Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award

Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in 1977. He is serving a life sentence in prison.

According to an extract from the register of convictions provided by the Government, the applicant had nine criminal convictions and one misdemeanour punishment on record. He was serving a life sentence on the basis of his conviction in 2001 for the murder of two people and attempted manslaughter of another person. Furthermore, he had several convictions for attacking prison officers and other prisoners. In addition, a large number of disciplinary punishments had been imposed on him in prison, including for disobeying orders of and threatening prison officers. In the individual action plans (kinnipeetava individuaalne täitmiskava) drawn up in Tartu Prison and in Viru Prison, the applicant was characterised as a dangerous person lacking in self-control and capable of physically attacking others.

On 3 July 2009 the applicant was informed by prison guard KA that he would be transferred to a punishment cell in the evening in order to serve a disciplinary punishment. The applicant was dissatisfied, as he had been led to understand that he would not have to serve the punishment in question until the resolution by the Chancellor of Justice (Õiguskantsler) of his complaint related to the matter. He said that he would not gather his belongings until he could clarify the situation with a security officer. KA told him that if he continued to object to going to the punishment cell, he would be taken there by force. The applicant replied that he would defend himself if unlawfully attacked.

At 5.45 p.m. KA, together with two further guards, MN and JT, went to the applicant’s cell. KA had a plastic shield and MN and JT wore flak jackets and helmets. KA moved towards the applicant, keeping the shield in front of him. MN and JT followed him.

According to the applicant, KA came up to him and pressed the shield into his chest while the two other guards added pressure from behind. The applicant tried to push back against the shield, while MN and JT tried to grab his hands. Then KA let the shield fall and tried to grab the applicant’s neck. The guards twisted his arms behind his back and ordered him to lie down on the floor. The applicant was brought down and KA pressed his neck so strongly that he lost his breath. According to the applicant, KA pinched his nose with his fingers, covered his mouth with his palm, pressed his knee into his neck and poked him in the eyes with two fingers. While on the floor, the applicant was handcuffed and kicked in the ribs so hard that he felt his left rib cracking. He was then raised up and escorted to the punishment cell. In the corridor the applicant lost his breath, cried that he could not breathe and asked for permission to straighten up but the guards pressed him down and continued on their way.

According to the prison guards, the applicant attempted to hit them and had a scuffle with KA, in the course of which the latter sustained minor injuries. They denied having kicked or strangled the applicant and submitted that he had subsequently threatened to kill them one by one.

In the punishment cell, two nurses came to examine the applicant. They suspected a broken rib and told him to lie still until an X-ray image was taken (for the medical evidence in the case, see paragraphs 21 to 27 below). A guard told them that a medical certificate was required to keep a mattress in the punishment cell around the clock. According to the applicant a nurse confirmed that such a certificate would be drawn up.

At 6.45 a.m. guard OV entered the applicant’s cell and told him to hand in the mattress. The applicant explained that the nurses had drawn up a certificate stating that he needed the mattress around the clock because his rib was broken. The guard left.

At around 8.00 a.m. guards AR, VG, RT and OV came to the applicant’s cell and told him to hand in the mattress. They had a discussion of some length, in the course of which the applicant requested that senior duty officer ML be called. Guard AR warned the applicant that force would be used if necessary. According to the statements of VG given in the subsequent criminal proceedings, the applicant threatened to kill them. The guards left and returned after about fifteen minutes. According to the Government the guards had in the meantime checked with the medical service that the applicant had not in fact been authorised to keep the mattress in the punishment cell.

At around 8.30 a.m. six guards arrived at the applicant’s cell. AR and VG entered, four further guards remained in the corridor or stood at the door to the cell.

According to the applicant, AR came up to him, grabbed his left hand and told him that they were going to take the mattress from him. The applicant pulled his hand away and VG – unexpectedly and without any notice – sprayed pepper spray in his face while AR was attempting to twist his arm. The applicant ran out of the cell into the corridor, covering his face with his hands. Several guards attacked him from behind and he was forced down on the floor. He was repeatedly hit on the back after handcuffs had been put on him. After the applicant shouted that he could not breathe VG struck him a couple more times. He was then raised up off the floor, bent down and guided to the security room. According to the applicant, he fainted several times on the way because his injured rib caused him serious pain when being bent down.

The Government relied on the statements of the prison guards given in the subsequent criminal proceedings. All six prison guards present were interviewed in the criminal proceedings, either as suspects or witnesses. According to AR and VG, the applicant pushed AR when he attempted to take the mattress. Then VG used pepper spray. According to the statements of the guards, the applicant resisted strongly and was forced down on the floor in the corridor. According to VG, he struck the applicant, who was on all fours, three times with a telescopic baton in order to overcome his resistance and handcuff him. AR and RT were unable to give details about the blows inflicted by VG. Nor was OV initially able to provide such details, but at a second interview he stated that by the time he closed the handcuffs, the applicant had not yet been hit with the telescopic baton. AJ thought that the applicant had probably been handcuffed while he was being hit by VG. According to AT, the applicant had been handcuffed but had forcefully struggled and pushed VG with his shoulder, after which the latter had struck him one or two times without much force.

The applicant was then strapped to a restraint bed in accordance with the orders of duty officer ML, as he was still behaving aggressively and offering physical resistance to the officers.

According to the applicant he was suffocating from the pepper spray in his throat but the guards pressed him to the bed, strangled him and did not let him spit. Finally he was allowed to spit and given the water he had asked for.

According to a report on the use of the restraint bed, the applicant was strapped to the bed from 8.40 a.m. to 12.20 p.m. His condition was monitored once an hour, when the necessity of the continued use of the means of restraint was assessed on the basis of his behaviour.

The report contains the following entries. At 8.40 a.m., 9.35 a.m., 10.30 a.m. and 11.25 a.m.: “[use of the restraint measures] to be continued, [the applicant is] aggressive”. At 12.20 p.m.: “[use of the restraint measures] to be discontinued, [the applicant is] calm.” The report also contains an entry according to which medical staff checked on the applicant; the time of the medical check-up recorded on the copy of the report on file is illegible.

According to a medical certificate dated 3 July 2009 medical staff had been asked to establish the applicant’s injuries in the punishment cell. It was stated in the certificate that the applicant had no visible injuries but there was crepitation in the area of the seventh rib on the left side. A rib fracture was suspected.

According to two medical certificates dated 4 July 2009 the applicant was examined by nurse RK at 8.50 a.m. and at 12.20 p.m. after his release from the restraint bed. It is stated in the certificates that the applicant had no visible injuries and did not need medical assistance. According to the applicant these certificates were “fabricated” in order to cover up his beating and were in contradiction with other medical evidence.

On 4 July 2009 the applicant underwent an X-ray examination which revealed no clear traumatic changes. Photographs were taken of the haematomas (described below) on the applicant’s body. He gave a urine sample. Urine test results, dated 6 July 2009, showed red blood cells in the urine.

According to a medical certificate dated 6 July 2009 the applicant had three haematomas measuring 20 by 1.5 cm on his back, a haematoma with a diameter of 8 cm on his right upper arm, a haematoma with a diameter of 3 cm on the right shin, swelling to the left wrist, crepitation in the region of the eighth and the ninth ribs on the left side. The applicant complained that he had been beaten on the back by the guards, complained of pain in his back and said that his urine had been red. The doctor considered that providing the applicant with a mattress was justified.

An ultrasound scan of the applicant’s kidneys performed on 7 July 2009 revealed no signs of disease.

According to a medical certificate concerning the applicant’s examination in a punishment cell on 9 July 2009, there were haematomas on the applicant’s back and ribs. The applicant did not allow the doctor to touch him, was aggressive and demanded a mattress. However, the doctor considered that the applicant’s chronic lower back pain did not serve as a reason for him to have a mattress. She made a recommendation “for further referral to a psychiatrist”.

In a written explanation to the prison director by nurse RK, dated 21 July 2009, she submitted that she had been asked to examine the applicant, who had been strapped to the restraint bed on 4 July 2009. The applicant had complained, as he had already done on the day before, of pain in the chest under the ribs. The nurse and guards, as well as the applicant himself, had wiped his eyes with wet napkins. The nurse had issued a medical certificate stating that she had discovered no injuries on the applicant. At 12.20 p.m. on 4 July 2009, upon the applicant’s release from the restraint bed, she had again been asked to examine him. He had no complaints, save for the previously known complaint of pain in the lower part of his chest. The nurse had issued a certificate stating that she had not discovered any injuries and that the applicant had not needed medical treatment. On both occasions the examination had been carried out visually and the nurse had asked the applicant about his complaints. She had only noticed the haematomas on the evening of 4 July 2009. She had not noticed them before and had not carried out a more detailed examination because this had not been requested by the applicant. Based on her earlier experience with the applicant, the nurse had known that he was very demanding in respect of medical treatment. Thus, she had assumed that the applicant was not suffering from any serious conditions.

On 7 July 2009 the Prisons Department of the Ministry of Justice started a criminal investigation into the applicant’s allegations of abuse of authority by prison guards. The investigation was carried out by Ida Police Headquarters.

On 8 July 2009 the applicant was interviewed as a victim. Between 7 and 28 July 2009 four guards (KA, MN, VG and JT) were interviewed as suspects. Six further prison officers (including OV), a prison doctor and a prisoner were interviewed as witnesses. Reports on the use of the special equipment and means of restraint (shield, helmets, flak jackets and handcuffs on 3 July 2009 and handcuffs and restraint bed on 4 July 2009), and written explanations to the prison director from prison officers involved in the incidents were also included in the criminal case file.

On 23 September 2009 prison guard OV was interviewed for the second time.

On 26 November 2009 the police requested additional information from the prison administration, including the applicant’s medical records and information about the telescopic batons used in the prison.

On 15 December 2009 the police ordered a forensic expert examination of the applicant’s injuries. The expert completed his report on 15 February 2010. He relied on the written materials in the criminal case file, including a report of the applicant’s interview, medical documents and photos of the haematomas on the applicant’s body. He was of the opinion that the stripe-shaped haematomas on the applicant’s back had resulted from blows struck with a blunt instrument such as a stick or a baton, possibly on 4 July 2009. The haematomas on the applicant’s upper arm and shin had resulted from blows struck with a blunt instrument or from the applicant’s body being slammed against it. The haematoma and crepitation in the region of the eighth and the ninth ribs may have resulted from a rib fracture, but that diagnosis could not be confirmed without an X-ray examination. The expert concluded that the injuries in question were not life threatening and usually caused short-term health damage lasting from four days to four weeks.

On 5 February 2010 the applicant was interviewed for the second time.

On 10 February 2010 the police ordered a forensic expert examination of video recordings from prison security cameras. The expert completed his report on 13 April 2010. Having obtained forty-eight magnified and processed images from the video recordings, he concluded that it was not possible to establish the exact time at which the applicant was hit.

On 15 June 2010 the police investigator discontinued the criminal proceedings. She considered that the use of force by the prison guards against the applicant on 3 and 4 July 2009 had been lawful, since he had not complied with their orders and had behaved in an aggressive manner. On 3 July 2009 he had refused to gather his belongings for his transfer to the punishment cell and had threatened to resist if force was used. On 4 July 2009 he had refused to comply with the prison’s internal rules and hand in his mattress. The guards had not denied that they had used force but had asserted that this had been the only way to overcome the applicant’s resistance. The applicant had attempted to escape and run out of the cell. Thus, the use of force had had a legal basis. It did not appear that VG had used the telescopic baton to deliberately cause injuries to the applicant. Nor could it be established that the force used by JT, VG, MN and KA had been excessive. They had countered an imminent attack after a more lenient response had not proved effective and the applicant had continued his resistance.

On 17 June 2010 the police investigator’s decision to discontinue the criminal proceedings was approved by a circuit prosecutor.

On 25 August 2010 the State Prosecutor’s Office dismissed the applicant’s appeal. It considered that the use of force, special equipment and means of restraint had been caused by the applicant’s behaviour, that is to say his failure to comply with the orders given to him and his physical and verbal aggressiveness towards the prison officers. It relied on the applicant’s handwritten letter of explanation to the prison director, in which he had confirmed having said on 3 July 2009 that if the prison officers unlawfully attacked him, he would strike back. Furthermore, according to prison guard MN the applicant had threatened to kill them if force was used to transfer him to the punishment cell. Considering the applicant’s extremely aggressive resistance, it had been proportionate to use force to bring him down to the floor and to hold him there.

In respect of the events of 4 July 2009 the State Prosecutor’s Office referred to the statements of the suspects and witnesses, according to which the applicant had threatened the prison officers. It had been established that guard VG had used pepper spray after the applicant had pushed AR. The applicant had been engaged in an unlawful attack and the use of pepper spray against him had been lawful. Although the applicant’s subsequent running into the corridor could not be seen as an attempt to escape, it had still been possible that the situation might have got out of the prison officers’ control and they had had grounds to believe that the applicant would continue attacking them. To prevent such a scenario, the prison officers had legitimately acted in a quick and decisive manner, including through the use of the telescopic baton by VG. The incoherent statements of the witnesses as to the issue of whether the blows with the telescopic baton had been delivered before or after the applicant’s handcuffing did not allow for a firm conclusion to be made on that point. Nevertheless, based on the witness statements, the prosecutor considered it probable that the applicant had been hit before handcuffing. She also referred to the principle that any reasonable doubt should benefit the accused and considered that it had not been established that the prison guards had unlawfully used a weapon, special equipment or force against the applicant. In respect of the applicant’s being strapped to the restraint bed, the State Prosecutor’s Office concluded that the video recordings showed that after being handcuffed the applicant had remained aggressive and had offered physical resistance to the prison officers.

On 21 October 2010 the Tartu Court of Appeal dismissed the applicant’s complaint against the decision of the State Prosecutor’s Office. It found that it had been established that the applicant had offered resistance to the prison officers and therefore the use of special equipment and means of restraint had been legitimate. The court agreed with the position expressed in the decision of the State Prosecutor’s Office that the special equipment had been used to the extent it had been necessary to overcome the applicant’s resistance. Thus, there were no grounds to continue the criminal proceedings in respect of the prison officers.

On 6 August 2009 the applicant filed a claim for non-pecuniary damage with the prison administration for his inhuman and degrading treatment on 3 and 4 July 2009. The claim was dismissed and the applicant filed a complaint with the Tartu Administrative Court.

In a judgment of 8 March 2010 the Tartu Administrative Court found for the applicant. It declared the use of the means of restraint, special equipment and service weapons in respect of the applicant unlawful. The court found that although the applicant’s failure to comply with the orders given to him had undeniably constituted a threat to the general security of the prison, the use of handcuffs and his immobilisation had nevertheless not been justified, as there was no evidence and it had not been argued that the applicant had been armed or equipped with a dangerous item or that he had intended to escape or attack anyone. However, the court dismissed the applicant’s claim for compensation, considering that the use of means of restraint and special equipment had been caused, to a large extent, by the applicant’s own behaviour. He had disputed the officers’ orders, engaged in an argument with them, voiced threats and offered physical resistance. In these circumstances the finding of the unlawfulness of the prison’s actions constituted sufficient just satisfaction.

Both parties appealed against the Administrative Court’s judgment. The applicant claimed monetary compensation and the prison administration contended that the prison officers had not acted unlawfully.

At the hearing of the Tartu Court of Appeal on 22 September 2010 the applicant submitted, inter alia, that on 3 July 2009 he had been kicked in ribs once and that on 4 July 2009 he had been hit with a telescopic baton after he had already been handcuffed. Video recordings concerning both 3 and 4 July 2009 were played at the hearing.

By a judgment of 14 October 2010 the Court of Appeal quashed the Administrative Court’s judgment and dismissed the applicant’s complaint. It found that the use of the means of restraint, special equipment, physical force and service weapons had been lawful. The court considered that the prison had been authorised to use preventive measures in case of a probable threat. It noted that the applicant was serving a life sentence and had two further convictions for attacking prison officers. In January 2009 he had also threatened to kill a prison officer.

In respect of the events of 3 July 2009 the Court of Appeal noted that there was no dispute that the applicant had repeatedly refused to comply with the prison officers’ order to go to a punishment cell. Furthermore, he had offered physical resistance and caused minor injuries to KA. Therefore, physical force and handcuffs had been used. Considering the applicant’s unlawful and aggressive behaviour, threats to the prison officers and to the general security in the prison, as well as the short duration (fifteen minutes) of the use of the handcuffs, the Court of Appeal found that the use of handcuffs had not been unlawful. In respect of the use of force, the court found that there was no evidence to prove that the applicant had been kicked, strangled or poked in the eyes with fingers. According to the medical evidence there had been crepitation but no fractures of the ribs. The court considered that pain in the applicant’s chest that he had complained of could have resulted from his resistance, which had led to a scuffle and his being forced on the floor for handcuffing.

In respect of the events of 4 July 2009 the Court of Appeal considered it established that the applicant had displayed disobedience and threatened the prison officers. He had offered physical resistance against the guard who had attempted to take the mattress. Thus, the use of pepper spray had not been disproportionate or unlawful. Since the subsequent use of physical force had proved not effective, it had also been justified to use the telescopic baton in order to have the applicant handcuffed. The fact that the applicant had been aggressive at the time he was strapped to the restraint bed had also been proven by the video recording shown at the court hearing.

On 17 February 2011 the Supreme Court declined to hear the applicant’s appeal.

Article 291 of the Penal Code (Karistusseadustik) stipulates that abuse of authority, that is unlawful use of a weapon, special equipment or violence by an official while performing his or her official duties, is punishable by a fine or by one to five years’ imprisonment.

Relevant domestic law and practice concerning the use of special equipment and means of restraint in prison has been summarised in the judgement of Julin v. Estonia (nos. 16563/08, 40841/08, 8192/10 and 18656/10, §§ 8490 and 94, 29 May 2012).

For relevant international instruments concerning the use of instruments of restraint, see Julin, cited above, §§ 95-97, and Kummer v. the Czech Republic, no. 32133/11, §§ 40-43, 25 July 2013.

According to the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction of 13 January 1993 (“the CWC”), tear gas is not considered a chemical weapon and its use is authorised for the purpose of law enforcement, including domestic riot control (Article II § 9 (d)). The CWC entered into force with regard to Estonia on 25 June 1999.

The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) has expressed its concerns over the use of such agents in law enforcement. For example, in the report on its visit to Bosnia and Herzegovina (CPT/Inf (2009) 25) it noted:

“79. ... Pepper spray is a potentially dangerous substance and should not be used in confined spaces. Even when used in open spaces the CPT has serious reservations; if exceptionally it needs to be used, there should be clearly defined safeguards in place. For example, persons exposed to pepper spray should be granted immediate access to a medical doctor and be offered an antidote. Pepper spray should never be deployed against a prisoner who has already been brought under control. Further, it should not form part of the standard equipment of a prison officer.

The CPT recommends that the authorities of Bosnia and Herzegovina draw up a clear directive governing the use of pepper spray, which should include, as a minimum:

- clear instructions as to when pepper spray may be used, which should state explicitly that pepper spray should not be used in a confined area;

- the right of prisoners exposed to pepper spray to be granted immediate access to a doctor and to be offered an antidote;

- the qualifications, training and skills of staff members authorised to use pepper spray;

- an adequate reporting and inspection mechanism with respect to the use of pepper spray.”

Similar observations and recommendations were made by the CPT in paragraph 48 of the report on its visit to the Czech Republic (CPT/Inf (2009) 8).


George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Yonko Grozev

The applicant, Mr Altin Arapi, is an Albanian national, who was born in 1971 and is currently living in Belgium. He is represented before the Court by Mr G.-H. Beauthier, a lawyer practising in Brussels.

summarised as follows.

At some time in 1996 the prosecutor opened an investigation against the applicant and nine other people, including O., into numerous criminal offences committed between 1993 and 1996 in the cities of Tirana and Vlora. Almost all offences had been committed by way of a criminal organisation, named ‘Revenge for Justice – Hakmarrja për Drejtësi’, which the ten co-accused had allegedly established.

On 22 November 1996 the applicant’s arrest was ordered. By that time, the applicant had gone into hiding.

On 12 February 2003 the Tirana District Court decided to discontinue the proceedings for lack of evidence.

On 19 February 2003, in a press conference, the then leader of the Democratic Party accused the judges who had given the decision of 12 February 2003 of being members of the said criminal organisation. The applicant has submitted an article of 20 February 2003 which had appeared in the daily “Koha Jonë”. Another article of the daily “55” of 14 February 2003 reported the spokesperson of the office of the Prosecutor General stating that “the court’s decision was given by scared judges who were under pressure and threat.”

The applicant alleges that the judges who gave the judgment of 12 February 2003 left the country on an unspecified date.

On 30 April 2003 the Tirana Court of Appeal quashed the decision of 12 February 2003 and remitted the case for fresh consideration. It held that the Tirana District Court was not empowered to discontinue the proceedings. Instead, it should have returned the investigation file to the prosecutor for further completion with documents.

On 1 July 2008 the Tirana Serious Crimes District Court found the applicant guilty as charged and sentenced him to life imprisonment. This decision was upheld on appeal by the Court of Appeal and the Supreme Court (decisions nos. 40 of 7 July 2009 and 731 of 2 July 2010).

On 7 November 2011 the Constitutional Court accepted O.’s constitutional complaint and found a breach of the length of proceedings and the Supreme Court’s lack of impartiality. It remitted the case for re-examination to the Supreme Court. It would appear that the proceedings are pending before the Supreme Court.

None of these sets of proceedings are the subject of this application.

On the evening of 29 September 2003, around 9 p.m., a certain G. was murdered in a car on a main boulevard in Tirana, while waiting at the traffic lights. The victim was the driver of the escort group of the Prosecutor General and he was shot dead by a male passenger in a taxi which was in the line of traffic. The perpetrator left the crime scene together with a girl who was in the taxi with him. The Prosecutor General’s spouse, Z., and minor daughter, S., were in the car when the murder was committed.

The crime scene investigation reports indicated that three fingerprints, which were taken for an examination, were found on the door of the victim’s car. Another fingerprint, which was taken for examination, was found on the interior side of the taxi’s back seat window.

On the same evening, at 10 p.m., Z. made a statement to a prosecutor. The relevant parts of the statement, which was not initially disclosed to the defence, read as follows.

“While we were waiting at the traffic lights, I heard G. speaking to someone on the left of the car. Initially, I did not pay attention. When the conversation was not being made on normal tones, I told G. to stop talking and to pull up the window ... The other person started raising his voice and even shouted swear words. I told G. not to respond. Suddenly I saw that the other person came closer to the car. Again, I told G. to pull up the window and not to snap back. Initially, I could not discern who that person was. At the moment he neared the car, I saw that he was a young man. G. attempted to open the door of the car to clarify things away from our presence. He opened the door ajar but could not get out because the person pushed the door back, without closing it, and shot G. with a pistol he took out of the inside of his jacket.”

Z. also gave a description of the perpetrator. Whereas she had not been able to see anyone else who was with the perpetrator, after getting out of the car, she heard people saying that a girl, who was with him on the taxi, left together with the perpetrator after the murder.

On the same evening the taxi driver, T., made a statement to the police officers. He declared that he had collected a man and a woman from a restaurant in Tirana. He was asked to take them to a certain address in the city, without having been given instructions as to the route to follow. According to the statement, while they were waiting at the traffic lights, the male passenger, who was sitting in the front seat, pulled down the window and started arguing with the victim whose car stopped beside the taxi. The relevant parts of the statement, read as follows.

“My passenger nervously hit the door with his fist. I saw that he and the SUV driver were exchanging looks. My passenger pulled down the window and asked the SUV driver ‘what are you looking at?’ I do not recall whether the window of the SUV door had been pulled down and I did not hear the SUV driver’s answer. I then saw that my passenger got out of the taxi, went over to the SUV driver and started arguing. I did not hear their arguments. I then saw my passenger taking out a pistol from his belt and directing it to the SUV driver. I did not see whether the SUV door was opened or not. I heard one single shot and the SUV driver fell on the side of the passenger’s seat. At that moment the driver fell on the other side, the door of the SUV was opened. I did not see whether the door was opened by the passengers or the driver. I saw that the passenger took the SUV driver’s pistol away with him and left from the back of the SUV.”

The statement also included a description of each passenger.

The applicant alleges that T. left the country immediately after giving the above statement.

On 4 October 2003 the applicant fled Albania on a false passport and later sought asylum in Belgium. On 30 October 2003 the applicant was arrested in Belgium (see the section “Extradition proceedings and the applicant’s detention in Belgium” below).

On 22 and 28 October 2003 two extradition requests (“letër porosi – letters rogatory”) were sent by the Prosecutor General to the Belgian authorities requesting the arrest of O. with a view to his extradition to Albania. At the material time it was believed that O. was the author of the murder of 29 September 2003. However, O. obtained asylum in Switzerland on 13 September 2004 and the Swiss authorities refused an extradition request by the Albanian authorities in respect of O. on 14 December 2005.

On 29 October 2003 an arrest warrant was issued against the applicant in connection with the above murder. No copy of the warrant has been submitted to the Court.

On 30 October 2003 the applicant’s fiancée, Im. (allegedly the girl in the taxi) was arrested. Her fingerprints were taken the following day. During the questioning, Im. identified the person who had been arrested in Belgium as the applicant, on the basis of some photographs. On the same day the Prosecutor General sent another extradition request to the Belgian authorities requesting that the applicant, instead of O., be arrested with a view to extradition. The relevant excerpts of the applicant’s copy of the extradition request, as submitted in French (text not edited), read as follows:

« D’après les actions immédiates d’investigation de cette affaire, on a identifié les numéros utilisés par le suspect principal, Altin Arapi et par ses collaborateurs. Arapi est un criminel connu et déjà recherché pour plusieurs crimes dont meurtre, vol de banques, enlèvement et actes terroristes. Arapi est le dirigeant d’un groupe criminel appelé “Hakmarrja per Drejtesi” (Vengeance pour la Justice). On pense que le groupe est très dangereux et presque tous d’entre eux ont été poursuivis pénalement par défault pour quelques crimes graves.

Après l’interrogatoire de la citoyenne Albanaise [Im.], (laquelle déclare être la fiancée d’Altin Arapi) et après lui avoir montre pour effet de reconnaissance des photos du sujet arrêté en Belgique, elle a admis que la personne sur la photo est Altin Arapi. C’est pourquoi nous avons des raisons fondées pour croire que le tueur n’est pas O., mais Altin Arapi, qui est la personne arrêtée en Belgique.

Les articles appartenants au Code Pénal Albanais, traduits en Français, qui concernent les crimes pour lesquels Arapi a été condamné auparavant, aussi que le dernier meurtre du chauffeur du Procureur General. »

In the meantime, the Albanian Government, pursuant to a request for factual information by the Judge Rapporteur in accordance with Rule 49 § 3 (a) of the Rules of Court, submitted a copy of the extradition letter. The cover letter reads as follows:

“This document [the extradition request] was provided by the General Prosecution Office who stated that at the file of extradition regarding Altin Arapi, this document was created only in the English version. Please find attached an Albanian translation of the extradition request dated 30 October 2003.”

The relevant excerpts of the copy of the extradition request, as submitted in English (text not edited), read as follows:

“From the very urgent investigative steps that we have taken following the vent, we have identified some telephone numbers used by the chief suspect, Altin Arapi, and his criminal associates. Arapi is a known criminal already wanted for several crimes including murder, bank robbery, kidnapping and terrorist acts. Arapi is the leader of a criminal group called ‘Revenge for Justice’. The group is presumed to be very dangerous and nearly all of them have previously been prosecuted in absentia for other severe crimes.

From the interrogation of the Albanian citizen [Im.] (who is actually declaring to be the finance of Altin Arapi) and after the introduction of the photographs of the subject arrested in Belgium, she has admitted that the person in photograph is Altin Arapi. So we have reasonable ground to believe that the murderer is not O. but Altin Arapi, who is the person that is arrested by you in Belgium.

Attached to this request are:

The relevant articles of the Albanian Criminal Code, translated into French, covering both the crimes for which Arapi has previously been indicted and the recent murder of the General Prosecutor’s driver.

The English copy bore stamps reading “General Prosecutor’s office, copy certified against the original”.

On 31 October 2003 the first fingerprint examination concluded that the fingerprint found on the taxi’s back seat window corresponded to Im.’s. On 6 November 2003 the second fingerprint examination concluded that two of the fingerprints found on the victim’s car’s door corresponded to the applicant’s right palm and his right hand little finger, of which digital prints had been provided by the Belgian authorities following his arrest in Belgium.

On 29 January 2004 the prosecutor charged the applicant with six offences, namely the murder of G., theft, the illegal possession of firearms, the forging of documents, the forging of identity cards or visas and the forging of civil status acts. On 6 February 2004 the applicant’s lawyer was notified of the charges.

On 9 February 2004 the Tirana Serious Crimes District Court (“the District Court”) granted the prosecutor’s request for the applicant’s arrest in absentia. There is no indication that the applicant’s lawyer attended the hearing.

On 28 October 2004 the prosecutor filed a bill of indictment with the Tirana Serious Crimes District Court (“the trial court”) accusing the applicant of six criminal offences.

On 16 December 2004 the applicant’s lawyer contended that the prosecutor had breached the presumption of innocence against the applicant by virtue of the extradition request of 30 October 2003. He also submitted seven other requests in order to obtain additional evidence, conduct other experts’ reports and question other witnesses.

On 17 December 2004 the applicant’s lawyer requested that the fingerprint examination report of 6 November 2003 be declared invalid for breach of procedural rules. It would appear that on 23 December 2004 the trial court dismissed the request.

On 7 February 2005 the trial court heard the testimony of Z. (the Prosecutor General’s spouse). She described the events of 29 September 2003 and the fact that the perpetrator had prevented G. from opening the door of the car after the exchange of heated words. She stated that the person who had murdered G. resembled the photographs of the accused as shown on the press and on the television, during his appearance before the Belgian courts. The witness further declared that she had made a preliminary statement on 29 September 2003 to a prosecutor, whereas S. had not made any statements since she was a minor at the material time. The applicant’s lawyer sought to obtain possession of Z.’s statement of 29 September 2003 which had been withheld by the prosecutor. At least four other witnesses were questioned on the same day. The court issued a summons for the appearance of the taxi driver, T.. However, T. never appeared before the court as he had fled the country to an unspecified address.

On 11 February 2005 the prosecutor read out T.’s statement, which had been taken during the criminal investigation. The applicant’s lawyer contested the statement in so far as the characteristics of the perpetrator did not match those given by other witnesses before the trial. The applicant’s lawyer further insisted on being provided with a copy of Z.’s statement of 29 September 2003. On the same day the trial court rejected the applicant’s lawyer request. It decided that, in so far as the evidence was not submitted to the trial court, the latter had no right to obtain acts from the parties, neither oblige them to submit any particular acts. However, the court granted most of the applicant’

Consequently, the trial court heard two criminal investigators K. and E., as well as two criminal experts R. and D. as requested by the defence. They were questioned about the crime scene investigation reports and the experts’ reports they had completed. In addition, witness B. testified before the court as requested by the defence.

B. had not made any statements during the criminal investigation for lack of trust in the justice system. He had decided to testify before the court following the airing of views on television about the murder and the suspects. In his testimony, B. declared that he had stopped at the corner of the traffic lights while he was waiting to cross the street. He had seen from distance that the door of G.’s car opened and he heard a choking noise. He thought that a murder had taken place. After that moment, the person who had opened the door of G.’s car, took away a girl who was seated in the back of a taxi next to the car. In B.’s view, the perpetrator did not resemble the applicant.

On an unspecified date before 18 February 2005 the prosecutor provided the applicant’s lawyer with Z.’s statement of 29 September 2003. The statement was not submitted to the court to be included in the case file.

On 18 February 2005 two other criminal experts, H. and Q., appeared before the court as requested by the defence. They were questioned about the experts’ reports they had conducted. The trial court decided to obtain additional relevant evidence from various bodies in relation to the case as requested by the defence. On the same day, the applicant’s lawyer submitted a memorial objecting to Z.’s statement of 29 September 2003. According to the memorial, the applicant’s lawyer complained of the procedure followed for obtaining the statement and its content.

On 18 March 2005 the applicant’s lawyer made his final written submissions. He accepted three charges levelled against the applicant, namely the forging of documents, the forging of identity cards or visas and the forging of civil status acts, but dismissed the remaining three, namely the murder of G., theft and the illegal possession of firearms. The final observations contested the admissibility and assessment of evidence submitted by the prosecutor.

On 24 March 2005 the trial court delivered its judgment, finding the applicant guilty as charged and sentenced him to life imprisonment. The court relied on the applicant’s telephone metering information, which indicated that he had dialled the land line telephone number of the taxi company whose taxi he had been using at the time the murder was committed. In addition, two of the fingerprints found on the crime scene corresponded to the applicant’s fingerprints. The oral testimony of Z. confirmed that the perpetrator resembled the applicant as shown on television in his appearance before the Belgian court. The statement of T. also confirmed the resemblance between the perpetrator and the applicant.

On 30 March 2005 the applicant appealed. He mainly complained of the admissibility and assessment of several pieces of evidence, such as Z.’s oral testimony, the report on the examination of his fingerprints and the report on the examination of the victim’s car. He asked the Tirana Serious Crimes Court of Appeal (“Court of Appeal”) to obtain additional evidence such as O.’s fingerprints, to summon the restaurant’s waitresses, and to re-examine some of the experts questioned during the trial. He also complained that the prosecutor had not disclosed a fingerprint examination report that had been conducted at the restaurant in which he had been dining on 29 September 2003. On 11 July 2005 the applicant submitted further written observations. He finally argued that the evidence submitted by the prosecutor was contradictory and inconclusive.

On 11 July 2005 the Court of Appeal dismissed the applicant’s appeal and upheld the trial court’s judgment. It concluded that the applicant’s guilt was proved on the strength of the telephone metering information, the fingerprint report, Z.’s oral testimony and T.’s statement.

In the same judgment, the court addressed each of applicant’s requests. As regards the applicant’s requests to declare invalid several pieces of evidence, the court dismissed them as being unsubstantiated and found that they had been obtained lawfully. In so far as the applicant’s request for the administration of O.’s fingerprints was concerned, the court decided that such fingerprints would not serve any purpose. The applicant’s request for summoning waitresses from the restaurant in which he had been dining on the evening of 29 September 2003 was dismissed on grounds of their incorrect identification and the unclear description of facts the defence intended to prove. The applicant’s allegation that the prosecutor had not submitted an expert report on the fingerprints taken at the restaurant was rejected as being unsubstantiated. There was no proof that such report existed. The court also dismissed the applicant’s request to re-examine some experts given that their testimonies would not disclose any new facts other than the ones that had been testified before the trial court. The court considered that the testimony of B. presented information which was difficult to prove given the location and distance of the witness. It found that the credibility of his testimony was questionable and decided to reject it.

On 29 July 2005 the applicant appealed. He contended that the domestic courts lacked impartiality as they had dismissed the accused’s requests to obtain further evidence, question witnesses and disregard the evidence already procured as being invalid. He also argued that the courts had erred in the qualification of the criminal offence.

On 30 June 2006 the Supreme Court dismissed the appeal, finding that it contained no lawful grounds of appeal in accordance with Article 432 of the Code of Criminal Procedure.

On 10 October 2006 the applicant filed a constitutional appeal. He submitted that the applicant’s right to legal assistance had been breached as a result of non-notification of the decision of 9 February 2004. He further argued that there had been a breach of the presumption of innocence owing to the content of the extradition request of 30 October 2003. The principle of equality of arms had also been violated, following the dismissal of his requests to re-examine witnesses, obtain additional evidence, conduct further experts’ reports and reconsider the evidence submitted by the defence.

On 14 December 2006 the Constitutional Court, sitting as a bench of three judges, dismissed the applicant’s appeal. It held that the applicant’s complaint did not raise any fair trial issues, but mainly concerned the assessment of evidence and interpretation of statutes, which was the function of the lower courts.

Following the Albanian authorities’ extradition request of 30 October 2003 requesting the applicant’s extradition, he was arrested and detained on remand by the Belgian authorities. It would appear that the extradition request was supplemented by documents on 17 February and 13 April 2004.

On 17 September 2004 the Belgian Ministry of Justice refused the extradition request. The relevant parts of the decision, as submitted by the applicant in Dutch, read as follows:

“3. Considering that in a report of the Federal Police, dated 1 December 2003, information is mentioned – which the Federal Police received from two different sources – that places the arrest of the person whose extradition is requested in a political light whereas the Belgian police and justice authorities are being used in a tangle of political complications and a process of settling scores in Tirana; that, according to this report, it had already been established in this case that the working methods and the documents provided by the Albanian authorities contained anomalies; that the report sets out the intelligence obtained from which it, inter alia, appears that, as regards the arrest warrant of 22 November 1996, a judgment was given on 12 February 2003, which, inter alia, states that documents were forged, that several witnesses testified that they had not identified the accused as perpetrators, that in the course of the investigation witnesses were blackmailed and tortured and, that the accused – including the person whose extradition is being sought – were acquitted; that the judges who issued this judgment were subsequently accused of participating in the “Hakmarrja” terrorist organisation; that the basis for the arrest warrant of 29 October 2003 has to be found in a web of political competition; that in this case various inconsistencies can be established whereby the data have been manipulated; that evidence of such manipulation can be found in the great differences between the actual statements of the taxi driver who transported the perpetrator and his female companion on the one hand and the official version of these statements on the other;

Considering that on 17 October 2003 an international arrest warrant was originally issued against [O.] concerning the murder of [G.] and that on the same day a picture and fingerprints of this person were submitted; that only on the day that [the applicant] was interviewed in Belgium, namely on 30 October 2003, and after there had been contact between Belgium and Albania, the Albanian Government let it be known that the perpetrator of the assault on [G.] had not been [O.] but [the applicant]; that it is true that the case file contains information relating to fingerprints submitted by the Albanian authorities, supposedly demonstrating that [the applicant] was present at the crime scene when [G.] was shot, these elements were however only submitted after the Belgian authorities had sent [the applicant’s] fingerprints to the Albanian authorities;

Considering that it is furthermore the case that the request for extradition speaks of criminal proceedings against the [applicant] which were instituted on 29 September 2003 and of the criminal proceedings 1589/96, without however making any mention of the course of the aforementioned proceedings (see para. 1 above), i.e. the judgments of 12 February 2003, 30 April 2003 and 4 September 2003; that the course of the proceedings was kept concealed until the Belgian authorities, based on the documents submitted by the defence, requested the Albanian authorities to provide additional information;

Upon considering that it has thus been adequately demonstrated that in the present case there are serious grounds for believing that the request for extradition was made with the intention to prosecute the person concerned for political motives, or that the position of the person concerned would be adversely affected on the basis of these motives;

Upon considering that pursuant to Article 3 of the [European] Convention on Extradition and Article 2bis of the Belgian Law on Extradition of 15 March 1874 the extradition shall not be allowed if the requested Party has serious reasons for believing that the request for extradition concerning a non-political offence was made with the intention to prosecute or punish a person on the ground of his race, religion, nationality or political opinion, or if the position of the person involved threatens to be adversely affected on the basis of one of these reasons;

Decides:

The extradition of ARAPI Altin is not granted to the Government of Albania.”

In a letter of 30 September 2004 to the Albanian Embassy in Brussels, the Belgian authorities stated that the refusal of the extradition request was based on Article 3 of the European Convention on Extradition and Article 2bis of the Belgian Law on Extradition of 15 March 1874, according to which extradition shall be refused if there exist “substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that that person’s position may be prejudiced for any of these reasons.”

The applicant submits that he was held for eleven months in detention in Belgium, at the end of which he was released.

A certificate of 12 June 2013 by the Belgian Office of the Commissioner General for Refugees and Stateless Persons stated that the applicant was a refugee within the meaning of the Geneva Convention of 28 July 1951.

The applicant submitted that on 16 April 2006 the then spokesperson of the parliamentary group of the Democratic Party, B.N, declared before the Albanian media the following:

“before making a summary of achievements, the Prosecutor General should explain to Albanians his links with the terrorist organisation ‘Revenge for Justice’ and the reasons that the case file in respect of Altin Arapi, [the applicant], did not follow the formal procedure”.

On 17 April 2006, in an interview in a private television channel, the then Prosecutor General was reported to have stated the following:

“the fact that Belgium, Switzerland ... did not grant the extradition of the persons concerned for political reasons indicates that these countries assessed the political statements made in Albania and are afraid of an unjust [legal] process.”

According to a press article published in the “Panorama” daily newspaper, it would appear that on 24 July 2006 the Albanian Prime Minister, speaking before the Albanian parliamentarians prior to their voting on the dismissal of the Prosecutor General, stated, amongst others, the following:

“those who voted for you do not have anything in common with the murder of the Prosecutor General’s driver by Altin Arapi in the middle of the boulevard.”

The relevant part of the Constitution reads as follows:

“Article 131

The Constitutional Court shall determine: ... (f) complaints by individuals alleging a violation of their constitutional rights to a fair hearing, provided all legal remedies for the protection of those rights have been exhausted.”

Article 141 provides that any document addressed to an accused who cannot be found, has been declared fugitive or gone into hiding, is notified to his representative.

Article 238 states that one of the security measures (masë sigurimi) that the court assigns is imprisonment. Article 249 § 1 allows for the opportunity to appeal to a higher court within ten days against measures of restraint. Under Article 249 § 2, the time-limit to appeal in respect of the accused who has been declared fugitive or gone into hiding starts to run from the date of notification to his representative in accordance with Article 141.

Article 425 establishes the scope of the examination of the appeal by the Court of Appeal. It provides that the examination of the case by the Court of Appeal is not limited to the grounds of appeal but extends to the whole case.

Under Article 427, at the party’s request, the Court of Appeal shall be empowered to directly re-examine previous evidence and additional new materials, if it considers necessary.

Article 428 establishes which decisions may be taken by the Court of Appeal. It provides that the Court of Appeal may decide to dismiss the appeal and uphold the judgment, to amend the judgment, to quash the judgment and terminate the criminal proceedings, or to quash the judgment and remit the case for a fresh trial.

The Court of Appeal’s judgments may be appealed to the Supreme Court in compliance with one of the following requirements of Article 432: a) the criminal law has not been respected or has been misapplied; b) there have been breaches which result in the court’s judgment being declared invalid in accordance with Article 128 of this Code; c) there have been breaches of procedural rules that have affected the adoption of the judgment.

Article 434 provides that the Supreme Court examines the appeal in so far as points of law have been raised therein.

This Act set up the Serious Crimes District Courts (Gjykatat për Krime te Rënda) and the Serious Crimes Courts of Appeal (Gjykatat e Apelit për Krime të Rënda). Both courts sit in chambers composed of five judges. They try cases that concern criminal offences committed under Article 75 (a) of the Criminal Code.

Article 75 (a), as introduced by Law no. 8813 of 13 June 2002, provides that the serious crimes courts try cases that concern the criminal offence of establishing an armed group or a criminal organisation, any criminal offence committed by such group or organisation and any other crime which is punishable by no less than 15 years.


Violation of Article 13+8-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for home);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home)

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in 1972 and lives in Stavropol Region.

On 22 March 2006, following an application by a police chief and without the applicant’s knowledge, a judge of the Georgievsk Town Court of Stavropol Region issued a decision authorising the taking of “operational-search measures”, which read in its entirety as follows:

“[The court], having examined a decision by the chief of the Georgievsk district police station on the taking of operational-search measures,


Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicant was born in 1984 and is detained in Saint-Petersburg.

On 22 April 2004 he was arrested on suspicion of murder.

On 24 April 2004 the Vyborgskiy Federal District Court of Saint-Petersburg authorised the applicant’s pre-trial detention. He remained in custody pending investigation and trial.

On 7 February 2005 the District Court extended the applicant’s pretrial detention. The court referred to the gravity of charges, the applicant’s character, lack of permanent residence in Saint-Petersburg, and risk of absconding or re-offending.

On 7 April 2005 the District Court returned the case to the prosecutor and extended the applicant’s detention without specifying any reasons.

On 15 September 2005, 21 October 2005 and 15 December 2005 when extending pre-trial detention, the District Court reproduced the grounds for detention described above.

On 2 March 2006 the Saint-Petersburg City Court quashed the detention order of 15 December 2005 and remitted the case for a fresh examination.

On 16 March 2006, 22 March 2006 and 21 June 2006 the District Court extended the applicant’s detention referring to the gravity of charges, absence of permanent residence, his character, possibility of absconding and committing crimes. The applicant and his lawyer did not attend the hearing on 21 June 2006.

On 30 June 2006 the Vyborgskiy District Court of Saint-Petersburg convicted the applicant of murder and theft.

On 31 January 2007 the Saint-Petersburg City Court upheld his conviction on appeal. As regards the applicant’s appeal against the detention order of 21 June 2006, the court noted that the lower court had failed to ensure the applicant’s and his lawyer’s presence at the hearing of 21 June 2006. However, in view of the applicant’s conviction, it discontinued the appeal proceedings finding them unnecessary.


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

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

The applicant was born in 1962 and lives in Germany.

On 7 July 1999 the Ankara Magistrates’ Court ordered the applicant’s arrest in absentia on suspicion of membership of the PKK, an illegal organisation.

On 13 July 1999 the applicant was captured in Chisinau, Moldova, and taken to Turkey on the same day. He was interrogated by MIT (the National Intelligence Organisation of Turkey) agents until 21 July 1999.

In July 1999, shortly after being taken to Turkey, the applicant was described by a number of media outlets as the “second man of the PKK”, the “European representative of the PKK”, “a terrorist” and “a traitor to the country”. According to an article published in Turkish Daily News of 22 July 1999, the National Intelligence Agency of Turkey (MIT) issued a press statement in which it stated that the applicant had worked to increase terrorist activities and incited the PKK supporters in Turkey to use violence.

On 21 July 1999 the applicant was handed over to the Ankara Security Directorate for further questioning. At the time of transfer, a hand-written delivery report was produced. It is not known who drafted the report.

On 23 July 1999 the applicant was brought first before the public prosecutor at the Ankara State Security Court and subsequently before a judge at the Ankara State Security Court, who ordered that the applicant be remanded in custody.

On 9 August 1999 the public prosecutor at the Ankara State Security Court filed a bill of indictment against the applicant and two other persons. The applicant was charged with being a leading member of the PKK, whose aim was to bring about the secession of part of the national territory. The charges against the applicant were brought under Article 125 of the former Criminal Code.

The public prosecutor accused the applicant of being one of the leaders of the PKK in Europe and of having been involved in the training of PKK members in Romania. According to the indictment, the applicant had been in contact with Mr Abdullah Öcalan, the leader of the PKK, and had provided him with information about the persons who had been trained. The public prosecutor further noted that when he had questioned Mr Öcalan on 22 February 1999, the latter had maintained that he had given instructions to the applicant regarding that training. Moreover, the leader of the PKK had confirmed the veracity of that statement during his trial on 1 June 1999.

The public prosecutor at the Ankara State Security Court further claimed that during telephone conversations with a number of people in Turkey, the applicant had issued instructions to perpetrate acts of violence following the arrest of Mr Öcalan. In the indictment, the public prosecutor quoted the transcripts of eight of the applicant’s alleged telephone conversations dated 4, 18 and 22 February 1999 and 1, 5, 7, 15 and 19 March 1999. The public prosecutor also noted that the applicant had referred to the State of Turkey as “the enemy” in his conversations. Furthermore, according to the indictment, a number of PKK members – A.G., K.O., Ş.Ö., H.K., N.Y., M.Ş. and A.Y. – had maintained in their statements that the applicant had been involved in the activities mentioned in the indictment. As a result, the public prosecutor alleged that the applicant had issued instructions for hundreds of bombings, fires, hunger strikes, suicide attacks and massacres, including the killing of thirteen people as a result of an attack on Mavi Çarşı, a shopping centre, on 13 March 1999 and that he had trained members of the PKK in his capacity as one of the leaders of the organisation.

On 16 September 1999 the Ankara State Security Court held the first hearing on the merits of the case. At the end of the hearing, the court decided to enquire whether the persons who had made statements regarding the accused had been prosecuted and, if so, to request copies of all the statements given during the criminal proceedings against them.

During the second hearing on 14 October 1999 the applicant’s lawyer asked the court, inter alia, to remove the transcripts of the applicant’s alleged telephone conversations from the case file. The public prosecutor demanded that the request be refused, and the court duly dismissed it.

On an unspecified date the police sent the prosecution a document containing the statement of an alleged member of the PKK, C.P., taken by the police. During the hearing of 11 November 1999 the statement was read out in court. According to the document, C.P. had testified against the applicant. The applicant denied the veracity of the statement, claiming that he did not know C.P. At the end of the hearing, the court decided to enquire whether criminal proceedings had been instituted against C.P. and, if so, to request all of his statements given during those criminal proceedings.

During the fourth hearing in the case, held on 9 December 1999, the applicant’s lawyer maintained that only the indictments concerning A.G., K.O., Ş.Ö., H.K., N.Y., M.Ş., A.Y. and C.P. had been included in the file and asked the court to include all the statements they had given during the criminal proceedings against them. The court postponed its decision on the request of the applicant’s lawyer to a forthcoming hearing.

On 18 January 2000, at the end of the fifth hearing, the Ankara State Security Court decided to request a copy of the case file in the proceedings against C.P.

The Ankara State Security Court repeated its request seven times between 8 February and 27 June 2000, as it had not received the aforementioned case file. During the same period the court also asked a number of other courts to send a copy of the statements made by A.G., K.O., Ş.Ö., H.K., N.Y., M.Ş. and A.Y. during the criminal proceedings against them.

At the eleventh hearing in the case, on 27 June 2000, the applicant’s lawyer asked the Ankara State Security Court to summon everyone who had allegedly made statements against the applicant to testify before the court. The court did not respond to his request.

Six more hearings were held between 27 June and 21 November 2000. During that period the Ankara State Security Court received the documents that it had requested from the other courts. In the course of the hearings, the applicant’s lawyer maintained before the court that the statements of the persons who had allegedly testified against the applicant did not contain any reference to the applicant. At the end of the hearing on 21 November 2000, the court instructed the public prosecutor to prepare his observations on the merits of the case.

On 12 December 2000 the public prosecutor’s observations on the merits of the case were read out before the court.

At the hearing of 21 December 2000, the applicant’s lawyer filed a petition with the first-instance court in response to the public prosecutor’s observations. In his petition, the applicant’s lawyer contended that the public prosecutor’s observations had referred to recordings of telephone conversations which were in the case file. He submitted that he had already asked the court to remove the transcripts of the recordings from the case file as they could not be used as evidence. He further noted that the applicant had denied that he was the person whose conversations had been recorded. The lawyer requested the court to order a comparative voice analysis and to enquire whether the phone tapping had been conducted in accordance with the legal procedure and on the basis of a court order. He also asked the court to find out the identities of the persons with whom the applicant had allegedly spoken (designated as “X” in the documents in the case file) and to take statements from them about those conversations.

On the same day the Ankara State Security Court accepted the request for a comparative voice analysis and dismissed the remaining requests without providing any reasons.

At the next hearing, on 6 February 2001, the applicant’s lawyer complained that two police officers had been assigned to conduct the voice analysis. He argued that police officers could not be impartial given the involvement of the police in the case. He therefore asked the court to appoint impartial experts. The court allowed his request and asked TRT (Radio and Television Corporation of Turkey), the national public broadcaster, to assign impartial experts to conduct the analysis and to prepare a report.

In April 2001 TRT informed the first-instance court that no appropriate expert could be found. Following receipt of that information, the applicant’s lawyer filed a petition with the first-instance court on 26 April 2011 repeating his requests contained in the petition of 21 December 2000. In his petition, the applicant’s lawyer also requested that a copy of the audiotapes be provided to him and his client.

At the hearing of 26 April 2001 the Ankara State Security Court decided to ask the criminal departments of the gendarmerie and the police to assign appropriate experts for the voice analysis. The court dismissed the applicant’s requests in the petition of the same date, holding that it had already ruled on them.

On 22 May 2001 the applicant’s lawyer filed a further petition with the court repeating the requests contained in his petitions of 21 December 2000 and 26 April 2001. He further maintained that any experts assigned in the case should be impartial. At the hearing held on the same date, the first-instance court once again dismissed the requests of the applicant’s lawyer. The court noted that the objection to the experts was groundless and that it had already dismissed the other requests.

On 29 May 2001 the applicant’s lawyer filed a petition with the court objecting to the court dismissing his requests. No decision was taken in respect of this petition.

On 19 June 2001 the applicant’s lawyer filed a further petition repeating his previous requests. At the hearing held on the same day, the first-instance court dismissed those requests without providing any reason. The court also decided to deliver the audiotapes to the designated expert, Mr L.B., a police officer from the criminal laboratory at the General Security Directorate.

On 3 July 2001 the expert submitted the transcripts of the recordings of the telephone conversations to the first-instance court.

On 10 July 2001 the applicant’s lawyer made written submissions to the court in which he maintained his objections to the expert’s work. He further contended that the defence did not know whether all the conversations had been transcribed, since the court had refused to deliver a copy of the audiotapes to the applicant and his lawyer. The lawyer claimed that the court’s refusal to do so was in violation of Article 6 of the Convention. In his petition, the applicant’s lawyer once again asked the court to conduct an inquiry into the legal procedure concerning the phone tapping, to give a copy of the recordings to the defence, to designate an independent and impartial expert to conduct a comparative voice analysis, and to find out the identities of the persons with whom the applicant had allegedly spoken. Lastly, he asked the court to request a copy of the case file of the criminal proceedings concerning the bombing of Mavi Çarşı.

On 10 July 2001, at the twenty-fourth hearing in the case, the first-instance court asked the applicant’s lawyer whether his client would provide a vocal sample for the voice identification analysis. The applicant’s lawyer replied that he and his client would inform the court of their position on that point once the court had responded to their requests contained in his petition submitted on that day. At the end of the hearing, the court dismissed the requests of the applicant’s lawyer, holding that those requests had already been refused. It designated a judge and two police officers, Mr L.B. and Mr C.Y., as experts to conduct the comparative voice analysis on the same day and invited the applicant to participate in the voice identification process if he so wished.

On the same date as the voice identification process started in the presence of the applicant, the applicant’s lawyer maintained that his client would not provide a voice sample until the discrepancies between the transcripts prepared by the public prosecutor’s office and those prepared by Mr L.B. had been resolved. He further contended that as Mr L.B. had already been involved in the preparation of the transcripts, another expert should have been designated. The public prosecutor submitted, in reply, that there was no reason to believe that officers from the criminal laboratory at the General Security Directorate were partial and that the applicant’s behaviour had been unlawful. The judge decided to end the examination in view of the applicant’s unwillingness to participate.

In a petition dated 23 July 2001, the applicant’s lawyer asked the first-instance court to accept the withdrawal of their request for a comparative voice analysis. The lawyer contended that the applicant had not made those telephone conversations and that it was the defence who had asked for that examination in the first place. However, in view of the court’s refusal of their other requests, he believed that it was not possible to have a fair trial in the applicant’s case.

At the end of the hearing held on 21 August 2001 the Ankara State Security Court decided to consider the applicant’s request contained in the petition dated 23 July 2001 at the same time as it considered the case on the merits. On the same day the court decided to request a copy of the case file of proceedings before the Istanbul State Security Court following a request by the representative of one of the applicant’s co-accused.

The first-instance court adjourned the hearings four times between 21 August and 30 October 2001, as the Istanbul State Security Court had not sent the documents requested.

At the twenty-eighth hearing held on 30 October 2001, following receipt of the aforementioned documents, the first-instance court asked the public prosecutor to submit his observations on the merits of the case.

At the next hearing on 27 November 2001 the public prosecutor asked the court to take his observations of 12 December 2000 into consideration.

In a petition dated 27 December 2001 filed with the first-instance court, the applicant’s lawyer maintained that the refusal of his requests that the court hear the persons who had allegedly made statements against the applicant and those who had allegedly had telephone conversations with him, and of his requests for a copy of the recordings of the telephone conversations and regarding the designation of the experts, had been in breach of Article 6 §§ 1 and 3(d) of the Convention. He further contended that the statements that State officials had made to the press referring to the applicant as a “terrorist” had been in violation of Article 6 § 2 of the Convention. No decision was taken in respect of that petition.

During the thirty-first and thirty-second hearings held on 24 January and 5 February 2002 the applicant and his co-accused responded to the public prosecutor’s observations on the merits of the case.

On 5 March 2002 the Ankara State Security Court decided to ask the Diyarbakır courts for another judgment rendered by the Diyarbakır Military Court in the 1980’s, convicting the applicant of membership of an illegal organisation. Between 5 March and 23 May 2002 the court adjourned three hearings awaiting a copy of the aforementioned judgment.

At the thirty-sixth hearing on 23 May 2002 the court received the judgment that it had requested on 5 March 2002 and decided to adjourn the trial pending examination of the case file.

On 30 May 2002 the first-instance court asked the applicant to make additional defence submissions given that he might be convicted of membership of an illegal organisation under Article 168 of the former Criminal Code, instead of Article 125 of the same Code.

On 20 June 2002 the applicant’s lawyer filed a petition with the court, requesting that the latter take into account their previous submissions, in the context of the application of Article 168 of the former Criminal Code. The applicant’s lawyer also repeated his previous requests.

At the thirty-eighth and thirty-ninth hearings held on 11 and 20 June 2002, the first-instance court decided to adjourn the trial as the composition of the court had changed and there was a new president.

On 25 June 2002 the Ankara State Security Court rendered its judgment in the case. The applicant was convicted of membership of the PKK under Article 168 § 1 of the former Criminal Code and sentenced to eighteen years and nine months’ imprisonment.

In its judgment, the first-instance court cited the following evidence contained in the case file: the statements that A.G., K.O., Ş.Ö., H.K., N.Y., M.Ş., A.Y., C.P. and V.T. had made to the police within the context of the proceedings against them; the indictments in the cases against the aforementioned persons; the statements made by Abdullah Öcalan to the police, the public prosecutor and during his own trial; a document prepared by the anti-terrorism branch of the General Security Directorate regarding the acts of terrorism that had occurred between 1 January and 4 August 1999; and the transcripts, prepared by experts, of the telephone conversations between the applicant and a number of persons designated as “X”.

The first-instance court noted that A.G., K.O., Ş.Ö., H.K., N.Y., M.Ş., A.Y., C.P. and V.T. had asserted in their statements that the applicant was a member of the PKK and the leader of the organisation in Europe. As to the content of the transcripts, the court noted that it documented that the applicant had given instructions and orders on the carrying out of the acts of violence that had occurred following the arrest of Mr Öcalan.

In the light of the aforementioned evidence, the Ankara State Security Court found it established that the applicant was a member of the PKK and the leader of the organisation in Europe. Its judgment stated that he had been involved in the training of PKK members in Romania and had been in contact with Mr Öcalan. In this connection, the court quoted Mr Öcalan’s statements to the public prosecutor after his arrest, in which he claimed that the applicant had trained PKK members in Romania.

The court further quoted the transcripts of eight telephone conversations and concluded that in the course of those conversations the applicant had issued instructions for the carrying out of acts of terrorism in Turkey. It noted, however, that the applicant had not been directly involved in those acts. The court also noted that the applicant’s instructions had been of a general nature. As a result, according to the court, a direct link between the acts of terrorism, in particular the attack on Mavi Çarşı on 13 March 1999, and the applicant’s instructions could not be established. The Ankara State Security Court therefore did not convict the applicant under Article 125 of the former Criminal Code. Nevertheless, noting that the PKK had given the applicant the specific task of inciting violent acts in Turkey after the arrest of Mr Öcalan, the court convicted the applicant of membership of the PKK under Article 168 of the former Criminal Code.

Both the prosecution and the applicant appealed against the decision.

In his petitions dated 18 October and 19 November 2002, the applicant’s lawyer objected to the court’s having cited as evidence the statements of Mr Öcalan, A.G., K.O., Ş.Ö., H.K., N.Y., M.Ş., A.Y., C.P. and V.T. and the transcripts of the applicant’s alleged telephone conversations. He submitted in particular that all those persons had denied the veracity of the statements taken from them by the police and that M.Ş., A.Y. and Ş.Ö. had been acquitted of the charges brought against them. Moreover, the investigation against K.O. had been concluded with a decision not to prosecute. The applicant’s lawyer noted that the firstinstance court had not cited the accusations against the applicant contained in their statements in the reasoning of its judgment, which demonstrated that there had been no reason to convict his client. He complained, inter alia, that the first-instance court had failed to investigate whether a court order had been issued prior to the recording of the telephone conversations used as evidence in the trial. The court had also failed to provide the defence with a copy of the audiotapes and to hear those individuals designated as “X” in the transcripts of the telephone conversations. The applicant’s lawyer submitted that those deficiencies in the proceedings constituted a violation of Article 6 of the Convention.

The Chief Public Prosecutor at the Court of Cassation submitted his opinion on the merits of both parties’ appeals. In his written opinion (tebliğname) to the 9th Chamber of the Court of Cassation for Criminal Law Matters, the Chief Public Prosecutor advised that the appeals be rejected and that the first-instance judgment be upheld, as it was in compliance with procedural rules and law. That opinion was not submitted to the applicant, despite the fact that in his petition of 19 November 2002 he had asked to be notified. According to the applicant’s submissions, his lawyer was not aware of the written opinion until it was read out during the hearing before the Court of Cassation.

On 12 December 2002 the Court of Cassation upheld the judgment of the Ankara State Security Court. The Chief Public Prosecutor at the Court of Cassation applied for an exceptional appeal procedure before the Joint Criminal Chambers of the Court of Cassation, requesting that the applicant be sentenced under Article 125 of the former Criminal Code. His request was dismissed.

On 30 November 2008 the applicant was released from prison on probation and returned to Germany, where his family were living.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

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

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

The applicants complained of the inadequate conditions of their detention and of the lack of any effective remedy in domestic law. In the application no. 33213/13, the applicant also raised a complaint under another provision of the Convention.