Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in 1948 and lives in Tartu.

Estonia lost its independence as a result of the Treaty of Non-Aggression between Germany and the Union of Soviet Socialist Republics (also known as “Molotov-Ribbentrop Pact”), concluded on 23 August 1939, and the secret additional protocols to it. Following an ultimatum to set up Soviet military bases in Estonia in 1939, a large-scale entry of the Soviet army into Estonia took place in June 1940. The lawful government of the country was overthrown and Soviet rule was imposed by force. Interrupted by the German occupation in 1941-1944, Estonia remained occupied by the Soviet Union until its restoration of independence in 1991 (see Kolk and Kislyiy v. Estonia (dec.), nos. 23052/04 and 24018/04, ECHR 2006I, and Penart v. Estonia (dec.), no. 14685/04, 24 January 2006). After the independence of the Republic of Estonia was restored on 20 August 1991, Soviet troops remained in the country. Following the dissolution of the Soviet Union, the Russian Federation assumed jurisdiction over the Soviet armed forces. On 26 July 1994 Estonia and Russia concluded a treaty on the withdrawal of Russian troops from Estonia and the conditions under which they could reside temporarily in Estonia. Under the terms of the treaty, the Russian Federation undertook to withdraw from Estonia, by 31 August 1994, all military personnel who were in active service with the Russian armed forces (see Nagula v. Estonia (dec.), no. 39203/02, ECHR 2005XII (extracts); Mikolenko v. Estonia (dec.), no. 16944/03, 5 January 2006; and Dorochenko v. Estonia (dec.), no. 10507/03, 5 January 2006) .

After the regaining of independence Estonia carried out comprehensive legislative reforms for transition from a totalitarian regime to a democratic system and for rectifying injustices. On 28 June 1992 the Constitution of the Republic of Estonia (Eesti Vabariigi põhiseadus) and the Constitution of the Republic of Estonia Implementation Act (Eesti Vabariigi põhiseaduse rakendamise seadus) were adopted by a referendum. The Constitution Implementation Act provided that until 31 December 2000, persons standing in elections or seeking certain high positions, such as those of ministers or judges, or any other elected or appointed position in an agency of the national government or a local authority, had to take a written oath of conscience (süümevanne) affirming that they had not been in the service or agents of security, intelligence or counterintelligence services of countries which had occupied Estonia. On 8 July 1992 the Riigikogu (the Estonian Parliament) adopted the Procedure for Taking Oath of Conscience Act (Seadus süümevande andmise korra kohta).

In order to ensure national security of the Republic of Estonia, persons having been in the service of or having collaborated with the security, intelligence or counterintelligence services of the countries which had occupied Estonia, had to be ascertained. Such a security authority was first and foremost the Committee for State Security of the USSR and its local arm, the Estonian SSR Committee for State Security (also known as “the KGB”). However, the most sensitive of the KGB materials were removed from Estonia and the government committee set up by the Estonian authorities to liquidate the KGB managed to get hold of documents of mainly historical value.

On 10 March 1994 the Riigikogu adopted the Procedure for the Collection, Recording, Preservation and Use of the Materials of Other States’ Security and Intelligence Authorities which Have Operated in Estonia Act (Eestis tegutsenud teiste riikide julgeoleku- ja luureorganite materjalide kogumise, arvelevõtmise, säilitamise ja kasutamise korra seadus) which established the obligation to hand over for preservation to the Estonian National Archives the materials in question.

On 1 June 1994 the Riigikogu Temporary Committee for the Investigation of the Activities of the Security and Intelligence Authorities of the USSR and Other States in Estonia submitted to the Riigikogu a draft decision proposing the Government to initiate, by 15 September 1994 at the latest, a Draft Act on the Procedure for Registration and Disclosure of Persons who Have Served in or Co-operated with Security Organisations or Intelligence or Counterintelligence Organisations of Armed Forces of States which Have Occupied Estonia. On 28 June 1994 the Riigikogu adopted the proposed decision.

As the Government did not submit the Draft Act by the time requested by the Committee, on 5 December 1994 the Riigikogu Temporary Committee itself decided to initiate the Draft Act in issue.

On 6 February 1995 the Riigikogu passed the Procedure for Registration and Disclosure of Persons who Have Served in or Co-operated with Security Organisations or Intelligence or Counterintelligence Organisations of Armed Forces of States which Have Occupied Estonia Act (Eestit okupeerinud riikide julgeolekuorganite või relvajõudude luure- või vastuluureorganite teenistuses olnud või nendega koostööd teinud isikute arvelevõtmise ja avalikustamise korra seadus) (“the Diclosure Act”). According to the Disclosure Act, the persons in question were to be registered by the Estonian Internal Security Service (Kaitsepolitseiamet). Information about such persons’ service or co-operation was to be made public unless they themselves made a pertinent confession about that to the Estonian Internal Security Service within one year from the entry into force of the Disclosure Act. The Disclosure Act entered into force on 28 March 1995.

According to the information provided by the Government, 1,153 persons submitted a confession under the Disclosure Act by 1 April 1996. For the first time, names of the persons subject to disclosure were published in Riigi Teataja Lisa (Appendix to the State Gazette) on 30 January 1997. From 1997 until 2009, on thirteen occasions, the names of a total of 647 persons were published in Riigi Teataja Lisa. Among them there were 42 drivers, of whom at least seven had advanced to higher positions during their career in the KGB.

On 18 June 2002 the Riigikogu made a statement declaring the Soviet communist regime which in its view committed crimes – including genocide, war crimes and crimes against humanity – during the occupation, as well as the bodies of the Soviet Union, such as NKVD, NKGB, KGB and others, which forcefully executed the regime, and their activities to be criminal. The statement emphasised that this did “not mean collective liability of their members and employees. Each individual’s liability [was determined by] his or her specific activities, an ethical assessment of which should be made first and foremost by each person himself or herself”. Riigikogu also noted that the threat of the repetition of such crimes had not disappeared and that the regimes relying on extremist ideologies threatened the World peace and free development of the people until their criminal nature was fully disclosed and condemned.

On 17 December 2003 the Riigikogu passed the Persons Repressed by Occupying Powers Act (Okupatsioonirežiimide poolt represseeritud isiku seadus) aimed at alleviating the injustices committed against persons who were unlawfully repressed by the States that occupied Estonia between 16 June 1940 and 20 August 1991. Certain pension rights and other benefits were foreseen to the persons who fell under the Act in question.

From 1980 to 1991 the applicant was employed as a driver by the Committee for State Security.

On 27 February 2004 the applicant was invited to the Estonian Internal Security Service and presented with a notice according to which he had been registered pursuant to the Disclosure Act. It was stated in the notice that a pertinent announcement would be published in Riigi Teataja Lisa and the text of the announcement was set out. Furthermore, it was mentioned in it that the person concerned had the right, within one month of the receipt of the notice, to have access to the documents proving his or her links to the security, intelligence of counterintelligence organisations, and to contest the information contained in the notice before the Estonian Internal Security Service or a court. The applicant signed a document stating that he had received the notice.

According to the applicant his request to be shown the material gathered in respect of him was not met whereas he was told that he could lodge a complaint against the notice with an administrative court within one month. According to the Government the applicant’s argument, that he could not examine the documents on which the notice had been based, was declaratory, unproved and wrong.

On 16 June 2004 an announcement was published both in the paper and Internet version of Riigi Teataja Lisa. It read as follows:

Hereby the Estonian Internal Security Service announces that pursuant to section 5(1) of the Procedure for Registration and Disclosure of Persons who Have Served in or Co-operated with Security Organisations or Intelligence or Counterintelligence Organisations of Armed Forces of States which Have Occupied Estonia Act the Estonian Internal Security Service has registered the following persons.

MIHHAIL SÕRO (born on 12.12.1948, Estonia, Põlva County, Värska rural municipality) – AS Tarbus bus driver

Committee for State Security of the Estonian SSR[,] Tartu department – driver[,] 12.08.1980 – 1989

Committee for State Security of the Estonian SSR[,] Põlva branch – driver[,] 1989 – 05.11.1991”

In the Internet version, which had legal force equal to that of the paper version, the announcements of the Estonian Internal Security Service were published under the following section title: “Copies of announcements of the Estonian Internal Security Service about persons who have served in intelligence or counterintelligence organisations of the former USSR to be published in Riigi Teataja Lisa.”

The applicant raised the issue with the Chancellor of Justice (Õiguskantsler) who, having analysed the matter and sought additional information from the Estonian Internal Security Service, addressed the Riigikogu with a report, dated 12 July 2005, where he concluded that the Disclosure Act was unconstitutional in so far as all employees of the security and intelligence organisations were made public with no exception made in respect of the personnel who merely performed technical tasks not related to the main functions of the organisations. He further found that the Disclosure Act was unconstitutional in that the person’s place of employment at the time of the publication of the announcement was also made public.

The Constitutional Law Committee of the Riigikogu disagreed with the assessment of the Chancellor of Justice.

After the applicant had again addressed the Chancellor of Justice, the latter replied by a letter of 31 January 2006 that he had not deemed necessary to initiate constitutional review proceedings in respect of the Disclosure Act. The Chancellor of Justice had in the meantime been briefed by the Estonian Internal Security Service about the practice according to which the persons who had performed merely technical tasks were not being made public.

On 20 June 2006 the applicant lodged a complaint with the Tallinn Administrative Court. He asked that the court declare the text published in Riigi Teataja Lisa unlawful and oblige the Estonian Internal Security Service delete the word okupant (occupier, invader) and add the word endine (former). In that way the information that he had been a foreign invader occupying Estonia from 1980-1991 could be disproved. He noted that he had never been accused of or provided with any evidence showing that he had participated in the forceful occupation of the Estonian territory as a member of the armed forces of a foreign country or participated in the exercise of the occupation powers. He disagreed having been associated with the crimes committed by the employees of security organisations of the Nazi Germany and the Stalinist regime and argued that a person could only be held individually accountable for his own acts but that principle was ignored by the Disclosure Act. He asserted that he had only worked for the Committee for State Security as a driver and knew nothing about gathering information. As a result of the publication of the announcement the applicant had lost his work and he had been a victim of groundless accusations by third parties. He was being called an occupier (okupant) and an informant (koputaja) and it was being said that “he [was] not a proper man” if the Estonian Internal Security Service dealt with him.

At the Tallinn Administrative Court hearing on 15 January 2007 the applicant submitted, inter alia, that he had in the meantime changed his employment but was, at the time of the court hearing, back in the bus company where he had previously worked.

By a judgment of 29 January 2007 the Tallinn Administrative Court dismissed the applicant’s complaint. It noted that the applicant had failed to contest the notice which he had been presented with by the Estonian Internal Security Service on 27 February 2004. Accordingly, the notice had been made public pursuant to the Disclosure Act. The Administrative Court concluded that the publication of the announcement had become possible because of the applicant’s inaction as he had failed to contest the notice and disprove the information it contained. The information contained in the published announcement corresponded to the information which the applicant had previously been presented with.

The Administrative Court further verified that in the Internet version of Riigi Teataja Lisa the announcements of the Estonian Internal Security Service were published under the section title “Copies of announcements of the Estonian Internal Security Service about persons who have served in intelligence or counterintelligence organisations of the former USSR to be published in Riigi Teataja Lisa” and, thus, the notion “former” (endine) also applied to the announcement concerning the applicant. Furthermore, the word “occupier” (okupant) had not been used in respect of the applicant. The Administrative Court did not establish that the publication of the announcement was unlawful or violated the applicant’s rights.

The Administrative Court found that the applicant’s request for the review of the constitutionality of the Disclosure Act would have been pertinent in case he would have contested the notice issued on 27 February 2004. The applicant had been informed that pursuant to the Disclosure Act he had the right, within a month, to familiarise himself with the documents and contest the information contained in the notice before the Estonian Internal Security Service or a court. Thus, the law had given him a possibility to immediately counter the information gathered. If a court then would have reviewed the issue of the constitutionality of the Disclosure Act, the Estonian Internal Security Service would have been obliged to proceed with the publishing or to refrain from it, depending on the results of the review. In the circumstances at hand, however, the announcement had been published and the notice no. 695 of 27 February 2004, which it had been based on, was lawful.

The Administrative Court also noted that the applicant had not produced any evidence to disprove the information published. The applicant himself had confirmed that he had worked as a driver of the former Committee for State Security of the Estonian SSR.

The applicant appealed arguing that after the publication of the announcement he had become a victim of groundless mocking and had to quit his work. He had sustained substantial pecuniary and non-pecuniary damage. He pointed out that the notice of 27 February 2004 had not caused him any negative results. Rather, what had been of importance was the publication of the announcement in Riigi Teataja Lisa on 16 June 2004. He maintained that in the published announcement he had been depicted as an occupier of the Estonian State. It remained unclear, however, which acts he had committed against Estonia and in what way these acts had been criminal. His work as a driver of the Committee for State Security had been of a merely technical nature and had in fact not been directed against the Estonian State.

By a judgment of 22 November 2007 the Tallinn Court of Appeal dismissed the appeal. The Court of Appeal considered that the fact that a person did not contest the initial notice before its publication did not deprive him of a right to lodge a complaint against the publication of the announcement in Riigi Teataja Lisa. It also considered that the implementation of the Disclosure Act could in some circumstances involve indirect interference with a person’s fundamental rights caused by the acts of third parties as the person’s reputation could be damaged as a result of the disclosure of his relations with the Soviet security organisations. However, in the case in question the interference was in conformity with the Constitution.

The Court of Appeal found as follows:

“10. ... The Chancellor of Justice established in his proceedings that according to the defendant’s administrative practice information about the merely technical employees was not, by way of exception, disclosed. According to the assessment of the Court of Appeal, the [applicant] cannot demand an exception to be made in respect of him. According to the assessment of the defendant, drivers of the security and intelligence organisations were related to the performance of the organisations’ substantial tasks ... The court has no ground to take a different position in this question relating to the security risks. The Estonian State cannot establish decades later with absolute certainty whether a specific driver performed merely technical or also substantial tasks. Thus, one has to proceed from the possibility that a KGB driver may also pose a potential security risk and the disclosure of the information about him may be in the public interests. Therefore, it is proportionate to apply the [Disclosure Act] in respect of the persons who worked as drivers in the security or intelligence organisations. Thereby account must be taken of the fact that the publication of the announcement and the indirect interferences caused by that were not inevitably foreseen by law; the [applicant] could have prevented these consequences by making a confession pursuant to ... the [Disclosure Act].”

In respect of the applicant’s complaint about the use of the language in the text of the announcement the Court of Appeal noted that the word “to occupy” had not referred to the applicant but rather to a State (former Soviet Union). Nor had the applicant been treated as a person co-operating with the Committee for State Security (an informant or a sneak) but rather as its staff member. In the announcement the period of the applicant’s employment had also been indicated. There was nothing to imply that he was accused of continuous contact with an intelligence or security organisation of a foreign country. The defendant was not responsible for arbitrary conclusions that third parties may have drawn from the announcement. Lastly, the Court of Appeal considered that it was proportionate to publish the current places of work of the persons concerned, inter alia, in order to avoid confusion in the public that might otherwise arise in respect of persons with identical or similar names.

On 14 February 2008 the Supreme Court declined to hear an appeal lodged by the applicant.


Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court)

The applicant was born in 1980 and lives in Van.

Relying on Law no. 5233 on Compensation of the Losses resulting from Terrorism and the Measures Taken against Terrorism, the applicant applied to the compensation commission and requested to be awarded compensation due to forced evacuation from his village. His request was rejected. Subsequently, he initiated proceedings before the Van administrative court to have the said decision annulled. Relying on documents attesting to his poor financial status, the applicant requested legal aid to pay the court fees. On 7 July 2006 the administrative court rejected the applicant’s legal aid request. He was notified that he had to pay 604 Turkish Liras (TRY) (approximately 330 euros (EUR)) in court fees within one month to continue the proceedings and that failure to do so would result in the discontinuation of the proceedings. As the applicant failed to pay the court fees within the time-limit, on 2 August 2006 and 27 October 2006 respectively, the Van Administrative Court sent further warning letters and ordered the applicant to pay the court fees.

On 29 December 2006 the court decided to discontinue the proceedings since the necessary court fees were not deposited with the registry of the court. The Supreme Administrative Court upheld the judgment on 17 December 2008. Subsequently, the administrative court decided to discontinue the proceedings.


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

The applicant, Mr Jon Gaunt, is a British national, who was born in 1961 and lives in Leamington. He was represented by Mr K. O’Rourke of Howe & Co Solicitors, a lawyer practising in Brentford.

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

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

The applicant was a presenter with Talksport, a speech-based radio station. He presented a programme which covered a range of news issues and he was well-known for his “combative and hard-hitting” style with interviewees.

On 7 November 2008 the applicant conducted a live interview with M.S., the Cabinet Member for Children’s Services for Redbridge London Borough Council. The interview concerned the council’s proposal to ban smokers from becoming foster parents on the ground that passive smoking could harm foster children. The applicant had spent some of his childhood in the care system and on the morning of the interview an article written by him on the subject was published in The Sun newspaper. The article was headlined “Fags didn’t stop my foster mum caring for me”. The following extract is relevant to the present proceedings:

“Tonight in Britain more than 60,000 children won’t have a special person to tuck them in at night, read them a story or take an interest in what happened during their day at school.

Meanwhile, the zealots who dreamed up this policy will sleep easy on their futons because they are putting the ‘health needs’ of kids in care first.

This is the same warped logic that condemns black children to a life in care rather than let them be fostered by white couples.

The same master race philosophy that forbids fat couples from adopting.

The SS – that is social services by the way – think that the risk from passive smoking is more dangerous to a child than them being left to rot in a children’s home.

They should understand that most parents realise the dangers and wouldn’t smoke in an enclosed space with children around.

Foster parents are no different.

The woman who rescued me from care, and undoubtedly turned me around as a child, smoked like a chimney but she was also a hospital matron.

She lavished love, care and, most importantly, discipline on me.

Without her I wouldn’t be where I am today...

Today it’s Redbridge but, unless we all make a noise now, tomorrow it will be a national policy and thousands more children will fall victim to the health and safety Nazis and be left alone in a care home.”

Prior to the applicant’s interview with M.S., he was warned by Talksport that the subject might be emotive for him. In fact, in the hours before the interview programming staff advised him on three occasions to remain calm and allow M.S. to put his point of view across.

The applicant’s radio interview with M.S. lasted just over ten minutes. In the proceedings which followed, the President of the Queen’s Bench Division summarised the interview in the terms set out below:

“The first part of the interview was reasonably controlled, giving [M.S.] a reasonable opportunity to explain his council’s policy. The claimant then asked him about existing foster parents who only ever smoke in the open air. [M.S.] explained that the council would not drag children away from existing foster parents, but that such smokers would not be used in the future. The trouble was that such people do smoke in the house. Asked by the claimant how he knew this, [M.S.] explained that there were Redbridge councillors who say they never smoke in the building, but in fact do so. To which the claimant said ‘so you are a Nazi then?’ When [M.S.] began to protest, the claimant again said ‘no you are, you’re a Nazi’. [M.S.] protested vehemently that this was an offensive and insulting remark, and the interview then degenerated into an unseemly slanging match. When [M.S.] protested that the insult, as he saw it, was probably actionable, the claimant challenged him to ‘take action if you wish’, but then said ‘you’re a health Nazi’. The slanging match continued with the claimant asking [M.S.] if he wanted to carry on with the interview, and [M.S.] replying that he would love to if the claimant would just shut up for a minute. It emerged that the claimant had himself been in care. He referred to his column in The Sun that day and again called [M.S.] a ‘health Nazi’ and then ‘a Nazi’. The heated shouting continued with the claimant doing much of the talking. [M.S.] asked him just to shut up for a moment, and said in effect that the conditions of those in care were better than they had been. The claimant regarded this as an offensive insult to his own upbringing and called [M.S.] ‘you ignorant pig’. He later referred to him as a ‘health fascist’ and an ‘ignorant idiot’, and shortly after this he ended an interview that by then had got completely out of control.

It is scarcely possible to convey the general and particular tone of this interview in a short written summary, and the full transcript is in this respect incomplete. You have to hear it for its full impact. As we have said, it degenerated into a shouting match from the point when the claimant first called [M.S.] ‘a Nazi’. That first insult was not said with particular vehemence, but ‘you ignorant pig’ was said with considerable venom and was we think gratuitously offensive. The interview as a whole can fairly be described as a rant.”

Within ten minutes of the end of the interview, the applicant apologised to the listeners, accepting that he did not “hold it together”, that he had been “unprofessional” and that he had “lost the rag”. One hour after the end of the broadcast, he made a further apology in the following terms:

“The Councillor wants me to apologise for calling him a Nazi. I’m sorry for calling you a Nazi.”

The applicant was suspended from his programme by Talksport the same day and an internal investigation was launched. Talksport subsequently terminated his contract without notice by letter dated 17 November 2008.

Following the broadcast, Ofcom, the independent regulator and competition authority for the United Kingdom communications industries, received fifty-three complaints about the applicant’s conduct. Some of the complaints concerned the manner in which the interview had been conducted, as the complainants believed that it was an “unprovoked personal attack”, and that the applicant was “oppressive”, “intimidating”, and “shouting like a playground bully”. Other complainants were offended by the word “Nazi”.

Ofcom launched an investigation into the matter under the Broadcasting Code. In its response to Ofcom, Talksport stated that it regretted what had happened and accepted that the interview “fell way below the acceptable broadcasting standards which it expected and demanded”. It totally accepted and regretted that the applicant’s language had been offensive and that the manner in which the interview was conducted had been indefensible.

In a report published on 8 June 2009, Ofcom concluded that the broadcast had breached Rules 2.1 and 2.3 of the Broadcasting Code (see paragraph 30 below) as it fell short of the generally accepted standards applied to broadcast content and included offensive material which was not justified by the context. In reaching this conclusion, Ofcom took into account the right of broadcasters to hold opinions and impart information without interference; the fact that Talksport specialised in a genre of hardhitting talk radio which could at times prove uncomfortable and challenging listening; the fact that the broadcast of “offensive” material was not in itself a breach of Ofcom’s code as the Code did not prohibit the broadcasting of offensive material; the extremely aggressive tone of the applicant’s interview style on this occasion; and the seriousness which the broadcaster attached to the incident, as demonstrated by its prompt investigation and the applicant’s two on-air apologies. Nevertheless, it found that Talksport’s compliance procedures did not appear robust enough to deal with problematic material being broadcast live. Moreover:

“the language used by Jon Gaunt, and the manner in which he treated [M.S.], had the potential to cause offence to many listeners”

and

“the offensive language used to describe [M.S.], and what would be considered to be a persistently bullying and hectoring approach taken by Jon Gaunt towards his guest, exceeded the expectations of the audience for this programme, despite listeners being accustomed to a robust level of debate from this particular presenter. Even taking into account the context of this programme such as the nature of the service, the audience expectations and the editorial content, Ofcom did not consider that this was sufficient justification for the offensive material. The broadcaster therefore failed to comply with generally accepted standards in breach of Rules 2.1 and 2.3 of the Code.”

No sanction or penalty was imposed either on Talksport or the applicant other than the publication of the decision.

The applicant was granted leave to judicially review Ofcom’s decision on the ground that it disproportionately interfered with his freedom of expression and infringed his rights under Article 10 of the Convention. Liberty intervened in the proceedings to support the applicant’s claim.

Although Ofcom’s decision was against the broadcaster, which had acknowledged that there had been a breach of the Code, the Divisional Court judge noted that the parties had (in his view, rightly) accepted that the applicant had standing to challenge it because it “enunciates an inhibition capable of affecting his unrestrained freedom to conduct radio interviews in the way in which he did on this occasion”.

As the applicant did not contend that the Broadcasting Code itself violated Article 10, the narrow question for the court to address was whether Ofcom’s findings had disproportionately interfered with the applicant’s rights under Article 10 of the Convention. The judge noted at the outset that the unchallenged statutory basis for Ofcom’s finding meant that it was prescribed by law and pursued the legitimate aim of the protection of others. With regard to the question of necessity, the judge accepted that as the broadcast was live the applicant had had no opportunity to edit or correct what he said once he had said it. Moreover, the subject of the interview was political and controversial and the person being interviewed was an elected politician who would expect to receive and tolerate a “rough ride”. It was therefore an interview where the applicant’s freedom of expression should be accorded a high degree of protection. Nevertheless, his freedom of expression did not extend to gratuitous, offensive insult or abuse without contextual content or justification. Applying these principles and giving due weight to Ofcom’s judgment, the judge considered that to call someone a “Nazi” was capable of being highly insulting. It accepted, however, that in the present case the first use of the word could have had some contextual justification, especially in light of the applicant’s use of it in his newspaper article, and could therefore be seen as an emphatic and pejorative assertion that M.S. was, in the matter of smoking and fostering children, one who imposes his views on others. Nevertheless, the court noted that after the applicant used the word, the interview degenerated and the applicant’s conduct of it became increasingly abusive, hectoring and out of control. His subsequent use of the word “Nazi” undoubtedly assumed the nature of undirected abuse and the expression “ignorant pig” was said “with such venom as to constitute gratuitous offensive abuse”. As a consequence the later part of the interview became abusive shouting which served to convey to listeners no real content at all.

The judge therefore concluded that, taking full account of the applicant’s Article 10 rights, Ofcom was justified in its conclusion. The broadcast was highly offensive to M.S and well capable of offending the broadcasting public. Moreover, its offensive and abusive nature was gratuitous, having no factual content or justification. As a consequence, the judge accepted that Ofcom’s finding constituted no material interference with the applicant’s freedom of expression at all. In this regard, he found it relevant, but not decisive, that no sanction or penalty was imposed on the broadcaster, let alone the applicant.

The applicant appealed to the Court of Appeal. With regard to the applicant’s standing, the court reiterated that it was “accepted that he had locus standi to [challenge Ofcom’s finding], unsurprisingly since it is obviously possible that the finding may have had an adverse impact on him and on his reputation as a journalist”.

The Court of Appeal accepted that there were a number of facts which supported the proposition that a tribunal should be slow to hold that what was said in an interview offended the provisions of paragraphs 2.1 and 2.3 of the Code: first, the interview in question was concerned with an issue of general public interest; secondly, the interview was a live discussion and was not pre-recorded; thirdly, the applicant was well known to be a hard-hitting and robust interviewer; and fourthly, the interviewee was a politician and he made no subsequent complaint. However, these factors did not mean that the interview could not be susceptible to a finding that it fell foul of paragraphs 2.1 and 2.3 of the Code.

In considering whether or not the interview offended paragraphs 2.1 and/or 2.3 the court considered it as a whole and in its context. It accepted that it would be wrong to focus too hard individually, let alone exclusively, on specific insults such as “health Nazi” and “ignorant pig”, the applicant’s hectoring tone and bullying manner, his persistent interruptions, his failure to let M.S. answer questions, or his treating one or more innocuous comments by M.S. as an insult. All those points had to be considered, together with the fact that the interview was permitted to run on for many minutes after it had become clear that it had got out of hand.

Nevertheless, the court concluded that the combination of the five concerns identified in the preceding paragraph rendered it impossible to accept that Ofcom’s finding, which contained no sanction other than the publication of the decision, represented an interference with the applicant’s rights under Article 10 of the Convention. Although the topic covered was of public interest, this point was of limited force in the context of an interview where the interviewee was not permitted to express his views or reasons. Moreover, while the interview was broadcast live, the applicant was not an inexperienced interviewee being provoked in the heat of the moment; rather, he was an experienced interviewer who had plainly decided to embark on a particularly aggressive assault on M.S. and his opinions. The fact that his style of interviewing was well known did not render the interview acceptable; nor did M.S.’s failure to complain. The court therefore concluded that Ofcom was right to find that Talksport had infringed paragraphs 2.1 and 2.3 of the Code.

Finally, with regard to the severity of the sanction, the court noted that Ofcom could have decided that the complaint had been resolved instead of finding that there had been a breach of the Code. However, it had rejected this option since this was not a case of inadvertent error, as Talksport had allowed the interview to continue for many minutes after it plainly got out of control, and there had been two previous findings against Talksport where producers had lost control of an interview or discussion.

That being said, having concluded that Ofcom rightly found that Talksport had infringed paragraphs 2.1 and 2.3 of the Code, the court found it impossible to contend that Ofcom’s decision to impose no other sanction than the publication of the report “even got near being disproportionate”. Furthermore, the court noted that from the point of view of the applicant, he had been dismissed before Ofcom’s finding was published and there was no suggestion that he had lost work or that his reputation as a journalist had been damaged.

The Court of Appeal therefore dismissed the applicant’s appeal.

The applicant applied for leave to appeal to the Supreme Court. The Supreme Court refused permission in a decision dated 1 November 2011, sent to the applicant under cover of a letter dated 2 November 2011.

Broadcasting standards are governed by the Communications Act 2003 (“the 2003 Act”), which requires them to be implemented, supervised and enforced by Ofcom.

Section 3(2)(e) of the 2003 Act places a duty on Ofcom to secure the application by all television and radio stations of standards that “provide adequate protection to members of the public from the inclusion of offensive and harmful material” in broadcast programmes.

Section 319 of the 2003 Act obliges Ofcom to set up a “standards code” for radio and television services which is “calculated to secure” the so-called “standards objectives”. These objectives include, at section 319(2)(f), that “generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of offensive and harmful material”. Ofcom is also obliged by section 324 of the 2003 Act to “establish procedures for handling and resolution of complaints about the observance of [those] standards”.

This code, known as the Broadcasting Code (“the Code”), states in terms that it has been drafted in the light of the right to freedom of expression as expressed in Article 10 of the Convention, which encompasses a broadcaster’s right to disseminate, and an audience’s right to receive, creative material, information and ideas without interference, but subject to restrictions prescribed by law and necessary in a democratic society.

Paragraph 2.1 of the Code provides that generally accepted standards must be applied to the contents of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of harmful and/or offensive materials. Paragraph 2.3 of the Code states that, in applying generally accepted standards, broadcasters must ensure that material which may cause offence is justified by the context. Such material may include, among other material, offensive language.

Section 111 of the Broadcasting Act 1996 precludes Ofcom from entertaining a complaint of unfair treatment unless made by the person affected or by a person authorised by him to make the complaint for him.

Pursuant to sections 109 – 111 of the Broadcasting Act 1990, where there has been a breach of the Code Ofcom could take a range of possible measures: publish its finding indicating that a breach of the Code has taken place; direct that the broadcaster transmits a correction or a statement of Ofcom’s finding; impose a financial penalty on the broadcaster; or shorten, suspend or revoke the broadcaster’s licence.


CASE OF SERGEYEVA AND PROLETARSKAYA v. RUSSIA

Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The first applicant is a sister of Mr B., who died of AIDS in the Botkin Hospital in St Petersburg on 6 May 2008.

The second applicant is the mother of Mr P., who died of the same disease in the same hospital on 19 June 2009.

The applicants live in Moscow.

On 13 October 2004 Mr B. was arrested on suspicion of robbery. The next day the Frunzenskiy District Court of St Petersburg authorised his detention pending investigation. He was then taken to remand prison no. IZ47/6 in the Leningrad Region. Twelve days later he was diagnosed with HIV.

In November 2004 Mr B. was transferred to remand prison no. IZ47/1 in St Petersburg. On admission he informed the prison doctor about his HIV status. A relevant entry was made in his medical file, but no treatment was prescribed.

On 1 December 2005 the Frunzenskiy District Court of St Petersburg convicted Mr B. and sentenced him to seven years’ imprisonment. In August 2006 he was sent to serve the sentence in correctional colony no. IK-5 in the Leningrad Region.

Having complained of abdominal pain, on 4 March 2007 Mr B. was admitted to the prison hospital, where he was later diagnosed with tuberculosis of the peripheral lymph nodes. It was decided that he should stay in the hospital for tuberculosis treatment.

On 16 March 2007 Mr B. was seen by an infectious diseases doctor, who ordered a CD4 count to be conducted. The test, performed five days later, showed that the level of CD4 cells was 163 cells/mm3, which corresponded to an advanced stage of the disease.

On 31 May and 16 June 2007 the infectious diseases doctor visited Mr B. According to the medical records, the latter asked for antiretroviral therapy. In response, the doctor “gave him a talk”. No HIV treatment was prescribed.

On 20 June 2007 Mr B. was discharged from the prison hospital. Until April 2008 he was transferred from one prison medical facility to another for anti-tuberculosis treatment. Although the treatment was successful, the patient’s overall medical condition continued to deteriorate. Medical specialists interpreted that as a sign of progressing HIV.

On 2 April 2008 Mr B. was admitted to prison hospital no. RB-2 in the Republic of Karelia. At that time he was unable to walk, was feverish and extremely emaciated. Eight days later he was transferred to an infectious diseases unit. His doctor alleged that his grave medical condition resulted from a lack of highly active antiretroviral therapy (HAART). Mr B. was prescribed antibacterial and disintoxication therapy.

On 22 April 2008 the medical authorities applied for Mr B.’s early release on medical grounds. Three days later the Medvezhyegorsk Town Court of the Republic of Karelia granted the request. On the same day Mr B. was released from detention.

On 26 April 2008 Mr B. was admitted to Botkin Hospital in St Petersburg. He did not regain consciousness and died there on 6 May 2008.

On 26 July 2006 Mr P. was convicted of theft and sentenced to a term of imprisonment. He was taken into police custody and two days later sent to remand prison no. IZ-47/6 in the Leningrad Region.

During the admission procedure he told the resident doctor that in 2000 he had been diagnosed with HIV, which by 2006 had progressed to AIDS. Before his arrest he had been receiving antiretroviral therapy. He was also suffering from hepatitis B, C, and D and a skin disease.

Having undergone a routine medical examination, on 31 July 2006 Mr P. was diagnosed with infiltrative tuberculosis of the right lung. A standard drug regimen was prescribed and administered to him in the prison medical unit. A chest X-ray examination carried out on 20 November 2006 showed a decrease in the area of the lung affected by the tuberculosis.

Mr P. was convicted of robbery in another set of criminal proceedings and on 12 December 2006 he was sentenced to three years’ imprisonment. He was sent to prison medical facility no. 4 in the Republic of Karelia.

Mr P.’s medical condition worsened. The result of a sputum culture test performed on 26 February 2007 was smear-positive. By April 2007 Mr P.’s tuberculosis had developed resistance to six of the drugs he had been taking. Following a decision of the prison medical board on 16 June 2007, his drug regimen was adjusted.

On 26 June 2007 Mr P. was admitted to prison hospital no. RB-2 in the Republic of Karelia, where the tuberculosis treatment continued as prescribed. It appears that the change in medication improved the patient’s lung condition. However, doctors noted a further development of opportunistic infections. A viral load test was performed, the results of which, as alleged by the second applicant, were not given to Mr P.

On 13 July 2007 Mr P. returned to the prison medical facility. Chest X-ray examinations carried out on 24 July and 26 September 2007 showed that the condition of Mr P.’s lungs had improved. The results of a smear test proved negative. On 16 October 2008 Mr P. was sent back to a regular prison ward. His treatment continued.

On 27 October 2008 at the request of Mr P., the Segezha Town Court of the Republic of Karelia ordered his release on parole. Having been released on 31 October 2008, Mr P. was taken to Botkin Hospital. He died in the hospital on 19 June 2009 from “an illness caused by the HIV infection”.

On 26 May and 4 June 2010 a Russian non-governmental organisation, Agora, complained to the Russian Prosecutor General’s Office of the lack of HIV treatment for detainees, including Mr B. and Mr P. The complaint was referred to the prosecutor’s office in the Republic of Karelia.

In a letter to the Russian Prosecutor General’s Office dated 6 July 2010 the prosecutor’s office in the Republic of Karelia observed that in 2007 and 2008 prison authorities in Karelia had experienced difficulties with providing medical assistance to HIV-infected convicts in view of the fact that a large number of infected inmates had been sent to the Republic from other regions. The prosecutor’s office said that the supply of drugs had been limited and the number of medical professionals had been insufficient, and acknowledged that the medical care of Mr B. and Mr P. had fallen short of the domestic standards. In particular, they had not received HAART. The prosecutor’s office had sent the evidence it had gathered to the investigative committee in the Republic of Karelia to determine whether a criminal case should be opened.

On 5 August 2010 the investigative authorities refused to open a criminal case into the deaths of Mr B. and Mr P. Citing the difficulties encountered by the prison authorities of the Karelia Republic in 2006-08, including the large number of HIV-positive inmates, a lack of specialists trained to treat inmates suffering from that infection, the absence of an immunological laboratory and the lack of medication, the investigators concluded that the prison authorities had taken all possible measures to provide medical assistance to HIV-infected inmates. No causal link between the absence of HIV therapy and the deaths of Mr B. and Mr P. was established. The investigative authorities stressed that Mr B. had managed to live in detention without the antiretroviral therapy for almost three years and that Mr P. had died more than seven months after his release. The conduct of the prison and medical authorities, in the investigators’ opinion, did not reveal any signs of a criminal offence.

The above decision was not challenged.

In 2011 the applicants lodged a claim for non-pecuniary damages against the Russian Ministry of Finance, arguing that their relatives’ death from HIV had been caused by the authorities’ failure to provide appropriate medical care.

On 28 October 2011 the Tverskoy District Court of Moscow examined the claim. It found that the burden of proof was on the applicants, who had to prove the unlawfulness of the prison officials’ conduct, the alleged damage, and the causal links between the officials’ conduct and that damage. Having noted the absence of a decision establishing a breach of the law by the prison authorities, and having referred to the decision not to open a criminal case into the deaths of the applicant’s relatives, the court dismissed the claim as unsubstantiated.

On 22 February 2012 the Moscow City Court upheld the judgment on appeal, fully endorsing the District Court’s reasoning.


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in 1987. He is currently serving a prison sentence.

On 10 October 2010 the applicant, who was serving his sentence in Tartu Prison, took a walk together with other detainees. When he entered the accommodation block, two prison guards searched him in the stairwell of the building. According to the applicant he was requested to lower his trousers and underpants twice and lift his sexual organ. A guard felt his underpants to find out whether any tobacco products had been hidden therein. According to the applicant he was in the sight of other detainees, since the door to the stairwell where the search was carried out had a transparent window. Another door leading from the stairwell to a corridor of the accommodation block also had a transparent window and detainees or female prison officers could have seen him through it or entered the stairwell at any time.

The applicant claimed from the prison administration 25,000 kroons (EEK) (corresponding to approximately 1,600 euros (EUR)) for the non-pecuniary damages he had allegedly sustained. He named three of the detainees who had been behind him when he had entered the building and had been searched.

The prison administration rejected the applicant’s claim. Relying on the statements of one of the prison guards involved, the administration found that the search had been conducted in private and not in the sight of other detainees. According to the prison guard’s written statements, the detainees had entered the stairwell one by one. One guard had searched their jackets and the other one had searched the detainees. In the event that they suspected a detainee, they had closed the door in order to create a private space and the detainee in question had been requested to lower his trousers. Only the detainee to be searched and two guards had been in the stairwell.

The applicant lodged a complaint with the Tartu Administrative Court. He reiterated his claim, named three detainees who had seen his search and included written statements from two of them.

By a judgment of 21 September 2011 the Administrative Court rejected the applicant’s claim. It found reliable the statements of the prison guard, according to whom the applicant’s privacy had been respected.

The applicant appealed to the Tartu Court of Appeal. At the Court of Appeal hearing he submitted that the windows of the doors to the stairwell had measured 1 m by 30 cm and that some days after his complaint to the Administrative Court they had been covered by metal sheets to prevent other detainees from seeing the searches.

By a judgment of 16 March 2012 the Tartu Court of Appeal dismissed the applicant’s appeal. It established that the search had lasted for a few minutes at most and noted that the applicant had not been sure whether any other detainees had been in the stairwell. He had been unable to explain from where exactly the detainees named by him had seen his search. The Court of Appeal concluded that his privacy had not been violated. It further found that in order to effectively manage a large number of detainees, the prison also had to have the possibility of carrying out a body search of a detainee, when necessary, in a location other than a private room designated for that purpose. In order to conduct such a search it was sufficient that the authorities had a suspicion that a detainee re-entering the building after a walk had hidden cigarettes – which were prohibited in prison – in his underwear.

By a judgment of 17 October 2012 the Supreme Court dismissed the applicant’s appeal. It upheld the Court of Appeal’s finding that the applicant’s privacy had not been infringed and his dignity had not been diminished. One of the three judges delivered a separate opinion. He considered that it was not decisive whether the third persons had in fact seen the detainee’s body search. It could not be presumed that a person who was being searched was able to establish at the same time whether the search had been seen, what exactly had been seen and by whom. When a body search was carried out in a situation and location where it was not guaranteed that third persons would not see the person’s nudity, the person concerned was bound to feel that his privacy had not been respected and that other persons might have seen the procedure being performed. Such a situation damaged the person’s dignity and could cause feelings of insecurity, anguish and degradation.

According to information provided by the Government, the applicant had three reprimands on record at the time of the search in question, including for unauthorised possession of a cigarette. From the date of the events at issue until mid-2013, twenty further disciplinary punishments had been imposed on him, primarily for violations related to the possession of unauthorised items, mainly cigarettes.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly) read in the light of Article 10 - (Art. 10) Freedom of expression-{general} (Article 10-1 - Freedom to hold opinions)

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

The applicant was born in 1990 and lived in Moscow until his arrest.

The background facts relating to the planning, conduct and dispersal of the demonstration at Bolotnaya Square are set out in more detail in Frumkin v. Russia (no. 74568/12, §§ 7-65, 5 January 2016), and Yaroslav Belousov v. Russia (nos. 2653/13 and 60980/14, §§ 7-33, 4 October 2016). The parties’ submissions on the circumstances directly relevant to the present case are set out below.

On 6 May 2012 a public demonstration entitled the “March of Millions” was held in central Moscow to protest against the allegedly rigged presidential elections. The event had been approved by the city authorities in the form of a march followed by a meeting at Bolotnaya Square, which was supposed to end at 7.30 p.m. The march was peaceful and held without any disruptions, but when the marchers arrived at Bolotnaya Square it became apparent that barriers installed by the police had narrowed the entrance to the meeting venue, allegedly restricting the space allocated for the meeting. To control the crowd the police cordon forced the protestors to remain within the barriers; there were numerous clashes between the two sides. At 5.30 p.m. the police ordered the meeting to finish early and began to disperse the participants. It took them about two hours to clear the square.

On the same day the Moscow city department of the Investigative Committee of the Russian Federation opened criminal proceedings to investigate suspected acts of mass disorder and violence against the police (Articles 212 § 2 and 318 § 1 of the Criminal Code). On 18 May 2012 the file was transferred to the headquarters of the Investigative Committee for further investigation. On 28 May 2012 an investigation was also launched into the criminal offence of organising acts of mass disorder (Article 212 § 1 of the Criminal Code). The two criminal cases were joined on the same day.

At the time of his arrest the applicant was a second-year student at the Moscow University of Social Studies and worked part-time as a courier for an insurance company. According to him, on 6 May 2012 he arrived at Kaluzhskaya Square to take part in the march and walked with other participants to Bolotnaya Square. Upon arrival there he discovered that the police cordon had blocked access to the square. When passage to the stage of the rally taking place along the embankment was opened, the applicant went in that direction. The police started to disperse the protesters, using excessive force and beating them with truncheons. In response, the protesters dragged metal barriers in place to protect themselves from the police. At one point the applicant observed a protester in a green T-shirt, who five or six police officers were holding and beating with truncheons. He grabbed the protester and pulled him back, trying to protect him from the blows. The applicant was later arrested by the police and taken to a police station before being released shortly after. After the events in question he continued to live at his usual address and pursue his studies.

On 26 July 2012 the applicant was arrested on suspicion of having participated in acts of mass disorder on 6 May 2012.

On 27 July 2012 the Basmannyy District Court ordered that the applicant be placed in pre-trial detention until 26 September 2012. It referred to the gravity of the charges and information about the applicant’s character, including a report by Moscow Police’s chief of department at the Centre for Counter-Extremism. According to that report, the applicant was an active member of organisations of a destructive character. If he were to stay at liberty, he planned to threaten witnesses, abscond and obstruct the investigation. The court concluded that those circumstances gave sufficient grounds to believe that the applicant was likely to flee to avoid the investigation and trial, destroy evidence or otherwise obstruct the investigation of the criminal case, which was still at an initial stage.

On 1 August 2012 charges were brought against the applicant under Article 212 § 2 (participation in acts of mass disorder accompanied by violence). He was accused, in particular, of resisting police officers by pushing them away when they were arresting other protestors and by trying to liberate the latter.

On 27 August 2012 the Moscow City Court upheld the detention order of 27 July 2012.

On 24 September 2012 the Basmannyy District Court examined an application from the investigator for an extension of the applicant’s pre-trial detention. The applicant asked for the preventive measure to be changed to house arrest, a written undertaking not to leave a specified place, bail or personal guarantees. On the same day the District Court granted the investigator’s application and extended the applicant’s detention until 6 November 2012. It considered that the circumstances justifying the detention order had not changed.

On 1 October 2012 Police Officer T. identified the applicant during an identification parade as a participant in mass disorder who had used violence against him. In particular, when T. and other officers had been arresting a protester, the applicant had grabbed his hand and pulled it off the protestor, thereby causing the police officer pain. Another police officer, L., also identified the applicant as a participant in acts of mass disorder who had tried to prevent the police arresting another protestor.

On 22 October 2012 the Moscow City Court dismissed the applicant’s appeal against the extension order of 24 September 2012.

On 29 October 2012 the Basmannyy District Court granted an extension of the applicant’s detention until 6 March 2013, essentially on the same grounds as earlier, noting that the circumstances justifying the detention order had not changed. In particular, it dismissed an objection from the applicant to the use of the operational-search reports concerning his character and rejected his contesting of the alleged membership of any organisations of a destructive nature.

On 15 November and 21 December 2012 the charges against the applicant were reformulated. It was stated that the applicant, who had been wearing a surgical mask to conceal his face, had used violence against the police while trying to liberate protestors who had been arrested and that he had pushed police officers away. In particular, he had grabbed Officer T.’s hand and pulled it off a protester, thereby preventing his arrest. He had also built a line of metal barriers to block the police and had tried to repel the police with them. The applicant’s alleged offences were classified additionally under Article 318 § 1 of the Criminal Code (use of violence against a public official).

On 5 March 2013 the Basmannyy District Court granted a new extension of the applicant’s detention, until 6 July 2013, essentially on the same grounds as before. On 17 April 2013 the Moscow City Court upheld the extension order.

On 24 May 2013 the applicant’s criminal case was transferred to the Zamoskvoretskiy District Court of Moscow for the determination of criminal charges.

On 6 June 2013 that court granted another extension of the applicant’s detention, until 24 November 2013. The decision concerned eleven defendants. Along with the gravity of the charges, the court based its decision on the findings that “the reasons which initially warranted the detention have not changed” and that “no other measures of restraint would secure the aims and goals of the judicial proceedings”. The applicant’s request for an alternative preventive measure was dismissed on the grounds that no other measure could secure the proper course of justice in the case. The Moscow City Court upheld the extension order on 2 July 2013.

On 19 November 2013 the Zamoskvoretskiy District Court granted another extension of detention in respect of nine defendants, including the applicant. It ordered their detention until 24 February 2014 on the grounds of the gravity of the charges and the nature of the offences imputable to them. On 17 December 2013 the Moscow City Court upheld that extension order.

The applicant was held in IZ-77/2 for the whole period of his pre-trial detention from 4 September 2012. According to him, the conditions of his detention had been poor. The applicant referred to cases against Russia in which the Court had previously found a breach of Article 3 because of overcrowding in IZ-77/2 in 2004-2005 (see Lind v. Russia, no. 25664/05, §§ 42 and 58-63, 6 December 2007; Zentsov and Others v. Russia, no. 35297/05, §§ 25-29 and 40-44, 23 October 2012; and Vyatkin v. Russia, no. 18813/06, §§ 2627 and 38-43, 11 April 2013). The applicant submitted that his conditions of detention had been similar.

The applicant’s description of the conditions of detention during his transfer from the remand prison to court and back and the Government’s submissions in that regard were identical to those in the case of Yaroslav Belousov (cited above, §§ 69-73).

As regards the conditions of detention in the convoy room of the Moscow City Court, the applicant submitted that it was poorly lit and that access to the toilet was limited to once an hour. In addition, he had been required to strip naked and to perform sit-ups during the body search conducted in the convoy room.

On 6 June 2013 court proceedings began in hearing room no. 338 at the Moscow City Court, moving at the end of July 2013 to hearing room no. 635. The defendants, including the applicant, were held in glass cabins in both hearing rooms. From mid-September 2013 to the end of 2013 the hearings continued at the Nikulinskiy District Court of Moscow in hearing room no. 303, while in January and February 2014 they took place at the Zamoskvoretskiy District Court in hearing room no. 410. Those hearing rooms were equipped with metal cages in which nine defendants (seven from 19 December 2013), including the applicant, sat during the hearings.

For a detailed description of the conditions in those hearing rooms see Yaroslav Belousov (cited above, §§ 74-77).

On 6 June 2013 the Zamoskvoretskiy District Court of Moscow began a preliminary hearing in a criminal case against ten participants in the demonstration at Bolotnaya Square, who were charged with participation in acts of mass disorder and committing acts of violence against police officers. On 18 June 2013 the same court began the trial on the merits.

On 5 September 2013 Police Officer T., the alleged victim of the applicant’s assault, was examined as a witness. He testified that the applicant had impeded him and two other police officers from arresting a protester by grabbing T.’s hand and pushing the officers away. The applicant had caused him pain but had not inflicted any injuries. During the hearing the applicant and his lawyers applied to deprive T. of victim status because no harm had been caused to him, but the court refused that request as unsubstantiated.

On 21 February 2014 the Zamoskvoretsky District Court of Moscow found the applicant guilty as charged. It held, in particular, as follows:

“Between 4 p.m. and 8 p.m. on 6 May 2012 ... at Bolotnaya Square ... unidentified persons ... called those present [at the venue] to move outside the agreed meeting venue, to defy the lawful orders of the police ..., to use violence ... which led to mass disorder accompanied by the use of violence against public officials in connection with the performance of their duties [and] the destruction of property.

On the same day at 5 p.m. at the latest [the defendants] acquired the criminal intent to participate in mass disorder and to use violence against ... police officers ...

Moreover ... the participants of the acts of mass disorder threw chunks of tarmac, stones, sticks and other objects at the police ... which hit them on various parts of their body, and [the defendants] ... [who] participated in the acts of mass disorder ... implemented their criminal intent to use violence against public officials ... applied physical force which was not a danger to the life or health of those [officials] ...

[The applicant] ... who was wearing a surgical mask to hide his face, together with unidentified persons ... tried to liberate those arrested by the police for a breach of public order and pushed the police officers away ...

... [the applicant] used violence against Police Officer [T.] which did not endanger his life or health ...

[The applicant] ... from 5 p.m. to 9.40 p.m. ... when unidentified participants of acts of mass disorder tried to break the police cordon, acting intentionally and using force, grabbed [T.’s] hand and then pulled it off the person whom [T.] was arresting, thus impeding his apprehension, which caused [T.] pain.

In addition, [the applicant] together with unidentified persons ... built a line of metal barriers blocking the police’s movements, and ... tried to repel the line of police officers ... with the help of those barriers.

[The applicant] pleaded not guilty and testified that ... he had decided to attend the public gathering on 6 May 2012 ... for the purposes of personal security he wore a surgical mask ... [The applicant] was at the bridge when a blockage occurred. He did not see what was happening, but at one point ... he had been able to proceed with the flow of people towards the stage. There [the applicant] saw the mass beating of people by police officers and participants of the rally starting to bring forward metal barriers ... and to put them close to the police officers, trying to protect themselves from the latter. [The applicant] was standing close to the barriers, taking his hands off when the police officers used their truncheons to hit over the barriers. Then ... [the applicant] saw a group of five or six police officers who were trying to seize a young man in a green T-shirt. They hit the man with their truncheons, and [the applicant], considering that the man was in danger because the police actions were unlawful, tried to snatch him from the officers’ hands. He grasped the young man’s waistband, pulled it and turned his back to protect him from the truncheon blows. [The applicant] finds it conceivable that in this turmoil he might unintentionally have pushed someone and asks for attention to be paid to [T.’s] statements that the latter did not feel any pain. Then [the applicant] was arrested and taken to a police vehicle.

... the court considers the [defendants’] arguments that they were protecting somebody from police officers or happened to be victims of the police’s use of force as farfetched and aimed at the mitigation of their responsibility ...”

The applicant was sentenced to three years and six months’ imprisonment, calculated on the basis of a three-year prison term under Article 212 § 2 of the Criminal Code, partly concurrent with a term of one year and three months under Article 318 § 1. The applicant’s pre-trial detention counted towards the prison sentence.

The applicant appealed. He complained that the same acts imputed to him had been classified under both Article 212 and Article 318 of the Criminal Code. He insisted that he had not used violence against T. because the latter had not suffered any pain or injuries.

On 20 June 2014 the Moscow City Court upheld the first-instance judgment.


Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Violation of Article 5 - Right to liberty and security (Article 5-2 - Information on reasons for arrest;Prompt information);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens-{general} (Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Prohibition of torture);Violation of Article 13+P4-4 - Right to an effective remedy (Article 13 - Effective remedy) (Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens-{general};Prohibition of collective expulsion of aliens);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicants were born in 1983, 1987 and 1988 respectively. Mr Khlaifia (the “first applicant”) lives in Om Laarass (Tunisia); Mr Tabal and Mr Sfar (the “second applicant” and the “third applicant”) live in El Mahdia (Tunisia).

On 16 and 17 September 2011 the applicants – the first, then the second and third, respectively – left Tunisia with others on board rudimentary vessels heading for the Italian coast. After several hours at sea, their vessels were intercepted by the Italian coastguard, which escorted them to a port on the island of Lampedusa. The applicants arrived on the island on 17 and 18 September 2011 respectively.

The applicants were transferred to an Early Reception and Aid Centre (Centro di Soccorso e Prima Accoglienza – “CSPA”) at Contrada Imbriacola where, after giving them first aid, the authorities proceeded with their identification.

They were accommodated in a part of the centre reserved for adult Tunisians. According to the applicants, they were held in an overcrowded and dirty area and were obliged to sleep on the floor because of the shortage of available beds and the poor quality of the mattresses. Meals were eaten outside, sitting on the ground. The centre was kept permanently under police surveillance, making any contact with the outside world impossible.

The applicants remained in that centre until 20 September, when a violent revolt broke out among the migrants. The premises were gutted by fire and the applicants were taken to a sports complex on Lampedusa for the night. At dawn on 21 September they managed, together with other migrants, to evade the police surveillance and walk to the village of Lampedusa. From there, with about 1,800 other migrants, they started a demonstration through the streets of the island. After being stopped by the police, the applicants were taken first back to the reception centre and then to Lampedusa airport.

On the morning of 22 September 2011 the applicants were flown to Palermo. After disembarking they were transferred to ships that were moored in the harbour there. The first applicant was placed on the Vincent, with some 190 individuals, while the second and third applicants were on board the Audace, holding about 150.

The applicants described the conditions as follows. All the migrants on each vessel were confined to the restaurant areas, access to the cabins being prohibited. They slept on the floor and had to wait several hours to use the toilets. They could only go outside onto the balconies twice a day for a few minutes at a time. They were allegedly insulted and ill-treated by the police who kept them under permanent surveillance and they claimed not to have received any information from the authorities.

The applicants remained on the ships until 27 and 29 September, respectively, when they were taken to Palermo airport pending removal.

Before being put on the aircraft, the migrants were received by the Tunisian Consul. According to the applicants, the Consul merely recorded their identities in accordance with agreements between Italy and Tunisia of April 2011 (see paragraphs 28-30 below).

On their application form the applicants claimed that at no time during their stay in Italy had they been issued with any document.

Annexed to their observations, the Government, however, produced three refusal-of-entry orders dated 27 and 29 September 2011 that had been issued against the applicants. Those orders, which were basically identical and drafted in Italian with a translation into Arabic, read as follows:

“The Commissioner of Police (Questore) for the Province of Agrigento

Having regard to the documents in the file, showing that

(1) on 17 [18] September 2011 members of the police force found in the province of Agrigento, near the border of island of Lampedusa, Mr [surname and forename] born ... on [date] ... Tunisian national ... not fully identified, being undocumented (sedicente);

(2) the alien entered the territory of the country by evading the border controls;

(3) the identification (rintraccio) of the alien took place on/immediately after his/her arrival on national territory, and precisely at: island of Lampedusa;

WHEREAS none of the cases [indicated in] Article 10 § 4 of Legislative Decree no. 286 of 1998 is at issue;

CONSIDERING that it is appropriate to proceed in accordance with Article 10 § 2 of Legislative Decree no. 286 of 1998;


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

Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Kristina Pardalos

The applicant was born in 1966.

In 1990 the applicant was convicted of manslaughter and sentenced to life imprisonment. He was held in a number of different detention centres. No information is available in respect of his places of detention before 8 April 2009. From the latter date until 10 November 2011 he was detained in Jilava Prison. On the latter date he was transferred to Giurgiu Prison.

The applicant and the Government disagreed as to most aspects of the conditions of detention in Jilava Prison.

The applicant alleged that he had occupied overcrowded cells, without providing details about the surface area and the number of cellmates.

He also complained of unsatisfactory sanitary conditions. The cells did not have any furniture in which to keep personal objects and food, therefore the prisoners were forced to keep them under their beds where there were hundreds of insects.

The temperature in the cells was very low in winter.

The applicant claimed that for three months, from April until July 2009, they had not had hot water. The prisoners were confronted with the same situation in the summer of 2010 when they had to live without hot water from 28 June until 5 August 2010.

He also contended that even though he was a non-smoker, he had had to share the cell with smokers. He further claimed that in his cell there were prisoners who frequently consumed drugs and that the smoke from the cigarettes combined with the smoke released from the drugs made the air in the cell unbreathable.

The Government supplied the following details concerning the cells in which the applicant has been detained in Jilava Prison:

- Between 8 April and 24 May 2009 the applicant was detained in cell no. 513, measuring 45.30 sq. m. The cell was occupied by between fourteen and seventeen inmates.

- Between 25 May and 28 December 2009 the applicant was detained in cell no. 405, measuring 13.28 sq. m, which he shared with five or six other inmates.

- Between 29 December 2009 and 11 February 2010 the applicant was detained in cell no. 309, measuring 34.78 sq. m. The cell was occupied by up to thirteen inmates.

- Between 12 February and 1 August 2010 the applicant was detained in cell no. 414, measuring 44 sq. m. The cell was occupied by between thirteen and eighteen inmates.

- Between 2 August and 16 September 2010 the applicant was detained in cell no. 413, measuring 12.83 sq. m, which he shared with two or three other inmates.

- Between 17 September 2010 and 4 September 2011 the applicant was detained in cell no. 207, measuring 34.78 sq. m, which he shared with fourteen or fifteen other inmates.

- Between 5 September and 10 November 2011 the applicant was detained in cell no. 305, measuring 32.76 sq. m, which he shared with nine or eleven inmates.

The applicant was detained in smoking cells and he had not asked to be transferred to a non-smoking cell.

As regards cleanliness and hygiene, the Government submitted that every year the prison authorities signed contracts for rodent and pest control with companies specialising in this work. Disinfection of the cells was carried out at least once every three months. Moreover, the quality of the drinking water was tested regularly by the prison authorities, with the aid of a specialised laboratory. Furthermore, the food was fresh and of good quality.


András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

The applicants, Mr Şeyhmus Şengüner and Ms Emine Şengüner, are Turkish nationals, who were born in 1943 and live in Diyarbakır. They were represented before the Court by Ms C. Turhallı Balsak, a lawyer practising in Diyarbakır.

On 30 May 2005 the applicants’ son, Zeydin Şengüner, started his compulsory military service. On 15 August 2005, suffering from nausea and gastric bleeding, he applied to the infirmary of his regiment. On the same day he was transferred to the Erzincan Military Hospital, where he underwent two surgical operations, on 15 and 17 August 2005. Following receipt of the pathology report, he was diagnosed as suffering from nonHodgkin’s lymphoma and on 6 September 2005 he was transferred to the Oncology Department of the Ankara GATA Hospital, where he received six cycles of chemotherapy. While he was receiving treatment, a tumour was discovered in his brain and he was treated with radiotherapy. He died on 6 January 2006.

The applicants initiated compensation proceedings before the Military Supreme Administrative Court and maintained that the authorities had been at fault, as harsh military conditions had had a negative effect on their son’s health and there had been a delay in the diagnosis of his illness.

During the proceedings, the court asked for an expert report to determine whether any fault could be attributed to the military authorities for the death of the applicants’ son. In a report dated 19 June 2008, the experts concluded that the applicants’ son had received adequate medical treatment in one of the most advanced hospitals in Turkey. They maintained that despite modern treatment options being available, the mortality rate for sufferers of nonHodgkin’s lymphoma was very high and no fault could be attributed to the authorities for the death of the applicants’ son. They further stated that his cancer had not been related to his serving in the military.

On 23 July 2008 the Military Supreme Administrative Court dismissed the applicants’ case. In delivering its judgment, the court relied on the expert report and concluded that no fault could be attributed to the military authorities for the death of the applicants’ son. Subsequently, on 28 October 2008, a rectification request lodged by the applicants was rejected. This decision was served on them on 14 November 2008.