Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra

The applicants are a mother, Ms J.A., born in 1963, and her two daughters R. and P., who were born in 1996 and 1999, respectively. All three applicants are Iranian nationals and are currently in the Netherlands. The President of the Section decided that the applicants’ identity should not be disclosed to the public (Rule 47 § 4 of the Rules of Court). The applicants were represented before the Court by Ms I. Schalken, a lawyer practising in Apeldoorn.

The Dutch Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, and Deputy Agent, Ms L. Egmond, both of the Ministry of Foreign Affairs.

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

On 25 November 2013, the applicants applied for asylum in the Netherlands. The examination and comparison of the applicants’ fingerprints and the verification of their identity in the European Union Visa Information System by the Netherlands authorities disclosed that on 24 July 2013 the Italian mission in Teheran had issued them with a visa for Italy. On 29 November 2013, the Deputy Minister for Security and Justice (Staatssecretaris van Veiligheid en Justitie) rejected the applicants’ asylum requests, finding that, pursuant to Council Regulation (EC) no. 343/2003 of 18 February 2003 (“the Dublin Regulation”), Italy was responsible for the determination of the applicants’ asylum request. The Minister rejected the applicants’ argument that they risked treatment in breach of Article 3 of the Convention in Italy. The Minister also rejected as unsubstantiated the first applicant’s claim that she was dependent on the care of her sister who was living in the Netherlands since 1994.

The applicants’ appeal against the decision of 29 November 2013 and the accompanying request for a provisional measure were rejected on 23 January 2014 by the provisional measures judge (voorzieningenrechter) of the Regional Court of The Hague sitting in Zwolle, who upheld the Deputy Minister’s decision and reasoning. The provisional measures judge also rejected the first applicant’s argument that her medical situation did not allow her transfer to Italy, finding that the copy of her medical file submitted offered no concrete indication that in her case adequate treatment could not take place in Italy.

The applicants’ further appeal to the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State was rejected on 28 February 2014. The Division found that the appeal did not provide grounds for quashing the impugned ruling (kan niet tot vernietiging van de aangevallen uitspraak leiden). Having regard to section 91 § 2 of the Aliens Act 2000 (Vreemdelingenwet 2000), no further reasoning was called for as the arguments submitted did not raise any questions requiring a determination in the interest of legal unity, legal development or legal protection in the general sense. No further appeal lay against this decision.

The application was introduced to the Court on 17 March 2014 and, on the same day, the applicants requested the issue of an interim measure within the meaning of Rule 39 of the Rules of Court.

On 2 April 2014, the President of the Section decided to adjourn the determination of the Rule 39 request pending the submission of factual information by the Government under Rule 54 § 2 (a) of the Rules of Court concerning certain practical aspects of the applicants’ transfer to Italy.

The Government submitted their answers on 15 April 2014. A copy was transmitted for information to the applicants.

On 16 April 2014, the applicants were notified by the Departure and Repatriation Service (Dienst Terugkeer en Vertrek) of the Ministry of Security and Justice that their transfer to Italy had been scheduled for 22 April 2014.

On 17 April 2014, the President of the Section decided, under Rule 39 of the Rules of the Court, to indicate to the Netherlands Government that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Court not to remove the applicants to Italy until further notice. The President also decided under Rule 54 § 2 (a) to put additional factual questions to the Government about practical aspects of the applicants’ removal to Italy.

The Government submitted their answers on 9 May 2014 and the applicant’s written comments in reply were submitted on 10 June 2014.

On 3 December 2014, additional factual questions were put to the Government concerning the practical effects given to the Court’s judgment of 4 November 2014 in the case of Tarakhel v. Switzerland ([GC], no. 29217/12, ECHR 2014 (extracts)).

In their reply of 7 January 2015, the Government indicated that, following the Tarakhel judgment and where a case concerned a transfer of a family with minor children to Italy, the Netherlands authorities would only transfer such a family after guarantees had been obtained from the Italian authorities that the family would remain together and that information was available about the specific facility where the family was to be accommodated, in order to guarantee that the conditions there were suited to the age of the children. For this reason, the actual transfer to Italy was announced ten to fifteen days beforehand in order to give the Italian authorities the opportunity to provide information on the specific facility where the family was to be accommodated, to guarantee that the conditions in this facility were suitable and to guarantee that the family would not be split up. If these guarantees were not received within the time-limit for transfers as laid down in the Dublin Regulation, the persons involved would be channelled into the Netherlands asylum procedure. However, as long as a Rule 39 indication was in place, the Government was not in a position to commence the preparations for the applicants’ transfer to Italy.

The applicants’ comments in reply were submitted on 3 February 2015. They stated that no such guarantees had been obtained yet in respect of their transfer to Italy but that, in their view, such guarantees should be obtained before taking the actual transfer decision and not shortly before a scheduled transfer date.

Having noted these submissions, the Chamber decided on 24 March 2015 to lift the Rule 39 indication.

By letter of 5 August 2015, the Government submitted a copy of a circular letter dated 8 June 2015 and sent by the Dublin Unit of the Italian Ministry of the Interior (Ministero dell Interno) to the Dublin Units of the other member States of the European Union, in which the Italian Dublin Unit set out the new policy of the Italian authorities on transfers to Italy of families with small children. In its relevant part, the Netherlands Government’s letter reads as follows:

“A new policy was considered necessary in view of the fact that reception facilities, specifically reserved for such families, frequently remained unavailed of as a result of families having left for an unknown destination prior to transfer, or having obtained a court order barring their transfer. In order to safeguard appropriate facilities where families may stay together, the Italian authorities earmarked a total of 161 places, distributed over twenty-nine projects under the System for Protection of Asylum Seekers and Refugees (SPRAR). The authorities confirmed that this number will be extended should the need arise. As may be inferred from the letter of 8 June, this comprehensive guarantee is intended to avoid the need for guarantees in specific cases.

The Dutch Dublin-Unit will continue to inform its Italian counterpart at an early stage of an intended transfer of a family with minor children. On 13 July 2015, the Dutch, German and Swiss migration liaison officers to Italy issued a report on SPRAR in general, including on the requirements the accommodations must fulfil, and on two projects they had visited on the invitation of the Italian Government. It is understood that later this year also the European Asylum Support Office (EASO) will report on the matter.

The Government is of the opinion that the new Italian policy will adequately safeguard that families with minor children are kept together in accommodations appropriate to their needs.”

On 21 August 2015, the applicants informed the Court that they had been notified on 11 August 2015 that they should report to the police for the purpose of their placement in aliens’ detention (vreemdelingenbewaring) for the purpose of their transfer to Italy. They further requested the issue of an interim measure within the meaning of Rule 39 of the Rules of Court.

On 25 August 2015, the President of the Section decided to adjourn the determination of the applicants’ fresh Rule 39 request pending the submission of factual information by the Government under Rule 54 § 2 (a) of the Rules of Court concerning certain practical aspects of the applicants’ transfer to Italy.

The Government submitted their replies on 27 August 2015. They informed the Court that the applicants’ removal had been scheduled for 9 September 2015, that the Italian authorities had been informed that the transfer concerned a single mother with one adult and one minor daughter. They further submitted a copy of the standard form – prescribed under Article 31 of Regulation (EU) no. 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the member State responsible for examining an application for international protection lodged in one of the member States by a third-country national or a stateless person – in which the Italian authorities had been notified on 4 August 2015 of the applicants’ transfer to Italy. Under the heading “State of health of the person(s) to be transferred” the following is stated:

“Please note that this concerns a mother with two daughters, of which one is a minor (Tarakhel). The mother did not sign a declaration of consent to give you any information, however due to vital interest I would like to inform you that she has threatened with suicide concerning the transfer. She is not co-operative and will be escorted. She has explained that her daughters do not have any health issues.”

The applicants’ comments on the Government’s submissions of 5 and 27 August 2015 were submitted on 31 August 2015. They considered that the new policy set out in the circular letter sent by the Italian authorities on 5 June 2015 only contained guarantees of a general nature and that it was likely that the 161 places referred to in that letter would be far from enough. They submitted that no individual guarantees had been obtained and that it had not been guaranteed that the first applicant would be provided with adequate mental health care. They further informed the Court that the second and third applicants were attending school in the Netherlands and that, in their opinion, a transfer to Italy would not be in their interest.

Having noted the parties’ submissions, the President of the Section decided on 31 August 2015 to reject the applicants’ fresh Rule 39 request.

The relevant European, Italian and Netherlands law, instruments, principles and practice in respect of asylum proceedings, reception of asylum-seekers and transfers of asylum-seekers under the Dublin Regulation have recently been summarised in Tarakhel, cited above, §§ 28-48); Hussein Diirshi v. the Netherlands and Italy and 3 other applications ((dec.), nos. 2314/10, 18324/10, 47851/10 & 51377/10, §§ 98-117, 10 September 2013); Halimi v. Austria and Italy ((dec.), no. 53852/11, §§ 21-25 and §§ 29-36, 18 June 2013); Abubeker v. Austria and Italy (dec.), no. 73874/11, §§ 31-34 and 3741, 18 June 2013); Daybetgova and Magomedova v. Austria ((dec.), no. 6198/12, §§ 25 29 and §§ 32-39, 4 June 2013); and Mohammed Hussein v. the Netherlands and Italy ((dec.), no. 27725/10, §§ 25-28 and 33-50, 2 April 2013).


No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses)

András Sajó;Egidijus Kūris;Iulia Motoc;Marko Bošnjak;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1959 and is currently detained in Dob prison.

The applicant was engaged in a business providing online sexual services, which was registered in Všenory in the Czech Republic. He cooperated with certain Dutch and American enterprises. In September 2001 a dispute arose between the applicant and his Dutch partners, one of them being H.C.Z., who wished to discontinue their cooperation. After meeting H.C.Z., together with his bodyguard E.M.L., also a Dutch national, in Prague on 14 September 2001, the applicant connected one of the studios involved in the production to the network of his American partner.

On 18 September 2001 the applicant, his brother M.Š. and another Slovenian citizen, A.S., were in a villa in Všenory where the applicant had set up his studio. The applicant had arranged another meeting with H.C.Z., so in the evening the latter appeared at the villa accompanied by his bodyguard E.M.L. Ms M.S. and another three persons were also present in the villa. The applicant, M.Š., H.C.Z. and E.M.L. then met in the bedroom, where H.C.Z. was shot dead.

After the shooting, the applicant, M.Š. and A.S. fled the scene of the crime and eventually returned to Slovenia. Bruised and scared, E.M.L. was later that evening found by police hiding in nearby bushes.

During the preliminary investigation, on 19 and 20 September 2001 the Czech authorities questioned E.M.L., who stated that H.C.Z. had been killed by the applicant. E.M.L. provided a detailed description of the applicant and an account of the events at issue. He stated that he had come to Prague together with his boss H.C.Z. and had made the applicant’s acquaintance a few days before the shooting, adding that at the first meeting the applicant had appeared hostile to him. E.M.L. met the applicant briefly once again before the evening of 18 September.

According to E.M.L., on the evening in question, the applicant asked for a meeting with H.C.Z., so he and E.M.L. drove to the villa in Všenory. The door was opened to them by a young man, who was later identified as A.S. A woman whom they had also met before – Ms M.S. – was sitting in the living room. H.C.Z. was called into the bedroom, while E.M.L. waited outside the open bedroom door. The applicant and another man E.M.L. did not know were standing in the room. E.M.L. described the other man as looking a lot like the applicant, almost his twin, only older. While that man neither spoke nor did anything, the applicant immediately pulled a gun from behind his back, aimed at H.C.Z.’s forehead, and fired at him. After the first shot, E.M.L. turned around and started to run. In the corridor he passed A.S. and ran out through the main door, to the street and into the bushes. E.M.L. stated that he had heard another shot being fired before he escaped from the villa. He then saw the applicant and A.S. follow him, but after a ten-minute search they left, and soon afterwards he heard a car driving away from the villa very fast.

The investigators also examined a number of other witnesses involved in the applicant’s business, among whom M.S., who stated that the applicant had a particular interest in firearms. On the day of the shooting, M.S. was in the living room together with the applicant, A.S., and the applicant’s brother M.Š., whom she described as a man looking older than the applicant. When the doorbell rang, A.S. opened the door and two men entered the living room. According to M.S., the applicant and M.Š. were in the bedroom when H.C.Z. and E.M.L. entered the living room. H.C.Z. stepped forward into the bedroom, while E.M.L. stood at the bedroom door. Immediately after H.C.Z. entered the bedroom, M.S. heard four to five shots. E.M.L. ran away, and the applicant and A.S. followed him. According to M.S., M.Š. also ran after E.M.L., with a gun in his hand. Another two women and a man were present at the house and heard the shots, but did not witness the shooting. They stated that A.S. and the applicant would not allow them to call the police at first, but after the three men left one of the women called the police.

In addition to taking statements from the witnesses, the Czech authorities examined and recorded the scene of the crime, and performed a forensic examination of H.C.Z.’s body and a ballistic examination of the bullets and cases found at the scene of the shooting. After the investigation was concluded, the competent prosecutor charged the applicant with the murder of H.C.Z. The indictment was served on his court-appointed lawyer on 10 October 2001. However, since the applicant was eventually found to have gone back to Slovenia and voluntarily begun serving a prison sentence for an unrelated offence, the Czech authorities contacted the Slovenian authorities, seeking to take over the proceedings against the applicant.

In January 2002 jurisdiction over the case was transferred to the Novo Mesto District Court. When questioned by the investigating judge on 2 August 2002, the applicant stated that H.C.Z. and E.M.L. had come to the villa threatening them. E.M.L. was carrying a gun and forced the applicant to lie down on the floor, while H.C.Z. ran into the bedroom. The applicant heard some commotion and then a few shots were fired. A few moments later E.M.L. left the villa. The applicant followed him out and saw another, unknown man standing outside by the car. The applicant understood that E.M.L. had ordered the other man to bring reinforcements and kill the people in the villa. E.M.L. then went towards the nearby woods. The applicant went back inside and saw H.C.Z.’s dead body in the bedroom. The applicant, M.Š. and A.S. later drove away in their car, but were afraid to go to the police for fear of being killed.

In a statement made on 26 June 2002 the applicant’s brother M.Š. confessed to the murder of H.C.Z. He was subsequently questioned by the investigating judge on 21 August 2002 and stated that he had been woken up by the arrival of H.C.Z. and E.M.L. The day before, he had bought a gun for protection from the applicant’s business competitors, which he had put under the pillow. Hearing the visitors, M.Š. tucked the gun into his belt and got out of bed. The door to the bedroom suddenly opened and H.C.Z. came into the room, while another, dark-skinned man (E.M.L.) stood at the door, holding something in his hand. M.Š. heard someone say “He’s got a gun”, and understood that it was E.M.L. who was holding a gun. M.Š. pulled out his own gun and pointed it at H.C.Z. to show that he would defend himself if attacked. However, H.C.Z. laughed and approached him, so M.Š. fired a warning shot at the floor. H.C.Z. nevertheless came close to him and hit him in the face. M.Š. then fired a shot at him in self-defence; nevertheless H.C.Z. attacked him and tried to push him to the ground. When M.Š. managed to break free from H.C.Z.’s grip, he fired again, this time hitting H.C.Z. who staggered away and fell to the bed. M.Š. stated that he was holding the gun at waist level, trying at the same time to get free from H.C.Z.’s grip, and that the shots were fired from that position.

According to M.Š., he and H.C.Z. were the only two people in the bedroom, the applicant and A.S. having been forced to lie down on the floor by E.M.L. When M.Š. looked in to the other room they were getting up from the floor. The applicant and A.S. told M.Š. that another person was standing in front of the villa. They were all scared, so they packed their things and drove away. M.Š. added that he had thrown the gun away at their first stop on the motorway, still in the Czech Republic.

On 20 September 2002 A.S. was questioned by the investigating judge and stated that he had opened the door when the bell rang. The applicant also came out of the bedroom. H.C.Z. and E.M.L. entered the villa, E.M.L. ordering A.S. and the applicant to lie on the floor in the corridor. E.M.L. was holding a gun. H.C.Z. moved forward into the living room. A.S. then heard two or three shots being fired inside the villa. He waited a few moments and when he lifted his head, E.M.L. was gone. M.Š. came out into the corridor, holding a gun in his hand. The applicant, A.S. and M.Š. then went into the bedroom to check on H.C.Z., whom they found dead.

On 1 October 2002 the district state prosecutor’s office lodged an indictment charging the applicant with murder. At the trial hearing conducted by the Novo Mesto District Court the applicant changed his statement, claiming that when the doorbell had rung he had been in the bedroom collecting some business-related documents, while his brother M.Š. had been lying on the bed. He had heard hissing sounds from the other room, so he went out to check what was happening, but was stopped at the bedroom door by H.C.Z., who grabbed him by the chest with one hand and signalled to E.M.L. with the other. H.C.Z. dragged the applicant out of the bedroom and across the living room and then he went back into the bedroom. The applicant saw his brother get up from the bed and point his gun at H.C.Z. Meanwhile, E.M.L., who had a gun in his hand, ordered the applicant to lie down on the floor. Kneeling down, the applicant saw H.C.Z. hit M.Š. in the bedroom, and he also saw that M.Š. was holding a gun. Then he heard four shots. After the shooting stopped, E.M.L. ran away, shouting that they were all finished. The applicant, who followed him out, saw a silhouette of another man standing beside a car parked outside. The applicant, M.Š. and A.S. were afraid of retaliation for H.C.Z.’s death, so they quickly escaped.

When faced with inconsistencies between his previous statement made during the investigation and the account he gave at the trial, the applicant explained that he had not wished to implicate his brother in H.C.Z.’s death and that he had been in poor health when he had given his previous statement.

The applicant’s brother M.Š. again asserted that he had thrown the gun with which he had shot H.C.Z. away once they had reached the motorway and started to feel safer. Moreover, M.Š. stated that he did not think that he could be mistaken for his brother, as the applicant was more strongly built and dressed in a higher-class way.

On the basis of the forensic analysis of the crime scene and the case file submitted to the Slovenian authorities by the Czech authorities, a forensic ballistic report was prepared by a ballistic expert, F.S. He found that H.C.Z. had suffered three gunshot wounds, one to the front of his chest, another to the right side of his stomach and the third to his left arm. The expert found that H.C.Z. had been shot in the stomach at a range of less than 10 cm; however, the gun barrel did not touch his body at the moment of impact. However, the bullets which had hit H.C.Z.’s left arm and chest were fired from more than 50 cm away. Considering that two bullets and three cartridge cases were found at the crime scene, F.S. presumed that one shot hit the wall either directly or after causing a wound to H.C.Z.’s left arm, and that the force of the impact caused the bullet to shatter. Another bullet was found in H.C.Z.’s chest, while the bullet that had entered his stomach had exited his body under the shoulder blade. According to the expert, at the moment of the shooting H.C.Z. was entering the room, while the shooter was inside the room, firing all three shots while standing. Having regard to these considerations, F. was of the view that the account of the events given by E.M.L. was both possible and likelier than the account given by M.Š., which was not possible at all. No shot had been fired at the floor, and no shot had been fired while the shooter and H.C.Z. were in direct contact as described by M.Š.

Furthermore, a medical report establishing the cause of H.C.Z.’s death was prepared, also on the basis of the Czech case file. Medical expert A.Š. found that H.C.Z. had died as a result of internal bleeding which was due to trauma caused by gunshot wounds to his body. He was hit by two or three bullets, twice from a distance of more than 50 cm and once from a distance of less than 10 cm. Given the direction of the bullets and the angle at which they entered H.C.Z.’s body, A.Š. concluded that the shooter and the victim were standing facing each other and that the victim was approximately 20 cm taller than the shooter. Also, A.Š. confirmed that the injuries to H.C.Z.’s body were consistent with the account given by E.M.L., while M.Š.’s account did not correspond to the forensic conclusions.

E.M.L. was summoned to the trial hearing but did not appear. The applicant nevertheless requested the opportunity to cross-examine him in order to clarify the circumstances of the shooting and the exact positions of everyone who was in the bedroom at the material time. M.S. and two other witnesses did not appear at the trial hearing either. The trial court decided to read out the statements they had given during the investigation.

On 17 January 2003 the Novo Mesto District Court found the applicant guilty of murdering H.C.Z. and sentenced him to thirteen years’ imprisonment.

Both the district prosecutor and the applicant appealed against the judgment, and on 12 June 2003 the Ljubljana Higher Court granted the prosecutor’s appeal, increasing the applicant’s prison sentence to fifteen years.

The applicant lodged a request for the protection of legality (appeal on points of law, an extraordinary legal remedy) before the Supreme Court, which was granted on 19 May 2005. The applicant’s complaint that he should have been given the opportunity to cross-examine E.M.L. and other foreign witnesses was found to be well grounded, and the case was remitted to the District Court for re-examination with the instruction that the applicant be given the opportunity to cross-examine E.M.L., who was considered the key witness in the case against him.

During the re-trial, the Novo Mesto District Court obtained a ballistic report prepared by the Czech experts, which corresponded to the conclusions of the Slovenian expert F.S. about the number of shots fired and the trajectories of the bullets. The applicant, however, who by then had regained his liberty, obtained a report prepared by another ballistic expert, V.M., who criticised on certain points of the report prepared by the expert F.S. In particular, V.M. took the view that the shots could have been fired from a closer range than that established by F.S., and that the latter’s conclusion that H.C.Z. had been standing at the moment of impact was not supported by the available material evidence. In this light, the applicant requested the District Court to appoint a new ballistic expert and to perform a special 3D reconstruction of the crime scene.

The District Court also summoned E.M.L., M.S. and a certain A.B., who had also been involved in the internet services featuring interactive sexual content, to testify at the hearing scheduled for 15 November 2005. However, on that date none of the witnesses appeared before the court, so the District Court requested legal assistance from the Czech and Dutch judicial authorities, asking its foreign counterparts to hear the three witnesses in the applicant’s presence.

On 13 January 2006 M.S. was questioned by the Local Court in Hradec Králové, Czech Republic, in the presence of the applicant and his counsel. M.S. again testified that on the evening of the events at issue, H.C.Z. and E.M.L. had come into the living room asking for the applicant. Then H.C.Z. went into the bedroom, while E.M.L. stopped at the door. M.S. did not remember hearing any voices, but immediately after H.C.Z. stepped inside M.S. heard four or five shots being fired in the bedroom. M.S., frightened, went into the corner of the room and saw E.M.L. running through the room, followed by the applicant, A.S. and M.Š., who was holding a gun. However, M.S. pointed out that she could not see into the bedroom and could not say who had fired the shots.

On 28 March 2006 the investigating judge of the Regional Court of The Hague, examined E.M.L., who gave essentially the same account of events as during the investigation, reiterating that he was entirely convinced that the person who had shot H.C.Z. was the applicant, while another man very similar to the applicant had also been present in the bedroom where the shooting had taken place. E.M.L. declared that he would not be willing to appear at the trial in Slovenia or in the Czech Republic because he was afraid for his life, adding that he was ready to cooperate, but only in the Netherlands.

The investigating judge also heard A.B., who had testified that the applicant had worked for him in the Czech Republic but had then tried to take over his business and had threatened him several times, also with a gun. Moreover, A.B. stated that he had warned H.C.Z. about the applicant, but the latter would not be intimidated and left for Prague anyway.

At the hearing on 12 April 2006 the Novo Mesto District Court established that the applicant and his counsel had not been notified about the questioning of E.M.L. and A.B. due to the urgency of the matter. The court decided to request the Dutch authorities to give the applicant the opportunity to cross-examine those witnesses; however, the investigating judge of the Regional Court of The Hague refused to allow the applicant to attend the examination in person, finding that the witnesses’ safety could be at risk and that they might not be willing to give a statement. Having been informed about the decision of the Dutch investigating judge, the applicant insisted, at the hearing on 16 June 2006, that he should be given the opportunity to personally confront E.M.L., or else the latter’s statement should be excluded from evidence.

The second examination of E.M.L. and A.B. on 4 July 2006 was conducted in the presence of the applicant’s counsel, who asked them a number of questions, some of which had been previously prepared by the applicant. A.B.’s testimony mostly concerned his and the applicant’s role in the business they had been involved in in the Czech Republic. As regards E.M.L.’s testimony regarding the shooting of H.C.Z., it was to a large extent consistent with his previous statements; however, when asked to identify on the floor plan of the bedroom where the shooting had taken place the location of the applicant and that of his brother M.Š., E.M.L. showed opposite positions to the ones he had shown when questioned by the Czech police in 2001 and by the Dutch investigating judge for the first time. Alerted to the similarity between the applicant and his brother, E.M.L. responded that he had definitely recognised the applicant at the material time. When asked if he could still recognise the applicant and M.Š. and distinguish between them, E.M.L. responded that he had only seen the applicant twice, but thought that he could recognise him, although he could not say so with certainty. However, he acknowledged that as he had only seen the applicant’s brother M.Š. once, and that very briefly, he was not certain he could still tell the difference between them. Lastly, E.M.L. emphasised again that he was not willing to attend the trial in Slovenia, adding that neither would he consent to being questioned by video link if that meant that the applicant could see him.

E.M.L.’s and A.B.’s statements were later read out at the hearing before the Novo Mesto District Court in accordance with the rules of domestic criminal procedure (section 340 § 1 of the Criminal Procedure Act) which provide that a witness’s statement may be read out if he or she lives abroad and fails to appear at a hearing despite being duly summoned. Hearing E.M.L.’s testimony, the applicant commented that E.M.L. had switched the positions of himself and his brother during the shooting, which meant that he had confused the two brothers for one another.

Meanwhile, on 24 April 2006 the Šmarje pri Jelšah Traffic Police stopped the applicant and found a gun in his car. The applicant told the officers that the gun had been used in the 2001 murder in the Czech Republic. He further alleged at the trial that his brother M.Š. had told him where he had discarded the gun back in 2001. Returning from the Czech Republic, where he had been at the hearing of M.S., the applicant had gone to find the gun. M.Š. supported the applicant’s account of events by specifying that he had not thrown the gun away, as previously stated. He had in fact hidden it under a concrete plate and had later drawn a map showing the approximate location of the gun, so that the applicant would be able to find it. Ballistic expert F.S. established that the gun corresponded with the model and the calibre used in the murder of H.C.Z. Moreover, the gun was clean and oiled, with no traces of corrosion or any other imperfections. F.S. thus concluded that the gun could not have been left out in the open for several years. The Czech ballistic experts confirmed that the bullets and cartridge cases submitted to them by the Slovenian authorities matched the bullets and cartridge cases found at the crime scene and in H.C.Z.’s body, and had undoubtedly been fired from the same weapon.

Moreover, ballistic expert F.S. and medical expert A.Š. were heard by the Novo Mesto District Court and explained the conclusions of their reports. The applicant, not persuaded by their statements, reiterated his request for further ballistic analysis and a 3D reconstruction of the crime scene; however, the District Court dismissed his request.

On 12 September 2006 the Novo Mesto District Court delivered a judgment finding the applicant guilty of H.C.Z.’s murder and sentenced him to fifteen years in prison. Noting that the applicant could not be present at the examination of E.M.L. and A.B. in the Netherlands because of the decision of the Dutch investigating judge, which fell beyond the jurisdiction of the Slovenian courts, the District Court nonetheless concluded that since the applicant’s counsel was present and moreover had submitted questions written by the applicant to both witnesses, the applicant’s defence rights were not violated.

Moreover, the District Court explained that it had refused the applicant’s request for a 3D forensic reconstruction because ballistic expert F.S.’s request for another ballistic expert to be appointed, the District Court pointed out that any doubts raised by the ballistic report prepared by the defence’s expert V.M. had been removed by the questioning of experts F.S. and A.Š. at the hearing.

In its conclusion that it was the applicant who had shot H.C.Z., the District Court relied on the testimony given by E.M.L. The court noted that, when cross-examined by the applicant’s counsel, E.M.L. had confused the position of the applicant and M.Š. on the floor plan of the bedroom, but nonetheless found that his statement regarding the identity of the shooter was persuasive, since he had known the applicant and had maintained throughout the proceedings that he had seen him pulling a gun and firing a shot at H.C.Z. The account given by E.M.L. was further corroborated by forensic evidence and the testimony of M.S. regarding the sequence of events. Moreover, it was noted that M.S. had not seen E.M.L. carry a gun, as had been alleged by the applicant, M.Š. and A.S.

As regards the applicant’s motive for shooting H.C.Z., the District Court examined in great detail his role in the business in which he had been involved, and referred to his apparent dispute with the Dutch partners. Finally, the court pointed out numerous discrepancies between the applicant’s statements given during the investigation and at the trial, and the fact that the gun with which H.C.Z. had been killed had been found in the applicant’s possession. The District Court did not believe the applicant’s and M.Š.’s statement that the gun had been hidden under a concrete plate alongside a Czech motorway and then found years later, intact and oiled, by the applicant. As regards M.Š.’s testimony, the court found it unreliable. In particular, it found that M.Š.’s account of the shooting was not supported by the forensic evidence taken at the scene of the crime or by the entry and exit wounds found on H.C.Z.’s body.

The applicant appealed against the judgment, raising, inter alia, the argument that he should have had the opportunity to cross-examine E.M.L. in person, either in the courtroom or by video link.

On 1 February 2007 the Ljubljana Higher Court dismissed the applicant’s appeal. It found that the District Court had properly assessed the evidence, and that the applicant’s defence rights had not been violated on account of his inability to cross-examine E.M.L. in person. It noted that the grounds relied on by the investigating judge in The Hague, who refused to allow the applicant’s presence at the examination, were identical to those provided in section 178 § 4 of the Slovenian Criminal Procedure Act. It concluded that the applicant’s defence rights had been safeguarded by the attendance of his lawyer at E.M.L.’s examination. It further noted that E.M.L. had provided credible and consistent testimony, which had not been refuted by any of the expert reports; in addition, his account of the events leading to the shooting and his escape from the villa was confirmed by M.S.

On 24 January 2008 the Supreme Court decided on the applicant’s request for the protection of legality. It rejected the applicant’s complaint of a violation of his defence rights due because he did not have the opportunity to cross-examine the main witness for the prosecution, finding that the applicant had been familiar with E.M.L.’s testimony and had had an adequate and sufficient opportunity to effectively challenge it through the assistance of his counsel. Moreover, in response to the applicant’s assertion that E.M.L. had confused him for his brother, the Supreme Court observed that E.M.L. had been viewed by the lower courts as a reliable and credible witness because his testimony had been consistent throughout the proceedings, including his identification of the applicant as the shooter. Moreover, E.M.L.’s statement had been corroborated by other evidence, in particular by M.S.’s testimony. The Supreme Court emphasised that the defence had been acquainted with E.M.L.’s initial statement given to the Czech authorities and thus in the position to effectively challenge the reliability and veracity of his testimony. In the Supreme Court’s opinion, the applicant’s counsel had used this opportunity at the hearing of E.M.L. in The Hague, where she had asked, inter alia, a number of questions relating to the reliability of E.M.L.’s identification of the shooter. Therefore, although the applicant had not been present during E.M.L.’s cross-examination, the Supreme Court was convinced that his rights of defence had not been violated.

The applicant subsequently appealed to the Constitutional Court, which on 6 April 2010 declared his constitutional complaint inadmissible.


Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Impartial tribunal;Independent tribunal)

Jon Fridrik Kjølbro;Ledi Bianku;Paul Lemmens

The applicant was born in 1985 and lives in Denizli.

On 13 June 2009 the applicant was dismissed from the Expert Gendarmerie School due to non-compliance with disciplinary rules. Subsequently, he initiated proceedings before the Supreme Military Administrative Court and requested the annulment of the dismissal decision.

On 15 April 2009 the Supreme Military Administrative Court rejected the applicant’s request, taking into account the “secret documents” submitted by the Ministry of Defence. These documents were not disclosed to the applicant. This decision was served on the applicant on 7 May 2009.


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

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

All the applicants were parties to civil proceedings in which the firstinstance and appeal courts found in their favour. These judgments became binding and enforceable but were subsequently quashed by the supervisory review courts on the grounds of incorrect application of substantive law or incorrect assessment of evidence by lower courts (for more details see the Appendix).


Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)

Jon Fridrik Kjølbro;Julia Laffranque;Stéphanie Mourou-Vikström

The applicant was born in 1992 and lives in Istanbul.

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

On 7 December 2009 the applicant was arrested.

On 9 December 2009 the applicant was placed in detention on remand by the judge at the Istanbul Assize Court on suspicion of committing crimes on behalf of an illegal terrorist organisation, disseminating propaganda for the same organisation, storage of hazardous materials, and damage to public property.

On 30 December 2009 the Istanbul public prosecutor filed his indictment with the Istanbul Assize Court.

On 6 May 2010 the first hearing was held before the Istanbul Assize Court. At the end of the hearing the court ordered the continuation of his detention in the presence of the applicant.

The applicant filed an objection against this decision. On 20 May 2010 the 10th Chamber of Istanbul Assize Court dismissed this objection without holding an oral hearing. In delivering its decision, the court took into consideration the written opinion of the public prosecutor, which had not been communicated to the applicant or his representative.

On 10 December 2010 the applicant was released from detention on remand.

At the time when the application was lodged, the proceedings against the applicant were still pending before the first-instance court.


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

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

The applicants complained of the excessive length of civil proceedings and lack of an effective domestic remedy to complain about it. The applicants also raised other complaints under the provisions of the Convention.


CASE OF MIRZAYEV AND OTHERS v. AZERBAIJAN

Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

The applicants’ dates of birth and places of residence are given in the Appendix.

At the material time the second applicant was a member of an opposition group Nida. The third applicant was a member of an opposition group İctimai Palata; he was also one of the organisers of several demonstrations held in Baku.

The first and the second applicants participated in a demonstration organised by the opposition on 20 October 2012. Prior to that assembly, on 15 October 2012, the organisers gave notice to the relevant authority, the Baku City Executive Authority (“the BCEA”). The BCEA refused to authorise the holding of the demonstration at the place indicated by the organisers and proposed a different location on the outskirts of Baku – the grounds of a driving school situated in the 20th residential area of the Sabail District. Nevertheless, the organisers decided to hold the demonstration as planned.

The second applicant also participated in demonstrations held on 12 January and 26 January 2013. The third applicant participated in a demonstration held on 30 April 2013. The organisers of those demonstrations gave no proper prior notice to the BCEA. Information about the demonstrations was disseminated on the internet or in the press.

According to the applicants, the demonstrations were intended to be peaceful and were conducted in a peaceful manner. The participants of the demonstration of 20 October 2012 were demanding democratic reforms in the country and free and fair elections, and protesting against impediments on freedom of assembly. The demonstration of 12 January was aimed at protesting about the deaths of soldiers in the army, while the demonstration of 26 January 2013 condemned the use of force by the police against the participants of previous demonstrations. The participants of the demonstration of 30 April 2013 were commemorating the victims of a terrorist attack which had been committed in 2009 at the Azerbaijan State Oil Academy.

The police began to disperse the demonstrations of 20 October 2012, 12 January, 26 January and 30 April 2013 as soon as the protesters began to gather.

The circumstances related to the dispersal of the demonstration of 20 October 2012, the first and second applicants’ arrests and custody, and subsequent administrative proceedings against them are similar to those in Gafgaz Mammadov v. Azerbaijan (no. 60259/11, 15 October 2015) (see also Appendix).

The circumstances related to the dispersal of the demonstrations of 12 January, 26 January and 30 April 2013, the second and third applicants’ arrests and custody, and the subsequent administrative proceedings against them are similar to those in Bayramov v. Azerbaijan ([Committee] nos. 19150/13 and 52022/13, 6 April 2017) (see also Appendix).


CASE OF A.W.Q. AND D.H. v. THE NETHERLANDS

No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Afghanistan)

Branko Lubarda;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicants are a married couple and were born in 1956 and 1966 respectively. They have been in the Netherlands since 1999.

The applicants and their three children (two daughters, A and B, born in, respectively, 1992 and 1993, and a son C, born in 1997) entered the Netherlands on 17 December 1999 and, on 26 December 1999, applied for asylum, fearing persecution within the meaning of the 1951 Geneva Convention Relating to the Status of Refugees (“the 1951 Convention”) and/or treatment in breach of Article 3 of the Convention from the mujahideen and/or the Taliban in Afghanistan on account of the first applicant’s professional activities during the former communist regime.

The first applicant submitted that he had become a member of the communist People’s Democratic Party of Afghanistan (“PDPA”) in 1978 and that, as a conscript, he had served in a battalion in Kabul from 1978 to January 1981. Feeling a moral obligation to serve his country, he had subsequently decided to join the army for a professional military career.

From March to December 1981 he had taken a preparatory course for university studies in the Soviet Union, which had mainly consisted of Russian language lessons. He had subsequently been sent by the Director of Political Affairs of the General Staff of the Ministry of Defence to the Minsk Higher Combined Arms Military Political School in Belarus, where he had studied between 1982 and 1986. On 5 July 1986 he had graduated with a Master’s degree in pedagogic and social sciences.

Holding the rank of captain, the applicant had been assigned to Division 5, which was responsible for controlling the border between Afghanistan and Iran. From September 1986 to December 1989 the first applicant had worked in that area in the political affairs division of the border security unit. He had been responsible for cultural matters, including propaganda, combating illiteracy amongst soldiers, and the creation of patriotic awareness amongst them. He had further been given the task of persuading deserters who had been caught to do their military service in the Afghan army. The first applicant stated that he had apprehended about 300 such deserters between 1986 and 1989, and that he had only failed in respect of fifteen of them to persuade them to do their military service. These fifteen individuals had been handed over to the Military Public Prosecutor. In 1988 he had been promoted to the rank of senior captain.

In 1990 he had been appointed first secretary or deputy scientific officer of the Army Museum in Kabul, which fell under the responsibility of the propaganda division of the Ministry of Defence. He had been responsible for collecting weapons for the museum. He had later been promoted to deputy director of the museum and, holding the rank of major, had worked in that function until 1992.

The first applicant’s problems had started after the mujahideen had taken power in 1992. Mujahideen had come to the army museum to take exhibits which they thought were valuable as weaponry or otherwise. When they recognised the first applicant as an army officer who had worked for the former regime, the mujahideen had incarcerated him – together with three other officers and a soldier – in the basement of the museum. He had been released after a week. The mujahideen had wanted him to cooperate with them by helping them to take arms and ammunition out of the museum. He had refused all such requests, which had led to aggressive behaviour towards him on the part of the mujahideen. The first applicant had repeatedly reported this attitude to these mujahideen’s superiors in the Ministry of Defence, namely two generals with whom the first applicant had collaborated during the former communist regime. These two generals had both remained in their position at the Ministry of Defence and were working with the Hezb-e-Harakat-e-Islami of Ahmad Shah Massoud. After the museum had been placed under the control of a mujahideen commander, the first applicant had resigned in March 1994 and taken the keys of the museum to the Ministry of Defence, to be given to one of the two generals.

The second applicant – who had also applied for asylum on behalf of the applicants’ children – had worked as a guide in the same army museum in Kabul when the city was captured in 1992 by the mujahideen. Under pressure from the mujahideen and in the footsteps of her husband, she had also resigned from her job in 1994.

Shortly after the first applicant had resigned from his post in the museum, the applicants received a written death threat in the courtyard of their house: the house was destroyed a few days later. After a brief stay with the second applicant’s father in another neighbourhood of Kabul, the applicants moved in March 1994 to Kunduz, which was under the control of followers of Ahmad Shah Massoud, who – like the applicants – was of Tajik origin. In Kunduz, the applicants lived off the income generated by land owned by the first applicant’s family, and the first applicant, admittedly not out of any financial necessity, opened a small shop in order to have something to do.

In April or May 1998 – after the Taliban had seized power in Kunduz on 26 June 1997 – two of the first applicant’s cousins appeared at the applicants’ house together with eight to ten Taliban. According to the first applicant, he had been betrayed by these two relatives. They had informed the Taliban of his position under the former communist regime and his whereabouts. The Taliban conducted a search for weapons in the applicants’ house. Although they found none, the Taliban arrested the first applicant and his brother. They were separated shortly after their arrest.

During his detention by the Taliban, for the first two weeks in a basement on a military base in Kunduz and subsequently in the Kunduz prison, the first applicant had been interrogated, ill-treated and forced to perform hard labour. As it happened sometimes that in the evening hours two or three detainees were taken away from the cell they shared with the applicant and others and were never seen again, the first applicant feared for his life during his detention.

On a date he could not remember, the first applicant was taken before a tribunal composed of four mullahs, who interrogated him whilst he was being ill-treated. He was subsequently forced to place his fingerprint on documents, most of which were written in Arabic.

During his subsequent transport in a convoy consisting of five cars from Kunduz to a prison in Kabul, the first applicant had managed to escape when the convoy had come under armed attack, he believed by followers of Ahmad Shah Massoud. The first applicant had then fled to Mazar-i-Sharif, where he had been joined by his family on 7 November 1999. On 12 November 1999 the applicants and their children had left Afghanistan.

The first applicant was interviewed by Dutch immigration officials about his flight and the motives for it on three occasions; the second applicant on two occasions. On 8 January 2004 they were informed of the intention (voornemen) of the Minister for Immigration and Integration (Minister voor Vreemdelingzaken en Integratie) to refuse them asylum. Having noted the first applicant’s asylum account, an official general report (ambtsbericht), drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs on “Security Services in Communist Afghanistan (1978-1992). AGSA, KAM, KhAD and WAD” (“Veiligheidsdiensten in communistisch Afghanistan (1978-1992), AGSA, KAM, KhAD en WAD”), and two different person-specific official reports (individuele ambts-berichten), DPC/AM 635082 and DPC/AM 696035, both drawn up by the Ministry of Foreign Affairs on 15 December 2000, the Minister decided to refuse the first applicant asylum and to hold Article 1F of the 1951 Geneva Convention relating to the Status of Refugees (“the 1951 Refugee Convention”) against him. On 4 February 2004, a lawyer acting on behalf of the applicants submitted written comments (zienswijze) on this intention.

After interviewing both applicants once more, the Minister rejected their asylum applications, in separate decisions taken on 17 February 2004. The elaborately argued notices of intention of 8 January 2004 were added to the decisions and formed part of them.

The Minister found, inter alia, that the first applicant constituted a danger to public order (openbare orde), as serious reasons had been found for believing that he had committed crimes referred to in Article 1F of the 1951 Refugee Convention, thus excluding him from international protection under the 1951 Convention . Although the Minister attached credence to the first applicant’s statements in terms of his positions and career within the Afghan army, the applicant’s description of his tasks was deemed to be inaccurate. His statements relating to certain of the tasks he said he had performed (namely his stated activities relating to what was called the PDPA’s national reconciliation policy, amnesty, reconstruction and demilitarisation) were found to be highly implausible.

On the basis of the two person-specific official reports of 15 December 2000, the Minister found that, at the relevant time, the political affairs divisions of the Afghan army consisted solely of highly loyal and skilled professional soldiers, that people working for these divisions regularly provided the security service KhAD/WAD with person-specific and general information (“Khadimat-e Atal’at-e Dowlati / Wezarat-e Amniyat-e Dowlati”; the KhAD was set up in 1980 and transformed in 1986 into a ministry called “WAD”, which remained in existence until the communist regime fell in 1992. Although the WAD was the successor of the KhAD, the security service continued to be commonly referred to as KhAD); those working for the political affairs divisions had relatively easy access to the PDPA leadership, and one of their tasks had been to remove anti-government soldiers from the army, if need be with the help of the KhAD. They were thus inextricably connected to the frequent arrests, torture, disappearances and/or executions of disloyal members of the army by the KhAD.

The Minister emphasised the widely known cruel character of the KhAD, its lawless methods, the grave crimes it had committed such as torture and other human rights violations, and the “climate of terror” which it had spread throughout the whole of Afghan society, including the army. The Minister underlined the vague definition of “enemy of the communist regime” used by the KhAD, how it found those enemies through an extensive network of spies, and how all of this led to widespread and often random arrests of suspects. The Minister relied in this regard on the general official report of 29 February 2000.

Having established, on the basis of elaborate argumentation based on various international documents, that those involved in KhAD and the political affairs divisions of the Afghan army were likely to fall within the scope of Article 1F of the Refugee Convention, the Minister proceeded to an analysis of the first applicant’s individual responsibility under that Convention on the basis of the prescribed test known as the “personal and knowing participation test”.

On this point, the Minister found that, in view of the contents of the aforementioned official reports of the Ministry of Foreign Affairs, the first applicant had known or should have known about the criminal character of the KhAD, given his position in one of the political affairs divisions of the army and the contacts he had maintained professionally. The Minister further found that the first applicant had directly facilitated the crimes committed by KhAD by performing his tasks in the Afghan army, inter alia the attributed task of arresting and persuading deserters trying to flee across the border to continue military service, failure of which led to the handing over of these deserters to the office of the Military Public Prosecutor.

As regards Article 3 of the Convention, the Minister noted that, during an additional interview on his asylum motives held on 1 July 2003, the first applicant had been explicitly invited to submit specific evidence that he would be exposed to a risk of treatment contrary to Article 3 in Afghanistan. The Minister found that the first applicant had not furnished sufficient specific grounds to establish that he would run a real risk of treatment contrary to this provision if returned to Afghanistan. Thus, he had failed to indicate which specific persons or groups would be looking for him, and had only stated in generally phrased terms that he feared persecution by the mujahideen. In respect of the first applicant’s alleged fear of returning to Afghanistan as a (former) member of the PDPA, the Minister held that the first applicant was in a position not dissimilar to that of many other Afghan nationals. Furthermore, the Minister, with reference to the most recent general official report on Afghanistan issued by the Ministry of Foreign Affairs on 12 November 2003, held that the sole fact that an asylum seeker had been a member of the PDPA did not in itself suffice to render Article 3 applicable in the eventuality of an expulsion.

Separate appeals by the applicants were rejected in two distinct judgments handed down on 4 August 2005 by the Regional Court (rechtbank) of The Hague, sitting in Assen.

As regards the first applicant, the Regional Court accepted the Minister’s decision to hold Article 1F of the 1951 Refugee Convention against the first applicant. It also rejected the first applicant’s arguments based on Article 3 of the Convention. It agreed with the Minister that the first applicant’s fear that he would be subjected to treatment in breach of this provision was based on assumptions, and that he had not submitted any specific evidence of the identity of the person(s) or group(s), or for what reasons, he expected to encounter problems if he were returned to Afghanistan, whereas – according to an official country assessment report on Afghanistan issued by the Ministry of Foreign Affairs on 12 November 2003 – mere membership of the PDPA and active participation in its regime was in itself not enough to raise an issue under Article 3 of the Convention in the event of expulsion of the alien in question. It further rejected, for lack of substantiation, the first applicant’s claim that the International Security Assistance Force (ISAF) in Afghanistan would be unable to provide him with sustained protection.

Further separate appeals by the applicants were rejected on summary reasoning on 19 December 2005, in two distinct rulings given by the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State). It found that the further appeals did not provide grounds for quashing the impugned rulings (kan niet tot vernietiging van de aangevallen uitspraak leiden). Having regard to section 91 § 2 of the Aliens Act 2000 (Vreemdelingenwet 2000), no further reasoning was called for, as the arguments submitted did not raise any questions requiring a determination in the interest of legal unity, legal development or legal protection in the general sense. No further appeal lay against these rulings.

On 2 February 2006, the applicants’ fourth child, a daughter named Mina, was born in the Netherlands.

On 29 August 2006, the applicants applied for a regular, non-asylum-related, residence permit. This request was rejected on 6 January 2007. The applicant’s objection (bezwaar) was dismissed on 4 December 2007 by the Deputy Minister of Justice (Staatssecretaris van Justitie). The applicants initially lodged an appeal with the Regional Court of The Hague, but withdrew this appeal on 15 July 2008.

In the meantime, on 19 February 2008, the second applicant had submitted a fresh asylum claim for herself and on behalf of the three youngest children. The applicants’ eldest daughter had made her own asylum claim. Pursuant to section 4:6 of the General Administrative Law Act (Algemene wet bestuursrecht), a repeat claim – like the one submitted by the second applicant – must be based on newly emerged facts and/or altered circumstances (“nova”) warranting a reconsideration of the initial refusal. The asylum claim submitted by the second applicant and her eldest daughter was based on the claim that they had become westernised. The oldest daughter further claimed that she feared being forced into marriage.

On 17 September 2010, after an initial negative decision had been quashed on appeal, the Minister of Justice allowed the asylum claim submitted by the second applicant and the three youngest children. The eldest daughter was also granted asylum.

More than a year earlier, namely on 12 February 2009 and at the applicants’ request, the President of the Chamber had decided to indicate to the Government of the Netherlands that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to remove the applicants to Afghanistan for the duration of the proceedings before the Court (Rule 39 of the Rules of Court). At the same time, the President had decided under Rule 54 § 2 (b) that the Government should be invited to submit written observations on the admissibility and merits of the case.

Also, on 27 February 2009 the first applicant had submitted a fresh asylum claim, based on the alleged deterioration in the general security situation in Afghanistan and an increased individual risk of treatment prohibited by Article 3, namely the fact that he was an ex-communist, that he was an atheist and thus belonged to a religious minority, and the fact that he had lived abroad for a long period. He also claimed that, due to his work, he was well known in Afghanistan and was prominent in Afghan circles in the Netherlands. On 19 February 2010, the first applicant was informed of the intention of the Deputy Minister of Justice to reject this request. The first applicant submitted written comments (zienswijze) on this intention on 6 April 2010.

This request was rejected on 22 October 2010 by the Minister for Immigration, Integration and Asylum Policy (Minister voor Immigratie, Integratie en Asiel). An appeal by the first applicant against this decision was rejected on 31 October 2011 by the Regional Court of The Hague sitting in ‘s-Hertogenbosch. It found that the first applicant had not shown evidence that the general security situation in Afghanistan had deteriorated since the determination of his first asylum request, or that the further elements relied on by him did not constitute “nova” warranting a reconsideration of the decision taken on his initial asylum request. In so far as the first applicant relied on Article 8 of the Convention, the Regional Court held that asylum proceedings offered no scope for such arguments, which should be raised in proceedings on a request for a non-asylum-based residence permit, and that it was open for the first applicant to apply for a residence permit based on his family life within the meaning of Article 8. A further appeal by the applicant was dismissed by the Administrative Jurisdiction Division on 31 October 2012. No further appeal lay against this ruling.


Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence;Article 6-3-b - Adequate facilities;Adequate time;Article 6-3-c - Legal assistance of own choosing)

The applicant was born in 1973 and lives in Baku.

Demonstrations were planned to be held on 31 July 2010 and 10 March 2013 in Baku.

On 23 July 2010 the organisers, consisting of several members of opposition parties, gave notice to the relevant authority, the Baku City Executive Authority (“the BCEA”), of the demonstration of 31 July 2010. It appears that no prior notice was given to the BCEA by the organisers of the demonstration of 10 March 2013. Information about that demonstration was disseminated via Facebook or the press.

The BCEA refused to authorise the demonstration of 31 July 2010 at the places indicated by the organisers and proposed three other locations on the outskirts of Baku – a stadium situated in the Binagadi District, a square near Zigh Road in the Khatai District, and the yard of a driving school situated in the 20th habitable area of the Sabail District. The BCEA noted that of the locations proposed by the organisers at which to hold the assembly, the squares were all designated public leisure areas and the other places were areas with heavy traffic.

The organisers nevertheless decided to hold the demonstrations in the centre of Baku.

According to the applicant, the demonstrations were intended to be peaceful and were conducted in a peaceful manner. The participants of the demonstration of 31 July 2010 were demanding free and fair elections and democratic reforms in the country. The participants of the demonstration of 10 March 2013 were protesting over the deaths of numerous soldiers in the army.

The applicant attended both demonstrations, but shortly after they had begun the police started to disperse those who had gathered. In both cases the applicant was arrested during the dispersal operation and was taken to a police station, where he was questioned.

In both cases on the day of the applicant’s arrest, an administrative offence report (inzibati xəta haqqında protokol) was issued on him. In the first case the report stated that by deliberately failing to comply with a lawful order of the police, the applicant had committed an administrative offence under Article 310.1 of the Code of Administrative Offences (“the CAO”). In the second case he was charged with an administrative offence under Article 298.2 of the CAO (participation in a public assembly organised not in accordance with the law).

According to the applicant, he was never served with copies of the administrative offence reports or with other material from his case files. In both cases he was not given access to a lawyer after the arrest or while he was in police custody.

In the first case the applicant was brought before the Sabail District Court on 31 July 2010, the day of his arrest. In the second case he was held in police custody overnight and brought before the Sabail District Court on 11 March 2013, the day after his arrest.

According to the applicant, the hearing before the court in both cases was very brief. In the second case members of the public were not allowed inside the courtroom, even though the court had not taken a formal decision to close the hearing to the public.

According to the applicant, in both cases he was not given an opportunity to appoint a lawyer of his own choosing.

At the court hearing in the first case the applicant was not represented by a lawyer. According to the material submitted to the Court by the parties, he refused legal assistance.

It appears that at the court hearing in the second case a State-funded lawyer was invited to represent the applicant. None of the material submitted to the Court contain any records showing that the State-funded lawyer, Ms E.Z., made any oral or written submissions to the first-instance court.

At the hearings in both cases the court did not question any witnesses.

By a decision of 31 July 2010 the first-instance court convicted the applicant under Article 310.1 of the CAO and sentenced him to seven days’ administrative detention. By a decision of 11 March 2013 the same court convicted the applicant under Article 298.2 of the CAO and sentenced him to seven days’ administrative detention.

On unspecified dates the applicant lodged appeals with the Baku Court of Appeal, arguing that his convictions were in violation of his rights because the demonstrations in which he had participated had been peaceful. The applicant also complained that his arrests had been unlawful and that the hearings before the first-instance court had not been fair.

In the first case the applicant was not represented by a lawyer. In the second case the applicant prepared his appeal with the assistance of a lawyer of his own choosing, but that lawyer did not attend the hearing.

On 16 August 2010 and 27 March 2013 respectively the Baku Court of Appeal dismissed the applicant’s appeals and upheld the decision of the first-instance court.

According to the applicant, the decision of the Court of Appeal of 16 August 2010 was sent to him on 23 December 2010, after he complained that the court had failed to serve him with that decision.


George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Yonko Grozev

On 16 May 2006 the applicant’s husband filed a petition for divorce with the Larnaca Family Court. This was on the ground that his marriage to the applicant had broken down irretrievably because, among other reasons, he and the applicant had been separated for five years (that is, one year longer than the minimum period required by law: see relevant domestic law and practice at paragraph 25 below).

The case was set for a directions hearing on 14 June 2006. On that date the applicant appeared in person and asked for additional time to file her defence to the petition: the Family Court acceded to her request and adjourned the hearing to 4 October 2006.

On 14 June 2006 the applicant applied to the Family Court for legal aid. The hearing of that legal aid application was fixed for 15 September 2006. On 15 September the applicant appeared before the court and asked for a one-month extension as she was not sure if she would maintain her application. The court adjourned the legal aid hearing to 19 October 2006.

On 4 October 2006, the applicant attended court and requested a further extension for filing her defence to the petition on the ground that her legal aid application was pending. The court adjourned the case to 1 November 2006 and directed that the applicant file her defence by that date.

The applicant did in fact decide to maintain her legal aid application. When this legal aid application came before the Family Court on 19 October 2006, the court considered that the application came within the scope of the Law on Legal Aid (see relevant domestic law and practice at paragraph 23 below) so it instructed the Welfare Office to prepare a social welfare report on the applicant and adjourned the hearing of the legal aid application to 17 November 2006.

The applicant failed to file her defence to the petition for divorce by 1 November 2006 as directed. She also failed to appear in court on that date. In her absence, counsel for the applicant’s husband requested that the case be set for trial. The court acceded to this request and a trial date of 22 November 2006.

The legal aid application came before the court on 17 November 2006 as scheduled. The applicant attended court. However, because no one from the Welfare Office was present, the court adjourned its examination of the application to 21 December 2006.

On 22 November 2006 the applicant did not appear at court for the trial in the main proceedings. The applicant’s husband attended with counsel. In the applicant’s absence, the court proceeded to hear the evidence of her husband who stated that the couple had been suffering problems and had been separated since December 2000. No other witnesses were heard. The court gave an ex tempore judgment granting the petition for divorce.

Although the petition for divorce had been granted, the hearing in the legal aid application went ahead as scheduled on 21 December 2006. The applicant was not present at court. A representative of the Welfare Office informed the court that, from a letter in the court file dated 20 December 2006, which had been sent by a welfare officer to the court registrar, it appeared that the applicant was no longer interested in receiving legal aid. The court accordingly dismissed the legal aid application for want of prosecution.

On 29 December 2006 the applicant appealed against the Family Court’s judgment to the Family Court of Appeal. She was legally represented on appeal.

The applicant submitted two grounds of appeal: that the Family Court had wrongly proceeded with the hearing of the petition for divorce in her absence, and that it had wrongly decided on the dissolution of the marriage. In respect of both grounds, she submitted that the Family Court had acted in breach of Article 30 of the Constitution (the right of access to court and to a fair trial: see paragraph 22 below), the Law on Legal Aid, and the rule of natural justice, including the right to be heard (audi alteram partem).

In the reasons accompanying her grounds of appeal, she again made reference to Article 30 of the Constitution and the right of litigants to present their case before the court and to be defended by counsel. The applicant again submitted that the rules of natural justice safeguarded the right to be heard. She further stated that she had informed the Family Court that she had applied for legal aid. She had been under the impression that her legal aid application would be examined by the same bench that would hear the petition for divorce. As the legal aid application had been fixed to be examined at a date subsequent to the date the divorce petition was fixed (21 December for the legal aid hearing as against 22 November for the divorce petition hearing), she presumed that the divorce petition would be examined following the granting of legal aid so she could file a defence through a lawyer. It was for this reason that she had not appeared in court on 1 and 22 November 2006.

On 21 September 2007, the applicant’s husband died. In his will he bequeathed part of his property to another woman. As a consequence of the divorce, the applicant was not entitled to inherit from his estate or to receive a widow’s pension. The applicant maintained her appeal against the Family Court’s judgment.

On 19 December 2008, the Court of Appeal directed the parties to file skeleton arguments (written outlines of their submissions), in effect accepting the applicant’s notice of appeal. The Court of Appeal further directed that once the skeleton arguments were submitted, the appeal was to be set down for a hearing.

In her skeleton argument dated 9 January 2009, the applicant developed her ground of appeal relating to Article 30, stating that the Family Court had acted contrary to Articles 30(1) (the right of access to court), Article 30(3)(b) (the right to present one’s case and to have sufficient time for its preparation), and Article 30(3)(d) (the right to counsel and to free legal assistance). She relied on both the relevant case-law of the Cypriot courts on these provisions and on the relevant case-law of this Court on the corresponding provisions of Article 6 of the Convention, including Airey v. Ireland, 9 October 1979, Series A no. 32. In respect of her submission as regards the rules of natural justice, she referred to Halsbury’s Laws of England (4th ed., Vol 1, § 76) and the court’s duty to provide every party with a fair chance to set his case before the court.

A hearing on the merits of the appeal took place before the Court of Appeal on 6 March 2009. At the hearing, the applicant adopted her written submissions. Counsel for the applicant’s ex-husband submitted that Airey could be distinguished on the basis that the Convention did not grant a general right to legal aid and, in any event, the present case was not so complex as to require it. The hearing was adjourned to 8 May 2009. On that date, counsel for the applicant provided the court with copies of the relevant case-law cited in the applicant’s written submissions. No further submissions were made and the court reserved judgment.

On 30 June 2009 the Court of Appeal dismissed the appeal. It found:

“It is the appellant’s position that she had informed the court that she had submitted an application for legal aid and, because she believed that her application would be examined by the court which would examine the substance of the petition for the dissolution of the marriage, she failed to appear on 1 November 2006, with the consequence that the case was heard in her absence and the petition for divorce was granted against her.

Regarding the allegations of violation of the provisions of Law 165(I)/2002 and the principles of natural justice, no specific reasons have been put forward which could substantiate the above allegations, which are accordingly dismissed.

Regarding the alleged violation of Article 30 of the Constitution, the appellant has not specified which particular paragraph has been violated and this allegation is dismissed for vagueness. Independently of this conclusion, we have already made detailed reference to what took place both in the proceedings concerning the application for legal aid and the divorce proceedings. From the above, it appears that judgment under appeal was the result of the complete indifference of the appellant to respond to the directions of the Court to file her defence and her failure to appear before the court. The appellant cannot claim that her failure to appear was due to the fact that she believed that the divorce petition would be examined by another court.

The appeal is dismissed with costs.”


András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens

The applicant, Mr Slavko Slavkovic, is a Serbian national, who was born in 1980 and lives in Ebikon, Canton of Lucerne. He was represented before the Court by Mr Franz Dörig, a lawyer practising in Lucerne.

The Swiss Government (“the Government”) were represented by their Agent, Mr Frank Schürmann, of the Federal Office of Justice.

On 20 September 2010 the Government of Serbia were informed of their right to intervene in the proceedings, in accordance with Article 36 § 1 of the Convention and Rule 44 § 1(b) of the Rules of Court. On 18 October 2010 the Government of Serbia informed the Court that they did not wish to exercise their right to intervene in the present case.

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

On 10 April 2006 the applicant was detained in Bad Feilnbach (Germany) on the basis of an international arrest warrant issued by the Sursee district authority (Amtsstatthalteramt Sursee (Switzerland)) on 1 May 2003. According to the arrest warrant, the applicant was suspected of having committed the offences of serious assault, endangering the life of another person and damaging property, because he had allegedly participated in a brawl on 2 March 2003 in Sursee and shot one of the victims in the leg during the fracas.

On 19 July 2006 the applicant was convicted in Germany of a number of offences, including illegal entry, illegally staying in the country and forgery of a document.

On 11 September 2006 the German authorities extradited the applicant to Switzerland. On 12 September 2006 his lawyer was appointed to represent him. That same day the Sursee Prefect (Amtsstatthalter) ordered that the applicant be placed in pre-trial detention. In the detention order the Prefect established that the applicant was suspected of having committed a number of offences, including serious assault and endangering the life of another person. The applicant’s pre-trial detention was considered to be further justified because serious concerns existed that he would seek to evade the criminal proceedings by absconding or compromise the efforts of the investigation if left at large.

Based on the same reasons, an application for immediate release from pre-trial detention made by the applicant on 14 September 2006 was dismissed by the Prefect on 18 September 2006.

On 15 September 2006 the applicant appealed against the Prefect’s detention order to the Court of Appeal for the Canton of Lucerne (Obergericht, hereinafter “the Court of Appeal”). He claimed that the requirements for detaining him had not been fulfilled in a number of respects.

The Court of Appeal invited the public prosecutor to submit observations on the applicant’s appeal. On 20 September 2006 the public prosecutor sent an e-mail to the Prefect in response. In this e-mail he stated the following:

“Good morning A.

As stated yesterday on the phone, I have been asked to submit before tomorrow, 21 September 2006, observations on the representative’s appeal in the pre-trial detention matter regarding S.S. [Slavkovic Slavko].

Please send me, for the attention of the Court of Appeal, [details of] which (investigation) activities have been carried out since the accused’s detention and which investigative activities are planned in the near future.

In addition I would ask you – as discussed – to issue as soon as possible the new international arrest warrant against S.S. “amended” with respect to the crimes of assault, brawling, assault and theft; to pass it [in accordance with standard procedure] (keyword: granting of the right to be heard) to the person concerned (not as an accused!) and to subsequently submit both [documents] to the Federal Office for Justice. The Federal Office for Justice will then take the next steps (together with [the assistant]).

Please also send the new arrest warrant and the record of the questioning session with S.S. to me by fax or e-mail, so that I can refer to them in my observations to the Court of Appeal.

Many thanks for your efforts, which are appreciated. I am at your disposal in case of any questions.

Kind regards,

G.”

On 21 September 2006 the public prosecutor submitted his observations to the Court of Appeal. The applicant was invited to submit observations in response.

On 22 September 2006 the Prefect issued a new, amended international arrest warrant against the applicant. By letter of the same date, the applicant wrote to the Prefect stating that he would prefer that the decision regarding the approval of the amended arrest warrant be suspended until the Court of Appeal had decided on his appeal against the order for his pre-trial detention.

The applicant submitted observations on 22 and 24 September 2006 to the Court of Appeal. Having become aware of the e-mail exchange (see paragraph 10 above), he claimed that the Prefect was acting under the instructions of the public prosecutor. He alleged that from an objective point of view the Prefect could not be considered as an independent “officer authorised by law to exercise judicial power”, within the meaning of Article 5 § 3 of the Convention. He therefore sought the Prefect’s withdrawal from the case.

On 26 September 2006 the Court of Appeal dismissed the applicant’s appeal and established that the requirements for detaining him pending trial had been fulfilled. It held that there were no indications, either in the e-mail exchange between the Prefect and the prosecutor or in other documents, that the Prefect had been acting under the prosecutor’s instructions when ordering the applicant’s pre-trial detention. It found that the prosecutor’s request regarding the amendment of the international arrest warrant of 20 September 2006 had nothing to do with the detention order against the applicant, which had already been issued by the Prefect on 12 September 2006. Since the e-mail exchange between the prosecutor and the Prefect had occurred some days after the detention order had been issued, no doubts as to the Prefect’s independence when ordering the applicant’s pre-trial detention existed. In addition, according to Article 154bis of the Code of Criminal Procedure of the Canton of Lucerne (hereinafter “the CCP”, see paragraph 19 below), the Prefect was not bound by any instructions of the public prosecutor when ordering pre-trial detention. Furthermore, according to Article 129 of the CCP (see paragraph 19 below), he was not competent to bring criminal charges against the applicant before the domestic courts. In addition, the prosecutor’s supervisory responsibilities, as set out in Article 153(1) and (2) of the CCP (see paragraph 19 below), were limited to investigative activities, with a particular emphasis on responsibility for their proper and expeditious completion. Therefore, the legal provisions in force sufficiently guaranteed the Prefect’s independence when ordering pre-trial detention and no conflict of interest existed.

The applicant appealed against this decision to the Federal Supreme Court (hereinafter “the FSC”). He reiterated that in the given circumstances the Prefect could not be considered as an independent officer authorised by law to exercise judicial power within the meaning of Article 5 § 3 of the Convention and accordingly had to be excluded from the case. He also alleged that the Court of Appeal had failed to consider whether the international arrest warrant of 1 May 2003 had been issued by the Prefect under the prosecutor’s instructions.

By a judgment of 3 November 2006 the FSC upheld the Court of Appeal’s judgment. It ruled that the provisions of the CCP sufficiently guaranteed the impartiality and independence of the Prefect in accordance with Article 5 § 3 of the Convention. With regard to the e-mail exchange, the FSC further reiterated that it had mainly concerned the amendment of the international arrest warrant and that the prosecutor’s actions had been fully compliant with Article 153(1) and (2) of the CCP. Moreover, the email exchange had occurred some days after the detention order had been issued and contained no indications that the prosecutor had given the Prefect instructions when the latter was ordering the applicant’s pre-trial detention on 12 September 2006.

By penal order of 29 November 2006 the Prefect sentenced the applicant to seventy-nine days’ imprisonment for having taken part in a brawl on 2 March 2003 in Sursee. The applicant accepted this sentence and the penal order entered into force on 29 November 2006, in accordance with Article 133 of the CCP (see paragraph 19 below).

On 1 January 2011 the Federal Code of Criminal Procedure entered into force and replaced the CCP (see paragraph 19 below).

Articles 60, 63, 80, 81, 83bis, 126, 129, 133, 153, 154, 154bis and 158 of the Code of Criminal Procedure of the Canton of Lucerne of 3 June 1957, as in force at the relevant time, provided as follows:

1 The Prefect investigates crimes, an offender’s criminal record and his personal circumstances.

"1The Prefect leads investigations.

1 The accused normally remains at liberty.

2 The accused can be put in pre-trial detention if there is a strong suspicion that he has committed a crime or an offence and if one of the following requirements is applicable:

A reasonable suspicion that he will seek to evade the criminal proceedings or the anticipated sanction by absconding; [such] a suspicion will be further strengthened if the person is accused of having committed a serious crime or offence; (...)

Circumstances which give reason to fear that the accused would seek to compromise the efforts of the investigation; (...)

1 An arrest warrant must be issued in writing and provide the reason(s) for the arrest.

2 The following authorities are entitled to issue an arrest warrant: the Prefect, the Public Prosecutor, the Criminal Courts before which the case is pending, and their presidents.

1 An authority which issues an arrest warrant shall decide immediately after a questioning session with the accused whether he should be kept in detention. ... A detention order shall be issued in writing and provide the reasons for the pre-trial detention.

2 The accused has the right to appeal to the Court of Appeal against a detention order of the Prefect, the public prosecutor, a first-instance court or its president. (...)

If sufficient indications of a punishable offence exist, the Prefect shall refer the case to the competent court if the investigation cannot be closed by a penal order.

If the District Court or the Court of Appeal has subject-matter jurisdiction, the Prefect may submit a written application regarding [the accused’s] guilt, the penalty [to be imposed] and [other] measures [to be taken] if he has not previously ordered pre-trial detention.

1 The accused may accept in writing, within twenty days, a penal order if:

(a) the penal order concerns imprisonment alone, or in combination with another penalty or measure;

(b) the penal order concerns community service alone, or in combination with another penalty or measure.

2 Provided that the accused accepts a penal order regarding a crime or an offence within the [above-stated] period, the penal order shall have legal effect from the day of the accused’s declaration of acceptance, if the public prosecutor has subsequently signed it off.

1 The Public Prosecutor shall execute direct supervision over the Prefects. He shall supervise investigations, [with] particular [responsibility for] their proper and expeditious completion.

2 He can require reports on the progress of investigations, issue instructions and assist investigative activities.

1 The Prefect shall regularly provide the Public Prosecutor with updates about pending investigations, especially those of long duration.

2 The Public Prosecutor shall examine the Prefect’s case management, give the necessary instructions and make reports to the Criminal Cases Commission.

In matters regarding pre-trial detention, the Prefect takes decisions freely and independently.

1 The Public Prosecutor shall bring criminal charges if,

(c) the Prefect has ordered the accused’s pre-trial detention and the District Court or the Court of Appeal has subject-matter jurisdiction.

2 The Public Prosecutor cannot file criminal charges if he has previously issued an arrest warrant or a pre-trial detention order against the accused or if he has dismissed an accused’s application for release from pre-trial detention.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-4 - Take proceedings);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Non-pecuniary damage - award

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

The applicant was born in 1962 in the Uzbek SSR of the Soviet Union. Since 1990 he has been living in St Petersburg, Russia. It appears that he did not acquire any nationality following the break-up of the USSR.

On 19 July 2011 the police stopped the applicant for an identity check and discovered that he had no identity documents. On the same day a judge of the Sestroretsk District Court of St Petersburg found him guilty of an administrative offence under Article 18.8 of the Code of Administrative Offences (breach of residence regulations in Russia), fined him 2,000 Russian roubles (RUB) and ordered his expulsion from Russia. The court ruled that the applicant should be detained in the detention centre for aliens until his expulsion.

Officers of the Federal Migration Service (FMS) interviewed and fingerprinted the applicant, who had no passport or other identity documents. He told them that he had been born in Tashkent and, prior to his arrival in Russia, had had a registered place of residence in the Tashkent Region.

On 30 November 2011 the director of the detention centre for aliens asked the Embassy of Uzbekistan to issue travel documents (return certificates) to thirteen individuals, including the applicant, who were described as being Uzbek nationals. No reply was received.

Further similar requests sent on 10 February, 29 March, 31 July and 11 November 2012 did not elicit any reply from the Embassy of Uzbekistan either.

On 7 June 2012 counsel for the applicant sent an inquiry to the Embassy of Uzbekistan in Russia, seeking to find out whether or not the applicant had Uzbek nationality and whether he could be removed to Uzbekistan. No reply was received.

On the same day counsel asked the FMS to inform him what measures had been taken with a view to expelling the applicant from Russia, whether or not his identity had been established and why the applicant had already spent more than eleven months in detention. In reply, the FMS refused to give any information, citing the law on the protection of personal data.

On 14 November 2012 counsel applied to the Sestroretskiy District Court for an order discontinuing the enforcement of the expulsion order of 19 July 2011. He pointed out that the enforcement was impossible since the Uzbek authorities would not accept the applicant, who was not a national of that State.

On 10 December 2012 a judge of the Sestroretskiy District Court rejected the application, without hearing the parties or the applicant. According to the judge, a failure to take measures with a view to expelling the applicant was not a ground for discontinuing the enforcement of the expulsion order. Counsel submitted an appeal, in which he complained in particular about the absence of a periodic judicial review of the applicant’s detention in breach of Article 5 § 4 of the Convention and about the State authorities’ failure to show special diligence in the conduct of the expulsion proceedings, contrary to the requirements of Article 5 § 1 (f) of the Convention. On 14 March 2013 a judge of the St Petersburg City Court rejected the appeal in a summary fashion.

Counsel also attempted to challenge the applicant’s detention as unlawful. By decision of 26 November 2012, the Krasnoselskiy District Court of St Petersburg disallowed the complaint, finding that the decision of 19 July 2011 constituted a sufficient lawful basis for the ensuing detention. It noted in particular that the applicant would remain in custody “until his expulsion from Russia”. On 24 January 2013 the St Petersburg City Court upheld the District Court’s decision.

By letter of 5 February 2013, the consular department of the Embassy of Uzbekistan informed the FMS that the applicant was not a national of Uzbekistan and could not therefore be issued with a travel document. On 25 March 2013 the Ministry of Internal Affairs of Uzbekistan sent a further letter to the FMS, stating that the applicant was not an Uzbek national.

On 29 July 2013 the applicant was released on the basis of the expiry of the two-year time-limit for enforcement of the administrative-expulsion decision.

The detention centre for aliens (Центр для содержания иностранных граждан) is located in Krasnoye Selo in St Petersburg and operated at the material time under the authority of the FMS.

The centre, an eight-storey building designed to hold 176 inmates, actually accommodated no fewer than 300 people at any one time and the number rose to 400 in the summertime and during special raids.

The applicant was initially held in cells 604 and 605. Each cell measured no more than ten square metres and housed five or six people. In the last ten months of his detention the applicant was held in cell 615, an eighteen-square-metre cell which he shared with four and occasionally up to seven other people.

There was no sink or access to drinking water from within the cells; there was one toilet and one shower per floor which were used by approximately forty inmates.

Up until March 2013 the applicant was allowed twenty to thirty minutes’ outdoor exercise once every two or three weeks in a tiny yard.

The facility did not offer any meaningful activities: no television, radio, newspapers or magazines were available.