Alena Poláčková;Branko Lubarda;George Nicolaou;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicants, M.Y. (“the first applicant”) and E.C. (“the second applicant”), are Cypriot nationals who were born in 2005 and 1977 respectively and live in Limassol. The second applicant is the mother of the first applicant and lodged the application with the Court on her own behalf and on behalf of her daughter.

The applicants were represented before the Court by Mr L. Loucaides, a lawyer practising in Nicosia.

The second applicant was married to the first applicant’s father, Y.Y. who is a police officer. When the first applicant was three weeks old, the second applicant left her husband because of what she considered to be unacceptable behaviour on his part. She took their daughter with her.

Their marriage was dissolved on 8 March 2006 by the Family Court of Limassol.

On 21 March 2006 the Family Court of Limassol granted Y.Y. contact rights. These did not include overnight stays.

A few months before March 2008, when the first applicant was nearly three years old, the second applicant started noticing certain changes in the child’s behaviour. At first, the second applicant was puzzled by these changes and then she started to worry. Gradually, the changes in the first applicant’s behaviour became more apparent especially after she had visited her father. In particular, the first applicant sought to kiss her mother on the mouth using her tongue. Every time the mother tried to discourage the child from doing so, the first applicant responded by telling her mother that the reason for doing this was to show her love and affection towards her. For example she would say: “Mum you should not be shy because I love you”.

On or about 30 March 2008 the father, whilst exercising his contact rights, took the first applicant to his lodgings, a small room next to his parents’ house. That day the second applicant was told by his parents that Y.Y. had spent the whole day with the child locked up. The second applicant called Y.Y. on his mobile phone numerous times but he would not answer. Y.Y. returned the first applicant that night. The first applicant started behaving in an alarming manner, namely in a sexual manner. In particular the second applicant had bathed her daughter, put her to bed and sat beside her in order to read her a bedtime story. Then, the first applicant started licking her mother’s shoulder. When the second applicant disapproved of it, the first applicant told her that this was exactly what the father did to her. The second applicant called her own mother immediately to the bedroom and in her presence told the first applicant to show her the way her father licked her. The first applicant then showed the second applicant and her grandmother how the father licked her body. She told them that her father licked her breasts, legs and genitals. She later told her grandmother that her father licked her because she liked it.

On 31 March 2008 the second applicant filed a complaint with the Limassol District Welfare Office (“the Welfare Office”) against Y.Y. for molesting their daughter. The welfare officer informed her of the procedures, the need to immediately report the incident to the police and to refer the child for a psychological and medical examination.

On 2 April 2008 the welfare officer reported the matter to the Polemidia Police Station and to the Child and Adolescent Psychiatry Department. With the second applicant’s consent, a meeting was arranged for the applicants with a government clinical psychologist on 11 April 2008.

In or about the same period the second applicant observed that her daughter displayed the same sexual behaviour several times especially when playing. In particular, when playing with her favourite doll the first applicant would kiss the doll on the mouth, lick and kiss the doll’s body, and more specifically the breasts and the area of the genitals. Furthermore, at about the same time, the second applicant was informed by the teacher at the nursery school that the first applicant was behaving strangely and stubbornly refused to allow any of the staff to touch her when trying to change her nappies after her afternoon nap.

On 9 April 2008 the second applicant chose to meet with a private child psychiatrist E.D. According to the applicants and the subsequent report of E.D (see paragraph 27 below) this meeting was arranged because there was a delay of about ten days in securing the approval for an examination by a government doctor. As a result, the applicants did not meet with the government clinical psychologist (see paragraph 10 above). From the documents in the file it appears that the involvement of two experts was not considered advisable by the Welfare Services.

The next day E.D. met with Y.Y and on the same day she also had her first meeting with the first applicant with Y.Y.’s consent. Two more sessions were held on 15 and 16 April 2008 which were also attended by a clinical psychologist, M.K. The latter prepared a statement about what had occurred during the examination and, in particular, how the child had expressed herself to E.D. In this statement M.K. explained that it would be against professional ethics to take a position on the matter as she had not met with the parents or carried out an examination herself.

On 16 April 2008 E.D. informed the second applicant that the examination had shown that Y.Y. had sexually molested the first applicant. She also informed the Welfare Office.

On the same day, immediately after receiving this information, the second applicant filed a complaint of sexual molestation against Y.Y. at Polemidia Police Station. E.D. also gave to the police on the same day a statement together with her findings.

The second applicant then lodged an application with the Family Court of Limassol seeking to terminate any kind of communication between Y.Y. and the first applicant. She also applied for an interim order to suspend the court’s order of 21 March 2006, which gave him contact rights pending the examination of the main application and/or until a new order by the court (see paragraph 6 above). The interim order was granted on 30 October 2008. It appears that this became final on 16 April 2009.

The applicants claimed that the authorities did not also apply themselves for a court order to keep Y.Y. away from the first applicant as they normally did in cases of such a nature.

E.D. continued her meetings with the applicants.

In the meantime, Y.Y. made a request to the Welfare Office to have the first applicant examined by a government psychologist. By a letter dated 12 May 2008, the lawyers representing the applicants at the time informed the Welfare Office that although his request had been made at a very late stage and despite the fact that this delay would have a negative effect on the first applicant’s health, they would suggest to the second applicant that she should agree, assuming the examination would be carried out as soon as possible. They requested that the Welfare Office keep them informed of any developments.

By a letter dated 29 May 2008 addressed to the Welfare Office, the applicants’ lawyers expressed their concern about the slow pace at which the case was being investigated and, in particular, the delay in the examination of the first applicant by a government doctor and the harmful psychological repercussions a delayed examination would have on her. They requested that arrangements be made as soon as possible for the examination in order to minimise the effects on the first applicant. They also noted that Y.Y. had disappeared from the first applicant’s life despite recommendations that he meet with her in the presence of a welfare officer. They requested that appropriate measures be taken by the Welfare Office in this respect.

Between April 2008 and September 2008 the applicants’ lawyers called Polemidia Police Station as well as the police headquarters several times in order to find out if there were any developments in relation to the second applicant’s complaint and whether the police had taken any steps to examine the matter.

After the second applicant filed her complaint with the police, Y.Y. did not see the first applicant until 4 June 2008. On that date, the first applicant met her father at the Welfare Office in the presence of a welfare officer and E.D. This meeting had been requested by E.D. as the first applicant had reacted strongly to the absence of her father.

On 17 July 2008 Y.Y. went to the nursery school and, in the presence of all the children, including the first applicant, verbally abused the second applicant.

Following this incident Y.Y. did not make any attempt to communicate with the applicants.

By a letter dated 11 September 2008, the applicants’ lawyers requested the Chief of Police to inform them of any developments in the case. They requested a prompt response in view of the seriousness of the offence complained of, the time that had elapsed from the day the complaint had been made and the particularly young age of the child.

By a letter dated 12 September 2008, the Chief of Police informed them that he would be in touch soon.

On 18 September 2008 E.D. prepared a relevant report on the first applicant containing her findings and conclusions.

By a letter dated 19 September 2008, the applicants’ lawyers sent E.D.’s report to the Attorney-General to be examined along with the other evidence and statements already in his possession. The report was sent on the same day to the Limassol Welfare Office and the Chief of Police.

On 15 October 2008 the case-file was sent to the Limassol Police headquarters by the Attorney-General’s office with instructions that additional statements be taken from, inter alia, Y.Y, that a video recorded statement be taken from the first applicant and that she be referred to a government doctor for an examination.

By a letter dated 21 October 2008, the applicants’ lawyers complained to the Attorney-General about the procedure that had been followed in the case. They informed the Attorney-General that the second applicant, after having consulted with the child psychiatrist who was seeing the first applicant since April 2008, had decided not to give her consent to such statement and examination for a number of reasons, including the following:

- video recorded statements were recommended in cases involving older persons who had the ability to develop a dialogue through the interrogation procedure;

- because of the nature of the offence the procedure should have been carried out immediately, not after seven months had passed, and only by an expert child psychologist or child psychiatrist;

-the examination of the child by the child psychiatrist at the material time was done by means of play, as was done in this type of cases, with the help of anatomical dolls. It was through this process that the psychiatrist concluded that the offence in question was committed by the father. The specialist, after seven months, had helped the child to forget and also to accept the absence of her father in her life. The child no longer reacted negatively and had stopped referring to her father. Reverting to the subject at this stage would traumatise her and lead to regression and was thus not recommended by experts;

-the investigation authorities had had the opportunity to take a statement from the suspect from the very beginning but had unjustifiably omitted to do so. This gave rise to reasonable suspicion that a deliberate effort had been made to cover up the whole matter;

-the report of the child psychiatrist had been communicated to the office of the Attorney-General, the Welfare Office and Police Headquarters. As mentioned by the child psychiatrist, her meetings with the child at the material time, had been carried out in the presence of a witness, a practice followed in such cases by reason of their nature and the very young age of the victims. This fact was mentioned in the child psychiatrist’s statement to the police;

- the police authorities had not yet taken a statement from the clinical psychologist M.K. nor had they sought a restraining order against the father pursuant to the relevant domestic law;

- the second applicant had agreed to take the child to be examined by a doctor following the authorities’ suggestion. However, following the unjustified delay on the part of the authorities to fix an appointment for the examination, the second applicant appointed a private specialist after having obtained the father’s consent. The father had not, at that point in time, made any attempt to have the child examined by a private or government doctor.

At the end of the letter the applicants’ lawyers requested a meeting with the Attorney-General as soon as possible.

By a letter dated 27 October 2008, the Attorney-General informed the applicants’ lawyers that he considered that a meeting would serve no purpose. He also agreed that there had possibly been remissness on the part of the investigating authorities in the investigation of the case and that a note of criticism had been sent to them. If the case, however, was to be taken to court it was necessary to obtain the required evidence by a video recorded statement of the child with the mother’s consent, to have the child examined by a specialist doctor and that the further actions the police asked of them should be taken.

In their reply dated 31 October 2008, the applicants’ lawyers disagreed with the Attorney-General and stressed that the case should have been taken to the domestic courts at least seven months earlier. The authorities should have taken a video recorded statement from the child at the time as well as a statement from the suspect in respect of the offences. The lawyers repeated the position taken in their previous letter and noted that the well-being and the interest of the first applicant were incompatible with the requests now made by the authorities. In their view the taking of a video recorded statement was not a prerequisite for the criminal prosecution of the suspect. There was ample evidence before the Attorney-General and any more delay in the prosecution of Y.Y. was against both the interests of the child and the interests of justice. They asked once more for a meeting in the presence of E.D., as she was the only specialist who had examined the first applicant, since neither the investigating authorities nor the suspect sought to have the minor examined by a third person.

By a letter dated 27 November 2008, the applicants’ lawyers submitted a detailed complaint to the Commissioner for Children’s Rights (“the Commissioner”) of a violation of the applicants’ rights as a result of the undue delay and the negligence on the part of the authorities to carry out a proper investigation of the case in breach of relevant domestic laws. They requested the Commissioner to take the necessary measures for the protection of the first applicant’s rights.

By a letter dated 18 March 2009, the Commissioner replied that she had requested the Minister of Labour and Social Insurance to inform her of the actions taken by the Welfare Office following the complaint made about the sexual molestation of the child, with specific questions concerning the investigation of the complaint, the cooperation/coordination with other services involved, the taking of a statement by the police, the direct referral of the child for an evaluation and for psychotherapeutic help to the Department of Child and Adolescent Medicine. She had also requested the views of the Social Welfare Services concerning the Attorney-General’s request for a video recorded statement from the first applicant in relation to the sexual molestation after nine months had elapsed and a briefing of how the Welfare Services were intending to proceed.

The Commissioner informed the applicants’ lawyers that upon receiving the replies from the relevant authorities she would examine the case and decide whether the appropriate measures had been taken in the case in order to secure the child’s rights and whether the procedures and practices followed in this kind of case complied with the provisions of the United Nations’ Convention on the Rights of the Child. In the event she discerned any violations, she would proceed to make the necessary recommendations with the aim of ending the violations and to ensuring that practices were adopted that fully secured the child’s rights.

By a letter dated 13 May 2009, the applicants’ lawyers re-contacted the Attorney-General, because they had not received a reply concerning their request for a meeting in the presence of E.D. (see paragraph 33 above).

By a letter dated 15 May 2009, the Commissioner informed the applicants’ lawyers that she had received a reply from the Minister of Labour and Social Insurance and had written to the Chief of Police with a number of questions relating to the handling of the case.

On 19 June 2009 the Limassol Family Court issued an interim order granting custody of the first applicant to the second applicant pending the proceedings. The order was to be reviewed on 30 June 2009.

By a letter dated 28 August 2009 the office of the Attorney-General informed the applicants’ lawyers that following an examination of the case, there was no adequate evidence in the case-file to substantiate their claims before a court.

By a letter dated 8 December 2009 the Commissioner informed the applicants’ lawyers that the Chief of Police had informed her that a video recorded statement had not been taken due to the second applicant’s negative stance and that the Attorney-General had given instructions not to institute criminal proceedings because of lack of evidence. She had written in reply to the Chief of Police noting the State’s obligations to secure the child’s rights and that in this case the competent authorities had not done so. She had requested specific information about the procedures and practices in the present case as well as in other similar cases. This included questions concerning the decision of the Attorney-General.

In the meantime the applicants appointed new lawyers to represent them before the domestic authorities.

By a letter dated 11 December 2009, the applicants’ new lawyers, referring to the decision not to prosecute Y.Y. due to insufficient evidence, sent to the Attorney-General a written affirmation by M. K. (see paragraph 13 above) that she had attended as a witness the examination of the first applicant by E.D. and the Commissioner’s letter of 8 December 2009. In the letter, they also emphasised that, according to the case-law, children against whom this kind of offences were committed, did not constitute “exhibits” to be given for examination or inspection by the defence. This was particularly so when the examination or the taking of a video recorded statement had not been promptly made but, as in the present case, was sought to be taken nine months later; a delay that would cause the child a new traumatic experience without, however, any significant result. They stated that they were certain that criminal proceedings against Y.Y. could be instituted on the basis of the evidence of E.D, the corroborative evidence of M.K and that of the second applicant as well as other circumstantial evidence.

It appears that another letter was sent by the Commissioner to the Chief of Police on 8 March 2010.

By a letter dated 26 May 2010 the applicants’ lawyers wrote to the Commissioner noting that they had not received any news as to whether the Chief of Police had replied to her above-mentioned letter (see paragraph 44 above). They observed that the State had failed to protect the rights of children although it had committed itself to doing so through the office of Commissioner. They reminded the Commissioner of the fact that the police officers who were responsible for investigating the complaint had not carried out their duties properly and that their mistakes and omissions had determined the course and fate of the case. The Attorney-General had refused to prosecute the suspect because of “insufficient evidence” in the file of the case. The insufficiency of the evidence was due to the wrong way the police force had dealt with the case. The lawyers reminded the Commissioner that the file of the case had been sent to the police authorities seven months later, with instructions to take statements from certain persons including Y.Y. At about the same time the Office of the Attorney-General had asked for the second applicant’s consent for the taking of a video recorded statement from the three year old child. After consulting E.D., the second applicant had not consented to the above giving a number of reasons, including the damaging effect a statement would have on the first applicant’s psychological state. The last letter sent by the lawyers to the Attorney-General containing their request for re-examination of the case had remained unanswered. Unfortunately the Attorney-General’s decision not to prosecute Y.Y., had been interpreted by the welfare officers as meaning that the complaint was unfounded. As a result, in the proceedings before the Family Court of Limassol, they had sought to restore the communication of the minor with the father despite the scientific findings of E.D. to the contrary. They pointed out in this respect that the Family Court had instructed the Welfare Office to appoint, with the consent of both parents, a child psychiatrist. The Director of the Child Psychiatric Unit of the General Hospital of Limassol was appointed. For this purpose, he was then called by the Welfare Office to help the court by evaluating the current state of the minor without examining the child in relation to the alleged sexual molesting because of the long time that had passed. It was agreed in court that she should only examine the present psychological state of the first applicant, her development, including her emotional development, in general, bearing in mind her age. The Welfare Office, however, in a letter addressed to the above child psychiatrist had told her to examine the current state of the minor with the purpose of reinstating communication with the father and suggested that she ignore, in making her assessment, the allegations of sexual molestation as no criminal proceedings had been instituted against the father. They ended the letter by again requesting the Commissioner to intervene and to investigate the matter through the police, the Attorney-General’s office and the Welfare Office before more damage was done.

The Commissioner replied to the above letter on 3 August 2010. In this she set out the steps she had taken in the case and the information that had come to her through correspondence with the authorities such as the Minister of Labour and Social Insurance and the Chief of Police. She concluded with the following:

(a) The Welfare Office had immediately taken all necessary steps for investigating the case and had continuously co-operated with all the other authorities involved.

(b) The procedures followed by the authorities had as a criterion the child’s interests; in the present case it appeared that the young age of the child and the refusal of the second expert M. K. to give a statement to the police or submit a report had played a decisive role in the case. M.K. had informed the police authorities that she was unable to give an opinion and requested not to be contacted again about this issue. The absence of corroborative evidence from her resulted in the lack of adequate and reliable evidence which led to the non-prosecution of the father. The young age of the child, both at the initial and subsequent stages of the investigation, did not allow for the taking of a video recorded statement. International bibliography indicated that information taken during interviews from children aged between two and five years is confusing and thus it is difficult for experts to reach safe conclusions. Even though it was not possible to determine with certainty whether the child had been sexually molested by her father, so that the case did not lead to criminal proceedings, the Commissioner considered that priority must be given to the protection of the child through cooperation between the child and the other members of her family with the appropriate services. The Commissioner pointed out that the psychosocial and emotional development of children in respect of whom there was an allegation that they had been subjected to sexual and/or psychological abuse by one of their parents, was usually negatively affected. For this reason, it was necessary to give priority to proper professional intervention with the appropriate psychotherapeutic methods which would help the child to become emotionally and psychologically stronger and to enhance its self-image. Moreover, priority must be given to the restoration and strengthening of the relations of the child with both parents. In conclusion the Commissioner expressed the wish that the difficulties of the child would be overcome soon so that balance in the family would be restored.

By a letter dated 10 November 2011, the applicants’ representative informed the Court that the second applicant had filed an application before the Family Court for a final restraining order against Y.Y. in order to prevent him from exercising his contact and other rights with the child. He also informed the Court that at the same time she was granted an interim order and that on 31 October 2011 the Family Court of Limassol dismissed Y.Y.’s application for supervised contact rights with the first applicant pending the final adjudication of the second applicant’s application which was fixed for hearing for 16 December 2011.

No more information has been given by the applicants concerning the proceedings before the Family Court.

Under the Constitution the Attorney-General is an independent officer of the Republic (Article 112). Article 113(2) of the Constitution provides that:

“The Attorney-General of the Republic shall have power, exercisable at his discretion in the public interest, to institute, conduct, take over and continue or discontinue any proceedings of an offence against any person in the Republic. Such power may be exercised by him in person or by officers subordinate to him acting under him and in accordance with his instructions.”

The Commissioner for Children’s Rights is an independent institution which deals exclusively with the rights of the child. The Commissioner is appointed by the Council of Ministers pursuant to the Commissioner for the Protection of Children’s Rights Law, (Law 74(I)/2007) which came into force on 22 June 2007. Under section 3 of Law 74(I)/2007 the role of the Commissioner is to protect and promote the rights of the child. The Commissioner publishes, inter alia, annual reports as well reports on individual complaints and policy position papers.

In her annual report for 2009 the Commissioner, referring to complaints made to her in that year, included the present case and observed that the manner in which the case had been handled by the police authorities had not completely secured the child’s interests, as the child, during the whole period when the case was under investigation, had been left exposed and unprotected. As a result there had been a strong risk of secondary victimisation. She noted that she had intervened and had contacted the Chief of Police, underlining the State’s obligations concerning the protection of the child victim. She had also requested details of the procedures and practices used in the case by the police during the investigation, concerning particularly the referral of the child for a medical examination, the co-operation with other competent services, the taking of a statement from the child and, mainly, the reasons for which a video recorded statement was not taken promptly. In so far as the decision not to prosecute the father was concerned, she had asked the police authorities to inform her whether they intended to take any further action for restoring the child’s rights. She had not received a reply by the end of 2009.


András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant, Mr Piotr Kazimierz Gajewski, is a Polish national, who was born in 1965 and lives in Ostróda.

The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs.

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

In 1989 the applicant married A. They have three children, born in 1990, 1995 and 1996.

In 2008 the applicant began a relationship with J.Z., his supervisor at work. In November 2008 the applicant moved out of the flat he had lived in with his family. At the request of his children he attempted to reconcile with A. and later moved back in for a week. However, he subsequently decided to continue his relationship with J.Z.

Since November 2008 he has been living with J.Z., her three children and her grandson.

On 23 April 2009 A. applied for child maintenance.

On 10 July 2009 the Ostróda District Court ordered the applicant to pay 750 Polish zlotys (PLN) per month for his three children (approximately 187 euros (EUR)).

On 24 August 2008 the applicant filed a petition for divorce. He asked the court to declare that both parties were at fault for the breakdown of the marriage.

On 23 March 2010 the Elbląg Regional Court refused to grant the divorce. It found that A. was a very good mother and wife and was not at fault for the breakdown of the marriage. She still loved her husband and was ready to forgive him for his affair. The court stressed that the applicant was the only person responsible and at fault for the breakdown of his marriage, and referred to the fact that his wife had not agreed to a divorce. It was decided that a divorce was not legally permitted in their case. Lastly, the court referred to the fact that the applicant’s two children were still minors and held that a divorce would not be in their best interests.

The applicant appealed.

On 7 September 2010 the Gdańsk Court of Appeal upheld the firstinstance judgment, holding that the applicant’s wife was not at fault for the breakdown of the marriage. The judgment subsequently became final. A cassation appeal in the Supreme Court was not available.

On 27 July 2011 A. initiated a new set of proceedings. She applied to the Elbląg Regional Court for a formal separation from the applicant. She also sought the payment of child maintenance.

In a written reply of 25 September 2011 the applicant did not agree to a separation and asked the court to declare the parties divorced.

During a hearing of 12 October 2011 A. agreed to a divorce at the applicant’s exclusive fault. The applicant declared that he was at fault and agreed to the arrangements for child maintenance proposed by A.

Consequently, by a judgment of 12 October 2011 the marriage was dissolved. Neither party appealed. The judgment was final.


Violation of Article 5 - Right to liberty and security (Article 5-4 - Review by a court;Review of lawfulness of detention)

Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković

The applicant was born in 1970.

On 13 February 2009 the applicant was arrested and taken into custody on suspicion of using drugs and providing drugs to third persons.

On 16 February 2009 the applicant’s statement was taken by the Istanbul Assize Court and she was released on the same day. On 19 February 2009 the public prosecutor lodged an objection to this decision and on 23 February 2009 the Istanbul Assize Court issued an arrest warrant against the applicant.

On 24 February 2009 the applicant was placed in detention on remand.

On 4 April 2009 the public prosecutor filed a bill of indictment, charging the applicant with using drugs and providing drugs to third persons under Articles 188 § 3, 188 § 4 and 191 § 1 of the Criminal Code.

On 15 May 2009 and 24 June 2009 respectively the Istanbul Assize Court on the basis of the case file dismissed release requests lodged by the applicant. On 9 June 2009 and 21 July 2009 respectively the Istanbul Assize Court further dismissed the objections lodged by the applicant against the above-mentioned decisions, without holding oral hearings.

On 1 October 2009 the Istanbul Assize Court held its first hearing and the applicant appeared before the court. On the same day the trial court released the applicant.


Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The first applicant was born in 1971 and lives in Devecser. The second applicant was born in 1979 and lives in Ajka. The applicants are of Roma origin.

Mr G.F., a Member of Parliament from the right-wing Movement for a Better Hungary Party (Jobbik Magyarországért Mozgalom Párt, hereinafter referred to as Jobbik), announced that a demonstration would take place on 5 August 2012 in Devecser under the slogan “Live and let live”. The reason for the demonstration was that riots had broken out between Roma and non-Roma families of the municipality on 25 July 2012. Following that incident, seventeen people were questioned by the police, and an enhanced police presence was ordered in the municipality, with the constant surveillance of streets inhabited by the Roma community.

In the applicants’ submission, the police were aware that the presence of a hostile crowd in the municipality could lead to violent acts. The police had been informed through official sources that in addition to the members of Jobbik, nine far-right groups, known for their militant behaviour and anti-Roma and racist stance, would also be present at the demonstration. They had also been informed that the demonstrators would seek conflict with the police and the minority community. According to the far-right organisations’ websites, the demonstration was aimed “against Roma criminality”, “against the Roma of Devecser beating up Hungarians” and “against the Roma criminals unable to respect the rules of living together”.

Devecser was classified as special zone of risk, (kiemelten veszélyeztetett) and eight police patrol units were dispatched to the municipality to ensure an increased presence and carry out checks as of 1 August 2012. About 200 police officers were deployed in Devecser to secure the demonstration, including members of the Operational Squad. On the day of the demonstration checks were increased throughout the county, including traffic check points. The Veszprém county police department also asked members of the Ethnic Roma Self-Government of Veszprém county to inform the Roma population about the upcoming demonstration.

About 400 to 500 people were present at the demonstration. Mr G.F. announced that the demonstration was about the justified self-protection of Hungarians. Invoking the crimes committed by members of the Roma community, he demanded the reintroduction of the death penalty and threatened the Roma community that if the criminality continued, Jobbik would return to Devecser. He also announced that the Roma were not “normal”.

In his speech, Mr L.T., leader of the Sixty-four Counties Youth Movement (Hatvannégy Vármegye Ifjúsági Mozgalom), mentioned that Roma criminality was omnipresent in the country and wherever this ethnic group appeared, only destruction, devastation and fear came. In his opinion the Roma population wanted to exterminate Hungarians, which left the latter with the choice of becoming victims or fighting back. Mr A.L., leader of the Civil Guard Association for a Better Future (Szebb Jövőért Polgárőr Egyesület) stated that hundreds of Hungarians were killed yearly by the Roma with the approval of the State. In his view there was a destruction of civilians going on in Hungary. He called on the demonstrators to sweep out the “rubbish” from the country, to revolt and to chase out the treasonous criminal group supressing Hungarians. He closed his speech by saying that the Hungarians were entitled to use all means to achieve those goals. Mr Zs.Ty., leader of the Outlaws’ Army (Betyársereg), spoke about the characteristics of a racial war and an ethnic-based conflict. He said that before such conflict escalated, a message should be sent. He mentioned that the Roma minority was genetically encoded to behave in a criminal way and declared that the only way to deal with the Roma was by applying force to “stamp out this phenomenon that needs to be purged”. Mr I.M., the leader of the New Guard (Új Gárda), called on the Government to end Roma criminality and warned that if Hungarians ran out of patience, there would be trouble. Finally, Mr I.O., the vice-president of Jobbik in Veszprém county, told participants that there would be no mercy and that every criminal act and every prank would be revenged; if the State authorities did not live up to their obligations to protect civilians from Roma criminality, this would be done by the population itself.

Following the speeches, the demonstrators marched down Vásárhelyi Street, the neighbourhood of Devecser inhabited by the Roma community, chanting “Roma criminality”, “Roma, you will die”, and “We will burn your house down and you will die inside”, “We will come back when the police are gone”, and obscene insults. They also called on the police not to protect the Roma residents from the demonstrators and to let them out from their houses. Sporadically, quasimilitary demonstrations of force occurred, involving military-style uniforms, formations, commands and salutes.

Certain demonstrators covered their faces, dismantled the cordon and were equipped with sticks and whips. Those leading the demonstration threw pieces of concrete, stones and plastic bottles into the gardens, encouraged by the crowd following them.

The Government and the applicants disagreed as to other aspects of the demonstration.

During the march through the Roma neighbourhood, which lasted approximately thirty minutes, both applicants stayed in the gardens of houses in Vásárhelyi Street. The first applicant submitted that he had overheard the police stating on their radio that the demonstrators were armed with sticks, stones, whips and metal pipes. Furthermore, one of his acquaintances had been injured by a stone thrown into his garden, but the police officer to whom the applicant had reported the incident had not taken any steps. In the second applicant’s submission, two of the demonstrators leading the march had had a list and had pointed out to the crowd the houses that were inhabited by Roma people.

According to the applicants, the police were present during the demonstration but remained passive and did not disperse the demonstration; nor did they take any steps to establish the criminal responsibility of the demonstrators. The report of the police’s contact officer noted that the organiser of the demonstrations, Mr G.F. had not been able to keep the events under control and had been unwilling to confront the participants.

According to the Government, the commander of the security forces immediately took action when the participants started to act violently, managed the crowd appropriately and separated hostile demonstrators from others.

On 21 September 2012 the Minister of the Interior, reacting to a letter from civil society organisations, informed the public that the conduct of the police had been adequate and that forty people, including five demonstrators, had been questioned by the police. Following a statement from two injured persons, the police opened criminal proceedings against unknown perpetrators on charges of “disorderly conduct” (garázdaság), which was subsequently amended to “violence against a member of a group” (közösség tagja elleni erőszak). It appears from the case file that a further criminal investigation was opened into charges of “violence against a member of a group” several months after the incident.

In November 2012 the Office of the Commissioner for Fundamental Rights published a report on the events. The report concluded that the police had failed to assess whether the event had infringed the rights and freedoms of others. Such assessment would have led to the conclusion that the people living in the neighbourhood were forced as a “captive audience” to listen to the injurious statements that had been made. According to the report, the demonstration had been used to incite ethnic tensions on the basis of the collective guilt of the ethnic group. It went on to state that by not enforcing the limits of freedom of assembly, the police had caused anomalies in respect of the right to peaceful assembly and the Roma population’s right to dignity and private life. It also pointed out that certain speeches had been capable of inciting hatred, evidenced by the fact that stones had been thrown at Roma houses following the speeches. The Commissioner found it regretful that the police had failed to identify the perpetrators on the spot, which was inconsistent with their task of preventing and investigating crimes and with the right to dignity, non-discrimination and physical integrity.

Both applicants complained to the Veszprém county police department about the failure of the police to take measures against the demonstrators, thereby endangering their life and limb and their human dignity.

On 22 November 2012 the police department dismissed the applicants’ complaint, finding that the conditions for dispersal of the demonstration had not been met, since any illegal or disorderly conduct on the part of the demonstrators had ceased within ten minutes. The police department held that the demonstration had remained peaceful, since, apart from the throwing of stones, no actual conflict had broken out between the police, the demonstrators and members of the Roma minority. It also found that only a small group of demonstrators had been armed with sticks and whips. As regards the failure of the police to carry out identity checks on demonstrators and to hold suspects for questioning (előállítás), the police department found that such measures would only have aggravated the situation and strengthened the demonstrators’ hostility towards the police.

On appeal, the National Police Service upheld the first-instance administrative decision. Following a request for judicial review lodged by the applicants, it nonetheless overruled the first-instance decision and remitted the case to the county police department.

By its decisions of 29 October 2013 and 25 June 2014 the Veszprém county police department dismissed both applicants’ complaints again on identical grounds. The police department found that the demonstration had remained essentially peaceful, because the majority of the participants had not aligned themselves with those committing violent acts. The police department observed that there had been grounds to disperse the demonstration, since some participants had been armed and there had been a reasonable suspicion that some of them had committed the criminal offence of violence against a member of a group. Nonetheless, it concluded that dispersing the demonstration would have carried a high risk since, based on previous experience, those participants intent on violence would probably have turned against the police.

The National Police Service upheld those decisions on appeal on 19 December 2013 and 5 August 2014, respectively, stating that although under section 14 of Act no. III of 1989 (“the Freedom of Assembly Act”) the police had been under an obligation to disperse the demonstration, they could refrain from such action if it carried a higher risk than allowing the demonstration to continue. Furthermore, the commander of the operation had been right not to apply measures against certain individuals, since that would have led to a clash between the demonstrators and the police, endangering not only the police themselves, but the local residents too. The second-instance authority acknowledged that the unlawful acts of certain demonstrators had infringed the fundamental rights of the applicants, but concluded that seeking to protect those rights would have caused more harm than good.

The applicants sought judicial review of those decisions, arguing that under section 14 of the Freedom of Assembly Act the police were under an obligation to disperse non-peaceful demonstrations irrespective of the proportionality of such a measure.

In its judgments delivered on 3 December 2014 and 19 March 2015 the Veszprém Administrative and Labour Court dismissed the applicants’ claims. It found that although the non-peaceful character of a demonstration could serve as grounds for its dispersal, this was only so if the demonstration as a whole had ceased to be peaceful. Sporadic acts of violence, as in the present case, could not serve as legitimate grounds for dispersal. The court also considered that the police had a margin of discretion when deciding on the dispersal of a demonstration. As regards the applicants’ claim that the police should have taken law-enforcement measures against certain individuals, the court pointed out that such actions would have led to clashes between the demonstrators and the police. The court therefore concluded that even if there had been grounds to terminate the demonstration or to apply law-enforcement measures against certain individuals, the police had been justified in not having done so. It added that, in any event, the potential infringement of the applicants’ fundamental rights had been caused not by the alleged inactivity of the police, but by the conduct of the demonstrators.

The applicants lodged a petition for review with the Kúria. In its judgments of 23 September 2015 and 6 January 2016 the Kúria reiterated that under the Freedom of Assembly Act no. III of 1989 the dispersal of demonstrations was a possibility rather than an obligation for the police and restrictions on the fundamental rights of others did not in themselves justify the restriction of the right of assembly. Furthermore, dispersal could only be used as a last resort, if the demonstration was likely to entail serious consequences. Relying on the report by the Commissioner for Fundamental Rights, the Kúria considered that despite certain violent actions, the demonstration had on the whole remained peaceful. The court went on to find that the police had been under an obligation to respect the principle of proportionality and had been right to conclude that dispersing the march could have caused more serious prejudice to the Roma community than allowing the demonstration to continue in a controlled manner.

As regards the lack of individual measures, the Kúria found that an operational unit of the police (csapaterő) had been deployed to maintain order, and that such a measure had not allowed for police officers to single out and act against individual demonstrators.

The Kúria also rejected the applicants’ argument that the police had done nothing to protect them and other members of the Roma minority. It found it established that the police had used a cordon to contain the demonstrators and had ensured the subsequent prosecution of perpetrators by logging events, and taking video footage and photographs.

The applicants, together with the Hungarian Helsinki Committee, lodged a criminal complaint concerning the speeches delivered at the demonstration and the attacks to which the Roma community had been subjected. The case was subsequently joined to a criminal complaint lodged by third persons concerning the same issue. On 22 November 2012 the Veszprém county police department opened an investigation into charges of violence against members of a group under Article 174/B of the Criminal Code. The police department opened a separate investigation, under Article 269 point (b) of the Criminal Code (incitement against a group), into the issue of the speeches delivered during the demonstration.

The investigation into incitement against a group was discontinued by the police department on 24 September 2013. The police department considered that although the content of the speeches had been injurious to the Roma minority and was morally reprehensible, it could not be classified as a crime. In particular, the speeches had not been meant to trigger unconsidered, instinctive, harmful and hostile reactions. By the same decision, the police department informed the applicants that it had asked the prosecutor’s office to press charges against an individual for violence against member of a group.

Following a complaint lodged by the applicants, the Veszprém County Prosecution Office upheld the decision to discontinue the investigation. It held that the legally protected interest in the criminalisation of incitement against a group was public morale. Thus the applicants were not victims of the alleged criminal act and had no standing to lodge a complaint against the decision to discontinue the investigation. However, the county prosecution office re-examined the decision on its own motion. It held that the speeches delivered in Devecser contained abusive, demeaning statements concerning the Roma minority and might have contained statements that evoked hatred, but that they had not provoked active hatred and had not called on the audience to take violent action against the local Roma.

As regards the investigation into the offence of violence against a member of a group, the police established that four persons had taken part in violent acts, in particular the throwing of stones. Three of the alleged perpetrators could not be identified, while the Veszprém County Prosecutor’s Office pressed charges against the fourth person, Mr T.K. He was found guilty as charged on 2 June 2015 by the Ajka District Court and sentenced to ten months’ imprisonment, suspended for two years. On appeal the Veszprém High Court upheld Mr T.K.’s conviction but amended his sentence to one year and three months’ imprisonment, suspended for three years.

The applicants, together with a third person, also lodged a criminal complaint against unknown perpetrators for breach of discipline in the line of duty, under Article 438 of the Criminal Code. Those proceedings were discontinued on 17 October 2012 by a decision of the Central Investigation Office of the Public Prosecutor, which held that the criminal offence could only be committed by soldiers in military service, but not by police officers.


CASE OF MESUT YURTSEVER AND OTHERS v. TURKEY

Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to receive ideas;Freedom to receive information);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

A. Mr Mesut Yurtsever (application no. 14946/08)

The applicant was born in 1974. When his application was lodged he was being held in the F-type prison in Bolu.

On 25 June 2007, while the applicant was being held in anther prison – the F-type prison in Tekirdağ – that prison’s education board decided not to deliver the 18, 19, 20, 21, 22, 23 and 24 June 2007 editions of the Azadiya Welat daily newspaper to the applicant or to other prisoners. They based their decision on section 62 § 3 of Law No. 5275 on the Execution of Sentences and Preventive Measures (“Law No. 5275”), which provides that no publication containing information, articles, photographs and comments which are obscene or liable to jeopardise prison security should be delivered to convicted prisoners. The board argued that the non-delivered publications were in the Kurdish language, that the prison had no staff able to understand Kurdish, that, furthermore, there were several dialects of that language and that it had therefore been impossible to have the publications in question translated. They consequently considered it impossible to ascertain whether those publications fulfilled the conditions laid down in the section of the relevant law.

On 28 June 2007 the applicant appealed against that decision.

On 22 October 2007, ruling on the basis of the case file, the Tekirdağ post-sentencing judge dismissed that appeal. He adjudicated in the light of the State Prosecutor’s opinion that in order to assess the conformity with section 62 § 3 of Law No. 5275 of publications in a language other than the official language, a translation of those publications was required, that there was no legal provision requiring the prison to finance the translation costs, that such expenses had not been covered by the appellant and that consequently, the appeal had to be dismissed.

On 30 October 2007 the applicant applied to have that decision set aside, submitting that the prison administration had suspended the delivery to the prison of the Azadiya Welat newspaper, which in his submission was widely distributed outside the prison, on the ground that it had no staff who understood Kurdish. He requested the setting aside of the post-sentencing judge’s decision declaring the measure consistent with the law, because in his view that measure would prevent the newspaper from being distributed inside the prison, as had previously been normal practice.

On 8 November 2007 the Tekirdağ Assize Court, ruling on the basis of the case file and having taken cognisance of the State Prosecutor’s opinion, concluded that the impugned decision was not incompatible in procedural or legal terms, and dismissed the application.

The applicants were born in 1982, 1980, 1973 and 1973 respectively. When their application was lodged they were held in the F-type prison in Tekirdağ.

On 28 May 2007 the Tekirdağ prison education board, drawing on section 62 of Law No. 5275, decided not to deliver to the applicants the 22, 23, 24, 25, 26, 27 and 28 June 2007 editions of the Azadiya Welat daily newspaper on the grounds that they were in the Kurdish language and that the prison had no staff capable of translating that language.

On 4 June 2007 the applicants appealed against that decision.

On 10 August 2007, ruling on the basis of the State Prosecutor’s opinion that the education board’s decision had been justified, the Tekirdağ post-sentencing judge dismissed that appeal.

On 21 August 2007 Mr Atabey and Mr Çiftçi and on 23 August 2007 Mr Yurtsever and Mr Şaka, applied to have that decision set aside.

On 7 September 2007 the Tekirdağ Assize Court, ruling on the basis of the case file and having taken cognisance of the State Prosecutor’s opinion, dismissed that application on the grounds that the impugned decision had been unobjectionable in procedural and legal terms.

The applicants were born in 1983. When their application was lodged they were held in the F-type prison in Tekirdağ.

On 9 July 2007 the prison education board decided not to deliver the 2, 3, 4, 5, 6, 7 and 8 July 2007 editions of the Azadiya Welat daily newspaper to the applicants. They based their decision on section 62 § 3 of Law No. 5275. The Board emphasised that the publications were in Kurdish and that the prison had no staff who understood Kurdish, so that, in the Board’s view, it was impossible to have books, newspapers and magazines in that language translated and, consequently, to ascertain whether such publications fulfilled the conditions laid down in the section of the relevant law.

On 10 July 2007 the applicants appealed against that decision. In a letter sent the same day to the Tekirdağ post-sentencing judge, Mr Cengiz submitted, inter alia, that no seizure order had been made in respect of the editions of the daily newspaper in question and that it had been absurd to request the translation of the newspaper since it had been on sale nationwide and was subject to statutory review. Moreover, he contended that the decision appealed against was unlawful.

Mr Ergezen sent a letter on 18 July 2007 to the Tekirdağ postsentencing judge alleging that the ban on delivery of publications in Kurdish to the prison had been lifted five months previously and that the prison authorities’ argument to the effect that there had been no staff who understood Kurdish was implausible. He also stated that the inmates of other F-type prisons had been authorised to receive such publications, so that the prison authorities’ practice had to be deemed arbitrary.

On 23 October 2007 the Tekirdağ post-sentencing judge dismissed the appeal on the basis of the case file. He adjudicated in the light of the State Prosecutor’s opinion that in order to assess the conformity with section 62 § 3 of the relevant law of publications in a language other than the official language a translation of those publications was required, that there was no legal provision requiring the prison to finance the translation costs, that such expenses had not been covered by the appellant and that consequently, the appeal had to be dismissed.

On 1 November 2007 the applicants appealed against that decision. Mr Ergezen requested the lifting of the prohibition in issue. Mr Cengiz submitted that the newspaper in question had been distributed under the supervision of the Prosecutor responsible for the press and that the lack of any judicial proceedings or seizure order in respect of the newspaper demonstrated that it was unobjectionable. He therefore considered that access should be permitted to the publication.

On 8 November 2007, ruling on the basis of the case file and having taken cognisance of the State Prosecutor’s opinion, the Assize Court, drawing on the case file and having taken cognisance of the State Prosecutor’s opinion, dismissed that application on the grounds that the impugned decision had been unobjectionable in procedural and legal terms.

The applicants were born in 1974 and 1985 respectively. When their application was lodged they were being held in the F-type prison in Tekirdağ.

On 25 June 2007 the prison education board, drawing on section 62 § 3 of Law No. 5275, decided not to deliver the 18, 19, 20, 21, 22, 23 and 24 June 2007 editions of the Azadiya Welat daily newspaper to the applicants. The Board explained that the publications were in the Kurdish language, that the prison had no staff who understood Kurdish, that, furthermore, there were several dialects of that language, that it had therefore been impossible to have the publications in question translated, and that consequently there was no way of ascertaining whether those publications fulfilled the conditions laid down in the relevant section of Law No. 5275.

On 28 June 2007 the applicants appealed against that decision. Mr Abo sent a letter on the same day to the Tekirdağ post-sentencing judge complaining that he had been denied access to the editions in question, adding that the prison authorities’ decision had been geared to banning the daily newspaper and was unlawful.

In a letter of 4 July 2007 Mr Oğurtan informed the Tekirdağ postsentencing judge he had been unjustifiably deprived of the Azadiya Welat newspaper since 18 June 2007. He requested that the newspaper be delivered to him in the standard manner in future.

On 22 October 2007, ruling on the basis of the case file, the Tekirdağ post-sentencing judge dismissed Mr Oğurtan’s appeal on the ground that the impugned decision had been unobjectionable in procedural and legal terms. He adjudicated in the light of the State Prosecutor’s opinion to the effect that in order to assess the conformity with section 62 § 3 of the relevant law of publications in a language other than the official language, a translation of those publications was required, that there was no legal provision requiring the prison to finance the translation costs, that such expenses had not been covered by the appellant and that the measure adopted by the prison authorities had consequently been justified.

On 26 October 2007 Mr Oğurtan wrote to the Tekirdağ Assize Court to complain that he was no longer in receipt of the Azadiya Welat newspaper and that his appeal to the post-sentencing judge on that matter had been unsuccessful. He requested that the practice in question, which he described as undemocratic, be discontinued and that the newspaper in question be delivered to him in the standard manner.

On 1 November 2007 Mr Abo wrote to the Tekirdağ Assize Court. He submitted that Azadiya Welat was a newspaper which was subject to the same kind of review as all other organs of the press. The lack of any judicial proceedings or of a ban against that daily newspaper was sufficient on its own to demonstrate that it raised no problems and that he should therefore have access to it. He consequently requested the setting aside of the postsentencing judge’s decision and its replacement by a decision to resume deliveries of the newspaper to him.

On 8 November 2007 the Tekirdağ Assize Court, ruling on the basis of the case file and having taken cognisance of the State Prosecutor’s opinion, found that the impugned decision had been unobjectionable in procedural and legal terms and dismissed the request.

The applicants were born in 1979 and 1976 respectively. When their application was lodged they were being held in the prison F-type in Tekirdağ.

On 28 June 2007 the Tekirdağ prison education board decided not to deliver to the applicants the 19, 20, 21, 22, 23 24 and 25 June 2007 editions of the Azadiya Welat daily newspaper on the grounds that they were in the Kurdish language and that the prison had no staff capable of translating that language.

On 5 July 2007 Mr Kaya wrote to the Tekirdağ post-sentencing judge to challenge that decision and to request the delivery of the newspaper in question.

On 9 July 2007 the applicants lodged an appeal against the impugned decision.

On 22 October 2007, ruling on the basis of the case file, the Tekirdağ post-sentencing judge dismissed that appeal on the grounds that the impugned decision had been unobjectionable in procedural and legal terms. He adjudicated in the light of the State Prosecutor’s opinion that in order to assess the conformity with section 62 § 3 of the relevant law of publications in a language other than the official language, a translation of those publications was required, that there was no legal provision requiring the prison to finance the translation costs, that such expenses had not been covered by the appellants and that the measure adopted by the prison authorities had consequently been justified.

On 26 October and 30 October 2007 respectively Mr Abdullah Günay and Mr Mehmet Ali Kaya appealed against that decision. In a letter to the Assize Court in Tekirdağ, Mr Kaya pointed out that the refusal to deliver the Azadiya Welat newspaper to him was arbitrary and requested delivery of the latter, which he said was published in accordance with the relevant legislation.

On 8 November 2007 the Tekirdağ Assize Court, ruling on the basis of the case file and having taken cognisance of the State Prosecutor’s opinion, found that the impugned decision had been unobjectionable in procedural and legal terms and dismissed the appeal.

The applicants were born in 1979 and 1986 respectively. When their application was lodged they were being held in the F-type prison in Tekirdağ.

On 3 July 2007 the Tekirdağ prison education board decided not to deliver the 26, 27, 28, 29 and 30 June 2007 editions of the Azadiya Welat daily newspaper to the applicants on the grounds that they were in the Kurdish language and that the prison had no staff capable of translating that language.

On 16 July 2007 the applicants appealed against that decision.

On 23 October 2007, ruling on the basis of the case file, the Tekirdağ post-sentencing judge dismissed that appeal, finding that the impugned decision had been unobjectionable in procedural and legal terms. He adjudicated in the light of the State Prosecutor’s opinion that in order to assess the conformity with section 62 § 3 of Law No. 5275 of publications in a language other than the official language, a translation of those publications was required, that there was no legal provision requiring the prison to finance the translation costs, that such expenses had not been covered by the appellants and that the measure adopted by the prison authorities had consequently been justified.

On 26 October and 30 October 2007 respectively, Mr Abdullah Günay and Mr Adem Yüksekdağ appealed against that decision. Mr Günay sent a letter to the Assize Court complaining that the post-sentencing judge had joined forces with the prison authorities to impede his right to receive information and had therefore infringed that right, as enshrined in the Convention. He submitted that the newspaper in question was published in conformity with the relevant legislation and that it was therefore unnecessary to translate it, because if its content had been unlawful it would have been subject to a seizure order. He added that the right to read a newspaper in Kurdish, his mother tongue, was a natural right.

The applicant was born in 1979. When his applications were lodged he was held in the F-type prison in Tekirdağ.

On 6 September 2007 the Tekirdağ prison education board decided not to deliver to the applicant the 28, 29, 30 and 31 August 2007 editions of the Azadiya Welat daily newspaper on the grounds that it did not understand their content and could not have them translated, also having regard to a decision given on 9 August 2007 by the Tekirdağ post-sentencing judge.

On 13 September 2007 the applicant appealed against that decision.

On 5 November 2007, ruling on the basis of the case file, the Tekirdağ post-sentencing judge dismissed that appeal, finding that the impugned decision had been unobjectionable in procedural and legal terms. He adjudicated in the light of the State Prosecutor’s opinion to the effect that in order to assess the conformity with section 62 § 3 of Law no. 5275 of publications in a language other than the official language, a translation of those publications was required, that there was no legal provision requiring the prison to finance the translation costs, that such expenses had not been covered by the appellant and that the education board’s decision had consequently been justified.

On 8 November 2007 the applicant appealed against the postsentencing judge’s decision.

On 27 November 2007 the Tekirdağ Assize Court, ruling on the basis of the case file and having taken cognisance of the State Prosecutor’s opinion, found that the impugned decision had been unobjectionable in procedural and legal terms and dismissed the applicant’s appeal.

On 31 August 2007, referring to a decision given by the Tekirdağ post-sentencing judge on 9 August 2007, the Tekirdağ prison education board decided not to hand over to the applicants the 21, 22, 23, 24, 25, 26, 27 and 28 August 2007 editions of the Azadiya Welat daily newspaper on the grounds that it could not understand their content or have them translated.

On 7 September 2007 the applicant appealed against that decision.

On 28 November 2007 the Tekirdağ Assize Court, ruling on the basis of the case file and having taken cognisance of the State Prosecutor’s opinion, found that the impugned decision had been unobjectionable in procedural and legal terms and dismissed the latter appeal.

The applicants were born in 1979, 1978 and 1980 respectively. When their application was lodged they were being held in the F-type prison in Tekirdağ.

On 13 September 2007 the Tekirdağ prison education board decided not to deliver the 4, 5, 6, 7, 8 and 9 September 2007 editions of the Azadiya Welat daily newspaper to the applicants on the grounds that they were in the Kurdish language and that the prison had no staff capable of translating that language. The Board also had regard to the fact that the Tekirdağ postsentencing judge had adjudicated on other editions of that newspaper on 9 August 2007, as had the Assize Court on 7 September 2007.

On 24 September 2007 the applicants appealed against that decision.

On 5 November 2007, ruling on the basis of the case file, the Tekirdağ post-sentencing judge dismissed that appeal, finding that the impugned decision had been unobjectionable in procedural and legal terms. He adjudicated in the light of the State Prosecutor’s opinion to the effect that in order to assess the conformity with section 62 § 3 of the Law no. 5275 of publications in a language other than the official language, a translation of those publications was required, that the prison authorities had no budget for that purpose, that there was no legal provision requiring the prison to finance the translation costs, that such expenses had not been covered by the appellants and that the education board’s decision had consequently been justified.

Mr Günay appealed against that decision by the post-sentencing judge on 8 November 2007, and Mr Adıyaman and Mr Şaka followed suit on 12 November 2007.

The applicant was born in 1983. When his applications were lodged he was being held in the F-type prison in Tekirdağ.

On 2 July 2007 the prison education board decided not to deliver the 25, 26, 27, 28, 29 and 30 June and 1 July 2007 editions of the Azadiya Welat daily newspaper to the applicant, pursuant to section 62 § 3 of Law No. 5275, on the grounds that that the publications were in Kurdish and that the prison had no staff who understood that language, making it impossible to secure a translation in order to ascertain whether the content of the newspapers complied with the aforementioned legislative provision.

On 3 July 2007 the applicant appealed against that decision, submitting, inter alia, that the editions of the newspaper in question had not been the subject of any judicial seizure order and therefore ought to have been delivered to him. He further submitted that he had been in receipt of the newspaper for four months without any problem before being deprived of it, and that the decision taken by the prison authorities had been unlawful. He consequently requested that the impugned decision be set aside and he be allowed to receive the newspaper in question.

On 23 October 2007, ruling on the basis of the case file, the Tekirdağ post-sentencing judge dismissed that appeal, finding that the impugned decision had been unobjectionable in procedural and legal terms. He adjudicated in the light of the State Prosecutor’s opinion to the effect that in order to assess the conformity with section 62 § 3 of the relevant law of publications in a language other than the official language, a translation of those publications was required, that there was no legal provision requiring the prison to finance the translation costs, that such expenses had not been covered by the appellant and that the measure adopted by the prison authorities had consequently been justified.

On 1 November 2007 the applicant appealed against that decision. He submitted that the newspaper in question had been published in accordance with the law, that it had been subject to review by the Prosecutor responsible for the press before distribution and that, in the absence of any judicial proceedings or seizure order against it, the newspaper could not be deemed problematic. He consequently requested access to the impugned editions of the newspaper.

On 8 November 2007 the Tekirdağ Assize Court, ruling on the basis of the case file and having taken cognisance of the State Prosecutor’s opinion, found that the impugned decision had been unobjectionable in procedural and legal terms and dismissed the applicant’s appeal.

On 16 July 2007 the prison education board decided not to deliver the 9, 10, 11, 12, 13, 14 and 15 July 2007 editions of the Azadiya Welat daily newspaper to the applicant, pursuant to section 62 § 3 of Law No. 5275, on the grounds that that the publications were in Kurdish and that the prison had no staff who understand that language, making it impossible to secure a translation in order to ascertain whether the content of the newspapers complied with the aforementioned legislative provision.

On 17 July 2007 the applicant appealed against that decision. He sent a letter dated 19 July 2007 to the Tekirdağ post-sentencing judge stating that the impugned newspaper had not been the subject of any seizure order, and that it was both pointless and unlawful to demand a translation of its content when it had already been subject to statutory review.

On 1 November 2007 the applicant appealed against that decision, submitting, inter alia, that the newspaper in question had been subject to review by the Prosecutor responsible for the press before distribution. The absence of any judicial proceedings or seizure order against it proved that the newspaper did not raise any problems.

On 8 November 2007 the Tekirdağ Assize Court, ruling on the basis of the case file and having taken cognisance of the State Prosecutor’s opinion, found that the impugned decision had been unobjectionable in procedural and legal terms and dismissed the latter appeal.

On 4 September 2007the prison education board decided not to deliver the 27, 28, 29, 30 and 31 August and 1 and 2 September 2007 editions of the Azadiya Welat daily newspaper to the applicant, pursuant to section 62 § 3 of Law No. 5275, on the grounds that that the publications were in Kurdish and that the prison had no staff who understand that language, making it impossible to secure a translation in order to ascertain whether the content of the newspapers complied with the aforementioned legislative provision.

The applicant appealed against that decision.

On 5 November 2007, ruling on the basis of the case file, the Tekirdağ post-sentencing judge dismissed that appeal, finding that the impugned decision had been unobjectionable in procedural and legal terms. He adjudicated in the light of the State Prosecutor’s opinion to the effect that in order to assess the conformity with section 62 § 3 of the Law no. 5275 of publications in a language other than the official language, a translation of those publications was required, that the prison authorities had no budget for that purpose, that there was no legal provision requiring the prison to finance the translation costs, that such expenses had not been covered by the appellant and that the education board’s decision had consequently been justified.

On 12 November 2007 the applicant appealed against the postsentencing judge’s decision. He submitted, inter alia, that the newspaper in question had been published in accordance with a procedure prescribed by law and that if the newspaper had been in an unlawful situation the Prosecutor responsible for the press would have taken the necessary action. The applicant submitted that the newspaper had not been the subject of any ban or seizure order. Consequently, he requested that he be given access to the publication.

On 20 November 2007 the Tekirdağ Assize Court, ruling on the basis of the case file and having taken cognisance of the State Prosecutor’s opinion, found that the impugned decision had been unobjectionable in procedural and legal terms and dismissed the latter appeal.


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in 1966 and lives in the village of Verhnyaya Serebryakovka, the Rostov Region.

On 1 June 2005 the Volgodonsk Town Department of the Interior ("the ROVD") ordered a test purchase of drugs from the applicant, as he was suspected of drug trafficking.

On the same date undercover police officer K. called the applicant and indicated that he wished to buy two doses of opium. The applicant agreed to procure it. At around 11.30 a.m. he met two undercover police agents in the street and sold them two sachets of opium.

At around midday, police officers G. and K. arrested the applicant near his flat in the presence of his partner E. and her sister B. The police officers took him to the ROVD station. From the arrest record it follows that the applicant was advised of his right to be assisted by counsel, but decided not to use this possibility.

According to the applicant, during the next eight hours he spent in detention police officers G. and K. put pressure on him to confess. They repeatedly beat him up, damaging his kidneys and causing other injuries. Regardless of this, he did not admit his involvement in drug trafficking.

Thereafter the applicant was taken to the office of police officer M., who, in the presence of attesting witnesses, examined his hands with a view to finding traces of drugs. Allegedly, the police officers also removed and examined money from the applicant’s pocket.

At 9.12 p.m. the applicant was transferred to a temporary detention facility. A paramedic on duty examined him upon arrival there and made the following entry in the medical record:

“[The applicant] complains of back pain. [He makes] no complaints in connection with the scratch noted on his right knee. [The applicant] said that scratch had been inflicted during his arrest ...”

At 11.27 p.m. police officers G. and K. carried out a search of the applicant’s flat and found a resinous substance which was subsequently determined to be opium. It does not appear that the applicant brought any proceedings to contest the lawfulness of the search.

At the detention facility the applicant repeatedly complained of pain in his lower back. On an unspecified date a paramedic of the emergency services examined the applicant in this connection, having diagnosed soft tissue bruising of the lower back (see paragraph 34 below).

Between 1 and 10 June 2005 he complained on a few occasions of lower back pain. It appears that detention facility paramedics measured his body temperature, blood pressure and gave him injections of painkillers.

On 9 June 2005 the applicant asked the Volgodonsk town prosecutor’s office (“the prosecutor’s office”) to institute criminal proceedings in connection with the alleged ill-treatment of 1 June 2005.

On 18 July 2005 the prosecutor’s office refused this request as unfounded.

The applicant appealed against that decision in court and before a higher prosecutor.

It appears that on 15 August 2005 the applicant was taken to the emergency services of a hospital, where surgeon Tr. performed an X-ray examination of the applicant’s kidneys and some other tests in relation to his alleged back pain. The examination did not reveal any anomalies in his condition.

On 17 August 2005 a higher prosecutor quashed the decision of 18 July 2005 and remitted the case for additional preliminary inquiry. It stated:

“... The examination of the case file shows that the investigation was perfunctory and the decision not to institute criminal proceedings was premature.

In the course of the additional [preliminary inquiry] the investigator should question [police officer] G., and [the sister of the applicant’s partner] B., order a medical examination of [the applicant] and take other steps required to carry out the necessary check at the end of which [he] should take a decision in accordance with the law...”

On 19 August 2005 the Volgodonsk Town Court rejected the applicant’s appeal against the decision of 18 July 2005, as it had already been quashed by a higher prosecutor.

On 20 August 2005 the prosecutor’s office issued a new decision not to institute criminal proceedings. That decision was challenged in court and before a higher prosecutor.

It appears that on 16 September 2005 a supervising prosecutor quashed it and ordered an additional preliminary inquiry into the applicant’s complaints, having noted that the investigative authorities should examine the detention facility paramedics who provided the applicant with first aid.

On 19 September 2005 the Volgodonsk Town Court rejected the applicant’s appeal against the decision of 20 August 2005, as it had already been quashed.

The investigating authorities questioned E. and B., eyewitnesses to the applicant’s arrest, G. and K., the police officers who had allegedly illtreated him and detention facility paramedic Zyu.

On 21 September 2005 the prosecutor’s office rejected the applicant’s request to institute criminal proceedings, having held as follows:

“On 8 July 2005 [the prosecutor’s office] received file no. 1195 pr. 05 related to [the applicant’s] complaint of ill-treatment by police officer K.

[The applicant] stated that K. ... applied physical and psychological pressure on him.

When questioned, K. stated that in May 2005 the police had received information about [the applicant’s] involvement in opium trafficking. On 1 June 2005 G. ordered a test purchase... [Following the test purchase] he and G. arrested [the applicant] and took him to the ROVD station. During [the applicant’s] arrest, his transportation and the subsequent investigation no one used physical or psychological force on him. [The applicant] did not complain about his health and did not ask for an ambulance. All of the investigative actions were performed in the presence of attesting witnesses.

K. also submitted that on 1 June 2005 he and G. carried out a search of [the applicant’s] flat. The search was performed in the presence of [the applicant’s] neighbours, attesting witnesses and the owner of the flat. During the search the police found vessels which [contained] traces of drugs and opium [The page is missing]....

When questioned, [the applicant] stated that on 1 June 2005 he, accompanied by E. and B., went out of the entrance to the block of flats. He had car keys, [his] driving licence, car [registration] documents and 900 Russian roubles in his pocket. After a short conversation with an acquaintance, he was knocked down by two men who handcuffed him. One of these men introduced himself as police officer K. In the presence of E. and B. that officer took the car keys, driving licence and car [registration] documents from [the applicant]. At 11.40 a.m. [the applicant] was taken to the ROVD station. He was taken to an office where K. and G. began to hit him [on the] lower back with a plastic bottle filled with water. They forced him to confess to drug trafficking. Thereafter he was taken to M.’s office, where in the presence of attesting witnesses a police officer took 1,200 Russian roubles from his pocket. A special examination showed that [both the applicant’s] hands and the banknotes had fluorescent marks [on them]. [The applicant] refused to give a statement in the presence of G. and K. During [the applicant’s] detention he asked for an ambulance three times. A detention facility doctor gave him injections of painkillers [every day] for ten days. On 15 August 2005 he was examined by a hospital doctor. [The applicant] asked to be present at the search of his flat. However, this request was rejected by the police...

When questioned, B. explained that her sister E. was the applicant’s partner and lived with him and their daughter in a flat which belonged to B... On the day of [the applicant’s] arrest she, E. and [the applicant] had gone to a garage. On their way there while the applicant was walking behind them, two young men knocked him down. The men introduced themselves as police officers. She did not see the police officers taking [the applicant’s] belongings from his pockets. She had never seen those officers before. They did not put any pressure on her.

When questioned, [detention facility paramedic Zyu.], stated that [the applicant] was brought to the detention facility at 9.12 p.m. and examined there by [him]. From the medical records it was clear that [the applicant] had complained of lower back pain but only the scratch on his knee was noted, received, from his own description during the arrest. [The applicant] complained of chest pain. No other visible injuries were detected. Later he complained about pain in the area of the right shoulder, pain in the chest, in the area of ninth and tenth ribs. On 15 August 2005 he was brought for examination in emergency services of a hospital, where [the applicant] made a X-ray scan and ultrasound examination of his kidneys. No pathologies in his condition were detected.

When questioned, E. submitted that on 1 June 2005 at about 11 a.m. she, her sister E. and [the applicant] had gone to a garage. On their way there while the applicant was walking behind them, two young men knocked him down. The men introduced themselves as police officers. She did not see the police officers taking [the applicant’s] belongings from his pockets. The police officers did not use force against [the applicant] during his arrest. They did not put any pressure on her.

Having regard to the above, it was established in the course of the inquiry that ... there is no evidence that G. and K. committed the alleged criminal offence...”

The applicant appealed and argued that the decision of 21 September 2005 had been based on incomplete information and that the assessment of the available evidence had been wrong.

On 10 February 2006 the Volgodonsk Town Court dismissed the applicant’s appeal against the decision of 21 September 2005 and upheld it in full. The court noted that:

“... - from the explanations given by [the investigator in charge of the case] it follows that he ... interviewed paramedic Zyu. ... who had examined [the applicant] on 1 June 2005 ... and she explained that there were no injuries on [the applicant’s body], but [the applicant] complained about the pain in the back, which was why it was unnecessary for the investigator also to interview the doctors of the emergency services. In the copies of documents there were statements of paramedic Zyu. ... as well as statements of doctor Tr. of the emergency services who examined [the applicant] on 15 August 2005 making complaints only about the pain in the back and not about anything else;

- from the explanation of [the investigator] it also follows that he interviewed [the applicant’s partner E.] who did not communicate any information that on 1 June 2005 during [the applicant’s] arrest in her presence the police officers used physical force in respect of [the applicant] ...

On the basis of the above, the court concludes that the investigator’s decision ... was well-grounded and lawful ...”

The applicant appealed, having argued that the first instance court had taken the decision in his absence and that its legal and factual conclusions contradicted the case file materials.

On 25 April 2006 the Rostov Regional Court examined the applicant’s appeal and quashed the decision of the lower court and remitted the case to the Volgodonsk Town Court for a fresh examination at first instance. It held that:

“... in breach of the Code of Criminal Procedure of Russia (“CCrP”), the court did not duly examine the investigator’s decision not to institute criminal proceedings.

Thus, the [lower] court did not take into account [the fact] that the investigative authorities had disregarded the prosecutor’s recommendations of 16 September 2005 and had not questioned the doctors of the emergency services who provided [the applicant] with medical assistance.

Moreover, the court did not assess the thoroughness of the investigation. The court did not take into account certain contradictions in the witnesses’ statements.

In particular, detention facility paramedic Zyu. stated that [the applicant] had repeatedly complained of chest and back pains. In connection with this he was provided with first aid by paramedics. On 15 August 2005 [the applicant] was taken to the city hospital. X-ray and ultrasound examinations showed no signs that the applicant had a medical condition. However [surgeon Tr.] noted that no ultrasound examination had been performed because police officers took the applicant out of the hospital. [Tr.] also submitted that [the applicant] had undergone a blood test and a urine test.

The [lower] court did not take into account [the fact] that the investigator’s conclusion that there was an absence of any evidence of the [applicant’s] ill-treatment was unfounded. From the case file it is evident that between 1 and 10 June 2010 a detention facility doctor and paramedics provided [the applicant] with first aid.

The [lower] court did not notice that the investigating authorities had failed to establish the cause of [the applicant’s] health problems and to check whether [the applicant] had had kidney disease before his arrest. This indicates the superficial character of the investigation.

The court cannot accept the [lower] court’s references to [the applicant]’s conviction because [the applicant’s] allegations of ill-treatment were not examined on the merits in the proceedings against him...”

On an unspecified date a higher prosecutor, acting in parallel to the then pending court proceedings, quashed the decision of 21 September 2005 as unlawful and remitted the case to the prosecutor’s office for an additional investigation, having required to interview the paramedic who had provided the applicant with medical aid in prison.

On 14 June 2006 the Volgodonsk Town Court left the applicant’s complaint about the decision of 21 September 2005 without examination, noting that that decision had already been quashed by the higher prosecutor.

Apparently in response to the prosecutor’s previous recommendations (see paragraph 30 above), the investigating authorities performed some additional investigating measures, in particular, they questioned E. as well as paramedics Ya. and Z. who had provided the applicant with medical aid in prison, doctor Tr. of the emergency services of the hospital and again questioned police officer M., who had carried out investigating actions in respect of the applicant on 1 June 2005.

On 14 June 2006 the applicant’s partner E. was interviewed by an investigator of the Volgodonsk Town Prosecutor’s office and gave the following statement:

“With [the applicant] I resided together as of the time of his release from prison after he had served his [previous] sentence for extortion. During the time we lived together [the applicant] complained about the pain in kidneys and pain in the area of ribs. I cannot remember the side. From [his] words I learned that during his detention [the applicant] had been severely beaten, as a result of which they broke his rib and contused the kidneys. With these complaints, as long as I remember, he never applied for aid in medical institutions. More than once, including in my presence, in pharmacies he used to buy medicine to relieve the mentioned pain. He also complained about pain in the area of the liver.

I don’t know if [the applicant] talked about [this] to anyone. Because he failed to apply for medical aid, the broken rib recovered incorrectly.”

On 24 April 2007 the prosecutor’s office refused to open a criminal case. This decision reiterated the findings of the decision of 21 September 2005 and added as follows:

“When questioned, Tr. explained that he worked as a surgeon in the emergency services of the hospital and ... that ... [the applicant] applied to him with complaints about the pain in the lower back. He examined [the applicant] and made him undergo the blood and urine tests, failing to detect any anomalies... It was expected also to make an ultrasound test of kidneys, buy the convoy and [the applicant] left the building...

When questioned, M. stated that she had been working for the ROVD since September 2000. She was on duty when she received information about [the applicant’s] arrest by police officers G. and K. She carried out initial investigating actions in his regard and examined his hands for traces of drugs. [The applicant] made no complaints about his state of health. He had no visible injuries. She ordered G. and K. to perform an urgent search in [the applicant’s] flat. Neither she, nor other police officers acted unlawfully towards the applicant.

When further questioned on 14 June 2006, E. stated that she had been living with [the applicant] since his release from prison. During their cohabitation [the applicant] had complained of lower back, chest and stomach pains. She knew from what [the applicant] had said that he had been beaten in prison. He had never consulted a doctor on account of his health problems. He used painkillers to cope with these pains and never applied to [medical institutions] for [medical] aid.

When questioned, [paramedic Ya. of the emergency services] noted that she attended the ROVD’s temporary detention facility upon the [applicant’s] request on account of his lower back pain. No hematomas or bruises were noted on his lower back. Since [the applicant] had no bodily injuries as well as signs of any diseases, she made a preliminary diagnosis – a bruise of soft tissue in the lower back area. To confirm the diagnosis it was necessary to have [the applicant] examined by a surgeon and, if necessary, by other doctors. She did not remember whether [the applicant] complained of ill-treatment or not.

Similar statements were given by [paramedic Za. of the emergency services]...

When questioned [the applicant’s acquaintance T.] stated that on 1 June 2005 on his way to a [bus stop] he met [the applicant] and his partner, who were going to a garage. They had a conversation for a minute. During that conversation he did not give [the applicant anything] or take anything from [the applicant]. Thereafter, on the way to the bus stop he was stopped by two police officers who checked his documents. He did not see [the applicant’s] arrest. Several days later he learned about [the applicant’s] arrest on suspicion of drug trafficking...

Having regard to the above, the investigator concludes that [the applicant’s] allegations of ill-treatment were made in an attempt to escape criminal liability for his offence...

In the light of the above considerations, and taking into account Articles 145 and 148 of the CCrP, the investigator orders the refusal of [the applicant’s] request that criminal proceedings against [the police officers] be instituted. There is no evidence of the crimes provided by Articles 286 § 1 [abuse of power] and 303 § 2 [falsification of a criminal case file] of the Criminal Code of Russia having taken place...”

The applicant did not appeal against the decision of 24 April 2007.

On 17 May 2011 the applicant obtained, for the purposes of the present case, the following statement from his partner E. The statement is made in relation to the earlier statement of E. (see paragraphs 33 and 34) and reads as follows:

“Before [the prosecutor’s office] [I] gave false statements about [the applicant]. He never had kidney disease or complained of lower back pain. He had never bought medicine to cope with the pain. I gave those false statements because I thought that [the applicant] would evict me from my flat. I was also unhappy because I had to pay for our flat while he was in detention.”

Throughout the proceedings before the trial court the applicant denied his involvement in drug trafficking, claiming that the criminal case against him had been falsified by police officers.

According to the applicant, during the trial court hearings he was unable to cross-examine two of the witnesses against him. He also stated that the Volgodonsk Town Court did not ensure the attendance of a witness on his behalf.

On 18 October 2005 the Volgodonsk Town Court convicted the applicant of drug trafficking and sentenced him to four years and six months of imprisonment.

The applicant appealed against the judgment, having argued that the criminal case against had been falsified by the police. In his appeal brief he did not state his complaints about the alleged inability to cross-examine some of the witnesses and call a witness on his behalf.

On 31 January 2006 the Rostov Regional Court examined and rejected the applicant’s arguments, having upheld his conviction and the sentence in full.

On 21 September 2006 the Presidium of the Rostov Regional Court upheld the judgments of the lower courts, having re-characterised the applicant’s crime as an attempt to sell drugs and reduced his sentence to four years and three months of imprisonment.