No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

Aleš Pejchal;André Potocki;Angelika Nußberger;Dean Spielmann;Dmitry Dedov;Egidijus Kūris;Elisabeth Steiner;George Nicolaou;Guido Raimondi;Ineta Ziemele;Johannes Silvis;Josep Casadevall;Khanlar Hajiyev;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mark Villiger;Päivi Hirvelä;Paul Lemmens;Paul Mahoney;Robert Spano;Vincent A. De Gaetano

The applicant was born in 1980 and lives in Helsinki.

The applicant is a photographer and journalist who is employed by the weekly magazine Suomen Kuvalehti. On 9 September 2006 he was sent by his employer to take photographs of the demonstration which was being held in protest against the on-going AsiaEurope meeting (ASEM) in Helsinki. The demonstration was an exceptionally large one in the Finnish context and all media followed it closely. The applicant was to conduct an extensive report on the demonstration for the paper version of the magazine and also to publish it online immediately, once the demonstration had ended.

’ submissions, including the DVD material covering the Smash ASEM event (see paragraph 7 above) as well as the Helsinki District Court judgment (see paragraph 37 below).

On 30 August 2006, before the demonstration took place, the Finnish Security Intelligence made an assessment of the risk levels inherent in the upcoming Smash ASEM demonstration and alerted the Helsinki Police Department that the demonstration would be a hostile one and would not aim to highlight any clear political message. At that time the Police Department did not manage, despite all efforts, to establish contact with the organisers of the demonstration. The police based their subsequent actions, inter alia, on these grounds.

A similar risk assessment had also been made in the context of two earlier demonstrations which had taken place in Helsinki during the same year, both of which had turned violent. The first one was the EuroMayDay demonstration of 30 April 2006, when a march of approximately 1,500 persons evolved into a riot with projectiles being thrown and property damaged. Consequently, the Helsinki District Court found eight persons guilty of violent rioting and resisting the police by violence and imposed suspended prison sentences. A similar incident took place during the Helsinki Night of Arts on 24 August 2006 which also resulted in the destruction of property and violence and led to the detention of 56 persons.

On 8 September 2006 a so-called Dongzhou Coalition notified the police of the Smash ASEM demonstration. According to the report of the Deputy Parliamentary Ombudsman (see paragraph 34 below), the police did not have any information about the Dongzhou Coalition and it was thus unclear to them who the organiser was in reality. It appears from public sources that the said “coalition” was an informal group open to anyone who agreed with the idea defended by the Smash ASEM demonstration and who undertook not to bring any party emblems to the demonstration site.

The demonstrators announced that they were planning to march on 9 September 2006 between 5.45 p.m. and 9 p.m. from Kiasma Museum of Contemporary Art – an area of dense traffic – to the Helsinki Exhibition and Convention Centre where the ASEM summit was to be held, a distance of 4.9 kilometres. The announced march route was the following: Mannerheimintie – Kaivokatu – Siltasaarenkatu – Agricolankatu – Kaarlenkatu – Helsinginkatu – Läntinen Brahenkatu – Sturenkatu – Aleksis Kivenkatu – Ratapihantie – Asemapäällikönkatu – Ratamestarinkatu – Rautatieläistenkatu – ending at the park next to the Velodrome which is close to the summit venue. The theme of the demonstration was to oppose the ASEM summit, with some focus on human rights issues. In posters inviting people to take part in the demonstration, the demonstrators were asked to wear black clothing. The posters also portrayed a demonstrator throwing a Molotov cocktail and they encouraged would-be participants, inter alia, to “bring even a little bit of disorder also to the streets of Helsinki” (“tuoda edes hieman sekasortoa myös Helsingin kaduille”, att få även en liten bit av kaos också på gatorna i Helsingfors).

According to the Government, the police were able to make telephone contact with one of the organisers named as the contact person for the event. However, that person, acting on behalf of the organisers, refused to discuss matters relating, inter alia, to the conditions on which the demonstrators would be able to march from the event-site to the vicinity of the exhibition centre where the ASEM Summit was being held. This refusal extended also to police efforts to establish contact with the organisers at the event-site itself.

According to the Government, there was a separate area reserved by the police for media representatives to cover the event. It was located at Paasikivi Square, opposite the Kiasma Museum of Contemporary Art, on the other side of Mannerheimintie. The police, as standard procedure, had notified major Finnish media organisations of the Smash ASEM event and included the contact information of the police’s public relations unit, which was ready to discuss any questions the media might have about covering the event, including information about an area reserved for the media’s convenience. Furthermore, the Helsinki District Police public relations unit had reserved a senior officer to be present at that very same area to answer any questions media representatives might have, as well as to give interviews on the events that unfolded during the day.

The demonstration was to start at 6 p.m. on 9 September 2006. Some 500 bystanders, a core group of about 50 demonstrators and some 50 journalists congregated at the departure point of the march. The police had made security preparations for the event by deploying 480 police and border guard officers. By Finnish standards, the scale of the police preparations was exceptional.

At the start of the demonstration, bottles, stones and jars filled with paint were thrown at the public and policemen. Some demonstrators kicked and hit police officers. Apparently at around 6.05 p.m., policemen surrounded the area of the demonstration. At this point people were free to pass through the line of policemen. The police announced several times over loudspeakers that a peaceful demonstration was allowed to take place on the spot but that the crowd was not allowed to demonstrate by marching.

After the escalation of violence, the police considered at 6.30 p.m. that the event had turned into a riot. From 6.30 p.m. to 7.17 p.m. the police sealed off the area in an effort to contain the rioting. The crowd tried to break through the police defence line. However, during this time, the police cordon did allow families with children, and representatives of the media, to pass through. This passage was, at times, plagued by bottles and other projectiles being thrown at the spot where people were leaving.

The police announced over loudspeakers that the demonstration was stopped and that the crowd should leave the scene. This announcement was repeated several times. Hundreds of people then left voluntarily via several exit routes established by the police. When leaving, they were asked to show their identity cards and their belongings were checked.

The applicant claimed that the line of policemen surrounding the cordon was extremely tight and multi-layered. The visibility from outside the cordon to inside was practically non-existent. The police minibuses and detention buses also impeded visibility. At 7.15 p.m. the police started to set up a second, wider cordon and fenced off the whole immediate downtown area. It was not possible to see from nearby streets to the Kiasma area.

Some demonstrators were apprehended within the cordoned-off area by force. The apprehensions by the police were effected by using the "paint-chain" method, part of which includes the opening up of the police cordon to allow detaining officers to act, followed by that cordon’s immediate closure after the detained person is secured.

The police announced repeatedly that the crowd should disperse. The applicant claimed that he heard the police order that the area be cleared for the first time at 8.30 p.m. The applicant called his employer and they had a conversation about whether the applicant should leave the area. The applicant noted that on the basis of, inter alia, this conversation, he came to the conclusion that his presence inside the cordon was necessary.

Towards the end of the demonstration, the applicant maintained that he had placed himself between the police and the demonstrators. The police continued to order the crowd to disperse, stating that any person who did not leave would be apprehended. At about 9 p.m. a police officer told the applicant personally that he had one last chance to leave the scene. The applicant told the police officer that he was reporting for Suomen Kuvalehti and that he was going to follow the event to its end, after which the police officer had left him alone. The applicant thought that the police would not interfere with his work after he had given them this explanation.

By 9 p.m., about 500 people had left the scene via the police checkpoints. According to the applicant, about 20 demonstrators were still sitting on the ground in the middle of the first cordoned-off area, closely encircled by the police. The demonstrators held on to one another and were holding each other’s arms. The situation inside the cordon had already been peaceful for an hour at this point. After this, the police broke up the crowd of demonstrators and apprehended the protesters.

The applicant claimed that, before he was apprehended, he heard a police officer shout: "Get the photographer!" The applicant was standing next to a former Member of Parliament and taking photographs when he was apprehended. He told the apprehending officer that he was a journalist, which the police officer later confirmed. The apprehending officer stated during the pre-trial investigation that the applicant did not resist the apprehension and that he had asked to make a telephone call, which he had been allowed to do. The applicant called his colleague at the magazine, explaining that the police had detained him and that he did not know what was going to happen next. He thought that he would be released soon. The applicant had also told the apprehending police officer that he had cameras in his bag, which information was taken into account by the police officer: the applicant was allowed to put his camera equipment away in his camera bag. When the apprehending police officer had asked for identification, the applicant had presented his press card. Another police officer present during the applicant’s apprehension stated during the pre-trial investigation that the applicant did not resist apprehension but that he had not heard the applicant identify himself as a journalist. The apprehending officer also testified that he had filled in the apprehension document, giving the reasons for the applicant’s apprehension and recording his personal information. According to the pre-trial investigation report, the basis for the applicant’s apprehension was contumacy towards the police.

The applicant was then taken to a bus for detainees. In the bus, he allegedly explained to the police again that he was a magazine photographer. The applicant was taken to the police station where he asked to speak with the chief constable. He allegedly explained again that he was a journalist but his requests were ignored. He claimed that he “lifted” his press card and started to wear it visibly on his chest thereafter. The applicant also claimed that the receiving police officer at the police station had to remove his press card which was hanging around his neck. According to the applicant, the receiving police officer at the police station was therefore aware that he was a journalist. While in the custody cell, the applicant allegedly shouted also to passing police officers that they had apprehended a journalist, but he was ignored.

The applicant claimed that his camera equipment and memory cards had been confiscated. However, the Government maintained that, as soon as the police had found out that the applicant was a member of the press, his camera, memory cards and other equipment were immediately treated as journalistic sources and were not confiscated. He had been able to retain the photographs and no restrictions on the use of the photographs had been imposed on him by any authority at any stage. According to the report of Deputy Parliamentary Ombudsman (see paragraph 34 below), the police had checked the content of the detainees’ mobile telephones. However, it is not clear whether the applicant’s mobile telephone was checked and whether his memory cards were inspected.

The police kept the applicant in detention from 9 September at 9.26 p.m. until 10 September at 3.05 p.m., that is, for 17.5 hours. He was interrogated by the police on 10 September between 1.32 p.m. and 1.57 p.m.

The applicant’s employer, the editor-in-chief of the magazine, apparently learned about the applicant’s apprehension and that he was being held in police custody. It would appear that he telephoned the police station but was given no information concerning the applicant’s apprehension. According to the applicant, it was only when the editor-in-chief called a senior official (whose name the applicant did not mention in his submissions) in the Ministry of Interior the following day that preparations were made for the applicant’s release.

The police apprehended altogether 128 persons at the demonstration site. The police released minors (sixteen individuals) after a few hours’ apprehension. The majority of those who were apprehended were released on 11 September 2006. The applicant was the seventh detainee to be interrogated and the sixth to be released after minors. The last suspect was released on 12 September 2006 at 11.07 a.m.

Both domestic and international media reported the event and the police measures widely. The matter was also the subject of a wide-ranging investigation by the Deputy Parliamentary Ombudsman in 2006 and 2007. However, due to procedural rules, the Deputy Parliamentary Ombudsman could not investigate the applicant’s case because the criminal proceedings were pending against him at that time.

It appears from the report of the Deputy Parliamentary Ombudsman of 9 September 2006, inter alia, that the police did not have any information about the Dongzhou Coalition and that it was thus unclear to them who the organiser of the demonstration was in reality. It also appears that the police checked the content of the detainees’ mobile telephones. Moreover, the Deputy Parliamentary Ombudsman criticised, inter alia, the fact that there had been an insufficient number of check-points in relation to the number of people, and that the three-hour duration of holding people within the cordoned-off area was unnecessarily long. The Deputy Parliamentary Ombudsman also questioned the legality of the security checks.

On 5 February 2007 the police informed 37 suspects that, for their part, the preliminary investigation was discontinued and that their cases would not be referred to the public prosecutor for the consideration of charges. The public prosecutor brought charges against 86 persons altogether.

On 23 May 2007 the public prosecutor brought charges against the applicant for contumacy towards the police (niskoittelu poliisia vastaan, tredska mot polis) under Chapter 16, section 4, subsection 1, of the Penal Code (rikoslaki, strafflagen).

On 17 December 2007 the Helsinki District Court (käräjäoikeus, tingsrätten) found the applicant guilty of contumacy towards the police under Chapter 16, section 4, subsection 1, of the Penal Code but did not impose any penalty on him.

The applicant stated before the court that he had heard the orders to disperse at around 8.30 p.m. but had understood that they concerned only the demonstrators. The court found it established that the police actions had been legal and that the applicant had been aware of the orders of the police to leave the scene but had decided to ignore them. It appeared from the witness statements given before the court that the applicant had not said or indicated to a police officer standing nearby at the time of the apprehension that he was a journalist. According to this police officer, this fact only became known to him when the relevant magazine appeared. It appeared also from the witness statement of another journalist that he and a third photographer, who had been in the sealed-off area, had been able to leave the scene without consequences just before the applicant was apprehended. This last remaining journalist witnessed that he had taken his last photograph at 9.15 p.m. and left the area just 2 to 3 minutes before the applicant’s apprehension took place. The District Court found it further established that the police orders had been clear and that they had manifestly concerned everyone in the crowd, which consisted of demonstrators as well as bystanders and other members of the public.

Moreover, the District Court examined the justification of the interference of the applicant’s right under Article 10 of the Convention in the following manner:

It is disputed whether Pentikäinen had, as a journalist and on the basis of his freedom of expression, the right not to obey the orders given to him by the police. Pentikäinen had been prepared to use his freedom of expression as a photographer. The police orders to disperse therefore restricted Pentikäinen’s freedom of expression. The question is whether there was a justification for this restriction.

According to Article 12 of the Constitution and Article 10 of the European Convention of Human Rights, everyone has the right to freedom of expression. It includes a right to publish and distribute information without the interference of the authorities. According to the Constitution, more detailed provisions on the exercise of the freedom of expression are laid down by an Act. In accordance with Article 10 § 2 of the European Convention of Human Rights, the exercise of the freedom of expression may be subject to formalities, conditions, restrictions or penalties which are prescribed by law. According to the said Article and the case-law of the Human Rights Court, three requirements must be taken into account when assessing the restrictions: 1) the restriction must be prescribed by law, 2) it must have an acceptable reason and 3) it must be necessary in a democratic society.

First of all, the District Court notes that the police have power, in accordance with sections 18 and 19 of the Police Act, to cordon off an area and to disperse a crowd. On the strength of this power, the police gave an order to disperse to the persons remaining in the Kiasma-Postitalo area, which order Pentikäinen also refused to follow. The restriction was thus prescribed by law.

Secondly, the District Court considers that the powers stipulated in sections 18 and 19 of the Police Act relate to the maintenance of public order and security and to the prevention of disorder or crime, and that in this case the order to disperse given to, among others, Pentikäinen relates to the prevention of disorder. The restriction has therefore an acceptable reason.

Thirdly, it must be examined whether the order to disperse given to Pentikäinen and the obligation to follow it was necessary in a democratic society. The District Court finds that it was necessary to stop the situation at Kiasma by ordering the crowd to disperse and by asking the persons to leave the area.

The District Court concludes that, in the case at hand, the conditions for restricting Pentikäinen’s freedom of expression by ordering him to disperse along with the remaining crowd were fulfilled. The District Court has taken a stand on the elements having an effect on the punishability of Pentikäinen’s act below.

The case referred to by Pentikäinen (Dammann v. Switzerland, 25 April 2006) concerned a situation in which a journalist had been convicted in Switzerland of incitement for a breach of official secrecy when he had asked for and received information from an administrative assistant in the public prosecutor’s office about some registry entries. The Court found that the applicant’s conviction could prevent journalists from participating in public discussions about questions of general interest. The conviction was not in proper proportion to the aims sought and Article 10 of the Convention had thus been violated. The District Court finds that the cited case is not similar to the case at hand.

However, relying on Chapter 6, section 12, of the Penal Code, no penalty was imposed on the applicant as the offence was comparable to “an excusable act” (anteeksiannettavaan tekoon rinnastettava, jämförbar med en ursäktlig gärning). The District Court found that:

The punishment of Pentikäinen is waived in accordance with Chapter 6, section 12 § 3 of the Penal Code because the offence, due to special reasons related to the act, can be deemed comparable to an excusable act. As a journalist, Pentikäinen was forced to adapt his behaviour in the situation due to the conflicting expectations expressed by the police, on the one hand, and by his profession and employer, on the other hand.

By letter dated 23 January 2008 the applicant appealed to the Helsinki Court of Appeal (hovioikeus, hovrätten), claiming that the District Court should have dismissed the charges against him. He argued that his apprehension and the fact that he was found guilty were against the Constitution and Article 10 of the Convention. The applicant was a journalist and he had not participated in the demonstration or caused any disorder. The District Court had not reasoned why his apprehension and conviction were “necessary in a democratic society” and had thereby failed to justify the interference.

On 30 April 2009 the Court of Appeal rejected the applicant’s appeal without giving any further reasons.

By letter dated 24 June 2009 the applicant further appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Court of Appeal.

On 1 September 2009 the Supreme Court refused the applicant leave to appeal.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Erik Møse;Julia Laffranque;Khanlar Hajiyev

The applicant was born in 1949 and lived in Aksay.

He sued Russian military authorities in domestic courts, seeking recovery of pension arrears.

On 12 August 2004 the Rostov-on-Don Military Circuit Court granted the applicant’s claim and ordered the Military Commission of the Rostov Region (“the military commission”) to pay the applicant 204,870.78 Russian roubles. The judgment became final on 23 August 2004.

On 23 August 2004 the respondent military commission received a writ of execution in relation to the judgment debt from the court and at some point issued a payment order pursuant to the judgment in the applicant’s favour. However, that order was subsequently revoked and the writ of execution was seized due to a check held by a military prosecutor’s office and no funds were transferred to the applicant’s account (see also paragraph 13 below).

At some point the respondent authority sought restoration of the term for challenging of the judgment by way of the supervisory review procedure. On 1 December 2006 the Rostov-on-Don Military Circuit Court rejected that claim.

In response to the applicant’s several requests, the authority in charge of the payment submitted that the writ of execution was not in its possession and therefore it was unable to pay the judgment debt. At some point the applicant requested a court to issue a duplicate of the writ of execution and to restore the time-limit for its submission for execution. In its decision of 14 April 2009 the Rostov-on-Don Military Circuit Court confirmed that the writ of execution had been seized during the inquiry. However, the court found no reasons to consider the writ of execution as being lost as it was apparently in the possession of the military prosecutor’s office. The court accordingly decided that no duplicate could be issued as the time-limit for its submission for execution had expired. The court also refused to reinstate the missed term as the applicant could have requested the prosecutor’s office to return him the document in question and after that submit it for execution. On 10 June 2009 the North Caucasus Circuit Military Court upheld the decision on appeal.

The judgment of 12 August 2004 remained unenforced up to the date of the applicant’s death in 2010. In December 2011 his widow obtained a certificate issued by a public notary by which she was officially recognised as the applicant’s successor in respect of his right to claim the judgment debt. Then she sought in courts substitution of her late husband in the enforcement proceedings. On 10 August 2012 the Rostov-on-Don Military Circuit Court rejected her claim, stating that the deceased applicant could not be substituted because no execution proceedings had ever been initiated, no writ of execution had been submitted for execution, and the threeyear term for its submission and initiation of the execution proceedings had expired. The applicant’s widow sought in court reinstatement of the term for appealing against the decision of 10 August 2012. It follows from the parties’ later submissions that the request was granted and she was able to challenge the decision on appeal. The parties have not provided any information on the outcome of those proceedings.

The judgment remains unenforced to date.


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

Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1979 and is currently detained in the Trenčín hospital for charged and convicted persons.

The applicant was arrested on 1 January 2012 and charges were brought against him the following day for the criminal offence of endangering public safety. The charge was based on the suspicion that he had made home-made explosive devices; that he had sent some of them, together with written threats, to veterinarians and the head office of a supermarket chain; and that he had planted one of the devices next to a fast food outlet and had allowed it to explode with a view to promoting animal rights.

On 4 January 2012 the Košice I District Court remanded the applicant in custody pending trial to prevent him from continuing his criminal activity. The District Court took into account, inter alia, the nature of the criminal charge and the fact that the applicant had been having long-term psychiatric treatment. An interlocutory appeal by the applicant was unsuccessful.

Courts at two levels of jurisdiction reviewed and confirmed the lawfulness of the applicant’s detention on five occasions as follows.

Between 28 March 2012 and 21 May 2012 courts at two levels dismissed applications by the applicant for release. They relied on a risk of reoffending and took into account new charges that had been brought against him as well as the testimony of various witnesses and victims. In that connection, they referred to evidence that the applicant had been planning his attacks for a long time and in a systematic way. On 3 May 2012 the domestic courts added new grounds for his detention, namely a risk that he might abscond. That was based on a statement by a witness who had allegedly said that the applicant had declared that he would try to flee if he was arrested. The evidence in the case, in particular the applicant’s computer, suggested that he had “entertained the idea of counterfeiting an ID”.

On 11 June 2012 the District Court prolonged the applicant’s detention by five months (until 1 January 2013) on the grounds that the investigation was not finished, that further charges had been brought against him since May 2012, and that the criminal charges had been reclassified as a crime of terrorism and the acquisition and possession of firearms. The domestic courts concluded that his criminal case was complex owing to the extent and nature of his criminal activity and repeated the grounds for his detention, namely the possibility of his reoffending and absconding. The court also ordered a report by an expert on extremism and terrorism. That decision was upheld on appeal.

At the pre-trial stage the applicant was committed to the hospital for charged and convicted persons in Trenčín on two occasions, namely between January and February 2012 and March and June 2012 because, inter alia, he had demonstrated signs of anxiety, made threats of suicide and needed to have his mental state examined.

On 1 October 2012 the applicant was indicted to stand trial on the above charges before the District Court.

Between 3 October and 27 December 2012 the applicant applied two more times for release to courts at two levels of jurisdiction. Given the serious accusations made against him in the meantime (on 1 October 2012) for crimes including terrorism, the courts upheld both grounds for his continued detention. In addition, they referred to a witness statement that the applicant had written a will where he had expressed the alleged intention to commit a terrorist suicide attack. Furthermore, the courts rejected bail and guarantees of supervision offered by the applicant’s parents since they had been unable to prevent the crimes while the applicant had lived in their house.

The District Court held seven hearings in the criminal case against the applicant. It examined oral and documentary evidence, including evidence from several experts. It delivered its judgment on 19 June 2013, finding the applicant guilty of the charges and sentencing him to twenty-five years in prison. However, on 30 October 2013 the Regional Court quashed the judgment following an appeal by the applicant and remitted the case to the District Court for re-examination.

The Regional Court observed that in the course of the appellate proceedings, on 24 October 2013, the applicant had submitted a report by two certified experts concluding that he had long been suffering from a mental schizotypal disorder preventing him from understanding the illegal nature of his behaviour and from controlling it (“the second expert report”). Those conclusions were contrary to those in a report by two other experts at the pre-trial stage of the proceedings (“the first expert report”), which had concluded that the applicant was not suffering from a mental illness but merely a personality disorder. Resolving that contradiction was imperative in order to establish whether or not the applicant was criminally responsible. The Regional Court therefore instructed the District Court to obtain a third opinion from an expert institute. In addition, it ordered the lower court to resolve an issue concerning the legal classification of the applicant’s impugned actions.

In the meantime, on 4 September 2013, while the criminal proceedings were pending on appeal, the Regional Court decided to keep the applicant in detention on the same grounds as before (see paragraph 14 above).

The subsequent course of the trial is described in paragraphs 27 et seq. below.

After the verdict was quashed on appeal and remitted to the District Court for re-examination, the applicant, assisted by his lawyer, applied for release on 23 December 2013. He referred to his mental disorder as established in the second expert report of 24 October 2013. He added that he had been seeing a psychiatrist since the age of 14 and needed medicine on a daily basis to prevent suicidal thoughts. He could not live without that medicine, even in detention, as he required treatment and sessions with a psychiatrist. He submitted that there was no risk of him absconding if at large as he had only had a basic education, had no financial means, no job, had never travelled alone outside his home town, and was completely dependent on his parents, emotionally, financially and for everyday care. Moreover, there was no risk he would continue his criminal activity if he was under medication and being properly treated, or, alternatively, if he was committed to a psychiatric institution, as he feared for the future after the charges had been brought against him.

The applicant’s parents supported his application for release and offered to stand as guarantors of his pledge that he would live in accordance with the law. They also supported his request that his detention be replaced by supervision by a parole officer.

On 10 January 2014 the District Court heard the applicant, his lawyer, and the Public Prosecution Service as regards his request for release. According to the transcript of the hearing, the applicant and his counsel reiterated and further developed their arguments made in the application and submitted that his mental condition meant that his absconding was not realistic.

The Government’s observations show that on the same date the District Court sent a letter to the director of the detention centre in Košice where the applicant was being held, asking for information about the applicant’s state of health. It enquired whether the applicant was being provided with the drugs he had been prescribed and whether the detention centre was able to provide the applicant with his treatment. The director of the detention centre replied on the same day in the affirmative.

On 13 January 2014 the District Court dismissed the applicant’s application to be released and his supplementary requests, a decision that was upheld by the Regional Court on 29 January 2014 after an interlocutory appeal by the applicant.

The courts concluded that there was still a strong suspicion against the applicant, which added to the reasons for keeping him detained. They observed that he had created explosives and contemplated where to plant them over a long time and in a systematic way. He had lived with his parents and a search of the home they shared had shown that they had clearly not been aware of his illegal activities and had been unable to prevent them. The applicant faced a particularly severe potential penalty, had declared openly that he would try and flee in case of arrest and a search of his computer had suggested that he had contemplated counterfeiting an ID.

Regarding the nature, scope and seriousness of the alleged offences and the applicant’s character, the courts concluded that the conditions for a restriction of liberty still existed. In addition, they observed that the relevant authorities had proceeded with the case expeditiously and with due diligence.

Moreover, the courts found that the requirements for alternative measures, such as a parental guarantee, a pledge by the applicant or replacing his detention with supervision had not been met.

There was no separate consideration of the applicant’s mental condition as such. The correspondence between the district court and the director of the detention centre was not mentioned in the courts’ decisions.

The applicant subsequently turned to the Constitutional Court with a complaint under Article 127 of the Constitution, alleging a violation of his rights, inter alia, under Article 5 §§ 1 (c), 3 and 4 of the Convention, or their constitutional equivalents.

As to the substance, he raised arguments that were similar to those in his application to be released. He added that the courts had failed to take into account the specific nature of his situation, consisting of his mental disorder; that the length of his detention had been excessive and based on irrelevant and insufficient reasons; and that the only matter open to debate was whether he was legally insane, which impacted on his criminal liability.

On 2 April 2014 the Constitutional Court dismissed the complaint as manifestly ill-founded. It endorsed the reasons given by the ordinary courts and concluded that they had been relevant and sufficient to keep the applicant detained. It gave no answer to his argument concerning the specific nature of his situation.

Following remittal of the case by the Regional Court, the District Court asked the expert institute on 9 December 2013 to produce a report on the applicant’s mental condition. On 20 March 2014 it also ordered that the applicant be admitted to the psychiatric department of the Trenčín hospital for charged and convicted persons in order to have his mental health examined. The report was filed on 1 July 2014, and the District Court heard the case between January and July 2014.

On 10 July 2014 the District Court again found the applicant guilty. The Regional Court dismissed an appeal by the applicant on 10 October 2014. He was sentenced to twenty-five years’ imprisonment, thirty-six months’ protective supervision and payment of damages. No ordinary appeal being available, the judgment became final and binding.

Nevertheless, the applicant appealed on points of law and the Supreme Court quashed the District and Regional Court judgments owing to breaches of the law to the applicant’s disadvantage. The matter was remitted to the District Court for fresh examination. The Supreme Court provided an extensive interpretation of the criminal offence of terrorism and concluded that the lower courts’ legal interpretation of the case had been wrong as the applicant’s motive had not included elements of the crime of terrorism.

Subsequently, the case returned to the District Court and the applicant remained detained pending trial as of 14 April 2016.

Taking into account the Supreme Court’s judgment and its legal interpretation of the crime in question, the District Court once again found the applicant guilty of, inter alia, the criminal offence of endangering public safety, the illegal acquisition, possession and trafficking of firearms, the making of serious threats, extortion, and attempted bodily harm and sentenced him to twenty-three years and six months in prison on 29 September 2016. It also ordered protective supervision lasting thirty-six months. The applicant appealed and those proceedings are still pending.

On 29 November 2016 the applicant was transferred from the Košice detention centre to the hospital in Trenčín after he reportedly collapsed.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

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

The applicant was born in 1936.

In the summer of 2005, the applicant was hired as a guard to accompany a shipment of some sixty tonnes of onions from Tajikistan to Siberia. After a nine-day journey by rail, the cargo arrived at Rubtsovsk station in the Altay Region. Using sniffer dogs, Russian customs officials found concealed rubber containers inside onion skins that held a total of more than seventy-three kilograms of heroin.

At about 9 p.m. on 1 August 2005 the applicant was taken to the organised crime department at the Rubtsovsk police station and placed in a room (no. 26) under police guard. A record of his arrest was not drawn up. The applicant spent the night on a mattress in the corridor.

At 8.50 a.m. on 2 August 2005 a criminal case was instituted in connection with the uncovered shipment of drugs. The investigator, L., accepted the case at about 11 a.m. and interviewed the applicant. He was searched, and a small package of heroin was found concealed in his bag.

Later that day a record of arrest was drawn up, and the applicant was formally remanded in custody on a charge of drug smuggling. According to the record, the applicant was arrested at 8.20 p.m. on 2 August 2005 at the Rubtsovsk police station.

During the applicant’s trial, his counsel repeatedly raised the issue of his unrecorded detention from 1 to 2 August 2005 and put questions to the police officers, who were heard as witnesses, about the events following the applicant’s apprehension. According to the hearing records, they replied as follows:

The chief of the drug control department, M., stated:

“Rakhimberdiyev was taken to the department. While [there], he remained under guard. He stayed in the department for five hours. Pending [his placement in] the IVS (temporary detention cell), he was not allowed to go outside. During the twenty-four hour period of detention, Rakhimberdiyev did not go to the toilet, he did not ask to.”

The deputy chief of the organised crime department, Ch., stated:

“Rakhimberdiyev could not get up and go out because we had to take a decision on the basis of the documents. I cannot say what the grounds for keeping him in the corridor were.”

An operative of the drug control department, Shl., testified:

“Rakhimberdiyev could not go out because the door was locked, he was under guard.”

An officer of the special-purpose department of the criminal police, B., stated:

“Rakhimberdiyev could not leave because I said so – the case was in progress, the expert was working. I do not know what the grounds for his detention were ... I stood guard over him so as to prevent him from going out ...”

On 9 March 2006 the Rubtsovsk Town Court found the applicant guilty of drug smuggling with intent to supply and sentenced him to ten years’ imprisonment in a high-security facility.

On 18 May 2006 the Altay Regional Court acquitted the applicant on the charge of smuggling, but upheld his conviction in the part concerning the possession of twenty-seven grams of heroin. The sentence was commuted to three years’ imprisonment.

In the meantime, counsel for the applicant complained to the Rubtsovsk town prosecutor about the applicant’s unrecorded detention from 1 to 2 August 2005. The prosecutor forwarded the complaint to the chief of the organised crime department for verification.

On 13 April 2006 the chief of the organised crime department approved the conclusions of an internal inquiry a senior operative had carried out into the allegation of unlawful detention. The inquirer took a statement from the chief of the drug control department, M., who claimed that the applicant had been released on the night of 1 August 2005 but had asked to stay at the police station overnight because he had had nowhere else to go. Further statements from officers Ch., Shl., B., Me., and Shn. corroborated M.’s claims. Without questioning the applicant, the inquirer concluded that the allegation of unlawful detention was unsubstantiated.

By a decision of 20 April 2006, an investigator from the Rubtsovsk town prosecutor’s office refused to open a criminal investigation into the applicant’s complaint of unlawful detention. He referred to the statements of the police officers, who had claimed unanimously that the applicant had refused to leave because he had had nowhere else to go, and that they had allowed him to stay overnight in the corridor, where he had slept on a mattress. The investigator did not interview the applicant, but reached the conclusion that his complaint to the prosecutor was to be considered “a way of seeking to avoid liability for the particularly serious crime he had committed”.

Counsel for the applicant challenged the decision before a court.

On 12 May 2006 the Rubtsovsk Town Court held that the investigator’s decision had not been lawful or justified:

“The descriptive part of the decision contradicts the findings of the investigation. Thus, [the investigator] established that on 1 August 2005 Rakhimberdiyev had been detained on suspicion of committing a crime and that his detention was only formalised on 2 August 2005 at 8.20 p.m.

The investigator did not assess all the documents in the case file: the expert report dated 1 August 2005; the judgment of 9 March 2006, which established that on 1 August 2005 Rakhimberdiyev had been taken to the organised crime department at the Rubtsovsk police [station] and had remained there under continuous guard until his formal arrest at 8.20 p.m. on 2 August 2005 ... The decision does not refer to the crime scene inspection report, which indicated that the scene had been inspected at 5.45 p.m. on 1 August 2005. All the witnesses testified that Rakhimberdiyev had been taken to the police station immediately after the inspection of the crime scene and had stayed there of his own will, which is contradicted by the statement of the convict.

The investigator merely reproduced the testimony of the police officers in his decision, without giving a legal assessment. The actions of the police officers, which were incompatible with Article 92 § 1 of the Code of Criminal Procedure, were not justified.”

On 1 July 2006 another investigator from the Rubtsovsk town prosecutor’s office refused to open a criminal investigation, reproducing verbatim the text of the decision of 20 April 2006. On 21 July 2006 the town prosecutor quashed that decision and ordered an additional inquiry.

Further to a complaint by counsel, on 24 July 2006 the Town Court held that the town prosecutor had unduly delayed the inquiry into the applicant’s complaint.

On 2 August 2006 a senior investigator from the town prosecutor’s office again refused to open a criminal case. He found that it could not be shown to the required standard of proof that the applicant had stayed in the police station against his will.

On 10 August and 19 October 2006 respectively, the Rubtsovsk Town Court and Altay Regional Court summarily upheld the investigator’s decision.


No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms;Article 6-3-c - Defence in person) (Article 6 - Right to a fair trial;Article 6-3-c - Defence in person;Legal assistance of own choosing)

Aleš Pejchal;András Sajó;Angelika Nußberger;Guido Raimondi;Helena Jäderblom;Iulia Motoc;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Marko Bošnjak;Mārtiņš Mits;Nona Tsotsoria;Paulo Pinto De Albuquerque;Síofra O’Leary;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1944 and lives in Viana do Castelo (Portugal).

The applicant is a lawyer by training and an auditor by profession. From 1993 onwards, he was no longer authorised to practise as a lawyer. By a decision of the Bar Council of 24 September 1993, the applicant was suspended from the roll, as the exercise of the profession of lawyer was considered to be incompatible with his practising as an auditor. This decision was published in the Official Gazette in June 2000. When the applicant ceased his activity as an auditor in April 2016, he continued to be suspended from the Bar Council’s roll until at least the end of 2016 as the result of a disciplinary sanction imposed on him for having practised as a lawyer while not being authorised to do so.

On 28 February 2008, in the context of a set of civil proceedings in which he was nevertheless acting as a lawyer, the applicant criticised the decisions taken by the judge hearing the case, saying that they were not worthy of a judge and that a judge could not lie or omit the truth in the exercise of his functions. The judge in question filed a complaint for insult with the public prosecutor’s office. It is not clear from the material before the Court on what basis the applicant was acting as a lawyer in the context of those proceedings given the suspension from the roll referred to above.

On 10 February 2010 the public prosecutor’s office at the BaixoVouga District Court filed the prosecution’s submissions against the applicant on a charge of insulting a judge. As the applicant had not instructed a lawyer, the public prosecutor’s office appointed counsel on the basis of Article 64 of the Code of Criminal Procedure (CCP) to conduct the applicant’s defence.

On 12 March 2010 the applicant lodged a request with the BaixoVouga Criminal Investigation Court for the opening of adversarial investigation proceedings (abertura de instrução; see paragraph 39 below). He also sought leave to replace his officially appointed defence counsel and represent himself.

In an order of 7 September 2010 the court agreed to open the investigation but dismissed the request for officially appointed defence counsel to be replaced and for the applicant to conduct his own defence. It held that the applicant was not entitled to act in the proceedings without the assistance of defence counsel. The court held that under the provisions of Portuguese law, in particular Article 32 of the Constitution and Articles 64 § 3 and 287 § 4 of the CCP (see paragraphs 28, 33 and 40 below), the defendant had the right to be represented by independent counsel, a right which would not be made effective if self-representation were to be allowed. Referring to the Constitutional Court’s case-law on the subject, the court found that a defendant who was a lawyer could therefore not act in proceedings as his own counsel.

The applicant lodged an appeal with the Coimbra Court of Appeal against the order of 7 September 2010, challenging the decision not to allow him to represent himself in the criminal proceedings.

On 21 December 2010 the Coimbra Court of Appeal dismissed the applicant’s appeal. It considered the appeal to be admissible despite the fact that it had been lodged by the applicant in person, as it concerned the very issue whether the applicant, as the defendant, was entitled to conduct his own defence. The Court of Appeal stressed that Portuguese law on criminal procedure did not allow the procedural status of defendant to be combined with that of defence counsel in the same proceedings. It required that the defendant be assisted by defence counsel at the hearing before the investigating judge and at the trial in all cases where the proceedings concerned could give rise to a custodial sentence or a public-safety detention order. This reflected the premise that the accused would be better defended when the defence was conducted by a legal professional trained in advocacy. The latter, unencumbered by the emotional burden weighing on a defendant, could provide a lucid, dispassionate and effective defence. The law on criminal procedure was thus intended not to place limits on the defence’s action, but to support the proper defence of the accused.

On 11 May 2012 the Constitutional Court decided that it was not necessary to adjudicate on the constitutional appeal lodged by the applicant in person, in which he had complained about the lower courts’ refusal to grant him leave to represent himself. The Constitutional Court found that the appeal had been neither signed nor endorsed by court-appointed defence counsel. The latter had not replied to the Constitutional Court’s query of 11 April 2012 as to whether she endorsed the constitutional appeal signed by the applicant himself.

On 20 September 2012 the Baixo-Vouga investigating judge held a hearing (debate instrutório), of which the applicant had been notified in person. The judge had previously refused to adjourn the hearing at the applicant’s request, finding that the Court of Appeal had already given a final ruling on the applicant’s application to represent himself. The applicant failed to attend the hearing, at which his court-appointed counsel was present. The investigating judge confirmed the charge against the applicant and referred the case for trial (despacho de pronúncia) before the Baixo-Vouga Criminal Court.

On 12 December 2013 the Baixo-Vouga Criminal Court, following a hearing which the applicant again did not attend but at which his court appointed defence lawyer was present, found the applicant guilty of aggravated insult (see paragraph 50 below) and ordered him to pay 140 dayfines of nine euros (EUR) each as well as the costs of the proceedings.

The applicant, who at no point requested legal aid to cover the cost of his trial, court-appointed counsel or counsel of his own choosing, was ordered, in particular, to pay costs amounting to EUR 150 for his representation by court-appointed counsel. He did not pay these costs and the execution of the cost order was later discontinued for lack of assets which could be seized.

In an order dated 1 May 2014 the Baixo-Vouga Criminal Court rejected an appeal by the applicant against the judgment as inadmissible, on the ground that the appeal had not been signed by court-appointed defence counsel or by a lawyer instructed by the applicant. It confirmed that, as had previously been decided in a final decision, the applicant, as the defendant, did not have the right to represent himself in the proceedings.

By an order dated 18 November 2014 the Porto Court of Appeal, acting through its President, dismissed a complaint lodged by the applicant in person against the order of the Baixo-Vouga Criminal Court.

The Court of Appeal reiterated that, according to Portuguese law and well-established case-law, defendants in criminal proceedings, even if they were themselves lawyers, could not represent themselves but had to be assisted by defence counsel. It stressed that, as had also been argued by the General Council of the Bar Association in Opinion No. E-21/97 (see paragraphs 59-60 below), the provision of a criminal defence constituted a public-order interest. Therefore, the right to a defence could not be waived, even if this meant imposing a defence lawyer on the accused. Moreover, in adversarial proceedings the powers vested by law in the defence were incompatible in many situations with the position of the defendant. This was also clearly the case at the trial, taking into account, for example, the places to be occupied in the courtroom, the wearing of a gown and the cross-examination of witnesses.

The Court of Appeal noted that the Constitutional Court had repeatedly confirmed, in particular in judgments nos. 578/2001 and 196/2007 (see paragraphs 52-55 below), that this interpretation and the corresponding legislation – including Article 64 § 1 (d) of the CCP, which stipulates that only defence counsel can lodge appeals (see paragraph 33 below) – was in keeping with the Constitution. Likewise, this approach was not in breach of the International Covenant on Civil and Political Rights (ICCPR) or of the Convention. In Portugal, the accused had an array of procedural rights which went beyond the minimum standards guaranteed by these international instruments.

The Court of Appeal explained that Portuguese law on criminal procedure granted accused persons ample opportunity to defend themselves in person. The defendant had a very comprehensive right to intervene in person at any time in the proceedings in order to make requests, offer points of clarification, reply, explain or submit statements (see, in particular, Articles 61 § 1 (b), 98 § 1, 272 § 1, 292 § 2, 332, 341(a) and 343 §§ 1 and 2 of the CCP; paragraphs 30, 42 and 44 below). He also had the right to be the last person to address the court, immediately following the pleadings and before delivery of the judgment (see Article 361 § 1 of the CCP, paragraph 45 below). There was a distinction between, and a dual safeguard emanating from, the mandatory instruction of a lawyer to ensure the accused’s “technical” defence and the possibility for the accused to be present and to intervene in the proceedings.

Lastly, the Court of Appeal noted that, having no valid reasons to depart from an interpretation rooted in case-law and legal literature, Portugal had not amended its law in this regard either before or after the Views adopted in 2006 by the United Nations Human Rights Committee (see paragraphs 63 et seq. below).

As the applicant had not appointed counsel following his application to have the order of 18 November 2014 quashed, the Baixo-Vouga Criminal Court’s judgment of 12 December 2013 became final on 6 January 2015.

According to the material before the Court, the applicant did not call into question the qualifications or quality of the court-appointed lawyer at any stage in the proceedings before the domestic courts.


CASE OF MAGEE AND OTHERS v. THE UNITED KINGDOM

Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-3 - Brought promptly before judge or other officer;Conditional release)

George Nicolaou;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The first applicant was born in 1972 and lives in Belfast. The second applicant was born in 1967 and lives in Lurgan. The third applicant was born in 1978 and lives in Craigavon.

On 14 March 2009 the first and third applicants were arrested under section 41 of the Terrorism Act 2000 (“the 2000 Act”) on suspicion of involvement in the murder of a police officer on 9 March 2009. They were detained at Antrim police station on the same day. The first applicant was interviewed twice on 15 March 2009 and once on 16 March 2009; the third applicant was interviewed three times on 15 March 2009 and once on 16 March 2009.

On 16 March 2009 the Director of Public Prosecutions (“DPP”) made applications to the County Court under paragraph 29 of Schedule 8 to the 2000 Act for warrants of further detention in respect of both applicants in order to carry out questioning and to conduct forensic examinations. The first applicant gave evidence on oath in the course of the hearing. Following the hearing, the County Court Judge granted warrants authorising a five-day extension of detention.

Each of the applicants was interviewed on twelve occasions in the following five days.

On 21 March 2009 the DPP made applications to the County Court under paragraph 36 of Schedule 8 to the 2000 Act for seven-day extensions to the periods specified in the warrants for further detention. The extensions were sought in order to facilitate further questioning of the applicants once the results of additional forensic tests were obtained. At separate hearings on 22 March 2009 a police Superintendent gave evidence on oath as to the necessity of the extensions and arguments were heard on behalf of the first and third applicants.

Following the hearings Her Honour Judge Philpott QC delivered a written judgment in respect of the first applicant and an ex tempore decision in respect of the third applicant. She granted both applications, authorising the first applicant’s continued detention until 7.20 on 28 March 2009 and the third applicant’s continued detention until 5.52 on 28 March 2009. In her reasoning, Judge Philpott noted that the relevant forensic evidence was central to the investigation and that the investigation was being carried out diligently and expeditiously.

In the rulings Judge Philpott considered whether the 2000 Act or Article 5 of the Convention gave the court deciding whether or not to grant an extension of detention an express or implied power to examine the lawfulness of the arrest or to grant bail. She concluded that it did not as the 2000 Act only gave the judge the power to decide whether or not an extension of detention was necessary. Consequently, she had to confine herself to the issue of whether or not it was necessary to extend detention beyond forty-eight hours for investigative purposes and any issue as to the lawfulness of the arrest would have to be determined by the High Court in either Habeas Corpus or judicial review proceedings.

On 14 March 2009 the second applicant was arrested under section 41 of the 2000 Act on suspicion of involvement in the murder of two soldiers at Masserene Barracks, Antrim, on 7 March 2009. He was detained at Antrim Police Station on the same day.

On 15 March 2009 the DPP made an application to the County Court under paragraph 29 of Schedule 8 to the 2000 Act for a warrant extending the second applicant’s detention as the results of a number of forensic tests were pending.

Following a hearing on 16 March 2009 a County Court Judge granted a warrant authorising a five-day extension to his detention.

The second applicant was interviewed on twelve occasions in the following five days. However, neither the interviews nor the results of the forensic tests provided any evidence linking the second applicant to the murders of the two soldiers.

On 21 March 2009 the DPP made an application to the County Court under paragraph 36 of Schedule 8 to the 2000 Act for a seven-day extension to the period specified in the warrant for further detention. The extension was sought as the results of further forensic tests which had been sent for analysis to a laboratory in Great Britain were expected to become available within the following seven days and detention was considered necessary to ensure that further questioning could take place and, if there was sufficient evidence, charges could be brought.

On 21 March 2009 Judge Philpott granted the application, authorising the second applicant’s continued detention until 7.20 on 28 March 2009.

The applicants sought permission to apply for judicial review of Judge Philpott’s decisions of 21 and 22 March 2009 granting further extensions to the warrants authorising their detention. They submitted first, that Judge Philpott had been wrong to conclude that a court, in deciding whether or not to grant an extension of detention, was precluded from investigating the lawfulness of the arrest; secondly, that the judge had failed to address the question of whether the detention of the applicants was required while the results of the forensic examinations were expected; thirdly that the judge had failed to give reasons for her decision that detention was required; and finally, that Schedule 8 of the 2000 Act was incompatible with Article 5 of the Convention.

Permission to apply for judicial review was granted by the High Court of Northern Ireland on 24 March 2009 and the High Court heard the applications on 25 March 2009.

In respect of the applicants’ first submission, the High Court held that paragraphs 5 and 32 of Schedule 8 to the 2000 Act had to be read in conformity with the requirements of Article 5 § 3 of the Convention as explained in the jurisprudence of the Court. Thus, the review of the lawfulness of the detention had to embrace an examination of the basis of the arrest, otherwise a person could be detained under the 2000 Act for up to twenty-eight days without there having been any judicial review of the lawfulness of the original arrest and that could not be Convention compliant. The High Court therefore found that Judge Philpott had been wrong to disavow any review of the lawfulness of the applicants’ arrest and, as a consequence, her decision to grant extensions had to be quashed. The court accepted, however, that a review of the lawfulness of the arrest need not involve a detailed analysis of the basis for the decision to arrest and should reflect the constraints that necessarily apply in many arrests for terrorist offences.

With regard to the applicants’ second and third submissions, the High Court found that although the judge had not focused directly on whether the applicants had to be detained rather than released pending the outcome of the remaining forensic examinations, she had not failed to have regard to the need for detention as the basis for the grant of the warrant. Moreover, although her reasons were pithily stated, they were sufficient to convey to the applicants the basis of her decision.

Consideration of the applicants’ fourth submission, namely the compatibility of Schedule 8 to the 2000 Act with Article 5 of the Convention, was adjourned. In a judgment delivered on 24 February 2011, the High Court of Northern Ireland found no basis for the submission that Schedule 8 was incompatible with Article 5 of the Convention. In particular, the court held that although there was no doubt that the “competent legal authority” referred to in Article 5 § 1(c) was the authority having competence to deal with a criminal charge (the Magistrate in the United Kingdom), in Schiesser v. Switzerland, 4 December 1979, § 29, Series A no. 34 and McKay v. the United Kingdom [GC], no. 543/03, ECHR 2006X the Court had made it clear that the function of “a judge or other officer” for the purposes of Article 5 § 3 of the Convention could be carried out by an officer authorised by law to exercise judicial power and did not necessarily have to be a person with power to conduct the trial of any eventual criminal charge; that, although there was no express power to order release in the 2000 Act as required by Article 5 § 3 of the Convention, such a power must be implied; that, as paragraph 32 of Schedule 8 to the 2000 Act provided that there must be reasonable grounds for believing that the further detention of a person was necessary, it therefore contained a requirement of proportionality; that, there was no provision for conditional release on bail within the statutory scheme, an issue which did not arise in the present case but would need to be addressed in any future case in which it arose; that, although paragraph 33(3) of Schedule 8 enabled a judicial authority to exclude an applicant or anyone representing him from any part of the hearing and paragraph 34 permitted information to be withheld from the applicant or anyone representing him, there were a range of tools available to the court to preserve to the necessary extent an adversarial procedure and equality of arms; and, finally, that there was no authority which supported the applicants’ contention that Article 5 required that a detained person should be charged well before the expiry of the twentyeight day period contemplated in the 2000 Act.

On 4 April 2011 the High Court of Northern Ireland certified that it was satisfied that the decision given on 24 February 2011 involved the following points of law of general public importance:

“(a) Whether paragraphs 29(3) and 36(3)(b) of Part III of Schedule 8 to the Terrorism Act 2000 (“the Act”) permitting extended detention for more than four days are compatible with the Applicant’s rights under Article 5(1)(c), 5(2) and 5(3) of the European Convention on Human Rights (“the Convention”)

If compliance with Article 5(3) of the Convention can only be achieved by providing for a detainee to be brought before a judicial authority (i) other than the Magistrate’s Court and (ii) without any charges having been preferred against him;

If Articles 5(1)(c) and 5(3) of the Convention are required to be read together as linked provisions and understood as creating a scheme so that the “judge or other officer authorised by law to exercise judicial power” referred to in Article 5(3) and “the competent legal authority” referred to in Article 5(1)(c) are one and the same;

If the “judicial authority” provided for in Schedule 8 to the Act is the “judge or other officer authorised by law to exercise judicial power” within the meaning of Article 5(3) of the Convention;

If Articles 5(1)(c) and 5(3) of the Convention cannot be interpreted in such a way as to permit the detention of a suspect without charge for any period specified by Parliament, subject only to the requirement of periodic judicial approval of the kind specified in Article 8 to the Act.

(b) Whether the absence of a power to allow for conditional release on bail rendered the scheme for extending detention set out in Part III of Schedule 8 incompatible with Article 5 ECHR; and

(c) Whether the procedure for granting an extension of detention, in circumstances where the suspect and legal representative have been excluded by the judge for a part of the hearing (as per Schedule 8, para 33(3)) and by reason of same information is made available to the judge but withheld from the suspect and his legal representative, (Schedule 8, para 34(1) and (2)(f) is incompatible with the request for an adversarial hearing as required by Article 5 in light of Secretary of State for the Home Department v AF (FC) & Anor [2010] 2 AC 269.”

However, the High Court refused leave to appeal to the Supreme Court.

Permission to appeal was refused by the Supreme Court on 14 November 2011 on the basis that the applications did not raise an arguable point of law of general public importance.

The applicants were released without charge on 25 March 2009. The first and third applicants were not subsequently charged with any offence related to the murder of the police officer.

The second applicant was immediately re-arrested and interviewed over the following two days. On 27 March 2009 he was charged with the murder of the two soldiers, five attempted murders and possession of a firearm and ammunition. He was produced before a District Judge sitting at Larne Magistrates’ Court on 27 March 2009. His application for bail was refused. Following a hearing which took place on 6 and 23 November 2009, bail was refused by the High Court on the ground that there was a real risk of re-offending on account of his suspected involvement with a dissident republican organisation. The High Court again declined to grant bail on 8 October 2010.

On 7 November 2011 the second applicant stood trial before a judge sitting without a jury. On 20 January 2012 he was acquitted on all counts on the indictment.


Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in 1976 and is detained in correctional colony no. 2 in the Tatarstan Republic.

Since 1999 the applicant has been suffering from progressive multiple sclerosis. He was designated with Category 1 disability as a result of that condition.

On 22 February 2012 the applicant was arrested on suspicion of active membership of an organised criminal group between 1995 and 2005 and the murder or attempted murder of several people in 1999.

The applicant’s health deteriorated significantly and rapidly in the detention facility, where his health complaints were not addressed in any way, as the facility did not have any medical specialists. In August 2012 the prison authorities recorded that the applicant’s movement was impaired and that he was unable to walk without a cane.

In September 2012 the applicant suffered an epileptic seizure which resulted in paralysis of the left side of his body. Several days later an investigator authorised a forensic medical examination of the applicant to determine whether he was fit to stay in a detention facility. A medical examination, based, inter alia, on the results of an MRI exam performed by civilian experts from the Tatarstan Republic medical institute, led to the conclusion that the applicant was suffering from “a serious condition preventing his detention”. In particular, experts diagnosed him with progressive multiple sclerosis, left-sided hemiplegia (paralysis) in the cerebral spinal form, acute right-sided hemiparesis (muscle weakness of the right side of the body) with the persistent astheno-depressive syndrome, memory deterioration, partial atrophy of the visual nerves, symptomatic epilepsy with polymorphic partial motor and generalised attacks three to four times a month, arterial hypertension of the first degree, and light myopathy of both eyes. On 25 September 2012 the applicant was released from detention.

On 29 May 2013 the Supreme Court of the Tatarstan Republic found the applicant guilty as charged and sentenced him to ten years’ imprisonment, to be served in a correctional facility under a strict regime. The trial court, however, decided that the applicant should not be placed in custody pending appeal proceedings. On 3 September 2013 the Supreme Court of the Russian Federation upheld the judgment on appeal.

On 17 September 2013 the applicant asked the Supreme Court of the Tatarstan Republic to order a medical examination for him with a view to confirming that he was not fit for detention. The request was not processed.

The applicant was taken into custody on 8 October 2013. He was placed in a prison hospital in correctional colony no. 2 in the Tatarstan Republic.

In November 2013 the applicant underwent an MRI test and was examined by several doctors, including by a neurologist, from the prison hospital in correctional colony no. 2. Their decision issued on 23 November 2013 indicated that given the negative prognosis for and the severity of the applicant’s condition, he should be sent for a forensic medical examination to determine whether he could be released early on health grounds. The doctors relied, inter alia, on the results of the MRI examination, which had shown that in comparison to the results of the previous MRI exam in September 2012 the applicant’s illness had progressed significantly and demonstrated further negative dynamic. The applicant was informed by the prison administration that they would seek his immediate release on health grounds.

However, a week later the applicant was notified that an additional expert examination was to be performed. Two medical experts visited the applicant, spoke with him and informed him that his condition did not warrant release. On 20 January 2014 the applicant was served with a copy of an opinion by the two medical experts who had concluded that he did not suffer from any condition listed in Government Decree no. 54 of 6 February 2004 on illnesses warranting release on health grounds, as his condition had not yet reached the crucial stage which required early release.

Relying on a number of medical certificates and reports issued by medical specialists from civilian medical facilities, who had either treated him following his release from detention in September 2012 or had studied his medical history in 2013, the applicant argued that he was unable to care for himself and that he required constant assistance, care and medical treatment which the Russian penal system was not able to provide. In particular, a report issued in September 2013 by a neurologist from the Tatarstan Republican hospital indicated that the applicant had no movement on the left side of his body and could only partly move the fingers of his right hand and his right leg; he could not walk or sit without assistance; and he required assistance even if placed in a wheelchair. Another report indicated that the applicant was suffering from urethral dysfunction leading to involuntary urination, an additional element calling for constant care. The civilian doctors concluded that the stage of development of the applicant’s illness was 9 (with death expected to occur according to that scale at stage 10).

Having provided copies of his complaints to various Russian authorities, the applicant submitted that his requests for an independent medical examination to determine whether he could remain in detention, as well as his complaints about the lack of proper medical assistance, had gone unanswered.

The applicant argued that he spent his entire day in bed. Prison doctors, who had no proper training to deal with patients in his condition, came to see him only once every few days. He had not been bathed for months. He could not eat or drink unaided, so he received food once a day. He suffered from severe pain, as he could not defecate and the medical personnel only gave him an enema once every two weeks. He did not receive any treatment, and had not been seen in detention by specialists such as a neurologist.

On 12 February 2014 the Court, in response to the applicant’s request under Rule 39 of the Rules of Court, decided to indicate to the Government that the applicant should be examined immediately by medical experts independent of the penal system, including by a neurologist and an epileptologist. The experts were to be asked whether the treatment and physical care the applicant was receiving was adequate for his condition, whether his current state of health was compatible with detention in the conditions of a correctional colony or a prison hospital, and lastly whether the applicant’s current condition required him to be admitted to a specialised hospital or released. The Russian Government were also asked to ensure the applicant’s immediate transfer to a specialised hospital if the medical experts concluded that he required to be admitted to such a hospital.

In response to the Court’s request, the Government provided the Court with a typed copy of the applicant’s medical history prepared by the detention authorities; certificates issued by the head of the applicant’s correctional colony and the head of the Service for the Execution of Sentences in the Tatarstan Republic; and a copy of the report drawn up on 25 December 2013 by a medical panel comprising the head, deputy head and senior inspector of the medical unit of the Service for the Execution of Sentences in the Tatarstan Republic and a deputy head of the prison hospital of correctional colony no. 2, where the applicant was detained. Relying on those documents, the Government argued that the applicant was receiving adequate medical assistance and that the medical panel of the Service for the Execution of Sentences in the Tatarstan Republic had concluded that “the degree of the manifestation of the applicant’s condition (multiple sclerosis) did not [reach the level] which could be described as bodily function impairment” warranting release in compliance with the Government’s decree of 6 February 2004 which laid down a list of illnesses calling for inmates’ early release.

The applicant commented on the Government’s information, insisting that the medical assistance afforded to him was virtually nonexistent. He relied on his medical record, and stated that prior to the application of the interim measure under Rule 39 of the Rules of Court he had been prescribed over twenty different drugs, of which, as indicated in the record, he had only received five. At the same time the applicant argued that the medical record was a forgery, as he had in fact only received one drug. Following the application of the interim measure he had been allowed to obtain certain medication from his wife to treat the epilepsy. He further submitted that the prison hospital where he was an inmate did not have the necessary medical equipment. He had usually been taken to another hospital for examinations, or a specialist with the proper equipment had been allowed to visit him in the prison hospital. The prison hospital only employed a neurologist, a specialist who, according to her own assessment, did not have the skill to treat the applicant’s complex condition. Despite the fact that the applicant’s condition was progressing and that the prognosis for him was negative, the authorities had not taken any steps to alleviate his sufferings and safeguard his life and limb.

The applicant submitted that since March 2014 he had developed new health problems, but the medical staff of the prison hospital had failed to address the ongoing deterioration of his health. In particular, he had begun suffering from kidney pain, but no nephrologist was available in the prison hospital. On 18 March 2014 the applicant was diagnosed with urinary tract infection, but no appropriate treatment followed. Several days later the applicant complained to an otolaryngologist of a purulent discharge from his left ear and severe pain. However, medical staff failed to comply with the otolaryngologist’s recommendations.

At the request of the applicant’s wife, on 18 April 2014 he was examined by a panel consisting of the deputy head of the prison hospital and several prison doctors. The commission found that the applicant did not suffer from bodily function impairment warranting his release.

On several occasions the applicant’s wife complained to the Prosecutor General and to the prison authorities, requesting an independent medical assessment. In their replies the authorities informed her that allegations of lack of adequate medical assistance had not been confirmed, and thus there were no grounds to order the applicant’s medical examination.

However, on 29 July 2014 a medical panel of the prison hospital, having confirmed the applicant’s earlier diagnosis, recommended his early release. In August 2014 the applicant’s wife lodged a motion for his release before the Privolzhskiy District Court of Kazan.

At the hearing held on 14 November 2014 the District Court heard the applicant’s attending prison doctor who stated that he had not and could not receive adequate treatment in respect of his multiple sclerosis in detention and that such treatment could only be provided in a specialised hospital, in particular in the Republican diagnostic centre of demyelinised illnesses. On the same day the District Court dismissed the motion for release. The applicant’s lawyer appealed.

In the meantime, on 15 December 2014 the applicant was transferred to correctional colony no. 9 in the Chuvashia Republic to continue serving his sentence. Three days later, following a visual medical examination, he was admitted to medical unit no. 21 in the colony which was to determine the issue whether the applicant’s condition called for his early release. According to the applicant, colony no. 9 did not employ a neurologist and had no means to deal with a patient of his health.

On 13 January 2015 the Supreme Court of the Tatarstan Republic quashed the decision of 14 November 2014 and sent the matter for a new examination to the District Court.

During the re-hearing on 19 February 2015 the Povolzhskiy District Court took note of the applicant’s transfer to a new colony and decided that it no longer had territorial jurisdiction to examine the applicant’s motion for release. The case was sent to the Tsivilsk Town Court in the Chuvashia Republic for further examination.

On 13 January 2015 a medical commission comprising three specialists from medical unit no. 21 issued a report finding that the applicant’s condition made him eligible for an early release. That report was filed with the Tsivilsk Town Court which on 26 February 2015 authorised the applicant’s release, having relied on the report of 13 January 2015 and statements by the head of medical unit no. 21. The latter had testified to the gravity of the applicant’s condition and the impossibility to provide him with adequate treatment or permanent general care and assistance in detention. The applicant was released on 11 March 2015 and taken by an ambulance to a hospital in Kazan.

The applicant provided the Court with expert opinions issued on 21 March and 5 August 2014 by neurologist M. from the Republican Medical Institute. Having examined the applicant and studied his medical file, the expert recorded negative dynamics in the applicant’s neurological condition, and found that he had not received the drugs necessary to treat his multiple sclerosis. The doctor recommended that the applicant undergo specific treatment in the Institute or in foreign hospitals, and noted that the lack of such treatment could lead to irreversible deterioration of the applicant’s health and eventually to his death.

The Government produced, in addition to the documents submitted by them in response to the Court’s Rule 39 request, a number of certificates signed by the staff and administration of the prison hospital, as well as by a fellow inmate. According to those certificates, the applicant was provided with the necessary care in the hospital. Medical staff fed him three times a day, washed his face and ears every morning, cut his hair and nails, changed his bedding, and showered him once a week. Nurses gave him enemas and changed his catheter bag as often as necessary.