Preliminary objection joined to merits (Article 35-3 - Ratione materiae);No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);No violation of Article 12 - Right to marry (Article 12 - Marry)

András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1971 and lives in Dębowa Kłoda.

In 1997 the applicant married R. In 2004 R. underwent infertility treatment so she could conceive a child with him.

In autumn 2004 the applicant met A.H. In January 2005 he moved out of the flat he had lived in with R.

On 31 October 2005 A.H. gave birth to their daughter, M.

On 25 September 2006 the applicant filed a petition for divorce. At first he requested a no-fault divorce. In his petition the applicant referred to various marital misunderstandings and quarrels for which he blamed the respondent. He admitted that he had moved out of the matrimonial home, but did not mention his involvement with a new partner.

At a hearing held on 15 November 2006 the applicant refused to undergo the mediation process provided for by divorce law. R. did not agree to a divorce, declared that she loved the applicant and asked the court to dismiss the divorce petition.

Subsequently, the applicant requested a divorce on faultbased grounds.

During the proceedings thirteen witnesses were heard. Most of them were of the opinion that the marriage seemed happy until autumn 2004. Only the applicant’s mother, his two colleagues and his cousin recalled minor arguments between the spouses.

During the final hearing on 9 February 2009 the respondent reiterated her refusal to divorce.

On 17 February 2009 the Lublin Regional Court refused to grant the divorce to the applicant. The court held that he was the only person responsible for the breakdown of his marriage because he had failed to respect the obligation of fidelity. The court did not find it credible that problems had already begun within the first year of the marriage. It observed that until 2004 the applicant had not wanted children. In that year he had changed his mind. For that reason R. had undergone surgery, the operation having taken place in August 2004.

The marital situation had subsequently changed when the applicant had met A.H. He had no longer wished to have a child with his wife. The court noted contradictions between the testimony given by the applicant, who had referred to the alleged serious problems in marital life prior to 2004 on the one hand, and the decision to treat R.’s infertility in summer 2004 on the other. The respondent had been shocked by the applicant’s unfaithfulness and had been treated for depression since autumn 2004.

The court acknowledged that there had indeed been “a complete and irretrievable marriage breakdown” within the meaning of Article 56 § 1 of the Family and Guardianship Code. Reconciliation was unlikely as the applicant had consistently rejected all attempts made by R. to reconcile their differences. Moreover, he had been in a relationship with A.H. for almost four years and had a child with her.

The court emphasised that under Article 56 § 3 of the Family and Guardianship Code, a divorce could not be granted if it had been requested by the party whose fault it was that the marriage had broken down, if the other party refused to consent and the refusal of the innocent party was not “contrary to the reasonable principles of social coexistence” (zasady współżycia społecznego) within the meaning of Article 5 of the Civil Code.

The court considered that R.’s refusal to divorce should be presumed to be compatible with those universally accepted principles. It referred to the case-law of the Supreme Court to the effect that a refusal of consent to a divorce was to be presumed to be compliant with those principles unless there were case-specific indications to the contrary. There was no indication that when refusing to give her consent R. had acted out of hatred, was motivated by vengeance, or simply wanted to vex the applicant. The court emphasised that she had repeatedly stated during the proceedings that she was ready to reconcile with him despite the fact that he had a child with another woman.

The court stressed that the duration of the applicant’s new relationship could not by itself be considered to be a sufficient reason for granting the divorce.

The applicant appealed against the judgment. He argued, inter alia, that the court had erred in holding that a spouse’s refusal to consent to a divorce could be disregarded only when it was of an abusive nature or was dictated by hostility towards the spouse seeking the divorce. The court should have examined the negative social consequences caused by continuing the formal existence of failed marriages. In his case, it had failed to do so.

On 16 June 2009 the Lublin Court of Appeal dismissed the applicant’s appeal.

The applicant did not request to be served with the written grounds for the appellate judgment. The grounds were therefore not prepared.

The judgment was final, a cassation appeal against a divorce judgment not being available in law.


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

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 of the lack of any effective remedy in domestic law. Some applicants also raised other complaints under the provisions of the Convention.


CASE OF GOREMÎCHIN v. THE REPUBLIC OF MOLDOVA

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

The applicant was born in 1967 and lives in Chişinău.

On 23 July 2007 the Râșcani District Court ordered the applicant’s detention pending trial for thirty days. He was charged with the offence of robbery, taking of hostages and blackmail while in Ukraine, in 1997 and 1998. The applicant was residing at the material time in Brussels, Belgium.

On 18 November 2008, the applicant was arrested in Brussels at the Moldovan authorities’ request and placed in a Belgian prison pending extradition to Moldova.

On 5 October 2009 the applicant was extradited to the Moldovan authorities. On the same day he was brought before a judge (Centru District Court), who ordered his detention on remand.

On 25 December 2009 the Chişinău Court of Appeal prolonged the applicant’s detention on remand for ninety days.

From then on, the applicant’s detention was prolonged every three months. Each time, the reasons for his detention were that it was an exceptional case, that there was a reasonable suspicion that he had committed serious offences punishable by imprisonment, that the criminal case was complex and that if released the applicant could interfere with the investigation, influence the witnesses and victims, re-offend or abscond (as he had earlier been declared a wanted person).

On 20 May 2010 the applicant made a habeas corpus request, asking for his detention to be replaced with a preventive measure other than deprivation of liberty. The applicant’s lawyer also raised a complaint about the impossibility to consult the applicant during the court hearings while not seated at the same desk next to him. He also complained about the denial by the court’s registry of the applicant’s request to receive copies of his case file. On 17 June 2010 the Court of Appeal dismissed the applicant’s lawyer’s claims and on 21 June 2010 it prolonged the applicant’s detention warrant for another ninety days, relying on exactly the same reasons as before.

On 22 February 2012 the Bălți Court of Appeal, acting as a court of first instance, acquitted the applicant and ordered his release from detention. The court noted that its judgment could be challenged by an appeal on points of law within fifteen days.

On 6 April 2012 the Prosecutor’s Office lodged an appeal on points of law against the judgment of 22 February 2012. In the appeal the Prosecutor’s Office made reference to Article 439 of the Code of Criminal Procedure. The applicant objected that the appeal had been lodged out of time. Nevertheless, on 21 December 2012 the Supreme Court of Justice upheld it and reopened the proceedings. The Supreme Court did not refer to the applicant’s objection that the appeal had been lodged out of time.

The proceedings ended on 30 December 2015, when the Buiucani District Court found the applicant guilty, but discontinued them on the ground of statutory time-limit.

The applicant was detained from 5 October 2009 to 23 October 2009 in the Department for Combating Organised Crimes. He was placed in a remand facility situated in a basement. The total surface was of 3 square metres, with no bed, chair, toilet facilities or washstand. He slept for four days on a concrete floor, using a bucket for his needs. In addition, the applicant had no daily walks outside his cell.

Four days later, the applicant was moved to cell no. 6 of the same detention facility. He was detained with two other inmates in a cell measuring 9 square metres for fifteen days. The applicant was held in similar conditions of detention as described above. He also claims that he was fed only once per day with soup and a slice of bread. During twenty days of detention he had access to the showers only once.

On 23 October 2009 the applicant was transferred from that remand facility to prison no. 13 (Chișinău). He was placed for three days in cell no. 38 with a total surface of 12 square metres. The applicant was detained with seven to twelve other inmates. In particular, the applicant describes his conditions of detention as follows: the cell was equipped with twelve wooden beds, it was not heated, the quality of food was very poor, there was a lack of ventilation, worsened by the inmates’ smoking directly in the cell, and poor lighting.

On 27 October 2009 the applicant was transferred to cell no. 78 measuring 30 square metres. He was detained there with twelve other detainees. The cell was equipped with twelve wooden beds.

On 5 December 2010 the applicant was transferred from prison no. 13 (Chișinău) to prison no. 11 (Bălți), where he was detained until the date of his acquittal by the Bălți Court of Appeal on 22 February 2012. On the date of his arrival he was not fed. He was placed in cell no. 6 with a total surface of 21 square metres. The applicant was detained with fourteen to nineteen other inmates. The cell was equipped with only fourteen beds and the detainees had to sleep in turns. The applicant described his conditions of detention as follows: toilet insufficiently separated from the cell, lack of a washstand, lack of water and ventilation, lack of adequate lighting, damp and cold cell.

On 30 December 2010 the applicant lodged a complaint with the Prosecutor’s Office complaining about the poor conditions of detention. In a reply dated 10 January 2011, the Prosecutor’s Office informed the applicant that his complaint about the poor conditions of detention was well founded and that following a control carried out in Prison No. 11 multiple breaches of the law had been discovered. The prison administration was asked to remove the shortcomings found. It does not appear that any change in the applicant’s conditions of detention occurred after the Prosecutor Office’s involvement.

On 15 January 2011 the applicant was transferred to cell no. 21 with a total surface of 16 square metres. The applicant was detained along with fifteen to seventeen other inmates and they had to sleep in turns as the cell was equipped with only twelve beds. The conditions of detention as described by the applicant were as follows: lack of bed linen, clothing and hygiene products, inadequate quality of food, lack of medical assistance. The applicant also contends that he was bitten by parasitic insects present in the cell.

The applicant complained to the domestic courts and the investigating authority about the inhuman and degrading conditions of detention. On 20 January 2011 the Bălți Prosecutor’s Office acknowledged the existence of the inhuman conditions of detention in prison no. 11 (Bălți).


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicant was born in 1989 and lives in Nyzhni Sirogozy.

On 31 May 2013 the Solonyansky district police department in Dnipropetrovsk Region instituted criminal proceedings in respect of a carjacking.

On 4 June 2013 the applicant was arrested as a suspect in connection with the incident.

On 5 June 2013 the investigating judge of the Solonyansky District Court remanded the applicant in pre-trial detention until 4 August 2013 on the grounds that he was suspected of a serious crime, was unemployed, had no funds, did not live in the area and was not living at his official registered address. It was also considered that he might evade his procedural obligations and abscond to avoid investigation and trial.

On 21 June 2013 the applicant was charged with the robbery of G., committed together with V.

On 21 June 2013 the pre-trial investigation ended and the case against the applicant and V. was referred to the Solonyansky District Court. The case was then transferred to the Krasnogvardiysk District Court in Dnipropetrovsk (“the District Court”).

On 2 August 2013 the District Court remitted the case for further investigation and remanded the applicant in custody until 1 October 2013, noting that he had been suspected of a serious crime and might continue his criminal activities.

On 1 October 2013 the District Court held a preliminary hearing in the case and extended the detention of the applicant and V. until 29 November 2013. It noted, without going into any detail or indication to which of the co-accused it referred, that “other preventive measures will not ensure the appropriate behaviour of the accused” during the trial.

On 26 November 2013 the District Court extended the applicant’s detention until 24 January 2014, noting that he and V. had been charged with serious crimes, did not live in the area and were unemployed. It was also considered that they might influence witnesses and other participants in the proceedings or otherwise obstruct criminal proceedings, given that the trial had not yet started.

On 27 December 2013 the applicant applied for release to the District Court complaining about, among other things, his state of health.

On 21 January 2014 the District Court examined and rejected that application. The court extended the applicant’s detention until 21 March 2014 on the same grounds as those given in its previous decision of 26 November 2013. As to his health problems, the court noted that he had been treated successfully for renal colic and was fit for trial.

On 19 March 2014 the District Court rejected a further application for release lodged on 26 February 2014 and extended the applicant’s detention until 19 May 2014 on the same grounds as those given on the two previous occasions, adding that he was aware of the punishment for the crime he had been charged with and thus might obstruct the criminal proceedings to avoid criminal liability.

On 22 April, 17 June and 15 July 2014 the District Court extended the applicant’s detention until 20 June, 15 August, and 12 September 2014 respectively, on the same grounds as those given in its decisions of 26 November 2013 and 21 January 2014.

On 15 August 2014 the applicant lodged another application for release with the District Court.

On 4 September 2014 the District Court examined and rejected that application, extending the applicant’s detention until 2 November 2014. It repeated its previous reasoning, adding that he was aware of the punishment for the crime he had been charged with and thus might obstruct the criminal proceedings to avoid criminal liability. It also added that he and his coaccused V. had no strong social ties.

On 30 September 2014 the applicant lodged another application for release, which was rejected on 9 October 2014. The District Court repeated its previous reasoning, noting in addition as grounds for his detention that he was not studying.

On 31 October 2014 the District Court rejected that application and extended the applicant’s detention until 29 December 2014, giving reasons similar to those given on 4 September 2014.

On 9 December 2014 the District Court extended the applicant’s detention until 6 February 2015, repeating the reasoning given in its previous decisions.

On 27 January 2015 the applicant and V. were convicted by the Krasnogvardiysk District Court of robbery and carjacking and sentenced to five years’ imprisonment. The court also decided to reduce the remainder of the prison sentence (namely the part not covered by the pre-trial detention) by half under the Amnesty Act.

On 12 June 2015 the Mensky District Court in Chernigiv Region allowed the applicant’s application for early release.


András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant, Mr Žilvinas Žvagulis, is a Lithuanian national who was born in 1965 and lives in Vilnius. He was represented before the Court by Ms L. Meškauskaitė, a lawyer practising in Vilnius.

The Lithuanian Government (“the Government”) were represented by their former Agent, Ms E. Baltutytė.

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

The applicant is a singer and well-known person in the entertainment industry in Lithuania.

On 9 November 2006 the applicant received a call on his personal mobile telephone from a journalist at the newspaper “L.T.”. The journalist informed the applicant that he was in possession of information regarding the fact that the applicant had fathered a child outside marriage. The information was to be published in a forthcoming issue of the newspaper.

The applicant did not consent to the publication, and on the following day obtained a court injunction prohibiting the newspaper from publishing the information.

Notwithstanding the injunction, on 11 November 2006 the newspaper went ahead with the publication. The article was called “Žvagulis hides his son born outside marriage”, and was printed on pages nine and eleven of the newspaper, with a large headline on the front page. The article included statements such as: “L.T. reveals that a famous singer has not three, but four children”; “Žvagulis’s secret – a child born outside marriage”; “the boy does not know that his father is a famous singer”; “before marrying I.S., a singer [the applicant’s current wife], Ž. Žvagulis had a short, yet passionate love affair with L.”; “Žilvinas did not disappear from the woman’s life”; “passionate love affairs fade over time. Nevertheless, sometimes children who come into the world and are rejected by their fathers remain a reminder of such affairs. Such a shadow of the past caught up with the famous singer Žilvinas Žvagulis”; and “there will be much gossip following the publication of information about Žvagulis’s child born outside marriage”. The names of the boy and his mother were changed in the article, which also pointed out the fact that the boy’s mother was a dancer in a famous dance group in Lithuania.

In addition, on the second page of the same issue, an article entitled “Hostages of love” appeared, describing the applicant’s private life as the journalists imagined it to be.

On 18 November 2006 L.T. printed another article entitled “Marčiulionis in the arms of a new woman”. The article stated that “on 6 November, while partying, Ž. Žvagulis was restless. Needless to say, there were plenty of young women at the party”.

The applicant started court proceedings for breach of privacy and damage to his reputation. He claimed that the publications had caused him serious humiliation, as well as great distress to both him and his family. He also claimed that the newspaper had recorded his telephone conversation with the journalist without prior permission. The applicant requested that 100,001 Lithuanian litai (LTL – approximately 28,960 euros (EUR)) be awarded to him in compensation for non-pecuniary damage.

The applicant also asked that the newspaper be fined LTL 1,000 for having disregarded the court order prohibiting the publication (see paragraph 6 above).

By a decision of 25 October 2007 the Vilnius Regional Court concluded that the newspaper had breached the applicant’s right to privacy, which was protected under Article 8 of the Convention. The court found that the applicant’s wife and the child’s mother had attempted to persuade the newspaper’s chief editor and the journalist who had written the article not to publish it. The two women had not been successful. On the contrary, the newspaper had blackmailed the child’s mother to make her portray the applicant in a negative light, in return, promising not to disclose the identity of the child.

The Vilnius Regional Court held that the fact that the applicant’s son had been conceived out of marriage was a matter relating to his private life, and, despite being a singer, the applicant did not come under the category of public figures. Moreover, even if the applicant could be considered a public figure, this would not give grounds to publish the information in question, given that there was no public interest in disclosing the fact that he had fathered the child. The publisher’s and the journalist’s argument that she had been aiming to disclose a story about how famous men did not raise or take care of their own children was devoid of substance. On the contrary, the court established that the child’s mother had no claim against the applicant to the effect that he did not take care of the child. Quite the contrary, the child had a father whom he knew to be his father. The court agreed with the finding of the Inspector of Journalistic Ethics that the information in this particular case had been published in a sensational manner, with a large headline on the front page, thereby seeking to satisfy the readers’ curiosity, and denying the applicant’s right to protection of his privacy, and also being in breach of journalistic ethics. The court emphasised that, according to the practice of the Supreme Court, the disclosure of information about a child being conceived out of wedlock was to be considered a violation of the right to a private life, even if that information concerned a public figure, because there was no public interest in making such information known.

In addition, the court found that the journalist had breached the applicant’s privacy by recording a telephone conversation with him without his consent (see paragraph 41 below), as well as by unlawfully observing or watching him, collecting information about him, and using that information in the article entitled “Marčiulionis in the arms of a new woman”.

As to the sum to be awarded in compensation for non-pecuniary damage, the Vilnius Regional Court determined that the publication at issue had caused the applicant serious distress. Until then, only his wife and certain members of his family had known about what the publication had revealed. The court also attached importance to the fact that the newspaper had disregarded the court injunction and gone ahead with the publication of article, even though it had received that injunction in time to stop its publication. Moreover, the newspaper had had a large print run. Consequently, a large number of people had learnt about the relevant information.

However, the court observed that, prior to the present litigation, the applicant had been rather open with the mass media, having disclosed private matters such as the fact that he was having another child [with his wife] and details about that child’s birth. As a result, it was possible to conclude that up to the moment when the information at issue had become public, the applicant had not vigilantly protected his private life from the media, and had not considered his private life to have great value. For the court, that particular aspect of the case allowed it to lower the compensation award for non-pecuniary damage to LTL 10,000 (EUR 2,900), an award to cover all the violations of privacy.

The court also ordered the newspaper to pay the applicant LTL 3,254 in respect of legal costs. The applicant, in turn, was ordered to pay LTL 606, the newspaper’s legal costs, on the basis that legal costs are reimbursed proportionately in relation to the claims granted (Article 93 § 2 of the Code of Civil Procedure, see paragraph 40 below).

The applicant appealed. On 4 March 2008 the Court of Appeal partly upheld the first instance court’s decision. The court observed that, whilst the applicant was a singer and therefore had to be tolerant of media attention, he still retained the right to determine the boundaries of his private life, which no one had the right to cross without his consent. The information at issue had been made public without his consent. Moreover, that information was purely private and the publication thereof had had no connection to the applicant’s professional activities. The court of first instance had been correct in finding that the aim of disclosing the information had been to cause a sensation, and not to inform society about matters of public interest. The publication had caused the applicant distress, and this was clearly proved by his wish to prevent public disclosure by obtaining a court injunction.

The appellate court noted that, according to the guidelines of the Supreme Court, the circumstances of any particular situation had to be evaluated when assessing non-pecuniary damage. In the light of the facts of the case, the Court of Appeal considered that the sum of LTL 10,000 which had been awarded was too low to compensate for the non-pecuniary damage the applicant had sustained. Given that there had actually been two violations of privacy in the case – the disclosure of information regarding the applicant having a child outside marriage, which was the more serious breach, and information about his behaviour at a party – it was appropriate to make two separate awards. On that basis, the appellate court awarded the applicant LTL 20,000 for the first breach of privacy and LTL 5,000 for the second. The court observed that there was no legal basis for a larger award, particularly given the Supreme Court’s guidelines that, when determining the sum to be awarded, it was necessary to take into account the economic situation of the country and the standard of living of its citizens. The newspaper was also ordered to cover the applicant’s legal costs in respect of the part of the civil claim which had been allowed.

On the basis of Article 149 of the Code of Civil Procedure, the Court of Appeal also imposed a fine of LTL 1,000 on the newspaper, the maximum amount possible, for disregarding the court injunction forbidding it from going ahead with the publication of information breaching the applicant’s right to a private life. The Court of Appeal established that the newspaper had received the court injunction in time, but had failed to comply with it, thus grossly breaching the maxim that court rulings are imperative (see paragraph 40 below).

The applicant and the newspaper both lodged appeals on points of law. On 14 August 2008 the Supreme Court changed the decision of the Court of Appeal in part. The Supreme Court had regard to the need to balance rights under Articles 8 and 10 of the Convention (it relied on Editions Plon v. France, no. 58148/00, ECHR 2004IV, and Hachette Filipacchi Associés v. France, no. 71111/01, 14 June 2007). The Supreme Court agreed with the lower courts’ reasoning to the effect that the applicant’s occupation did not automatically mean that he consented to the publication of all information about his private life. The information which had been disclosed was exclusively private; there was no public interest in society learning of it. Consequently, the court found that the newspaper had overstepped the boundaries prescribed by Article 10 § 2 of the Convention.

As to the question of non-pecuniary damage, the Supreme Court concurred with the lower courts that a mere finding of a violation of the applicant’s right to privacy would not be sufficient compensation. However, the Supreme Court deemed it important to ensure the continuity of its earlier case-law and take into consideration past awards in analogous cases. Given the scarcity of case-law on breach of privacy matters, it was necessary to consider the non-pecuniary value (neturtinė vertybė) which had been breached. The more important the value (for example, health or life), the more it was protected (the Court relied on its earlier ruling in case no. 3K3394/2006, see paragraph 29 below). Moreover, the right to a private life had to be balanced with another constitutional value – the right to disseminate information. Article 6.250 of the Civil Code provided a list of criteria to be taken into account when assessing compensation, also providing for court discretion in this matter.

Continuing with its assessment, the Supreme Court noted that the newspaper’s transgression had been deliberate, given that it had consciously chosen not to comply with the court injunction. However, the publication of the information had not carried grave or long-term consequences for the applicant, because his wife had known about his son who had been born outside marriage, and the applicant had discussed certain aspects of his private life with journalists on many occasions in the past, and was used to media attention. All this was relevant when assessing compensation for nonpecuniary damage. Moreover, the lower courts had not established that, by breaching the applicant’s right to a private life, the newspaper had attempted to obtain economic gain, for example by printing more copies of the newspaper, and such a point was relevant when determining compensation for non-pecuniary damage.

In the light of the above, the Supreme Court concluded that the firstinstance court had properly examined all of the relevant circumstances, and taking into consideration, inter alia, the sums awarded as compensation in similar cases, had reasonably awarded the applicant LTL 10,000. That decision was to stay in force.

Lastly, the Supreme Court reviewed the issue of legal costs, in the light of Article 93 of the Code of Civil Procedure (see paragraph 40 below), and lowered the costs of representation to be reimbursed to the newspaper, because they were higher than those recommended by the Lithuanian Bar Association. Once all the sums in respect of both parties’ representation at the three levels of court had been calculated, the applicant had to pay the newspaper LTL 2,136 for legal costs and court fees. He therefore received LTL 7,864 (approximately EUR 2,280) following the civil litigation.

In February 2011 the newspaper Private printed an article about the applicant’s family life, where he and his wife I.S. were interviewed about their family. They stated that they were able to lean on each other at any time.

Article 22 of the Constitution of the Republic of Lithuania reads:

“A person’s private life shall be inviolable...

The law and the courts shall protect everyone from arbitrary or unlawful interference in his private and family life, or from encroachment upon his honour and dignity.”

Article 30 of the Constitution provides that compensation for pecuniary and non-pecuniary damage suffered by a person must be established by law.

The relevant provisions of the Civil Code read:

“1. A person’s privacy shall be inviolable. Information regarding a person’s private life may be made public only with his consent...

Unlawful invasion of a person’s dwelling or other private premises, including fenced private territory; keeping the person’s private life under observation ...; intentional interception of the person’s telephone communications, post or other private communications, as well as violation of the confidentiality of his personal notes and information; publication of data relating to the state of his health, in violation of the procedure prescribed by law; and other unlawful acts shall be deemed to violate the person’s private life.

The creation of a file on another person’s private life, in violation of the law, shall be prohibited. A person may not be denied access to the information contained in the file, except as otherwise provided for by law. Dissemination of the information collected on the person’s private life shall be prohibited unless, taking into consideration the person’s official post and his status in the society, dissemination of the said information is in line with a lawful and well-grounded public interest in being aware of that information.

The public announcement of facts concerning a person’s private life, however truthful they may be; making private correspondence public, in violation of the procedure prescribed in paragraphs 1 and 3 of this Article; invasion of a person’s dwelling without his consent, except as otherwise provided for by law; keeping his private life under observation; or gathering information about him in violation of the law; and other unlawful acts infringing the right to privacy shall form the basis for bringing an action for compensation for pecuniary and non-pecuniary damage sustained as a result of those acts...”

“1. Non-pecuniary damage shall be deemed to be a person’s suffering, emotional experiences, inconvenience, mental shock, emotional depression, humiliation, damage to reputation, diminution of opportunities to associate with others, and so on, evaluated by a court in terms of money.

Non-pecuniary damage shall be compensated for only in cases provided for by law. Non-pecuniary damage shall be compensated for in all cases where it has been sustained as a result of crime, health impairment or deprivation of life, as well as in other cases provided for by law. The courts, in evaluating the non-pecuniary damage, shall take into consideration the consequences of the damage sustained, the degree of fault on the part of the person who caused the damage, his financial status, the amount of pecuniary damage sustained by the aggrieved person, and any other circumstances of importance to the case, as well as the criteria of good faith, justice and reasonableness.”

On 12 June 2006 the Supreme Court decided civil case no. 3K3394/2006. The plaintiff had asked to be awarded LTL 40,000 in respect of non-pecuniary damage, which he had suffered as a result of physical injury. He had been attacked by three people and beaten, thereby suffering facial injuries and being rendered disabled. The Supreme Court held that health was one of the most important values, which was often not repairable or restorable. Health therefore merited particular protection. The court also took into account that the non-pecuniary damage in this case had been caused by a crime – the deliberate and brutal actions of the respondents. It was therefore fair to grant the civil claim in full.

As regards the amounts awarded for non-pecuniary damage to redress breaches of privacy, the Government referred to a number of Supreme Court decisions. In cases concerning the reputation of a legal entity, for example, the awards were between LTL 15,000 and LTL 20,000.

The Government also referred to cases where protected values other than privacy had been at issue. In cases concerning injury to one’s health, the awards for non-pecuniary damage were between LTL 6,000-8,000 and LTL 20,000-50,000, depending on the severity of the injury. In cases concerning loss of life, compensation awards for non-pecuniary damage were between LTL 6,000 to LTL 40,000. In cases where the right to liberty had been violated, the awards were between LTL 3,000 to LTL 7,000.

In case no. 3K-3-450/250, decided on 6 September 2006, which concerned an injury at work, the Supreme Court held that, when evaluating the amount of non-pecuniary damage, it was important to consider the values being protected and their interrelationship (turi būti atsižvelgta į ginamų vertybių specifiką ir jų tarpusavio santykį), because the right to life and the right to health were absolute rights, whereas the right to privacy and the right to dignity were relative or conditional rights (santykinės teisės) which could not be equally valued as regards damages. A worker who had fallen off a building platform and cracked his skull was thus awarded LTL 25,000 for non-pecuniary damage sustained as a result of that injury.

On 18 April 2007 the Supreme Court gave a ruling in civil case no. 3K3-157/2007 concerning an accident at work following which the plaintiff in question had become handicapped. The Supreme Court noted that the worker was partly to blame for his injury, because he had not followed safety instructions at work. Accordingly, although the plaintiff had asked for LTL 150,000 and the first-instance court had awarded him LTL 100,000, the Supreme Court considered that a sum of LTL 50,000 would be sufficient to compensate for the non-pecuniary damage suffered.

On 20 October 2008 the Supreme Court examined case no. 3K3529/2008, which also concerned an accident at work. The plaintiff in that case was awarded LTL 50,000 for non-pecuniary damage suffered as a result of physical injury.

On 16 March 2007, in civil case no. 3K-3-113/2007, the Supreme Court held that there had been a violation of the plaintiff’s right to privacy and reputation, owing to a publication about his allegedly fraudulent manner of conducting business and his alleged debts to his business partners, and the printing of the plaintiff’s photograph. For the Supreme Court, LTL 5,000 was sufficient to compensate for the non-pecuniary damage sustained.

On 23 September 2008, in civil case no. 3K-3-394/2008, the Supreme Court agreed that an award of LTL 5,000 in a civil case was sufficient to compensate for the plaintiff’s mental suffering, where a local television station had wrongfully accused the plaintiff of having committed a traffic violation.

On 23 March 2010 the Supreme Court gave a ruling in civil case no. 3K-3-136/2010 concerning a civil claim by a woman, J.G., for breach of privacy in respect of an article in a daily newspaper, Respublika, entitled “A date with a lesbian” (“Pasimatymas su lesbiete”). The case concerned an article which had included eight photographs. J.G. was in one of those photographs, which was in a large format. She had been photographed from the front, although her name had not been disclosed. The first-instance court considered that, “taking into account society’s negative opinion about people of non-traditional sexual orientation” (“teismas, įvertinęs susidariusią neigiamą visuomenės nuomonę apie netradicinės seksualinės orientacijos žmones”), the publication of J.G.’s photograph in such a context could cause her to be evaluated oddly (galėjo sukelti prieštaringų ieškovės vertinimų). The court also noted that the newspaper’s financial situation was good, it had a large print throughout Lithuania. However, the newspaper had not apologised to the plaintiff or paid her damages, even though it had initially promised to do so. However, the sum claimed by the plaintiff, LTL 65,000, was clearly excessive. It was therefore reasonable to award her LTL 10,000 in respect of non-pecuniary damage. That sum was upheld by the appellate court, which underlined that the article “A date with a lesbian” was conflicting (vertinamas prieštaringai) in a homophobic society, and people whose photographs were linked to that article could therefore experience negative consequences, as indeed in J.G.’s case. She had had to explain herself to her parents, colleagues at work and friends from times of studies. The award of LTL 10,000 would also not impede the daily commercial activity of the defendant.

The newspaper lodged an appeal on points of law, arguing that the award for non-pecuniary damage was too high. The Supreme Court noted that it was important to adhere to the principle of non-discrimination, which meant that similar cases should be decided similarly, and which also meant that, in analogous situations, awards for non-pecuniary damage should be comparable. The Supreme Court also relied on its earlier case-law to the effect that courts should not only follow the criteria established in legal norms and court practice, but should also take into account the awards already granted in analogous cases.

The Supreme Court thus distinguished three categories of cases.

Firstly, there were cases where a plaintiff’s privacy had been breached on account of the arrangement of his or her nude photographs with offensive text and headlines (the Supreme Court referred to the case of Dalius Mertinas and Laima Mertinienė), or where information regarding “family secrets” or health had been made public (the Supreme Court referred to its ruling of 14 August 2008 in the instant case of Žvagulis), or where information about private life had been published together with photographs, which had amounted to a breach of the right to a private life. The awards in those cases were, respectively, LTL 15,000, LTL 10,000 and LTL 8,000.

As to the second category, the Supreme Court referred to some cases where the press had used plaintiffs’ private photographs without permission, or had accused them of crimes, where the non-pecuniary damage awards were LTL 5,000.

The third category concerned cases where photographs of plaintiffs who were well-known people in society had been published without their consent, and for the purpose of a newspaper gaining financial benefit from advertisement, where the awards for non-pecuniary damage were LTL 1,500.

The Supreme Court then held that, in the case of J.G., the award of LTL 10,000 was too high, because it did not correspond to the abovementioned court practice. J.G.’s photograph had been published only as an illustration of the article, and neither her personal data nor information about her private life had been made public. Moreover, the photograph had been taken at a public event when J.G. was posing (viešame renginyje, ieškovei pozuojant). In the view of the Supreme Court, an award of LTL 5,000 would be fair and adequate in respect of the non-pecuniary damage sustained by J.G. in relation to the breach of her right to protection of her image, and to prevent the abuse of freedom of expression by the press.

On 15 November 2012 the Supreme Court adopted a ruling in civil case no. 3K-3-481/2012, which concerned R.C.’s civil claim for defamation against a television channel, Tele-3. In particular, R.C., who is a singer, had complained that in May 2009, during a television broadcast, a presenter had made statements about someone else allegedly being the father of R.C.’s child, had made allegations about R.C.’s actual sexual orientation, and, in the latter context, had also claimed that R.C. had been operated on in clinics in Kaunas several months ago after “he had sustained trauma to his anus from a blunt object”.

The Supreme Court held that information about R.C.’s fatherhood, his sexual orientation, and his unverified operation concerned his private life, notwithstanding R.C. being well-known because he was a singer. Moreover, disseminating such information had no public interest. On the contrary, having had regard to the manner in which the information had been presented, the Supreme Court held that the only aim in disseminating it had been to spread gossip to satisfy the curiosity of a certain category of television viewers. The fact that R.C. had communicated with the media before did not mean that he had lost his right to privacy. Having examined the case in the light of the Court’s case-law (Axel Springer AG v. Germany [GC], no. 39954/08, 7 February 2012, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, ECHR 2012), the Supreme Court held that there had been a breach of R.C.’s right to privacy.

Although R.C. asked the courts to award him LTL 80,000 to compensate for the non-pecuniary damage, the Supreme Court found that the lower courts had correctly applied Article 6.250 of the Civil Code, and had had a proper basis for their decision to award R.C. LTL 10,000 in compensation.

The Code of Civil Procedure states:

“1. A court decision, ruling or order which has come into force is obligatory ... [in respect of all persons] and must be executed ...”

“1. A court orders the legal costs of the party to the proceedings in whose favour a court decision has been adopted to be paid by the other party to the proceedings ...

If a civil claim is granted in part, the plaintiff’s legal costs are awarded proportionately in relation to which part of the civil claim is granted, and the defendant’s legal costs are awarded proportionately in relation to which part of the civil claim is rejected.

The rules set out in this Article also apply to court fees ...

If the appellate court or court of cassation, without referring the case for fresh examination, changes a lower court’s decision or ruling, or adopts a new ruling, it accordingly changes the division of legal costs. If the appellate court or court of cassation does not change the division of legal costs, it is the court of first instance which has to resolve this question.”

“1. If [temporary protective measures] are breached, the court may impose a fine of up to one thousand litas ...”

At the relevant time, with regard to the collection and publication of information, the Law on the Provision of Information to the Public (Visuomenės informavimo įstatymas) read that, in order to avoid violating a person’s rights and to protect his honour and dignity, it should be prohibited to film, photograph, or make audio or video-recordings of a person without his consent (Article 13 § 1 (1)). Journalists were also obliged not to make audio or video-recordings if the individual providing the information objected (Article 41 § 2(9)). The Journalists’ and Publishers’ Code of Ethics read that journalists or publishers should not use the recordings for direct quotes if an individual objected to this (Article 14).

On 23 January 1970 the Parliamentary Assembly of the Council of Europe adopted Resolution 428, containing a Declaration on Mass Communication Media and Human Rights, the relevant parts of which read:

“15. There is an area in which the exercise of the right of freedom of information and freedom of expression may conflict with the right to privacy protected by Article 8 of the Convention on Human Rights ... Everyone has the right to respect for his private and family life, his home and his correspondence ... The exercise of the former right must not be allowed to destroy the existence of the latter.

The right to privacy consists essentially in the right to live one’s own life with a minimum of interference. It concerns private, family and home life, physical and moral integrity, honour and reputation, avoidance of being placed in a false light, nonrevelation of irrelevant and embarrassing facts, unauthorised publication of private photographs, protection against misuse of private communications, protection from disclosure of information given or received by the individual confidentially. Those who, by their own actions, have encouraged indiscreet revelations about which they complain later on, cannot avail themselves of the right to privacy.

A particular problem arises as regards the privacy of persons in public life. The phrase ‘where public life begins, private life ends’ is inadequate to cover this situation. The private lives of public figures are entitled to protection, save where they may have an impact upon public events. The fact that an individual figures in the news does not deprive him of a right to a private life.

In order to counter these dangers, national law should provide a right of action enforceable at law against persons responsible for such infringements of the right to privacy.

The right to privacy afforded by Article 8 of the Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media. National legislations should comprise provisions guaranteeing this protection.”

The relevant passages of Resolution 1165 (1998) of the Parliamentary Assembly of the Council of Europe on the right to privacy, adopted on 26 June 1998, read:

“1. The Assembly recalls the current affairs debate it held on the right to privacy during its September 1997 session, a few weeks after the accident which cost the Princess of Wales her life.

On that occasion, some people called for the protection of privacy, and in particular that of public figures, to be reinforced at the European level by means of a convention, while others believed that privacy was sufficiently protected by national legislation and the European Convention on Human Rights, and that freedom of expression should not be jeopardised.

The right to privacy, guaranteed by Article 8 of the European Convention on Human Rights, has already been defined by the Assembly in the declaration on mass communication media and human rights, contained within Resolution 428 (1970), as ‘the right to live one’s own life with a minimum of interference’.

In view of the new communication technologies which make it possible to store and use personal data, the right to control one’s own data should be added to this definition.

The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people’s private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales. At the same time, public figures must recognise that the position they occupy in society – in many cases by choice – automatically entails increased pressure on their privacy.

Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain.

It is often in the name of a one-sided interpretation of the right to freedom of expression, which is guaranteed in Article 10 of the European Convention on Human Rights, that the media invade people’s privacy, claiming that their readers are entitled to know everything about public figures.

Certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to be informed of those facts.

It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed in the European Convention on Human Rights: the right to respect for one’s private life and the right to freedom of expression.

The Assembly reaffirms the importance of every person’s right to privacy, and of the right to freedom of expression, as fundamental to a democratic society. These rights are neither absolute nor in any hierarchical order, since they are of equal value.

However, the Assembly points out that the right to privacy afforded by Article 8 of the European Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media.


Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

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

The applicant was born in 1956 and lives in Ordzhonikidzevskoye, Ingushetiya Republic.

According to the applicant, on 10 July 2009 she was at her flat with her two daughters, her son Batyr Albakov and his wife. At about 5.30 a.m. four men arrived at the flat to carry out a passport check. They introduced themselves as officers of the Nazran District Department of the Interior. The men were armed, some were wearing camouflage uniforms and the rest were in civilian clothes. They spoke Russian, Chechen and Ingush. They checked the passports of the applicant’s family members and then announced that they were taking Batyr Albakov to the police station to complete the identity check. There were four other men waiting outside the building. At the time, Batyr Albakov was wearing black trousers and a black-and-white striped shirt with short sleeves. The applicant was not allowed to accompany him.

The men and Batyr Albakov left in two silver VAZ 2110 cars. The applicant’s neighbour, Ms M. Galayeva, witnessed their departure. The applicant was able to remember part of the registration number of one of the cars, which appeared to have been registered in the Chechen Republic.

On the same day the applicant saw several silver VAZ cars parked at the premises of the operational search unit (hereinafter “the ORB-2”). She also saw a group of men in camouflage uniforms exit the building. Among them she identified three of the men who had fetched her son. The men got into one of the cars and left before the applicant was able to talk to them.

On 21 July 2009 the applicant read on the internet that her son had been shot dead by State servicemen in the course of a counter-terrorist operation in a forest close to Arshty, a village in the Ingushetiya Republic. According to the website, Batyr Albakov had been a member of an illegal armed group and had been offering active armed resistance to the federal forces. It was claimed that a number of items including a Kalashnikov machine gun and its ammunition, one bullet shell, fragments of a spent grenade, a backpack containing clothes and the deceased’s passport were found at the scene. Mr M. Albakov, the uncle of the deceased, identified Batyr Albakov’s body in the morgue in Nazran. The deceased was then dressed in a camouflage uniform.

On the same day medical forensic expert O. conducted a forensic examination of Batyr Albakov’s body. He documented seven gunshot wounds which the deceased had sustained shortly before his death and considered them to be the cause of his death. He further noted five bruises on the deceased’s legs and arms, which the latter could have sustained shortly before his death. The camouflage uniform was removed, packed, sealed and admitted as evidence. The report made no mention of the presence of gunshot residue on the deceased’s body.

On 22 July 2009 the deceased’s naked body wrapped in a cellophane bag was taken to the applicant’s flat. The applicant, one of her daughters, her son’s wife and some other relatives saw multiple injuries on his body, including a gunshot wound to his chest, stab wounds, fractured bones, burns and bruises. His left arm was partially severed. The applicant’s daughter took photographs of Batyr Albakov’s body and injuries.

On 10 July 2009 the applicant addressed a complaint to the Suzhenskiy District prosecutor’s office in respect of her son’s disappearance. In her statement she expressed doubts as to whether the persons who had taken Batyr Albakov had been State agents and asked the prosecutor to open a criminal investigation into his disappearance. She also contacted the Suzhenskiy District department of the interior, alleging that her son had been abducted by unidentified State agents. On the same day she asked the Ministry of the Interior of the Ingushetiya Republic and the Ingushetiya Republic department of the Federal Security Service to provide her with information about her son’s detention. In response, the applicant was informed that her son had not been in the custody of the said authorities and that they had no information as to his whereabouts.

On 13 and 14 July 2009 an investigator at the prosecutor’s office questioned the applicant and her two daughters, L. and Z. Albakova, about the events of 10 July 2009. They gave some information as to the registration number of one of the vehicles used by the alleged abductors and claimed that they could identify the perpetrators.

On 23 July 2009 a senior investigator, G., of the district prosecutor’s office refused to open a criminal investigation into Batyr Albakov’s alleged abduction. In his decision the investigator summed up the statements provided by the applicant’s family as regards the events of 10 July 2009. He further noted that he had not yet received any materials concerning the operation conducted by law-enforcement officers at the applicant’s residence and concluded that there was no evidence to support her allegations.

On 24 July 2009 the applicant provided a statement to the prosecutor’s office of the Ingushetiya Republic, alleging that law-enforcement agents were implicated in her son’s abduction, torture and unlawful killing. Referring to the traces of decomposition on his body, she considered that her son had been executed by the law-enforcement agents before 21 July 2009.

On 27 July 2009 the head of the Sunzhenskiy district investigative division of the prosecutor’s office of the Ingushetiya Republic quashed the decision of 23 July 2009, noting that the inquiry conducted by the investigator was incomplete, and remitted the matter to him for further inquiry.

On 1 August 2009 the Sunzhenskiy District prosecutor’s office opened a criminal investigation concerning an unidentified person on charges of attempted killing of State agents, unlawful possession of firearms and participation in an illegal armed group. The criminal case file was given number 09600099.

On 24 August 2009 the investigator ordered a new forensic examination of Batyr Albakov’s body.

On 28 August 2009 O. conducted a new forensic examination of Batyr Albakov’s body. He reproduced verbatim the summary of his findings in his previous report of 21 July 2009, according to which the deceased had been wearing a camouflage uniform at the time of the examination.

On 10 September 2009 the investigator questioned forensic expert O., who confirmed that he had observed a number of penetrating gunshot wounds on the deceased. He added that he had seen bruises on the deceased’s arms and legs, which could have been caused by blows by, or collisions with, a blunt object. O. denied that the left arm of the deceased had been partially severed. Lastly, he concluded that the cause of death had been multiple gunshots which the deceased must have sustained some four to six hours prior to the examination of the body on 21 July 2009.

On 14 September 2009 the applicant again asked the prosecutor’s office of the Ingushetiya Republic to open a criminal investigation into the abduction and unlawful killing of her son by law-enforcement agents.

On 24 September 2009 the applicant was notified that her application had been added to criminal case no. 09600099.

On 1 November 2009 the investigator closed criminal case no. 09600099. Referring to the crime-scene examination report, forensic evidence (examination of the bullet shell, the machine gun and its ammunition and the fragments of the spent grenade found at the crime scene, and the examination of the deceased’s body) and the statements made by the applicant and her family, the investigator concluded that sufficient evidence collected in the course of the criminal investigation indicated that Batyr Albakov had attempted to kill a law-enforcement agent and the case should be closed in view of his death.

On 3 November 2009 the head of the Sunzhenskiy district investigative division of the prosecutor’s office of the Ingushetiya Republic quashed the decision of 1 November 2009 and re-opened the criminal investigation. In particular, he stated that the investigator had failed to verify the circumstances of Batyr Albakov’s abduction (the alleged perpetrators had not been questioned, the cars used by the persons who had abducted the deceased had not been identified, and Batyr Albakov’s alleged involvement in a terrorist organisation had not been confirmed).

On 1 December 2009 the investigator refused to institute criminal proceedings into the abduction of the deceased. The investigator concluded that Batyr Albakov had been released by “the persons who had abducted him” and that he had been a member of an illegal armed group who “had threatened the life of State agents” on 21 July 2009.

The applicant appealed against the decision of 1 December 2009. According to her, her son had been kidnapped by State agents. He had then been tortured and killed by them. In order to disguise those crimes, the agents had taken her son’s body to the forest and left it there together with a Kalashnikov machine gun, alleging that he had been killed when attempting to assault them. When the applicant had received her son’s body, it had already started to decompose and was covered with numerous injuries such as bruises, burns and cuts. His arm had been almost completely severed.

On 29 March 2010 the Sunzhenskiy District Court of the Ingushetiya Republic dismissed the applicant’s allegations as unsubstantiated, upholding the investigator’s findings of 1 December 2009. On 18 May 2010 the Supreme Court of the Ingushetiya Republic upheld the decision of 16 January 2010 on appeal.

According to the Government, in the course of the investigation into the activities of an illegal armed group, one of the suspects testified that Batyr Albakov had been a leading member of the group.

On 14 May 2012 the criminal investigation into the circumstance of Batyr Albakov’s death was re-opened. The investigator questioned two military officers, I. and M., who had participated in the operation conducted by Ministry of the Interior forces on 21 July 2009. They submitted that in the course of the operation Batyr Albakov had opened gunfire against their military unit and they had had to put an end to his attack and had shot back at him. He had died in the exchange of gunfire. The investigator also noted that he had been unable to determine whether the vehicles used by the alleged abductors had belonged to the State in view of the destruction of the relevant documentation.

On 15 June 2012 the investigator closed the investigation into the events of 21 July 2009.

On 12 October 2010 the applicant submitted the digital photographs of Batyr Albakov’s body taken by his sister to an independent expert centre.

On 1 November 2010 forensic medical experts examined the photographs. They considered that some of them could not be examined in view of their poor quality. From the remainder of the photographs, the experts discerned four wounds: a gunshot wound on the right side of the chest; a deep wound on the left shoulder joint, probably resulting from a blow by a blunt solid object; a surface wound on the left side of the chest (the experts ruled out the possibility of its being a gunshot wound); and a wound on the left side of the back, possibly caused by a hollow rectangular box-shaped object. In addition to the bruises documented in the official forensic report, the experts noted abrasions and bruises on the deceased’s chest. Lastly, they concluded that all the injuries visible in the photographs of Batyr Albakov must have been caused while he was still alive.

Referring to her account of the events of 11 July 2009 (see paragraphs 6-8), the applicant maintained that her son Batyr Albakov had been abducted, detained, tortured and executed by State agents. The Russian authorities had falsely accused him of being a member of an illegal armed group in an attempt to cover up State agents’ unlawful actions.

The Government denied any involvement of its agents in Batyr Albakov’s abduction. They argued that Batyr Albakov had been a member of an illegal armed group and considered that the abduction had been staged by his co-conspirators. In their opinion, the applicant’s allegations concerning her son’s abduction, detention and torture lacked any evidentiary basis.

A number of principles have been developed in the Court’s case-law as regards cases where the Court is faced with the task of establishing facts on which the parties disagree. As to the facts that are in dispute, the Court refers to its jurisprudence requiring the standard of proof “beyond reasonable doubt” in its assessment of evidence (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001VII (extracts)). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the parties when evidence is being obtained has to be taken into account (see Tanış and Others v. Turkey, no. 65899/01, § 160, ECHR 2005–VIII).

The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nonetheless, where allegations are made under Articles 2 and 3 of the Convention, the Court must apply a particularly thorough scrutiny (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, § 32, Series A no. 336; and Avşar, cited above, § 283), even if certain domestic proceedings and investigations have already taken place.

The Court reiterates that it has noted the difficulties for applicants to obtain the necessary evidence in support of allegations in cases where the respondent Government are in possession of the relevant documentation and fail to submit it. Where the applicant makes out a prima facie case and the Court is prevented from reaching factual conclusions owing to the lack of such documents, it is for the Government to convince the Court that the documents in question cannot serve to corroborate the allegations made by the applicant, or to provide a satisfactory and convincing explanation of how the events in question occurred. The burden of proof is thus shifted to the Government and if they fail in their arguments, issues will arise under Article 2 and/or Article 3 (see Toğcu v. Turkey, no. 27601/95, § 95, 31 May 2005; and Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005II).

The Court has previously found the Russian State authorities responsible for extra-judicial executions or disappearances of civilians in the Chechen Republic in a number of cases, even in the absence of final conclusions from the domestic investigation (see Khashiyev and Akayeva, cited above; Luluyev and Others v. Russia, no. 69480/01, ECHR 2006XIII (extracts); Estamirov and Others v. Russia, no. 60272/00, 12 October 2006; and Baysayeva v. Russia, no. 74237/01, 5 April 2007). It has done so primarily on the basis of witness statements and other documents attesting to the presence of military or security personnel in the area concerned at the relevant time. It has relied on references to military vehicles and equipment, on witness accounts, on other information on security operations and on the undisputed effective control of the areas in question by the Russian military. On that basis, it has concluded that the areas in question were “within the exclusive control of the authorities of the State” in view of military or security operations being conducted there and the presence of servicemen (see, for example, Zubayrayev v. Russia, no. 67797/01, § 82, 10 January 2008).

However, on the basis of the account of the events given by the applicant in the present case, the Court has little evidence on which to draw such conclusions.

The Court observes that the documents submitted by the Government provide no evidence of a security operation having taken place on 10 July 2009. As to the applicant’s submissions, she and her relatives witnessed the abduction of Batyr Albakov. In support of her argument that her son had been abducted by State agents, she argued that the men who had taken her son had been armed, spoke Russian, Chechen and Ingush and that some of them had been wearing camouflage uniforms and had arrived in civilian VAZ cars.

The Court is not convinced, however, that those details necessarily prove that the men were State servicemen. The applicant did not allege that the camouflage uniform some of the men had been wearing had borne any of the insignia characteristic of the uniform of State agents. It cannot be ruled out that the uniform, as well as the firearms carried by the men, could have been obtained by them via various, possibly illegal, channels. Furthermore, there are no witness statements confirming that Batyr Albakov was taken to any State agency after his abduction. In this connection, the Court also takes into account the applicant’s own statement to the prosecutor’s office in which she expressed doubts as to the affiliation of the kidnappers with any State agency (see paragraph 12 above).

Accordingly, the information in the Court’s possession does not suffice to establish that Batyr Albakov was kidnapped and held in detention by State agents. In such circumstances, the Court cannot attribute responsibility for the unlawful acts in the present case to the respondent State without additional evidence to that effect.

It has not, therefore, been established to the required standard of proof “beyond reasonable doubt” that State agents were implicated in the abduction and ensuing detention, if any, of Batyr Albakov.


Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

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

The applicant complained of the inadequate conditions of his detention. He also raised a complaint under Article 13 of the Convention.


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary

The applicant was born in 1958. She divorced her husband, B., in 1992. At the time of the events, she was living with her daughter, who was a minor, in a flat in Kyiv.

On 7 March 2005 police officers arrested B. for an administrative offence at Kyiv Pasazhyrskyy railway station. Following the arrest, the police officers found that a driving licence he had shown them did not bear all the requisite information and had a series number linked to another person in the police database.

On 8 March 2005 criminal proceedings were instituted against B. for document forgery committed in conspiracy with others. On that day the police recorded telephone conversations between B. and the applicant which suggested that certain documents relating to his driving licence and his study in the driving school had been kept in her flat. The recorded conversations were later documented in a report on 31 October 2005.

On 10 March 2005 an investigator with the Pivdenno-Zakhidna railway police department, who was dealing with the criminal case against B., applied to the Shevchenkivskyy District Court in Kyiv for search warrants for two flats, including the one belonging to the applicant, where, according to the investigator, B. permanently resided.

On 11 March 2005 the Shevchenkivskyy District Court of Kyiv issued the search warrants. Only the investigator was present at the hearing. With regard to the applicant’s flat, the court found that it was necessary to carry out a search of the flat where B. permanently resided and where the forged documents, as well as the means of and instruments for forging the documents, might be kept.

On the same day the investigator decided to carry out the search of the applicant’s flat. Upon their arrival, the investigator and the other police officers present found that the flat was locked and that nobody responded when they rang the bell. According to the statements of the police officers, as submitted to the investigative authorities, they had contacted the applicant to inform her about the search. According to the applicant, on that day she and her daughter had left for their cottage outside the city; she had had her mobile phone with her and had not been contacted by the police.

The police officers called a task force to open the door to the flat. Once the door had been opened, the investigator and three police officers carried out the search, with two attesting witnesses and a representative of the building maintenance organisation in attendance. In the course of the search the police officers seized items of property, which they listed in a report. The list included, among other things: floppy disks, compact discs, vehicle registration certificates, keys, a box containing cash, certificates issued in B.’s name, a painting and an icon.

On 14 March 2005 the applicant returned home and found the door to her flat damaged and sealed. With the investigator’s permission, she entered the flat and found that it was in a state of disarray. She also found that some items of property not included in the list of seized items were missing: four mobile phones, top-up cards for mobile phones, jewels and a bottle of whisky.

The applicant made a complaint to the law-enforcement authorities regarding the actions of the police officers carrying out the search. She claimed that requirements of domestic law had been breached in the course of the search and that some items of property had disappeared.

On 19 April 2005 the Kyiv transport prosecutor’s office commenced a criminal investigation with regard to the possible theft of the applicant’s property.

On 5 July 2005 the applicant was granted victim status and her civil claim was admitted to the file. On the same day the investigation was suspended, as it was not possible to identify the possible perpetrators of the crime.

On 1 October 2005 the Kyiv city prosecutor’s office reversed the decision of 5 July 2005 as regards the suspension of the proceedings, finding that the investigation had not been carried out comprehensively: the people participating in the search of the applicant’s flat had not been questioned properly, the mobile phones and the top-up cards had not been found, and the investigative measures implemented had not been properly documented.

On 30 November and 26 December 2005 certain seized items, including the painting, the icon and the missing mobile phones, were returned to the applicant.

On 28 December 2005 the transport prosecutor’s office of Kyiv refused to investigate the possible neglect of official duties by the police officers as regards the failure to fully document the items seized. It considered that the mobile phones had not been included in the list of seized items owing to a technical mistake. The phones had been given back to the applicant and, consequently, she had sustained no damage. It was concluded in the end that there had been no objective evidence to suggest that the police officers had neglected their duties.

On 9 June 2006 the Kyiv city prosecutor’s office found that the investigation into the alleged theft had not been carried out thoroughly, and had been delayed. It requested the Kyiv city prosecutor’s office to organise a proper investigation of the case.

On 30 June 2006 an investigator with the Kyiv transport prosecutor’s office terminated the investigation, stating that there had been no evidence to suggest that any item had been stolen from the applicant’s flat during the search.

The applicant challenged that decision in court.

On 7 August 2006 the Holosiyivskyy District Court of Kyiv dismissed the applicant’s complaint, considering that the investigator had taken the necessary measures and had lawfully closed the case.

The applicant appealed.

On 16 November 2006 the Kyiv City Court of Appeal quashed the first-instance court’s decision of 7 August 2006 and the investigator’s decision of 30 June 2006 as unsubstantiated, and remitted the case for further investigation.

As of 22 July 2011 the investigation was ongoing. No further information was provided to the Court.

On 16 June 2005 the Kyiv transport prosecutor, having conducted a pre-investigation inquiry, refused to commence criminal proceedings in relation to the possible abuse of power or ultra vires actions by the police officers during the search of the applicant’s flat. In his decision, the prosecutor referred to the statement of a police officer that the applicant had been contacted on her mobile phone and informed that the search would be carried out, and the door to the flat had only been broken down after her refusal to appear. The prosecutor also stated that the search had been carried out in accordance with established procedure; it had been observed by two attesting witnesses and the representative of the building maintenance organisation, as required by the domestic law.

On 21 June 2005 the applicant challenged the decision of 16 June 2005 in court.

On 7 July 2005 the Holosiyivskyy District Court of Kyiv found that the decision of 16 June 2005 was well-founded. The court stated that the prosecutor had adopted the decision after interviewing the police officers, two attesting witnesses, and a representative of the building maintenance organisation who had been involved in the search, in addition to the applicant and her former husband. The court further stated that the prosecutor had examined the search warrant, search report and other relevant documents, and had come to the correct conclusions when refusing to open an investigation.

The applicant appealed.

On 8 September 2005 the Kyiv Court of Appeal upheld the decision of 7 July 2005, finding that the prosecutor had lawfully refused to open an investigation. The applicant’s contentions were dismissed as groundless.

The applicant appealed on points of law.

On 25 November 2005 the Supreme Court dismissed the applicant’s appeal, noting that the impugned court decisions were not open to review.


Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant, Mr Dănuț Augustin Mureşan, is a Romanian national, who was born in 1964 and lives in Oradea. He was represented before the Court by Mr R. Doseanu, a lawyer practising in Oradea.

The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs.

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

At the relevant time the applicant, a career military officer (a major), was the liaison person in charge of supervising and approving works being undertaken for the renovation and modernisation of his military base.

On 28 April 2004 the military branch of the Anti-Corruption Prosecutor’s Office committed the applicant for trial on several counts of corruption concerning public tenders. B.V., a civilian, was also indicted by the prosecutor for bribing the applicant. The prosecutors in charge of the indictment were career officers: a colonel-magistrate and a captainmagistrate. B.V. failed to appear in court throughout the proceedings. The summons had been sent to an address in Romania of which his counsel had informed the courts. However, according to information received by the courts from the authorities, B.V. was living in the United States of America (“the USA”) at that time.

The Bucharest Regional Military Tribunal, sitting in a panel composed of two colonel-magistrates, examined the case as a firstinstance court. It heard testimony from witnesses for the prosecution and allowed two witnesses for the defence to be called. However, those two witnesses failed to appear. The applicant gave statements before the court.

On 10 September 2004 the Military Tribunal found the applicant guilty as charged and imposed a suspended sentence of three years and six months.

The parties appealed. The applicant maintained his innocence and argued that the first-instance court had made an incorrect interpretation of the evidence in the file.

The Bucharest Military Court of Appeal, sitting in a panel composed of two colonel-magistrates, gave judgment on 3 May 2005. In an extensively reasoned decision it dismissed the appeals and upheld the firstinstance judgment.

The parties appealed on points of law. The applicant reiterated the representations he had made in the appeal proceedings, and in addition argued that B.V. should be summoned at his address in the USA and questioned by the court, as his statements could have an influence on the applicant’s situation.

In a final decision of 15 March 2006 the criminal section of the High Court of Cassation and Justice dismissed the appeal lodged by the applicant, as it considered that the lower courts had correctly established the facts of the case and classified the crimes in law. It reiterated the arguments advanced by the Military Court of Appeal concerning the claims raised by the applicant in his previous appeal. It also considered that the evidence in the file was sufficient to secure the applicant’s conviction and that there were no doubts that could have been clarified by statements from B.V. The High Court allowed the appeal lodged by the prosecutor’s office and ordered that the applicant serve his sentence in detention.