No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

Egidijus Kūris;Helen Keller;Nebojša Vučinić;Robert Spano;Stéphanie Mourou-Vikström;Ksenija Turković

The applicants were born in 1943, 1975 and 1969, respectively, and live in London, the United Kingdom.

During 1991 and 1992 Serbian paramilitary forces gained control of about a third of the territory of Croatia and proclaimed the “Serbian Autonomous Region of Krajina” (Srpska autonomna oblast Krajina, hereinafter “Krajina”). At the beginning of August 1995 the Croatian authorities announced their intention to take military action with the aim of regaining control over Krajina. The operation was codenamed “Storm” (Oluja) and took place from 4 to 7 August 1995. Before the military action, the vast majority of the population of Krajina fled Croatia. Most of them went to Bosnia and Herzegovina, and also to Serbia. Some returned to Croatia after the war. The number of people who fled is estimated at between 100,000 and 150,000.

On 5 November 1997 Croatia ratified the Convention.

The documents submitted by the parties reveal the following facts.

The applicants lived in Knin, within the territory of Krajina. During Operation Storm the town of Knin was shelled by the Croatian army. During the shelling the applicants hid in the basement of their building. J.T. was found dead near a petrol station in Knin after one of the shelling attacks. It appears that he was buried at a cemetery in Knin.

On 25 April 2001, during the exhumations at the “New Cemetery” (Novo groblje) in Knin, the first applicant approached the police and said that her husband, J.T., had been buried at that cemetery. The Šibenik-Knin Police Department, Knin Police Station (Policijska uprava šibensko-kninska, Policijska postaja Knin), then interviewed the first applicant about the circumstances of the death of her husband. She stated that her husband had died on 5 August 1995 near a petrol station in Knin. Given that Knin had been under artillery attack, the first applicant assumed that her husband had been killed by a shell. She further stated that she had seen her husband’s dead body lying on the pavement near the above-mentioned petrol station. She gave a detailed description of his appearance and of the clothes he had been wearing. Members of the Croatian army appeared at the crime scene and took the first applicant to a UNPROFOR (United Nations Protection Force) camp in Knin. She had obtained no further knowledge of the whereabouts of her husband’s body. She assumed that he was buried at a cemetery in Knin.

A number of remains were exhumed during May and June 2001 at the cemetery in Knin. The process was conducted under the auspices of the International Criminal Tribunal for the former Yugoslavia (Međunarodni kazneni sud za bivšu Jugoslaviju) and the County State Attorney’s Office in Šibenik (Županijsko državno odvjetništvo u Šibeniku). After they were exhumed, the remains were examined at the Institute for Forensic Medicine in Zagreb (Zavod za sudsku medicinu i kriminalistiku) but J.T.’s remains were not identified at that time. On 20 June 2001 the International Criminal Tribunal for the former Yugoslavia issued an autopsy report which concluded that the probable cause of the death for the remains which were only in 2010 identified as being those of J.T., was a gunshot to the neck.

On 26 November 2001 the Knin Police Station submitted to the Šibenik-Knin Criminal Police Department (Odjel kriminalističke policije, Policijska uprava šibensko-kninska) its official notes of the interviews which it had conducted with the families of the people killed during and after Operation Storm. The above-mentioned interview with the first applicant was also submitted.

On 28 November 2003 the Institute for Forensic Medicine in Zagreb extracted a genotype from J.T.’s remains and compared it with DNA samples from its database. However, they failed to find a match and could not establish the identity of the remains.

After the applicants on 26 February 2007 filed with the State Attorney’s Office a claim for damages in connection with the killing of J.T. (see paragraph 25 below), the Knin police opened an inquiry into the circumstances of his death.

On 5 December 2007 the Knin Police Station interviewed M.T., who stated that the first applicant had told her about the events in Knin during Operation Storm and the death of her husband, J.T. She had no further useful information.

On 13 February 2008 the Šibenik-Knin Criminal Police Department interviewed Lj.M. She described the events of 5 August 1995 as follows. During the artillery attack on Knin she and her family had hidden in a basement. After the attack they had left the basement. The Croatian army had led the civilians to a furniture shop, from where they had been taken to the barracks known as “southern camp” (južni logor). The first and the second applicants had also been in this group of civilians. As they had been passing through Knin, the witness had seen the dead body of J.T. He had been dressed in civilian clothes and had had no visible injuries. Lj.M indicated that she had no recollection of seeing J.T. wearing the military uniform of the Republic of Serbian Krajina (RSK: Republika Srpska Krajina). Lj.M’s statement was confirmed by her mother-in-law, Z.M.

On 19 February 2008 the Šibenik-Knin Criminal Police Department interviewed I.M., a neighbour of the Treskavica family. She stated that J.T. had not been a member of the army or the police of the Republic of Serbian Krajina and that she had never seen him wearing a military uniform. During Operation Storm her family and the Treskavica family had been hiding in the basement of their residential building. J.T. had occasionally come to the basement, but he had not been present all the time. The last time that I.M. had seen him alive had been on 5 August 1995, between 10 and 11 a.m. After they had all left the basement, she had seen the dead body of J.T. lying on the street. She had no further information.

On 20 February 2008 the Šibenik-Knin Criminal Police Department informed the County State Attorney’s Office in Šibenik that the case had not yet been registered and that it had failed to determine whether J.T. had been a member of the army or the police of the Republic of Serbian Krajina. The police indicated that they had conducted interviews with Lj.M. and I.M. However, it was not possible to conduct an interview with the first applicant, since she resided in England. The police indicated that J.T. had most likely been buried at the cemetery in Knin. His remains had been exhumed and transferred to the Institute for Forensic Medicine in Zagreb, where they were still being identified.

On 13 November 2009 P.T., J.T.’s brother, provided information about J.T.’s ante-mortem physical features to the Red Cross of Serbia (Crveni Krst Srbije) in order that his post-mortem remains might be identified. On the same day P.T. requested that a search be undertaken for the post-mortem remains of J.T.

On 14 February 2010 family members provided blood. After a DNA analysis was conducted, the Institute for Forensic Medicine in Zagreb issued a report dated 16 April 2010, which stated that the post-mortem remains were those of J.T.

On 24 May 2010 the family of J.T. was invited to the final identification of the post-mortem remains. On 16 June 2010 the first applicant confirmed the preliminary identification of the remains.

On 8 July 2010 the Šibenik-Knin Criminal Police Department submitted a list of missing persons to the Knin Police Station, together with a request for an inquiry into their disappearance and for interviews to be conducted with their families and neighbours. J.T. was listed as one of those missing persons.

On 19 July 2010 the remains of J.T. were buried at the local cemetery in Knin, in accordance with the wishes of the applicants.

On 10 August 2010 the Knin Police Station issued an official note about the inquiry into J.T.’s disappearance. After interviewing the first applicant, the police determined that J.T. had died on 5 August 1995 and had been buried on 19 July 2010 at the cemetery in Markovac. On 6 September 2010 the Knin Police Station notified the Šibenik-Knin Criminal Police Department of those findings.

On 7 July 2014 the Ministry of War Veterans (Ministarstvo branitelja) replied to a request of the War Crimes Department of the Ministry of the Interior (Ministarstvo unutarnjih poslova, Služba ratnih zločina) concerning the case of J.T. The Ministry of the Interior notified the police of the exhumation and identification of J.T.’s remains.

On 26 February 2007 the applicants submitted a claim for damages with the State Attorney’s Office in respect of the death of J.T. The request was refused.

On 14 June 2007 the applicants brought a civil action against the State in the Knin Municipal Court (Općinski sud u Kninu), seeking damages in respect of the death of J.T. under the 2003 Liability Act.

On 17 December 2008 the municipal court dismissed the claim on the ground that there was “no evidence that J.T.’s death had been a result of terror or violence aimed at gravely disturbing public order.” That judgment was upheld by the Šibenik County Court (Županijski sud u Šibeniku) on 1 March 2010 and by the Supreme Court (Vrhovni sud Republike Hrvatske) on 21 February 2012.

The applicants’ subsequent constitutional complaint was dismissed on 3 October 2012 by the Constitutional Court (Ustavni sud Republike Hrvatske).


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)

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

The applicant was born in 1988 and lives in the village of Trudobelikovskiy, Krasnodar region.

At around midnight on 15 August 2007 the applicant, who was 19 years old at the time, and B. were taken in a police patrol car to the police station of the Syktyvdinskiy district of the Komi Republic for an examination of allegations of assault made against them by two individuals, in particular of the sexual assault of a woman. The police intervened immediately after the alleged assaults.

According to the applicant, at the police station investigator N. demanded that he confess to the crime, and threatened him with illtreatment and rape in a cell at the pre-trial detention facility. The applicant refused to sign self-incriminating statements and was allegedly subjected to ill-treatment which he described as follows. He was taken to a cell where two policemen held his hands while a third policeman kicked him in the stomach leaving a boot print on his Tshirt; the two policemen then threw the applicant to the floor, face down. Thereafter, the policemen took the applicant to N.’s office, where he signed a “statement of surrender and confession” (явка с повинной). He was then taken to the toilet by a policeman who started insulting him. When the applicant responded, the policeman allegedly sprayed gas in his eyes and hit him several times with a rubber truncheon. The policeman then pushed the applicant into the cell so that the applicant hit his head against the wall and fell to the ground.

According to the police record drawn up by operative police officer K., the applicant signed the “statement of surrender and confession” at 2.35 a.m. on 16 August 2007.

Investigator N. instituted criminal proceedings against him and B. and ordered a forensic medical examination of the applicant to establish, in view of the nature of the crime, whether the applicant had any pathology which would prevent him from performing sexual acts.

The applicant was taken to a forensic medical expert who found that the applicant had the following physical injuries (examination report of 16 August 2007): (i) two abrasions on the left side of the forehead, measuring 2.5 cm by 0.7 cm and 0.7 cm by 0.5 cm; (ii) an abrasion on the bridge of the nose, measuring 4.5 cm by 1.5 cm; and (iii) a bruise around one eye, measuring 3 cm by 4 cm. The applicant explained to the expert that his injuries had been caused by the three police officers who had physically assaulted him at the police station in the night of 15 August 2007, in particular by hitting his face against the wall. The expert concluded that the bruise and abrasions on the applicant’s face could have been sustained in the circumstances and at the time alleged by the applicant.

After the medical examination the applicant was taken back to the police station, where investigator N. told him that he must come back at 3 p.m. that day for questioning as a suspect and released him. His arrest was not recorded.

On the same day the applicant complained to the Ministry of the Interior of the Republic of Komi that he had been ill-treated at the police station. He also asked the traumatology unit of the hospital in Syktyvkar to record his injuries. According to the hospital medical records, the applicant had the following injuries: (i) an acentric fracture of the nose; (ii) a bruise on the forehead; and (iii) abrasions on the forehead.

On 17 August 2007 the applicant was arrested, questioned as a suspect and detained on remand by a court.

On 20 August 2007 the applicant’s mother complained to the Syktyvdinskiy district prosecutor’s office that the applicant had been illtreated at the police station. In her complaint she stated, inter alia, that at around noon on 16 August 2007 the applicant had returned home from the police station with bruises and abrasions on his body, and a print from a large boot on his T-shirt in the area of his stomach. The applicant had told her that he had been ill-treated at the police station.

On 29 August 2007 the prosecutor issued a refusal to open a criminal case against the lawenforcement officers, finding, in accordance with Article 24 § 1 (2) of the Code of Criminal Procedure, that none of the elements of the crimes provided for in Articles 286 and 302 of the Criminal Code (on abuse of powers and forced confessions respectively) had been present in respect of the actions of investigator N. or police officers S.I., K.L., S.A., Sh., and K.N. The decision relied on the following statements.

Investigator N. stated that he had interviewed the applicant after he had signed his “statement of surrender and confession”. The applicant had not complained of any physical violence against him. After the applicant’s forensic medical examination N. had talked to the applicant again and then released him. N. had not seen any injuries on the applicant, or a footprint on his T-shirt, during his interview or prior to his release from the police station. N. had heard about the applicant hitting his head against the wall later on from K.L. Investigator N. denied that the applicant had been put under any physical or psychological pressure.

The police officers denied subjecting the applicant to any illtreatment. S.I. stated that he had learned from K.L. that the applicant had struck his head against the wall. K.L. stated that he had learned from duty officer S.A. about the applicant striking his head against the bars of a cell. S.A. and Sh. stated that they had seen the applicant bang his head repeatedly against the bars and then against the wall in a room of the duty officer. While banging his head against the wall the applicant was allegedly shouting that he would complain to the prosecutor’s office that police officers had beaten him up.

The applicant’s mother challenged the refusal to open a criminal case against the police officers and investigator N. On 18 January 2008 the Syktyvdinskiy District Court dismissed her complaint.

On 4 March 2008 the Supreme Court of the Komi Republic granted an appeal lodged by the applicant’s mother and quashed the District Court’s decision, noting that no assessment had been made of the contradiction between the medical expert’s conclusions and the police officers’ allegations of the applicant’s self-harm. Nor had the court assessed the applicant’s medical record concerning the nose fracture, the allegation of the applicant having been kicked and having a footprint from a boot on his Tshirt, the presence of a video surveillance camera at the police station which should have recorded the incident, or statements by B. that he had heard the applicant screaming at the police station. The District Court had not taken into account circumstances which could have significantly influenced its conclusions and had not given reasons why, in so far as the conflicting evidence was concerned, it had given preference to some evidence whilst rejecting other. A fresh examination of the applicant’s mother’s appeal was ordered by a different composition of judges of the same court.

On 21 March 2008 the Syktyvdinskiy District Court ruled that the refusal to open a criminal case of 29 August 2007 had been unjustified for reasons largely similar to those cited by the Supreme Court. The court ordered the investigation authorities to rectify those deficiencies.

On 23 April 2008 the deputy prosecutor of the Komi Republic overruled the refusal of 29 August 2007 to open a criminal case.

On 24 April 2008 the investigative committee of the prosecutor’s office of the Komi Republic issued a new refusal to open a criminal case against the police officers and investigator N., finding, in accordance with Article 24 § 1 (2) of the CCrP, that none of the elements of the crimes provided for in Articles 130, 286 and 302 of the Criminal Code (on insulting behaviour, abuse of powers and forced confessions respectively) were present in their actions. It was noted that, according to information received from the Syktyvdinskiy district police department, the video surveillance recordings of the room of the duty officer and the cells for administrative offenders for the period from 15 to 16 August 2007 had not been preserved. Such records were normally kept for three days and then automatically deleted. It was concluded that the applicant had caused injuries to himself at the police station with the purpose of avoiding criminal liability for the crime which he had committed.

On 24 April 2008 the applicant was found guilty by the Syktyvdinskiy District Court.

The applicant’s mother challenged the second refusal to open a criminal case against the police officers and investigator N.

On 16 June 2008 the Syktyvdinskiy District Court dismissed her appeal. It examined the explanations given by the police officers and investigator N., and held that the allegations regarding the applicant’s illtreatment had not been substantiated. The court also noted that the allegation regarding the applicant’s forced confession had been examined during the applicant’s criminal trial and had been dismissed as unfounded in the judgment of 24 April 2008. The court further noted that the trial court had examined and endorsed the refusal of 24 April 2008 to open a criminal case against the police officers. Finally, the court concluded that the applicant’s allegations of ill-treatment had been designed to discredit the lawenforcement authorities. On 18 July 2008 the Supreme Court of Komi upheld that decision on appeal.

The judgment of 24 April 2008 in the applicant’s criminal case was subsequently quashed and remitted to the first-instance court for fresh examination. On 13 November 2008 the Syktyvdinskiy District Court convicted the applicant of sexual assault, specifially holding the victim to enable B. to sexually assault her, and sentenced him to four years and three months’ imprisonment. The applicant denied his guilt at trial, asserting that he had signed the “statement of surrender and confession” under physical pressure from the police officers and psychological pressure from investigator N. The trial court rejected the applicant’s arguments, relying on the refusal of 24 April 2008 to open a criminal case against the police officers and investigator N. The applicant’s “statement of surrender and confession” formed part of the evidence on which his conviction was based, and served as a mitigating circumstance. The applicant appealed against the judgment.

On 16 January 2009 the Supreme Court of the Komi Republic upheld the judgment on appeal, stating that it was irrelevant to the criminal case against the applicant whether or not the refusal to open a criminal case into his allegations of ill-treatment had been unfounded.


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

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra

The applicant is a lawyer who also writes articles for various Russian law journals and online legal information databases and networks.

According to the applicant, his work usually requires extensive scientific research, including in the field of law enforcement in the Khabarovsk Region. He supported his assertion with copies of contracts with well-known Russian publishing houses and owners of a number of legal magazines, including one supervised by the Secretariat of the President of the Russian Federation. Under the contracts he undertook the task of writing articles on specific topics of legal and social interest.

Having received an assignment to write an article on prostitution and the fight against it in the Khabarovsk Region, on 12 May 2009 the applicant wrote to the head of the Khabarovsk Region police department by registered letter, asking for statistical data for his research. The relevant parts read:

“[I am] interested in [receiving] information for the period between 2000 and 2009, in particular:

[information on] the number of people found administratively liable under Article 6.11 of the ... Code of Administrative Offences (prostitution), with a breakdown by sex, residence (residents of the Khabarovsk Region or visitors), nationality (nationals of the Russian Federation, foreigners or stateless persons) and the year [of the offence];

[information on] the number of criminal cases instituted during the abovementioned period under Articles 241, 242, 242.1 [and] 127.1 (cases related to sexual exploitation) of the ... Criminal Code, with a breakdown of the specific Articles ... and the year [the case was opened];

[information on] the number of individuals found criminally liable under Articles 241, 242, 242.1 [and] 127.1 ... of the ... Criminal Code, with a breakdown by sex, age, educational background, permanent residence (residents of the Khabarovsk Region or visitors), nationality and period [in which the crime was committed];

general information on sentences imposed on individuals found criminally liable under Articles 241, 242, 242.1 [and] 127.1 ... of the ... Criminal Code the types of sentences and in how many cases they were imposed, and the years [they were imposed].

[I] stress that I do not need any specific personal information about individuals found administratively or criminally liable; [I only need] general statistical information for writing a scientific article.”

It appears from an acknowledgement of receipt that the letter reached the Khabarovsk Region police department on 25 May 2009.

Under Russian law, State officials must provide a reply to letters from individuals within thirty days. In the absence of any response, on 26 June 2009 the applicant lodged a claim with the Tsentralniy District Court of Khabarovsk (“the District Court”), complaining that the police authorities had failed to provide him with the information he had requested and requesting for access. Relying on the Information Act (see below) and Article 10 of the Convention, he argued that the officials’ implied refusal to provide him with the information had been unlawful as he had not asked for access to any confidential personal information, State secrets or information related to internal police working methods. He claimed that his request had related purely to statistical data of a general nature collected by the Information Centre of the Khabarovsk Region police department (hereinafter “the Information Centre”).

On 18 July 2009 the applicant received a letter from the head of the Information Centre, notifying him that information as specific as he had asked for could only be collected on production of a written order issued by a deputy Minister of Internal Affairs, a head of a regional or municipal police department or their divisions or a prosecutor or investigator from a prosecutor’s office. The Information Centre did not collect such information at the request of private individuals. General statistical data summarised by the Information Centre was provided to the Federal Service of State Statistics and in particular its regional office for the Khabarovsk Region, to whom the applicant could apply for the statistical data.

On 19 July 2009 the applicant wrote to the Khabarovsk Region Service of State Statistics (hereinafter “the Statistics Service”) by registered letter, asking for the statistical data for his research.

On 23 July 2009 the head of the Statistics Service replied, stating that specific statistical information on the fight against prostitution had never been provided by the Khabarovsk Regional police department.

The applicant filed copies of his letters from the Information Centre and Statistics Service with the District Court.

On 4 August 2009 it dismissed the applicant’s claim on the grounds that the Information Centre was not authorised to process data requests from private individuals. Under domestic law, the Statistics Service was tasked with dissemination of official statistical data on a broad variety of subjects, including those falling within the applicant’s field of interest. It also noted that the applicant had failed to obtain the information sought from open sources, such as libraries, archives and the Internet. The District Court also stressed that the information requested did not touch upon the applicant’s rights and legitimate interests, so the authorities’ refusal to grant him access to such information had been lawful and well-founded under section 8(2) of the Information Act.

The applicant appealed, arguing, among other things, that the police authorities had exclusive possession of the information sought by him and that he had no other means, including through assistance from the Statistics Service, of obtaining the necessary data. In addition, he submitted that the fact that his rights and legitimate interests were not affected by the requested information had no bearing on the case as under Russian law, it was not only those directly concerned who were granted access to public information.

On 16 September 2009 the Khabarovsk Regional Court upheld the judgment of 4 August 2009. Relying on section 8(2) of the Information Act, it concluded that the authorities were not obliged to provide the applicant with the information as it did not touch upon his rights and legitimate interests.


Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Kristina Pardalos

The applicants, Mr Vasile-Sorin Ozon and Mr Ștefan Candea, are Romanian nationals, who were born in 1969 and 1979 respectively and live in Timișoara and Bucharest respectively. The applicants were represented by Mr D. Costea, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Mr RăzvanHoraţiu Radu.

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

The applicants, both investigative journalists, wrote a series of articles on the activities in Romania of certain individuals allegedly belonging to the Italian Mafia. The articles were edited by company E. and carried the headline “Italian Mafia – high-level connections in Romania” (Mafia italiană – legături la vârf în România).

The articles referred especially to P.B., who was alleged to have connections with the Italian Mafia and the Romanian political world. A Member of Parliament, C.N., was cited among the Romanian personalities mentioned as having connections with P.B.

One of the articles was published on 30 January 2002 in the national newspaper Evenimentul zilei. It was signed by the applicants and was worded as follows:

“We had always said that in our country there were active groups belonging to international mafia organisations, but until now nothing had been proved by the national authorities. Evenimentul zilei reveals for the first time the highlevel connections between an Italian criminal organisation and Romania, connections worthy of a gangster film. There is, on the one side, the organisation Cosa Nostra and on the other side the Romanian politicians and civil servants. In the middle there is a mysterious person, P.B. He is connected to persons with important positions in Cosa Nostra and in our country; he has connections at the highest level ...

The investigations carried out by the Romanian and Italian police, as well as our own research, have revealed that P.B. has many connections, including former and current high and local officials and businessmen: ... C.N., former export manager at R.B. before the 1990s and former manager of the Predeal State Protocol, and B.T.T., a current Member of Parliament ... and well-known businessman who owns four companies and is a shareholder in two other companies ...

We spoke with those who, according to our information, have connections with P.B., asking them questions about their trips to Italy and their relationship with P.B. ...

C.N.: I have not seen M.B. [P.B.] since 1995-96, when he came to see me. I know that there were discussions about going to Italy, but I did not participate. We were supposed to go to visit a certain plant, but I did not go. I did not get involved with M.B. in any business. We just talked. I met him in Brașov through an intermediary of the director of the newspaper Gazeta de Transilvania, H. He was, in general, on good terms with M. and P. and those from Brașov. They should know more. I saw him once or twice in Brașov and once in Bucharest. He knew many businessmen from Brașov. I know that he had a closer relationship with H., who was also a shareholder in bank A. B. was on good terms with the group that invested in bank A.

P.B.: I was not really involved with the parliamentarian C.N.”

That article was accompanied by a diagram showing the organisation and functioning of the Sicilian Mafia. The name P.B. was in the middle, surrounded by the names of those alleged to have connections with him. The name C.N. appeared at the perimeter.

On 13 February 2002, another article headlined “Deputy has businesses worth sixteen billion lei” was published in the same newspaper.

It was signed with the initials “C.O. & S.C.” and carried the subheading “C.N., a rich parliamentarian”. It was worded as follows:

“C.N., someone that knew P.B. who is associated with the Mafia, has a prosperous life. Exactly two weeks ago, Evenimentul zilei started writing every day about the infiltration of the Italian Mafia in Romania and its high-level connections. With the exception of the Romanian police, who started meticulously investigating certain companies but without releasing any information in that respect, nobody has done anything to bring this scandal to light. The activity of Cosa Nostra in Italy is probably not of interest to Romanians. Nevertheless, the activity of the members of this organisation and their contacts in Romania are of major interest. For this reason it is necessary to reveal P.B.’s connections in Romania.

Evenimentul zilei has shown that B. [P.B.], who helped members of Cosa Nostra with money-laundering activities in Romania, had connections with important persons in Romania, the most important being ... G.F. There were also other important persons on the list with P.B. about whom we will inform you later. We refer to R.M. ..., C.N. ..., H.F. and C.C. .... We will later reveal two of the most senior figures that know P.B. They are in important positions and one of them has businesses worth a great deal ...”.

On 15 February 2002 C.N. lodged a criminal complaint of defamation with the Brașov District Court against the applicants and the company E. that had published the articles. He alleged that the newspaper Evenimentul zilei had launched a press campaign seeking to denigrate him and that the articles contained unfounded accusations about his activities. He joined to the proceedings a civil claim for compensation in respect of nonpecuniary damage, amounting to 5,000,000,000 lei Romanian lei (ROL) (about 160,000 euros (EUR)).

At the public hearing of 5 September 2003, C.N. gave a statement to the court. He acknowledged that he had been interviewed by the journalists and that the quotations in the newspaper articles corresponded to his statements. However, he considered that the inclusion of his name in the organisational diagram was detrimental to his interests.

On 17 October 2003 the witnesses for the prosecution, C.V. and T.M., gave testimony in the presence of the applicants’ lawyer.

On 7 November 2003 the applicants’ lawyer submitted his written observations on the merits of the case.

By a judgment of 14 November 2003, the firstinstance court acquitted the applicants. It held that the intent to denigrate had not been proved in respect of the article of 30 January 2002. The court made reference to Article 10 of the Convention and held that the newspaper article concerned aspects of general interest. It also considered that the applicants had done their own investigation and interviewed all the persons involved, including C.N., and had faithfully reproduced their statements. It noted that C.N. had even stated before the court that the details presented in the articles were true.

The court held that the applicants’ statements had a factual basis. They were based on reliable sources of information and their purpose had not been to damage the reputation of C.N. It also held that the applicants had acted in good faith. After reiterating that a journalist’s work involved a certain degree of exaggeration, the court stressed that the applicants had been more critical in their analysis of C.N.’s behaviour in society and connections than they would have been in the case of a simple citizen, given that C.N. was a politician.

The court also held that an element of exaggeration had been used in the organisational diagram bringing together P.B.’s contacts in Romania.

With respect to the article of 13 February 2002, the court held that C.N. had not proved that the applicants had written the article. It acquitted the applicants on the ground that they had not committed the offence in question.

The court dismissed the civil claim lodged by C.N. on the ground that the applicants did not meet the requirements to be deemed to have civil liability.

C.N. lodged an appeal on points of law before the Brașov County Court on the ground that the investigation carried out by the applicants had been incomplete and that the published articles had tarnished his public image and reputation.

The applicants did not show any interest in the proceedings before the appellate court. Even if they had been duly summoned, they were absent from the proceedings and did not appoint a lawyer to represent them before the court. No new pieces of evidence were adduced before the appellate court.

By a final decision of 7 April 2004, the County Court upheld the applicants’ acquittal and allowed the appeal on points of law only with respect to the civil claim. It reiterated that the articles contained information of general interest and that the applicants had carried out their own investigation, obtaining information from competent authorities and C.N. It confirmed that the applicants’ intent had not been to defame the civil party. However, with respect to the civil claim, the appellate court considered that by publishing the organisational diagram of 30 January 2002, which had made it appear as if C.N. had connections with P.B., the applicants had exaggerated to a degree that had damaged the reputation of the civil party. C.N. was a public person and the publication of the articles had tarnished his image and reputation. The court observed as follows:

“... after the publication of the impugned articles, many persons (including parliamentarians, senators, members of the Chamber of Deputies and the Senate) discussed the civil party’s connection with the Italian Mafia.

This had multiple consequences: at local level, many colleagues in his political party did not want to speak to him, opposition Members of Parliament criticised him for his supposed connection with the Mafia, and discussions also took place on this topic within his own family.

In conclusion, it is obvious that the publication of these articles has tarnished the public image, honour and dignity of the injured party, as the articles generated suspicions that he had connections with the Italian Mafia. The allegations are particularly damaging because he is a Member of the Romanian Parliament.

The defendants did not intend to defame the injured party but they should have anticipated the result of their actions, namely the political scandal that was generated. However, they believed their reasoning based on presumptions to be correct, even though their investigation had not proven beyond doubt that the injured party had connections with the Italian Mafia.

Under Article 999 of the Civil Code, each person is responsible for damage he or she causes, not only with intent but also by negligence or carelessness. In conclusion, the defendants’ actions met the conditions of civil responsibility.”

In accordance with Article 346 § 2 of the Code of Criminal Procedure and Articles 999, 1000 and 1003 of the Civil Code, the appellate court ordered the applicants and the company that had published the newspaper to jointly pay the victim ROL 100,000,000 (about EUR 2,600).

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

(1) Criminal proceedings cannot be instituted, or continued if they have already been instituted, in the following situations:

(c) if the offence was not committed by the defendant;

(d) if the offence lacks one of the constitutive elements of a crime.

(1) If one of the situations described in Article 10 applies:

(2) During the trial the court shall decide:

(a) to acquit, in the situations described in Article 10, subparagraphs (a) to (e).

The final decision of the criminal court has the status of res judicata in the civil court that decides the joined civil action, as far as the existence of the act, the person who has committed it and his or her guilt are concerned.

(1) In the case of conviction, acquittal or discontinuance of the criminal trial, the court shall also decide on the civil action.

(2) When an acquittal has been pronounced for the reason given under Article 10 subparagraph (1)(b) or because the court has uncovered evidence that removes the criminal nature of the affair, or because one of the constituent elements of the offence is missing, the court can award compensation for pecuniary and non-pecuniary damage in accordance with the civil law.

(3) Civil damages cannot be paid in the event of an acquittal where the offence was either not committed or was not committed by the defendant.”

The relevant provisions of the Civil and Criminal Codes concerning defamation and liability for paying damages in force at the material time are described in Stângu and Scutelnicu v. Romania (no. 53899/00, §§ 30-31, 31 January 2006) and Barb v. Romania (no. 5945/03, §§ 19-20, 7 October 2008).


Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra

The applicant, Mr Franciscus van Velzen, is a Netherlands national, who was born in 1966 and lives in Delft. He is represented before the Court by Mr J.M. Lintz, a lawyer practising in The Hague.

The relevant facts, as submitted by the applicant and apparent from information submitted by the Government at the request of the Judge Rapporteur (Rule 49 § 3 (a) of the Rules of Court), may be summarised as follows.

The applicant lives on a caravan site. He is not married.

On 3 March 2008 a post office official handed a summons addressed to the applicant to another inhabitant of the caravan site, one Ms D. The official record of delivery states that the summons was handed to “Ms D., wife (echtgenote)”.

Ms D. lives together with the applicant’s brother, on the same caravan site but in a different caravan. Her postal address, which applies to the site as a whole, is the same as the applicant’s.

On 23 April 2008 the limited jurisdiction judge (kantonrechter) of Delft (a local dependency of the Regional Court (rechtbank) of The Hague whose jurisdiction includes minor offences (overtredingen) and small claims) convicted the applicant in absentia of “being the person in whose name a motor vehicle is registered for which a vehicle registration certificate has been issued, failing to subscribe to and maintain in force insurance in accordance with the Motor Vehicles (Third Party Liability Insurance) Act” (als degene aan wie het kenteken is opgegeven voor een motorrijtuig waarvoor een kentekenbewijs is afgegeven niet een verzekering overeenkomstig de Wet aansprakelijkheidsverzekering motorrijtuigen sluiten en in stand houden). The applicant was ordered to pay a fine of 380 euros (EUR) or undergo seven days’ detention in lieu.

The applicant appealed against the judgment on 28 May 2009 by setting out his grounds of appeal on a pre-printed form. The form states the following:

“I did not attend the hearing because:

[in handwriting] I did not know that the case was to be heard.

I would have liked to make the following submission:

[in handwriting] I do not even know which case it is.”

On 16 October 2009 the president of the Court of Appeal (gerechtshof) of The Hague gave a decision refusing the applicant leave to appeal. The decision was in the following terms:

“The President notes that the appellant did not appear at the first-instance hearing, although the summons was handed to a member of his household on 3 March 2008. The mere fact that the appellant has not made use of the opportunity offered for stating his defence does not justify a hearing on appeal. There is no appearance of any special circumstances that might justify offering him this possibility.

The President further notes that the appellant essentially wants nothing more than a rehearing of the case. An examination of the case based on the case file has not led the President to expect that a rehearing will lead to any other ruling than that given at first instance.

The President is not aware of any other reasons for which the interests of the proper administration of justice require the case to be heard in appeal.”

The judgment here in issue has not been executed; the Government have informed the Court that it will not be, pending the Court’s decision on the present application.

In its relevant part, Article 278 of the Code of Criminal Procedure provides as follows:

“1. The Regional Court shall determine whether the summons was validly delivered to the suspect who has failed to appear. If it is apparent that it has not been validly delivered, it shall declare the summons null and void. ...”

In its relevant parts, Article 588 of the Code of Criminal Procedure provides as follows:

“1. Delivery [sc. of a judicial notification] shall take place:

a. to the person who has been lawfully deprived of his liberty in the Netherlands in connection with the criminal proceedings to which the judicial notification relates and to the person who has been otherwise lawfully deprived of his liberty in the Netherlands in other cases determined by or pursuant to delegated legislation: in person;

b. to all others: in person or, if service otherwise than in person is allowed and the notification is presented in the Netherlands,

i. at the address where the addressee (geadresseerde) is registered as resident in the Personal Records Database (basisadministratie persoonsgegevens), or as the case may be,

ii. if the addressee is not registered as a resident in the Personal Records Database, at the permanent or temporary domicile (woon- of verblijfplaats) of the addressee, or as the case may be,

iii. if the addressee is not registered as a resident, to the Registrar of the Regional Court before which or within whose jurisdiction the case will be heard or was last heard.

If, in the situation referred to in paragraph 1, sub-paragraph b, under i or ii,

a. the addressee is not found, delivery shall be to any person present at that address who declares that he is prepared to forward the document to the addressee without delay;

b. no one is found, delivery shall be to the addressee or a person authorised by the addressee [to take delivery of it] at the place mentioned in a written message that shall be left at the address mentioned in the notification. Delivery to a person so authorised by the addressee shall count as service in person;

c. no delivery has proved possible, the notification shall be returned to the authority that sent it. If it is found that the addressee was, on the day of attempted delivery and at least five days thereafter, registered in the Personal Records Database as resident at the address mentioned in the notification, the notification shall then be delivered to the Registrar of the Regional Court before which or within whose jurisdiction the case will be heard or was last heard. The Public Prosecution Service shall then send a copy of the notification to that address without delay, which act shall be noted in the official record of delivery ...”

In its relevant part, Article 410a of the Code of Criminal Procedure provides as follows:

“1. If an appeal is possible and has been lodged against a judgment concerning only one or more minor offences or indictable offences (misdrijven) which, according to the statutory description, carry a sentence of imprisonment not exceeding four years, and no other sentence or measure has been imposed than a fine not exceeding – or, if two or more fines have been imposed in a single judgment, not exceeding a combined maximum – of EUR 500, the appeal lodged shall only be heard and considered if, in the considered opinion of the President, such is required in the interests of the proper administration of justice. ...”


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

The applicant, Mr Abraham Aho, is a Swedish national who was born in 1991 and lives in Södertälje. He was represented before the Court by Mr J. Karlsson, a lawyer practising in Stockholm.

On 23 December 2009, a person was murdered at a nightclub in Södertälje, Sweden, by a lone gunman (hereafter “the December 2009 murder”). The applicant, who belonged to a well-known criminal network in Södertälje, was arrested the same day as a suspect. He was held in pre-trial detention until 1 April 2010, with restrictions. Although released from pretrial detention on that date, he remained a suspect. On 14 December 2010 he was once again arrested and subsequently detained, with restrictions, on suspicion for the December 2009 murder as well as inter alia another murder. The prosecution against the applicant and several other defendants was brought on 16 November 2011.

With regard to the evidence against the applicant concerning the December 2009 murder, the prosecution, inter alia, relied on information provided by witness A., who was working at the nightclub on the night of the murder. A. told the first policeman to arrive at the crime scene that he wanted to tell another policeman, B., who the perpetrator was. On the same day, A. arrived at the police station. However, as B. was not present, he told policeman C. instead that the applicant was the perpetrator. A. had known the applicant since an early age. A. also made it clear to C. that he would not agree to be questioned formally by the police or be heard as a witness before a court. The reason was that he feared retribution from the criminal network to which the applicant belonged. C. took note of the information and a few days later A. repeated to policeman B. what he had seen on the night of the murder. During the period from 9 September 2011 to 19 April 2013, A. repeated this information to B., C. and a third policeman, D., on ten separate occasions.

The trial at Södertälje District Court (tingsrätt) started at the end of 2011 and lasted for approximately six months. On 1 August 2012, the applicant was convicted of the December 2009 murder, aiding and abetting a second murder, abduction and extortion. He was sentenced to 12 years’ imprisonment. Moreover, he was to remain in detention, with restrictions, until the judgment gained legal force.

The applicant appealed to Svea Court of Appeal (hovrätt), which found one of the lay judges at the District Court to be biased because he was also a member of a local police commission where, among other things, the criminal case against the applicant had been discussed. For that reason, on 5 October 2012 the Court of Appeal quashed the District Court’s judgment and referred the case back to the lower court for renewed proceedings. The applicant was to remain in detention, with restrictions.

The new proceedings started before a new composition of judges of the District Court at the beginning of 2013 and lasted for approximately six months.

Policemen B., C. and D. were heard as witnesses during the trial and they concordantly testified that A. had told them that the applicant was the perpetrator. However, despite numerous requests, A. refused to relay the information at a formal police hearing or at the trial. A. nevertheless appeared as a witness at the trial and was questioned by the prosecution and the defence. He denied that he had witnessed the murder.

On 29 August 2013, the applicant was once again convicted by the District Court of the December 2009 murder, aiding and abetting a second murder and abduction and extortion. This time, he was also convicted of aiding and abetting a third attempted murder. He was sentenced to 12 years’ imprisonment. Moreover, he was to remain in detention, with restrictions, until the judgment gained legal force.

The District Court noted in its judgment that the applicant had claimed that A. blamed him for the murder for reasons of revenge or loyalty. The court, however, found no indication of such motives. A. was deemed credible, and his explanation to the policemen B., C. and D. that he refused to testify because of fear of retribution was seen as convincing. The court also reasoned that the strength of the hearsay evidence was reduced as A. had not provided the information during a trial where cross-examination was possible. A.’s identification of the perpetrator was therefore not seen as evidence decisive enough, taken by itself, to prove the guilt of the applicant. In addition to the identification, however, there was circumstantial evidence. A. had given information about the perpetrator to the victim in the extortion crime of which the applicant was also convicted. Furthermore, the applicant had no alibi and, according to connections to telecommunication masts, he was a few minutes away from the nightclub around the time of the murder. The applicant had called a person who stored guns 15 minutes before the murder, stating that he was in a hurry and wanted to meet outside the applicant’s home. His mobile phone had thereafter been silent for the following 15 hours, which was very unusual for him. A few days earlier, the applicant had requested guns and ammunition, and he was able to handle guns. The District Court concluded that the circumstantial evidence, considered together with A.’s identification of the perpetrator, proved that the applicant was the murderer.

Upon appeal, the Court of Appeal held an oral hearing which lasted several months. The applicant’s restrictions were lifted on 27 May 2014 by the court. On 1 September 2014, the court upheld the lower court’s judgment as regards the applicant and he was ordered to remain in detention without restrictions until the judgment gained legal force.

The lower court’s evidence evaluation and conclusion were shared by the Court of Appeal, where video recordings of the witness testimony were shown. The appellate court further noted that the applicant’s mother had called his mobile phone at the time when the applicant had claimed he was sleeping in the apartment from which his mother was calling. Moreover, the court noted that the applicant had handed over his cell phones to a friend after the murder but before he was arrested, indicating that he did not want the police to get hold of them. With regard to the case as a whole, the court remarked that several injured persons and witnesses had refused to be questioned by the police or had retracted previous statements given to the police at the trial. According to the court, it was obvious that this was because of loyalty or fear of retribution. Several witnesses were accused of perjury.

The applicant appealed against the Court of Appeal’s judgment to the Supreme Court (Högsta domstolen) which, on 25 November 2014, refused leave to appeal.

The applicant appealed neither explicitly nor implicitly to the Supreme Court against the Court of Appeal’s decision to keep him in detention until the judgment gained legal force.

Chapter 35, section 1, of the Swedish Code of Judicial Procedure (Rättegångsbalken, 1942:740), reads as follows:

“After conscientious assessment of everything that has occurred, the court shall determine what has been proved in the case.

As to the effect of certain kinds of evidence, the specific provisions thereon shall apply.”

This provision reflects the principle of free submission and evaluation of evidence (principen om fri bevisföring och bevisvärdering) which prevails in Swedish procedural law. It means that, as a main rule, there are no restrictions in law on the submission and evaluation of evidence. Thus, anything that may be of value as evidence in a case may, in principle, be presented during the main hearing. However, the circumstances under which evidence has been collected or given will have an influence on the way in which it is evaluated. The “principle of best evidence” (principen om bästa bevismedlet) is applied; consequently, witnesses and injured parties should normally give evidence during a court hearing, rather than the court reading the statements made during the preliminary investigation, to enable the parties to pose questions and scrutinise the statements more closely.

Moreover, according to Chapter 35, section 7, of the Code of Judicial Procedure, a court may dismiss evidence, inter alia, if the circumstance that a party wants to prove is without importance in the case, if the evidence is unnecessary or if it clearly would be to no effect.