr M.W., an appellate prosecutor and Ms D.S. Their statements were quoted in the articles, as was a statement made by an unidentified member of the government during the subcommittee meeting.

The first article, “Mafia pays no taxes” (Mafia nie zapłaci podatków), appeared as a cover story on 14 September 2005. The subheading and an excerpt from the article read as follows:

“[Subheading] Two words introduced to the new Tax Act have paralysed the prosecution of the petrol mafia, Rzeczpospolita has discovered. Our investigation reveals who changed the law and when it was changed. However, even we do not know why the government did not take any action.

[text] Some days ago, the newest version of the Tax Act, enacted by the Sejm in June, entered into force. Problems then started. Because of one provision in the law, cooperation between the tax and prosecution authorities has been totally blocked... Such cooperation has so far led to successful prosecutions in many high-profile cases, such as those concerning the battle against the petrol mafia.”

The article also explained that the amendment to section 181 of the Tax Act limited what could be used as evidence in tax proceedings to only material collected in criminal proceedings which had already been concluded. This was a real setback for the tax authorities, who could no longer rely on evidence the prosecution had been collecting in proceedings which were pending. According to the author of the article, such an amendment could prolong the tax authorities’ effective investigation into tax evasion for many years, until the criminal courts arrived at their final decision in a case.

The second article, which had the headline “Mafia to pay no taxes” (Mafia podatków nie zapłaci) appeared on page 5 of the same edition of Rzeczpospolita of 14 September 2005. It featured a photograph of Ms D.S. The wording of the article, in so far as relevant, read as follows:

“[subheading]The amendment to the Tax Act which made it harder to prosecute the petrol mafia was introduced during a subcommittee meeting – Rzeczpospolita has established.

[text] As we have established, the above-mentioned amendment to section 181 [of the Tax Act] was proposed by Ms D.S. of the National Council of Legal Advisers during a subcommittee meeting on 17 February. Strictly speaking, it was outside her remit as she is not a member of parliament. However, she was an adviser to the subcommittee and warmly encouraged MPs to introduce the amendment, even though no such change had been proposed. Ms D.S., a former senior civil servant at the Ministry of Finance, and today counsel at a prestigious law firm, received support from the subcommittee chairman and even a government representative...

Ms D.S., in an interview for Rzeczpospolita, argues that her intention was to protect the interests of the taxpayer....

[Question:] ‘You have changed the legal system, but you are not a member of parliament or the government. Was it your idea?’

[Answer:] ‘I believed that the wording of the legal provision in question was incorrect. It had to be changed.’”

On 15 September 2005 Rzeczpospolita published the third article, which had the headline “Dubious law to be changed” (Zmienią podejrzane prawo). In so far as relevant, it stated as follows:

“[Subheading] This cannot be. The Deputy Minister of Finance is outraged after Rzeczpospolita disclosed the story behind the change in the law which has helped the petrol mafia.

[Text] The Deputy Minister [S.S. ...] is surprised by [how] the unfortunate amendment was introduced. ‘It is unacceptable’, he says. ‘I have the Tax Department’s backing that this amendment should be corrected immediately.”

The article included quotes from interviews with two Deputy Ministers and one official, all from the Ministry of Finance. It also contained a paragraph describing the recent developments in several ongoing investigations against the petrol mafia.

On 12 October 2005 Ms D.S. lodged a claim for the protection of her personal rights against all three applicants, seeking compensation in the amount of 200,000 Polish zlotys (PLN), the equivalent of approximately 50,000 euros (EUR).

On 17 August 2007 the Warsaw Regional Court dismissed her claim. It established that both the journalist who had written the articles and the editor-in-chief had been diligent in collecting information for all three of them. The articles in question reflected the evidence submitted by the defendants both in form and in content. The amendment to section 181 of the Tax Act had indeed been proposed by Ms D.S., as she had been invited to represent the National Council of Legal Advisers during the finance subcommittee’s deliberations on the draft law. Had she not voiced her opinion regarding the need to amend section 181, the amendment would most probably not have been introduced. The court stressed that since the claimant had voluntarily entered the public domain, she should respect the rights of others, in particular journalists, to criticise her actions. The first applicant, while preparing material for the articles, had had access to draft laws, legal opinion on those drafts, the finance committee’s minutes, recordings of the subcommittee’s deliberations and interviews with prosecutors, from which he took quotations. The court thus concluded that information provided by the defendants had been truthful and collected diligently.

The court considered that the incident described by the defendants had been a very important matter of public interest, as it had shown how easy it could be to influence a change in the law. The controversies surrounding the amendment to the Tax Act had led to section 181 being restored to its previous form in February 2006.

The aim of the articles had been to draw the public’s attention to the amendment to section 181 of the Tax Act. The court also considered that the applicants had had a right to publish a photograph of Ms D.S., as she had been a public figure. The photograph could have easily been taken while she had been carrying out her duties for the subcommittee in the present case.

The claimant, Ms D.S., lodged an appeal against this judgment.

On 21 May 2008 the Warsaw Court of Appeal allowed the appeal and action and amended the judgment in question. The court ordered the applicants to publish an apology and pay PLN 20,000 to charity, disagreeing with the Regional Court’s assessment of the case. It considered that by using headlines, subheadings and several statements, the applicants conveyed the suggestion that Ms D.S. had been responsible for the negative consequences the amendment had had on the law. These statements included: “astonishing amendment”, “cooperation between the tax authorities and prosecutors totally blocked”, “she ... encouraged MPs to introduce the amendment, even though no such change had been proposed”, “[Ms D.S. has] changed the legal system”, “was it your idea?”, “the amendment was proposed in an astonishing manner by a guest of the subcommittee”. The court considered that the information contained in the articles had not been truthful, and that the journalists had not been diligent. It also considered that by publishing her picture, the applicants had breached the claimant’s right to protect her image.

On 5 June 2009 the Supreme Court quashed the judgment and remitted the case to the appellate court. It considered that procedural provisions had been breached; in particular, the judge rapporteur should have withdrawn from the case given doubts as to his impartiality. Moreover, the Supreme Court criticised the vague wording of the apology the defendants had been ordered to publish, and the lack of clarity as to which statements had breached the defendant’s personal rights.

On 22 October 2009 the Warsaw Court of Appeal allowed the action and ordered the applicants to publish an apology and pay PLN 20,000 to charity. The court considered that the defendants should publish the following apology on the cover of Rzeczpospolita:

“[All three applicants] apologise to Ms D.S. for [damaging] her good name by publishing articles without factual basis in Rzeczpospolita on 14 September 2005 (‘Mafia pays no taxes’ and ‘Mafia to pay no taxes’) and on 15 September 2005 (‘Dubious law to be changed’), which have ruined her good name and professional reputation.”

The court considered that the claimant had proved, to a sufficient degree, that the articles in question had breached her personal rights, as they insinuated that she had been responsible for adopting an amendment which had negative consequences. Its arguments were similar to those outlined in its judgment of 21 May 2008. It considered the statement “[Ms D.S. has] changed the legal system” untrue because as an adviser to the subcommittee, it would have been outside her remit. The use of headlines, subheadings and certain statements conveyed the suggestion that the amendment had been introduced in the “interests of the [petrol] mafia”. Those statements included: “astonishing amendment”, “cooperation between the tax authorities and prosecutors totally blocked”, “she ... encouraged MPs to introduce the amendment, even though no such change had been proposed”, “[Ms D.S. has] changed the legal system”, “was it your idea?”, “the amendment was proposed in an astonishing manner by a guest of the subcommittee”. Moreover, by featuring a photograph of Ms D.S. in one of the articles, the applicants had “strengthened the message that [she] was the person responsible for having introduced an amendment convenient for the mafia, which [had] paralysed cooperation between the prosecution service and the tax services”.

The court considered that the defendants had used the claimant’s photograph unlawfully, as the fact she was a public figure had not absolved them from asking her permission. It further stated:

“The Court of Appeal has no grounds to consider that the defendants rebutted the presumption under Article 24 of the Civil Code that their actions were unlawful.

The fact that the journalists relied on the comments of other individuals, even if they had indicated their sources, in this case the prosecutors, does not make such practice lawful. Such types of expression do not absolve a journalist from exercising particular diligence and care in collecting and using material.

The defendants did not show that their actions were lawful; the suggestion they made, namely that the claimant had ‘changed the law’ had been untrue, their duty to act with particular diligence and care had not been fulfilled, and their direction of criticism against the claimant had not been in the public interest or compatible with the principle of coexistence with others.

It had been unnecessary to ruin the claimant’s good name and reputation in order to express an opinion about an amendment to section 181. It is known how laws are passed and the claimant, acting lawfully and openly, did not change the law in force and could have only had a minor impact on the legislative process, in which the final decision did not depend on her. The suggestion that she changed the law is untrue, and making out that she had been responsible for changes in the law undermines journalistic integrity.

The defendants did not provide any evidence to suggest that the claimant had acted in the interests of the [petrol] mafia. Other suggestions, namely that the amendment had caused the fight against the mafia and cooperation between the tax and prosecution authorities to become paralysed, were also untrue.

The authors of the articles did not seek the opinion of specialists in tax law, nor did they try to explain the reasons behind the amendment. Their reporting was one-sided and formed far-fetched conclusions, creating an atmosphere of sensationalism and scandal ...”

On 20 January 2011 the Supreme Court amended the judgment as regards the wording of the apology. It held that the applicants should publish the following text:

“[All three applicants] apologise to Ms D.S. for ruining her good name through the composition and use of headlines and subheadings in the daily newspaper Rzeczpospolita on 14 September 2005 (‘Mafia pays no taxes’ and ‘Mafia to pay no taxes’) and 15 September 2005 (‘Dubious law to be changed’), suggesting that, as an adviser to the Sejm’s finance subcommittee, she had been guided by reasons unworthy of merit and had infringed the principles of honesty.”

The Supreme Court considered that the Court of Appeal’s guidelines for the apology were expressed too broadly, particularly as the latter acknowledged that the articles in question had a factual basis. In the present case, certain suggestions were made through the choice of headlines and subheadings, which led to the claimant’s personal rights being breached. Lastly, the Supreme Court considered that the fact that the defendants had taken quotations from public servants could exclude their liability, but only in so far as the wording of the comments quoted was concerned and not the “composition of the articles which led to negative suggestions [being made], creating an untrue picture of the person in question”.


No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Equality of arms)

Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The applicant was born in 1965 and lives in Samobor.

On 20 April 2009 she sustained an injury in a car accident while returning home from work. On 8 May 2009 her injury was recognised as a work-related injury by the Croatian Health Insurance Fund for Health Protection at Work (Hrvatski zavod za zdravstveno osiguranje zaštite zdravlja na radu). On the basis of her work-related injury the applicant was granted sick leave between 21 April 2009 and 3 July 2009.

On 26 October 2011 the applicant visited the Emergency Medicine Centre of the University Hospital Centre Zagreb (Centar za hitnu medicinu Kliničkog bolničkog centra Zagreb) owing to the pain in her neck and back. There it was established that she was suffering from a severely sore spine with a deformity.

The following day she visited her chosen general practitioner, who found that the applicant was unable to work and granted her sick leave starting from 27 October 2011 on the basis of an illness.

On 3 November 2011 the applicant lodged a complaint against her general practitioner’s assessment of the reason for her sick leave. She argued that she should be granted sick leave entitlement on the basis of the work-related injury that she had sustained on 20 April 2009. She submitted medical documentation in support of her argument.

Following the lodging of the complaint, the applicant’s general practitioner referred the applicant for an expert medical evaluation, enclosing her medical documentation with the request for expert evaluation.

On 6 December 2011 an authorised doctor of the Zagreb Office of the Croatian Health Insurance Fund (Hrvatski zavod za zdravstveno osiguranje, Područni ured Zagreb – hereinafter “the Zagreb Office”), specialised in physical medicine and rehabilitation, examined the applicant’s medical documentation and reported finding no direct causal link between the work-related injury sustained by the applicant in 2009 and the sick leave she had begun on 27 October 2011.

The Zagreb Office forwarded the report to the applicant and informed her of her right to seek the delivery of a written decision on the matter of her sick leave entitlement. The applicant availed herself of that right and asked for a written decision.

By a decision of 23 January 2012 the Zagreb Office, relying on the report of 6 December 2011, refused the applicant’s request that the sick leave from 27 October 2011 be granted on the basis of her work-related injury. It also dismissed her claim for compensation for lost salary during the period of sick leave.

The applicant challenged this decision before the Central Office of the Fund (Hrvatski zavod za zdravstveno osiguranje, Direkcija – hereinafter “the Central Office”), submitting further medical documentation and requesting that her sick leave be granted on the basis of her work-related injury.

Following the appeal by the applicant, the Central Office asked an in-house medical commission to conduct an expert examination regarding the matter. On 16 March 2012 the medical commission, consisting of three doctors of medicine, examined the applicant’s overall medical documentation and reported that her sick leave from 27 October 2011 could not be granted on the basis of the work-related injury that she had sustained in 2009.

On 5 April 2012 the Central Office, relying on the findings of the medical commission, dismissed the applicant’s appeal and upheld the decision of the Zagreb Office.

The applicant then brought an administrative action in the Zagreb Administrative Court (Upravni sud u Zagrebu). She contested the findings of the Fund’s expert medical bodies, relied on her medical documentation and alleged that it indicated a causal link between the work-related injury she had sustained in 2009 and her sick leave. She requested that she be heard and that an expert medical report on the matter be obtained.

On 27 June 2012 the Central Office submitted a response to the applicant’s administrative action. This response was forwarded to the applicant.

On 27 August 2012 the Zagreb Administrative Court held a public hearing, to which the applicant was duly summoned. She did not attend the hearing, but was represented by a lawyer. Her lawyer reiterated the arguments adduced and evidence proposed in the administrative action. The representative of the Central Office contested this. The Zagreb Administrative Court then dismissed the proposal to hear the applicant and to obtain a further expert medical report on the matter and closed the hearing.

On 31 August 2012 the Zagreb Administrative Court dismissed the applicant’s action as unfounded. It stressed, in particular, that two expert medical bodies of the Fund, as well as the applicant’s chosen general practitioner, had established without a doubt that the applicant’s sick leave beginning on 27 October 2011 was not linked to the work-related injury she had sustained in 2009. It also stressed that the applicant, by the submissions in her administrative action, did not manage to put into doubt the findings of the expert medical bodies and that thus there was no need to hear her or to obtain a further expert medical report on the matter.

The applicant lodged a constitutional complaint, alleging that the proceedings had been unfair in that she had been excluded from the procedure of commissioning and obtaining the administrative authorities’ expert reports, whereas the Zagreb Administrative Court had refused to hear her and to obtain an independent expert medical report on the matter.

On 6 February 2013 the Constitutional Court dismissed the applicant’s constitutional complaint as manifestly ill-founded. This decision was served on the applicant’s representative on 22 February 2013.


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Uzbekistan);Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Uzbekistan);Violation of Article 3 - Prohibition of torture (Article 3 - Positive obligations) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award

Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in 1968 in Khanabad, Uzbekistan.

In 2008, in the face of potential prosecution for religious extremism, he fled Uzbekistan with a forged Kyrgyz passport under an assumed name. On 19 April 2008 he entered the territory of the Russian Federation.

On 6 September 2009 he obtained a Russian passport using forged documents.

On 26 January 2009 and 28 September 2012 the applicant was indicted by the investigative authorities of Uzbekistan on charges of terrorism, inciting religious hatred, encroaching upon the constitutional order, illegally crossing the State border, organising a criminal group, producing and disseminating material threatening public security and order, participating in religious extremist, separatist, and fundamentalist movements, and smuggling. Since the Uzbek authorities could not locate him he was indicted in absentia.

According to the Uzbek investigative authorities, in 2006 and 2007 the applicant had been actively involved in operating the terrorist organisation ‘Islamic Movement of Uzbekistan’, which has extensive ties with Al-Qaeda, Islamic Jihad and Libyan Jamaat. He allegedly took part in recruiting and training terrorists, smuggling extremist material into Uzbekistan, organising gatherings where extremist material, including video and audio recordings, were viewed and distributed, fundraising for terrorist acts, training recruits in using firearms and hand-grenades, and facilitating illegal border crossings by the leaders of the Islamic Movement of Uzbekistan. The Uzbek authorities further contended that members of the above-mentioned group had been involved in terrorist acts that had taken place in Khanabad and Andizhan on 25 and 26 May 2009.

On 27 January 2009 the Andizhan Criminal Court ordered the applicant’s pre-trial detention. The order was issued in absentia and the reasons given were the gravity of the charges against the applicant and the fact that he could not be located. On the same day an investigator issued an international search and arrest warrant against him.

In March 2010 the Uzbek investigative authorities sent a notification to the Ministry of Internal Affairs Anti-Extremism Department in the Orenburg Region that according to their intelligence, the applicant was living in the region.

On 10 March 2010 the applicant’s name and his two aliases were put in the ‘RM’ public transport search and identification system. The record mentioned his alleged association with radical and extremist organisations.

On 11 June 2012 the ‘RM’ system registered the sale of a ticket for a passenger train going from Moscow to Bishkek. The ticket had been bought under the applicant’s assumed name, which he used in his Russian passport. An alert was sent to the Ministry of Internal Affairs.

On 13 June 2012 at approximately 2.45 a.m. the applicant was apprehended at Orenburg railway station by officers of the Ministry of Internal Affairs Anti-Extremism Department and Federal Security Service (FSB). During the initial identity check, he used his Russian passport bearing an assumed name.

After the applicant’s true identity had been established, an ‘express interview’ was conducted with him by Orenburg’s assistant transport prosecutor, Mr M. The applicant stated during the interview that he had fled Uzbekistan after learning that he was suspected of taking part in watching extremist material, while his prosecution was actually politically motivated. He further stated that since his entry into Russia, he had been living on various construction sites in Moscow, Tula and Orenburg.

At 4.10 a.m. a record of apprehension of a person under an international search and arrest warrant was drawn up and the applicant was officially informed of his rights and the nature of the charges in Uzbekistan.

On the same day at 1.40 p.m. he was once again interviewed by Mr M. During the interview, he was informed of the right not to incriminate himself and that he would be provided with an interpreter if needed. He expressed his wish to give answers in Russian. The interview record was verified and signed by him.

The applicant stated during the interview that in 2008 he had decided to leave Uzbekistan because of possible prosecution for watching video material which was considered extremist by the Uzbek authorities. He further stated that he had procured a forged Kyrgyz passport under an assumed name, which he had used to enter Russia and obtain Russian citizenship. In particular, the interview record contained the following passages:

“... Until 2008 my permanent income came from exchanging currency in Khanabad and selling fruit...

In April 2008 an acquaintance [working] in law enforcement informed me that my name was on the list of people suspected of extremism. Aware that my acquaintances had been prosecuted for watching extremist material and sentenced to lengthy prison terms, I decided to evade law enforcement, since I had also watched that material...

In June 2012 I decided to return to Uzbekistan because I no longer wished to be a fugitive and it was necessary to make contact with the law enforcement bodies in Uzbekistan to resolve the situation surrounding [their] search [for me].

As to the criminal case against me I learnt of its existence from my wife during a phone conversation in 2009...I did not understand what the charges against me were, but presumed that I had been prosecuted for watching the extremist videos.

I did not commit any of the crimes I am accused of, except illegally crossing the Uzbek border. In spring 2008 I watched a documentary at home with some of my acquaintances about the killing of Muslims in Afghanistan and Iraq by US soldiers – I presume they were Muslims because the majority of population in those countries are followers of Islam. We did not like the actions of the American soldiers and we discussed that. I do not think I committed any crime...

I did not request political asylum or refugee status in the Russian Federation...

I believe that my prosecution is politically motivated, because I do not like Uzbekistan’s policies on entrepreneurs; an opinion I expressed to the State institutions of Uzbekistan.”

Later that day the applicant was placed in a pre-trial detention facility, SIZO-3 in Orenburg, pursuant to the detention order issued by the Andizhan Criminal Court. The Embassy of Uzbekistan in the Russian Federation was notified of the arrest.

On 12 July 2012 an extradition request under the CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 1993 (“the Minsk Convention”) was lodged by the Prosecutor General’s Office of Uzbekistan. Making reference to the provisions of the Minsk Convention and Uzbek legislation, the request included the following assurances:

On 13 July and 6 December 2012 and on 6 March 2013 the applicant’s detention was extended by the Promyshlenniy District Court of Orenburg.

On 12 November 2012 the Deputy Prosecutor General of the Russian Federation examined the merits of the extradition request and authorised it in respect of the charges of terrorism, participating in an armed group, and illegally crossing the Uzbek border. The request was refused in respect of the other charges due to a lack of evidence and/or their being no comparable crimes under Russian law. The extradition authorisation did not examine any risks to which the applicant might have been exposed in Uzbekistan and merely stated that “no obstacles to extraditing Mr Mamazhonov under international law or the legislation of the Russian Federation had been established”.

On 28 November 2012 the applicant’s representative Mr Gladkikh lodged a complaint against this decision, alleging that the applicant was at a heightened risk of being subjected to torture if extradited to Uzbekistan. The complaint stressed that since the applicant’s asylum application had not been definitively dismissed on appeal, any extradition authorisation was unlawful.

The complaint alleged that contrary to the interpretation of the law in force provided by Ruling no. 11 of 14 June 2012 of the Plenum of the Supreme Court of the Russian Federation (see paragraphs 98 below), the prosecutor had neglected his incumbent duty to consider the risk of torture in Uzbekistan, having regard to the general situation in the destination country and the applicant’s personal situation, and the fact that the text of the extradition authorisation gave no reasons in this regard.

The applicant’s representative also referred directly to eleven of the Court’s judgments issued between 2008 and 2012 in which a violation under Article 3 of the Convention had been found in similar circumstances. He argued that the prosecution authorities had disregarded the Court’s conclusion that individuals accused of crimes concerning politics and religion constituted a “risk group” systematically exposed to ill-treatment in Uzbekistan. Accordingly, their extradition, just like the applicant’s, had been contrary to the Russian Federation’s obligations under the Convention.

Referring to reports by the United Nations agencies, Amnesty International, Human Rights Watch and CIVICUS in the last nine years, the applicant’s representative alleged that the use of torture and ill-treatment was commonplace in respect of people accused of religiously and politically motivated crimes.

Lastly, relying on the official position of certain Russian State institutions, Mr Gladkikh highlighted the fact that the Ministry of Foreign Affairs in its note of August 2009 “On human rights in Uzbekistan” stated:

“... criminal trials are characterised by a dependence on forced confessions, and a lack of adequate legal representation... it is also noted that people convicted of anti-State, religious and politically motivated crimes are incarcerated in much stricter regimes than others...”

The complaint also quoted a March 2011 letter from the head of the Third CIS Department of the Ministry of Foreign Affairs to the director of the Federal Migration Service:

“... Considering the reasoning of the European Court of Human Rights, it is actually possible to state that currently the extradition, deportation or administrative removal to Uzbekistan of any person wanted by the law enforcement agencies... will constitute a violation of the Convention...”

On 27 December 2012 the Orenburg Regional Court dismissed the complaint. It stated that the approval of the request was lawful, properly reasoned, and took into account the assurances of the Uzbek authorities. Furthermore, it considered that the ill-treatment allegations were merely a defence strategy of the applicant, who had procured a forged Kyrgyz passport under an assumed name, illegally crossed the Russian border on 19 April 2008, obtained Russian citizenship under an assumed name, and lodged an asylum request only after his apprehension under the international search and arrest warrant. The court noted that he had been convicted in Russia on 1 October 2012 of forgery and fined 6,000 Russian roubles (RUB) (150 euros (EUR)) (see paragraphs 40-41 below). It also stated that the extradition authorisation given by the Deputy Prosecutor General did not presume an automatic transfer of the applicant to Uzbekistan, and that no extradition could take place before his asylum proceedings had finished.

On 28 December 2012 the applicant’s representative Mr Gladkikh appealed to the Supreme Court against the Regional Court’s decision, relying on essentially the same arguments as presented before. In addition, he stated in his appeal that contrary to the decision of the Regional Court, the Uzbek authorities had not explicitly stated that the applicant would not be subjected to torture, but had limited their assurance to a statement that the legislation in force prohibited it (see paragraph 28 above). The representative referred the Supreme Court to the Court’s judgment in the case of Khaydarov v. Russia ( no. 21055/09, § 105, 20 May 2010), where the existence of domestic and international law provisions prohibiting illtreatment was not considered to be a sufficient assurance in itself.

On 12 March 2013 the Supreme Court of the Russian Federation dismissed the appeal and upheld the lower court’s decision and extradition authorisation. The relevant parts of the decision read as follows:

“... [In his appeal] Mr Mamazhonov indicates that [the Regional Court] ignored the fact that ... he had requested asylum and thus may not be returned to Uzbekistan. The court did not examine all the circumstances and adopted a wrong decision...

The attorney Mr Gladkikh requests in the interests of Mr Mamazhonov...that extradition proceedings be terminated. The attorney believes that [the Regional Court] violated Russian and international asylum law and did not examine the fact that the applicant had requested asylum. The court also did not examine any evidence proving that Mr Mamazhonov might be subjected to torture...in Uzbekistan. In his opinion, the case file does not contain guarantees that [the applicant] would not be subjected to unlawful actions and [the decision must therefore be quashed as unreasoned]...

When the Prosecutor General’s Office decided to transfer Mr Mamazhonov to the law enforcement agencies of Uzbekistan, his asylum request was denied.

[Furthermore, the Supreme Court restated the reasons for the denial of asylum and the assurances provided by the Uzbek authorities.]

The arguments of Mr Mamazhonov and his counsel that in Uzbekistan he will be persecuted on religious and political grounds are unfounded, since there is no objective proof.

The material in the case file demonstrates that Mr Mamazhonov’s prosecution by the Uzbek authorities is of a general nature and is not related to the policies of that State.

Mr Mamazhonov did not submit to the court any convincing arguments giving weighty grounds to believe that the Uzbek authorities might subject him to torture, inhuman or degrading treatment or punishment, or that he might be persecuted on the grounds of race, religious beliefs, citizenship, ethnicity, belonging to a social group, or political convictions.

[The Supreme Court] finds no grounds to annul the decision...”

On 10 July 2012 a criminal investigation was initiated by the Russian authorities in respect of the use of forged identification papers by the applicant.

On 1 October 2012 the Justice of the Peace for the 8th Circuit of the Promyshlenniy District of Orenburg convicted the applicant of using of forged documents (a Russian passport) and fined him RUB 6,000 (EUR 150). During the trial, he acknowledged his guilt, but stated that the procurement of false Kyrgyz and Russian identification papers had been a necessary measure to avoid his arbitrary prosecution in Uzbekistan for the crimes he had not committed.

On 3 August 2012 Mr Gladkikh applied on the applicant’s behalf for asylum, alleging that the criminal charges against him had been “fabricated” after he, a successful businessman, had refused to pay bribes and provide payoffs to the Uzbek authorities.

On 20 August 2012 the applicant was interviewed by the immigration authorities and his answers were recorded in an asylum questionnaire.

On 24 August 2012 the Orenburg Regional Department of the Federal Migration Service refused to consider the merits of his request, because in their opinion it had been lodged only to evade prosecution in Uzbekistan, and the applicant had failed to substantiate his alleged fear of return. The relevant parts of the decision read as follows:

“... In the questionnaire, Mr Mamazhonov states that the reasons for his arrival in Russia were the extortionist demands of the authorities, unlawful persecution for his business success, and fear for his life. He submitted no other reasons, and stated that he had never been a member of religious, political or non-governmental organisations.

According to the questionnaire, there were no incidents of violence against him Uzbekistan; he never complained of persecution to the law enforcement or State institutions in Uzbekistan or to human rights organisations.

He explains his unwillingness to return to the country of origin by his fear of prosecution for serious offences by the law enforcement authorities in Uzbekistan...

The fact that Mr Mamazhonov, expressing his wish to receive protection from the Russian Federation... did not lodge his asylum request at the border crossing in 2008... or attempt to legalise his status during the lengthy period thereafter, and [did so] only after his apprehension [under the warrant] for crimes committed in Uzbekistan, demonstrates that the objective reason for...his arriving in Russia was to evade prosecution for crimes committed outside of Russia...

During his stay in Russia between June 2008 and August 2012, Mr Mamazhonov had also committed an offence by [being in possession of] forged documents and unlawfully obtaining a Russian passport...

It follows that the analysis of the reasons given in the asylum questionnaire, case file and search for the applicant for the crimes committed outside of Russia... does not lead to a conclusion [that there is any risk of him being persecuted in Uzbekistan].”

On 16 October 2012 the Leninskiy District Court of Orenburg in reviewing the above decision, established that the applicant had illegally crossed the Russian border on 19 April 2008, procured a forged Kyrgyz passport under an assumed name, obtained Russian citizenship under that name, and lodged an asylum request only after his apprehension under the international search and arrest warrant. On that basis the court rejected his complaint against the immigration authorities’ decision.

On an unspecified date the applicant appealed against the District Court’s decision. He alleged that both the immigration authorities and District Court had failed to consider his claims that he risked ill-treatment if returned to Uzbekistan.

On 11 January 2013 the Orenburg Regional Court dismissed the appeal and upheld the lower court’s decision and immigration authorities’ refusal to consider the asylum request. In particular, it stated:

“Information from reputable international human rights organisations concerning the unfavourable political climate in Uzbekistan and practice of malicious persecution of those accused of crimes against the State was not proven by objective evidence within the framework of Mr Mamazhonov’s case and may not serve as a basis for the annulment of a judicial decision... Moreover, a competent State institution deciding on asylum status independently evaluates the situation in a specific country relying on its own sources, and the opinion of human rights organisations is not determinative of such a decision...”

On 7 February 2013 the applicant lodged a request for temporary asylum in Russia, but it was denied by the immigration authorities on 6 March 2013.

On 8 March 2013 the applicant’s representative Mrs Yermolayeva submitted to the Court a request for the application of an interim measure under Rule 39 of the Rules of Court to stay the applicant’s extradition to Uzbekistan until further notice. The request specified that the applicant’s extradition would expose him to a risk of treatment contrary to Article 3 of the Convention. The evidence and arguments presented to the Court were essentially the same as the evidence and arguments previously presented to the national authorities.

On 11 March 2013 the Acting President of the First Section indicated to the respondent Government, under Rule 39 of the Rules of Court, that the applicant should not be extradited to Uzbekistan until further notice.

By a letter of 15 May 2013 the Russian Government informed the Court that they had taken relevant steps to guarantee that the applicant would not be extradited to Uzbekistan until further notice. In particular, the Prosecutor General’s Office, departments of the Ministry of Internal Affairs, and Border Guards Service had been ordered to prevent the applicant’s extradition or removal from Russia, and other law enforcement agencies had been instructed to comply with the measure applied.

On 11 June 2013 the applicant’s representative Mr Gladkikh was informed that the applicant would be released on 12 June 2013. However, since it was a public holiday in Russia the release was rescheduled to 9 a.m. the following day. Mr Gladkikh was informed in person.

A decision to release the applicant dated 13 June 2013 was issued by the Prosecutor General’s Office. It restated the procedural history of the case available to the Russian authorities at that time and explicitly mentioned the application of an interim measure by the Court. In the absence of any further legal grounds for the applicant’s detention, his release was ordered.

According to statements submitted to the Court by the applicant’s representative, he arrived at the detention facility on 13 June 2013 at 6 a.m. Despite his previous enquiries about the time of release, Mr Gladkikh was informed at 7.30 a.m. that the applicant had been released at 7.15 a.m. and had left in an unknown direction. According to the Government’s submissions, the release had taken place at 6.30 a.m.

Later the same day Mr Gladkikh lodged a request with the Investigative Committee of the Orenburg Region. The relevant parts of the request read as follows:

“... [On 12 June 2013] officers at the checkpoint [of SIZO-3] informed me that... Mr Mamazhonov was going to be released on 13 June, no earlier than 9 a.m.

Relying on the veracity of the information provided, I arrived this morning at SIZO-3, where I was informed at 7.15 a.m. [sic] that Mr Mamazhonov had already been released and had departed in an unknown direction. I was refused information about the precise time of release [sic]. At the present moment I’m not aware of the whereabouts of my client.

I draw your attention to the fact that during a private conversation, Mr Mamazhonov asked me to be personally present during his release and to further support him until the regularisation [of his immigration status] in Russia; he strongly denied any possibility of returning to Uzbekistan voluntarily.

Having regard to these facts, and the fact that there have previously been instances of disappearances from Russia of Uzbek nationals charged with State crimes, whose extradition was being sought [by the Uzbek authorities], I have grounds to believe that Mr Mamazhonov was abducted by interested parties with a view to transferring him to Uzbekistan.

Accordingly, I request [that]:

An inquiry is initiated into these allegations.

Criminal proceedings are initiated into the suspected [abduction]...”

Similar requests were lodged with the Prosecutor General’s Office, Border Guards Service of the FSB, and the police.

On 14 June 2013 the administration of the detention facility SIZO3 sent a letter to the Embassy of Uzbekistan, informing it of the applicant’s release.

Following Mr Gladkikh’s request a preliminary inquiry into the applicant’s alleged disappearance was initiated by the Internal Affairs Department OP-4 in Orenburg.

On 17 June 2013 the inquiry was handed over to the Investigative Committee, since the crime suspected fell under their jurisdiction. The inquiry case file reached them on 19 June 2013.

On 19 June 2013 the investigator examined the applicant’s cell in SIZO-3 and seized from the administration the applicant’s personal file and the available video surveillance recordings.

On the same day he questioned four officers working at the detention centre who were present during the applicant’s release. They stated that the applicant (i) had been released at the expiry of the court-ordered detention, (ii) had been informed of his obligation to register with the immigration authorities, (iii) had not made any complaints or requests during his release, and (iv) had not been approached after his release by anyone in uniform, Asian-looking or anyone else.

On 20 June 2013, in reply to the investigator’s request, the Federal Migration Service informed him that there was no record of the applicant in their databases, and the Border Guards Service of the FSB stated that due to the absence of any IT systems at the borders of the Orenburg Region it was not possible to provide information about a specific person.

On 21 June 2013 the period of inquiry was extended by ten days to collect further evidence.

On the same day, in reply to the investigator’s request, the Internal Affairs Department in Orenburg Region stated that since 13 June 2013 the applicant had not been apprehended or detained by the police.

On 26 June 2013 the applicant’s cellmate in SIZO-3, Mr G., was interviewed after being cautioned about criminal liability for perjury. The relevant part of the interview record stated as follows:

“.... In June 2013 he was released... He did not know about his release from detention because he was woken up early in the morning and told that he was being released...he did not inform me of his future plans. I am not aware where he might be.”

On 26 June 2013 an officer of the Anti-Extremism Department in the Orenburg Region, Mr Ab., who was involved in apprehending the applicant, was questioned after being cautioned about criminal liability for perjury. He stated, in particular, that (i) the applicant was of no interest to his agency since there was no evidence of his involvement in criminal activities in Orenburg, (ii) that he was not aware of the applicant’s possible whereabouts, and (iii) that there had been no contact or exchange of information between his agency and the Uzbek law enforcement agencies.

On the same day the investigator requested from the Transport Prosecutor’s Office in Orenburg a copy of the extradition case file, in order to fully consider the possibility of the applicant’s forced removal to Uzbekistan. It was provided on 28 June 2013.

On the same day, in reply to the investigator’s repeated request, the Federal Migration Service informed him that there was no record of the applicant crossing the State border after 11 June 2013.

On 27 June 2013 an officer of the FSB in the Orenburg Region, Mr St., who was involved in apprehending the applicant, was questioned after being cautioned about criminal liability for perjury. His statements were essentially the same as those provided previously by Mr Ab., the officer of the Anti-Extremism Department in the Orenburg Region (see paragraph 66 above).

On the same day the applicant’s representative Mr Gladkikh was interviewed after being cautioned about criminal liability for perjury. The relevant part of the interview records stated as follows:

“On 12 June 2013 I arrived at SIZO-3 in Orenburg with Mr Al. and Mr R.M., who lives in Uzbekistan but works in Moscow and who is a brother of Mr Mamazhonov... I was told [by officers of the detention facility] that the client’s release would not take place that day, since the papers were not ready... [I was told to return the next day by 9 a.m.]

... While Mr Mamazhonov was detained in SIZO-3 I frequently visited him, but he never informed me of any visits from law enforcement agents or anyone else [or] the use of unlawful investigative measures or torture. If something like that had happened to him, he would have told me about it. I personally have also never been contacted about Mr Mamazhonov by agents of the State or other services of Russia or Uzbekistan; from what I know the same applies to his relatives...

... [O]n 13 June 2013 I arrived at SIZO-3 at around 6 a.m. The officer on duty refused to provide me with any information on Mr Mamazhonov... [she] told me that at 7.15 a.m. he was being released... At 9 a.m. I called SIZO-3 and was informed that Mr Mamazhonov had been released at 8 a.m. To date I have not been aware of his whereabouts, his relatives do not have this information either, as he did not make any contact. I am saying that his Russian passport has been seized and his Uzbek passport has been lost. Before his release Mr Mamazhonov did not inform me of an intention to move somewhere after his release; on the contrary, he wanted to regularise his status in Russia. I personally believe that certain parties from Uzbekistan interested in his return are implicated in [his] disappearance. There have been similar cases in Russia in the past.”

Later that day, in reply to the investigator’s request, the Transport Department of the Ministry of Internal Affairs in Orenburg stated that there was no record of the applicant buying train or plane tickets between 13 and 27 June 2013.

On 27 June 2013, relying on the results of the preliminary inquiry, the Investigative Committee initiated criminal proceedings in respect of the applicant’s disappearance and suspected murder. The investigation was assigned to a group of investigators from the Investigative Committee, the FSB, and the regional Ministry of Internal Affairs.

On 1 July 2013 a detailed plan of the investigation was adopted by the group of investigators, presided by Mr L. The plan contained several dozen investigative measures each assigned to specific investigators. The measures were aimed at detecting the current whereabouts of the applicant, discovering information and evidence, and verifying five existing theories about the applicant’s disappearance. The theories adopted were that:

Later that day an investigator examined the area around SIZO-3 and established that there had been no outside video surveillance cameras placed there.

On 8 July 2013 the applicant’s representative Mr Gladkikh challenged the opening of an investigation into his client’s disappearance and suspected murder, arguing that the investigation should be based on his suspected abduction. On 27 July 2013 he was informed by the investigator that there was no evidence to substantiate the suspected abduction.

Later that day the applicant’s representative Mr Gladkikh was once again interviewed after being cautioned about criminal liability for perjury. His statement was essentially the same as his previous one (see paragraph 70 above).

On 9 July 2013 the release officer of SIZO-3, Mrs L.S., was questioned after being cautioned about criminal liability for perjury. The relevant parts of the interview records read as follows:

“... [The prosecutor’s decision to release Mr Mamazhonov on 13 June 2013 due to expiry of the maximum period for his detention] arrived at SIZO-3 on 11 June 2013 at around 5.30 p.m. ...

During the afternoon of 11 June 2013, the lawyer Mr Gladkikh...called me to inquire about the date of release... [Mrs L.S. informed him that it would be 13 June 2013]...

Around 10 a.m. on 12 June 2013 I was informed by officers at the checkpoint that Mr Gladkikh had visited [SIZO-3 to inquire about Mr Mamazhonov’s release]...

On 13 June 2013 I arrived at work at around 6.30 a.m. at the request of the head of SIZO-3, Mr L.A.... [and immediately took part in Mr Mamazhonov’s release]...

During the release, Mr Mamazhonov asked me whether his lawyer was waiting for him, but I could not tell [him] because I did not know...”

On the same day the head of SIZO-3, Mr L.A., was questioned after being cautioned about criminal liability for perjury. The relevant parts of the interview records read as follows:

“... During Mr Mamazhonov’s detention in SIZO-3 and after the prosecutor’s decision to release him, I was made aware of [his] concerns for his safety after release.

Accordingly, in order to ensure his safety I made the decision to release [him] before regular working hours...

I took part in [his] release...as an officer in charge of supervising the release procedure...

[After release] Mr Mamazhonov left the premises of SIZO-3. He left the area and passed the guards alone...

I am not aware if anyone was meeting him...”

On 15 July 2013 three security guards of SIZO-3 who were present during the applicant’s release were questioned after being cautioned about criminal liability for perjury. They all stated that the release had taken place at around 6.30 a.m. and were not aware if anyone had been expecting the applicant, since they could not leave their duty stations in the building.

On 12 July 2013, in reply to the request of 8 July 2013, the administration of SIZO-3 informed the investigation that while there were video surveillance cameras covering the building and adjacent area, the recordings of 13 June 2013 were no longer available due to the expiry of their storage period. However, the recording from the camera at the checkpoint of the detention facility covering the period between 5 and 6.57 a.m. that day was available (see paragraphs 91-95 below), since a local copy had been saved following a request in the course of the preliminary inquiry.

On 17 and 20 July 2013 the FSB in the Orenburg Region informed the chief investigator that they had complied with the investigative tasks assigned to them. They stated that they had contacted the National Security Service of Uzbekistan in order to obtain information about the applicant’s possible whereabouts, establish a list of his relatives, and procure the necessary background information. They further stated that according to their sources, the applicant might have been assisted in illegally crossing the Russian border by Mr Al., with whom he had previously collaborated extensively in illegal activities.

On 1 August 2013 the applicant’s cellmate in SIZO-3, Mr G., was repeatedly questioned after being cautioned about criminal liability for perjury. He mostly confirmed his previous statements, supplementing them with the following relevant passages:

“... Mr Mamazhonov told me that in Uzbekistan he had been prosecuted for terrorism. He told me that in Uzbekistan he might have been sentenced to 18 to 19 years’ imprisonment...

[He] also told me that in the summer of 2012 he had decided to travel to Uzbekistan by train, because he was worried about his two or three wives and seven children...

... He had only learnt of the international search warrant after his apprehension...

[He] did not want to return to Uzbekistan, because he would have been sentenced to lengthy imprisonment there...

[He] also mentioned that if there was no possibility of him staying in Russia, he would travel to Kyrgyzstan or Kazakhstan, where he had acquaintances...

[A day before his release he was informed of it]

Mr Mamazhonov told me that his lawyer was going to inform his friends and relatives of the day of release and that they were going to come and meet him...

[He was convinced that his friends and relatives] were going to help him relocate to another country if he was not able to stay in Russia, because he did not want to return to Uzbekistan...”

On 5 August 2013 Mr R.M., the applicant’s brother, was officially recognised as a victim by the investigative authorities.

On the same day the investigator sent a request for legal cooperation to the Uzbek authorities. The competent authorities were requested to inform Mr R.M. of his status in the investigation conducted in Russia and question him according to a non-exhaustive list of approximately thirty questions concerning the applicant’s background, state of health and mind, social and family ties, political and religious affiliations, and questions in respect of the events of 12 and 13 June 2013. Lastly, the Uzbek authorities were requested to collect a saliva sample from him for his DNA, in the event of a future need for identification.

On 7 August 2013, in reply to the request of 5 August 2013, the Federal Migration Service informed the investigation that there was no record of Mr Mamazhonov crossing the Russian border.

According to the material in the Court’s possession, other investigative activities between June and August 2013 included a screening of the applicant’s possible contacts, a search for possible witnesses, monitoring of the sale of train and airline tickets, putting the applicant on the list of missing persons, and sending legal cooperation requests to neighbouring regions.

The applicant’s representatives’ submissions of 20 December 2013 addressed to the Court were accompanied by an undated letter by Mr Gladkikh (the applicant’s second representative). The relevant parts of the letter stated:

“... in the beginning of September 2013 I received a phone call on my mobile from a man identifying himself as a relative of my client, Mr Mamazhonov. The man told me [the applicant] was being held in custody in Andizhan and that the criminal case would be sent to trial soon. Due to fears for his safety, he refused to provide me with detailed information on the case...or to state his full name.

Furthermore, from a private conversation with an investigator, Mr L., I have learnt that he (the investigator) is preparing to go on a mission to Uzbekistan in order to get statements from Mr Mamazhonov himself concerning the circumstances of the criminal case opened following his disappearance. He further informed me that the statements...would be obtained by officials of the Uzbek law enforcement agencies, and that just he himself would be present during the interview.”

On 21 April 2014 the applicant’s representatives informed the Court of the recent developments in the case. In particular, the letter stated:

“... The applicant’s lawyer Mr Gladkikh recently received a call from an unknown person...[who stated] that the applicant was currently being detained in Khanabad (Uzbekistan) and that the criminal case against him was about to be handed over to the court. The man also informed me that the applicant’s brother (who was acknowledged as a victim of the crime in the criminal investigation into the applicant’s abduction in Russia) was also currently being detained in Uzbekistan...

The applicant’s representatives also pointed out that the initial authorities’ intention to conduct certain investigative measures in Uzbekistan was not realised for unknown reasons. The intention to visit Uzbekistan confirms in itself that the applicant was in Uzbekistan...

The detention of the applicant’s brother, Mr R.M. (whose name was mentioned in the request for cooperation of 08.08.2013...) illustrates the reluctance of the Uzbek authorities to provide the Russian investigative authorities with an opportunity to get an independent statement from [him]...”

No other information is available to the Court regarding the progress of the criminal investigation.

The applicant’s whereabouts are currently unknown.

The Government submitted as evidence to the Court a recording from the video surveillance camera placed inside SIZO-3 in Orenburg facing the checkpoint of the detention facility, opposite the only entrance to the building. The recording covers the period between 6.13 and 7 a.m. on 13 June 2013, the day of the applicant’s release.

On the recording, at 6.17 a.m. a person identifying himself as Mr Ikromzhon Makhkamovich Mamazhonov is brought before an officer responsible for releasing detainees. He gives the same date and place of birth as those indicated (in paragraph 13) above, and gives an address in Orenburg as his place of residence. He is provided with an identity certificate, and after receiving it at 6.19 a.m. leaves, presumably after being released from the detention centre.

The recording of the next forty minutes shows several people approach and pass the checkpoint.

At 6.26 a.m. the following fragments of a conversation are audible:

“Woman: Permission to enter.

Man [over the phone]: Where are you? The exit? Alone? ...

Woman: ... civilians...

Man: Civilians?

Woman: No... [he] is in uniform and two civilians...”

At 6.43 a.m. a senior officer approaches the checkpoint, presumably from outside the building:

“Officer at the checkpoint: Good morning, Sir!

Senior officer: Hello! Have you seen anything?

Officer at the checkpoint: ...

Senior officer: I am asking you if you have seen anything.

Officer at the checkpoint: No.

Senior officer: OK. I am asking just in case.”

On 10 July 2013 the Ministers’ Deputies at the 1176th meeting, having considered the information and documents made available to them by the applicant’s representatives and the Court (see paragraph 11 above), adopted the following decision concerning the applicant’s disappearance:

“The Deputies,

Recalling the decisions adopted at their 1164th meeting (5-7 March 2013) (DH) and 1172nd meeting (4-6 June 2013) (DH) in the Garabayev group of cases against the Russian Federation,

noted with grave concern that a further incident involving allegations of kidnapping and illegal transfer of an applicant protected by an interim measure indicated by the Court under Rule 39 has been reported, this time in the context of the Mamazhonov case;

strongly insisted that light be shed on this incident and on the fate of the applicant as quickly as possible;

consequently insisted again on the pressing need to adopt as of now measures to ensure an immediate and effective protection of the applicants in a similar situation against kidnappings and irregular removals from the national territory;

recalled in this context the letter sent by the Chairman of the Committee of Ministers to the Minister of Foreign Affairs of the Russian Federation;

agreed that a draft interim resolution will be considered in the light of progress that would have been made, including the updated action plan submitted by the Russian authorities; this text will be circulated in the draft revised order of business of their 1179th meeting (24-26 September 2013) (DH).”


No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens

The applicant was born in 1952 and lives in Istanbul. He is the founder of the Turkish TV station Kanal 7 and director of the management board of its operating company Yeni Dünya Iletisim A.S. Kanal 7’s programme contents are broadcast nationwide in Turkey and in Germany through the TV station Kanal 7 Int. The latter is operated by private limited-liability companies established under German law and, since 2001, by Euro 7 Fernseh- und Marketing GmbH (Gesellschaft mit beschränkter Haftung) with the applicant as one of its shareholders. The applicant alternately occupied the position of managing director (Geschäftsführer) or authorised signatory (Prokurist) in such companies.

Since 1998 a specific programme slot in the channel’s broadcasting schedule had been allocated to the non-profit association Deniz Feneri Yardimlasma Dernegi, founded, inter alia, by the Kanal 7 head of human resources who was also a member of the association’s board of directors. During that programme, broadcast in Turkey and in Germany, the association reported on charitable aid projects being run by it and appealed for monetary donations. In 1999 a similar association was founded in Germany under the name of Deniz Feneri Dernegi e.V. (hereinafter “Deniz Feneri”) by G., one of the other shareholders and managing directors or, alternately, authorised signatories of Euro 7 Fernseh- und Marketing GmbH. G. was also appointed chairman of the association and remained in that position until 2006. In its donation appeals on television Deniz Feneri stressed that the funds donated would be used directly and exclusively for charitable purposes and for the funding of social projects.

In 2006 the Frankfurt am Main prosecution authorities (Staatsanwaltschaft) launched investigations against the applicant and several co-suspects, including G., on suspicion of having fraudulently used the majority of funds donated to the associations for commercial purposes and their own benefit.

On 11 March 2008 the preliminary criminal proceedings against the applicant were separated from the investigations against the co-suspects.

In the middle of 2008 criminal investigations based on the same allegations of fraud were also initiated against the applicant in Turkey.

By a judgment, the operative part of which together with a summary of its reasoning was pronounced orally on 17 September 2008 (file no. 5/26 Kls 6350 Js 203391/06 4/08), the Extended Economic Crimes Chamber (Große Strafkammer als Wirtschaftsstrafkammer) of the Frankfurt am Main Regional Court convicted two of the applicant’s co-suspects, G. and T., of aggravated fraud (Betrug in einem besonders schweren Fall) acting as members of a joint criminal enterprise with its leaders in Turkey. Another co-accused, E., was convicted of having aided and abetted the commission of the offence. G. and T. were sentenced to prison sentences of five years and ten months and two years and nine months respectively, while E. was given a suspended prison sentence of one year and ten months. The full judgment, with the complete reasoning, was subsequently delivered in writing between 17 September and the beginning of November 2008.

The Regional Court found it to be established that G. had created and maintained a complex structure for the purpose of concealing the fact that the majority of the donations obtained for charitable purposes as advertised by Deniz Feneri were in reality earmarked and used to finance the entrepreneurial activities of private companies in which G. and the applicant, among others, became shareholders. At G.’s request, T. had contributed to the fraudulent misrepresentation by, inter alia, fabricating minutes of virtual association meetings of Deniz Feneri in order to conceal the unauthorised use of donated funds from the tax authorities. E., for his part, also acting upon instructions from G., had omitted to record the actual use of the donations in the association’s official accounts and had documented them in separate unofficial accounts (Nebenbuchhaltung).

The court’s findings were primarily based on confessions made by T., E. and G. following a plea bargain reached between the court, the prosecution authorities and the defence and also on further evidence obtained in the course of the trial. Whereas G. maintained that he alone had decided how the donated funds would be used without having consulted any contact persons in Turkey, T. and E. testified that G. had been integrated into the hierarchy of a criminal organisation whose leaders were in Turkey and in which the applicant had played a leading role. According to T. and E.’s testimony, G. had to obtain the applicant’s prior approval with respect to all essential decisions relating to the use of donations obtained by the association. The court was therefore satisifed that G. had not been at the top of the criminal organisation’s hierarchy but had received orders from its leaders residing in Turkey.

The judgment’s reasoning is divided into six parts headed by Roman numerals. Part I provides information on the personal background of the accused. Part II contains a description of the circumstances of the case. Part III sets out the type of evidence on which the Regional Court based its establishment of the facts and the court’s assessment of the veracity and credibility of the relevant evidence. Parts IV and V contain the legal assessment of the offences committed by the accused and the determination of their relative guilt and the resulting sentence. Part VI stipulates that the accused are to bear the costs of the proceedings. The judgment refers on several occasions to the role that the heads of the criminal organisation in Turkey played in connection with the use of donated funds for non-charitable purposes. In that context the applicant’s full first and last names are mentioned numerous times in the judgment running to some thirtytwo pages. The most relevant passages of the judgment in parts II to V of its reasoning read as follows:

It was neither the association’s chairman nor the registered members of the association [Deniz Feneri] who decided on the use of funds obtained on behalf of the association but the accused G. in coordination with and upon the instructions of the separately prosecuted (gesondert Verfolgte) Zekeriya Karaman, ..., ... and ..., ... (pp. 8 to 9)

The accused G. and the persons in charge of Kanal 7 in Turkey were ... aware that donations collected in the German association’s [Deniz Feneri] name would only partly be used for charitable purposes or social projects. At any rate, since the year 2002 it had been the intention of G. and the separately prosecuted persons behind the scenes (Hinterleute) to also use a large part of the collected funds for economic activities, in particular for the start-up financing of entrepreneurial projects of private-law companies in which G. or the separately prosecuted Zekeriya Karaman, ..., ... and ... became shareholders. (pp. 9 to 10)

For this reason, the accused G. and the separately prosecuted Zekeriya Karaman instructed the co-accused E. to keep unofficial accounts (Nebenbuchhaltung). (p. 11)

Every month the contents of the unofficial accounts in Germany were coordinated between G. and ..., ... or Zekeriya Karaman. (p. 12)

According to the entries in the unofficial accounts a total amount of 4,504,000 euros was handed over to the separately prosecuted Zekeriya Karaman. (p. 15)

The separately prosecuted Zekeriya Karaman, ..., ..., ... and ... decided on the use of the funds collected by means of donations. In his capacity as director of the management board of Yeni Dunya Iletisim A.S., Zekeriya Karaman was accorded a pre-eminent role in this respect. (p. 15)

The accused T. was not aware of the exact amount of donated funds that had been used for non-charitable purposes. However he endorsed appeals for further donations while knowing that they were to a large extent going to be used for unauthorised purposes ... Following G.’s arrest in April 2007 he was the contact person of Zekeriya Karaman with respect to all matters related to Deniz Feneri in Germany. The latter provided him with a mobile phone and a prepaid card in view of suspected telephone surveillance. (p. 21)

Sachverhalt) have been established (steht fest) on the basis of the confessions made by the accused and further evidence obtained in the course of the trial as set out in the record of the hearing. (p. 22).

The Chamber did not follow G.’s submissions that he alone had decided on the unauthorised use of donated funds without consulting the persons behind the scenes in Turkey. The accused E. and the accused T. had stated in the course of their confessions during trial and during previous police questioning that G. had been integrated into a hierarchy and had to coordinate all essential decisions with the separately prosecuted Zekeriya Karaman, ... and ..., while Zekeriya Karaman, in his capacity as director of the management board of Yeni Dunya Iletisim A.S., played a pre-eminent role. (p. 23)

Such integration into a structure controlled from Turkey, as described by the two coaccused, is sufficiently proved by the implementation of an unofficial accounting system, a parallel structure to the television station and the association Deniz Feneri in Germany and Turkey for the collection of donations, the shareholding in the companies funded by donations, and the fact that cash withdrawals had been handed over at the premises of Kanal 7 in Turkey. By assuming sole responsibility for the donation appeals and the unauthorised use of the donated funds, the accused G. apparently tried to protect the persons behind him in Turkey from criminal prosecution in Germany and/or Turkey. (p. 23)

The accused T. is guilty of fraud committed in his capacity as successive joint offender (in sukzessiver Mittäterschaft) pursuant to Articles 263 and 25 § 2 of the German Criminal Code. Not only did T. want to support the actions of others but he also wanted to participate in a joint operation (gemeinschaftliche Tätigkeit) together with G. and the persons behind the scenes in Turkey. (p. 25)

Furthermore, it had to be considered in [G.’s] favour that he was not positioned at the top of the hierarchy which organised the fraud (Spitze der Organisation des Betrugs) but received instructions from the persons behind the scenes in Turkey. He could not decide alone on the unauthorised use of the donated funds but only develop ideas that ultimately had to be approved by the persons behind the scenes in Turkey. He was an executing organ rather than a decision maker (mehr ausführendes als bestimmendes Organ). (p. 28)

[T.’s] confession was not limited to his own participation in the commission of the offence. He also revealed his knowledge regarding the background and in particular concerning the persons behind the scenes. His knowledge was limited since G. and the persons behind him deliberately granted him only a restricted insight. In the hierarchy he was placed far below G. and the responsible persons in Turkey. (p. 29)

By keeping unofficial accounts [E.] made a significant contribution to the functioning of the overall system. The fact that he was not only requested by G. but also directly by the separately prosecuted Karaman to keep off the recorded accounts demonstrates the importance of such unofficial accounting. (p. 30)

The persons behind the scenes in Turkey had previously attempted to prevent [E.] from testifying before the investigative authorities by establishing contact with his first counsel and members of his family.” (p. 31)

According to an article published by the German newspaper Frankfurter Rundschau on the Internet on 18 September 2008, the Acting President of the Frankfurt am Main Regional Court’s Extended Economic Crimes Chamber had stated, when delivering the judgment, that the donated funds had been used by the persons behind the scenes for a mixture of their own economic and political purposes even though part of the money had indeed been spent on aid projects. The same newspaper had reported in an article published on the Internet on 15 September 2008 that the prosecution authorities (Staatsanwaltschaft) had referred to the applicant as the “main perpetrator and leader (führender Kopf) of the whole organisation”. Similar quotations were published in several Turkish newspapers on 17 and 18 September 2008. For instance, according to an article published in the Turkish newspaper Hürriyet on 18 September 2008, the presiding judge had declared when delivering the judgment, that “strings were pulled at the level of Kanal 7. G. and T. acted in accordance with instructions they had received from Kanal 7, in particular from Zekyria Karaman, ..., ... and ... The main persons in charge were located in Turkey.”

The judgment was published on the Regional Court’s website on 25 November 2008. In the judgment’s Internet version the names of the accused and separately prosecuted were replaced by letters and the names of the companies involved by numbers. The introductory comments to the Internet publication included a paragraph stating that the judgment had become final and was binding only on the three convicted persons. It was specified that references and findings in the judgment with respect to the actions of other persons, in particular those separately prosecuted, were not binding in relation to those persons and that the latter still benefited from the presumption of innocence. The text of the judgment itself does not contain a similar specification.

The judgment became final on 13 November 2008.

By written submissions dated 16 December 2008 the applicant lodged a complaint with the Federal Constitutional Court. He argued that the references in the reasoning of the Regional Court’s judgment of 17 September 2008 to his role in the fraudulent use of the donated funds had violated the principle of the presumption of innocence, which constituted one aspect of the constitutionally guaranteed right to a fair trial taken in conjunction with the principle of the rule of law.

By a decision of 3 September 2009, served on the applicant on 25 September 2009, the Federal Constitutional Court dismissed the complaint as inadmissible (file no. 2 BvR 2540/08).

The Constitutional Court found that while defendants were not categorically prevented from challenging a judgment delivered in proceedings conducted against third persons, an applicant who had not been party to the proceedings did have to be able to claim that his or her legitimate interests were directly affected by the impugned decision and not only in an indirect de facto manner. The Constitutional Court reiterated its established case-law according to which, by virtue of the constitutionally guaranteed principle of the presumption of innocence, no measures effectively amounting to a penalty could be taken against an accused without his guilt having been established beforehand in the course of a fair trial. Furthermore, that finding of guilt had to become final before it could be held against the person concerned. However, in the context of criminal proceedings the presumption of innocence did not prevent the law-enforcement authorities from making an assessment as to whether and to what degree a person could be suspected of having committed a criminal offence.

, the Constitutional Court pointed out that the presumption of innocence did not protect the applicant ab initio from any factual impact of statements made in a judgment rendered in criminal proceedings against third persons with respect to his own involvement in the commission of the offence. That judgment did not constitute a decision that required the determination of the applicant’s guilt or exposed him to disadvantages amounting to a conviction or sentence. Statements made in criminal proceedings against third persons did not have a binding effect on the courts or the prosecution authorities, whether with respect to preliminary proceedings pending against an applicant or in relation to any other court or administrative proceedings to which an applicant might possibly become a party in the future. The applicant could not be regarded as guilty on the basis of that judgment and was still protected by the principle of the presumption of innocence. The fact that the establishment of the facts by the Regional Court not only concerned the accused, who were convicted at the end of the proceedings, but also the applicant was an inevitable consequence of the fact that in complex criminal proceedings it was hardly ever possible to conduct and terminate the proceedings against all the accused simultaneously.

A request for legal assistance was sent to the Turkish authorities on 20 January 2009 with a view to obtaining the applicant’s examination in Turkey. No information was submitted to the Court as regards compliance with that request.

On 20 August 2009 the Frankfurt am Main prosecution authorities brought charges against the applicant and three co-accused in connection with the events in issue. It further appears that on 9 April 2012 the Ankara General Prosecutor’s Office brought similar charges against the applicant and that his trial in Turkey commenced on 16 January 2013. According to the Government’s submissions, the Frankfurt am Main Regional Court, by an order dated 19 August 2013, opened the main hearing in the proceedings against the applicant. These are apparently still pending.