Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković

The applicant was born in 1977 and lives in Shchelkovo, the Moscow Region. He is currently serving a prison sentence in the Saratov Region.

On 31 March 2003 the applicant was arrested on suspicion of murder and was placed in a temporary detention facility of the Shchelkovo Office of the Interior of the Moscow Region (“the Shchelkovo IVS”). According to the applicant, police officers under the command of police officer N. took him to special cells for questioning, where they tried to extract a confession from him or else make him sign blank sheets of paper. As he refused, they handcuffed him to a chair and beat him on his back and sides. Eventually he did sign a confession.

On 21 April 2003 the applicant was transferred to remand prison no. 50/8 in Sergiyev Posad, the Moscow Region (“SIZO-50/8”). Following a medical examination, the remand prison authorities refused to admit the applicant. In a report of the same date they indicated that he had a number of injuries, including a contusion of the spine and a contusion of the left side of the chest with a suspected fracture of the ribs, and that he needed further examination by medical experts.

On the same date the applicant was taken back to the Shchelkovo IVS and then transported to the Shchelkovo town hospital, where he underwent a medical examination, including an X-ray examination. The physician and neuropathologist who examined the applicant noted their findings in the above-mentioned report of SIZO-50/8. They are barely legible, but appear to confirm that the applicant had contusions of the spine and of the chest.

On the reverse side of the referral for the X-ray examination dated 21 April 2003 there is a hand-written finding by a radiologist dated 23 April 2003. It is likewise barely legible, but appears to confirm the contusion of the spine and the absence of a fracture.

On 25 April 2003 the applicant was admitted to SIZO-50/8.

On 24 March 2011 the head of SIZO-50/8 issued two certificates addressed to the Court. According to one certificate, between 25 April 2003 and 20 January 2004 – while the applicant was held in SIZO-50/8 – he had not made any complaints concerning his detention. According to the other certificate, admission of the applicant to SIZO-50/8 had been refused on 21 April 2003 as it appeared necessary to conduct an additional medical examination in order to confirm the diagnosis. No entry to that effect was made in the remand prison register since, in accordance with the applicable regulations, the register contained only information about individuals actually held in the remand prison, whereas the applicant was not admitted.

On 16 August 2007 the applicant complained that he had been beaten by the police. He referred, in particular, to the report of 21 April 2003 confirming his injuries.

On 24 August 2007 the Shchelkovo prosecutor’s office refused to institute a criminal investigation into the applicant’s complaint. The relevant decision stated briefly that there was no information in the Shchelkovo IVS indicating that the applicant had ever requested medical assistance during his detention pending trial. It went on to note that, according to a certificate from the Shchelkovo town hospital, which the applicant had attended, he had been diagnosed with influenza and spontaneous rupture of tendons. The decision further stated that during his detention pending trial, none of the injuries indicated in the applicant’s complaint had been found on his person, and concluded that the applicant’s allegations of ill-treatment were unfounded and unsupported by any evidence. The decision remained silent about the report of 21 April 2003 to which the applicant referred in his complaint.

On 5 September 2007 a supervising prosecutor set aside the above decision.

In a decision of 29 September 2007 the investigating authorities again refused to institute criminal proceedings in connection with the applicant’s complaint. The decision was similar to that of 24 August 2007 and stated, in particular, that there was no information in the Shchelkovo IVS indicating that the applicant had requested medical assistance, or that any injuries had been inflicted on him during his detention pending trial. According to the decision, it was impossible to obtain an extract from the register of detainees of the Shchelkovo IVS since all the documents had been lost by its former head. The decision also referred to a certificate from the Shchelkovo town hospital attesting that the applicant had been diagnosed with influenza and spontaneous rupture of tendons, and stated that this latter injury had not been related to the injuries alleged by the applicant. The decision also indicated that the applicant had not undergone any medical forensic examination in the course of the criminal proceedings against him. It then concluded that the applicant’s allegations of ill-treatment were unfounded and unsupported by any evidence. The decision did not mention the applicant’s reference to the report of 21 April 2003.

On 10 January 2008 the applicant lodged a complaint with the Shchelkovo Town Court under Article 125 of the Russian Code of Criminal Procedure concerning the decision of 29 September 2007, arguing that the inquiry into his allegations of ill-treatment by the police had been incomplete and, in particular, the investigating authorities had ignored the report of 21 April 2003. In a letter of 18 January 2008 the Shchelkovo Town Court returned the applicant’s complaint to him, indicating that a number of shortcomings should be remedied. The applicant did not appeal.

On 7 February 2008 the supervising prosecutor quashed the decision of 29 September 2007 as premature, stating that the inquiry had been incomplete. The prosecutor ordered the investigating authorities to identify and interview the police officers and the senior investigator who had participated in the criminal proceedings against the applicant, to obtain copies of documents from SIZO-50/8 concerning the applicant’s medical examination there, to obtain relevant documents from his personal file and to perform other necessary actions.

By a decision of 14 February 2008 the Shchelkovo Town Court dismissed the applicant’s complaint concerning the decision of 29 September 2007, stating that this latter decision had by that time already been set aside by a supervising prosecutor and an additional inquiry into the applicant’s allegations of ill-treatment had been ordered. It is unclear whether the applicant appealed against the Shchelkovo Town Court’s decision to a higher court.

On 11 February 2008 the investigating authorities again refused to institute criminal proceedings in connection with the applicant’s allegations of ill-treatment. Their decision stated that, upon receipt of the documentation seeking a further inquiry, requests for information had been sent to the head of SIZO-50/8 and the head of the Shchelkovo Office of the Interior, and that the investigator in charge of the criminal case against the applicant had been interviewed. The decision then stated that “at present there [was] no objective evidence that officers of the Shchelkovo Office of the Interior [had] applied violence to the applicant”.

On 2 March 2008 the supervising prosecutor quashed the decision of 11 February 2008, stating that the inquiry into the applicant’s allegations of beating by the police had been incomplete, that the necessary measures had not been taken and, in particular, copies of documents from SIZO-50/8 concerning the applicant’s medical examination at that centre and relevant documents from his personal file had not been obtained.

In a decision of 5 March 2008, similar to that of 11 February 2008, the investigating authorities again refused to institute criminal proceedings in respect of the applicant’s allegations of ill-treatment by the police, stating that, “as of this date, no replies to requests for information sent earlier [had] been received”, and that “therefore there [was] no objective evidence that officers of the Shchelkovo Office of the Interior [had] inflicted violence on the applicant”.

On 24 June 2008 the supervising prosecutor quashed the decision.

On the same date the Shchelkovo Town Court dismissed a complaint by the applicant concerning the decision of 5 March 2008, stating that this latter decision had already been quashed and a further inquiry had been ordered. The applicant did not appeal against the first-instance decision.

On 4 July 2008 the investigating authorities again refused to institute criminal proceedings in connection with the applicant’s complaint that he had been beaten by the police. The relevant decision noted that the applicant, when interviewed with regard to his allegations, had submitted that during the period of his detention in the Shchelkovo IVS he had been ill-treated on several occasions by police officers, who had chained him to a chair or a table and had beaten him on his back and in the ribs, and that upon his delivery to SIZO-50/8 a report had been drawn up confirming his injuries. He had also stated that he had undergone an X-ray examination in the Shchelkovo town hospital on 24 April 2003 and that the results of that examination had been recorded in X-ray image no. 1478. The applicant had submitted that he did not know the police officers who had beaten him, and that he only knew a certain N., an officer of the Shchelkovo Office of the Interior, who had not himself applied force to the applicant, but had brought with him two individuals in civilian clothes, the latter forcing the applicant to confess to the alleged offence. The decision went on to say that in the applicant’s personal file there was no information indicating whether he had undergone any medical examinations in the period between 31 March and 31 May 2003.

The decision further referred to a reply from SIZO-50/8, according to which the remand prison had no information concerning the applicant’s examination by a medical official on 21 April 2003. It also pointed out that a reply from the Shchelkovo town hospital had provided no information indicating that the applicant had ever undergone an X-ray examination in that hospital, nor was there any X-ray image such as that referred to by the applicant in the hospital’s archive. The decision further stated that the officer N., referred to by the applicant, and investigators B. and S., who had conducted the investigation into the applicant’s criminal case, when interviewed in the context of the present inquiry had denied using physical force or psychological pressure in respect of the applicant or seeing anyone else doing so. The decision also noted that the applicant had not complained about the alleged ill-treatment until four years after the events in question. It then stated that the investigating authorities considered that the applicant had alleged such ill-treatment by the police in an attempt “to mislead the investigating authorities, who were spending their time and resources investigating offences that [had] in reality [not been] committed, and to accuse public officials of serious offences, thereby affecting a number of individuals who were obliged to devote time to giving oral evidence to the investigating authorities”. The decision therefore concluded that there was no evidence of the offence alleged by the applicant.

On 13 April 2009 the supervising prosecutor set aside the decision of 4 July 2008, stating that the inquiry had been incomplete.

On 30 April 2009 the Shchelkovo Town Court dismissed a complaint by the applicant concerning the decision of 4 July 2008, referring to the fact that this latter decision had already been quashed by the supervising prosecutor. The applicant did not appeal against the first-instance decision.

On 16 April 2009 the investigating authorities again refused to institute criminal proceedings in relation to the applicant’s complaint that he had been ill-treated by the police. The relevant decision was identical to that of 4 July 2008. The only comment added was that it appeared impossible to question investigator B. and officer N., as they had not responded to telephone calls.

On 1 December 2010 the Shchelkovo Town Court dismissed a complaint by the applicant concerning the decision of 16 April 2009. Although the court noted that the applicant referred to the medical report of 21 April 2003, it did not address it any further but instead stated that the investigation conducted into his allegations had been complete. The court referred, in particular, to certain explanations obtained from the investigators who had been in charge of the applicant’s case.

A request by the applicant to restore the time-limit for appealing against the decision of 1 December 2010 was granted by the Shchelkovo Town Court on 19 January 2011.

On 22 March 2011 the Moscow Regional Court quashed the decision of the Shchelkovo Town Court of 1 December 2010 on appeal on the following grounds. Firstly, although the applicant had challenged the judge – because it was the same judge who had convicted him – this had not been examined by the first-instance court. Secondly, the first-instance court had not examined the report of 21 April 2003 and, thirdly, it had referred to certain explanations by investigator B. and officer N. that could not be found in the case file.

On 23 May 2011 the Shchelkovo Town Court again dismissed the applicant’s complaint concerning the decision of 16 April 2009. The court stated, in particular, that whereas the applicant had provided a copy of the report of 21 April 2003, it appeared impossible to verify its authenticity since there was no information about the medical examination in question in his file. It further noted that neither during the preliminary investigation nor at the trial had the applicant made any allegations of ill-treatment. It is not clear whether the applicant appealed.

Meanwhile the applicant resubmitted his complaint of ill-treatment, which was dismissed by the investigating authorities on 4 October 2010 on the grounds that an investigation into the applicant’s allegations had already been conducted and they had been proved unsubstantiated.

On 28 August 2003 the Shchelkovo Town Court convicted the applicant of murder and sentenced him to eleven years’ imprisonment.

On 12 February 2004 the Moscow Regional Court upheld the first-instance judgment on appeal.

At some point, one of the witnesses stated that he had made false statements incriminating the applicant in the course of the criminal proceedings against the latter. Thereafter the applicant attempted – unsuccessfully – to have criminal proceedings brought against that witness. In the period between 2006 and 2009 the domestic courts dismissed complaints by the applicant concerning the investigating authorities’ decisions to dispense with criminal proceedings in that regard.

Article 125 of the Russian Code of Criminal Procedure provides for judicial review of decisions, acts or inaction on the part of an inquirer, investigator or prosecutor which affect constitutional rights or freedoms. The judge is empowered to verify the lawfulness and reasonableness of the decision, act or inaction and to grant the following forms of relief: (i) to declare the impugned decision, act or inaction unlawful or unreasonable and to order the authority concerned to remedy the violation; or (ii) to dismiss the complaint.

In its Resolution of 10 February 2009 the Plenary Supreme Court of Russia stated that it was incumbent on judges – before processing an Article 125 complaint – to establish whether the preliminary investigation had been completed in the main case (point 9). If the main case has already been sent for trial or the investigation completed, the complaint should not be examined unless it has been brought either by a person who is not a party to the main case or – if such a complaint is not amenable to judicial review under Article 125 – at the pre-trial stage of the proceedings. In all other situations the complaint under Article 125 should be left unexamined and the complainant should be informed that he or she can raise the matter before the trial or appeal courts in the main case.

Similarly, according to the Constitutional Court’s construction, a complaint under Article 125 cannot be brought or pursued after the criminal case to which the complaint is connected has been submitted for trial. However, where it is established that a party to the proceedings (including a judge or a witness) has committed a criminal offence, thus seriously compromising the fairness of the proceedings, the Code exceptionally allows for separate investigation of the relevant circumstances, leading to a reopening of the case (see Decision no. 1412OO of 17 November 2009; see also Ruling no. 20-П of 2 July 1998 and Ruling no. 5-П of 23 March 1999).


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

The applicant, Ms Olga Filippovna Smirnova, is a Russian national, who was born in 1947 and lives in the town of Tyumen.

The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

The applicant is a retired person who is in receipt of an old-age pension. She is an active supporter of various local NGOs.

On 14 November 2003 the Trade Union Centre of the Tyumen Region («Тюменский областной профсоюзный центр»), the Trade Union of the Elevator Operators of the Town of Tyumen “SOTSPROF” («Тюменский городской профсоюз лифтеров СОЦПРОФ») and the Tyumen Regional Fund for the protection of civil rights “Resonance” («Тюменский региональный общественный фонд по защите гражданских прав «Резонанс») submitted notification of a public demonstration against alleged violations of rights of students and employees of the Commercial and Financial College of the Town of Tyumen (“the College”). It indicated that the demonstration would be carried out in the form of a “picket” to be held at noon on 24 November 2003 outside the college building. The action was to end at 1 p.m. The organisers estimated that about twenty people would take part in this event. They undertook not to hinder the circulation of people and vehicles and not to disturb the peace.

On 20 November 2003 the Tyumen town council informed the organisers that their request had been accepted.

The picket started at noon as planned. It was attended mostly by oldage pensioners who gathered at the college entrance carrying their placards. The event was supervised by the police, who registered no disturbances of public order. Most of the demonstrators and the police left the location at 12.45 p.m.

At around 1 p.m. the applicant and five other persons of the picket entered the college building with a view to handing a petition over to the college administration.

This group spontaneously asked an assistant to the head to the college to let them meet the head. The assistant informed the head of this request, who, in response, called the police.

Shortly afterwards three police officers arrived at the place of the incident and forced the group into a police van. They were then brought to the Kalininskiy District Department of the Interior of the Town of Tyumen (hereafter referred to as “the District Department”), where they were invited to explain their actions in writing.

The applicant and the other members of the group were held in the corridor of the District Department. According to the applicant, she was allowed neither to contact her lawyer nor to call her family. She was then taken to an investigator’s office where she explained the circumstances surrounding this incident. The applicant was released at 4.16 p.m. It appears that no record of detention was drawn up.

On 24 November 2003 the head of the college submitted a request that the police prosecute the picketers for disturbing lessons at the college.

On the same day one of the police officers involved in the events of 24 November 2003 issued a report which read:

“... On 24 November 2003 at 12.30 p.m. following a telephone call I arrived at [the college]. Upon arrival I found that the police had been called by [the head of the college], who stated that unknown people had burst into her office and interfered with her work. These people were taken to the [District Department] ... for further investigation of these events...”

On 3 December 2003 a senior investigator of the District Department rejected the request of 24 November 2003 as unfounded.

On 4 December 2003 the head of the college repeated her request.

On 14 December 2003 the authorities again refused to institute criminal proceedings.

On 15 April 2004 the prosecutor’s office of the Tyumen Region quashed the decision of 14 December 2003 and remitted the case to the authorities for an additional investigation. Without noting any specific defects in the investigation, the prosecutor concluded that it had not been thorough.

On 14 May 2003 the investigating authorities refused to institute criminal proceedings. The decision read as follows:

“... [The investigating authority] established that on 24 November 2003 the non-governmental organisation the Trade Union Centre of the Tyumen Region, acting with official authorisation of the town council dated 20 November 2003, staged a public picket near the [college]. This event took place from noon to 1 p.m. The demonstrators were demanding that college the authorities put an end to violations of the rights of its employees and students. After the picket [the applicant and five other persons of the movement] entered the college building and went to the office of the head of the college to hand over their petition. [The head of the college] refused to meet them and called the police. The police officers, who arrived at the place of the incident, escorted the demonstrators to the [District Department] to collect their explanations in writing.

... [In the context of the present investigation the applicant] has refused to give any explanations to the police, noting that she had already given her statements in respect to these events to the Prosecutor’s Office.

[The applicant’s and other protestors’ actions] did not amount to a criminal offence.”

In the above proceedings, the applicant did not complain of the police actions of 24 November 2003.

On 2 December 2003 one of the leaders of the picketers, Mr Kh, and three other demonstrators including the applicant requested that a criminal investigation be instituted in respect of their arrest and detention on 24 November 2003. The applicant also brought complaints against the police officers, seeking to prosecute them for her allegedly unlawful arrest and detention. It seems that the proceedings regarding their complaints were joined together in one case.

The investigating authorities conducted an internal investigation and drafted a report dated 28 December 2003, which read:

“The Trade Union Centre of the Tyumen Region, the Trade Union of the Elevator Operators of the Town of Tyumen SOTSPROF, and the Tyumen Regional Fund for the protection of civil rights ‘Resonance’ informed the local administration about the picket of 24 November 2003, which would be held from noon to 1 p.m., Mr [Kh.] having been named as a person responsible for it.

The picket was supervised by [five police officers], who were present at its location from 11.45 a.m. to 12.45 p.m. The picketers did not disturb the peace. The police officers did not speak to them. By 12.45 p.m. the crowd had dispersed. At 12.50 p.m. the police officers returned to [the District Department].

On 24 November 2003 [a police officer on duty] received a telephone call from [the college]. Following this call [a group of three police officers on duty and a driver] arrived at [the college]. On their arrival they found out that the call had been made by the [head of the college], who explained that several unknown persons had burst into her office and interfered with the activities of the college. She stated that she would request the prosecution of these people. Later the police officers realised that those people were the participants in the picket. [The group] was taken to [the District Department].

In the District Department the police collected the statements from the [head of the college], who requested that [the group] be prosecuted. [Two police officers] collected written statements from the detained parties and then let them go home. None of the detained persons was put in a special cell. Consequently, they were not deprived of their liberty.

On 3 December 2003 [the police] refused to institute criminal proceedings at the request of the [head of the college].

On the grounds given above, I would conclude that ... the [police officers] acted lawfully”.

On 29 December 2003 the group was notified of this decision. Neither the applicant nor other participants challenged it in court.

On an unspecified date Mr Kh. informed the Tyumen Region prosecutor’s office of the allegedly unlawful police actions which had been performed in connection with the picket of 24 November 2003.

The prosecutor’s office examined the case in parallel with the proceedings instituted by the police and held that the rights of the picketers had been violated. It issued notice of violation no. 7-75-04 dated 26 February 2004 which read:

“The prosecutor’s office has examined [Mr Kh’s] request. The examination has indicated numerous violations of law in the actions of the police.

The Trade Union Centre of the Tyumen Region, the Trade Union of the Elevator Operators of the Town of Tyumen SOTSPROF and the Tyumen Regional Fund for the protection of civil rights ‘Resonance’ informed the administration about the picket of 24 November 2003, which was to be held from noon to 1 p.m. Initially, the picketers stood outside the entrance to the [college]. Later they entered the ante-room of the office of the head of the [college].

Following the telephone call which was made by [the head of the college], police officers arrived at the scene of the incident. The police officers took the picketers to [the District Department] ...

Pursuant to [the provisions of the Police Act], the police should have escorted the picketers in accordance with the provisions of either administrative or criminal law.

[The police officer] who escorted the picketers to the Kalininskiy District Department of the Interior of the Town of Tyumen drew up a report without examining the circumstances surrounding their arrest. The report is unclear as to the commission of precisely which offence the actions of the group could have amounted to.

Simultaneously [another police officer] received an oral request for the institution of criminal proceedings against the persons who had organised the unlawful picket near the [college] and disturbed the peace. This request was submitted by [the head of the college].

Subsequently, the investigating authorities instituted a preliminary criminal investigation...

In the present case the police should have conducted a preliminary investigation in accordance with administrative law procedure...

Article 27.1 of the Code of Administrative Offences of Russia entitles [police officers] to employ a variety of measures aimed at ensuring the conduct of administrative proceedings. In particular it gives them a right to escort persons and detain them. This power may be exercised in order to stop an administrative offence, to identify an offender, and to draw up an administrative offence record in cases where such a record cannot be drawn up at the place of the incident. Article 27.2 of the Code of Administrative Offences of Russia requires the police to note the execution of an escort operation in an administrative arrest record or to make a special note in an administrative offence record. The act of escorting an individual may be also indicated in an escort operation record. This indicates that administrative proceedings have been instituted. Administrative proceedings should be finalised with a procedural decision.

The inappropriate organisation and conduct of the investigation has resulted in the violation of [the picketer’s rights].

Moreover, following the inquiry conducted under Article 145 of the CCrP of Russia, the police officers did not decide whether or not the demonstrators’ actions had amounted to an administrative offence. The deadline for bringing administrative proceedings as provided by Article 4.5 § 4 of the Code of Administrative Offences of Russia has since expired. In accordance with Article 24.5 § 6 of the Code of Administrative Offences of Russia, the administrative proceedings should be discontinued.

In the light of the above circumstances, taking into account Article 24 of the Federal Law On Prosecutor’s Office of Russia, I recommend [to the Head of the police]:

That the present recommendations be examined.

That an internal inquiry be carried out to decide whether a disciplinary punishment should be imposed on the police officers.

That it be ensured that all police officers study the administrative legislation ...”

On an unspecified date the police authority notified the picketers of this decision.

On 30 March 2004, in response to the prosecutor’s notice of violation of 26 February 2004, the police – having conducted an internal inquiry – fully endorsed its own previous findings and the conclusions of the report of 28 December 2003 (see paragraph 20 above).

The applicant and the group of the protesters did not further pursue the institution of proceedings through either the police or the prosecutor’s office.

In February 2004 the applicant lodged a civil complaint against the police authorities before the Kalininskiy District Court of the Town of Tyumen (“District Court”). She sought a declaration that the actions of the police on 24 November 2003 had been unlawful because they had breached her freedom of expression, freedom of assembly and right to liberty.

On 25 February 2004 the District Court informed the applicant that she should substantiate her claim by providing more evidence concerning the events in question and specifying the names of the policemen involved. She should also be specific as to which actions she considered to have been unlawful. The applicant was given until 5 March 2004 to correct these shortcomings in her application to the court.

On 22 March 2004 the Tyumen Regional Court, at the applicant’s request, quashed the decision of 25 February 2004.

On 29 March 2004 the District Court refused to examine the applicant’s case on the merits. It stated that it had no competence to deal with the applicant’s complaints within the context of civil proceedings, since a criminal investigation in respect of the police officers had been instituted at her request. It concluded that the normal remedy for exhaustion purposes would be to appeal under Chapter 16 of the Code of the Criminal Procedure of Russia (CCrP) against the police’s decision not to prosecute the police officers. Since the applicant had failed to seek recourse through this remedy, the merits of her claim were left unexamined. The relevant part of this judgment read:

“The court has established that [the prosecutor’s office] conducted a preliminary investigation into [the applicant’s] arrest and her detention on the premises of the Kalininskiy District Department of the Interior of the Town of Tyumen on 24 November 2003. This investigation resulted in the decision not to institute criminal proceedings. All of the participants in the picket were advised of their right to challenge this decision.

Chapter 16 of the CCrP sets out special rules governing appeals against the decisions of the police.

In accordance with Article 134 § 1 of the Code of Civil Procedure of Russia, a court must refuse to examine a claim on the merits if it cannot be examined in civil proceedings.

From the foregoing, the court concludes that it must refuse to examine [the applicant’s] claim on the merits...”

On 2 June 2004 the Tyumen Regional Court upheld the judgment of the District Court on appeal, essentially endorsing the reasoning of the lower court. It pointed out that the picketers had been informed of the outcome of their proceedings by the police and the prosecutor’s office. This gave them an opportunity to challenge the relevant decisions in court under Chapter 16 of the CCrP. According to the court, they had brought a civil claim falling outside the civil courts’ jurisdiction.

The applicant did not follow the courts’ recommendations and did not institute proceedings under Chapter 16 of the CCrP.

The Constitution guarantees the right to freedom of peaceful assembly and the right to hold meetings, demonstrations, marches and pickets (Article 31).

Decree of the Presidium of the USSR Supreme Council no. 9306-XI of 28 July 1988 (in force at the material time pursuant to Russian Presidential Decree no. 524 of 25 May 1992) provided that organisers of an assembly were to submit written notification to the municipal authorities no later than ten days before the planned assembly (§ 2). The authority was to give its response no later than five days before the assembly (§ 3). An assembly could be banned if its purpose was contrary to the Constitution or threatened public order or the security of citizens.

Article 27.2 of the Code of Administrative Offences of Russia of 30 December 2001 (CAO) states that the escorting or transfer by force of an individual for the purpose of drawing up an administrative offence report – if this cannot be done at the place where the offence was discovered and if the drawing-up of a report is mandatory – is to be carried out by the police. The escort operation must be carried out as quickly as possible and it must be recorded in an escort operation report, an administrative offence report or an administrative detention report. The escorted person must be given a copy of the escort operation report if he or she so requests.

Article 27.3 of the CAO provides that administrative arrest, that is to say a temporary restriction of liberty of an individual, may be ordered in exceptional circumstances where it is necessary for a correct and prompt examination of the administrative case.

In accordance with Article 27.4 of the CAO the administrative arrest must be recorded in a report

Article 27.5 of the CAO provides that the duration of administrative arrest must not exceed three hours, except for situations involving persons subject to administrative proceedings concerning an offence punishable by administrative detention, who may be placed under administrative arrest for a period not exceeding forty-eight hours.

Chapter 16 of the CCrP lays down the procedure by which acts or decisions of a court or public official involved in criminal proceedings may be challenged. Acts or omissions of a police officer in charge of the inquiry, an investigator, a prosecutor or a court may be challenged by “parties to criminal proceedings” or by “other persons in so far as the acts and decisions [in question] touch upon those persons’ interests” (Article 123). Those acts or omissions may be challenged before a prosecutor (Article 124). Decisions taken by police or prosecution investigators or prosecutors not to initiate criminal proceedings, or to discontinue them, or any other decision or inaction capable of impinging upon the rights of “parties to criminal proceedings” or of “hindering an individual’s access to court” may be subject to judicial review (Article 125).


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Carlo Ranzoni;Egidijus Kūris;Eva Brems;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicant was born in Chernivtsi in Ukraine in 1966. In 1984 she moved to Magadan in Russia (which is about 12,000 kilometres away from Chernivtsi), where she obtained a teaching degree and has been working as a school teacher for over twenty years.

Her sister, K.T.O., a Russian national, also lived in Magadan for a certain period of time. In February 1993 K.T.O. gave birth to a girl, K.L.S., who is also a Russian national. In December 1993 K.T.O. together with K.L.S. moved to Chernivtsi, where her parents (the grandparents of K.L.S.) lived. Subsequently, the grandparents raised K.L.S. for about ten years.

In 2004 the applicant’s parents and K.L.S. moved to Ludinovo, the Kaluga Region in Russia (which is about 1,100 km away from Chernivtsi and about 11,000 km away from Magadan). In August 2007 K.L.S. moved to Magadan and, since that time, has lived together with the applicant in her flat.

By a decision of 29 December 2007, the mayor of Magadan appointed the applicant as the guardian of K.L.S., on the grounds that the child’s parents did not take care of her.

On 20 February 2009 the Magadan Town Court allowed a claim by the applicant and deprived the parents of K.L.S. of their parental rights in respect of the child, on the grounds that they had failed to take care of her for over fifteen years. No appeal was lodged and on 11 March 2009 the judgment entered into force. No information was submitted to the Court as to whether the parents of K.L.S. had been informed of that judgment.

In March 2007 K.T.O. gave birth to a boy, K.O.S., whose nationality was disputed by the parties. According to the material submitted by the applicant, K.T.O., who was raising the child alone, failed to take care of him. For that reason, in November 2008 the Shevchenkivskyy District Court (hereafter “the Shevchenkivskyy Court”) in Chernivtsi ordered his placement in care (an orphanage). In March 2010 the same court ordered the child’s return to his mother. Subsequently, K.O.S. was taken to an orphanage on four other occasions.

The applicant claims that she and her parents visited K.O.S. in Chernivtsi on several occasions and maintained “a close family link” with him. In particular, she referred to her parents’ visits in April 2010 and May 2012 and her visit in August 2010. According to a copy of an undated letter from K.T.O., the applicant visited her and K.O.S. in Chernivtsi between 2010 and 2012 (no specific dates being indicated), and sent them parcels with food and clothes.

In March 2012 K.O.S. was taken into care as his mother had left him alone in her flat for over twenty-four hours.

On 5 July 2012 the Shevchenkivskyy Court deprived K.T.O. of her parental rights in respect of K.O.S., holding that she had not cared for him and had not played a part in his upbringing. No appeal was lodged and on 15 July 2012 the judgment entered into force. No information was submitted to the Court as to whether the parents of K.O.S. had been informed of that judgment.

On 27 July 2012 K.O.S. was put on the list of children deprived of parental care who could be adopted. On 14 August 2012 the Executive Committee of the Chernivtsi Town Council gave K.O.S. the formal status of a child deprived of parental care.

In the meantime, on an unspecified date in July 2012 K.L.S. had visited Chernivsti to meet K.O.S. She discovered that he had been placed in an orphanage and informed the applicant accordingly. The applicant decided to become her nephew’s legal tutor (a guardian for children under fourteen). She informed the Tutelage and Guardianship Service of Magadan of her wish to become a tutor, and started collecting documents and certificates to make a formal application. In particular, on 22 August 2012 her flat was inspected by representatives of the Magadan Public Health Service, who found that the flat had adequate hygienic and sanitary conditions for the applicant’s family to accommodate K.O.S.

In August and September 2012 the applicant made a number of telephone calls to the Childcare Service of Chernivtsi and to the orphanage, asking them to take into account that she wished to become K.O.S.’s legal tutor, and that she was preparing the necessary documents to make a formal application.

At the applicant’s request, the Tutelage and Guardianship Service of Magadan sent a letter to the Childcare Service of Chernivtsi informing them that she wished to become K.O.S.’s legal tutor and that she had fulfilled her obligations as K.L.S.’s tutor. The Tutelage and Guardianship Service of Magadan also asked the Childcare Service of Chernivtsi not to consider other candidates for the role of K.O.S.’s tutor.

By a letter of 17 September 2012, the Childcare Service of Chernivtsi informed the Tutelage and Guardianship Service of Magadan that they had received the information about the applicant’s wish to become K.O.S.’s legal tutor on 4 September 2012. The Childcare Service of Chernivtsi further informed the Tutelage and Guardianship Service of Magadan: that a couple wishing to adopt K.O.S. had been given permission to establish contact with him prior to that date and had already submitted all the necessary documents for his adoption (see paragraphs 22-23 below); that an opinion in favour of that adoption would be issued; and that, on the basis of such an opinion, the couple would submit an adoption application to the Pershotravnevyy District Court in Chernivtsi (hereafter “the Pershotravnevyy Court”). Lastly, the Childcare Service of Chernivtsi noted that the applicant had the right to lodge a tutelage application with the same court, and advised her to do so “as soon as possible”.

On 10 October 2012 the Tutelage and Guardianship Service of Magadan issued an opinion stating that, given her personal situation and qualities, the applicant could become a legal tutor or guardian.

On 22 October 2012 the applicant went to Chernivtsi, mainly to initiate procedures with a view to becoming K.O.S.’s tutor and to meet him there. Ultimately, this was not possible, as he had been adopted by S.S.V. and S.O.V. prior to her arrival in Ukraine (see paragraph 26 below) and the Ukrainian authorities refused to help her to meet K.O.S.

On 30 August 2012 a married couple, S.S.V. and S.O.V., who were on the list of persons wishing to adopt a child, were allowed to meet with K.O.S. at the orphanage.

On 6 September 2012 they informed the Childcare Service of Chernivtsi that they wished to adopt K.O.S. and asked it to issue an opinion in favour of the adoption.

On 19 September 2012 the Executive Committee of Chernivtsi, acting in the exercise of its childcare related functions, issued an opinion in favour of the requested adoption. According to the committee, S.S.V. and S.O.V. were physically fit and had sufficient funds and facilities to accommodate and take care of K.O.S. They had established contact and a good relationship with the child and, according to the orphanage’s psychologist, the child wished to live in their family, although he could not give written consent as “he didn’t understand what adoption was because of his age”. It was also noted: that the child had a half-sister and an aunt who lived in Magadan; that in August and September 2012 the applicant and the Magadan authorities, respectively, had informed the Childcare Service of Chernivtsi of her wish to become the child’s legal tutor; that the applicant had been informed in reply that she could lodge an application for tutelage with a district court; and that no such application had been lodged. Lastly, the opinion read that, generally, adoption was “the preferred form of [a child’s] placement”, and that, in the present case, the adoption would be appropriate and in the interests of the child.

On 24 September 2012 S.S.V. and S.O.V. lodged an adoption application in respect of K.O.S. with the Pershotravnevyy Court.

On 2 October 2012 the Pershotravnevyy Court, having examined the case at a closed hearing with the participation of S.S.V. and S.O.V. and representatives from the Childcare Service and the orphanage, delivered a judgment granting the adoption. It also ordered that K.O.S.’s surname be changed to that of the adoptive parents and that S.S.V. and S.O.V. be registered respectively as his father and mother instead of his biological parents.

The court essentially relied on the information contained in the opinion of the Executive Committee of Chernivtsi. The court held that the requested adoption was in the interests of the child in being raised in “stable life conditions and in [an atmosphere of] harmony”.

The applicant was informed of the judgment of 2 October 2012 following a delay, though she did not specify how long the delay had been.

On 1 February 2013 the applicant lodged an appeal with the Chernivtsi Court of Appeal against that judgment, stating that it had violated her right to become her close relative’s legal tutor and her right to submit arguments against the adoption. In particular, the applicant argued: (i) that the Pershotravnevyy Court had failed to take into account the fact that K.O.S. had close relatives, his half-sister and aunt, who had not been informed of the proceedings and had not taken part in them; (ii) that the Pershotravnevyy Court had not checked K.O.S.’s nationality; (iii) that K.O.S. was a Russian national, as his biological mother had been a Russian national at the time when he had been born in 2007; (iv) that the procedure provided for in Ukraine’s relevant international treaties in relation to the adoption of foreign nationals had not been followed; and (v) that the Pershotravnevyy Court had disregarded the fact that she had informed the Ukrainian Childcare Service of her wish to become K.O.S.’s legal tutor and the fact that she had been preparing the necessary documents for this.

On 18 March 2013 K.L.S. sent a letter to the Court of Appeal stating that she and the rest of her family (notably her grandparents and the applicant) had a close connection with K.O.S. and that he wished to live with them.

On 4 April 2013 the Court of Appeal refused to examine the applicant’s appeal on the grounds that the judgment did not concern her right or interest in becoming the child’s legal tutor, or any obligations in that regard which in principle could be the subject matter of a separate claim.

The applicant appealed in cassation, mainly arguing that the Court of Appeal had failed to examine her arguments and that she had been deprived of access to a court, in violation of the procedural rules.

On 10 July 2013 the Higher Specialised Court for Civil and Criminal Matters rejected the applicant’s cassation appeal on the basis that it had not been demonstrated that the contested decision of the Court of Appeal was unlawful.

According to the applicant’s submissions of 29 March 2016, on an unspecified date K.T.O. left Ukraine for Russia and she currently resides with her parents (the grandparents of K.O.S.) in Ludinovo.

In December 2015 the Government submitted a copy of a verbatim record of an interview with K.O.S. which had been carried out by the childcare service in the locality where he had lived with S.S.V. and S.O.V. on 19 February 2013. According to that record, the child, inter alia, expressed the wish to continue living with his adoptive parents, who were present during the interview, and said that he had no aunt or uncle. The applicant contended that this information could not be accepted, as it had not been checked with her participation and contradicted other material in the case file.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Robert Spano;Stéphanie Mourou-Vikström

The applicant was born in 1974 and lives in Yalova.

The applicant lived in Turkey between 2001 and 2003, when he met his wife and got married. The applicant and his wife have four children. In 2003 the applicant was deported to Algeria by the Turkish authorities. Between 2003 and 2006 he was imprisoned in Algeria, where he alleges he was subjected to various forms of ill-treatment.

The applicant and several other individuals founded the Rachad Movement in Algeria, a political organisation which opposes that country’s government through non-violent means. After the protest movement known as the Arab Spring began in 2010, he was taken into police custody in Algeria and he alleges he was subjected to ill-treatment there.

On an unspecified date he fled from Algeria to Syria, where he worked as a teacher. Subsequently, in August 2013, he arrived in Yalova, Turkey, where his wife and children lived.

On 3 November 2013 he was taken into police custody as he did not have a passport. On the same day, the applicant was placed in a detention room at the Yalova police headquarters, where he was detained between 3 November 2013 and 7 January 2014.

The applicant submitted that the detention room in which he had been kept was in an ordinary police detention facility where arrestees were held for short periods (generally one day). During his detention, many people were detained in the room, at times as many as 10-12 people. The room was around 10 sq. m and there was no heating or ventilation, and no bed. Nor did it receive any natural light. He was confined in that room and was exceptionally allowed to use the other parts of the detention facility. He could use the hall in the centre of the facility only when his family members visited him. The applicant was provided with a mattress and a blanket and he slept on the floor. He was never taken out of the detention facility and did not have access to exercise in the open air. The facility had no shower and he therefore had to wash himself in the toilets. As he suffered from asthma, anaemia and back problems, he needed medical assistance. However, he was taken to hospital on only one occasion.

The applicant submitted a number of photographs in support of his submissions. In one of those photographs he is seen sitting on the bench in a small detention room behind bars.

In their submissions dated 18 January 2017, the Government submitted that the applicant had been detained in the “custody cell” of the public security branch of the Yalova police headquarters. The custody cell in question was used as a foreigners’ detention centre because there was no separate foreigners’ detention centre in Yalova at that time. The Government stated that the custody facility measured approximately 92 sq. m and consisted of two detention rooms of 12.8 sq. m and 17.6 sq. m, two toilets (3.5 and 5.7 sq. m respectively), a room for the taking of police statements of 13.5 sq. m, a room used for interviews between arrestees and their lawyers of 6 sq. m, and an identification parade room of 6 sq. m. There was also a hall in the centre of the facility, which measured 21 sq. m, onto which the detention rooms opened. The hall had an air conditioner and two windows measuring 70 x 93 cm and 150 x 205 cm which provided natural light for the detention rooms.

In their additional observations dated 23 May 2017, the Government submitted that foreign nationals and Turkish nationals detained in the context of criminal investigations were kept separately in two detention rooms in the facility in question. They stated that at the material time the Turkish nationals had been kept locked in one of the detention rooms and that the applicant and other foreign nationals had had access at all times to the hall in the centre of the facility − where there were chairs and a table – and to the toilets. When there were no Turkish national detainees, the foreign nationals also had access to both detention rooms.

In support of their submissions the Government submitted a sketch map of the detention facility and a total of thirty-nine photographs. Nine of these photographs were taken outside and show the police station building. Eleven photographs were taken in the toilets, which appeared clean. There is a shower head installed in each of the toilets. Nine other photographs show the room for the taking of police statements, the room used for interviews between arrestees and their lawyers, and the identification parade room. Lastly, nine further photographs show the detention rooms and the hall. It is apparent that the detention rooms are separated from the hall by bars. There are no beds in the detention rooms but along their three walls there are concrete benches topped with a cushion. On the benches there are blankets, apparently used both for covering and as pillows. The detention rooms do not have windows but appear to receive light from the hall. The photographs of the hall show that there are two windows, a table and chairs on which towels were put in that area.

The Government also submitted custody registers showing the occupation rates at the detention facility for the period between 4 November 2013 and 7 January 2014. According to those documents, the applicant was detained alone for thirty-one days and for thirty days he was detained together with between one and six foreign nationals. On 26 November 2013 there were seven foreign nationals, including the applicant, detained at the facility. On 27 and 28 November 2013 the applicant was detained together with eleven other foreign nationals.

For thirty days between 4 November 2013 and 7 January 2014, there had been no Turkish nationals detained at the facility. In particular, on 26, 27 and 28 November 2013 no Turkish national had been held in custody. During the remaining thirty-five days, a minimum of one and a maximum of five Turkish nationals had been in detention, except for 1 January 2014, when eleven Turkish nationals had been held in police custody. In particular, on 29 November 2013 one Turkish national had been detained at the facility in question.

On 27 December 2013 the applicant lodged an individual application with the Constitutional Court. The applicant alleged, inter alia, that the conditions of his detention at the Yalova police headquarters described above had amounted to illtreatment (see paragraph 10 above).

On 21 January 2015 the Constitutional Court delivered its decision on the admissibility and merits of the applicant’s case. As regards the applicant’s complaint that the conditions of his detention at the Yalova police headquarters had amounted to ill-treatment, the Constitutional Court noted that he had complained that his health had worsened as a result of the conditions in which he had been detained. Since the applicant had been provided with medical assistance when he had fallen ill in detention, the Constitutional Court found that the administrative authorities had taken the necessary measures to protect the applicant’s physical and psychological health. As a result, the court concluded that the treatment of the applicant had not attained the minimum level of severity required to be described as inhuman or degrading treatment.

On 24 June 2015 the Constitutional Court’s decision was served on the applicant’s representative.


András Sajó;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicant, Mr Vladimir Munteanu, is a Moldovan national, who was born in 1965 and lives in Cahul. He was represented before the Court by Mr V. Iordachi, a lawyer practising in Chişinău.

The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs. The Moldovan Government, who had been informed of their right to intervene in the proceedings, under Article 36 § 1 of the Convention, gave no indication that they wished to do so.

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

On 30 August 2006 the applicant was charged, together with two Romanian citizens, with fraud, initiating and belonging to an organised crime group, forgery and money laundering. The prosecutor’s decision stated that the applicant had imported car tyres into Romania, and through several offshore companies and using falsified customs documents had avoided paying customs duties.

On 3 September 2006 the applicant was placed in pre-trial detention for thirty days. The prosecutor requested an extension, but this was rejected by the Bucharest County Court on 27 September 2006. The court held that after the applicant’s placement in pre-trial detention, the prosecutor had not produced any new evidence to prove he was guilty of the crimes he had been charged with.

On 2 October 2006 the Prosecutor’s Office of the High Court of Cassation and Justice imposed a preventive measure on the applicant, banning him from leaving Romania for thirty days so that the investigation into the above-mentioned crimes could continue. This preventive measure was extended on a monthly basis by decisions of the case prosecutor.

On 28 September 2007 the applicant complained to the Bucharest County Court about the prosecutor’s decision to extend the ban on him leaving Romania from 27 September until 26 October 2007. He applied to have the measure revoked, arguing that no new investigative steps had been taken by the prosecutors in the meantime, and that the measure taken against him had been extended automatically without taking into consideration his specific situation, namely that he was not a Romanian citizen and that his wife, two young children and parents all resided in Moldova and needed a visa to travel to Romania. The applicant also argued that extending the measure for more than one year would be contrary to the Criminal Procedure Code.

In the meantime, before a decision was taken on his complaint, the applicant was allowed by the prosecutor to leave Romania for twelve days to visit his sick father in Moldova.

On 15 January 2008 the Bucharest County Court allowed the applicant’1 of the Criminal Procedure Code. The court held that the prosecutor’s decision had not provided any new reasons to extend the preventive measure taken against the applicant. In addition, it held that the prosecutor had not proved there was a reasonable suspicion that he had committed the crimes he had been charged with. The judgment became final on 21 January 2008, when an appeal by the prosecutor on points of law (recurs) was rejected by the Bucharest Court of Appeal.

On that date the applicant was free to leave Romania and he returned to Moldova.

The relevant provisions of the Criminal Procedure Code in force at the time are as follows:

“(1) In cases concerning offences punishable with imprisonment, to ensure the proper conduct of the criminal trial or to prevent the suspect or defendant from fleeing during the criminal investigation, trial or ... execution of the sentence, one of the following preventive measures may be imposed: ...

(b) a ban on leaving town;

(c) a ban on leaving the country; ...

(8) The measure to be taken shall be chosen taking into account its purpose, the severity of the crime, the health, age, [and any] previous convictions or other circumstances [of] the person on whom the measure is to be imposed.”

“A person charged with an offence or a defendant may complain about a ... ban on leaving town or the country within three days of its adoption by the prosecutor ...

“(2) ... A measure not to leave town may be extended in the course of the criminal investigation if necessary and only by a reasoned decision. The extension may be ordered by the prosecutor conducting or supervising the investigation, each not exceeding thirty days. The maximum duration of the measure provided for in paragraph (1) in the course of a criminal investigation is one year. Exceptionally, where the punishment is life imprisonment or detention of ten years or more, the maximum duration of the ban on leaving town may be two years.”

“(2) The provisions of Article 145 also apply to bans on leaving the country.”

The relevant provisions of the Criminal Code in force at the relevant time are as follows:

“(5) Fraud which had very serious consequences shall be punished with 10 to 20 years’ imprisonment and the interdiction of certain rights.”


Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani

The applicant, Ms Vera Kecojević, is a Montenegrin national, who was born in 1957 and lives in Nikšić. She is represented before the Court by Mr M. Vojinović, a lawyer practising in Nikšić.

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

On 28 December 2004 the President of the Municipality of Nikšić issued a decision appointing a Restitution and Compensation Commission (Komisija za povraćaj i obeštećenje, hereinafter “the Commission”). This decision was not confirmed by the Municipal Assembly and the remuneration of the members of the Commission was never specified. The Commission functioned until 8 July 2005, when it was replaced by a new one. The applicant was a member of both Commissions.

On an unspecified date in 2006 the applicant instituted proceedings against the Municipality seeking compensation in the amount of EUR 1,500 in respect of remuneration for her work in the Commission between 28 December 2004 and 8 July 2005, as she had not been paid during the said period.

On 2 July 2007 the Court of First Instance (Osnovni sud) in Nikšić ruled against the applicant on the ground that the Commission had had no legitimacy during the specified time, given that the decision on its appointment had not been confirmed by the Municipal Assembly, and as the remuneration for the said period had never been defined.

On 3 October 2008 the High Court (Viši sud) in Podgorica upheld the first-instance judgment, essentially endorsing the reasons contained therein.

On 6 October 2008 the High Court in Podgorica overturned a firstinstance judgment issued in respect of one of the applicant’s colleagues, and awarded him compensation in the amount of EUR 1,380 in respect of remuneration for his work in the same Commission in the same period, plus accompanying interest and the costs of the proceedings. In doing so the court held, in particular, that the Commission had had a temporary character by virtue of the law itself and that therefore the firstinstance court’s conclusion that it had lacked legitimacy was wrong. Also section 58 of the Local Self-Governance Act 2003 specifically provided that if the Assembly did not confirm a certain decision or the President of the Municipality did not submit it for confirmation, the decision would cease to be in force as of the day when the Assembly terminated its session. Therefore, it had to be considered that the Commission had ceased to operate when the decision on its appointment was not confirmed, that is on 8 July 2005 in the given case. The court noted that the Court of First Instance had also taken into account that no act defined remuneration of the members of the Commission. However, the High Court held that, pursuant to section 28 (3) of the Restitution and Compensation Act, members of the Commission had the status of civil servants, and were therefore entitled to remuneration. In any event claimants should not suffer any detriment on account of the legislature’s failure to define the exact amount of their remuneration.

Section 28 (1) provided that Municipal Assemblies would establish Restitution and Compensation Commissions within 60 days as of the date when this Act entered into force. Section 28 (3) further provided, inter alia, that members of the Commissions had the status of civil servants.

This Act entered into force on 8 April 2004.

The said amendments introduced section 41a, which specified that the President of the Municipality could temporarily issue decisions falling within the Assembly’s competence, if the Assembly could not convene or for some other reason it was impossible for it to work and the said decisions were of interest for exercising citizens’ rights and freedoms. The President of the Municipality had to submit such a decision to the Assembly for its confirmation as soon as the Assembly could convene.

Section 58 provides that the president of the Municipality can temporarily issue decisions falling within the Assembly’s competence, if the Assembly cannot convene or for some other reason it is impossible for it to work, and the absence of these decisions would endanger lives or property of great value. The President of the Municipality shall submit such a decision to the Assembly for its confirmation at its first session. If the Assembly does not confirm such a decision or the President does not submit it for confirmation, the decision shall cease to be in force (prestaje da važi) on the day when the session of the Assembly terminates.

This Act entered into force on 24 July 2003 except for Chapter V, including section 58, which was to enter into force as of the next local elections, which took place in Nikšić on 12 March 2005. Until then the relevant provisions of the earlier Act, including section 41a, continued in force.

Section 397 (2) in force at the time provided, inter alia, that an appeal on points of law against a second-instance decision would not be admissible in pecuniary matters unless the value of the claim exceeded EUR 10,000. Section 397 (4) (2) provided that exceptionally to the previous provision, an appeal on points of law was always admissible in disputes “for loss of earnings or other work-related income when these compensations were established or quashed for the first time” (zbog izgubljene zarade ili drugih prihoda po osnovu rada kada su te odštete prvi put određene ili ukinute).

Sections 433 - 438 set out details as to employment-related disputes. Section 438 provided in particular that an appeal on points of law was allowed only in disputes relating to employment, as well as continuation and termination thereof.

Sections 398 and 410, taken together, provided that the Supreme Court, when deciding upon an appeal on points of law, could either overturn the second-instance decision in cases when the substantive law was misapplied, or quash it and order a re-trial when the facts were incompletely established due to a misapplication of substantive law.


Violation of Article 3 - Prohibition of torture (Article 3 - Torture;Positive obligations) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in 1979 and lives in the village of Gorno Sahrane.

In the morning of 20 February 2012 Mr N.K. and Mr I.K., officers of the Pavel Banya police force, went to the applicant’s house in connection with a complaint that a burglary had taken place several days earlier, on 16 February. They were making inquiries into the matter but a formal criminal investigation had not yet been opened. The applicant was not home but the officers obtained his mobile telephone number from his wife and called him, telling him to appear at the police station for inquiries.

The applicant went to the police station at about 1 p.m. According to the findings of the criminal courts which later examined the events (see paragraphs 20 and 21 below), he was taken to a room where there were Mr N.K., Mr I.K. and a third officer. Mr N.K. asked the applicant whether he had anything to tell them. After the third officer had gone out of the room, Mr I.K. took out a wooden bat and hit the applicant’s left shoulder. He hit him again and the applicant fell to the ground. After that Mr N.K. kicked him with his knee and repeatedly hit him with a rubber truncheon. Some time after that another officer, Mr T.A., came into the room carrying an electroshock prod. He administered an electric shock to the applicant’s left leg. The applicant curled up on the floor, while Mr N.K. and Mr I.K. kept beating him. The beating continued intermittently for some time, and the applicant was able to stand up on his feet. Another officer came into the room for a while. After he left, Mr N.K., Mr I.K. and Mr T.A. again administered electric shocks to the applicant and carried on hitting and kicking him. At one point, when the applicant’s head was low down, he was kicked on the nose and started bleeding, and the beating stopped.

The blows sustained by the applicant caused a haematoma on his nose and haematomas and bruises on the upper left back, the left side of the torso and the left shoulder.

At about 4 p.m. Mr N.K. drew up a written statement on behalf of the applicant that said that he knew nothing of the reported burglary, and presented it to the applicant for signature. The applicant was released at about 5 p.m.

The next day, 21 February 2012, the applicant was examined by a forensic doctor who noted the numerous haematomas and bruises on his face and upper body, which he believed to have been caused by “hard blunt objects and objects with cylindrical form”.

On 27 February 2012 the applicant complained about the incident to a member of Parliament, who forwarded his complaint to the prosecuting authorities. As a result, the Kazanlak District Prosecutor’s Office opened criminal proceedings against the three officers who had ill-treated the applicant, and on 1 February 2013 charged them with causing him minor bodily harm while carrying out their duties, an offence under Article 131 § 1 (2) read in conjunction with Article 130 § 2 of the Criminal Code 1968 (see paragraphs 28 and 29 below).

On 1 March 2013 the prosecutor in charge of the case informed the applicant that, since the penalty for this offence was up to one year’s imprisonment, the officers’ criminal liability would be waived and replaced with administrative penalties, as required under Article 78a of the Code (see paragraph 42 below).

On 28 March 2013 the applicant asked the Kazanlak District Prosecutor’s Office to consider bringing charges against the officers under Article 282 § 1 of the Code (see paragraph 31 below). He pointed out that under this Court’s case-law a mere fine, which was all that the charges under Article 131 § 1 (2) read in conjunction with Article 130 § 2 could lead to, was not an adequate penalty for the ill-treatment suffered by him. On 1 April 2013 that office replied that it had no competence to investigate and prosecute offences under that provision.

On 23 April 2013 the applicant asked the Kazanlak District Prosecutor’s Office to consider bringing charges against the officers under Article 287 of the Code (see paragraph 32 below), pointing out that that office was competent to investigate and prosecute such offences. It does not appear that he received a reply.

The prosecuting authorities maintained the original charges and on 29 April 2013 proposed to the Kazanlak District Court to waive the officers’ criminal liability and replace it with administrative penalties, as possible under Article 78a § 1 of the Code (see paragraph 42 below).

On 30 April 2013, when setting the case down for trial, the Kazanlak District Court noted that although the applicant had expressed the intention of bringing a civil claim when the case came for trial, under the applicable rules of criminal procedure that was not possible in proceedings under Article 78a of the Code (see paragraph 44 below); the applicant was to be notified accordingly.

On 21 May 2013 the applicant asked the court to refer the case back to the prosecuting authorities for them to consider whether the officers had committed an offence under Article 287 of the Code (see paragraph 32 below). The same day the judge rapporteur advised the applicant that his request could not be allowed because he was not party to the proceedings: under the relevant rules of criminal procedure the alleged victim of the offence could not take part as a civil claimant or private prosecutor in proceedings under Article 78a of the Code (see paragraph 44 below). It was moreover up to the prosecuting authorities to decide what charges to press. In any event, Article 287 of the Code did not apply to the facts as recited in the indictment. According to them, the applicant had been ill-treated before the institution of criminal proceedings in relation to the burglary in which he would have a capacity as a person charged with a criminal offence or a witness, which was a required element of the offence. Criminal law provisions could not be interpreted broadly.

The officers’ trial took place on 23 May, 5 August, 13 November and 12 December 2013.

On 12 December 2013 the Kazanlak District Court, based on the findings of fact made by it (see paragraphs 7-11 above), held that Mr N.K., Mr I.K. and Mr T.A., acting in concert, had wilfully caused the applicant light bodily harm, contrary to Article 131 § 1 (2) read in conjunction with Article 130 § 2 of the Criminal Code 1968 (see paragraphs 28 and 29 below). The court went on to hold that the case fell under Article 78a § 1 of the Code (see paragraph 42 below) and that the officers’ criminal liability was therefore to be waived and replaced by administrative fines ranging from 1,000 to 5,000 Bulgarian levs (BGN). In fixing the quantum of the fines, the court found that the officers’ good character and their having caused the applicant the least serious type of bodily harm under the Code were mitigating factors, whereas their having acted jointly and having infringed the applicant’s rights under the Convention were aggravating ones. It also took into account the officers’ family and financial situation, noting in particular that the monthly salary of the first was BGN 800 and those of the other two BGN 600 each. Based on all that, it held that the aims of the punishment could be attained by giving each of the officers a fine of BGN 2,000 (the equivalent of 1,023 euros (EUR)). There was no need additionally to disqualify them from working as police officers under Article 78 § 4 of the Code (see paragraph 42 in fine below). The fines were sufficient to make them rethink their conduct and refrain from resorting to violence in the future.

The officers appealed against that judgment, but on 25 April 2014 it was fully upheld by the Stara Zagora Regional Court, whose judgment was final. That court reviewed of its own motion the penalties imposed on the officers and fully agreed with the reasons given by the lower court on that point.

Following a complaint by the applicant, on 27 February 2012 the Kazanluk Regional Police Department opened an internal inquiry into the allegations that he had been ill-treated. On 6 March 2012 it informed the applicant that it had recommended the opening of disciplinary proceedings against the three officers. As a result of those proceedings, on 5 June and 18 October 2012, respectively, Mr N.K. and Mr I.K. were punished with non-admission to promotion competitions for a period of three years for having unlawfully detained the applicant, whereas Mr T.A. was not given a disciplinary penalty. The disciplinary commission found that none of the three officers had ill-treated the applicant.

In August 2014 the applicant brought a claim for damages under section 1 of the State and Municipalities Liability for Damage Act 1988 against the Stara Zagora Regional Police Directorate. The Stara Zagora Administrative Court heard the case on 17 December 2014, and in a judgment of 19 January 2015 found the Stara Zagora Regional Police Directorate liable for the ill-treatment suffered by the applicant at the hands of the three officers, and awarded him BGN 4,000 (the equivalent of EUR 2,045), plus interest, in non-pecuniary damages. The court noted, in particular, that the ill-treatment to which the applicant had been subjected had not been provoked by him in any way, and that it had caused him physical pain for about a month. It had also caused him to feel apprehensive and uneasy when going out of his home because of fear that he might be illtreated again.

It appears that that judgment has not yet become final.


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

The applicant was born in 1957 and lives in Šabac.

The applicant was employed by “Zorka-mineralna đubriva” AD, a socially/State-owned company based in Šabac (hereinafter – “the debtor”).

On 10 April 2001 the Šabac Municipal Court, by a court order, gave effect to a settlement made by the applicant and the debtor. According to that settlement the debtor had to pay the applicant certain sums in respect of salary arrears and costs of proceedings.

On 25 March 2003 the applicant lodged an application for the enforcement of the above court decision with the Šabac Municipal Court.

On the same date the court allowed the application and issued an enforcement order.

On 4 April 2003 the enforcement proceedings were stayed because the debtor was undergoing restructuring.

On 11 May 2007 the applicant requested the court to continue the enforcement proceedings.

On 6 July 2007 the court continued the enforcement proceedings.

On 24 June 2008 the enforcement proceedings were stayed again because the debtor was undergoing restructuring.

On 26 March 2010 the applicant requested the court once again to continue the enforcement proceedings.

On 27 December 2011 the court considered the request of 26 March 2010 to be a fresh application for the enforcement of the decision of 10 April 2001 and ordered the applicant to submit again a copy of that decision.

As the applicant failed to comply with this this request on 30 January 2012 the court terminated the enforcement.

On 3 July 2003 the Šabac Municipal Court ruled in the favour of the applicant and ordered the debtor to pay him certain sums in respect of salary arrears and costs of proceedings. This judgment became final on the same date.

On 29 September 2004 the applicant lodged an application for the enforcement of the above court decision with the Šabac Municipal Court.

On 30 September 2004 the court allowed the application and issued an enforcement order.

On 4 January 2005 the enforcement proceedings were stayed because the debtor was undergoing restructuring.

On 4 October 2007 the court continued the enforcement proceedings.

On 3 March 2008 the enforcement proceedings were stayed again because the debtor was undergoing restructuring.

On 10 July 2002 the Privatisation Agency ordered the restructuring of the debtor as part of privatisation process. The restructuring of the debtor is still ongoing.


Alvina Gyulumyan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicants are Mrs M.P., her husband Mr M.P., and their son M.D.P. They are all Romanian nationals, born in 1971, 1974 and 2003 respectively; they all live in Buzău and were represented before the Court by Mr P. Pop, a lawyer practising in Bucharest.

The Romanian Government were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.

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

Mrs M.P., mother of a nine year-old child from a previous marriage, had been informed by doctors that she could no longer conceive naturally; together with her husband, Mr M.P., she decided to have recourse to artificial insemination procedures in order to have a child.

The applicants contacted doctor S.P., an obstetrician at the “Prof. Dr Panait Sârbu” Obstetrics and Gynaecology Hospital in Bucharest (hereafter “the hospital”) to that end. They informed the doctor that Mrs M.P.’s first child had been born with a congenital malformation (tibial agenesis, or hemimelia) and asked for further information concerning the risk that the future child could be born with the same condition. They explained to the doctor that if such a risk existed they would not proceed with the insemination.

Doctor S.P. assured them that the first child’s situation was exceptional and that there was no risk of another child being born with the same disability.

They were then referred to doctor A.V. in order to have the standard procedural tests carried out. They enquired again about the risk of having another baby with the same malformation and about the possibility of running genetic tests in order to rule out this issue. The doctor assured them that the chances of it happening were minimal (1/1,000,000); therefore no other tests were performed.

The artificial insemination was scheduled for 19 November 2002 and it resulted in the first applicant’s pregnancy.

In the first trimester of the pregnancy the first applicant underwent several tests recommended by doctor S.P., who also referred her to doctor D.A. for further ultrasound scans. She allegedly told the latter about her fears concerning the risk of the baby developing the same malformation as her first child. However, she was reassured each time that everything concerning the development of the unborn child was normal.

During one of the ultrasound scans, performed in the twenty-fourth week of pregnancy, doctor E.S., an echographer, informed the applicants that he had noticed a difference between the two legs of the foetus, but reassured them that it was likely that that was an error, as the difference was minor and the foetus did present both a tibia and a femoral bone.

This information was conveyed to doctor S.P., who concluded that no special issue arose.

The first applicant decided to seek further tests, however. To that aim, she contacted a private clinic, M.R., where on 9 June 2003 she underwent a three-dimensional ultrasound scan, performed by doctor D.A. At the relevant time the applicant was in her thirty-second week of pregnancy.

The doctor detected a peculiar position of the toes in relation to the leg (planta în poziţie valg faţă de planul frontal al gambei), reassuring Mrs M.P. nevertheless that the legs of the foetus were normally developed. He further detected foetal distress in the brain (suferinţă fetală la nivel cerebral) and recommended that the applicant contact her obstetrician.

After consulting with her obstetrician, on 12 June 2003 the first applicant was hospitalized; Mrs M.P. and the foetus were monitored until 16 June 2003, when she was released from hospital as there were no further indications of foetal distress.

On 8 August 2003 the applicant was admitted to hospital for the birth; she was immediately referred to doctor C., who later assisted the applicant during the birth. On 12 August 2003 the applicant gave birth to a baby boy (the third applicant); he presented a malformation of one of his legs that was identical to that of his older brother.

Doctor S.P. visited the applicant three days later; referring to the child’s disability, the doctor offered his support in finding an association which could help the applicants financially.

Nine months after giving birth to M.-D.P., and despite the doctors’ conclusion that she could not become pregnant naturally, Mrs M.P. discovered that she was expecting a third baby. Together with her husband, she decided to have an abortion, fearing that the third child would be born with the same disability.

On 9 May 2005 the applicants brought an action against doctors S.P., D.A., E.S. and A.V., as well as against the hospital, the private clinic M.R., the Ministry of Health and the Romanian State, represented by the Ministry of Finance.

On behalf of their younger son, they requested a monthly lifetime allowance of 20,000,000 old Romanian lei (ROL); in their own name, they asked for ROL 5,000,000,000 in compensation for pecuniary and non-pecuniary damage incurred on account of the birth of a disabled child, who needed frequent medical interventions due to his disability.

The applicants claimed that the defendants were liable for negligence in performing their medical duties, namely, that the doctors had failed to adequately inform them prior to the artificial insemination of the potential risk that the new baby could be born with the same disability as his older brother; and that they subsequently failed to adequately monitor the development of the foetus and also misinterpreted the results of the ultrasound examinations, telling them that the baby was developing normally and thus misleading them. The applicants reiterated that if they had been aware of the risks involved, they would have not undergone the artificial insemination to begin with, and in any event, they would have decided on an abortion, so as to spare the child of a life of pain and suffering on account of his disability.

Referring to “the doctors’ superficiality” in dealing with their case, the applicants highlighted that in spite of the diagnosis according to which Mrs M.P. could no longer become pregnant naturally, she had become pregnant unexpectedly and found herself compelled to have an abortion for fear of having another disabled child.

On 7 December 2007 a report containing the conclusions of doctor D.I., an expert in genetics from the National Institute of Forensic Medicine, was adduced as evidence.

In reply to the twenty-five questions put by the court, the expert gave her opinion, which its relevant parts held as follows:

“The [peculiar] position of the toes in relation to the leg indicate a congenital malformation [question no. 1] ...

“The recommended measure [for diagnosing a genetic anomaly of the specified type] is a foetal morphological ultrasound scan, performed in the 20th-24th week of pregnancy. The lower limbs are visible from the 13th-14th week of pregnancy, but the toes only from the 20th week. The period of 20-24 weeks is optimal for visualising the foetal structures and for making the choice of whether to continue or to terminate the pregnancy. [question no. 9] ...

Pre-conception diagnosis cannot be performed in the case of tibial agenesis (tibial hemimelia) .... The gene responsible for this condition is not known and the genetic defect potentially responsible for tibial agenesis is beneath the resolution threshold of cytogenetic testing (karyotyping).

A prenatal diagnosis can be made by performing an ultrasound scan (foetal morphological ultrasound) in weeks 20-24 of pregnancy. [question no. 25] ...

Conclusions

In a case where the parents of a child with tibial agenesis have given birth to a second child with the same congenital malformation following a pregnancy resulting from artificial insemination, it would have been advisable for a genetic consultation to be carried out before conception of a second child, together with rigorous ultrasound monitoring of the second pregnancy in order for the specific ultrasound warning signs to be identified in time.

It would also have been essential to inform the parents about this anomaly (tibial agenesis) and about the possibilities for treatment, given that surgical orthopaedic treatment is possible.”

On 25 January 2008 the Bucharest Court of First Instance rendered its judgment. The court held that due to medical negligence, Mrs M.P. had suffered damage, namely, “the birth of a child with a congenital anomaly”. The court stated that her right to be correctly informed about the state of health of her unborn child had been infringed; implicitly, her right to choose whether or not to give birth to a child suffering from a congenital malformation was equally infringed.

The court found doctor A.V. responsible in her capacity as a geneticist for not discharging her duty of care in assessing the applicant’s condition before the artificial insemination, despite having been informed that her first child had been born with a malformation. It concluded that the doctor had failed to proceed to further testing of the applicant in order to clarify her situation and thus inform her about the existing risks associated with a pregnancy, which would have given the parents the opportunity to assess their options.

Regarding the responsibility of doctor E.S., the court concluded that he had failed to correctly interpret the results of the ultrasound scan performed during the twenty-fourth week of pregnancy, which had revealed a problem with the foetus’s legs. It further stated that in such circumstances the doctor had been under an obligation to refer the applicant for further testing and to recommend a three-dimensional ultrasound scan.

Doctor D.A. was cleared of responsibility on account of the fact that he had been the only doctor to correctly interpret the results of the threedimensional ultrasound scan performed during the thirty-second week of pregnancy, on 9 June 2003 (see paragraph 8 above).

As regards doctor S.P., the applicant’s obstetrician, the court found that he was responsible for not recommending the three-dimensional ultrasound scan in time for the malformation to be promptly discovered (weeks 20-24) and also for misinterpreting and ignoring the results of the scan when it was performed in the thirty-second week of pregnancy, in spite of the fact that it had revealed an anomaly in the foetus’s legs.

The hospital was held jointly liable with the doctors in respect of the payment of damages.

The court referred only to the first applicant in its reasoning; however, it stated in its conclusion that the damages awarded consisted of the payment of a monthly allowance for the third applicant as requested, as well as of compensation for pecuniary damage (in the amount of 2,499.99 new Romanian lei (RON)) and non-pecuniary damage (in the amount of RON 150,000) for both parents.

The parties held responsible appealed against the judgment.

In its decision of 20 September 2009, the Bucharest County Court reassessed the merits of the case and dismissed the applicants’ action. The court concluded that doctor A.V. had performed her duties in accordance with her professional obligations; the fact that she had not recommended further tests to the applicant did not make her responsible for any damage, in so far as, according to the expert’s conclusions, the only way to detect the malformation was by means of a three-dimensional ultrasound scan performed up to the twenty-fourth week of pregnancy, and that preinsemination tests would not have revealed with certainty the risk of such a condition.

As to the responsibility of doctor S.P., the court stated that he could not be held liable in so far as the applicants had been informed that there was a risk of 1/1,000,000 of having a second child with the same malformation.

Regarding doctor E.S., the court noted that the problem he had discovered during the ultrasound scan performed on 9 June 2003 concerned the femoral bone, whereas the malformation the third applicant was born with affected the tibia.

The court further stated that in any case, a termination of pregnancy could only be carried out up to the fourteenth week, at which stage it was impossible to detect that kind of malformation.

The applicants appealed against that decision.

On 9 December 2009 the Bucharest Court of Appeal gave its final judgment, partly allowing the appeal.

The court examined each of the applicants’ complaints, namely, that the doctors had not informed them of the risk of giving birth to a child with a malformation; that they had not prescribed all the necessary genetic tests and examinations to detect the risk of a genetic malformation; that they had wrongly interpreted the results of the few ultrasound scans the applicant underwent during her pregnancy.

The court rejected the first complaint as ill-founded, in so far as the patients had been informed that the risk of having a child with a genetic anomaly was 1/1,000,000.

The second complaint was also dismissed in view of the fact that, as revealed by the medical report adduced in the case, no genetic tests or examinations that could have revealed the above-mentioned risk existed.

In relation to the third complaint, the court held that according to the evidence in the case, the patient had been closely monitored during her pregnancy, with ultrasound examinations performed every three weeks. However, the medical report concluded that the lower limbs were visible from week 13-14, while the toes could be seen from week 20, an optimal interval therefore being between weeks 20-24. In such circumstances, the court considered that the interpretation of the ultrasound scans performed was problematic, in so far as more attention should have been paid to the particularities of the case and, potentially, more in-depth ultrasound tests should have been prescribed.

The damage therefore consisted of the birth of a child with a genetic malformation.

From this perspective, the court held that concerning the minor child, there was no causal link between the medical wrongdoing and the alleged damage, in so far as the result of a faultless medical procedure would have been an abortion. Thus, and in view of the importance of the right to life, it could not be considered that it would have been better for the child not to have been born, having regard also to the fact that the malformation in question was not capable of substantially affecting the quality of the child’s life. It transpired from the file that the malformation could be corrected in the future by surgery.

The parents, however, had incurred concrete damage, in so far as had they known about the disease, they would have been able to decide whether to keep the child or to opt for an abortion.

The court dismissed the claims concerning the pecuniary damage, in so far as the applicants had failed to substantiate it by means of relevant medical bills and documents. Moreover, the state social security system fully covered the costs of the necessary prosthesis for the patient.

The court of appeal further awarded Mr and Mrs M.P. RON 20,000 for non-pecuniary damage, to be paid by doctor E.S., ecographer, jointly with the hospital; the doctor was held liable for negligence as he was the only one who could have detected the malformation in time for the applicants to be able to make a decision about terminating the pregnancy. In awarding this amount, the court also took into consideration the fact that the applicants had been informed that the risk of their child being born with a disability was 1/1,000,000, and that they had decided to take that risk.

According to the information submitted by the parties, since January 2004 the third applicant has received various prostheses at a general rate of twice per year, meaning that by 2011, he had undergone twenty-two changes of prosthesis. In 2011 he had major surgery, involving an amputation below the knee, which enabled him to be fitted with a more advanced prosthesis in 2012.

Article 185 of the Romanian Criminal Code on the illegal causing of abortion read at the relevant time as follows:

“1. The act of interrupting the course of pregnancy, by any means, committed in one of the following circumstances:[...]

(c) if the age of the embryo has exceeded fourteen weeks;

is punishable by imprisonment from 6 months to 3 years. ...

Interruption to the course of pregnancy by a physician is not punishable in the following situations:

(a) if interruption to the course of pregnancy was necessary in order to save the pregnant woman’s life, [or protect her] health or bodily integrity from a serious and imminent danger that could not have otherwise been removed;

(b) in the case in para (1) c), when interruption to the course of pregnancy was necessary for therapeutic reasons, in accordance with legal provisions;

(c) in the case in para (2) when the pregnant woman was unable to express her will, and the interruption was necessary for therapeutic reasons, in accordance with legal provisions.”

The relevant domestic provisions regarding the civil liability of medical staff are described in Eugenia Lazăr v. Romania, no. 32146/05, §§ 52-54, 16 February 2010.

A draft law on healthy procreation and medically assisted human procreation (no. L334/2004) was rejected by the Senate on 9 February 2006 following a decision of the Constitutional Court finding several sections of the draft law to be in breach of the provisions of the Constitution.

Law no. 95/2006 on the healthcare reform indicates in its articles 208-210 that the health insurance system is the main provider of healthcare, prosthetics included.

Law no. 448/2006 on the protection of persons with disabilities provides in its articles 35-37 that these persons are entitled to have a personal care giver, remunerated with approximately EUR 130 monthly; article 58 further provides that the families having a disabled child are entitled to a fixed monthly allowance of approximately EUR 47; the disabled child would receive twice the amount of a normal child allowance, reaching about EUR 18 a month.

“An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it.

This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks.

The person concerned may freely withdraw consent at any time.”

“1. Everyone has the right to respect for private life in relation to information about his or her health.”

“The person who has suffered undue damage resulting from an intervention is entitled to fair compensation according to the conditions and procedures prescribed by law.”

“1. The techniques of artificial procreation may be used only if the persons concerned have given their free, informed consent, explicitly and in writing, in accordance with national requirements.

Before obtaining such consent, the physician and the establishment using the techniques of artificial procreation must ensure that the persons concerned are given appropriate information and counselling about the possible medical, legal, social and, where relevant, genetic implications of this treatment, particularly, those which might affect the interests of the child to be born.”

“The information given during the counselling prior to prenatal genetic screening and prenatal genetic diagnosis must be adapted to the person’s circumstances and be sufficient to reach a fully informed decision. This information should in particular cover the purpose of the tests and their nature as well as any risks which these tests present.”

“Where there is an increased risk of passing on a serious genetic disorder, access to preconception counselling and, if necessary, premarital and preconception screening and diagnostic services should be readily available and widely known.”

“(a) Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice.”

“Appropriate assessment and adequate management of risk related to medicine, life sciences and associated technologies should be promoted.”


Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

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

The applicant complained of the excessive length of their pre-trial detention. He also raised a complaint under Article 5 § 4 of the Convention.