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 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence;Article 6-3-b - Adequate facilities;Adequate time;Article 6-3-c - Legal assistance of own choosing);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

The applicant was born in 1977 and lives in Baku.

The opposition planned to hold demonstrations on 17 November 2012 and 26 January 2013 in Baku.

On 12 November 2012, the organisers gave notice to the relevant authority, the Baku City Executive Authority (“the BCEA”), about the demonstration of 17 November 2012. It appears that no prior notice was given to the BCEA by the organisers of the demonstration of 26 January 2013. Information about that assembly was disseminated through Facebook or the press.

The BCEA refused to authorise the holding of the demonstration of 17 November 2012, stating in general terms that that assembly was not in accordance with the Law on Freedom of Assembly. The BCEA further stated that the square where the organisers proposed to hold the assembly was a designated public leisure area and that the assembly itself was impractical.

Nevertheless, the organisers decided to hold the demonstrations in the centre of Baku.

According to the applicant, the demonstrations were intended to be peaceful and were conducted in a peaceful manner. The participants in the demonstration of 17 November 2012 were demanding democratic reforms in the country and protesting against impediments to freedom of assembly. The participants of the demonstration of 26 January 2013 were condemning the use of force by the police against participants of previous demonstrations.

The applicant attended both demonstrations, but shortly after they had begun the police started to disperse them. In both cases the applicant was arrested during the dispersal operation and was taken to a police station, where he was questioned. According to the applicant, in the first case he was arrested by people in plain clothes.

In both cases on the day of the applicant’s arrest, an “administrativeoffence report” (inzibati xəta haqqında protokol) was issued in respect of him. In the first case the report stated that by deliberately failing to comply with a lawful order from the police, the applicant had committed an administrative offence under Article 310.1 of the Code of Administrative Offences (“the CAO”). In the second case the applicant was charged with an administrative offence under Article 298.2 of the CAO (participation in a public assembly that had not been organised in accordance with the law).

According to the applicant, he was never served with copies of the administrative-offence reports or with other documents from his case files. In neither case was he given access to a lawyer after the arrest or while in police custody.

In both cases the applicant was brought before the Sabail District Court on the day of his arrest, 17 November 2012 and 26 January 2013 respectively.

According to the applicant, the hearing before the court in both cases was very brief. Members of the public were not allowed to attend, even though the court had not taken a formal decision to close the hearing to the public.

According to the applicant, in neither case was he given an opportunity to hire a lawyer of his own choice.

The record of the court hearing in the first case shows that the applicant declared that he did not need legal assistance and would defend himself in person.

At the court hearing in the second case a State-funded lawyer was appointed to assist the applicant. According to documents submitted by the Government, the applicant refused the assistance of that lawyer and decided to defend himself in person.

At the hearing in the first case the court did not question any witnesses. In the second case the court questioned two police officers. The police officers testified that they had arrested the applicant because he had staged an unauthorised demonstration.

In both cases the first-instance court found that the applicant had participated in an unauthorised demonstration.

In the first case, by a decision of 17 November 2012 the firstinstance court convicted the applicant under Article 310.1 of the CAO and sentenced him to five days’ “administrative” detention. In the second case, by a decision of 26 January 2013 the court convicted the applicant under Article 298.2 of the CAO and sentenced him to a fine of 500 manats (AZN).

On unspecified dates the applicant lodged appeals before the Baku Court of Appeal, arguing that his convictions were in violation of his rights because the demonstrations in which he had participated had been peaceful. He also complained that his arrests had been unlawful and that the hearings before the respective first-instance courts had not been fair.

In the first case the applicant was assisted before the Baku Court of Appeal by a lawyer of his own choice. In the second case he was not represented by a lawyer.

In both cases, on 23 November 2012 and 5 February 2013 respectively, the Baku Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court.


Revision rejected (Art. 35) Admissibility criteria

Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Paul Mahoney;Síofra O’Leary

The cases of T.13 and T.6.

General remarks

The applicant Government have submitted the cases of eight persons in which the use of the five techniques and sometimes also other forms of ill-treatment were alleged. The Commission has examined the illustrative cases of T.13 and T.6. The allegations in regard to T.6 concern both the five techniques and other forms of alleged ill-treatment, whereas the allegations in regard to T.13 concern the five techniques only.

Both cases were among the eleven cases investigated by the Compton Committee. However, neither T.13 nor T.6 had given evidence before that Committee, which based its findings on the oral evidence of the persons who supervised the operations at the centre and of the medical officer who was stationed there, as well as on various medical records, colour photographs and the feeding record (cf. Compton Report, paras. 54 and 55, at p. 14).

The Delegates of the Commission heard both case witnesses who gave their evidence in detail and were also cross-examined by the respondent Government. They had before them extracts from the medical officer’s journal at Crumlin Road Prison, the medical examination records on arrival and on departure from the interrogation centre and colour photographs of T.6 as well as various reports by psychiatrists who also gave oral evidence.

However, the Delegates were not able to hear oral evidence from members of the security forces in relation to the allegations concerning the interrogation centre. In the first place no witnesses who had been present at that centre were made available. Secondly, the respondent Government stated at the hearing of witnesses at Sola in January 1975 that all of their witnesses had now been instructed not to reply to any questions regarding the five techniques and their use on the ground that the use of these techniques had been discontinued and that there were security considerations involved. This ‘embargo’ on the evidence also related to matters connected with a ‘seminar’ held in Northern Ireland in April 1971 by the English Intelligence Centre for members of the RUC [Royal Ulster Constabulary], where the use of the techniques was taught orally (cf. Parker Report, Minority Report, para. 6 at p. 12; also Witness 13G at VR 6, pp. 190 et seq.).

The Commission does not consider it necessary to pursue this matter any further. It is satisfied that the five methods in aid of interrogation which, as a matter of public record, were used in emergency situations at various other places before they were used in Northern Ireland in 1971 (see Parker Report, Majority Report, para. 10 at p. 3 [..]) were applied to the two case witnesses in the present case. It is further satisfied that a ‘seminar’ as described was held in April 1971 by the English Intelligence Centre.

Course of events

The evidence before the Commission bears out the allegations made by the case witnesses and confirms the findings of the Compton Committee as regards the course of the events for the persons subjected to the five techniques.

T.13 and T.6 were, together with others, arrested in the early morning hours of 9 August 1971 and brought to Magilligan Camp, being one of the three Regional Holding Centres set up to receive arrested persons. They were held there for two days and, having been selected for special interrogation were brought, on 11 August 1971, to the unknown interrogation centre. On arrival at the centre they were medically examined and at one stage they were taken by helicopter to another place where they were served with a detention order. They were taken back to the centre where they were interrogated in depth being subjected to the five techniques in the following way:

a. Wall-standing – the witnesses demonstrated how they were spreadeagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers (the stress position). They were forced to remain in this position. The exact length of time during which the witnesses were required to stand could not be established. Both witnesses said that they lost their sense of time but that it must have been many hours. The Compton Committee while describing the position as being a different one, found that T.13 had been against the wall during periods totalling 23 hours, and T.6 29 hours.

b. Hooding – a black or navy coloured bag was put over the witnesses’ heads. Initially it was kept there all the time, except during interrogations, but later T.13 was allowed to take it off when he was alone in the room, provided that he turned his face to the wall.

c. Noise – pending interrogations the witnesses were held in a room where there was a continuous loud and hissing noise.

d. Sleep – pending interrogations the witnesses were deprived of sleep, but it was not possible to establish for what periods each witness had been without sleep.

e. Food and drink – the witnesses were subjected to a reduced diet during their stay at the centre and pending interrogations. It was not possible to establish to what extent they were deprived of nourishment and whether or not they were offered food and drink but refused to take it.

The witnesses were at the centre from 11 to 17 August 1971, when they were transferred to Crumlin Road Prison in accordance with the detention order.

In 1971 T.13 and T.6 instituted domestic proceedings to recover damages for wrongful imprisonment and for assault and their claims were settled in 1973 and 1975 respectively for £ 15,000 and £ 14,000.

Physical and mental effects resulting from the use of the techniques

(i) Physical effects

The Commission is satisfied from the evidence given that the witnesses suffered loss of weight resulting from their detention at the unknown interrogation centre and from the use of the five techniques. It is furthermore established that, particularly the wallstanding technique, caused physical pain while it was being applied, but that the pain ceased when the person was no longer in that position.

(ii) Mental effects

The witnesses themselves described feelings of anxiety and fear, as well as disorientation and isolation during the time they were subjected to the techniques and afterwards. However, the intensity of such sensations was different in respect of T.13 than in respect of T.6, as a result of differences in their personality. Consequently, T.13 had been more strongly affected by the application of the techniques than T.6.

On the other hand, the psychiatrists disagreed considerably on the after-effects of the treatment and on the prognosis for recovery. Professors Daly and Bastiaans considered that both witnesses would continue for a long time to have considerable disability shown by bouts of depression, insomnia and a generally neurotic condition resembling that found in victims of Nazi persecution. Drs. 5 and 1 considered that the acute psychiatric symptoms developed by the witnesses during the interrogation had been minor and that their persistence was the result of everyday life in Northern Ireland for an ex-detainee carrying out his work travelling to different localities. In no sense could the witnesses’ experiences be compared with those of the victims of Nazi persecution.

On the basis of this evidence the Commission is unable to establish the exact degree of the psychiatric after-effects which the use of the five techniques might have had on these witnesses or generally on persons subjected to them. It is satisfied, however, that, depending on the personality of the person concerned, the circumstances in which he finds himself, and the conditions of everyday life in Northern Ireland at the relevant time, some after-effects resulting from the application of the techniques cannot be excluded.

Findings of the Commission

The five techniques in aid of interrogation were used in August 1971 on T.13 and T.6. They were applied prior to, between and during interrogations, but not after interrogation was terminated. This means that the persons concerned were subject to the techniques during at least four, possibly five, days. The exact times could not be established. The Commission is satisfied the total periods during which the two witnesses were at the wall, [were] 23 and 29 hours respectively. A certain degree of force was used to make the detainees stand at the wall in the required posture which caused physical pain and exhaustion. The posture required was a stress position and not a normal position required to search a person, although it cannot be considered to be proved that the enforced stress position lasted all the time they were at the wall.

No physical injury resulted from the application of the techniques as such, but it caused mentally a number of acute psychiatric symptoms. It cannot be excluded that in certain persons some of these symptoms continue to exist for some time afterwards.

The damages granted to them under settlements in court are substantial sums and, although it is not possible in any settlement to say what part was paid with a view to what claim, it may be presumed that the greater part of the sum was awarded in view of the allegations of ill-treatment including the application of the five techniques, having regard to sums normally awarded by courts for claims of assault as compared with sums normally granted for claims of wrongful imprisonment.


CASE OF VASILEVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

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

Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano

The applicant was born in 1963 and lives in Kavadarci.

In April 2000, while criminal proceedings were pending against a certain Mr I.A., the latter sold a lorry (“the lorry”) to a company, M.

On 13 June 2000 the Skopje Court of First Instance (“the Trial Court”) convicted Mr I.A. of smuggling nearly 9 tonnes of sugar, which he had transported in the lorry in November 1997. According to the Government, the court dismissed the prosecutor’s application to have the lorry confiscated, given that Mr I.A. had stated that he had already sold it. The court considered that the conditions for confiscation of the lorry under Article 68 (2) of the Criminal Code 1996 (see paragraph 21 below) had not been fulfilled: specifically it had not been established that the lorry could be used again to commit an offence; that the confiscation had been necessary for the protection of safety or for reasons of ethics; and that the lorry had been specially adjusted for the commission of specific type of offences. On 20 November 2001, following separate appeals by Mr I.A. and the public prosecutor, the Skopje Court of Appeal found the public prosecutor’s application immaterial (беспредметна) and quashed all aspects of this judgment.

On 17 September 2003 the Trial Court convicted Mr I.A. in absentia. It fined him and ordered, under Article 278 (3) of the Criminal Code 1996, the confiscation of the lorry and the sugar (“the confiscation order”). In the absence of an appeal, the judgment became final on 29 October 2003.

On 6 September 2004 the company M. sold the lorry to the applicant, who later registered the lorry in his name.

On 12 June 2006 the Kavadarci Court of First Instance (“the first-instance court”) enforced the confiscation order of 17 September 2003 against the applicant and issued a record of enforcement (записник за извршување).

On 15 November 2006 the applicant objected to the enforcement of the confiscation order, arguing that Mr I.A. had died on 21 March 2005 and that the confiscation order accordingly could not be enforced. There had been no injunction restricting the sale of the lorry. He had been the lawful owner and he had been making his living using the lorry. Lastly, he stated that he had sought, in separate civil proceedings, return of the lorry (see paragraph 14 below).

On 20 November 2006 the execution-of-sanctions judge of the Trial Court rejected the objection as inadmissible, finding that the applicant had no procedural standing. It found that the confiscation order had been enforced in accordance with section 355 of the Enforcement of Sanctions Act (see paragraph 26 below). It further found that the applicant, as the third person from whom the lorry had been confiscated, could assume his rights under section 129(5) of the Criminal Proceedings Act (see paragraph 25 below).

The applicant appealed. On 6 December 2006 a three-judge panel of the Trial Court dismissed his appeal reiterating that he had no right to object to the enforcement of the confiscation order. However, he had been entitled to claim, in civil proceedings, return of the lorry. Civil courts had jurisdiction, under section 129(5) of the Criminal Proceedings Act, to reverse a final confiscation order issued in criminal proceedings and order the return of the confiscated item.

On 19 June 2006 the applicant submitted a civil claim seeking that the first-instance court declare him to be the owner of the lorry and to order the State to restore it to his possession. In the case of failure of his first claim, he sought that the State would reimburse him for the upgrades made to the lorry. In this latter context, he identified the upgrades that he had installed in the lorry. He further maintained that he was the bona fide and lawful owner of the lorry. He argued that the authorities had failed to seize the lorry immediately after the offence had been committed (на лице место) and to note a ban on the sale of the lorry on its registration certificate. As he was making his living off the lorry, he requested an injunction restricting the State from selling or otherwise disposing of the lorry until the final resolution of the dispute.

By decisions of 29 June and 16 November 2006 respectively, the first-instance court and the Skopje Court of Appeal (“the second-instance court”) dismissed the applicant’s application for an injunction finding no evidence that in the absence of such a measure his claim would be considerably affected or that he would sustain irreparable damage.

On 2 March 2007 the applicant informed the first-instance court that Mr I.A. had died in Austria in 2005.

On 10 May 2007 the first-instance court dismissed the applicant’s claim. It established that Mr I.A., who knew that the lorry could have been confiscated, had sold it to the company M. At the relevant time, neither the manager of M. nor the applicant had known that the lorry had been used in the commission of the offence and that it had been subject to a confiscation order. Relying on Articles 68 and 278 (3) of the Criminal Code (see paragraphs 21 and 22 below), the court stated that:

“Confiscation is a safety measure, the typical aim of which is to remove conditions which are convenient for the commission of offences, and it is a condition for ordering such a measure that the offender has been sentenced, as in the present case. The court considers that it is mandatory to confiscate the [lorry] under the afore-mentioned provisions, because this safety measure has a wider influence [in the sense of] general deterrence of all future offenders of this type of offences, and otherwise the offenders would be encouraged, after the offence has been committed, to dispose of the means with which they committed the offence and, thus, to even acquire pecuniary benefit; furthermore that would have a negative influence on the ethics of the wider public, [that is to say] on general deterrence ...

... Given that from the evidence and the above-mentioned statutory provisions it has been established that the [lorry] in question was confiscated in favour of [the respondent State] in lawful proceedings, the court finds that the [respondent State] has therein obtained ownership of the [lorry] in question on the basis of a final and enforceable judgment ... in accordance with sections 112(2) and 154 of the [Property Act.]

For these reasons, the court dismisses the [applicant’s] main claim and also the alternative claim, because it concerns upgrades made to the [lorry].

On the other hand, the court considers that the [applicant], as the bona fide owner, can be indemnified for the value of the entire [lorry], including the upgrades, but solely from the offender, [Mr I.A.], in accordance with Article 68 (3) of the [Criminal Code], and not from the [respondent State] ...

The court dismisses as groundless the argument that at the moment of confiscation of the [lorry] in question it was not owned by [Mr I.A.] but by the [applicant] as the bona fide possessor (совесен владетел), given that from the evidence it was established that when the offence was committed the [lorry] was owned by [Mr I.A.] and the safety measure confiscation of the [lorry] was issued on those grounds. The court also considers groundless the [applicant’s] representative’s arguments that under section 129(5) of the Criminal Proceedings Act the final decision for confiscation of the [lorry] could be amended with a decision in civil proceedings if there were a dispute concerning the ownership of the confiscated items, given that this provision would have been applied if the [lorry] had been sold to the [applicant] before the offence was committed and had, under any legal basis, remained in the factual possession of the convicted [Mr I.A.] and he, after having sold it, committed the crime; but in the present case it is vice versa; firstly the offence was committed and then the [lorry] was sold.”

The court also established that the applicant had upgraded the lorry to the value of 69,150 Macedonian denars (MKD). Furthermore, on the basis of the applicant’s and two witnesses’ statements, the court established that the applicant had bought the lorry for 4,300 euros (EUR).

The applicant appealed. He stated that he had previously requested that the first-instance court obtain evidence from the Ministry of the Interior which would confirm that Mr I.A. had died in Austria in 2005. He argued that the domestic authorities had failed to ban Mr I.A. from disposing of the lorry or to seize the lorry at the time the offence had been discovered. He also argued that he was the bona fide owner and that he had obtained title to the lorry by adverse possession (одршка). The first-instance court had incorrectly applied section 129(5) of the Criminal Proceedings Act. The lorry had been confiscated nine years after the offence had been committed. The State had been unlawfully enriched by the value of the upgrades installed by the applicant.

On 19 October 2007 Skopje Court of Appeal (“the second-instance court”) dismissed the applicant’s appeal finding no grounds to depart from the established facts and reasons given by the lower court. On 13 November 2007 this judgment was served on the applicant.


Violation of Article 14+5 - Prohibition of discrimination (Article 14 - Discrimination) (Article 5 - Right to liberty and security;Article 5-1 - Deprivation of liberty;Article 5-1-a - After conviction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1983 and lives in Cheboksary.

On 19 July 2005 the Chertanovskiy District Court in Moscow found the applicant guilty of kicking a police officer while intoxicated, an offence under Article 318(1) of the Criminal Code, and sentenced him to one year’s imprisonment. The District Court explained the decision to impose a custodial sentence in the following manner:

“When sentencing the defendant, Mr Aleksandrov, the court takes into account the nature and degree of the social danger of the offence, all the , and the information regarding the defendant’s personality: [he] has never incurred any criminal or administrative liability, he is not registered [as a drug addict or as a person suffering from psychotic disorders], he was given positive references by his neighbours and employers, [and] his military registration has been annulled because of a kidney disease. The court accepts the above-mentioned circumstances as mitigating the defendant’s guilt; however, it does not find any grounds for sentencing [him] to probation or imposing a fine on him, given the particular circumstances in which the offence was committed and the fact that [he] does not have a permanent place of residence in Moscow or in the Moscow Region”.

The applicant appealed, claiming in particular that he had been discriminated against by the trial court’s refusal to impose a non-custodial sentence on the grounds that he did not have a permanent residence in Moscow or in the Moscow Region, even though there had existed circumstances calling for the mitigation of his sentence.

On 29 August 2005 the Moscow City Court dismissed the appeal. It held, in a summary fashion, that the trial court had complied with every legal requirement and had issued a reasoned judgment, having sentenced the applicant to a term of imprisonment.


Preliminary objection allowed (Article 35-1 - Effective domestic remedy)

Aleš Pejchal;Alvina Gyulumyan;András Sajó;David Thór Björgvinsson;Dean Spielmann;Françoise Tulkens;Ganna Yudkivska;Guido Raimondi;Helen Keller;Ineta Ziemele;Isabelle Berro-Lefèvre;Ján Šikuta;Josep Casadevall;Khanlar Hajiyev;Kristina Pardalos;Mark Villiger;Nona Tsotsoria;Päivi Hirvelä;Vincent A. De Gaetano;Ksenija Turković

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

The applicants were all reservists who had been drafted by the Yugoslav Army in connection with the North Atlantic Treaty Organisation’s intervention in Serbia. They remained in military service between March and June 1999, and were thus entitled to a certain per diem under the Rules on Travel and Other Expenses in the Yugoslav Army (see paragraph 44 below) and by virtue of two separate decisions (nos. 03⁄825-2 and 06⁄691-1) adopted by its Chief of Staff on 1 and 3 April 1999 respectively.

However, following the demobilisation the Government allegedly refused to honour their obligation to the reservists, including the applicants.

The reservists subsequently organised a series of public protests, some of which ended in open confrontation with the police. Ultimately, following protracted negotiations, on 11 January 2008 the Government reached an agreement with some of the reservists (“the Agreement”), in particular those residing in the municipalities of Kuršumlija, Lebane, Bojnik, Žitorađa, Doljevac, Prokuplje and Blace, whereby these reservists were guaranteed payment in six monthly instalments. This payment was to be effected through their respective municipalities, aggregate sums having been specified per municipality. The said municipalities were apparently chosen because of their “underdeveloped” status, implying the reservists’ indigence. For their part, the reservists in question agreed to renounce all their outstanding claims based on their military service in 1999 which were still pending before the civil courts, as well as any other claim in this connection. It was, lastly, stipulated that the criteria for the distribution of the “financial aid” in question should be set out by a Commission consisting of local government representatives and the representatives of the reservists themselves.

The applicants, like all other reservists without a registered residence in one of the seven municipalities in question, could not benefit from the Agreement.

On 26 March 2009 the applicants therefore filed a civil claim against the respondent State based on the regulations referred to in paragraph 13 above. In their submissions, they pointed inter alia to the discrimination resulting from the Agreement. By way of redress (tužbeni zahtev), the applicants requested the payment of specific sums on account of the per diems in question, as well as certain other benefits, without relying on any anti-discrimination provision – domestic or international – or otherwise referring to the issue of discrimination.

On 8 July 2010 the Niš Court of First Instance (Osnovni sud) ruled against the applicants. In so doing, it acknowledged that their claim had a valid legal basis but noted, as pointed out by the respondent, that the applicable prescription period had been three years as of their demobilisation, in accordance with section 376 § 1 of the Obligations Act (see paragraph 49 below). The applicants’ claim had thus been filed out of time.

On 2 August 2010 the applicants lodged an appeal against that judgment, complaining about various procedural violations allegedly committed at first instance, the failure of the court in question to properly establish all of the relevant facts, and the erroneous application of the applicable prescription periods. The applicants also referred to the Agreement, in so far as other reservists had thus resolved their problem without litigation, but they did not rely on any anti-discrimination provision, domestic or international.

On 16 November 2010 the Niš Court of Appeal (Apelacioni sud) upheld the impugned judgment on appeal, and it thereby became final. In its reasoning the court stated, inter alia, that the per diems had indeed “only been partly paid” by the Ministry of Defence (Ministarstvo odbrane) but that both the three-year and the five-year prescription periods provided for in section 376 §§ 1 and 2 of the Obligations Act had already elapsed before the applicants had filed their civil claim (see paragraph 49 below). The Court of Appeal considered the Agreement as having no bearing on the matter since the applicants had sought payment of the sums owed to them on a different legal basis.

Having been served with the Court of Appeal’s decision, on 21 January 2011 the applicants lodged a further appeal (ustavna žalba) with the Constitutional Court (Ustavni sud). Relying on Articles 32 and 36 of the Constitution (see paragraph 32 below) and Article 6 of the Convention, they complained about the fairness of the civil proceedings and the erroneous application of the relevant domestic law, including the provisions concerning prescription. The applicants also maintained that the impugned judgment of the Niš Court of Appeal was inconsistent with numerous judgments adopted by other appellate courts in Serbia – that is the district courts (okružni sudovi) while they existed, as well as the high courts and the courts of appeal (viši i apelacioni sudovi) thereafter – which on the same facts had applied a longer, ten-year, prescription period and ruled in favour of the plaintiffs (see section 371 of the Obligations Act, in paragraph 48 below). Lastly, the applicants mentioned the Agreement and the Government’s subsequent decision endorsing it, but did not elaborate on their substance and⁄or impact.

On 5 December 2012, following the adoption of the judgment by the Chamber in the present case, the Constitutional Court ruled in favour of the applicants as regards their complaints of inconsistent domestic case-law in respect of the civil courts’ application of the statutory time-limitation (the same complaints the Chamber had rejected as manifestly ill-founded – see paragraphs 54-60 of its judgment of 28 August 2012), but made no mention of the Agreement. The Constitutional Court accordingly found a violation of Article 36 § 1 of the Constitution. It ordered that its decision be published in the Official Gazette of the Republic of Serbia, deeming this sufficient redress in a situation where the civil courts had, despite the said inconsistency, applied the relevant substantive law based on a “constitutionally acceptable interpretation” thereof. For more detailed reasoning, the Constitutional Court referred to its decision of 7 November 2012 concerning the same issue in another case involving different appellants (Už. 2156⁄11).

The Constitutional Court’s decision of 7 November 2012 referred, inter alia, to the inconsistent case-law in question, citing specific judgments irrespective of the time-frame, and found a violation of the appellants’ right to equal protection before the courts as guaranteed under Article 36 § 1 of the Constitution. The Constitutional Court was of the opinion that the courts of last instance, by ruling differently on the validity of claims based on identical facts and law, had placed appellants whose claims had been rejected in a materially different position from that of claimants whose claims had been allowed. There had accordingly been a violation of Article 36 § 1. However, the Constitutional Court considered that the allegations before it presented no constitutional basis upon which it could establish a violation of the appellants’ right to a fair trial in so far as they complained about procedural fairness and the civil courts’ allegedly inadequate characterisation of the legal nature of their claims. The appellants’ additional complaint, raised under Article 21 of the Constitution, was also rejected. In particular, there was no evidence to corroborate the claim that the first- and second-instance court decisions in the appellants’ civil case had been rendered on the basis of any “personal qualities”, this being a precondition for determining the existence of a violation of the principle of non-discrimination. The Constitutional Court took note of the Chamber’s finding of 28 August 2012 of a violation of the prohibition of discrimination under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 (see paragraph 7 above; for additional constitutional case-law to this effect, see decision Už. 2886⁄10 of 4 October 2012, as well as decisions Už. 649⁄11 and Už. 2021⁄11, both of 12 December 2012, in their relevant parts), but for reasons that were different from those stated in this particular constitutional appeal. The fact that the latter complaint had been dismissed did not affect the State’s obligation to act in accordance with the European Court’s decision in respect of all persons, including the appellants, whose war per diems had not been paid out.

Between 2002 and early March 2009 first-instance and appellate courts across Serbia ruled both in favour of reservists in a situation comparable to that of the applicants and against them, relying on the threeyear⁄five-year or ten-year prescription periods respectively (for examples of cases where the reservists were successful see, among numerous others, Belgrade District Court judgments Gž. 1703⁄05 and 2386⁄08 of 13 April 2005 and 16 July 2008 respectively).

In the meantime, in 2003 and 2004 the Supreme Court had adopted two legal opinions (pravna shvatanja), both of which implied that the applicable prescription period should be three or five years pursuant to section 376 §§ 1 and 2 of the Obligations Act (see paragraph 49 below).

Between 25 February 2010 and 15 September 2011 various appellate courts substantively ruled in compliance with the Supreme Court’s opinions of 2003 and 2004 (see, for example, Kraljevo High Court decision Gž. 1476⁄11 of 15 September 2011; Valjevo High Court decisions Gž. 252⁄10 of 25 February 2010, 806⁄10 of 27 May 2010, 1301⁄10 of 30 September 2010, 1364⁄10 of 4 November 2010 and 355⁄11 of 24 March 2011; Kruševac High Court decisions Gž. 38⁄11 of 27 January 2011, 282⁄11 of 7 April 2011 and 280⁄11 of 26 April 2011; and Niš Court of Appeal decisions Gž. 2396⁄10 of 23 June 2010, 3379⁄2010 of 2 July 2010, 2373⁄2010 of 21 July 2010 and 4117⁄2010 of 30 November 2010).

Between 17 June 2009 and 23 November 2011 there were also a number of decisions where appellate courts ruled against the reservists, albeit on a different ground. Their claims, unlike those of the applicants in the present case, were rejected as being administrative in nature and as such falling outside the competence of the civil courts (see Belgrade District Court decision Gž. 7773⁄09 of 17 June 2009, and Belgrade High Court decisions Gž. 11139⁄10, 11636⁄10 and 10897⁄10, of 17 November 2010, 23 November 2011 and 23 November 2011 respectively).

On 17 January 2008 the Government endorsed the Agreement, and decided to pay the municipalities in question the amounts specified therein.

On 28 August 2008 the Government set up a working group tasked with addressing the requests of all other reservists, that is to say those not resident in the seven municipalities mentioned above. However, having discussed the issue with various groups of reservists, this working group ultimately concluded that their demands were not acceptable, inter alia because: (a) they had not harmonised or specified their requests; (b) some of their representatives had had dubious standing to represent them; (c) there was a lack of State funds which could be used for this purpose; and (d) in most cases, war per diems had already been paid to the reservists.

On 26 July 2011 the Commissioner for the Protection of Equality (Poverenica za zaštitu ravnopravnosti), an Ombudsman-type office established on the basis of the Prohibition of Discrimination Act (see paragraphs 40 and 41 below), considered the complaints brought by an organisation representing the interests of reservists in a situation comparable to that of the applicants. She concluded that they had been discriminated against on the basis of their registered residence, that is as non-residents of the seven privileged municipalities, and recommended that the Government take all necessary measures in order to ensure that all reservists were afforded the payments recognised by their decision of 17 January 2008. The Government were also invited to provide the Commissioner with an appropriate “action plan” within a period of thirty days. In its reasoning, the Commissioner’s decision noted, inter alia, that the payments in question were per diems, notwithstanding that the Government had chosen to consider them as social benefits awarded to persons in need (socijalna pomoć), and that this was best exemplified by the fact that the reservists in question had had to renounce their legal claims concerning the per diems, as well as the fact that the individual reservists resident in the seven municipalities in issue were never under an obligation to prove their indigence (imovinsko stanje i socijalnu ugroženost). This being so, there was clearly no objective and reasonable justification for the differential treatment of reservists merely on the basis of their place of residence.

On 7 December 2011 the Ministry for Labour and Social Affairs (Ministarstvo rada i socijalne politike) noted that discussions should continue with the various groups of reservists and that, if possible, financial support should be offered to the most indigent among them.


Violation of Article 3 - Prohibition of torture (Article 3 - Positive obligations) (Procedural aspect);No violation of Article 38 - Examination of the case-{general} (Article 38 - Examination of the case)

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

The applicant was born in 1965 and lives in Chastoozerye, the Kurgan Region, Russia.

The applicant and his family are of Chechen ethnic origin. They live in the Chastoozerskiy district of the Kurgan Region (also called Chastoozerye). According to the applicant, at the time of the events in question the population of the Chastoozerye district constituted about 6,000 persons, of whom about 50 were of Chechen origin.

The applicant submitted that attitudes towards the Chechen minority had worsened after 2000, when the second armed conflict in Chechnya had started. Two Russian nationalist organisations were particularly active in the Region: Russian National Unity (RNE) and Russian National Cultural Autonomy (RNKA).

It appears from the applicant’s statements and other documents that prior to 18 May 2002 there was a conflict between individuals involving Chechens. This was perceived by some as mounting ethnic tension in the district. In particular, the applicant claimed that a resident of Kurgan, Mr A.I., the manager of a sausage factory in Chastoozerye, and Mr S.K., a boxing coach from Chastoozerye, had invited the Chechen community and some nationalist Russian groups to meet to “settle the dispute” on 18 May 2002. Pursuant to a statement of 3 June 2006 given by Mr D.A., who calls himself “the spiritual leader of the Chastoozerye Chechens”, on 18 May 2002 he had transmitted this information to the district prosecutor and the head of the administration in order that measures could be taken with a view to maintaining law and order (see below).

In the afternoon of 18 May 2002 a group of police officers was deployed on the main road of Chastoozerye, near the sausage factory. At about 5 p.m. this group stopped the applicant’s car, in which there were also two other Chechen men from Chastoozerye, Mr S.-A.B. and Mr U.B. Their vehicle was inspected, together with their documents. The car then proceeded to Mr S.-A.B.’s house at no. 28 Marx Street.

At about 5.30 p.m. three cars – a white and a red VAZ 2110 and a Moskvich 2115 – passed the same police officers and stopped in front of the house. About fifteen men, including Mr S.K., got out of the cars and invited the applicant and Mr U.B. to get into the cars and accompany them. When they refused, one of the men shot the applicant in one knee, and then in the other knee, with an airgun. They then beat the two men with baseball bats, as a result of which the applicant’s right arm was broken.

The applicant was left on the road in front of Mr S.-A.B.’s house, while Mr U.B. was forced into the Moskvich and driven to the sausage factory. There was a crowd of up to 70 men there, including the manager Mr A.I.; they beat Mr U.B. with metal rods, baseball bats and pipes. During the beatings the crowd shouted nationalist and anti-Chechen slogans. The police eventually intervened and set Mr U.B. free. Later the same day the applicant and Mr U.B. were taken to the local hospital by Mr D.A. The applicant did not submit any medical documents to the Court, but the criminal investigation (see below) cited two forensic expert reports describing his and Mr U.B.’s injuries.

It appears that other incidents not involving the applicant directly took place later that day in Chastoozerye. A group of men of Chechen ethnic origin remained in the forest near the village; in the early hours of 19 May 2002 the police rounded them up and found weapons and home-made explosive devices. This group was taken to the district police department (ROVD) by officers of the police special forces (SOBR). They were released after they had spent the night at the police station where, allegedly, they had also been beaten and insulted.

The applicant submitted a list of the documents contained in criminal investigation file no. 96348 and extracts from (not copies of) some of the documents. According to his notes, by 2006 the case file contained 255 pages of documents in two volumes. The Government did not contest the applicant’s description of the investigation, but supplemented it with information on later developments. The most relevant information may be summarised as follows.

On 18 May 2002 the Chastoozerye ROVD opened a criminal investigation under Article 111, part 3, (intentional infliction of serious injuries committed by a group of persons or as a result of conspiracy).

On 13 June 2002 the head of the Kurgan Department of the Interior set up a group of five police investigators to work on the case.

Between August 2002 and June 2004 the investigation was suspended and resumed on five occasions. Following the applicant’s latest complaint, on 28 June 2011 the decision of 11 June 2004 adjourning the investigation was quashed and the case was sent for further processing to the police investigation department of the Kurgan Region. The prosecutor’s office letter of the same date acknowledged that the applicant had not been timeously informed of the decision to adjourn the case in June 2004.

On 10 August 2011 the investigation was again suspended, since the perpetrators could not be identified.

On 18 May 2002 the applicant was questioned and granted victim status.

On 22 May 2002 the applicant submitted a written statement to the Chastoozerye District Prosecutor (“the district prosecutor’s office”), describing the events of 18 May 2002 and asking for a criminal investigation to be carried out into the incident in which he had sustained his injuries. In his statement the applicant named Mr. S.K. as one of the perpetrators and the owner of the Moskvich vehicle.

Mr U.B. was questioned on 18 May 2002; on 18 June 2002 he was additionally questioned and granted victim status. He named Mr. A.I., the sausage factory manager, as one of the persons present at the factory during his ill-treatment, and Mr S.K. as the owner of the car in which he had been transported. He also described several other attackers in some detail, including a Mr Ye.P.

On 22 May 2002 a forensic expert found that Mr U.B. was suffering from the consequences of beatings and that one rib was fractured; the injuries were therefore moderately serious.

On 28 June 2002 a forensic expert found that the applicant had suffered two gun-shot wounds from pellets in the knees, resulting in fractures of the tibiae; and a fracture of the right elbow caused by a blow with a blunt instrument. These were described as moderately serious injuries.

In May 2003 the applicant was again questioned. He described the attack on him, again mentioning Mr S.K. as one of the perpetrators. He further stated that Mr U.B. had gone to Chechnya and would not be able to identify the other attackers.

On 19 May 2002 about a dozen men - local residents of Chechen ethnic origin - were questioned by the police. Most of them confirmed that on 18 May 2002, after 7 p.m., they had had a pre-arranged meeting with Mr A.I. During the meeting he had told them that the men who had injured the applicant and Mr U.D. had already left. After the meeting they had gone into the forest to avoid further violence.

On 3 June 2002 Mr D.A., the “spiritual leader of the Chastoozerye Chechens”, submitted a written statement to the head of the Kurgan Region Police. Mr D.A. described the events of 18 May 2002, indicating that at 10 a.m. on that day he had informed the district prosecutor and the head of the administration about the forthcoming gathering of an anti-Chechen group in Chastoozerye. He then described the attack on the applicant and Mr U.B. and the subsequent detention and ill-treatment of the Chechen men by the police. He asked the police to investigate the crimes committed.

In July 2002 the investigators questioned a number of other Chechens, including the applicant’s brother. They described the attack on the applicant and the subsequent events of 18 May 2002, referring in particular to Mr S.K. and Mr A.I. as active participants in the violence.

On an unspecified date, 28 ethnic Chechen men residing in Chastoozerye submitted a complaint to the prosecutor of the Kurgan Region. They described the events prior to 18 May 2002, as well as the attack on the applicant and Mr U.B. They also complained about their detention at the ROVD on the night of 18 to 19 May 2002, stating that they had been subjected to beatings and insults.

On 18 and 19 May 2002 the investigators questioned a dozen men who had been present at the sausage factory during the events. Some of them stated that they had come to Chastoozerye to spend the weekend with Mr. A.I., to play football and go to the sauna together. Others stated that they had been told by their friends that “their help was needed” at a meeting with Chechens. Most of them confirmed that a group of up to 80 men had gathered at the sausage factory in the afternoon of 18 May 2002 and that they had discussed the conflict involving the local Chechens. No one mentioned the incident with the applicant or the beating up of Mr. U.B.

On 19 May 2002 Mr U.B. identified Mr Ye.P. in a line-up as one of the men who had attacked him in Marx Street and then at the sausage factory.

Mr A.I. was questioned on 19 May 2002 and then again on 19 June 2002. During the first questioning he stated that on the previous day some of his friends had come to Chastoozerye to spend the weekend together or for business reasons. They had learnt that the Chechens were planning a violent confrontation and decided to stay with him. At about 6 p.m. one Chechen man had come to the sausage factory and told him that someone had shot at one of his compatriots, but Mr A.I. had denied any knowledge of this and the man had left. After 8 p.m. several cars containing Chechens had come to the sausage factory but Mr A.I. and the police who were there had prevented further violence.

During his second questioning Mr A.I. named several of the men who had come to the sausage factory on 18 May 2002, including his brother Mr D.I. – the factory owner – and Mr Ye.P. He confirmed that he had arranged a meeting with the Chechens on that day in order to “discuss their behaviour with them” and that he had invited his friends to attend the meeting “in order to support him”. His friends had arrived unarmed. At about 6 p.m. he had seen a group of men beating Mr U.B. in the courtyard of the sausage factory; he had intervened and stopped the beating. He did not know the men who had been beating Mr U.B. Several cars containing Chechens had then arrived and he and the police officers had intervened to prevent further violence. The Chechens had then left, taking Mr U.B. with them.

In June 2002 the police compiled a list of about 20 men and 6 vehicles that had come to Chastoozerye on the day in question. Most of the men were questioned in June and July 2002 and confirmed that they had come to Chastoozerye because they had “heard about problems involving Chechens”, but denied that they had taken part in attacks on the applicant or Mr U.B.

On 19 June 2002 Mr S.K. was questioned as a witness. He stated that he had been made aware of the conflict with the Chechens by Mr A.I. but that he had not planned to take part in the meeting arranged for 18 May 2002. On the evening of that day he had been driving his car along Marx Street when he had seen a man lying on the ground and several men standing around. One of them, brandishing a gun, had ordered him to take the wounded man to the sausage factory. Mr S.K. did not know these men and would not be able to identify them; he had then seen them continue to beat the man at the sausage factory and had left immediately. In July 2003 Mr S.K. was questioned again; he repeated his previous statements about the attack on the applicant.

On 25 June 2002 Mr Ye.P. was questioned as witness. He explained that on the day before 18 May 2002, Mr A.I. had called him and invited to come, with his friends, to a “rendez-vous” with Chechens in Chastoozerye. He then named several men who had come with him from Kurgan, and the vehicles in which they had travelled. He confirmed that he had had a baseball bat in the trunk of his car, and that their vehicle had not been inspected by police. Soon after 5 p.m. he had seen a large crowd at the sausage factory, many of them armed with rods and sticks. He had witnessed the crowd beating one Chechen but denied that he had taken part.

In July 2002 the applicant identified four men, including Mr Ye.P., as the perpetrators of the attack.

A police officer from the Chastoozerye ROVD stated that on 18 May 2002 he had been manning a post on the road near the sausage factory. He and another police officer had searched vehicles for arms, but nothing had been found.

In June 2002 two other police officers confirmed that they had inspected a number of vehicles containing young “fit-looking” men which had arrived in Chastoozerye on 18 May 2002; no arms or other dangerous items had been found. Later at the sausage factory one police officer had seen Mr A.I. and Mr S.K. in the crowd; the latter had behaved in an aggressive manner and incited the crowd.

In June 2002 the investigators questioned about a dozen local residents. Some of them had seen the Moskvich car being driven by Mr S.K. in Marx Street. Others had been aware of the “tensions” with the Chechens and of the “rendezvous” on 18 May 2002. No one had witnessed the attack on the applicant.

On 18 and 19 May 2002 the investigators searched Marx Street and collected cartridges from airguns and pellets. Pellets were also extracted from the applicant’s wounds.

On 19 May 2002 the premises of the sausage factory were searched, but nothing of relevance was found.

On 19 May 2002 the police compiled a list of twelve vehicles present in Chastoozerye on the day of the incident, and of their owners.

On 19 May 2002 the police examined the place in the forest where the group of Chechen men had gathered in the evening of 18 May 2002. There they collected metal rods and pipes, wooden sticks, bottles containing inflammable liquid (gasoline), knives, one hand pistol and one hunting gun. On the same day searches were carried out of the houses of Mr S.-A.B. and another Chechen resident in Chastoozerye. A separate criminal investigation was opened on 20 May 2002. Its outcome is not known.

In their observations of July 2012 the Government, without citing or appending any documents from the criminal investigation, also stated that six hunting guns had been collected from persons who had come to Chatoozerye upon Mr A.I.’s invitation. The ballistic expert reports had not linked any of these weapons to the cartridges collected at the site.

On 13 June 2002 the district prosecutor’s office decided not to bring charges of incitement to racially motivated hatred (Article 282 of the Criminal Code) against Mr. A.I. on account of lack of evidence of a criminal act.

On 28 June 2002, pursuant to the applicant’s complaint, that decision was quashed by the Kurgan Region prosecutor’s office.

On 12 July 2002 the district prosecutor’s office again ruled not to open a criminal investigation against Mr. A.I.

In parallel to these proceedings, on 13 June 2002 the district prosecutor’s office ruled not to charge Mr. S.K. and Mr. A.I. with incitement to racially motivated hatred on account of lack of evidence of a criminal act. On 26 June 2002 that decision was quashed by the Kurgan Region prosecutor’s office and the case was remitted to the district prosecutor’s office.

In the new round of proceedings, the investigator questioned the applicant, who confirmed his previous statements about Mr. S.K.’s and Mr. A.I.’s roles in the events. Several residents of Chastoozerye denied that they had been called on to take part in the “disturbances” against the Chechens. Several of the men who had gathered at the sausage factory on 18 May 2002 denied that they had been invited there by anyone. The head of the district administration confirmed that he had seen RNE flyers prior to 18 May 2002, but stated that he had been unaware of their provenance and had not considered them to contain incitements to ethnic violence. On 6 August 2002 the district prosecutor’s office again ruled to close the criminal proceedings against Mr. S.K. and Mr. A.I. for lack of evidence of a crime.

On 16 September 2002 that decision was quashed. In the new round of proceedings, the investigator additionally questioned several men who had gathered on 18 May 2002 at the sausage factory; all of them stated that they regularly came to Chastoozerye at Mr. A.I.’s invitation to spend weekends together and that they had not been aware of any incitements to ethnic violence. They had not carried or seen any items which could serve as weapons, such as metal rods or baseball bats, and had not seen any RNE flyers on the factory premises. On 1 October 2002 the district prosecutor’s office ruled not to bring charges against the two men. That decision appears not to have been appealed against.

On 12 November 2004 the investigator of the Kurgan Region Police Department ruled not to open criminal proceedings against persons unknown. The decision was taken in response to a letter from the applicant’s representative claiming that the applicant’s injuries had been caused in the context of incitement to ethnic hatred. The decision referred to pending criminal investigation no. 96348 and the absence of information on the alleged perpetrators of that crime. It also referred to the fact that no charges had been brought under Article 282 of the Criminal Code (incitement to ethnic or religious hatred) in the entire Kurgan Region in 2002-2004. It appears that the decision was not appealed against.

On 14 June 2002 the Chastoozerye district prosecutor’s office decided not to open a criminal investigation into the actions of the SOBR servicemen. The decision referred to the conclusions of the preliminary inquiry, according to which the actions of the police officers had been lawful; no one had sought medical help on 19 or 20 May 2002 in relation to police violence; no individual complaints about police actions had been lodged between 19 May and 12 June 2002.

On 28 June 2002 the decision was quashed by the Kurgan Region prosecutor’s office.

On 12 July 2002 the district prosecutor’s office again decided not to open a criminal investigation concerning the police officers’ actions.

On several occasions the applicant and his representative attempted to lodge complaints with the courts under Article 125 of the Criminal Procedural Code about failure by the prosecutors to act diligently. Some of the complaints were left without consideration owing to alleged procedural irregularities or because the applicant had failed to indicate the particular actions he was challenging.

On 30 May 2006 the Chastoozerye District Court dismissed the applicant’s complaint about the district prosecutor’s office’s failure to supervise the criminal investigation of case no. 96348. The court found that the prosecutor’s office had taken all possible steps in response to the applicant’s complaints and that the police investigator had taken all possible steps to identify the perpetrators of the crime, even if those steps had failed to produce a result.

The applicant lodged a complaint against that decision, and on 1 August 2006 the Kurgan Regional Court quashed the District Court’s ruling and closed the proceedings. It found that the complaint could not be examined by the court on its merits because the applicant had failed to indicate the specific decisions and actions which had infringed his rights. The District Court was not competent to replace the prosecutor’s office or to evaluate the latter’s work in supervising criminal investigations. The complaint had therefore to be dismissed without examination.

On 25 May 2012 the deputy prosecutor of the Kurgan Region quashed the decision of 10 August 2011 (see paragraph 17 above) suspending the investigation and forwarded the file to the investigative department of the Kurgan Region Ministry of the Interior. He pointed out that the exact circumstances of the events had not been established, including in relation to Mr U.B.’s allegation that Mr Ye.G. had taken a silver chain off his neck. Although Mr U.B. had identified Mr Ye.G. and Mr S.K. as the perpetrators of the crime, no steps had been taken to resolve the serious discrepancies between the statements of Mr S.K., Mr Ye.G. and Mr U.B. Nor had proper identification parades or confrontations between them been carried out.

The applicant submitted a number of copies of press articles and flyers concerning the events. A copy of a newspaper edited by the RNKA called Natsionalnaya Mysl (National Thought), issue no. 1(7) 2002, contained an article in which the events in Chastoozerye were described as a justified reaction by the local population, which was “enslaved” and “occupied” by “aliens from the Caucasus mountains”. The same newspaper contained an open letter to the Governor of the Kurgan Region signed by the head of the RNKA. It described the events in Chastoozerye as “the first call” of the “Russian protest” and invited the Governor to rely on the local Cossacks in order to maintain peace in the region.

Other publications described the events in Chastoozerye as a major ethnic clash between hundreds of armed men which had been dispersed by special police forces (Ural-MK in Kurgan, 20-27 June 2002, and Strana.ru, 21 June 2002).

An undated RNE flyer referred to the events in the following way:

“... one of the predators was hit by a bullet, others were similarly rewarded. ... 500 armed men had come out for a ‘talk’ with [200] mountainous jew-predators ... [thus] the Orthodox Russian Dawn rises! Death to the villain! Hail the heroes! Russian rule for Russia!”


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

The applicant, Mr Shabir Ahmed, is a British national who was born in 1953. He is detained at HMP Wakefield.

Between 6 February and 8 May 2012 the applicant and nine other men were tried at Liverpool Crown Court before HHJ Clifton and a jury. The men were charged with a range of sexual offences against young girls. There were twenty-two counts in the indictment. The applicant faced charges of: conspiracy with his co-defendants to engage in sexual activity with children (count 1A in the indictment), trafficking within the United Kingdom for sexual exploitation (count 2), two counts of rape (counts 3 and 4), aiding and abetting another to rape (count 5), and sexual assault (count 6). His co-defendants faced similar charges.

The media gave extensive coverage to the proceedings. Some, including the British National Party and the English Defence League, attributed a racial dimension to the case given that the defendants were of Asian origin and the complainants were not. The BNP protested at the preliminary court hearings in the case. For these reasons, prospective jurors who indicated on the jury questionnaire that they were associated with the BNP or EDL were excluded. The trial venue was also moved from Bolton (where the offences were alleged to have taken place) to Liverpool to minimise the effect of that publicity.

At the start of the trial, the trial judge warned the jury not to discuss the case outside of the jury room and to discuss it only with their fellow jurors. He repeated this warning whenever the jury separated.

The jury began their deliberations on 1 May 2012. At that time, the judge directed that no verdicts were to be published until all verdicts against all of the defendants had been returned. This was to avoid the jury being subject to pressure from media reports or public demonstrations.

The jury separated at the end of the day on 1 May and resumed their deliberations on 2 May. In the course of their deliberations on 2 May they sent the trial judge notes asking to be reminded of the accounts given to the police by certain of the complainants in the case. Those notes related to counts 5, 8 and 9 on the indictment.

That day, while the jury was deliberating, the applicant, through his counsel, complained to the judge that one of the two interpreters at the trial had spoken to the press about him. The judge questioned the interpreter who confirmed that she had discussed the applicant’s demeanour in court with a member of the press but nothing more. The judge then warned both interpreters not to have any communication with the press.

The jury resumed their deliberations on 3 May. While deliberating they sent further notes either asking to be reminded of the evidence of a complainant or requesting copies of evidence. Those notes related to counts 13, 18, 19, 20 and 21 of the indictment.

On the afternoon of 3 May, counsel informed the judge of two postings that had appeared on the internet about the jury’s deliberations.

At 1.05 p.m. a post appeared on the Facebook page of a group called “Infidels of Britain” which stated:

“Seven Muslim groomer scum found GUILTY so far at Liverpool Crown Court.”

At 1.53 p.m. Nick Griffin MEP, the chairman of the BNP, sent a “tweet” on the social media website Twitter. It said:

“Newsflash – seven of the Muslim paedophile rapists found guilty in Liverpool.”

At 2.30 p.m. the trial judge consulted counsel in private. With the consent of counsel, at 3.15 p.m. he called the jury into court and asked the jury’s foreman if they had reached any guilty verdicts, and if so, how many. After a series of exchanges, it became clear that the jury had indeed reached guilty verdicts for seven of the defendants. The precise verdicts – that is, and the counts and defendants to which they related – were not taken at this stage. The jury retired to their room at 4.28 p.m.

Between 4.30 p.m. and 4.37 p.m. Mr Griffin sent five further tweets appeared casting doubt on the initial claim he had made in his 1.53 p.m. tweet. The last tweet, however, stated:

“But people there [in Liverpool] say jury still out on four [defendants] and others will be sentenced next week.”

The jury would not have been aware of any date for sentencing and it had not been mentioned in open court.

The trial judge called the jury back into court and said to them:

“... Could I ask all of you to tell me, to assure me, that nothing that you have discussed in the jury room ... can have got out into the world in general? Nothing? Nothing whatsoever, by any means whatsoever?”

All of the jurors replied “No.” The judge then asked:

“There isn’t any chance of anybody overhearing anything you might have been saying inadvertently outside the jury room?”

The jurors again all replied “No”.

The judge then consulted counsel in the absence of the jury. He informed them that, in the light of the jurors’ replies and their demeanour, he intended to proceed on the assumption that they were telling the truth and had acted properly. Defence counsel requested time to make an application for discharge of the jury. The judge, therefore, allowed the jury to separate for the evening, giving them instructions not to consider any news source, whether on the internet, on television or in the newspapers.

On 4 May, the judge sat in open court, but imposed reporting restrictions. He rejected the defence’s application to discharge the jury, concluding that he was satisfied that no juror had communicated the jury’s deliberations either deliberately or accidentally to anyone else, and therefore questions of bias did not arise. The judge observed that the jury’s notes indicated that they were adopting a “perfectly reasonable, logical and unbiased approach to the evidence.” He did not believe that a message could have been communicated by a juror to the outside during deliberations. The judge also concluded that communication from a juror was not the only possible explanation for the internet postings.

At this time, the judge was also informed of additional posts on a Facebook group called “Infidels of Britain” that included threatening comments toward the jury if they were to acquit. The judge determined that there was no evidence that the jurors had seen these posts or had felt intimidated by them.

At 11.49 a.m. on 4 May the jury returned verdicts on fourteen of the twenty-two counts in the indictment. These verdicts included all of the counts against the applicant, save for the count of conspiracy to engage in sexual activity with children (count 1A), which the trial judge had advised the jury to leave until last and thus upon which they continued to deliberate. Twelve of the fourteen verdicts returned at this stage were guilty verdicts; two were not guilty verdicts.

The jury resumed their deliberations on 8 May (the next working day). That day, they returned the following verdicts:

(a) on count 1A on the indictment (the conspiracy count): a unanimous guilty verdict against all of the defendants facing that charge, including the applicant;

(b) on count 1B (an alternative conspiracy count faced by five defendants, not including the applicant): a unanimous guilty verdict for three defendants, a not guilty verdict for another defendant, and the jury were unable to agree on a verdict on this count for a fifth defendant; and

(c) on count 22: a unanimous guilty verdict in respect of the one defendant facing this charge.

The jury were then given a “majority direction” by the trial judge, allowing them to return majority rather than unanimous verdicts.

Later the same day (8 May), they returned their remaining verdicts. These were not guilty verdicts on counts 8, 18, 19, 20 and 21 (counts of rape against certain of the defendants, not including the applicant).

In an interview on 9 May on BBC News, Mr Griffin stated that he had received his information from three different people who were outside the courthouse demonstrating. He also tweeted on 9 May:

“... inaccurate leak re convictions last week came from a court or police officer, not a juror ...”

The convicted defendants, including the applicant, lodged appeals against their convictions. The Court of Appeal directed the Criminal Cases Review Commission (CCRC) to investigate the allegations of jury irregularity.

The CCRC appointed a police officer to act as investigator. The investigator asked Mr Griffin to attend a voluntary interview: he declined.

Despite interviewing a possible leader of the “Infidels of Britain” group, the CCRC was unsuccessful in establishing who had been responsible for the posts on the group’s Facebook page.

Facebook and Twitter did not co-operate by disclosing the data relating to the accounts used, and the CCRC concluded that, even if the data were disclosed, it would be unlikely to shed light on the source of the information posted on the internet.

The CCRC detailed the measures taken to ensure the security of jury deliberations, including the seclusion of the jury in the jury suite at court. All toilet and refreshment facilities were in the suite. Meals were provided from the canteen and smoking breaks were escorted. The jury room was kept locked. The jury had been asked to hand over all mobile phones, laptops and electronic devices, which were locked in a safe and returned to them at the end of each day. They were not searched. As part of general security measures during the trial, the jury had been picked up and dropped by a coach at a designated meeting point some distance from the court. During the journey to and from court the jurors were accompanied by an usher. The CCRC took statements from the court clerk and usher. Both stated that they did not see or hear anything suspicious during the trial. The usher added that the jury had been really professional and a pleasure to look after.

The CCRC concluded:

“It would appear, therefore, that the only opportunity for a member of the jury to have communicated with a third party during their deliberations would have been if they had wilfully retained a mobile phone or communications device, despite having been asked to hand in all such items. Even in those circumstances ... and although access to private toilet facilities was apparently provided from the jury room, it would seem unlikely that a juror could have conducted such a clandestine operation without being noticed by fellow jurors. Nothing has emerged from the enquiries which have been conducted pursuant to the Court’s directions which suggest to the Commission that any member of the jury or security staff engaged in any inappropriate activity as regards the disclosure of the jury’s verdicts or otherwise.”

At a directions hearing on 18 July 2013 the Court of Appeal refused to order any further investigation, for example by interviewing individual jurors.

On 20 September 2013 a single judge of the Court of Appeal, Mr Justice Spencer, refused the applicant and his co-defendants leave to appeal. He found that the trial judge had not erred in refusing to discharge the jury. As regards the alleged bias on the part of the jury, Spencer J found that, as a result of the CCRC’s investigation, no misconduct had been uncovered. There was, for instance, no indication that a “rogue” juror had been in communication with a far-right organisation.

Regard had to be given to the manner in which the jury had deliberated, he observed:

“It is important that although, in the first batch of verdicts on Friday 4th May, there were indeed verdicts of guilty against seven of the eleven defendants, there was a unanimous verdict of not guilty against A.A. (on count 9, rape). It follows (on the hypothesis of a juror in communication with a far-right organisation) that the supposed ‘rogue’ juror had subscribed to an acquittal. The jury had reached no verdicts on count 1A or count 1B (the conspiracy counts). This suggests that they were following the judge’s advice to work through the substantive counts before considering the conspiracy counts.

When on Tuesday 8th May (a bank holiday intervened) the next batch of unanimous verdicts where returned, they included a verdict of not guilty against [Q.S.] on count 1B. Again the supposed ‘rogue’ had subscribed to an acquittal. Following a majority direction, further not guilty verdicts were returned: count 8 (A.A., rape), count 18 (L.S., rape), counts 20 and 21 (H.S., rape). These may, of course, have been by a majority.[]

Accordingly, it is clear that the jury were considered the case carefully and analytically.”

Of the defendants, only the applicant renewed his application for leave to appeal before the full court. On 1 April 2014, following a hearing, the Court of Appeal refused permission to appeal: [2014] EWCA Crim 619. It found:

“30. We have carefully considered the material facts and the results of the CCRC’s investigation.

We agree with the conclusions of the CCRC. In our judgment, it is not possible to draw the inference from the material before us that a juror deliberately communicated information about the jury’s deliberations to someone outside the jury whilst at court. The CCRC investigation shows that extensive precautions were taken to protect the integrity of the jury in this trial which made it extremely difficult for jurors to communicate in secret with anyone outside the jury room. It is fanciful to imagine that a juror was covertly signalling from the window or that a juror was able to make clandestine telephone calls on a hidden mobile phone, from the toilet or elsewhere, without being overheard or detected by other jurors or court staff. The court clerk and usher, who had worked with the jury for three months, found no reason to suspect any juror of impropriety or unusual behaviour.

The Judge apparently accepted the Crown’s submission that the information posted on the internet could have derived from discussions amongst those at court trying to guess the state of the jury’s deliberations, perhaps from the sequence of jury notes. In our view, it is improbable that guesswork could have resulted in such an accurate prediction of the jury’s guilty verdicts. We do, however, accept that the information in Mr Griffin’s final tweet at about 16.37 on 3rd May (‘jury still out on 4 and others will be sentenced next week’), most probably originated from someone connected to the prosecution or defence teams, or the interpreters. The court was sitting in private; the jury had only just left court after indicating that they had found seven defendants guilty; and sentencing dates were not known to the jury and had not been mentioned at any stage in open court.

We accept it is possible that ‘loose talk’ by jurors outside the jury room resulted in information about the jury’s deliberations being disclosed to outsiders. It is quite possible that the jury had decided upon guilty verdicts in respect of seven defendants by the time they separated on the afternoon of 2nd May. Jury deliberations are, of course, confidential, and jurors are routinely warned not to discuss the case outside the jury room, whether with fellow jurors or anyone else, including members of their family.

Such conduct, even if inadvertent, would amount to a jury irregularity. However, we do not consider that it would be sufficient to render the convictions unsafe. In our view, taken on its own, disclosure of the jury’s progress on the counts would not have compromised the jury’s independence or impacted on the jury’s ability to remain faithful to their oath or affirmation to "faithfully try the defendant and give a true verdict according to the evidence" (see Criminal Practice Direction 39M.2). The Judge, legal representatives and court staff were unanimous in the view that, throughout the lengthy trial, the jury had participated appropriately in the trial process and appeared to be assessing the evidence conscientiously.

The Applicant alleges apparent bias on the part of the jury, because the information was disseminated by far-right organisations hostile to the defendants. We have applied the test set out in Re Medicaments [2001] 1 WLR 700, as amended in Porter v. McGill [2002] 2 AC 357, namely, whether, on an objective appraisal, the material facts give rise to a legitimate fear that the jury might not have been impartial, asking ourselves whether a fair-minded and informed observer would conclude that there was a real possibility that the jury was biased. A similar test applies under Article 6 of the European Convention on Human Rights, namely, whether there are sufficient guarantees to exclude any objectively justified or legitimate doubts as to the impartiality of the jury: see Gregory v. UK (1998) 25 EHRR 577; Sander v. UK (2001) 31 EHRR 44.

There was ample evidence to support the Judge’s view that the jury was adopting a ‘perfectly reasonable, logical and unbiased approach to the evidence’. Judging from the content of the jury notes and the sequence of the verdicts, they progressed through the counts in the order recommended by the Judge, and carefully considered the evidence in relation to each count. The verdicts, taken as a whole, appeared rational and consistent with the evidence. The Judge observed at the end of the trial that the jury had performed their task with "painstaking care".

The jurors had all completed questionnaires confirming that they were not associated with the BNP or English Defence League and there was no evidence to suggest that any juror had withheld information about such an association. The fact that the jury returned unanimous ‘not guilty’ verdicts on two counts on 3rd May was at odds with the allegation that there was one or more racially biased supporter of a farright organisation on the jury, as such a person would presumably not have been party to any ‘not guilty’ verdict.

Like the Judge, we have concluded that there was simply no evidential link established between the jury and the far-right organisations which posted the information on the internet. Therefore we do not consider that, on the material facts, a fair minded and informed observer would conclude that there was a real possibility that the jury was biased, nor that there were any objectively justified or legitimate doubts about the impartiality of the jury.

No criticism can be made of the careful and fair manner in which the Judge conducted the necessary enquiries. He was not permitted to ask the jury about the content of its deliberations; only to investigate any irregularity. We agree with his conclusion that it was not necessary to discharge the jury and we consider that he gave appropriate directions to the jury throughout the trial regarding their conduct.

We do not accept [Counsel for the applicant’s] criticism of the CCRC’s investigations as inadequate. In our view, there was nothing more that the CCRC could reasonably have done.

The safety of the convictions is not in doubt and therefore the application for permission to appeal against conviction is refused.”

The following standard instructions and directions to a jury trying a case in England and Wales are taken from the Court’s judgment in Abdulla Ali v. the United Kingdom, no. 30971/12, §§ 68-71, 30 June 2015.

Upon responding to a summons, jury members are sent a leaflet called “Your Guide to Jury Service”. The leaflet explains that jurors’ discussions are private and that jurors should not discuss any aspects of the trial with anyone other than fellow jurors. It sets out that the verdict must be that of the jurors alone and reminds jurors that their role is to reach a verdict on the evidence presented in the court room at trial. The leaflet also notes that it is an offence for anyone outside the jury to try and influence them.

Once selected for jury duty, jurors must swear an oath or make an affirmation that they will:

“faithfully try the defendant and give a true verdict according to the evidence.”

At the outset of the trial, the jury are conventionally given a direction to the effect that they must try the case on the evidence alone, which is what they hear in court. They are instructed that they must not discuss the case with family, friends or anyone else or conduct their own research into the case.

In Re: B [2006] EWCA Crim 2692, which involved an appeal against an order restricting the reporting of a criminal trial, the Court of Appeal (Criminal Division) said:

“There is a feature of our trial system which is sometimes overlooked or taken for granted. The collective experience of this constitution as well as the previous constitution of the court, both when we were in practice at the Bar and judicially, has demonstrated to us time and time again, that juries up and down the country have a passionate and profound belief in, and a commitment to, the right of a defendant to be given a fair trial. They know that it is integral to their responsibility. It is, when all is said and done, their birthright; it is shared by each one of them with the defendant. They guard it faithfully. The integrity of the jury is an essential feature of our trial process. Juries follow the directions which the judge will give them to focus exclusively on the evidence and to ignore anything they may have heard or read out of court. No doubt in this case [the judge] will give appropriate directions, tailor-made to the individual facts in the light of any trial post the sentencing hearing, after hearing submissions from counsel for the defendants. We cannot too strongly emphasise that the jury will follow them, not only because they will loyally abide by the directions of law which they will be given by the judge, but also because the directions themselves will appeal directly to their own instinctive and fundamental belief in the need for the trial process to be fair.”

In Montgomery v. HM Advocate; Coulter v. HM Advocate [2003] 1 AC 641, Judicial Committee of the Privy Council considered whether a Scottish jury trial taking place after adverse publicity would be compatible with Article 6. In finding that it would, Lord Hope (with whom the members of the Committee agreed) observed:

“[T]he entire system of trial by jury is based upon the assumption that the jury will follow the instructions which they receive from the trial judge and that they will return a true verdict in accordance with the evidence.

The Scottish judges are not alone in proceeding upon this assumption. In the Supreme Court of Canada, in Reg. v. Corbett [1988] 1 S.C.R. 670, 692, Dickson C.J. said that jury directions are often long and difficult but that the experience of trial judges is that juries do perform their duty according to law. In R. v. Vermette (1988) 50 D.L.R. (4th) 385, 392 La Forest J., under reference to the Corbett case, said that dicta in that case underlined the confidence that may be had in the ability of a jury to disabuse itself of information that it is not entitled to consider. In the High Court of Australia, in The Queen v. Glennon (1992) 173 C.L.R. 592, 603 Mason C.J. and Toohey J. said that the law proceeds on the footing that the jury, acting in accordance with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence and that to conclude otherwise would be to underrate the integrity of the system of trial by jury and the effect on the jury of the instructions given by the trial judge. In the Irish High Court, in Z. v. Director of Public Prosecutions [1994] 2 I.R. 476, 496 Hamilton P., drawing upon his experience as counsel and as a judge, said that he shared in the confidence that his legal system has in juries to act with responsibility in accordance with the terms of their oath, to follow the directions given by the trial judge and a true verdict give in accordance with the evidence. I consider that the judges in the court below were entitled to draw upon their experience, and I see no reason in the light of my own experience to disagree with their assessment.”

In the House of Lords judgment’ in Magill v. Porter [2001] UKHL 67, Lord Hope of Craighead considered the question of apparent bias and concluded (at paragraph 100 of the judgment) that:

“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”

That test was designed to bring English law into line with the approach taken in Scotland and various Commonwealth jurisdictions, and the approach taken by this Court in its Article 6 jurisprudence (paragraphs 100-103 of the judgment).

Under the law of England and Wales, the Court of Appeal will allow an appeal against conviction if it regards the conviction as unsafe (section 2(1) of the Criminal Appeal Act 1968).

In R v. Heward [2012] EWCA Crim 890 – where one juror had complained of racial bias on the part of other jurors – the Court of Appeal found that a verdict would be unsafe if the fair minded observer would conclude, on the available evidence, that there was a real possibility of a real danger that the verdict was at least in part the product of bias. Having considered the facts in the case, the Court of Appeal concluded that it was left with the suspicion that an impartial observer would perceive a real risk of bias. It thus allowed the appeal and quashed the conviction.

In R v. JC and Others [2013] EWCA Crim 368 – also concerning a complaint of prejudice on the part of fellow jurors – the Court of Appeal stated:

“The receipt of any communication by a juror or jurors complaining of possible irregularities by or among the other jurors demands rapid and close attention. It behoves the judge to decide whether the integrity of the trial process has been irretrievably damaged or whether the trial can continue notwithstanding the complaints. Depending on the individual facts it may be appropriate for the judge to discharge the jury as a whole, or one or more individual members of it, or to continue with the trial, with any necessary direction or warning sufficient to deal with the specific problem. The question for this court is whether the alternative adopted by the judge was correct, which, if the trial has been allowed to continue must be decided at its end, when the warning or directions of the judge, and their impact and any consequences can all be examined.”

The Court of Appeal declined to quash the conviction in that case, having regard to the trial’s judge handling of the complaint (including the directions he then gave to the jury), the conduct of the jury throughout the trial, the length of their deliberations, a question as to the law they had asked of the judge while deliberating, and the different verdicts they had rendered against different defendants on the different counts in the indictment.

Section 17(3) prevents the Crown Court from accepting a majority verdict of guilty unless the foreman of the jury has stated in open court the number of jurors who respectively agreed to and dissented from the verdict. To comply with this provision, and at the same time to prevent it being known whether a not guilty verdict is unanimous or by a majority, the Criminal Practice Directions set the following procedure for taking a verdict once the jury is permitted to give a majority verdict (that is, after a “majority direction” is given by the trial judge). The procedure is now set out in Criminal Practice Direction VI: Trial at paragraph 26Q1-6 (at the time of the applicant’s trial, paragraph 39Q1-6). When the jury return with a verdict after a majority direction has been given, they should be asked:

(a) “Have at least ten (or nine as the case may be) of you agreed on your verdict?”;

(b) If “Yes”, “What is your verdict? Please only answer ‘Guilty’ or ‘Not Guilty’.”;

(c) (i) If “Not Guilty”, accept the verdict without more ado;

(ii) If “Guilty”, “Is that the verdict of you all, or by a majority?”;

(d) If “Guilty” by a majority, “How many of you agreed to the verdict and how many dissented?”

Section 23A of the Criminal Appeal Act 1968 gives the Court of Appeal the power to direct the Criminal Cases Review Commission to investigate and report to the Court on any matter necessary for the resolution of an appeal against conviction before it.

Part II of the Criminal Appeal Act 1995 gives the CCCR the necessary powers to conduct such an investigation, including the power to require the appointment of police officers to acting as investigating officers.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

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 their pre-trial detention. In application no. 1884/12, the applicant also complained under Article 5 § 4 of the Convention based on the same set of facts.


Violation of Article 9 - Freedom of thought, conscience and religion (Article 9-1 - Manifest religion or belief)

The applicants were born in 1964, 1957 and 1947 respectively. The first and third applicants live in Ankara. The second applicant left Turkey subsequent to his criminal conviction giving rise to the present application.

On 21 August 2006 the applicants took part in a religious ceremony (mevlüt) on the premises of the Altındağ district branch of the Party for a Democratic Society (Demokratik Toplum Partisi – “the DTP”) in Ankara, at which they paid tribute to three members of the PKK, an illegal armed organisation, who had been killed by the security forces. One of the deceased was the first applicant’s nephew. The second applicant was the head of the Ankara branch of the DTP at the relevant time. The third applicant was a member of the DTP and a friend of the first applicant.

On 23 November 2007 the Ankara public prosecutor filed a bill of indictment with the Ankara Assize Court, charging the applicants and a number of other persons with dissemination of propaganda in favour of the PKK, under section 7(2) of the Prevention of Terrorism Act (Law no. 3713), on account of their participation in the ceremony of 21 August 2006. According to the indictment, during the ceremony photographs of the deceased and the PKK’s flag were displayed at the venue and a film about the lives of the deceased was shown. In addition, the second applicant, the head of the Ankara branch of the DTP, made the following statement:

“Our fears and worries continue. People are still being killed. In such a context, we would like this mevlüt to be a moment of peace and fraternity.”

On 24 September 2008 the Ankara Assize Court convicted the applicants of disseminating propaganda in favour of the PKK and sentenced them to ten months’ imprisonment each. In its judgment, the Assize Court observed, firstly, that the persons in whose memory the ceremony had been held were members of a terrorist organisation and that they had been killed by the security forces during an operation against that organisation. It also took the view that the choice of venue for the ceremony – the premises of a political party – and the fact that the PKK flag had been spread over the tables and photographs of members of the organisation had been displayed, contributed to raising serious doubts as to the applicants’ submissions that they had taken part in the ceremony in observance of their religious duties. The court considered that the applicants had committed the offence of dissemination of propaganda given that they had shared the feelings of mourning and sorrow for the deceased who had been involved in terrorism. It further considered that the venue where the ceremony had been held had turned into a propaganda venue in favour of the PKK.

Following an appeal lodged by the applicants, their conviction was upheld by a final decision of the Court of Cassation on 8 March 2010.

The first and third applicants served their prison sentences.