CASE OF SALIKHOVA AND MAGOMEDOVA v. RUSSIA

No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicants were born in 1962 and 1994 respectively and live in Makhachkala, Republic of Dagestan, Russia. They are the mother and the wife of Mr Sakhrab Abakargadzhiyev, who was born in 1990.

At the material time Mr Sakhrab Abakargadzhiyev and the applicants, along with other relatives, lived together at 115A Magomed Dalgata Street, Makhachkala, Dagestan. According to the applicants for about eighteen months prior to the events in question Mr Sakhrab Abakargadzhiyev had been suspected of illegal activities and had been followed by Dagestani law enforcement agencies, in particular by the Centre against Extremism of the Dagestan Ministry of the Interior (“the CPE”) (Центр по Борьбе с Экстремизмом МВД по Республике Дагестан (ЦПЭ)).

At about 6 p.m. on 20 May 2013 Mr Sakhrab Abakargadzhiyev drove in his white GAZ Volga-3110 car along Engelsa Street to visit his relatives, who lived about a ten-minute drive from his house in Makhachkala. At about 6.45 p.m. his car was stopped and he was abducted by a group of eight armed men who were driving two civilian vehicles: a silver-coloured VAZ-21014, which had a registration number which partially read “A067”, and a black VAZ-21099. The men were dressed in civilian clothing and were masked. The applicants’ relative, Mr Ub.Ub., called Mr Sakhrab Abakargadzhiyev during the abduction and upon hearing him screaming immediately informed the applicants that there was a problem. Directly after that Mr Ub.Ub., together with the first applicant, went along Mr Sakhrab Abakargadzhiyev’s route and found his car in the street with two police vehicles and officers from the Sovetskiy district police station in Makhachkala (“the Sovetskiy ROVD”) (Советский районный отдел внутренних дел (РОВД)) next to it. The police told the first applicant and Mr Ub.Ub. that they had arrived a couple of minutes ago and that a few minutes prior to their arrival a man had been abducted. They told the applicant and Mr Ub.Ub. to wait at home for a telephone call from the police and took Mr Sakhrab Abakargadzhiyev’s car to the premises of the Sovetskiy ROVD.

Approximately twenty days after the abduction, that is to say between 9 and 12 June 2013, police officers from the CPE searched the applicants’ house.

About a month after the events, on or around 20 June 2013, the applicants obtained video footage of the abduction from a local resident (see paragraph 23 below). They recognised one of the abductors by his voice as the CPE officer named “Shakir” and informed the authorities of this.

On 1 July 2013 a burnt male corpse was found five kilometres from Gurbuki village in the Karabudakhkenstrkiy district in Dagestan.

On 23 December 2013 the body was identified by the authorities as that of Mr Sakhrab Abakargadzhiyev (see paragraph 53 below). The applicants and their relatives disagreed with that conclusion (see paragraphs 54-55 below).

According to the applicants, they have had no news of Mr Sakhrab Abakargadzhiyev since his abduction.

The Government did not dispute the facts as presented by the applicants, but denied any involvement of State agents in the incident.

In reply to the Court’s first request for a copy of the contents of the investigation file, the Government provided ninety-eight copied pages of documents from it reflecting steps taken by the authorities between 14 June and 26 October 2013.

In reply to the Court’s further request for a copy of the contents of the investigation file, the Government submitted 372 copied pages of the relevant documents, some of which were illegible. The contents of the legible documents can be summarised as follows.

Immediately after the incident the applicants went to the Sovetskiy ROVD, informed the police of the abduction and gave statements to the police investigator. They also conducted their own search for eye witnesses to the incident and found several of them in nearby shops and blocks of flats. The applicants informed the investigators of their findings (see, for example, paragraph 23 below).

On 20 May and then on 24 May 2013 the applicants complained of the abduction to the Sovetskiy district investigations department (“the investigations department”). In their second complaint they stated that, in their opinion, the police were wilfully postponing steps in the investigation of the incident.

On 3 June 2013 the investigators examined the crime scene. No evidence was collected.

On 6 June 2013 the investigators examined the car from which Mr Sakhrab Abakargadzhiyev had been abducted; two fingerprints were collected from the chassis of the vehicle. On the same date a forensic examination of the fingerprints was ordered.

On 14 June 2013 the investigations department opened criminal case no. 302564 into the abduction. The applicants were informed thereof.

On 18 June 2013 the investigators granted Mr Sakhrab Abakargadzhiyev’s father, Mr A.A., victim status in the criminal case and questioned him. His statement was similar to the applicants’ account submitted to the Court. The witness stated, amongst other things, that he had not witnessed the abduction and had learnt of it from his relatives. According to the witness, his son had no unpaid debts or personal enemies and had the mobile telephone number 8-903-481-61-47.

On 18 June 2013 the investigators questioned Mr Ub.Ub. whose statement concerning the incident was similar to the applicants’ account before the Court.

According to the applicants, shortly after their initial complaint to the authorities they identified witnesses to the incident and informed the investigators accordingly. As a result, on 21 June 2013 the investigators questioned Mr Ma.Ma. who stated that at about 6.45 p.m. on 20 May 2013 he had been smoking on his balcony at 3 Engelsa Street when he had heard men arguing. He had looked out and seen a group of six or seven masked men with pistols in their hands. Four of those men had been trying to pull the driver out of a white GAZ Volga-3110 car but the latter had been resisting. Then the men had started beating him and had somehow managed to pull him from his seat into the back seat of the car. Three of them had got inside the vehicle. In about two or three minutes the masked men had carried the immobilised driver out of the car and put him in a silvercoloured VAZ-2114. Then all of the masked men had driven off in that car and a black VAZ-21099 car. Immediately afterwards the witness had gone outside and asked a passerby to call the police. In about five minutes the police had arrived at the scene. According to the witness, he had recorded the abduction on his mobile telephone camera and then copied it to a CD.

On the same date, 21 June 2013, the investigators seized the abduction footage made by Mr Ma.Ma. On 25 June 2013 they examined the video, the contents of which were similar to the applicants’ account of the abduction submitted to the Court.

On 25 June 2013 the investigators questioned the second applicant’s mother, Ms G.G., whose statement concerning the abduction was similar to the applicants’ account before the Court. She had not witnessed the incident and had learnt of it from her relatives.

On the same date, 25 June 2013, the investigators questioned the first applicant, whose statement was similar to the applicants’ submission before the Court. In addition the investigators obtained samples of the first applicant’s saliva for DNA testing and for its database.

On 20 August 2013 the investigators ordered a comparison of the first applicant’s DNA samples with those from the DNA database.

On 30 August 2013 the investigators again questioned the first applicant who stated that in June and July 2013 she had received text messages on her telephone from two unknown numbers. The first message contained the following:

“Congratulations, your son became a shahid on the path of jihad in the Karabudakhkenstrkiy district ... May Allah accept his shahada and take him to the gardens of Firdous. Allahu Akbar!”

The second message contained the following:

“...Your son and son-in-law were set up by your neighbour Makhmud who worked for the 7th department [of the police]. If you don’t believe it, have your men follow him. I could not do nothing about it as I have got nobody who could help me eliminate him. This beast spares no one. I hope you will believe me as I have got no other way out. My brother was the only tower of strength in my life. Friend.”

On the same date, 30 August 2013, the investigators seized the first applicant’s mobile telephone to examine the above messages. It was established that the first message had been received on 15 June 2013 from a mobile telephone located that day in Popovicha Street in Makhachkala; the second message – received on 20 July 2013 – came from a different telephone number.

On 5 September 2013 the investigators requested the Sovetskiy District Court in Makhachkala to grant them permission to obtain from the relevant mobile phone operator the call logs of Mr Sakhrab Abakargadzhiyev’s telephone number (8-903-481-61-47) between 20 April and 1 September 2013.

On 9 September 2013 the investigators received the court’s permission and examined the call logs of Mr Sakhrab Abakargadzhiyev’s telephone calls. According to the logs, at about 6.35 p.m. on 20 May 2013 he had received a telephone call from Mr Ub.Ub and after that the handset had been switched off. On 16 August 2013 a five-second call had been received on Mr Sakhrab Abakargadzhiyev’s number; the caller had been located in the area of Dachi in Makhachkala.

On 9 September 2013 the investigators again questioned the first applicant who stated that on the morning of 5 September 2013 she had received a call on her mobile telephone from a man who had not introduced himself but had stated that he was an officer of the Federal Security Service (“the FSB”) (Федеральная Служба Безопасности (ФСБ)) and that he was holding Mr Sakhrab Abakargadzhiyev. The man, who had called from 8988-059-41-98, had told her that he would release her son in one day in exchange for 250,000 Russian roubles (RUB). The applicant had passed the telephone to her husband who had told the man they had had only RUB 150,000 and that they would pay RUB 50,000 at once and then RUB 100,000 after their son’s release. The man had told them that Mr Sakhrab Abakargadzhiyev was being held about a ten to twelve hour drive from Makhachkala and that he was in a bad state of health. Between 10 a.m. and 3 p.m. on that date (5 September 2013) the first applicant’s husband and the man had called each other several times. The applicant’s husband had been ordered to deposit RUB 50,000 in the account of mobile telephone number 8-964-519-62-69, which he had done on the same day. The man had confirmed receipt of the money and told the applicant and her husband to wait for his call. But he had not called back and his telephone number had been disconnected since 5 September 2013.

On 25 September 2013 the forensic experts informed the investigators that the fingerprints collected from Mr Sakhrab Abakargadzhiyev’s car (see paragraph 19 above) were not fit for identification. The applicants were informed thereof on 21 December 2013.

On 30 September 2013 the investigators requested that the Sovetskiy District Court in Makhachkala grant them permission to obtain the call logs of telephone number 8-988-059-41-98 (used by the alleged FSB officer on 5 September 2013) between 1 August and 30 September 2013. Permission was received on 4 October 2013.

On 7 October 2013 the investigators searched Mr Sakhrab Abakargadzhiyev’s house. No evidence was collected.

On 7 October 2013 the investigators questioned the second applicant whose statement concerning the abduction was similar to that submitted by the applicants to the Court. She had not witnessed the incident but had learnt of it from her relatives.

On 9 October 2013 the investigators received the call logs of the telephone number 8-988-059-41-98. According to these logs, the caller who had contacted the first applicant and her husband on 5 September 2013 (see paragraph 32 above) had been located in Volgograd.

On 10 October 2013 the first applicant requested the investigators to order an expert analysis of the voice of one of the abductors from the video footage of the incident (see paragraph 23 above); according to her, Mr Ub.Ub. had identified that voice as belonging to a Dagestan CPE officer named Shakir whom he would be able to identify if necessary. The applicant requested that the investigators examine the video and compare the abductor’s voice to that of Shakir.

On 16 October 2013 the investigators granted the first applicant’s request and ordered that steps be taken to identify the CPE officer Shakir and to analyse the voice on the video. The applicants were informed thereof.

On 26 October 2013 the investigators questioned Mr T.G. who stated that he lived next to the scene of the abduction but had not witnessed it and learnt of it from his neighbours.

On 28 October 2013 the investigators questioned police officer A.A. who stated that on 20 May 2013 he had been on duty at the Sovetskiy ROVD and had been called to the abduction scene. According to the witness, the investigators had examined the crime scene and had towed away the white GAZ Volga-3110 car left behind after the abduction to their police station. After about a month the car had been picked up by an unnamed individual.

On 1 November 2013 the investigators questioned Shakir N., an officer with the Dagestan CPE, who stated that he did not have information pertaining to the abduction, but that he had participated in the search of the applicants’ house in June 2013 (see paragraph 8 above). The witness also confirmed that in June 2013, about two days after the search, he had spoken with Mr Ub.Ub. who had visited the CPE with his son Mr A.Ub., who had been suspected of involvement in illegal armed groups. Mr Ub.Ub. had requested his assistance in the criminal case against his son Mr A.Ub. but the witness had refused to help him. Due to the passage of time the witness could not recall where he had been on the evening of 20 May 2013 but stated that he had not met Mr Sakhrab Abakargadzhiyev and had not participated in a special operation against him. The witness’ mobile telephone number was 8-967-395-69-75 and he had been using that number since June 2012.

On 3 November 2013 the investigators again questioned the first applicant who stated that, in her opinion, her son had been abducted by special forces servicemen or law-enforcement officers as they had suspected Mr Sakhrab Abakargadzhiyev of aiding members of illegal armed groups. Twenty-four days after the abduction the CPE officers had searched her house (see paragraph 8 above). According to the applicant, Mr Ub.Ub. had met officer Shakir in the middle of June when he had gone to the CPE with his son.

On 5 November 2013 the investigators received the call logs of the telephone number used for the deposit of RUB 50,000 (see paragaph 32 above). According to the list, on 5 September 2013 the caller had been located in Volgograd, Russia.

On 19 November 2013 the investigators ordered an expert analysis of the voices in the abduction video (see paragraph 23 above). It can be seen from the documents submitted that on an unspecified date between 19 and 28 November 2013 the experts concluded that the voice on the footage was not fit for identification (see paragraph 47 below).

On 24 or 25 November 2013 the investigators requested the Sovetskiy District Court in Makhachkala to grant them permission to obtain the call logs for between 10 a.m. and 11 p.m. on 20 May 2013 from the telephone number belonging to officer Shakir N. (see paragraph 42 above). This was granted on 28 November 2013.

On 28 November 2013 the Dagestan Ministry of the Interior conducted an internal inquiry into the applicants’ allegations of the involvement of the CPE officers in the abduction and concluded, amongst other things, the following:

“... On 20 May 2013 A.A. complained of the abduction of his son Mr Sakhrab Abakargadzhiyev to the Investigations Department ...

... According to the witness statements of the first applicant, Mr R.M., Mr Ub.Ub. and Mr A.Ub., enclosed with the complaint, officers of the CPE were involved in the abduction ... In their statements Mr Ub.Ub. and Mr A.A. directly indicate the CPE officers Ra.M. and Shakir; the latter they had been able to identify from the video posted on Youtube under the title “Abduction of Mr S. Abakargadzhiyev”.

According to the statement of the CPE operational search officer Shakir N. given to the inquiry, ... in June 2013 he had participated with his colleagues from the CPE in the search of Mr Sakhrab Abakargadzhiyev’s home ... After the search, prior to the departure, he and his colleagues had asked Mr Sakhrab Abakargadzhiyev’s relatives to ensure that Mr A.Ub. would appear at the CPE. The latter, who had been related to Mr Sakhrab Abakargadzhiyev, had been listed in the CPE’s database as a supporter of terrorist groups, had been told to report to the CPE to help with enquiries ... several days later Mr A.Ub. had been arrested and charged with the same crimes for which he had been investigated. After the arrest, the father of Mr A.Ub., Mr Ub.Ub., had asked the witness and Captain Ra.M. to assist him in persuading the authorities to be lenient towards his son, but his requests had been refused by the officers ... On the date of Mr Sakhrab Abakargadzhiyev’s abduction the witness had taken a detainee, Mr M.D., to the court ... he had had nothing to do with the abduction. In addition, the witness explained that Mr Sakhrab Abakargadzhiyev had been an ardent supporter of Wahabiism and on several occasions had aided members of Dagestani terrorist groups, in particular, Mr S.Gu., and had participated in the attack on Dagestan traffic police officers near Agachul in February 2013 ...

When questioned, the head of the operational search divison of the Dagestan CPE, Captain Ra.M., confirmed the above statement and explained that neither he nor his subordinate officers had had anything to do with the abduction. Mr Ub.Ub. had told lies about them as he and the servicemen of his department had arrested his son Mr A.Ub. in connection with the investigation of criminal case no. 30284.

According to the evidence submitted by the CPE, they had obtained information concerning planned attempts on the lives of law-enforcement officers committed by Mr S.G., Mr A.Kh., Mr G.A. and Mr Sakhrab Abakargadzhiyev on 6 February 2013. The CPE officers did not arrest or detain Mr Sakhrab Abakargadzhiyev and no operational measures were taken against him...

... It can be seen from the case file that according to the expert analysis of the video “Abduction of S. Abakargadzhiyev” it was imposssible to analyse and identify the voices therein ...

Thus, the internal inquiry was not able to verify the first applicant’s complaints concerning the unlawful actions of the CPE officers owing to significant discrepancies between the statements of those questioned during the inquiry; those discrepancies could be resolved only within the framework of a criminal case ...”

On 4 December 2013 the investigators received the call logs of officer Shakir N.’s mobile telephone for 20 May 2013, according to which on that date his telephone had been located in Makhachkala.

On 12 December 2013 the investigators questioned forensic expert Mr M.U., who had fingerprinted the white GAZ Volga-3110 car (see paragraphs 19 and 33 above). According to the witness, nobody else had touched the vehicle until after the examination.

On 30 December 2013 the investigation was suspended. The applicants were informed thereof.

On 28 January 2014 the investigation was resumed and the applicants were informed accordingly. The decision stated, amongst other things, the following:

“... the investigation established that Mr Sakhrab Abakargadzhiyev’s corpse had been found five kilometres north-west of Gurbuki village ... In connection with this, on 1 July 2013 the Kaspiysk Investigations Department opened criminal case no. 329105 ...”

On 29 January 2014 the investigators examined the contents of criminal case file no. 329105. According to the contents, there was a 99.93% DNA match between the DNA of the burnt corpse and that of the first applicant taken from the DNA database, as shown by the results of a forensic examination of 23 December 2013.

On 3 February 2014, having established that the burnt body found on 1 July 2013 had been that of Mr Sakhrab Abakargadzhiyev, the investigations in criminal cases nos. 302564 and 329105 were joined by the investigators under the number 302564. The decision stated that the body had been found in a VAZ-2107 vehicle in which a home-made explosive device had been detonated.

On an unspecified date between February and March 2014 the investigators asked the first applicant to identify the body found on 1 July 2013. According to the applicant, she was not shown the actual corpse, but a photograph of it. She was able to tell from the photograph that it was not the body of her son Mr Sakhrab Abakargadzhiyev: according to the police, the corpse had at least five gold teeth; Mr Sakhrab Abakargadzhiyev did not have any.

On 12 March 2014 the first applicant’s husband asked the investigators to question him and the first applicant again about the circumstances of the abduction, to order another expert forensic examination of the corpse and to further examine and identify the voice of Shakir N. recorded by Mr Ub.Ub. The outcome of this request is unknown.

It appears from the documents submitted that the proceedings are still pending.

The applicant maintained that it was beyond reasonable doubt that the men who had abducted their relative Mr Sakhrab Abakargadzhiyev on 20 May 2013 had been State agents. In support of their allegation they referred to the following: the abduction had taken place in broad daylight, in an area surrounded by CCTV cameras, in the presence of witnesses; the perpetrators had acted openly, without fear of arrest by law-enforcement authorities; the authorities had wilfully delayed the investigation of the incident by conducting, for instance, the crime scene examination almost two weeks after the applicants’ complaints about it (see paragraphs 17 and 18 above) and by taking further steps either belatedly or with major deficiences (see, for example, paragraphs 19 and 33 above); the CPE officer Shakir N. had been present in the vicinity of the abduction scene during the incident (see paragraphs 38 and 48 above) and the applicants had informed the investigators of his and his colleagues’ alleged involvement in the crime; Mr Sakhrab Abakargadzhiyev had been suspected of involvement in illegal activities and, therefore, the authorities had had motives for his abduction (see paragraphs 38, 43 and 47 above). The applicants also referred to a number of abductions allegedly perpetrated by State authorities in Dagestan between 2011 and 2012 in similar circumstances, where some of the abducted men had subsequently been found in State custody.

The Government denied any involvement of State agents in the events. In particular, they stated that only in October 2013 had the first applicant alleged that law-enforcement officers had been involved in the incident (see paragraph 38 above).

The Court points out that a number of principles have been developed in its case-law as regards applications in which it is faced with the task of establishing facts on which the parties disagree. As to the facts that are in dispute, the Court reiterates its jurisprudence requiring the standard of proof “beyond reasonable doubt” in its assessment of evidence (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001-VII). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the parties when evidence is being obtained has to be taken into account (see Taniş and Others v. Turkey, no. 65899/01, § 160, ECHR 2005VIII).

The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nonetheless, where allegations are made under Articles 2 and 3 of the Convention, the Court must apply a particularly thorough scrutiny (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, § 32, Series A no. 336, and Avşar, cited above, § 283) even if certain domestic proceedings and investigations have already taken place.

The Court reiterates that it has noted the difficulties for applicants to obtain the necessary evidence in support of allegations in cases where the respondent Government are in possession of the relevant documentation and fail to submit it. Where the applicant makes out a prima facie case and the Court is prevented from reaching factual conclusions owing to the lack of such documents, it is for the Government to argue conclusively why the documents in question cannot serve to corroborate the allegations made by the applicants, or to provide a satisfactory and convincing explanation as to how the events in question occurred. The burden of proof is thus shifted to the Government and if they fail in their arguments, issues will arise under Article 2 and/or Article 3 of the Convention (see Toğcu v. Turkey, no. 27601/95, § 95, 31 May 2005, and Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005II).

The Court notes that in reply to its request for a copy of the investigation file into the abduction of Mr Sakhrab Abakargadzhiyev the Government produced the relevant documents from the file (see paragraphs 14 and 15 above).

The Court has found the Russian State authorities responsible for a number of extra-judicial executions or disappearances of civilians perpetrated in the Chechen Republic at the end of the 1990s and the beginning of the 2000s, even in the absence of final conclusions from the domestic investigation (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, 24 February 2005; Luluyev and Others v. Russia, no. 69480/01, ECHR 2006-XIII; Estamirov and Others v. Russia, no. 60272/00, 12 October 2006; and Baysayeva v. Russia, no. 74237/01, 5 April 2007). It has done so taking into account the length of time during which the applicants had not had any news of their missing relatives and on the basis of witness statements and other documents attesting to the presence of military or security personnel in the area concerned at the relevant time. It has relied on references to military vehicles and equipment, on witness accounts, on other information on security operations and on the undisputed effective control of the areas in question by the Russian military. On that basis, it has concluded that the areas in question were “within the exclusive control of the authorities of the State” in view of the military or security operations being conducted there and the presence of servicemen (see, mutatis mutandis, Akkum, cited above, § 211, and Zubayrayev v. Russia, no. 67797/01, § 82, 10 January 2008).

However, in the present case the circumstances in which the events occurred do not warrant an unequivocal conclusion that State agents were responsible for the abduction of the applicants’ relative for the following reasons. As regards the general background, the events complained of took place not in Chechnya, but in Dagestan in May 2013, and there was neither a curfew in place nor any restrictions on driving civilian vehicles. Noting that the applicants’ version of the events was based on the statements of those who had not witnessed the abduction themselves, except for the statement of Mr Ma.Ma., that the video of the abduction had not assisted in the identification of the culprits (see paragraphs 24 and 45 above) and taking into account that the abductors drove ordinary vehicles and were wearing balaclavas and civilian clothing, the Court has little evidence to rely upon. However, bearing in mind that after the events the applicants received information alleging knowledge of their relative’s whereabouts which they submitted to the authorities with a delay varying from several days to several weeks (see, for example, paragraphs 28 and 32 above), along with the subsequent discovery of the burnt body and the experts’ evaluation concerning its identity (see paragraphs 52 and 53 above), the Court is not persuaded that the abduction of the applicants’ relative by State agents is the only possible explanation of the events in question.

Accordingly, the information in the Court’s possession does not suffice to establish that the perpetrators belonged to the security forces or that a “security operation” had been carried out in respect of Mr Sakhrab Abakargadzhiyev.

To sum up, it has not been established to the required standard of proof that State agents were implicated in the disappearance of Mr Sakhrab Abakargadzhiyev; nor does the Court consider that the burden of proof can be entirely shifted to the Government.


Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court;Fair hearing;Reasonable time)

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Marko Bošnjak;Vincent A. De Gaetano

The applicant was born in 1974 and lives in Nizhyn in the Chernihiv Region.

On 1 May 2010 the applicant was arrested and remanded in custody pending the outcome of the investigation and trial.

On 30 April 2013 the Alchevsk Court of the Luhansk Region convicted the applicant and his four co-defendants of armed robbery committed in an organised group, banditry and illegal possession of firearms in connection with a series of armed attacks committed in the Perevalsk District of the Luhansk Region. The court sentenced the applicant to eight years and nine months’ imprisonment, to be counted from 1 May 2010 (the date on which he had been arrested), and to confiscation of his property. It ordered that the applicant remain in detention pending appeal.

On 14 May 2013 the applicant’s sister, acting in the capacity of his lay defender, appealed against the judgment to the Luhansk Regional Court of Appeal (“the Court of Appeal”). Other parties lodged appeals as well.

From the beginning of April 2014, armed groups started to seize official buildings in the Donetsk and Luhansk regions and announced the creation of self-proclaimed entities known as the “Donetsk People’s Republic” and the “Luhansk People’s Republic” (“DPR” and “LPR”).

In response, on 14 April 2014 the Ukrainian Government, who consider those armed groups to be terrorist organisations, authorised the use of force against them in the legal form of an “anti-terrorist operation”.

As a result of extensive military action, between May and August 2015 the Ukrainian Government forces recaptured some territory in the Donetsk and Luhansk regions, but certain parts of the regions have remained outside of the Government’s control since that time. The parts of the Luhansk Region not under the Government’s control include the Perevalsk District, where the offences for which the applicant was convicted were committed, Alchevsk, where the applicant was tried and convicted, and Luhansk, where the Court of Appeal was located.

A ceasefire was agreed upon within the framework of the Tripartite Contact Group composed of representatives of Ukraine, Russia and the Organisation for Security and Co-operation in Europe (hereinafter, “the OSCE”). An obligation to uphold the ceasefire and to withdraw heavy weaponry from the contact line was enshrined in the Minsk Agreements and the Package of Measures for their Implementation of September 2014 and February 2015 respectively. However, numerous violations of the ceasefire have continued to occur ever since.

At the time the events of spring and summer 2014 were unfolding, the applicant was detained in Starobilsk remand prison, located in the part of the Luhansk Region that has remained under the control of the Ukrainian Government. He remained in that prison until his release (see paragraph 30 below).

On 6 June 2014 the Court of Appeal, which was still sitting in Luhansk, failed to hear the applicant’s case because the applicant could not attend the hearing on account of the armed conflict. A hearing by video conference was scheduled for 8 August 2014, but it did not take place because as from 1 August 2014 the electricity and water supply and telephone communications were cut off at the Court of Appeal’s building in Luhansk. At some point around that time, the judges of the court moved to the Government-controlled territory. The case files, however, remained at the court’s building in Luhansk.

On 2 September 2014 the President of the High Civil and Criminal Court, acting under the Law of 12 August 2014 (see paragraph 44 below), reassigned jurisdiction over cases which would normally have fallen within the jurisdiction of the Alchevsk Court to the Lysychansk Court of the Luhansk Region (“the Lysychansk Court”), located in the Governmentcontrolled area.

On 12 November 2014 the President of Ukraine issued a decree defining Sieverodonetsk in the Luhansk Region, also located in the Government-controlled area, as the seat of the Court of Appeal instead of Luhansk.

On 25 February 2015 the applicant complained to the Court of Appeal about the delay in the examination of his appeal.

On 3 March 2015 the applicant lodged a similar complaint with the office of the Parliamentary Commissioner for Human Rights.

On 27 March 2015 the Court of Appeal informed the applicant that his criminal case file was in Luhansk, which was not under the Government’s control, and that this prevented the court from examining his case. In order to resolve the problem, amendments would have to be made to the relevant legislation.

On 30 March 2015 the Parliamentary Commissioner’s office responded that there was no way to obtain case files from the territory that was not under the Government’s control, but that the Commissioner was working with the courts, the prosecutor’s office and other authorities to find a way to resolve the problem.

In response to another complaint from the applicant, on 19 May 2015 the Court of Appeal informed him that it was unable to apprise him of the state of proceedings in his case because his criminal case file was in the court archives in Luhansk, to which there was no access.

On 21 May 2015 the Parliament of Ukraine (Verkhovna Rada) adopted a declaration which read, insofar as relevant, as follows:

“I. Derogation from Obligations

In view of the armed aggression of the Russian Federation against Ukraine involving both the regular Armed Forces of the Russian Federation and illegal armed groups guided, controlled and financed by the Russian Federation, since April 2014 an anti-terrorist operation has been conducted by the units of the Security Service of Ukraine, the Ministry of Internal Affairs of Ukraine and the Armed Forces of Ukraine in certain areas of the Donetsk and Luhansk regions (oblasts) of Ukraine. The anti-terrorist operation is part of Ukraine’s inalienable right to individual self-defense against aggression under Article 51 of the UN Charter. The Russian Federation, which has occupied and is exercising control over certain areas of the Donetsk and Luhansk regions, is fully responsible for respect for and protection of human rights in these territories under international humanitarian law and international human rights law.

The Russian Federation’s ongoing armed aggression against Ukraine, together with war crimes and crimes against humanity committed both by the regular Armed Forces of the Russian Federation and by illegal armed groups guided, controlled and financed by the Russian Federation, constitutes ‘a public emergency threatening the life of the nation’ in the sense of ... Article 15 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

In order to safeguard the vital interests of society and the State in response to the armed aggression of the Russian Federation, the Parliament of Ukraine, the Cabinet of Ministers of Ukraine and other authorities have to adopt decisions which constitute a derogation from certain obligations on the part of Ukraine under the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms.

On 12 August 2014, the Parliament of Ukraine adopted the Law on Administration of Justice and Criminal Proceedings in connection with the Antiterrorist Operation. The Law changed, for the duration of the anti-terrorist operation, the territorial jurisdiction over cases amenable to the courts located in the anti-terrorist operation area and, concerning the situations where it is impossible to conduct a pre-trial investigation in that area, investigative jurisdiction over criminal offences perpetrated there. The application of this law makes it necessary for Ukraine to derogate from certain of its obligations under Article 14 of the International Covenant on Civil and Political Rights and Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. However, the courts and pre-trial investigation bodies are not currently functioning in certain areas of the Donetsk and Luhansk regions because of the armed aggression of the Russian Federation and the actions of terrorist groups backed by the Russian Federation. That is why Ukraine has had to change the territorial jurisdiction of the courts and investigative jurisdiction in respect of criminal offences in conditions where the life of the nation is threatened.

On 5 June 2015 the Permanent Representation of Ukraine to the Council of Europe transmitted to the Secretary General of the Council of Europe a note verbale containing the text of the above declaration and its translation.

On 15 June 2015 the applicant applied to the Lysychansk Court for restoration of the lost case file (відновлення матеріалів втраченого провадження).

On 22 June 2015 the Lysychansk Court held a hearing in the presence of a prosecutor but in the applicant’s absence. The prosecutor stated that the case file in question was not in the area of the Luhansk Region controlled by the Ukrainian Government and that it was therefore not possible to furnish the court with any of the material therein. The court found that there was insufficient material available to restore the file. It discontinued the examination of the application, reminding the parties that if sufficient material was provided, the question of restoration could be reexamined.

On 22 October 2015 the Court of Appeal again informed the applicant that examination of his case required amendments to the legislation. In this context, it referred to draft law no. 2930 (see paragraph 47 below).

On five occasions between May 2015 and February 2016 the applicant applied for release, arguing that his detention was unlawful because his conviction was not final and “would never become final”.

The Starobilsk Court of the Luhansk Region rejected the applicant’s applications for release, finding that, contrary to his submissions, there were sufficient legal grounds for continuing to detain him, since he had been convicted and his case was pending before the Court of Appeal. The most recent of those decisions was taken on 25 February 2016. No appeal lay against them.

On 30 December 2016 the applicant applied to the Court of Appeal for release under the Law of 26 November 2015 (see paragraph 46 below).

On 18 March 2016 the Lysychansk Court released the applicant. It considered that, as he had been held in pretrial detention since 1 May 2010, under the Law of 26 November 2015 he could be deemed to have already served his sentence.

The regional prosecutor’s office appealed, arguing that the applicant’s conviction had not become final because his domestic case file had remained inaccessible in a non-Government-controlled area and appeals against his conviction were still pending before the Court of Appeal. According to the prosecutor’s office, only convicted persons whose convictions had become final could benefit from the application of the new legislation. By contrast, those whose convictions were not final could be released only once the period for which they had been detained had exceeded half of the maximum sentence for the offence of which they stood accused. Since the applicant was accused of offences, in particular banditry and aggravated robbery, the maximum punishment for which was fifteen years’ imprisonment (see paragraph 41 below), and he had served much less than half of that term, he could not be released.

On 24 May 2016 the Court of Appeal upheld the Lysychansk Court’s ruling of 18 March 2016 (see paragraph 30 above).

Following communication of the case to the respondent Government, on 11 August 2016 the regional prosecutor’s office informed the office of the Government Agent that, apart from the applicant, there were seven other individuals still held in the region’s remand prisons against whom criminal proceedings were still pending but whose case files were in the non-Government-controlled areas. The prosecutor’s office stated that it had requested the assistance of the police in gathering the documentation necessary to restore the relevant files. That work had allowed the prosecutor’s office to gather sufficient material to ask the courts to consider the case against one of those individuals. The work was ongoing concerning two other defendants. Assistance had also been requested from the International Committee of the Red Cross, which operated in both the Government-controlled and the non-Government-controlled areas, in facilitating the transfer of files from the Court of Appeal’s building in Luhansk.

At the date of last information made available to the Court (19 January 2017), the applicant’s appeal against his conviction remained pending before the Court of Appeal.


MC KEVITT AND CAMPBELL v. THE UNITED KINGDOM

Aleš Pejchal;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo;Robert Spano

The first applicant, Mr Michael McKevitt, is an Irish national who was born in 1949 and is currently imprisoned in Portlaoise, Ireland. The second applicant, Mr Liam Campbell, is an Irish national, who was born in 1962 and is currently detained in HMP Maghaberry in Northern Ireland. Both applicants are represented before the Court by Mr K. Winters of KRW Law - LLP, a lawyer practising in Belfast.

The United Kingdom Government (“the Government”) are represented by their Agent, Mr P. McKell of the Foreign and Commonwealth Office.

The Government of Ireland were notified of the applications and were asked if they wished to exercise their right to intervene pursuant to Article 36 § 1 of the Convention and Rule 44 of the Rules of Court. However, they did not seek to exercise this right.

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

At 3.05pm on 15 August 1998 a 500lb bomb exploded in the centre of Omagh, a town in County Tyrone, Northern Ireland. As a result of the explosion, twenty-nine people were killed, including a woman pregnant with twins, and more than three hundred people were injured. In addition, there was extensive damage to property in the town. The incident was the single worst atrocity in the course of the years of violence which occurred in Northern Ireland from the late 1960s onwards.

Approximately half an hour before the blast, three warning calls had been made by callers using a code word previously used by an organisation calling itself Óglaigh na hÉireann, otherwise known as “The Real Irish Republican Army” (“the Real IRA”). The callers gave conflicting and misleading information about the location of the bomb.

Following the blast, responsibility was claimed by the Real IRA. However, no individual has been convicted of causing the bomb or the consequent deaths, injuries and property damage.

Many of the families who suffered as a result of the Omagh bomb brought an action for damages for trespass to the person, intentional infliction of harm and conspiracy to injure against the parties they believed to be responsible for the incident. Those parties included the Real IRA as an organisation and the two applicants, who they believed were responsible for the planning, production, planting and detonation of the bomb.

The principal witness of the plaintiffs in the civil action was D.R., an FBI agent who had infiltrated dissident Republican terrorist groups.

On 29 September 2006 the High Court ordered that D.R. could give evidence by video link because he was receiving the benefit of an FBI witness protection program in the United States of America and the Police Service of Northern Ireland (“PSNI”) had assessed the risk to his life to be severe if he were to give evidence in Northern Ireland.

On 9 March 2007 the plaintiffs indicated that D.R. was no longer available to give evidence by video link. They submitted an affidavit explaining that the FBI was no longer prepared to make him available because of the threat to his security and an unexplained medical condition. In his absence, they sought to rely on evidence he had given in two previous criminal trials.

In or around 2003 the first applicant had been convicted by the Special Criminal Court in Dublin of membership of the IRA and directing terrorism during the period from August 1999 to October 2000. D.R. had been the principal witness for the prosecution. His evidence, which described the involvement of the Real IRA in the Omagh bombing, the direct involvement of the first applicant in procurement and training within that organisation, and the presence of the second applicant at army council meetings, was based on three statements made by him between January 2001 and March 2001, and documents disclosed by the FBI and British Security Service, including approximately 2,300 pieces of email traffic between him and his handlers.

At the trial D.R. had given evidence over fourteen days. For eleven of those days he was cross-examined by counsel for the first applicant, who attacked his credibility as a witness. D.R. did not rely on the email documentation in his direct evidence and he was not cross-examined in relation to it.

In 2001, following a sting operation by the British Security Service, three persons had been arrested by the Slovakian police and extradited to the United Kingdom to stand trial for offences committed under the Terrorism Act 2000. The subsequent criminal proceedings took place at Woolwich Crown Court (for further details see O’Farrell and Others v. the United Kingdom, no. 31777/05, 5 February 2013). Neither applicant in the present proceedings was involved in the criminal trial. However, in the course of those proceedings a tape was produced containing a compilation of conversations between a person named “Karl” and members of the British Security Service. It was clear from the conversations that “Karl” was directing the Real IRA’s operation in Ireland and seeking to procure arms and/or funding from foreign Governments. In the course of the Woolwich proceedings D.R. identified “Karl’s” voice as that of the first applicant. His evidence was supported by that of an Inspector in An Garda Síochána (“the Garda”), the National Police Service of Ireland.

The plaintiffs applied for permission to rely on the transcript of evidence and materials disclosed during the Dublin proceedings. However, the first applicant submitted that the introduction of this hearsay evidence would deprive him of the opportunity to cross-examine D.R. and prevent the court from assessing his credibility.

The High Court judge heard evidence about the effort made by the plaintiffs and the first applicant to secure D.R.’s attendance to give video link evidence. He accepted that the plaintiffs’ solicitor had made a number of attempts to cause the FBI to alter its view; the plaintiffs’ solicitor had attempted to obtain some written explanation for D.R.’s inability to give evidence but had been unable to do so; any application to the relevant judicial authorities in the United States of America to take the evidence of D.R. would likely be opposed by the FBI; and although the first applicant had applied to the court to institute a request for D.R. to be called for crossexamination under the Hague Convention, that request had been refused by the United States’ authorities. The judge therefore accepted that the plaintiffs and the first applicant had taken every possible step to secure the attendance of D.R. as a witness.

The judge further considered whether or not the action in trespass constituted a “criminal charge” in accordance with the autonomous jurisprudence of this Court. However, he decided that there had been no “criminal charge” as the proceedings were classified as civil under domestic law and any award the court could make would be compensatory. Although the plaintiffs’ had stated that the objective of the proceedings was not to obtain compensation but to “see the applicants held to account”, the judge considered that their subjective intention was of “little or no bearing” in deciding whether the proceedings were criminal or civil. The judge therefore held that the protections contained in Article 6 § 3 of the Convention did not apply as of right.

The judge then considered whether the evidence could be admitted pursuant to the Civil Evidence (Northern Ireland) Order 1997 (see paragraph 48 below). In answering this question in the affirmative, he noted that although his power to exclude relevant evidence was circumscribed by the 1997 Order (see paragraph 48 below), the court’s obligation to ensure a fair trial within the meaning of Article 6 of the Convention could be achieved by permitting the plaintiffs to admit the evidence and applying the appropriate safeguards contained within the Order. In particular, he indicated that once the evidence was received it would be open to the applicants to submit that he should accord it no weight.

The plaintiffs also sought to rely on a copy of the “Karl” tape. Counsel for the first applicant contended that pursuant to the Security Service Act 1989, the tape had been disclosed unlawfully by the Metropolitan Police to the plaintiffs.

In a decision dated 22 October 2008 the High Court Judge found that the tape had been lawfully disclosed to the plaintiffs and could therefore be admitted in evidence, although the weight to be given to it would be “a matter for submissions”.

At the hearing, the first applicant chose not to give evidence in answer to this case against him. The second applicant had initially entered a defence to the claim but subsequently instructed his solicitors to come off record.

The High Court judge first considered the appropriate standard of proof and concluded that it should be the balance of probabilities since the seriousness of the allegation against the applicants alone was not a reason for departing from the civil standard.

The judge accepted that the Omagh bombing was part of a campaign of terror involving the use of explosive devices in locations where there was a large number of members of the public. In view of the fact that the warnings were specifically designed to prevent detection of the location of the bomb car before the explosion, the judge was satisfied that those involved in the planning, production, planting and detonation of the bomb recognised the likelihood of serious injury or death from its detonation but had decided to take that risk.

The plaintiffs sought to adduce evidence of the first applicant’s conviction by the Special Criminal Court in Dublin for directing terrorism. The judge held that the conviction could not be admitted as evidence that the first applicant had committed the acts which grounded the conviction. However, he found that the conviction could be admitted at common law as evidence of bad character, if probative and relevant.

The first applicant mounted an attack on the character of D.R. based in substantial part on answers he gave during cross-examination in the Dublin proceedings. In particular, in one email D.R. had suggested an intention to perjure himself in unrelated proceedings; he had once described himself as a “whore” and a “mercenary”; he had been charged with passing bad cheques; there was evidence to suggest that he had been prepared to facilitate criminal activity as long as there was a suitable financial reward for him; he was paid for the information provided to the FBI and the British Security Service; and he had had a reputation as a smuggler, drug dealer and “bad guy”.

In assessing the weight to be attached to the evidence of D.R., the judge identified two separate questions: whether the email material represented a fair and accurate account of the actual traffic that passed between D.R. and his handlers, and whether the statements and emails represented a fair and accurate account of the exchanges between D.R. and the first applicant. Both of those questions required consideration of the Civil Evidence (Northern Ireland) Order 1997.

In respect of the first question, the judge made the following observations:

The statements which were prepared for the purpose of giving evidence in the Dublin proceedings were not prepared contemporaneously, but the emails represented actual traffic between D.R. and his handlers. In virtually all cases the emails were generated within hours of the end of lengthy meetings, but caution had to be exercised in relation to isolated comments in response to queries raised by handlers where there may have been failures of recollection or misinterpretation.

D.R.’s motivation for embarking on his activity was the prospect of financial reward. He had been dishonest in his dealings with money and in representation of circumstances, particularly where his financial interests and reputation were involved.

D.R. was engaged under a financial contract with his handlers. Since he had a financial interest in producing material that was likely to be considered significant, care had to be exercised in assessing the material.

The extraordinary level of detail, which included identification by name of a significant number of people whom it was highly unlikely that D.R. would previously have known was compelling evidence of an attempt to provide an accurate and comprehensive record of actual meetings.

The materials were generated for the purpose of enabling handlers to assess intelligence and there was no reason to think that the content had been manipulated in any particular way.

The hearsay evidence of D.R. was decisive in the sense that without it the plaintiffs could not succeed against the first applicant.

The applicant had a proper opportunity to investigate the credibility of D.R. He had had the advantage of the disclosures which had been made for the purposes of the criminal trial, including the transcript of cross-examinations.

It was recognised that some material might be missing and there was the possibility of human error, having regard to the limited interaction necessary to deal with the encryption of these materials.

In light of the above considerations, the judge was satisfied to a very high standard of probability that the exchanges set out in the emails represented actual traffic that occurred between D.R. and his handlers.

The judge further considered Article 6 of the Convention and, in particular, the Chamber judgment in Al-Khawaja and Tahery v. the United Kingdom, nos. 26766/05 and 22228/06, 20 January 2009. Although he recognised that this was not a criminal case and the minimum rights set out in Article 6 § 3 were therefore not expressly engaged, he accepted that the entitlement to a fair hearing would often involve consideration of many of the issues identified as minimum rights within Article 6 § 3 and it was therefore necessary to examine whether the admission of the hearsay evidence and the giving of weight to it would render the hearing unfair. In this regard, the judge noted that the guarantee of a fair hearing required observance of the principle of equality of arms and the principle that proceedings as a whole should be adversarial; in other words, each party had to be afforded a reasonable opportunity to present his case under conditions that did not place him at a substantial disadvantage vis-à-vis his opponent, and be given the opportunity to have knowledge of and comment on the evidence adduced by the other party. Nevertheless, the judge noted that in this case the material upon which the plaintiffs relied had long been known to all of the parties. Consequently, the defendants, who had available the disclosure which was made within the criminal trial and the transcript of the extensive cross-examination of D.R. at that trial, had had a proper opportunity to investigate D.R.’s credibility.

In respect of the second question of whether the material was an accurate record of events and conversations, the judge made the following observations:

There was evidence of dishonesty by D.R. in respect of financial matters and the fact that he was being paid for intelligence should properly cause the court to exercise caution in relation to the accuracy of this material.

There was, however, overwhelming evidence that D.R.’s account in relation to attendance at meetings and gatherings was accurate – including evidence from Garda officers involved in surveillance of the first applicant – and he could be confident that the emails represented a reliable record of D.R.’s activities.

The Woolwich evidence was strongly supportive of the content of the emails: taken together with the hearsay statement made in the Dublin proceedings that the person identified as “Karl” was in fact the first applicant, the Woolwich evidence would appear to confirm that the first applicant had been actively involved in the procurement of terrorist materials, that he had a leadership role in relation to procurement and was a committed terrorist.

The judge was therefore satisfied that he should give considerable weight to the content of the email traffic without offending the first applicant’s fair trial rights under Article 6 of the Convention.

The principal evidence against the second applicant was also that of D.R., who had recorded his attendance at meetings of the army council where the second applicant appeared to be in charge. In addition, there was independent telephone evidence which indicated that the drivers on the “bomb run” had phoned the second applicant a number of times on the morning of the Omagh bombing.

The judge, having already dealt with the weight to be given to the hearsay evidence of D.R. in considering the position of the first applicant, was satisfied that there was also cogent evidence that the second applicant was a member of the army council of the Real IRA at the time of the Omagh bomb, and that he held an important leadership position in the Real IRA both at that time and subsequently. He was further satisfied that there was cogent telephone evidence demonstrating that the second applicant had been involved in directing the operation and participating in it.

The judge therefore found both applicants liable in trespass to the plaintiffs. In reaching this conclusion, he described the applicants’ failure to answer the case against them (the first applicant having elected not to give evidence and the second applicant having not attended the hearing at all, either in person or through representatives – see paragraph 21 above) as “inexplicable” and opined that these failures had made the case against them “overwhelming”.

The quantum of damages was assessed separately for each plaintiff depending on the losses suffered, and included financial awards to reflect dependency (the loss of financial support from the deceased); bereavement (a fixed sum of GBP 7,500 payable for grief and trauma following the death of certain specified family members); psychiatric injury to the surviving relatives; loss of earnings; “aggravated damages” to compensate for the injury to feelings flowing from consequences such as the indignity, mental suffering, disgrace and humiliation which may be caused by tortious conduct; and funeral costs.

The applicants appealed against the judge’s decision on the ground that he had been wrong to conclude that the appropriate standard of proof was the civil standard of proof on a balance of probabilities. However, the Court of Appeal found that the High Court judge had correctly analysed the authorities and was right to apply the civil standard. A tort was a claim for civil law remedies – the findings of the court gave rise to no criminal sanctions and would not in themselves assist in any prosecution – and did not cease to be such because the conduct giving rise to the tort was also criminal.

Counsel for the first applicant also argued that the High Court judge had been wrong to attach the weight he did to the evidence of D.R., since evidence had shown him to be a demonstrable confidence trickster who manipulated information at every turn; that the evidence of the first applicant’s conviction by the Special Criminal Court in Dublin should not have been found to be admissible at common law; and that the judge should not have drawn any adverse inference from the decision of the first applicant not to answer the case against him.

However, the Court of Appeal observed that the fact that a witness had been demonstrated to be unreliable and, indeed, mendacious and dishonest on important occasions did not mean that everything he said should be discounted as valueless and unreliable. The judge had made it clear that D.R.’s hearsay evidence had to be approached with care. Moreover, he was evidently alive both to the financial motive to lie and exaggerate and to the evidence from D.R. himself which indicated dishonesty in his own financial affairs. Therefore, on a fair reading of the judgment the judge was fully conscious of serious flaws in D.R. as a witness of truth on some issues.

Insofar as the judge had held that the evidence of the first applicant’s conviction by the Special Criminal Court in Dublin could be admitted at common law as evidence of bad character, the Court of Appeal found that he had erred. However, this error did not affect the outcome of the proceedings, as the Woolwich evidence had already established that the first applicant was a committed and active terrorist who was willing to participate in serious terrorist crime. The Dublin conviction therefore added no material weight to the plaintiffs’ case against him.

Furthermore, the Court of Appeal found that in the circumstances of what was a relatively strong prima facie case the judge had been fully entitled to draw an adverse inference from the first applicant’s failure to give evidence. The first applicant had clearly had access to material facts but gave no explanation for his failure to call any evidence or go in the witness box.

The second applicant appealed on the grounds that the judge should have subjected the hearsay evidence to proper scrutiny in the context of the case against him instead of adopting the findings in relation to the case against the first applicant, especially as he had not been a party to the criminal proceedings in Dublin and had not, therefore, had an opportunity to cross-examine D.R.; that the judge had been wrong to make the evidential leap that his alleged use of a particular mobile telephone connected him to the bomb and placed him in a position of control and command; and that it was wrong of the judge to draw inferences from his absence from the proceedings as he had been unrepresented (his assets were frozen in the Republic of Ireland by the Criminal Assets Bureau and his legal aid had been revoked).

However, the Court of Appeal found that the judge had been entitled to reach the conclusion that he did in respect of the evidence of D.R. While his analysis of the evidence in the context of the first applicant’s case was not of itself determinative of the question whether it was reliable evidence against the second applicant, he had been aware of the relevant considerations in determining the strength and weaknesses of the evidence. Moreover, there was some corroboration as the Garda had observed the second applicant and D.R. together and the telephone evidence also connected him to the bombing. Linking the pieces of evidence together, the judge was justified in reaching the conclusion that he did.

The Court of Appeal further found that the fact the second applicant had declined to testify meant that he had nothing to contradict the evidence against him, which strengthened that evidence even in the absence of any inference which could be drawn.

In a decision dated 7 July 2011 the Court of Appeal dismissed the appeals of both applicants.

On 27 July 2012 the applicants were refused permission to appeal to the Supreme Court.

A claim for trespass to the person, which may be brought for a wilful or negligent act of direct force, is classified as a civil action under domestic law. It is tried before a civil court, which does not determine whether a criminal offence has been committed in order to assess liability.

Where liability for trespass to the person is established, the plaintiff is entitled to claim damages to compensate for his or her loss. The general principle underlying the award of damages for tortious acts is to seek to put the plaintiff in the financial position he or she would have been in had the tort not taken place.

The admissibility of hearsay evidence in civil proceedings in Northern Ireland is governed by the Civil Evidence (Northern Ireland) Order 1997. Article 3 of the Order provides that in civil proceedings evidence shall not be excluded on the ground that it is hearsay.

Articles 4, 5 and 6 contain safeguards relating to the admission of hearsay evidence:

“4. —(1) Rules of court may provide that, where a party to civil proceedings adduces hearsay evidence of a statement made by a person and does not call that person as a witness, any other party to the proceedings may, with the leave of the court, call that person as a witness and cross-examine him on the statement as if he had been called by the first-mentioned party and as if the hearsay statement were his evidence in chief.

(2) Without prejudice to any other power to adjourn proceedings, where, in accordance with rules of court made by virtue of paragraph (1), the court gives a party leave to call the maker of a statement as a witness, the court may adjourn the proceedings, on such terms as to costs or other matters as it thinks fit, for the purpose—

(a) of enabling the witness to be brought before the court; or

(b) of giving the party concerned a proper opportunity to investigate the statement or the credibility of the witness.

—(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.

(2) Regard shall be had, in particular, to whether the party by whom the hearsay evidence is adduced gave notice to the other party or parties to the proceedings of his intention to adduce the hearsay evidence and, if so, to the sufficiency of the notice given.

(3) Regard may also be had, in particular, to the following—

(a) whether it would have been reasonable and practicable for the party by whom the evidence is adduced to have produced the maker of the original statement as a witness;

(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;

(c) whether the evidence involves multiple hearsay;

(d) whether any person involved had any motive to conceal or misrepresent matters;

(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;

(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.

(3) Where in civil proceedings hearsay evidence is adduced and the maker of the original statement, or of any statement relied upon to prove another statement, is not called as a witness—

(a) evidence which, if he had been so called, would have been admissible for the purpose of attacking his credibility as a witness is admissible for that purpose in the proceedings;

(b) evidence may, with the leave of the court, be adduced of any matter which, if he had been called as a witness, could have been put to him in cross-examination in relation to his credibility as a witness but of which evidence could not have been adduced by the cross-examining party; and

(c) evidence tending to prove that, whether before or after he made the statement, he made another statement inconsistent with it is admissible for the purpose of showing that he has contradicted himself; and

(d) evidence which, if he had been so called, would have been admissible for the purpose of supporting his credibility as a witness is admissible for that purpose in the proceedings, but, in the case of evidence of another statement made by that person, only with the leave of the court;

and where evidence of another statement which is admissible by virtue of sub-paragraph (c) or (d) is adduced accordingly, it shall also be admissible as evidence of the matters stated.”


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Substantive aspect) (Iran);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-2 - Prompt information);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in 1975 and lives in Turkey.

In 1999 the applicant fled from Uzbekistan to Tajikistan because of pressure from the police, who suspected him of anti-constitutional activities in connection with his alleged Islamic religious beliefs and practices. He feared, in particular, that if he stayed in Uzbekistan, he would face persecution from the State authorities, and would eventually be imprisoned and tortured like some of his fellow Muslim friends. In support of his allegation of the risk of ill-treatment in Uzbekistan, the applicant submitted a copy of a list of persons who had been charged with offences against the State. The list had been prepared by the Human Rights Centre “Memorial”, a non-governmental organisation based in Moscow, and included the applicant’s name. According to this document, the applicant was charged under Article 159 § 4 of the Uzbekistan Criminal Code (attempting to violently overthrow the State’s constitutional order). At the top of the document, it was explained that the list had been compiled on the basis of the “Bulletin on the Search for Criminals” prepared by the criminal investigation and counter-terrorism department of the Ministry of the Interior of Uzbekistan and published in Tashkent in May 2003.

From Tajikistan, the applicant went on to Afghanistan and Pakistan. In 2005 he arrived in Iran, where he settled in Zahedan. The applicant applied to the United Nations High Commissioner for Refugees (“the UNHCR”) in Zahedan for recognition as a refugee. He lived in Zahedan for two years without experiencing any major problems. In 2007, however, together with some other Uzbek asylum seekers who had left their country for the same reasons, the applicant decided to flee from Iran following deportation threats. He claimed that the threats had been a response to certain disagreements with the Iranian authorities over their living conditions.

On 18 November 2007 the applicant entered Turkey illegally through Van and went to Ankara to apply for refugee status at the UNHCR. Following a preliminary interview, the applicant was referred to the UNHCR office in Van. The Van office issued him with an asylum seeker certificate. Subsequently, he registered with the Van police headquarters and started the domestic temporary asylum procedure. Thereafter he was given a temporary residence permit until 24 September 2008 and was ordered to report to the police three times a week for signature. It appears that the other Uzbek asylum seekers who had fled Iran together with the applicant were granted similar certificates and permits after following the same procedural steps.

On an unspecified date the Van police sent a notice to a number of Uzbek families requiring them to appear at the police station on 12 September 2008. The notice stated that their attendance was required for the distribution of food rations and school stationery.

Although the applicant did not receive such a notice, at 2 p.m. on 12 September 2008 he went to the police station for signature, as part of his weekly routine. Once at the police station, some twenty-nine asylum seekers, including the applicant, were placed in detention. Their personal items, including identity documents, money and telephones, were confiscated. They were driven to the border at around 9 p.m. the same evening and forcibly deported to Iran. The applicant was allegedly illtreated and threatened by the police during deportation.

After crossing the border to Iran on foot, the Uzbek asylum seekers, including the applicant, were captured and held hostage by people smugglers, who demanded 5,000 United States dollars to spare their lives and to release them. The asylum seekers contacted some other Uzbeks who had managed to escape deportation from Turkey and obtained the ransom fee. The smugglers made them walk for three days to Yüksekova, a town close to the Iranian border of Turkey, where they were released.

After re-entering Turkey illegally, the applicant went back to Van together with the other Uzbek asylum seekers. They requested legal advice from the Van Bar Association, which, along with two Turkish non-governmental organisations, published a report on 28 September 2008 regarding the Uzbek asylum seekers’ collective expulsion. It was argued in the report, inter alia, that the expulsion of the Uzbeks by the Turkish State authorities, despite their valid residence permits, had had no legal basis. It was also alleged that the expulsion had been motivated by political considerations to improve relations with Uzbekistan, which had been strained following the acceptance by Turkey of members of Uzbek opposition groups, such as the applicant, as asylum seekers in recent years.

On 11 October 2008 a number of Uzbek asylum seekers, who had previously been deported to Iran on 12 September 2008, were collected from their homes by police officers from the Van police headquarters. The same evening, they were deported to Iran once again. The applicant, however, escaped this deportation by pure chance, as the police did not have his correct home address.

The deportation of the applicant and the other Uzbek nationals was brought to the attention of the national and international public through press releases from various NGOs and the UNHCR. In particular, seven human rights and refugee rights organisations, including Amnesty International, issued a press release in which they condemned the forced illegal deportation of the applicant and the other Uzbek nationals to Iran. Likewise, a Turkish parliamentarian issued a press release within the Parliament and criticised the removal as well as the existing refugee protection system in Turkey.

On an unspecified date the applicant’s representative sent letters to, inter alia, the Human Rights Commission of the Parliament of Turkey, the Human Rights Commission of the Van Governor’s office and the Ministry of the Interior.

On 26 November 2008 the head of the Human Rights Commission of the Parliament of Turkey replied to the applicant’s representative that the Ministry of the Interior had informed the Parliament, in a letter dated 11 November 2008, that the applicant had been deported to Iran, a safe third country, in compliance with the legislation in force.

In his reply dated 22 April 2009, in his capacity as head of the Human Rights Commission of the Van Governor’s office, the Deputy Governor of Van informed the applicant’s representative that the applicant and the other deportees had been removed to Iran in compliance with the legislation in force and that Iran was a safe third country where the applicant had lived before he had arrived in Turkey in 2007.

On 16 March 2010 the UNHCR Ankara Office sent a letter to the applicant’s representative, informing him that the UNHCR had learned that the applicant, along with a number of other Uzbek nationals, had been illegally deported to Iran and that the applicant’s asylum claim was under review. The UNHCR also informed the applicant’s representative that on 26 September 2008 they had sent a letter to the Turkish authorities requesting the latter to take the necessary measures to grant the applicant and other Uzbek nationals who had been deported on 12 September 2008 residence permits with a view to legalizing their status in Turkey pending the completion of the procedures with regard to their cases.

Since 2008, the applicant has been living in Turkey in hiding and his application for refugee status under the mandate of the UNHCR is still under consideration. On 4 December 2013 and 28 March 2014 he was interviewed by officers from the UNHCR’s Ankara office regarding his application for refugee status. He has not received any information from the Turkish authorities as to his request for asylum. The applicant cannot approach the Turkish authorities to apply for asylum or to obtain a temporary residence permit for fear of being deported to Iran, like the other Uzbek asylum seekers who were deported once again to Iran in October 2008. Moreover, he cannot appoint a lawyer to undertake the necessary legal and procedural actions on his behalf before the domestic authorities as he does not possess the necessary identity documents required to issue a power of attorney before a notary public.

When the applicant applied for asylum in Turkey in December 2007, he informed the authorities that he had been granted refugee status in Iran by the UNHCR. His application was registered and he was asked not to leave the city of Van.

On 14 February 2008 the applicant left Van and returned there on 26 August 2008. He subsequently repeated his asylum request.

On an unspecified date the applicant’s asylum request was assessed in the light of Article 33 of the Convention Relating to the Status of Refugees, the European Convention on Human Rights, the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the national legislation. He was subsequently deported to Iran, a safe third country, where he was recognised as a refugee by the UNHCR. According to a document signed by two police officers and one military officer, submitted by the Government, twenty-nine Uzbek and Afghan nationals, including the applicant, were deported on 12 September 2008.

According to the Government, the applicant was not deprived of his liberty. Moreover, his identity documents were not confiscated.

The applicant complained under Articles 3, 6 and 13 of the Convention that he had been unlawfully deported to Iran on 12 September 2008 without an individual assessment of his situation and claims, and whilst he was legally residing in Turkey, and that he had not been informed of the decision to deport him to Iran on 12 September 2008 and, thus, had had no effective domestic remedies to challenge it.

The Government submitted that the applicant’s claims were not substantiated.

The Court considers that this part of the application should be examined under Article 13 of the Convention alone. However, having regard to its reasoning which led it to conclude Article 3 of the Convention was breached in the present case, the Court finds nothing that would justify a separate examination of the same facts from the angle of Article 13 of the Convention. It therefore deems it unnecessary to rule separately on either the admissibility or the merits of the applicant’s complaints under this head (see M.D. and M.A., cited above, § 70).