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

André Potocki;Angelika Nußberger;Carlo Ranzoni;Mārtiņš Mits;Yonko Grozev

The applicant was born in 1961 and lives in Frankfurt am Main.

On 30 October 2013 the Frankfurt am Main District Court issued an arrest warrant against the applicant as there was a strong suspicion that he had aided the commission of crimes, worth several million euros, of aggravated fraudulent conversion, corruption, corruption in commercial practice and aggravated tax evasion through an elaborate system of bribes and fictitious invoices in connection with international business undertakings by a company. The arrest warrant was based on the risk of his absconding owing to the possible heavy sentence for the offences in question. He was also married to the co-accused, who, like him, was a national of the Russian Federation, and he did not have a legal residence or other significant ties to Germany. There was also a risk of collusion. On the same day, he was arrested and the District Court ordered his detention on remand. On 11 September 2014 the District Court included additional charges in the arrest warrant.

On 19 December 2014 the Frankfurt am Main prosecution authorities brought criminal proceedings against the applicant, charging him with eight counts of aiding aggravated fraudulent conversion, one count of aiding aggravated corruption and fourteen counts of aiding aggravated tax evasion. On 26 January 2015 the Darmstadt Regional Court sent the translation of the 280-page indictment to the applicant. On 6 March 2015 he responded to the indictment and asked the court not to open the main proceedings. On 18 March 2015 the prosecution authorities asked the Regional Court to amend the proceedings against the applicant, based on the results of the investigation obtained after the criminal proceedings had been brought.

On 6 May 2015 the Regional Court decided to open the main proceedings, which commenced on 8 June 2015. On 14 July 2016 the Regional Court convicted the applicant on five counts each of aiding fraudulent conversion and tax evasion and sentenced him to four years and six months’ imprisonment. The conviction has not yet become final, with appeals lodged by both the applicant and the prosecution authorities still pending at the time the Court examined the application.

On 26 October 2016 the Frankfurt am Main District Court decided to set aside the arrest warrant of 30 October 2013, which since the outset had been the basis for the applicant’s continuous detention on remand.

From 15 January 2014 onwards the applicant challenged the lawfulness of his remand detention before the Frankfurt am Main District Court and the Frankfurt am Main Regional Court without success. Following a request by the prosecution authorities, the Frankfurt am Main Court of Appeal on 28 July 2014 ordered the prolongation of the applicant’s remand detention. It also ordered that the case file be re-submitted to it by 28 October 2014 at the latest for the next periodic review. Until that time, it transferred the competency for further reviews to the court having jurisdiction according to the general provisions (see paragraphs 21 and 22 below). It considered that there was a risk that the applicant might abscond and that continued detention on remand was not disproportionate in light of the sentence which he risked incurring if found guilty. On 5 September 2014 the applicant lodged a constitutional complaint with the Federal Constitutional Court against that decision. The court refused to accept it for adjudication, without providing reasons (no. 2 BvR 2050/14), a decision which was served on the applicant on 6 October 2014.

Subsequently, the applicant initiated another set of review proceedings before the District Court and lodged a complaint of bias against the competent judge. The complaint was eventually rejected in accordance with the proceedings prescribed by law, as were the remedies pursued by the applicant. On 8 December 2014 the Frankfurt am Main District Court dismissed an application from the applicant to set aside the detention order as it had become devoid of purpose (prozessual überholt) because the Frankfurt am Main Court of Appeal had been seized with a review of the applicant’s detention under Articles 121 et seq. of the Code of Criminal Procedure.

On 24 October 2014 the prosecution authorities submitted a statement and the case file to the Frankfurt am Main Court of Appeal, requesting the extension of the applicant’s detention on remand in accordance with Articles 121 et seq. of the Code of Criminal Procedure.

On 7 November 2014 the applicant requested that the detention order be set aside. He also requested that the Court of Appeal decide on his objection and an appeal to be heard, lodged on 25 August 2014 against the Court of Appeal’s decision of 28 July 2014, prior to the expiry of the timelimit given to him to respond to the prosecution authorities’ submission. On 10 November 2014 the Court of Appeal dismissed the objection and the appeal to be heard.

On 19 November 2014 the names of the judges called to decide on the continuation of the applicant’s detention were disclosed to the applicant, following his request of the same day. On 25 November 2014 the applicant lodged a complaint of bias against two of the three judges concerned, arguing that they had repeatedly contacted the wrong authorities – either the Frankfurt am Main District Court or Regional Court, rather than the prosecution authorities – to request the case file and had taken two and half months to decide on his objection and appeal to be heard. That had amounted to an arbitrary handling of his case and the judges involved could not decide on the continuation of his detention with the necessary impartiality. The judges gave their statements on 27 November 2014 and 1 December 2014. The applicant then requested additional statements from them, which was not deemed to be necessary by the Court of Appeal on 11 December 2014. Four days later the applicant lodged another complaint about bias, arguing that their statements in response to his first such complaint could not restore his confidence in their impartiality. The judges concerned again gave statements and the applicant’s counsel was given the opportunity to respond. On 30 December 2014 the Court of Appeal rejected the applicant’s first complaint of bias as ill-founded, finding that there were no indications that the judges concerned were partial, even assuming that they had made a procedural mistake in connection with requesting the case file, leading to a delay in deciding on his objection and appeal to be heard. On 8 January 2015 the applicant lodged an objection against that decision. On 22 January 2015 the Court of Appeal rejected the applicant’s second complaint of bias as ill-founded, also addressing his objection in its decision.

On 26 January 2015 the Court of Appeal asked the Frankfurt am Main Regional Court about the current state of the criminal proceedings and what developments there had been. The Court of Appeal was informed by the prosecution authorities that the criminal proceedings had been brought before the Darmstadt Regional Court, rather than the Frankfurt am Main Regional Court, so the Court of Appeal made a similar enquiry to the court in question on 3 February 2015.

On 10 March 2015 the applicant’s lawyer sent to the Court of Appeal two comprehensive submissions which he had made in the main proceedings before the Regional Court and asked the appeal court to take them into account when deciding on the continuation of the applicant’s remand detention.

On 27 March 2015 and on 10 April 2015 the applicant lodged two applications with the Court of Appeal, asking it to take a decision in the pending review proceedings without delay.

On 21 April 2015 the applicant lodged another constitutional complaint with the Federal Constitutional Court, alleging that the absence of a decision by the Court of Appeal in the pending detention review proceedings had violated his right to liberty and security. On 27 April 2015 the Federal Constitutional Court refused to accept the complaint for adjudication without providing reasons (no. 2 BvR 726/15).

On 15 May 2015 the applicant was served with a decision by the Frankfurt am Main Court of Appeal, taken on 15 April 2015 and issued on 13 May 2015, ordering the continuation of his detention on remand. It found that the risk of his absconding continued to exist. It further considered that in the light of, inter alia, the amount of evidence to be examined, the requests for legal assistance sent to several countries, and the scope and complexity of the case, there was no indication of undue delay in the conduct of the criminal proceedings, with the trial being scheduled to commence in June 2015. The applicant’s continued detention on remand was, therefore, proportionate. The court did not address the duration of the review proceedings nor provide any reasons for it.


Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

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

The applicant was born in 1953 and lives in Grozny.

At the material time the applicant’s family lived in a dwelling comprising several houses in one courtyard in Shakhterova Street in the Staropromyslovskiy District of Grozny. The family included the applicant, her husband Mr Ali (also sometimes written as Alik) Dudayev, their sons, Mr Alikhan Dudayev and Mr Aslan Dudayev, Ms Amnat (also sometimes written as Aminat) Yakhyayeva, the wife of Mr Aslan Dudayev, and their five children, including Mr Adam Dudayev. The dwelling was located two blocks from the military commander’s office and the Staropromyslovskiy district police station (the ROVD). The area was under curfew.

On the night of 8 to 9 July 2002 (in the documents submitted the date was also referred to as the night between 7 and 8 July 2002) the applicant’s family were at home. The applicant was not there as she had left to spend the night at her relatives’ house in Grozny.

At about 2 a.m. on 9 July 2002 a group of about fifteen federal servicemen in uniforms and balaclavas, armed with automatic weapons, arrived in an armoured personnel carrier (APC) at the applicant’s home and unlocked the gate. They then started shooting and throwing grenades at the applicant’s house.

One of the applicant’s sons, Mr Alikhan Dudayev, who was a police officer, shot back for about half hour. After that he managed to leave the house and inform the police about the incident. Meanwhile, the applicant’s family lay on the floor to avoid being hit. The applicant’s grandson Adam was injured in the foot and lower back by a hand-grenade explosion. Another APC had arrived at the house in the meantime.

About two hours later the servicemen stormed the building. The applicant’s son Mr Aslan Dudayev stood up and started moving towards the servicemen, trying to warn them that there were women and children in the house. He was shot in the head before the eyes of his wife and five children. His body was moved to another room where he was shot in the head again.

The servicemen then took the applicant’s husband, Mr Ali Dudayev, outside and put him in the APC and drove off. The applicant’s husband has been missing ever since.

At the end of their special operation, the servicemen took the applicant’s family outside and set the house and family car on fire.

The applicant heard of the incident at about 4 a.m. and immediately went home. Upon her arrival, the applicant was told by relatives of the circumstances of her son’s killing and of her husband’s abduction.

In their submissions before the Court the Government did not contest the facts as presented by the applicant. However, they denied any involvement by State agents in the alleged killing of her son and the alleged disappearance of her husband.

In reply to a request from the Court to submit a copy of the documents reflecting the most important steps taken by the investigation into the events of the night between 8 and 9 July 2002, the Government furnished copies of criminal case files nos. 54042 and 54108, running up to 224 pages. The information submitted may be summarised as follows.

On 9 July 2002 a group of investigators from the Grozny prosecutor’s office examined the crime scene. As a result, they collected 408 spent cartridges, two bullets and a machine gun as evidence.

On 9 July 2002 the investigators questioned the applicant’s other son, Mr Alikhan Dudayev, a police officer at the ROVD at the time. He stated that at about 2 a.m. he had been at home and had been woken up by someone opening the outside gates. He had then heard a group of men running into the courtyard. He had asked in Chechen and then in Russian who the men were, but had received no reply. He had seen that one of them was in camouflage uniform and a balaclava and was armed with a machine gun. The witness had warned the man that he was a police officer. In reply, the man had opened fire and the witness shot back. Then the other intruders had opened fire with machine guns and grenades, in an attack of about twenty minutes. The witness had been wounded by grenade splinters in the hand and the torso. He had managed to leave the house and run into the neighbouring courtyard. Meanwhile, the shooting continued. The witness had seen five ROVD officers come out after they heard the gunfire. He had explained the situation to them and they had contacted the local military commander’s office and the ROVD by radio. The witness and the police officers had then heard an APC arriving at the witness’s house, after which the shooting had intensified and had lasted for another half an hour. Then the two APCs had driven off and the gunfire stopped. The police officers had left one of their colleagues with the witness and had gone to the house. Upon their return, they had told him that his brother and father had been taken away in the APCs.

On 9 July 2002 the investigators questioned the applicant’s neighbour, Mr V.M., who stated that on the night between 8 and 9 July 2002 he had been woken up by intense gunfire from automatic firearms at the applicant’s house, which had lasted for about fifty minutes. Then he had seen that the applicant’s house had been set on fire. A group of men had shouted and sworn in unaccented Russian and had then driven off in an APC.

On 9 July 2002 the investigators questioned another neighbour of the applicant, Mr A.T., who stated that the night before he had been woken up by intense gunfire at the applicant’s house. When he had tried to open the door to see what was going on, he had been ordered to stay inside or be shot. He had heard men swearing in Russian.

On 9 July 2002 the investigators questioned the applicant’s neighbours Mr V.A., Mr A.Ch. and Ms Ay.V., whose statements were similar to the one given by Mr V.M. Ms Ay.V. also stated that at about 3 a.m. someone had demanded that she open her door and let in the wife of Mr Aslan Dudayev, Ms Amnat Yakhyayeva, and her children, including the wounded Adam Dudayev. Ms Amnat Yakhyayeva told the witness that all of the men who had been in their house had been killed by the armed men who had arrived in the APC. On the following morning the witness had found a spent 5.45 mm calibre cartridge at her home, presumably from an automatic gun.

On 9 July 2002 the investigators also questioned the applicant’s neighbour, Mr A.I., whose statement was similar to those of the other neighbours (see paragraphs 18-20 above). In addition, he stated that the shooting at the Dudayevs’ house had continued for at least one and a half hours, that the armed men who had attacked the applicant’s family had been an organised group of fifteen to twenty men in camouflage uniforms, that they had sworn a lot in unaccented Russian and that they had driven in an APC. After the shooting he had gone to the house and found the walls and furniture riddled with bullet holes. He had also found the body of the applicant’s son, Aslan, who had been killed in the gunfire.

On the same date, 9 July 2002, the investigators also questioned the applicant’s neighbours Ms A.Ya., Ms B.Dzh. and Mr Ab.V., whose statements were similar to those of the other neighbours (see paragraphs 1821 above).

On 10 July 2002 the investigators opened criminal case no. 54042 (in the documents submitted the number was also referred to as 54048) in connection with the murder of the applicant’s son Mr Aslan Dudayev “by a group of fifteen to twenty armed men in camouflage uniforms and balaclavas who had arrived at the [the applicant’s] house”.

On 10 July 2002 the investigators ordered a forensic examination of the body of the applicant’s son Mr Aslan Dudayev. On 12 August 2002 the forensic experts concluded that he had died from two gunshot wounds to the head.

On 13 July 2002 the investigators ordered a forensic examination of the applicant’s grandson Adam Dudayev. On the same date the experts concluded that he had received a perforating shrapnel wound and a gunshot wound to the torso.

On 15 July 2002 the applicant’s son Mr Alikhan Dudayev complained of the incident to the Chechnya Prosecutor. In particular, he stated that on the night of the events he had warned the intruders that he was a police officer, but they had opened fire. After an hour and a half of intense shooting, the perpetrators had taken his brother, Mr Aslan Dudayev, outside and executed him in the courtyard. They had then wounded his nephew Adam, and had taken away his father, Mr Ali Dudayev. Neither the military commander’s office nor the nearby police station had reacted to the gunfire or intervened in any way.

On 18 July 2002 the investigators questioned the applicant’s daughter-in-law Ms Amnat Yakhyayeva, whose statement concerning the events was similar to that of her brother-in-law, Mr Alikhan Dudayev. In addition, she stated that her husband, Mr Aslan Dudayev, had been shot dead by the perpetrators, who had been in military uniform and had driven around in two APCs. The perpetrators had also taken away the applicant’s husband, Mr Ali Dudayev.

On 18 July 2002 the investigators questioned the applicant’s neighbours Mr A.V. and Mr M.Kh., whose statements were similar to the applicant’s account before the Court. In addition, Mr M.Kh. stated that after the shooting had stopped, several military vehicles had driven down their street in the direction of the applicant’s house. In the morning he had learned that the attack had been carried out by federal servicemen who had been driving in three APCs.

On 28 July 2002 the investigators ordered a ballistics report on the cartridges, bullets and machine gun collected from the crime scene on 9 July 2002. On 12 August 2002 the ballistic experts concluded that the machine gun had been set for single shots only and that the cartridges had come from several different Kalashnikov machine guns.

On 30 July 2002 the investigators granted the applicant’s son Mr Alikhan Dudayev, the status of victim in the criminal case and questioned him again. He reiterated his previous statement (see paragraph 17 above).

On 1 August 2002 the investigators granted the applicant’s daughter-in-law Ms Amnat Yakhyayeva the status of victim in the criminal case and questioned her. Her statement was similar to the one given on 18 July 2002 (see paragraph 27 above). In addition, she stated that the perpetrators had wounded her father-in-law and taken him away in their APC.

On 1 August 2002 the investigators questioned the applicant’s neighbour Ms Yakh. Dzh., whose statement about the events was similar to those given by the other neighbours and to the applicant’s account before the Court.

On 1 August 2002 the Chechnya Prosecutor wrote to the Chechnya Military Prosecutor asking for assistance in the investigation of the criminal case. The letter stated, inter alia, the following:

“... The Chechnya prosecutor’s office is investigating a criminal case concerning the killing of Mr A. Dudayev and the wounding of Mr A.M. Dudayev by a group of unidentified persons armed with automatic rifles.

One of the theories being pursued by the investigation is that of the involvement in the crime of military servicemen from the United Group Alignment (the UGA). In connection with this I request that an investigator from unit no. 20102 of the military prosecutor’s office be included in the investigators’ group to assist in solving the crime...”

On 21 August 2002 the Grozny military commander’s office informed the investigators that they had no information about the possible identity of the perpetrators and had not issued orders for a special operation at the applicant’s house.

On 10 September 2002 the investigation of the criminal case was suspended owing to a failure to identify the perpetrators. The applicant and her relatives were not informed of this.

On 18 July 2003 the Staropromyslovskiy district prosecutor overruled the decision to suspend the investigation as unlawful and premature. He pointed out, among other things, that the investigators had failed to take basic steps, such as questioning the police officers whom Mr Alikhan Dudayev had met after his escape from the house or questioning the officers from the military commander’s office about the attackers’ use of APC military vehicles. The investigation resumed on the same day.

On an unspecified date in July 2003 the applicant complained of her son’s killing and her husband’s abduction to the Staropromyslovskiy district administration, which on 30 July 2003 forwarded her complaint to the investigators for examination.

On 10 August 2003 the investigators questioned the applicant’s neighbour Mr S.D., whose statement was similar to the applicant’s account before the Court.

On 18 August 2003 the investigation of the criminal case was suspended owing to a failure to identify the perpetrators. The applicant and her relatives were not informed of this decision.

On 2 June 2009 the investigators again took up the criminal case on the orders of their superiors after receiving a request for information from the applicant.

On 5 July 2009 the investigators granted the applicant the status of a victim in the criminal case and questioned her. The applicant’s statement concerning the circumstances of her son’s killing and the abduction of her husband by military servicemen was similar to her account before the Court. In addition, she stated that even though the servicemen had known that her son Mr Alikhan Dudayev worked in the police, they had still opened fire.

On 7 July 2009 the investigators again suspended the investigation owing to a failure to identify the perpetrators. They informed the applicant of this decision.

The applicant appealed against that decision to the Staropromyslovskiy District Court in Grozny. On 29 September 2009 the court rejected the complaint because earlier that day the investigators had resumed the proceedings in the criminal case.

On 30 September 2009 the investigations in criminal cases 54042 and 54108 were joined under the number 54042 (see below).

On 4 October 2009 the investigators suspended the proceedings in the joint criminal case and informed the applicant.

On 9 November 2011 the investigation was resumed by the supervising body as having been unlawfully suspended and the investigators were ordered to take fresh steps.

On 15 December 2011 the investigators again suspended the proceedings in the joint criminal case.

The document submitted shows that the investigation is still pending.

On 11 December 2002 the Grozny prosecutor’s office opened criminal case no. 54108 in connection with the disappearance of the applicant’s husband, Mr Ali Dudayev.

On 20 December 2002 the investigators questioned the applicant’s daughter-in-law Ms Amnat Yakhyayeva and her son Mr Alikhan Dudayev. Their statements were similar to the applicant’s account before the Court.

On 24 and 25 December 2002 the investigators questioned the applicant’s neighbours Ms A.V. and Ms Z.I., whose statements were similar to the applicant’s account before the Court. In addition, they stated that the perpetrators of the abduction had been military servicemen.

On an unspecified date in February 2003 the investigators informed the applicant’s lawyer that they were taking search measures to establish the whereabouts of the applicant’s missing husband.

On 11 February 2003 the investigation of the criminal case was suspended for failure to identify the perpetrators. The applicant was not informed.

On 18 June 2003 the investigation resumed and was again suspended on 18 August 2003. The applicant was not informed of either decision.

On 2 June 2009 the investigators resumed the investigation at the applicant’s request.

On 5 July 2009 she was granted victim status in the criminal case and questioned. Her statement was identical to the one given in criminal case no. 54042 (see paragraph 41 above).

On 7 July 2009 the investigators suspended the investigation on account of a failure to identify the perpetrators and informed the applicant.

The applicant appealed against the decision to suspend the proceedings to the Staropromyslovskiy District Court. On 29 September 2009 the court rejected the complaint because earlier on the same day the investigators had resumed proceedings in the criminal case.

On 30 September 2009 the investigation in the criminal case was joined with the investigation in criminal case 54042 under a joint number, 54042.

On 4 October 2009 the investigators again suspended the proceedings in the criminal case and informed the applicant. The document submitted shows that the joint investigation is still pending (see above).

The Government did not contest the essential facts underlying the application, but claimed that the applicant’s submission was unsubstantiated and that there was no evidence proving “beyond reasonable doubt” that State agents had been involved in the killing of the applicant’s son and the disappearance of her husband. In particular, they stated that the applicant herself had not witnessed the incident and that her application had been based “only on the suppositions of her relatives and neighbours” as none of the alleged witnesses had been able to say for sure that the man taken away in the APC by the abductors had been Mr Ali Dudayev.

The applicant submitted that it had been established “beyond reasonable doubt” that State agents had been involved in the attack on her house, which had resulted in the abduction of her husband and the killing of her son. In support of that assertion she referred to the ample evidence contained in her submissions and those of the Government, as well as the contents of the criminal investigation file. In particular, she pointed out that the perpetrators had arrived as a large group in APCs, which could only have been used by the federal forces, and that they had been able to move around freely during the curfew. The local military commander’s office had not reacted to the intense gunfire in the middle of the town during the curfew and the attack had taken place close to the local police station and lasted for more than an hour. She submitted that she had made a prima facie case that State agents had killed her son and abducted her husband and that the Government had failed to provide a plausible explanation for the events. In view of the absence of any news of her husband for a long time and the life-threatening nature of unacknowledged detention in the region at the relevant time, she asked the Court to consider him dead.

The Court will examine the application at hand in the light of the general principles applicable in cases where the factual circumstances are in dispute between the parties (see El-Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, §§ 151-53, ECHR 2012).

The Court has addressed a whole series of cases concerning allegations of disappearances and deaths of applicants’ relatives in Chechnya. Applying the above‑mentioned principles, it has concluded that if applicants make a prima facie case of abduction or killing by servicemen, this is sufficient for them to show that their relatives fell within the control of the authorities, and it is then for the Government to discharge their burden of proof, either by disclosing the documents in their exclusive possession or by providing a satisfactory and convincing explanation of how the events in question occurred (see, among many examples, Aslakhanova and Others, cited above, § 99, and Inderbiyeva v. Russia, no. 56765/08, § 96, 27 March 2012). If the Government fail to rebut that presumption, this will entail a violation of Article 2 of the Convention in its substantive part. Conversely, where applicants fail to make a prima facie case, the burden of proof cannot be reversed (see, for example, Shafiyeva v. Russia, no. 49379/09, § 71, 3 May 2012, and Udayeva and Yusupova v. Russia, no. 36542/05, § 78, 21 December 2010).

The Court has also found in many cases concerning disappearances that a missing person may be presumed dead. Having regard to the numerous cases of disappearances in Chechnya which have come before it, the Court has found that in the particular context of the conflict in the region, when a person has been detained by unidentified State agents without any subsequent acknowledgment of the detention, this could be regarded as life‑threatening (see, among many others, Yandiyev and Others v. Russia, nos. 34541/06, 43811/06 and 1578/07, 10 October 2013, and Dovletukayev and Others v. Russia, nos. 7821/07, 10937/10, 14046/10 and 32782/10, 24 October 2013).

The Court has made findings of presumptions of deaths in the absence of any reliable news about disappeared persons for periods ranging from four years (see Askhabova v. Russia, no. 54765/09, § 137, 18 April 2013) to more than ten years.

Turning to the circumstances of the present case, the Court notes that the documents from the investigation file provided by the Government (see, for example, paragraphs 17, 21, 24 and 31 above) demonstrate that the applicant’s son Mr Aslan Dudayev was shot dead on the night of 8 to 9 July 2002 by a group of armed servicemen who drove around in APCs and opened fire on the applicant’s house during curfew hours. As a result of the two-hour attack, which took place in proximity of the military commander’s office and the police station, the applicant’s husband, Mr Ali Dudayev, was taken away by the same group of servicemen and has been missing since. In their submissions to the authorities, the applicant, her relatives and neighbours, pointed out that the killing of Mr Aslan Dudayev and the abduction of Mr Ali Dudayev had been carried out by the same group of perpetrators, who belonged to the federal forces (see paragraphs 27, 28 and 41 above). The investigators considered this version of events and took steps to verify this assertion (see paragraphs 33 and 36 above). In view of all the evidence in its possession, the Court finds that the applicant has presented a prima facie case that State agents killed her son and abducted her husband, who subsequently disappeared.

The Government neither contested the essential facts underlying the application nor provided a satisfactory and convincing explanation for the events in question. Bearing in mind the general principles set out above, the Court finds that Mr Aslan Dudayev was killed on the night of 8 to 9 July 2002 in the applicant’s house by a group of State agents and that her husband Mr Ali Dudayev was taken into custody on the same night by the same group of State agents. In view of the absence of any reliable news of the applicant’s husband since that date and the lifethreatening nature of such detention (see paragraph 79 above), the Court also finds that Mr Ali Dudayev may be presumed dead following his unacknowledged detention.


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

A list of the applicants is set out in the appendix.

The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs.

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

A. Introduction

Before the events complained of, the applicants variously held shares or subordinated bonds (the latter under diverse designations) issued by SNS Reaal N.V. (hereafter “SNS Reaal”), a public limited company (naamloze vennootschap, “N.V.”) incorporated under Netherlands law, or one or more of its subsidiaries.

SNS Bank N.V. (“SNS Bank”) was, and is, a high-street retail bank. It was a subsidiary of the holding company SNS Reaal N.V. Another subsidiary of that holding company was Reaal N.V., an insurance company. SNS Bank N.V.’s own subsidiaries included ASN Bank N.V., RegioBank N.V. and SNS Property Finance B.V., a private limited company (besloten vennootschap, “B.V.”).

From 2008 onwards the financial position of certain companies within the SNS Reaal group deteriorated. By 2012 the Netherlands central bank (De Nederlandsche Bank N.V., “DNB”) was concerned about the conglomerate’s financial health to the point that it decided to seize the Minister of Finance (Minister van Financiën) of the situation.

Reports relevant to the case were presented on 31 October 2012 by Ernst & Young, a firm of accountants, and on 14 December 2012 by Cushman & Wakefield, a real estate services firm (a supplement to the latter was presented on 20 December 2013). SNS Bank had full access to the report by Cushman & Wakefield. Copies of the two reports submitted by the applicants have parts blacked out. It would appear that these documents were not released to the applicants complete at any relevant time.

B. The expropriation proceedings

DNB’s letter to the Minister of Finance

On 24 January 2013 DNB wrote to the Minister of Finance in the following terms (footnotes omitted):

“1. Introduction

On 18 January 2013 DNB sent the outcome of the Supervisory Review and Evaluation Process (SREP) to SNS Bank N.V. (SNS Bank) in the form of an intended SREP decision. In this intended decision ... DNB notes a capital shortage of at least 1,9 billion euros (EUR) and states its intent to impose on SNS Bank the measure of having to supplement its core capital by at least EUR 1.9 million no later than 31 January 2013 at 6 p.m., or at least to present, no later than 31 January 2013 at 6 p.m., a final solution which, in the considered view of DNB, has sufficient prospects of success and which will, in the short term, lead to the actual supplementing of the said capital shortage. If SNS Bank should prove unable sufficiently to strengthen its capital position in time, DNB, according to its statement of intent, will consider it irresponsible for SNS to continue banking and DNB will make use of its powers under the Financial Supervision Act (Wet op het financiëel toezicht). SNS Bank has until noon on 24 January 2013 to state its views; DNB will come to a final decision as soon as possible thereafter, taking these views into account. If these views should provide any new insight, then DNB will inform your ministry accordingly as soon as possible.

In the event that DNB in its final SREP decision imposes on SNS Bank the measure referred to in its intended decision and SNS Bank does not comply with the measure thus imposed within the time-limit set, DNB considers it irresponsible for SNS Bank to continue banking. In addition, in the absence of a convincing and final solution it would appear impossible to publish by 14 February 2013 provisional annual accounts drawn up on the basis of continuity. In view of the expectations raised as regards an overall solution, postponing the publication of annual accounts without announcing an overall solution for SNS Reaal will mean further undermining confidence in SNS Reaal. DNB considers this irresponsible from the point of view of financial stability, also in the light of the increasing flow of publications in the media on the vulnerable position of SNS Reaal and the resulting outflow of funds.

Since SNS Bank is a system-relevant institution (systeemrelevante instelling), the threat of insolvency of SNS Bank (and therefore that of the entire concern) will mean that the stability of the financial system is in serious and immediate danger. DNB therefore advises you to make preparations to enable the use of your powers under part 6 of the Financial Supervision Act immediately after the lapse of the time-limit in a final SREP-decision if and in so far as one is taken, or even sooner if the situation should so require.

In view of the seriousness of the situation and the speed of the developments, DNB considers it important to send you this informative letter – based on section 6:5 of the Financial Supervision Act – already now. Paragraph 2 of this letter provides background information relating to the situation of the institution and the supervisory approach adopted by DNB. Paragraph 3 explores financial stability as the guiding point of departure in seeking a solution. Paragraph 4 provides an overview of the solutions examined and the reasons why, as it appears at present, these are not achievable. Paragraph 5 makes a few closing remarks.

Background

After a broad survey of possible avenues for a solution by a joint working group, there have been intensive discussions with the Ministry of Finance and market parties about a plurality of (variants of) solutions. In its role as supervisor and co-responsible party for the stability of the financial system, DNB has played an initiating and active role in this process of negotiation. With the help of external advisors, a solution has been sought which comes as close as possible to meeting the following basic criteria:

The private sector should be involved as much as possible to limit the financial consequences for the State as much as possible;

Wherever possible, losses should be borne by SNS Reaal’s current risk-bearing financiers (burden sharing). This point of departure not merely limits the financial consequences for the State, but also serves the stability of the financial system in the long term;

The intention to forestall an emergency situation;

It is self-evident that any solution – involving State support – should in addition be assured of the approval of the European Commission (EC), be structural in character, and be proportionate.

Financial stability

In DNB’s considered view it is not only SNS Bank’s continuity which is of importance for the financial system, but also that of the holding SNS Reaal.

SNS Bank’s insolvency will have serious consequences for the stability of the financial system because of (i) the costs involved in the implementation of the deposit guarantee scheme, (ii) loss of confidence in other Netherlands financial institutions and (iii) the consequences for account holders and the attending unrest. DNB has described these factors in its letter of 2 October 2012, in which it is explained that DNB considers the estimated eventual cost flowing from the implementation of the deposit guarantee scheme irresponsibly high, seen also in the light of the general scarcity of capital and the desire of the markets for the anticipated application of Basle III [a voluntary regulatory standard on bank capital requirements, now due to enter into force in 2018] (argument i). In order to supplement these arguments, communicated to your Ministry earlier, DNB points to the following factors:

The uncertainty as to the possibility for banks to recover against the estate of SBS bank if the deposit guarantee system is implemented. Since EUR 35 billion of the deposits guaranteed by that scheme are held by SNS Bank, claims would be in the order of greatness of EUR 10 billion per major Netherlands bank. A situation in which other Netherlands banks have major claims against the estate of SNS Bank and in which it is uncertain to what extent these will be met in itself undermines the health of, and therefore confidence in, these banks.

Further splitting up SNS Bank into separate parts is not a realistic option. This is caused, in particular, by the interrelation of subsidiaries RegioBank and ASN Bank with their parent SNS Bank as regards operations and IT; these subsidiaries use the same infrastructure with their own labels. There is also considerable financial interrelation between ASN Bank and SNS Bank: savings from ASN Bank are used to finance credit (mortgages) provided by SNS Bank. Because of these interrelations any insolvency of the parent bank will in practice include that of the subsidiaries and vice versa. Any insolvency of SNS Bank will in addition probably lead to loss of confidence in its subsidiaries as well.

SNS Bank, ASN Bank and RegioBank hold approximately one million current accounts and one and a half million savings accounts, with a total credit balance of approximately EUR 36.4 billion. At least EUR 500 per month is paid into approximately two thirds of the current accounts, which is an indication that these accounts play an important role in the financial transactions of individuals. Consequently all sorts of practical problems [sic] resulting from any insolvency of SNS Bank, such as cashpoints breaking down or standing orders being stopped, will have enormous social effects [sic].

Conclusion

... [It would appear], at this moment, that nationalisation of the conglomerate as a whole is the only remaining solution for SNS Reaal. For a decision to expropriate to be taken, there has to be a situation of ‘serious and immediate danger to the stability of the financial system’. As has been observed in the introduction to this letter, DNB considers it irresponsible for SNS Bank to continue banking in the event that DNB in its final SREP-decision imposes on SNS Bank the measure referred to in its intended decision and SNS Bank does not comply with the measure thus imposed within the time-limit set. In the considered view of DNB the above-mentioned legal criterion for nationalisation will then have been met. Should you decide not to proceed with nationalisation, DNB, as the responsible supervisor, would be compelled to seek an emergency arrangement, which would mean implementing the deposit guarantee system.

An emergency situation is therefore imminent. In the introduction to this letter attention has been drawn to the danger of loss of confidence as a result of any postponement of publication of the annual accounts without announcing an overall solution for SNS Reaal. There is already a loss of confidence, which has manifested itself in an outflow of funds in an amount of approximately EUR 1.4 million since the reports of 16 January 2013 about the position taken by the EC in this case; actually, if it had not been for public confidence in the safety net provided by the State the outflow would probably have been considerably greater.

In addition to publication of the annual accounts without announcing an overall solution DNB notes other events that could be the beginning of an emergency situation. In the first place, DNB cannot allow Reaal and/or SNS Bank to increase lending to the holding SNS Reaal with which to repay external financing that will end in March. Absent any other funding possibilities this is expected to cause the holding to be unable to make further payments. In addition, if no solution is found, then SNS Bank, owing to its very weak capitalisation and the negative developments in this respect, would run the risk of no longer having access to the European Central Bank’s facilities. This, combined with the outflow of funds that has already occurred, could cause SNS immediate liquidity problems.

On the above grounds, DNB advises you to make preparations to enable the use of your powers under part 6 of the Financial Supervision Act immediately after the expiry of the time-limit in a final SREP decision if and in so far as one is taken, or even sooner if the situation should so require.”

This letter was at the time classified confidential. It has since been made available to the public.

The SREP decision

On 27 January 2013 DNB, after SNS Bank had stated its views, gave a decision (the “SREP decision”) which, as relevant to the case before the Court, was in the following terms:

“6. Decision

SNS Bank shall supplement its core capital by no less than EUR 1.84 billion no later than 31 January 2013 at 6 p.m., or in any case SNS Bank shall, no later than 31 January 2013 at 6 p.m., present a final solution which, in the considered view of DNB, offers sufficient prospects of success, it being required, at least, that all the parties involved shall demonstrably have committed themselves to the solution presented, and which solution shall lead to the actual supplementing of the said capital shortage in short order.

Final remarks

Only if the decision set out in paragraph 6 has been fulfilled will it be possible for DNB to conclude that SNS Bank’s established capital (toetsingsvermogen) guarantees controlled and durable cover of its risks. If SNS Bank should prove unable to strengthen its capital position sufficiently and in time, DNB considers that it is irresponsible for SNS Bank to continue banking and DNB will make use of its powers under the Financial Supervision Act. ...”

The expropriation decree

On 1 February 2013 the Minister of Finance issued the following decree (Official Gazette (Staatscourant) 1 February 2013, no. 3018, translation published by the Government):

“The Minister of Finance, acting in agreement with the Prime Minister, Minister of General Affairs;

Having regard to Sections 6:1(1), 6:2(1), (4) and (5), and 6:4(1) and (2) of the Financial Supervision Act;

Having consulted [DNB];

DECREES as follows:

Article 1

The following securities, issued by or with the cooperation of the public limited company (naamloze vennootschap) SNS REAAL N.V. or, respectively, the public limited company SNS Bank N.V., both having registered offices at Utrecht, shall be expropriated for the benefit of the State of the Netherlands:

a. all two hundred and eighty-seven million six hundred and nineteen thousand eight hundred and sixty-seven (287,619,867) issued shares of the class Ordinary shares in the share capital of SNS REAAL N.V., ISIN code NL0000390706;

b. all six (6) issued shares of the class Shares B in the share capital of SNS REAAL N.V.;

c. all other issued shares in the share capital of SNS REAAL N.V.;

d. all issued shares in the share capital of SNS Bank N.V. held by others than SNS REAAL N.V. or its group companies;

e. all four million three hundred and fifty thousand (4,350,000) Stichting Beheer SNS REAAL Core Tier 1 capital securities issued by SNS REAAL N.V.;

f. all subordinated bonds issued by SNS REAAL N.V. that belong to the following series:

1o. EUR 350 million 6.258% Fixed/Floating Rate Hybrid Capital Securities issued under SNS REAAL N.V.’s EUR 2,000,000,000 Debt Issuance Programme of 13 July 2007, ISIN code XS0310904155;

2o. EUR 100 million 8.45% Fixed/Floating Rate Hybrid Capital Securities issued under SNS REAAL N.V.’s EUR 2,000,000,000 Debt Issuance Programme of 18 August 2008, ISIN code XS0382843802;

g. all subordinated bonds issued by SNS Bank N.V. that belong to the following series:

1o. EUR 320 million 11.25% Resettable Tier 1 Notes issued on 27 November 2009 under the Debt Issuance Programme of SNS Bank N.V. / SNS REAAL N.V., ISIN code XS0468954523;

2o. EUR 200 million 5.75% Subordinated Fixed changing to Floating Rate Notes issued on 22 July 2003 under the EUR 20,000,000,000 Debt Issuance Programme, ISIN code XS0172565482;

3o. EUR 500 million 6.25% Subordinated Notes issued on 26 October 2010 under the Debt Issuance Programme of SNS Bank N.V. and SNS REAAL N.V., ISIN code XS0552743048;

4o. EUR 200 million 6.625% Subordinated Fixed Rate Notes due 14 May 2018, issued on 14 May 2008 under SNS Bank N.V.’s EUR 25,000,000,000 Debt Issuance Programme, ISIN code XS0363514893;

h. all non-listed subordinated bonds issued by SNS Bank N.V. under the name of ‘SNS Participatie Certificaten 3’ with a nominal value of EUR 100 each, at an interest rate of (currently) 5.16%, issued for an indefinite period and described in the prospectus of 1 May 2003;

i. all debt instruments, issued by or with the cooperation of SNS REAAL N.V. or SNS Bank N.V., which include subordination clauses that are similar to the subordination clauses included in the aforementioned series of bonds, or that otherwise prevent the claims of holders of such instruments from being met until after senior creditors of the issuer have been satisfied.

The following capital components of SNS REAAL N.V. and SNS Bank N.V., respectively, shall be expropriated for the benefit of Stichting Afwikkeling Onderhandse Schulden SNS REAAL [“Foundation for settling the private debts of SNS REAAL”], with registered office at Utrecht:

a. the payment obligations of SNS REAAL N.V. and SNS Bank N.V. under the following loans:

1o. the EUR 20 million, 7.13% loan of SNS REAAL N.V. dated 9 October 2000 maturing on 23 June 2020 extended by Van Doorn Securities B.V.;

2o. the EUR 10 million, 7.10% loan of SNS REAAL N.V. dated 9 October 2000 maturing on 23 June 2020 extended by Van Doorn Securities B.V.;

3o. the NLG 400 million loan of SNS REAAL N.V. dated 20 May 1997 and maturing on 24 February 2014 extended by Stichting tot beheer van FNV aandelen Reaal Groep N.V.;

4o. the NLG 1 million loan of SNS Bank N.V. received on 23 February 1999 and maturing on 23 February 2019, extended by Stichting Pensioenfonds Poseidon;

5o. the NLG 25 million loan of SNS Bank N.V. received on 27 December 1999 and maturing on 27 December 2024, extended by Stichting Bewaarder OHRA Obligatie Fonds;

b. all obligations and liabilities of SNS REAAL N.V. or SNS Bank N.V. to parties expropriated under the first subsection or to former holders of securities expropriated under that subsection, to the extent that those obligations or liabilities relate to the (former) holdership of the said securities;

such that all rights and obligations arising from those capital components with respect to SNS REAAL N.V. or SNS Bank N.V. shall transfer to Stichting Afwikkeling Onderhandse Schulden SNS REAAL effective as of the time of expropriation.

Any party that loses the right to claim against SNS REAAL N.V. or SNS Bank N.V. as a result of the expropriation of the capital components referred to in subsection (2) shall be deemed to be ‘titleholders’ within the meaning of Section 6:8(1) of the Financial Supervision Act (...), for the purposes of Chapter 6.3 of that Act.

Article 2

The public limited company SNS REAAL N.V. shall be appointed as director of Stichting Afwikkeling Onderhandse Schulden SNS REAAL.

Article 3

Notwithstanding any provision in Part 6 of Volume 2 of the Dutch Civil Code or the relevant provisions in the Articles of Association:

a. the members of the Board of Management (raad van bestuur) of SNS REAAL N.V., as well as the chairman and vice-chairman of that Board, shall be appointed, suspended and dismissed by the general meeting of shareholders, without any recommendation.

b. the members of the Supervisory Board (raad van commissarissen) of SNS REAAL N.V., as well as the chairman and any vice-chairman of that Board, shall be appointed, suspended and dismissed by the general meeting of shareholders, without any recommendation.

The provisions set out in subsection (1) shall be in effect for a period of six months starting on the date this Decree takes effect.

Article 4

This Decree shall take effect on February 1, 2013 at 08:30 hours.

This Decree shall be published by means of a press release in combination with the publication of the complete text of this Decree on the website of the Ministry of Finance. A copy of the Decree shall be sent to SNS REAAL N.V., SNS Bank N.V. and Stichting Afwikkeling Onderhandse Schulden SNS REAAL.

This Decree shall also be announced in the Government Gazette [i.e. the Official Gazette] (Staatscourant).”

A press release was issued, in Dutch and in English. It read as follows (English-language version published by the Government):


Preliminary objection allowed (Article 35-3 - Abuse of the right of petition)

Alvina Gyulumyan;András Sajó;Ann Power-Forde;Dean Spielmann;Guido Raimondi;Helen Keller;Helena Jäderblom;Ineta Ziemele;Isabelle Berro-Lefèvre;Johannes Silvis;Josep Casadevall;Khanlar Hajiyev;Ledi Bianku;Linos-Alexandre Sicilianos;Mark Villiger;Nebojša Vučinić;Nona Tsotsoria;Peer Lorenzen;Vincent A. De Gaetano

The applicant was born in 1931 and died on 10 November 2011.

For many years the applicant had expressed the wish to end her life. She explained that she was becoming increasingly frail as time passed and was unwilling to continue suffering the decline of her physical and mental faculties. She decided that she wished to end her life by taking a lethal dose of sodium pentobarbital. She contacted an assisted-suicide association – EXIT – for support, which replied that it would be difficult to find a medical practitioner who would be ready to provide her with a medical prescription for the lethal drug.

On 20 October 2008 a psychiatrist, Dr T., submitted an expert opinion in which he observed that there was no doubt that the applicant was able to form her own judgment. From a psychiatric medical point of view, Dr T. did not have any objection to the applicant being prescribed a lethal dose of sodium pentobarbital. However, he refrained from issuing the prescription himself on the grounds that he did not want to confuse the roles of medical expert and treating physician.

By letters of 5 November 2008, 1 December 2008 and 4 May 2009 the applicant’s representative submitted on her behalf a request to be given a prescription for sodium pentobarbital to three further medical practitioners, who all declined to issue the requested prescription.

On 16 December 2008 the applicant submitted a request to the Health Board of the Canton of Zurich to be provided with 15 grams of sodium pentobarbital in order for her to commit suicide. On 29 April 2009 the Health Board rejected the applicant’s request.

On 29 May 2009 the applicant lodged an appeal with the Administrative Court of the Canton of Zurich. On 22 October 2009 the Administrative Court dismissed the appeal. The Administrative Court considered, in particular, that the prerequisite of a medical prescription for obtaining a lethal dose of sodium pentobarbital was in accordance with Article 8 of the Convention. The requirement to obtain a medical prescription served the aim of preventing premature decisions and guaranteed that the intended action was medically justified. It further ensured that the decision was based on a deliberate exercise of the free will of the person concerned. The Administrative Court observed that Dr T., in his expert opinion, had not considered whether the applicant was suffering from any illness which would justify the assumption that the end of her life was near. The wish to die taken on its own, even if it was well considered, was not sufficient to justify the issuing of a medical prescription. Accordingly, the content of the case file did not demonstrate that the necessary prerequisites for issuing a medical prescription had been fulfilled in the instant case. There was therefore a need for further medical examination. Under these circumstances, the Administrative Court considered that there was no sufficient reason to dispense the applicant from the necessity of a thorough medical examination and of a medical prescription.

On 12 April 2010 the Federal Supreme Court dismissed an appeal lodged by the applicant. It observed, inter alia, that the applicant undisputedly did not fulfil the prerequisites laid down in the medical ethics guidelines on the care of patients at the end of life adopted by the Swiss Academy of Medical Sciences, as she was not suffering from a terminal illness, but had expressed her wish to die because of her advanced age and increasing frailty. Even though the Federal Supreme Court had previously considered that the issuing of a medical prescription for sodium pentobarbital to a person suffering from an incurable, persistent and serious psychological illness did not necessarily amount to a violation of a doctor’s professional duties, this exception had to be handled with “utmost restraint” and did not enjoin the medical profession or the State to provide the applicant with the requested dose of sodium pentobarbital to put an end to her life. The Federal Supreme Court further noted that the issuing of the requested substance required a thorough medical examination and, with respect to the persistence of the wish to die, long-term medical supervision by a specialist practitioner who was ready to issue the necessary prescription. This requirement could not be circumvented by the applicant’s request for an exemption from the necessity of obtaining a medical prescription.

On 10 November 2010 counsel for the applicant lodged an application with the Court.

On 24 October 2011 the applicant obtained a medical prescription for 15 grams of sodium pentobarbital signed by a medical practitioner, Dr U. On 10 November 2011 she ended her life by imbibing the prescribed substance. According to a police report dated 14 November 2011, no relatives of the deceased could be identified. The report concluded that the applicant had committed suicide with the assistance of EXIT and that no third person was found to be criminally liable in this context.

The Court was not made aware of the applicant’s death until 7 January 2014 (see paragraph 19 below).


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3-c - Defence through legal assistance);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence)

André Potocki;Ganna Yudkivska;Síofra O’Leary

The applicant was born in 1964. He is currently serving a prison sentence.

At the time of the events the applicant had previous convictions from 1983 and 1989. He was released from prison in October 2002.

Following his release from prison the applicant cohabited with T.B. in the village of Blahovishchenka, in the Zaporizhzhya Region. T.B.’s sister cohabited with Sh. in the same village.

On the evening of 24 April 2006 Sh. visited T.B. and the applicant. A conflict arose between him and the applicant, developing into a fight which T.B. attempted to settle down. At a certain point the applicant seized a knife and stabbed Sh. in the chest. The latter was taken to hospital, but he died shortly afterwards.

Later that evening the applicant was taken to the police station, where he was questioned in relation to the incident. He stated that he did not know who might have stabbed the victim. The applicant was not released and remained at the police station.

At 2.00 a.m. on 25 April 2006 the applicant confessed that he had had a fight with Sh., and that during the fight he had grabbed a knife and stabbed Sh. twice in the chest and abdominal area.

At 8.00 p.m. on 25 April 2006 the investigator drew up an arrest report in respect of the applicant. According to the report, the applicant was suspected of murder.

On 26 April 2006 the applicant was allowed to consult a lawyer for the first time. On that day he was questioned again. He explained that he had stabbed Sh. when falling down from the blows he had received from him. The stab had been unintentional. Later on the same day, in the course of a reconstruction of the events, the applicant showed how he had been beaten by Sh. and how he had fatally stabbed him.

On 27 April 2006 a court ordered the applicant’s pre-trial detention.

On 28 April 2006 the applicant was questioned again. Before the questioning, the applicant signed a waiver of his right to a lawyer. He then made statements about the incident which were similar to those which he had made earlier.

On 15 June 2006 the applicant was charged with aggravated murder and questioned again in the presence of his lawyer. That day, he stated that he had acted in self-defence, as Sh. had approached him with a glass bottle.

On 2 August 2006 the Zaporizhzhya Regional Court of Appeal (“the Court of Appeal”) commenced the trial of the applicant. During the trial, he stated that he had fatally stabbed Sh., who had approached him with a glass bottle, while trying to defend himself.

On 8 August 2006 the court found the applicant guilty of aggravated murder and sentenced him to life imprisonment. The court relied on the material, oral, expert and documentary evidence examined during the hearings. It referred in particular to the applicant’s self-incriminating statements made on 25 April 2006 and later. His allegation that he had acted in self-defence was rejected as unsubstantiated.

The applicant and his lawyer appealed, claiming that the conviction was unfounded and that his right to a lawyer had not been properly ensured.

On 21 December 2006 the Supreme Court considered the applicant’s case and upheld the conviction. However, having regard to his behaviour immediately after the incident, namely the efforts he had made to provide the victim with medical assistance, it reduced the sentence to fifteen years’ imprisonment.

On three occasions between August and October 2006 the Court of Appeal allowed the applicant to have family visits.

On 16 August 2006 the applicant lodged an application with the Court of Appeal, asking for permission to correspond with his relatives. His application was registered by the SIZO mailing service under number 2/k517. No reply followed.

On 2 October 2006 the applicant made the same application, which was registered by the SIZO mailing service under number 2/k-579. No reply followed.

On 12 October 2006 the applicant complained to a prosecutor in that regard, but received no response.


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

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva

The applicants, who are brothers, were born in 1973 and 1983 respectively and live in Plovdiv.

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

In September 2003 the applicants’ father made them beneficiaries under his life insurance and accident insurance policies. The total amount payable in case of death as a result of accident under the accident insurance policy was 10,000 Bulgarian levs (BGN), or BGN 5,000 in respect of each brother. The applicants’ father died on 29 June 2004 as a result of an allergic reaction to a wasp sting.

In September 2004 the applicants were informed by the insurance company that a “wasp sting” was not a risk covered by the accident insurance policy, and the company accordingly refused to pay out on the claim.

In 2005 the applicants, represented by counsel, brought a claim under the Commerce Act for the payment of compensation under the accident insurance policy. During a hearing on 12 April 2005, the applicants informed the court that, after their father’s death, they had handed the original insurance policy documents to the insurance company upon its request. Although the applicants had sought to recover those documents from the company, the latter had only returned to them the “additional conditions”. During the same hearing, upon a request by the applicants, the court ordered the insurance company to produce the complete insurance policy file, referring to Article 152 of the Code of Civil Procedure 1952, in force at the time. The company produced the file during a hearing on 10 May 2005 and the court accepted it as evidence in the case.

By a judgment of 26 July 2005 the Sofia District Court allowed the applicants’ claim. The court noted that, in so far as allergic reactions were not included in the disclaimer to the accident insurance policy signed on 15 September 2003, the applicants were entitled to benefit from the compensation payable in the event of their father’s death as a result of an accident.

The insurance company appealed against the judgment. In its appeal it acknowledged, inter alia, that the existence of a valid contract was not disputed. However, it claimed that the allergic reaction did not fall under the “accident” category as defined in the insurance policy.

On 16 May 2006 the Sofia City Court allowed the appeal and dismissed the applicants’parties, that did not in itself prove its existence.


Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review)

Alena Poláčková;Helen Keller;Pere Pastor Vilanova

The applicant was born in 1970 and lives in Murmansk.

On 24 September 2004 the applicant was arrested on charges of robbery. Two days later the Polyarniy Town Court of the Murmansk Region imposed on the applicant an undertaking not to leave the place of his residence.

On 21 February 2005 the Town Court, presided by Judge D., convicted the applicant of robbery and forgery, sentenced him to seven years and four months of imprisonment and ordered his detention pending the appeal proceedings.

On 3 May 2005 the Murmansk Regional Court, under the presidency of judge K., quashed the judgment on appeal and remitted the case to the Town Court for a fresh examination, ordering that the applicant should remain in custody.

On 3 June 2005 the Town Court, in its turn, further extended the applicant’s detention and remitted the case to the Murmansk Prosecutor’s Office for the elimination of certain procedural deficiencies preventing the examination of the case on the merits.

The applicant’s detention was once again extended by the Town Court, presided by judge D., on 16 August 2005. The applicant challenged the presiding judge on the ground that he had convicted him on 21 February 2005. Judge D. refused to step down. The applicant also raised that point in his statement of appeal against the detention order. On 6 September 2005 the Regional Court, presided by Judge K., found no grounds for Judge D. to step down. The Regional Court reasoned that by virtue of Articles 61 and 63 of the Russian Code of Criminal Procedure Judge D., who had already presided over the applicant’s trial once, could not take part in the new trial proceedings, however, he was not prevented from deciding on detention matters.

On 18 November 2005 the Town Court further extended the applicant’s detention. The parties disagreed as to whether the applicant had been served with a copy of that detention order. While the applicant argued that he had never received it, the Government stated that the detention order had been served on him on 5 December 2005. They supported their claim with a copy of the Town Court’s letter of 29 November 2005 by which the detention order had been forwarded to the applicant and a copy of the detention order from his personal file kept in a remand prison, bearing the applicant’s signature and the date of receipt.

On several occasions the trial court adjourned hearings in the applicant’s case. In particular, on 30 November 2005 the hearing was re-scheduled for 15 December 2005 because the applicant and his co-defendant asked to summon several defence witnesses. The hearing on 15 December 2005 was also adjourned owing to the applicant’s and his co-defendants’ counsel failure to appear. In the same decision the court, of its own motion, extended the applicant’s detention.

The applicant appealed, complaining, in particular, that the detention order of 15 December 2005 was delivered in his counsel’s absence. On 17 January 2006 the Regional Court, presided by Judge K., dismissed the appeal, having noted that the counsel had failed to appear without providing any explanation for his absence. The appeal hearing was attended by a prosecutor and the applicant’s counsel, but not by the applicant himself, despite his request to that effect.

On 10 April 2006 the Town Court convicted the applicant of extortion and sentenced him to three years’ imprisonment and a fine of 3,000 Russian roubles (RUB). The Regional Court upheld the conviction on 5 September 2006, but reduced the sentence.


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

The applicant, Mr Krystian Iwanowicz, is a Polish national who was born in 1985 and lives in Głuchołazy. He is represented before the Court by Ms D. Gembara, a lawyer practising in Ząbkowice Śląskie. The Polish Government (“the Government”) are represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs.

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

The applicant’s mother, Ms G.I., who was born in 1963, suffered from schizophrenia. She received psychiatric treatment over a period of more than twenty years. In 2011 she was diagnosed with epilepsy.

The applicant was his mother’s carer. Since her condition had been deteriorating for some time, on 24 September 2012 the applicant called an ambulance and requested that his mother be taken to a psychiatric hospital. However, she refused to undergo treatment. On 25 September 2012 the applicant filed an application with the Prudnik District Court seeking an order for the involuntary medical treatment of his mother.

On 28 September 2012 at about 3.20 p.m. the applicant’s mother was admitted to the psychiatric ward of the Głuchołazy Hospital.

According to the applicant, on the same day at about 5 p.m. he brought his mother’s personal belongings to the hospital. He was told by the hospital staff that his mother was being bathed and was asked to leave her belongings.

On 30 September 2012 the applicant was given the information that his mother had died on 28 September 2012.

On an unspecified date the hospital carried out an autopsy.

A record card documenting his mother’s death (karta zgonu) was drawn up on 4 October 2012 and signed by Dr E.S. It did not specify the exact time of death. The stated cause of death was schizophrenia, hypertrophic cardiomyopathy (kardiomiopatia przerostowa) and sudden cardiac arrest.

On 5 October 2012 the applicant filed a criminal complaint with the Prudnik District Prosecutor’s Office. The applicant submitted that his mother had been hospitalised in 2011 in connection with her epilepsy but had not been diagnosed with any other condition. She had never been diagnosed or treated for any heart-related condition and medical examinations carried out by a GP and the emergency medical service in the days directly preceding her admission to hospital did not indicate any irregularities. The applicant claimed that between 1 and 3 October 2012 he was given contradictory information by the hospital with regard to the circumstances, timing and cause of his mother’s death. The applicant also claimed that Dr E.S., who signed the record card, had been unsure about the cause of death stated on that document.

On 8 October 2012 the Prudnik District Prosecutor instituted an investigation into involuntary homicide (Article 155 of the Criminal Code).

On 8 October 2012 the prosecutor ordered that a post-mortem be carried out and that a report be prepared by a forensic expert, H.S., with a view to determining the cause of death. On the same date the prosecutor ordered that forensic experts examine samples of body liquids and tissues removed from the applicant’s mother’s body.

On 9 October 2012 the prosecutor ordered the hospital to produce the applicant’s mother’s medical records. On the same date, the prosecutor questioned the applicant. The applicant stated that he had received conflicting answers from several doctors regarding the cause and circumstances of his mother’s death and it was for that reason that he had filed a criminal complaint.

On 12 October 2012 a post-mortem was carried out. The forensic expert secured samples of body liquids and tissues for further examination.

On 31 October 2012 the prosecutor ordered that another forensic expert should examine samples of tissues and prepare a report.

On 17 December 2012 the forensic expert H.S. submitted his report to the prosecutor. On the basis of the hospital records and the autopsy carried out at the hospital, the forensic expert established that the applicant’s mother had been admitted to the hospital on 28 September 2012 at 3.23 p.m. Shortly after, she had suffered an epileptic seizure and a cardiac arrest. A doctor was called to help at about 4 p.m. The applicant’s mother was lying unconscious in bed. Resuscitation was carried out first by nurses and then by a doctor. At about 4.30 p.m. the doctor pronounced the applicant’s mother dead.

The forensic expert noted that the autopsy carried out at the hospital established that the applicant’s mother had suffered from atherosclerosis (miażdżyca tętnic), hypertrophic cardiomyopathy and oedema, amongst other complaints.

On the basis of the post-mortem and other examinations, together with the hospital records, the forensic expert concluded that the applicant’s mother’s death had been caused by respiratory and circulatory failure. The origin of this failure could not be conclusively determined. The forensic expert found no grounds for contradicting the assumption that the failure could have been related to the epileptic seizure.

The applicant submitted that the post-mortem had been carried out too late. He also claimed that the medical records concerning his mother’s condition contained a number of discrepancies. The hospital’s autopsy report mentioned atherosclerosis, whereas his mother’s medical records did not state that she was suffering from this condition. The applicant submitted that there was no mention in the medical records of the autopsy carried out at the hospital and the hospital had not sought his consent for this procedure.

The prosecutor heard evidence from several witnesses, including doctors, nurses and other hospital employees as well as the applicant’s mother’s former husband.

On 25 April 2013 the applicant and his lawyer consulted the case file of the investigation.

On 16 May 2013 the Prudnik District Prosecutor discontinued the investigation. He found that there were no grounds for suspecting that the offence of involuntary homicide had been committed.

The prosecutor established the following facts. The applicant’s mother was diagnosed with schizophrenia twenty-seven years ago. In 2011 she was also diagnosed with epilepsy. On 24 September 2012, having observed his mother’s worsening condition, the applicant called the emergency medical service to have his mother taken to hospital, but the personnel who responded to the call refused to do as he asked. The condition of the applicant’s mother continued to deteriorate. She refused to take her medication, became aggressive, and started suffering from delusions. The same situation prevailed two days later. On 28 September 2012 at about 3.20 p.m., at the applicant’s insistence, the emergency service transported the applicant’s mother to Głuchołazy Hospital. At about 5 p.m. on the same day the applicant brought his mother’s personal belongings to the hospital. He was told that his mother was being bathed. On 30 September 2012 the applicant learnt that his mother had died two days earlier.

The prosecutor secured the medical records and the body of the applicant’s mother for the purposes of forensic examination. As regards the results of the post-mortem and further medical examinations, the forensic expert did not establish any cause of death other than cardiac arrest related to the epileptic seizure. He also established that the applicant’s mother had some broken ribs but that this injury had been sustained after her death.

The prosecutor noted that the forensic expert’s report clearly indicated the cause of death of the applicant’s mother and did not point to any negligence in her treatment after admission to the hospital.

The prosecutor heard evidence from medical personnel and doctors at the hospital. Those witnesses confirmed that the applicant’s mother had been pronounced dead at 4.30 p.m. on 28 September 2012. She had been admitted to the hospital at about 3.30 p.m. and was then bathed and changed. After being transferred to a hospital room, the applicant’s mother started to have a seizure. The medical personnel immediately reacted and began resuscitation. However, the resuscitation was not successful and after about 30 minutes of efforts the applicant’s mother was pronounced dead.

The prosecutor sought to clarify when the applicant had come to the hospital on the day in question. The hospital staff testified that the applicant had come to the hospital before 4 p.m. Other witnesses, including the applicant, asserted that he had come to the hospital at 5 p.m. In the light of evidence provided by mobile phone traffic records, the prosecutor found that the applicant’s assertion that he had come to the hospital at 5 p.m. when his mother was already dead − was not credible.

In conclusion, the prosecutor decided to discontinue the investigation, having found no evidence to indicate that the treatment given to the applicant’s mother was in any way inappropriate.

The applicant appealed. He argued that the evidence gathered in the investigation was not sufficient to justify the impugned decision and that a number of the prosecutor’s findings had been incorrect.

The applicant submitted that even assuming – as was accepted by the prosecutor – that his mother had died from cardiac arrest related to an epileptic seizure the prosecutor had not looked into what had caused the cardiac arrest. His mother was a relatively young person (forty-nine years old). She had suffered from schizophrenia but never complained of any other health issues (in particular heart-related) and had never been treated for anything other than her psychiatric illness. Prior to her admission to the hospital she had had only two epileptic seizures. The applicant also argued that the prosecutor did not investigate the cause of his mother’s broken ribs. He proposed that a team of experts be appointed in connection with the case in order to investigate the cause of his mother’s death.

The applicant argued that he had been misled by the hospital staff from the outset and that the information he had been given by the hospital had been inaccurate. He alleged that when he arrived at the hospital on 28 September 2012 at 5 p.m., his mother was already dead but he had not been informed of this.

On 27 June 2013 the Prudnik District Court dismissed the applicant’s appeal and upheld the prosecutor’s decision. The applicant was present at the hearing.

The court noted that the investigation had been aimed at clarifying the circumstances of the applicant’s mother’s death, in particular – in view of the conflicting information concerning the cause of death – the time at which it occurred, and the deceased’s prior state of health.

The court found that the prosecutor had correctly established the facts and properly assessed the ample evidence gathered in relation to the case. In the court’s view, the analysis of the evidence did not suggest that the offence of involuntary homicide had been committed.

The court agreed with the results of the post-mortem and the forensic expert’s report, which was clear in its conclusion that the applicant’s mother had died as a result of respiratory and cardiac failure connected to an epileptic seizure. There was no need to prepare another expert report since the initial one was comprehensive, thorough and unambiguous. In addition, the medical records indicated that the applicant’s mother had previously suffered from epileptic seizures and that in 2011 she had been diagnosed with epilepsy. As regards the forensic report, the court observed that it stated that the damage to the applicant’s mother’s ribs could have resulted from the resuscitation efforts.

On the basis of the medical records and the evidence provided by the medical personnel, the court found that the applicant’s mother had been adequately treated by the hospital. It noted that the applicant’s mother had received treatment immediately after her epileptic seizure.

The court observed that the prosecutor had investigated the question of the exact timing of the applicant’s visit to the hospital, which was, in any event, not the most relevant factor in determining the circumstances surrounding the death of the applicant’s mother.

The court held that the death of the applicant’s mother had not resulted from the actions of third parties. The court also found that no offence under Article 162 § 1 of the Criminal Code (failure to render assistance to a person in a life-threatening situation) had been committed.

Article 155 of the Criminal Code provides as follows:

“Anyone who unintentionally causes the death of a human being shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.”


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

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

The applicants alleged, in particular, that they did not receive adequate medical care in detention. Some applicants also raised other complaints under the Convention.


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano

The applicant was born in 1980 and is currently serving his sentence in prison.

On 15 November 2004 a man was murdered at a bus stop in the town of Dymytriv, Donetsk Region. A criminal investigation was opened.

According to the applicant, on 12 December 2004 he was taken by police officers to some premises where they interrogated and tortured him with the aim of extracting a confession to the murder. The torture allegedly included the administration of electric shocks and the infliction of physical injuries.

On 14 December 2004 the applicant wrote a confession admitting that he had committed the murder.

On the same day the applicant was provided with a lawyer and questioned as a suspect. During the questioning, in the presence of the lawyer, the applicant submitted that on the evening of 15 November 2004 he had met the victim at the bus stop and asked if he had a cigarette; the victim responded aggressively and an argument arose between them, which developed into a fight; when the victim attacked him with a knife, the applicant grabbed the arm that was holding the knife and, at a certain moment during the struggle between them, the knife ‒ still in the victim’s hand ‒ caused a lethal wound to the victim’s neck. The investigator also asked the applicant to explain why he had a swelling on the left forearm in the wrist area. The applicant disputed that it could be described as a swelling and added that it might have been caused by the handcuffs.

In the evening of 14 December 2004 the police drew up a report on the applicant’s arrest.

On 15 December 2004 the applicant was examined by a forensic medical expert who reported that the applicant had no injuries. According to the applicant, the expert had examined him superficially and he had not been required to undress.

On 16 December 2004 the applicant participated in a reconstruction of the incident and, in the presence of his lawyer, explained and demonstrated how the conflict between him and the victim had developed and how the fatal wound had been caused.

On 17 December 2004 the Dmytriv Town Court extended the applicant’s preliminary detention to 24 December 2004. On 24 December 2004 the Dmytriv Town Court ordered the applicant’s detention in custody. During these hearings the applicant ‒ in the presence of his lawyer ‒ described the circumstances of the incident in the same way as he had done earlier. He also stated that he had not been subjected to pressure on the part of the police officers. The applicant then admitted that he regularly took Tramadol (an opioid analgesic) and specified that before the incident of 15 November 2004 he took five pills of Tramadol.

On 24 December 2004 the applicant was charged with the murder. He was again questioned in the presence of his lawyer. The applicant repeated the details of the struggle between him and the victim and the circumstances of the victim’s death.

On 28 December 2004 the applicant was placed in Pre-Trial Detention Centre No. 6 (“the SIZO”). Upon admission he was given a medical examination, during which no injuries were found.

On 8 and 14 January 2005 the applicant’s mother lodged a complaint with the prosecutor’s office, alleging that the police officers had tortured the applicant and made him confess to a crime which he had not committed.

On 24 February 2005 the forensic medical expert issued a report in which ‒ referring to the results of the applicant’s medical assessment on 15 December 2004 ‒ he stated that at the time of the medical assessment the applicant had not been suffering from any injuries.

On the same date the Dymytriv prosecutor’s office refused to open an investigation in connection with the allegations of torture, noting that there were no indications that the police officers had committed any offence.

On 11 March 2005 the applicant was questioned once again. During the questioning, he denied the charges of murder and retracted his earlier statements, claiming that he had incriminated himself because he had been afraid of the police officers.

On 15 March 2005 the case was referred to the Dmytriv Town Court for trial.

On 15 April 2005 the applicant submitted a written request for a medical examination to the Dmytriv Town Court. The applicant gave the names of the three police officers who had allegedly tortured him on 12 December 2004 and specified the place where that had happened. The applicant claimed that he had been hung upside down over a horizontal crowbar whilst handcuffed; a gas mask had been placed over his head; electric shocks had been applied to different areas of his body including his genitals. He claimed that after the continued ill-treatment he had given up and accepted the fictional story made up by the police officers; he had then been taken to the crime scene and was told the details that he was supposed to repeat later during the investigation.

On 21 April 2005 the Dmytriv Town Court ordered the prosecutor’s office to investigate the applicant’s allegations; it also ordered a forensic medical examination of the applicant to be carried out.

On 29 April 2005 the forensic medical expert drafted a report in which ‒ relying on the results of the applicant’s assessment of 15 December 2004 and the report of 24 February 2005 ‒ he noted that at the time of the medical assessment the applicant had not been suffering from any injuries.

On 4 May 2005, acting on the results of the pre-investigation enquiries, the Dmytriv prosecutor’s office refused to initiate criminal proceedings against the police officers, holding that no elements of offence had been established.

On 6 July 2005 the applicant was assessed by a medical expert who reported that the applicant had scars on his wrist joints, and on the left side and front of his chest. The expert noted that the scars had resulted from injuries caused by blunt objects and could have been sustained between six and eighteen months prior to the examination. The expert further reported a scar on the right forearm and noted that it had resulted from an injury caused by a blunt object; in his view the injury could have been sustained more than three years before the examination. The expert classified all the injuries as minor.

On 8 July 2005 the Donetsk Regional Prosecutor’s Office quashed as unsubstantiated the decisions of 24 February and 4 May 2005 adopted by the Dymytriv prosecutor’s office and ordered further pre-investigation enquiries.

On 11 October 2005, following additional enquiries, the Dymytriv prosecutor’s office issued a further decision refusing to open an investigation in connection with the alleged ill-treatment. The prosecutor noted that the applicant had not complained of the ill-treatment earlier, that the police officers had denied his allegations, that the medical report of 15 December 2004 had documented no injuries to the applicant and that the report of 7 July 2005 stated that the applicant had some old scars which did not bear out his allegations.

On 7 September 2005, further to a request from the court, the applicant was examined by a panel of forensic medical experts. In their report of 7 November 2005, the panel stated that the applicant had scars on both ears, on the left side of his chest, on his forearms, wrists, right shin and ankle, and the pigmented area on the right side of his chest. The experts noted that the scars had resulted from injuries which could have been sustained six months or more before the date of the examination; some of the injuries could have been caused by shackles. The panel classified the injuries as minor.

On 15 February 2006, following a request from the court, the panel of experts also reported that it was impossible to determine on the basis of the available medical information whether the injuries found on the applicant had been sustained before or after 15 December 2004.

On 17 April 2006 the Dmytriv Town Court remitted the case for additional investigation, noting that the investigator had failed to establish a number of important facts, including the time of the victim’s death and any motive on the part of the applicant for committing the crime. The prosecutor appealed against that decision.

On 15 September 2006 the Donetsk Region Court of Appeal quashed the decision of 17 April 2006 as unfounded and remitted the case to the first-instance court for trial.

On 29 December 2006 a forensic psychiatric expert drafted a report stating that the applicant had recovered from a temporary mental disorder.

During the trial the applicant denied the charges and maintained that he had been ill-treated by the police officers, who had made him incriminate himself. The court questioned the expert who had carried out the assessments of 15 December 2004 and 6 July 2005 about the discrepancies in those assessments. The expert explained that his first assessment had been concerned with the documentation of visible injuries and he had not been asked a specific question about scars. He also noted that during that assessment he had asked the applicant to undress. The applicant maintained, however, that the expert had not asked him to undress.

On 8 October 2007 the Dymytriv Town Court found the applicant guilty of murder and sentenced him to twelve years’ imprisonment. The court established the applicant’s guilt relying on the self-incriminating statements made by the applicant in the presence of his lawyer between 14 and 24 December 2004, including the statements of the applicant which he made before the court when the issue of a preventive measure was being decided. The court also referred to the other oral, documentary, material and expert evidence.

The court rejected the applicant’s allegations of ill-treatment as unsubstantiated. In that regard it referred to the results of the medical assessments of 15 and 28 December 2004 which found no injuries on the applicant. It also noted that there had been no suggestion by the experts as to how the injuries discovered on the applicant later could have been sustained. As to the injuries on the wrists, the court noted that they might have been caused by the handcuffs and added that between December 2004 and March 2005 the applicant had regularly been handcuffed when escorted to and from the court.

The applicant appealed against that judgment claiming, inter alia, that his conviction had been unlawful and based on evidence obtained through ill-treatment.

On 6 June 2008 the Donetsk Region Court of Appeal dismissed the applicant’s appeal and upheld the judgment of the first-instance court. It noted that the applicant’s allegations of ill-treatment had been far-fetched and, in any event, they had been properly examined by the prosecutor’s office and the trial court. It pointed out that the applicant had made the self-incriminating statements between 14 and 24 December 2004 in the presence of his lawyer, and that on 15 and 28 December 2004 no injuries had been documented following the medical examination of the applicant.

The applicant lodged an appeal on points of law with the Supreme Court, claiming in particular that his conviction had been based on evidence obtained through ill-treatment.

On 15 August 2008 the Supreme Court rejected the applicant’s appeal on points of law as unfounded.

Following his conviction, the applicant lodged an appeal against the decision of 11 October 2005, in which the prosecutor had refused to open an investigation in respect of the alleged ill-treatment.

On 9 February 2010 the Dymytriv Town Court quashed the impugned decision, considering that the matter had not been examined thoroughly.

On 10 March 2010 the Donetsk Region Court of Appeal quashed the decision of 9 February 2010 and remitted the case to the first-instance court for fresh consideration.

On 9 September 2010 the Dymytriv Town Court dismissed as time-barred the applicant’s complaint concerning the decision of 11 October 2005.

The Donetsk Region Court of Appeal and the Higher Specialised Civil and Criminal Court of Ukraine upheld the decision of 9 September 2010 on 7 October 2010 and 8 April 2011 respectively.

Between December 2004 and June 2005 the applicant underwent X-ray examinations which showed no lung pathology.

On 25 June 2005 he applied to the medical unit of the SIZO complaining of coughing up phlegm, weakness and fever. The applicant was examined by the general practitioner and diagnosed with chronic bronchitis in its acute phase. He was hospitalised in the medical unit of the SIZO and provided with in-patient treatment.

On 4 July 2005 the applicant was discharged from the medical unit in satisfactory condition. He was advised to avoid getting too cold.

Between July 2005 and October 2006 the applicant underwent X-ray examinations which showed no signs of pathology. He made no complaints concerning his health.

On 13 November 2006 the applicant was treated in the local hospital on account of cuts to both forearms, and scratches on his neck and the front of his abdomen. He was diagnosed as having attempted suicide.

On the next day he was examined by a psychiatrist who diagnosed mental and behavioural disorder caused by taking opioids, generating a psychopathy-like syndrome. The applicant received further outpatient psychiatric treatment.

Between December 2006 and February 2008 the applicant underwent X-ray examinations which showed no signs of pathology. He made no complaints concerning his health.

On 19 July 2008 the applicant was transferred from the SIZO to a prison. Upon admission, the applicant was medically examined and diagnosed with chronic bronchitis.

On 23 July 2008 the applicant underwent X-ray examination which showed no signs of pathology.

In May 2009 the applicant underwent treatment for an acute form of bronchitis.

In January 2010 the applicant was diagnosed with tuberculosis of the right lung. The applicant was offered hospitalisation in the tuberculosis clinic of Zhdaniv prison no. 3 for further examination and treatment. The applicant refused to be hospitalised.

Between 22 and 27 February 2010 the applicant underwent examination in the tuberculosis clinic of Zhdaniv prison no. 3.

On 26 February 2010 the applicant was diagnosed with post-tuberculosis residual changes and residual changes after pleurisy. He was advised to undergo sessions of anti-tuberculosis treatment for a period of three years. The applicant refused to undergo the proposed sessions of treatment.

On 5 December 2012 the applicant was diagnosed with chronic bronchitis in remission and chronic maxillary sinusitis in remission. The applicant received further outpatient treatment by the general practitioner at the medical unit of the prison.