Dmitry Dedov;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant, Mr Ochir Danilovich Shovgurov, is a Russian national, who was born in 1956 and lives in the town of Elista, the Republic of Kalmykia.

The applicant’s son, O. Sh., was born on 23 February 1987.

Between 13 and 27 June 1988 O. Sh. was placed in the Republican Children’s Hospital with the diagnosis “acute respiratory disease, first degree stenosis and lacunar tonsillitis”. Treatment was administered to him in intramuscular injections by reusable syringes, as a result of which, along with other children, he was infected with HIV.

The applicant’s son was first diagnosed with HIV in March 1989 at the Infectious Diseases Hospital no. 2 of Moscow.

In September 1991 O. Sh. was examined by Dr J. A., professor of allergology and immunology, and Dr M. M., professor of neurology, in New York. They confirmed the diagnosis.

On 13 July 1998 O. Sh. was placed in the Republican Centre for the Treatment of AIDS (ЛДО «РЦ СПИД»), where on 9 August 1998 he died. According to the postmortem diagnosis, the applicant’s son suffered from HIV and a number of accompanying diseases.

On 25 January 1989 criminal proceedings were instituted into mass infection with HIV in the Republican Children’s Hospital.

On 1 November 1990 the investigation was suspended due to the failure to identify the culprits.

On 9 July 1992 the Deputy Prosecutor General set aside the decision to suspend the investigation.

On 15 November 1992 the investigation was reopened.

On 15 December 1992 the investigation was suspended due to the failure to identify the culprits.

On 11 August 1994 the investigating authorities ordered a forensic expert examination. The following questions were put to the expert:

“1. What is the nature of HIV transmission by medical instruments?

Was HIV transmission by medical instruments possible in the Republican Children’s Hospital and the Republican Children’s Infectious Diseases Hospital?

2.1 Did the children concerned stay together in the same ward (department, unit or block) and, if so, for how long?

2.2 Were the same medical solutions administered to the children placed together at the same time by the same medical staff? If so, how many times?

2.3 In what cases is the possibility of HIV transmission by medical instruments ruled out?

Is the infection through blood and its products ruled out?

3.1 How many children received donor blood, how often and in what quantities?

3.2 How many donors are subject to examination?

Is the intrauterine infection ruled out?

Is the HIV infection through breastfeeding ruled out?”

Expert K. stated in his report that the forensic examination was focused on the HIV transmission by syringes used in the hospitals as the healthcare authorities had recognised it as the only plausible version of the HIV infection in the hospitals in the south of Russia. In the subsequent analysis he made references to medical doctrinal works on HIV transmission.

The analysis was based on the fact that the children, subsequently diagnosed as HIV positive, had been placed together in in-patient departments attached to one treatment unit. Expert K. further proceeded with (i) identification of the possible source of the infection, i.e. of the child infected before his placement in the nidus of infection (see paragraph 17 below); (ii) differentiation of medical manipulations according to the degree of the risk of infection with HIV (high, medium and low degree of risk); (iii) establishing situations where the same member of the hospital staff made injections of the same medicine at the same time, which raised the likelihood of the same needles having been used, and (iv) establishing the sequence of the manipulations: first with the source of the infection (a child that had been infected prior to his/her placement in the hospital) and then with other patients. Expert K. specifically noted that, although it was not difficult to establish that the same member of the hospital staff made injections of the same medicine, it was almost impossible to establish that the same needles and syringes had been used. Therefore, any conclusion as to the possibility of the infection transmission in a given situation would always be relative and based on probability.

Proceeding from the premise that simultaneous placement of children subsequently diagnosed as HIV positive in the same ward was a precondition for the infection transmission, expert K. proposed the following gradation of probability for the assessment of the factual material:

- the transmission was probable if there had been a source of the infection, i.e. a child infected prior to his/her placement in the ward, and the same medicines had been administered by the same member of the hospital staff with the use of manipulations involving high degree of risk of transmission;

- the transmission was unlikely if the same medicines had been administered by different members of the hospital staff with the use of manipulations involving medium and low degree of risk of transmission, even if the infected child had been present in the ward;

- the transmission was impossible if no medicines had been administered and no manipulations had been carried out at the same time.

Expert K. examined 293 medical files. All instances where the children, subsequently diagnosed as HIV positive, had been placed in hospitals of the Republic of Kalmykia in the period between January 1988 and August 1989 were identified. All situations where HIV infected children had been placed in a hospital simultaneously were also identified. Such instances were analysed and referred to as niduses of infection. All possible sources of infection were established.

Each instance was analysed on the basis of the criteria stated above. On this basis a conclusion as to the probability of infection in the given instance was made, i.e. whether it was probable, unlikely or impossible.

All the material was subject to computer analysis. On this basis three databases were created: (i) information on HIV infected children; (ii) information on placement in a hospital of HIV infected children in 198889; and (iii) information on medical manipulations with respect to HIV infected children while they had been simultaneously placed in hospitals of the Republic of Kalmykia.

The expert’s research showed that seventy-six children, subsequently diagnosed as HIV positive, were placed for treatment in six children’s hospitals in Kalmykia between January 1988 and August 1989. Instances where such children were placed for treatment at the same time were distributed among the six hospitals as follows: 340 instances in the Republican Children’s Hospital, fifty-six instances in the Republican Children’s Infectious Diseases Hospital, eight instances in the Yashkul District Central Hospital, four instances in the Priozersk District Central Hospital, two instances in the Iki-Burulsk District Central Hospital and one instance in the Kaspiysk District Central Hospital.

The analysis of the medical documents showed that the formation of the niduses of infection had been initially connected with almost simultaneous placement in the infant department of the Republican Children’s Hospital of several babies born from HIV positive mothers, who had become the source of infection for other children. The further spread of the infection was connected with the children infected in the infant or other departments of the Republican Children’s Hospital and in some cases had a chain effect.

HIV transmission could only have taken place through the use of medical instruments in breach of the applicable rules if the same syringes and needles had been used consecutively in respect of several children placed in the same ward. However, no indication of such breaches could be found in the medical documents.

The overall conclusions of the report were the following:

(i) In Elista, the Republic of Kalmykia, there was an outbreak of HIV infection of children, which began in May 1988 and ended in November 1988, as a result of which seventy-six children were diagnosed as HIV positive.

(ii) The probability of HIV transmission through the use of medical instruments existed in two Elista hospitals: Republican Children’s Hospital and the Republican Children’s Infectious Diseases Hospital.

On 21 February 1996 the criminal proceedings were terminated under Article 5 § 1 and Article 208 of the RSFSR Code of Criminal Procedure on the ground that there was no indication of a criminal offence.

On 28 June 2001 the decision of 21 February 1996 was set aside, and on the same date the criminal proceedings were terminated on the ground of expiry of the statutory time-limit.

In September 2011 the applicant along with the parents of a number of other children infected with HIV in similar circumstances filed a complaint on the ground that they had not been granted victim status in the proceedings.

On 19 September 2011 the decision of 28 June 2001 was set aside and the investigation was reopened for one month.

On 17 October 2011 the applicant was granted victim status in the proceedings.

On 20 October 2011 the criminal proceedings were terminated on the ground of expiry of the statutory time-limit. According to the decision, it was established that seventy-six children had been infected with HIV while they had been undergoing in-patient treatment in the Republican Children’s Hospital and the Infectious Diseases Hospital of Elista in 1988-89. In the course of the investigation it appeared impossible to identify the hospital staff responsible for the negligence which had resulted in the spread of the infection. However, all the children infected and their parents were identified and granted victim status in the criminal proceedings.

The decision further stated that the offences in question were qualified as negligence under Article 293 of the Criminal Code, breach of sanitary-hygienic rules leading to mass infection or death under Article 236 §§ 1 and 2 of the Criminal Code, and infection with HIV under Article 122 § 4 of the Criminal Code. Under Articles 15 § 3 and 78 § 1 (b) of the Criminal Code the statute of limitations for these offences was six years. As more than six years had lapsed since the events in question, the criminal proceedings were discontinued under Article 24 § 3 (1) of the Criminal Code.

In 2011 the applicant, together with seven other persons, including his wife, Ms Shovgurova, instituted proceedings against the Republican Children’s Hospital for compensation of non-pecuniary damage caused by their children’s infection with HIV, which led to the latters’ death. The applicant and his wife sought 5,000,000 Russian roubles (RUB).

On 9 November 2011 the Elista Town Court partially granted the claim. The court noted that, according to the report of the forensic expert examination conducted within the criminal proceedings, there had been an outbreak of HIV infection of children in Elista, which had begun in May 1988 and had ended in November 1988, as a result of which seventysix children had been diagnosed as HIV positive. The probability of HIV transmission through the use of medical instruments existed in two Elista hospitals: Republican Children’s Hospital and the Republican Children’s Infectious Diseases Hospital. The eight plaintiffs’ children were placed for in-patient treatment in the Republican Children’s Hospital in the period concerned. Subsequently they were diagnosed as HIV positive. The court therefore found it established that their children had been infected with HIV in the Republican Children’s Hospital, which led to their death.

The court further noted that although the criminal investigation had been terminated on 20 October 2011 on account of expiry of the statutory time-limits, the fact that particular culprits had not been established did not deprive the plaintiffs, who had been granted victim status in the criminal proceedings, of the possibility to claim compensation for damage caused by their children’s having been infected with HIV in the Republican Children’s Hospital.

Having regard to Articles 444 and 445 of the Civil Code of the RSFSR, Article 131 of the Fundamentals of the Civil Legislation of the USSR and the Republics and Articles 151, 1064 and 1068 of the Civil Code of the Russian Federation, the court awarded each plaintiff RUB 100,000.

The plaintiffs and the defendants appealed.

On 15 December 2011 the Supreme Court of Kalmykia reviewed the Elista Town Court’s judgment. It upheld the findings of fact to the effect that the plaintiffs’ children had been infected with HIV in the Republican Children’s Hospital. The appellate court further dismissed the defendant’s arguments that the decision to award compensation had not been based on the law in force at the relevant time. It noted that Article 57 of the Constitution of the USSR and Article 63 of the Constitution of the RSFSR, in force at the time when the plaintiffs’ children had been infected with HIV, provided for judicial protection from encroachment upon life and health. Article 52 of the Constitution of the Russian Federation likewise provided for access to justice and the right to compensation for victims of crimes. The appellate court further noted that Article 24 of the Fundamentals of the Criminal Procedure of the USSR and the Republics and Article 53 of the Code of Criminal Procedure of the RSFSR, in force at the material time, as well as Article 42 of the Code of Criminal Procedure of the Russian Federation provided that a person who had sustained physical, pecuniary or non-pecuniary damage as a result of a crime should be recognised as a victim.

Having regard to Article 88 of the Fundamentals of the Civil Legislation of the USSR and the Republics, Article 444 of the Civil Code of the RSFSR and Articles 151, 1068 and 1101 of the Civil Code of the Russian Federation, the Supreme Court of Kalmykia altered the lower court’s decision in the part concerning the amount of the compensation and awarded each plaintiff RUB 300,000 (approximately 7,245 euros).

The applicant’s further requests for review of the judgment were refused on 11 July 2012 and 16 August 2012.

Article 57 of the Constitution of the USSR, in force until 26 December 1991 and Article 63 of the Constitution of the RSFSR, in force until 12 December 1993, provided for judicial protection of rights and freedoms. Article 52 of the Constitution of the Russian Federation, in force after 12 December 1993, provides that rights of victims of crimes and of abuse of power are protected by the law. The State shall provide the victims with access to justice and compensation for the damage caused.

Under Article 24 of the 1958 Fundamentals of the Criminal Procedure, in force until 1 July 2002, a victim was a person who had suffered moral, physical or pecuniary damage as a result of a crime.

The 1960 Code of Criminal Procedure of the RSFSR, in force until 1 January 2003, provided that criminal proceedings could not be opened and pending criminal proceedings should be terminated where there was no indication of a crime (Article 5 § 1). A criminal case should be closed on the grounds provided in Articles 5-9 (Article 208 § 1). A victim was a person who had suffered moral, physical or pecuniary damage (Article 53).

The 2001 Code of Criminal Procedure of the Russian Federation, in force after 1 January 2003, provides that criminal proceedings should be terminated if the statutory time-limit has expired (Article 24 § 3 (1)). The Code defines a “victim” as a person who has sustained physical, pecuniary or non-pecuniary damage as a result of a crime. The decision to recognise an individual as a “victim” must be taken by the examiner, investigator, prosecutor or court (Article 42).

The 1996 Criminal Code of the Russian Federation, in force after 1 January 1997, provides the following statute of limitations: two years in respect of a minor offence, six years in respect of an offence of medium gravity, ten years in respect of a grave offence and fifteen years in respect of a particularly grave offence (Article 78 § 1). Prior to amendments introduced to the Code by Federal Law no. 420-FZ of 7 December 2011, infection with HIV as a result of undue performance of one’s professional duties constituted an offence of medium gravity (Articles 15 § 4 and 122 § 4); a breach of sanitary-hygienic rules leading to mass infection constituted a minor offence (Articles 15 § 4 and 236 § 1); and negligence consisting of undue performance by an official of his/her functions as a result of improper or careless attitude to his/her work, which led to death of two and more persons constituted a grave offence (Articles 15 § 4 and 293 § 3, the latter Article introduced by the Federal Law no. 162-FZ of 8 December 2003).

Under Articles 444 and 445 of the 1964 Civil Code of the RSFSR, in force until 1 March 1996, damage caused to a person, a person’s property or an organisation should be compensated for in full by the person who inflicted the damage. An organisation was responsible for compensation of damage caused by its employees in the course of carrying out their work duties.

Under Article 131 of the 1991 Fundamentals of the Civil Legislation, in force between 3 August 1992 and 1 January 1995, damage, including physical and mental suffering, caused to a person by unlawful actions should be compensated by the person who inflicted the damage provided it had been caused through his/her fault.

The 1994 Civil Code of the Russian Federation, in force after 1 January 1995, provides that a court may order compensation of non-pecuniary damage, including physical and mental suffering, caused to a person to be paid by the person who inflicted it (Article 151). The damage is to be compensated in full (Article 1064 § 1). A juridical or natural person shall compensate damage caused by its/his/her employee in the course of carrying out work duties (Article 1068 § 1).

Article 28 of the 1969 United Nations Convention on the Law of Treaties (Vienna Convention) provides:

“Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.”


CASE OF MEDŽLIS ISLAMSKE ZAJEDNICE BRČKO AND OTHERS v. BOSNIA AND HERZEGOVINA

No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä

In May 2003 the applicants wrote a letter to the International Supervisor for BD, to the President of the Assembly of BD and to the Governor of BD concerning the appointment of a director of the BD public radio station. They referred, in particular, to M.Sʼs candidacy for that position. M.S. was the entertainment editor at the BD public radio at the material time.

The relevant part of the letter reads as follows:

“We acknowledge and appreciate your support and the effort you put in creating a multiethnic radio...Unfortunately, it appears that there was a major oversight at the very beginning of this important venture. The panel for the selection of the director [of the radio] was created in contravention of the Statute of Brčko District. It is composed of three Serb members, one Croat and one Bosniac. Thus, yet again, the Statute, which requires proportional representation of the three constituent peoples in public institutions, was disregarded...Unfortunately, nothing has been done to correct this. The unofficial information we received to the effect that Ms M.S. was proposed for the position of the radio director by the Serb members of the Panel... although the former director was Bosniac, confirms the above. This proposal is unacceptable, all the more so because it concerns a person who lacks the professional and moral qualities for such a position.

According to the information we received...

in an interview published in “NIN”, discussing the destruction of mosques in Brčko, Ms M.S. said that Muslims were not people, that they did not possess culture and that, accordingly, destroying mosques could not be seen as a destruction of cultural monuments,

... on the radio’s premises ... she made a point of removing from the wall (and tore to pieces) the calendar with the schedule of religious services during the month of Ramadan,

...on the radio’s premises she covered the coat of arms of Bosnia and Herzegovina with the coat of arms of the Republika Srpska,

as the editor of the entertainment programme she banned broadcasting of sevdalinka arguing that that type of song had no cultural or musical value.

We firmly believe that the above-described acts absolutely disqualify Ms M.S. as a candidate for the position of the director of the multiethnic Radio and Television of Brčko District...

We hope that you will act accordingly...

In the absence of any action on your part, we will be forced to contact the media as well as the other competent national and international bodies.”

Shortly thereafter the letter was published in three different daily newspapers.

On 29 May 2003 M.S. initiated civil defamation proceedings against the applicants and claimed compensation of 50,000 convertible marks (BAM). M.S submitted that she had learned about the content of the letter shorlty after it had been sent by the defendants, but that she did not know who gave it to the media. After the letter was published, the Governor of BD annulled the proceedings for the appointment of a director of the public radio station.

On 29 September 2004 the BD Court of First Instance (“the Court of First Instance”) rejected the claim. It held that the applicants could not be liable for the alleged defamation because they had not published the letter in the media. The relevant part of the judgment reads as follows:

“From the defendants’ letter, it is clear that it was privately sent to the Governor, to the President of the Assembly and to the Supervisor for Brčko District...and it was not sent to the media... [T]he aim of the letter was not dissemination of unverified information to public, but bringing the attention of the competent authorities to certain issues and to enable them to draw certain conclusions on verification of that information.

Having examined the articles published in the media, the court concludes that none of them was published by the defendants in this case.”

M.S. appealed against that judgment to the BD Appellate Court ("the Appellate Court"). On 16 May 2005 the Appellate Court quashed the judgment of 29 September 2004 and decided to hold a new hearing.

On 11 July 2007 after having examined several witnesses (including the two employees of the BD public radio from whom the applicants received the information presented in their letter), the Appellate Court found that the contested letter contained some value-judgments but also the statements of facts which had been untrue and damaging to M.S.ʼs reputation. It held that for the liability for defamation to be established under section 6(1) of the Defamation Act 2003 it was irrelevant that the applicants did not publish the letter. The Appellate Court ordered the applicants to inform the International Supervisor for BD, the President of the Assembly of BD and the BD’s Governor about the retraction of their statements within 15 days, in default of which they had to pay BAM 2,500 in damage to M.S., together with default interest at the statutory rate from 11 July 2007. They were further ordered to publish the judgment at their own expense.

On 15 November 2007 M.S. filed a request for the enforcement of the above judgment to the Court of First Instance. She proposed, inter alia, that the court send the judgment of 11 July 2007 for publication at the applicants’ expense.

On 5 December 2007 the Court of First Instance issued a writ of execution.

On 12 December 2007 the applicants paid BAM 2,825 (approximately 1,445 euros (EUR)) by way of the enforcement of the judgment of 11 July 2007.

On 27 March 2009 the Court of First Instance closed the enforcement proceedings.

In the meantime, on 15 October 2007 the applicants complained about the violation of their right to freedom of expression to the Constitutional Court of Bosnia and Herzegovina ("the Constitutional Court").

On 13 May 2010 the Constitutional Court held that the interference with the applicants’ right to freedom of expression was “necessary in a democratic society” and concluded that there had been no violation of Article II/3.h) of the Constitution of Bosnia and Herzegovina and Article 10 of the Convention. The relevant part of the decision reads as follows:

“34. At the outset the Constitutional Court notes that the appellants did not deny that their liability for defamation was based on the Defamation Act 2003 and that, therefore, the interference with the right [to freedom of expression] protected by Article 10 of the European Convention was prescribed by law...

The impugned judgment was delievered in a civil defamation proceedings initiated by the plaintiff against the appellants...accordingly, the interference pursued the legitimate aim of the protection of the “reputation or rights of others”.

What remains to be determined is whether the interference complained of was “necessary in a democratic society”....

The Constitutional Court considers that the Appellate Court established without doubt that the impugned factual statements about M.S. were false and that the appellants were liable for defamation. From the submissions of the two witnesses, from whom the appellants received the information presented in the letter [concerning the part of the letter in which it was stated that M.S. ‘made a point of removing from the wall (and tore to pieces) the calendar with the schedule of religious services during the month of Ramadan and as the editor of the entertainment programme she banned broadcasting of sevdalinka arguing that that type of song had no cultural or musical value’], the Appellate Court established that there was an evident inconsistency between that what had been said to the appellants and that what they had reported in the letter. Furthermore, the statement from the impugned letter that M.S. gave an interview concerning the destruction of mosques was refuted by another witness who submitted that a subsequent verification had revealed that M.S. had not been the author of the said interview. Finally, the appellants failed to prove the veracity of the allegations that M.S. covered the coat of arms of Bosnia and Herzegovina with the coat of arms of the Republika Srpska. In view of the above, the Constitutional Court considers that in the present case the right of the appellants to report irregularities in the conduct of an official to a body competent to deal with such complaints cannot be premised on ascertaining manifestly untrue facts which go beyond the limit of acceptable criticism of civil servants. Accordingly, the court considers that the Appellate Court correctly concluded that there was ‘a pressing social need’ in the present case [for the interference with the appellants’ right to freedom of expression].

Furthermore, the Constitutional Court notes that the Appellate Court awarded non-pecuniary damage to M.S. because her reputation was affected by the untrue statements made in the impugned letter. ...The Constitutional Court has already stated in its previous jurisprudence that a person’s reputation forms part of her personal identity and psychological integrity...

The appellants...failed to verify the impugned statements beforehand as was their duty. The Appeal Court established that the appellants had damaged M.S.’s reputation by making untrue allegations, which caused her mental anguish...When deciding on the claim in respect of non-pecuniary damage and its amount, the Appellate Court took into account the purpose of those damages, as well as that it should not favour aspirations that are incompatible with its nature and social purpose.

[T]he Constitutional Court considers that a measure imposed on the appellants in the present case was proportionate to the aim pursued...The court further considers that the Appellate Court did not go beyond its discretionary power in deciding on the claim in respect of non-pecuniary damage...[T]he Constitutional Court finds that the reasons the Appellate Court gave were ‘relevant’ and ‘sufficient’ within the meaning of Article 10 of the European Convention.

In view of the above, the Constitutional Court considers that the interference with the appellants’ right to freedom of expression was ‘necessary in a democratic society’ and that, therefore, there has been no violation of Article II/3.h) of the Constitution of Bosnia and Herzegovina and Article 10 of the European Convention.”

On 21 September 2010 the Constitutional Court’s decision was served on the applicants.


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque

The applicant was born in 1943 and lives in Šilėnai, in the Šiauliai Region.

In June 2000 the Radviliškis Land Department of the Šiauliai County Administration recognised L.S.G.’s right to the restoration of title to 4.07 hectares of land in the Radviliškis area. The plot of land in question had belonged to two other individuals, P.M. and E.M., and had been nationalised by the Soviet regime.

Later that month the applicant and L.S.G. signed a notarised agreement by which L.S.G. transferred (perleido) to the applicant the right to the restoration of title to 2.07 hectares of the above-mentioned plot of land. The agreement did not indicate whether the applicant had given any money to L.S.G. in exchange for this right. However, the applicant subsequently claimed (see paragraph 12 below) that she had paid 1,400 Lithuanian litai (LTL; approximately 405 euros (EUR)).

On 16 October 2001 the Šiauliai County Administration estimated that the value of the plot of land transferred to the applicant was LTL 2,124 (EUR 615). The Šiauliai County Administration then awarded the applicant the right of title to 1.78 hectares of land of equivalent value. The applicant registered the plot in the Land Registry under her own name.

In October 2004 the Special Investigation Service began investigating allegations of fraud, forgery of documents and abuse of office (under Articles 182, 228 and 300 of the Criminal Code) relating to the restoration of property rights by the Radviliškis Land Department. In January 2005 the prosecutor of the Šiauliai Region (hereinafter “the prosecutor”) launched a similar investigation. Subsequently, the two investigations were joined.

In May 2008 the prosecutor submitted a request to the Radviliškis District Court for the annulment of the agreement between the applicant and L.S.G. The prosecutor stated that L.S.G. had not had the right to the restitution of P.M. and E.M.’s land and thus could not legally have transferred that right to the applicant.

On 11 November 2008 the Radviliškis District Court granted the prosecutor’s request. The court held that L.S.G. had not been P.M. and E.M.’s relative or heir and thus, under the applicable law, had not been entitled to the restoration of title to their land (see paragraph 17 below). Therefore, the court declared the agreement between the applicant and L.S.G. null and void ab initio, confiscated the plot of land from the applicant, and returned it to the State.

During the proceedings the applicant claimed that she had paid LTL 1,400 (EUR 405) to L.S.G. for the right of title to the land, and L.S.G. acknowledged that she had received an unspecified sum of money. However, since no such payment had been mentioned in the text of their agreement, the court held that the right of title had been transferred to the applicant for free and did not award her any compensation.

On 17 February 2009 the Šiauliai Regional Court dismissed the applicant’s appeal and upheld the decision of the lower court. The court found that the applicant had not proved that she had paid for the transfer of the right of title. It also noted that under the Civil Code, property which had been unlawfully obtained for free could be confiscated from an owner, irrespective of whether the owner had acquired such property in good faith (see paragraphs 19 and 20 below).

On 22 April 2009 the Supreme Court refused to examine a cassation appeal lodged by the applicant on the ground that it did not raise any important legal issues.

On 23 January 2009 the prosecutor instituted criminal proceedings before the Šiauliai District Court against S.D., a former official in the Radviliškis Land Department. S.D. was charged with several counts of forgery of documents and abuse of office under Articles 228 and 300 of the Criminal Code. She was accused of, inter alia, having acted together with L.S.G. in forging documents which purported to prove L.S.G.’s right to the restoration of title to certain property, with the aim of selling that right to other individuals. The indictment noted that L.S.G. had received approximately LTL 1,400 (EUR 405) from the applicant in exchange for the right to the restoration of title to the property in question. At the time of the parties’ final submissions to the Court, the criminal case was still awaiting examination before the first-instance court.


Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Luis López Guerra

The applicant, Mr Adrian Dragomir, is a Romanian national who was born in 1989 and lives in Bucharest. He was represented before the Court by Ms E. R. Iancu, a lawyer practising in Bucharest.

The Romanian Government (“the Government”) were represented by their Agent, Mrs C. Brumar, from the Ministry of Foreign Affairs.

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

On 25 November 2010 criminal proceedings were instituted against the applicant and eight other co-accused in respect of fraud, forgery, use of forged documents, and money-laundering offences.

On 26 November 2010 the prosecutor’s office attached to the Bucharest County Court decided to place the applicant in pre-trial detention. An arrest warrant was issued against the applicant and the prosecutor’s order was confirmed by the court.

The applicant’s pre-trial detention was extended on successive occasions by court order.

On 8 April 2011 the applicant lodged an application with the court requesting revocation of the order for his detention. In an interlocutory judgment of 12 April 2011, the Bucharest County Court dismissed the applicant’s request. However, it replaced the applicant’s detention with an undertaking not to leave the city, given that the impact of his deeds on public order had diminished with the passage of time. It ordered the applicant’s release from detention.

The prosecutor did not appeal against the interlocutory judgment. Despite the fact that the judgment became final on 13 April 2011, the applicant was not released from Bucharest Prison until two days later, namely on 15 April 2011.

The relevant provisions of domestic law and practice regarding the award of compensation in the event of unlawful detention – namely Articles 504 and 505 of the Code of Criminal Procedure (CCP) and decision no. 45/1998 of the Constitutional Court – are to be found in Ogică v. Romania, no. 24708/03, § 56, 27 May 2010, and Degeratu v. Romania, no. 35104/02, § 59, 6 July 2010.

The Government submitted examples of case-law with the aim of showing that at present, in similar cases concerning unlawful detention, the system of legal remedies in Romania – including the direct applicability of the Convention and the Romanian Constitution – made it possible to make good any damage suffered.

In a judgment of 2 March 2007 concerning an unlawful detention for two days, the Mehedinți County Court allowed the action for compensation and awarded the claimant 1,000 Romanian lei (RON) (approximately 350 euros (EUR)). The Craiova Court of Appeal upheld that judgment and increased the compensation to RON 2,000 (approximately EUR 700). The appellate court held that, although Article 504 of the CCP was not applicable to the claimant’s situation, Article 23 and Article 52 § 3 of the Romanian Constitution and Article 5 of the Convention were applicable.

In another case, in a final decision of 13 June 2012 the Bucharest Court of Appeal allowed a tort action and awarded the claimant EUR 500 as compensation for an unlawful detention lasting twenty-two days. It held that – although Article 504 of the CCP was not applicable to the claimant’s situation – the claimant was entitled to compensation for unlawful detention.

In a judgment of 18 February 2010 the Vâlcea County Court awarded the claimant RON 30,000 (approximately EUR 7,400) by way of compensation for thirty-six days of unlawful detention. On 4 May 2012 the High Court of Cassation and Justice upheld that judgment. It noted that the claimant was entitled to compensation on the basis of Article 5 § 5 of the Convention, even though the extension of his detention by an additional thirty-six days after his prison sentence had been served had not been found unlawful by a decision of a prosecutor or a court, as required by Article 504 § 3 of the CCP.

By a decision of 17 March 2011 the Oradea Court of Appeal allowed an action for compensation for unlawful detention and awarded the claimant RON 500. It found that, although Article 504 of the CCP was not applicable to the claimant’s situation, he was entitled to compensation on the basis of Article 5 of the Convention. That decision became final on 6 March 2012, when the High Court of Cassation and Justice dismissed an appeal on points of law against it.


CASE OF KAHRIMAN v. BOSNIA AND HERZEGOVINA

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

The applicant was born in 1935 and lives in the United States.

On 18 August 2003 the applicant initiated civil proceedings against private persons concerning some contracts. On 6 June 2007 the Bijeljina Court of First Instance rendered a judgment. On 10 April 2009 the Bijeljina District Court quashed the first-instance judgment and remitted the case to the first-instance court for a retrial. On 19 May 2011 the Bijeljina Court of First Instance rendered a new judgment. That judgment was amended by the Bijeljina District Court on 23 September 2011 and by the Supreme Court of the Republika Srpska on 16 August 2012.

The applicant introduced a claim before the Constitutional Court, alleging that the above proceedings had been excessively long and requesting a financial compensation. On 17 June 2015 the Constitutional Court of Bosnia and Herzegovina found a breach of the applicant’s right to a trial within a reasonable time. It did not award any damages.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Myroslava Antonovych;Vincent A. De Gaetano

The applicant was born in 1974 and lives in Gadyach.

On 25 February 2004 the applicant was arrested in Gadyach by the Kharkiv Chervonozavodskiy District Police Drug Squad (Відділ по боротьбі із незаконним обігом наркотиків Червонозаводського районного відділу Харківського міського управління Міністерства внутрішніх справ України – “the Drug Squad”) and taken to Kharkiv. The applicant stated that he had been ill-treated by the police and that upon his arrest a police officer had hit him in the left eye.

On 19 July 2004 the Gadyachskiy District Court convicted the applicant of unlawful possession of weapons and drug trafficking and sentenced him to five years’ imprisonment, suspended for three years. On the same date the applicant was released.

On 27 November 2004 the applicant was diagnosed with a cataract and a subatrophy of the left eyeball. The only recommendation after the diagnosis was to avoid hypothermia. According to the applicant, he planned to have eye surgery. No medical evidence was submitted in this respect.

On 19 April 2005 the applicant was again arrested in Gadyach after selling drugs to D. and taken to Kharkiv by the Drug Squad. The applicant stated that he “had been beaten by the police after his arrest for three days simply because he had wanted to have a lawyer”. He further stated that “pending investigation” a gas mask had been put on his face with lit cigarettes inserted into the air valve.

On 20 April 2005 Kharkiv Hospital no. 11 issued a certificate stating that the applicant had head and left shoulder injuries, a haematoma on the left ear and had possibly suffered a closed craniocerebral injury. However, the certificate stated that the applicant could be detained, so long as he was under the supervision of a neurosurgeon.

On 22 April 2005 criminal proceedings on drug trafficking charges were instituted against the applicant and it was decided to arrest him.

On 29 April 2005 the Kharkiv Chervonozavodskiy District Court (“the Chervonozavodskiy Court”) remanded the applicant in custody.

On 5 May 2005 Kharkiv Hospital no. 11 issued a certificate stating that the applicant was suffering from the after-effects of a head injury but that he could be detained. He was also examined by an ophthalmologist and diagnosed with an old optic subatrophy in the left eye.

On 6 May 2005 the applicant was placed in Kharkiv Pre-Trial Detention Centre no. 27 (“the SIZO”). It was noted in his medical file that on 25 February 2004 he had suffered an eye injury and that on 19 April 2005 he had been suffering from a head injury. He was diagnosed with a cataract and with a subatrophy of the left eye.

On 3 June 2005 the Kharkiv Regional Prosecutor’s Office ordered the Head of the Kharkiv Regional Office of the Ministry of Internal Affairs of Ukraine (начальник Управління Міністерства внутрішніх справ України в Харківській області – “the regional head”) to look into the applicant’s complaints of ill-treatment.

On 21 July 2005 the regional head informed the applicant that the police officers involved had not broken any laws.

On 5 October 2005 the applicant asked the Chervonozavodskiy Court to obtain medical evidence from his SIZO medical file which would confirm the infliction of injuries on him.

On 25 October 2005 the applicant complained to the regional head that:

“... on 19 April 2005 police officers, M., S., Sh., K. and G., accompanied by two witnesses, arrived in Gadyach. Again on 20 April 2005 the same diagnosis [was established]: closed craniocerebral injury, facial fractures, nasal fracture, haematomas on the body, arms, legs and left ear, scratches.”

On 19 April 2006 the Chervonozavodskiy Court, examining the applicant’s case on the merits, ordered the Chervonozavodskiy District Prosecutor’s Office (Прокуратура Червонозаводського району м Харкова) to look into the applicant’s complaints of ill-treatment. The court noted that, according to the applicant, he had been beaten in Kharkiv by police officers M., S., Sh. and G., and that he had later been examined in Hospitals nos. 4 and 11.

On 27 June 2006 the Chervonozavodskiy District Prosecutor’s Office refused to institute criminal proceedings against the police officers. It was noted that the decision to arrest the applicant had been adopted on 22 April 2005 and that the applicant had been questioned on this date. He had refused to have a lawyer present. The applicant had never complained of any ill-treatment. The police officers had stated that they had never ill-treated the applicant. On the same date the Prosecutor’s Office informed the Chervonozavodskiy Court of the decision taken.

On 11 August 2006 the Chervonozavodskiy Court examined the applicant’s case. The applicant pleaded guilty to some of the charges and stated that he was a drug addict, that the confiscated drugs had been for his personal use only and that he had confessed to drug trafficking after being subject to physical pressure by the police. The court convicted the applicant of unlawful possession of weapons and drug trafficking and sentenced him to six and a half years’ imprisonment.

The applicant appealed against this decision. On 7 August 2007 he amended his appeal stating, inter alia, that on 12 May 2005 he had asked for the severity of his injuries to be recorded and that he had not been able to appeal against the decision of 27 June 2006 as he had not received a copy of it.

On 10 January 2008 the Kharkiv Regional Court of Appeal quashed the decision of 11 August 2006 and remitted the case for fresh consideration.

On 20 November 2008 the Chervonozavodskiy Court again convicted the applicant of unlawful possession of weapons and drug trafficking and sentenced him to five years and six months’ imprisonment. The applicant pleaded guilty. He did not appeal against the decision.

On 23 May 2009 the applicant was transferred to Poltava Correctional Colony no. 64. On 25 May 2010 he was released.

Between 17 and 28 January 2011 he was admitted to a hospital. He was diagnosed with hypertension, chronic cholecystitis, a cyst of left kidney and optic supatrophy in the left eye.

According to the Government, while in detention, the applicant was examined by an ophthalmologist on numerous occasions, namely on 17 and 22 August 2005 (on the latter date it was noted that the applicant’s state has improved), 23 September 2005, 23 November 2005, 16 and 19 October 2006 (it was noted that the applicant needed no maintenance treatment for his optic subatrophy), 16 July 2009 and 14 March 2010. On no occasion had any deterioration of the applicant’s state of health been established. When the applicant had complained of pain in his left eye, in particular, on 17 August 2005, 23 September 2005 and 23 November 2005, he had been prescribed treatment.

The applicant submitted that he had been taken to Kharkiv Ophthalmology Clinic but did not provide any further information in this respect.

On 16 July 2009 the applicant refused to be hospitalised in the ophthalmology department of the prison hospital at Correctional Colony no. 81.

According to the Government, the applicant had had the following consultations with other specialists:

(i) with a surgeon on 18 May 2006 (complaints about pain in the right leg, the applicant was prescribed medication) and 4 September 2007;

(ii) with a neuropathologist on 5 May 2005 and 13 June 2009;

(iii) with a psychiatrist on 18 May 2005 and 4 September 2007; and

(iv) with a general physician on 30 June 2005 (the applicant complained about a pain in the left eye and general weakness and was advised to see an ophthalmologist), 13 July 2005 (the applicant complained about pain in his back and was prescribed painkillers), 16 September 2005 (the applicant was issued a referral to a civil hospital in order to decide whether he is able to work and whether he falls into any disability group), 16 August 2006, 13 September 2006 and 4 September 2007.

On 18 December 2005, 6 June 2006, 13 September 2006, 12 October 2006, 9 January 2007, 27 October 2008, 12 January 2009 and 13 June 2009 the applicant underwent periodic medical screening.

On 10 May 2006 the applicant received treatment for a shoulder injury.

On 27 February 2010 the applicant complained of hypertension. He was offered an examination and, if necessary, treatment in the prison hospital, which he refused.


Alvina Gyulumyan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria

The applicant, Mr Daniel Alojz, is a Slovak national, who was born in 1956 and lives in Banská Bystrica.

The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.

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

On 3 and 5 April 2009, respectively, the applicant was arrested and remanded in custody pending trial on drugrelated charges.

On 28 October 2009, he submitted a request to the Trenčín District Court (Okresný súd), as the remand court, for his release. The request arrived there by mail on 30 October 2009.

As by law the request fell to be determined first by the Public Prosecution Service, the District Court sent it to the District Office of Public Prosecution, which dismissed it and returned the matter to the District Court on 18 November 2009.

The District Court scheduled an in-chambers hearing (neverejné zasadnutie) of the applicant’s request for 4 December 2009. However, the hearing was rescheduled for 18 December 2009 at the request of the applicants’ lawyer, who was unable to attend on the former date as she was to attend a conference.

Meanwhile, on 9 December 2009, the applicant was indicted to stand trial on the above-mentioned charges. As a consequence, the case was assigned to a new judge, as the trial judge.

Following the hearing of 18 December 2009 before the trial judge, on the same day, the District Court dismissed the request. When the decision was pronounced, the applicant immediately lodged an interlocutory appeal (sťažnosť).

The applicant’s appeal was dismissed by the Banská Bystrica Regional Court (Krajský súd) on 28 January 2010. The written version of that decision was served on the applicant through the intermediary of the District Court on 18 February 2010.

On 19 February 2010 the applicant lodged a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) with the Constitutional Court (Ústavný súd), concerning the length of the proceedings on his request for release of 28 October 2009.

On 20 April 2010 the Constitutional Court appointed a legalaid lawyer to represent the applicant. The lawyer restated the applicant’s complaint on 21 May 2010. In a standardised and prescribed form (petit), the lawyer directed the complaint against the District Court, alleging that the applicant’s right to a speedy review of the lawfulness of his detention had been breached in the proceedings on the applicants’ request for release of 28 October 2009. He claimed 1,500 euros (EUR) in damages.

On 22 June and 25 August 2010 respectively, the Constitutional Court declared the complaint admissible and found a violation of the applicant’s right to a speedy review of the lawfulness of his detention. It awarded him EUR 500 in respect of non-pecuniary damage.

The Constitutional Court observed that it had taken the District Court fifty-one days to decide on the applicant’’ rights.

The applicant unsuccessfully requested release also on other occasions, both prior to and after the request of 28 October 2009.

The trial on the merits ended with the District Court and the Regional Court convicting the applicant and sentencing him to ten years in prison on 23 February and 2 June 2011 respectively.

The applicant lodged an appeal on points of law, which was rejected on 29 February 2012. He subsequently sought the re-opening of his trial, but was unsuccessful.


Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)

André Potocki;Ganna Yudkivska;Síofra O’Leary

The applicant was born in 1979 and is currently serving a prison sentence in Ukraine.

On 29 October 2004 the applicant was arrested on suspicion of murder, robbery and attempted murder. He remained in police custody until 17 January 2005.

The applicant alleged that during his stay in police custody between 29 and 31 October 2004 he had been tortured by unspecified police officers, as a result of which he had confessed to having committed the crimes of which he was suspected. In the course of a medical examination on 1 November 2004 the doctors noted a number of bruises and lesions on the applicant’s limbs, chest and back The applicant alleges that no medical treatment was given to him for his injuries.

The applicant stated that he had subsequently brought his allegation of ill-treatment by the police before the trial courts but the courts had not responded to it. He provided no copy of his complaints.

On 1 November 2004 the applicant was taken to court; the court ordered his remand in custody pending completion of the criminal investigation against him.

On 17 January 2005 the applicant was placed in a cell in Kyiv Temporary Investigative Isolation Unit (“SIZO”) no. 13.

On 24 March 2005, following his conviction (see paragraph 21 below), he was transferred to a high-level security cell within the same SIZO for detainees sentenced to life imprisonment by a final judicial decision. From that day onwards the rules applicable to this latter category of detainees had also been applied to the applicant. In particular, his clothes were taken away from him and instead he was given special orange clothes bearing the words “life imprisonment” in large print on the front and back; when leaving his cell the applicant had at all times been escorted by a special unit of guards in black uniforms with masks covering their faces.

The applicant complained to the courts about the allegedly unlawful execution of his sentence. On 24 March 2006 the Shevchenkivskyy District Court refused to consider his complaint for lack of substantiation and failure to pay the court fee. The applicant did not appeal against that ruling.

On 14 December 2005 the applicant was placed in Sokalska Correctional Colony no. 47 (the “Sokalska Colony”). In March 2012 the applicant was transferred to the SIZO in Lviv, which was later reorganised as a detention centre for convicted prisoners.

According to the applicant, the conditions of his detention in the colony were debasing. In particular, he alleged that the drinking water and food had been of poor quality, that he had not received adequate medical assistance and that he had been subjected to psychological pressure by the colony staff.

The applicant raised those allegations before the prosecutors. On 23 June 2006, the deputy prosecutor responsible for supervising prison authorities’ compliance with the law informed him by letter that an inquiry had been carried out into his allegations but that it had not revealed any irregularities in his conditions of detention. According to the medical information submitted by the applicant, while in detention he had been medically examined and had been given the necessary treatment.

The applicant alleged that in the course of the investigations and the trial he had been prohibited from corresponding by ordinary mail with his relatives and his counsel and from making telephone calls. The applicant did not raise those allegations before the authorities.

Between 24 March and 4 August 2005 the applicant had four onehour visits from his mother and father.

The applicant stated, in general terms, that following his conviction on 24 March 2005 he had not been allowed to have long meetings with his relatives and that the duration and frequency of the short visits they had been permitted to make had been considerably limited. He provided no further details in that regard.

During his first interrogation, on 30 October 2004, the applicant had the assistance of a lawyer of his own choosing. The next day, due to the latter’s failure to appear, the applicant was assisted by a lawyer appointed for him by the authorities. On an unspecified date the applicant hired a new lawyer, who continued to defend him during the investigation and trial. The applicant’s mother also took part in the proceedings as the applicant’s representative.

In the course of the investigation and trial, the applicant admitted that he had committed the murders and the attempted murder of which he was suspected.

The criminal investigation of the applicant’s case was completed in January 2005. Subsequently, the criminal case was referred to the Kyiv Regional Court of Appeal for trial.

On 24 March 2005 the court found the applicant guilty of the aggravated murder of two persons ‒ one of whom was a minor ‒ and of the attempted murder of another person, with the aim of stealing the victims’ property. The court based its judgment on statements made by the applicant during the investigation and at the trial, the testimonies of one of the victims and six witnesses – one of whom had caught the applicant at the scene of the crime − and the conclusions of several forensic examinations, including a psychiatric examination which found that the applicant had been aware and in control of his actions at the time of the offences. The applicant was held to be exceptionally dangerous to society and was sentenced to life imprisonment, together with the confiscation of all his property.

The same judgment ordered his continuing detention in the Kyiv SIZO.

The applicant lodged an appeal. He contended that he had committed the crimes whilst of unsound mind and requested an additional psychiatric examination.

In his appeal, the applicant’s lawyer contested the first-instance court’s finding that the applicant had committed the murders with the aim of stealing the victims’ property.

On 4 August 2005 the Supreme Court upheld the judgment of 24 March 2005 and it accordingly entered into force on that date.

In December 2005 the applicant requested that the Kyiv Regional Court of Appeal provide him with copies of certain documents from his case file, including the verbatim records of his questioning during the investigation, the decisions concerning his detention, and various procedural decisions taken in the course of the investigation and trial, which he intended to submit to the Court in support of his application. In a letter dated 19 January 2006, a Court of Appeal judge informed the applicant that his request had been refused, pointing out that the procedure governing applications to the European Court of Human Rights did not require the submission of the documents of which the applicant had sought copies.

On an unspecified date the applicant’s mother, acting on his behalf, made similar requests, which were refused by the Deputy President of the Court of Appeal on 14 and 30 March 2006, on the same grounds.


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

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

The applicant was born in 1948 and lives in Bucharest.

As an officer in a subunit of the special anti-terrorist unit within the special forces for State security (hereinafter “the Securitate”), the applicant participated in the events which commenced in Bucharest on 21 December 1989 and led to the fall of the Ceausescu dictatorship on 22 December 1989.

The applicant was arrested by army forces and held in detention from 22 December until 23 December 1989. He was then held by the unit’s commander from 25 December 1989 until 2 February 1990. During this period of time, he was subjected to ill-treatment and, as a result, he suffered depression and he was placed on the officers reserve list on the grounds of poor health (see paragraphs 8 - 13 below).

On 29 April 1990 the applicant filed a criminal complaint with the military prosecutor, alleging that he had been ill-treated and illegally detained in the Securitate building and requesting the punishment of various officials, including the unit’s commander, G.A. The military prosecutor questioned the defendants and a large number of witnesses during the criminal investigation and gathered medical evidence.

On 2 December 1993 the military prosecutor found that the unit’s commander G.A. had been responsible for the applicant’s deprivation of liberty and his injuries; however, criminal proceedings could not be initiated because the commander had died.

On 16 December 1993 the applicant asked the military prosecutor to extend the investigation to other officials he alleged were involved, including doctor P.I. and various Securitate officers.

On 2 March 1995 the military prosecutor decided not to initiate criminal proceedings against the doctor P.I. on the ground that the constituent elements of the alleged offence were not present. Following the applicant’s appeal, this decision was set aside by a decision of 25 September 1996 and the investigation continued.

On 21 October 1997 the military prosecutor found doctor P.I. liable to pay an administrative fine; however, the type of offence he committed had been pardoned by a decree of July 1997. The military prosecutor discontinued the investigation in respect of the dead defendant, G.A. The criminal case related to the other defendants, the Securitate officers, was severed into separate proceedings.

On 20 February 1998 and 16 February 1999 the military prosecutor decided not to initiate criminal proceedings against some of the defendants as the applicant’s complaint had become partly statute-barred. The investigation into crimes allegedly committed by three of the defendants was severed and jurisdiction was relinquished to the prosecuting authorities at the High Court of Cassation and Justice in order to be joined to the main criminal investigation into the events of December 1989.

On 27 June 2005 and 23 August 2007 the applicant was heard as a witness and as a civil party in the main criminal investigation.

The most important procedural steps taken in the main criminal investigation are summarised in Association “21 December 1989” and Others v. Romania (nos. 33810/07 and 18817/08, §§ 12-41, 24 May 2011), and Alecu and Others v. Romania (nos. 56838/08 and 80 others, §§ 10-13, 27 January 2015). Subsequent developments are as follows.

Following the entry into force of the new Code of Criminal Procedure in February 2014, jurisdiction over the case was relinquished in favour of the military prosecutor’s office.

On 14 October 2015 the prosecutor’s office closed the main investigation, finding that the complaints were partly statute-barred and partly ill-founded. The parties have not submitted any information on whether there was an appeal against that decision.


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković

The applicant was born in 1982 and is currently serving a prison sentence in Lepoglava.

On 23 October 2008 I.P., a well-known Croatian journalist, and his business associate N.F. were killed by the explosion of an improvised device placed under I.P.’s car, which was parked in front of his publishing company. The explosion also caused injuries to two employees of the publishing company and considerable material damage on the surrounding buildings and nearby parked cars.

On 23 October 2009 the State Attorney’s Office for the Suppression of Corruption and Organised Crime (Ured za suzbijanje korupcije i organiziranog kriminaliteta; hereinafter: the “State Attorney’s Organised Crime Office”) indicted several persons in the Zagreb County Court (Županijski sud u Zagrebu) on charges of conspiracy to kill I.P. and for putting that into action. The applicant was indicted for having participated in the group by aiding and abetting the direct perpetrators.

On 3 November 2010 the Zagreb County Court found the applicant guilty as charged and sentenced him to sixteen years’ imprisonment.

The applicant’s conviction was upheld by the Supreme Court (Vrhovni sud Republike Hrvatske) on 8 February 2012.

Following the attack against I.P. and his publishing company, the intelligence available to the police showed that the applicant and several other persons could be implicated in the events and it was therefore decided to arrest them.

The Police Director (Glavni Ravnatelj Policije) issued an oral order that the arrests be carried out by an antiterrorist team of the Special Police Forces (Specijalna policija, Antiteroristička jedinica Lučko; hereinafter: the “ATJ”).

On 29 October 2008, at around 6.05 p.m., the ATJ stormed into the applicant’s flat, where he was at the moment together with his sister and grandmother.

According to the applicant, immediately after breaking into the flat, the AJT officers threw him on the floor and started punching him over the head and body.

According to the Government, an ATJ team of six officers broke into the applicant’s flat and ordered him to lie down. As he started resisting, the police officers applied the throwing technique of “foot sweep”, which made the applicant to lose his balance and while falling on the ground he hit the table with his head. He was immediately offered medical assistance but he refused.

A report available to the Court signed by the Commander-in-chief of the Special Police Forces (Zapovjednik Specijalne Policije) of 30 October 2008, which is essentially a verbatim of a report of one of the arresting ATJ officers (see paragraph 36 below), in its relevant part concerning the circumstances of the applicant’s arrest, reads:

“... the intervention with a view to arrest [the applicant] started by the ATJ officers forceful breaking the front doors using the [battering ram]. Inside the flat they found the suspect and an older woman to whom they issued several orders: “Police, lie down on the floor”. As the suspect resisted, two officers approached him and grabbed him by the arms but he continued to resist. [The officers] then applied the technique of foot sweep and pulled him to the ground. As he was still trying to set himself free he was handcuffed. While he was falling on the ground he hit the table with his face ... Afterwards ... [the officers] offered to the suspect medical assistance but he refused it saying that he felt good.”

According to the applicant, following his arrest he was blindfolded and taken to a remote place by a river, where he was again beaten up and his head was immersed in the water, forcing him to confess to the murders of I.P. and N.F. and some other crimes. The police officers also continued to beat him up while taking him to the police station.

According to the Government, following the applicant’s arrest he was taken to the parking area of the police station used by the Organised Crime Unit of the Zagreb Police Department (Policijska uprava zagrebačka, Sektor kriminalističke policije, Odjel organiziranog kriminaliteta; hereinafter: the “police”) where he was kept in the minivan of the ATJ in the period between 6.45 and 8.30 p.m., awaiting other suspects to be arrested and brought to the police station.

The available report of the arresting ATJ officer (see paragraph 36 below) in this respect indicates that the applicant was brought to the parking area of the police station at 7.00 p.m. where he was kept in the minivan of the ATJ until 7.40 p.m. and then surrendered to the police inspectors.

Once when he was brought to the police station on 29 October 2008 at around 8.30 p.m. the applicant was placed in a room under the control of two police inspectors M.A. and M.M.

According to reports of these two police inspectors dated 18 April and 14 May 2012 respectively, the applicant was for a while guarded by an ATJ officer but then, at unspecified time, they requested that officer to leave the room. The police inspectors also submitted that the applicant had been handcuffed when he was brought to the police station and then, at unspecified time but sometimes soon after his arrival, the handcuffs were taken off. They also acknowledged that they had seen visible injuries on the applicant’s head and nose for which he had been allegedly offered medical assistance but he had refused it. The emergency had been called in only after the order of their superiors.

The emergency service came to the police station on the same day at 10.55 p.m. The relevant record of the applicant’s examination, in so far as legible, reads:

“Brought to the police station. Visible open injury above the left eye; 1,5 centimetre long. Contusion and haematoma of the nose with the possible fracture. Regular general status. The patient refuses to go to the hospital and further treatment.”

The applicant stayed in the police station until 30 October 2008 at 8.30 p.m. During that period he was taken to searches of his house and car and he was questioned by the police inspectors M.A. and M.M. in the presence of a lawyer and a Deputy at the State Attorney’s Organised Crime Office.

According to the applicant, throughout his stay in the police station he was tightly constrained, beaten and threatened that he should make no problems concerning his injuries.

According to the Government, during his stay in the police station the applicant was kept in one of the offices ordinarily used by the police officers. Apart from several minutes upon his arrival to the police station, the applicant was not handcuffed. He also had access to the toilet and drinking water. He was obliged to sit on a chair as there were no beds but it was impossible to take him to the detention unit as the investigative actions were still ongoing. In any case, he had an opportunity to ask for a rest and food but he did not make any such request.

On 30 October 2008, at around 8.30 p.m., the applicant was taken to the Police Detention and Escort Unit (Jedinica za zadržavanje i prepratu; hereinafter: “JZP”) for a rest. A report accompanying his transfer, signed by the Chief of the police and dated 30 October 2008 indicated, inter alia, that he had no visible injuries.

A report signed by the on-duty officer at JZP, dated 30 October 2008, indicated that the applicant was admitted to the detention unit with visible injuries of his face.

According to the applicant, during his stay in JZP he was offered a sandwich but he could not eat due to a strong jaw pain.

According to the Government, during his stay in JZP the applicant was placed in a room which was equipped with beds and sanitary facility. The room was appropriately heated and ventilated and had access to natural and artificial light. The hygiene and sanitary conditions were good and the applicant was provided with food and water.

On 31 October 2008 at 9.15 a.m. the police took the applicant from JZP to participate in a further search of his premises.

On the same day, at around 6.45 p.m., the applicant was brought for questioning before an investigating judge of the Zagreb County Court. He decided to remain silent concerning the charges held against him, but with regard to his injuries the applicant stressed:

“The only thing I would point out is that before I was taken in [to the police station] I fell in my flat and according to the findings of the doctors who were called in to the police station, I sustained a nose fracture, most probably with dislocation. I refused the medical assistance in order to get out from the police station as soon as possible.”

The investigating judge put no additional questions concerning this matter nor did he take any further actions in that respect.

Following the applicant’s questioning, an investigation into the explosion was opened in respect of him and several other persons. At the same time, an investigating judge of the Zagreb County Court ordered his pre-trial detention.

On 3 November 2008 the applicant was examined in Zagreb Prison Hospital (Zatvorska bolnica u Zagrebu) and several medical records were drafted.

One medical record available to the Court indicates that the applicant sustained his injuries after a fall on 30 October 2008, whereas two other medical reports refer to several blows on the applicant’s head and nose.

Based on his medical examination in Zagreb Prison Hospital, the applicant was diagnosed with contusions of head, nose and shoulder and a nose fracture without dislocation, as well as a distortion of a metal implant in his hand related to an old injury. His general medical condition at the time was regular and he had a smaller hematoma on the left side of his head and nose and smaller hematomas below both eyes. He also had a smaller hematoma on the left shoulder and a visible dislocation of the metal implant in his hand but without a fresh fracture. In July 2009 the applicant again saw a doctor who indicated testicular problems.

On 29 October 2008 one of the arresting ATJ officers reported on the applicant’s arrest to the Commander of the ATJ. In his report, he indicated that the ATJ had been requested to arrest the applicant in connection with a suspicion of double murder. The report also provides the details of the arrest already observed above (see paragraphs 15 and 18 above).

On 30 October 2008 the Commander of the ATJ requested the Commander-in-chief of the Special Police Forces to assess the lawfulness of the ATJ’s actions; and the latter forwarded that request to the Police Director.

On the same day the Police Director assessed the reports concerning the ATJ actions by indicating the following:

“This is to inform you that I find the use of force, namely the physical force and the measures of restraint, used by the ATJ team on 29 October 2008 during the arrest of Amir Mafalani ... lawful within the meaning of sections 54, 55 and 57 of the Police Act and sections 30, 31, 32 and 35 of the By-law on the police conduct.”

In October 2011 the applicant, through lawyers, requested Zagreb Prison Hospital and the emergency services to provide him the relevant medical records concerning the injuries he had sustained during his arrest on 29 October 2008. He also requested the police to provide him the relevant documents related to his arrest.

On 2 November 2011 the police replied that all relevant reports were confidential and could not be disclosed. This reply was forwarded for information to the State Attorney’s Organised Crime Office.

On 11 November 2011, after receiving the reply, the applicant complained to the State Attorney’s Organised Crime Office asking why an effective investigation, within the meaning of Article 3 of the Convention, had not been conducted.

The State Attorney’s Organised Crime Office replied on 16 November 2011, indicating that the applicant should consult the relevant domestic law on the use of police force and that, in case of any complaint to that effect, he could always lodge a criminal complaint with the competent State Attorney’s Office.

In the meantime, the applicant obtained the requested medical records.

On 15 February 2012 the applicant lodged a criminal complaint with the Zagreb Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Zagrebu) against unidentified perpetrators alleging ill-treatment during his arrest and stay in the police station.

On 20 February 2012 the Zagreb Municipal State Attorney’s Office informed the applicant that his criminal complaint had been forwarded to the Zagreb County State Attorney’s Office (Županijsko državno odvjetništvo u Zagrebu) for further examination.

On 3 March 2014 the Zagreb County State Attorney’s Office rejected the applicant’s criminal complaint on the grounds that there was no reasonable suspicion that a criminal offence had been committed. It relied on a written report of the Police Director and written reports of the police inspectors M.A. and M.M. It also observed the applicant’s medical documentation and search and seizure records as well as the interrogation records in the criminal proceedings against him.

On 31 January 2012 the applicant instituted civil proceedings in the Zagreb Municipal Civil Court (Općinski građanski sud u Zagrebu) against the State claiming damages in connection with his alleged ill-treatment by the police during his arrest and stay in the police station.

The Zagreb Municipal State Attorney’s Office, representing the State, challenged the applicant’s civil action on the grounds that the police had acted in accordance with the law and that their use of force had been caused by the applicant’s conduct.

During the proceedings, the Zagreb Municipal Civil Court heard the applicant and several witnesses, including the applicant’s sister and grandmother, one of the applicant’s co-suspects and the police inspectors M.A. and M.M. , as well as the Police Director.

The applicant’s grandmother testified that she had seen the police officers immediately attacking and hitting the applicant as they had entered the flat, and his sister confirmed that she had heard him screaming and had also seen him being dragged around by the police.

The applicant’s co-suspect in his testimony submitted that he had seen the applicant seriously injured in the police station, while the police inspectors M.A. and M.M. denied any ill-treatment, as did the Police Director who also stated that the police had monopoly of the use of force.

In his statement of 14 January 2015 the applicant contended that during his arrest he had been severely beaten by the ATJ officers all over his head and body. Afterwards he had been taken near a river and again beaten, subjected to mock execution and immersed in the water. When he was finally brought to the police station, the uniformed police officers continued to beat him with the acquiescence of the police inspectors M.A. and M.M. He was also tightly constrained to a chair and at one point, while he was dragged from one office to another, he felt strong pain in his shoulder. Later on, during his transfer to the investigating judge, two uniformed police officers who escorted him said that he should say nothing about the ill-treatment and that he would soon go home. In the ensuing period, he started feeling various health problems related to the ill-treatment and has been seeing doctors regularly.

The civil proceedings are still pending.


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

Branko Lubarda;Dmitry Dedov;Luis López Guerra

The list of applicants and the relevant details of the applications are set out in the appended table.

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


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

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

The first applicant was born in 1978 and lives in Constanţa.

On 30 June 2005 he was placed during his pre-trial detention in Poarta Albă Prison. On 9 November 2006 he was convicted of drug trafficking and sentenced to eight years’ imprisonment by the High Court of Cassation and Justice. He served his sentence in the same prison until 16 February 2010, when he was conditionally released.

The first applicant alleged that there had been severe overcrowding, having had to share cells measuring 35 sq. m. with fourteen other prisoners without proper ventilation. He further alleged that there had been a severe lack of hygiene, no provision of hygiene products, a lack of heating during the winter, a lack of bedclothes, an infestation of lice and bugs in the cells, as well as frequent water and power cuts and poor quality water.

In addition, he alleged that strip-searches were conducted regularly on groups of prisoners in the prison yard, even during the winter, with prisoners being bullied by guards. In this connection, the first applicant submitted statements made by three inmates who declared seeing such a search conducted on prisoners, including the first applicant, in December 2006.

The Government submitted that Poarta Albă Prison had been built in 1949 and that no changes were made to the size of the cells since. They further submitted that the prison authorities held no information with respect to the number of persons with whom the first applicant had shared his cell before 5 February 2010, the date a regulation requiring such statistics to be logged entered into force. Hence, between 5 and 16 February 2010 the first applicant had been placed in a cell measuring 68.09 sq. m, which he shared with fourteen other inmates.

With respect to hygiene conditions, the Government mentioned that all prisoners had unrestricted access to water and sanitary facilities, while access to showers was allowed twice per week. In addition, hygiene products and bedclothes were provided to all prisoners in accordance with the regulations and within the limits of the budget available. The Government also mentioned that internal prison regulations provided that prisoners could bring or buy their own hygiene products or bedclothes – the first applicant had been given permission to receive bedclothes from his family on two occasions. The Government also submitted that, according to the governor of Poarta Albă Prison, regular disinfections had been carried out between 2005 and 2010.

The Government further contended that Poarta Albă Prison had its own heating system with wood-burning stoves and a heating program which provided adequate warmth. In this connection, they submitted documents showing that between 2008 and 2010 certain quantities of wood were consumed each year, while certain quantities remained unused.

Lastly, according to documents submitted to the Government by the prison governor, potable water and food were tested regularly and were in compliance with hygiene standards.

On 6 June 2013 the applicants’ representatives at the time informed the Court that the applicant Andrei Dumitrof no longer wished to pursue his application.

Two letters, in which Mr Dumitrof’s attention was drawn to the fact that the Court may strike a case out of its list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue the application, were sent by the Court by registered mail directly to him on 30 July and 29 October 2013. The letters remained unanswered and were returned to the Court on 25 September and 5 November 2013 marked “Unknown recipient” and “Recipient moved from the address” respectively.


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

Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicants complained of the excessive length of criminal proceedings. In some of the applications, the applicants also raised complaints under other provisions of the Convention.


CASE OF YABLOKO RUSSIAN UNITED DEMOCRATIC PARTY AND OTHERS v. RUSSIA

Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Stand for election);No violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Vote)

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

The Republic of Karelia (“Karelia”) is a subject (constituent region) of the Russian Federation. Under Article 73 of the Constitution of the Russian Federation, subjects of the Federation possess the full authority of the Russian State in all matters other than those that come within the sole jurisdiction of the federal government or within the shared jurisdiction of federal subjects and the federal government to the degree of the latter’s scope of authority.

At the relevant time, the Legislative Assembly of Karelia (hereinafter “the LA”) had fifty members elected by universal direct suffrage for a five-year term. Twenty-five seats were allocated on a proportional representation basis to registered party lists receiving at least 7% of the region-wide vote, while the remaining seats were allocated to the winners of twenty-five single-mandate constituencies, determined by majority vote. There was no minimum turnout for the election to be valid, and each voter could only vote for one party and one candidate in the electoral constituency in which he or she resided.

The regional branch of the Yabloko political party was registered by a competent State authority (at that time the regional department of the Ministry of Justice) in 2002.

On 26 April 2006 the regional council of the applicant party called for a regional party conference to be held in two sessions on 27 May and 12 August 2006, respectively. The aim was to prepare for the LA elections that were to take place in autumn 2006.

Between 27 April 2006 and 26 May 2006 local party branches throughout Karelia held assemblies and conferences in accordance with the Yabloko party’s articles of association (hereinafter, “the charter”) and selected delegates to attend the regional party conference. At the time, the regional party had over 3,800 members, of whom 474 were so-called “registered party members”, that is, members who had specifically asked to be registered with the local party bodies in order to participate more actively in the party’s work, such as regional conferences. As a result, the 474 registered members elected forty-seven delegates to the regional conference.

On 27 May 2006 thirty-seven delegates present at the conference expressed their desire to participate in the upcoming LA elections. The nomination of candidates to the party list and electoral circuits was left to the second session scheduled for 12 August 2006.

On 10 and 11 June 2006 the Yabloko party at national level held its Thirteenth Party Congress, which adopted several amendments to the party’s charter. The charter maintained the division between party members and registered party members. In accordance with paragraph 9.1.14 of both versions the right to elect and be elected to the party’s governing and controlling bodies was reserved to registered members. The 2006 version specified, additionally, that party members who did not register automatically delegated the right to elect and be elected within the party to the registered party members of the relevant local branch.

On 4 July 2006 the LA set an election date of 8 October 2006.

On 27 July 2006 the amendments to the Yabloko national party charter were registered with the Federal Registration Service, upon which date they came into force.

On 12 August 2006 the regional party conference resumed. Thirty-seven of the forty-seven party delegates were present, and a quorum was declared. In accordance with the party’s charter, the conference nominated a 25-member party list and candidates for three electoral constituencies by secret ballot. The second and third applicants were chosen to run for office in two single-mandate constituencies.

The conference was attended by two representatives from the Karelia Directorate of the Federal Registration Service of the Ministry of Justice, and two members of the Central Electoral Commission of the Republic of Karelia (“the Electoral Commission”). At that time they did not report any irregularities in the conduct of the regional party conference.

On 16 August 2006 the applicant party submitted documents to the Electoral Commission in order to participate in the forthcoming election. On 21 August 2006 it paid the requisite deposits (150,000 Russian roubles (RUB) in respect of the party list and RUB 60,000 in respect of each of the three single-mandate candidates).

On 17 and 22 August 2006, after reviewing the documents, the Electoral Commission issued Orders nos. 65/343-3 and 66/352-3, by which it registered the applicant party’s three candidates, including the second and third applicants, and the party list.

On 31 August 2006 the Karelia Directorate of the Federal Registration Service wrote to the Electoral Commission and informed it that the party conference of 12 August 2006 had been based on the participation of registered party members, and not party members in general. It referred to the provisions of the legislation on political parties (see below) which guaranteed equal rights of participation in party activities for all members. It argued that the party could not make a distinction between registered and other party members for the purposes of internal activities. As such, the conference of 12 August 2006 had been held in breach of the applicable legislation.

On 8 September 2006 the Electoral Commission applied to the Supreme Court of the Republic of Karelia (hereinafter the Karelia Supreme Court) to annul its own decision to register the party list and single-mandate candidates. Referring to the letter of 31 August 2006, the Commission referred to the provision of the Basic Guarantees Act allowing the judicial annulment of the registration of individual candidates and party lists where “new facts” had come to light showing a violation of federal or regional law regulating the nomination of candidates.

In the meantime, on 11 September 2006 the Electoral Commission wrote to the head of the Federal Registration Service and informed him of the application lodged with the court. It also enquired which version of the charter should be applicable to the party conference of 12 August 2006 since the party had submitted the 2004 version to the Commission.

On 12 September 2006 the Federal Registration Service replied to the Electoral Commission that the new charter had been registered by that service on 27 July 2006 and that on the same day the old version of the document had ceased to be valid. The regional party should therefore have submitted the new version as the one applicable to their conference of 12 August 2006. At the same time, the Service stated that in June 2006 Yabloko had received a warning from it in connection with its differentiating between registered and other party members, and that the new version of the charter had contained provisions designed to correct that. In view of those considerations, the decision of the regional conference of 12 August 2006, which had been based on the previous version and had taken only registered members into account, could be seen as being in breach of the relevant legislation.

On 15 September 2006 the Karelia Supreme Court allowed the application of the Electoral Commission and annulled the decisions of 17 and 22 August 2006 to register the applicant party’s list and candidates. It referred to the conclusions of the Federal Registration Service and found that the procedure whereby only registered members had taken part in the decision-making process had contradicted the legislation on elections and on political parties. It also noted that the party had submitted an invalid version of its charter.

More specifically, the court concluded that the annulment decision was justified because the participation of a minority of the party’s regional membership in the nomination process had thwarted “the will of the majority”, finding as follows:

“If one takes a formal approach to the problem it seems that all the requirements governing the nomination of the lists of candidates were observed.

At the same time the court believes that the procedure for the nomination of the lists of candidates [to the LA] was breached.

It was established at the court hearing that only so-called ‘registered members of the party’ participated and nominated the lists of candidates [to the LA] at the regional conference.

What is the difference between ‘registered members of the party’ and ‘unregistered members’? Let us turn to section 7 of the party’s charter...

The practice of applying these provisions of the charter in the party’s regional division in the Republic of Karelia is such ... that members of the party determine themselves whether to actively participate in the work of the regional branch of the party or to participate [only] as needed ... Accordingly, they decide whether to register with the regional branch or not. If a party member asks to be registered, one of the local branches, or the regional one, registers him with the [relevant] branch. From that moment the party member obtains the rights provided for by p. 9.1.14 of the charter...

It is impossible to agree with applying the party’s charter in such a way. ...

Section 8.4 of the [Political Parties Act] states that political parties should provide an equal opportunity for representation in a party’s governing bodies, in election lists and other positions ... Section 23.4 and 5 of the [Political Parties Act] establish that members of political parties take part in its functioning, have rights and bear obligations in line with the charter. Members have the right to elect and be elected to the party’s governing bodies, ... receive information about the party’s activities and the work of its governing bodies. However, this right, under p. 9.1.14 of the [Yabloko] charter, is reserved to a limited number of persons – ‘registered members’ – which in turn breaches the principle of the equality of party members as set out in Section 8.1 of the [Political Parties Act].

As a result, while the number of party members in Karelia was 3,824 (1 April 2006), the Conference was attended by 37 delegates who represented 394 registered members (15% of the total number of members). ...

A democratic regime is characterised by the wide participation of the population in forming the organs of State authority and a wide spectrum of political rights and freedoms for citizens governed by the rule of law, the protection of the rights and legal interests of citizens and others. One can imagine that those exact same elements should appear in the activities of any democratic party.

The Constitutional Court of the Russian Federation has emphasised the significance of the principle of the mandatory will of the majority, pointing out that ‘...elections as a means of determining the will of the people and forming the corresponding legitimate organs of State authority and local government, on whose behalf they exercise public authority, is based on the priority of the will of the majority of voters taking part in the vote’ (ruling of the Constitutional Court of 5 November 1998...).

This principle applies with equal measure to the nomination of lists of candidates to [the legislature], since the basis for forming the representative bodies are the [candidates] nominated by political parties.

In this specific case the principle of the ‘will of the majority’ was violated.

In such circumstances, the court believes that the order for submitting electoral lists of candidates to the Karelia LA has been breached.”

The court dismissed the applicant party’s argument that interpreting the law in such a way constituted interference by the State authorities with the party’s internal organisation. The court responded by saying that it had been the conference’s duty to ensure compliance with the applicable legislation.

Lastly, the court noted that the party had submitted an invalid version of its charter. As a consequence, the court cancelled the registration orders of 17 and 22 August 2006.

The applicant party lodged an appeal against that decision with the Supreme Court of the Russian Federation. It stressed that the difference in treatment between registered and other party members could not be regarded as a “newly discovered fact” since it had been based on the party’s charter of 2004, which had been registered with the relevant service. A record of the entire proceedings of the conference had been submitted to the Karelia Registration Service, together with a copy of the charter on which both stages of the conference had been based. The party also pointed out that the Service had had two members present at the conference in August 2006, and therefore should have been fully aware of the procedure applied.

On 29 September 2006 the Supreme Court of the Russian Federation dismissed the applicant party’s appeal, with reasoning that was similar to that of the Karelia Supreme Court.

As a result of the annulment order coming into force the applicant party lost its election deposits.

On 8 October 2006 elections to the Fourth Legislative Assembly took place. The party list and the single constituency candidates nominated by the applicant party were not present on the ballot. The fourth applicant submitted that she had cast a ballot for the Yabloko party list, but that her choice had not been counted in the election results.

The Government submitted the following information about the elections which took place on 8 October 2006. Seven parties competed for places in the regional assembly: the Karelia branch of the Communist Party of the Russian Federation (KPRF) (obtained 12.77% of the votes cast), the Party of National Resurrection “People’s Will” (1.58%), the regional branch of the Patriots of Russia party (4.39%), the regional branch of United Russia (38.92%), the regional branch of the Liberal-Democratic Party of Russia (LDPR) (8.86%), the regional branch of the Russian Party for Life (16.19%) and the regional branch of the Russian Pensioners’ Party (12.06%). The total number of people who voted in the elections was 183,503, or 32.98% of the electorate.

The Government also presented information about the subsequent election to the Karelia LA, in which Yabloko candidates had participated. That election took place on 4 December 2011 and had five parties competing. Yabloko obtained 7.13% of the votes and had deputies elected to the LA. A total of 50.03% of voters took part.