Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for home;Respect for private life)

Dmitry Dedov;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

The first applicant, Ms Dina Yakovlevna Yuditskaya, was born in 1950. The second applicant, Ms Natalya Vladimirovna Yuditskaya, was born in 1979. The third applicant, Mr Aleksandr Viktorovich Kichev, was born in 1966. The fourth applicant, Ms Yelena Robertovna Lavrentyeva, was born in 1958. The fifth applicant, Mr Valeriy Valeryevich Frolovich, was born in 1966. They live in Perm.

The applicants are members of the Perm Bar. They are lawyers with the “Biznes i Pravo” law firm. At the relevant time, the firm’s premises comprised a reception area, five offices and a conference room. The first and second applicant shared an office. The fourth applicant and lawyer P. each had an individual office. The third and fifth applicants shared an office with lawyer I.T. Each lawyer had his or her own computer. There was also one more computer shared by all lawyers.

On 1 December 2004 a criminal investigation was opened into bribe-taking by court bailiffs. One of the charges involved Kirov Perm Factory (the “Factory”), a State unitary enterprise, and bailiff T. According to the Government, in January 2005 the Factory’s director K. had paid 300,000 roubles (RUB) to a bailiff as a bribe. The actual bagman for the bribe cash had been bailiff T. In order to legalise “the transaction”, T. had asked his brother I.T. to sign a fictitious legal assistance contract with the Factory.

On 7 February 2005 I.T. signed a legal assistance contract with the Factory in respect of legal advice on tax and other matters.

According to the Government, on an unspecified date the investigator questioned K. and T. Both of them admitted to having been involved in the bribery scheme.

On 6 May 2005 the Leninskiy District Court of Perm issued a search warrant authorising a search of the premises of the “Biznes i Pravo” law firm. The entire reasoning read as follows:

“On 1 December 2004 a criminal case was opened into [aggravated bribery] against Perm Regional Court bailiffs’ service no. 48. The investigation established that the State unitary enterprise Kirov Perm Factory and the ‘Biznes i Pravo’ law firm had entered into a fictitious contract in order to cover up the bribery. The investigator is seeking authorisation for a search of the premises of the ‘Biznes i Pravo’ law firm with a view to seizing documents that may be relevant to the case.

[The court] considers that the investigator’s request is justified and must be granted because there are reasons to believe that documents of the ‘Biznes i Pravo’ law firm may contain evidence relevant to the criminal case.”

On 16 May 2005 the investigator conducted a search of the applicants’ premises. The applicants and two attesting lay witnesses were present during the search.

According to the applicants, they voluntarily handed over the documents sought by the investigators; nevertheless, all the offices, including those of the applicants who had no relationship with the Factory, were searched. The investigators took away all the desktop and laptop computers and copied the entire contents of their hard disks. The computers were returned one week later.

The applicants appealed against the District Court’s decision of 6 May 2005. They submitted that the contract with the Kirov Perm Factory had been signed by I.T. in his personal capacity as a lawyer rather than by the “Biznes i Pravo” law firm and that there had been no grounds to search the entire premises of the law firm. Moreover, the District Court had declared that contract to be fictitious even before a judgment had been handed down. The information held on their computers had been protected by the attorney-client privilege and the search and seizure had amounted to a gross violation of the Advocates Act.

On 23 June 2005 the Perm Regional Court dismissed the applicants’ appeal, finding that the search warrant had been lawful and justified. In the Regional Court’s view, the District Court had not found that the contract was fictitious but had merely mentioned that the opinion of the investigation was that it had been fictitious.


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

Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

The applicant was born in 1967 and lives in Budapest.

He complained of the excessive length of civil proceedings which lasted six years and four months (between 26 November 2007 and 2 April 2014) for two levels of jurisdiction.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Just satisfaction reserved (Article 41 - Just satisfaction)

Aleš Pejchal;Armen Harutyunyan;Guido Raimondi;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Robert Spano

The applicant was born in 1969 and lives in Yerevan.

In 1991 the applicant, without permission, constructed a building consisting of a shop/storage and an unfinished construction and measuring in total 500 sq. m., on a 1000 sq. m. plot of land situated in a suburb of Yerevan. The applicant alleged that this land was not being used by anyone so he had cleaned it and constructed the building using his own means. It appears that the applicant used this property for the following ten years.

In 2001 the applicant instituted special (non-contentious) proceedings in the Shengavit District Court of Yerevan seeking recognition of his ownership right in respect of that building by virtue of acquisitive prescription under Article 187 of the Civil Code (CC), as well as his right of use in respect of the plot of land.

On 8 June 2001 the Shengavit District Court decided to recognise the applicant’s ownership right in respect of the building and to leave the plot of land under his use. The District Court found that the building in question had no registered owners and the applicant had openly and in good faith had it in his possession and used it without interruption for over ten years, which entitled him to become its owner under Article 187 of the CC.

No appeal was lodged within the prescribed 15-day time-limit, so this judgment became final.

On 9 April 2002 a certificate was issued by the local branch of the State Real Estate Registry on the basis of this judgment, confirming the applicant’s ownership in respect of the building. The certificate further stated that, by virtue of Article 118 § 4 of the Land Code (LC), the applicant enjoyed a right of lease in respect of the plot of land for a period of 99 years.

On 20 May 2003 the applicant, pursuant to Article 118 § 7 of the LC, paid the cadastral value of the plot of land which amounted to AMD 1,465,500 Armenian drams (AMD).

On 22 May 2003 the applicant’s right of ownership was registered in respect of the plot of land and a relevant ownership certificate was issued.

The applicant regularly paid property tax on both the building and the plot of land in the following years.

On 27 July 2008 а topographic examination of the land was carried out by a representative of “Townplanning” State Closed Joint-Stock Company founded by, and acting on behalf of, the Yerevan Mayor’s Office. The relevant diagram mentioned the applicant as the owner of the land in question.

On 11 November 2008, a third person addressed a letter to the Yerevan Mayor’s Office, stating that she had bought a plot of land at an auction held on 16 June 2008. When she later applied to the local branch of the State Real Estate Registry to have her ownership right registered, she was informed that the plot of land in question overlapped with the neighbouring plot of land. She requested that the auction be cancelled in its part concerning the overlapping part of the plot, the money paid for that part be returned and a new sale contract be concluded in respect of the remaining part of her plot.

The Government alleged that the neighbouring plot of land was the applicant’s and that following this letter there was an exchange of correspondence between the Yerevan Mayor’s Office and the local branch of the Real Estate Registry.

On 24 February 2009 the local branch of the State Real Estate Registry addressed a letter to the Mayor’s Office stating, in reply to an inquiry by the Mayor dated 17 February 2009, that the registration of the applicant’s ownership and lease rights had been performed on 9 April 2002 on the basis of the judgment of the Shengavit District Court of Yerevan of 8 June 2001. This letter was received by the Mayor’s Office on 18 March 2009 and attached to it was a copy of the judgment of 8 June 2001.

On 7 May 2009 the Deputy Prosecutor General lodged an appeal against the judgment of 8 June 2001 seeking to quash it and to dismiss the applicant’s acquisitive prescription claim, arguing that the District Court had erred in its interpretation and application of the relevant provisions of the substantive law. The land had belonged to the State and hence had not been ownerless at the material time, so the District Court should not have applied the acquisitive prescription rules to the case. As a result, the judgment had damaged the State’s pecuniary interests. The Deputy Prosecutor General further argued that the District Court had been obliged to involve, as parties to the proceedings, the local branch of the Real Estate Registry, as well as the Yerevan Mayor’s Office as the authority vested with management of land. By failing to do so, and adopting a judgment affecting their rights in their absence, the District Court had also violated the procedural law. The Deputy Prosecutor General requested the Court of Appeal to restore the expired time-limit for appeal, arguing that the Yerevan Mayor’s Office had not been aware of the judgment of 8 June 2001 and therefore had been deprived of the possibility of lodging an appeal, while the Prosecutor’s Office had been informed about that judgment by the Mayor’s letter of 24 February 2009.

On 18 May 2009 the Yerevan Mayor’s Office also lodged an appeal against the judgment of 8 June 2001, raising similar substantive and procedural arguments. As regards the procedural issues, it claimed that the Shengavit District Court had violated the relevant provisions by examining the case through special proceedings and not involving it as a party, despite the fact that the Mayor’s Office was the authority vested with management of public land in Yerevan and therefore the judgment affected its rights. The Mayor’s Office further claimed that it had become aware of the contested judgment by a letter from the local branch of the State Real Estate Registry dated 24 February 2009, which had been received by the Mayor’s Office on 18 March 2009. It finally added that the letter of the Judicial Department of Armenia of 6 February 2009 had been accompanied by a copy of another judgment of the Shengavit District Court, dated 26 June 2001, which was unrelated to the present case.

On an unspecified date, the applicant lodged a reply to the appeals. He argued, inter alia, that on 20 May 2003 he had paid the cadastral value of the plot of land and bought it through direct sale. Furthermore, the fact that the Yerevan Mayor’s Office had been aware of his becoming the new owner of the plot of land was confirmed by the compulsory payments he had to make for that property. Thus, on the one hand, by virtue of Article 61 of the LC, the Yerevan Mayor’s office had alienated the plot of land to him, received a sum of money and since then had continued to levy property tax and, on the other hand, it now claimed to be unaware of that transaction. Moreover, the Yerevan Mayor’s Office had been notified of his becoming the new owner of the plot of land by virtue of the Law on the State Registration of Rights in Respect of Property. Hence, the Mayor’s Office had been aware of the registration of his property rights on the basis of the court judgment of 8 June 2001 and of the direct sale of the plot of land, and had not – as it claimed – become aware of that judgment from a letter of 24 February 2009.

On 12 June 2009 the Civil Court of Appeal decided, with reference to Article 207 § 5 of the Code of Civil Procedure (CCP), to admit the appeals, stating:

“The Yerevan Mayor’s Office and the General Prosecutor have missed the timelimit for appeal prescribed by law and they submitted motions seeking to find this to be valid, arguing that the Mayor’s Office found out about the judgment [of 8 June 2001] from a copy of the judgment attached to the letter of the Judicial Department of Armenia of 6 February 2009, while the General Prosecutor’s Office from the letter of the Yerevan Mayor’s Office of 24 February 2009.

The court finds that the motions of the Yerevan Mayor’s Office and the General Prosecutor’s Office are substantiated and must be granted.”

On 18 July 2009 the Civil Court of Appeal decided to grant the appeals, to quash the judgment of 8 June 2001 and to dismiss the applicant’s acquisitive prescription claim. The Court of Appeal found, in particular, that the Shengavit District Court had applied Articles 178 and 187 of the CC, which were not applicable to the case, and failed to apply Articles 168 and 188 of the CC, thereby reaching incorrect findings. The building in question was an unauthorised construction built on a plot of land belonging to the State. Hence, only the State could have acquired ownership rights in respect of that building.

The applicant lodged an appeal on points of law.

On 9 September 2009 the Court of Cassation decided to return the appeal as inadmissible for lack of merit.

Following these decisions, the authorities instituted proceedings against the applicant seeking annulment of registration of his ownership rights in respect of the building and the plot of land, which was granted by the courts.


No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)

Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Georges Ravarani

The applicant was born in 1964 and lives in Vilnius.

In 1989 the applicant and R.Ž. started a company which imported and sold various goods. D.A., who was the stepson of the applicant’s sister, sometimes worked as a security guard on the company’s premises and as the applicant’s bodyguard.

In July 1993 R.Ž. and another individual, A.Č., were found murdered in R.Ž.’s flat in Vilnius.

In August 1993, while the applicant was in a car with D.A., the latter threatened him with a firearm. When the applicant tried to escape, D.A. hit him with the barrel of the gun, fired some shots into the ground, took the applicant’s Rolex watch and fired at several passers-by, injuring them.

On an unspecified date the authorities opened a pre-trial investigation into the murder of R.Ž. and A.Č. (see paragraph 7 above) and the incident between the applicant and D.A. in the car (see paragraph 8 above).

In September 1993 the Lithuanian authorities issued a search warrant in respect of D.A. It appears that he had left Lithuania and lived in several different countries. In July 2009 D.A. was apprehended in Ukraine and subsequently extradited to the Lithuanian authorities.

In December 2007 the applicant was officially notified that he was suspected of having organised the murder of R.Ž. and A.Č. for personal gain while they were in a helpless state, as set out in Article 129 § 2 (2), (5), (6) and (9) of the Criminal Code (see paragraph 34 below). It was suspected that the applicant had acted together with D.A. Further details were subsequently added to that notice in September 2012 and March 2013.

In October 2009 D.A. was officially notified that he was suspected of having murdered R.Ž. and A.Č. for personal gain while they were in a helpless state. D.A. was also notified that he was suspected of having attempted to murder the applicant and several other individuals, as set out in Article 129 § 2 (5), (7), (8), (9), (10) and (11) of the Criminal Code (see paragraphs 8 above and 34 below).

In May 2010 the prosecutor decided to separate the pretrial investigation against the applicant and D.A. (see paragraph 37 below). He noted that the investigation concerned two criminal offences – the murder of R.Ž. and A.Č. (see paragraph 7 above) and the attempted murder of the applicant and other individuals (see paragraph 8 above). The prosecutor observed that the applicant had been suspected of the former offence and that he had been granted victim status in respect of the latter offence, and the prosecutor considered that one person could not have dual status in the same investigation. He also noted that the investigation in respect of D.A. was almost complete and the case would soon be ready for trial, whereas the investigation in respect of the applicant was still ongoing. For those reasons, the prosecutor concluded that it was necessary to separate the investigation against the applicant from that against D.A.

D.A. was charged with the murder of R.Ž. and A.Č. for personal gain while they were in a helpless state (hereinafter “the first charge”) and with the attempted murder of the applicant and several other individuals (hereinafter “the second charge”). The criminal case was transferred to the Vilnius Regional Court for examination on the merits. With regard to the first charge, the applicant had the status of witness, and with regard to the second charge, he had the status of victim.

The Vilnius Regional Court issued its judgment on 20 June 2011. It found D.A. guilty of the first charge as set out in Article 129 § 2 (2), (5) and (9) of the Criminal Code (see paragraph 34 below). The court based its conclusion on multiple witness testimonies, the examination of various material objects, and conclusions delivered by forensic experts.

One of the documents examined by the court was a handwritten letter which D.A. had addressed to the applicant at some point in 1993. The applicant had received that letter from D.A.’s father and presented it to the police. A forensic examination revealed that the letter had indeed been written by D.A. In the letter, D.A. stated that he had killed R.Ž. on the applicant’s orders so that the applicant would get all the profit from their business. D.A. also alleged that the applicant had bought him weapons to carry out unspecified criminal activities for the applicant’s benefit, and had bribed judges and prosecutors in order to help D.A. avoid criminal responsibility for some unspecified offences. D.A. further alleged that the applicant had promised to pay him for the murder, but had still not done so, and that that had been the reason for their conflict in the car (see paragraph 8 above). He threatened to forward the letter to various newspapers if the applicant failed to pay him.

When questioned by the court, D.A. submitted that the contents of the letter were false. He claimed that the applicant had owed him some money for another debt, so he had made up the story in the letter in order to scare the applicant into paying him back. The applicant, who was questioned as a witness in respect of that charge, also denied all the allegations in the letter and stated that he had no connection to the murder.

However, the court held that the letter constituted D.A.’s confession to the murder. The court considered it unlikely that D.A., who at the time of writing the letter had already been suspected of the murder, would falsely incriminate himself in the letter to the applicant, especially as their relationship at that time had not been friendly. It then stated that several of the allegations in the letter had been proved – for example, the applicant had admitted to having bought weapons for D.A., and there had indeed been several sets of criminal proceedings against D.A. which had eventually been discontinued. The court concluded:

“As the facts laid out in the letter are consistent and objective, there are no grounds to doubt the truthfulness of the contents of the letter; the statement in the letter that [D.A.] – upon the orders of the individual in respect of whom a separate pretrial investigation was opened – killed [R.Ž.] so that all the profit would go to that individual alone, and that all the money which they had jointly owned would belong to the individual in respect of whom a separate pre-trial investigation was opened, must be considered true.”

The descriptive part of the judgment also stated that D.A. had killed R.Ž. and A.Č. while acting with unidentified accomplices. However, the court did not take that into account as an aggravating circumstance.

As for the second charge against D.A., the court changed its legal classification. The court considered that it had not been proved that D.A. had intended to kill the applicant or any of the passers-by (see paragraph 8 above). However, it found D.A. guilty of stealing the applicant’s property of high value (the Rolex watch) while threatening him with a firearm, and of negligently injuring several other individuals in his attempt to escape. D.A. was given a cumulative sentence of sixteen years’ imprisonment. The court also allowed the applicant’s civil claim submitted in respect of the second charge in its entirety, and ordered D.A. to pay him 40,000 Lithuanian litai (LTL – approximately 11,600 euros (EUR)) in pecuniary damages for the stolen watch.

The prosecutor, D.A., the applicant and another victim submitted appeals against the Vilnius Regional Court’s judgment of 20 June 2011. In his appeal, the applicant argued that the court had de facto found him guilty of having instigated the murder of R.Ž. and A.Č., despite the fact that he had not been the accused in that case and had not been able to defend himself. The applicant asked the Court of Appeal to remove from the descriptive part of the judgment all the passages which alleged his involvement in the murder, in particular those which discussed D.A.’s letter (see paragraphs 16-18 above).

In its judgment of 12 June 2012 the Court of Appeal amended the first-instance judgment in part. It held that the Vilnius Regional Court had erred in changing the legal classification of the second charge, found D.A. guilty of the second charge as it had been originally presented (see paragraph 14 above), and increased the sentence to nineteen years’ imprisonment. In addition, the court removed from the descriptive part of the judgment the phrase that D.A. had killed R.Ž. and A.Č. while acting with unidentified accomplices (see paragraph 19 above) – it held that, without identifying such individuals, inter alia, it could not be determined whether there had been an intention for them to act together.

The court dismissed D.A.’s appeal contesting his guilt in respect of both charges. With regard to the first charge, D.A. argued, inter alia, that his letter to the applicant (see paragraphs 16-18 above) should not have been considered evidence of his guilt. In response to D.A.’s arguments, the court stated:

“D.A.’s guilt in respect of the charge against him – the murder of R.Ž. and A.Č. for personal gain while they were in a helpless state – has been proved by a series of pieces of indirect evidence collected in the case and adequately assessed in the [firstinstance] judgment, as well as one of the main pieces of direct evidence D.A.’s letter to [the applicant], allowing [the court] to make well-founded conclusions regarding the nature of the convicted individual’s actions and the form of his guilt.

It is underlined that the principal statements of the letter, assessed together with the other evidence collected in the case, correspond to the events which took place at that time ... The chamber concludes that the facts indicated in D.A.’s letter are not made up, he refers to actual events which took place in his life, and there is no indication that he intended to threaten [the applicant] with that letter to make the latter pay him money.”

As to the applicant’s appeal, the court stated:

“Contrary to what is alleged in [the applicant’s] appeal, the first-instance court, while examining the evidence related to [D.A.’s] guilt in respect of the murder of R.Ž. and A.Č., did not assess [the applicant’s] actions relating to the organisation of the murder of those individuals. As can be seen from the case file, on 22 December 2007 [the applicant] was notified that he was suspected of having organised the murder of R.Ž. and A.Č. ... [The applicant] is entitled to exercise his defence rights and defend himself against the accusation in that criminal investigation. Only that investigation can determine [the applicant’s] guilt in respect of the criminal offence of which he is suspected ... [The applicant] essentially contests his guilt in respect of the part of the judgment in which he does not have the status of either convicted individual or victim ... and his request goes beyond his procedural rights as a witness ... [The applicant’s appeal] is thereby dismissed.”

D.A. and the applicant submitted appeals on points of law against the Court of Appeal’s judgment of 12 June 2012. The applicant raised essentially the same arguments as in his previous appeal (see paragraph 21 above).

On 28 February 2013 the Supreme Court dismissed the appeals. In response to the applicant’s submissions, the Supreme Court stated that the criminal proceedings in question concerned D.A.’s and not the applicant’s guilt in respect of the murder of R.Ž. and A.Č., and the applicant had not had victim status with regard to that charge, so he was not legally entitled to submit an appeal on points of law (see paragraph 40 below).

On 11 April 2013 the applicant was served with an indictment and charged with having incited D.A. and another unidentified individual to murder R.Ž. and A.Č. for personal gain while they were in a helpless state, as set out in Article 24 § 5 and Article 129 § 2 (2), (5), (6) and (9) of the Criminal Code (see paragraphs 34-35 below). The case was transferred to the Vilnius Regional Court for examination on the merits.

When questioned by the court, the applicant denied his guilt in respect of the murder. He submitted that all the allegations against him in D.A.’s letter had been false, and that D.A. had written the letter with the purpose of blackmailing the applicant, which was why the applicant had decided to give it to the police. D.A. was questioned as a witness and gave essentially the same statements as in the previous criminal proceedings, including those relating to his letter (see paragraph 17 above).

On 9 October 2014 the Vilnius Regional Court acquitted the applicant. It considered that neither direct nor indirect evidence adequately proved that he was guilty of having instigated the murder of R.Ž. and A.Č. The court underlined that it had not been proved that the death of R.Ž., who had been the applicant’s business partner, had been beneficial to the applicant; on the contrary, after his death, their company had suffered great losses and had eventually ceased operating. In addition, the court considered that the prosecution had not established any motive for the applicant to kill A.Č.

With regard to D.A.’s letter, the court stated that, although the letter included facts which were true, some of its other contents appeared to be “characteristic of blackmail”, in particular those which alleged that the applicant had bought D.A. weapons specifically to commit criminal offences, or that he had bribed some officials to help D.A. avoid criminal responsibility (see paragraph 16 above). The court also considered that D.A.’s threat to forward the letter to the media further indicated that it had been written with the purpose of blackmailing the applicant. Lastly, the court underlined that the applicant had not paid D.A. the money which he had demanded, nor had he destroyed the letter, but had submitted it to the police, which confirmed that the applicant had not been connected to the murder of R.Ž. and A.Č.

The prosecutor appealed against that judgment. He submitted, inter alia, that the contents of D.A.’s letter had been examined in the previous criminal proceedings which had been concluded by a final court judgment (see paragraphs 18, 23 and 26 above), and the courts in the proceedings against the applicant should have followed that assessment.

On 5 March 2015 the Court of Appeal upheld the applicant’s acquittal. In response to the prosecutor’s arguments concerning D.A.’s letter, it stated that the courts in the criminal proceedings against D.A. had not examined the applicant’s actions in relation to the murder of R.Ž. and A.Č., so the prosecutor’s arguments had to be dismissed.

From the information which the parties submitted to the Court, it appears that no appeal against that judgment was lodged before the Supreme Court.


André Potocki;Angelika Nußberger;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicants, Mr S.N. (“the first applicant”) and Mr T.D. (“the second applicant”), are two Russian nationals, who were born in 1977 and 1972 respectively and live in Moscow. The President of the Section decided that their names should not be disclosed (Rule 47 § 4 of the Rules of the Court). The Chamber also decided not to notify the Government of the Russian Federation of the present application on the grounds that Article 36 § 1 of the Convention did not apply in the circumstances of the present case (see I v. Sweden, no. 61204/09, §§ 40-46, 5 September 2013).

The applicants were represented before the Court by Ms C. Kruger and Mr O. Rode, lawyers practising in Strasbourg and Riga respectively. The Latvian Government (“the Government”) were represented by their Agent, Mrs K. Līce.

The applicants complained, in particular, that their expulsion to the Russian Federation had put them at risk of being subjected to torture or inhuman treatment contrary to Article 3 of the Convention, and that they did not have effective remedies in that regard. They also complained under Article 8 of the Convention about interference with their family life and absence of procedural safeguards in that regard.

On 6 February 2014 the above-mentioned complaints were communicated to the Government.

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

The applicants were born in what is now the Chechen Republic in the Russian Federation. The first applicant moved to Latvia in 1997 and has lived there ever since, on the basis of regularly renewed residence permits. In 2002 he was granted a permanent residence permit, which was renewed in 2007 and 2012. The second applicant moved to Latvia in 2002 and has lived there subsequently, on the basis of regularly renewed residence permits.

On 26 July 2012 the Latvian Minister of Interior adopted decisions to include the applicants in the list of aliens prohibited from entering and remaining in Latvia and the Schengen Area (hereinafter “the blacklist”) for an indeterminate period of time. These decisions were taken on the basis of a report by the Constitution Protection Bureau, one of the Latvian intelligence services (Satversmes aizsardzības birojs – hereinafter “the SAB”), submitted on 9 July and amended on 20 July 2012. The SAB had informed the Minister of Interior that both applicants had been engaging in criminal activity and planning to commit a serious crime, and hence posed a threat to national security and public order and safety. The part relating to national security grounds was identical in both decisions and stated:

“The SAB indicated that the information obtained attests to [the applicant’s] criminal activity in a leading role within an organised criminal group. Similarly, it is apparent from the information provided by the SAB that [the applicant] is planning to commit a serious or especially serious crime which may have irreversible consequences on national security. As a consequence [the applicant] in his activity [is] a threat to public order and national security.”

The applicants were not made aware of the SAB’s report.

The decision concerning the first applicant pointed to the fact that he was married to a Russian national. It was therefore concluded that he would not encounter any obstacles in meeting his spouse outside Latvia.

In the decision concerning the second applicant it was noted that he was married to a Latvian national. His former wife (a Russian national) and their minor child were also residing in Latvia. The decision went on to state that an interference with the second applicant’s right to respect for his private and family life was justified, taking into account, among other things, that during the nine years he had resided in Latvia “he had not learned the [State language], which [had] clearly obstructed his integration into society”. It was also pointed out that he had moved to Latvia when he was over eighteen, which meant that his ties to his native country had not disappeared. With regard to him having an opportunity to meet his young son, the decision stated that he had already agreed in 2002, while still residing in Russia, that the child would reside with his mother in Latvia. It was therefore concluded that he “would not be entirely deprived of opportunities to meet [his] son” in Russia. The interference with his family life with his spouse, a Latvian national, was held to be “commensurate with the interests of the society”.

Both decisions mentioned that under section 61(8) of the Immigration Law, an appeal could be lodged with the Prosecutor General’s Office. The decisions became effective on the day they were signed, 26 July 2012, and were sent to the applicants’ declared addresses in Riga. On 3 August 2012 they were expelled from Latvia (see paragraph 23 below).

On 3 August 2012 the applicants, through their legal representative, applied to the Administrative Cases Division of the Senate of the Supreme Court to challenge the Minister of Interior’s decision to put their names on the blacklist. On 7 and 9 August 2012 the Senate refused to accept the applicants’ complaints for lack of jurisdiction, indicating that such reviews fell within the competence of the Prosecutor General if the decision had been adopted “on the basis of information obtained as a result of intelligence or counterintelligence”. The decisions also referred to the Constitutional Court’s judgment of 6 December 2004 (see paragraph 53 below) which said that the prosecutor’s review as such did not infringe the right of access to court. The Senate’s decision was final.

On 20 August 2012 the applicants’ legal representative appealed to the Prosecutor General asking, inter alia, that the decision to put them on the blacklist be revoked and that he be given access to the SAB’s report of 9 and 20 July 2012, which had formed the basis of the Minister of Interior’s decision. On five occasions the appeals were amended to include, inter alia, the allegations that in 1998 the applicants had collaborated with the Latvian State security services in a hostage liberation operation in the Chechen Republic. Later the appeal was amended to include the second applicant’s allegation that subsequently he had refused to cooperate with a SAB officer in relation to certain activities of the leaders of the Chechen community in Latvia, and therefore the expulsion had been instigated in revenge for that.

In a reply of 24 September 2012 the Prosecutor General dismissed the request for access to the requested documents. He noted that the possibility to familiarise oneself with information containing State secrets, if necessary with the assistance of specially authorised representatives, as provided in section 65³ of the Immigration Law (see paragraph 51 below), applied only to administrative court proceedings. The Prosecutor General in his reply also stated:

“... By envisaging in section 61(8) of the Immigration Law that an appeal against a decision the Minister of Interior adopted on the basis of information obtained in the course of intelligence or counterintelligence activities carried out by a State security institution could be lodged with the Prosecutor General [but] not a court, the legislator wished especially to protect information obtained in the course of intelligence or counterintelligence activities; [granting] access to such information to persons not possessing special permission ... could seriously infringe the work of the State security institutions ... thus seriously impairing national security.”

In a final decision of 23 November 2012 the Prosecutor General reformulated the Minister of Interior’s decision of 26 July 2012 (see paragraph 7 above). The part relating to national security grounds was identical in his decisions relating to both applicants and stated:

“Having familiarised myself with the results of the review carried out by the Prosecutor [General’s Office] and the information provided in the conclusions and supporting documents, [I] find that the SAB, as a competent State institution, had grounds to consider that [the applicant] had a role in an organised criminal group and [was] one of its leaders, [had] committed or [was] planning to commit a serious or especially serious crime, and [that his] presence in Latvia was a threat to public order and national security as confirmed by the information [obtained by the SAB in the course of counterintelligence activities], which I have verified and examined.

Nevertheless, when adopting a decision to include [someone] in the list of aliens prohibited from entering the Republic of Latvia, the Minister must assess whether the behaviour of the foreigner and the nature and scope of information held by the competent institution is sufficient to establish any of the ... conditions set out in section 61(1) of the Immigration law.

Having examined the information held by the SAB, [I] consider that [the information] is not sufficient to establish the conditions set out in section 61(1)(1) and (3), [namely] that [the applicant is] acting in an anti-governmental or criminal organisation or [has] a role in such an organisation, and has carried out or is planning to commit a serious or particularly serious crime.

At the same time, the nature and scope of the SAB information obtained in the course of counterintelligence activities clearly attest to [the fact] that [the applicant’s] activity is a threat to Latvian national security and public order and safety, as well as a threat to the national security of the States in the Schengen [Area]. The condition set out in section 61(1)(2) has therefore been established, which serves as a basis for the adopted decision to include [the applicant] in the list of aliens prohibited from entering the Republic of Latvia.”

The Prosecutor General also dismissed the applicants’ fear that they could be exposed to ill-treatment in Russia due to their alleged involvement in the hostage liberation in 1998, as that involvement remained unconfirmed. In particular, the witnesses questioned had provided controversial submissions, which did not correspond to the testimony of other witnesses, including the statements obtained from the hostages liberated during the operation. In examining the allegations about the risk of ill-treatment after expulsion, the information the Prosecutor General’s Office had obtained from the Border Guard Service and the applicants’ relatives confirmed that on numerous occasions between January 2010 and July 2012 the applicants had entered the Russian Federation, including the Chechen Republic.

In relation to the complaint of unlawful activity by a SAB officer, the Prosecutor General noted that the meeting between the SAB officer and the second applicant had been recorded in accordance with the law, and that the second applicant’s allegations were ill-founded.

Subsequently, in the light of the Prosecutor General’s decision to reformulate the basis on which the applicants’ names had been put on the blacklist, on 22 August 2013 their legal representative wrote to the Minister of Interior and director of the SAB asking for a review of the decisions to include them in the list.

On 25 September 2013 the applicants’ representative received a response from the director of the SAB, stating that his request of 22 August 2013 did not refer to any new circumstances which could serve as a basis for amending or revoking their report to the Minister of Interior in July 2012 (see paragraph 7 above). On 10 October 2013 the Minister of Interior gave a similar reply to the applicants’ representative.

In a letter sent to the Court on 21 October 2013 the applicants’ representative brought to the Court’s attention the following:

“... [I]n April 2013 the applicants were informed that in an unofficial conversation with a certain high-ranking police officer, [a staff member of the SAB] had stipulated that he would “take care” of any potential complaints the applicants might submit to the Court, and certain politicians would make sure the complaints were not successful. ... The applicants considered this information irrelevant before the above mentioned official information [the Government’s letter] was received.”

They further drew the Court’s attention to two questions, the first being how the SAB became aware of their application to the Court, and the second how the application influenced the decisions of the SAB and Minister of Interior.

The authorities apprehended the first and second applicants on 31 July and 2 August 2012 respectively. They were both placed in a State Police temporary detention facility. The first applicant met one of his lawyers on the day of his detention, and the other one the following day. The second applicant met his lawyer on the day of his detention.

On 2 August 2012 the acting chief of the Riga branch of the State Border Guard Service adopted decisions to expel the applicants from Latvia and to deport them to the Russian Federation. The reason was that the applicants constituted a threat to national security, public order or safety under section 51 paragraph 2 part 4 of the Immigration Law (see paragraph 47 below). The decisions indicated that it was possible to lodge an appeal without suspensive effect to the chief of the Border Guard Service. On the same day both applicants were made aware of the respective decisions. They both appealed (see paragraph 26 below).

On the morning of 3 August 2012 the applicants were taken to the Russian border and expelled from Latvia.

That afternoon one of the legal representatives sent a fax to, inter alia, the Border Guard Service, asking the applicants not to be expelled to the Russian Federation “because they are possibly agents of the Security Police and their expulsion to the receiving State puts them under threat and they could be subjected to torture”.

According to the applicants’ initial submissions to the Court, “five days after their expulsion to the Russian Federation” they were summoned by Chechen police and were questioned about their role in the hostage liberation operation in 1998 before being beaten up. The case file contains an identical certificate for each applicant issued by a Chechen hospital, confirming that on 10 August 2012 both applicants had been found to have concussion, a brain injury and multiple bruises and scratches. The applicants alleged that as a result of what had happened they had had to flee the Chechen Republic and were now hiding in the Russian Federation.

The applicants’ representative submitted appeals against the expulsion orders of 2 August 2012 (see paragraph 22 above), complaining, inter alia, of the authorities’ failure to strike a fair balance between the right to respect for their family life and the alleged threat to national security, as required under Article 8 of the Convention. The chief of the Border Guard Service dismissed the first and second applicant’s complaints on 23 and 27 August 2012 respectively.

In their appeal to the Administrative District Court of 7 September 2012 the applicants also said that before adopting the impugned decision the Border Guard Service had not heard them, meaning they had not been able to provide information on the possible threat they would face at the hands of the security services after their expulsion to the Russian Federation.

On 7 May 2014 the Administrative District Court, in two judgments, upheld the impugned decisions in relation to both applicants. The Administrative District Court established that prior to expulsion the applicants had not approached the Latvian authorities with allegations concerning the risk of being subjected to treatment contrary to Article 3 if expelled to the Russian Federation. It also noted that on 2 August 2012 both applicants were informed that the expulsion would be carried out the following day, on 3 August 2012. On the same day one of the applicants submitted a request to the chief of the Border Guard Service asking to be given several impounded goods in custody, but no other requests were made. Both applicants met their lawyers after being detained.

The court referred to its well-established case-law and noted that the decisions to put the applicants’ names on the blacklist on national security grounds had been reviewed and upheld by the Prosecutor General, so neither the Border Guard Service nor the administrative court were competent to review the Minister of Interior’s decision.

By addressing the complaint that in adopting the impugned expulsion decision of 2 August 2012 the applicants were not heard, the court noted that even if it constituted a minor procedural shortcoming, the lack of hearing of the applicants and witnesses could not have an effect on the outcome of the case. In particular, the court noted that the review of the Minister of Interior’s decision fell outside the scope of the present administrative proceedings. Any information the applicants might have submitted in relation to the adoption of the above decision could not have any effect on the content of the contested decision of 2 August 2012 to expel the applicants. Moreover, the applicants were not prevented, with the assistance of their legal representatives, from communicating to the Border Guard Service any information regarding the alleged interference the impugned decision would have on their family life.

The judgments also stated that there were no obstacles for the applicants to enjoy their family life in the Russian Federation. Nor were there any special circumstances to the effect that the family members could not join them outside Latvia. The wife of the first applicant was a Russian national and she would not have any restrictions to travel to the Russian Federation, whereas the second applicant would not encounter any obstacles in meeting outside Latvia his child whose mother was a Russian national.

On 3 September 2015 (in relation to the first applicant) and on 5 February 2015 (in relation to the second applicant) the Administrative Cases Division of the Senate of the Supreme Court refused to initiate cassation proceedings. The Senate stated, in particular, that the contested expulsion orders were a final stage in the proceedings initiated by the decisions of the Minister of Interior. The Senate further noted that it had been made aware of the decisions of the Minister of Interior and the letters of SAB on which the decision was based, and of the decisions of the Prosecutor General. Review of the above decisions fell outside the scope of the present proceedings, but these decisions attested to the lawful basis and legitimate aim of the applicants’ expulsion.

On the question of the proportionality of the interference with the applicants’ family lives, the Senate upheld the lower court’s findings and noted that the applicants had not advanced any arguments indicating any restrictions to enjoy their family life outside Latvia. In relation to the second applicant, the Senate noted that in 2002, while still residing in Russia, he had agreed that the child would reside with the applicant’s former wife, a Russian national, in Latvia. The Senate also stated that both applicants had entered the Republic of Latvia as adults and throughout their stay in Latvia they had not learned Latvian, which showed that their ties with the expelling State were not strong.

On 1 August 2012 the acting director of the Office of Citizenship and Migration Affairs decided to withdraw the first applicant’s residence permit and refused to grant the second applicant a temporary residence permit because of their inclusion in the blacklist.

The applicants’ legal representative lodged appeals against the above-mentioned decisions on 22 and 28 August 2012 respectively. Two levels of administrative courts dismissed the complaints.

On 14 August 2015, the Administrative Cases Division of the Senate of the Supreme Court refused to initiate cassation proceedings in relation to the second applicant. The Senate noted, in particular, that the authorities had concluded that the applicant posed a threat to national security, and that depriving him of residence permit served a legitimate aim. The Senate also did not see any reasons why the applicant could not meet his minor child outside the territory of Latvia, especially in the circumstances where already in 2002, while still residing in Russia, the applicant had agreed that the child would reside with his mother in Latvia.

The cassation complaint submitted by the first applicant is pending examination before the Senate.

On 15 September 2014 the Ombudsman of the Republic of Latvia issued an opinion following the applicants’ complaint concerning their expulsion proceedings. The Ombudsman did not find any violation of Articles 3 or 8 of the Convention. In relation to the review procedure, the opinion stated:

“A decision to include someone in the list of foreigners prohibited from entering the Republic of Latvia is adopted by the Senate of the Supreme Court in the form of oral proceedings by a special panel of judges to whom special access to [State] secrets is granted, as well as interpreters, recordkeepers and other court officials to whom such access is also granted. No prima facie legitimate purpose can currently be established for dividing the appellate procedure into the competence of two other institutions, the Supreme Court and Prosecutor General; no further analysis shall follow, however, as the assessment of this issue is not the subject of this case.”

The final conclusions, as far as relevant, stated:

“Firstly, a breach of Article 13 of the [Convention] and [Article 1 § 1 (a)] of Protocol No. 7 to the [Convention] has been committed in respect of the expelled S.N. and T.D. Once a State holds that not only the Supreme Court but also the Prosecutor General has the right to review a decision to include someone in the list of foreigners prohibited from entering the State, observation of the adversarial principle has to be ensured in the latter process, similar to the process guaranteed in Supreme Court [review cases]. If an alien seeks to contest the decision, defence counsel must be provided who has access to classified information, [State] secrets, and the right to familiarise [himself] with the evidence on which the expulsion of foreigners is based, so that a complaint may be filed for the protection of the interests of the expelled foreigner.”

The relevant Articles of the Latvian Constitution (Satversme) provide:

“Everyone has the right to defend his or her rights and lawful interests in a fair court. Everyone shall be presumed innocent until his or her guilt has been established in accordance with the law. Everyone whose rights are violated without justification has the right to commensurate compensation. Everyone has the right to the assistance of counsel.”

“Everyone has the right to inviolability of his or her private life, home and correspondence.”

“The rights of persons set out [in Article 96] ... of the Constitution may be subject to restrictions in the circumstances provided for by law in order to protect the rights of other people, the democratic structure of the State and public safety, welfare and morals. On the basis of the conditions set forth in this Article, restrictions may also be imposed on the expression of religious beliefs.”

Section 18 paragraph 1 part 4 of the Constitutional Court Law provides that an application to the Constitutional Court regarding the initiation of constitutional proceedings must, among other criteria, contain legal reasoning (juridiskais pamatojums). Pursuant to section 19², in addition to the above-mentioned requirements, an individual constitutional complaint must include justification as to how the applicant’s fundamental rights as defined in the Constitution have been infringed upon, and show that all available remedies have been used.

Section 20 sets out the grounds on which the panel examining the constitutional complaint may refuse to initiate a case. When examining a constitutional complaint (application) the panel may also refuse to initiate a case where the legal reasoning included in the complaint is evidently insufficient to satisfy the claim (section 20(6)).

In a decision of 14 March 2014 (application no. 29/2014) on the question of institution of constitutional proceedings, the panel of the Constitutional Court stated that the legal reasoning of a complaint is an analysis of the content of a legal provision, an explanation as to how the impugned provision interferes with the applicant’s fundamental rights, an assessment of the lawfulness of the procedure according to which the impugned provision has been adopted, and an assessment of the legal aim and proportionality of the interference.

On 7 May 2014 (application no. 61/2014) on the question of institution of constitutional proceedings, the panel of the Constitutional Court stated that in support of an allegation that the impugned provision does not comply with the provisions of the Constitution, the applicant must indicate in the legal reasoning (1) whether the contested provision contains any restriction of rights, (2) whether this restriction is prescribed by law and has a legitimate aim and (3) whether the restriction is proportionate to the aim pursued.

Under section 46(5) of the Immigration Law, once a decision to include an alien in a blacklist has been adopted by the Minister of Interior and if the person is on Latvian territory, the chief of the Border Guard Service or someone authorised by him must adopt a decision to expel (lēmums par piespiedu izraidīšanu) the person concerned within eight days, to be counted from the date it was established that he or she was on Latvian territory.

Section 50(1) provides that an alien has the right to appeal against an expulsion decision within seven days. Under section 50(3), an appeal against a decision taken pursuant to section 46 does not have suspensive effect.

Section 51 of the Immigration Law lists the circumstances in which the State Border Guard Service may detain an alien. Paragraph 2 part 4 at the material time, provided that an alien could be detained on grounds of information that a person poses threats to national security, public order or safety.

Under section 61(1)(1) the Minister of Interior may decide to include someone who is not a Latvian citizen or a “non-citizen” in a blacklist if, among other things, “competent State institutions have reason to believe” (“kompetentām valsts iestādēm ir pamats uzskatīt”) that he or she (i) is a member of an anti-governmental or criminal organisation or has a role in such an organisation, (ii) is a threat to national security or public order and safety, or (iii) may hinder the pre-trial investigation or work of the law enforcement authorities in investigating the crimes upon arriving in Latvia (section 61(1)(2)), or (iv) has carried out or is planning to carry out a serious or particularly serious crime (section 61(1)(3)).

In relation to the review, section 61 at the material time provided as follows:

(6) A alien in respect of whom a decision has been taken in accordance with [61(1)] has the right, within one month of becoming acquainted with the decision, to appeal to the Administrative Cases Division of the Senate of the Supreme Court of the Republic of Latvia. Submission of an application to the court may not suspend implementation of the decision referred to [in section 61(1)]. The applicant does not have the right to request the court to suspend the operation of such a decision.

(8) If the decision referred to in section 61(1) has been taken on the basis of information acquired by State security institutions as a result of intelligence or counterintelligence operations, it may be appealed to the Prosecutor General’s Office, whose decision shall be final.”

Section 61(6) came into effect on 1 July 2005 and it was introduced after the Constitutional Court had declared unconstitutional a provision providing that decisions adopted by the Minister of Interior were not amenable to review (see paragraph 53 below). Section 61(8) about the Prosecutor General’s Office review came into effect on 10 February 2006.

In May 2006 section 653(3) came into force, which provides that if the applicant’s representative does not have a special permit for access to State secrets, the court must appoint as the applicant’s representative for that part of the proceedings an advocate practising in Latvia who has been issued such a permit. If the applicant does not consent to such representation, the court must examine the information associated with official secrets without involving the applicant or his or her representative.

Section 63(7) provides that in cases where the period of an entry ban exceeds three years, the institution which has adopted the decision to include an alien in the blacklist shall review it every three years from the date it was taken.

The relevant parts of the Constitutional Court’s judgment of 6 December 2004 (case no. 2004-14-01) on the compliance of section 61(6) of the Immigration Law with Article 92 of the Constitution read:

“10. In conformity with section 61 of the Immigration Law, the opinion of the competent State authorities (in this particular case, the opinion of the State security institution) lies at the basis of the Minister’s [of the Interior] decision. Someone who challenges his or her inclusion in the [blacklist] does not agree, as a matter of course, with the facts expressed in the decision, which are often connected with issues of State security. When reviewing such claims, the use of confidential material may be unavoidable. Even though in cases connected with national security the possibility of legal examination is limited, this does not mean that the national authorities can be free from effective judicial control in all cases, whenever they choose to assert that national security and terrorism are involved (see ECHR Judgment in case “Chahal v. the United Kingdom” § 131).

If the violation of a person’s rights is the result of the decision of a competent institution (State security institution), on the basis of which the Minister of Interior has adopted the decision, one can agree with the opinion voiced in the letter by the Ministry of the Interior that the person has the possibility of protecting his rights by lodging a complaint to the prosecutor under the procedure set out in Article 6 of the State Security Institutions Law. As regards an assessment of the activity of the State security institution in this case, the State has secured a protection remedy for the individual, which is as effective as possible in circumstances where the issue is connected with State security and, possibly, the use of confidential information. The Constitutional Court in its judgments has already pointed out that “in Latvia the Prosecutor [General’s Office] may be regarded as an effective and available means of protection, because the status and role of the prosecutor in supervising the law secures an independent and impartial review of cases in compliance with Article 13 of the Convention” (see the Constitutional Court October 11, 2004 Judgment in case no. 2004-06-01; April 23, 2003 Judgment in case no.2002-20-0103)

Thus, as regards the assessment of the competent (State security) institution, the State has secured effective protection under Article 13 of the Convention.

... The fact that the Minister of Interior’s decision might be connected with interests of State security does not prevent the State from establishing a procedure under which the judicial institutions in certain cases, and under a definite procedure, may acquaint themselves with the material connected with State security. The institution concerned may even decide to present the required amount of documents separately if [they] do not include State secrets. Article 6 of the Convention, if read together with Article 5, also provides such a solution by, among other things, a special positive duty upon States, in accordance with which they have to create institutional infrastructures necessary for the implementation of a fair court, and enact legal norms which guarantee that the procedure is fair and impartial.

The impugned provision thus does not ensure realisation of a person’s right to a fair court as guaranteed by Article 92 of the Satversme”.

On 7 October 2010 the Constitutional Court (case no. 2010-01-01) noted that international human rights norms and the practice of their application serve as a means of interpretation at constitutional law level to determine the contents and scope of fundamental rights and the principle of the law-governed State, as far as it does not lead to a decrease or limitation of the fundamental rights included in the Constitution.

On 6 November 2014 the Constitutional Court (case no. 2013-20-03) held that the contested provision of the domestic law did not comply with the Constitution and was repealed with effect from 1 May 2015. As regards the individual applicant, in order for him to have the possibility to require repeated assessment of the proportionality of the measure adopted against him, the contested legal provision was repealed with effect as of the date of its adoption.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

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

The applicants complained of the excessive length of their pre-trial detention. In applications nos. 5441/11 and 21051/11 the applicants also raised other complaints under the provisions of the Convention.


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 applicant is of Pashtun origin, was born in 1964 and has been in the Netherlands since 1998.

The applicant entered the Netherlands on 3 August 1998 and on 4 August 1998 applied for asylum, submitting the following account in his interviews with immigration officials held on 4 August 1998, 26 August 1998 and 21 March 2000.

After completing his elementary education in 1976, the applicant had attended the military academy in Kabul. He had graduated in 1982 and had started working in 1982 with the rank of second lieutenant at an administrative department of one of the directorates of the Afghan security service KhAD/WAD (“Khadimat-e Atal’at-e Dowlati / Wezarat-e Amniyat-e Dowlati”) during the former communist regime in Afghanistan. He had become head of this department – which was responsible for handling confidential documents – in 1988, which function he had continued to hold until the fall of the ruling communist People’s Democratic Party of Afghanistan (“PDPA”) in 1992. In 1990 he had been promoted to the rank of lieutenant-colonel.

The applicant’s directorate had been assigned the task of negotiating and concluding agreements with groups that opposed and fought the communist Government, namely the mujahideen. These agreements entailed remunerated cooperation with the ruling PDPA. The applicant had attended meetings between thus “employed” mujahideen commanders and executives of the directorate. During these meetings the performance of such commanders was assessed and decisions were taken on whether or not they should continue to be paid. The applicant had taken minutes at those meetings. He believed that the mujahideen were holding him personally responsible for the discontinuation of their pay where decisions to that effect had been taken. In addition, these mujahideen commanders had never admitted to cooperating with the KhAD and were very keen on keeping this a secret, for which reason they were interested in eliminating the applicant.

In 1992, after the fall of Kabul, these mujahideen commanders had come looking for the applicant. They were said to have come to his office and asked for him. The applicant had been informed of this by the president of the directorate he had worked for, who had maintained good relations with the mujahideen and hence had remained in post there.

The applicant and his family had fled to Mazar-e-Sharif, where they had led a quiet life until 1997, when various mujahideen groups had come to the city, including those mujahideen feared by the applicant. He had gone into hiding, during which period his house had been searched by the mujahideen. The applicant and his family had then fled to Pakistan.

On 15 September 1999, a person-specific official report (individueel ambtsbericht) not concerning the applicant was drawn up by the Ministry of Foreign Affairs (Ministerie van Buitenlandse Zaken). According to this report, torture was systemic in WAD interrogation centres and within the KhAD the loyalty of its staff was carefully controlled. It was considered impossible that persons belonging to the higher management of the KhAD/WAD had not been involved in the implementation of the above methods. This report was taken into account in the applicant’s asylum procedure.

The applicant’s asylum claim was also examined in the light of an official report, drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs, on “Security Services in Communist Afghanistan (1978-92), AGSA, KAM, KhAD and WAD” (“Veiligheidsdiensten in communistisch Afghanistan (1978-1992), AGSA, KAM, KhAD en WAD”) and concerning in particular the question whether and, if so, which former employees of those services should be regarded as implicated in human rights violations (see A.A.Q. v. the Netherlands (dec.), no. 42331/05, §§ 50-52, 30 June 2015).

By a decision of 18 July 2000 the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicant’s asylum claim. The Deputy Minister held, inter alia, that serious reasons had been found for believing that the applicant had committed acts referred to in Article 1F of the 1951 Geneva Convention Relating to the Status of Refugees (“the 1951 Refugee Convention”).

Referring to the official report of 29 February 2000 (see paragraph 13 above), the Deputy 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 Deputy 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. It was also noted that the KhAD was considered to be an elite unit of the communist regime, and that only those whose loyalty was beyond doubt were eligible for recruitment to the service. Furthermore, new recruits were initially assigned to KhAD/WAD sections actively engaged in tracking down “elements that posed a threat to the State”, where – in order to prove their loyalty unequivocally – they were directly involved in the human rights violations the KhAD was associated with. In this regard the Deputy Minister emphasised that every promoted officer had been involved in arrests, interrogations, torture and even executions.

Having established, on the basis of elaborate argumentation based on various international documents, that those involved in the KhAD were likely to fall within the scope of Article 1F of the 1951 Refugee Convention, the Deputy Minister proceeded to an analysis of the applicant’s individual responsibility under that Convention. In the light of the above, the applicant’s plea that he had never been involved in any human rights violations and had worked his whole career for one department only was dismissed. In view of the applicant’s career and several promotions, the Deputy Minister excluded the possibility of the applicant not having been involved in human rights violations committed by the KhAD.

The Deputy Minister underlined that the application of Article 1F of the 1951 Refugee Convention did not require proof that the applicant had personally committed the alleged crimes; it sufficed that serious reasons existed to consider that the applicant had, or should have had, knowledge of those crimes and that he bore responsibility for them, which responsibility he had voluntarily assumed. In this context the Deputy Minister referred, inter alia, to paragraphs 42 and 43 of “The Exclusion Clauses: Guidelines on their Application” (UNHCR, 1 December 1996), stating:

“persons who are found to have performed, engaged in, participated in orchestrating, planning and/or implementing, or condoned or acquiesced in the carrying out of any specified criminal acts by subordinates, should rightly be excluded. ... voluntary continued membership of a part of a government engaged in criminal activities may constitute grounds for exclusion where the member cannot rebut the presumptions of knowledge and personal implication.”

The Deputy Minister further referred to a letter of 28 November 1997 sent by the Deputy Minister of Justice to the President of the Lower House of Parliament (Tweede Kamer) stating that Article 1F was also applicable when the person concerned had not himself committed any acts referred to in this provision but had been an active and conscious member of an organisation known for committing war crimes and crimes against humanity. As the applicant had not in any way distanced himself from or resisted the crimes committed by the KhAD, the Deputy Minister concluded that Article 1F was applicable to the applicant’s case. Consequently, the applicant’s asylum request was rejected and Article 1F held against him.

The Deputy Minister further found no grounds on the basis of which the applicant would be eligible for a residence permit on compelling humanitarian grounds (klemmende redenen van humanitaire aard). As regards the applicant’s plea under Article 3 of the Convention the Deputy Minister held that, even assuming that a real risk existed of the applicant being subjected to treatment contrary to that provision in Afghanistan, Article 3 did not guarantee a right to residence. The Deputy Minister considered in this context that granting residence to the applicant would conflict with the State’s interest in terms of its credibility on the international stage, particularly regarding its responsibility towards other States. In the Deputy Minister’s view, a situation in which the Netherlands was forced to become a host State for individuals who had elsewhere shocked public and international legal order with acts considered to constitute grave crimes under both Dutch and international law was to be avoided.

The applicant’s objection (bezwaar) to this decision was rejected, after he had been heard on it on 16 May 2003 before an official board of enquiry (ambtelijke commissie), on 11 August 2003 by the Minister of Immigration and Integration (Minister van Vreemdelingenzaken en Integratie), the successor to the Deputy Minister of Justice. The Minister endorsed the Deputy Minister’s impugned decision and proceeded, in addition thereto, to an analysis of the applicant’s individual responsibility under the 1951 Refugee Convention on the basis of the prescribed and so-called “personal and knowing participation test” and held Article 1F against him.

As regards the “knowing” element, the Minister – having regard to the official report of the Ministry of Foreign Affairs of 29 February 2000 (see paragraph 13 above) – found that the applicant had known or should have known about the criminal character of the KhAD. The Minister did not attach any credence to the applicant’s submissions that he had not known about the human rights violations committed by the KhAD. Basing herself on the Ministry of Foreign Affairs official report of 29 February 2000, the Minister held that the commission of human rights violations by the KhAD under the PDPA rule was a fact of common knowledge and that, therefore, it was unthinkable that the applicant would have been ignorant of those acts. The Minister emphasised in this regard the high rank the applicant had held, the long period he had worked for the KhAD and the fact that he had attended meetings with the executives of the Directorate in which he had been employed. The Minister concluded that the applicant had knowingly participated in torture and executions.

As regards the applicant’s personal participation in human rights violations attributed to the KhAD, the Minister found, basing herself to a large extent on the same factual information as the Deputy Minister had done in his previous decision, that the applicant had failed to demonstrate that he had not committed such violations himself or that his conduct, or lack thereof, had prevented these violations from being committed. The Minister held, therefore, that the applicant had personally participated in the commission of acts referred to Article 1F of the 1951 Refugee Convention.

The Minister did not attach credence to the applicant’s rebuttal, which amounted to his case having to be distinguished from the general situation with regard to the KhAD and its officers as described in the official report of 29 February 2000. The applicant had claimed that he had obtained a desk job not by proving his loyalty to the KhAD in sinister ways – as the official report stated – but rather through bribes. The Minister held that, based on the applicant’s position and description of his tasks (including the processing of high-level classified information), he had attempted to trivialise his activities and had greatly impaired his credibility in consequence. On this point, the Minister relied, inter alia, on Amnesty International’s “Reports of torture and long-term detention without trial” of March 1991, according to which the Directorate in which the applicant had been employed was engaged in systematic torture.

The Minister further identified several inconsistencies in the applicant’s declarations and rebuttals, from which it was concluded that his declarations concerning certain of the tasks he stated he had performed were highly implausible. As regards the applicant’s various rebuttals, it was found, in the relevant part, that the burden of proof in terms of Article 1F of the 1951 Refugee Convention was less stringent than in a criminal prosecution (“serious reasons for considering” that the applicant might have been guilty of human rights violations sufficed to render this provision applicable). Taking into account that the applicant had never sought to leave the KhAD or the WAD, for which he had worked for about ten years, in which his last held rank was that of lieutenant-colonel, and in which he had been promoted to head of his department, the Minister concluded that there were no indications that the applicant had been forced or had involuntarily worked for the KhAD/WAD.

As regards the applicant’s claim that the official report of 29 February 2000 of the Ministry of Foreign Affairs was not accurate and was based on unreliable sources and that, therefore, it was too general in scope and could not be applied to his case, the Minister held that this report was founded on several acclaimed sources, such as the United Nations Special Rapporteur, Human Rights Watch, numerous Amnesty International reports, and a variety of United Nations publications.

The Minister went on to analyse, of her own motion, the applicant’s eligibility for a residence permit for reasons not related to asylum. It was held that no such permit could be issued, since the application of Article 1F of the 1951 Refugee Convention gave rise to “contraindications” against the applicant in terms of his eligibility for other types of residence permit. However, while reiterating that Article 3 of the Convention did not guarantee a right to residence, the Minister considered that it could not be ruled out that the applicant, in the present circumstances, would run a real risk of treatment contrary to that provision if expelled to Afghanistan, for which reason the applicant was not to be expelled.

The applicant lodged an objection against the refusal by the Minister to grant him a residence permit for reasons not related to asylum. This objection was rejected by the Minister on 16 January 2004, confirming her impugned refusal.

The applicant appealed against the Minister’s decisions of 11 August 2003 and 16 January 2004 before the Regional Court (rechtbank) of The Hague, arguing, inter alia, that the factual underpinning of the Ministry of Foreign Affairs official report of 29 February 2000 contained errors, which had led the Minister to draw incorrect conclusions as to the applicant’s personal and knowing participation in the crimes referred to in Article 1F of the 1951 Refugee Convention.

In its judgment of 10 February 2005, the Regional Court of The Hague sitting in Utrecht held that the official reports issued by the Ministry of Foreign Affairs, which lay to a great extent at the basis of the Minister’s decisions, had been drafted in an unbiased manner, were accurate and objective, and provided the required insight in the relevant information, and that therefore, the Minister had been entitled to rely on them. In addition, the Regional Court noted that the evaluation of the credibility of facts adduced by asylum seekers fell to a large extent within the Minister’s discretion and could, therefore, only be evaluated marginally by the court. The Regional Court agreed with the Minister on all points as to the latter’s decision to hold Article 1F of the 1951 Refugee Convention against the applicant and, consequently, to refuse him an asylum-based residence permit. As regards the Minister’s separate decision of 16 January, refusing the applicant a residence permit for reasons not related to asylum, the Regional Court adopted a different reasoning, but reached the same conclusion.

In respect of Article 3 of the Convention, the Regional Court held, with reference to case-law of the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State), that the Minister should, wherever possible, avoid creating a situation in which an asylum seeker is refused a residence permit but cannot be expelled to his/her country of origin for reasons based on Article 3 of the Convention. For that reason, the decision should demonstrate that the Minister had examined whether Article 3 of the Convention would lastingly (duurzaam) stand in the way of expulsion to the country of origin and of the possible consequences for the residence situation of the person concerned. This, the Regional Court found, the Minister had failed to do in the present case, for which reason it quashed the Minister’s decision of 11 August 2003 and remitted the case back to the Minister for a fresh decision.

After the applicant had once more been heard on 20 May 2005 before an official board of enquiry, the Minister rejected the asylum request anew in a fresh decision of 2 August 2005. In this fresh decision, the Minister limited herself to Article 3 of the Convention. She dismissed the applicant’s fear of returning to Afghanistan as a (former) member of the PDPA and former officer of KhAD, referring to an official report issued by the Ministry of Foreign Affairs in January 2005 and holding that the sole fact that an asylum seeker had been a PDPA member was not enough in itself to render Article 3 applicable in the eventuality of expulsion. The Minister further noted that the mere fact that the applicant had a different political conviction from those currently in power in Afghanistan similarly did not suffice to render Article 3 applicable. The Minister further took into account that the applicant had stated that he was not a known person in Afghanistan. The applicant had no concrete indication that he would be searched for by any group or person. In addition, relatives of the applicant – including his father and brother – were still living in Afghanistan without ever having encountered any problem.

The Minister further addressed the applicant’s claim that he had reason to fear certain named mujahideen commanders, who would identify him as the KhAD officer who had not paid them, or paid them less than agreed upon. The applicant had submitted that he had attended meetings – where he had only taken minutes – in the course of which cooperation agreements had been reached between the KhAD and a mujahideen commander. In addition, the applicant had alleged that these mujahideen commanders were keen on ensuring that nobody in present-day Afghanistan would find out that they had cooperated with KhAD in the past, for which reason they were interested in eliminating the applicant. On this point, the Minister held that the applicant had failed to establish these commanders’ whereabouts and current influence in Afghan society. The Minister noted that according to the applicant’s own statements, he did not believe that these individuals occupied high positions in today’s Afghanistan. Furthermore, the Minister considered that the mujahideen commanders were aware of the applicant’s role in those meetings as well as of the identity of the person taking the decisions as regards financial support of the mujahideen, and that it was therefore implausible that they would be after the applicant. Finally, it was underlined that the applicant had been able to stay in Afghanistan until 1997 without any problems. For these reasons, the applicant’s claim that he was being sought by the mujahideen was dismissed as founded on nothing but suspicion and speculation. The claim based on Article 3 was consequently rejected.

The applicant appealed anew to the Regional Court of The Hague, arguing, inter alia, that the Minister had erred in finding him guilty of participation in torture under the auspices of the KhAD. In his view, the Minister had disregarded the fact that the applicant had held an administrative position in KhAD which was only concerned with maintaining contacts with the mujahideen and reaching agreements with them. Furthermore, the Minister had been inconsistent in finding, on the one hand, that the applicant had participated in human rights violations, but, on the other hand, that the applicant had not held an important position within the PDPA party. The applicant submitted that it was likely that he was well known enough for his former adversaries, who were now those in power in Afghanistan, to find him and subject him to treatment contrary to Article 3 of the Convention.

The Regional Court of The Hague sitting in Amsterdam rejected the applicant’s appeal on 12 April 2006. It noted that, according to a general official report on Afghanistan of July 2005 by the Ministry of Foreign Affairs, that some former military officials, members of the police and the KhAD/WAD security services possibly risk falling victim to human rights violations – not only by the authorities but also by the population (victims’ relatives), unless they maintained relations with influential Islamic and political parties or tribes. According to the court, this did not mean that every former KhAD officer ran a real risk of treatment contrary to Article 3, and the applicant was thus required to establish the existence of such a risk in the particular circumstances of his case. The Regional Court agreed with the Minister that the applicant had failed to do so, as his claims were found to be merely based on unsubstantiated expectations, including his claimed fear of persecution by the mujahideen commanders who had been paid by the KhAD/WAD. No further appeal lay against this ruling.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

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

The applicants complained of the inadequate conditions of their detention and of the lack of any effective remedy in domestic law.


CASE OF TİBET MENTEŞ AND OTHERS v. TURKEY

Remainder inadmissible (Art. 35) Admissibility criteria;No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)

Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

The applicants were born in 1967, 1965, 1968, 1960 and 1958 respectively and live in İzmir.

The facts of the case may be summarised as follows.

The applicants have been employed in the duty-free shops at İzmir Adnan Menderes Airport since 1993. They are members of the Tekgıda Work Union, which had signed a collective labour agreement with the General Directorate of Monopolies on Spirits and Tobacco, the applicants’ employer and formerly a State-run enterprise.

During their employment the applicants operated in “work and rest cycles”. Accordingly, in the four months of the summer period they worked continuously for twenty-four hours and rested the next twenty-four hours. For the remaining eight months of the year, the winter period, they worked for twenty-four hours and rested for the next forty-eight hours. Their work schedule did not take account of weekends or public holidays as the dutyfree shops remained open twenty-four hours a day, seven days a week. As regards rest breaks and periods, section 22 of their collective labour agreement provided that such periods would be counted as working time and that they could not be subject to wage deductions.

On 10 October 2003 the applicants, with the assistance of their lawyer, instituted individual and separate proceedings against their employer before the İzmir Labour Court. They claimed compensation for the overtime hours they had worked beyond the legal working time for the previous five years of their employment. They referred to the Labour Code in force at the material time and to their collective agreement. Both documents defined overtime as work in excess of the regular forty-five-hour working week and provided for remuneration for such work at one and a half times the regular hourly rate.

On 1 November 2003 the applicants instituted new proceedings against their employer before the İzmir Labour Court and requested further remuneration for work done on weekends and public holidays and compensation for annual leave that they had not taken.

Having regard to the common background of the applicants’ complaints in both sets of proceedings, the İzmir Labour Court decided to join each applicant’s proceedings and to seek an expert report concerning the calculation of their claims for overtime, weekend and public holiday pay and remuneration for unused annual leave.

On 14 July 2004 the expert submitted a report in which he noted, inter alia, that clause 25 (c) of the collective agreement concluded between the parties provided for an entitlement to overtime pay, calculated on the basis of one and half times the hourly rate. He further referred to an official audit report by the Ministry of Labour, dated 10 September 2003, which noted that during the preceding summer period, between the months of June and September, workers at the company in question had worked overtime of 139.5 hours in months which had thirty-one calendar days and 135 hours in the remaining months. In the previous winter period, between October and May, they had worked 22.5 hours and fifteen hours of overtime respectively. The hours worked in excess of the legal working time should have been remunerated accordingly. According to the expert report, the applicants’ employer had previously been cautioned, on 25 November 1996, by the Ministry of Labour concerning its practices on working hours.

On the basis of his examination of the company’s timekeeping records, the expert calculated the number of hours worked as overtime in respect of each applicant, deducting three hours of rest per each day worked.

The expert determined that the employer did not owe anything to the applicants for weekend and public holiday work as the remuneration for those days had been in accordance with the applicable regulations. The expert also noted that the applicants could not claim any compensation for unused annual leave as they were still working at the company and such leave was only payable at the end of a contract.

The applicants raised a number of objections to the expert report. They stated that the timekeeping records used for the calculation did not reflect the actual hours worked as they were unofficial copies kept by the employer, which were not signed by employees. In that regard, the applicants submitted that they had worked for more hours than established by the expert. They requested that the court take other evidence into account, including the defendant employer’s shift orders, which detailed who would work when and for how long, as well as reports from the Regional Labour Inspectorate. They also submitted that the deduction of three hours of rest per day was not based on fact but was an assumption by the expert. The applicants submitted that in any event the expert’s hypothetical conclusion on rest periods could not be relied on because the collective agreement had expressly provided for the inclusion of such periods as a part of working time. The applicants raised no objections to the expert’s conclusion on the dismissal of their claims for pay for work at the weekend and on public holidays and for unused annual leave.

In submissions of 22 July 2004, the defendant employer raised objections to the expert report and also argued that the timekeeping documents could not be relied on as they were unofficial copies. It also maintained that it had been unable to pay overtime in full owing to a lack of funds from the State. It submitted that the applicants had in any event been aware of the working arrangements and had never requested a transfer to another unit of the General Directorate of Monopolies.

The İzmir Labour Court asked the expert to supplement his report with findings concerning the parties’ objections.

On 4 July 2005, the expert submitted a supplement to his report, in which he corrected his findings concerning the rest periods in the light of the applicants’ objection and calculated the hours they had worked as twenty-four in the course of a twenty-four-hour shift. He maintained his findings regarding the timesheets, submitting that his in situ examination of the workplace and comparisons between the official record and the employer’s copies had not revealed any inconsistencies.

On 12 September 2005 the İzmir Labour Court found in favour of the applicants in part and awarded them the amounts given in the expert’s report in respect of the unpaid overtime. It rejected their claims for pay for weekend and public holiday work and for unused annual leave.

Both parties appealed to the Court of Cassation.

On 17 April 2006 the Court of Cassation quashed the decision and remitted the case. It found that the Labour Court had not taken into account any time that could have been used for rest periods and that therefore the calculation of overtime could not be deemed accurate. It also stated that the overtime calculation should be based on weekly working hours rather than the monthly working time used in the expert report.

In the resumed proceedings, the İzmir Labour Court requested that the expert amend the report in light of the Court of Cassation’s decision.

On 11 September 2007 the expert revised the findings as ordered and concluded that the applicants were likely to have had a minimum of three hours for rest during a twenty-four-hour shift. The expert therefore recalculated their entitlement to overtime on the basis of twenty-one hours of actual work and compared it with the legal working week of fortyfive hours.

On 26 May 2008 the İzmir Labour Court awarded the applicants compensation for overtime as determined in the revised expert report.

The defendant employer appealed, arguing that the presumption established in the case-law of the Court of Cassation that a person could not work more than fourteen hours in the course of a twenty-four-hour shift should be applied to the facts of the dispute. The Court of Cassation then quashed the first-instance judgment on 28 October 2008 and remitted the case on the following grounds:

“It can be seen from the case file that during the summer months [the applicants] worked for 24 hours and subsequently rested for 24 hours; and in the winter months they worked for 24 hours and subsequently rested for 48 hours. However, as determined by the well-established case-law of the Grand Chamber of the Court of Cassation’s Civil Division, in workplaces where there are 24-hour shifts, after the deduction of time spent on certain activities such as resting, eating and fulfilling other needs, a person can only work for 14 hours a day ... This approach must also be followed in the present case.”

In the resumed proceedings, the İzmir Labour Court decided to follow the decision of the Court of Cassation and another expert report was drawn up for that purpose. The report, dated 21 July 2009, calculated the applicants’ daily working time as fourteen hours, in line with the Court of Cassation’s presumption of fact. The calculation in the new report led to no overtime being found for the weeks in which the applicants had worked three days as the working time was less than the legal limit of forty-five hours. For the weeks in which the applicants had worked four days, the report calculated the total working time as fifty-six hours, leading to an assessment in the report of nine hours of overtime. On 28 December 2009 the İzmir Labour Court rendered a final judgment in the applicants’ case, based on the expert report of 21 July 2009. As a result of that interpretation, some of the applicants’ claims were dismissed entirely, while the others were awarded almost ninety percent less than the previous expert report had calculated.

On 25 January 2010 the applicants appealed against the decision and maintained that the fact that they had worked continuously for twenty-four hours had already been confirmed by the legal records of the Ministry of Labour, both parties’ witness statements and other evidence in the file, including the expert reports overturned by the Court of Cassation. Although they had proven that fact, the judgment had been based on the presumption that working for more than fourteen hours a day was physically impossible.

On 18 March 2010 the Court of Cassation upheld the İzmir Labour Court’s decision without responding to the applicants’ objections.