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

The applicants, Mr Eric Wright and Mr James Brown, are Irish nationals who were born in 1960 and live in Londonderry, Northern Ireland. They are represented before the Court by Mr P. MacDermott of MacDermott, McGurk & Partners Solicitors, a lawyer practising in Londonderry.

The United Kingdom Government (“the Government”) are represented by their Agent, Ms A. McLeod of the Foreign and Commonwealth Office.

By letter dated 21 March 2014 the Government of Ireland were notified of the applications and were asked if they wished to exercise their right to intervene pursuant to Article 36 § 1 of the Convention and Rule 44 of the Rules of Court. However, they did not seek to exercise this right.

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

The first applicant was arrested by the army at 07.25 on 1 January 1977 in relation to two attacks on army patrols in Londonderry. He was handed over to the police at 10.15 and he was visited by his father and examined by a police surgeon shortly thereafter. No injuries or complaints were noted.

From 12.02 to 12.57 the first applicant was interviewed by two detectives. During this interview he admitted that he was a member of Fianna na h’Eireann, a proscribed Republican organisation, and had acted as a lookout during the two attacks.

A second interview took place between 14.45 and 17.12 the same day, and during this interview the first applicant allegedly signed a statement admitting membership of a proscribed organisation; again admitted to acting as a lookout during the two attacks; and sketched the area showing where he and others had been situated during the attacks. His father was admitted to the interview room at 16.51 and shown the statements of admission.

That evening the first applicant was again medically examined and no complaints or injuries were noted.

The second applicant was arrested by the army at 20.55 on 7 December 1976 in relation to the same two attacks on army patrols. He was transferred to police custody at 00.40 on 8 December 1976.

During his first interview, which took place between 00.40 and 01.15, he admitted to being a member of Fianna na h’Eireann.

He was medically examined at 01.40 and no complaints or injuries were noted.

He was again interviewed under caution between 09.15 and 10.30 and during this interview he confirmed that he was a member of a proscribed organisation and admitted to being a lookout during one of the attacks. He further indicated the location of this incident by reference to a map.

The second applicant was visited by a relative at 10.30. He was interviewed again from 11.50 to 13.00, and from 15.00 onward. During the second of these interviews he made a written confession in which he admitted to acting as a lookout during both attacks and carrying shotgun cartridges across the border into the Republic of Ireland.

At 19.30 on 8 December 1976 he was visited by his parents, who declined to countersign his confessions. He was medically examined on the evening of 9 December 1976 and again on the morning of 10 December. On both occasions he denied any ill-treatment and no relevant sign of injury was detected.

The applicants’ trial took place from 15 to 18 December 1977. The first applicant was charged with one count of membership of a proscribed organisation, two counts of conspiring to communicate information likely to be of use to terrorists, one count of causing grievous bodily harm and one of attempting to cause grievous bodily harm. He entered “not guilty” pleas to all counts. However, he was found to be guilty as charged and sentenced to ten years’ imprisonment. He did not appeal against conviction and his application for leave to appeal against sentence was dismissed on 17 February 1978.

The second applicant pleaded “guilty” to one count of belonging to a proscribed organisation, two counts of conspiracy to communicate prohibited information, one count of unlawful possession of ammunition and one count of possessing ammunition without a licence. He pleaded not guilty to one count of conspiracy to cause an explosion and one count of conspiracy to discharge a firearm. He was found to be guilty as charged and sentenced to a total of ten years’ imprisonment. He did not appeal against either conviction or sentence.

On 18 October 2011 the applicants’ cases were referred to the Court of Appeal in Northern Ireland by the Criminal Cases Review Commission (“CCRC”) on the grounds that there was a real possibility that the Court of Appeal would consider that the manner in which they were detained and interviewed involved significant breaches of the Judges’ Rules (see paragraph 27 below) and of other protections which they should have enjoyed (namely, access to a solicitor before or during the police interviews and the presence of a family member or independent adult); that in consequence of those breaches the admissions made were unreliable and/or inadmissible; and that in the circumstances their convictions were unsafe.

Judgment was delivered by the Court of Appeal on 23 May 2012. The court noted that at the time of the applicants’ trial confessions made in breach of the Judges’ Rules were admissible under the emergency provisions legislation (see paragraph 25 below) unless obtained by torture or inhuman or degrading treatment.

In respect of the first applicant, the court held that although the confessions had been obtained in breach of the Judges’ Rules because he had not had access to a solicitor, independent adult or family member, in light of the statutory background it could not conclude that the admission of the confessions rendered the conviction unsafe. In particular, it noted that the confessions were not contradictory or inaccurate, they were not challenged at trial, and the conviction was not appealed. The first applicant’s appeal was therefore dismissed.

The court also found no evidence that the second applicant’s conviction was unsafe. In reaching this conclusion, it noted that he had pleaded “guilty” to most of the offences and had not challenged the admissibility or reliability of his confessions in contesting the two counts to which he pleaded “not guilty”. The second applicant’s appeal was also dismissed.

On 7 September 2012 the Court of Appeal certified that the following point of law of general public importance was involved in the decision which ought to be considered by the Supreme Court:

“Where in a trial conducted in accordance with the then applicable statutory emergency provisions a young person was convicted of an offence on the basis of a confession admitted at the time of trial by virtue of the statutory emergency provisions but in circumstances in which such a confession would otherwise have been excluded as having been obtained in a manner which contravened the Judges’ Rules, the Administrative Directions on Interrogation and the Taking of Statements and the RUC Code and where such confession was obtained in circumstances which did not provide safeguards subsequently and currently considered to be necessary to avoid a miscarriage of justice, does such conviction fall to be considered as unsafe?”

However, the Court of Appeal refused to grant leave to appeal to the Supreme Court.

On 7 February 2013 the Supreme Court also refused permission on the grounds that the application did not raise an arguable point of law which it ought to consider and that there was no real possibility that the court would find the convictions to be unsafe.

Section 10 of the Criminal Appeal Act 1995 provides that:

“Where a person has been convicted of an offence on indictment in Northern Ireland, the Commission—

(a) may at any time refer the conviction to the Court of Appeal, and

(2) A reference under subsection (1) of a person’s conviction shall be treated for all purposes as an appeal by the person under section 1 of the 1980 Act against the conviction.”

Section 6 of the 1973 Act provided that:

“(1) In any criminal proceedings for a scheduled offence a statement made by the accused may be given in evidence by the prosecution in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of subsection (2) below.

(2) If, in any such proceedings where the prosecution proposes to give in evidence a statement made by the accused, prima facie evidence is adduced that the accused was subjected to torture or to inhuman or degrading treatment in order to induce him to make the statement, the court shall, unless the prosecution satisfies them that the statement was not so obtained, exclude the statement or, if it has been received in evidence, shall either continue the trial disregarding the statement or direct that the trial shall be restarted before a differently constituted court (before whom the statement in question shall be inadmissible).”

The effect of section 6 was to suspend the rules and practice governing the admissibility of confessions for the period during which the legislation was in force. However, immediately following the implementation of the legislative changes, judges dealing with cases governed by the 1973 Act declared that they retained a discretion to exclude what was, by statute, otherwise admissible evidence (see, for example, R v. Corey & Others, NIJB, December 1973).

A note preceding the Judges’ Rules indicated they did not affect the principles:

“(c) That every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor. This is so even though he is in custody provided that in such a case no unreasonable delay or hindrance is caused to the processes of investigation or the administration of justice by his doing so.

(e) That it is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by that person to a question put by a police officer and of any statement made by that person, that it shall have been voluntary.

The principle set out in paragraph (e) above is overriding and applicable in all cases. Within that principle the following Rules are put forward as a guide to police officers conducting investigations. Non-conformity with these Rules may render answers and statements liable to be excluded from evidence in subsequent criminal proceedings.”

The Administrative Directions accompanied the Judges’ Rules. Paragraph 4 provided that, as far as practical, children and young persons should only be interviewed in the presence of a parent or guardian or, if that was not possible, a person who was not a police officer and was of the same sex as the child. Home Office guidance indicated that this requirement should be seen as applying to anyone under the age of seventeen.

Pursuant to paragraph 7(a), a person in custody should be allowed to speak on the telephone to his solicitor or to his friends provided that no hindrance was reasonably likely to be caused to the process of investigation or to the administration of justice.

The police code applicable at the relevant time provided that:

“Police pursuing inquiries involving children and young persons must bear in mind that where at all possible children and young persons should be interviewed in the presence of a parent/guardian or other adult friend, and that the venue selected for the interview should not be one which could be calculated to intimidate, unduly embarrass or frighten the person interviewed.”

In HM Advocate v McLean [2009] HCJAC 97, 2010 SLT 73 the High Court of Justiciary (sitting with seven judges) had held, notwithstanding the decision of the Grand Chamber in Salduz v. Turkey [GC], no. 36391/02, ECHR 2008, that it was not a breach of Article 6 § 1 of the Convention read in conjunction with Article 6 § 3(c) for the Crown to rely at trial on admissions made by a detainee while being interviewed without having had access to a solicitor, since the guarantees otherwise available under the Scottish system were sufficient to avoid the risk of any unfairness.

However, in Cadder the Supreme Court unanimously found that McLean had been incorrectly decided as the High Court of Justiciary had erred in its interpretation of Salduz. The Grand Chamber’s judgment was to be understood as laying down two statements of principle: that access to a lawyer should be provided as from the first interrogation of a suspect; and that the rights of the defence would be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer were used for a conviction. There was room for a certain flexibility in the application of these requirements but they did not permit a systematic departure from it.

Furthermore, the Supreme Court did not accept that the guarantees otherwise available under the Scottish system were sufficient to secure a fair trial. Those guarantees were commendable but were, in truth, incapable of removing the disadvantage that a detainee would suffer if, not having access to a solicitor for advice before he was questioned by police, he made incriminating admissions or said something which enabled the police to obtain incriminating evidence from other sources which was then used against him at his trial.

That being said, the Supreme Court indicated that where incriminating statements made during police interrogation without access to a lawyer were used for a conviction, it would only be appropriate to quash that conviction if it was clear that there was insufficient evidence for it without the evidence of the police interview, or taking all the circumstances of the trial into account, there was a real possibility that the jury would have arrived at a different verdict had they not had that evidence before them.

Finally, the Supreme Court held that, in the interests of legal certainty, the ruling should not permit the reopening of closed cases, but rather should only apply to those cases which had not yet gone to trial, to cases where the trial was still in progress, and to appeals that had been brought timeously. For all closed cases it was a matter for the Scottish Criminal Cases Review Commission to decide whether the cases should be referred back to the Appeal Court and for that court to decide what course it ought to take if a reference were to be made to it by the Commission.


Remainder inadmissible;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);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev

The applicant was born in 1959 and lives in Baku.

The applicant is a mathematician and physicist who worked at the Academy of Sciences of the Republic of Azerbaijan from 1981 to 1993. He then became involved in the political and social life of the country. He also worked as editor-in-chief of the Talishi Sedo, a bilingual Azerbaijani-Talish newspaper, and was chairman of the Talish Cultural Centre. He has been chairman of the Committee for Rehabilitation of Detainees since 2009.

At around noon on 21 June 2012, when the applicant was on his way home, six or seven plain-clothes police officers assaulted him near the Neftchilar metro station in Baku. Without showing their official identification, they restrained the applicant’s arms and began to hit him below the knees. They kicked him in the lower part of his right ribcage and then slipped narcotic substances into his right trouser pocket. They handcuffed him and dragged him into their car, where they continued to beat him. In the car they started to insult him, making comments about his ethnic origin, and threatened him on account of a video recording he had uploaded to the YouTube online video platform.

The police officers did not inform the applicant of the reasons for his arrest. Indeed, the applicant did not even realise that he had been arrested by the police until he was taken to the Narcotics Department of the Ministry of Internal Affairs (“the NDMIA”).

A search of the applicant was conducted at the NDMIA. According to the record (no. 7/32-130 dated 21 June 2012) of operational measures and the seizure of physical evidence (əməliyyat tədbirinin keçirilməsi və maddi sübutun götürülməsi barədə protokol) drawn up by a police investigator, the search was carried out from 1.45 to 2 p.m. on 21 June 2012 in the presence of the applicant, three police officers and two attesting witnesses. It appears from the record that the applicant was not represented by a lawyer. During the search, 5 grams of a substance similar to heroin was found in his right trouser pocket.

At 2 p.m. on 21 June 2012 a police investigator drew up a record of the applicant’s arrest.

On the same day a search was carried out in the applicant’s flat without a court order. According to the search record, it was conducted from 6.10 to 7.55 p.m. on 21 June 2012 in the presence of the applicant, six police officers and two attesting witnesses. It appears from the record that the applicant was not represented by a lawyer and the two attesting witnesses were the same persons who had previously participated in the search at the NDMIA. During the search, narcotic substances similar to heroin were found. The applicant made a written comment in the record that the narcotic substances did not belong to him.

According to the applicant, on 21 and 22 June 2012 he was detained in handcuffs and was deprived of food and water.

The Government submitted that on 21 June 2012, during the applicant’s arrest and afterwards at the police station, he was not subjected to torture or inhuman or degrading treatment by the police.

On 22 June 2012 the applicant was charged under Article 234.4.3 (illegal preparation, production, possession, storage, transportation and sale of a large quantity of narcotic substances) of the Criminal Code.

On the same day the Nizami District Court, relying on the official charge brought against the applicant and the prosecutor’s request to apply the preventive measure of remand in custody (həbs qətimkan tədbiri), ordered the applicant’s detention for a period of three months. The court justified the applicant’s detention pending trial by the gravity of the charge, the fact that the applicant was charged with a criminal offence punishable by more than five years’ imprisonment, and the likelihood that if released he might abscond from the investigation.

On 14 August 2012 the Baku Court of Appeal upheld the detention order of 22 June 2012.

In the meantime, on 3 July 2012 the applicant was charged with new criminal offences under Articles 274 (high treason) and 283.2.2 (incitement to ethnic, racial, social or religious hatred and hostility) of the Criminal Code.

On 17 August 2012 the applicant applied to the Nasimi District Court to be placed under house arrest instead of pre-trial detention. He claimed, in particular, that his detention had not been justified and that there was no reason for his continued detention.

On 1 September 2012 the Nasimi District Court dismissed the application as unsubstantiated.

On 10 September 2012 the Baku Court of Appeal dismissed an appeal lodged by the applicant. It found that if he was placed under house arrest, the applicant might abscond from the investigation and obstruct the investigation by influencing those involved in the proceedings.

On 15 September 2012 the Nasimi District Court extended the applicant’s pre-trial detention for a period of four months.

On 20 September 2012 the Baku Court of Appeal upheld the Nasimi District Court’s decision of 15 September 2012.

On 27 September 2013 the Baku Assize Court found the applicant guilty on all counts and sentenced him to five years’ imprisonment.

On 25 December 2013 the Baku Court of Appeal upheld this judgment. It was further upheld on 25 June 2014 by the Supreme Court.

At 8.30 p.m. on 21 June 2012 an investigator at the Nizami District Police Office questioned the applicant as a suspect. It appears from the record of the questioning that the applicant complained of ill-treatment during his arrest by the police. He stated in this connection that on his way home at around noon on 21 June 2012 near the Neftchilar metro station in Baku, two cars stopped next to him and six or seven plain-clothes police officers assaulted him. They dragged him into one of the cars without showing their official identification and began to beat him up. He did not realise that he had been arrested by the police until he was taken to the NDMIA. The applicant further stated that the narcotic substances found on him and in his flat had been planted by the police. He pointed out that his arrest was related to his political and social activities, as he was editorinchief of the Talishi Sedo newspaper and was involved in defending political prisoners’ human rights.

On the same day the investigator ordered a forensic examination of the applicant.

On 22 June 2012 the applicant was examined by a forensic expert. His report (no. 554 dated 23 June 2012) stated that the applicant had complained of having been beaten up by the police during his arrest on 21 June 2012. The expert noticed abrasions on the applicant’s left calf and right thigh, and concluded that they could have been inflicted on 21 June 2012. The relevant part of the forensic report reads as follows:

“Questions addressed to the forensic expert:

What kind of injuries are there on the body of citizen H. Mammadov?

What are their characteristics and location?

On which part of the body, in which circumstances and with which instrument were the injuries inflicted? Could these injuries have been sustained as a result of an assault?

What is the degree of gravity of the injuries?

Initial information:

H. Mammadov submitted in his statement that on 21 June 2012 police officers arrested him and dragged him into a car where they hit him on various parts of his body.

On 22 June H. Mammadov was subjected to a forensic examination. According to him, at around noon on 21 June 2012 six or seven plain-clothes police officers arrested him near his place of residence. They kicked and punched him as they put him in the car and whilst in the car. He did not ask for medical help. He complains of pain in the location of his injuries.

Objective examination:

The person examined is a man of medium height, normal build and well fed.

There are two abrasions (sıyrıq), measuring 1.7x0.5 cm and 1.8x0.2 cm, 4 cm apart, on the middle of the outer side of the left calf (baldır). The surface of the abrasions is covered with a red scab and is situated below the level of healthy skin tissue. There is an analogical abrasion, measuring 1.0x0.1 cm, on the middle of the outer side of the right thigh (bud). No other injuries were noticed on the body.

Conclusion

Relying on the forensic examination of H. Mammadov, born in 1959 and the initial information, and in reply to the questions addressed in the decision, I conclude as follows:

The following injuries were noticed on the body of citizen H. Mammadov: abrasions on the left calf and on the right thigh.

The above-mentioned injuries were caused by a hard blunt object(s). They could have been inflicted in the circumstances and at the time indicated in the descriptive part of the decision, namely on 21 June 2012. The degree of the injuries has not been determined because they are not injuries causing harm to health.”

The applicant was not provided with a copy of the forensic report.

It appears from the case file that on 22 June 2012 the applicant’s complaint of ill-treatment was transferred to the Nizami District Prosecutor’s Office.

On 29 June 2012 an investigator at the Nizami District Prosecutor’s Office questioned the applicant about his ill-treatment by the police. The applicant reiterated his previous statement, pointing out that at around noon on 21 June 2012 he had been beaten up during his arrest by six or seven plain-clothes police officers. He further stated that these police officers had also participated in the search at the NDMIA on 21 June 2012 and that the name of one of them was Q.

It appears from the documents submitted by the Government that on 31 July 2012 the Head of the Serious Crimes Department of the Prosecutor General’s Office asked the Deputy Prosecutor General to order the examination of the applicant’s complaint of ill-treatment received by the Nizami District Prosecutor’s Office.

On 6 and 9 August 2012 an investigator at the Prosecutor General’s Office separately questioned four police officers, including Q., who had participated in the arrest and search. The wording of their statements was identical. They each claimed that they had not used physical force against the applicant during his arrest.

On 13 and 14 August 2012 the investigator separately questioned three police officers who had been on guard duty at the temporary detention centre when the applicant had been taken there following his arrest. Their statements were also identical, each claiming that, when the applicant had been taken to the temporary detention centre, he had not complained of illtreatment.

On 15 August 2012 the applicant was questioned by the investigator and reiterated that he had been beaten up during his arrest. In reply to the investigator’s question concerning the fact that the police officers who had participated in his arrest had denied the allegation of ill-treatment, the applicant stated that they had lied in their statements.

On the same day the investigator examined the clothes that the applicant had been wearing on the day of his arrest. The investigator found that the clothes were not damaged.

On 17 August 2012 the investigator ordered an additional examination of the applicant by a forensic commission. In particular, he asked the experts to establish whether the injuries found on the applicant’s body could have resulted from his body coming into contact with “sharp parts of the vehicle” (avtomobilin çıxıntı hissələri) during his arrest.

On 23 August 2012 the applicant was examined by two experts who issued forensic report no. 213 on 24 August 2012. According to the forensic report, the applicant complained of having been beaten up during his arrest on 21 June 2012. The experts confirmed the existence of injuries on the applicant’s body, but concluded that they had resulted from the applicant’s body coming into contact with “angular protruding parts of the vehicle” (avtomobilin qabarıq tinli hissələri) during his arrest. The relevant part of the forensic report reads as follows:

“Information about the case:

There is brown-grey pigmentation in the shape of a strip, measuring 1.4x0.3 cm, on the middle of his outer left calf. No injury or trace of injury was noticed on other parts of his body.

Conclusion

Relying on the forensic examination of H. Mammadov, born in 1959, the facts indicated in the descriptive part of the decision, the observations indicated in forensic report no. 554 in respect of him and in reply to the questions addressed in the decision, the commission of experts concludes as follows:

There are two abrasions on the middle of the outer side of his left calf and one abrasion on the middle outer side of his right thigh.

The above-mentioned injuries were caused by a hard blunt object(s). They could have been inflicted at the time indicated in the descriptive part of the decision, namely on 21 June 2012. The degree of the injuries has not been determined because they are not injuries causing harm to health.

Taking into consideration the characteristics (morphological particularities) and location of the injuries found on the outer sides of the left calf and of the right thigh of H. Mammadov, and the fact that such injuries could not have been inflicted by another person or other persons in the passenger compartment of a car, it is refuted that these injuries could have been inflicted in the circumstances described in the statement of H. Mammadov.

3.1. It therefore results from the above-mentioned observations that the injuries found on the outer sides of the left calf and of the right thigh of H. Mammadov were caused by contact of the examined lower parts of his body with angular protruding parts of the vehicle when he was put in the car.

No injury or trace of injury corresponding to the circumstances described in H. Mammadov’s explanation and statements that he was beaten in the head, neck and chest in the passenger compartment of the vehicle was noticed either during the initial forensic examination dated 22 June 2012 or during the additional commission forensic examination of 23 August 2012.”

The applicant was not provided with a copy of forensic report no. 213.

On 27 August 2012 the Deputy Prosecutor General refused to institute criminal proceedings in connection with the applicant’s complaint of ill-treatment. The prosecutor concluded that it had not been established that the applicant had been beaten up during his arrest. In this connection, he relied on the conclusions of the forensic report of 24 August 2012, the statements from four police officers who had participated in the applicant’s arrest and from three police officers who had been on guard duty at the temporary detention centre on 21 June 2012. The relevant part of the decision reads as follows:

“Q. also stated that when they arrested H. Mammadov on the territory of the Nizami District they had shown their official identification and had not used any violence against him.

The police officers of the NDMIA (A.X., C.M. and Q.H.) who had been questioned during the inquiry made statements similar to that of Q., pointing out that H. Mammadov had not been subjected to violence during his arrest and search.

It appears from forensic report no. 554 dated 23 June 2012 issued by ... that H. Mammadov sustained abrasions on his left calf and right thigh. Their degree of gravity has not been determined because they are not injuries causing harm to health.

On 17 August 2012 a decision ordering an additional commission forensic examination was adopted. It appears from forensic report no. 213 dated 24 August 2012 in respect of H. Mammadov issued by ... that the injuries found on the outer sides of the left calf and of the right thigh of H. Mammadov were caused by contact of the examined lower parts of his body with angular protruding parts of the vehicle when he was put in the car. No injury or trace of injury corresponding to the circumstances described in H. Mammadov’s statement that he had been beaten in the head, neck and chest in the passenger compartment of the vehicle was noticed either during the initial forensic examination dated 22 June 2012 or during the additional commission forensic examination of 23 August 2012.

After having comparatively analysed the facts of the case with the material collected during the inquiry, I therefore conclude that the allegations of H. Mammadov ... that the injuries found on his body were caused on 21 June 2012 when he was beaten up and was subjected to physical force during his arrest by police officers are not proven.

Accordingly, as the allegations that H. Mammadov was beaten up and subjected to physical force during his arrest by police officers of the NDMIA are not proven, no criminal act was committed. In accordance with Article 39.1 of the Code of Criminal Procedure, institution of criminal proceedings should be refused.”

It appears from the document submitted by the Government that the investigator in charge of the case sent a copy of the prosecutor’s decision of 27 August 2012 to the detention centre where the applicant was detained at that time. Although the document was signed by the investigator, it was not dated. Moreover, the date on which it was sent was not indicated on the document.

In the meantime, on 6 July 2012, having received no response from the investigating authorities concerning his complaint of ill-treatment, the applicant lodged a complaint with the Nasimi District Court concerning the investigating authorities’ failure to investigate his complaint of ill-treatment. The applicant asked the court to find a violation of his right protected under Article 3 of the Convention.

In support of his complaint, he submitted that on 21 June 2012, without showing their official identification, six or seven plain-clothes police officers had assaulted him near the Neftchilar metro station in Baku. They restrained his arms and began to strike him in below the knees. They kicked him in the lower part of his right ribcage and then slipped narcotic substances into his right trouser pocket. They then dragged him into their car where they continued to beat him. In the car they started to insult him, making comments about his ethnic origin, and threatened him on account of a video recording he had uploaded to the YouTube online video platform.

On 29 August 2012 the Nasimi District Court dismissed the applicant’s complaint. The court held that a criminal inquiry had already been carried out in respect of the applicant’s complaint of ill-treatment and by a decision of 27 August 2012 the Deputy Prosecutor General had refused to institute criminal proceedings. The court further held that as the prosecutor’s decision was still in force, it could not deliver a new decision in this connection. The applicant could, however, lodge a complaint against the prosecutor’s decision of 27 August 2012.

Following the delivery of the Nasimi District Court’s decision of 29 August 2012, the applicant learned about the existence of the Deputy Prosecutor General’s decision of 27 August 2012 refusing to institute criminal proceedings in respect of his complaint of ill-treatment. The court also provided him for the first time with copies of the forensic reports of 23 June 2012 and of 24 August 2012.

On 14 September 2012 the Baku Court of Appeal upheld the Nasimi District Court’s decision of 29 August 2012.

On an unspecified date in October 2012 the applicant lodged a complaint with the court against the Deputy Prosecutor General’s decision of 27 August 2012 refusing to institute criminal proceedings. He reiterated his previous complaints concerning his ill-treatment by the police during his arrest and complained about the ineffectiveness of the criminal inquiry. In this connection, he disputed the conclusions of the additional forensic report of 24 August 2012. He asked the court to quash the prosecutor’s decision and declare it unlawful. He also asked the court to hear the experts who had conducted his forensic examinations and the police officers who had participated in his arrest.

On 8 November 2012 the Sabail District Court dismissed the applicant’s complaint, finding the prosecutor’s decision justified. The court, however, made no mention of the applicant’s particular requests that it hear the experts and the police officers. The relevant part of the decision reads as follows:

“Having examined the allegations that the complainant H. Mammadov was subjected to ill-treatment by police officers during his arrest and that he was beaten up and subjected to degrading treatment when he was taken to the NDMIA, the court considers that a thorough investigation in this respect was conducted by the Prosecutor General’s Office of the Republic of Azerbaijan in accordance with the current legislation and the requirements of the international treaties. All possible measures were taken during this investigation; the persons who had been involved in the complainant’s arrest and had been in contact with him immediately after his arrest were questioned; a forensic examination and an additional commission forensic examination were carried out; however, the collected material did not prove the allegations indicated in the complaint.

In these circumstances, the court considers that it was not possible to collect sufficient evidence which could constitute the basis for instituting criminal proceedings in connection with the injuries sustained by H. Mammadov on 21 June 2012.

Therefore, taking into consideration the collected material and the evidence examined at the court hearing, the court considers that the decision of 27 August 2012 refusing to institute criminal proceedings adopted within his competence by the Deputy Prosecutor General of the Republic of Azerbaijan ... was justified and H. Mamadov’s application for its quashing should be dismissed.”

On an unspecified date the applicant appealed against that decision, reiterating his previous complaints.

On 19 November 2012 the Baku Court of Appeal upheld the firstinstance court’s decision. The appellate court’s decision was identical in its wording to the Sabail District Court’s decision of 8 November 2012.

It appears from the applicant’s observations submitted to the Court in reply to the Government’s observations that the Working Group on Arbitrary Detention of the Human Rights Council of the United Nations (“the Working Group on Arbitrary Detention”) delivered its opinion no. 59/2013 concerning the applicant’s pre-trial detention on 22 November 2013. The relevant part of the opinion reads as follows:

“2. The Working Group regards deprivation of liberty as arbitrary in the following cases:

(a) When it is clearly impossible to invoke any legal basis justifying the deprivation of liberty (as when a person is kept in detention after the completion of his or her sentence or despite an amnesty law applicable to the detainee) (category I);

(b) When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the International Covenant on Civil and Political Rights (category II);

(c) When the total or partial non-observance of the international norms relating to the right to a fair trial, established in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character (category III);

(d) When asylum seekers, immigrants or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy (category IV);

(e) When the deprivation of liberty constitutes a violation of international law for reasons of discrimination based on birth; national, ethnic or social origin; language; religion; economic condition; political or other opinion; gender; sexual orientation; or disability or other status, and which aims towards or can result in ignoring the equality of human rights (category V).

Submissions

Communication from the source

The case summarized below was reported to the Working Group on Arbitrary Detention.

Hilal Mammadov, born in XXXX in Astara Rayon, Azerbaijan, is an Azerbaijani journalist and a defender of minority rights. Since 9 June 2012, he has been the editorin-chief of the Baku-based newspaper Tolishi Sado (The Voice of Talysh), the only newspaper printed in the minority Talysh language.

The source informs the Working Group that the Talysh people are an ethnic minority residing in southern Azerbaijan.

On 21 June 2012, Mr. Mammadov was arrested by the Nasimi District Police pursuant to article 234.4.3 of the Criminal Code of Azerbaijan in relation to illegal manufacture, purchase, storage, transfer, transport or sale of drugs in a large quantity. According to the source, the authorities alleged that they had seized five grams of heroin from his person, and approximately 30 grams from his place of residence.

On 22 June 2012, the Nasimi District Court (Baku City) sentenced Mr. Mammadov to three months’ detention. Mr. Mammadov appealed the sentence and requested to be permitted to serve the term under house arrest. On 10 September 2012, the Baku Appeal Court upheld the original decision, denying him provisional release. Mr. Mammadov remains in detention to this day.

On 28 November 2012, Mr. Mammadov’s lawyers reported that, following the completion of the investigation into the criminal charges against him, Mr. Mammadov was charged under article 274 (high treason), article 283.2.2 (incitement to national, racial or religious hostility) and articles 234.4.3 (illegal manufacturing, purchase, storage, transportation, transfer or selling of narcotics and psychotropic substances) of the Criminal Code.

On 21 December 2012, the hearing of Mr. Mammadov’s criminal charges was reportedly transferred to the Baku Grave Crimes Court. A preparatory session defining the procedural issues of the case took place on 9 January 2013. On that date, Mr. Mammadov’s lawyer reportedly submitted two motions: one requesting an audiovisual recording of the hearing; and another requesting that his client be allowed to sit beside his lawyer rather than behind secure bars. The source informs the Working Group that both motions were rejected.

The source was informed by the Human Rights Centre of Azerbaijan that Mr. Mammadov had been beaten and injured by his cellmate in a Kurdakhani prison on 26, 28 and 29 November 2012. The source reports that Mr. Mammadov was placed in the cell two weeks prior to the attacks. Mr. Mammadov’s lawyers had requested on several occasions that he be removed from the cell as his cellmate’s behaviour was aggressive to the point of preventing him from sleeping at night. Those requests were all ignored. On 29 November 2012, his cellmate was transferred to the medical unit of the prison hospital for treatment of his reportedly severe mental illness.

The source considers the ongoing harassment of Mr. Mammadov as an attempt to silence his efforts to report on human rights violations. The source points out that Mr. Mammadov’s arrest came shortly before the first edition of the Tolishi Sado newspaper under his authority as editor-in-chief was due to be published (at the end of June 2012). He was arrested after posting music and a video clip on the Internet which attracted attention to the Talysh culture.

The source submits that Mr. Mammadov faces imprisonment sentences ranging up to life for trumped-up charges brought against him successively in June and July 2012, and most recently in November 2012.

The source signals its concern with regard to Mr. Mammadov’s conditions of detention in the light of the fate that befell Novruzali Mammadov, the former editorin-chief of the Tolishi Sado newspaper, who was allegedly subjected to similar acts of harassment and arbitrary detention in 2007, and who died in custody on 17 August 2009.

The source concludes that the detention of Hilal Mammadov is arbitrary and considers it an obvious attempt to silence his efforts to report on human rights violations. Furthermore, his rights to legal protection have been violated.

The source further expresses its fears for the physical and psychological integrity of Mr. Mammadov.

Response from the Government

Discussion

The Working Group was informed that Mr. Mammadov has been sentenced to five years in prison for criminal offences relating to “illegal selling of drugs”, “high treason” and “incitement to national, racial, social and religious hatred and hostility” under articles 234.4.3, 274 and 283 respectively of the Criminal Code of the Republic of Azerbaijan.

The source alleged that the authorities fabricated the case against Mr. Mammadov due to his human rights work and support for the minority Talysh population.

The source informed the Working Group that Mr. Mammadov was a consultant with the Institute for Democracy and Peace and editor-in-chief of Tolishi Sado, the only newspaper in the minority Talysh language in Azerbaijan. Mr. Mammadov was also head of the Committee for the Defence of Novruzali Mammadov, a prominent Talysh scientist and human rights activist and former editor-in-chief of Tolishi Sado, who was charged in June 2008 with espionage, subsequently sentenced to 10 years of imprisonment, and who died in prison in 2009.

Hilal Mammadov was arrested on 21 June 2012 for alleged possession of heroin. On 3 July 2012 and 23 November 2012, he was also charged with treason and incitement of national, racial, social and religious hatred and hostility. His hearing in the Baku Grave Crimes Court began on 29 January 2013; he was convicted of the charges brought against him and sentenced on 27 September 2013.

In its response, the Government set out the case for the prosecution and the court’s judgment. However, the Working Group is of the view that the Government did not provide a satisfactory explanation as to the allegations put forward by the source concerning the arbitrary character of the charges against Mr. Mammadov and his subsequent conviction.

The information provided by the source and the Government to the Working Group indicates that the charges of treason and incitement of national, racial, social and religious hatred and hostility are based on Mr. Mammadov’s legitimate exercise of the right of freedom of expression under article 19 of the Universal Declaration of Human Rights and article 19 of the International Covenant on Civil and Political Rights. As such, the Working Group considers that the deprivation of liberty of Hilal Mammadov falls within category II of the arbitrary detention categories referred to by the Working Group when considering cases submitted to it.

Furthermore, the Working Group is of the view that the response from the Government does not adequately address the source’s allegations of ill-treatment to which Mr. Mammadov has been subjected in detention, its concerns for his health, nor the groundless rejection of his application for an audio-visual recording of the hearing.

The Working Group finds that these violations of international law relating to the right of a fair trial are of such gravity as to give the deprivation of liberty of Hilal Mammadov an arbitrary character. As such, the Working Group considers that Mr. Mammadov’s detention falls within category III of the arbitrary detention categories referred to by the Working Group when considering cases submitted to it.

Disposition

In the light of the foregoing, the Working Group on Arbitrary Detention renders the following opinion:

The detention of Hilal Mammadov is arbitrary, being in contravention of articles 9, 11 and 19 of the Universal Declaration of Human Rights and articles 9, 12 and 19 of the International Covenant on Civil and Political Rights. It falls within categories II and III of the arbitrary detention categories referred to by the Working Group when considering cases submitted to it.

Consequent upon the opinion rendered, the Working Group requests the Government of Azerbaijan to remedy the situation of Mr. Mammadov and bring it into conformity with the standards and principles set out in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

The applicant’s representative, Mr Bagirov, was an advocate and a member of the Azerbaijani Bar Association (“the ABA”). He was affiliated to Law Office no. 6 in Baku.

In November 2014 disciplinary proceedings were instituted against Mr Bagirov by the ABA on the basis of a letter dated 25 September 2014 from a judge of the Shaki Court of Appeal. In his letter the judge informed the ABA that Mr Bagirov had breached the ethical rules of conduct for advocates at the court hearings held in September 2014 before the Shaki Court of Appeal within the criminal proceedings against I.M.

On 10 December 2014 the Collegium of the ABA held a meeting at which it examined the complaint against Mr Bagirov. Following the meeting, the Collegium of the ABA held that Mr Bagirov had breached the ethical rules of conduct for advocates because at the court hearing he had made the following remark about the judicial system: “Like State, like court ... If there were justice in Azerbaijan, Judge R.H. would not deliver unfair and partial judgments, nor would an individual like him be a judge” (“Belə dövlətin belə də məhkəməsi olacaq ... Azərbaycanda ədalət olsaydı, hakim R.H. ədalətsiz və qərəzli hökm çıxarmaz, nə də onun kimisi hakim işləməzdi”). On the same day the Collegium of the ABA decided to refer Mr Bagirov’s case to a court with a view to his disbarment. It also decided to suspend his activity as an advocate (vəkillik fəaliyyəti) pending a decision by the court.

It appears from documents submitted to the Court that, following the suspension of Mr Bagirov’s activity as an advocate, the domestic authorities no longer allowed him to meet the applicant in the prison.

On 29 March 2015 Mr Bagirov sent a letter to the Head of the Prison Service of the Ministry of Justice asking for a meeting with his six clients held in detention, including the applicant. He specified in his letter that he was the representative of those individuals before the Court and requested a meeting with them in connection with their pending cases before the Court. The relevant part of the letter reads as follows:

“I am writing to inform you that I represent before the European Court of Human Rights the following persons who are detained in the penal facilities and temporary detention centres under your authority.

I ask you to allow a meeting with these persons in connection with the progress of their cases based on their applications (the numbers of the applications are mentioned below) lodged with the European Court.

Mammadov Hilal Alif oglu (penal facility no. 17; application no. 81553/12)

Attachment: Copies of the letters from the European Court and the Azerbaijani Government concerning these persons.”

A copy of the letter was also sent to the Head of the Serious Crimes Department of the Prosecutor General’s Office.

By a letter of 14 April 2015, the Deputy Head of the Prison Service refused to allow Mr Bagirov to meet the applicant in the prison. The relevant part of the letter reads as follows:

“Your request for the organisation of a meeting in the penal facilities and detention centres with the persons detained in the penal facilities and the convicted inmates in order to provide them with advocacy services has been examined.

It is explained that, as your advocacy activity at Law Office no. 6 has been suspended by decision no. 29 of 10 December 2014 of the Bar Association of the Republic of Azerbaijan and you have been disbarred, and that you can no longer practise as an advocate in court and investigation proceedings from that date, it is impossible to grant you access to the penal establishments as counsel.”


No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);No violation of Article 14+6 - Prohibition of discrimination (Article 6 - Right to a fair trial;Civil proceedings;Article 6-1 - Access to court)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits

The applicant was born in 1953 and lives in Kassel. He is a lawyer and was appointed insolvency administrator of the German limited partnership M.K. KG (hereafter “the company”) in 1999.

On 12 July 2002 the applicant, in his position of insolvency administrator of the company, took legal action against Ms B., a former limited partner (Kommanditist) of the KG, to seek the reimbursement of close to 56,000 euros (EUR), which had been paid to her as advance payment on profits (Vorauszahlungen auf Gewinne) by the KG.

In his statement of claim, the applicant indicated that he might introduce an additional action concerning approximately EUR 1.7 million, to seek the reimbursement of payments received by Ms B. as compensation for her participation as a limited partner (Abfindung für Kommanditbeteiligung) and as advance payments for profit. The applicant declared that he had refrained from introducing an action concerning these claims at that point in time because of the costs involved.

Ms B. was notified of the legal action on 17 July 2002.

On 30 December 2004 the applicant requested legal aid for his initial action and with a view to introducing an action concerning the supplementary claims, amounting to approximately EUR 1.7 million. The statutory timelimit for those latter claims was 31 December 2004. This request for legal aid was placed in the case file. It was neither examined by a judge nor was notice given to Ms B.

On 24 March 2005 the applicant sent a letter to the Regional Court to enquire whether he had been granted legal aid. He did not receive a response. On 29 August 2005, he sent another letter, to which he received no response. The applicant claimed that, in addition, he had also made telephone calls to the Regional Court on 10 June 2005 and on 14 November 2005 to find out whether he had been granted legal aid and that, both times, he had been informed by the Registry that the file was at the judge’s office and that, therefore, no information could be given.

On 11 May 2007 the Regional Court granted the applicant’s request for legal aid, following another written inquiry of that same day. The decision to grant legal aid was served on Ms B. on 16 May 2007. On 5 July 2007 the Regional Court issued a decision, clarifying that the grant of legal aid covered the supplementary claims brought on 30 December 2004.

On 20 July 2007 the applicant introduced the additional action concerning the said claims. Ms B. was notified on 25 July 2007. On 1 October 2008 a hearing was held.

In its judgment on 19 November 2008 the Regional Court ordered Ms B. to pay EUR 15,338.76 to the applicant and dismissed the remainder of the applicant’s initial action. That court likewise dismissed the applicant’s additional action for reimbursement of approximately EUR 1.7 million in its entirety, finding that the claims were time-barred. It stated that the statutory time-limit for these claims was 31 December 2004 and that submitting the request for legal aid on 30 December 2004 had not been sufficient to suspend the running of time for purposes of limitation, because domestic law also required that the court arrange for notice to be given to the defendant (see relevant domestic law and practice paragraphs 25 to 27 below).

The Regional Court noted that Ms B. was notified of the request for legal aid only in mid-2007, hence more than two and a half years after the expiry of the limitation period. It considered that the exception foreseen by domestic law allowing for the retroactive effect of arranging for notice to be given was not applicable in the instant case. According to that exception, the running of time for the purposes of limitation was suspended with effect from the day a request for legal aid was lodged, if the notification of that request was arranged “shortly after” (demnächst). The Regional Court noted that, according to the constant case-law of the domestic courts, the term “shortly after” was interpreted in a way that required the litigant to act with the necessary diligence to effect the immediate notice or service. It found that the applicant – who, as a lawyer, must have known that arranging for notice to be given to the defendant of his request for legal aid “shortly after” its submission was required to prevent his claim from becoming timebarred – had in a reproachable manner contributed to the delay and thus not acted with the necessary diligence required. The Regional Court observed that the applicant had not asked the Regional Court to notify immediately the defendant of his request for legal aid, irrespective of its prospects of success, which he could have done without additional costs and without suffering any procedural disadvantages. Also, rather than enquiring whether the notification of the request had been arranged, the applicant limited himself to enquiring whether his request for legal aid had been successful. In relation to the alleged telephone calls in June 2005 and November 2005, it found that, given that the Regional Court had not responded to his written request of 24 March 2005, the applicant should not have relied on the registry’s alleged statement. The court found it incomprehensible that the applicant had waited until 29 August 2005, and 11 May 2007, to enquire again in writing about the success of his request for legal aid.

The Regional Court added that, in any event, the claim concerning the reimbursement of approximately EUR 1.7 million was ill-founded and thoroughly reasoned this finding.

On an unspecified date the applicant requested legal aid in order to lodge an appeal.

On 22 June 2009 the Frankfurt/Main Court of Appeal dismissed his request, finding that the appeal lacked prospects of success as the Regional Court had rightly considered the applicant’s claims to be time-barred. It observed that the Regional Court had arranged for notice to be given to Ms B. of the applicant’s request for legal aid at the earliest in 2007 and argued that notice two and a half years after the request’s introduction could not be considered as having taken place “shortly after” that introduction. The interests of the defendant, who had no knowledge of the submission of the request for legal aid, in the protection of her legal positions and the clarification of the legal situation, had to be taken into account.

The Court of Appeal pointed out that it was constant case-law of the domestic courts that the term “shortly after” was to be interpreted in such a way that the risk of a delayed notification was distributed fairly between both parties to the dispute and, therefore, the litigant concerned must have acted with the necessary diligence to effect the immediate notification. Furthermore, there must not be legitimate interests of the defendant that conflicted with such retroactive effect (see relevant domestic law and practice paragraph 26 below). It confirmed the Regional Court’s finding that the applicant had not acted with the necessary diligence. It underlined that the applicant would have had to alert the Regional Court about the imminent expiry of the limitation period and to ask to arrange for the immediate notification of the defendant in order to suspend the running of time for the purposes of limitation. In fact the applicant had to take into account that the Regional Court also had the possibility to refuse his request for legal aid without hearing, and hence without notifying, the defendant if it considered the claim to be illfounded or the applicant to have the necessary means (decision a limine). The Court of Appeal likewise considered that the subsequent steps taken by the applicant were not sufficient, because he had not asked for the notification to be effected immediately. The Court of Appeal based its decision to refuse legal aid exclusively on the finding that the claims were time-barred.

On an unspecified date the applicant lodged a constitutional complaint with the Federal Constitutional Court, alleging that the refusal to grant him legal aid violated his right of access to a court and that he had been discriminated against as an impecunious person compared to a litigant with sufficient financial means.

On 19 July 2010 the Federal Constitutional Court, sitting as a formation of three judges, declined to accept the applicant’s constitutional complaint for adjudication (1 BvR 1873/09). It found that the period of processing the request for legal aid and the delay in arranging for notice to be given to the defendant constituted gross negligence (grob fehlerhaft) by the Regional Court. Nonetheless, it considered that the decision of the Court of Appeal was in conformity with the case-law of the Federal Court of Justice, according to which a notification could only be “shortly after” the submission of a request for legal aid if the applicant concerned acted with the necessary diligence to effect the immediate notification, and if there were no legitimate interests of the defendant that conflicted with such retroactive effect (see relevant domestic law and practice paragraph 26 below). The Federal Constitutional Court found that the Court of Appeal’s finding that the applicant had not acted with the necessary diligence did not raise concerns. The applicant failed to ask the Regional Court to notify immediately the defendant about the request for legal aid. Neither in his initial lawsuit nor in his subsequent enquiries did the applicant indicate the particular urgency of the matter, namely, the imminent limitation of the claims.

In relation to the alleged discrimination, the Federal Constitutional Court found that impecunious litigants and litigants with sufficient financial means were in a comparable situation as regards the possibilities and obligations in order to suspend the running of time for purposes of limitation. Referring to the case-law of the Federal Court of Justice (see relevant domestic law and practice paragraph 28 below), it considered that a litigant with sufficient financial means must not limit himself to submitting a lawsuit, but rather had to remind the court to ask him to pay the necessary court fees or even to pay the fees on his own initiative, if the court had failed to ask him, in order to effect the service of the legal action. The Federal Constitutional Court found that such obligations on the part of a litigant with sufficient financial means were comparable to those of the applicant, namely his obligation to ask the court concerned to notify immediately the defendant of the request for legal aid, and to remind the court to arrange for notice to be given.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the excessive length of civil proceedings and lack of an effective remedy to complain about a violation of their right to have a civil case examined within a reasonable time.


Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 6 - Right to a fair trial (Article 6 - Disciplinary proceedings;Article 6-1 - Impartial tribunal);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Costas Pamballis;Dmitry Dedov;George Nicolaou;Helena Jäderblom;Luis López Guerra;Pamballis;Pere Pastor Vilanova

The applicant was born in 1949, he is a lawyer and lives in Nicosia.

The applicant was appointed as an IDC judge on 1 October 1997 and as its President on 6 December 2001.

By a letter dated 18 July 2005 the two main trade unions and the two corresponding employers’ federations submitted a complaint to the Supreme Court, alleging misconduct on the part of the applicant in the exercise of his judicial functions. The letter referred, in general, to complaints received by members of trade unions and employers’ federations who had carried out duties as lay members of the IDC, concerning the applicant’s conduct towards litigants, witnesses, lawyers and lay members of the court during proceedings.

The applicant was served with a written notice from the Supreme Court dated 1 September 2005, informing him of the allegations against him and noting that the Supreme Court had decided that it was justified to activate Rule 3 of the Procedural Rules concerning the exercise of the SCJ’s disciplinary authority (“the Procedural Rules”; see paragraph 41 below). The applicant was provided with a copy of the letter of complaint and was requested to send his comments within seven days.

By a letter dated 7 September 2005 the applicant submitted his comments to the Supreme Court with regard to the allegations against him. The applicant observed, inter alia, that the complaint was so general and vague that he was unable to identify the precise events on which it was based as he had presided over numerous proceedings. He also informed the Supreme Court that the authors of the letter had given a copy to the press and that it had been published in a newspaper on 21 July 2005.

On 16 September 2005 the Supreme Court decided, in accordance with Rules 4 and 5 of the Procedural Rules (see paragraph 41 below), to appoint an investigating judge to look into the allegations against the applicant.

On 19 September 2005 the Supreme Court appointed the then President of the District Court of Nicosia as investigating judge.

In a letter dated 5 December 2005 the investigating judge informed the applicant of his appointment. He also provided the applicant with statements he had taken from twenty-eight people during his investigation and invited the applicant to submit a supplementary statement, if he so wished, within ten days.

On 16 December 2005 the applicant made a lengthy supplementary statement to the investigating judge, providing his comments on the statements collected by the judge and referring to various proceedings in which the witnesses had been involved. He also noted that he did not view his comments as a supplementary statement as such, since it was only at that time that the complaint had become more precise, at least in part. Furthermore, he observed that the witness statements covered a period of six years, when he had sat in about three thousand cases. The statements could not therefore provide the full picture. He suggested that statements should be taken from a number of lay members of the court and provided the investigating judge with their names and telephone numbers.

On 21 December 2005, upon completion of the investigation, the investigating judge submitted a report to the Supreme Court summarising his investigation and the evidence collected. The report was accompanied by all the material he had collected, including the statements given by the witnesses and the applicant. The report made no recommendation.

By a letter dated 10 February 2006 the chief registrar of the Supreme Court informed the applicant that the court had decided that a disciplinary process was warranted. He provided the applicant with the charge sheet drawn up by the Supreme Court at a meeting it had held on 9 February 2006. This included two charges of misconduct, and details of the preparatory investigation by the investigating judge. The charges against the applicant were as follows:

“First Charge

Misconduct (Articles 153 § 7 (4) and 157 § 3 of the Constitution)

Particulars

While you exercised the duties of President of the Industrial Disputes Court you repeatedly displayed oppressive, disparaging, scornful and, more generally, insulting behaviour towards the lay members of the Court, both inside and outside the courtroom and, at the same time, in the course of proceedings you sometimes ignored them, sometimes did not allow them to put questions and sometimes did not allow them to ask for clarification on the matters at issue.

Second Charge

Particulars

While you exercised the duties of President of the Industrial Disputes Court you repeatedly displayed oppressive, disparaging, scornful and, more generally, insulting and even humiliating behaviour towards lawyers and/or litigants and/or witnesses during the proceedings, including ironic comments at their expense and/or innuendos, with the result that, owing to the agitation and disruption caused to them, the entire proceedings were diverted from their proper course.”

A list of fifteen witnesses was attached to the charge sheet.

In his letter the chief registrar summoned the applicant to appear on 9 March 2006 before the SCJ (see paragraph 36 below) to answer the charges. He informed the applicant that the proceedings would not be held in public unless he so wished and that, pending the proceedings, he would have to refrain from carrying out his duties.

On 9 March 2006, before the applicant answered the charges against him, his lawyer raised several preliminary objections. In particular, he argued that the investigation had been incomplete as statements had not been taken from the people indicated by the applicant. Furthermore, he argued that the charge sheet was incomplete, defective and vague; it did not give sufficient information to the applicant about the offences in relation to the actual content of the two charges he was facing.

The SCJ ruled the same day that the charge sheet, taken together with the fifteen statements, provided sufficient information to the applicant about the facts on which the charges had been based. In that regard, it noted that the applicant had commented on all the details referred to in the statements in a lengthy statement. The SCJ also held that the investigation had been adequate and had provided grounds for bringing charges.

The applicant then pleaded not guilty to the charges.

A hearing was set for 29 March 2006. The applicant’s lawyer agreed that the proceedings would not be held in public.

Hearings commenced on the scheduled date. The SCJ set out the procedure to be followed: every witness would read out the statement he or she had given to the investigating officer and would then be cross-examined by the applicant’s lawyer. Following a request by the applicant’s lawyer, the SCJ also held on the same day that in view of the defence’s line of argument all the files of the proceedings in which the witnesses had sat as members of the IDC, from the applicant’s appointment as president of the IDC onwards, should be brought before it. The hearing was scheduled to continue on 31 March 2006.

Following a request by the applicant’s lawyer, leave was given by the SCJ on the latter date for the applicant to have full access to the IDC registry’s archives in order to enable him to examine and collect any elements that could help his defence.

The hearings continued, with around seven more sessions being held. Files of the proceedings over which the applicant had presided and in which the witnesses had been involved were admitted as exhibits. They were filed in separate bundles by reference to the particular witness and were recorded in the list of exhibits.

During the proceedings it was clarified that the charge sheet was limited to the period subsequent to the applicant’s appointment as President of the IDC. Further statements that related to pending proceedings and complaints that had previously been dealt with by the Supreme Court were removed from the charge sheet. Ten out of the fifteen witnesses listed on the charge sheet ultimately testified. They comprised six lay members, two lawyers and two people who had been witnesses in proceedings over which the applicant had presided. The witnesses read out and confirmed the contents of their statements. They were then cross-examined by the applicant’s lawyer.

In addition, at the suggestion of the applicant’s lawyer, the court also summoned the IDC’s registrar.

After the conclusion of the witness statements and an address by the applicant’s lawyer, the SCJ found on 29 May 2006 that a prima facie case had been established against the applicant. It therefore called the applicant to put forward his defence.

The applicant took until 23 June 2006 to set out his defence case, testifying himself and calling thirty-six witnesses. They consisted of twenty-six lay members of the IDC, nine lawyers and a representative from the redundancy fund. The proceedings concluded with the applicant’s lawyer addressing the court. He raised the issue of the charge sheet again and also submitted that because the Supreme Court and the SCJ had the same composition, the same judges had examined the witness statements, had decided to refer the case to trial, formulated the charge sheet and overseen the proceedings. Those judges had also acted as prosecutors and had then tried the case. He argued that that was contrary to the rules of natural justice and the right to a fair trial. He stressed, however, that this had nothing to do with the judges as individuals.

In a decision of 19 September 2006 the SCJ found, by a majority of twelve to one (the President and eleven justices concurring), that on the basis of the evidence and all the material facts before it, the applicant’s alleged misconduct had been proved. The SCJ assessed the evidence given by the eleven witnesses and made specific reference to events transcribed in the records of court proceedings over which the applicant had presided and in which the witnesses had been involved. It referred to ten specific cases. After hearing the applicant, in accordance with Rule 26 (see paragraph 41 below), the SCJ removed him from office.

The relevant parts of the decision read as follows:

Rule 13 secures for the judge against whom proceedings are brought all the rights provided for in Article 12 § 5 of the Constitution for persons who are charged with a criminal offence. That constitutional provision secures the well-known rights that an accused has in a criminal trial and are identical to those secured under Articles 6 §§ 2 and 3 of the European Convention on Human Rights, which was ratified by the House of Representatives by law in 1962 (Law 39/62). Furthermore, the provisions of Article 30 of our Constitution, which are the equivalent to those of Article 6 of the Convention, are also applicable.

At no stage did the Supreme Council of Judicature function as a public prosecutor against Mr Kamenos. The President and Members of the Supreme Council of Judicature did not put a single question to the witnesses who were listed on the charge sheet, or to those summoned on behalf of Mr Kamenos, which might have been construed as cross-examination for the purpose of contesting the witnesses’ allegations. On the contrary, the President and Members of the Supreme Council of Judicature asked very few questions, and they were solely for the purpose of clarification; special reference will be made to some of those questions at the appropriate stage. Not a single question was put to Mr Kamenos. The Supreme Council of Judicature was not seeking to pursue a procedure of prosecution against Mr Kamenos in the form of a confrontation between prosecution and defence. For that reason, and despite having such powers under Rule 16, the relevant provision of the Constitution on the judicial process and the procedure to be followed in investigating disciplinary cases, it did not assign the duties of prosecutor to the judge-investigator or to any other judicial official. In that way, which was the declared intention of the Supreme Council of Judicature, more rights were secured for Mr Kamenos than those which he had under the aforementioned Articles of the Constitution and the Rule. That was precisely the aim of the procedure followed by the Supreme Council of Judicature, which essentially remained an audience for the witnesses’ statements.

It follows that this is the appropriate moment to refer to the suggestion made by Mr Kamenos’s lawyer in his final address. Its subject relates directly and absolutely to what we have just said. The lawyer alleged that the Supreme Council of Judicature had functioned in a dual capacity, given that it had judged the case and simultaneously exercised the duties of prosecutor. Clarifying his position, he said that that is inferred from the fact that the President and Members of the Supreme Council of Judicature put questions to the witnesses. In our opinion, that suggestion is unfounded and unjustifiable. It is unfounded for the reasons which we explained above, and unjustifiable because it conflicts with what the lawyer said to us at the beginning of the proceedings, when he ... spoke in praise of the powers invested by the Constitution in the Supreme Council of Judicature, describing its work as difficult and important [in those instances] when it is called upon to decide whether a judge displayed misconduct and is obliged, again in accordance with the Constitution, to terminate the latter’s services in the event of conviction. In brief, Mr Efstathiou not only accepted but also praised as correct the competence, arising from the Constitution, of the Supreme Council of Judicature, which is made up of the full bench of the Members of the Supreme Court, the highest judicial authority in the State.

[The applicant’s lawyer] asked many witnesses to express an opinion on the extent to which they considered that Mr Kamenos’s decisions were correct. Most of them, including the lawyers, gave the right reply, namely, that it was not for them to judge Mr Kamenos’s decisions. In the same way, the Supreme Council of Judicature is not judging the correctness of Mr Kamenos’s decisions. We do not have such competence. That belongs to the Supreme Court. The competence of the Supreme Council of Judicature is only to decide whether the charges of improper behaviour (misconduct) are proved, which [behaviour] in the case we are examining and according to the particulars of the charges, is continuous (κατά συρροή, διαρκής) and directly refers to the function of Mr Kamenos as the President of the Industrial Disputes Court.

We previously stated that certain witnesses called by Mr Kamenos, evidently in an endeavour to tone down or explain what the witnesses listed on the charge sheet had testified to and who touched on Mr Kamenos’s behaviour in the course of the hearing, in essence confirmed what those witnesses had said. Several examples follow ...

From the evidence that we have analysed above, we find that the charges have been proved.

We wish to clarify that the purpose of this procedure is not to punish Mr Kamenos but to protect the public by adopting of a strict standard of judicial behaviour in order to preserve public confidence in the integrity, prestige and independence of the judicial system. We borrow and adopt the above principle from the decision (Investigation concerning Judge Bruce Van Voorhis, No. 165) given in February 2003 by the Commission of Judicial Performance of the State of California, in the United States of America, which concerned a procedure against a specific judge whose services were also terminated for misconduct, with facts and particulars similar to the case before us. In essence, we translate the principle which that Commission adopted and recorded on page 31 of the decision. The principle is based, as stated in the decision, on what was said by the Supreme Court of the State, that the purpose of the procedure was not to punish judges who have erred but to protect the judicial system and those who are subject to the formidable power exercised by judges.

Evaluating the above with great care, caution and, we would say, anxiety, we are led to the conclusion that everything imputed to Mr Kamenos as stated in the two charges has been proved. In accordance with the relevant provisions of the Constitution, which are referred to in our decision, the proof of a charge of misconduct against a judge leads to the termination of his services.”

The dissenting judge found in his decision that the evidence was not sufficient to prove such a serious charge as misconduct. As regards the procedure, the judge noted, inter alia, that the Supreme Council of Judicature had asked the witnesses very few questions and that they had been for the purposes of clarification. Furthermore, with regard to the investigation and the object of the hearing, he observed:

“A judicial official with the duties of prosecutor was not appointed, a possibility which is referred to in Rule 16, and we adopted the following approach: every witness read his statement to the investigating officer out loud and, immediately after, was cross-examined by Mr Kamenos’s lawyer. During the cross-examination or subsequently members of the Supreme Council of Judicature asked the witnesses a few questions for clarification purposes. This is also exactly what happened in the case of Mr Kamenos and the 36 witnesses called by him.

Before referring to the evidence, it is useful if we outline the methodology which led to the taking of statements by the Investigating Officer. He did not himself take the initiative of collecting evidence in view of the accusation, as he explains in his report. The persons who signed the accusation did not have any personal knowledge of the circumstances and statements were taken from all those they ... named, and from others subsequently named by those who had been initially summoned. The investigation into the manner in which Mr Kamenos exercised his duties in general was therefore not systematic and that is also the reason for not taking statements from a number of other persons whom Mr Kamenos himself indicated. Besides, as we have seen, of the 28 statements which the Investigating Office took, only 15 were attached to the charge sheet, with a further reduction to 10 in the course of the hearing. They did not include statements which, as the Investigating Officer reported, not only expressed no complaints but stated that Mr Kamenos’s conduct had been irreproachable in all respects. Consequently, as is in any case self-evident, the object of the hearing is [to determine] whether, on the basis of the evidence of those ten witnesses, the charge has been substantiated as formulated. That is to say, whether, from each individual’s evidence and the correlation between them, to the extent possible, there arises conduct as cumulatively stated on the charge sheet, [and] in the case of the second charge “with the result that, owing to the agitation and disruption they were caused, the entire proceedings were diverted from their proper course”. This (was the wording), without any specification on the charge sheet of a definite, specific incident at a specific time, ... in relation to a specific person in the context of a specific case. The witnesses who remained on the charge sheet (whose statements I shall of course return to), as lay members of the court, or as lawyers or witnesses, did not submit a complaint there and then about what they considered to be objectionable conduct. ... Nor did the litigants in any specific case which could be related to the charge sheet make a complaint at the time, or appeal or employ any other legal means so that any objectionable conduct would be examined also from the aspect of its effect on the final outcome. That was what occurred in the cases of Athanasiou v. Reana Manuf. & Trade Co.Ltd and others (2001) 1 C.L.R. 1635, and Fanos N. Epiphaniou Ltd v. Melarta and others (2002) 1 C.L.R.654, in which the Supreme Court annulled decisions issued by the Industrial Disputes Tribunal under the presidency of Mr Kamenos, using strong language about the degree of his intervention in the proceedings and the appearance of partiality to which it could give rise. Of course, the charge sheet does not extend to those cases and does not concern the issue of interventions as such ... The core of the charge is the conduct attributed to Mr Kamenos at the expense of lay members of the court, lawyers, litigants and witnesses, and it is in the light of such considerations that I shall go on to examine the evidence adduced.”

The applicant continued to receive all the benefits that came with his post during the proceedings. It appears from a letter sent to him by the Treasury of the Republic of Cyprus that the applicant was considered as having retired from the date of his dismissal, 19 September 2006. He was paid a retirement lump sum and started receiving his pension.


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);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

Branko Lubarda;Dmitry Dedov;George Nicolaou;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1955 and lives in Naro-Fominsk in the Moscow region. He is currently serving his sentence in IK-4 detention facility in the village of Udarnyy in the Republic of Mordovia.

At 8.20 p.m. on 6 March 2004 Ms E. was robbed in the street and was stabbed through the heart. She died of the wound shortly afterwards. The assailant took a mobile phone and 2,500 Russian roubles (RUB) from the victim’s purse.

The Naro-Fominsk town prosecutor’s office (“the town prosecutor’s office”) instituted a criminal investigation into E.’s killing. Having obtained from the mobile phone operator the call logs in respect of the victim’s phone, the investigators established that at 9.50 pm on 6 March 2004 a phone call had been made to a number belonging to Ms A. from E.’s phone using the applicant’s SIM card.

At 11 a.m. on 18 March 2004 the police arrived at the applicant’s flat and ordered him to follow them to the police station.

Once at the police station, the applicant explained that on 6 March 2004 he had bought a used mobile phone from a stranger because a friend of his had earlier expressed an interest in purchasing a second-hand phone. In order to test the phone, he had inserted his SIM card and made a call to his then girlfriend, Ms A. He also claimed that on the same day he had played slot machines and won RUB 2,500. Then the officers questioning him showed him a call log from Ms E.’s phone, informed him of the killing and suggested that he confess to mitigate his sentence. The applicant refused to admit to the crime.

The officers proceeded to hit and kick him on his head, chest and flanks. The applicant fainted several times. The beatings went on for twelve hours. Eventually the applicant gave in and agreed to write down a “statement of surrender and confession” (явка с повинной), as dictated by the officers, admitting to the robbery and murder of Ms E.

An investigator of the town prosecutor’s office, Mr A., questioned the applicant as a suspect and later went to the applicant’s flat to seize a few items including the mobile phone contract for the applicant’s SIM card.

The applicant was not provided with legal assistance on 18 March 2004.

The applicant was brought to the police station at 10 p.m. on 18 March 2004. Upon arrival the police officers asked him how he had obtained Ms E.’s phone and then showed him the call log. The applicant looked at the log and then asked the officers to leave him alone in the room. He then wrote a statement of surrender and confession describing the circumstances of the crime. No physical force was applied to the applicant.

In the Government’s submission, on 18 March 2004 the applicant complained to the town prosecutor’s office; however, he did not raise the issue of ill-treatment.

At 12.30 p.m. on 19 March 2004 an arrest record was drawn up. It contained a handwritten note by the applicant that read as follows: “[I] agree with the arrest, rights are understood, [I have] no statement to make”.

A handwritten statement signed by the applicant and dated 19 March 2004 affirmed that the applicant’s rights had been explained to him; that he did not require legal assistance; that the “bodily injuries visible at [that] moment on [his] face and body [had been] inflicted on 11 March 2004 by [his] roommate Dima”; and that police officers had not used force against him.

Between 12.40 a.m and 2.55 a.m on 19 March 2004 the applicant was questioned without a lawyer present.

In the early morning on 19 March 2004 the applicant was placed in a temporary detention centre (Изолятор временного содержания, hereinafter “IVS”). According to the Government, when placed in the IVS, the applicant did not make any healthrelated complaints. He had a bruise under his right eye. An entry in the IVS logbook was made by an ambulance doctor stating that the applicant was “in a post-epileptic-fit state”.

Between 11.10 a.m. and 12.50 p.m. on 19 March 2004 the applicant was questioned in the presence of Mr B., a legal-aid lawyer. According to the Government, in the course of the interview he described how he had committed the crime. The record of the interview reads that the applicant found the knife used as the murder weapon at a market after a fire.

On 20 or 22 March 2004 the investigators carried out an investigative re-enactment. In the applicant’s submission, the re-enactment was limited to bringing him to the crime scene and photographing him there. According to the Government, during the visit the applicant confirmed his statement made in the presence of the lawyer in the course of the second interview of 19 March 2004. He also selected a knife similar to that used to stab Ms E. from a selection of four knives available at a local shop.

On 20 March 2004 a judge of the Naro-Fominsk Town Court (“the Town Court”) placed the applicant in custody. The applicant complained to the judge about his ill-treatment; she refused to take note of the allegations, however, stating that they could be examined in the course of the trial against the applicant.

On 25 March 2004 the applicant was formally charged with murder and robbery. He retracted his confession.

On 26 March 2004 the police transported the applicant to a remand prison. However, the staff on duty refused to admit the applicant as he had visible injuries. The applicant was returned to the IVS. On 29 March 2004 the police again tried to transfer him to the remand prison and were refused for the second time.

On 30 March 2004 the police brought the applicant to the NaroFominsk polyclinic where he underwent an X-ray examination which showed that there were fractures to three ribs with signs that the bones were beginning to heal. The following day the applicant was admitted to the remand prison.

According to the applicant, once in the remand prison, he complained about his illtreatment to the town prosecutor’s office.

According to the Government, the applicant raised the ill-treatment complaint on 17 June 2004. The town prosecutor’s office carried out a preinvestigation inquiry on the basis of the complaint.

On 18 June 2004 Mr A., an investigator with the town prosecutor’s office, refused to initiate criminal proceedings into the alleged ill-treatment. He observed that upon arrival at the IVS the applicant had had a bruise under his right eye and yet had made no complaints about his state of health, and noted that, according to the IVS logbook, an ambulance had been called for the applicant on account of an epileptic fit.

On an unspecified date the criminal case against the applicant was submitted for trial before the Moscow Regional Court (“the Regional Court”).

The applicant first took cognisance of the decision of 18 June 2004 on 29 June 2004 while studying the case file in the criminal case against him.

The applicant complained about the town prosecutor’s office’s refusal of 18 June 2004 to the Russian Prosecutor General’s Office, which forwarded it for examination by the Prosecutor’s Office of the Moscow region. The latter forwarded the complaint to the town prosecutor’s office (against which the complaint was directed). The applicant received no reply.

The applicant did not attempt to institute any judicial review proceedings, considering that they would be futile on account of the judge’s reply of 20 March 2004.

On 27 July 2004 the Regional Court scheduled a trial hearing on 9 August 2004.

The applicant raised the matter of ill-treatment before the Regional Court at his trial.

On 20 October 2004 the Regional Court ordered an expert medical examination of the X-ray of 30 March 2004. It can be seen from the trial record of that date that N. informed the judge that he was not an expert in interpreting Xrays and asked for a period of two weeks to consult a colleague; the judge acceded to the request. On 4 November 2004 N. drew up a report stating that the rib fractures had been caused by blunt objects; by 30 March 2004 the knitting together of the fractures had commenced; the fractures had been “considerably old” and “no injuries corresponding to [those of] 11 and 18 March 2004 [had been] identified”. The judge rejected the applicant’s request for another expert report.

The Regional Court dismissed the record of the first interview of 19 March 2004 as inadmissible evidence for the reason that the interview had been conducted without a lawyer present.

On 3 December 2004 the Regional Court convicted the applicant of robbery and murder and sentenced him to twenty years’ imprisonment. The court referred to the applicant’s pre-trial confession, the record of his questioning by the investigator, his statements at the investigative reenactment and other physical evidence.

The trial judge also examined in detail the evidence presented by the parties in relation to the allegation of illtreatment, including the decision of 18 June 2004 and the expert medical report ordered in respect of the X-ray. The judge also heard evidence from an expert, N., as well as investigator Mr A. and several police officers. The judge refused to examine the IVS logbook which, according to the applicant, would support his assertion that there were injuries. Instead, the judge examined a letter from the deputy director of the IVS, according to which on his arrival there the applicant only had had a black eye which he had explained as having received before the arrest. The deputy director had also noted that the logbook entry concerning the call for an ambulance had been made for another person. The judge dismissed the applicant’s allegations of ill-treatment and declared the relevant evidence (the confession statement, the interview record and the investigative re-enactment record) admissible.

On 6 December 2004 the applicant lodged an appeal reiterating the issue of his confession under duress without a lawyer present, as well as the weakness of the prosecution’s case against him. He insisted on his innocence.

On 14 December 2004 the applicant lodged an additional appeal in which he claimed that the Regional Court had wrongly considered his previous conviction as an aggravating factor and yet had chosen to regard the surrender and confession as a mitigating factor. He asked for the firstinstance judgment to be quashed on the grounds given in his appeal of 6 December 2004.

On the same date the applicant (through his counsel) lodged an appeal in which he insisted that the statement of surrender and confession had not been genuine as he had been forcibly brought to the police station and detained there for twelve hours with no access to a lawyer.

On 16 March 2005 the Supreme Court of Russia upheld the firstinstance judgment in a summary fashion.

The applicant further unsuccessfully sought supervisory review of his conviction.

On 5 April 2005 the applicant sent another complaint to the Prosecutor General’s Office, which was forwarded to the town prosecutor’s office.

On 12 May 2005 the deputy town prosecutor quashed the decision of 18 June 2004 and issued an instruction to carry out an additional preinvestigation inquiry.

On 15 May 2005 S., an investigator with the town prosecutor’s office, refused to institute an investigation into the applicant’s allegations of ill-treatment. He found it established that on 12 March 2004 a police officer in Naro-Fominsk had received a report of a violent fight; on 13 March 2004 he had invited the applicant to come in for a “preventative talk” and had noticed two bruises under the applicant’s eyes. S. concluded that the bruise under the applicant’s right eye had been a result of the injury inflicted long before the arrest. He also pointed out that the Regional Court had “carefully examined” the applicant’s version of ill-treatment by police officers. The issue of the fractured ribs was not examined.