Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska

The applicant was born in 1959 and lives in Belgium.

He was an independent journalist, satirist and poet who at the relevant time was working for the Azadliq newspaper.

At around 5 p.m. on 23 June 2006 the applicant met a friend at the Gozel Mekan café in Baku where they had a meal. At 7 p.m. they left and the applicant took a taxi home.

Shortly after the taxi moved off, it was stopped by four plain-clothes agents of the NDMIA. Without showing themselves, they dragged the applicant into a Jeep. He was not informed of the reasons for his arrest. After his arrest they restrained his hands and only after some time, when the vehicle was moving, did they inform him that they were police officers.

According to the applicant, as he was in shock during his arrest, he did not immediately notice that the officers had planted some drugs on him. However, he later realised that one of the officers, A.A., had slipped narcotic substances into his pocket, taking advantage of the fact that the other officers had restrained his hands.

The applicant was taken to the NDMIA, where a search was conducted. According to record no. 94 on carrying out operational measures and the seizure of physical evidence (əməliyyat tədbirinin keçirilməsi və maddi sübutun götürülməsi barədə protokol), it was carried out at 7.20 p.m. on 23 June 2006 in the presence of the applicant, some police officers and two attesting witnesses. It appears from the record that the applicant was not represented by a lawyer. During the search, 9.264 grams of a substance similar to heroin was found in his left trouser pocket. He signed the record to say that he drank alcohol, but did not use or sell drugs. He further indicated that the drugs found did not belong to him, but that he could not explain where they had come from. Moreover, it appears from record no. 95 in the case file that the search was filmed. Despite the Court’s explicit request to the Government to submit a copy of the video-recording, they did not do so.

Following the search, at around 7.45 p.m., the applicant was taken to the Republic Narcotics Clinic, where he underwent a urine test to determine his state of intoxication. According to him, the urine test was also a drugs test and after examination the doctor, R.M., stated that he was in a state of intoxication but was not a drug user. Record no. 1/4104 was compiled the same day containing details of the urine test. Despite the Court’s explicit request to the Government to submit copies of all documents relating to the proceedings in question, the Government failed to provide the Court with a copy of the record in question.

The Government did not submit any comments in respect of the applicant’s version of events.

It appears, however, from police report no. 922 dated 23 June 2006 submitted by the Government that on that date an operation was planned for the applicant’s arrest on the basis of operational information (əməliyyat məlumatları) suggesting that an individual named Sakit was a drug dealer and had been involved in drug dealing near the Gozel Mekan café. It was also noted in the report that he had obtained drugs from A., who lived in Veravul, a village in the Lankaran region.

It further transpires from the documents submitted by the Government that at 10.55 p.m. on 23 June 2006 a police investigator drew up an official record of the applicant’s arrest (cinayət törətməkdə şübhəli şəxsin tutulması haqqında protokol). The relevant part of the record reads as follows:

“Reason for arrest: In accordance with Article 148 of the Code of Criminal Procedure of the Republic of Azerbaijan. 9.264 grams of heroin, which constitutes a large quantity of narcotic substances and shows the commission of the criminal offence provided for by law, were found on Zahidov Sakit Salim oglu’s person and clothes.”

The record was drawn up without a lawyer present and was signed by the applicant and the investigator.

On 23 June 2006 a police investigator instituted criminal proceedings against the applicant under Article 234.4.3 (illegal preparation, production, possession, storage, transportation and sale of a large quantity of narcotic substances) of the Criminal Code. The decision relied on the fact that following a search that day 9.264 grams of heroin had been found on him.

At 11 p.m. on 23 June 2006 the investigator questioned the applicant as a suspect in the presence of his lawyer. It appears from the record of the questioning that in reply to the question regarding where, when and why he had obtained the heroin found on him, the applicant answered that he did not know when or where the drugs in question had been planted in his pocket. In reply to another question regarding whether he sold drugs, the applicant stated that it could be seen from his examination by the doctor that he did not use or sell drugs.

On 23 June 2006 the investigator separately questioned two attesting witnesses who had participated in the search. Their statements were identical in their wording. They stated that they had seen the drugs found in the left trouser pocket of the applicant, who had stated after the search that the drugs did not belong to him.

On the same day the investigator separately questioned four police officers who had participated in the arrest and search. Their statements were identical in their wording. They stated that they had received operational information that some drug dealers had been operating near the Gozel Mekan café, so they had gone to the area to determine who they were. Once they arrived, they stopped a taxi because an individual, who appeared to be in a state of intoxication and had caught their attention by his suspicious behaviour, had just taken the taxi in question. This individual, whose identity was later established, was then taken to the NDMIA where the drugs were found on him.

On 24 June 2006 the applicant was charged with illegal possession of a large quantity of narcotic substances with intent to sell under Article 234.4.3 of the Criminal Code. On the same day a judge of the Nasimi District Court, relying on the official charges brought against the applicant and the prosecutor’s request to apply the preventive measure of remand in custody, ordered his detention for a period of three months.

On 30 June 2006 the Court of Appeal upheld the detention order of 24 June 2006.

On an unspecified date in June 2006 (the date of the record of the questioning is illegible) the applicant was questioned by the investigator as an accused in the presence of his lawyer. He maintained his initial statement, pointing out that the drugs did not belong to him and had been planted.

On 1 July 2006 the investigator ordered a forensic medical examination to establish whether the applicant was a drug addict. On the same day the investigator also ordered a forensic chemical examination of the drugs found on him.

On 5 July 2006 experts issued an opinion (no. 1026) concerning the forensic medical examination. The part concerning drug use by the applicant reads as follows:

“[The applicant] denies that he uses narcotic substances. He denies that the...heroin found in his trouser pocket and seized belongs to him. He does not give complete information about his history of drug use. He tries to hide his abuse of narcotic substances. During the examination no signs of obvious abstinence were revealed. He has developed an initial pathological tendency (ilkin patoloji meyl) towards narcotic substances. A psychological dependence on the use of narcotic substances is observed. A physical dependence on the use of narcotic substances is not currently observed. He denies taking narcotic substances by injection.”

The conclusion of the opinion reads as follows:

“During the examination it was established that Zahidov Sakit Salim oglu suffers from drug addiction at the initial stage (başlanğıc mərhələli narkomaniya xəstəliyi). This is confirmed by there being an initial pathological tendency towards narcotic substances, the results of the objective examination and the material of the criminal case. Taking into consideration that there are currently no signs of abstinence or drug intoxication and the fact that he has criticised himself for his situation, there is no need for his compulsory drug intoxication. It is advisable to register him at the local narcotics clinic.”

The opinion was established on the basis of the applicant’s “general features”, without a blood or urine sample being taken.

On 5 July 2006 the chemical expert issued opinion no. 6930 finding that 9.228 grams of yellow sandy matter submitted for examination was home-made heroin.

On 22 July 2006 the applicant and his lawyer were provided with a copy of the forensic medical opinion of 5 July 2006. The applicant immediately complained to the investigator in charge of the case, contesting its conclusions. He asked the investigator to order a “commission forensic examination”, indicating that he was not suffering from drug addiction. He further complained that the drugs found on him had been planted during his arrest by officer A.A., who had taken advantage of the fact that the other police officers had restrained his hands.

On 24 July 2006 the investigator dismissed his complaint, indicating that there were no grounds to doubt the conclusions of the forensic medical opinion. As to the allegation that the drugs had been planted by the police, the investigator found it unsubstantiated, indicating that the applicant had not made any such statement when questioned after his arrest.

On 29 July 2006 the investigator issued a bill of indictment under Article 234.4.3 of the Criminal Code and filed it with the Assize Court.

In the course of the proceedings before the Assize Court the applicant claimed that he was innocent, insisting that the criminal case against him had been fabricated because of his journalistic and political activity, and that the drugs had been planted on him by the police officers. In this connection, he firstly submitted that the search of his person had not been carried out immediately after his arrest in the presence of the taxi driver or other individuals present at the place of his arrest, but at the NDMIA. He further submitted that the police had failed to search the taxi in which he had been arrested. However, if he had really had the drugs in his pocket, he would have thrown them into the taxi before his arrest. The police had not carried out a “real” search and had only found the drugs they had planted on him, otherwise they would have also searched the taxi. Moreover, they had failed to take its number plate and identify the driver. The applicant also pointed out that the identity of A., from whom he had allegedly obtained the drugs, had never been established by the investigation. Lastly, he submitted that in any event the drugs found on him could not be used in the proceedings because they had been obtained in breach of the relevant procedural requirements. In particular, he pointed out that Articles 207.4 and 217.1 of the Code of Criminal Procedure did not allow investigating authorities to carry out any investigative measures except an examination of the scene of the incident before the institution of criminal proceedings. However, in the present case a search of the applicant was carried out before the adoption of the investigator’s decision in that regard.

At the hearing, the Assize Court heard the police officers who had carried out the arrest and search of the applicant. They confirmed their statements made during the investigation. Moreover, officer A.A. stated that he had not planted anything on the applicant, and that the applicant had lied about this.

On 4 October 2006 the Assize Court, having reclassified the criminal charges, found the applicant guilty under Article 234.1 of the Criminal Code (illegal possession of a quantity of narcotic substances exceeding that necessary for personal use without intent to sell), and sentenced him to three years’ imprisonment. The part of the judgment concerning his conviction reads as follows:

“It appears from opinion no. 1026 dated 05.07.2006 of the forensic narcotics examination that it was established during the examination that Zahidov Sakit Salim oglu suffers from drug addiction at the initial stage. This is confirmed by there being an initial pathological tendency towards narcotic substances, the results of the objective examination and the material of the criminal case. Taking into consideration that there are currently no signs of abstinence or drug intoxication and the fact that he has criticised himself for his situation, there is no need for his compulsory drug intoxication. It is advisable to register him at the local narcotics clinic.

The above-mentioned opinion was confirmed at the court hearing by addiction specialist I.F. from the Republic Narcotics Clinic, who was heard as an additional witness.

It appears from forensic opinion no. 6930 dated 05.07.2006 ... that 9.228 grams of yellow sandy matter rolled in cigarette paper submitted for examination in an envelope was home-made...heroin.

The accused S. Zahidov’s commission of the above-mentioned criminal offence was therefore fully proved in court. [His] statement that the narcotic substances found on him had been planted in his pocket by the police is defensive in nature and was not confirmed during the court examination.

The court notes that the investigating authority accused S. Zahidov under Article 234.4.3 of the Criminal Code, indicating in the bill of indictment that [he had] obtained the 9.264 grams of heroin found on him, which constituted a large quantity of narcotic substances with intent to sell.

The investigating authority’s conclusion was not proved at the court hearing. In fact, when charging S. Zahidov with this criminal offence, [it] relied on the fact that the 9.264 grams of heroin found on him constituted a large quantity of narcotic substances and considered this as illegal possession with intent to sell, but failed to collect any evidence proving the intent to sell or to refer to such evidence in the bill of indictment. However, it does not transpire from the material of the case file or the statements of the persons heard in court that S. Zahidov obtained these narcotic substances with intent to sell. The individual to whom S. Zahidov would sell the narcotic substances was not identified during the investigation or court examination. The statements of the police officers involved in the operation made during the investigation and before the court – that they had information that S. Zahidov had obtained the narcotic substances with intent to sell – are not supported by any plausible evidence. Moreover, the fact that the narcotic substance was in the same fold and undivided also confirms that it had not been prepared for sale. The accusation that S. Zahidov had been in possession of the drug with intent to sell was formed by the investigating authority on the basis of speculation and could not constitute the basis of the judgment.”

The judgment made no mention of the applicant’s specific complaints concerning the conditions in which the search had been carried out or the lawfulness of the use of evidence obtained in those circumstances against him.

On an unspecified date the applicant appealed, claiming that he was innocent. He alleged, in particular, that the criminal case against him had been fabricated, and that the drugs had been planted on him by the police. In this connection, he reiterated that the agents of the NDMIA had failed to conduct a body search immediately after his arrest, and that the search had been carried out in breach of the relevant procedural requirements. Moreover, they had failed to search the taxi in which he had been arrested. He further complained that the forensic medical examination of 5 July 2006, which had been based on his “general features” and carried out without taking a blood sample from him, could not be considered an expert opinion. In this connection, he also submitted that it had been established in the urine test carried out immediately after his arrest that he was not a drug user. He further asked the court to examine the video-recording of his body search.

On 15 December 2006 the Court of Appeal upheld the first-instance court’s judgment. The relevant part of the appellate court’s judgment reads as follows:

“The panel of the court considers that the actions of Zahidov Sakit Salim were correctly classified by the court under Article 234.1 of the Criminal Code of the Republic of Azerbaijan, and that he was sentenced to a punishment within the authorised limits of the Article [of the Criminal Code]of which he was accused.

As the arguments raised in the appeal were examined in the descriptive part of the judgment and were not confirmed, the panel of the court does not see any reason to grant the appeal.”

The Court of Appeal was silent as to the applicant’s specific complaints concerning the narcotic substances being planted on him by the police, the conditions in which the search had been carried out, the lawfulness of the use of evidence obtained in those circumstances against him, the examination of the video-recording of the search, and the reliability of the forensic medical opinion of 5 July 2006.

On 24 April 2007 the Supreme Court upheld the Court of Appeal’s judgment of 15 December 2006.

On 9 April 2009 the applicant was released from prison under an amnesty law adopted by the Milli Mejlis (Parliament) on 17 March 2009.

The applicant’s arrest and the institution of criminal proceedings against him attracted significant public and media interest both nationally and internationally.

The relevant part of Resolution 1614 (2008) “The Functioning of Democratic Institutions in Azerbaijan”, adopted on 24 June 2008 by the Parliamentary Assembly of the Council of Europe, reads:

“16. In view of the above, the Assembly recalls its Resolution 1545 (2007) and urges the Azerbaijani authorities to implement a number of measures without further delay...

As regards the follow-up to the issue of alleged political prisoners, the Assembly:

22.3 condemns the lack of transparency and fairness in the relevant investigations and court proceedings and demands the immediate release of imprisoned opposition journalists ... Sakit Zahidov ...”


Preliminary objections joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies;Six month period);Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Article 5-1-e - Persons of unsound mind);Violation of Article 5 - Right to liberty and security (Article 5-4 - Take proceedings);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo

The applicant was born in 1956 and lives in Prague.

In a judgment of 25 January 2005 the Prague 4 District Court (obvodní soud), relying on Article 10 § 1 of the Civil Code, deprived the applicant of legal capacity. Based on an expert opinion and the testimony of the applicant’s father, the court concluded that the applicant was suffering from alcoholic dementia, which was a permanent mental disability, and that he was unable to perform any legal acts on his own. The applicant was represented by a guardian ad litem and was therefore not heard by the court, which found that it appeared from the expert opinion that he was unable to understand the relevance of the proceedings. For the same reason, the court dispensed with the delivery of the judgment to the applicant.

In a decision of 21 April 2009, which became final on 21 July 2009, the District Court appointed the Prague 11 Municipality Office (městská část) as the applicant’s public guardian (veřejný opatrovník).

The applicant has attempted to regain his legal capacity several times, but his requests have always been refused. On 4 March 2010, refusing another request to restore legal capacity to the applicant, the District Court banned him from lodging further requests for one year because there was no possibility of his condition changing within that period. It relied on an expert opinion of 5 January 2010, which stated, inter alia:

“[the applicant] presents a picture of a chronic alcoholic in the terminal stage of alcoholism, with complete loss of control over drinking, complete lack of awareness of his illness, severe and irreversible damage to his health fully or partially caused by alcohol abuse and social and economic downfall which, in addition to his complete lack of awareness, also indicates serious personality changes objectively caused by detected brain atrophy.

[I]t is a long-lasting disorder which cannot be completely repaired even by treatment that is fully successful. ...

[L]oss of control over drinking and complete lack of awareness regarding alcohol abuse and its consequences result in a high probability of the repetition of previous relapses and, therefore, in behaviour which could, for similar reasons, pose a threat to the financial, social and personal stability of the person examined.”

In a judgment of 16 October 2012 the District Court, having examined an expert report and heard the expert and the applicant, decided to limit the latter’s legal capacity to act. It restricted his legal capacity so that he was not entitled to dispose of funds and conclude contracts exceeding 500 korunas (CZK) (18 euros (EUR)) per month. The court noted that according to the expert report, the applicant was suffering from mixed organic dementia up to intermediate level and with a continued lack of awareness of his state of health. In addition, he was unable to make more complex legal decisions independently. The applicant lodged appeals on 1 and 13 November 2012.

The Prague Municipal Court (městský soud) scheduled a hearing for 4 April 2013 and summoned the applicant. However, his lawyer was not informed about the hearing because his public guardian had refused to sign the power of attorney and so none of the courts recognised the lawyer as the applicant’s legal representative. The court subsequently cancelled the hearing and remitted the case to the District Court, which on 3 June 2013 assigned a new guardian to the applicant. The new guardian granted the power of attorney to a lawyer to represent the applicant in the proceedings on legal capacity.

On 8 August 2013 the Municipal Court quashed the judgment of 16 October 2012 and sent the case back to the District Court which in a judgment of 12 June 2014 decided to limit the legal capacity of the applicant, for a period of twelve months, so that he was not entitled to dispose of funds exceeding 1,500 CZK (EUR55) per week.

On 30 July 2015 the District Court initiated ex officio the proceedings on legal capacity and guardianship. At the same time, it ordered an expert opinion in psychiatry. It appears that the proceedings are still ongoing.

The applicant was admitted to the Prague-Bohnice psychiatric hospital seven times: in 2004 (for two weeks); in 2005 (for two weeks); in 2006 (for four and a half months); in 2007 (for two months); in 2008 and 2009 (for six and a half months); in 2009 (for three weeks); and during 2009 and 2010 (for thirteen months).

The applicant’s hospital discharge report of 11 October 2010 stated, inter alia, that he had been suffering from a mental and behavioural disorder caused by alcohol, that he was an alcoholic and that he had repeatedly experienced deliria tremens.

In the record of a telephone conversation between the applicant’s public guardian and a neighbour on 11 November 2011 it was noted, inter alia, that complaints about the applicant had been escalating, as he had been causing disturbance at night as a result of his excessive drinking and had been urinating on the stairs.

Another record of a telephone conversation between the public guardian and the applicant on 6 December 2010 stated, in particular, that the applicant had confirmed that he had not taken any of the medication prescribed to him by the psychiatrist.

During a conversation with the applicant’s public guardian on 10 January 2011 the applicant’s son said that his father had always kept many animals and that his treatment of them was bordering on cruelty because he did not feed them. He also allowed them in his bed, and as a result the bed was drenched and smelled foul. Moreover, the carpets and other furnishings in the flat were dirty and badly damaged.

On 17 January 2011 the public guardian urged the applicant not to yell at passers-by. The applicant replied that he was a psychologist and teacher, and practised communication with people in that way.

On 19 January 2011 Dr M.P. mentioned that the applicant was suffering from repeated alcohol abuse, alcohol-related cognitive impairment and alcoholic dementia. He was an alcoholic who did not cooperate and was unaware of his alcohol abuse.

On 21 January 2011 the applicant’s neighbours complained to the public guardian that the applicant was disturbing them at night, that an unbearable smell was exuding from his flat, that he had been urinating on the stairs and kept falling down when drunk, and that the situation was continuously getting worse.

On 31 January 2011 the public guardian received another telephone call from the applicant’s neighbour complaining about the behaviour of the applicant, who had been drunk, towards herself and her child. The neighbour said that she was afraid of him. On the same day, the applicant’s parents visited his public guardian to try to resolve the problematic situation relating to the applicant’s inappropriate behaviour. They expressed the view that the best solution would be their son’s placement in a specialised institution, such as the social care home in Letiny, as other institutions in Terezín or Sýrovice were not available. The social care home in Letiny is a private institution.

On the same day, the applicant, in a state of drunkenness, visited his public guardian. From the record of the visit it appears that the applicant was unable to express himself coherently.

In his report of 4 February 2011 the treating psychiatrist noted, in particular, that the applicant was suffering from a psychosomatic disorder, namely alcoholic dementia.

On 7 February 2011 the applicant’s guardian accompanied the applicant to the social care home in Letiny, a limited liability company. There she signed an agreement on the provision of residential social services to the applicant for an unlimited period of time and the applicant was admitted to the home.

The applicant’s guardian noted on the same day that the applicant’s parents could no longer take care of him; his mother had apparently talked to her son about his placement in the institution in advance, and after some hesitation, the applicant had agreed to be transferred there. It was noted, however, that he did not want to go to the institution, but having talked with his guardian about rehabilitation and medical care, he eventually agreed.

In a letter of the same date received by the District Court on 10 February 2011, the Municipal Office informed the court about the applicant’s placement in the social care home. They maintained that the placement had been necessary because he had been spending most of his money on alcohol, he had spent most of his time sitting on a bench in front of his house verbally harassing passers-by, he had been unable to dress appropriately and sometimes he had been too drunk to receive his lunch, which had been brought to his door every day. Moreover, he had been making an excessive number of visits to doctors, requesting various examinations of his brain, thumb, knee, eyes and so on. He had also been sending confusing allegations to various institutions, such as courts, ministries and animal rights organisations.

The applicant disagreed with his placement and contacted a number of authorities, including his public guardian. On 28 March 2011 he also called an emergency line and contacted the police, who dismissed his complaint, not finding any unlawfulness.

On an unspecified date the District Court telephoned the Municipal Office for more information about the applicant’s placement in the social care home. The Municipal Office answered by letter on 2 May 2011, repeating the reasons set out in its submission of 7 February 2011 and informing the District Court that the applicant had been placed there for an indefinite period as he was no longer able to live on his own.

On 11 February, 6 May and 1 June 2011 the applicant informed the District Court that he was being held in the social care home against his will and demanded his release. In his application to the court of 5 May 2011 he complained against his public guardian and asked that she be replaced by another person living near his domicile. The District Court did not react to any of his requests.

On 19 May 2011 the applicant sent a letter to the director of the social care home and to his public guardian alleging that he had been placed in the social care home involuntarily. The applicant’s guardian did not react to the letter. The director replied that given that the public guardian and the doctor had consented to his placement in the social care home, he had to remain there.

On 21 July 2011, after having been contacted by the applicant, a lawyer from the Mental Disability Advocacy Centre (Centrum advokacie duševně postižených) (hereinafter “the MDAC”) in Brno visited him in the social care home. The applicant signed a power of attorney authorising the lawyer to act on his behalf. On 25 July 2011 the lawyer sent a request for the applicant’s immediate release to the director of the social care home and to the public guardian. The director replied on 28 July 2011 that the applicant’s placement was legal as he had been deprived of legal capacity and his guardian had given consent to it. On 3 August 2011 the applicant received a similar answer from his public guardian, who considered the power of attorney signed by the applicant as invalid, given that he had been deprived of his legal capacity.

On the same date, the applicant’s lawyer requested the Plzeň-jih District Court (okresní soud) to issue a decision on the lawfulness of his client’s involuntary hospitalisation under Article 191a of the Code of Civil Procedure. As the court did not react, on 16 August 2011 the applicant’s lawyer lodged a request with the Plzeň Regional Court (krajský soud) to set a time-limit for a procedural measure under section 174a of the Courts and Judges Act (no. 6/2002).

From 2 to 16 August 2011 the applicant was hospitalised at the Mulačova hospital in Plzeň for planned orthopedic surgery.

The public guardian’s records of 17 and 18 August 2011, respectively, indicated the following:

“I talked on the phone with [the senior nurse]. She stated that she would try to transfer [the applicant] to a rehabilitation institution but afterwards they do not want to take him back. She informed me about it in order to give us the possibility to look intensively for another institution.”

“The director of the [social care] institution ... informed me on the phone that he had been in touch with the legal department about how to cancel the agreement and he had established that it was not possible. He is therefore sending me a letter informing me that [the applicant] is unhappy and that they want to discharge him. He stated that they were worried that [the applicant] might jeopardise the functioning of the whole institution because he lied and verbally attacked employees and constantly annoyed them by sending sms. In answer to the question what the position of the psychiatrist is..., he said that she had not allowed [the applicant] to go for walks without assistance and she considered his state of health poor.”

On 23 August 2011 the applicant was transferred to the Horažďovice Convalescent Home – Long-term Care Hospital (Nemocnice následné péče – Léčebna dlouhodobě nemocných).

On 23 August 2011 the applicant’s lawyer lodged a request with the Municipal Court through the Prague 4 District Court arguing that the guardianship court, namely the Prague 4 District Court, had been inactive in the matter of his client’s detention and had not initiated guardianship proceedings (opatrovnické řízení) seeking to solve the conflict of interests between the applicant and his public guardian. He argued that the guardianship court should have informed the relevant court, namely the Plzeň-jih District Court, about the applicant’s involuntary hospitalisation so that proceedings on its lawfulness could have been instituted. Furthermore, the guardianship court itself should have instituted proceedings to supervise the applicant’s public guardian under Articles 178 § 1 and 193 § 3 of the Code of Civil Procedure.

On the same day, the applicant lodged a constitutional appeal (ústavní stížnost) alleging that his rights to respect for his private life, to liberty, freedom from discrimination and a fair trial had been violated by the procedure pursued by the Municipal Office and the Prague 4 District Court on account of his detention in the social care home. He argued that the Municipal Office had violated those rights by placing him in the social care home without his consent and the District Court by remaining inactive in the face of the situation. He also requested the Constitutional Court (Ústavní soud) to issue an interim order for his release from detention.

On 19 September 2011 the Municipal Court decided not to undertake any action on the applicant’s request of 23 August 2011 because the power of attorney submitted by his lawyer was invalid on account of the applicant’s lack of legal capacity to sign it and because his public guardian had informed the court, on 16 September 2011, that she would not join the proceedings.

On 27 September 2011 the public guardian terminated the agreement with the social care home. The applicant was not informed about this in advance. The applicant, who was at that time hospitalised in the Horažďovice Convalescent Home – Long-term Care Hospital (see paragraph 35 above), was discharged from the hospital on the same day. The discharge report issued by the hospital also contained information about his mental state:

“Current mental state:

Suspicion – but in his case legitimate – indicated paranoia in respect of his guardian and her behaviour, or family members ...

[His] mood reactively depressive, ...

Intellect abilities [are] entirely without signs of degradation, humiliation let alone a sign of dementia! ...

From the current mental state of the applicant, it does not appear that there is any need to continue limiting him in his fundamental human rights and limiting his capacity to act.

Conclusion:

Behaviour disorder when using alcohol – psychotic residual disorder and later on ethylic encephalopathy, dementia ...

The 55 year old patient, who has a history of behavioural disorders when drinking alcohol, was admitted for rehabilitation after surgery to his right foot. ... As he repeatedly demands a review of his situation and refuses to stay in Letiny, a psychiatric consultation was carried out. The problems were discussed with his guardian ... according to whose recommendation [the applicant] told workers in Letiny, upon [their] information, his discharge is planned with home care, and psychiatric supervision is ensured.

On 4 October 2011 the Regional Court rejected the applicant’s request of 16 August 2011, holding that his lawyer had not been authorised to lodge such a request. The applicant’s signature on the power of attorney was invalid as he had been deprived of legal capacity (see also paragraph 32 above). The court added:

“Even if there were not those reasons to reject the claim, it would not be possible to grant [it]. ... It is not possible to set a time-limit to carry out an act – the issuance of a decision on the commencement of the proceedings – if that act depends on the discretion of a court which is not obliged to decide on the commencement of proceedings but is doing so on the basis of a motion. ...”

On 12 October 2011 the Ombudsman (Veřejný ochránce práv) issued a report in response to a letter from the applicant dated 29 April 2011. The report stated, inter alia:

“The applicant was also prescribed psychiatric medication, both regular and in the event of ‘unease’ ... It appears however that the medication ‘in the event of unease’ has not yet been administered to the applicant. In answer to a question concerning medication in general, the applicant stated that before his admission to the institution, he had not taken any medication. In reply to a question as to what would happen if he refused to take the medication, he answered that he had asked this question to a male nurse, who had said that in that case the medication would be administered to him by injection. For this reason the applicant did not refuse the medication. Only on one occasion did he express the wish not to take a certain medicine and the doctor of the institution prescribed him another drug, which he had not taken before either.

The public guardian ... made a mistake when she ‘placed’ the applicant in the institution without having previously received the approval of the guardianship court.

If the court does not approve an act as legal, the act is void ab initio. In respect of some acts that have already been carried out, a subsequent ‘disapproval’ by the court could not lead to an effective reparation, and it is evident that [those acts] require the approval of the court before [their accomplishment] ...

In my opinion, legal acts connected with the involuntary placement of an incapacitated person in a social care institution are of such character and thus require prior approval, provided that there is enough time.

Apart from the fact that the provisions of the civil law require that the legal act – the conclusion of the contract on provision of residential social services – be approved by the court, another requirement of generally binding rules, or more precisely the commitments of the Czech Republic under international law, cannot be overlooked, i.e. Article 5 § 4 of the Convention ...

[In the applicant’s case], in order to comply with the Convention, the Czech Republic ... guarantees ... the right to institute proceedings in which the court would speedily decide on the lawfulness of the deprivation of liberty and order the [applicant’s] release if the deprivation of liberty is unlawful.

Accordingly, in the case of admission of a person who is deprived of legal capacity to a medical institution, which he is not allowed to leave, the detention procedure should be initiated as provided for by Article 191a of the Code of Civil Procedure, despite the possible approval of the guardian. ...”

On 25 October 2011 the Prague 11 Municipal Office, in reaction to the findings of the Ombudsman, requested the District Court to approve the agreement signed by the public guardian on the provision of residential social services of 7 February 2011.

In a judgment of 10 November 2011 the District Court approved ex post facto the agreement signed by the public guardian and the termination of the applicant’s confinement in the social care home. The reasoning merely stated that the approval of those legal acts was in accordance with the law and in the interests of the applicant. The decision became final as the guardian ad litem, the Prague 4 Municipal Office, waived its right of appeal. The applicant was not summoned to appear before the court in those proceedings, which lasted only ten minutes; nor was he informed about them.

On 28 November 2011 the applicant lodged a second constitutional appeal challenging the decisions of the Prague Municipal Court of 19 September 2011 and the Plzeň Regional Court of 4 October 2011, the procedural measures taken by the Prague 4 District Court and the Plzeň-jih District Court and, lastly, the practice of the Prague 11 Municipal Office. He developed, in the reasoning of the constitutional appeal, his complaints regarding the alleged interference with his rights to respect for his private life, home and correspondence during his stay in the social care home without, however, mentioning them in his final plea (žalobní petit).

On 28 March 2012 the Constitutional Court rejected the applicant’s first constitutional appeal. Regarding his request for an interim order, it held that as he was no longer being detained, it had no power to assess the alleged violations because they had already ceased. The same applied in respect of the procedural steps taken by the Prague 11 Municipal Office and by the Prague 4 District Court, as the District Court, in its judgment of 10 November 2011, had approved the agreement concluded with the social care home by the public guardian and the latter’s termination of the agreement. The Constitutional Court referred to a previous decision (no. IV. ÚS 1348/09) in which it had declared manifestly ill-founded a complaint that a court had not carried out a review of lawfulness under Article 191a of the Code of Civil Procedure when a legally incapacitated person had been detained with the consent of his guardian. The Constitutional Court’s decision was notified to the applicant’s lawyers on 30 March 2012.

In a report of 4 April 2012 by I.K., the psychiatrist treating the applicant, it is noted, inter alia, that since the applicant’s discharge from the social care home he had not been attending for regular check-ups and had refused to take any medication with the exception of hypnotics. He had been visited by a nurse who had occasionally found him drunk. According to the psychiatrist, the applicant had behaved inappropriately, the neighbours had complained about him because he shouted at them and threatened them, at night he played loud music, he was meeting with the homeless, he soiled the common premises – he poured water on them and urinated there – and he drank alcohol. The psychiatrist concluded that the applicant was dangerous to others and was not able to lead an independent life.

On 17 April 2012 the Constitutional Court declared inadmissible also the applicant’s second appeal. It held that the applicant had failed to challenge both decisions addressed in his constitutional appeal by lodging a plea of nullity under Article 229 § 1(c) of the Code of Civil Procedure. It added that as he was no longer detained, it was not appropriate to apply section 75(2) of the Constitutional Court Act by which it could waive the obligation to exhaust other effective remedies if the significance of the appeal extended substantially beyond the personal interests of the appellant.

In a letter of 4 December 2012 the Prague 11 Municipal Office, having sumarised the legal situation, stated that:

“On the basis of the aforementioned documents, the public guardian considers unsubstantiated your allegation that your rights were violated on 7.2.2011 and, therefore, the filing of an action for protection of your personal rights by a lawyer of your choice ... [is found] irrelevant. For this reason, the public guardian will not conclude a contract on your legal representation in order to introduce the action for protection of your personal rights with an attorney-in-law [Ch.].

[Taking into account the judgment of 16 October 2012] and provided that your agreement with the lawyer ... will not exceed CZK 500 per month you can conclude it on your own. ...”

On 13 February 2013, in reply to a letter from the Government Agent, the Municipal Office informed him that the public guardian had talked to the applicant about his placement. She had also informed his family, staff of the Prague-Bohnice psychiatric hospital and his psychiatrist.

The Government stated that the regime in the social care home allowed patients to leave the institution either accompanied by a staff member, family member or guardian, or alone on the approval of a psychiatrist. According to the institution’s psychiatrist, the applicant never asked to leave the premises as he had problems with his knee. Visits to patients were not limited.

The applicant’s personal belongings were deposited in a lockable cupboard in his room. Since his arrival, he had had a mobile phone, which was repeatedly recharged. A coin-operated phone box was also accessible without any restrictions. Any post was sent to the applicant’s guardian, who always forwarded it to the addressee according to the applicant’s instructions. The applicant received pocket money on request.

The social care home provided accommodation, meals and health care, including care provided by specialist doctors, assistance with ordinary self-care, and assistance with personal hygiene or provision of conditions for personal hygiene. It also provided educational, training and stimulation activities, mediation of contact with the social environment, social and therapeutic activities and other services.

According to the applicant, the social care home provided residential social services primarily for patients with Alzheimer’s disease and dementia. Most of the patients were elderly and severely physically and mentally disabled. It was a closed institution, which he could not leave. The only possibility for outdoor activities was in a small garden with a high fence. Patients shared rooms. The applicant could not send any correspondence independently, but had to do so through employees of the home who sent some letters to his public guardian instead of to the address indicated by him, based on an assessment of whether it was official or private correspondence. Some letters that the applicant received had been opened. Furthermore, his state of health was allegedly not assessed before admission to the social care home or on his arrival. Once there, he was prescribed medication. When he refused to take it, he was threatened that it would be administered by injection.

According to the Government, the medication that had been prescribed to the applicant on his discharge from the Prague-Bohnice psychiatric hospital was modified by the institution’s psychiatrist on the basis of repeated examinations. The applicant’s medical check-ups performed by the psychiatrist took place on 1 March, 5 April and 31 May 2011. Moreover, his psychiatrist was informed about his health on 4 and 24 March, 9 May, 28 June and 29 July 2011.

From the information provided by the applicant’s psychiatrist, which was confirmed by the director of the institution, it appears that during his stay in the social care home, the applicant took the medication voluntarily.

On 27 March 2012 the applicant lodged a claim for damages against the State under the State Liability Act (no. 82/1998). He alleged that his rights had been violated by his public guardian on account of his unlawful detention. The Ministry of Justice rejected his claim.

On 30 March 2012 the applicant lodged a similar claim, arguing that the Plzeň-jih District Court and the Plzeň Regional Court had erred in not instituting proceedings to determine the lawfulness of his detention under Article 191b of the Code of Civil Procedure and that the Prague 4 District Court and the Prague Municipal Court had remained inactive despite his numerous submissions describing his detention.

On 27 September 2012 the Ministry of Justice rejected the applicant’s second claim, holding that under the State Liability Act, the State was liable only for damage caused either by a final unlawful decision, which had been later quashed, or by irregular official conduct. Regarding the latter, it held that the alleged shortcomings in the proceedings did not constitute irregular official conduct for which the State could be held responsible because the conduct had resulted in a decision. The former situation did not arise in the present case either, as there had been no final decision that was later quashed as illegal. Furthermore, the Ministry did not find that the applicant had suffered any damage. It considered that his own behaviour had been at the origin of the facts, because of his excessive drinking. It added that in any case the applicant’s lawyer had no right to submit those claims to the Ministry, as the applicant had been deprived of his legal capacity and a guardian had been appointed to act on his behalf.

On 28 September 2012, following the rejection of his claim for damages by the Ministry of Justice, the applicant brought an action against the Czech Republic seeking damages for the incorrect procedure followed by the courts. He argued in particular that the courts had refused to institute proceedings following his claims concerning his detention and that the court procedure on guardianship had been erroneous.

In letters of 8 April 2013 the Prague 2 District Court informed the applicant’s representatives that given that the applicant had been deprived of his legal capacity, he could not have granted them power of attorney. Accordingly, the court had decided not to accept them as the applicant’s legal representatives. On the same day, the court appointed a guardian ad litem, the Prague 2 Municipal Office, to represent the applicant.

In a letter of 28 June 2013 the Prague 2 Municipal Office informed the Prague 2 District Court that as the Prague 4 District Court had approved the agreement with the social care home, they would not join the proceedings for damages.

In a decision of 11 July 2013 the District Court discontinued the proceedings for damages on the grounds that, as the applicant was fully legally incapacitated, the power of attorney that he had given to his representatives was null and void, and that in a letter of 28 June 2013 the guardian ad litem had informed the court that it would not join the proceedings. According to the applicant, he was unaware of the court’s decision as his guardian ad litem failed to inform him. Consequently, the statutory period to file an appeal lapsed to no effect, and the decision became final.


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

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicants were all parties to unrelated sets of civil proceedings.

Some applicants attended the hearings before the first-instance courts; all of them were absent from the appeal hearings. Whenever the appeal courts addressed the issue of their absence, they did not check whether the applicants or their representatives received the summons, whether it was necessary to adjourn hearings or whether their presence was required due to the nature of the claims.

The dates of the final judgments are set out in Appendix I.


Preliminary objection joined to merits (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

In or before the year 2009 criminal proceedings were instituted in Italy against named individuals (not including the applicants) who were charged, inter alia, of conspiracy, money laundering, abuse of a position of influence in financial trading, embezzlement, tax evasion and fraud. In particular it was suspected that Mr EMP organised, financed and managed, directly or indirectly a network of companies situated in various states (San Marino, Italy, Malta, Portugal (Madeira) and Vanuatu) which were all traceable to one source namely, San Marino Investimenti S.A. (hereinafter “S.M.I.”). According to the applicants, Mr EMP owned S.M.I.’s entire capital stock which was instrumental to the accomplishment of a series of investment and fiduciary operations (operazioni fiduciarie) the aim of which was to allow a number of Italian clients to launder money coming from illicit sources (by impeding the identification of the real source of the money entrusted to it by means of a double system of fiduciary mandates (mandati fiduciari)). The group of co-accused were suspected of having, through such network, abusively supplied investment services contrary to the legal requirements as provided in the relevant Italian law (Testo Unico Della Finanza) and of having abusively carried out financial activities without being in possession of the necessary economic and financial requisites and the relevant registration as required by Italian law (Testo Unico Bancario).

In the context of these proceedings, by means of a letter rogatory received by the San Marino judicial authorities on 8 May 2009, the Public Prosecutor’s office (of the Rome Tribunal) asked the San Marino authorities for assistance in obtaining documentation and carrying out searches in various banks, fiduciary institutes and trust companies (banche, fiduciare e societa’ trust) in San Marino, in accordance with Article 29 of the Bilateral Convention on Friendship and Good Neighbourhood between Italy and San Marino of 1939.

By a decision of 27 November 2009 (hereinafter also referred to as the exequatur decision), the ordinary first-instance tribunal (Commissario della Legge, hereinafter the Commissario), accepted the request in conjunction with the crimes of conspiracy, money laundering, aggravated fraud and embezzlement with the aim of fraud, considering that the relevant requirements for the execution of the request were fulfilled. In particular the Commissario considered that those crimes were also punishable under San Marino law. It therefore ordered, inter alia, an investigation in respect of all banks, fiduciary institutes and trust companies in San Marino. The purpose was to acquire information and banking documents (inter alia, copies of statements showing transactions and movements, cheques, fiduciary dispositions (disposizioni fiduciarie) and emails) related to a number of named current accounts in specified institutes as well as any other current account which could be traced back (riferibile) to S.M.I, held by all banks and fiduciary institutes in San Marino, which were directly or indirectly involved with the company or physical persons mentioned in this decision. In reaching that decision the Commissario bore in mind the relevant articles of the Bilateral Convention on Friendship and Good Neighbourhood between Italy and San Marino of 1939, law no. 104/2009, the European Convention on Mutual Assistance in Criminal Matters, and San Marino’s commitment to international organs such as the Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism (MONEYVAL) as well as Article 36 of law no. 165/05 which provides that banking secrecy cannot be held against the criminal justice authorities and Article 13 of law no. 104/2009 according to which the act of acquiring copies of documentation amounts to seizure.

It gave further details as to the search and seizure operation, inter alia, that copies should be made of the documentation, that in the event that the investigation was successful the directors of the credit institute were to submit the relevant documents within twenty days to the Agency for financial investigations, who in turn would immediately transfer it, indicating the names of those involved (directly or indirectly), to enable notification. It further ordered that where data was held on electronic storage devices (supporti informatici), the collection of data from these devices should be supervised by appointed experts; and that clone copies were to be made of these storage devices, as well as back-up copies. Any means of information technology seized had to be sealed and kept in custody in appropriate places, and the removal of such seals had to be notified to the interested persons to enable them (or their lawyers) to be present. It ordered the judicial police to serve the decision upon the directors of all the banks and trust companies, to the legal representatives of the physical persons, to the directly interested persons, and to persons who were in possession, under whatever title, of the those places. It also warned that documentation obtained and forwarded could not to be used for purposes other than those linked to the criminal proceedings mentioned in the decree accepting the request made in the letter rogatory, unless the court decided otherwise following a further assessment.

By a note of 26 April 2010 the Commissario ordered that Italian citizens who had entered into fiduciary agreements (aperto posizioni fiduciarie) with S.M.I. (1452 in all) should be notified of the decision. It was noted that any information referring to the said citizens and transmitted to the judicial authority of the requesting state could not be used for the purposes other than the prosecution of the criminal offences mentioned in the exequatur decision (non potra essere utilizzata per fini diversi dal perseguimento degli illeciti penali di cui alle norme di legge indicate nel provvedimento di amissione della rogatoria), unless the court decided otherwise following a new assessment.

Following the investigation and implementation of the exequatur decision, in consequence of the last-mentioned order of the Commissario, the applicants were served with the relevant notification (M.N. on 24 January 2011, S.G. on 16 June 2011 and C.R. and I.R. on 4 February 2011).

On an unspecified date the applicants lodged a complaint (Article 30 of law no. 104/2009) before the judge of criminal appeals (Giudice delle Appellazioni Penali) against the Commissario’s decision concerning the seizure of documents related to them on the basis that they were not persons charged with the criminal offences at issue. They alleged a violation of the principles contained in the San Marino Declaration on Citizens’ Rights and Fundamental Principles (hereinafter “the declaration”). In particular they contended that the principle that crimes had to be punishable under the law of the requested state had not been respected, that there had been a violation of both Italian and San Marino law, and they noted the absence of the fumus delicti and of any link between the crimes at issue and the position of the applicants. Moreover, given that many such complaints by persons in similar situations had already been declared inadmissible by the domestic courts for lack of standing - them not being the persons charged and therefore not the direct victims of the seizure - the applicants further complained that Article 30 (3) of law no. 104/2009 was not compatible with the principles laid down in the Declaration, in so far as it had been interpreted as not protecting or recognising the right to lodge a complaint by anyone who was subject to coercive measures of seizure of documents (related to their interests) as a result of an exequatur decision.

By decisions of 25 February 2011 in respect of S.G., C.R. and I.R., and of 30 June 2011 in respect of M.N., the judge of criminal appeals declared the complaints inadmissible. The court noted that the applicants had been served with a notice of the exequatur order and had exhausted pleas available in law in that respect (hanno esperito le impugnazioni previste dalla legge). It further noted that an exequatur decision may only be challenged by a person who is involved in the investigation being carried out by the requested authority, or by a third party who is not investigated but who has been subjected to the measure. A person, who, in consequence of the investigation, is involved in any way with the activity undertaken, may not be considered as an interested person since any breach of the rights or interests of such persons, resulting from the execution of the exequatur decision, must be raised in the ambit of the Italian jurisdictions. The court considered that as established by domestic case-law it was only after the finding of admissibility of the application that a judge had to set a time-limit for submissions. For the purposes of admissibility one had to verify, amongst other things, the juridical interest of the appellant. Moreover, any constitutional complaints could give rise to an assessment of such question by the competent court (Collegio Garante), following a referral, only if the original proceedings were properly instituted, and not where, because of a lack of juridical interest of the appellant, the application was inadmissible. In the present case the appellants were not interested parties in relation to the exequatur decision, but may only have an eventual interest in the effects of such execution, and thus they did not have juridical interest to challenge the said decision.

In relation to the complaint of incompatibility with the Declaration, the court of criminal appeals only pronounced itself on the request made by C.R.: on 29 April 2011 it declared the complaint inadmissible as on that date no proceedings appeared to be pending.

The applicants appealed to the third instance criminal judge (Terza Istanza Penale) reiterating their complaints and invoking the European Convention on Human Rights and Fundamental Freedoms. In particular they noted that the Commissario’s exequatur decision had ordered the seizure of documents related to them, despite them not being linked to any of the activities mentioned in that decision or them having ever had relations with the Italian companies. Moreover, the seized documents were irrelevant for the purposes of ascertaining the existence of the crimes attributed to the accused, thus, the only purpose behind the seizure was to name the Italians who had had dealings with S.M.I. irrespective of any involvement they had had with the facts object of the letter rogatory. They further challenged the appeal decisions in so far as they were issued in breach of the rights of the defence, in particular as they were not allowed to present submissions as provided for in law, neither in respect of the challenge nor in respect of the constitutional complaint. Furthermore, the decisions had lacked reasons and made no reference to the actual position of the applicants and a lack of reasoning in respect of the rejection of the constitutional complaint was particularly detrimental as it did not allow a proper examination of the matter by the third-instance judge.

By decisions of 29 July 2011 filed in the registry on the same day and served on 3 August 2011 in respect of S.G., I.R and C.R., and of 27 October 2011 filed in the registry on the same day and served on 10 November 2011 in respect of M.N., the third-instance criminal judge confirmed the appeal decision in that the appellants lacked juridical interest. In consequence the appeal was inadmissible and in any event there appeared to be no violation of law tainting the impugned decision. The question of constitutional legitimacy of law no. 104/2009 was also rejected on the same ground as that put forward by the appeal court.

In the meantime, the applicants (except for M.N.) had lodged an objection requesting the revocation of the exequatur decision in their respect, on the basis that the documents related to them were of no relevance to the investigation.

By a decision of 7 September 2011, served on their lawyer on an unspecified date, the Commissario held that the objection was to be discontinued (non luogo a procedere) in view of the findings of the third-instance criminal judge. The Commissario noted that the authorities were not limited to carrying out the actions requested by the letters rogatory only in respect of persons formally charged, but could also extend such acts to third persons who were not so charged.

The applicants lodged a further objection requesting the Commissario to restrict the use of the seized documents. By decisions filed in the relevant registry on 19 September 2011 the Commissario held that its exequatur decision of 27 November 2009 had already applied such a limitation, indeed that decision had clearly stated that such documentation was not to be used for purposes other than those linked to the criminal proceedings mentioned in the letters rogatory, unless the court decided otherwise following a further assessment.


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

Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicants were born in 1967, 1974, 1953 and 1961 respectively and live in Baia Mare.

On 1 April 2001 the Cluj Military Security Department started secretly monitoring the applicants’ telephone conversations on the basis of an order issued by the Military Prosecutor’s Office attached to the National Anti-Corruption Prosecutor’s Office (“the Military Prosecutor’s Office”). The surveillance order issued by the Military Prosecutor’s Office was based on Law no. 51/1991 on national security (“the National Security Act”). The applicants were suspected of being part of a network trafficking in Schengen visas.

The first two applicants were at the material time Romanian army officers, while the last two applicants were civilians.

On 2 October 2002 the first two applicants were questioned for the first time at the Military Prosecutor’s Office as part of the investigation initiated by the domestic authorities against a network of individuals trafficking in Schengen visas. At the material time the two applicants had not been charged with any offence and were not assisted by a lawyer. The first applicant had allegedly been pressurised by the prosecutor to sign a written statement. The second applicant was detained by the Military Prosecutor’s Office for twenty hours, allegedly without an arrest warrant in his name and without being informed about the reasons for his detention.

On 3 October 2002 the second applicant was heard by the Military Prosecutor’s Office for the second time. No charges had been brought against him at the time. He was informed of his right to be assisted by a legal representative and agreed that one could be appointed for him.

On 12 December 2002 the third applicant was questioned at the Military Prosecutor’s Office for the first time. At the time he had not been informed of the charges brought against him and he was not assisted by a lawyer.

On 13 December 2002 the fourth applicant was questioned for the first time at the Military Prosecutor’s Office. At the time he had not been charged with any criminal offence and was not assisted by a legal representative. His written statement contained only confirmation that he had been using a company mobile phone and the phone number attached to the phone since May 2000. On the same day the fourth applicant was summoned to appear at the Military Prosecutor’s Office on 16 December 2002.

By a Military Prosecutor’s Order issued on the same date a criminal investigation was opened (ȋnceperea urmăririi penale) against the first three applicants for complicity in bribery and aiding an offender. The Prosecutor’s Order did not expressly state that a criminal investigation had been opened against the fourth applicant as well, although his name and the unlawful act he was suspected of was mentioned in the order.

On the same date, in the presence of the chosen legal representative of the first two applicants and of the officially appointed legal representative of the third applicant, the previously mentioned three applicants were charged by the domestic authorities with complicity in bribery and aiding an offender, and were heard in respect of the charges brought against them. They maintained and reiterated their previous statements and they were presented with the evidence available in the file. In addition, they stated that they did not request any other evidence.

On 16 December 2002, in the presence of an officially appointed legal representative, the fourth applicant was charged with complicity in bribery and was questioned in respect of the charges brought against him. He too reiterated his previous statement. He was presented with the evidence available in the file.

On 20 December 2002 the Military Prosecutor’s Office indicted the four applicants and sent their case to trial before the Bucharest Military County Court. The Military Prosecutor’s Office relied mainly on transcripts of the recordings of the applicants’ telephone conversations, witness statements by some of the individuals the applicants had unlawfully helped to obtain visas, and the applicants’ own statements.

On 23 and 24 December 2002 three newspaper articles were published in a national newspaper and on news websites reporting on the four applicants’ indictment and the offences they were suspected of.

At the hearing of 4 March 2003 the applicants sought an adjournment of the proceedings in order to allow them to acquaint themselves with the contents of the secret file of the case to prepare their defence.

At the hearing of 11 March 2003 the four applicants were heard by the Bucharest Military County Court. They all maintained their statements given before the domestic authorities over the course of the criminal investigation. The first-instance court also ordered the summoning of the individuals unlawfully helped by the applicants to obtain visas, although the applicants expressly stated that they did not insist on those people being heard.

At the hearing of 18 March 2003 the first-instance court heard some of the witnesses summoned on 11 March 2003 and ordered the resummoning of the witnesses who had not attended the hearing, although the applicants had once more expressly stated that they did not insist on the remaining witnesses being heard.

At the hearing of 8 April 2003 the first-instance court allowed the applicants to submit documentary evidence and acceded to their request that the hearing of the remaining witnesses be dispensed with as not necessary to the case. In addition, it noted that no other demands or requests for evidence had been lodged by the applicants, and declared the judicial investigation of the case closed. The court adjourned the hearing in order to allow the parties to make written submissions.

By a judgment of 22 April 2003 the Bucharest Military County Court convicted all the applicants of complicity in bribery and aiding an offender, and sentenced them to prison terms of between six months and three years and six months. It held that the second applicant had been pardoned and suspended the sentences of the remaining three applicants for a period of four years. It found amongst other things that once they had been presented with the transcripts of their phone conversations the applicants had admitted to committing the offences they were charged with. Moreover, the transcripts of the applicants’ telephone conversations contained proof of their involvement in unlawful activities, although the court held that the secret monitoring of the applicants’ telephone conversations had not met the formal requirements provided for by the applicable rules on criminal procedure. In particular, in spite of the court’s repeated requests, the prosecution had failed to submit: the Military Prosecutor’s Office’s order authorising the tapping of the applicants’ phones between 17 April 2001 and 2 October 2002; the complete transcripts of the recordings; the certification of the recordings’ authenticity; and the records containing the list of the telephone numbers monitored by the authorities. The applicants appealed against the judgment.

On 11 November 2003 the Military Court of Appeal, sitting in a panel of judges which included the judge P.P., allowed the applicants’ appeal, quashed the judgment of 22 April 2003, and ordered a retrial from the moment of deliberation. The court of appeal held that the first-instance court had disregarded the applicable rules on criminal procedure and had deliberated on the case in a single-judge formation, while the legal requirement was a two-judge formation.

By an interlocutory judgment of 5 March 2004 the Bucharest Military County Court allowed the applicants’ request for the hearing of the witnesses C.C., M.P. and A.M., after their legal representative took it upon himself to submit to the court the addresses of the aforementioned witnesses. In addition, the court allowed of its own motion the parties to submit observations on the admissibility as evidence of the transcripts of the recordings of the applicant’s telephone conversations included in the secret surveillance case file. Furthermore, it noted that the applicants’ legal representatives had argued that the aforementioned recordings had been carried out unlawfully and could not be considered as evidence in the case. The court also ordered the summoning by orders to appear (mandate de aducere) of all the witnesses mentioned by the Military Prosecutor’s Office in the order of indictment who had not previously been heard by the court, including the three witnesses expressly requested by the applicants. Lastly, it ordered the Military Prosecutor’s Office to provide additional explanations concerning the lawfulness of the interception of the applicants’ telephone conversations, the recordings of which were attached to the secret surveillance file of the case.

On the same date the applicants’ legal representative submitted to the court the addresses of witnesses C.C., M.P. and A.M.

At the hearing of 23 March 2004 the first-instance court noted that only some of the summoned witnesses were present, and proceeded to hear them. Witnesses C.C., P.M. and M.A. had not attended the hearing. In addition, it ordered the re-summoning of some of the missing witnesses, but not of witnesses C.C., P.M. and M.A.

By an interlocutory judgment of 6 April 2004 the first-instance court acknowledged the applicants’ decision not to insist on the hearing of the absent witnesses. In addition, it noted that according to the applicants’ submission the recordings of their telephone conversation could not be adduced to the file because they had been unlawful. Also, the Prosecutor’s Order of 13 December 2002 did not expressly state that a criminal investigation had been opened against the fourth applicant as well, probably because there had been confusion between the fourth and the third applicants’ names.

By a judgment of 15 April 2004 the Bucharest Military County Court convicted the applicants of complicity in bribery and aiding an offender and sentenced them to prison sentences of between six months and two years. It held that the second applicant had been pardoned and suspended the sentences of the remaining three applicants for a period of four years. In delivering its sentence the court relied mainly on the witnesses’ and the applicants’ statements. It also held that the transcripts of the recordings of the applicants’ telephone conversations had not met the formal requirements provided for by the applicable rules on criminal procedure. In particular, after the recording of the conversation the investigating authorities had to produce records containing information about the authorisation for the surveillance, the names and numbers of the telephones used for the recorded conversations, the date and time of each conversation, and the number of the device on which the conversation had been recorded. Also, the full content of the conversation had to be reproduced in writing and certified as authentic. Moreover, the original device containing the conversation bearing the seal of the investigating body had to be made available. However, the Military Prosecutor’s Office had failed to submit the full content of the recordings to the court, although it had repeatedly been asked to do so. Furthermore, the court had requested the prosecutor’s office to submit information on whether the recordings of the applicants’ telephone conversations attached to the case file had met the lawful requirements of the Criminal Procedure Code, without success. Lastly, the court had failed to examine the fourth applicant’s argument concerning the failure of the prosecutor’s order to expressly state that a criminal investigation had also been opened against him. The applicants appealed against the judgment.

They argued that the first-instance court had wrongly assessed the evidence and misinterpreted the applicable legal provisions, and that the domestic authorities had failed to open a criminal investigation against the fourth applicant.

The hearings before the Military Court of Appeal were adjourned three times, on 13 September, 18 October and 22 November 2004, on account of the authorities’ failure to summon some of the parties. The merits of the case were not examined by the domestic court on the abovementioned dates. Judge P.P. was a member of the panel of judges on all three occasions. There is no evidence in the file that the applicants challenged the composition of the court or that they raised this argument before the domestic courts at a later stage of the proceedings.

By a judgment of 31 January 2005 the Military Court of Appeal dismissed the applicants’ appeal. It held amongst other things that although many of the individuals who had been helped by the applicants to obtain visas could not be identified in order to be heard by the courts, the transcripts of the recordings of the applicants’ telephone conversations proved that the applicants had demanded sums of money as payment for their alleged influence, regardless of whether the promised action had been taken or not. The applicants appealed on points of law (recurs) against the judgment.

The applicants reiterated their arguments that the lower courts had wrongly assessed the evidence and misinterpreted the applicable legal provisions. The fourth applicant also submitted that the lower courts had failed to examine his argument concerning the failure of the domestic authorities to open a criminal investigation against him.

By a final judgment of 22 December 2005 the Court of Cassation, sitting as an ordinary criminal court, dismissed the applicants’ appeal on points of law. It held that the lower court had correctly assessed the available evidence and established the applicants’ guilt. The applicants’ arguments that the offences had not taken place had been examined in detail by the lower courts, were rebutted by their own actions, and did not have any lawful grounds. Although many of the individuals who had been helped by the applicants to obtain visas could not be identified in order to be heard by the courts, the lower courts had correctly established that the transcripts of the recordings of the applicants’ telephone conversations proved that the applicants had demanded sums of money as payment for their alleged influence, regardless of whether the promised action had been taken or not. In this context, the obstruction of the investigation by the second applicant could not be ignored. On 2 October 2002 the second applicant had telephoned the wife of one of the co-accused to ask her to “hide and destroy a diary” which contained a breakdown of the money taken from the victims by the aforementioned co-accused. Consequently, the second applicant’s guilt had also been correctly established. There is no evidence in the file that the last-instance court examined the appeal point raised by the fourth applicant.

The applicants submitted to the Court a number of newspaper advertisements allegedly published by several third parties offering to act as intermediaries for visa applications.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Violation of Article 5 - Right to liberty and security (Article 5-2 - Information on reasons for arrest;Prompt information);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens-{general} (Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Inhuman treatment;Prohibition of torture);No violation of Article 13+P4-4 - Right to an effective remedy (Article 13 - Effective remedy) (Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens-{general};Prohibition of collective expulsion of aliens);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;András Sajó;Angelika Nußberger;Dmitry Dedov;Erik Møse;Georgios A. Serghides;Guido Raimondi;Helen Keller;Khanlar Hajiyev;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Luis López Guerra;Mārtiņš Mits;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström;Gabriele Kucsko-Stadlmayer;Georges Ravarani;Pere Pastor Vilanova

The applicants were born in 1983, 1987 and 1988 respectively. Mr Khlaifia (“the first applicant”) lives in Om Laarass (Tunisia); Mr Tabal and Mr Sfar (“the second and third applicants”) live in El Mahdia (Tunisia).

On 16 September 2011 in the case of the first applicant, then the next day, 17 September, in the case of the second and third applicants, the applicants left Tunisia with others on board rudimentary vessels heading for the Italian coast. After several hours at sea, their vessels were intercepted by the Italian coastguard, which escorted them to a port on the island of Lampedusa. The applicants arrived on the island on 17 and 18 September 2011 respectively.

The applicants were transferred to an Early Reception and Aid Centre (Centro di Soccorso e Prima Accoglienza – “CSPA”) on the island of Lampedusa at Contrada Imbriacola where, after giving them first aid, the authorities proceeded with their identification. According to the Government, on this occasion individual “information sheets” were filled in for each of the migrants concerned (see paragraph 224 below); this is disputed by the applicants (see paragraph 222 below).

They were accommodated in a part of the centre reserved for adult Tunisians. According to the applicants, they were held in an overcrowded and dirty area and were obliged to sleep on the floor because of the shortage of available beds and the poor quality of the mattresses. They had to eat their meals outside, sitting on the ground. The centre was kept permanently under police surveillance, making any contact with the outside world impossible.

The applicants remained in the CSPA until 20 September, when a violent revolt broke out among the migrants. The premises were gutted by fire and the applicants were taken to a sports complex on Lampedusa for the night. At dawn on 21 September they managed, together with other migrants, to evade the police surveillance and walk to the village of Lampedusa. From there, with about 1,800 other migrants, they started a demonstration through the streets of the island. After being stopped by the police, the applicants were taken first back to the reception centre and then to Lampedusa airport.

On the morning of 22 September 2011 the applicants were flown to Palermo. After disembarking they were transferred to ships that were moored in the harbour there. The first applicant was placed on the Vincent, with some 190 other people, while the second and third applicants were put on board the Audace, with about 150 others.

The applicants described the conditions as follows. All the migrants on each vessel were confined to the restaurant areas, access to the cabins being prohibited. They slept on the floor and had to wait several hours to use the toilets. They could go outside onto the decks twice a day for only a few minutes at a time. They were allegedly insulted and ill-treated by the police, who kept them under permanent surveillance, and they claimed not to have received any information from the authorities.

The applicants remained on the ships for a few days. On 27 September 2011 the second and third applicants were taken to Palermo airport pending their removal to Tunisia; the first applicant followed suit on 29 September.

Before boarding the planes, the migrants were received by the Tunisian Consul. In their submission, the Consul merely recorded their identities in accordance with the agreement between Italy and Tunisia of April 2011 (see paragraphs 36-40 below).

In their application the applicants asserted that at no time during their stay in Italy had they been issued with any document.

Annexed to their observations, the Government, however, produced three refusal-of-entry orders dated 27 and 29 September 2011 that had been issued in respect of the applicants. Those orders, which were virtually identical and drafted in Italian with a translation into Arabic, read as follows:

“The Chief of Police (questore) for the Province of Agrigento

Having regard to the documents in the file, showing that

(1) on ‘17 [18] September 2011’ members of the police force found in the province of ‘Agrigento’, near the border of: ‘island of Lampedusa’, Mr [surname and forename] born ... on [date] ... ‘Tunisian’ national ... not fully identified, ‘undocumented’ (sedicente);

(2) the alien entered the territory of the country by evading the border controls;

(3) the identification (rintraccio) of the alien took place on/immediately after his arrival on national territory, and precisely at: ‘island of Lampedusa’;

WHEREAS none of the situations [provided for in] Article 10 § 4 of Legislative Decree no. 286 of 1998 is present;

CONSIDERING that it is appropriate to proceed in accordance with Article 10 § 2 of Legislative Decree no. 286 of 1998;


Remainder inadmissible;No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Possessions)

András Sajó;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicant was born in 1936 and lives in Skokie, USA.

On 31 August 1998 the applicant lodged a request with the Bucharest Commission for Implementing Law no. 9/1998 (the County Commission) seeking compensation for assets owned by her ancestors and transferred to the Bulgarian State. On 29 April 2004 the County Commission issued a decision whereby the applicant was entitled to compensation of ROL 4,991,284,506 (approximately EUR 123,500 at the time).

Between 2005 and 2008 the applicant lodged several applications with the National Authority for Property Restitution (hereinafter “the National Authority”) and the President of Romania for payment of the compensation. On each occasion, the applicant was informed that her file was subject to ratification by the responsible authority for implementing Law no. 9/1998.

On 20 February 2009 the National Authority issued the ratification decision, confirming the applicant’s entitlement to RON 499,128.43 (approximately EUR 117,000 at the time). The decision mentioned that the payment would be made in two annual instalments, as provided for by the methodological rules for the implementation of the law, in force since 30 November 1998 and amended on 26 October 2007.

To date, the applicant has not received the compensation or any indication as to when such compensation would be paid.


Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application)

The applicant was born in 1992 and lives in Baku.

A demonstration was planned to be held on 12 March 2011 in Baku. Prior to the assembly, on 7 March 2011, the organisers, members of the opposition, gave notice to the relevant authority, the Baku City Executive Authority (“the BCEA”).

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

The organisers nevertheless decided to hold the demonstration in the centre of Baku. According to the applicant, the demonstration was intended to be peaceful and was conducted in a peaceful manner. The participants were protesting against, inter alia, corruption and demanding the resignation of the President of the State.

The applicant attended the demonstration, but shortly after it had begun the police started to disperse those who had gathered. The applicant was arrested during the dispersal operation and was taken to three different police stations consecutively.

According to the applicant, he was arrested at around 2 p.m. His arrest and custody in the police stations were video recorded on a mobile phone by one of the protesters, Mr A.H.

On the day of the applicant’s arrest, an administrative-offence report (inzibati xəta haqqında protokol) was drawn up in respect of him by police officer E.G. The report stated that at around 2.55 p.m., at Fountains Square in Baku, the applicant had attempted to hold an unlawful demonstration and had disobeyed a lawful order of a police officer. He had been charged with administrative offences under Article 298 (violation of the rules on holding public assemblies) and Article 310.1 (failure to comply with a lawful order of a police officer) of the Code of Administrative Offences (“the CAO”).

On the same day two police officers, M.A. and H.A., prepared a report (raport) for a superior, stating that at around 4 p.m. during the demonstration they had arrested ten individuals. The report contained a list of the arrested protesters. According to the applicant, his name – the eleventh on the list – was added to the report later in different handwriting.

According to the official records, the administrative-offence report in the applicant’s respect was prepared on the basis of the abovementioned report drawn up by police officers M.A. and H.A.

According to the applicant, he has never been served with a copy of the administrative-offence report or with other documents from his case file. He was also not given access to a lawyer after the arrest or while he was in police custody.

On the day of his arrest the applicant was brought before a firstinstance court, the Sabail District Court.

A State-funded lawyer was appointed to assist the applicant. None of the material submitted to the Court contains any record showing that the State-funded lawyer, Mr E.N., made any oral or written submissions on behalf of the applicant.

No witnesses were questioned during the court hearing.

By a decision of 12 March 2011, the court convicted the applicant under Article 310.1 of the CAO and sentenced him to eight days’ administrative detention.

On an unspecified date the applicant lodged an appeal with the Baku Court of Appeal, arguing that his arrest and conviction were in violation of his right to freedom of assembly and that the hearing before the firstinstance court had not been fair. He argued that he had participated in the demonstration because he had had a constitutional right to do so, but that he had not disobeyed any order of a police officer.

The applicant also asked the appellate court to summon and examine witnesses on his behalf (namely, Mr A.H., Mr A.M. and Mr R.M.) who, according to the applicant, had witnessed his arrest and time in custody, and to examine the video recordings made by Mr A.H., which, according to the applicant, showed his arrest and custody in the police stations. He further asked the court to order a handwriting examination of the report prepared by police officers M.A. and H.A., in order to establish whether his name had been added to it by one of those two police officers. The applicant alleged that his name had been added to the mentioned report as the eleventh person in the list later and in different handwriting.

The applicant was represented before the Baku Court of Appeal by a lawyer of his own choosing.

On 18 March 2011 the Baku Court of Appeal partially granted the applicant’s appeal and remitted the case to the first-instance court for reexamination. The Court of Appeal found that the first-instance court had failed to examine the report prepared by police officers M.A. and H.A. The court also held that the case-file contained only a photocopy and not the original of that report and, therefore, it had not been possible to order its expert examination. The court did not address the applicant’s abovementioned requests to summon and examine the witnesses on his behalf and to examine the video recordings.

On 12 April 2011 the Sabail District Court re-examined the case.

According to the applicant, he was not given an opportunity to appoint a lawyer of his own choosing.

A State-funded lawyer was appointed to assist him.

The only witnesses questioned during the court hearing were police officers M.A. and E.G. The former testified that the applicant had been detained for having participated in an unlawful assembly, making noise and disobeying the lawful orders of the police. The latter testified that he had prepared the administrative-offence report.

By a decision of 12 April 2011, the court convicted the applicant under Article 310.1 of the CAO and sentenced him to seven days’ administrative detention.

On an unspecified date the applicant appealed. He argued before the Baku Court of Appeal that his arrest and conviction had been in violation of his right to freedom of assembly. He also complained that his arrest had been unlawful, and that the rehearing before the first-instance court had not been fair.

The applicant again requested that witnesses on his behalf (namely, Mr A.H., Mr A.M., Mr R.M. and Mr R.B.) be summoned and heard. In addition, he challenged the reliability of the official records related to his arrest and police custody. He pointed out in particular the discrepancy between the time of arrest indicated in the administrative-offence report and the report prepared by police officers M.A. and H.A. The applicant repeated his allegation that his name had been added as the eleventh person on the list in the mentioned report later. The applicant asked the appellate court to hear at least three individuals listed along with him in the report prepared by police officers M.A. and H.A. He further asked the court to examine certain photographs and the video recordings made during his arrest and time in police custody.

The applicant was not represented before the Baku Court of Appeal by a lawyer.

On 28 April 2011 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the first-instance court’s decision.

The appellate court did not address the applicant’s above-mentioned requests to summon and hear the witnesses and to examine the photographs and video recordings.

On 8 August 2014 Mr I. Aliyev, who represented the applicant before the Court, was arrested on charges of large-scale tax evasion, abuse of power and illegal entrepreneurship. On the same day he was detained pending trial. The circumstances relating to Mr Aliyev’s arrest and detention are the subject of a separate application brought by him before the Court (application no. 68762/14).

On 8 and 9 August 2014 the prosecuting authorities conducted a search of Mr Aliyev’s home and office. During the search the domestic authorities seized a large number of documents, including all the case files relating to the pending applications before the Court, which were in Mr Aliyev’s possession as a representative. The file relating to the present case, which, it appears, included copies of all the documents and correspondence between the Court and the parties, was also seized in its entirety. No adequate inventory of the seized files relating to the Court proceedings was made in the search and seizure records of 8 and 9 August 2014.

On an unspecified date Mr Aliyev lodged a complaint with the Nasimi District Court, claiming that the search had been unlawful. He further complained about the seizure of the documents and files relating to the pending court proceedings before the Court and the domestic courts.

On 12 September 2014 the Nasimi District Court dismissed Mr Aliyev’s claim. It held that the searches had been conducted in accordance with the relevant law. As to the seizure of the documents relating to the cases pending before the Court and the domestic courts, it found that they could not be returned to the applicants at that stage of the proceedings. Following an appeal, on 23 September 2014 the Baku Court of Appeal upheld the first-instance court’s decision of 12 September 2014.

On 25 October 2014 the investigating authorities returned a number of the case files concerning the applications lodged with the Court, including the file relating to the present case, to Mr Aliyev’s lawyer. The investigator’s relevant decision specified that “since it has been established that among documents seized on 8 and 9 August 2014 there were files concerning applications by a number of individuals and organisations lodged with the European Court of Human Rights, which have no relation to the substance of the criminal proceedings [against Mr Intigam Aliyev], [those files] have been delivered to [Mr Aliyev’s lawyer] Mr Javad Javadov”.


Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Civil proceedings;Article 6-1 - Reasonable time)

André Potocki;Mārtiņš Mits;Síofra O’Leary

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

The applicants complained of the excessive length of criminal proceedings and of the lack of any effective remedy in domestic law. The applicant in application no. 24048/13 also raised another complaint under the provisions of the Convention.