CASE OF ABUBAKAROVA AND MIDALISHOVA v. RUSSIA

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)

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

The applicants were born in 1966 and 1957 respectively. They live in the village of Komsomolskoye in the Chechen Republic. The first applicant is the wife of Mr Shamkhan Abubakarov, who was born in 1963. The second applicant is the wife of Mr Badrudi Abubakarov, who was born in 1949.

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

At about 4.30 p.m. on 30 September 2002 brothers Shamkhan Abubakarov and Badrudi Abubakarov and their nephew Mr A.El. were travelling in a GAZ-3110 (“Volga”) vehicle on the road leading from the Staraya Sunzha settlement to the village of Berkat-Yurt in Chechnya.

At about 5 p.m. a convoy of three IFVs (БМП-2) was passing along the road. The applicants’ relatives drove to the side to let the IFVs pass. The Volga and a number of other cars were at the side of the road when one of the IVFs suddenly turned and drove over the Volga, and then drove off in the direction of Staraya Sunzha. All three passengers died on the spot. A number of residents of Berkat-Yurt witnessed the incident.

On the same day Sh., an operational search officer from the Grozny department of the interior (Районный отдел внутренних дел (РОВД)) (hereinafter “the ROVD”), reported the incident to the head of the police station, stating that a Volga had been driven over by an IFV carrying military servicemen.

The police questioned Mr Sh.A. He stated that his brothers Shamkhan Abubakarov and Badrudi Abubakarov and nephew Mr A.El. had been driving home from a funeral when their vehicle had been driven over by an IFV carrying military servicemen, who had fled the scene and gone to the military base in Khankala.

The police also questioned Mr I.A., who stated that he had been driving to Staraya Sunzha when he had seen a convoy of IFVs on the road and a Volga on the kerb letting it pass by. One of the IFVs had suddenly turned in the direction of the Volga, driving over it and killing all three passengers. It had then gone through the checkpoint in Staraya Sunzha. The witness and others present during the incident had immediately driven to the police station to report it.

The police examined the Volga, which had been left at the crime scene. Traces of blood and brain matter were found inside the damaged vehicle. No evidence was collected.

On 1 October 2002 the Grozny district prosecutor’s office instituted an investigation into the accident under Article 264 § 3 of the Criminal Code (breach of traffic regulations, causing death by negligence). The case file was given the number 56155.

It also ordered a post-mortem examination of Shamkhan Abubakarov, Badrudi Abubakarov and Mr A.El. On 8 October 2002 the experts concluded that their deaths had occurred as a result of the accident.

On 1 October 2002 the investigators questioned Mr B.S. and Mr I.S., both of whom stated that on 30 September 2002 they had been driving a GAZ-53 vehicle when they had seen three IFVs, one of which had had the serial number 171, violating traffic rules. It had driven over a Volga car and then left in the direction of Staraya Sunzha. They had immediately gone to the damaged vehicle and found three people dead inside.

On 8 October 2002 the investigators sent a request to military unit no. 20102 to be provided information on the provenance of IFV no. 171. No reply was given to that or any subsequent requests sent by the investigators.

On 24 November 2002 the supervising prosecutor ordered the investigators to take a number of steps, including questioning numerous eyewitnesses to the incident such as local residents and the law-enforcement officers who had been manning the checkpoints through which the IFVs had passed to flee the scene.

On 11 November or December 2002 the investigators questioned the head of the local administration, Mr Kh.D. who stated, amongst other things, that he had learnt of the incident shortly after it had happened. He had immediately gone to each of the checkpoints on the road between Staraya Sunzha and Berkat-Yurt. At the checkpoint manned by police officers from the Grozny district police station he had been told that, two minutes prior to his arrival, three IFVs had passed through and driven in the direction of Khankala, where the main military base of the federal forces was situated. He had gone to the military prosecutor’s office in Khankala, where he had been told that an investigator had already gone to the scene and established that two of the IFVs had had the serial numbers 171 and 153; that after the IFV had driven over the Volga, a serviceman had got out of one of the IFVs and checked that the car’s passengers were dead. The IFVs had then driven off. The witness also stated that on 2 or 3 October 2002 Mr A.E., who had worked as a driver at the Khankala military base, had told him that at about 5 p.m. on 30 September 2002 he had seen three IFVs of the 78th regiment driving at high speed into the base.

On 1 December 2002 the investigation was suspended on the grounds that the perpetrators had not been identified. The applicants were not informed.

On 28 May 2003 the ROVD replied to the applicants’ request for information, stating that the investigation had established that that at about 4.30 p.m. on 30 September 2002 an unidentified person driving an IFV had had a collision with a Volga being driven by Shamkhan Abubakarov and in which Badrudi Abubakarov had been a passenger. As a result of the accident, the driver and two passengers had died on the spot. The driver of the IFV had fled the scene. The document also stated that the material concerning the accident had been sent to the Khankala military prosecutor’s office.

On an unspecified date prior to 5 June 2006 the investigation was resumed. The applicants were not informed.

On an unspecified date between June and October 2006 the investigation was suspended again. The applicants were not informed.

On 25 October 2006 the deputy district prosecutor overruled the decision to suspend the proceedings as unlawful and ordered that the investigation be resumed and the investigators take a number of steps, including identifying the owners of IFV nos. 171 and 153 and carrying out the orders of 1 October 2002 (see paragraph 14 above).

On 30 October 2006 the applicants were granted victim status in the criminal proceedings.

On various dates in October and November 2006 the investigators questioned a number of residents of Berkat-Yurt, all of whom stated that they had arrived at the scene shortly after the incident and that, according to eyewitnesses, the Volga had been driven over by a military IFV.

On 16 November 2006 the investigators questioned Mr A.D., who stated that at about 4 p.m. on 30 September 2002 he had seen a military convoy on the road between Staraya Sunzha and Berkat-Yurt and a Volga at the side of the road letting the convoy pass by. One of the IFVs had suddenly driven off the road and over the Volga. The IFV had then left in the direction of Khankala.

On 25 November 2006 the investigation was suspended again.

On 4 July 2007 the Grozny District Court of the Chechen Republic allowed the applicants’ complaint against the decision to suspend the investigation. The court stated that between the opening of the investigation on 1 October 2002 and its suspension on 1 December 2002 the investigators had failed to take the necessary steps to identify the perpetrators, limiting themselves to sending two unspecified requests for information to the military authorities, even though it was clear from the case material that after causing the accident the IFVs had entered the Khankala military base. Despite the supervising prosecutor’s instructions given on 25 October 2006, the investigators had only resent two requests for information to the military authorities and had again suspended the investigation on 25 November 2006, as they had received no reply. The court overruled that decision and instructed that the proceedings be resumed.

On 14 July 2007 the supervising prosecutor resumed the investigation, deciding that it had been suspended unlawfully. The investigators were ordered to take a number of steps, including sending new requests to the military authorities concerning the possible provenance of IFV nos. 171 and 153.

On unspecified dates in July 2007 the investigators questioned two residents of Berkat-Yurt, both of whom stated that they had learnt of the incident from their fellow villagers.

On 15 August 2007 the investigation was suspended again. On an unspecified date prior to May 2011 the case was transferred to the Chechnya Investigations Committee. The proceedings are still pending.

The Government did not dispute the facts as presented by the applicants.

At the Court’s request, the Government furnished copies of the entire investigation file in criminal case no. 56155, running to ninety-six pages.


CASE OF KURILOVICH AND OTHERS v. BULGARIA

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

The applicants were born in 1978, 1980 and 2007 respectively.

The first applicant came to Bulgaria in 1997. In 2001 he was granted long-term resident status, and in 2003 – permanent resident status. In 2005 he married the second applicant, and in 2007 the third applicant, their son, was born.

On 29 May 2008 the head of the National Security Service issued an order withdrawing the first applicant’s residence permit, ordering his expulsion and imposing a ten-year ban on his reentering Bulgaria on the ground that his presence in the country represented a “serious threat to national security”. Factual grounds justifying the order were not indicated; it was merely noted that it was based on “proposal no. B848”.

That proposal, drawn up by the National Security Service on 27 May 2008 and initially classified, was declassified in 2016 and has been submitted by the Government. It stated that the first applicant was a member of a “Russian criminal group” implicated in money laundering, extortion, smuggling, illegal arms deals and the financing of “terrorist groups” on the territory of the Russian Federation. It said further that the first applicant had lowered Bulgaria’s international reputation, by “implicating the country in the financing of terrorist organisations, transnational criminality, corruption and drug trafficking”. No evidence was provided to substantiate those claims.

On 12 June 2008 the first applicant applied for judicial review of the order of 29 May 2008. He denied the allegations against him and stated that his family resided in Bulgaria and that the measures against him breached his Convention rights. In addition, he presented a certificate that he had no criminal convictions in Bulgaria.

In a final judgment of 8 January 2009 the Supreme Administrative Court dismissed the application for judicial review and held that the 29 May 2008 order was lawful. After summarising the allegations made in proposal no. B848, it held merely that they were sufficient to justify a conclusion that the first applicant represented a threat to national security. Furthermore, it dismissed his arguments relating to his family life, considering that

“any restriction of the rights under the Convention is justified [when based] on national security considerations, in cases where foreign citizens’ behaviour threatens the national security and the public order of the State where they reside.”

The first applicant was expelled on 24 April 2009. It is unclear whether the second and third applicants remained in Bulgaria after that. In 2012 the first and second applicants had another child.


Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

András Sajó;David Scicluna;Egidijus Kūris;Ineta Ziemele;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1964 in Egypt and currently lives in Hamrun, Malta.

The applicant had a Maltese tourist visa, which had been issued in 1991 and had been valid for three months. Having overstayed this visa, he remained in Malta illegally.

In 1993, when the applicant was twenty-nine years of age and still living in Malta illegally, he met MP, a Maltese citizen, who at the time was seventeen years of age. Three months later, on 13 October 1993, they married in a civil ceremony. On 26 February 1994 they also married in accordance with the Catholic rite.

On 18 November 1993 the applicant enquired about his “exempt person status” (see paragraph 34 below) and on 23 November 1993 started the process to obtain Maltese citizenship on the basis of his marriage to a Maltese national.

The applicant’s exempt person status was confirmed on 2 March 1994. On 19 April 1994, following the processing of his application and consequent to the marriage, he was registered as a Maltese citizen. On 12 September 1994, he therefore lodged an application to renounce his Egyptian nationality (a copy of the relevant application form has not been submitted to the Court). It transpires from a letter issued by the Consul of the Embassy of the Arab Republic of Egypt in Malta that on 29 September 1994 the applicant’s request was approved and his Egyptian passport withdrawn. At the relevant time, dual nationality was not possible under either Egyptian or Maltese law.

According to the Government, in 1994 the applicant and MP had various marital problems, which led the applicant to leave the matrimonial home on two occasions. The applicant had behaved aggressively, and specifically on 5 June 1994 he had physically assaulted his pregnant wife, causing her a permanent disability. MP left the matrimonial home thereafter.

The applicant was charged, remanded in custody, and eventually tried and found guilty in respect of the act of assault. He was given a suspended sentence.

In the meantime, on 13 December 1994 a child, LR, was born of the marriage. LR is a Maltese citizen. The various family disputes continued between the couple.

On 8 February 1995 MP instituted court proceedings to annul the marriage. Following adversarial proceedings where both parties were represented by a lawyer, the applicant’s marriage was annulled by a judgment of 19 January 1998. The court delivering the judgment was satisfied (to the degree necessary in civil proceedings, namely on a balance of probabilities) that the applicant’s only reason for marrying had been to remain in Malta and acquire citizenship; thus he was positively excluding marriage itself, and there had been a simulation of marriage. Since no appeal was lodged against the judgment, it became final.

The applicant did not inform the authorities of the judgment concerning the annulment of his marriage and he remained resident in Malta and retained his Maltese citizenship.

On 30 June 2003 the applicant married VA, a Russian citizen, four months after their first encounter. The applicant enquired about the exempt person status of his Russian wife and was asked to produce a copy of the judgment of annulment. On 4 July 2003 the applicant produced a copy of the judgment and it was only at that time that the authorities became aware of the reason for the annulment of his first marriage.

Following an application to that effect, on 27 September 2004, VA was granted exempt person status and thus had full freedom of movement (see “Relevant domestic law” below). According to the Government, although this was contested by the applicant, attention was drawn to the fact that the benefit of such status would cease if the applicant lost his citizenship. Two sons were born of this marriage, VR and VL, in 2004 and 2005 respectively. They are both Maltese citizens.

On 8 May 2006 the applicant was informed that an order was to be made to deprive him of his Maltese citizenship (under Article 14(1) of the Citizenship Act (“the Act”) – see “Relevant domestic law” below), which, according to the judgment of 19 January 1998, appeared to have been obtained by fraud. He was informed of his right to an inquiry.

The applicant challenged that decision, claiming that it was not true that he had obtained his marriage by fraud and stressing that he had three Maltese children.

In consequence, proceedings were instituted to investigate the applicant’s situation and if necessary divest him of his Maltese citizenship. A committee was set up for this purpose in accordance with Article 14(4) of the Act. A number of hearings were held before the committee where the applicant was assisted by a lawyer. He was allowed to make oral and written submissions and submit evidence, including witness testimony. It appears from the documents available that the applicant contested the basis of the annulment decision and claimed that he had not been aware that he could have appealed against it. He also contested the findings of a court of criminal jurisdiction that had found him guilty of injuring his wife and causing her a permanent disability.

The applicant’s ex-wife, a citizenship department official and a priest also gave testimony.

The committee’s final recommendation to the Minister of Justice and Internal Affairs was not made available to the applicant. Requests by the applicant’s lawyer for a copy of the acts of those proceedings remained unsatisfied.

On 31 July 2007 the Minister ordered that the applicant be deprived of his citizenship with immediate effect, in accordance with Article 14(1) of the Act.

By a letter dated 2 August 2007 from the Director of the Department of Citizenship and Expatriate Affairs, the applicant was informed that the Minister of Justice and Internal Affairs had concluded that the applicant had obtained citizenship by fraudulent means and that therefore on 31 July 2007, in accordance with Article 14(1) of the Act, the Minister had ordered that he be immediately divested of his citizenship. He was required to return his certificate of registration as a Maltese citizen and his passport.

The applicant instituted constitutional redress proceedings, complaining under Articles 6, 8 and 14 of the Convention. He claimed that he had not had a fair trial and appropriate access to court for the determination on his right to citizenship. Moreover, the revocation of his citizenship had not been in accordance with the law. The prerequisites for such action had not existed as his first marriage had not been one of convenience.

By a judgment of 12 July 2011 the Civil Court (First Hall) in its constitutional jurisdiction rejected the applicant’s complaint under Article 6, finding that the committee set up for that purpose had not been a tribunal, but solely an investigative body capable of giving recommendations but not making final decisions. The court, however, found that the applicant’s Article 8 rights would be breached if, as a result of his being divested of his citizenship, he became an alien. His de jure family (in respect of the second marriage) would suffer irremediable upset if, as a father (of the two Maltese children of that marriage), he were required to move to another country. Thus, the revocation of citizenship in the present case was in breach of Article 8. Consequently, the court annulled the order of 31 July 2007 and considered that it was not necessary to rule on any further complaints.

On appeal, by a judgment of 25 May 2012 the Constitutional Court overturned the first-instance judgment in part. It rejected the Article 6 complaint on the basis that the provision was not applicable in the absence of a civil right. In that connection, it rejected the applicant’s contention that the revocation of citizenship affected his right to a family life and therefore was civil in nature, as citizenship was a matter of public law and fell under the prerogatives of the State. It also reversed the part of the judgment in respect of Article 8, commenting that it had not been established that the applicant had a family life in Malta, and, even if this were so, the revocation of his citizenship would not necessarily result in his having to leave Malta. Indeed, it had not transpired that the applicant would be denied Maltese residence or that he had applied for it and had been refused, nor had a removal order been issued.

Following the lodging of the application with the Court, on 16 November 2012 the applicant’s lawyer wrote to the relevant authorities informing them that the case was pending before the Court and that therefore no action should be taken on the basis of the order of 31 July 2007. No feedback, apart from an acknowledgment of receipt, was received concerning that letter. However, although the order to deprive the applicant of his citizenship with immediate effect remains in force, no action has been taken to date in pursuit of the order and no removal order has been issued.

Although the applicant considers that the implementation of the order is only a matter of time, he is currently still residing and carrying out his business in Malta. He has a trading licence, which is periodically renewed. He continued using a Maltese passport to travel until 2014, when it expired, as he had failed to return it to the authorities despite their request.

The applicant does not appear to have any contact with his first son, but claims to be in a family environment with his second wife and their children. Following the revocation of his citizenship, the applicant’s second wife lost her exempt person status and the attached freedom-of-movement rights.


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

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Just satisfaction)

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in 1976 and lives in Kriva Palanka.

On 24 April 2009 the applicant was operated on for stomach cancer and subsequently underwent chemotherapy.

On 29 October 2009 she had been feeling anxious and distressed, and her husband requested medical assistance from Kriva Palanka hospital (110 km from Skopje). Dr M., a general practitioner, gave an instruction that the applicant was to be transferred to a psychiatric clinic in Skopje. Dr C.T., a specialist in neuropsychiatry in Kriva Palanka hospital, also gave instructions for her to be transferred to that clinic with police assistance.

Still on 29 October, at around 5 pm., an ambulance arrived at the applicant’s house in the village of Uzem. Two police officers, who were later identified as M.N. and I.A. in the subsequent criminal proceedings, assisted with the applicant’s transfer to the Bardovci psychiatric hospital in Skopje, where she remained until 31 October 2009.

The relevant parts of a notice of her discharge, dated 2 November 2009 from Bardovci hospital provide as follows:

“[This is the] first admission of (the applicant) to this hospital; it was carried out with the assistance of the police from Kriva Palanka.

According to the limited information obtained from (the applicant’s) husband by telephone, (it is known) that since summer this year, when she was diagnosed with and treated for stomach cancer, (the applicant) had become ... melancholic, lethargic, and had threatened with committing suicide.

When admitted, [the applicant] was malnourished, dehydrated, and had several haematomas of different sizes, most probably of recent date (најверојатно од понов датум) ... Concerning her psychological state she was depressed, anxious, tearful, and fixated on her poor state of health (cancer) ...she was burdened with depressive ideas and had a paranoid attitude towards her husband, which may be well-founded ...

She is discharged without having been examined or treated, at her husband’s request.”

Following her discharge from the hospital in Skopje, the applicant was on the same day admitted to the Kriva Palanka hospital. A handwritten medical certificate was issued and entered in the hospital’s records under no. 2131. At the applicant’s request a transcript of this certificate was made by Dr G.S. The relevant parts of this certificate state that:

“[According to the applicant] she was handcuffed by the police during her transfer to Bardovci psychiatric hospital, as instructed by a doctor. Objectively: haematoma measuring 2 x 6 cm on both forearms around the wrist joints; 3 hematomas measuring 1 x 2 cm on both lower legs. On the right hip, (a haematoma) measuring 1 x 2 cm.

Regarding these injuries, [the applicant] says that they were inflicted by kicks and blows.”

Still on 31 October 2009 the applicant was also examined by Doctor M. (see paragraph 7 above). The relevant parts of the medical certificate issued on that date read as follows:

“On 29 October 2009 at about 5 pm., on a request by (the applicant’s) husband and as suggested in (a neuropsychiatric opinion), the patient was transported to Skopje psychiatric clinic. The applicant states that she was abused during the transfer: she was hit and punched on the legs, [a third person] sat on her legs, and her hands were handcuffed behind her back. When she arrived she was treated violently by hospital staff.

When examined ... [the following] is observed: [she] is upset; a haematoma and a scratch on the lower legs, thus 4-5 scratches on the right side measuring 1 x 2 cm; on the left side 4-5 (scratches) measuring 1 x 2 cm and 2 x 2 cm; haematomas and (two) scratches on the stomach measuring 3 x 1 cm; 5 scratches on the back measuring 5 x 6 cm; some small haematomas ...

The patient has visible injuries caused by a trauma, namely hitting and punching.

Opinion: light bodily injury.”

On 15 February 2010 Doctor M. issued a certificate that on 29 October 2009 the applicant had been examined and that an instruction had been given for her to be transferred to Skopje psychiatric clinic.

In support of the application before the Court, the applicant provided four photographs of her, showing the following injuries: five scratches on the lower and middle part of the back; two scratches and a haematoma on her stomach, and several haematomas on the lower legs.

On 21 November 2009 the police drew up an official note (службена белешка) regarding information obtained from Dr S.V. As indicated in the note, S.V. decided, “for the sake of truth”, to provide relevant information in reaction to a television interview broadcasted on 3 November 2009 in which the applicant had stated that she was ill-treated by police officers during her transfer to Bardovci hospital. During the interview she showed the injuries that she had allegedly sustained. The relevant parts of the note read as follows:

“... I want to say that on 27 October 2009 at 9 pm., I was called, through the duty medical centre of Kriva Palanka hospital, to intervene in an urgent case reported by (the applicant’s) husband. I arrived at a pensioners’ home in Kriva Palanka, where (the applicant and her husband) were waiting. (The husband) told me that (the applicant) had injured herself, namely that she had hit her body and head against a wall and a bed; her face was covered with blood, and there was blood on the floor in front of the door. That suggested that she had had a nervous breakdown, for which I prescribed treatment.

In my opinion and in view of the foregoing, it is most likely that the injuries she showed to the cameras were self-inflicted on the date indicated above, which was when I intervened.”

On 3 December 2009 L.S. provided information to the police in relation to media statements by the applicant and her husband that the applicant had been ill-treated by the police. L.S. stated that the applicant’s husband had beaten the applicant on three occasions (she did not specify the exact dates when the alleged beatings had happened, but she confirmed that it had been on “the nights of Thursday, Friday and Saturday”). She further stated:

“During the Sunday night two women, most likely journalists, visited [the applicant’s husband]. On the Tuesday [the applicant’s husband] invited residents to watch on television ‘how do the police from Kriva Palanka work. I put them in a mould; I’ll take a lot of money from them’.

I personally believe that [the applicant’s] injuries were inflicted by [her husband] who, while intoxicated, beats her up every day in front of their children.”

The note further indicated that four individuals (whose identity was specified), together with other residents in the building in which the applicant lived, could be interviewed regarding the case.

On 11 January 2010 the police informed the applicant’s husband that on 3 December 2009 L.S. had made a complaint against him, and that an official note had been drawn up. As stated in the letter, both the applicant’s husband and L.S. had been advised to stop arguing in future. The letter further indicated that L.S. had been warned that in the event of false reporting a misdemeanour complaint would be lodged against her.

In submissions of 27 January and 18 February 2010 the applicant brought criminal charges of medical malpractice against Dr C.T. alleging that he had instructed her to undergo a psychiatric examination without examining her, against V.S., a nurse who had accompanied the applicant during her transfer to Skopje (she had been sitting in the front passenger seat), and against M.N. and I.A., the police officers, for inflicting ill-treatment and mild bodily injury. She alleged that on 29 October 2009 she had been distressed. In the circumstances, her husband had gone to Kriva Palanka hospital, where Dr C.T. had decided that she be transferred to Skopje psychiatric clinic with assistance from the police. Doctor M. had also issued a recommendation in this respect (see paragraph 7 above). The applicant claimed, inter alia, that M.N. and I.A. had forcibly put her in the ambulance, stating that they had grabbed her arms and dragged her to the ambulance, ignoring her cries of pain from the surgery. After she had been put in the ambulance, she had been forcibly made to lie on a bed with her hands handcuffed behind her back. I.A. sat on her legs. They had gone, firstly, to Kriva Palanka hospital where Dr C.T. had given instructions, by telephone, to V.S. to administer an injection. The applicant alleged that on the way to Skopje she had been hit, punched and threatened by the police officers. As a result, she had “several injuries (haematomas) all over the body and limbs and five to seven marks on the back from the handcuffs, of which I have photographs”. In support of her complaint she attached medical certificates (see paragraphs 9, 10, 11 and 12 above).

On 31 March 2010 the public prosecutor contacted the Ministry of the Interior with a request for further information regarding the incident. In reply, on 26 May 2010 the Sector for Internal Control and Professional Standards within the Ministry of the Interior submitted a “special report” regarding the case. It referred to statements (which it submitted in support) which Dr C.T., the applicant and her husband had given to the police between 13 and 15 April 2010.

Dr C.T. confirmed that on 29 October 2009 the applicant’s husband had told him that they lived in the pensioners’ home in Kriva Palanka; that the applicant’s mental health was poor; that she had arrived at their family house in the village of Uzem (see paragraph 8 above) without his consent; that she had broken a window to get in; that she had been aggressive and was capable of killing herself, their children or himself; that she had been uncooperative; and that she had refused to sleep or eat.

In the statement, the applicant’s husband confirmed that the applicant’s mental health had deteriorated since the stomach surgery, and that he had explained “her condition” to the doctors M. and C.T. during his visit of 29 October 2009. He also informed the police officers M.N. and I.A. about her state of health while he was in the ambulance with them on the way to their family house. When they got to the house he had asked the police officers to wait outside so that he could explain to the applicant that she was going to be taken to a psychiatric hospital. When the police officers had entered the house their children had started crying and putting their arms around the applicant. The police officers had forcibly separated the children from the applicant; they had grabbed her by the arms and dragged her (while she was on her knees) towards the door. After the situation had calmed down and in order not to harm the applicant, he had taken her by the legs, and he and the police officers had taken her to the front of the ambulance. Then the police officers had put her in the ambulance; they had handcuffed her hands behind her back and made her lie on a bed. To keep her still, I.A. had sat on her legs. The police officers had remained with the applicant in the rear of the ambulance, while V.S. had sat in the front passenger seat. While he had been occupied with the children in the house, the ambulance had left the scene. The next day he had found out that the applicant had been taken to Bardovci hospital; he went there, but no visits were allowed that day.

In depositions made on 15 April 2010 the applicant confirmed that on 29 October 2009 she had consented to be taken to Skopje psychiatric clinic; that the police officers had grabbed her hands and dragged her; that before she got into the ambulance M.N. had hit her on the back with a baton; and that her husband had helped M.N. and I.A. to bring her to the front of the ambulance. She also stated that no infusion or injection had been administered when they had stopped at Kriva Palanka hospital; that during the transfer to Skopje hospital (the ambulance had been driven at excessive speed) her hands had been handcuffed behind her back; that I.A. had been sitting on her legs and that she (I.A.) had hit her on the legs and head with a truncheon; that M.N. had grabbed her hair and had tightened up the handcuffs; that both M.N. and I.A. had punched her and hurt her legs. When she was admitted to Bardovci hospital she was bleeding and had bruises.

The “special report” of the Ministry further referred to statements given by doctors S.V. and L.S. (see paragraphs 14 and 15 above). It also specified that the police officers concerned had denied that they had used any force against the applicant, and that the applicant had used offensive language against them and had been screaming loudly. The record also stated that V.S. (the nurse) and J.D. (the driver of the ambulance), had also denied that the police officers had used any force against the applicant. The report went on to state:

“when (the police officers) arrived at (the applicant’s) house, they were warned by the (applicant’s) husband to be cautious because Marina had a knife with which she might assault them. For that reason, he proposed going into the house first to tell (the applicant) that she was going to be taken to Skopje for medical treatment. After five minutes, (the applicant’s husband) went out and called (the police officers) into the house. The police officers went in and told Marina that they would have to transfer her by ambulance to a health institution in Skopje. In response to that, Marina said to (her husband): do I deserve this from you, being taken for medical treatment; I do not belong there, you should go there because you are drunk every day and you constantly abuse and hit me and the children; I’m covered in bruises because of you ...

Throughout the journey, (the applicant) used offensive language against the police officers and the nurse, she [the applicant] was very aggressive and angry, and she was screaming loudly and trying to hurt herself by hitting her head against the window of the ambulance. The police officers and the nurse had been forced during the entire transfer to hold her hands in order to prevent her from hurting herself or some of them”.

On 8 June 2010 the Kriva Palanka public prosecutor’s office, referring to the Ministry’s “special report” and the discharge notice from Bardovci hospital, rejected the applicant’s complaint against the accused (the decision noted that the nurse V.S. had died in the meantime), finding that the alleged offences were not subject to State prosecution. On 14 June 2010 the applicant, in the capacity of a subsidiary prosecutor, took over the prosecution and brought private charges before the Kriva Palanka Court of First Instance (“the trial court”) on the same charges as above (see paragraph 18 above).

On 6 October 2010 the trial court heard Dr C.T., M.N., I.A., the applicant, who was not legally represented, and her husband. According to the transcript of the court hearing, Dr C.T.’s statement was consistent with the statements he had made to the police (see paragraph 20 above).

The relevant parts of M.N.’s statement, as described in the court record, read as follows:

“(the applicant’s husband) arrived at the police station and said in front of colleagues and himself (M.N.) that he had been afraid that something could happen to his children or (to the applicant), because, when she had gone to Uzem she had taken a knife and a telephone wire; they went by ambulance to Uzem ... [when they went into the house] (the applicant) became upset and grabbed one of the minor children in her arms; (the applicant’s) husband took the child away, and because she did not want to get into the vehicle he (M.N.) took her arms and her husband took her legs and they put her in the ambulance.”

I.A. confirmed M.N.’s statement, and stated that she had held the applicant down with her hands to prevent her from standing up. Both M.N. and I.A. denied that they had used force or handcuffs against the applicant. They also stated that a tranquilliser had been administered to the applicant before they had left for Skopje.

The applicant objected to the defendants’ statements. She further denied that her husband had helped the police officers to take her to the ambulance; on the other hand, she reiterated that the police officers had grabbed her and put her into the ambulance; that she had been handcuffed, and that M.N. had hit her with a truncheon; that I.A. had sat on her legs during the transfer; that I.A. had held her mouth closed to stop her talking, and had hit and punched her.

The applicant’s husband confirmed that he had requested that Dr C.T. give an instruction for the applicant to have treatment. When the applicant had refused to get into the ambulance the police officers had grabbed her by the arms and dragged her towards the ambulance. In order not to hurt her, he had grabbed the applicant by the legs and put her in the vehicle. M.N. had handcuffed the applicant. The applicant’s husband denied saying that the applicant had a knife and a wire.

On 6 October 2010 the trial court delivered a judgment acquitting C.T., M.N. and I.A. for lack of evidence. It also discontinued the proceedings against V.S. The trial court established that:

“The accused doctor C.T. ... acted conscientiously and in accordance with his duty, and at the request of [the applicant’s] husband who had informed him about [the applicant’s] condition, he provided appropriate treatment; he drew up a report and instructed that she be transferred with police assistance to Skopje psychiatric clinic. [The applicant] was not examined by a specialist (не и бил извршен специјалистички преглед) because she was brought [to the hospital] outside working hours (and) [Dr C.T.] was far away from the office; after [V.S.] had told him by telephone about [the applicant’s] condition, he instructed that a tranquilliser injection be given and that [the applicant] be transported to Skopje. The accused M.N. and I.A., police officers in Kriva Palanka police station called to provide assistance during [the applicant’s] transfer by ambulance to Skopje psychiatric clinic, acted professionally and in accordance with the law and their powers; they did not use any physical force against the applicant and they did not inflict any injuries on her.

The court established the above on the basis of evidence admitted at the trial, namely: oral evidence from the accused, who did not admit the alleged criminal offences, as well as the material evidence from the case file ... of the Kriva Palanka prosecutor’s office which ... [on the basis of the Ministry’s special report] rejected [the applicant’s] criminal complaint ...

All these items of evidence are clear, undisputable, categorical, and inter-related; there is no reason for the court to question their reliability ... relying on [this evidence] the court delivers judgment, finding that [the evidence] does not prove that the accused committed the criminal offences with which they are charged.

The court examined [the applicant’s] statement that ... the police officers had dragged her into the ambulance; that she had been handcuffed, and that M.N. had hit her with a truncheon ... that during the transfer she had been restrained with handcuffs; that police officer I.A. had been sitting on her legs and had closed her mouth to stop her talking; and (that I.A.) had hit and punched her ...

The court examined the statement of [the applicant’s husband] that ... the police officers had grabbed [the applicant] by the arms and dragged her towards the ambulance, and in order not to hurt her, because she had recently had surgery, he had taken her legs and helped to put her in the ambulance; that police officer M.N. had put her head between her legs and had handcuffed her ...

The court examined evidence submitted with the criminal complaints (medical reports described in paragraphs 7, 9, 10, 11 and 12 above), and photographs, but they did not contain anything that could lead to a different assessment of the facts from that established [by the court]. (This evidence) is medical evidence, on the basis of which the court established that there had been an instruction for the applicant to be treated at Skopje psychiatric clinic, and a medical certificate had been issued for the visible injuries that she had; that on 29 October 2009 she had been admitted to (Bardovci) hospital; that (at that time) she had been depressed and had a depressive and paranoid attitude towards her husband; that [she] had several haematomas of recent date ... four photographs showed bruises and scratches on her legs and body.

It is undisputed that owing to [the applicant’s] condition she needed to be transferred for treatment with assistance from the police; this was also what her husband had asked for. She was admitted to an appropriate institution for treatment and was then discharged at the request of her husband; the injuries described in the medical certificate and visible in the photographs – a haematoma and scratches, which were noted in the discharge notice upon [the applicant’s] admission, were of recent date. However, this evidence cannot lead to a conclusion that [the injuries] were inflicted during the transfer, namely on the day when [the applicant] was transferred by ambulance with assistance from the police.”

The applicant appealed against the judgment and reiterated her argument that she had been ill-treated, and complained that Dr C.T. and M.N. had given false statements; that the trial court’s judgment had been delivered after the trial court had held only one hearing; and that her husband had not given oral evidence before the trial court.

On 15 December 2010 the Skopje Court of Appeal upheld the facts established and the reasoning given by the trial court. The court reiterated that on the basis of a request by the applicant’s husband and in view of the applicant’s state of health Dr C.T. had correctly ordered urgent medical treatment with police assistance. The fact that the applicant had been hospitalised in Bardovci hospital instead of in Skopje psychiatric clinic, as instructed by Dr C.T., was irrelevant, as the medical care she had received was appropriate. The court confirmed that the police officers had acted in accordance with the law and their duties as police officers.

On 9 March 2011 the public prosecutor informed the applicant that there were no grounds for lodging a request for review of the legality of the judgments.

According to the applicant, she has never suffered from any mental disorder, nor was she receiving any medical treatment in that respect.


Remainder inadmissible;No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant was born in 1959 and lives in Eastleigh.

The applicant adheres to a firmly held belief in the inoffensiveness of the human body. This has in turn given rise to a belief in social nudity, which he expresses by being naked in public. In 2003 he decided to walk naked from Land’s End in England to John O’Groats in Scotland, earning the nickname “the naked rambler”.

The following chronology is a summary of the details provided by the parties pertaining to the applicant’s arrests, prosecutions, convictions and sentences of imprisonment since July 2003. All arrests listed were the result of nudity in public unless otherwise indicated.

The applicant began his trek at Land’s End in 2003.

He was arrested in Scotland on five occasions between 29 July 2003 and 18 August 2003 on charges of breach of the peace (see paragraphs 100102 below) and public indecency for being naked in public. No further action was taken in respect of the first two offences. He was released on bail in respect of the others but no further action was ultimately taken.

On 19 August 2003 he was arrested and detained for breach of the peace. He was released on bail on 26 August after agreeing to remain clothed. However, he was rearrested on 27 August on a charge of breach of the peace committed while on bail for being naked in public. On 3 October 2003 he was convicted at Dingwall Sheriff Court in respect of the 27 August offence and admonished. He was then released. He lodged an appeal which was later dismissed for unknown reasons.

Meanwhile, on 3 October 2003 following his release, he was arrested and charged with breach of the peace committed while on bail. He was remanded in custody. On 7 November 2003 he was convicted at Dingwall Sheriff Court and sentence was deferred. On 28 November 2003 a sentence of three months’ imprisonment was imposed, backdated to the date of his arrest. He was released on 29 November 2003.

On the same day he was arrested and charged with breach of the peace committed while on bail. He was remanded in custody. Following a trial on 7 January 2004 he was convicted and sentenced to three months’ imprisonment, backdated to 1 December 2003. He lodged an appeal which was later dismissed for unknown reasons. He was released on 15 January 2004 and resumed his trek.

All periods of detention were spent in HMP Inverness in segregation as the applicant refused to dress.

On 22 January 2004 the applicant completed his trek at John O’Groats and returned to his home in Eastleigh, England.

In June 2005 the applicant commenced a second trek at Land’s End, intending to walk to John O’Groats.

On 1 September 2005 he was arrested in Scotland and charged with breach of the peace. He was detained on remand and convicted on 9 September. He was sentenced to fourteen days’ imprisonment. He was released on 15 September 2005.

Upon leaving the prison, the applicant was arrested and charged with breach of the peace. He was released on bail.

On 20 September 2005 the applicant was arrested and charged with breach of the peace. He was released on bail.

On 3 October 2005 he was arrested and charged with breach of the peace and an offence under section 27(1)(b) of the Criminal Procedure (Scotland) Act 1995 (breach of bail conditions – see paragraph 103 below). He was detained on remand. On 21 October 2005 he was convicted in Dingwall Sheriff Court of a breach of bail conditions and sentenced to imprisonment for two months, the sentence being backdated to 4 October 2005. He was found not guilty of breach of the peace.

He was released on 3 November 2005 and immediately rearrested. He was charged with breach of the peace and a breach of bail conditions for being naked in public. On 15 November 2005 he appeared at Edinburgh Sheriff Court naked to be tried on the charges relating to the arrest on 3 November 2005. The Sheriff found the applicant to be in contempt of court and sentenced him to three months’ imprisonment.

On 1 December 2005 it was decided that no further action would be taken in respect of the applicant’s arrest on 20 September 2005.

On 19 December 2005 the applicant appeared again for trial at Edinburgh Sheriff Court but refused to wear clothes. The Sheriff again found the applicant to be in contempt and deferred the matter of sentence.

On 21 December 2005 the applicant was due to stand trial at Edinburgh Sheriff Court on the charges relating to the arrest on 15 September 2005. He refused to dress. The Sheriff found him to be in contempt of court. She adjourned the trial proceedings and deferred consideration of the matter of sentence for the contempt charge until 9 January 2006.

On 9 January 2006 the applicant’s plea of not guilty to the two outstanding breach of the peace charges was accepted. He was convicted of breaching of bail conditions and admonished. Sentence was further deferred in respect of the contempt findings and the applicant was released on bail on 10 January 2006.

On 12 February 2006 the applicant was arrested for breach of the peace. No further action was taken.

On 14 February 2006 the applicant was again arrested for breach of the peace. He was released on bail.

On 21 February 2006 he completed his trek at John O’Groats.

On 1 March 2006 he entered Edinburgh Sheriff Court naked to face proceedings related to the outstanding findings of contempt of court. He was arrested and charged with breach of the peace.

On 2 March 2006 he appeared on those charges before the Sheriff. He was found to be in contempt of court for appearing naked in court and sentenced to two months’ imprisonment. He lodged an appeal against the sentence.

On 15 March 2006 it was decided that no further action would be taken in respect of the applicant’s arrest on 14 February 2006.

On 6 April 2006 the applicant was convicted of breach of the peace committed while on bail in respect of his nudity on 1 March 2006. He was sentenced to three months’ imprisonment, backdated to 2 March. It appears that he was released on 14 April 2006 and returned home to Eastleigh.

All periods of detention except for a week from 16-23 November 2005 were spent in segregation in HMP Inverness and HMP Edinburgh because the applicant refused to wear clothes.

On 18 May 2006, during a flight from Southampton to Edinburgh to attend the appeal hearing in respect of the sentence for contempt of court, the applicant removed his clothes. Upon arrival at Edinburgh airport, he was arrested for breach of the peace and public indecency committed while on bail. He was detained on remand. On 23 June 2006 he was convicted of the charges and sentenced to four months’ and two months’ imprisonment respectively, to run concurrently backdated to 19 May. He lodged an appeal which was later dismissed for unknown reasons. He was released on 19 July 2006.

On the same day, he was arrested on a charge of breach of the peace committed while on bail and detained on remand. He was convicted on 25 August 2006 and a seven-month prison sentence was imposed. He lodged an appeal which was later dismissed for unknown reasons. He was released on 3 November 2006.

On the same day, he was arrested in the prison car park on a charge of breach of the peace committed while on bail. He was detained on remand. He appeared naked in court on 6 November 2006 and was found to be in contempt of court. A two-month sentence was imposed. On 13 December 2006 he was found guilty of breach of the peace in respect of the 3 November charge. He was sentenced to six months’ imprisonment, backdated to 5 December. He was released on 5 March 2007.

Upon his release, he was rearrested on a charge of breach of the peace in the prison car park. He was detained on remand. On 9 April 2007 he was found not guilty of a charge of breach of the peace as the Sheriff was not persuaded that he had caused any alarm or disturbance. He was subsequently released.

On 10 April 2007 he was arrested on a charge of breach of the peace and detained on remand. He was convicted on 9 May 2007 and sentenced to three months’ imprisonment, backdated to 11 April. He lodged an appeal which was later dismissed for unknown reasons. He was released on 25 May 2007.

On the same day, he was arrested on a charge of breach of the peace committed while on bail and detained on remand. He was convicted on 25 June 2007 and sentenced to sixty days’ imprisonment, plus fourteen days outstanding from his previous sentence. He lodged an appeal; the outcome of the appeal is not known. He was released on 31 July 2007.

On the same day, he was arrested on a charge of breach of the peace and detained on remand. He was convicted on 3 September 2007 and sentenced to sixty days’ imprisonment, plus twenty-three days outstanding from his previous sentence. He lodged an appeal which was later dismissed for unknown reasons. He was released on 12 October 2007.

On the same day he was arrested and charged with breach of the peace. It appears that he was not held in custody. Three days later, on 15 October 2007, he was arrested on a charge of breach of the peace and detained on remand. A decision was made to take no further action in respect of the 12 October arrest.

On 7 November 2007, while the applicant was on remand, his appeal against sentence for contempt of court was rejected by the Appeal Court of the High Court of Justiciary (“the Appeal Court”).

On 15 November 2007 he was convicted in respect of the 15 October arrest. Sentence was deferred and the applicant remained in detention.

On 30 November 2007 the applicant was sentenced to three months’ imprisonment for contempt of court in respect of a contempt finding dating back to December 2005.

On 4 December 2007 the applicant was sentenced to thirty days’ imprisonment in respect of each of the two outstanding contempt of court rulings, to run concurrently.

On 18 January 2008 the applicant appeared at Edinburgh Sheriff Court in respect of the deferred sentence for the 15 November 2007 conviction. Sentence was further deferred and the applicant was released. As he emerged from court naked, he was rearrested on a breach of the peace charge and detained on remand. On 26 February 2008 he was convicted and sentenced to four months’ imprisonment. He lodged an appeal which was later dismissed for unknown reasons. He was released on 7 March 2008.

On the same day, he was arrested on a charge of breach of the peace committed while on bail and detained on remand. He was convicted on 15 April 2008 and sentenced to twelve months’ imprisonment.

On 23 April 2008 he was admonished in respect of the breach of the peace conviction of 15 November 2007.

On 14 October 2008 the applicant was released. He was arrested in the prison car park on a charge of breach of the peace and detained on remand. On 14 November 2008 the Sheriff ruled that there was no case to answer.

The applicant was released but was immediately rearrested on a charge of breach of the peace and detained on remand. On 18 December 2008 he was convicted at Glasgow Sheriff Court. He was sentenced to eight months’ imprisonment.

The applicant’s detention throughout this period was spent in HMP Edinburgh, HMP Barlinnie, HMP Glenochil and HMP Perth in segregation because he refused to put on clothes.

At around 7.45 a.m. on 18 June 2009 the applicant was released from HMP Perth. He walked out of the prison naked and was arrested, after refusing to get dressed when asked to do so by two police officers waiting some metres from the prison gates, on Edinburgh Road. He was charged in the following terms:

“... [Y]ou ... did conduct yourself in a disorderly manner, did walk in a public place naked, refuse to wear any clothing when asked to do so, indicate that you had no intention of wearing any clothing when in public and did commit a breach of the peace.”

He pleaded not guilty and was detained in prison on remand in segregation as he refused to dress.

On 16 July 2009 the applicant’s trial took place at Perth Sheriff Court. He chose to remain naked and represented himself. He was asked by the Sheriff if he wished the services of a lawyer but replied that he did not. He maintained his plea of not guilty. The Sheriff indicated that he risked being found in contempt of court if he failed to put on clothes. The applicant refused to dress. The Sheriff allowed him to be present in court after a screen covering the lower half of his body was hastily constructed.

The two police officers who had arrested the applicant gave evidence. Police Officer A described Edinburgh Road as a “major route into Perth” from the motorway. It was a “busy road” and at the material time there was a continuous flow of traffic along the road. He was firmly of the view that the applicant’s nudity in a public place would cause alarm to anyone. During cross-examination by the applicant, Police Officer A agreed that the human body was in itself decent and was not harmful or alarming. He accepted that nothing in the applicant’s behaviour at the time of his arrest, other than his nakedness, gave the police any cause for concern. Police Officer B gave evidence that she considered the fact that the applicant had no clothes on in a public place to be very strange and unusual and that she was “quite shocked” by it. She explained that at the time, Edinburgh Road had been very busy with vehicular and pedestrian traffic. She had previously seen elderly people and children in the area, and there were schools and housing nearby. In cross-examination she also agreed that the human body in itself was not harmful, indecent or bad but maintained that although she had been forewarned that she would be likely to see a naked man in public she had still been shocked. She confirmed that no complaints had been received from members of the public.

The applicant gave evidence in his defence. When asked by the prosecution why he was wearing no clothes, he replied that he was making a stand and that “we’re innocent until we do something wrong”. He did not believe that he was causing harm by not wearing clothes. He said that he did not wear clothes in order to provoke a reaction: although he had not always been like that, as he had grown older he had thought more about his beliefs. When asked what he hoped to achieve by making his stand, the applicant replied that he did it because he felt that it was right and that the world changed in its own way.

The Sheriff found the applicant guilty of breach of the peace and contempt of court. He considered that being naked in a public place and refusing to wear clothes in a public place was conduct that would be alarming and disturbing, in its context, to any reasonable person. In his stated case prepared in the context of the applicant’s later appeal, the Sheriff explained:

“56. ... There was no dispute on the facts of the case ... I accepted that the police officers were concerned that if the appellant did not put clothes on there was a very real likelihood of him causing fear and alarm to other members of the public ...”

He continued:

“58. The position of the appellant is somewhat difficult to understand. He made it clear to the two police officers that he had no intention whatsoever of putting clothes on. He insisted on being naked in a public place. He believed that he was doing no wrong by being naked in a public place. He did not accept that he had committed an offence.”

He noted that in questioning the police officers, the applicant had chosen not to differentiate between private and public places when it came to nakedness. He concluded:

“60. I was entirely satisfied that the conduct of the appellant with the aggravation of his refusal to wear clothing in a public place amounted to a breach of the peace. The criteria for a breach of the peace as discussed in the case of Smith v. Donnelly had been met ... The evidence of the appellant did not raise a doubt in my mind. Accordingly I convicted the appellant as libelled.”

At sentencing, the Sheriff had before him the applicant’s previous convictions. According to the stated case, the applicant confirmed to the Sheriff that all previous convictions were for breach of the peace. The Sheriff’s stated case continued:

“61. ... He acknowledged that he had spent the last five years or thereby in prison for the same offence. A pattern has emerged namely that on his release from prison when he ‘stepped out’ of the prison gate, always naked, he was immediately arrested.

I asked the appellant what he was hoping to achieve by insisting on being naked in public. He talked about ‘his beliefs’. I simply could not understand what he had to say in this regard. He did not appear to be waging any campaign or making a protest. He informed me that he would rather not be in prison. If he was not in prison, he would go back to live with his mother in a village in Cornwall. He had previously worked as a driver of large goods vehicles ...”

The Sheriff discussed sentencing options with the applicant. In his stated case he explained:

“32. ... I enquired of him if I was minded to defer sentence for whatever reason and admit him to a bail order would he then wear clothes. After some thought the appellant stated that he would not be prepared to wear clothes ...”

The Sheriff’s stated case concluded:

“63. Taking all these matters into account I could see no alternative to a custodial sentence. In view of the content of the Notice of Previous Convictions I deemed it appropriate to impose the maximum of 12 months’ imprisonment which I backdated to the date that he had been taken into custody.”

A further four months’ imprisonment, to run concurrently, was imposed for contempt of court.

The applicant sought to appeal his conviction and sentence by way of note of appeal and a draft stated case was prepared by the Sheriff in September 2009.

The applicant was provided with a copy of the stated case and was asked for details of any proposed changes. By letter of 5 October 2009 the applicant proposed a number of changes.

On 12 October 2009 a hearing was held to consider the proposed adjustments to the case stated. The applicant was brought from HMP Perth to attend the hearing and blankets were provided to facilitate his attendance. He was told that if he refused to wear clothes or make use of the blankets he would not be admitted into the court. He refused to wear clothes or to make use of the blankets and was accordingly not permitted to attend the adjustment hearing. The hearing proceeded in his absence and his requested adjustments were considered by the Sheriff. Two adjustments were allowed and the remaining adjustments rejected.

Concerned that the stated case was biased, the applicant did not lodge it with the Justiciary Office. On 29 October 2009, the expiry of the applicable time-limit for lodging, his appeal was deemed abandoned.

The applicant spent his sentence in segregation at HMP Perth as he refused to wear clothes. On 17 December 2009 he was released from prison.

Minutes after his release on 17 December 2009, the applicant was arrested and charged with breach of the peace for being naked in public. He was detained on remand.

On 11 January 2010 he was convicted of breach of the peace. Sentence was deferred to 8 February for up-to-date psychiatric and psychological assessments.

On 8 February 2010 the applicant was sentenced to a term of twelve months’ imprisonment plus 180 days unserved from previous sentences. He lodged an appeal; the outcome of the appeal is not known. He was kept in segregation at HMP Perth while in prison because he refused to dress.

He was released on 29 October 2010.

Minutes after his release on 29 October 2010, the applicant was arrested and charged with breach of the peace for being naked in public. He was detained on remand.

On 24 November 2010 he was found guilty of breach of the peace and contempt of court. On 25 November he was sentenced to 312 days’ imprisonment in respect of the breach of the peace charge together with 74 days unserved from previous sentences plus 90 days for contempt of court, to be served consecutively. He was not kept in segregation while in prison at HMP Perth.

He was released on 20 July 2011.

Minutes after his release on 20 July 2011 at around 9 a.m., the applicant was approached by two police officers on Manson Terrace, a public road leading from HMP Perth to Edinburgh Road. The officers suggested that he put on some clothes but he refused to do so. He was arrested him for breach of the peace and detained on remand. He appeared in court on 21 July 2011 and pleaded not guilty.

The trial commenced on 24 August 2011. The applicant appeared in court naked and was warned by the Sheriff that if he refused to dress or to cover himself he might be held in contempt of court. He refused to put on clothes.

The prosecution led evidence of two police officer witnesses at trial. Their evidence was similar to that given at the 2009 trial and the applicant’s cross-examination was also in similar terms and elicited similar responses (see paragraph 54 above).

The applicant did not give evidence in his defence. He argued that his arrest and trial violated the Convention. He relied, inter alia, on Article 5, arguing that there was no reasonable suspicion which would satisfy an objective observer that he had committed an offence; Article 8, arguing that his arrest was arbitrary as it was based on the subjective belief that his nakedness was offensive; Article 9, arguing that he had a strong view that there was nothing indecent about his body and that view was not being respected; Article 10, arguing that he ought to have been given the right to express his views that nakedness was not indecent in the way that he had chosen to do; and Article 14, arguing that he was being discriminated against because he had different views from the majority of people.

The Sheriff found that the applicant’s conduct on 20 July 2011 was severe enough to cause alarm to ordinary people; threatened serious disturbance to the community; and presented as genuinely alarming, in its context, to any reasonable person. He therefore convicted the applicant. In his stated case prepared in the context of the later appeal proceedings, the Sheriff referred to the applicant’s Convention arguments and continued:

“14. I should say that none of these arguments were developed to any extent and it was not always easy to see what [the applicant’s] full argument was. I came to the conclusion that none of the articles suggested by the appellant had been contravened in the procedure ...”

As to the conviction handed down, he explained:

“15. In my view there was no doubt about the facts in this case ... The question was whether the conduct amounted to a breach of the peace. I was of the view that the first part of the test was easily met by the conduct. The appellant was walking along a public street in full view of anyone passing and he was completely naked with his private parts entirely on show. Such conduct would be severe enough to cause alarm to ordinary people especially when it was being carried out in an ordinary public street. It might be different if he had been naked somewhere in private, even in a public place which was remote or where fewer people would be congregated, but in or near one of the main streets of a busy town his appearance in that state would be alarming.

The question which was more troubling was whether the second part of the test was met. Would the conduct cause serious disturbance to the community? I came to the conclusion that the context in which the conduct was taking place – being naked in a brazen fashion in the public street with no attempt to cover himself and no obvious explanation or reason for the conduct – would cause serious disturbance to the community because of the reaction of ordinary people to his presence in that state in that place. That would be particularly so if the community could see that children or vulnerable old people might be present. I considered that the test was met and that the charge was proved beyond reasonable doubt. I therefore found the appellant guilty.”

The applicant was sentenced to a term of imprisonment of 330 days for the breach of the peace and 90 days for the contempt charge, together with 237 days unspent from his previous sentence, a total of 657 days. The sentences were not backdated and they were to run consecutively. The total length of the sentence was therefore one year, nine months and eighteen days.

The applicant sought to appeal his conviction by way of note of appeal and a draft stated case was prepared by the Sheriff.

Adjustments to the stated case were proposed by both parties and a hearing was held. The applicant was not permitted to attend the hearing since he refused to wear clothes.

On 28 October 2011 the applicant lodged an appeal by way of case stated, relying on Articles 5, 6, 7, 8, 9, 10 and 14 of the Convention.

On 18 November 2011 the applicant’s application for leave to appeal was considered by the first sift judge. Leave was refused for the following reasons:

“The appeal is not arguable. The Sheriff has carefully explained the reasons for arriving at his decision. There was no infringement of the appellant’s rights in terms of the European Convention on Human Rights.”

On 22 December 2011 the applicant was refused leave on the second sift. The judges found that for the reasons given by the first sift judge the appeal was not arguable.

The applicant was not kept in segregation while serving his sentence at HMP Perth. He was released on 17 July 2012.

On the same day the applicant was arrested and charged with breach of the peace. He was not held in custody. On 2 August 2012 a decision was made to take no further action.

Meanwhile, on 20 July 2012 he was arrested on the outskirts of Dunfermline and charged with breach of the peace. He was detained on remand and appeared at Kirkcaldy Sheriff Court in August 2012. He was convicted of breach of the peace and detained at HMP Edinburgh and HMP Kilmarnock. He was kept in segregation during his detention.

He was released on 5 October 2012 and headed south towards his home in Eastleigh.

In April 2011 the applicant discovered a lump on his right testicle. He was examined in his cell but was required to wear clothes for external appointments. He refused to dress and subsequently made prison complaints about alleged inadequate medical treatment. When they were unsuccessful, he referred the complaints to the Scottish Ministers but on 10 August 2011 he was informed that they were not upheld. The applicant then contacted the Scottish Public Services Ombudsman (“the Ombudsman”). However, he was advised that his complaint was not one which the Ombudsman could pursue. On 8 February 2012 he was told that the lump had gone.

On 27 August 2011 the applicant made a prison complaint that he was not allowed visits. He was told in reply that he was permitted visits provided that he was appropriately dressed. He referred the complaint to the Internal Complaints Committee (“ICC”) on 1 September 2011. He was advised on 26 September 2011 that the ICC had fully endorsed the suggestion that visits be accommodated in the segregation unit. He was told to discuss this with the relevant staff and book a visit. No visits took place.

On 9 November 2011 the applicant contacted the Ombudsman with a complaint that the Scottish Prison Service (“SPS”) was unreasonably refusing to enable him to receive visits. By letter dated 10 January 2012 he was informed that the Ombudsman had not upheld the complaint because according to information from the SPS, he had been asked to cover his genitalia when walking from A Hall, where he was detained, to the segregation unit. He had refused to do so.

On 14 September 2011 the applicant made a prison complaint about refusal of dental and general medical treatment over the previous five years while he was in detention. By reply dated 20 September 2011 he was advised that the full range of clinical services were available to prisoners and that he was required to comply with the dress code to attend appointments. He referred the complaint to the Scottish Ministers, who did not uphold his complaint.

As noted above, the applicant spent much of his detention in segregation. Even when not in segregation, his ability to participate in activities and to associate with other prisoners was generally limited as long as he remained naked. He was not permitted to access the gym, for health and safety reasons. However, efforts were made to give him access to books and to explore further work or hobbies that could be conducted in his cell. Throughout his time in segregation, the applicant was reviewed regularly by health care professionals.

On 29 January 2012 the applicant complained to the prison authorities that he was not allowed to associate with other prisoners or to exercise. By reply dated 31 January 2012 he was told that he was not being denied association or exercise but had excluded himself from these activities by refusing to wear clothes. The applicant referred the complaint to the ICC on 2 February 2012 but the ICC decided that the current arrangements were satisfactory. It noted that if the applicant were to wear clothes, he would be permitted to associate with other prisoners. However, his choice to remain naked gave rise to serious concerns that he might be the victim of violence or unwarranted comments, and the prison had an obligation to ensure his safety.

In March 2012 the applicant complained to the Ombudsman that the SPS had given an unreasonable explanation for denying him access to association and exercise. By reply dated 24 May 2012 the Ombudsman informed him that his complaint had not been upheld because prison staff had confirmed that if he wore clothes, he would be able to associate with other prisoners and exercise.

The applicant contacted the Law Society of Scotland seeking details of solicitors in Edinburgh experienced in judicial review. He received a list containing the names of fourteen firms, which he duly contacted. None were willing to represent him. However, a further seven firms were recommended to him. He contacted them and was informed that none were willing to represent him.

He then contacted the Court of Session to request information regarding exemption from court fees, with a view to commencing judicial review proceedings without legal assistance. He was advised that as he was a prisoner and not in receipt of any State benefits, he was not eligible for exemption from court fees.


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home)

The first applicant was born in 1976 and is serving a sentence of imprisonment in the Sverdlovsk region. The second applicant was born in 1950 and lives in Vladivostok.

In July 2012 the first applicant’s employer, the prosecutor’s office of the Primorskiy Region, provided him with a flat and concluded a tenancy agreement with him. The second applicant was included in the agreement as a member of the first applicant’s family.

In August 2012 the second applicant was classified as having a firstdegree disability.

On 7 October 2014 the first applicant retired from the prosecutor’s office. On the same date he applied to the General Prosecutor of the Russian Federation with a request for the transfer of the title to the flat in question to him.

On 8 October 2014 criminal proceedings were initiated against the first applicant in respect of a suspected criminal offence. On the same date he was arrested and on 10 October 2014 he was detained pending investigation. On an unspecified date in 2016 the first applicant was released and placed under house arrest.

On 21 November 2014 the first applicant’s request for the transfer of the title to flat in question to him was refused.

On 25 November 2014 the first applicant received notice to vacate the flat by 5 December 2014.

On 26 November 2014 the first applicant’s brother received notice to vacate the flat (the notice was addressed by the prosecutor’s office to the second applicant).

In December 2014 the prosecutor’s office brought eviction claims against the applicants on the grounds that the first applicant no longer worked for the prosecutor’s office and that therefore, he and his family had to vacate the flat.

The first applicant contested those claims. He submitted that it would be unlawful to evict him and his mother because he, as a retired prosecutor, had a right to acquire ownership of the flat in question. He and his mother had no other housing. In addition, his mother was a retired person and had a first-degree disability.

On 27 February 2015 the Frunzenskiy District Court (“the District Court”) dismissed the eviction claims. The prosecutor’s office appealed against that judgment to the Primorskiy Regional Court (“the Regional Court”).

On 8 June 2015 the Regional Court quashed the judgment of 27 February 2015 and delivered a new decision ordering the applicants’ eviction, with no alternative accommodation being provided. The first applicant was represented by a lawyer, K. The second applicant was not present and was not represented in those proceedings. In particular, the Regional Court found that the first applicant and his mother had been provided with a flat for the period of the first applicant’s service in the prosecutor’s office. Under domestic law and the terms of the agreement, the tenants had had to vacate the housing after the termination of the agreement and in the event of their refusal they had had to be evicted with no alternative accommodation being provided. As at the date of the examination of the eviction claims the first applicant had not applied to the Prosecutor General of the Russian Federation for title to the flat in question to be transferred to him; therefore, the District’s Court conclusion as to the absence of any obstacles to the transfer of ownership of the flat in question to the first applicant was in conflict with the circumstances established in the case. As at the date of the examination of the prosecutor’s appeal the question regarding the transfer of ownership of the flat in question to the first applicant had not been decided.

The first applicant lodged a cassation appeal against that decision with the presidium of the Regional Court. He complained that the hearing of 8 June 2015 had been held in his absence and that as a result he had been evicted from the only accommodation he had had.

On 22 July 2015 a judge of the Regional Court refused to refer the first applicant’s appeal to the Civil Chamber of the Regional Court for examination on the merits. The first applicant lodged a cassation appeal with the Supreme Court of the Russian Federation.

On 22 September 2015 the second applicant was evicted from the flat.

On 30 September 2015 a judge of the Supreme Court refused to refer the first applicant’s cassation appeal to the Civil Chamber of the Supreme Court for examination.

In June 2015 the first applicant’s brother (Mr D. Pylayev) initiated court proceedings for the second applicant to be deprived of legal capacity and for him to be appointed as her guardian.

On 11 May 2016 the District Court declared that the second applicant lacked legal capacity because she was suffering from illness. In particular, the District Court based its decision on an expert report dated 25 January 2016 which had established that she had been suffering from a mental handicap since 2010 and as a result had not been able to understand or control her actions. That judgment entered into force on 14 June 2016.

On 29 June 2016 the local public health department appointed the first applicant’s brother as her guardian.


CASE OF SPAHIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA

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);Respondent State to take individual measures (Article 46-2 - Individual measures);Respondent State to take measures of a general character (Article 46-2 - General measures);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani

By five judgments of the Travnik Municipal Court (“the Municipal Court”) of 5 March 2009, 18 January 2012, 31 March 2010, 30 April 2012 and 13 June 2011, which became final on 17 June 2010, 13 February 2012, 1 September 2010, 12 March 2013 and 21 July 2011, respectively, the Central Bosnia Canton (Srednjobosanski kanton, “the CB Canton”; one of the ten cantons of the Federation of Bosnia and Herzegovina) was ordered to pay the applicants various sums in respect of unpaid work-related benefits together with default interest at the statutory rate and legal costs.

The writs of execution issued by the Municipal Court on 23 September 2010, 14 June 2012, 4 October 2010, 13 February 2013 and 25 October 2011, respectively, were transferred to the competent bank and were listed among the charges on the debtor’s account. On several occasions thereafter the bank informed the Municipal Court that the enforcement was not possible because the budgetary funds intended for that purpose had already been spent.

On 26 February 2013 and 7 January 2014 the Ministry of Finance of the CB Canton (“the Ministry”) informed the bank that no funds for the enforcement of final judgments had been provided in the cantonal budget for 2013 and 2014 and that, accordingly, the final judgments against the canton could not be enforced.

However, on 9 January 2015, upon the applicants’ enquiry, the Ministry informed them that in 2013 the canton had designated 620,000 convertible marks (BAM) for the enforcement of judgments and BAM 605,900 in 2014 for the same purpose.

The applicants complained of the non-enforcement to the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”). On 17 September 2014 (decision no. AP 3438/12) and 26 February 2015 (decision no. AP 4242/14), the Constitutional Court found a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention in the applicants’ and five other cases, on account of the prolonged non-enforcement of the final judgments in their favour. It ordered the government of the CB Canton to take the necessary steps in order to secure the payment of the cantonal debt arising from the final judgments within a reasonable time. Although some of the applicants submitted a claim for non-pecuniary damages, the Constitutional Court did not award any compensation.

The relevant part of the decision of 17 September 2014 reads as follows:

“36. ... The court notes that the judgments [in favour of the appellants] have not been enforced due to the lack of funds on the debtor’s bank account.

The Constitutional Court reiterates that under the Constitution of Bosnia and Herzegovina and Article 1 of the European Convention all levels of government must secure respect for individual human rights, including the right to enforcement of final judgments under Article 6 § 1 of the Convention and the right to property under Article 1 of Protocol No. 1 to the Convention ... The scope of that obligation is not reduced in the present case, notwithstanding the large number of judgments ... [T]he Constitutional Court notes that in Jeličić v. BiH, and again in Čolić and Others v. BiH, the European Court of Human Rights reiterated that ‘it is not open to a State authority to cite lack of funds as an excuse for not honouring a judgment debt. Admittedly, a delay in the execution of a judgment may be justified in particular circumstances, but the delay may not be such as to impair the essence of the right protected under Article 6 § 1’ ...

The Constitutional Court agrees with the position taken by the European Court ... it is nevertheless aware of the effects the global economic crisis had on Bosnia and Herzegovina...The court notes that the federal and the cantonal governments had taken certain steps with the view to enforcement of final court decisions. Section 138 of the Federal Enforcement Procedure Act 2003 provides that the final judgments against the Federation and the cantons shall be enforced within the amount of budgetary funds designated for that purpose ... and that the creditors shall enforce their claims in the order in which they acquired the enforcement titles ...

The court finds that the crux of the problem in the present case is that the CB Canton did not identify the exact number of unenforced judgments and the aggregate debt ... without which it is impossible to know when all the creditors will realise their claims against this canton. Furthemore, there should exist a centralised and transparent database of all the claims listed in chronological order according to the time the judgments became final. It should include the enforcement time-frame and a list of partial payments, if any. This will also help to avoid abuses of the enforcement procedure. These measure and adequate funds in the annual budget would ensure that all the final judgments are enforced within a reasonable time ... and the CB Canton would ensure the respect of its obligations from Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention.

The court considers that the adoption of section 138 of the Enforcement Procedure Act 2003 had a legitimate aim, because the enforcement of a large number of judgments at the same time would jeopardise the normal functioning of the cantons. However, the limitation of the enforcement in the present case is contrary to the principle of proportionality enshrined in Article 1 of Protocol No. 1 which requires that a fair balance is struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights ... Section 138 places a disproportionate burden on the appellants ... they are placed in a situation of absolute uncertainty as regards the enforcement of their claims ...

In order to comply with its positive obligation, the government of the CB Canton must, as explained above, calculate the total amount of the aggregate debt arising from the final judgments and prepare a comprehensive and transparent database ... This court will not specify what a reasonable time-limit should be ... but, in any event, it must be in accordance with Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention.

... The current situation does not give any guarantees to the appellants that their claims against the CB Canton will be enforced within a reasonable time”.

The Constitutional Court’s decision of 26 February 2015 follows the same legal reasoning.

On 19 January 2016 Mr Jasmin Hodžić and Ms Jasmina Mezildžić concluded out-of-court settlements with the government of the CB Canton pursuant to which part of their principal claims were to be paid within 15 days following the settlement. They renounced the remaining principal claim and default interest. The legal costs were to be settled by a separate agreement. From the information available in the case it transpires that no such agreement has been concluded.

As regards the rest of the applicants, the final judgments in their favour have not yet been enforced.


CASE OF KARAPETYAN AND OTHERS v. ARMENIA

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

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano

The applicants, Mr Vladimir Karapetyan (the first applicant), Ms Martha Ayvazyan (the second applicant), Mr Araqel Semirjyan (the third applicant) and Ms Karine Afrikyan (the fourth applicant), are Armenian nationals who were born in 1969, 1967, 1973 and 1954 respectively and live in Yerevan.

At the material time, the applicants occupied different posts within the Ministry of Foreign Affairs, namely Head of Press and Information Department, Head of NATO Division of Arms Control and International Security Department, Counsel of the European Department and Head of USA and Canada Division of the American Department respectively.

On 19 February 2008 a presidential election was held in Armenia. The main contenders were the then Prime Minister, Serzh Sargsyan, and the opposition candidate, Levon Ter-Petrosyan. Immediately after the election, Levon Ter-Petrosyan announced that the election had been rigged. From 20 February 2008 onwards nationwide protests, such as demonstrations and sit-ins, were organised by thousands of Levon Ter-Petrosyan’s supporters.

On 23 February 2008 several ambassadors for Armenia in foreign countries made the following statement:

“We, the undersigned, remaining faithful to our calling as Armenian diplomats and led by our feeling of responsibility before the Republic of Armenia and the Armenian people, with concern for the situation which has arisen in Armenia, with profound respect for the right of Armenian citizens to free elections, with the conviction that only a president elected as a result of free and fair elections can best tackle the challenges facing our country on the international level and substantially raise the international image of Armenia, express our support to our compatriots who have risen to struggle for freedom, protection of the right to a fair election and establishment of true democracy in Armenia.

Considering the preservation of stability in the country important and public accord necessary, we appeal to our compatriots and especially the representatives of all the structures in the country responsible for maintaining public order and peace to avoid the temptation of resolving problems by use of force.

We appeal to all television companies in Armenia, and especially to Armenian Public Television, to ensure impartial and comprehensive coverage and to provide live airtime to representatives of all the powers who have a constructive position in overcoming the current inner-political crisis.

We appeal to all our colleagues working both in Armenia or abroad to join our statement.”

This statement was reported by the mass media on the same day. According to the first applicant, he also received the statement via his electronic mail. According to the Government, the ambassadors who issued this statement were dismissed from their posts the following day and their dismissal was widely reported in the media.

On 24 February 2008 the applicants made the following statement:

“By joining the statement issued by our colleagues from the Ministry of Foreign Affairs we express our concern with the situation created in Armenia, fraught with internal and external undesirable challenges, and outrage against the fraud of the election process, which shadow the will of our country and society to conduct a civilised, fair and free presidential election.

As citizens of Armenia, we demand that urgent steps be undertaken to call into life the recommendations contained in the reports of the international observation mission, as well as other prominent international organisations.

Only by acting in conformity with the letter and spirit of the law can we create democracy and tolerance in Armenia and earn the country a good reputation abroad.”

The names of the applicants, with the indication of their office, appeared under the statement. It appears that this statement was reported by several mass media outlets, including Radio Liberty, on the same day.

On 25 February 2008 the Minister for Foreign Affairs of Armenia adopted decrees dismissing the first, second and third applicants from office. The fourth applicant was dismissed from office by a similar decree on 3 March 2008. As a ground for the dismissals, the decrees referred to sections 40, subsection 1, point (j) and 44, subsection 1, point (c), of the Diplomatic Service Act (ՀՀ օրենքը «Դիվանագիտական ծառայության մասին», containing description which stated, inter alia, that a diplomat had no right to use his official capacity and work facilities for the benefit of parties and non-governmental organisations, or in order to carry out other political or religious activity (see paragraphs 22-24 below).

On an unspecified date in March 2008, the applicants instituted administrative proceedings challenging their dismissal and seeking to be reinstated in their work. In particular, they claimed that the decrees on their dismissal contained no reasons regarding the particular instance where they had made use of their official capacity and work facilities for the benefit of parties or non-governmental organisations or for engaging in political or religious activities, as prohibited by the sections of the Diplomatic Service Act. They also claimed that dismissal on the ground of convictions and opinions was prohibited by law.

On 10 April 2008 the Ministry of Foreign Affairs, as a respondent, lodged a response with the Administrative Court (ՀՀ վարչական դատարան), claiming that the applicants, by making their statement of 24 February 2008 which had then been reported by the mass media and announced during the demonstration, had engaged in political activities. Furthermore, the applicants had made use of their official capacity since they indicated their official titles in the statement.

On 29 May 2008 the Administrative Court dismissed the applicants’ claim, finding that their dismissal from work was lawful since the applicants, by making the impugned statement, in essence had engaged in political activity. In this respect, the Administrative Court mentioned that the impugned statement concerned political processes as it contained a political assessment of election and post-election events. Furthermore, that statement, as well as that of the ambassadors, had been read aloud during the demonstration organised by a political force and had received a political assessment. The Administrative Court also found that the applicants, by indicating their post titles, had made use of their official capacity. The applicants’ right to freedom of expression, as protected by Article 27 of the Constitution (ՀՀ Սահմանադրություն), was not breached since the applicants, in exercising that right, had made use of their official status and work facilities. Therefore, the restriction on that right was in compliance with Article 43 of the Constitution. Besides, the applicants had not been dismissed on the ground of their political opinion, but because in disseminating that opinion they had made use of their official status, which was prohibited by law.

On an unspecified date, the applicants lodged an appeal on points of law against the judgment of the Administrative Court, claiming, inter alia, a violation of their right to freedom of expression, as protected by Article 10 of the Convention. Besides, they claimed that they had been discriminated against on grounds of political opinion, in violation of Article 14, since those diplomats or state officials who had expressed publicly their support for the pro-governmental candidate had never faced any sanctions: the true reason for their dismissal was their critical opinion of government actions in the sphere of human rights and democratisation. They also claimed that their dismissal had been based on an erroneous interpretation of sections 40, subsection 1, point (j) and 44, subsection 1, point (c), of the Diplomatic Service Act since they had not made use of their official capacity or work facilities when making the impugned statement. Furthermore, the statement had not been made for the benefit of any political party and it could not be qualified as political activity as such.

On 23 September 2008 the Court of Cassation (ՀՀ վճռաբեկ դատարան) decided to declare the applicants’ appeal on points of law inadmissible for lack of merit.