Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Remainder inadmissible (Art. 35) Admissibility criteria;Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Violation of Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens-{general} (Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+5-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 5-1 - Lawful arrest or detention;Article 5 - Right to liberty and security);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Inhuman treatment;Prohibition of torture);No violation of Article 1 of Protocol No. 7 - Procedural safeguards relating to expulsion of aliens (Article 1 para. 1 of Protocol No. 7 - Expulsion of an alien;Lawfully resident);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property);No violation of Article 2 of Protocol No. 1 - Right to education-{general} (Article 2 of Protocol No. 1 - Right to education);Just satisfaction reserved

Anatoly Kovler;André Potocki;Ann Power-Forde;Christos Rozakis;Corneliu Bîrsan;Dmitry Dedov;Elisabeth Steiner;Françoise Tulkens;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Nicolas Bratza;Nona Tsotsoria;Päivi Hirvelä;Peer Lorenzen;Rait Maruste;Renate Jaeger;Vincent A. De Gaetano;Zdravka Kalaydjieva

The facts of the case may be summarised as follows.

Having regard to all the evidence submitted to the Court, it transpires that at the end of the summer of 2006 the political tensions between the Russian Federation and Georgia had reached a climax with the arrest on 27 September 2006 of four Russian officers in Tbilisi and the suspension by the Russian Federation on 3 October 2006 of all aerial, road, maritime, railway, postal and financial links with Georgia. Expulsions of Georgian nationals by the Russian Federation were already being reported in the international media at the end of September 2006, and those reports were then being relayed by various international governmental and nongovernmental organisations (see, inter alia, the report of 22 January 2007 by the Monitoring Committee of the Parliamentary Assembly of the Council of Europe (PACE) “Current tensions between Georgia and Russia”, AS/Mon(2006)40 rev.; the report of October 2007 by Human Rights Watch (HRW) “Singled Out. Russia’s detention and expulsion of Georgians”, Volume 19 No. 5(D); and the report of April 2007 by the International Federation for Human Rights (FIDH) “Migrants in Russia”, no. 472).

It has been established that during the period in question (from the end of September 2006 until the end of January 2007) Georgian nationals were arrested, detained and then expelled from the territory of the Russian Federation.

According to the applicant Government, these were reprisals following the arrest of the Russian officers in Tbilisi and Georgian nationals were expelled regardless of whether they were lawfully or unlawfully resident in the Russian Federation, simply because they were Georgian.

According to the respondent Government, the events relating to the arrest of four Russian officers in Tbilisi were entirely irrelevant to the facts set out by the applicant Government in their application. The Russian authorities had not taken any measures of reprisal against Georgian nationals, but had merely continued applying the statutory provisions for the prevention of illegal immigration in compliance with the requirements of the Convention and the Russian Federation’s international obligations.

The parties submitted conflicting statistical evidence regarding the number of Georgian nationals expelled during that period.

The applicant Government submitted in particular that between the end of September 2006 and the end of January 2007, 4,634 expulsion orders had been issued against Georgian nationals, of whom 2,380 had been detained and forcibly expelled, and the remaining 2,254 had left the country by their own means. They specified that between October 2006 and January 2007 there had been a sharp increase in the number of expulsions of Georgian nationals, which had risen from about 80 to 100 persons per month between July and September 2006 to about 700 to 800 per month between October 2006 and January 2007. At the witness hearing Mr Pataridze, Consul of Georgia in the Russian Federation at the material time, stated that from the end of September 2006 the Georgian consulate in Moscow had been inundated with telephone calls and requests for assistance from relatives of persons detained, and that between 200 and 300 Georgian nationals had come to the consulate every day. He also said that there had been an increase in the number of travel documents (which were necessary to expel Georgian nationals) issued during that period, with the number rising from an average of 10 to 15 documents per day to 150 per day (see Annex, § 13).

The respondent Government, which stated that they had only annual or half-yearly statistics, said that, in 2006, 4,022 administrative expulsion orders had been issued against Georgian nationals, which was a 39.7% increase compared with 2005. However, during that year the highest number of administrative expulsion orders had been made against Uzbekistan nationals (6,089), followed by Tajik nationals (4,960) and Georgian nationals (4,022), who, in reality, were only in third place. Between 1 October 2006 and 1 April 2007, 2,862 Georgian nationals had been the subject of expulsion orders. They also indicated that during October 2006 four planes chartered by the Russian Federation had flown a total of 445 Georgian nationals from Moscow to Tbilisi, and that at the end of October and the beginning of December 2006 two planes chartered by Georgia had flown 220 Georgian nationals from Moscow to Tbilisi. At the witness hearing Mr Shevchenko, who had been Deputy Head of the Department of Immigration Control of the Federal Migration Service at the material time, said that on 6 October 2006 the flight had been with a cargo plane from the Ministry of Emergency Situations (IL 76), on 10, 11 and 17 October 2006 with a Russian airliner (IL 62 M), and on 28 October and 6 December 2006 with Georgian airliners (see Annex, § 23).

With regard to the international governmental and non-governmental organisations, they partly reproduced the figures submitted by the applicant Government (see, inter alia, the report of the Monitoring Committee of the Parliamentary Assembly of the Council of Europe – PACE report, § 56). Human Rights Watch (HRW), for its part, also referred, in its report, to an information note of 1 November 2006 of the Federal Migration Service of the Russian Federation (HRW report, p. 37). According to HRW, that note indicated that between 29 September and 1 November 2006, 2,681 administrative expulsion orders were issued against Georgian nationals and 1,194 Georgian nationals were expelled. The International Federation for Human Rights (FIDH) referred in its report to “thousands of arrests [of Georgian nationals], hundreds of detentions and expulsions to Georgia” after the incident of 27 September 2006 (FIDH report, p.23).

In support of their allegations, the applicant Government submitted a number of documents issued by the Main Directorate of Internal Affairs (GUVD) of St Petersburg and the Leningrad Region and by the Federal Migration Service of the Russian Federation. These refer to two circulars: circular – приказ – no. 0215 of 30 September 2006 issued by the Main Directorate of Internal Affairs of St Petersburg and the Leningrad Region and circular – указание – no. 849 of 29 September 2006 issued by the Ministry of the Interior of the Russian Federation.

These documents are the following:

i. Three instructions of 2 and 3 October 2006 issued by the Main Directorate of Internal Affairs of St Petersburg and the Leningrad Region:

(a) The first instruction of 2 October 2006 (no. 122721∕08), sent by Mr V.J. Piotrovskiy, Acting Head of the Main Directorate of Internal Affairs of St Petersburg and the Leningrad Region, Police Major General at the material time, to the heads of division of the directorate, is entitled “increasing the effectiveness of the implementation of GUVD circular no. 0215 of 30.09.2006 (§§ 6.1, 6.2 and 7)” and orders that

“1. from 2.10. - 4.10.2006 and in cooperation with the territorial directorates of the Federal Migration Service for St Petersburg and the Leningrad Region including staff of all units, large-scale measures be undertaken to identify as many citizens (граждане) of the Republic of Georgia as possible who are unlawfully residing on Russian territory and deport them”;

“2. to “initiate” (Инициировать) decisions before courts in cases of violations of the rules governing the residence of foreign citizens deporting only the above-mentioned category of citizens by placing them in detention in a reception and detention centre of the Main Directorate of Internal Affairs (GUVD). The implementation of these measures is approved by the Directorate of the Federal Migration Service for St Petersburg and the Leningrad Region (UFMS) and the adoption of decisions is coordinated with the St Petersburg City Court and Leningrad Regional Court;” (the instruction in question also appears in the Annex to the PACE report and the HRW report, and is mentioned in the FIDH report, p. 26 (b) in fine).

(b) The second instruction of 2 October 2006 (no. 122721∕13) and the third one (no. 122721∕17) of 3 October 2006 supplement the first one. The second one, sent by Mr S.N. Storozhenko, head of a division of the Main Directorate of Internal Affairs of St Petersburg and the Leningrad Region at the material time, to the heads of district police departments for combating economic crime and of the Transport Department of St Petersburg, also refers to circular no. 0215. The third one, sent by Mr V.D. Kudriavtsev, Acting Head of Police of St Petersburg and of the Leningrad Region at the material time, to the heads of district police departments, orders the relevant authorities to submit daily reports on the number of Georgian nationals arrested for “administrative offences ... and violations of the regulations governing registration of home address”;

ii. An order of 2 October 2006 (no. 122721∕11) by Mr Kudriavtsev, Acting Head of Police of St Petersburg and the Leningrad Region at the material time, referring to the implementation of paragraph 3 of circular no. 0215;

iii. An information note of 18 October 2006 issued by the Federal Migration Service applying circular no. 849 of 29 September 2006 of the Ministry of the Interior of the Russian Federation indicating the measures taken to reinforce supervision of the lawfulness of Georgian citizens’ residence in the Russian Federation: checks on employers recruiting Georgian citizens, checks on Georgian citizens who have committed the offences set out in Articles 18.8-18.11 of the Code of Administrative Offences, suspension of the issuing of certain documents to Georgian citizens (acquisition of Russian nationality, registration documents, temporary and permanent residence permits) and checks on the lawfulness of granting such documents (the information note also appears in the Annex to the HRW report).

The respondent Government submitted that all those instructions, the order and the information note had been falsified and disputed the content as alleged by the applicant Government of the two circulars nos. 0215 and 849 to which those documents referred. However, they confirmed the existence of the two circulars, but said that these could not be provided to the Court because they were classified “State secret”. At the witness hearing Mr Nikishkin, Deputy Head of the Legal Department, Ministry of the Interior, Moscow, at the time of the hearing, confirmed that the instruction of 2 October 2006 (no. 122721∕08) (see paragraph 31 above) purportedly issued by the Main Directorate of Internal Affairs of St Petersburg and the Leningrad Region was a forged document and that the two circulars nos. 0215 and 849 (the latter actually being a telegram) were classified “State secret” and that they concerned a reference to various national criminal groups, but not a selective reference to Georgian nationals. They could not be disclosed because this was forbidden under Russian law (see Annex, § 21).

In his annual report of 2006 Mr V.P. Lukin, Commissioner for Human Rights of the Russian Federation (Russian Ombudsman) at the material time, published the full text of the instruction of 2 October 2006 (no. 122721∕08), on which Mr V.J. Piotrovskiy’s name appears unsigned. The Commissioner said that the instruction had been sent to him by St Petersburg human rights activists and that it had been published by the local press. He commented as follows: “To call things as they are, this unprecedented document is evidence that ... most senior police official entered into an arrangement with the judicial authorities with the aim of obtaining unjustified judicial rulings in relation to – as yet unidentified – persons in breach of temporary residence procedures, ignoring the specific circumstances of each of them and on the sole basis that they were Georgian citizens.” He went on to say that he had asked the General Prosecutor of the Russian Federation to check whether the document was genuine and, if so, “to take appropriate measures to bring the guilty to justice and revoke the blatantly illegal instructions contained in it” (Annual report of 2006 of the Commissioner for Human Rights of the Russian Federation, point 7 “Interethnic relations and human rights”).

In his letter in reply of 8 December 2006, Mr A.E. Buksman, Deputy General Prosecutor of the Russian Federation at the material time, said that it “was established that the law-enforcement authorities of St Petersburg and of the Leningrad Region regularly take measures aimed at revealing foreign nationals unlawfully residing in St Petersburg and the Leningrad Region. These measures are realised in accordance with the rules of the Russian Code of Criminal Procedure, the Russian “OperationalSearch Activities” Act (Об оперативно-розыскной деятельности РФ) and departmental regulations including those constituting a State secret. In the current year 1,069 foreign nationals were sent back from St Petersburg to their countries; 131 of them had Georgian nationality. No cases of abuse of authority were revealed on the part of officers of the militia department.”

In his report the Commissioner described the reply from the Deputy General Prosecutor as follows: “in the best bureaucratic traditions the document gave no answer to any of the questions posed by the Commissioner. Instead, the “reply” from the Deputy General Prosecutor included a short report on the successes of the St Petersburg lawenforcement authorities and, in a reference to departmental regulations classified as “secret”, confirmed that there was no evidence of the employees having exceeded their authority. Whether this means that as a result the sub-departments of the Directorate of Internal Affairs of St Petersburg and the Leningrad Region did not carry out their superior’s manifestly illegal directions remains unclear.”

The applicant Government also submitted two letters from the Directorate of Internal Affairs of two Moscow districts – Taganskiy (Head at the material time: Mr G.S. Zakharov) and Zapadniy (Deputy Head at the material time: Mr A.V. Komarov) – sent on 2 and 3 October 2006 to schools for the purpose of identifying Georgian pupils with the aim, among other things, of “ensuring public order and respect for the law, preventing terrorist acts and tensions between children living in Moscow and children of Georgian nationality (национальность)” (letter from Mr Zakharov). In a letter in reply dated 4 October 2006, the director of one of those establishments at the material time (Mr Engels) said that there was no register recording pupils on the basis of their nationality (the letters from Mr Zakharov and Mr Engels also appear in the Annex to the PACE and HRW reports). The sending of these requests for information was widely commented upon in the Russian media.

The respondent Government did not dispute the existence of the letters and even acknowledged that other requests of the same type had been sent to various schools at the beginning of October 2006 by the head of the Directorate of Internal Affairs of the Butyrskiy District of Moscow (Mrs N.V. Markova at the material time), on the ground that she wanted to identify cases of bribes paid to schools by illegal immigrants, and by the Head of the Juvenile Department of the Togliatti District in the Samara Region (Mrs S.V. Volkova at the material time), on the ground that she wanted to identify cases of children living in insalubrious conditions. The respondent Government submitted that the subsequent investigations had concluded that no such official instructions had been issued by the Ministry of Internal Affairs. However, where – in isolated cases – officials had been over-zealous, they had subsequently been punished for their illegal acts. The documents submitted by the respondent Government show that the officials in question were respectively reprimanded (выговор), downgraded and disciplined. At the witness hearing Mrs Kulagina, Inspector, Department for the Organisation of Activities of the District Police Officers and District Supervision Officers in respect of Minors, Main Division of the Interior, Samara Region, at the material time, and Mr Shabas, Deputy Head of the Department of the Interior, North-Eastern Administrative District, Moscow, at the material time, confirmed that information and explained how the official investigations had been carried out and the penalties imposed on Mrs Volkova and Mrs Markova among others (see Annex, §§ 19 and 22).

The respondent Government also submitted a letter of 5 December 2006 from the Deputy General Prosecutor of the Russian Federation to all prosecutors pointing out that various internal affairs directorates had acted unlawfully with regard to nationals of the Commonwealth of Independent States (CIS). He referred in particular to unjustified requests sent to schools for the purpose of identifying pupils of Georgian nationality and concluded the letter by inviting all prosecutors to intensify their supervision of the activities of those divisions with a view to guaranteeing respect for the rights and freedoms of nationals of the CIS.

The international governmental and non-governmental organisations, for their part, referred to coordinated action between the administrative and judicial authorities, with express reference to the instruction of 2 October 2006 (no. 122721∕08) and to circular no. 0215 of the Main Directorate of Internal Affairs of St Petersburg and the Leningrad Region of 30 September 2006 (PACE report, §§ 55 and 71, HRW report, § 37, and FIDH report, pp. 26 and 27). At the witness hearing Mr Eörsi, rapporteur of the PACE Monitoring Committee at the material time, said that the expulsion of such a large number of Georgian nationals within such a short space of time could not have been done without the knowledge and instructions of fairly highranking persons among the Russian authorities.

The FIDH indicated, moreover, that “human-rights and refugeesprotection organisations present in Russia consider that a campaign conducted in such an ostensible manner throughout Russian territory can only have been initiated on a written order from the hierarchy of the Ministry of the Interior. And whilst the top officials of the Federal Migration Service and the Ministry of the Interior have denied giving explicit repressive orders targeting Georgians, many members of the “Migration and Law” network of “Memorial” [Russian non-governmental human rights organisation] have seen in the regional departments or police stations written [instructions] containing all the elements present in the campaign. The case of the [secret circular issued by the Main Directorate of Internal Affairs of St Petersburg and the Leningrad Region] and letters sent to schools in Moscow (see paragraphs 36 to 37 above) cannot be regarded as isolated cases” (FIDH report, pp. 28-29; for requests for information sent to schools, see also PACE report, Annex V, and HRW report, p. 37).

It is in dispute between the parties whether the Georgian nationals who were expelled had complied with the immigration rules in the Russian Federation during the period in question. Many international governmental and non-governmental organisations have stressed the complexity of those rules (see paragraph 76 below).

With regard to the Georgian witnesses who gave evidence at the witness hearing, even though their legal situation in the Russian Federation often appeared confused, the Court notes that a majority of them were formally unlawfully resident in the Russian Federation – some for a number of years – for various reasons (for example, no valid work permit, visa or registration certificate, often issued fraudulently – unbeknown to them – by the many private agencies operating fairly widely in the Russian Federation). They stated that their papers had indeed been checked on occasions in the past, sometimes resulting in the payment of a sum of money, but that this was the first time they had been arrested and forcibly expelled from Russian territory.

Mr Pataridze, Consul of Georgia in the Russian Federation at the material time, said that the official procedures were difficult to carry out in practice and that many foreign nationals, including Georgians, had been tricked by private agencies, many of which acted illegally and even issued forged registration certificates. He added that in the Russian Federation recourse was commonly had to these private agencies, which advertised in all public places in the big cities (see Annex, § 13).

Mr Azarov, Deputy Head of the Department of Immigration Control, Federal Migration Service, Moscow, at the material time, and Mr Kondratyev, Inspector from the Division of Checkout Measures No. 2 in the same department at the material time, pointed out that only the official authorities were empowered to issue such documents and that they regularly published relevant information for the attention of foreign nationals. They confirmed the existence of such private agencies, but stressed that their activities were often illegal and were the subject of criminal proceedings, without, however, providing specific examples (see Annex, §§ 15 and 17).

Following the witness hearing, the impugned events may be summarised as follows: identity checks of Georgian nationals were carried out in the streets, markets and other workplaces and at their homes, and they were subsequently arrested and taken to police stations. After a period of custody in police stations (ranging from a few hours to one or two days, according to the witness evidence), they were grouped together and taken by bus to the courts, which summarily imposed administrative penalties on them and gave decisions ordering their administrative expulsion from Russian territory. Subsequently, after sometimes undergoing a medical visit and a blood test, they were taken to detention centres for foreigners where they were detained for varying periods of time (ranging from two to fourteen days according to the witness evidence), and then taken by bus to various airports in Moscow, and expelled to Georgia by aeroplane. It should be pointed out that some of the Georgian nationals against whom expulsion orders were issued left the territory of the Russian Federation by their own means.

The Georgian witnesses said that they had been arrested by Russian police officers on the pretext that their identity papers were not in order. They had often been unable to take their personal effects with them or inform their relatives. When they had asked why they were being arrested, they had been told that it was because they were Georgian and that there was an order from above to expel Georgian nationals (witness statements nos. 1, 2 and 3 – see Annex, §§ 5, 6 and 7).

Mr Azarov, Deputy Head of the Department of Immigration Control, Federal Migration Service, Moscow, at the material time, and Mr Kondratyev, Inspector from the Division of Checkout Measures No. 2 in the same department at the material time, said that their departments undertook, on the basis of information received, identity checks of foreign nationals or employers suspected of having broken the immigration rules in the Russian Federation.

The Georgian witnesses all stated that a very summary procedure had been followed before the courts. Often they had not even realised that they had been brought before a court (witness statements nos. 4, 5 and 6 – see Annex, §§ 8, 9 and 10). Whilst some of them mentioned an interview with a judge, lasting five minutes on average and with no real examination of the facts of the case (witness statements nos. 1 and 3 – see Annex, §§ 5 and 7), others said that they had not been admitted to the courtroom and had waited in the corridors, or even in the buses that had delivered them to the court (witness statements nos. 2 and 7 – see Annex, §§ 6 and 11), with other Georgian nationals (their number varied between 15 and 150). They said that they had then been ordered to sign the court decisions without having had an opportunity to read the contents or being able to obtain a copy of the decision. They had not had access to either an interpreter or a lawyer (witness statements nos. 1, 2 and 4 – see Annex, §§ 5, 6 and 8). As a general rule, both the judges and the police officers had discouraged them from appealing by telling them that there was an order to expel Georgian nationals, and in any event they had been so stressed at the idea of remaining in detention any longer and so eager to return to Georgia that they would have signed “anything at all”. When they had asked why they were being expelled, they had been told that it was because they were Georgians and that they should ask their President, Mr Saakashvili.

Mr Pataridze, Consul of Georgia in the Russian Federation at the material time, said that Russian officials had privately told him that such appeals were pointless because the decision to expel Georgians from the Russian Federation was a political one (see Annex, § 13).

Mr Kondratyev, Inspector from the Division of Checkout Measures No. 2, Department of Immigration Control, Federal Migration Service, Moscow, at the material time, described the procedures before the courts as follows: the defendant was brought before a judge who informed him of his rights and obligations, asked him if he wanted an interpreter and a lawyer to be present, and, if so, his request was taken into account; the judge then asked the defendant questions about his particular situation, left the room and came back with the order. If it was an expulsion order, the defendant received a copy and was taken to the detention centre for foreigners with a view to his or her expulsion. He or she had ten days in which to appeal, even after being expelled from the Russian Federation, and that time-limit could be extended (see Annex, § 17).

Mr Manerkin, Head of the Division for Supervision of the Execution of Federal Legislation, Prosecutor’s Office, Moscow, at the material time, explained that at the relevant time his division had identified procedural irregularities particularly regarding the manner in which the Federal Migration Service had been drawing up reports on foreign nationals from a number of countries. In 22 cases those findings had led to the expulsion orders in question being set aside. He added that the General Prosecutor in charge of the Moscow Region had requested all his divisions to ensure that the rights of all foreign nationals were duly respected. He said that there had never been any instructions restricting the rights of Georgian nationals because that would be against the law, and even a crime under Russian law.

The Georgian witnesses spoke of “overcrowding”, “unbearable” and “inhuman” conditions of detention and appalling conditions of hygiene, and said that their fellow detainees had mainly been Georgian nationals, though there had sometimes been one or two other detainees of a different nationality.

They said that during their custody in the police stations, the cells, which were called “monkey cages”, had been tiny and overcrowded, that men and women had sometimes been detained together and that they had been unable to sit down (witness statements nos. 1 and 6 – see Annex, §§ 5 and 10).

They said that in the detention centres for foreigners the cells were also overcrowded: the description of the size of the cells ranged from 40 to 50 m2 for 100 detainees, 22 to 25 m2 for 23 detainees with 10 beds (witness statement no. 3), 6 x 8 footsteps for 30 detainees with 6 beds (witness statement no. 4), and 25 m2 with 40 detainees and 15 beds (witness statement no. 7). Other witnesses referred to tiny cells with 7 or 8 detainees (witness statements nos. 1 and 6) or with 45 detainees and 6 beds (witness statement no. 5 – see Annex, §§ 7, 8, 11, 5, 10 and 9). The beds had consisted merely of iron bars or very thin mattresses and no blankets; the detainees had had to take it in turns to sleep; a bucket had served as a toilet and had not been separated from the rest of the cells; and there had been no decent water or food.

Mr Pataridze, Consul of Georgia in the Russian Federation at the material time, said that he and his team had visited more than a dozen detention centres in various regions of the Russian Federation, including those of St Petersburg and Moscow. He confirmed that there had mainly been Georgian nationals detained in all the centres, that the cells were overcrowded, the conditions of detention very difficult, the hygiene appalling, and that there were too few beds and mattresses. Only the detention centre no. 1 of Moscow (model centre shown to journalists) offered better conditions of detention, though it too was overcrowded (see Annex, § 13).

Mr Azarov, Deputy Head of the Department of Immigration Control, Federal Migration Service, Moscow, at the material time, said that he was in charge of the eight detention centres in Moscow and that he had visited all of them: the conditions of detention were the same for all foreigners, namely, large cells of approximately 50 m2, with beds, separate toilets, running water and hot meals served three times per day (see Annex, § 15). Other Russian witnesses said that there had never been any complaints by the Consul of Georgia or by Georgian nationals regarding the conditions of detention.

The Georgian witnesses stated that they and other Georgian nationals had been taken by bus, accompanied by officers from the Russian special police force (OMON), to various Moscow airports from which they had been expelled by aeroplane to Tbilisi. They said they had been humiliated by OMON officers, such as being obliged to pay in the bus before being allowed to relieve themselves or smoke or take their personal effects (witness statements nos. 3, 4, 5 and 7 – see Annex, §§ 7, 8, 9 and 11), and subsequently having to walk or even run towards the aeroplane with their hands behind their back in human corridors formed by OMON officers. The first Georgian nationals to be expelled had been flown in a cargo plane (on 6 October 2006), and the next ones in airliners (on 10, 11 and 17 October 2006). Although the conditions of transport in the airliner had been acceptable, those in the cargo plane had been very rudimentary: the Georgian witnesses said that there had been two rows of benches on which women and children (twenty or so) had sat, with the men sitting on the floor or having to stand, and that a sort of tub had served as a toilet and had circulated between the rows. The estimated number of Georgian passengers in the planes varied between 80 and 150.

Mr Kondratyev, Inspector from the Division of Checkout Measures No. 2, Department of Immigration Control, Federal Migration Service, Moscow, at the material time, said that the cargo planes resembled airliners with slightly less comfort; in any event they had been equipped with seats or benches and with safety belts, and water and food had been served on board, and there had been toilets fixed to the floor. He had himself accompanied the cargo plane flight on 6 October 2006, and explained that the flight had lasted about three hours, that there had been about 150 passengers on board and they had not complained about the conditions of transport but had thanked the members of his department on arrival in Tbilisi. On the way back, the same plane had flown Russian nationals from Georgia to the Russian Federation.

Mr Azarov, Deputy Head of the Department of Immigration Control, Federal Migration Service, Moscow, at the material time, had been present at Zhukovskoe and Domodedovo Airports and had boarded two planes carrying Georgian nationals being expelled to Georgia. He said that the planes had been equipped with seats and benches, and that water and dry biscuits had been served on board.

Mr Shevchenko, Deputy Head of the Department of Immigration Control of the Federal Migration Service at the material time, stated that he had been present at the airport when the Georgian nationals were expelled and stressed that there had been no baggage restrictions; on the contrary they had had their personal effects on them and the media had been present. Subsequently, in a letter of thanks sent by the Consul of Georgia to the head of the Federal Migration Service of the town of Derbent (Dagestan) the former had congratulated the Russian authorities on their good co-operation during the expulsion procedures, and had not filed a claim.

The Georgian witnesses stressed that they were relieved to be back in Georgia and did not envisage appealing against the expulsion orders to the consulate or embassy of the Russian Federation in Tbilisi. In any case, during the procedures before the courts in the Russian Federation both the judges and the police officers had told them several times that it was pointless to appeal because there was an order from above to expel Georgian nationals. Some also referred to practical obstacles such as the closure of the Russian consulate in Tbilisi, while others spoke of long queues outside the consulate.

Mr Vasilyev, Consul of the Russian Federation in Georgia at the material time, said that after the repatriation of some of the diplomatic staff of the Tbilisi embassy and consulate to the Russian Federation at the end of September 2006 the embassy had continued operating normally, during the usual opening hours (9 a.m. – 4 p.m.), with a reduced workforce of fifteen people (diplomats and administrative staff) at the embassy and three diplomats at the consulate. The Georgian nationals could therefore have lodged appeals or complaints – personally, or through the Ministry of Foreign Affairs of Georgia – which would have been transmitted to the appropriate authorities in the Russian Federation, but no appeal or complaint had been lodged. After diplomatic relations between the two countries had been broken off, from March 2009, the Russian Federation had kept an office open at the Swiss embassy in Georgia and Georgia had also kept one open at the Swiss embassy in the Russian Federation. The respective diplomats of both countries could have been contacted there (see Annex, § 24). In their letter of 15 April 2011 the respondent Government confirmed that following the evacuation of some of their diplomatic staff at the end of September 2006, ten members of the diplomatic staff had continued working at the Russian embassy in Tbilisi and three at the consulate.

The PACE Monitoring Committee referred to a “selective and intentional persecution campaign based on ethnic grounds, which clearly goes against the spirit of Article 14 and of Protocol No. 12 to the European Convention for the Protection of Human Rights and Fundamental Liberties (ECHR) ... in which this group is clearly targeted through special militia operations to hunt down its population on streets, markets or in front of strategic places (Georgian consulate in Moscow, Georgian Orthodox Church) ...” (PACE report, §§ 52-53).

Non-governmental organisations referred to “massive operations of control and repression directed against Georgians of Moscow and other Russian cities” (FIDH report, point II “the anti-Georgian campaign of autumn 2006”, p. 20). Georgian nationals and “ethnic Georgians” were allegedly victims of a deliberate policy of detention and expulsion (HRW report, p. 1).

HRW cited the comments of Mrs Ella Pamfilova, then Head of the President’s Advisory Council on Human Rights and Civil Society in the Russian Federation (State body advising the Russian President on all matters relating to civil society and human rights), who said that “administrative and legal measures applied [against Georgians] are unfounded: businesses employing ethnic Georgians are being closed down, visas and registration papers legally obtained by Georgian nationals are being cancelled, people are being illegally detained and [expelled] from Russia” (statement of 8 November 2006, p. 30 of the report).

Mrs Svetlana Gannushkina, a member of the same advisory council, and Head of the “Migration and Law” network and Chairperson of the Civic Assistance Committee, and member of the board of the “Memorial” Human Rights Centre, at the material time, said in 2006 that there had been “organized persecution of Georgian nationals”. She considered that such “harassment of a specific group of people [was] a form of inadmissible discrimination [that could] in no way be viewed as a legal method of fighting illegal migration” (speech in the European Parliament on 21 November 2006).

Other European institutions also expressed their concern regarding the large number of Georgians expelled and asked the Russian authorities to revoke all the measures taken against Georgian nationals residing on their territory (speech of 25 October 2006 by Mrs Ferrero-Waldner, member of the European Commission for External Relations and European Neighbourhood Policy; Joint motion for a resolution of 6 March 2007 of the European Parliament on the situation in South Ossetia, points I. and 11 and 12; Statement of 15 December 2006 of the European Commission against Racism and Intolerance (ECRI)).

The PACE Monitoring Committee said that the “routine of expulsions” followed a recurrent pattern all over the country: “Georgians stopped in the street under the pretext of examination of their documents were detained no matter whether their documents were in order or not and taken to the Militia stations where they were gathered in large groups and delivered to courts, where decisions on administrative penalty with expulsion of the territory of Russia were made in accordance with preliminary agreement with the courts, with no lawyers and without the courts looking into individual circumstances, the entire procedure taking from two to ten minutes. Often people, subjected to these measures, were not admitted to the trial room, detainees were kept in corridors or even in cars in which they were delivered there” (PACE report, § 59).

That description tallies with that of the FIDH and HRW (FIDH report, pp. 23-26 under II-2 “Development of the crisis and type of persecutions” a) “Control and arrest operations”, b) “Flagrant denial of justice and circumvention of the procedures”, and HRW report, pp. 40-53 under “Arbitrary and illegal detention and expulsion of Georgians”).

According to HRW, “while many expelled [Georgian nationals] may technically have had a judicial decision ordering their expulsion, the manner in which those decisions were reached (some in group trials), the lack of representation and capacity to mount a proper case against the expulsion, and the fact that many were effectively denied the right to appeal, points to Russia’s failure to comply with its ECHR obligations” (HRW report, p. 13).

The FIDH, for its part, indicated that “the persons arrested were taken in groups to the courts, which in a few minutes ordered them to be expelled from Russia, preceded by a period of detention in a temporary detention centre for foreign citizens (TsVSIG), regardless of the conditions or the individual’s family situation” (FIDH report, p. 25).

It added that a lawyer from “Civic Assistance”, a Russian association, “witnessed on several occasions mass miscarriages of justice during the campaign: not only did the arrestees have no right to a lawyer, but they were most frequently brought in groups to the courts by police officers. Once there, the judges dealt with the cases as though on a production line and usually without those concerned by the expulsion orders being present and without even having regard to the circumstances of each case. These notices of expulsion were presented to the detainees; many signed thinking that they were signing a fine as part of a range of possible administrative penalties for offences against the immigration rules. On several occasions the persons concerned were discouraged in advance from appealing against the order on the ground that “it would make matters worse”. In some cases “agreements” were signed in the deportees’ place” (FIDH report, p. 26).

It also stated that “a number of factors point to collusion between the police and the judicial authorities, establishing that this policy was devised in advance: in Moscow evidence of collusion between the police and the courts lies in the fact that the latter had not listed any other cases during the periods when the police brought Georgians before the courts. They were arrested at 9 a.m. and presented as a group before the courts at 10 a.m. The judges gave a larger number of decisions in a few days than they normally give in six months” (FIDH report, p. 26).

With regard to the conditions of detention and expulsion, the PACE Monitoring Committee referred to the witnesses it had heard during the mission undertaken by the co-rapporteurs who spoke of “overcrowding” and “unbearable” and “inhuman” conditions of detention. They had allegedly been deprived not only of medical assistance but also of any possibility of satisfying their basic needs.

That situation had resulted in the death of a 48-year-old Georgian citizen, Tengiz Togonidze, who, according to witnesses, suffered from asthma. After being detained for two weeks without medical assistance and without being able to go out into the fresh air, he had died after a journey lasting several hours between the detention centre in St Petersburg and Moscow’s Domodedovo International Airport on 17 October 2006. The Deputy Head of the Federal Migration Service at the material time, Mr Turkin, said that the detention facility in question was being closed down. The Monitoring Committee also referred to the case of a second Georgian national, Manana Jabelia, aged 52, who had died on 2 December 2006 in Moscow detention centre no. 2 after two months of inadequate medical assistance and after being refused urgent medical aid (PACE report, § 60).

Lastly, the Monitoring Committee referred to the conditions in which Georgian nationals had been transported by cargo flights at the beginning of October 2006. This had been done in violation of the norms of the International Civil Aviation Organisation as such transportation of passengers was life-threatening (PACE report, § 57).

The FIDH specified that there were “eight temporary detention centres for foreigners (TsVSIG) in Moscow and the surrounding areas, which were mainly converted former sobering-up cells. Centres no. 1 (Novoslobodskaya district), no. 2 (in Peredelkino) and no. 8 (in Mnevniki) were visited by staff from the “Civic Assistance” Committee. In front of the one on Dimitrovskoe Chaussée Street, there was a queue of police cars nearly 2 km long waiting to offload arrested persons at a centre with space for about 320 people. Detainees said that there had been sixteen people instead of eight per cell, and that the food rations had not been increased. Moreover, there had been so many people that the TsVSIG had not even had time to draw up the documents discharging detainees.” The FIDH also referred to four cases of death in detention or during the journey prior to expulsion (FIDH report, pp. 26-27 under (c) “Conditions of detention and deaths in detention”).

HRW reported similar facts and also referred to four cases of death in detention (HRW report, pp. 53-57 under “Deaths of Georgians in custody”, and pp. 57-63 under “Inhuman and degrading treatment”).

On the first point HRW also referred to the case of Mr Togonidze and that of Mrs Jabelia, who had allegedly been subjected to very tough conditions of detention and not been given the necessary medical assistance, which had resulted in their death. The case of two other Georgian nationals who had died in detention was also mentioned. Furthermore, the Russian authorities had allegedly failed to carry out sufficient investigations following those deaths despite their obligation to do so under Article 2 of the European Convention on Human Rights.

On the second point HRW indicated that many Georgian nationals had been subjected to inhuman and degrading treatment on account of the poor conditions of detention and expulsion (overcrowded cells, lack of water and food, and transporting more than a hundred Georgian nationals by cargo plane).

Before undertaking an examination on the merits and an assessment of the evidence on the basis of each complaint, the Court will set out all the written and oral evidence to which it has had regard and the principles of assessment that it will apply.

In order to establish the facts the Court has based itself on the parties’ observations and the many documents submitted by them and on the statements of the witnesses heard in Strasbourg.

It has also had regard to the reports by international governmental and non-governmental organisations such as the PACE Monitoring Committee, HRW, the FIDH and the annual report of 2006 of the Human Rights Commissioner of the Russian Federation (Russian Ombudsman). Some of the documents submitted by the applicant Government also appear in these reports.

Furthermore, in letters of 28 June 2010 and 8 March 2011 and during the witness hearing the Court requested the respondent Government to produce the following additional documents:

i) monthly statistics regarding the expulsion of Georgian nationals during the years 2006 and 2007, to enable a comparison to be made between expulsions before and after the month of October 2006, during which mass arrests and expulsions of Georgian nationals allegedly began; the respondent Government replied that they kept only annual and half-yearly statistics that they had submitted to the Court;

ii) the two circulars nos. 0215 and 849 of the end of September 2006 that had been issued by the Main Directorate of Internal Affairs of St Petersburg and the Leningrad Region and the Ministry of the Interior of the Russian Federation respectively and to which the documents submitted by the applicant Government refer; the respondent Government disputed the authenticity of those documents and said that they could not submit the circulars in question because they were classified “State secret” (see paragraph 32 above);

iii) the files relating to the disciplinary proceedings brought against Russian officials who had sent requests to various Russian schools asking for lists of Georgian pupils; the respondent Government submitted a copy of several documents indicating that disciplinary penalties had been imposed on the officials in question;

iv) statistics on the number of decisions given on appeal by the Russian courts against decisions expelling Georgian nationals during the period in question (October 2006 to January 2007); in their letter in reply of 15 April 2011 the respondent Government again said that they did not have monthly statistics relating to the expulsion of Georgian nationals (the nationality of perpetrators of administrative offences did not appear in the statistics of ordinary courts and an electronic database for the entire Russian Federation had existed only since 2010), but that they could nonetheless provide information obtained manually for the period concerned from the courts of eighteen regions of the Russian Federation by providing the Court with copies of 86 appeal decisions. It should be mentioned that only 42 of these decisions concern Georgian nationals expelled during the period in question, 21 of which set aside decisions of the courts of first instance. Moreover, of the 86 appeal decisions submitted to the Court, only 8 concerned the City of Moscow and 17 the City of St Petersburg, whereas the majority of expulsions of Georgian nationals took place in those two cities. Lastly, one appeal decision out of the 8 concerning Moscow and 12 appeal decisions out of the 17 concerning St Petersburg concerned referrals back to the administrative authorities on the ground that the police officers had taken the Georgian nationals directly to the courts without first taking them to the Federal Migration Service as provided for by law.

During the week 31 January to 4 February 2011 the delegation of judges of the Grand Chamber heard a total of twenty-one witnesses, nine of whom had been proposed by the applicant Government, ten by the respondent Government and two chosen by the delegation.

The nine witnesses proposed by the applicant Government (except witness no. 8, wife of the late Mr Togonidze and who was an “indirect” witness to the events, and Mr Pataridze, Consul of Georgia in the Russian Federation at the material time) are Georgian nationals who were arrested, detained and expelled by the Russian authorities. Their evidence concerned the conditions of arrest, detention and expulsion in the autumn of 2006.

The ten witnesses proposed by the respondent Government are public officials of the Russian Federation, whose evidence concerned in particular the conditions of arrest, detention and expulsion of Georgian nationals, statistical data and the authenticity of the instructions issued by the Directorate of Internal Affairs of St Petersburg and the Leningrad Region and the circulars to which they refer.

The two witnesses chosen by the Court are Mr Eörsi, rapporteur of the PACE Monitoring Committee at the material time, and Mr Tugushi, a human-rights official with the OSCE mission in Georgia at the material time.

The delegation had also planned to hear other witnesses, including Mr Piotrovskiy, Acting Head of the Main Directorate of Internal Affairs of St Petersburg and the Leningrad Region at the material time, and presumed signatory to the instruction of 2 October 2006 aiming to “[increase] the effectiveness of the implementation of ... circular no. 0215 of 30.09.2006” (see paragraph 31 above). The day before his hearing the representative of the respondent Government indicated that Mr Piotrovskiy had been urgently admitted to hospital and submitted a hospital certificate to that effect.

The delegation had also wanted to hear Mr Lukin, Commissioner for Human Rights of the Russian Federation at the material time, but he did not reply to the Court’s summons.

Lastly, the delegation had also wanted to hear Mrs Pamfilova, Head of the President’s Advisory Council on Human Rights and Civil Society in the Russian Federation at the material time. However, it was not possible to hear her as a witness because, as explained in a letter of 15 October 2010, the respondent Government informed the Court that Mrs Pamfilova was no longer a public official but a private individual and that they were therefore unable to provide the Court with her address. It should be reiterated here that Contracting Parties have an obligation to serve any summons on a witness residing on its territory (see Rule A5 § 4, first sentence, of the Annex to the Rules of Court).

In assessing evidence the Court has adopted the standard of proof “beyond reasonable doubt” laid down by it in two inter-State cases (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25, and Cyprus v. Turkey [GC], no. 25781/94, § 113, ECHR 2001IV) and which has since become part of its established case-law (see, inter alia, Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 26, ECHR 2004VII, and Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, § 158, 1 July 2010).

However, it has never been its purpose to borrow the approach of the national legal systems that use that standard in criminal cases. The Court’s role is to rule not on guilt under criminal law or on civil liability but on Contracting States’ responsibility under the Convention. The specificity of its task under Article 19 of the Convention – to ensure the observance by the High Contracting Parties of their engagements to secure the fundamental rights enshrined in the Convention – conditions its approach to the issues of evidence and proof. In the proceedings before the Court, there are no procedural barriers to the admissibility of evidence or predetermined formulae for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see, inter alia, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005-VII, and Mathew v. the Netherlands, no. 24919/03, § 156, ECHR 2005IX).

In establishing the existence of an administrative practice, the Court will not rely on the concept that the burden of proof is borne by one or other of the two Governments concerned, but will rather study all the material before it, from whatever source it originates (see Ireland v. the United Kingdom and Cyprus v. Turkey, cited above, ibid.). In addition, the conduct of the parties in relation to the Court’s efforts to obtain evidence may constitute an element to be taken into account (see Ireland v. the United Kingdom; Ilaşcu and Others; and Davydov and Others, cited above, ibid.).


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Robert Spano;Stéphanie Mourou-Vikström

The applicant was born in 1953 and lives in Istanbul.

On 10 May 1999 a certain İ.Ö. lodged a criminal complaint against the applicant, claiming that he had issued an uncovered cheque dated 26 April 1999.

On the same date the Bakırköy public prosecutor’s office indicted the applicant in the Bakırköy Criminal Court of First Instance under section 16 (1) of Law no. 3167 – in force at the material time – for issuing an uncovered cheque. The cheque bore the applicant’s name underneath the name of the company of which he was president of the executive board, and the address of the company on the cheque was indicated as being “... Bakırköy / Istanbul”.

On 2 September 1999 the trial court held a preparatory hearing (tensip) and ordered that a summons be served on the applicant.

On 6 October 1999 the trial court sent a copy of the bill of indictment, together with the notice of the first hearing, to the address written on the cheque. On the same day the trial court asked the Bakırköy public prosecutor’s office to confirm the applicant’s identity and enquire about his full address and provide it with this information.

On 7 October 1999 the summons was returned on the grounds that the applicant had left that address, leaving “P.K. [post box] 5 Bakırköy” as an alternative address.

Within the context of the enquiries to find out what the applicant’s new address was, it appears that the Bakırköy public prosecutor’s office asked the police and the mayor of the neighbourhood (muhtarlık) to collect information. In that connection, the police went to the address written on the cheque and concluded that the applicant had left it. According to the information received from the mayor of the neighbourhood, the applicant had left that address without giving any notification.

On 14 February 2000 the trial court held the first hearing in the absence of the applicant. The court decided to authorise his detention in absentia (tevkif müzekkeresi) with a view to obtaining his statements, under Article 223 of the former Code of Criminal Procedure, in force at the material time.

Between 14 February 2000 and 13 October 2004 the trial court waited for the detention order to be executed.

On 11 October 2001, while the criminal proceedings were ongoing, another court in Istanbul, namely the Bağcılar Criminal Court of First Instance, sent a summons to the applicant’s home address – “... Avcılar / Istanbul” – requiring him to give evidence as a complainant in another set of criminal proceedings.

On 16 July 2001, in another set of criminal proceedings, the Küçükçekmece public prosecutor’s office delivered a decision not to prosecute, in which it also indicated the applicant’s address as being “... Avcılar / Istanbul”.

On 26 May 2003 the trial court once again attempted to serve the summons at the address written on the cheque, but failed to do so for the same reasons.

On 21 June 2004 the trial court decided to serve the summons at the same address, in accordance with section 35 (4) of the Notification Act (Law no. 7201).

On 13 October 2004 the trial court convicted the applicant as charged and sentenced him to a fine (ağır para cezası) of 500,000,000 Turkish liras (TRL). That judgment was served on the applicant on 30 October 2004. The seven-day time-limit for lodging an appeal against the judgment expired, and in the absence of an appeal it became final.

On an unspecified date in 2006 several police officers from the Firuzköy police station in Avcılar, Istanbul, went to the applicant’s apartment with an arrest warrant and invited him to attend the police station. At the police station, the applicant was informed that an arrest warrant had been issued against him following his conviction by a criminal court, and that he would be put in prison unless he paid the 500 Turkish liras (TRY) fine previously imposed by the court. The applicant, who was unaware of any criminal proceedings against him, requested the details of the judgment in question and applied to the registry of the Bakırköy Criminal Court of First Instance for further information.

Upon examining the relevant case file at the registry of the first-instance court, the applicant discovered that he had been charged and convicted in absentia for issuing an uncovered cheque on 27 April 1999 and sentenced to a fine of TRY 500, an amount corresponding to the amount of the cheque. Moreover, the judgment, which had been delivered on 13 October 2004 by the Bakırköy Criminal Court of First Instance, had become final in the absence of an appeal.

On 5 May 2006 the applicant lodged an appeal with the Bakırköy Criminal Court of First Instance, challenging the judgment in question on the grounds that it had been delivered in his absence and the accusations against him were ill-founded. He emphasised that he had not received any notice of the criminal proceedings or the judgment, not even when he had gone to the Bakırköy public prosecutor’s office three months prior to the delivery of the impugned judgment to obtain his criminal record details for an unrelated matter. He added that the claimant in the criminal proceedings, İ.Ö., was his former girlfriend, and that he had given her a blank cheque as a guarantee that he would discharge their joint debt to a bank. They had in fact signed an official document on 12 March 1998 in the presence of a lawyer confirming that İ.Ö. would only be entitled to cash this cheque if the applicant failed to discharge their joint debt to the bank. Upon settling the debt with the bank, the applicant had requested that İ.Ö. return the blank cheque to him, but İ.Ö. had failed to do so, alleging that she had lost it. He had accordingly reported the cheque as missing to the bank, and had asked to be notified in the event of any attempts to cash it. On 27 April 1999, very shortly after his move to a new address, his former girlfriend had apparently attempted to cash the cheque, and when the cheque had not cleared, had brought a criminal complaint against him. Despite his instructions, he had not been contacted by his bank when the cheque in question had been deposited by İ.Ö., nor had he been advised that the cheque had bounced.

On the same day the Bakırköy Civil Court of First Instance issued a summary judgment dismissing the applicant’s appeal as lodged out of time. It held that the judgment of 13 October 2004 had been duly served on him on 30 October 2004 in accordance with section 35 of Law no. 7201, and the appeal should therefore have been submitted by 8 November 2004.

On 22 May 2006 the applicant appealed against the summary judgment, reiterating the arguments he had previously submitted to the Bakırköy Civil Court of First Instance. He emphasised that, although his accurate address details could easily have been obtained from the mayor of the neighbourhood, the judgment of October 2004 had been served at the address which his company had moved out of on 15 April 1999. In his absence, it had apparently been posted on the door of the building. He therefore requested that the judgment which had been delivered in his absence be quashed or rectified.

On 21 September 2006 the Principal Public Prosecutor at the Court of Cassation delivered her opinion on the applicant’s appeal, where she requested that the first-instance court’s judgment of 5 May 2006 be quashed on account of the unlawful service of the initial judgment rendered in his absence.

On 2 October 2006 the Court of Cassation upheld the lower court’s decision, holding that the judgment in question had been duly served on the applicant in accordance with section 35 of Law no. 7201 on Notifications.

On 8 November 2006, in accordance with Article 308 of the Code of Criminal Procedure, the applicant requested that the Principal Public Prosecutor at the Court of Cassation lodge an application to have the Court of Cassation’s decision set aside.

It appears that the applicant was imprisoned on 24 November 2006 on account of his failure to pay the fine of TRY 500 imposed by the Bakırköy Criminal Court of First Instance on 13 October 2004.

On 26 November 2006 the applicant was conditionally released.

On 1 December 2008 the Principal Public Prosecutor at the Court of Cassation rejected the applicant’s application under Article 308 of the Code of Criminal Procedure, maintaining that the applicant’s arguments had already been examined by the Court of Cassation in its decision of 2 October 2006.


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

Jon Fridrik Kjølbro;Julia Laffranque;Stéphanie Mourou-Vikström

The applicant, who was born in 1989, lives in Istanbul.

On 14 January 2009 the applicant was taken into police custody on suspicion of membership of an illegal organisation.

On 17 January 2009 the investigating judge at the Istanbul Assize Court, after questioning the applicant, ordered his pre-trial detention.

On 24 June 2009 the Istanbul public prosecutor filed an indictment with the Istanbul Assize Court.

The trial commenced before the Istanbul Assize Court and the first preparatory hearing was held on 4 November 2009.

In the subsequent hearings held between 17 February 2010 and 3 November 2010, the applicant appeared before the court and the judges ordered his continued detention.

The applicant filed an objection against the decision of 3 November 2010. On 29 November 2010 the 12th Chamber of the Istanbul Assize Court dismissed this objection without holding an oral hearing, and based on the public prosecutor’s written opinion, which had not been communicated to the applicant or his representative.

On 13 February 2013 the applicant was released from detention on remand.

According to the latest information in the case-file, the proceedings against the applicant are still pending before the first-instance court.


CASE OF HARAKCHIEV AND TOLUMOV v. BULGARIA

Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading punishment;Inhuman punishment) (Substantive aspect);Non-pecuniary damage - finding of violation sufficient;Non-pecuniary damage - award

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

The applicant in the first application (no. 15018/11), Mr Harakchiev, was born in 1968. He is currently serving a whole life sentence (see paragraphs 58-60 and 65 below) in Stara Zagora Prison.

The applicant in the second application (no. 61199/12), Mr Tolumov, was born in 1954. He is currently serving a life sentence (see paragraphs 56 and 65 below) in Plovdiv Prison.

Between 1992 and 2005 Mr Harakchiev, a driver and car mechanic, was convicted eight times of non-violent offences: theft and aggravated theft (four convictions), and fraud and aggravated fraud (three convictions). He was given sentences ranging from two to five years’ imprisonment.

On 21 January 2003 the Haskovo Regional Court convicted Mr Harakchiev of illegal possession of a firearm and four armed robberies of motor vehicles carried out between 14 October and 6 November 2001, two of which had been accompanied by attempted murder and two by murder. It sentenced him to whole life imprisonment.

On 26 June 2003 the Plovdiv Court of Appeal upheld Mr Harakchiev’s conviction and sentence.

In a final judgment of 23 November 2004 (реш. № 476 от 23 ноември 2004 г. по н. д. № 901/2003 г., ВКС, ІІІ н. о.) the Supreme Court of Cassation likewise upheld Mr Harakchiev’s conviction and sentence. It held, inter alia, that in view of the gravity of his offences – in particular, the determination and cruelty with which they had been carried out – a more lenient sentence, such as life imprisonment (доживотен затвор със замяна), would not be adequate. That conclusion could not be altered by the fact that Mr Harakchiev had confessed and had helped the investigating authorities to uncover his criminal activities.

Mr Harakchiev has been detained in Stara Zagora Prison since 18 January 2002. He was initially placed under the “enhanced regime” (see paragraph 115 below). With the entry into force of the Execution of Punishments and Pre-Trial Detention Act on 1 June 2009, that regime was replaced by the “severe regime” (see paragraph 118 below) by operation of law. On 17 June 2009 the Execution of Punishments Commission (see paragraph 121 below) proposed that the Stara Zagora Regional Court place Mr Harakchiev under the “special regime” normally applicable to life prisoners, citing his “negative attitude” and lack of respect for internal order, as well as the fact that he should in any case have been placed under that regime from the outset. On 21 July 2009 the Stara Zagora Regional Court accepted the proposal. Mr Harakchiev’s legal challenge against that decision, filed on 12 July 2010, was rejected by the Stara Zagora Regional Court and the Plovdiv Court of Appeal as being out of time. The Government submitted that there was at present no intention on the part of the prison authorities to make further changes to Mr Harakchiev’s prison regime.

Between December 2005 and March 2013 Mr Harakchiev was given nine disciplinary punishments. The latest such punishments, in August 2012 and March 2013, were imposed in relation to (a) a scuffle between himself and another inmate during the daily walk on the morning of 4 August 2012, and (b) the theft on 18 February 2013 of food that another inmate had left in the communal toilet. In relation to the former, Mr Harakchiev was given a reprimand, and in relation to the latter isolation in a disciplinary cell for three days.

Mr Harakchiev’s cell – in which he is currently alone but which he apparently shared with another inmate between 2002 and 2007 – is in the prison’s high-security wing, reserved for life prisoners. According to Mr Harakchiev, the cell was quite small, especially bearing in mind that the furniture alone occupied 4.50 square metres, and was lit at night by a 60watt incandescent light bulb that was constantly on. According to the Government, the cell was not undersized. It measured 4.30 by 1.81 metres and was 3.95 metres high, with a total floor space of 7.78 square metres. It was furnished with a metal locker, a double metal bunk bed, two stools and a small table, all of which were attached to the floor for security reasons. It had a window, facing south, that measured 1.76 by 1.25 metres. Artificial lighting in the cell consisted of two 36-watt luminescent light bulbs. According to Mr Harakchiev, the incandescent bulbs had only been replaced with luminescent bulbs in 2012. He also pointed out that the cell did not have any low-intensity night lighting.

Stara Zagora Prison does not have a ventilation or airconditioning system. Mr Harakchiev claimed that as a result temperatures in his cell were very high in summer and there was no fresh air. In winter, heating was only turned on for periods of one hour in the morning, at noon and in the evening. According to the Government, the cell window could be opened, which allowed the cell to be aired at any time. The prison had its own heating installation with two boilers and a heat exchanger. The boilers were fired for nine hours a day, but the water that they heated circulated in the heating installation permanently. According to Mr Harakchiev, the radiator in his cell was hot for only thirty minutes each day and the poor state of repair of the cell window and the metal door were factors contributing to the low temperature in the cell in winter. Mr Harakchiev also submitted that as he had to dry his clothes in the cell, it was very damp. As a result, the paint and rendering were peeling off the walls.

According to Mr Harakchiev, the common areas of the prison could only be kept clean by bleaching with calcium hypochlorite, and the cells were only cleaned with water. In support of that assertion, Mr Harakchiev relied on the witness statement of one of his co-inmates made in the course of proceedings brought by him. According to the Government, the common areas of the prison were not merely cleaned with bleach. They were cleaned daily with detergents, and at least twice a year subjected to pest and rat control, as evident from fourteen invoices for such services carried out during the last four years. Mr Harakchiev replied that those invoices did not prove that the detergents had indeed been used as alleged by the Government. He also submitted that his cell was constantly infested with cockroaches and mice, and that all his complaints to the prison administration in that respect had gone unheeded. He submitted further that, since the window of his cell was not covered with a net, insects came into the cell all the time, drawn by the smell of excrement and the constant lighting at night, and bit him.

There is no toilet or running water in the cell. Mr Harakchiev submitted that as a result, apart from the three daily visits to the communal toilets, he had to use a plastic bucket to relieve himself. During the period he had had to share his cell with another inmate, he had had to do so in his presence. The lack of running water prevented him from washing his hands or the bucket after relieving himself. The Government pointed out that the toilet and bathroom in the high-security unit were accessible to inmates three times a day, and also whenever they asked the guards. It could not therefore be said that Mr Harakchiev was forced to use the bucket to relieve himself; that was his own choice. In fact he had more than ten buckets in his cell, in which he stored clothes, laundry and other items. Mr Harakchiev replied that, apart from the three daily visits to the toilet, between 5.30 a.m. and 8 p.m. the guards never opened his cell to let him visit the toilet. It was therefore not his choice to resort to the bucket for his sanitary needs.

Apart from his one-hour daily walk, Mr Harakchiev can leave his cell to visit the toilet three times a day. During each of those visits, he can also empty the bucket, wash his hands, and fill plastic bottles with water for drinking and sanitary needs. According to him, the visits to the toilet lasted no more than three minutes in the morning and no more than ten minutes at lunch and in the evening, and did not coincide with the visits of the other inmates in the unit.

According to Mr Harakchiev, inmates in Stara Zagora Prison could only take a shower once every fourteen or fifteen days. According to the Government, all inmates in the prison’s high-security unit could take a shower twice a week.

According to Mr Harakchiev, visits by relatives or lawyers took place in a special room. Prisoners and visitors were separated by a wire net, and prisoners had to remain seated. A prison officer was always present. According to the Government, the prison officer present during visits was only there to ensure good order and could not overhear conversations. Visits by lawyers took place in a separate room, in which no other person was present. The only form of control there was visual monitoring. In that context, the Government drew attention to the fact that as a result of the many claims that he had brought against the prison authorities, until mid2009 Mr Harakchiev had spent 97 days outside Stara Zagora Prison, and between 1 January 2010 and 18 May 2012 had spent 255 days, or 54% of the time, outside the prison.

According to Mr Harakchiev, food in the prison was poorly prepared, of low quality, tasteless, served cold and in unhygienic conditions, and insufficient in quantity. Meat was served once a week. The rest of the time food consisted of beans, lentils, cabbage and potatoes, served as soups or stews. According to the Government, the quantity and the chemical and calorie content of the food were fully adequate. The daily portions comprised 2,662 calories, and there was meat in the meals at least once a day. Mr Harakchiev replied that “meat” in effect meant boiled bones or canned meat. Both parties submitted menus and tables in support of their respective assertions.

According to Mr Harakchiev, medical care in Stara Zagora Prison consisted of routinely giving all inmates aspirin or Analgin, and inmates had to purchase all other medicines themselves. According to the Government, the prison’s medical centre was staffed by a general practitioner, three feldshers (paramedics – one for the main prison building and one for each of the two separate prison hostels), a nurse, a psychiatrist and a dentist. Medical examinations were carried out daily, and in cases of emergency inmates could be taken to the emergency ward of Stara Zagora Hospital. Medical examinations in the high-security unit were normally carried out on Fridays. Inmates could also consult outside specialists, or be treated in the prison hospitals in Sofia and Lovech. Medicines were normally provided by the prison medical centre, or could be obtained from outside the prison. The only medicine that Mr Harakchiev had had to obtain himself, because the centre had not had any in stock, had been Rivotril (clonazepam), at a unit cost of 7.31 Bulgarian levs (BGN). Mr Harakchiev replied, without giving further details, that he routinely had to purchase medicines himself. He also submitted that his dental care had consisted merely in extracting teeth; in spite of the obvious need to provide him with dental prostheses, the prison authorities had failed to take any action in that respect. The Government replied that dental prostheses did not form part of the standard medical cover for any health-insured person in Bulgaria, and could not be obtained free of charge.

The Government also asserted that Mr Harakchiev could see the social inspector in charge of his unit daily; he could ask to see a psychologist, the prison governor or deputy governor, the prison legal officer, or another member of the prison staff; he could socialise with other inmates of the same category during his daily walk and during meal times; and he had access to cable television, with fifty channels, to the prison library, and to religious services. For his part, Mr Harakchiev submitted that, in spite of having expressed his desire to do so, he had not been given any opportunity to work or take part in sport, cultural or educational activities. In reply, the Government stated that in November 2006 Mr Harakchiev had been allowed to take part in a yoga course in order to reduce his stress levels.

The annual psychological assessments of Mr Harakchiev for 2009, 2010, 2011 and 2013, submitted by the Government, are very similar. All of them say, often using the same language, that his conduct was characterised by the “campaign that he ha[d] mounted” against the institutions and prison officials with whom he had had contact, which chiefly consisted in his bringing various legal challenges and in inciting other prisoners to give “false evidence” in his favour. Dialogue with him was very difficult, chiefly because of his lack of respect for authority, acute awareness of his own rights, stubbornness, and tendency to call the officials concerned to give evidence in the cases that he was bringing against the prison authorities. The risk of serious harm was high in view of his personality, the nature of his offences and the rigidity of his conduct. He had been verbally aggressive to prison staff.

Since his incarceration in 2002 Mr Harakchiev has brought a number of claims for damages against the authorities under section 1 of the State and Municipalities Liability for Damage Act 1988 (see paragraph 136 below).

In a final judgment of 12 February 2009 (реш. № 1993 от 12 февруари 2009 г. по адм. д. № 9586/2008 г., ВАС, III о.) the Supreme Administrative Court dismissed a claim for damages brought by Mr Harakchiev under that provision in relation to the failure of the prison administration to provide him with newspapers. The court held that Mr Harakchiev had not proved that he had suffered any non-pecuniary damage as a result of that failure.

In a final judgment of 26 May 2009 (реш. № 6892 от 26 май 2009 г. по адм. д. № 14849/2008 г., ВАС, III о.) the Supreme Administrative Court dismissed a claim for damages brought by Mr Harakchiev under the above-mentioned provision in relation to a failure by the prison administration to organise his daily walk in such a way as to compensate him for one he had previously missed on account of bad weather. The court – overturning the lower court’s ruling on that point – held that Mr Harakchiev had failed to establish that he had suffered any non-pecuniary damage; he could not simply be assumed to have sustained damage on the basis of the prison administration’s failure to organise a daily walk.

In a final judgment of 18 January 2010 (реш. № 695 от 18 януари 2010 г. по адм. д. № 8404/2009 г., ВАС, ІІІ о.) the Supreme Administrative Court dismissed a claim for damages brought by Mr Harakchiev under the above-mentioned provision in relation to the refusal of the prison administration to allow him to watch films in the prison’s video-projection room. The court held that that would have been incompatible with the requirement, imposed by the “special regime” under which Mr Harakchiev was serving his sentence (see paragraphs 115 and 118 below), that he remain isolated in a locked cell at all times. The prison administration’s refusal had therefore not been unlawful.

In a final judgment of 9 November 2010 (реш. № 13333 от 9 ноември 2010 г. по адм. д. № 6668/2009 г., ВАС, III о.) the Supreme Administrative Court allowed a claim for damages brought by Mr Harakchiev under the above-mentioned provision in relation to the failure of the prison administration, for about five years, to provide him with shoes free of charge, as required by statute. Relying on Article 3 of the Convention, the court held that that failure had humiliated Mr Harakchiev and had diminished his human dignity. The court went on to say that Mr Harakchiev’s feelings of humiliation had been exacerbated as a result of his solitary confinement, and awarded him BGN 3,000 (the equivalent of 1,533.88 euros (EUR)), plus interest.

On 27 October 2009 Mr Harakchiev brought nine claims for damages against the Ministry of Justice and nine identical claims for damages against the Chief Directorate for the Execution of Sentences, which is a unit within that Ministry. He considered that the Ministry bore responsibility for all acts and omissions relating to his imprisonment before 1 June 2009, the date of entry into force of the Execution of Punishments and Pre-Trial Detention Act of 2009 (see paragraph 117 below), and that the Chief Directorate bore responsibility for all acts and omissions relating to his imprisonment after that date.

In a judgment of 21 December 2010 (реш. № 370 от 21 декември 2010 г. по адм. д. № 564/2010 г., АС-Стара Загора) the Stara Zagora Administrative Court, having carried out an inspection on the spot, allowed Mr Harakchiev’s claims against the Ministry of Justice and the Chief Directorate for the Execution of Sentences in relation to (a) the material conditions of his detention; (b) the failure of the prison administration to provide him with clothing, shoes and bed linen; (c) the failure of the prison administration to put in place conditions in which he could keep in good physical shape; and (d) the failure of the prison administration to enable him to take his outdoor exercise. The court dismissed the remaining claims, which concerned (a) the failure of the prison administration to provide Mr Harakchiev with toiletries; (b) the quality and quantity of the food that had been provided to him; (c) the failure of the prison administration to provide him with dental prostheses; (d) the failure of the prison administration to provide him with conditions allowing him to keep his mental health intact; and (e) the failure of the prison administration to provide him with work. The court awarded Mr Harakchiev a total of BGN 8,200 (the equivalent of EUR 4,192.59). It held, in particular, that the conditions of his detention had been in breach of Article 3 of the Convention and that he had accordingly suffered non-pecuniary damage. However, the court also held that the claim relating to the material conditions of detention was time-barred on the ground that it related to a period of time that predated the claim by five years.

In its findings of fact the court noted, inter alia, that under the regime in the ward where Mr Harakchiev was being detained, he had to spend about twenty-three hours in his cell and could only leave it during his daily walk and three visits to the toilet. He was not allowed to go to the prison canteen or library. His cell was adequate in size for one prisoner, but too small for two, and did not have a toilet or running water. As result, outside toilet times, Mr Harakchiev had to use a bucket. In winter the cell was too cold owing to inadequate heating, and in summer full of insects as a result of the lack of a window net. The cell was infested with cockroaches, moles and even rats, and there was no indication that the prison administration had disinfested it regularly. When the cell was locked, the only way to call the guards was to bang continuously on the metal door; the guards did not always respond, especially at night. Mr Harakchiev did not have adequate materials with which to clean his cell, and evidence of the provision of cleaning products was inconclusive. It was undisputed that the prison administration had not provided him with work; that had indeed been very difficult in view of the limitations imposed by his prison regime. Social work with all life prisoners had been very restricted, consisting essentially of meetings whenever a problem occurred. Relations between Mr Harakchiev and the prison social worker assigned to deal with him were difficult, and their meetings rare. The prison psychologist had met with Mr Harakchiev several times, but had stopped the meetings because he was displeased that they were taking place in the presence of a guard.

Mr Harakchiev, the Ministry of Justice and the Chief Directorate for the Execution of Sentences all appealed. However, as Mr Harakchiev had failed to pay the requisite court fee, the Supreme Administrative Court refused to examine his appeal (see опр. № 8931 от 21 юни 2011 г. по адм. д. № 5865/2011 г. ВАС, ІІІ о., upheld by опр. № 14723 от 14 ноември 2011 г. по адм. д. № 10633/2011 г., ВАС, петчл. с-в). As a result, the only part of the case that remained pending were the claims concerning the material conditions of Mr Harakchiev’s detention and the failure of the prison administration to provide him with clothing, shoes and bed linen.

In a judgment of 8 January 2013 (реш. № 179 от 8 януари 2013 г. по адм. д. № 5865/2011 г., ВАС, ІІІ о.) the Supreme Administrative Court quashed the lower court’s judgment in the part still under appeal and remitted the case to the lower court. It held that the lower court had failed to address in sufficient depth the conflicting witness statements of inmates on the one hand, and prison staff on the other hand, and analyse them in the light of the voluminous written evidence in the case. It had also failed to subject the expert report that it had obtained in the course of the proceedings to proper scrutiny, and had uncritically accepted it as correct.

In a judgment of 5 April 2013 (реш. № 38 от 5 април 2013 г. по адм. д. № 17/2013 г., АС-Стара Загора) the Stara Zagora Administrative Court found that the claims against the Ministry, which concerned the period before 1 June 2009, following which the 2009 Act had come into force, were inadmissible, but that the claims against the Chief Directorate for the Execution of Sentences, which concerned the period after that date, were admissible and, when analysed by reference to, inter alia, Article 3 of the Convention and this Court’s case-law under that provision, well-founded. It awarded Mr Harakchiev BGN 400 (EUR 204.52). The court found that Mr Harakchiev’s cell did not have ventilation and was damp, and that the cell window was not equipped with an insectproof net. In winter the cell was cold owing to the lack of adequate heating, and in summer too hot. The court went on to note that the cell did not have a toilet or running water, and that access to the communal toilets was very restrictive, with no real possibility to use them outside the three brief daily visits. It also observed that, in spite of the efforts of the prison authorities, the prison was infested with cockroaches and rats; that the authorities were not providing Mr Harakchiev with adequate cleaning products; and that the furniture in the cell was old and worn. It was true that work had been carried out in the cell in 2001 and then in 2005-06, but that had only consisted in repainting it.

Mr Harakchiev and the Chief Directorate for the Execution of Sentences appealed. The proceedings on appeal (адм. д. № 9946/2013 г.) are still pending before the Supreme Administrative Court. A hearing was due to be held on 24 February 2014, but the case was adjourned sine die on account of the failure of Mr Harakchiev’s court-appointed counsel to appear.

As can be seen from the documents in the case file, Mr Tolumov, a driver by profession, had four previous convictions and had spent a year and a half in prison in 1988. In 2000 he was convicted on a charge of armed robbery accompanied by murder and a further charge of murder and sentenced to life imprisonment.

Mr Tolumov was placed in Plovdiv Prison on 29 December 2000. In September 2005, when his life sentence imprisonment apparently became final, he was placed under the “enhanced regime” (see paragraph 115 below). With the entry into force of the Execution of Punishments and PreTrial Detention Act of 2009 on 1 June 2009, that regime was replaced with the “special regime” (see paragraph 118 below) by operation of law. On 11 February 2013 the competent Execution of Punishments Commission decided to change Mr Tolumov’s regime from “special” to “severe”. However, according to Mr Tolumov and an affidavit of another life prisoner detained in the same unit, he continues to be kept locked in his cell and is handcuffed whenever he is taken out of the highsecurity unit.

During his stay in prison, Mr Tolumov has been given four disciplinary punishments, the latest of which was in 2009. One of those punishments, imposed in in 2000 or 2001, was isolation in a disciplinary cell for seven days for his involvement in a scuffle with another prisoner. He was, on the other hand, given rewards for good conduct on a number of occasions.

In Plovdiv Prison Mr Tolumov has spent time in cells nos. 4, 9 and 7 in the prison’s high-security unit, situated on the first floor. He submitted that during unspecified periods of time he had had to share those cells with other inmates. The Government submitted that cell no. 7, in which Mr Tolumov was now being detained, was 7.5 square metres in size, and that Mr Tolumov was alone in it. According to the Government, the cell had a window measuring 1.15 x 0.97 metres. Artificial lighting was provided by a 100-watt incandescent light bulb, which was not on during the day and was turned off at 10 p.m. According to Mr Tolumov, the light bulb was very dim, installed behind a grille, and on all the time.

Mr Tolumov’s cell is furnished with a plank bed, two small cabinets, a table, which is fixed to the floor, and a stool, also fixed to the floor. Mr Tolumov submitted that humidity from the communal bathroom, which was adjacent to the cell, penetrated the walls and the floor and produced mould on one of the walls. An additional factor that increased dampness in the cell was the need to dry clothes in it. The Government submitted that the cell adjoined the part of the bathroom which contained the sinks and did not generate humidity; it was therefore impossible for mould to appear on the cell walls. According to an affidavit drawn up by one of Mr Tolumov’s fellow inmates in August 2013, humidity was indeed permeating the walls of the bathroom, and for that reason in June 2013 the prison authorities had had the gaps between the bathroom tiles filled in, unfortunately to little effect.

Plovdiv Prison does not have a ventilation or air-conditioning system. Mr Tolumov claimed that as a result temperatures in his cell were very high in summer and there was no fresh air. In winter, heating was inadequate. The Government pointed out the cell window could be opened, and that Mr Tolumov had a ventilator. As for heating, the prison had its own heating installation, which was normally turned on between 6 a.m. and 9 p.m., and permanently on colder days.

None of the cells in which Mr Tolumov was detained had a toilet or running water. Mr Tolumov submitted that as a result, apart from the daily visits to the communal toilets, he had to use a plastic bucket to relieve himself. During the period he had had to share his cell with another inmate, he had had to relieve himself in his presence. The lack of running water prevented him from washing his hands or the bucket after relieving himself. The Government submitted that the communal toilet and bathroom in the high-security unit were accessible to Mr Tolumov four times a day, and also whenever he asked the guards.

Mr Tolumov submitted that on any given day he could leave his cell once for his one-hour daily walk and three more times, for thirty minutes, to visit the toilet. Mr Tolumov also submitted that he took his meals in his cell. The Government submitted that all prisoners in the high-security unit could leave their cells once for their daily walk, and in addition four times a day, for forty-five minutes each time, for meals and visits to the toilet. According to an affidavit drawn up by one of Mr Tolumov’s fellow inmates in August 2013, the practice of allowing inmates in the high-security unit to visit the toilet four times a day instead of three had been introduced very recently. According to a document produced by the Government, since the end of January 2013 Mr Tolumov could also visit the prison gymnasium three times a week: between 3 p.m. and 4 p.m. on Mondays, Wednesdays and Saturdays. Mr Tolumov submitted that each time he was taken out of the prison’s high-security unit he was handcuffed. The Government submitted that he was only handcuffed when taken out of the prison for transfers.

According to Mr Tolumov, the food in prison was poorly prepared, of low quality, tasteless to the point of being inedible, and insufficient in quantity. According to the Government, the quantity and the calorie content of the food were fully adequate. Mr Tolumov was being provided with vegetarian meals on account of an illness, as well as fresh fruit and vegetables. In support of their assertion, the Government provided three randomly chosen daily menus. Mr Tolumov disputed the accuracy of those menus and submitted that he had never been given the meals stated in them. According to him, the “fresh fruit and vegetables” consisted of a daily portion of one onion and three carrots.

According to Mr Tolumov, medical care in Plovdiv Prison consisted of routinely giving all inmates aspirin or analgin, and inmates had to purchase all other medicines themselves. According to the Government, the prison’s medical centre was staffed by a general practitioner, a feldsher, a psychiatrist and a dentist. Medical and dental examinations were carried out weekly. Mr Tolumov could also consult outside specialists, and since the end of 2010 he had been examined nine times, by a cardiologist, a surgeon, an ophthalmologist, an endocrinologist and a dermatologist. All medicines required for Mr Tolumov’s treatment had been covered either by the national health insurance fund or the prison’s budget.

The Government asserted, further, that Mr Tolumov could see the social inspector in charge of his unit daily. He could also ask to see a psychologist, the prison governor or deputy governor, the prison legal officer, or another member of the prison staff. He could also socialise with other inmates of the same category during his daily walk and during meal times. He had access to cable television, with fifty channels, to the prison library, and to religious services. For his part, Mr Tolumov submitted that he could not attend religious services, and that, in spite of having expressed his desire to do so, he had not been given any opportunity to work or take part in other meaningful activities. The Government went on to say that at present Mr Tolumov was enrolled in a basic computer literacy class that he attended each Thursday between 3 p.m. and 4 p.m.

The annual psychological assessments of Mr Tolumov for 2008, 2009, 2011 and 2013, submitted by the Government, are quite similar. All of them say, often using the same language, that he has not changed his thinking and attitudes (though the 2013 report says that it was possible to detect a positive trend in that respect), but that he was not making any unjustified claims. He was able to defend his position, but usually avoided getting drawn into conflicts, and treated prison staff with respect. The risk of his hurting himself or others was average. He had expressed the wish to work, but it had not been possible to find work for him. He had willingly taken part in activities.

Mr Tolumov submitted that all letters from his legal representative before the Court were being opened and read by the prison administration. He also submitted that he had to hand over all letters to his legal representative to the prison administration without sealing the envelopes. The monitoring of his correspondence was proved by the letter “P” stamped on the back of each envelope.

In support of his allegations, Mr Tolumov submitted photocopies of the envelopes of three letters that he had sent to his legal representative in January, February and March 2012. They bear illegible postmarks and the word “checked” is stamped on the back of each one.