CASE OF LONČAR v. BOSNIA AND HERZEGOVINA

Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)

Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant was born in 1934 and lives in Sarajevo.

He was an employee of Unioninvest Holdings d.d., a company based in Sarajevo (“the company”). In 1991 the applicant was appointed head of its Frankfurt office.

On 3 December 1993 the applicant was dismissed because of an alleged breach of duty. The notice of dismissal was sent by facsimile from the company’s headquarters in Sarajevo. An appeal against that decision to the competent court in Sarajevo was possible within fifteen days of the date of its delivery. It should be noted, however, that the relevant legislation at the time provided that before submitting a claim to a court an employee had to complain to his or her employer within fifteen days of the date he or she received the impugned decision (see paragraph 28 below).

The applicant attempted to send an appeal through the company’s Frankfurt office by a facsimile, requesting that the appeal be transferred to the competent court in Sarajevo, but it was refused. It would appear that he did not make any further attempts at that time.

After his dismissal the applicant was granted refugee status in Germany.

On 18 December 1993 he initiated proceedings against the company before the Frankfurt Labour Court (Arbeitsgerichts Frankfurt am Main), in accordance with the Agreement on Secondments between the Socialist Federal Republic of Yugoslavia and Germany, seeking reinstatement and payment of salary arrears. By a court offered settlement concluded on 24 August 1994 the company agreed to pay the applicant his outstanding salary for October, November and December 1993.

In the meantime, on 10 August 1994 criminal proceedings were initiated against the applicant before the Sarajevo Municipal Court (“the Municipal Court”) for the alleged breach of duty. It was alleged that the applicant acted in contravention of the Agreement on Secondments by enabling certain persons, who were neither the employees of the company nor the citizens of Bosnia and Herzegovina, to obtain residence and work permits in Germany.

On 16 October 1995 the Frankfurt Labour Court declared that it lacked jurisdiction to deal with the applicant’s request for reinstatement. The applicant appealed against that decision to the Hesse District Court (Hessisches Landesarbeitsgericht und Arbeitsgericht).

On 8 March 1996 the applicant returned to Sarajevo.

After his unsuccessful attempt to obtain the original notice of dismissal of 3 December 1993 (see paragraph 7 above), on 13 June 1996 the applicant initiated proceedings against the company before the Municipal Court seeking reinstatement and payment of outstanding salary from December 1993 onwards. As regards the timeliness of his claim, the applicant submitted that he had been unable to approach the Municipal Court earlier because of the war in Bosnia and Herzegovina and he informed the court about the pending proceedings before the courts in Germany.

On 31 July 1996 the company asked the Hesse District Court to discontinue the proceedings on the applicant’s appeal (see paragraph 12 above), in view of the new proceedings before the Municipal Court. It would appear that those proceedings were discontinued.

On 29 April 1998 the applicant complained to the Human Rights Chamber (a domestic human-rights body set up under Annex 6 to the 1995 General Framework Agreement for Peace in Bosnia and Herzegovina) about the length of the proceedings before the Municipal Court. On 9 March 2001 the Human Rights Chamber found that the applicant’s right to a hearing within a reasonable time had been violated, awarded him approximately 500 euros (EUR) as just satisfaction, and ordered the Federation of Bosnia and Herzegovina (one of the constitutent Entities of Bosnia and Herzegovina) to secure a prompt resolution of his case before the Municipal Court by 31 July 2001 at the latest.

On 14 December 1999 the criminal proceedings against the applicant (see paragraph 11 above) were terminated pursuant to the Amnesty Act 1999.

On 13 November 2001 the Municipal Court allowed the applicantʼs claim and held that he had been unlawfully dismissed. It did not, however, examine the timelines of the applicantʼs claim although the company had raised this issue in their submissions to the court.

On 7 March 2002 the Sarajevo Cantonal Court (“the Cantonal Court”) quashed that judgment and remitted the case for a retrial.

On 7 April 2003 the Municipal Court rejected the applicant’s claim finding that his dismissal had been lawful. In view of such ruling, the court did not find it relevant to separately examine the issue of the timelines of the applicant’s claim. That judgment was upheld by the Cantonal Court on 25 October 2004.

On 9 March 2006 the Supreme Court of the Federation of Bosnia and Herzegovina (“the Supreme Court”) dismissed an appeal by the applicant on points of law. It held that the lower courts had misapplied domestic law in rejecting the applicant’s claim, as it should have been dismissed as out of time: it was submitted outside the statutory time-limit prescribed by the labour legislation in force at the time of his dismissal (fifteen days of the date of delivery of the decision). It was also submitted outside the statutory time-limit prescribed by the new labour legislation (one year of the date of delivery of the decision). As regards the applicant’s argument that he was unable to reach the courts in Sarajevo because of the war, the Supreme Court held that the applicant could have submitted his claim to any other court in Bosnia and Herzegovina under the relevant legislation at the time (see paragraphs 25 and 27 below). In that connection, the court noted that other cities in Bosnia and Herzegovina, with a few exceptions, had not been under a total blockade throughout the war as was Sarajevo. However, since the legal consquences for the applicant were the same, the Supreme Court did not amend the lower courtsʼ judgments („nije mijenajo nižestepene presude“).

On 8 November 2007 the Constitutional Court of Bosnia and Herzegovina upheld that decision. In so doing, it essentially endorsed the reasons given by the Supreme Court and noted further that the applicant could have sent his claim by post or could have authorised someone in Bosnia and Herzegovina to lodge a claim on his behalf.


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova

The applicants in each case were affected by decisions of the Russian Federal Penal Authority («Федеральная служба исполнения наказаний», “the FSIN”) on prisoners’ allocation to post-conviction penal facilities. The applicants’ individual circumstances are detailed below.

The application was lodged on 13 June 2009 by Ms Elvira Vasilyevna Polyakova, who was born in 1976 and lives in Vladivostok, Primorskiy Region. She was represented before the Court by Ms L. Ovchinnikova, a lawyer practising in Vladivostok.

The applicant is the live-in partner of Mr R. The couple originally set up home in Vladivostok in the Primorskiy Region. They have a son born in 2003.

On 22 May 2008 Mr R. was convicted of drug-related crimes and sentenced to ten years’ imprisonment in a strict-regime penal facility. After the conviction became final he was allocated to IK-33 in the Primorskiy Region, close to his family home.

In September 2008 the head of the Primorskiy regional department of the FSIN decided to transfer Mr R. to the Krasnoyarsk Region, some 5,000 kilometres from Vladivostok. It appears that the basis for this decision was a telegram of 18 April 2008 from the deputy head of the FSIN of Russia that read as follows:

“The Primorskiy regional department of the FSIN are allowed, until special notice, to send up to thirty convicts per month from remand prisons to the care of the Krasnoyarskiy regional department of the FSIN pursuant to Article 73 § 2 of the CES.”

On 30 September 2008 the Primorskiy regional department of the FSIN informed Ms Polyakova that her request for Mr R. to be allowed to remain in the facility in the Primorskiy Region had been refused, and advised the applicant as follows:

“... pursuant to Article 73 § 2 of the CES and the instruction by the FSIN of Russia, on 14 September 2008 Mr R. was sent to serve the remainder of his sentence in the care of the Krasnoyarskiy regional department of the FSIN. You will be notified of his arrival at a penal facility.”

The applicant challenged the FSIN’s decision before a court, asking for her partner to be transferred back to the Primorskiy Region so that she and their son could afford to visit him.

On 28 October 2008 the Sovetskiy District Court of Vladivostok examined the applicant’s complaint under Article 258 of the Russian Code of Civil Procedure (“CCP”) and dismissed it. It found, referring to Article 73 § 2 of the Russian Code on the Execution of Sentences (“CES”), that strict-regime facilities in the Primorskiy Region were overcrowded and that transfers of a number of detainees to other facilities had been necessary for their own safety, as there could be conflicts among inmates fighting for a sleeping place. The District Court dismissed the applicant’s argument related to her family life as unsubstantiated, stating that she could apply to the FSIN for permission to visit Mr R. in the Krasnoyarsk Region.

On 30 December 2008 the FSIN of Russia dismissed the applicant’s request for Mr R. to be transferred from the penal facility in the Krasnoyarsk Region to one in the Primorskiy Region, stating that under Article 81 of the CES prisoners should, as a rule, serve the entirety of their sentence in the same penal facility, and that there were no reasons for Mr R.’s transfer.

On 13 January 2009 the Primorskiy Regional Court summarily dismissed the applicant’s appeal.

The applicant and her son visited Mr R. in the penal facility in the Krasnoyarsk Region on three occasions.

The application was lodged on 6 June 2011 by Ms Natalya Anatolyevna Kibalo, born in 1979, Miss Linda Aliyevna Kibalo, born in 2006, and Miss Iman Aliyevna Kibalo, born in 2009. The applicants live in the village of Dubovskaya in the Shelkovskiy District of the Chechen Republic. They were represented before the Court by lawyers of the Memorial Human Rights Centre.

Ms Natalya Kibalo is the wife of Mr Kh. The couple are the parents of Linda and Iman Kibalo.

On 29 May 2007 the Supreme Court of Dagestan found Mr Kh. guilty of kidnapping, illegal possession of arms, and attempted murder of a law-enforcement officer. Mr Kh. was sentenced to twenty years’ imprisonment in a strict-regime penal facility. The judgment was upheld on appeal.

On an unspecified date the FSIN decided to send Mr Kh. to serve his sentence outside the North Caucasus area.

On 7 February 2008 Mr Kh. arrived at UV14/8, a strict-regime penal facility in the town of Blagoveshchensk in the Amur Region, some 8,000 kilometres from Dubovskaya village.

Ms Natalya Kibalo asked the FSIN to transfer Mr Kh. to a penal facility located closer to their home village, arguing that she had been de facto deprived of the opportunity to visit her husband because it would take her about eight days to travel from her home village to Blagoveshchensk by train, and because the cost of the trip was prohibitive for her as an unemployed mother of two young children.

On 25 May 2009 the head of a department of the FSIN dismissed the first applicant’s request, referring to the lack of grounds for transfer listed in Article 81 of the CES. Ms Natalya Kibalo challenged the refusal before a court.

On 21 August 2009 the Zamoskvoretskiy District Court of Moscow refused to examine Ms Natalya Kibalo’s complaint on the merits, stating that she had no standing to bring a complaint on behalf of her husband. The Moscow City Court quashed that ruling on 14 January 2010 on appeal.

On 17 June 2010 the Zamoskvoretskiy District Court of Moscow held a hearing in the absence of both parties. It examined Ms Natalya Kibalo’s complaint under Articles 254-6 and 258 of the CCP and dismissed it. The District Court observed that Mr Kh. had been allocated to the penal facility in Blagoveshchensk under Article 73 § 4 of the CES, and that under Article 81 of the CES, as a rule, convicts should serve their sentence in the same facility throughout. It reasoned that Mr Kh. had breached prison rules on multiple occasions both in the remand prison and in UV14/8, and that he had been “convicted of terrorist offences in the Dagestan Republic, shows no remorse, and does not undertake to commit no unlawful actions in the future”. The judgment read, in particular, as follows:

“The claimant’s argument that neither she nor her children could come to visit [Mr A. Kh.] because he is serving his sentence in the Amur Region cannot be taken into consideration, because the possibility of receiving visits is governed by the norms of the CES and is unrelated to the location of a penal facility.”

On 7 December 2010 the Moscow City Court upheld the judgment of 17 June 2010 on appeal. It reasoned that the Zamoskvoretskiy District Court had not erred in finding that there were no grounds listed in Article 81 of the CES that would warrant Mr Kh.’s transfer to another penal facility, and that “the appeal statement contain[ed] no references to circumstances that would refute the [first-instance] court’s findings and demonstrate that there were grounds for Mr Kh.’s transfer from one facility to another within the meaning of Article 81 of the CES”.

Between 2008 and 2012 Ms Natalya Kibalo visited her husband in Blagoveshchensk on eight occasions. On six of those occasions, between 2008 and 2010, her travel expenses were sponsored. She visited her husband once in 2011 and once in 2012 but could not afford to travel at all in 2013 or 2014. Miss Linda Kibalo accompanied her mother on her trip to visit Mr Kh. once. Miss Iman Kibalo, born during Mr A. Kh.’s detention, has never seen her father.

The application was lodged on 13 July 2013 by Mr Ivan Dhzimsherovich Yeliashvili, who was born in 1979 and lives in Noginsk, the Moscow Region. He is currently serving his sentence in IK-8 in Labytnangi, the Yamalo-Nenetskiy Region. The applicant, who had been granted legal aid, was represented before the Court by Mr V. Shukhardin, a lawyer practising in Moscow.

By a final judgment of 8 September 2009 the Moscow Regional Court convicted the applicant of robbery and sentenced him to eleven years’ imprisonment in a strict-regime facility.

On 15 September 2009 the FSIN decided to send the applicant to serve his sentence in IK-8 in the settlement of Labytnangi in the YamaloNenetskiy Region, located about 3,300 kilometres from Noginsk.

The applicant asked the FSIN to transfer him to a facility closer to Noginsk, arguing that his father, brother, sister and nephew all lived in that town and that they would have no realistic opportunity to visit him in Labytnangi. On 21 November 2011 the FSIN dismissed his request, noting that the applicant had been allocated to the penal facility in Labytnangi under Article 73 § 2 of the CES because of the lack of strict-regime penal facilities in the Moscow Region, and that under Article 81 of the CES prisoners should serve their entire sentence in the same penal facility.

The applicant challenged the FSIN’s refusal before a court. On 11 April 2012 the FSIN submitted their objections to the Zamoskvoretskiy District Court of Moscow, which read, in particular, as follows:

“The claimant’s arguments that he is unable to receive visits from his relatives cannot be taken into account, because the possibility of receiving visits from next of kin and relatives is governed by the norms of the Russian Code on the Execution of Sentences and is unrelated to the location of any penal facility.”

On 5 June 2012 the Zamoskvoretskiy District Court of Moscow examined the applicant’s complaint under Articles 254-5 and 258 of the CCP, and dismissed it with reference to Articles 73 and 81 of the CES. The judgment read, in so far as relevant, as follows:

“The claimant’s arguments that it is difficult to receive visits from relatives owing to the remoteness of the [place of] the sentence is being served cannot be taken into account by the court, because the possibility of receiving visits is governed by the norms of the Russian CES and is unrelated to the location of any penal facility.”

On 14 January 2013 the Moscow City Court upheld the first-instance judgment.

To date, the applicant’s relatives have not been able to afford to visit him in Labytnangi.

The application was lodged on 6 November 2014 by Mr Vladimir Aleksandrovich Palilov, who was born in 1968 and lives in the Yaroslavl Region. He is currently serving his sentence in IK-18 in the settlement of Kharp, the Yamalo-Nenetskiy Region. The applicant, who had been granted legal aid. was represented before the Court by Mr E. Markov, a lawyer practising in Strasbourg.

On 11 August 2006 the Yaroslavl Regional Court convicted the applicant of murder and sentenced him to life imprisonment. The conviction was upheld on appeal and became final.

On 19 February 2007 the applicant was sent to serve his sentence in a special-regime facility for those sentenced to life imprisonment in the village of Kharp in the Yamalo-Nenetskiy Region, 2,000 kilometres from the Yaroslavl Region.

On 9 January 2013 the applicant asked the FSIN to transfer him to any detention facility located closer to his elderly mother’s and sister’s place of residence.

On 14 February 2013 the FSIN dismissed the request, stating that the applicant had been sent to serve his sentence in a remote penal facility under Article 73 § 4 of the CES, and noting that under Article 81 of the CES a prisoner must serve their entire sentence in the same facility. The applicant challenged the decision before a court. In his statement of claims he requested to be present at court hearings.

On 19 July 2013 the Zamoskvoretskiy District Court of Moscow held a hearing in the applicant’s absence, which was referred to in the judgment as follows: “[t]he applicant was notified of the date of the hearing. He has failed to appear at the court hearing owing to the fact that he is serving a sentence”. The representative of the FSIN was also absent. The District Court examined the complaint pursuant to Articles 254-5 and 258 of the CCP and dismissed it, noting that there were “no grounds listed in Article 81 § 2 of the CES that would preclude Mr Palilov from continuing to serve his sentence in the penal facility in the Yamalo-Nenetskiy Region”. The applicant’s argument related to the difficulties of maintaining his family ties was rejected as follows:

“The claimant’s arguments that he cannot receive visits from his relatives does not give grounds for allowing the claims, because the possibility of receiving visits from family members and relatives, receiving correspondence, or using the telephone, are all governed by the norms of the Code on Execution of Sentences and are unrelated to the location of any penal facility.”

The applicant appealed against the judgment and requested that an appeal hearing be held in his presence.

On 4 June 2014 the Moscow City Court held a hearing in the applicant’s absence, which was explained as follows: “under Article 167 of the Code of Civil Procedure the appellate collegium deems it possible to examine the case in the absence of the parties to the proceedings; they have been notified of the date and place of the court hearing”. The appellate court upheld the Zamoskvoretskiy District Court’s judgment. Referring to Article 73 § 4 of the CES, it stated that the rule on serving a sentence in a particular region close to a detainee’s permanent residence was inapplicable to the applicant given the nature of the crime of which he had been convicted. The City Court also found that the Zamoskvoretskiy District Court had correctly interpreted Article 81 § 2 of the CES, reasoning as follows:

“... there were no medical recommendations that would contain contraindications for Mr Palilov’s serving his sentence in the penal facility in the Yamalo-Nenetskiy Region. Other exceptional circumstances that the law connects with the FSIN’s obligation to grant a claimant’s request to be transferred to another penal facility were not referred to

The argument that Mr Palilov is being deprived of the opportunity to maintain contact with his relatives because of the remoteness of the penal facility cannot serve, in the context of Article 73 § 4 of the CES, as grounds for declaring the actions of the penal authority’s officials unlawful.”

The applicant’s mother and sister could not afford to visit him in Kharp. The mother died in 2013.


No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković

The applicants’ particulars appear in the appendix to this judgment.

During 1991 and 1992 Serbian paramilitary forces gained control of about a third of the territory of Croatia and proclaimed the “Serbian Autonomous Region of Krajina” (Srpska autonomna oblast Krajina, hereinafter “Krajina”). At the beginning of August 1995 the Croatian authorities announced their intention to take military action with the aim of regaining control over Krajina. The operation was codenamed “Storm” (Oluja) and took place from 4 to 7 August 1995. Before the military action, the vast majority of the population of Krajina fled Croatia. Most of them went to Bosnia and Herzegovina but some also went to Serbia. Some returned to Croatia after the war. The number of people who fled is estimated at between 100,000 and 150,000.

On 5 November 1997 Croatia ratified the Convention.

The applicants and P.M. (born in 1942), who was the husband of one of the applicants and the father of the others, lived in Razbojište, near the larger village of Krupa, on the territory of Krajina. During the night of 4 to 5 August 1995 all the family, save for P.M., fled Croatia. P.M. was killed during Operation Storm on 5 August 1995.

According to the applicants, P.M. was killed in the courtyard of his house in Razbojište, although he was an unarmed civilian.

According to the Government, he was armed and was killed in an exchange of fire with the Croatian Army in the broader area of Krupa. The villages of Razbojište, Krupa and Žegar and the settlement of Milići are located near each other.

On 11 October 1995 the police found the remains of an unidentified person in Razbojište and they were buried in Gračac Cemetery under the number 434.

On June 2002 exhumations were carried out at Gračac Cemetery. The process was conducted under the auspices of the International Criminal Tribunal for the former Yugoslavia (Međunarodni kazneni sud za bivšu Jugoslaviju) and the County State Attorney’s Office in Zadar. Body no. 434 was also dug up and an identity card was found in the name of P.M. The remains were examined at the Institute for Forensic Medicine in Zagreb (Zavod za sudsku medicinu i kriminalistiku) and on 15 October 2002 an autopsy report was issued which concluded that the cause of death had been three wounds from shelling. On 24 November 2003 the third applicant identified the remains as those of her father, P.M.

The police opened an investigation into the circumstances of P.M.’s death after the applicants on 5 September 2005 brought a claim for damages with the State Attorney’s Office in connection with his killing (see paragraph 20 below).

On 21 October 2005 the police interviewed Ž.M., who said that P.M. had joined a village guard unit during the war. Ž.M. did not know who might have killed P.M.

On 11 August 2015 the Zadar police received an anonymous letter stating that on 10 August 1995 two men, V.G. and M.B., had killed twelve elderly people in the village of Žegar in the “Milića” cave, near Krupa.

On 25 August 2015 the police interviewed O.M. and S.M., residents of Žegar.

O.M. said that he had never heard of someone being killed in the “Milića” cave even though he had lived all his life in the area. He also said that during Operation Storm five people from the settlement called Milići, part of the village of Žegar, had been killed, including P.M. They had all been members of the paramilitary forces and had been armed. He had heard that they all had perished in rocky areas of the village but did not know the cause and manner of their deaths.

S.M. had no information about the possible perpetrators of the alleged crime in question.

On 26 August 2015 the Zadar police informed the Zadar County State Attorney’s Office that five persons had been killed in the settlement of Milići during Operation Storm, one of whom was P.M., who had died on 5 August 1995.

On 14 September 2015 the police interviewed V.G., a captain in the Croatian Army during Operation Storm, who had been in command of the Zadar Military Police Third Company of the 72nd Battalion, who said that he had never been to Žegar and had never heard of anyone being killed there. He had been in Benkovac (a town situated some forty kilometres from Žegar) throughout Operation Storm. He had also said that he could state with certainty that none of the members of his unit had committed any crimes, otherwise he would have known about it.

On 16 September 2015 the police interviewed M.B., a Croatian soldier and member of the 72nd Battalion during Operation Storm. He also said that he had never been to Žegar and had never heard of anyone being killed there. He had been near Obrovac (a town situated some twenty kilometres from Žegar) during the military operation.

On 1 October 2015 the Zadar County State Attorney’s Office closed the investigation.

On 22 January 2016 the Zadar County State Attorney’s Office informed its counterpart in Split County that it had not been able to confirm the allegations made in the anonymous letter of 11 August 2015 as there was no indication that twelve elderly people had been killed in the “Milića” cave. However, five members of the Serbian paramilitary forces had been killed during Operation Storm, including P.M. Enquiries had therefore been stopped since the information given in the anonymous letter had proved to be unreliable.

On 5 September 2005 the applicants submitted a claim for damages with the State Attorney’s Office in connection with the killing of P.M. The request was refused.

On 12 April 2006 the applicants brought a civil action against the State in the Zagreb Municipal Court, seeking compensation in connection with P.M.’s death.

The claim was dismissed on 30 March 2010 on the grounds that it had not been established how P.M. had been killed and that the applicants had not proved that his killing had amounted to a terrorist act for which the State was liable. It had also not been established that he had been killed by members of the Croatian army or police in areas where there had been no operations related to the war. In addition, the claim had become statutebarred. During the proceedings information was obtained from the archives of the Ministry of Defence showing that the Croatian army had entered the area in question on 6 August 1995, whereas P.M. had been killed on 5 August 1995. The first-instance court also accepted the statement of the witness O.M., who said that the village of Žegar had been shelled on 5 August 1995.

The first-instance judgment was upheld by the Zagreb County Court on 21 September 2010.

On 10 June 2014 the Supreme Court upheld the lower courts’ judgments in respect of the ruling that the applicants’ claim had become statute-barred.

A constitutional complaint lodged by the applicant was dismissed on 25 February 2015.


Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-e - Persons of unsound mind);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant was born in 1955 and lives in Kryvyy Rig.

In 2005-2006 the applicant created a local non-governmental organisation, as well as several newspapers.

On 16 November 2006 the Kryvyy Rig Transport Prosecutor’s Office instituted criminal proceedings against him on suspicion of interfering with gas pipeline repairs in July 2006.

On 17 May 2007 the Kryvyy Rig City Prosecutor’s Office opened another criminal case in respect of the applicant, on suspicion of extortion from a local politician, Ms B. As noted in the ruling, on 4 January 2006 the applicant had sent a letter to Ms B., demanding 20,000 Ukrainian hryvnias (the equivalent of about 3,000 euros) under the threat of dissemination of some discrediting information about her. He had also threatened her with physical violence in the presence of several witnesses.

The two aforementioned criminal cases were joined.

On 4 June 2007 the applicant was detained.

On 6 June 2007 the Dzerzhynskyy District Court of Kryvyy Rig (“the Dzerzhynskyy Court”) ordered that he remain in pre-trial detention. It referred to complaints by the victim, as well as her representative, about numerous telephone calls from the applicant during which he had made threats of violence. The court also noted that the applicant had refused to comply with the investigator’s summonses and had stated that he was considering absconding.

On 11 June 2007 an outpatient forensic psychiatric expert examination of the applicant was carried out in the Kryvyy Rig Psychoneurological Dispensary. The expert discerned indications of a paranoid personality disorder with a tendency towards “forming fixed ideas”. An inpatient examination was recommended for a more precise diagnosis.

On 14 June 2007 the Dzerzhynskyy Court ordered an inpatient forensic psychiatric examination of the applicant at Dnipropetrovsk Psychoneurological Centre with a view to establishing his ability to stand trial in the extortion case. The court referred to the expert’s recommendation of 11 June 2007. It also noted that the applicant had been showing “inadequate behaviour”. Furthermore, the case file contained copies of threats and clearly slanderous statements he had made to the victim and certain third parties.

On 15 June 2007 the Dnipropetrovsk Regional Court of Appeal (“the Court of Appeal”) dismissed the applicant’s appeal against the detention order of 6 June 2007.

On 20 June 2007 another case was opened against him on suspicion of extortion. This time the applicant was suspected of having threatened Mr S. and his family and of having extorted 3,000 US dollars from Mr S. in May 2007.

On 27 June 2007 the applicant was taken to the Dnipropetrovsk Regional Psychiatric Hospital for an inpatient forensic psychiatric examination in the framework of the criminal case regarding the charge of extortion from Ms B.

On 25 July 2007 the investigator in charge applied to the Dzerzhynskyy Court for an extension of the applicant’s pre-trial detention (which was to expire on 4 August 2007) till 17 August 2007, because more time was required to complete the investigation. In particular, the following investigative measures were still to be carried out: completion of the applicant’s forensic psychiatric examination, a confrontation between the applicant and Mr S., and the questioning of a number of witnesses.

On the same date the Dzerzhynskyy Court granted the aforementioned application and endorsed its reasoning.

On 26 July 2007 the inpatient forensic psychiatric examination of the applicant (see paragraph 16 above) was completed. The experts examined, in particular, the applicant’s personal history and the case-file materials, including the wording of his alleged threats to Ms B. They also carried out a psychological and psychiatric evaluation. The commission worded its conclusions as follows:

“Mr Rudenko has never suffered, and is not suffering now, from any chronic psychiatric illness. He has showed in the past, and presently shows, a paranoid personality disorder.

This conclusion is confirmed by his medical history, the materials of the criminal case file, and the results of the present clinical psychiatric examination which discloses that throughout his life the applicant has manifested such personality traits as egocentrism, extremely high self-esteem, tendency to make categorical and subjective judgments, susceptibility and extreme sensitivity to failure and situations infringing on his personal interests, a tendency towards a distorted perception of reality and the attitudes of those around him, militant and persistent assertion of his rightness and importance, subjectivism, rigidity of opinions and emotions, a tendency to be tendentious and contrived in forming judgments, and tenacity in the defence and implementation of his ideas.

The aforementioned personality characteristics are not manifested to a large degree, are not accompanied by serious abnormalities of memory, thinking, critical abilities or psychotic symptoms and would not have undermined his ability to be aware of and to control his actions at the time of the offence he has been charged with. [...]

The present psychiatric condition of [the applicant] is such that he is aware of and can control his actions (or inactivity).

He does not require involuntary medical treatment.”

On 9 August 2007 the investigator declared the pre-trial investigation complete and provided the applicant with access to the case file.

On 14 August 2007 the case was referred to the court for trial.

On 9 September 2007 the applicant requested the Dzerzhynskyy Court to replace his detention with release on bail in the amount of 20,000 Ukrainian hryvnias (at the time, equivalent to about 2,900 euros). He submitted that he had no criminal record, was well integrated socially and that remanding him in custody had been an unjustified preventive measure.

On 17 September 2007 the court held a preparatory hearing for the trial. It rejected the aforementioned request and decided to keep the preventive measure in respect of the applicant unchanged. The court noted that the considerations advanced by him had already been duly examined prior to his remand in custody. Furthermore, given the fact that the victim, Ms B., was a well-known local politician, the court decided to conduct the hearings in camera.

On 25 December 2008 the Dzerzhynskyy Court ordered another in-patient forensic psychiatric examination of the applicant, with a view to establishing his ability to stand trial in the criminal cases regarding the charges of extortion from Mr S. and the interference with the gas pipeline repairs (see paragraphs 7 and 15 above).

From 30 January to 26 February 2009 the applicant underwent an examination in the Dnipropetrovsk Regional Psychiatric Hospital.

On 26 February 2009 a commission of six experts (with the involvement of the three experts who had prepared the previous report of 26 July 2007) delivered its report on the basis of a psychological and psychiatric evaluation of the applicant and the case-file materials. The experts also heard several witnesses. In particular, they questioned a person who had worked with the applicant in the 1990s and who described him as an intelligent but impulsive person who had some strange ideas and liked to be the centre of attention. The applicant’s former wife gave a similar description, having also noted that he was a kind person despite his difficult character. The applicant’s current wife refused to be questioned. A general practitioner who had treated the applicant for some unspecified condition in 2007 submitted that he remembered the applicant for his emotionally-expressed nationalist ideas. A lawyer who had often encountered the applicant in court when acting as a representative described him as a bold and provocative person with a tendency to insult others. A circuit police officer, who had inspected the gas pipeline repairs site, submitted that he remembered the applicant on account of certain “hysterical outbursts” and that he had had the impression that the applicant had some mental issues. The general conclusions of the commission were worded as follows:

“At the time of the events [...] Mr Rudenko was suffering, and is suffering presently, from a chronic psychiatric illness in the form of a paranoid personality disorder with delusional inclusions (“параноидное расстройство личности с бредовыми включениями”).

This conclusion is confirmed by the anamnestic data, the materials of the criminal case file, the results of the present clinical psychiatric and experimental-psychological evaluation, which has disclosed that throughout his life the applicant has manifested such personality characteristics as egocentrism, rigidity in his attitudes, extremely high self-esteem, arrogance and extreme self-confidence, irrational feelings of injustice, a tendency to make categorical and subjective judgments, susceptibility and extreme sensitivity to failure and situations infringing on his personal interests, a tendency towards a distorted perception of reality and the attitudes of those around him, militant and persistent assertion of his rightness and importance, rigidity of opinions and emotions, bluntness, a tendency to be tendentious and contrived in forming judgments, tenacity in the defence and implementation of his ideas coupled with a tendency towards inertia and philosophising, and, as a result of all the aforementioned and against the background of what he perceives as the difficult and unfavourable development of the criminal investigation and trial, he has formed some fixed and delusional ideas about being persecuted.

The aforementioned personality characteristics of [the applicant] manifest themselves to such a high degree that they can be considered to have undermined his ability to be aware of and to control his actions at the time of the offences he has been charged with. [...]

The present psychiatric condition of [the applicant] does not enable him to be aware of his actions (or inactivity) or to control them.

He requires involuntary medical treatment by way of admission to a psychiatric hospital with ordinary supervision.

As to the [similar] questions regarding [the charge of extortion from Ms B.], they were already resolved in the report of 26 July 2007.”

On 3 June 2009 the Dzerzhynskyy Court found the applicant guilty of extortion from Ms B. As to the charge of extortion from Mr S., the court held that there was insufficient evidence of the applicant’s guilt. It also established that the applicant had impeded the gas pipeline repairs. The court noted that the applicant could not be held accountable for the criminal offences in question and required involuntary medical treatment in a mental facility. It stated, in particular:

“It has been established that, at the time the offences were committed, Mr Rudenko behaved in a bold manner and without respect for the victims and others involved, that he made threats to the health and lives of the victims, and that he took deliberate steps to impede the gas pipeline repairs, thus endangering the health and lives of the public. Although Mr Rudenko has not made a direct attempt on anybody’s life, his present mental condition warrants his involuntary admission to a psychiatric hospital, because he is a dangerous person ...”

On 23 December 2009 the Court of Appeal quashed the decision of the first-instance court of 3 June 2009 as it had been delivered in the applicant’s absence. It stated that his presence had been obligatory unless he had expressly refused to attend or had been prevented from attending by the nature of his illness. The appellate court also noted that although the Dzerzhynskyy Court had found that the applicant’s guilt had not been proven in respect of the charge of extortion from Mr S., no decision had been taken as regards the termination of that part of the proceedings. The case was therefore remitted to the first-instance court for fresh examination. The appellate court also decided to keep the preventive measure in respect of the applicant (detention) unchanged, without explanation.

On 29 June 2010 the Dzerzhynskyy Court allowed the applicant’s waiver of the services of several lawyers who had been representing him. Instead, it appointed a lawyer from the local bar association to represent his interests in the proceedings.

On 11 October 2010 the Dzerzhynskyy Court, at a hearing attended by the applicant and his appointed lawyer, ordered another forensic psychiatric examination of the applicant, with a view to answering the following questions: (1) whether the applicant was suffering from any mental illnesses at the time; (2) whether he was aware of and able to control his actions; and (3) whether the nature of his illness could be regarded as an impediment to his participation in court hearings. The applicant did not object in principle to such an examination, as long as it was carried out by an independent expert.

From 19 November to 16 December 2010 an examination was carried out at the Dnipropetrovsk Regional Psychiatric Hospital. According to the ensuing report, the applicant was suffering, at the time of the examination, from a “chronic paranoid personality disorder with delusional inclusions”. His psychiatric condition was deemed to prevent him from participating effectively in court hearings. As noted in the part of the report entitled “Psychological examination”, the applicant behaved in a free and friendly manner, demonstrating an advanced intellect and good memory and analytical skills, but also demonstrating a certain superiority and rigidity in his opinions. The overall findings of the report were practically identical to those of 26 February 2009.

On 5 April 2011 the prosecutor dropped the charges against the applicant as regards the interference with the gas pipeline repairs and the extortion from Mr S.

On 8 April 2011 the Dzerzhynskyy Court discontinued the proceedings against the applicant in so far as the aforementioned charges were concerned.

On the same date the court, following a hearing at which the lawyer earlier appointed for the applicant, but not the applicant himself, had been present, found the applicant guilty of extortion from Ms B. Relying on the medical reports concerning the applicant’s mental health, the Dzerzhynskyy Court held that, although the applicant had been aware of his actions when he had committed the offence in question, his mental health had subsequently deteriorated to an extent warranting involuntary medical treatment. The court therefore ordered that the applicant be admitted to a psychiatric hospital for treatment under ordinary supervision. The proceedings were stayed until the applicant’s recovery.

The applicant’s son (who had joined the proceedings as his representative) appealed. He complained, in particular, that the applicant had wrongly been denied his right to participate in the hearing. He also complained that the applicant’s right to be presumed to be of sound mind had been violated. He noted in this regard that the experts had reached opposite conclusions about the applicant’s mental health, without any explanation for such a change in their position. Furthermore, the applicant’s son submitted that neither the applicant nor his family had agreed to the appointed lawyer representing the applicant and that the lawyer had been acting contrary to the applicant’s interests.

On 16 August 2011 the Court of Appeal upheld the decision on the involuntary medical treatment of the applicant. It noted that, as the medical experts had found, the nature of his illness had been an impediment to his participation in the court hearings. The appellate court also held that the application of the chosen measures in respect of the applicant was justified by the fact that he had committed a “socially dangerous” crime and that he was suffering from a mental illness.

On 14 September 2011 the applicant was transferred from the SIZO to the Geykivska Psychoneurological Hospital in the Dnipropetrovsk region (“the Geykivska Hospital”).

On 4 October 2011 the applicant was examined by a panel of three doctors from the Geykivska hospital who concluded that his condition had stabilised and that he was not in need of any involuntary inpatient treatment. More specifically, the doctors observed that despite his chronic paranoid personality disorder with “delusional inclusions”, the applicant had been demonstrating orderly behaviour and a stable mood, with no aggressive tendencies. He regretted his earlier behaviour and had submitted that he understood that it had been wrong. The panel therefore sought the lifting of the involuntary medical treatment order imposed by the court, and an order for outpatient psychiatric treatment to replace it.

On 14 October 2011 the Kryvyy Rig Court allowed the application of the Geykivska Hospital specialists.

On 19 October 2011 the same panel of the Geykivska Hospital specialists issued another report, in which they noted a drastic deterioration in the applicant’s mood and behaviour: he had become irritated, angry and aggressive and had conflicts with other patients. Accordingly, the doctors retracted their earlier conclusion of 4 October 2011 as premature and asked the court to order that the applicant continue to be treated on an involuntary basis.

On 29 November 2011 the Court of Appeal quashed the decision of the Kryvyy Rig Court of 14 October 2011, with reference to the medical report of 19 October 2011.

On 20 December 2011 the Kryvyy Rig Court decided that the involuntary medical treatment of the applicant ordered on 8 April 2011 should be continued.

On 22 March 2012 the Higher Specialised Court for Civil and Criminal Matters rejected the applicant’s cassation appeal (submitted via his son) against the lower courts’ decisions of 8 April and 16 August 2011.

On 26 April 2012 the applicant was examined again by a panel of three specialists from the Geykivska Hospital (one member had been replaced). They noted that he was well oriented and gave adequate replies to questions, was brief and monotonic, expressed some delusional ideas about being persecuted by criminals, and remained self-confident and categorical in his judgments. As a result, they considered that the applicant’s involuntary medical treatment should be continued.

On 11 May 2012 the Kryvyy Rig Court ruled accordingly. Although the applicant, who was present at the court hearing, objected to that decision and submitted that he was in perfect health, the court considered, on the basis of the aforementioned medical report, that he was not able to critically assess his condition.

On 14 September 2012 the panel of doctors from Geykivska Hospital (in the same composition as on 26 April 2012) examined the applicant again. Their conclusions were similar to those set out in the report of 4 October 2011 (see paragraph 38 above).

On 8 October 2012 the Kryvyy Rig Court granted the specialists’ request and lifted the order for involuntary medical treatment in respect of the applicant.

On 26 October 2012 the applicant was discharged from the hospital. There is no information in the case file on the resumption of or any developments in the proceedings that had been stayed earlier (see paragraph 34 above).

On 25 April 2013 he was examined by the Kharkiv Regional Bureau of Forensic Medical Examinations at his own request.

On 20 May 2013 the Bureau issued its report. It noted that the only condition the applicant had been diagnosed with in the course of his previous forensic psychiatric examinations was a paranoid personality disorder. Such a diagnosis could not be regarded as fully grounded as it did not comply with the diagnostics criteria of the international statistical classification of illnesses. In particular, while that diagnosis implied a lack of social integration, the applicant had always been well adapted socially and had run a successful business. The wording “delusional inclusions” also raised questions as to its clinical accuracy. The applicant’s excessive personal involvement in various situations, as well as the fact that he had been overly emotional and made peculiar statements, did not imply delusion.

Generally, it was concluded that there was nothing in the case file to show that the applicant had suffered from any serious psychiatric disorder rendering him unaccountable for his actions. Even if, presumably, the applicant’s behaviour in the stressful situation of his criminal prosecution and detention had disclosed some peculiarities, the report concluded that, given his sufficient social adaptation prior to the criminal proceedings and the absence of a record of any psychiatric issues in the past, the applicant had not suffered from a psychiatric disorder between January 2006 and July 2007 and between August 2007 and November 2012 which would have warranted his involuntary treatment and prevented him from participating in court hearings.

Furthermore, the Bureau expert criticised the report of 19 October 2011 as having reversed the earlier conclusion of 4 October 2011 that the applicant had not been in need of involuntary psychiatric treatment without any persuasive grounds. This reversal had been made even though the description of the applicant’s psychiatric condition had remained the same.

On 13 June 2013, following a request by the applicant’s lawyer, an independent forensic psychiatric expert with thirteen years of work experience issued a report regarding the applicant’s examinations of 26 July 2007, 26 February 2009 and 16 December 2010 (see paragraphs 19, 26 and 31 above). The expert considered only the first-mentioned report to be scientifically grounded. He criticised the other two for their incompliance with the rules of diagnostics and the absence of any explanation as to why the same behaviour of the applicant, which had earlier been regarded as normal, had later been considered as disclosing a psychiatric disorder. The expert also concluded that the applicant’s right to attend court hearings in person had been restricted without any valid medical reason.


András Sajó;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicant, Mr Tahir Canan, is a Turkish national, who was born in 1953 and is currently serving a prison sentence in Bandırma. He is represented before the Court by Ms Y. İmrek, a lawyer practising in Istanbul.

The applicant was serving a prison sentence at the Adana F-Type High Security Closed Penitentiary Institution for the offences of “homicide and purchase or possession of unlicensed firearms and bullets”.

On 12 August 2009, the applicant was transferred from Adana Prison, where he had been held until that date, to Bandırma M-Type Closed Penitentiary Institution, approximately 1,000 km away from the former. It was planned that the bus carrying a total of twelve detainees and convicts who were being transferred from Adana province to various other provinces would stop off at the Ankara Sincan Closed Penitentiary Institution.

Roughly halfway through the trip, the bus carrying the prisoners stopped off at the Gendarmerie Command in Ankara to break the journey and the applicant asked to be taken to the toilet.

The detainees and the convicts started to go to the toilets in groups of three after the necessary security measures were taken under the supervision of the deputy patrol commander. The applicant asked the gendarmerie officers who were ensuring security to remove his handcuffs which were positioned in front of his body (see paragraph 29 below), while he was relieving himself. However, the gendarmerie lieutenant Ü.G., in charge of the group, refused that request.

On 17 August 2009 the applicant filed a complaint with the Bandırma public prosecutor’s office, submitting that he had been subjected to degrading treatment by Ü.G. because he had had to use the toilet wearing handcuffs, despite his repeated requests to have them unlocked. He claimed that such treatment could not have been justified by security concerns, as he had been using the Gendarmerie Command’s toilet facilities, which had been guarded by gendarmerie officers.

On 5 February 2010 the Bandırma public prosecutor took a statement from the applicant. Repeating his initial submissions, the applicant maintained that the other inmates on the bus had witnessed the degrading treatment, as they had also been required to use the toilets under the same conditions.

On 6 September 2010 a colonel from the Adana Gendarmerie Command informed the applicant that lieutenant Ü.G. had made a statement before the Adana public prosecutor and that no other disciplinary or administrative measure had been taken against him, as he had acted in compliance with the relevant orders.

Subsequently, on 27 October 2010 the Adana Gendarmerie Command sent a second letter to the applicant, indicating that security measures during the transfer of prisoners were taken having regard to the security requirements at a given time. The letter added that the lieutenant in charge of the transferred group was the sole person authorised to determine whether the situation required the application of a security measure, namely the use of handcuffs in the applicant’s case.

On 8 December 2010, after having examined the case file and an investigation report from the Gendarmerie Command, the Governor of Adana decided not to permit the instigation of a criminal investigation against Ü.G., pursuant to Law no. 4483 (Law on the Prosecution of Civil Servants and Public Officials). The Governor referred to section 456 of the Directive on the Transfer of Prisoners (Ceza İnfaz Kurumu ve Tututkevlerinin Dış Koruması ile Sevk ve Nakil Hizmetleri Yönergesi), which stated that the gendarmerie had the authority to handcuff prisoners in order to prevent their escape. He further relied on section 27 of the Gendarmerie Guidelines (Jandarma Talimnamesi), which stated that prisoners would be allowed to go to the toilet if in the company of gendarmerie officers and that their handcuffs must not be removed during that time. The Governor found accordingly that lieutenant Ü.G. had acted in compliance with the relevant legislation in not permitting the applicant to go to the toilet without handcuffs.

Following the Governor’s decision, on 4 April 2011 the Ankara public prosecutor decided to discontinue the case.

The applicant objected to the public prosecutor’s decision. On 30 September 2011 the Sincan Assize Court rejected that objection.

Regulations in the domestic law authorising the use of handcuffs and devices restraining bodily movements during the transfer of detainees are as follows.

Article 50 of Law no. 5275 on the Execution of Penalties and Security Measures, which is entitled “Use of Constraining Devices”, provides as follows: “Handcuffs and other body restraints can be used with a view to preventing escape during referral or transfer, on the condition that they are removed when the convict is brought before the competent authority.”

Article 155 of the Regulation (2006/10218) on the Administration of Penitentiary Institutions and the Execution of Penalties and Security Measures, which is entitled “Use of Constraining Devices”, provides as follows: “All the necessary measures that would not cause any harm to health shall be taken to prevent escape during referral or transfer, on the condition that they are removed when the convict, except for child convicts, is brought before the competent authority.”

The relevant part of Article 76 of the Regulation on the Duties and Powers of the Gendarmerie, which is entitled “Measures to Be Taken During Referral and Transfer”, provides that “All the necessary measures that would not cause any harm to health shall be taken to prevent escape of the detainees and the convicts during referral and transfer...”.

The relevant provisions under the heading of “General Rules to be respected by the Referring Penitentiary Institution Unit, City Centre or District Gendarmerie Commands During Referral and Transfer” of paragraph 4/B of the Directive on the Transfer of Prisoners read as follows: “All the necessary measures that would not cause any harm to health, such as using handcuffs, linking arms with those who are transferred and encircling them with a sufficient number of personnel, shall be taken to prevent escape of detainees and convicts during referral and transfer. The security needs shall be the only decisive factor in designation of the level of the security measures to be taken. The commander in charge of the transfer shall be the sole person authorised to make a decision for the use of handcuffs by assessing the security need.”

“The patrol commander shall have the keys to the handcuffs of detainees and convicts. The handcuffs shall not be unlocked on any account, except for cases such as deaths, injuries, heart attacks and serious diseases.

In cases where the handcuffs are unlocked, the security measures shall be improved and more attention shall be paid.

During the transfer, the convict will be provided with food and her/his biological needs shall be met.”

The relevant provisions under the heading of “Use of Handcuffs” of the Regulation on the Duties and Powers of the Gendarmerie: Directive no. 27-3 on Patrols, pages 8-5, insofar as relevant, read: “Handcuffs shall be used with a view to preventing escape of the detainees and the convicts during referral or transfer, or outside the penitentiary institutions, and to prevent them from posing a danger to the lives and physical integrity of themselves or others”.

The relevant provisions of the Gendarmerie Guidelines provide as follows.

Paragraph (b) of the Article entitled “Measures to be taken during referrals and transfers”: “The prisoners and their belongings shall be searched thoroughly before they get on the bus; they are dispossessed of all instruments that could be used for attacking or escaping. The patrol commander shall have the keys to the handcuffs of the prisoners. The handcuffs shall not be unlocked under any circumstances except for the mandatory conditions.”

In the same Gendarmerie Guidelines, the Article entitled “Code of conduct to be followed for contingencies during the transfer” reads: “All the necessary measures that would not cause any harm to health shall be taken to prevent escape of the detainees and the convicts during referral or transfer.”

“The prisoners shall be searched before going on a journey. They shall be allowed to use the toilets and their similar needs shall be taken care of.

When they go into the toilet, the door shall be kept open and the handcuffs shall remain locked.”


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)

The applicant was born in 1964 and lives in Ljubljana.

The applicant served his prison sentence in the closed section of Ljubljana prison in the period between 30 March 2009 and 23 December 2009. From 30 March 2009 to 14 April 2009 he was held in cell 5 (third floor), which measured 18 square metres (including a separate 1.72 square metre sanitary facility) and contained 5 sleeping places. From 14 April 2009 to 11 June 2009 he was held in cell 7 (third floor), which measured 16.8 square metres (including a separate 1.72 square metre sanitary facility) and contained 5 sleeping places. From 11 June 2009 to 2 July 2009 and from 30 July 2009 to 19 December 2009 he was held in cell 124 (second floor), which measured 8.8 square metres (including a separate 1.3 square metre sanitary facility) and contained two sleeping places. From 2 July 2009 to 30 July 2009 he was held in cell 120 (second floor), which measured 18 square metres (including a separate 1.72 square metre sanitary facility) and contained 6 sleeping places. From 19 December 2009 to 23 December 2009 he was held in cell 98 (first floor), which measured 8.8 square metres (including a separate 1.3 square metre sanitary facility) and contained two sleeping places. The Government submitted that in cells 5 and 7 the numbers varied between four and five, in cell 120 the numbers varied between five and six and in cells 98 and 124 the applicant was held with one other prisoner.

As regards the general characteristics of the cells, material conditions inside the cells, sanitary conditions and health care, see the judgment in Štrucl and Others v. Slovenia, nos. 5903/10, 6003/10 and 6544/10, §§ 21 to 32, 20 October 2011.

As to the out-of-cell time in the closed section, the Court found in the aforementioned judgment that sentenced prisoners in the closed section of the prison were locked up in their cells and were only able to leave them if they applied for certain activities, most of which were to take place in the recreation room. There was, however, only one 50square-metre recreation room per floor, which was to be used by ten inmates at most (Štrucl and Others § 86).

During his imprisonment the applicant had thirty-three consultations with a general practitioner and declined some of them. He also had five dental appointments and five treatments by a psychiatrist. He asked for and was given a psychological consultation, however he did not attend it.

As regards the cell temperature, the data provided by the Government showed that the average temperature in the cells in the late afternoon (5- 5.30 p.m.) in the second half of July and August 2009 had been approximately 28oC, exceeding 30oC on seven days.


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

The applicants, Mr X (“the first applicant”) and Ms Y (“the second applicant”), are Georgian nationals, who were born in 1987 and 1970 respectively and live in Tbilisi. The second applicant is the first applicant’s mother. The President granted the applicants’ request for their identity not to be disclosed to the public (Rule 47 § 4). They were represented before the Court by Ms L. Mukhashavria, a lawyer practising in Tbilisi.

and supported by the case file, may be summarised as follows.

The first applicant was arrested on 8 March 2011 on charges of resisting police officers and illegal use of drugs. He had previously been convicted of drug use in 2009. On 10 March 2011 he was placed in Gldani no. 8 Prison. On the same date he was taken to a special temporary cell, where an operative inspector on duty, V.B., offered him the possibility of cooperating with the prison administration. V.B. threatened him with violence if he did not do as ordered by the prison administration. When the applicant remained silent, another prison officer, O.P., who was also present in the cell, asked him whether he wanted to become a so-called “thief in law” (see in this connection Ashlarba v. Georgia, no. 45554/08, §§ 18-24, 15 July 2014, not final yet). The applicant refused to reply. O.P. became angry and started insulting and beating the applicant. He was soon joined by another prison officer, identified subsequently as G.Ts. They both threatened the applicant with sexual violence.

After some ten minutes of beatings the first applicant was taken to another cell and handcuffed to the doors half-naked. O.P. again demanded that he cooperate with the prison administration. The applicant did not reply. O.P. brought in another prisoner and threatened the applicant with sexual violence. The applicant subsequently accepted the “offer” by signing a note and undertaking to provide the prison administration with any information that could be of interest to them.

On 18 September 2012, one of the national private television companies, Maestro, broadcast several secret video recordings of alleged illtreatment of prisoners in Gldani no. 8 Prison. It later came to light that a major part of that footage had been personally taken by a prison officer, V.B., who had subsequently left Georgia. While abroad he had given a copy of the footage to a Georgian journalist.

One of the videos shown on that day by national television and uploaded subsequently to various internet sites depicted the first applicant’s ill-treatment of 10 March 2011. The video, which had been secretly recorded by V.B., lasted for some ten minutes and included scenes of the first applicant being verbally and physically abused. The video ended with the applicant writing a note and undertaking to cooperate with the prison administration.

In the footage broadcast by the Maestro channel on 18 September 2012 the first applicant’s face was only partly concealed. Hence, members of his family, including the second applicant, immediately identified him. They also recognised him based on further evidence. After watching the video, the first applicant allegedly attempted to commit suicide.

On 19 September 2012 some sixteen officials, among them the head and deputy head of the prison department (an authority in charge of prisons in Georgia), one prison governor and various prison officers, including O.P. and G.Ts., were arrested and charged with several distinct episodes of illtreatment and torture, including the first applicant’s case.

On 6 June 2013 the Chief Prosecutor of Georgia concluded a plea bargain involving special cooperation with V.B., in which the latter agreed to cooperate with the investigation in return for being absolved of criminal responsibility. On 11 June 2013 another plea bargain was concluded with G.Ts. in which he pleaded guilty in return for a more lenient sentence (see in this connection Natsvlishvili and Togonidze v. Georgia, no. 9043/05, §§ 49-53 and 90-98, ECHR 2014 (extracts)).

By a decision of 14 June 2013, the Tbilisi City Court confirmed the plea bargains concluded with V.B. and G.Ts. Accordingly, V.B. was absolved of criminal responsibility, while G.Ts was sentenced to two years’ imprisonment and a fine in the amount of 2,000 Georgian laris. By virtue of an Amnesty Law of 18 December 2012, G.Ts.’s prison sentence was reduced to one year and six months. As regards O.P., his final prison sentence for four different episodes of ill-treatment, including the first applicant’s case, after the application of the Amnesty Law and the respective provisions concerning the calculation of prison sentences, amounted to six years and nine months. He was additionally banned from holding a public position for a year and six months.

The Tbilisi City Court delivered the above decision at a closed hearing on 14 June 2013 and it was served on the first applicant on 27 June 2013.

The relevant provision concerning a “procedural agreement” (“საპროცესო შეთანხმება” in Georgian, saprotseso shetankhmeba), or plea bargain, as introduced into the new Code of Criminal Procedure of Georgia (entered into force on 1 October 2010) and applicable at the material time, reads as follows:

Article 217 §§ 2 and 3

“2. The injured party has no right to appeal against a plea bargain.

A plea bargain does not prevent the injured party from lodging a civil complaint.”


Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra

The facts of the cases, as submitted by the applicants, may be summarised as follows.

Mr Mohamed Ahachak is a Moroccan national born in 1981. He is currently detained in a custodial clinic in Poortugaal (near Rotterdam), the Netherlands. He was represented by Mr J.C. de Goeij, a lawyer practising in Alkmaar.

On various dates in August and September 2002 Mr Ahachak forced shopkeepers at knifepoint to hand him money.

On 16 October 2003 the Court of Appeal (gerechtshof) of The Hague convicted Mr Ahachak on appeal of various counts of robbery with the threat of violence. It sentenced him to two years’ imprisonment and ordered him placed at the disposal of the Government (terbeschikkingstelling, hereafter “TBS order”) with confinement in a custodial clinic (bevel tot verpleging van overheidswege). The judgment included the following reasoning:

“These serious crimes, committed with the threat of violence, have had psychological consequences for the victims in addition to the pecuniary damage caused. Moreover, such crimes cause disquiet in society and increase feelings of insecurity.”

After an initial four-year period which ended no later than 2008, the TBS order was extended several more times. In 2012 it came up for biennial review once more (Article 38d § 2 of the Criminal Code (Wetboek van Strafrecht)).

On 10 July 2012 the Regional Court (rechtbank) of The Hague gave a decision extending the TBS order for a further two years.

Mr Ahachak appealed to the Arnhem Court of Appeal, which held a hearing on 17 December 2012. Mr Ahachak’s counsel, relying on this Court’s judgment in the case of Van der Velden v. the Netherlands, no. 21203/10, 31 July 2012, argued that since the judgment of 16 October 2003 made no mention of an offence “directed against, or endangering, the bodily inviolability of one or more persons” (Article 359 § 7 of the Code of Criminal Procedure (Wetboek van Strafvordering)), the duration of the TBS order could be no more than four years (Article 38e § 1 of the Criminal Code).

The Arnhem Court of Appeal gave its decision on 3 January 2013. It extended the TBS order by a further two years, reasoning as follows:

“Contrary to the argument made by counsel, the Court of Appeal takes the view that the TBS order is not bound to any maximum duration, since ... in view of the conviction, the qualification and the reasoning on which the imposition of the measure is based, considered in context (in onderling verband en samenhang bezien), the offences in question were directed against, or endangered, the bodily inviolability of one or more persons.”

Mr Stephanus Maria Anna Hendrikus Janssen is a Netherlands national born in 1965. He is currently detained in a custodial clinic in Venray. He was represented by Mr D.W.H.M. Wolters, a lawyer practising in Hoofddorp.

On 5 March 2002 Mr Janssen started a fire in a lavatory in an office building by setting a towel alight with a burning cigarette.

On 24 September 2002 the Roermond Regional Court convicted Mr Janssen of arson endangering property and life. It sentenced him to seven months’ imprisonment and imposed a TBS order with confinement in a custodial clinic. The judgment included the following reasoning:

“In setting the sentence, the Regional Court has considered, in particular, the seriousness of the fact found proven in relation to other criminal offences, in addition to the interest of enforcing compliance with standards and the circumstance that the accused ... has been convicted before.

In addition, the Regional Court has considered the dangerousness (gevaarzettend karakter) of the fact found proven and the social unrest to which it has contributed.”

and

“The safety of others and the general safety of persons and goods require the imposition of a TBS order.”

and

“Since the safety of others than the accused and the general safety of persons and goods so require, the accused shall be confined in a custodial clinic.”

After an initial four-year period which ended no later than 2006, the TBS order was extended several more times. In 2012 it came up for biennial review once more.

On 12 October 2012 the Roermond Regional Court held a hearing. Mr Janssen’s counsel argued, among other things, that the duration of the TBS order was limited in time to four years since it had not been imposed for an offence “directed against, or endangering, the bodily inviolability of one or more persons”.

The Regional Court gave a decision on 26 October 2012 extending the TBS order for a further two years. Its reasoning included the following:

“The Regional Court takes the view that the conviction and the qualification, together with the reasons given in sentencing, which refers to the ‘dangerousness of the fact found proven and the social unrest to which it has contributed’, unambiguously shows that the crime in question is of the type referred to in Article 359 § 7 of the Code of Criminal Procedure.”

On 21 February 2013 the Arnhem-Leeuwarden Court of Appeal, sitting in Arnhem (which by this time had succeeded the Arnhem Court of Appeal), having held a hearing on 7 February 2013, confirmed the decision of the Regional Court including its reasoning.

Mr Charles Ferdinand van Akerlaken is a Netherlands national born in 1965. He is currently detained in a custodial clinic in Venray. He was represented before the Court by Ms D.N. de Jonge and Mr T. de Bont, lawyers practising in Amsterdam.

In April 2001 Mr van Akerlaken induced the staff of a dispensing chemist’s to hand over medicine by banging his fist on the counter and threatening murder and arson.

On 7 July 2002 the Amsterdam Court of Appeal convicted Mr van Akerlaken on appeal of extortion and threatening lethal violence and arson. It sentenced him to 23 weeks’ imprisonment and imposed a TBS order with confinement in a custodial clinic. Its reasoning included the following:

“By his behaviour and actions, the accused has caused the persons involved great fear. The facts set out above cause serious feelings of unrest and insecurity in society in general and retail staff in particular. Moreover, extortion causes nuisance and damage to victims.”

After an initial four-year period which ended no later than 2007, the TBS order was extended several more times. In 2012 it came up for biennial review once more.

On 7 December 2012 the Amsterdam Regional Court gave a decision finding that the sentencing judgment failed to make mention of an offence “directed against, or endangering, the bodily inviolability of one or more persons” as referred to in Article 359 § 7 of the Code of Criminal Procedure. In the light of the Van der Velden v. the Netherlands judgment of this Court, the TBS order therefore could not be extended.

The public prosecutor appealed to the Arnhem-Leeuwarden Court of Appeal.

Having held a hearing on 11 April 2013, the Court of Appeal gave a decision on 25 April 2013 extending the TBS order for a further year. Its reasoning included the following:

“The Court of Appeal finds that the [applicant] was convicted by the judgment of the Amsterdam Court of Appeal of 7 October 2002 of:

extortion;

threatening lethal violence and arson.

In view of the conviction, the qualification and the reasoning on which the sentence and the measure [i.e. the TBS order] is grounded, viewed in context, it is implicit in the judgment that the TBS order was given in connection with a crime of violence within the meaning of Article 38e § 1 of the Criminal Code, namely:

extortion, involving non-verbal action by the [applicant] (banging a counter forcefully with his fist), with the intention to add force to the verbal threat, such action by its nature being aggressive towards the person so threatened.

It cannot therefore be said that the possibility of an extension of the [TBS order] beyond four years could not reasonably be foreseen by [the applicant].

Unlike the Regional Court, the Court of Appeal therefore takes the view that the TBS order in this case is not limited in duration.”

Ms Mulki Mohamed Wehelie is a Somali national born in 1969. She is currently detained in a custodial clinic in Balkbrug. She was represented by Mr I. Vreeken, a lawyer practising in Zutphen.

In September 1997 Ms Wehelie removed her five-year-old son, who had been taken into public care, from the supervision of the child-care authorities by threatening social workers and a police officer with an object that had the appearance of a firearm but later turned out to be a gas alarm pistol.

On 21 October 1999 the Amsterdam Court of Appeal convicted Ms Wehelie on appeal of threatening the social workers and the police officer with a crime directed against their lives and removing a minor from the supervision of the person to whom the minor had been lawfully entrusted. It imposed a TBS order with confinement in a custodial clinic without an additional penal sentence. The judgment referred to, among other things, the threatening and frightening nature of the facts found proven. It included the following reasoning:

“In view of the above findings, the Court of Appeal considers that the safety of others requires the imposition of a TBS order. Moreover, the safety of others requires the accused to be confined in a custodial clinic.”

After an initial four-year period which ended no later than 2003, the TBS order was extended several more times.

On 3 March 2011 the Deputy Minister of Security and Justice (Staatssecretaris van Veiligheid en Jusititie) decided to impose an exclusion order (ongewenstverklaring) on Ms Wehelie pursuant to the Aliens Act 2000 (Vreemdelingenwet 2000).

In 2012 the TBS order came up for biennial review once more.

On 26 November 2012 the Utrecht Regional Court gave a decision finding that the sentencing judgment failed to make mention of an offence “directed against, or endangering, the bodily inviolability of one or more persons” as referred to in Article 359 § 7 of the Code of Criminal Procedure. In the light of the Van der Velden v. the Netherlands judgment of this Court, the TBS order therefore could not be extended.

The public prosecutor (officier van justitie) appealed to the Arnhem-Leeuwarden Court of Appeal.

Having held a hearing on 14 February 2013, that Court of Appeal, sitting in Arnhem, gave a decision on 7 March 2013. Overturning the decision of the Regional Court, it found in view of the reference in the sentencing judgment to the threatening and frightening nature of the facts found proven that the offence of which Ms Wehelie had been convicted was one “directed against, or endangering, the bodily inviolability of one or more persons” so that the TBS order was not limited in duration and could reasonably be expected to be extended beyond four years. However, it adjourned the case in order to seek certain information not relevant to the complaint before the Court from the Immigration and Naturalisation Service (Immigratie- en naturalisatiedienst) and the Ministry of Security and Justice (Ministerie van veiligheid en justitie).

On 4 July 2013, having obtained the information required and having held a fresh hearing in the meantime, the Court of Appeal gave a decision extending the TBS order by one year.

Ms Wehelie’s TBS order has since been extended for a further period of one year, by a decision given on 31 October 2013 by the Central Netherlands Regional Court (rechtbank Midden-Nederland, successor to the Utrecht Regional Court).

As relevant to the case, the Criminal Code provides as follows:

“1. The court may impose a TBS order on a suspect whose mental faculties were inadequately developed or pathologically disturbed at the time of the commission of the offence if:

1º the offence he has committed is one which, according to its statutory definition, renders offenders liable to a term of imprisonment of four years or more, ... and

2º the said measure is necessary in the interests of the safety of others or the general safety of persons or goods.

In giving an order under paragraph 1, the court shall take account of the statements contained in the other opinions and reports made concerning the suspect’s personality, and shall take account of the seriousness of the offence committed and the number of previous convictions for indictable offences.”

All applicants were found guilty of offences carrying a maximum sentence of four years or more.

“1. The court may order that a person who is subject to a TBS order shall be confined in a custodial clinic if this is necessary in the interests of the safety of others or the general safety of persons or goods. ...”

“1. A TBS order shall remain in force for a period of two years, counting from the day on which the judgment imposing it has become final.

Except as provided in Article 38e ..., the duration of the TBS order can be extended, on the application of the public prosecution service (openbaar ministerie), for either one year or two years at a time, if the safety of others or the general safety of persons or goods requires such extension. A second extension is possible only when an order as mentioned in Article 37b ... has been given.”

“1. The total duration of the TBS order shall not exceed a four-year period, unless the TBS order is imposed in connection with an indictable offence that is directed against, or endangers, the bodily inviolability of one or more persons.

If the total duration of the TBS order is not limited in time, the duration of the TBS order can be extended periodically, if the safety of others or the general safety of persons requires such extension.”

As relevant to the case, the Code of Criminal Procedure provides as follows:

If a TBS order with an order for confinement in a custodial clinic has been imposed in connection with an indictable offence directed against, or endangering, the bodily inviolability of one or more persons, the judgment shall so indicate, giving reasons.

All on pain of nullity.”


Violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general} (Article 4 of Protocol No. 7 - Conviction;Criminal offence);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in 1972 and lives in Espoo.

The tax inspector conducted a tax inspection in a company in 2005.

On 28 November 2005 the tax authorities considered that the applicant had received 33,000 euros (EUR) as disguised dividends from that company during the tax year 2003. An additional tax and a tax surcharge (veronkorotus, skatteförhöjning) of EUR 1,700 were imposed.

The applicant sought rectification from the local Tax Rectification Committee (verotuksen oikaisulautakunta, prövningsnämnden i beskattningsärenden).

On 25 January 2006 the Tax Rectification Committee rejected the applicant’s application. It found that the applicant had given incomplete information to taxation authorities and tax had therefore been incompletely or partially levied. Therefore the additional tax and the tax surcharges imposed on him were not considered to be too high.

The applicant appealed to the Kuopio Administrative Court (hallinto-oikeus, förvaltningsdomstolen).

On 29 May 2008 the Kuopio Administrative Court rejected the applicant’s appeal on the same grounds as the Tax Rectification Committee.

The applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen).

On 1 April 2009 the Supreme Administrative Court refused the applicant leave to appeal.

On 19 August 2008 the public prosecutor brought charges against the applicant of, inter alia, tax fraud (veropetos, skattebedrägeri) concerning the tax year 2003. According to the charges, the applicant was accused of tax fraud as he had under-declared his income. The undeclared income amounted to EUR 33,000 for the tax year 2003 and, consequently, the tax imposed in 2003 had been EUR 12,420 too low.

On 13 February 2009 the Tuusula District Court (käräjäoikeus, tingsrätten) convicted the applicant of tax fraud and imposed a suspended prison sentence of 8 months. He was also ordered to pay to the tax authority EUR 9,500 plus interest. The court found that the amount of disguised dividends was EUR 26,882.90 and that the tax due amounted to EUR 9,500.

By letter dated 26 April 2010 the applicant appealed to the Helsinki Appeal Court (hovioikeus, hovrätten), requesting that the charges be dismissed.

On 25 March 2010 the Helsinki Appeal Court convicted the applicant as charged and sentenced him to 10 months in prison. It ordered the applicant to pay the tax authorities EUR 12,420 plus interest. The court found that, contrary to the opinion of the District Court, the value-added tax was to be included in the amount of disguised dividends. The correct amount of disguised dividends was thus EUR 33,000 and the tax evaded amounted to EUR 12,420.

By letter dated 24 May 2010 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), requesting that the charges and the compensation claim be dismissed without examining the merits or alternatively that they be rejected. He claimed, by referring to Article 4 of Protocol No. 7 to the Convention and to the Court’s case-law, that the ne bis in idem principle had been violated as tax surcharges had already been imposed for the same acts by a decision which had become final.

On 1 September 2010 the Supreme Court refused the applicant leave to appeal.


Violation of Article 6+6-3-d - Right to a fair trial (Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicant was born in 1976 and lives in Achkhoy-Martan, Chechen Republic.

On 13 January 2001 two soldiers of the Russian federal forces M. and P. came to the applicant’s house to buy drugs. After the applicant sold heroin to them, unknown persons attacked the soldiers, put them in a car and took them to a hide-out where they were kept for five days. The kidnappers also took M.’s automatic gun. The soldiers were released by law-enforcement officers on 18 January 2001. The gun was never found.

On an unspecified date the authorities opened a criminal investigation into the soldiers’ abduction. The applicant was the only suspect. Other perpetrators had not been identified.

According to the applicant, on 4 April 2007 at approximately 7 p.m. he was arrested on suspicion of having participated in abduction of M. and P. According to the arrest record, the applicant was arrested on 5 April 2007 at 10:40 a.m.

On 6 April 2007 the Achkhoy-Martan District Court of the Chechen Republic authorised the applicant’s detention pending the criminal proceedings against him.

On an unspecified date the investigator questioned M. and P. Both of them submitted that they had been abducted from the inner yard adjacent to the applicant’s house. They had come to the applicant’s house to buy drugs. The applicant had asked them to enter to help him move the car that had been parked inside. After they had been done with the car, they had been attacked by four persons. M. had cried out to the applicant for help, but the applicant had done nothing. After that they had been blindfolded, put in a car and taken to another place.

On 26 June 2007 the District Court found the applicant guilty of abduction and theft of firearms and sentenced him to seven years’ imprisonment. The court relied on the statements of M. and P. given during the questioning by the investigator, the written statements made by their parents to whom M. and P. had told about their abduction, the written statements made by other soldiers who confirmed that M. and P. had been missing in 2001. Investigator Mir. testified in court as regards his questioning of M. and P. The court also heard a number of the applicant’s relatives and neighbours who testified as to the applicant’s character and the curfew introduced in the village in 2001 and studied the materials from the case-file prepared by the investigator. As regards the use of M. and P.’s written statements, the court noted as follows:

“... According to [the rules of criminal procedure], if the victim of the crime fails to appear in court, the court, if requested by a party to the proceedings or of its own motion, may decide to have the [victim’s] earlier statement read out in the event of a natural calamity or other extraordinary circumstances preventing the [victim’s] appearance in court. The court considers that the victims were prevented from appearing in court for the following reasons: their psychological state, i.e, their lack of desire to reminisce about the circumstances of the abduction coupled with deprivation of liberty and, possibly, with the life threat, and to live through this again; lack of safety during the trip to Chechen Republic where the political situation is still troublesome, especially ... for ethnic Russians who are not locals; a risk that the [applicant’s] relatives might put pressure on them; and the fact that they live far away and do not have means to pay for the trip to attend the court hearing. The court considers such circumstances to be extraordinary and preventing the victims from appearing in court.”

On 15 August 2007 the Supreme Court of the Chechen Republic upheld the applicant’s conviction on appeal.

On 26 December 2011 the applicant was released.