No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Public hearing);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home)

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev

On 26 March 2004 the applicant acquired an apartment in Housing Cooperative (“borettslag”) X. At her request, on 29 March 2004 its Governing Board (hereinafter “the Board”) approved the applicant’s acquisition. Before she moved in, the Board became aware that the applicant’s son, Mr A, had caused serious problems in Housing Cooperative Y, where the applicant had previously been part owner and resident and where in recent years her son had cohabited with her. Housing Cooperative X therefore became particularly concerned that only the applicant move into the cooperative and informed her that it contemplated withdrawing its approval of her as a part owner. It asked her to make a written undertaking to the effect that Mr A would not move to the apartment in X. In this connection, the Board referred to the fact that in her request for approval of her part ownership she had indicated that her household would consist of one person.

After a brief exchange of correspondence between Housing Cooperative X and the applicant’s Attorney B., he stated in a letter of 26 May 2004 that “[o]n behalf of [the applicant] it is hereby confirmed that it is she, not her son [Mr A] who will move into the apartment nr 2036 in Z Street 14 C as soon as it will be ready for takeover on 5 July 2004”. The letter further confirmed the correctness of the information previously provided that the household would “consist of one person”. Against this background, the Board maintained its earlier approval of the applicant as a part owner.

By a letter of 23 May 2006, Attorney K., on the behalf of the Housing Cooperative, pointed out to the applicant that Mr A seemed to have moved to her apartment, in breach of the conditions for the approval of her as part owner. K. referred to the fact that the Board over a long period had received several complaints regarding Mr A’s conduct at the Housing Cooperative and to his conviction by Oslo City Court (tingrett) of 10 March 2006 for violent assault and frightening and disturbing behaviour vis-à-vis neighbours at Z Street 14 B and 14 C; and the fact that it followed from the judgment that Mr A’s residence was Z Street 14 C. In a letter of 2 June 2006 Attorney B. disputed inter alia that Mr A had an address in Z Street 14 C.

On 2 September 2008, the Board held a meeting. According to the minutes it was decided that its “secretary was to inform Attorney [K.] of the new situation and to request him to initiate eviction proceedings against Sagvolden”.

On 14 April 2009, Attorney K. sent to the applicant on behalf of the Housing Cooperative a letter ordering her to sell her part (salgspålegg) in accordance with section 5-22 of the Housing Cooperative Act 2003 (burettslagslova, see paragraph 75 below). K. referred to his previous correspondence and to Mr A’s conviction by the City Court of 23 June 2008 (see paragraph 18 below), by which he was sentenced to eighteen days’ imprisonment for violent assault and frightening and disturbing behaviour vis-à-vis neighbours in Housing Cooperative X. He further referred to the fact that Mr A on several occasions had been imposed judicial restraining orders prohibiting him to contact four members of the Housing Cooperative, the last such order with effect until 5 April 2009 (see paragraph 38 below). Attorney K. added that the conditions for eviction under section 5-23 had been fulfilled, but that for the time being it had been deemed sufficient to order sale of the apartment.

Upon expiry of the three month time-limit for sale, set pursuant to section 5-22 of the Housing Cooperative Act, Attorney M., who had succeeded Attorney B. as the applicant’s representative, responded by a letter of 15 July 2009 that the order of sale would not be complied with.

On 29 December 2005 Mr A had been indicted under Article 390A of the Penal Code for having by frightening or disturbing behaviour or other inconsiderate behaviour violated the right of another person to be left in peace. According to the indictment:

“(a) At 00h00 on Friday, 29 July 2005, at [Z Street] 14B, Oslo, he came walking fast towards Mr [H.F.] and told him that ‘he ought to watch out’ and ‘that he would keep an eye on him’. These affirmations were in the circumstances frightening to Mr [H.F.].

(b) On Saturday, 30 July 2005, at [Z Street] 14C, Oslo, he told Mrs [T.L.B.]: ‘The vengeance is sweet, the vengeance is best cold, it may happen anytime and anywhere, it may not necessary be me directly.’ This statement was in the circumstances frightening to Mrs [T.L.B.].

(c) On Monday, 12 September at [Z Street] 14C, Oslo, he contacted Mrs [T.L.B.] and stated amongst other things: ‘Watch out, you have not seen anything yet’. This statement was in the circumstances frightening to Mrs [T.L.B.]”

He was also indicted under Article 228(1) (later changed to Article 282(2)) of the Penal Code for having committed violent assault against another person or in any other way having assailed him bodily:

“At 16h00, on Sunday, 13 November 2005 at [Z Street] 14C, Oslo, he grabbed the arms of Mr [C.B.] [son of Mrs T.L.B.] and flung him around making him fall on a bicycle. Thereafter he again grabbed him and pushed him into a wall.”

By an additional indictment of 10 February 2006, Mr A was indicted with another offence under Article 390A of the Penal Code:

“At around 11.30 a.m. on Wednesday, 21 December 2005, outside the shopping mall in [Y Road], he went towards Mr [E.L.] as the latter came out of the shopping mall carrying a full shopping basket on his way to his car. He followed Mr [E.L.] while talking to him loudly and went up to his face while stating inter alia ‘I will beat the shit out of you ... you fat donkey’, or similar. He placed himself in front of the car, thus preventing Mr [E.L.] from putting his shopping items inside his car, while affirming ‘I won’t move’.”

In a judgment of 10 March 2006, the City Court, after holding an oral hearing at which Mr A was represented by a lawyer and witnesses were heard, convicted Mr A of the charges and sentenced him to 120 days’ imprisonment. The sentence included the conditional part of a sentence imposed by the City Court in a judgment of 31 October 2003 by which Mr A had been convicted of an offence under Article 390A of the Penal Code.

In meting out the sentence, the City Court attached considerable weight to the fact that Mr A had twice (last time in 2003) been convicted for a number of offences of a similar nature, that he had actively approached the victims, and that his conduct to a great extent affected people in their homes and closest environment, thereby destroying the victims’ and their families’ feeling of safety and wellbeing at their homes and in the near vicinity. A further aggravating factor was the extent, the intensity and duration of his conduct and Mr A’s inability and unwillingness to cease his criminal conduct.

Mr A did not lodge an appeal against his above conviction and sentence which thus became final.

On 22 January 2008 Mr A was inter alia indicted under Article 228(1) of the Penal Code for having committed the following violent assaults:

“(a) At around 12h00, on Wednesday, 25 April 2007, at Z Street 14C, Oslo, he took a strangulation grip on T.L.B.

(b) At around 21h15 on Wednesday, 12 September 2007, outside Z Street 14B, Oslo, he punched Mr H.F. in his chest with a clenched fist. ...”

In an additional indictment of 14 April 2008, Mr A was charged under the same provision as follows:

“At around 18h15 on Saturday, 12 January 2008, in the staircase of the garage building of Z Street 14C, Oslo, he hit and/or pushed Mr D.H. in the chest with clenched fists so that the latter fell backward towards a wall, whereupon he pulled Mr D.H. by his arm/or jacket into the building.”

By a judgment of 23 June 2008, the City Court convicted Mr A of the above charges. It found proven, not that he had taken a strangulation grip on Mrs T.L.B., but that he had intentionally pushed her against a door or a wall with one hand; that he had pushed Mr H.F. or hit him in his chest but not that he had hit him hard; and that he had held around Mr D.H.’s chest and had pushed him against the wall, both in the staircase and in the garage but that he had not hit Mr D.H. The City Court observed that, while all three offences would normally warrant the imposition of fines, Mr H.F.’s advanced age and frailness were an aggravating factor as were the number of the offences adjudicated as well as the fact that Mr A had been convicted in the past for similar and in part more serious offences. He had moreover not understood the gravity of his actions. The City Court sentenced Mr A to eighteen days’ imprisonment.

Mr A did not lodge an appeal against the above judgment which thus became final.

On 2 September 2009 the Housing Cooperative issued a warning of compulsory sale (section 4-18 of the Enforcement Act, tvangsfullbyrdelsesloven) and on 1 October 2009 it instituted proceedings against her before the relevant section (Oslo byfogdembete) of the Oslo City Court (tingrett), to obtain an order of compulsory sale of her apartment, from a specialised judge entrusted inter alia with such matters.

The applicant, represented by the same lawyer as before the European Court, reiterated that according to section 4-8 of the Housing Cooperative Act the case ought to be examined under an ordinary procedure (i søksmåls former – which in principle included an oral hearing if the respondent’s objections against compulsory sale was not “clearly groundless”). In her written pleadings she sought to address this question legally and factually, while pointing out that a complete presentation of evidence would be made at a later stage (i behandlingen av søksmålet). She submitted notably as follows.

In the first place the applicant requested the City Court to dismiss the case on the ground that the Board’s decision had not provided a legal basis for Attorney K. to initiate proceedings against her for compulsory sale. The decision had stated “Sagvolden”, not Torill Sagvolden, and “eviction”, not compulsory sale (see paragraph 8 above).

She also argued that it would create an unreasonable situation if the Housing Cooperative X’s interest in her removal were to carry more weight than her needs at the age of eighty in not being put on the street. She had previously moved from the previous Cooperative Y to Cooperative X and had left old disputes behind her. However, because of a warning system within the OBOS system (a cooperative building association owned by its 330.000 members and which included both Cooperatives), already before moving into X she had been persecuted by allegations related to Y. There would hardly be any alternative for her. The situation had evolved over time and she ought to be entitled to admit Mr A in her household. Due to her age, she had become increasingly dependent on his assistance.

The criminal matters pertaining to Mr A dated far back in time and could not justify compulsory sale, especially since the situation had improved and both the applicant and Mr A were open to negotiate on other appropriate default measures. The most recent offence dated from January 2008. The decisions on restraining orders (see paragraph 38 below) could not carry any weight since the threshold for prohibition on contact was low and did not require a preponderance of probabilities. The alleged harassment and threats was in great part due to a paranoid perception of some of the neighbours.

The applicant requested the City Court, before conducting any procedure on the merits, to first decide on her request that the case be dismissed.

By a decision (kjennelse) of 26 April 2010, the City Court upheld the Housing Cooperative X’s request for an order of compulsory sale of the applicant’s apartment, to be carried out by an official assistant (medhjelper).

The City Court first dismissed the applicant’s contention that there was no decision by the Board which could constitute a basis for compulsory sale. The mention in the decision of “Sagvolden” could not be understood in any other way than as referring to the applicant. From section 5-23 of the Housing Cooperative Act, it clearly followed that it was the applicant, as the owner of the apartment in question, who was the person whom the Housing Cooperative ought to address in all cases concerning the owner’s duties and responsibilities. It was the owner’s breach of such that could justify an eviction order. It followed from the case-law and legal doctrine that the owner was to be identified with the members of his or her household, both in the sense that faults on their part were relevant and that an eviction measure would also concern them; it was not possible to limit a request for an eviction order to concern only one or some of the members of a given household or to concern only the owner and not the other occupants.

The City Court further rejected the applicant’s argument that the Board’s decision did not concern compulsory sale (“tvangssalg”) but only eviction (“utkastelse”). The Housing Cooperative’s lawyer had stated that the Board was of the view that the conditions for eviction had been fulfilled but that the Cooperative had opted to limit its demand by initiating proceedings for compulsory sale. Since the Board’s decision on eviction implied compulsory sale, to proceed with the latter and less extensive measure first clearly fell within that decision. This did not exclude that a request for an eviction order be made subsequently.

No arguments had been raised by the applicant suggesting that the Housing Cooperative’s demand ought to be dismissed. Nor was there anything to indicate that Attorney K. had exceeded the powers conferred on him by the Board.

Moreover, no objection had been made as regards the contents of the plaintiff’s claim for an order of compulsory sale or about the requirements as to warnings. The formal requirements for seeking an order of compulsory sale had been fulfilled (sections 5-22 and 5-23 of the Act).

The condition for requiring sale was that the owner of the part in question had “substantially defaulted” his or her obligations (“misheld pliktene sine vesentleg”). The request for compulsory sale ought to be referred for examination according to the ordinary procedure applicable to ordinary appeals (which in principle include an oral hearing) if, within the statutory time limit, objections had been raised against compulsory sale that could not be regarded as “clearly groundless”.

The assessment of whether “substantial default” had occurred concerned not only the owner’s conduct but also that of other members of his or her household, as the owner undoubtedly ought to be identified with them. In the instant case, the circumstances that could justify enforcement measures related to the conduct of Mr A.

In this regard, the City Court observed that it was undisputed that the reason why the applicant had been obliged to leave her apartment in Housing Cooperative Y had been the serious problems that her son had caused there. In applying to the Board of Housing Cooperative X for its approval to become a new part owner, she had requested approval for one person only. Accordingly, it ought to be assumed that only she would occupy the apartment. Before moving in, she had confirmed through her lawyer that her household consisted of one person. Previously she had written to the Housing Cooperative X without replying to questions of whether her son would move in. It was only after the Housing Cooperative X’s request to the applicant of 19 May 2004 for confirmation that Mr A would not move to the estate that Attorney B. had responded in the affirmative by letter of 26 May 2004. She was then well informed that it was precisely the matters regarding her son which was the reason for the Board’s request for confirmation that he would not move into the flat.

According to section 16 of the then applicable Housing Cooperative Act, an approval of a new part owner could be withdrawn within a year if the owner had provided inaccurate, or withheld, substantial information and the owner ought to have been aware of this. In view of the situation at the material time and the applicant’s confirmation, the Housing Cooperative X could assume that the applicant had committed herself to moving in alone and in any event without her son. Both the Board’s approval and her confirmation had dated approximately six years back in time and it was only at present that she for the first time had alleged that the Housing Cooperative had forced her to make the said declaration by threatening to take unlawful action. On this point, the City Court observed that the only measure which the Housing Cooperative X contemplated was to refuse approval of the applicant as a new part owner and there was nothing to indicate that it had been unlawful to envisage such a measure.

Furthermore, where the board of a Housing Cooperative had become aware that problems with a part owner had occurred in another Housing Cooperative, it ought to be able to take the matter into account in its assessment of whether or not to approve that person as a new part owner. There were no elements to suggest that the information received by Housing Cooperative X had been obtained in an unlawful manner. Whether and to what extent any outsiders had acted unlawfully was not for the City Court to consider in the present case.

It was unclear at what time Mr A had moved into the applicant’s apartment. According to the Oslo City Court’s judgment of 10 March 2006, Mr A had stated that he was living in Z Street 14C. From the same judgment it appeared that the criminal offences for which he was convicted had occurred in Z Street 14B and 14C in July 2005. It was also undisputed by the applicant that she had been cohabiting with Mr A in her apartment for an extended period. However, since the applicant, as a part owner, was responsible for the conduct by members of her household as well as her visitors, it was not decisive when Mr A had moved in.

The City Court noted that it was clearly established that Mr A, by the judgments of 10 March 2006 and 23 June 2008 respectively, had been convicted of having committed violent assault and frightening behaviour against three neighbours at Z Street 14B and 14C. The episodes in the 2006 judgment had occurred on 29 and 30 July, 12 September and 13 November 2005. The 2006 judgment described inter alia Mr A as a person who perceived everyone in respect of whom there was a contradiction or a disagreement as being part of a conspiracy against him (for further details see paragraph 54 below). His use of violence was perceived as unprovoked. He had infringed people at their homes, in such a way as to destroy the victims’ and their families’ sense of safety and wellbeing at their homes and nearby. According to an assessment of Mr A made by a court appointed expert in 2003, he extensively and systematically had perceptions and experiences of conspiracy which were almost impossible to influence and which according to the 2006 judgment were still prevailing at that time.

The judgment of 23 June 2008 had concerned episodes from April and September 2007 and January 2008 involving violations of Article 228(1) of the Code of Penal Procedure. Also in this judgment it had been found proven that Mr A had generally behaved in an intensive and intrusive manner. He was tall and strong, went very close to the person with whom he wanted to discuss and shouted to them with a load and aggressive voice. He was moreover inclined to block the passage of people he wanted to talk to and had a low threshold for taking one step further and grab or push people. This he did in a manner which was so aggressive as to make people anxious of the possibility of further and more serious violence being perpetrated.

In addition to the above-mentioned judgments, he had been imposed restraining orders by the police prohibiting him from visiting the following neighbours:

- Ms T.L.B. and her children, for the period from 3 May 2007 to 3 May 2008;

- Mr H.F., from 20 September 2007 to 20 September 2008;

- Mr D.H., from 22 February to 22 August 2008; and

- Mr J.-E.S., from 5 November 2008 to 5 April 2009.

All these matters showed a person who over a long period had displayed frightening and disturbing behaviour vis-à-vis a number of neighbours in the Housing Cooperative where he was living with his mother, and where the incidents had led to convictions and prohibitions on contact over longer periods. It was also undisputed that Mr A had reacted with a particularly high degree of intensity vis-à-vis the Board and some of its members.

As regards the applicant’s allegation that the conditions had improved and that both she and Mr A were prepared to negotiate on alternative default measures, the City Court noted that the Housing Cooperative’s communications to the applicant had led to tirades of phone calls and e-mails with accusations against members of the Board and complaints to different public institutions. This was also supported by the description made by the City Court in its judgment of 10 March 2006. As the applicant had failed to indicate what other appropriate default measures could consist of, the respondent Housing Cooperative could not be required to take further initiatives in this case.

Whether the conditions for ordering compulsory sale had been fulfilled essentially depended on whether substantial default and conduct in breach of section 5-23 had materialised at the time when the order of sale was issued (namely 14 April 2009).

42’s conduct had caused serious disturbance to other occupants and had violated section 5-23 of the Housing Cooperative Act. For this reason, the issuing of a warning before compulsory sale had not been a requirement.

In the City Court’s view the applicant’s interests on account of her old age ought not to carry more weight than those of other occupants in the Housing Cooperative. It found it established that her obligations as a part owner had been seriously defaulted, in any event since 2005. Whilst it was understandable that it was more difficult for a person aged eighty to find and move to a new home, this could not be decisive in this case where neighbours had been harassed over a number of years. Despite her own confirmation that she moved in alone, the applicant had let her son live in the apartment with all the problems this had caused to other occupants. Therefore, she ought to bear the consequences of her own choice even though this were to make it problematic for her to find another house within the OBOS Housing Cooperative system.

The Board’s decision on eviction had been taken on 2 September 2008, around two months after Mr A’s conviction of 23 June 2008 and eight months after his commission of one of the offences. This was his second conviction for offences committed against neighbours while the first had concerned offences committed in 2005. The Board had taken and followed up its decision with reasonable expedition.

Moreover, the applicant’s contention that the police had acted in breach of their duty of confidentiality, by providing information to Housing Cooperative X concerning Mr A in relation to Z Street 14 C, could have no bearing on the present case.

Considering all of the applicant’s pleas against compulsory sale as being “clearly groundless” in the sense of sections 5-22, cf. section 4-8(2) of the Act, the City Court upheld the Housing Cooperative’s claim and ordered that sale take place by an assistant.

The applicant appealed against the City Court’s decision to the Borgarting High Court (lagmannsrett), complaining of the former’s assessment of the evidence, its application of the law and procedure. Maintaining in the main her arguments before the City Court, she requested that the Housing Cooperative X’s action be dismissed; in the alternative, she argued that the request for compulsory sale was unlawful in that no evidence had been adduced to show that she had defaulted her obligations vis-à-vis the Housing Cooperative or, in any event, that any such default had been substantial. In the further alternative, she submitted that, after refusing to dismiss the suit, the City Court had failed to refer her case for examination according to the ordinary procedure (involving in principle an oral hearing) and had wrongly considered her objections against compulsory sale as being clearly groundless; therefore, she asked the High Court to quash the City Court’s decision and to refer the case back for re-examination in accordance with the ordinary procedure. The applicant submitted that she could not cope with the thought of having to move house again and that she never believed that she would have to do so. The apartment really suited her and the fact that her son lived with her had made her feel that she received the help and care she needed in daily life.

By a decision of 5 August 2010 the High Court rejected her appeal. From the outset it observed that sufficient light had been shed on the case for it to determine the appeal on the basis of the written case-file (Article 29-15(1) of the Code of Civil Procedure).

As regards the applicant’s allegations that the imposition of compulsory sale suffered from deficiencies, the High Court found it clear that the Board’s decision provided an adequate basis for notifying her of the measure in accordance with section 5-22 of the Housing Cooperative Act.

The High Court did not find it necessary to take a stance on whether the terms “eviction case” ought to be read as relating to the vacating of premises (compare paragraph 28 above). In that event, as also assumed by the City Court, it was obvious that there was a possibility to opt for the less intrusive measure, namely the imposition of an order to sell the flat. The above decision most probably was an acknowledgment of a request by the Board to its attorney to take the necessary steps to bring the Cooperative’s relationship with the applicant to an end. More than this could not be required, bearing in mind especially the long historical background to the case.

Nor could the applicant succeed with her argument that she had not been sufficiently identified because the Board only used her surname. As also pointed out by the City Court, as for proceedings concerning eviction it was also the situation for those on compulsory sale that only the owner of the part of the Housing Cooperative in question could be the addressee. It could not be assumed that any other intention lay behind the Board’s decision.

Finally, the High Court shared the City Court’s view that a prior warning had not been a prerequisite for obliging her to sell her part. Since, in accordance with the findings below, the conditions of serious disturbance and nuisance had been fulfilled for obliging her to vacate the flat pursuant section 5-23(1) of the Act, the requisite of prior warning under section 5-22(1) of the Act did not apply.

Like the City Court, the High Court found it established that the applicant’s son, Mr A, for years had displayed conduct vis-à-vis the household’s neighbours constituting serious disturbance and nuisance to them. The City Court judgments of 10 March 2006 and 23 June 2008 concerned several offences under Articles 228 and 390A of the Penal Code, all of which, but one, had been aimed at neighbours in the Housing Cooperative.

The High Court further considered that the matters in respect of which Mr A had been charged and convicted did not give the full picture of the conduct that had prompted the Housing Cooperative to react with default measures in regard to the applicant. In this connection the High Court pointed to the findings made by the City Court in its 2006 judgment, which stated:

“Both from previous judgments and the statements given in this case, it emerged that the accused over many years had repeatedly contacted a number of neighbours and other persons with whom he considered he was in conflict. He had repeatedly levelled new accusations and more or less veiled threats against these persons and had in part made very serious and degrading remarks and descriptions. His conduct beyond this had also been perceived as disturbing, frightening and wholly unreasonably intense, both in form, extent and frequency. For instance, amongst other things, at times he was positioning himself more or less in the background in order to suddenly ambush by getting very close to and to some extent hindering the passage of the person he was talking to, while raising his voice and using threating body language and mimicking.”

The City Court had further referred to the fact that Mr A in connection with a criminal case in 2003 had undergone a thorough expert examination, which had inter alia concluded that he had extensive, systematic perceptions and experiences of conspiracy that were almost impossible to influence. Also the judgment of 2008 had described acts and conduct by Mr A that clearly corresponded to that description.

The High Court also noted that, during the period from 3 May 2007 until 5 November 2008, Mr A had been imposed restraining orders prohibiting him from contacting altogether four of his neighbours, the last such order having expired on 5 April 2009.

In the High Court’s assessment, the matters for which the applicant’s son had been convicted constituted by their nature, their number and the extent of the period in which they had been committed – namely from 29 July 2005 until 12 January 2008 – when seen as a whole, such default as fulfilled the conditions for requiring that the flat be vacated according to section 5-23(1) and the imposition of compulsory sale pursuant to section 5-22(1). This conclusion was further strengthened by the information that the incidents ought to be considered as a pattern of behaviour that was capable of creating an atmosphere of insecurity in the near environment.

Having reached this conclusion, the High Court found it unnecessary to examine whether Mr A’s moving into the applicant’s flat contrary to the declaration made on her behalf by Attorney B on 26 May 2004 amounted to serious default in the sense of the Housing Cooperative Act.

Nor could the applicant succeed with her argument that the conditions had subsequently improved.

The High Court found that the conditions for the imposition of default measures under sections 5-22 and 5-23 had in any event been fulfilled on 14 April 2009 when the order of sale was sent to the applicant, which – as also held by the City Court – was the decisive time for the assessment (see paragraphs 9 and 41 above).

The argument that the applicant’s high age should influence the assessment could not lead to any other conclusion. It was not difficult to see the sad side to hers having to move and, for that matter, even in the situation of her son. However, it was their own acts that had led to forcible sale of the apartment pursuant to section 5-22(2), cf. section 4-8(2) of the Act.

Thus, none of the grounds of appeal had succeeded and the High Court agreed with the City Court that they ought to be considered to be “clearly groundless” (section 4-8(2)). Her contention that the City Court should not have determined the case without holding an oral hearing could not be upheld either.

Against this background the High Court rejected the applicant’s appeal.

The applicant appealed against the High Court’s decision. She pointed out that the proceedings threatened her right to housing and that it was a serious case especially in view of her advanced age, eighty years. As regards the procedure, she submitted that the question was whether compulsory sale ought to occur under a written procedure or an ordinary procedure comprising an oral hearing. Her very considerable interest in keeping her apartment ought to be weighed against the Housing Cooperative’s limited interest in carrying out compulsory sale without an oral hearing. The competing interest in the case ought to have implications in the assessment of questions of procedure and the application of the law. The High Court’s reasoning had been summary; it had failed to deal with all her arguments and had omitted to comment on the interpretation of the terms “clearly groundless” and “substantial default”. The applicant requested the Supreme Court to quash the High Court’s decision and to refer her case back to the City Court for fresh examination under the ordinary procedure with an oral hearing.

On 1 October 2010, the Appeals Leave Committee of the Supreme Court (Høyesteretts ankeutvalg), whose jurisdiction was limited to reviewing the High Court’s procedure and interpretation of the law, rejected the appeal, finding it obvious that it could not succeed.

The assistant appointed to implement the compulsory sale, Attorney F., subsequently advertised the applicant’s apartment for sale. The highest bid was NOK 2,200,000 (currently corresponding to approximately EUR 240,000) from Mrs G. On 16 June 2012 Mr F. communicated the bid to the City Court for validation (stadfestelse), following which all interested parties were given two weeks for expressing objections. Before the expiry of the time-limit, the applicant and Mr A objected to the sale.

By a decision of 1 July 2011 the relevant section of the Office of the City Recorder (byfogdembete) validated the above-mentioned bid.

On 16 December 2011 the High Court rejected an appeal by the applicant and her son against the City Court’s decision to validate the bid, as did the Appeals Leave Committee of the Supreme Court on 18 July 2012 finding it obvious that the appeal could not succeed.

In conjunction with the above proceedings, the applicant and/or Mr A unsuccessfully pursued multiple other matters regarding the sale of the applicant’s apartment (request for replacement housing; miscellaneous complaints regarding the office of the Execution and Enforcement Commissioner’s (namsmannen) handling of the sale; a demand of access to documents in the possession of OBOS; disqualification of all police officers employed at the Court of the Office of the City Recorder; Mr A’s compensation claim against the State on account of the police having communicated information about him to OBOS allegedly in breach of their duty of confidentiality; his compensation claim against OBOS for its manner of processing information pertaining to him; his demand that OBOS remove from its archives and destroy a police report related to him; and his request for access to a file in OBOS’s possession) as well as a request for the joinder of these proceedings and an oral hearing. All these claims were rejected as being groundless by the relevant sections of the Oslo City Court (18 May and 1 July 2011), the High Court (14 and 16 December 2012) and the Appeals Leave Committee of the Supreme Court (18 July 2012). On 16 November 2012 the applicant was notified that the new owner had demanded that the applicant vacate the apartment following the implementation of compulsory sale.

On 5 December 2012 the Court of the Office of the City Recorder warned the applicant that, as previously announced on 22 October 2012, he had decided to take the necessary steps to have her evicted from the flat on 18 December 2012 at 10 a.m., should she not voluntarily vacate the premises.

On 10 March 2015, the Government forwarded a copy of a handwritten note, dated 10 February 2015, by which the applicant instructed her then lawyer Mr Mørk to withdraw her application immediately. She stated that any enquiries should be addressed to her son Mr T. or to her daughter Ms G. and emphasised that her son Mr A was not entitled to represent her. The Government also suggested that the application be struck out. On 31 March 2015, Mr Danielsen of the same law firm as Mr Mørk, replied that he had replaced the latter and that the applicant wished to maintain her application.

On 30 March 2015 Mr A, represented by Mr Marius Reikerås, sought leave to intervene as a party or as a third-party in the proceedings (Articles 34 and 36 § 32 of the Convention). On 20 May 2015, having examined the matter in the light of Rule 44 § 3 of the Rules of Court, the President of the First Section (to which the application was allocated at the time) decided to refuse the request as she considered, having regard to the state of the proceedings in the case, that the intervention requested would not be in “the interest of the proper administration of justice”. Thereafter the President decided to resume the proceedings, which had been temporarily suspended pending consultation of the parties on the afore-mentioned.

On 2 November 2015 the applicant died.

Following the applicant’s death, on 4 November 2015, Mr A, represented by Mr M. Reikerås, informed the Court that he wished to pursue the application. On 16 December 2015 the Government asked the Court to strike the application out of its list of cases. On 12 January 2016, Mr Danielsen, the lawyer acting for the deceased applicant, informed the Court that her two other heirs, Mr T. and Ms G., wished to pursue the application. On 2 and 3 February 2016 the Court received further observations on these matters from Mr Reikerås and the Agent of the Government.


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

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicant was born in 1980 and lives in Vilnius.

On 5 March 2009 the applicant and his grandmother’s neighbour, 88year-old J.S., signed a contract on lifelong maintenance (išlaikymo iki gyvos galvos sutartis). Under that contract, J.S. transferred the rights to her apartment to the applicant, who undertook to take care of her until she died by providing her with food and medication, looking after her apartment, walking her dog, and providing any other necessary assistance.

In June 2009 J.S. lodged an application with a court to terminate the contract on the grounds that the applicant had not fulfilled his obligations and had not been taking proper care of her. The applicant objected to the termination and argued that he had complied with the terms of the contract. Relying on the testimony of several witnesses, on 29 January 2010 the Vilnius Regional Court, in an oral hearing at which both the applicant and J.S. were present, granted J.S.’s application and annulled the contract.

The applicant appealed, arguing that he had complied with the terms of the contract and that it should therefore not have been terminated. On 11 October 2010 the Court of Appeal held an oral hearing at which J.S.’s lawyer was present but the applicant and his lawyer were not. According to the Government, a notification letter was sent to the applicant on 21 September 2010. During the hearing the court noted that the applicant had been notified of the hearing (apie posėdį pranešta) and proceeded to examine the case in his absence. The Court of Appeal delivered its judgment on 22 October 2010, upholding the first-instance judgment in its entirety.

The applicant lodged a cassation appeal with the Supreme Court. He complained, inter alia, that he had not been duly notified of the hearing before the Court of Appeal and had thus been unable effectively to defend his interests. The applicant submitted that he had received the notification about the time and place of the hearing by standard (non-registered) post only on 14 October 2010, when he had found it in his letter box. However, on 4 November 2010 the Supreme Court refused to examine the applicant’s cassation appeal as raising no important legal questions. The applicant lodged two other cassation appeals, but on 6 December 2010 and 10 January 2011 the Supreme Court refused to examine them, citing the same grounds as previously.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in 1981 and lives in Syktyvkar.

On an unspecified date criminal proceedings were instituted against the applicant on suspicion of aggravated rape.

Between 8 August and 9 November 2006 the applicant was held in pre-trial detention in remand prison SIZO no. 1 of Syktyvkar (СИЗО № 1 г. Сыктывкара).

On 9 November 2006 the applicant was released subject to an undertaking not to leave a specified place.

On 8 December 2006 the Syktyvkar Town Court convicted the applicant as charged and sentenced him to two years and six months’ imprisonment.

On the same date the applicant was detained in SIZO no. 1 of Syktyvkar.

On 11 April 2007 the applicant was transferred to prison IK-31 in Mikun.

On 6 March 2009 the applicant’s prison sentence expired and he was released from the correctional facility.

The applicant has been suffering from an insulin-dependent form of diabetes since the age of four. The disease has entailed various complications, including diabetic angioretinopathy and complicated diabetic cataracts.

On 24 April 2006 the applicant underwent a medical examination in connection with his eyesight problems at a municipal clinic at his place of residence. The examination confirmed that the visual acuity of the applicant’s right eye was 0.02, which corresponded to his ability to count the fingers on a hand from a distance of one metre, and that the visual acuity of his left eye corresponded to his ability to see hand movements near his face. According to the applicant, at that time he was able to orientate himself within familiar spaces, such as his flat, medical institutions and streets in the town.

On 20 November 2006, following his release from pre-trial detention, the applicant underwent another medical examination at the same municipal clinic, which established that he could count the fingers on a hand from a distance of 0.5 metres, that is that his visual acuity was 0.01, and that he could see hand movement near his face with his left eye. A cataract operation was recommended.

In December 2006, shortly after the applicant had been detained following his conviction by the Syktyvkar Town Court, he was admitted to prison hospital B-18 and diagnosed with a serious form of insulindependent Type 1 diabetes, subcompensation, diabetic polyneuropathy, diabetic nephropathy, symptomatic arterial hypertension, chronic renal insufficiency, an immature diabetic cataract in the left eye and an almost mature diabetic cataract in the right eye. The visual acuity of the applicant’s right eye was 0.02 and of his left eye was 0.004.

In late December 2008, in connection with his request for release on parole (see paragraphs 60-62 below), the applicant was examined by a special medical commission of the correctional facility where he was being detained at that time. The commission confirmed that the applicant had a serious form of insulin-dependent diabetes and all the accompanying diseases which had been established before. As regards the applicant’s eyesight, it was stated that he could detect hand movement near his face with his right eye but that he was blind in his left eye. The applicant was diagnosed with complicated diabetic cataracts in both eyes, and specifically with an almost mature cataract in the right eye and a mature cataract in the left eye.

On 14 March 2009, after the applicant had been released, he was examined by an ophthalmologist at the municipal clinic at his place of residence. It was established that he could detect hand movement near his face with his right eye and that he was blind in his left eye. The ophthalmologist recommended that he undergo urgent surgery for his cataracts.

On 12 May 2009 the applicant was admitted to the ophthalmology department of a public hospital for cataract surgery. According to the applicant, the doctors confirmed that his visual acuity corresponded to that established on 14 March 2009 and refused to carry out any surgery on the grounds that they were not sufficiently experienced to operate on cataracts at such an advanced stage. They recommended that the applicant be operated on in a specialised research institution. The applicant was discharged from the hospital the following day.

On 10 July 2009 a research clinic for eye problems in Moscow diagnosed the applicant as having a complicated immature cataract, proliferative diabetic retinopathy and retinal detachment in respect of his right eye, and neo-vascular terminal glaucoma and advanced retinal detachment in respect of his left eye. The visual acuity of the right eye was “light perception with correct light projection” and he was blind in the left eye.

On 14 July 2009 the applicant underwent surgery on the cataract in his right eye. The surgery was successful and when he was discharged from the clinic on 20 July 2009, he could detect hand movement near his face with his right eye.

On 29 September 2009 the applicant underwent another medical examination at the same clinic in Moscow with a view to establishing whether any further surgery on his right eye could be effective. It was established that he had a complete retinal detachment in his right eye caused by diabetes and that he was unable to see any distinct object with that eye, which meant that further surgery would be devoid of any prospect of success.

Following his conviction, the applicant was admitted a number of times to prison hospitals for examination and treatment. The admissions were as follows:

- between 8 and 24 December 2006 to the hospital of SIZO no. 1 of Syktyvkar;

- between 24 December 2006 and 20 March 2007, 20 and 25 April 2007, 1 and 24 September 2007 and between 2 and 23 October 2008 to prison hospital B-18;

- between 11 and 20 April 2007; 25 April and 1 September 2007, 31 July and 2 October 2008 and between 23 October and 6 March 2009 to the hospital of prison IK-31 in Mikun.

The Government provided the Court with copies of licenses issued to the prison hospitals to practise medical activity.

The applicant was regularly examined by a doctor, an endocrinologist and an ophthalmologist. Blood and urine tests were regularly carried out. A number of other tests, such as ultrasound of the abdominal cavity, electrocardiogram, fluorography and rheography of the legs and feet were also performed. The applicant was provided with symptomatic treatment, which, apart from insulin, included hypotensive therapy, medicines to improve microcirculation, vitamins and nootropics.

In autumn 2006, while the applicant was being held in pre-trial detention in SIZO no. 1 of Syktyvkar, the remand prison doctor prescribed him special diet no. 7b, in which sugar was replaced with milk. In January 2007, while he was in prison hospital B-18, the applicant was prescribed special diet no. 7a, in which sugar was replaced with milk.

According to the applicant, between April and July 2007, and then from early 2008 onwards, including on the date on which he lodged his application with the Court, he did not receive a special diabetic diet in the correctional facility.

According to a certificate of 28 March 2012 issued by prison hospital B-18, during his hospitalisation sugar was replaced with milk in the applicant’s diet.

In an epicrisis of April 2007 it was stated that at the time, prison IK31 did not have a sufficient supply of Humalog and Lantus and, therefore the applicant’s admission to the prison hospital had been recommended in order to find an alternative treatment.

According to the applicant, in July 2008 the prison authorities provided him with insulin with an expiry date of March 2008. He was allegedly informed of this by another prisoner, V., and enclosed the latter’s statement to that effect.

According to a certificate issued by prison IK-31 on 29 March 2012, during his detention in the prison the applicant was provided with the required insulin treatment. On several occasions when the forms of insulin specifically prescribed for the applicant by the endocrinologist were temporarily unavailable, he was provided with other forms of insulin. However, insulin that was past its expiry date was never used by the medical unit of prison IK-31.

According to an extract from the register of insulin supply of prison IK-31 for the period from 21 May 2007 to 8 May 2008, the forms of insulin prescribed to the applicant had the following expiry dates: May 2008, August 2008, June 2009 and August 2009.

According to the applicant, throughout his detention his eyesight steadily deteriorated because he was denied the necessary surgical intervention.

On 12 September 2006, while the applicant was being held in pre-trial detention in SIZO no. 1 of Syktyvkar, he was examined by an ophthalmologist who stated that in the facilities under the authority of the Ministry of Health it would be possible to remove the cataract from his left eye and implant an intraocular lens.

In reply to a request of a Syktyvkar Town Court judge asking whether diabetic cataracts in both eyes were irreversible, an ophthalmologist stated on 7 December 2006 that patients suffering from cataracts, including diabetic cataracts, were recommended surgery to improve their eyesight. Accordingly, bad eyesight caused by cataracts could not be considered irreversible.

On 26 December 2006 the applicant was examined by an ophthalmologist, who stated in his report that the applicant had had bad eyesight for approximately five to seven years, and had been unable to see anything with his left eye for approximately two years. On an unspecified earlier date surgery had been proposed to him in Syktyvkar, but he had refrained from undergoing it. However, the applicant now wished to undergo the surgery. The ophthalmologist stated that in the facilities under the authority of the Ministry of Health it would be possible to undergo elective surgery to remove the cataract from the applicant’s left eye and implant an intraocular lens.

On 13 April 2007 the applicant was examined by an ophthalmologist, who took note of his wish to undergo surgery on the cataracts.

On 3 May 2007 the applicant was again examined by an ophthalmologist, who recommended cataract surgery.

In a letter of 28 June 2007 the Federal Service for the Execution of Sentences in the Republic of Komi (“the FSIN”) informed the applicant’s mother that the applicant was being provided with the necessary medical assistance in connection with his disease. The letter also stated that surgery in respect of his eye diseases was necessary.

On 3 August 2007, in reply to a request from the hospital of prison IK-31, the Central Clinic of Syktyvkar informed the prison hospital that the applicant had been under the medical supervision of an endocrinologist, an ophthalmologist and a neuro-pathologist since 1997 on account of insulindependent diabetes, diabetic cataracts, diabetic retinopathy and encephalopathy of mixed genesis.

On 4 September 2007 the applicant was examined by an ophthalmologist again. The latter reiterated that the applicant could undergo elective surgery to remove the cataract from his left eye and to implant an intraocular lens in facilities under the authority of the Ministry of Health.

On 11 June 2008 the applicant was again examined by an ophthalmologist, who prescribed therapeutic treatment and scheduled the next examination three months later.

On 15 July 2008 prison IK-31 sent a request to the Gaaza prison hospital in St Petersburg to admit the applicant for further examination in order to decide whether cataract surgery was possible and, in the event of a negative answer, to provide recommendations as to his treatment or release on parole.

On 20 August 2008 the Gaaza prison hospital in St Petersburg replied that it could not grant the request as it did not comply with the applicable regulations. In particular, important information concerning the applicant’s condition and his consent to the treatment was missing.

On 29 September 2008 prison IK-31 sent the same request to the Gaaza prison hospital in St Petersburg.

In a letter of 6 October 2008 the same authority replied to a letter from the applicant’s mother complaining of the applicant’s poor medical treatment. The reply stated, in particular, that in connection with the deterioration of the applicant’s eyesight, the prison authorities had sought his admission to the Gaaza prison hospital in St Petersburg but that their request had been refused. It went on to say that on 2 October 2008 the applicant had been sent to another prison medical institution for examination, and that thereafter another request would be sent to the Gaaza prison hospital in St Petersburg for his admission there.

Also on 6 October 2008 the applicant was examined by an endocrinologist, who stated that he needed cataract surgery.

According to the applicant, by autumn 2008 his eyesight had deteriorated to the extent that it was recommended that he use a walking stick when moving about the prison facility, even though that was usually prohibited to convicted persons under the relevant regulations.

On 5 November 2008 prison IK-31 sent another request to the Gaaza prison hospital in St Petersburg to admit the applicant for further examination in order to decide whether cataract surgery was possible.

On 18 December 2008 the Gaaza prison hospital in St Petersburg informed prison IK-31 that it could admit the applicant for examination and treatment. It stated that, given the term of the applicant’s imprisonment and the time required to travel from the place of his detention or residence to the hospital, he should arrive at the hospital no later than 15 January 2009.

On 30 December 2008 the applicant refused in writing to be transferred to the Gaaza prison hospital in St Petersburg for surgery on the following grounds: (i) he had not been offered medical assistance during his transfer and was afraid to go on his own as he could not see; and (ii) only sixty-nine days remained until the expiry of his sentence.

On the same date the prison authorities acknowledged in writing receipt of the applicant’s refusal. They also stated that the applicant’s state of health allowed him to be transferred to St Petersburg, that he could take care of himself, and that his refusal was groundless.

On 16 January 2009 the FSIN informed the applicant that arrangements for transferring him to the Gaaza prison hospital had been suspended owing to his refusal.

However, in February 2009 the applicant’s mother asked the prison authorities to place the applicant in the Gaaza prison hospital in St Petersburg. In connection with her request, three prison doctors talked to the applicant on 4 and 5 February 2009 and tried to persuade him to give his consent to be transferred to St Petersburg. The applicant said that he would consider it and withheld his consent for the time being. A decision in that respect was therefore postponed.

Nevertheless, on 6 February 2009 prison IK-31 sent another request to the Gaaza prison hospital to admit the applicant for cataract surgery. The applicant eventually refused to be transferred to St Petersburg.

Between 8 December 2006 and 6 March 2009 the applicant remained in prison pursuant to a court judgment of 8 December 2006. On several occasions during that period he sought release on parole on medical grounds.

On 5 February 2008 the applicant lodged a request for release on parole, referring, inter alia, to his poor health and the need for medical treatment, in particular, surgery in respect of his eye diseases.

In a decision of 4 April 2008 the Ust-Vymskiy District Court of the Republic of Komi (“the District Court”) rejected the applicant’s request. It referred to his negative characteristics as cited by the prison authorities and stated that his diseases did not constitute grounds for his release on parole, as they did not prevent him from serving his sentence.

On 30 May 2008 the Supreme Court of the Republic of Komi upheld the first-instance decision following an appeal by the applicant.

On 18 November 2008 the applicant lodged another request for release on parole. He pointed out, in particular, that he had diabetes and complicated diabetic cataracts in both his eyes, and that surgery in the latter respect had been recommended to him in 2006. The applicant also stated that his eyesight had significantly deteriorated during the period of his imprisonment.

On 23 January 2009 the District Court rejected the applicant’s request, stating that his diseases were not on the list of diseases approved by a relevant governmental decree, which precluded the serving of a sentence in the form of imprisonment.

On 20 March 2009 the Supreme Court of the Republic of Komi upheld that decision following an appeal by the applicant.


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible (Article 35-3 - Manifestly ill-founded);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Georges Ravarani;Ksenija Turković

The applicant was born in 1954 and lives in Chișinău. At the time of the events, he was a bank armoured vehicle driver.

At around 10.55 a.m. on 12 August 2005 the applicant went around an illegally parked bus while driving an armoured vehicle. While he was completing the manoeuvre, the bus started moving and to prevent having an accident with the armoured vehicle it stopped abruptly. As a result of the sudden stop a bus passenger, C., fell from her seat and suffered moderately severe injuries.

On 1 September 2005 a criminal investigation was initiated. The prosecutor heard the applicant, the victim C., the bus driver D., a witness who had been sitting in the applicant’s vehicle and another two witnesses who had been passengers on the bus (S. and V.).

On 7 October 2005 D. was charged with violating traffic rules, resulting in C.’s injuries.

On 10 October 2005 the applicant and D. were interviewed face-to-face. According to the applicant, he had completed the manoeuvre around the stationary bus and taken the lane in front of it after making sure the bus was still stationary. He had then signalled to turn right and used the horn to alert the driver of his intentions. According to D., the applicant’s car had turned right without any warning and he had been forced to stop abruptly to prevent an accident.

The same day the prosecutor discontinued the criminal proceedings against D. for lack of evidence and instead interviewed him as a witness.

On 21 October 2005 the applicant was charged with violating traffic rules, resulting in C.’s injuries.

During the course of the proceedings the Botanica District Court heard the same witnesses as the prosecutor. The court also examined a site investigation report and a sketch map of the scene of the incident, both drawn up on 12 August 2005 at 12.20 p.m. in only D.’s presence.

The court considered the testimony of C. and the two bus passengers unreliable. They claimed that the applicant had performed a sudden manoeuvre which had obliged D. to suddenly stop the bus. The court considered that none of them had seen any of the events themselves and that their impression that the applicant was guilty was because the bus driver blamed him. The court also considered D.’s testimony unreliable because the same charges had been previously brought against him. The court noted that charges had been brought against the applicant based on statements by D. made shortly after the criminal proceedings against him had been discontinued, without re-interviewing the other witnesses. The court also noted that the site investigation report and the sketch map had not been drawn up immediately after the incident, that the police had gone to the scene several hours later and had been joined only by D., that the applicant’s objections had not been reflected in the documents, and that the sketch map did not correspond to the statements given by all the witnesses shortly after the incident.

In a judgment of 27 March 2006 the Botanica District Court acquitted the applicant for the reasons given above. It concluded that the prosecution had failed to provide reliable evidence in support of the contention that the applicant’s actions had obliged D. to suddenly stop the bus. The prosecutor appealed.

On 23 May 2006 the Chișinău Court of Appeal dismissed the prosecutor’s appeal and upheld the first-instance judgment. It noted that the first-instance court had correctly scrutinised all the evidence and had provided reasons supporting the findings about the unreliability of the witness statements, referring to the testimony of the two passengers. The prosecutor appealed on points of law.

On 17 October 2006 the Supreme Court of Justice held a hearing at which the applicant, his representative and the prosecutor were present. The court upheld the prosecutor’s appeal on points of law, quashed the appellate judgment and ordered a rehearing of the case in accordance with the provisions of Article 436 of the Code of Criminal Procedure, namely that any examination had to be in accordance with the rules applicable in proceedings before the first-instance court. The court found that the appellate court had not thoroughly stated its position on the assessment of the statements made by C., D. and the two passengers, but had merely relied on evidence in the applicant’s favour.

After rehearing the case, on 28 December 2006 the Chișinău Court of Appeal dismissed the prosecutor’s appeal and upheld the first-instance judgment. The court analysed the witness testimony and the site investigation report and the sketch map, providing reasons why the evidence was unreliable. The prosecutor appealed on points of law.

On 26 June 2007 the Supreme Court of Justice held a hearing at which the applicant, his representative and the prosecutor were present. The court upheld the prosecutor’s appeal on points of law and ordered a rehearing of the case. The court provided reasoning similar to that in its judgment of 17 October 2006.

Pursuant to the verbatim record of the appellate hearing of 25 October 2007 the applicant and his lawyer did not object to the court continuing to examine the case without recalling the victim and did not request the recalling of witnesses. On the same day, the Chișinău Court of Appeal upheld the prosecutor’s appeal, quashed the judgment of the Botanica District Court of 27 March 2006, found the applicant guilty and ordered him to pay an administrative fine of 3,000 Moldovan lei (MDL – approximately 194 euros (EUR)) and damages to C. in the amount of MDL 2,500 (approximately EUR 162). The court referred to a list of evidence, including the disputed statements of C., D. and the two witnesses, without providing any additional reasons.

The applicant appealed and outlined, inter alia, the discrepancies in the witness statements, which had been identified by the first-instance court after hearing them and which had not been clarified by the appellate court. On 13 February 2008 the Supreme Court of Justice examined the applicant’s appeal in the absence of the parties and declared it inadmissible.

The applicant was served with this judgment on 24 May 2008.


Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial)

The applicant was born in 1984 and lives in Berehove.

In the early hours of 22 August 2004 M. was robbed and killed in Berehove, where the applicant was also living. On the same date the applicant and two other people, K.A. and St., were arrested on suspicion of robbing and killing M.

According to the applicant, he was apprehended by the police task force at about 10 a.m. on 22 August 2004 in the apartment of his girlfriend and taken to the police station, where he was beaten up and threatened in an attempt to force him to confess to the robbery and murder of M.

The case file contains two arrest warrants – one issued by a police officer and another one by the prosecutor investigating the murder (hereinafter “the investigator”), both indicating that the applicant had been arrested by the above-mentioned officials on 22 August 2004 at 6.30 p.m. at their offices. The arrest warrant issued by the investigator indicates that the applicant acknowledged his guilt, had no observations regarding his arrest and that he wished to be legally represented. It bears the applicant’s signature, with no comments. The lower part of the last page of the record contains a printed statement (“довідка”) that was added later (it was dated 2007); this additional statement is signed by the investigator only and asserts that the applicant’s relatives were informed of his arrest. The applicant alleged that his family had been informed of his arrest on the evening of the following day (that is to say 23 August 2004).

After his arrest, the applicant signed a record, bearing no time, explaining his rights as a suspect, including the right to remain silent and to consult a lawyer before he was first questioned. The relevant entry in the record indicates that the applicant expressed his wish to be represented by S., a lawyer who lived in Uzhhorod, some 70 kilometres from Berehove, and noted the address of the latter.

At about 4 p.m. on 22 August 2004, according to the applicant, and from 9 until 10 a.m. on that day, according to the official record, the applicant was questioned as a suspect by the investigator in the presence of B., a lawyer. The record of the questioning noted that the applicant had been informed of his rights as a suspect from 6.30 until 6.45 p.m. on that day and that a separate procedural document existed in this respect evidencing that he had wished to be legally represented. The handwritten entry in the record furthermore stated that the applicant wanted to have B. as his lawyer and that he acknowledged in full his guilt in respect of the robbery and murder. During the questioning, the applicant provided details regarding the robbery and admitted that he had hit M. in the head with a bat during the robbery but that he had done so instinctively, in self-defence. The applicant did not state what had become of the bat – namely where or in what circumstances he had hidden the bat after the murder. The applicant and B. signed the verbatim record, making no objections as to its contents. B. then left.

Later that day, from 8 until 8.30 p.m., the applicant took part in a videotaped reconstruction of the crime in the presence of a forensic expert, an investigator from the local police, two attesting witnesses and the investigator in the case. According to the Government, B. was apparently busy and was not able to participate in the reconstruction. No other lawyer was instructed to assist the applicant during this investigative step. According to the applicant, he repeated his request for S. to be called, but this was not done and he was forced by means of threats to testify.

During the reconstruction, which commenced near the place where the bat used for the murder had been hidden, the applicant pointed to the exact place where the bat was; the bat was then uncovered and retained as evidence. A copy of the verbatim record of the reconstruction provided to the Court by the applicant indicates that he was informed of his constitutional right not to incriminate himself. The verbatim record bears a handwritten “not” next to the following printed “agreed to testify”. The relevant part of the text is not visible on the copy of the record provided by the Government. The record furthermore contains the applicant’s statement that he had not been forced to testify by means of any psychological or physical violence. The applicant signed the record without indicating any objections as to its contents next to his signature.

At an unspecified time on the same date St. and K.A were questioned as suspects. St., being represented by B. (the same lawyer who represented the applicant), acknowledged his guilt in respect of the robbery. He stated, inter alia, that he had seen the applicant carrying a bat when they had been entering the victim’s house. K.A., having waived his right to legal assistance, admitted that he had taken part in the robbery. He furthermore participated, still unrepresented, in a videotaped reconstruction of the crime during which he stated, inter alia, that he had seen the applicant with a bat in his hands but had not seen who had murdered M.

On 23 August 2004 the investigator appointed B. to represent the applicant, and St., and admitted him to the proceedings.

On the same day the applicant, in the presence of B., participated in another videotaped reconstruction of the crime in the victim’s house. The applicant admitted his guilt and gave further details about the robbery and murder. He reiterated that he had hit M. on the head with the bat and stated that another suspect in the case had helped him to hide the bat afterwards.

On 26 August 2004 the applicant’s mother signed a contract with the lawyer S. concerning her son’s legal representation. On the same date S. contacted the prosecutor, who allowed S. to represent the applicant instead of B. The applicant furthermore made a written statement declaring that he was refusing the services of B. and wanted S. to act as his lawyer.

On 8 October 2004 medical experts examined the applicant following his complaint that he had been ill-treated by the police. No injuries were discovered on the applicant’s body.

On 14 October 2004 the video recording of the reconstruction of the crime of 23 August 2004 was played to the applicant in the presence of S. The applicant retracted his earlier confession and explained that he had only given it because he had been threatened and beaten up by the police on 22 August 2004.

On 2 September 2004, and 20 and 28 January and 17 February 2005 the applicant was questioned in the presence of his defence lawyer but refused to give any evidence.

On 19 January 2005 the prosecutors refused to institute a criminal investigation into the applicant’s allegation that he had been beaten up by the police, having found the police officers’ actions to be lawful.

On 18 February 2005 the pre-trial investigation was completed and the applicant – together with St. and K.A. – was charged with robbery and murder. It was established that another person, I.K., had also participated in the robbery, but as he had absconded, he would have to be tried separately.

During the trial the applicant denied having participated in the robbery and the murder and refused to give any evidence. He stated that his earlier confessions to the crimes should not be admitted as evidence as they had been made under duress and in breach of his defence rights, including his right to be represented by a lawyer of his own choosing. He also argued that the bat which had been retained as evidence and examined by experts during the investigation had not been the same bat as that which he had pointed out during the reconstruction. He supported his allegation by referring to the fact that in the verbatim record, the prosecutor had described the bat as blue, while the experts who had subsequently examined it had described it as grey.

In April 2005 the police detained I.K. In the course of the trial St., A.K. and I.K all pleaded guilty to robbery but denied killing M.

On 29 August 2006 the Zakarpattya Regional Court of Appeal, acting as the first-instance court, convicted the applicant of murder and robbery and sentenced him to fifteen years’ imprisonment. St., A.K. and I.K. were also found guilty of robbery but acquitted of murder. The hearing was held in the presence of the applicant’s new lawyer, D., who had replaced the lawyer S. on an unspecified date.

The court based the applicant’s conviction, among other evidence, on the confessions he had made during his questioning by the investigator on 22 August 2004, the reconstructions of the crime on 22 and 23 August 2004, the statements of his co-defendants that they had seen him with a bat in M.’s house, and physical evidence, including an expert’s report suggesting that the traces of blood found on the bat (the location of which had been pointed out by the applicant during the reconstruction of the crime on 22 August 2004) could have belonged to M.

By the same judgment, the court rejected as unsubstantiated the applicant’s submissions that he had made his self-incriminating statements under duress, referring to the results of the medical examination of 8 October 2004 (see paragraph 17 above) and the prosecutors’ decision of 19 January 2005 (see paragraph 20 above).

The court also found no violation of the applicant’s defence rights. It noted, inter alia, that on 22 August 2004 the prosecutor’s decision to appoint B. as the applicant’s lawyer had been lawful, because at the material time the applicant had not had a contract with S. for legal representation. It also observed that on 22 August 2004 the applicant had raised no objections to the questioning record. The court also suggested, without giving details, that there had been some technical errors in the procedural documents, in particular as regards the time of the applicant’s arrest and questioning, but that they did not affect the fairness of the respective investigative actions.

The court refuted the applicant’s allegation that the bat retained as evidence had been switched with another (see paragraph 22 above), noting that the disparity in the bat’s description by the experts and the prosecutor could have been explained by the fact that the latter was colour blind.

The applicant lodged an appeal with the Supreme Court on points of law, reiterating his complaints. He stated, in particular, that he had not been represented by the lawyer of his choice, S., on 22 and 23 August 2004, but by B., who had been appointed by the investigator against the applicant’s will. He further stated that he had not been assisted by any lawyer when he had been forced to confess during the crime reconstruction of 22 August 2004. He also complained about the fact that B. had represented him and his co-accused St. at the same time (see paragraph 13 above) – a conflict of interest (as there had been important discrepancies in their respective statements) that should have prevented him from being allowed to do so.

On 12 April 2007 the Supreme Court, acting as the second-instance court, upheld the applicant’s conviction and sentence in his presence. The applicant was not represented by a lawyer during the hearing, but he did not provide any further details in this regard.

The Supreme Court found that the applicant’s guilt was proved, inter alia, by the statements he had made during his questioning of 22 August 2004 and during the reconstructions of the crime. It noted in this respect that those statements had been corroborated by other evidence, including the testimony of his co-accused, and concluded that the lower court had correctly admitted the applicant’s self-incriminating statements as evidence. The court also noted that the details of the crime which the applicant had revealed in his statements could not have been known to him unless he had been the direct perpetrator.

Without mentioning the applicant’s arguments regarding the alleged breach of his defence rights, the Supreme Court found no procedural violations during the proceedings serious enough to necessitate it quashing the judgment.

On an unspecified date the applicant was released from prison.


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

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicants were born in 1956 and 1957 respectively and live in Zagreb.

On 16 October 1991 the Gospić police learned that seven civilians had been killed that day in the village of Bukovac. Their bodies were transported to the Pathology Department of the Gospić Medical Centre by the members of the Croatian Army who had found them. Two of the bodies were identified as the applicants’ parents, Mile and Ana Pocrnić, and the third as their grandmother, Marija Pocrnić. An investigating judge of the Gospić County Court was informed of the killings. The investigating judge decided that it was not possible to carry out an on-site inspection because of the danger of further attacks by unidentified persons from Široka Kula.

On the same day a pathologist performed an autopsy on the corpses and drew up a post-mortem report. He established that the applicants’ parents and their grandmother had been shot dead.

On 28 December 1991 the Gospić police lodged a criminal complaint with the Gospić County State Attorney’s Office against persons unknown on charges of murder in connection with the killing of seven inhabitants of the Bukovac village on 16 October 1991, including the applicants’ parents, Mile and Ana Pocrnić, and their grandmother Marija Pocrnić.

On 11 September 1992 the Gospić police interviewed I.P., who had been living in Podlapača, a village near Bukovac, during the critical period. On an unspecified date in December 1991 three members of the Serbian paramilitary forces, M.B., R.Š. and J.G., had fired at him, but he had escaped into the woods. While visiting one of his neighbours on 26 October 1991 he had met B. and Č., who had said that they had killed some people in Bukovac. When the police showed him photographs of some members of the Serbian paramilitary forces he recognised B.G. and Č.B. as B. and Č., the persons he had met at his neighbour’s house.

On 14 September 1992 the police interviewed P.J. and I.J., who were brothers. P.J. said that he had met B.G., Č.B. and another man in a prison in Knin. When he had asked B.G. why they had been imprisoned he had told him that they had killed some civilians in Korenica. However, I.J. and P.J. thought that this had not happened in Korenica but in one of the Croatian villages near Lički Osik.

On 15 September 1992 the Gospić police sent a report to the Karlovac Military Prosecutor stating that B.G. and Č.B may have been among the perpetrators of the killings in Bukovac.

Immediately before the Croatian Army military action “Storm” which started on 4 August 1995, the vast majority of the Serbian paramilitary forces fled Croatia, firstly to Bosnia and then to Serbia in some cases.

In 1996 the United Nations Security Council established the United Nations Transitional Administration in Eastern Slavonia, Baranja and Western Sirmium (the “UNTAES”). On 15 January 1998 the UNTAES mandate ceased and the transfer of power to the Croatian authorities began.

On 19 March 1996 the second applicant handed the police a letter sent to her by her relative D.P.

In 2001 the police interviewed the second applicant.

On 23 August 2001 the Service for the Protection of the Constitutional Order (Služba za zaštitu ustavnog poretka) sent a report to the Ministry of Justice and the Gospić County State Attorney’s Office on the killing of the applicants’ parents and grandmother, allegedly by members of the Serbian paramilitary forces. The report stated that the only survivors who had any information about the killings were D.P. and J.P., who both lived in Canada. A letter of 19 March 1996, drafted by D.P., was also enclosed, as well as a letter drafted by D.P. and his father J.P. on an unspecified date and sent to the Service for the Protection of the Constitutional Order. D.P. alleged that on 16 October 1991 a group of members of the Serbian paramilitary forces from Široka Kula had come to their village, Bukovac, and killed several people. He named D.L., M.Su., M.O., D.V., M.Se., Bo.K., Da.M., N.M., Du.M., Br.K., Ma.U., S.G., Mi.U. and T.G. as those personally known to him. He openly named commanders of various formations of these forces as: P.R., M.O., S.Č. or Ɖ., Mi.Se. and M.K. The only survivors had been himself and his parents. They had been taken from Bukovac to a prison in Korenica. His mother had died in the meantime while he and his father J.P. had emigrated to Canada after the war.

On 1 October 2001 the Gospić County State Attorney’s Office lodged a request for an investigation with the Gospić County Court and asked that D.P. and J.P. be heard as witnesses.

On 15 January 2004 the police interviewed S.Ɖ. and D.S., former members of the Serbian paramilitary forces, in the Zagreb Prison Hospital. S.Ɖ. said that a formation of Serbian paramilitary forces under the command of Mi.S. and D.L. had carried out “actions”, inter alia, in the area of Bukovac. He named several members of that formation. D.S. described various actions in which members of Serbian paramilitary forces had killed civilians in Croatian villages in the broader area of Široka Kula and Lički Osik, including Bukovac, but had no information about the killing of the applicants’ relatives.

On 23 January 2004 the police interviewed B.Č., also a former member of the Serbian paramilitary forces, who described various actions in which members of Serbian paramilitary forces had killed civilians in Croatian villages in the broader area of Široka Kula and Lički Osik, including Bukovac, but had no information about the killing of the applicants’ relatives.

On 2 May 2006 an investigating judge of the Gospić County Court asked the Gospić County State Attorney’s Office whether they still insisted on interviews with D.P. and J.P. since their address was “uncertain”. On 29 June 2006 the investigating judge asked the Gospić Counter-Information Service for the address of D.P. and J.P. On 9 August 2006 the Centre provided the investigating judge with the address of D.P. and J.P. in Canada.

On 16 September 2008 the Department for War Crimes of the Ministry of the Interior sent a detailed report about the possible suspects to the Ličko-senjska Police Department.

On 16 July 2010 the Gospić County State Attorney’s Office sent a report to the State Attorney’s Office on the killing of seven civilians in Bukovac in 1991. The Gospić County Court had informed them that the Canadian Ministry of Justice had invited D.P. and J.P. on three occasions to give their statements, which they had refused to do with the explanation that they had already given their statements in writing. They had almost certainly been referring to a letter to their relatives in Croatia and the one sent to the Service for the Protection of the Constitutional Order.

On 14 September 2010 an investigating judge of the Gospić County Court heard evidence from M.Ć., who confirmed that members of the Serbian paramilitary forces had captured D.P. in 1991. As to the killing of the seven persons in Bukovac, he had heard about that from one I.K., who had died in the meantime.

On 24 October 2011 the police interviewed M.P., I.J. and P.J. M.P. had no relevant information about the killing of the civilians in Bukovac. I.J. and P.J. repeated their earlier statements (see paragraph 10 above).

On 25 October 2011 the police again interviewed I.P., who repeated his statement of 11 September 1992 (see paragraph 9 above). On the same day the police also interviewed N.P., a neighbour of I.P., who admitted that B.G. and Č.B. had visited him in 1991 but said that they had not mentioned the killing of civilians in Bukovac.

On 26 October 2011 the police noted that in March 2011 B.G. and Č.B. had been convicted of war crimes in connection with the killing of R.’s family in Lički Osik, Croatia, and sentenced to twelve years’ imprisonment by a court in Belgrade.

In 2011 the police interviewed the second applicant again.

On 20 January 2011 the police interviewed D.M., one of the Croatian soldiers who had found the bodies in Bukovac. He had no relevant information about the killing of the civilians in Bukovac.

On 21 January 2011 the police interviewed B.Č., a former member of the Serbian paramilitary forces. He repeated his earlier statement (see paragraph 19 above).

On 22 August 2011 the Belgrade Interpol Office informed the Zagreb Interpol Office that one of the suspects, D.V., had been placed in pre-trial detention in connection with a different set of criminal proceedings. He had in the meantime become a Serbian citizen.

On 2 February 2012 the Ličko-senjska Police Department sent a report to the Karlovac County State Attorney’s Office informing it that two of the persons mentioned in D.P.’s letter (see paragraph 14 above), namely D.L. and M.S., had died. A report drawn up by M.Š., a member of the Serbian paramilitary forces was enclosed. It stated that on 16 October 1991 “they had killed seven people”. A list of the members of the paramilitary forces from the Teslingrad area was also enclosed.

On 21 September 2012 the Rijeka County State Attorney’s Office sent a criminal complaint against B.G. and Č.B. to the Serbian Prosecutor for War Crimes and asked him for the address of another suspect, M.Š., indicating that he should be questioned about the report he had allegedly drawn up on the events of 16 October 1991 in Bukovac.

On 28 January 2013 the Rijeka County State Attorney’s Office forwarded a report on the interviews with B.G., Č.B. and M.Š., carried out by the Serbian authorities, to the Ličko-senjska Police Department. They denied any involvement in the killing of the applicants’ relatives.

Between 21 February and 5 March 2013 the Ličko-senjska Police Department interviewed P.J., I.J., D.P., M.P., I.P. and N.P., M.P. and D.P. had no relevant information about the killing of the applicants’ relatives. The others repeated their earlier statements.

On 27 February and 8 March 2013 the Ličko-senjska Police Department sent a report to the Rijeka County State Attorney’s Office listing the suspected perpetrators of the killings in Bukovac on 16 October 1991. Four of them had died, fourteen had moved to Serbia, three to the United States and in respect of two of them there was no relevant information.

On 15 March 2013 the Rijeka County State Attorney’s Office sent the report of 8 March 2013 to the Serbian Prosecutor for War Crimes and asked him to interview the suspects living in Serbia.

In April 2013 the police learned that one of the suspects, I.S., had died.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Procedure prescribed by law);Violation of Article 5 - Right to liberty and security (Article 5-2 - Information on reasons for arrest);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);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)

András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

The applicant was born in 1984 and lives in Istanbul.

On an unspecified date in 2000 the applicant fled Russia and travelled to Turkey following the alleged killing of his father and brother by Russian security forces.

On 25 October 2010 he was arrested at Atatürk International Airport in Istanbul, following an identity check, on the ground that he had entered Turkey illegally and possessed no passport. He was placed in custody at the police station in the airport.

On 26 October 2010 the applicant was questioned by a police officer at Atatürk International Airport police station. He stated that he had entered Turkey in 2000 through the Sarp border crossing on the Georgian border using his birth certificate and that he had never possessed a passport.

On 1 November 2010 the applicant was transferred to the Kumkapı Removal Centre.

On 17 February 2011 the applicant met with his lawyer, Mr A. Yılmaz, who also represented him during the proceedings before the Court. There is no information in the case file regarding the scope of their meeting, nor is it clear whether this was the applicant’s first meeting with his lawyer.

On 13 April 2011 the applicant met with another lawyer, Mr F. Amca. The lawyer indicated in his meeting notes that the applicant had not yet filed an asylum request at that point. He further noted that the applicant had caught flu three to four months before, but had not sought any treatment and was still suffering from it. It appears from the lawyer’s notes that at the end of the meeting the lawyer advised the applicant to speak to the officers in charge at the removal centre about his asylum request and his health problems.

On 18 April 2011 the applicant applied for asylum.

On 21 April 2011 the applicant’s lawyer, Mr A. Yılmaz, sent a letter to the General Security Directorate of the Ministry of the Interior by standard post complaining that the applicant was being detained unlawfully and requesting his release. In the letter he also brought the applicant’s health issues to the authorities’ attention and requested medical assistance. According to the information provided by the parties, the letter reached the Ministry of the Interior on 2 May 2011.

In the meantime, on 29 April 2011, the applicant was released from detention and granted an asylum-seeker certificate. He was instructed to reside in the Sakarya province pending the determination of his asylum request.

On 30 April 2011 the applicant went to a private clinic in Istanbul complaining of a cough and fatigue. He was diagnosed with an infection of the lower respiratory tract on the basis of a chest X-ray examination. He was prescribed a ten-day course of antibiotics and was asked to return to the clinic for a check-up at the end of that period. It is not clear whether the applicant did return to the clinic for his check-up.

On 9 June 2011, as his symptoms persisted, the applicant went to the Süreyyapaşa Thoracic and Cardiovascular Surgery Training and Research Hospital in Istanbul. Further medical tests conducted at the hospital revealed that the applicant was suffering from tuberculosis pleurisy. He received in-patient treatment at the hospital until 15 June 2011. On being discharged, he was advised to apply to a tuberculosis clinic for follow-up treatment. The applicant has not provided any information regarding his state of health or the treatment he received following his discharge.

The applicant claimed that the Kumkapı Removal Centre was severely overcrowded at the time of his detention, which lasted five months and twenty-seven days. He had to share a dormitory room of approximately 40 sq. m with twenty-four to forty-five other people, who were provided with only fifteen bunk-beds. The centre had an overall capacity of 560 people at the relevant time, but accommodated around 600 people. The overcrowding of the centre led to problems of hygiene. The building was infested with insects and there were frequent outbreaks of contagious diseases; he had thus contracted a serious bacterial infection. The quality and quantity of the food provided was also fairly poor. Moreover, there was no provision for outdoor exercise at the Kumkapı Removal Centre, which meant that he had been unable to go outside throughout his detention.

The Government submitted that the Kumkapı Removal Centre where the applicant was detained had a capacity of 300 persons. The detainees were accommodated on three floors: the first two floors were reserved for male detainees, and the third floor for females. There were five dormitory rooms on each floor, measuring 50, 58, 69, 76 and 84 sq. m respectively. There were fifteen to twenty beds in each of the ten rooms reserved for male detainees and all rooms were sufficiently ventilated. There were also five showers and six toilets per floor, as well as a cafeteria measuring 69 sq. m, where breakfast, lunch and dinner were served daily on each floor. The detainees had the right to outdoor exercise in suitable weather conditions. A doctor was present on the premises every Thursday and the detainees also had access to medical care in cases of emergency. As for the hygiene in the facility, there were six cleaning staff working full time at the removal centre, and the building was disinfected whenever necessary.

In support of their claims, the Government submitted, inter alia, photos of two of the dormitory rooms, both of which appeared well lit and fairly clean, as well as of the hallway and the cafeteria on one of the floors reserved for male detainees. Although the total number of beds cannot be ascertained from the photos, it is observed that there were two rows of bunk beds positioned against the walls in both rooms, leaving a narrow corridor in the middle of the room. While some of the bunks were touching each other, others were separated by big metal lockers. No other furniture, such as tables and chairs, was present in the rooms; there were blankets on the beds in only one of the rooms and the other room had no bedding at all. A television was available on each floor in the cafeteria. Moreover, a metal situp bench and an exercise bike were shown on the photo of the hallway of one of the floors reserved for male detainees. No photos of the toilets or the showers were provided.

The Government further stated that when the applicant first arrived in the Kumkapı Removal Centre on 1 November 2010, there were 265 detainees in total (163 male and 102 female). They also claimed that from 1 November 2010 until the applicant’s release on 29 April 2011, the number of detainees never exceeded 300 and submitted the registers showing the occupation rates in respect of male detainees on various dates as follows: