André Potocki;Angelika Nußberger;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

A list of the applicants, who lodged the present applications between 23 December 2005 and 31 August 2006, is set out in the appendix.

The Ukrainian Government (“the Government”) were represented by their Agents, most recently, Mr I. Lishchyna.

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

On 27 July 2002 the Air Force of Ukraine staged a military aviation show at the Sknyliv aerodrome in Lviv. During the aerobatics performance, an SU-27 military aircraft crashed into a crowd of spectators and exploded. Both pilots had successfully ejected before the explosion. As a result of the crash, seventy-seven people were killed and over 290 people, including the applicants, sustained damage to their health (see details in paragraphs 17-50 below).

On the date of the accident criminal proceedings were instituted to establish the cause of the crash.

On various dates the applicants were admitted in these proceedings as injured parties and civil claimants. Following individualised assessments of the applicants’ injuries by forensic experts within the framework of those proceedings, they were divided in three categories: “minor injuries”, “injuries of intermediate seriousness” and “grave injuries” depending on their impact on the applicants’ health and well-being, the reversibility or irreversibility of their nature, the length of recovery and the intensity of the medical intervention required. The seriousness of both the physical and the emotional trauma were taken into account in the process of attribution to a category.

On 27 August 2004 the criminal proceedings against four officers of the rank of general (hereinafter “the organisers’ case”) were disjoined from the criminal proceedings against the pilots and the supporting ground crew (hereinafter “the performers’ case”).

On 23 June 2005 the Central Region Military Court of Appeal examined the performers’ case and found the two pilots of the crashed aircraft and three supporting crew members guilty of negligence. These officers were sentenced to various terms of imprisonment.

On the same date the court also ruled on the applicants’ civil claims, awarding them various amounts in respect of pecuniary damage (mostly medical expenses) and non-pecuniary damage in connection with physical injuries and emotional distress, to be paid by the Ministry of Defence (see details in the appended table below).

The applicants appealed, seeking, in particular, an increase in the compensation payments.

On 2 March 2006 the Military Panel of the Supreme Court of Ukraine rejected the applicants’ appeals and the judgment in the performers’ case became final.

Between June 2006 and March 2007 all the judgment awards due to the applicants were paid out.

Some applicants lodged further civil claims within the framework of the organisers’ case, which was still ongoing at the material time.

On 11 June 2008 the Central Region Military Court of Appeal examined the organisers’ case and acquitted the four officers charged in these proceedings.

On 22 October 2008 this decision was upheld on appeal by the Military Panel of the Supreme Court of Ukraine and all the civil claims lodged within the framework of the organisers’ case were left unexamined in view of the acquittal.

On various dates starting from 2002, in addition to the compensation awarded by the court, almost all of the applicants also obtained payments in State and municipal aid from the Sknyliv accident victim relief funds (see details in the appended table below). Every applicant also obtained further payments ranging from 2,620 hryvnias (UAH) (Ms Liliya Belinska; minor emotional injury) to UAH 41,000 (Mr Denis Gavrylov; grave injury) from charitable funds set up and managed by the authorities to attract private donations in aid to the Sknyliv accident victims. On various occasions some of the applicants were also provided with vacation vouchers and recreational treatment vouchers to facilitate their mental and physical recovery. For more details concerning the accident, the ensuing investigation and State and municipal aid to the victims see Mikhno v. Ukraine, no. 32514/12, §§ 12-58 and 67-71, 1 September 2016 and Svitlana Atamanyuk and Others v. Ukraine, nos. 36314/06 and 3 others, §§ 17-64 and 71-75, 1 September 2016).

The present application was lodged by two Ukrainian nationals who are resident in Lviv: Mrs Tetiana Kostyantynivna Gavrylova, born in 1949 and Mr Denis Oleksandrovych Gavrylov, born in 1987. Mrs Tetiana Gavrylova is the mother of Mr Denis Gavrylov. The applicants were represented by Mr T.R. Sendega, a lawyer practising in Lviv.

As a result of the Sknyliv air show accident, Mrs Tetiana Gavrylova sustained a blunt soft tissues leg injury with haemorrhage and multiple abrasions cumulatively classified by domestic forensic experts as injuries of “intermediate seriousness”.

Mr Denis Gavrylov had his popliteal artery and right leg muscles crushed. He also sustained multiple abrasions, contusions and other injuries cumulatively classified by domestic forensic experts as a “grave injury”. Following the accident, he underwent treatment in the hospital rehabilitation unit followed by lengthy inpatient and outpatient treatment.

By the time the present application was lodged in December 2005, Mr Gavrylov had been classified as suffering from “second (intermediate) degree” disability under domestic classification and was in receipt of a disability pension.

The present application was lodged by three Ukrainian nationals resident in Lviv: Mrs Natalya Yaroslavivna Chorna, born in 1971, Mr Anton Bogdanovych Chornyy born in 1977 and Mr Bogdan Antonovych Chornyy, born in 1999. The first two applicants are spouses and the third applicant is their son. They were represented by Mr D.A. Gudyma and Ms S.V. Khyliuk, lawyers practising in Lviv.

According to the applicants, they were so close to the site of the SU27 aircraft crash that their clothes were stained with the blood and body parts of people injured and dying around them. In order to reach safety, they had to make their way past numerous mutilated corpses and disfigured screaming people along the aerodrome runway.

Mrs Natalya Chorna sustained an ankle injury with a ligament rupture, contusion and haematoma. Subsequently she was also diagnosed as suffering from post-traumatic stress disorder, which transformed into asthenic-depressive neurosis. Her injuries were classified as injuries of “intermediate seriousness” by domestic forensic experts.

Mr Anton Chornyy was diagnosed as suffering from post-traumatic stress disorder. His psychological trauma was classified by domestic forensic experts as a “minor injury”.

Mr Bogdan Chornyy, a three-year old minor at the date of the accident, sustained a contused cerebral wound, concussion and a haematoma. He also developed post-traumatic stress disorder, which included symptoms such as fear of crowds and sleep disturbance. He also suffered from various forms of physiological dysfunction, including a stutter and disruption of his speech development. Mr Bogdan Chornyy’s injuries were classified by the domestic forensic experts as ones of “intermediate seriousness”. On several occasions in the years that followed, Mr Bogdan Chornyy was placed on inpatient treatment programmes in psychoneurological institutions.

According to the applicants, at the date of the exchange of observations in 2013, they were still suffering from the after-effects of the accident. They provided numerous medical documents as evidence that they had continued to be under on-going medical supervision in connection with the psychological trauma sustained at the accident site.

The present application was lodged by Mr Boris Borisovich Yudin, a Ukrainian national born in 1946 and resident in Lviv. The applicant was represented by Ms Y.V. Kulbiy-Kukhar, a lawyer practising in Lviv.

As a result of the Sknyliv air show accident, Boris Yudin sustained a heavy cerebral contusion with subarachnoid haemorrhage and a fracture of the clavicular bone. For six days after the accident he was in a coma. Upon regaining consciousness, he suffered from partial amnesia, temporary speech loss, hallucinations and was unable to walk. Following intensive inpatient neurological treatment, Boris Yudin regained some cerebral functions. However, he never attained full recovery and by 2006 he had been classified as suffering from disability of “the first degree” in need of outside assistance for meeting basic daily needs. According to classification by domestic forensic experts, Boris Yudin’s trauma was classified as a “grave injury”.

The present application was lodged by two Ukrainian nationals ‒ Mrs Iryna Grygorivna Reshetilova, born in 1950, and Mr Viktor Mykhaylovych Yegorov, born in 1957, and a US national ‒ Mr Nikita Sergejevich Bastrakov, born in 1998. The first two applicants are the grandparents of the third applicant. All three applicants are resident in Lviv. They were represented by Mr A.P. Syvyk, a lawyer practising in Lviv.

According to the applicants, on the date of the accident, moments before the SU-27 hit the ground, Mr Bastrakov − a four-year-old minor at that time − was watching it with his mouth open, while Mrs Reshetilova said to him in amusement: “Wow, look how low can this airplane fly!” The next moment, Mr Yegorov, having suddenly realised that the aircraft was falling, pushed his grandson to the ground and covered him with his body, urging his wife to likewise lie on the ground. Moments later, the applicants were hit by the heat wave from the aircraft’s turbines, which burnt their clothes and skin. The soles of Mr Yegorov’s shoes were also completely burned. When the applicants finally got onto their feet, they were covered with other people’s blood and with soot from the aircraft, which had exploded some distance from them.

As a result of the accident, Mrs Reshetilova suffered multiple burns to her face, limbs and eyes. The heat wave from the aircraft’s turbines also entered her respiratory system and burned her larynx, trachea, bronchi and lungs. In addition, Mrs Reshetilova suffered an acute neurological reaction to stress. Domestic forensic experts classified her injuries as “minor”. According to the applicant, this classification was incorrect, as she had never fully recovered from her injuries. She provided extensive medical documentation as evidence to prove that the after-effects of her injuries included chronic obstructive bronchitis, pulmonary emphysema, encephalopathy, and various other medical complications. By 2006 Mrs Reshetilova had been classified as suffering from general disability of the “third (mildest) degree” according to the domestic classification system.

Mr Viktor Yegorov sustained contusion of the chest area, fractures of the fifth and seventh vertebra and multiple abrasions cumulatively classified by domestic forensic experts as “injuries of intermediate seriousness”. He also developed complications, including frequent headaches, back pain and a number of other neurological symptoms.

Mr Nikita Bastrakov sustained a hand wound, face abrasions and post-traumatic stress disorder manifested most markedly, through phobias, asthenic symptoms and bed-wetting. His injuries were classified by domestic forensic experts as being of “intermediate seriousness”.

The present application was lodged by Mrs Galyna Ivanivna Kurylka, a Ukrainian national born in 1958 and resident in Lviv. The applicant was represented by Mr D. A. Gudyma and Mrs S. V. Khyliuk, lawyers practising in Lviv.

As a result of the accident, the applicant suffered contusion of her foot and developed post-traumatic stress disorder classified by domestic forensic experts as a “minor injury”. According to the applicant, this classification was incorrect, as her mental state had in fact deteriorated to a point that she was forced to quit her employment as a kindergarten mentor. After a series of inpatient and outpatient treatment programmes, in 2006 Mrs Kurylka was classified as suffering from “second-degree” (moderately serious) disability and unfit for work, excluding the performance of domestic tasks. At the time of the exchange of observations in 2013, Mrs Kurylka was unemployed on a disability pension and was under permanent outpatient psychiatric supervision. In addition, several times per year she participated in courses of inpatient rehabilitative treatment in psycho-neurological institutions.

The present application was lodged by Ms Khrystyna Viktorivna Koshulap (married name Dzyunka), a Ukrainian national born in 1989 and resident in Lviv. She was represented by Mr D.A. Gudyma and Ms S.V. Khyliuk, lawyers practising in Lviv.

As a result of the Sknyliv air show accident, Ms Koshulap, a thirteen-year-old minor at that time, sustained a complicated hand injury with damage to the extensor tendons classified by domestic forensic experts as an “injury of intermediate seriousness”. She underwent a series of reconstructive operations followed by inpatient and outpatient treatment programmes. It is not clear from the case file whether the applicant has fully recovered.

The present application was lodged by two Ukrainian nationals resident in Lviv: Mr Anatoliy Romanovych Garasymiv, born in 1964, and Mr Volodymyr Anatoliyovych Garasymiv, born in 1991. Mr Anatoliy Garasymiv is the father of Mr Volodymyr Garasymiv. The applicants were represented by Mr D.A. Gudyma and Ms S.V. Khyliuk, lawyers practising in Lviv.

As a result of the Sknyliv air show accident, Mr Anatoliy Garasymiv sustained cerebral concussion, multiple facial and head burns, as well abrasions to the fingers and knees, cumulatively classified by domestic experts as “minor injuries”. According to him, this classification was incorrect, as he had never regained his health and continued to suffer from the after-effects of the accident at the date of the exchange of observations in 2013. As a result of his physical injuries and stress, Mr Anatoliy Garasymiv started suffering, in particular, from frequent headaches, hypertonic disease, and other complications. Within a few months of the accident he was forced to abandon his career as a military wind instrument player and was eventually dismissed from the military forces on health grounds. By 2006, Mr Anatoliy Garasymiv was classified as suffering from disability entailing 40% loss of capacity to work.

Mr Volodymyr Garasymiv, an eleven-year-old minor at the date of the accident, developed post-traumatic stress disorder classified by domestic experts as “minor injury”.

The present application was lodged by Ms Liliya Bogdanivna Belinska (married name Salo), a Ukrainian national born in 1985 and resident in Lviv. She was represented by Mr D.A. Gudyma and Ms S.V. Khyliuk, lawyers practising in Lviv.

As a result of the Sknyliv air show accident, Ms Liliya Belinska, a seventeen-year-old minor on the date of the accident, developed posttraumatic stress disorder, which was treated on an outpatient basis. Her trauma was classified by domestic forensic experts as a “minor injury”.

The present application was lodged by Ms Liubov Grygorivna Stupets, a Ukrainian national born in 1961 and resident in Lviv. She was represented by Mr D.A. Gudyma and Ms S.V. Khyliuk, lawyers practising in Lviv.

Ms Liubov Stupets sustained rupture of the acromio-clavicular ligament, her injury having been classified by domestic experts as one of “intermediate seriousness”. According to the medical documents presented by Ms Stupets, treatment of this trauma required several surgical interventions and extensive inpatient rehabilitation treatment. The applicant had to abandon her career in sports and as a school physical education teacher. In November 2002 she was classified as suffering from disability of the “third degree”. By 2006 her state of health was still deteriorating: she developed post-traumatic arthritis, pain syndrome, and a number of neurological and other conditions. At the date of the exchange of observations in 2013, the applicant was receiving a disability pension.

The present application was lodged by Ms Nataliya Yaroslavivna Sivanych (married name Buntseva), a Ukrainian national born in 1985 and residing in Lviv. She was represented by Mr D.A. Gudyma and Ms S.V. Khyliuk, lawyers practising in Lviv.

As a result of the Sknyliv air show accident, Ms Nataliya Sivanych sustained cerebral concussion, numerous wounds and fractures of several foot bones, which required inpatient treatment followed by an outpatient rehabilitation programme. The applicant’s injuries were cumulatively classified by domestic forensic experts as ones of “intermediate seriousness.”

The present application was lodged by two Ukrainian nationals residing in Lviv: Mr Anatoliy Mykolayovych Shevchuk, born in1967 and Mr Andriy Anatoliyovych Shevchuk, born in 1991. Mr Anatoliy Shevchuk is Mr Andriy Shevchuk’s father. The applicants were represented by Mr D.A. Gudyma and Ms S.V. Khyliuk, lawyers practising in Lviv.

According to the applicants, as the fallen aircraft exploded, parts of it flew their way. Both of them would have probably been killed, had it not been for Mr Anatoliy Shevchuk’s quick reaction: he managed to push his son to the ground and cover him with his body just before the moment they would have otherwise been hit by these flying parts. When the applicants got up, they saw numerous mutilated bodies of dead, burnt and wounded people around them. Whilst attempting to provide first aid to accident survivors, Mr Anatoliy Shevchuk lost view of his son, who wandered off in the midst of the mutilated bodies and screaming people. After having looked for his son for about an hour, Mr Anatoliy Shevchuk found him uninjured physically, but in a state of deep mental shock, unable to speak or make productive contact with others. Mr Andriy Shevchuk was immediately placed in a psycho-neurological hospital for inpatient treatment.

On 28 July 2002 Mr Anatoliy Shevchuk went back to work and attempted to resume his normal duties. However, after suddenly developing a stutter, he applied for psychiatric assistance.

Subsequently, both applicants underwent several sessions of inpatient psychiatric treatment followed by outpatient treatment and regular supervision. They were diagnosed with post-traumatic stress disorder classified by domestic experts as an “injury of intermediate seriousness”.

Article 49 of the Constitution of Ukraine (1996) provides, in particular, as follows:

“ Everyone has the right to health protection, medical care and medical insurance.

Health protection is ensured through state funding of the relevant socio-economic, medical and sanitary health improvement and prophylactic programmes.

The State creates conditions for effective medical service accessible to all citizens. State and communal health protection facilities provide medical care free of charge; the existing network of such institutions shall not be reduced. The State promotes the development of medical facilities of all forms of ownership. ...”

Other relevant provisions of domestic law are cited in the Court’s judgment in the case of Mikhno (cited above, §§ 76-105).


CASE OF LIŢĂ AND S.C. GEORGIANA IMPORT EXPORT S.R.L. v. ROMANIA

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

The relevant details of the application are set out in the appended table.

The applicants complained of the excessive length of civil proceedings.


Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Uzbekistan)

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

The first applicant, Mr Avazbek Mukhammad Ugli Nizamov, was born in 1992. The second applicant, Mr Khakim Tursunovich Dzhalalbayev, was born in 1983. The third applicant, Mr Rakhmatullo Abudullayevich Mukhamedkhodzhayev, was born in 1989. The fourth applicant, Mr Olim Tursunovich Dzhalalbayev, was born in 1979. The applicants are currently detained in Moscow.

In 2011-12 the applicants moved from Uzbekistan to Russia to seek employment.

On 15 October 2012 an investigator with the Uzbek Ministry of the Interior indicted the applicants on the charges of participation in an extremist religious group known as the Islamic Movement of Turkestan and attempting to overthrow the State’s constitutional order in Uzbekistan and ordered their arrest. Their names were put on the list of wanted persons.

On 15 November 2012 the applicants were arrested at Vnukovo airport in Moscow.

On 17 November 2012 the Solntsevskiy District Court of Moscow authorised the applicants’ detention pending extradition. On 13 December 2012 the District Court further extended their detention until 15 June 2013.

Between 26 March and 1 April 2013 the General Prosecutor of the Russian Federation refused the Uzbek authorities’ request for the applicants’ extradition citing, as a ground for his decision, Article 464 § 1 (6) of the Russian Code of Criminal Procedure which banned extradition in respect of persons charged with an offence not punishable under the Russian criminal law. The parties did not submit copies of the relevant decisions.

Between 27 March and 4 April 2013 the Acting Moscow Prosecutor for Supervision of Legal Compliance for Air and Water Transport ordered the applicants’ release.

The applicants were immediately re-arrested as illegal aliens. The Babushkinskiy District Court of Moscow examined the applicants’ cases, imposed an administrative fine of 2,000 Russian roubles on each of them and ordered their expulsion to Uzbekistan. The court noted that the applicants had failed to leave Russia upon the expiration of the permissible three-month period of residence without a permit. It further noted that the applicants’ request for asylum had been refused and that they had not applied for “legalisation” of their stay in Russia.

The District Court delivered the relevant decisions on 28 March, 3, 5 and 9 April 2013 respectively.

The applicants appealed. They argued, inter alia, that their removal to Uzbekistan would be contrary to Article 3 of the Convention and that they would run a risk of being subjected to torture and inhuman and degrading treatment if forcefully returned to Uzbekistan to be tried for the offences they were charged with.

Between 4 and 16 April 2013 the Court indicated to the Government, under Rule 39 of the Rules of the Court, that the applicants’ removal/expulsion to Uzbekistan should be suspended until further notice.

On 14 May 2013 the Moscow City Court dismissed the applicants’ appeals and upheld the expulsion orders. The court found the applicants liable for their failure, as foreign nationals, to leave Russia upon the expiry of the maximum permissible period of temporary residence in the country. It further noted that the applicants were refused refugee status even though it considered their asylum application to be irrelevant for the purpose of the proceedings. Lastly, referring to the interim measure indicated by the Court to the Government, the City Court suspended the execution of the expulsion orders until further notice.

It appears that the applicants are held in custody to date.

On 28 December 2012 the first applicant lodged an application seeking asylum in Russia claiming that, if returned to Uzbekistan, he would be subjected to unlawful criminal prosecution on fabricated charges. In the follow-up interview with the migration authorities, the first applicant explained that (1) he had come to Russia to seek employment; (2) he had not been persecuted prior to leaving Uzbekistan; (3) he had not received any direct threats in Uzbekistan; (4) he had not been affiliated with any party or non-governmental organization; and (5) he had been unaware of the criminal proceedings instituted against him in Uzbekistan until his arrest on 15 November 2012.

On unspecified dates the second, third and fourth applicants lodged similar applications.

On 21 February 2013 the Moscow Federal Migration Service refused to grant refugee status to the second applicant. The parties did not submit a copy of the relevant decision. Nor did they inform the Court whether the second applicant appealed against the decision of 21 February 2013.

On 25 February 2013 the Moscow Federal Migration Service dismissed the first applicant’s application. The relevant decision stated as follows:

“[The first applicant] did not apply for asylum within one day of his arrival in Russia ... .

According to the information submitted by the Federal Migration Service of Russia, ‘the internal political situation in Uzbekistan is characterised by relative stability. The authorities control it through law-enforcement bodies and traditional institutions of local self-government.

Uzbek foreign policy is sufficiently active. The Republic is recognised by 150 States. It has established diplomatic relations with 88 of them. It has more than 40 embassies and consulates abroad. One of the priorities of Uzbek foreign policy is international cooperation for the purposes of preserving stability and peace at the regional and global levels.

Uzbekistan is a member of major international organisations. It has ratified all international human rights conventions, the provisions of which have been incorporated into the national legislation.

As of 1 January 2008, the President’s Decree on the abolition of the death penalty has been in force in Uzbekistan. ... Currently the most severe sentence in Uzbekistan is life imprisonment.

Uzbekistan has ratified all six major UN human rights treaties. It regularly submits periodic compliance reports to UN bodies. As a whole, the country’s parliament has ratified more than 60 international human rights treaties. ...’

According to the materials in the case-file, ... [the first applicant] does not wish to return to [Uzbekistan] for fear of being prosecuted on the charges brought against him in the Republic of Uzbekistan.

It should be noted that the offences he is charged with are punishable under the Russian criminal law and the prescription period for criminal liability for such offences has not expired under the Russian criminal law.

Having instituted criminal proceedings against [the first applicant], the law enforcement authorities of the Republic of Uzbekistan do not intend to prosecute him on account of his belonging to a particular social group, his nationality, religion or political opinion.

Upon arrival in Russia in July 2011, [the first applicant] did not seek refugee status in the Russian Federation. He lodged such an application only after his arrest and placement in [custody].

Regard being had to the above, it follows that [the first applicant] is not running a risk of being subjected to persecution in the Republic of Uzbekistan [on account of race, religion, nationality, belonging to a social group or political opinion] and does not qualify to be recognised as a refugee ... .

The reasons, as stated by [the first applicant], for his refusal to return to the Republic of Uzbekistan do not justify his fear of being subjected to persecution on account of faith, nationality, ethnicity, belonging to a social group or political opinion.”

On 26 April 2013 the Federal Migration Service of the Russian Federation upheld the decision of 26 April 2013. It appears that the first applicant did not challenge the said decisions in court.

On 29 March and 9 April 2013 the Moscow Federal Migration Service dismissed the fourth and third applicants’ applications for asylum. It reiterated verbatim the reasoning of the decision of 25 February 2013. It appears that no appeal was lodged against the said decisions.


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

Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque

The first applicant was born in 1992 and is currently serving a prison sentence in Aiud Prison, while the second applicant is his mother and lives in Aiud.

The first applicant was arrested on 24 October 2008 on suspicion of multiple thefts, together with several other accused. He was 15 years old at the time. The prosecutor ordered that he be remanded in custody for ten hours and applied for him to be placed in pre-trial detention for fifteen days.

The Alba-Iulia District Court (“the District Court”) allowed the prosecutor’s office’s application the same day. The reasons adduced by the court to justify the first applicant’s detention were the strong suspicion that the offences had been committed, as well as the repeated nature and the gravity of the offences.

In assessing the impact on the public the first applicant’s release from detention would have, the court stressed that the acts had allegedly been committed by a significant number of perpetrators over a long period of time. It noted that prior measures against the first applicant, such as a warning and two administrative fines, had been unable to prevent him from committing further thefts.

In an indictment dated 18 November 2008 the prosecutor’s office attached to the District Court charged the first applicant and six other defendants with thirteen counts of theft allegedly committed between 25 April and 9 September 2008.

The first applicant’s pre-trial detention was regularly extended by interlocutory judgments of the District Court.

The reasons adduced by the court were that, although he was a minor, there was a reasonable suspicion that he was guilty of the thefts and would pose a danger to public order, given that he had developed a habit of stealing. His age was not considered to be an argument in favour of his release pending trial. Furthermore, in one of the interlocutory judgments it was mentioned that he did not have an occupation or place of work and thus would be unable to support himself by honest means – there was therefore a risk that he would continue to commit theft.

The first applicant lodged appeals on points of law against the extension of his detention. He claimed, inter alia, that he was a minor, that he had committed the offences under the influence of his codefendants, who were adults with a criminal record, and that his detention among adults without access to education had had a negative impact on him. He also stated that, under national law and the Court’s case-law, detention of a minor should be a preventive measure of last resort.

The Alba County Court consistently dismissed the first applicant’s appeals, endorsing the reasoning of the lower court for keeping him in detention.

The first applicant lodged a request for his pre-trial detention to be replaced with alternative measures, such as a ban on him leaving town. He said that he had already been detained for 180 days and therefore the initial reasons for extending his detention no longer applied. He also submitted that he had had time to understand the consequences of his criminal behaviour and had changed. The second applicant and the first applicant’s uncle made written statements promising to take responsibility for supervising him if released, and presented to the court a job offer that he could take up if released.

On 15 June 2009 the District Court dismissed the first applicant’s request. It had regard to the gravity of the offences allegedly committed by him, the severity of the sentence that could be applied to him and the risk of him reoffending. The judgment was upheld by the Alba County Court, which dismissed the first applicant’s appeal on points of law for the same reasons.

On 23 November 2009 the first applicant was eventually convicted of theft and sentenced to five years’ imprisonment by the District Court. On 17 May 2010 an appeal on points of law by him against this judgment was dismissed by the Alba Court of Appeal.

According to information submitted by the Government, the first applicant was detained in prisons for adults between 24 October 2008 and 9 March 2010, but did not share his cells with adult prisoners. Moreover, between 24 October and 24 November 2008 he occupied an individual cell. His contact with adult prisoners was very limited.


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)

Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicant was born in 1938 and lives in Hamburg.

On 19 March 1970 the applicant married A.S. From 1980 the couple lived in Hamburg and as of 1986 they resided in a rented apartment. In 1992 they moved to Riga but maintained their place of residence in Hamburg. In Riga the couple acquired an apartment, which was the applicant’s registered address in Latvia at that time. In 1999 or 2000 the applicant moved back to Hamburg and stayed in the couple’s previous place of residence. The couple maintained contact by telephone and post. On 15 December 2000 they both signed a paper which stated that “with view of regulating their separated life, [the applicant and A.S.] conclude the following agreement”. There is no information on the content of that document.

According to the documents submitted by the applicant, her residence permit in Latvia expired on 15 January 2002. The Government maintained that the correct date had been 14 May 2003.

On 5 December 2003 A.S. brought divorce proceedings concerning his marriage to the applicant before the Riga City Ziemeļu District Court (Rīgas pilsētas Ziemeļu rajona tiesa). In his application A.S. stated that the last time he had seen his spouse had been in 2000 and that their marriage was to all intents and purposes dissolved. He also submitted that prior to lodging this claim he had talked to the applicant over the telephone and had informed her of his intention to bring divorce proceedings. He had invited her to submit in writing any pecuniary claims she might have in relation to their common property; however, the applicant had refused to discuss this issue. A.S. also alleged that the applicant’s last known place of residence had been their apartment in Riga and that, owing to their disagreements, he could not find out where the court summons should be sent to. Accordingly, A.S. suggested that the applicant should be summoned to the hearing by a notice in the Official Gazette.

On 13 January 2004 the Riga City Ziemeļu District Court summoned the applicant to a divorce hearing by sending summons to her previous place of residence in Riga – the apartment in which she used to live with her husband A.S. Upon receiving the information from post authorities that the applicant did not live at the above address, on 27 January 2004 the applicant was summoned to the hearing scheduled for 1 March 2004 with a notice in the Official Gazette. Said hearing was postponed at A.S.’s legal representative’s request in order to present additional evidence. With a notice in the Official Gazette of 3 March 2004 the applicant was summoned to a divorce hearing scheduled for 6 April 2004.

At the hearing of 6 April 2004 the Riga City Ziemeļu District Court established that the applicant had been summoned to the hearing in accordance with the requirements of the Civil Procedure Law. Therefore, it ruled that the adjudication of the case could take place in her absence. Owing to his poor health, A.S. was represented by a lawyer who stated, inter alia, that A.S.’s and the applicant’s children lived in Greece. After hearing testimony from two witnesses, who stated that they had not seen the applicant since 2000, the court granted the divorce. No appeal was brought against this judgment and it came into force on 27 April 2004.

On 29 April 2004 A.S. married A.A. – one of the witnesses who had testified in the divorce proceedings. The following day A.S. passed away.

According to the applicant, she learned about the judgment dissolving their marriage when she came to Riga for A.S.’s funeral. The Government did not dispute this fact.

Following a request by the applicant of 26 May 2004 the Justice Authority of the Free and Hanseatic City of Hamburg (Freie und Hansestadt Hamburg Justizbehörde) on 27 July 2004 delivered a declaratory decision (Feststellungsbescheid) stating that the requirements for legal recognition of the judgment of the Riga City Ziemeļu District Court had not been met, as the divorced spouse had not been afforded an opportunity to present her case in the divorce proceedings. On the basis of the information before it, the Justice Authority established that A.S. had been aware of the applicant’s address in Hamburg. Notably, A.S. had maintained contact with this address in general correspondence and in correspondence concerning the pension he had been receiving from Germany and the Netherlands.

Following a prior request by the applicant, on 8 November 2004, the President of the Supreme Court submitted an application for supervisory review (protests) to the Senate of the Supreme Court asking for the judgment of the Riga City Ziemeļu District Court to be set aside and for the case to be adjudicated anew. He argued that the first-instance court had overlooked some evidence concerning the applicant’s domicile and had erred in its application of the procedural rules when summoning the applicant to the hearings. In accordance with section 59(2) of the Civil Procedure Law, A.S. could have placed a notice about the proceedings in a newspaper in Hamburg, where the applicant resided. Besides, as Hamburg had been the applicant’s registered place of residence, she should have been summoned to the proceedings via the Ministry of Foreign Affairs. The President of the Supreme Court emphasised that owing to these violations the Justice Authority of the Free and Hanseatic City of Hamburg had refused to recognise said judgment. Lastly, the application for supervisory review stated that the applicant’s rights guaranteed under Article 6 § 1 of the Convention had been violated.

On 16 March 2005 the Senate of the Supreme Court, sitting in an extended composition, with a final judgment dismissed the supervisory review application and upheld the judgment of the Riga City Ziemeļu District Court. The Senate of the Supreme Court concluded that, since A.S.’s claim had not contained a reference to the applicant’s address and since the Riga City Ziemeļu District Court had therefore been unaware of her whereabouts, its actions had been compatible with the procedural requirements of the Civil Procedure Law. Section 59(2) of the Civil Procedure Law imposed no obligation on the court; it only gave the plaintiff a right to publish the court’s summonses in other newspapers at his or her own expense. The Senate of the Supreme Court also stated that in the circumstances of the present case a reference to Article 6 of the Convention could not serve as grounds for setting aside the judgment of the firstinstance court. It reasoned:

“The aim of the application for supervisory review – a fresh adjudication of the case permitting the defendant to exercise her procedural rights – can no longer be achieved because the plaintiff, [A.S.], passed away on 30 April 2004, a fact which excludes any further proceedings.

Besides, one should bear in mind that following his divorce form Lydia Heide Friedel Schmidt [A.S.] concluded a new marriage, which, according to section 64(2) of the Civil Law, could not be declared null and void, irrespective of whether the judgment of 6 April 2004 of the Riga City Ziemeļu District Court would be quashed.”

The parties differ on whether A.S. had been aware of the applicant’s place of residence and on whether the applicant had been aware of the divorce proceedings. In relation to the first issue the applicant maintained that she had been residing in the couple’s previous place of residence in Hamburg and that the landline telephone there had been used for their telephone conversations. Furthermore, A.S.’s retirement pension and health insurance had been transferred to their shared bank account, as well as to their place of residence in Hamburg. The Government, in turn, relied on the information A.S. had submitted to the Riga City Ziemeļu District Court and also emphasised that no other evidence had been at the court’s disposal.

With regard to the applicant’s knowledge of the divorce proceedings the Government pointed to A.A.’s submissions before the Senate of the Supreme Court. In particular, A.A. had alleged that the applicant had been informed of the divorce proceedings over the telephone. The applicant maintained that even though she had been aware of A.S.’s desire to dissolve their marriage, she had only learned of the divorce proceedings following the death of A.S.

On 3 November 2005 the applicant brought civil proceedings against A.A. claiming one half of the undivided share of the property that A.S. had acquired during their marriage. She argued that it had been the spouses’ common property. On 30 November 2006 the Riga Regional Court granted her claim in full. A.A. appealed against this judgment. The Court has no further information about these proceedings.


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1982 and until his arrest lived in Moscow.

On 27 February 2012 the police opened a criminal investigation into large-scale fraud. According to investigators, an unknown person had convinced a businessman to hand over 10,000,000 Russian roubles (approximately EUR 248,000) on the pretext of selling some equipment. However, the person had had no intention of selling the equipment or returning the money.

On 24 January 2013 the applicant was accused of aggravated fraud. The police ordered him not to leave his place of residence, but he fled and was put on a wanted list by the police.

On 16 July 2013 he was arrested and taken to a police custody facility. The next day the Tverskoy District Court of Moscow (“the District Court”) authorised his pre-trial detention until 16 September 2013, having regard to the seriousness of the charges against him and the risk of his absconding, reoffending and interfering with justice.

The applicant appealed. He referred to, among other things, his poor health.

On 19 August 2013 the Moscow City Court (“the City Court”) upheld the detention order on appeal after examining his recent medical documents, stating that his health did not preclude his detention on remand.

On 13 September 2013 the District Court extended the applicant’s detention until 16 November 2013, citing the risk of his absconding given his previous attempt to evade prosecution and the seriousness of the charges against him. The District Court also linked that risk to the applicant’s lack of stable income or work. In the court’s view, no alternative measure, such as house arrest or bail, could have ensured that the criminal proceedings ran smoothly. Lastly, the court noted the complexity of the case and several steps in the investigation which had yet to be performed, including some which required the applicant’s presence and participation.

The applicant appealed. He applied to the City Court to be released on bail because of his worsening health. He insisted that he could no longer move without assistance. In the meantime, in October 2013 he was served with the final version of the bill of indictment and was committed to stand trial before the District Court.

On 13 November 2013 the City Court upheld the detention order of 13 September 2013, endorsing the District Court’s reasoning. After examining medical evidence pertaining to the applicant’s health, it found that the illnesses he suffered from were not severe enough to warrant his release.

On an unspecified date the police searched the applicant’s flat and found a passport with his photograph but under another name.

On 14 November 2013 the District Court extended the applicant’s detention until 30 March 2014. It again cited his unemployment status and ability to abscond, in view of the seriousness of the charges and his having been on the run from January to July 2013. Noting that his state of health was compatible with the detention conditions, the court concluded that the extension of his detention was justified.

On 13 January 2014 the District Court dismissed the applicant’s request for release on bail or under a written undertaking not to leave Moscow. It reiterated the arguments contained in the preceding detention orders and noted the discovery of the forged passport in his flat during the police search, which for the court was a clear sign of his intention to flee. It also addressed his arguments that he had become paraplegic and thus no longer posed a flight risk. It noted that according to a recent conclusion of a medical panel (see paragraph 32 below), his health did not call for his release.

On the same day the District Court convicted the applicant of aggravated fraud and sentenced him to six years’ imprisonment in a correctional colony.

On 20 February 2014 the City Court upheld the conviction, but reduced the sentence to four years.

For about a week after his arrest on 16 July 2013 the applicant was kept in a Moscow police ward.

His cell measured 12 square metres, had three sleeping places and usually housed two or three inmates. He did not complain about his health and was not seen by a doctor, save for a general check-up on admission.

On 24 July 2013 the applicant was taken to remand prison no. IZ77/2 in Moscow. He underwent the usual general medical check-up on arrival. Informing the resident doctor about serious back injuries he had sustained in 2008 and 2010, he did not make any specific complaints, except about his hypertension. He was considered to be in good health.

According to the Government, he was placed in a cell which measured 26.96 square metres and housed four other inmates. Subsequently he was transferred between less spacious cells, which he shared with two or three inmates. The living space afforded to him varied between 3.8 and 5.7 square metres. Throughout his detention he slept on an individual prison bunk. The applicant did not dispute the above information submitted by the Government.

According to the applicant, in August 2013 he fell and hurt his back. Severe back pain was accompanied by numbness in the legs and resulted in him being unable to walk unaided. He spent the major part of his day in bed being assisted by his cellmates. They took him for walks in the prison yard, carried him to the toilet and washed him with wet towels, which was their way of showing that they were annoyed with his helplessness.

The applicant’s medical records show that on 8 October 2013 he complained to the resident doctor that he was suffering from a headache and back and abdomen pain. The doctor prescribed him drugs and a consultation with a neurologist.

On 19 October 2013 he was taken to a medical unit in the same remand prison for inpatient treatment. The attending doctor noted that, owing to a pain syndrome, he had been unable to move unaided. After blood tests and a CAT (computerized axial tomography) scan, he was injected with painkillers, muscle relaxants, nootropics and vitamins.

The applicant submitted that on 24 October 2013 during his transfer to a court hearing in a standard prison van, he had again severely hurt his back and head.

On 13 November 2013 the applicant was discharged from the medical ward to be transferred to the hospital in remand prison no. IZ-77/1 in Moscow for more comprehensive treatment.

The transfer occurred a week later. On admission to hospital the applicant complained of head and back pain and numbness in his legs. The hospital performed a number of medical tests, including blood and urine tests, a CAT scan and a cerebrospinal fluid analysis. As a result he was diagnosed with paraplegia of unknown origin, headaches and chronic inflammatory demyelinating polyneuropathy. He received antibiotics, muscle relaxants, vitamins and other medication. His health improved, but not significantly. The paraplegia remained unchanged. He was discharged from hospital on 9 December 2013 to undergo treatment in a civilian hospital and to check whether his state of health called for his early release.

From 9 to 13 December 2013 the applicant stayed in Moscow City Hospital no. 20, where he underwent a medical expert examination and received treatment. He had an MRI (magnetic resonance imaging) scan of his spinal column and spinal cord, a scintigraphy and an X-ray of his pelvis. According to a medical report dated 13 December 2013, he suffered the consequences of a reduced blood supply to the Adamkiewicz artery, including lower limb spasticity, dysfunction of the pelvic organs and bedsores developed outside the hospital. In addition, he was diagnosed with hypertension, a small hydrothorax on the right side and some residual effects of pneumonia that did not call for any treatment. The conditions did not fall within the established list of illnesses warranting early release.

The applicant was taken to the intensive care unit of remand prison no. IZ-77/1, where he continued his drug regimen in line with the hospital’s recommendations. The doctors were, however, unable to ensure any improvement in his conditions. A week later he was sent back to Moscow City Hospital no. 20.

A report drawn up on 31 December 2013 by a medical panel from the hospital stated that, in addition to the previous diagnosis, the applicant suffered from neurogenic bladder and bowel dysfunction. However, his conditions still did not reach the level of severity to warrant his release.

The stay in hospital was followed by two weeks of detention in remand prison no. 77/1. There is nothing to suggest that his treatment was interrupted during that period.

On 15 January 2014 the applicant was again taken to Moscow City Hospital no. 20 for a month of treatment. The hospital staff changed his drug regimen, completing it with antioxidant and neutrophil treatment, muscle relaxants, painkillers, and introducing physiotherapy, which resulted in “certain positive changes in [his] state of health”.

Meanwhile, the applicant’s lawyer asked an independent medical specialist to provide an opinion on the quality of medical care afforded to the applicant in the remand prison. In a report dated 11 February 2014 the specialist stated that the applicant’s conditions required enhanced medical attention and inpatient treatment that could only be performed in a neurological medical facility. Remand prison no. 77/1 was not licensed to provide neurological treatment or perform neurosurgery. His bedsores were a sign of insufficient medical attention. The report ended with a recommendation that he be classified as disabled.

On 14 February 2014 the applicant was taken to remand prison no. 77/1, where he was detained until 1 March 2014. According to the Government, he shared his cell measuring around 11.4 square metres with another inmate. As he was unable to care for himself, medical staff and inmates assisted him with his daily needs. It is apparent from the case file that he continued to receive treatment as prescribed.

On 1 March 2014 he was sent to serve his sentence in a correctional colony in Kostroma, over 300 kilometres away.

In the early hours of 1 March 2014 the applicant was taken in a Gazel minivan designed to transfer the seriously ill, to a Moscow train station. The trip took two hours.

At the train station he was placed on board a standard train carriage, where he had to stay for four hours awaiting departure. The journey to the destination, the town of Yaroslavl, took approximately five hours. The Government only stated that the applicant had shared his carriage with other detainees and had been accompanied by escort officers ready to assist him if necessary.

In Yaroslavl the applicant was taken from the train to a prison van. According to the written statements by escort officers submitted by the Government, he was put on a thin blanket on the floor of the van. In the next half hour he was taken to a remand prison, so that new escort officers could join the transfer team. The applicant had to wait for another hour, lying on the floor of the van, while the official procedure involving the escort officers was under way. He was then taken back to the train station in Yaroslavl.

At the station the applicant was taken to a prison train carriage, which he shared with other inmates. After another two hours the train departed for Kostroma. The trip took three hours. At around midnight the train arrived at the Kostroma train station. The Government did not provide any description of the conditions in which the applicant travelled.

Within the next hour a prison van took the applicant to a nearby remand prison, where he was detained from 2 to 6 March 2014.

On the morning of 6 March 2014 the applicant was taken in the same prison van to correctional colony no. IK-15/1 (“the correctional colony”). The trip took around an hour.

The parties disagreed whether the vehicles used to transfer the applicant, with the exception of the Gazel minivan, were equipped to accommodate ill inmates. While the Government argued that all vehicles could transport bedridden patients, the applicant stated that they had had no special equipment on board. He had been forced to lie on the floor of the prison vans on a thin blanket used as a stretcher. During the entire journey he had been in severe pain, but had not received any painkillers.

The applicant was placed in the medical unit of the colony. He continued receiving various drugs and injections, including nootropic drugs, muscle relaxants and antioxidants and vitamins, to improve the function of the central and peripheral nervous systems. He was regularly seen by doctors. His condition remained stable.

The applicant spent all his time in bed. Personal care workers provided him with bedside care, including basic nursing procedures.

The applicant was examined by a panel of doctors to check whether he should be released early on health grounds. In their report dated 15 April 2014 they concluded that his conditions, in particular his lower limb spasticity and bladder and bowel dysfunction called for his early release.

On the panel’s recommendation, the colony administration asked the court to authorise the applicant’s early release on health grounds.

The Sverdlovskiy District Court of Kostroma granted the request and on 3 July 2014 ordered his release. On 26 August 2014 the Kostroma Regional Court upheld the order on appeal. Two days later the applicant was released.


Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)

Jon Fridrik Kjølbro;Ledi Bianku;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

The applicant was born in 1979 and lives in Istanbul. He was the owner and the editor-in-chief of a publishing house, namely Aram Basım ve Yayıncılık, at the time of the events giving rise to the present application.

In June 2001 and March 2003 the applicant’s company published two books entitled Dağlarda Yaşamın Dili (“The Language of Life in the Mountains”) and Tufanda 33 Gün (“33 Days in the Deluge”), respectively.

On 29 August 2001 the public prosecutor attached to the Istanbul State Security Court filed an indictment with the Istanbul State Security Court charging the applicant with aiding and abetting the PKK, an illegal armed organisation, under Article 169 of the former Criminal Code, on account of the publication of the book entitled The Language of Life in the Mountains.

On 24 July 2002 the Istanbul State Security Court convicted the applicant as charged.

On 1 May 2003 the Court of Cassation, on appeal, upheld the judgment of 24 July 2002.

On 23 September 2003 the public prosecutor attached to the Istanbul State Security Court requested that the court revise its judgment of 24 July 2002 since Article 169 of the former Criminal Code had been amended on 7 August 2003. The Istanbul State Security Court accepted that request.

By Law no. 5190 of 16 June 2004, state security courts were abolished. The case against the applicant concerning the book entitled The Language of Life in the Mountains was transferred to the Istanbul Assize Court.

On 16 August 2003 the public prosecutor attached to the Istanbul State Security Court filed an indictment with the Istanbul State Security Court charging the applicant with aiding and abetting the PKK under Article 169 of the former Criminal Code on account of the publication of the book entitled 33 Days in the Deluge. According to the indictment, on pages 129, 130 and 135 the struggle of the PKK and its leader, Abdullah Öcalan, was praised and the applicant had therefore aided the PKK through the medium of the press.

On 30 April 2007 the Istanbul Assize Court decided to join the proceedings concerning The Language of Life in the Mountains and 33 Days in the Deluge.

On 7 December 2007 the Istanbul Assize Court convicted the applicant under section 7(2) of the Prevention of Terrorism Act (Law no. 3713) for disseminating propaganda in favour of the PKK twice, because he had published two books, and sentenced him to a total of twenty months’ imprisonment. With regard to the publication of 33 Days in the Deluge, the assize court considered that on pages 129, 130 and 135 the PKK and its leader, Abdullah Öcalan, were praised and the offence of dissemination of propaganda in favour of a terrorist organisation had therefore been committed. The assize court furthermore found that the book allowed for the transmission of the opinions of the PKK to the public and was aimed at bringing more sympathisers into that organisation.

On 25 June 2009 the Court of Cassation quashed the judgment of 7 December 2007, holding that the first-instance court should not have joined the two cases, since the case concerning The Language of Life in the Mountains was a re-qualification of the applicant’s previous final conviction (uyarlama yargılaması).

On 7 December 2009 the Istanbul Assize Court convicted the applicant once again under section 7(2) of Law no. 3713 on account of the publication of The Language of Life in the Mountains and sentenced him to a fine.

On 3 June 2013 the Court of Cassation quashed the first-instance judgment.

On 13 November 2013 the Istanbul Assize Court decided to suspend the execution of the sentence pronounced in its judgment of 7 December 2009.

In the meantime, the Istanbul Assize Court resumed the trial concerning the publication of 33 Days in the Deluge following the Court of Cassation’s decision of 25 June 2009.

On 21 October 2009 the Istanbul Assize Court convicted the applicant under section 7(2) of Law no. 3713 for disseminating propaganda in favour of the PKK on account of the publication of 33 Days in the Deluge and sentenced him to ten months’ imprisonment. In its judgment, the assize court reiterated that on pages 129, 130 and 135 the PKK and its leader, Abdullah Öcalan, were praised and the offence of dissemination of propaganda in favour of a terrorist organisation had therefore been committed. The court held that the turns of phrase used on those pages were not protected by Article 10 of the Convention and constituted an abuse of the right to freedom of expression. The assize court further found that the book permitted the opinions of the PKK to be transmitted to the public and was aimed at bringing more sympathisers into that organisation and thus at destroying the unitary nature of the State of the Republic of Turkey.

The applicant appealed.

On 15 February 2012 the Court of Cassation decided to discontinue the proceedings concerning the publication of 33 Days in the Deluge, holding that the prosecution was time-barred.


CASE OF RASHKOVA AND SIMEONSKA v. BULGARIA

Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

The applicants were born in 1970 and 1935 respectively and live in Sofia and Ruse.

D.D., father of the second applicant and grandfather of the first applicant, and his son P.R., father of the first applicant, owned a plot of land and a house in Popovo.

By two decisions of the mayor of 9 May 1988 and 27 February 1989 the property was expropriated with a view to constructing a residential building. The decisions, based on section 98(1) of the Territorial and Urban Planning Act of 1973 (Закон за териториалното и селищно устройство – hereinafter “the TUPA”), provided that D.D. was to be compensated with a two-room flat in a building which the municipality planned to construct on the expropriated plot, and P.R. with the right to build a house on municipally owned land.

In 1989 the expropriated house was pulled down and in 1994 construction work was started on the site.

By a supplementary decision of 19 April 1991, based on section 100 of the TUPA, the mayor specified the exact location and size of the future flat to be offered to D.D. No supplementary decision was issued however with regard to the right to build a house on municipally owned land which was due to P.R.

D.D. and P.R. passed away in 1998 and 2002 respectively, and D.D.’s wife passed away in 2011. This left the two applicants as heirs of D.D., and the first applicant as sole heir of P.R.

On an unspecified date in 2005 the applicants requested that the mayor of Popovo revoke the expropriation order in respect of their predecessors’ property, under paragraph 9(2) of the transitional provisions of the Territorial Planning Act (Закон за устройство на територията, see paragraph 17 below). The mayor did not respond, which under domestic law was considered a tacit refusal. After the applicants applied for judicial review, the refusal was upheld by the courts, in judgments of the Targovishte Administrative Court (“the Targovishte Court”) and the Supreme Administrative Court of 9 March and 11 July 2006 respectively.

Following a fresh request by the applicants for the revocation of the expropriation order, in judgments of 10 November 2006 and 25 April 2007 the Targovishte Court and the Supreme Administrative Court annulled a new tacit refusal on the part of the mayor, acknowledging that the preconditions for such a revocation had indeed not been met, but instructing the mayor to examine the applicants’ request under paragraph 9(1) of the transitional provisions of the Territorial Planning Act, providing for the possibility of monetary compensation (see paragraph 17 below).

As the mayor failed once again to take a decision on the applicants’ request, on an unspecified date they challenged his new tacit refusal, which was annulled once again by the Targovishte Court and the Supreme Administrative Court, in judgments of 27 September 2007 and 3 April 2008 respectively.

Following that, on two occasions (3 June 2009 and 15 June 2010) the mayor refused expressly to revoke the expropriation order in respect of the applicants’ property. After the applicants challenged these refusals, they were found to be null and void by the courts, the first one in a final judgment of the Supreme Administrative Court of 21 May 2010, and the second one in a judgment of the Varna Administrative Court of 25 March 2011. The courts, finding that the fresh refusals were in contradiction with the earlier court judgments in cases between the same parties, sent the case back to the mayor, instructing him once again to examine it under paragraph 9(1) of the transitional provisions of the Territorial Planning Act.

In April 2011 an expert commission of the municipality assessed the value of the expropriated property and set the amount of compensation to be provided to the applicants at 67,300 Bulgarian levs (BGN). After the applicants challenged that amount, in a judgment of 21 December 2011 the Targovishte Court increased it to BGN 83,500.

That sum was paid to the applicants in June 2012.


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

André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The five applicants are Iraqi nationals. They now live in Switzerland, where they were granted asylum in July 2017 (see paragraph 31 below). The first and second applicants, Mr S.F. and Mrs W.O., born respectively in 1975 and 1978, are spouses. The other three applicants, Mr Y.F., Mr S.F. and Mr A.F., born respectively in 1999, 2004 and 2014, are their sons.

On 14 August 2015 the applicants, who had fled from Iraq, covertly crossed the Turkish-Bulgarian border. They were travelling with four other families. From there, they took taxis which drove them to the outskirts of Sofia, where they slept under the open sky for two nights. On 17 August 2015, they hired other taxis to drive them to the Bulgarian-Serbian border, somewhere around the town of Bregovo. Shortly before the border, the applicants switched cars, getting into a Toyota sports utility vehicle, which was supposed to take them through a wooded area to the border itself. They intended to cross that border covertly as well, and from there continue towards Western Europe.

At that time, the second applicant was three months pregnant.

According to media reports, over the last few years the abovementioned route has been a popular one for migrants trying to cross Bulgaria covertly on their way to Western Europe. According to a report submitted by the Government, in August 2015 the Bulgarian border police intercepted 350 adult migrants and 132 minor migrants near Bregovo and took them into custody.

In the late afternoon of 17 August 2015 the applicants were driven in the Toyota towards the Bulgarian-Serbian border near the village of Rabrovo, which is about fifteen kilometres south of Bregovo, twenty-five kilometres west of the town of Vidin, and about two kilometres from the border. It was also transporting the four other families; together with the applicants, it carried a total of eighteen passengers, eight of whom were minors.

At about 5 p.m., when the Toyota was just a few metres away from the border, two officers of the Bulgarian border police intercepted it. The driver fled. One of the officers gave chase, while the other ordered all the passengers to step out of the vehicle. The first officer could not catch up with the driver and came back. According to the applicants, he was apparently annoyed about his inability to detain the driver and hit one of the passengers. The applicants submitted that they had been afraid that he might hit them as well.

Half an hour later, two more officers came to the scene; subsequently, a bus, with a driver and a photographer, also arrived. According to the applicants, the officers insulted the arrestees, called them “mice” (the applicants did not specify in what language), and made insulting gestures. They ordered the applicants and the other passengers to get into the bus and drove them to the Bregovo Border Police Department’s detention facility in Vidin. According to the applicants, the drive took about an hour. According to the Government, the drive could not have taken less than three hours. The preparation of the documents relating to the applicants’ arrest then took another hour, and the written declarations that they had been acquainted with their rights were stamped as having been signed at 9 p.m. The applicants could not have therefore been placed in their cell earlier than 10 p.m.

Upon their arrival at the border police’s detention facility in Vidin, the applicants were searched. According to them, all their effects – including travelling bags, mobile telephones, money, food, and even the fifth applicant’s nappies, baby bottle and milk – were taken away from them, except for a mobile telephone belonging to the third or the fourth applicant, which they managed to conceal. According to a search report submitted by the Government, when searching the second applicant the authorities seized from her four mobile telephones, SIM cards, a USB flash drive, two digital video disks and cash. The Government also pointed out that in a video submitted by the applicants (see paragraph 15 below), travel bags and personal effects were visible inside their cell.

After the search, the arrestees were split into two groups. The applicants and another family were put in one cell, and the others in an adjoining one. In the application form, the applicants stated that both cells were on the detention facility’s second floor.

According to the applicants, the cell was hot and its window could not be opened.

The applicants also submitted a video, which according to them had been shot with the mobile telephone that they had managed to conceal during the search (see paragraph 12 above). It shows that the cell was at ground level, about 4 by 4 metres, with a large double window (secured on the inside by a mesh grille), an open door, and a padlocked metal grille on the door. In the video the cell looks run-down, with dilapidated walls, paint coming off the ceiling in flakes, and a dirty floor partly covered with dirty (and in places damp) cardboard sheets. The furniture consists of two old and dilapidated bunk beds and a single bed, with four or five bare soiled mattresses. Two of the mattresses are on the floor, one is on the single bed, and one is on the bottom bunk of one of the bunk beds. A single crumpledup bed sheet lies on one of the mattresses on the floor. Personal effects, such as a small shoulder bag, training shoes and some litter, are strewn about. Other random objects – food remains, empty plastic bottles, rubbish and a torn blanket – are piled up in a corner. The third and fourth applicants can be seen sitting on one of the bunk beds, whereas the fifth applicant (the toddler) can at first be seen sitting on the floor beside the door and then being picked up and carried around by the first applicant. Apart from the five applicants, three other people can be seen in the cell: a middleaged woman lying on the single bed, a boy (perhaps two or three years old), and the man shooting the video.

The video was submitted by the applicants on a digital video disk containing two video files. One is in .mpg format and bears a time stamp according to which it was last modified at 5.36 p.m. on 17 September 2015; and the other is in .mp4 format and bears a time stamp according to which it was last modified at 3.27 p.m. on 15 December 2015. The footage in both files is identical, except that: (a) the faces of the applicants in the first one have been pixelated (whereas in the second they have not); (b) the running time of the first video is one minute and twenty-one seconds (whereas that of the second is one minute and thirty-two seconds, as it continues for another ten seconds); and (c) in the first file the footage is horizontal whereas in the second it is rotated to the right at a ninety-degree angle. The footage in the first file has a definition of 1,280 by 720 pixels and is at twenty-four frames per second, whereas that in the second file has a definition of 1,920 by 1,080 pixels and is at twenty-nine frames per second.

The applicants explained that the above-mentioned dates and times corresponded with when they had copied the video files in Switzerland, and that they had in fact recorded the original video on 18 August 2015, at about noon. Since they had taken the SIM cards out of the mobile telephone several times in the course of their journey and then re-inserted them, the telephone had not indicated the correct time and date, making it impossible to pinpoint the exact date and time when the video had been recorded.

In a letter to the Government Agent, an official from the Migration Directorate of the Ministry of Internal Affairs in Sofia, having compared the video footage with the photographs in the applicants’ migration files, stated that he could confirm that the applicants were indeed the people featured in the video.

According to the Government, the border police’s detention facility in Vidin was equipped in accordance with the relevant regulations. They did not provide further details in that respect.

According to the applicants, after being put in the cell, they were not given anything to eat or drink, or allowed to go to the toilet. Since there was no toilet or a bucket in the cell, they had to urinate onto the floor. The Government did not comment on that point.

About four hours later, at about 10 p.m., officers came and took the first applicant to another building in order to take his picture and to digitally fingerprint him. After that, the officers took out the second applicant for fingerprinting. After the fingerprinting procedure, the officers left the applicants in the cell for the night.

Between 10.30 a.m. and 11 a.m. and between 11 a.m. and 11.30 a.m. the next day, 18 August 2015, a border police investigator interviewed respectively the first and the second applicants. The interviews were conducted in English and translated into Bulgarian with the help of an interpreter.

According to the applicants, after the interview the second applicant asked the guards to give her back her bag, so that she could prepare a baby bottle for her toddler (the fifth applicant), and the guards did so. The Government did not comment on that point.

After that, the guards took the applicants one by one out of the cell to go to the toilet.

According to the applicants, later that day, a ten-month-old child in the adjoining cell touched an electrical wire and suffered an electric shock. That caused panic among the detainees, and the guards allowed all of them out of their cells. An ambulance was called. When hearing that the applicants had not had anything to eat or drink since their arrest, the nurse who came with the ambulance argued with the guards and took the second applicant and her youngest child, the fifth applicant, to a hospital in Vidin, where the second applicant was examined by a gynaecologist between 8.05 p.m. and 8.35 p.m., and the fifth applicant was examined by a paediatrician between 8.20 p.m. and 8.40 p.m. Two or three hours later they were taken back to the detention facility.

According to the applicants, at that point the guards told them that they would give them food if they paid for it; the guards then took money from their bags and gave them two loaves of bread, a yoghurt, four bottles of Coca-Cola, one kilogram of tomatoes, one kilogram of cucumbers, one kilogram of bananas, and a small piece of paté. According to the Government, the applicants were provided with food and water, in accordance with the relevant regulations. In support of their assertion, the Government submitted a table setting out the prescribed daily rations for adult and minor detained migrants and a report, drawn up by the head of the Bregovo Border Police Department on 1 September 2015, which listed the names of all migrants – including the applicants – which had been detained in the Department’s detention facility in Vidin during the month of August 2015 and provided with food there.

Then, at about 10 p.m. or 11 p.m., the applicants were put back in the cell. According to them, they were allowed to go to the toilet before that, but had not been able to do so during the night. The Government did not comment on that point.

The next day, 19 August 2015, the applicants were served with orders for the first and second applicants’ removal from Bulgaria and for their detention pending removal, all issued the previous day. It does not appear that separate orders were issued with respect to the third, fourth and fifth applicants, who were mentioned as accompanied minors in the orders for the first and second applicants’ detention (see paragraph 33 below).

According to the applicants, at about midday on 19 August 2015 they were given back their belongings and driven to an immigration detention facility in Sofia. According to the Government, that happened much earlier that day, at about 6 a.m. or 7 a.m., since the relevant records showed that the applicants had been placed in the detention facility in Sofia at 2.45 p.m., and the normal travel time between the two facilities was about six or seven hours.

On 24 August 2015 the applicants sought international protection in Bulgaria. Their applications were registered by the State Agency for Refugees on 31 August 2015, and they were released from the immigration detention facility in Sofia and settled in an open facility for the accommodation of asylum-seekers. On 23 September 2015 those proceedings were, however, discontinued because the applicants had vanished from the facility.

In the meantime, the applicants made their way to Switzerland, where they likewise sought international protection on 8 September 2015. On 8 January 2016 the Swiss authorities decided not to examine their applications but rather to transfer them back to Bulgaria under Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a thirdcountry national or a stateless person (“the Dublin III Regulation”), which also applies to Switzerland (see A.S. v. Switzerland, no. 39350/13, §§ 12-13, 30 June 2015). Following legal challenges by the applicants, on 7 July 2016 the Swiss authorities varied their own decision and proceeded with the examination of the applications. Just over a year later, on 27 July 2017, the applicants were granted asylum in Switzerland.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-d - Minors);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in 1995 and lives in Cracow.

On 7 May 2012 the applicant was arrested on suspicion of having committed three armed robberies and one attempted armed robbery with the use of a machete on 4 May 2012. He was initially detained in a police establishment for children (policyjna izba dziecka) in Cracow.

On 7 May 2012 the Cracow-Krowodrze District Court (Family and Juvenile Section) instituted inquiry (postępowanie wyjaśniające) with a view to determining whether the applicant had committed the offences at issue.

On the same day the Cracow-Krowodrze District Court decided to place the applicant in a shelter for juveniles (schronisko dla nieletnich) for a period of three months. It found that, in view of the available evidence, there existed a reasonable suspicion that the applicant had committed three armed robberies and one attempted armed robbery and some other offences. The court also noted that the applicant was lacking in moral character and that the nature of the offences with which he had been charged militated in favour of placing him in a correctional facility (zakład poprawczy). It also noted that there was a risk that he might go into hiding or put pressure on witnesses.

The applicant appealed. He argued, inter alia, that there had been no risk of fleeing or interfering with witnesses. He also objected to his placement in the shelter on the grounds that he had a history of mental difficulties and had been schooled in a specialised institution.

On 10 July 2012 the Cracow Regional Court upheld the decision of the lower court. It had regard to the gravity of the offences which the applicant had allegedly committed and the fact that they could not be treated as an isolated incident. The court also noted that in the past a family court had handed down a warning and that on 29 May 2012 he had been put under the supervision of a court guardian. In view of those circumstances, it was considered likely that the applicant would be placed in a correctional facility. His placement in the shelter was further justified by the fact that he had threatened one of the victims of the robbery. Responding to the arguments related to the applicant’s mental health, the court noted that the placement in the shelter, in addition to the applicant’s isolation, placed him under educational supervision which could not be seen as incompatible with his well-being.

On 27 July 2012 the CracowKrowodrze District Court ordered that the applicant’s case should be examined in correctional proceedings (postępowanie poprawcze).

On 9 August 2012 the applicant’s counsel requested the CracowKrowodrze District Court to order the applicant’s immediate release. He submitted that the three-month period for which the measure was applied had expired on 7 August 2012 and that no decision on prolongation of the measure had been given. He argued that in accordance with section 27 §§ 4 and 5 of the Juvenile Act the decision on prolongation of the placement in a shelter for juveniles could be taken only by a court after summonses had been sent to the parties and counsel. The applicant’s counsel obtained information from the court’s registry that in practice such decisions were not given, and that it sufficed for the court to issue an order for the case to be examined in correctional proceedings. The applicant’s counsel objected to such a practice and considered it to be unlawful.

On 9 August 2012 the Cracow-Krowodrze District Court dismissed the applicant’s request for release. It provided the following reasons:

“The juvenile Maksymilian Grabowski is accused of having committed criminal acts with the use of a dangerous object.

These circumstances exclude the possibility of altering the security measure in respect of the juvenile.

At present the state of health of the juvenile is normal.

In the absence of reasons justifying the quashing of the security measure in respect of the juvenile, it has been decided as above in accordance with sections 20 and 27 of the Juvenile Act”.

On 9 August 2012 the applicant’s counsel wrote to the director of the Gacki Shelter for Juveniles urging him to release the applicant.

By a letter of 16 August 2012 the Cracow-Krowodrze District Court informed the applicant’s counsel that after the court had ordered the examination of the case in the correctional proceedings on 27 July 2012, it did not prolong the applicant’s placement in the shelter for juveniles pursuant to section 27 § 3 of the Juvenile Act.

The Cracow-Krowodrze District Court held hearings in the applicant’s case on 21 November 2012 and 9 January 2013. On the latter date the court delivered a judgment and held that the applicant had committed the offences which had been imputed to him. The court ordered the applicant’s placement in correctional facility but suspended the application of this measure for a two-year probationary period. It further ruled to place the applicant under the supervision of a court guardian during the probationary period.

Having regard to the judgment, on 9 January 2013 the CracowKrowodrze District Court quashed the applicant’s placement in a shelter for juveniles. The applicant was released on the same day.

The judgment of 9 January 2013 was not appealed against and became final on 14 February 2013.