Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Liberty of person);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment)

Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicants are:

(1) Ms Elita Khachukayeva, who was born in 1972 and lives in Goyty, Chechnya;

(2) Ms Khadizhat Khachukayeva, who was born in 1998 and lives in Alkhan-Yurt, Chechnya;

(3) Ms Kheda Khachukayeva, who was born in 2001 and lives in UrusMartan, Chechnya. The applicants are the wife and daughters of Mr Islam Deniyev, who was born in 1966.

At the material time the applicants and Mr Islam Deniyev lived in the village of Alkhan-Yurt in the Urus-Martan District, Chechnya. The village was situated along a major highway known as “Kavkaz”, part of the road between Rostov in Russia and Baku in Azerbaijan, which has several permanent military roadblocks posted along it. It was impossible to drive on the highway without being checked and information from the check being entered into a log. One permanent roadblock was situated about three kilometres to the east of Alkhan-Yurt, at the junction with the road towards Grozny, the main city in Chechnya. This road block was commonly referred to as “Chernorechensky” (also spelled as “Chernorechye”), after the name of a nearby suburb of Grozny.

On 24 November 2000 Mr Islam Deniyev drove to Gudermes with his friends Mr Sayd-Akhmed S., a resident of Martan-Chu, and Mr Khizir A., a resident of Alkhan-Yurt, in the latter’s Toyota Land Cruiser car. The vehicle’s licence plate number was A999BK95, which was easily recognisable because of the three nines.

At about 11 a.m. on 24 November 2000 a group of Alkhan-Yurt residents were passing through the Chernorechensky roadblock by bus and saw Mr Khizir A.’s Toyota Land Cruiser car there. Mr Islam Deniyev, Mr Sayd-Akhmed S. and Mr Khizir A. were standing next to the vehicle, surrounded by members of the military. Nearby were some armoured military vehicles (BMP) and UAZ cars. According to two unnamed witnesses, who had also been stopped at the roadblock at the same time, they and Mr Islam Deniyev, Mr Sayd-Akhmed S. and Mr Khizir A. were taken to the military unit’s headquarters in the village of Tangi-Chu.

The applicants have not seen Mr Islam Deniyev since 24 November 2000. They were not eyewitnesses to the abduction. Their submission to the Court was based on the first applicant’s complaints and requests to various State authorities, a witness statement by Mr R.V. dated July 2007 and copies of documents from the criminal investigation file.

The applicants learnt about the detention of Mr Islam Deniyev, Mr Sayd-Akhmed S. and Mr Khizir A. later on the day of 24 November 2000 from the bus passengers, but were not worried at first, as they presumed that the three men had been stopped for a routine identity check. They were also reassured by Mr R.V., the head of the Alkhan-Yurt village administration at the time, who said that there was no need to worry as all three men were law-abiding citizens.

Several days later, at the end of November 2000, Mr R.Sh. saw Mr Khizir A.’s Toyota Land Cruiser car in a military convoy, passing through a roadblock over the Terek river in the village of Chervlenaya, about twenty kilometres to the north of Grozny. Mr R.Sh. was later questioned by the prosecutor’s office (see paragraph 25 below).

In March 2001 a friend of the missing men, Mr Kh.G., spotted the licence plate from Mr Khizir A.’s Toyota Land Cruiser car on a military vehicle and informed the investigation of this (see paragraph 19 below). The serviceman driving the vehicle was subsequently questioned and stated that he had recovered it at the roadblock (see paragraph 21 below).

On an unspecified date in August 2001 the applicants learned that the blown-up shell of a Toyota Land Cruiser had been found in the north of Chechnya, in the Naurskiy District. The car was identified as the one belonging to Mr Khizir A.

On 21 November 2002 the remains of three bodies and items of clothing were found in the forest near the village of Darbankhi (also spelled as Darban-Khi), near the Darbankhi-Vinogradnoye road in the north of the Grozny district. Relatives of the abducted men subsequently identified some of the clothing as belonging to the missing men (see paragraphs 28-29 below).

On 30 September 2003 the Urus-Martan Town Court declared Mr Islam Deniyev a missing person, at the request of his sister Ms A.D. On 17 November 2006 she was appointed as the legal guardian of the second and third applicants.

On 7 December 2000 (in the documents submitted the date is also stated as 16 January 2001) the first applicant and relatives of Mr SaydAkhmed S. and Mr Khizir A. complained about the abduction of the men at the roadblock to several law-enforcement agencies. They described the circumstances of the incident and stressed that their relatives had most probably been detained by officers of the Federal Security Service (hereinafter “the FSB”) (Федеральная служба безопасности (ФСБ)) or the Main Intelligence Service (hereinafter “the GRU”) (Главное разведывательное управление (ГРУ)) and that their own search for the abducted men had not produced any results.

On 6 February 2001 the Grozny prosecutor’s office (hereinafter “the prosecutor’s office”) opened criminal case no. 13023. The decision stated, among other things, the following:

“... On 24 November 2000, at about 11 a.m., on the Rostov-Baku highway at the former roadblock of the Chernorechensky [traffic police] post unidentified persons detained and took away [Mr Islam Deniyev, Mr Khizir A. and Mr Sayd-Akhmed S.] to an unknown destination...”

On 13 February 2001 Chechnya’s Deputy Minister of the Interior wrote to the Chechnya prosecutor providing details of the abduction which were similar to the applicants’ account before the Court and asking to be informed whether the abducted men had been arrested and, if so, on what charges. The letter also stated that there were witnesses to the abduction.

On 21 March 2001 the investigators questioned Mr Kh.G., who stated that on 17 March 2001 he had seen a grey UAZ with the registration number A999BK95 and that a group of military servicemen had been next to it. He had recalled immediately that the plate had belonged to Mr Khizir. A.’s Toyota Land Cruiser and asked the driver of the vehicle where he had got it. The driver told him that he had received it from Mr R.E., the driver of the head of the Grozny district department of the interior (hereinafter “the Grozny ROVD”) (Грозненский районный отдел внутренних дел (РОВД)), who had obtained it from a military serviceman stationed in the settlement of Chervlenaya. The witness had taken the plate from the driver and on 20 March 2001 handed it over to the investigators.

On 22 March 2001, investigators questioned the driver of the head of the Grozny ROVD, Mr R.E., who stated that he had obtained the licence plate with the registration number of Mr Khizir. A.’s car in December 2000 from a military serviceman at the Chernorechensky roadblock.

On 22 March 2001, investigators questioned a serviceman, Mr P.V., who stated that he had found the licence plate with the A999BK95 registration number when he was manning the Chernorechensky roadblock in December 2000 and had handed the plate over to the policemen who had taken over from him at the roadblock.

On 6 April 2001 the investigation in the criminal case was suspended on account of the failure to identify the perpetrators.

On 18 May 2001 the supervising prosecutor overruled the decision to suspend the investigation as premature and unlawful and ordered that further steps be taken.

On 28 May 2001 the proceedings were resumed, before being suspended again on 28 June 2001.

On 18 October 2001 the investigators questioned Mr R.Sh. who stated that on or around 25 November 2000 he had been crossing the roadblock over the Terek river in the village of Chervlenaya, when he had seen a military convoy which included Mr Khizir A.’s Toyota Land Cruiser. The car, which had been moving among at least ten military vehicles, was being driven by a tall red-headed man in a special black military uniform with a bullet-proof vest.

On 4 March 2002 the deputy prosecutor of Grozny overruled the decision to suspend the investigation as premature and unlawful and ordered that further steps be taken. In particular, he pointed out the following:

“The examination of the case file shows that the investigation has been carried out in an extremely superficial manner and without any plan. ... To this date, none of the victims’ relatives have been questioned or granted the procedural status as the relative of a victim, [the investigator] has contented himself with sending formal requests to various bodies and receiving equally formal replies. ...

It is necessary to question family members and close friends about the missing men’s lives, work and social activities ..., to receive a reply from the military prosecutor’s office of the [Northern Caucasus Military Circuit], to question in detail the witness who found the missing car in the forest ..., to question once again the witness [R.Sh.] who saw the vehicle in a military convoy going over the Terek bridge in the village of Chervlenaya ..., to take all the necessary steps to identify the military unit which passed over the bridge at that time. The witness has highlighted the large number of vehicles in the convoy, so it would appear to be quite possible to clarify this question. If positive replies are obtained a visit should be planned to the location of the military unit to find out more about the fate of the missing car.”

Following the discovery of the remains of three people (see paragraph 14 above) on 21 November 2002 (in the documents submitted the date is also referred to as 11 October 2002), the Grozny district prosecutor’s office opened criminal case no. 56184 on 28 November 2002.

On 28 November 2002 the investigators in criminal case no. 56184 questioned the brother of Mr Islam Deniyev, Mr A.D., who described the circumstances of the abduction at the roadblock and stated that some of the items of clothing found with the remains of the bodies resembled clothing worn by Mr Islam Deniyev on the date of his abduction. On the same date, Mr A.D. officially identified several items of the clothing as belonging to Mr Islam Deniyev.

On 29 November 2002 the investigators in criminal case no. 56184 questioned the wife of Mr Sayd-Akhmed S., Ms M.S., who described the circumstances of the abduction at the roadblock and then identified several items of the clothing as belonging to her missing husband, Mr Sayd Akhmed S.

On 28 April and then again on 6 June 2003, the supervising prosecutors criticised the investigation and ordered that the investigators take the steps which had been ordered previously. The documents submitted in the case show that none of the steps were taken, apart from granting victim status to some of the relatives of the men who had disappeared.

On 15 December 2002 the investigators ordered a complex forensic examination of the human remains (see paragraph 27 above). On 20 February 2004 the experts concluded that they belonged to people with different blood groups. They came to no conclusion about a possible cause of death.

On 29 November 2004 the investigators ordered a genetic test of the fragments. Blood samples were collected from the relatives of Mr Islam Deniyev, Mr Khizir A. and Mr Sayd-Akhmed S.

On 30 December 2004 the genetic test report showed that the remains belonged to Mr Islam Deniyev, Mr Khizir A. and Mr SaydAkhmed S.

Despite the genetic test results of 30 November 2004, the initial investigation into the abduction of the three men in criminal case no. 13023 continued until 25 March 2008 and referred to them as “missing”.

On 18 December 2006 the first applicant was granted the status of a victim in criminal case no. 13023 and questioned. She stated that she had learnt of her husband’s abduction by servicemen at the roadblock from her relatives.

On 20 December 2006 the investigators again questioned Mr A.D., who reiterated his previous statement and added that he and his relatives had found the burnt Toyota Land Cruiser car in 2001 (see paragraphs 13 and 28 above).

On 20 and 26 December 2006 the investigators questioned Ms A.D., who stated that her brother, Mr Islam Deniyev, and his friends, Mr SaydAkhmed S. and Mr Khizir A., had been abducted at the roadblock by officers of the GRU. The witness added that she was taking care of the second and third applicants.

On 15 January 2007 the first applicant asked the investigators to provide her with unrestricted access to the investigation file. On 7 February 2007 the investigators granted her request in part, stating that she was allowed to access only the documents which referred to proceedings she had been involved in.

On 13 July 2007 the investigators questioned Ms Z.E., who stated that on 24 November 2000 her nephew, Mr Khizir A., and his two friends, Mr Islam Deniyev and Mr Sayd-Akhmed S., had been abducted by federal servicemen at the roadblock. She also submitted that on that date Mr Khizir A. had left home with a large sum of money as he had intended to buy a car.

On 25 March 2008 the investigators combined the abduction case (no. 13023) and the murder case (no. 56184) into one file (no. 13023). The Grozny department of the investigation committee was put in charge of the investigation and the applicants were informed of these developments.

The case file shows that between 2001 and 2007 the investigators requested information on the possible whereabouts of the abducted men from the military units stationed in the region at the time, as well as from detention centres, hospitals, law-enforcement agencies and correctional facilities. For the most part, they received no answer and the replies that did come in were negative.

Between 2001 and 2008 the investigation in criminal case no. 13023 was suspended and resumed on at least nine occasions. Each suspension of the proceedings was overruled by the supervising body as premature and unlawful. The last suspension took place on 24 April 2008, but the investigation was resumed on 18 February 2012. It is still pending.

In March 2007 the first applicant appealed to the Zavodskoy District Court in Grozny against the investigators’ refusal to provide her with unrestricted access to file no. 13023. She sought a ruling obliging the investigators to provide her with full access, to resume the investigation, which had been suspended, and to carry it out in an effective manner. She also asked for free legal counsel to assist her in the proceedings.

On 25 January 2008 the Zavodskoy District Court allowed the complaint in part. The applicant appealed. On 27 February 2008 the Chechnya Supreme Court granted the request for full access to the case file. The request for free legal assistance was dismissed for lack of grounds in domestic law.

The applicants maintained that it was beyond reasonable doubt that the men who had taken away and then killed Mr Islam Deniyev had been State agents. In support of that assertion they referred to the ample evidence contained in their submissions and the criminal investigation file. They submitted that they had made a prima facie case that their relative had been abducted and killed by State agents and that the essential facts underlying their complaint had not been challenged by the Government.

The Government did not contest the essential facts as presented by the applicants. At the same time, they claimed that the investigation had not obtained information proving that State agents had been involved in the detention or killing of the applicants’ relative.

A number of principles have been developed by the Court when it has been faced with the task of establishing the facts of events on which the parties disagree (see El-Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, §§ 151-53, ECHR 2012): the factual findings should be based on the standard of proof “beyond reasonable doubt”; and such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001-VII, and Taniş and Others v. Turkey, no. 65899/01, § 160, ECHR 2005VIII).

The Court has dealt with a whole series of cases concerning allegations of disappearances and killings in Chechnya. Applying the abovementioned principles, it has concluded that if applicants make a prima facie case of abduction and killing by servicemen, this is sufficient for them to show that their relatives fell within the control of the authorities, and it is then for the Government to discharge their burden of proof, either by disclosing any documents in their exclusive possession or by providing a satisfactory and convincing explanation of how the events in question occurred (see, among many examples, Aslakhanova and Others, cited above, § 99). If the Government fail to rebut that presumption, this will entail a violation of Article 2 of the Convention in its substantive part. Conversely, where applicants fail to make a prima facie case, the burden of proof cannot be reversed (see, for example, Tovsultanova v. Russia, no. 26974/06, §§ 7781, 17 June 2010; Movsayevy v. Russia, no. 20303/07, § 76, 14 June 2011; and Shafiyeva v. Russia, no. 49379/09, § 71, 3 May 2012).

Turning to the circumstances of the present case, the Court notes that the documents from the investigation file provided by the Government (see, for example, paragraphs 17, 18, 26, 28-29, 35 and 37 above) demonstrate that Mr Islam Deniyev was detained on 24 November 2000 at the roadblock by a group of armed servicemen and that his remains were discovered about two years later, in November 2002 (see paragraphs 27 and 33 above).

The next point to be considered is whether there is a causal link between the detention of Mr Islam Deniyev by State servicemen at the roadblock and his death. The Court reiterates in this connection that where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, such as in cases where persons are under their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see, among many authorities, Avşar, cited above § 392).

In the present case there was no news of Mr Islam Deniyev between his detention on 24 November 2000 at the roadblock and the discovery of his remains in November 2002. The Court also notes that although a forensic expert examination was carried out on the remains, it failed to establish the cause of his death (see paragraph 31 above).

The Government did not dispute the circumstances of the discovery of the remains. The link between the detention and the death of Mr Islam Deniyev was, moreover, assumed in the domestic proceedings as the investigations into the abduction and the death were joined (see paragraph 40 above). The Government did not provide any substantiated version of the events to refute the version presented by the applicants.

The Court finds that the facts of the present case strongly suggest that the death of Mr Islam Deniyev was part of the same sequence of events as his abduction and support the conclusion that he was executed extrajudicially by State agents. In these circumstances, the Court finds that the State is responsible for the death of the applicants’ relative.

For the above reasons the Court considers that it has been established that Mr Islam Deniyev was killed following his unacknowledged detention by State servicemen.


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

Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström

The applicants were cadets in military schools. Based on classified investigation reports, they were expelled from their schools. None of the applicants had access to these classified reports. They all filed actions against the Ministry of Defence with the Supreme Military Administrative Court to have annulment of the impugned decisions.

Relying on the classified investigation reports, the Supreme Military Administrative Court rejected the applicants’ requests and their subsequent requests for rectification on different dates shown in detail in the attached list.


Violation of Article 34 - Individual applications;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment;Positive obligations) (Substantive aspect)

Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1953 and lived in Magnitogorsk, in the Chelyabinsk Region until his arrest.

On 28 June 2011 the applicant was arrested on suspicion of having committed a criminal offence. He remained in custody throughout the investigation and trial.

On 29 March 2012 the Pravoberezhniy District Court of Magnitogorsk sentenced him to thirteen years and ten months’ imprisonment. The sentence was upheld on appeal by the Chelyabinsk Regional Court on 16 August 2012.

In 2012, following a complaint by the applicant of pain in his lower abdomen, he was diagnosed with an enlarged prostate gland and underwent surgery in relation to that condition.

In April 2013 the applicant was transferred to the prison tuberculosis hospital in Chelyabinsk for testing of his urogenital system. Two operations were performed in the hospital, but various problematic symptoms relating to his urinary system persisted.

In February 2014 a biopsy of prostate tissue revealed the presence of cancer cells. The applicant was diagnosed with terminal prostate cancer which had spread to his liver and inguinal lymph nodes. His condition was aggravated by a wasting syndrome and paraneoplastic syndrome.

According to the applicant, he did not have access to the required medication in the hospital, and therefore his condition worsened.

On 30 October 2014 a medical panel confirmed his diagnosis, adding a list of secondary illnesses to it. The doctors concluded that the applicant’s medical condition made him eligible for early release.

On 26 January 2015 the Metallurgicheskiy District Court of Chelyabinsk “the District Court” examined the applicant’s request for early release on health grounds. In the proceedings the applicant was represented by Mr A. Lepekhin, a lawyer from Agora.

At the hearing the doctor who was treating the applicant testified that his condition had significantly deteriorated since the beginning of 2014. He received painkillers in hospital, but effective medical treatment was unavailable, owing to a lack of the required medication.

The acting head of the hospital stated that the applicant could only receive adequate medical treatment in another hospital.

The prosecutor opposed the applicant’s being released, citing his failure to reform while in detention. He also stated that the release was not necessary, as the applicant could receive the required medical treatment within the prison system.

The court rejected the applicant’s request for release. It found that he had failed to improve himself, that is to say, the aim of reforming him as a prisoner had not been achieved. His medical condition did not preclude further detention, as the requisite medical treatment was available within the prison system. To receive it, the applicant only needed a transfer to a different hospital.

On 7 April 2015 the Chelyabinsk Regional Court upheld the above decision on appeal, having fully endorsed the reasoning of the lower court. It also noted that, in addition to pain relief and therapy to relieve symptoms, the applicant could have chemotherapy, should the prison hospital receive the required medication.

In the meantime, on 26 March 2015 the applicant sought interim measures from this Court under Rule 39 to ensure adequate medical treatment or his release from detention.

On 27 March 2015 the Court decided to apply Rule 39, indicating to the Government that it was desirable in the interests of the proper conduct of the proceedings that the applicant should be immediately examined by medical experts who were independent of the prison system, with a view to determining: (1) whether the treatment he was receiving in the prison hospital was adequate with regard to his condition; (2) whether his state of health was compatible with detention in prison hospital conditions; and (3) whether his condition required his placement in a specialist, possibly civilian, hospital. Furthermore, the Government were also to ensure his transfer to a specialist hospital, should the medical experts conclude that he required it.

On 9 April 2015 the Government responded to the Court’s letter of 27 March 2015, asserting that the scope and quality of the applicant’s medical treatment in the prison hospital corresponded to his needs. They alleged that, owing to the gravity of the applicant’s condition, only treatment of his symptoms was recommended, and such treatment was being provided in full. They submitted the following documents: a typed copy of the applicant’s medical file; certificates from detention facilities summarising the applicant’s treatment and describing his state of health; a report by a medical panel of 30 October 2014 confirming his eligibility for early release; a copy of the District Court’s decision of 26 January 2015; a statement by the acting head of the hospital in which he noted that the District Court had misinterpreted his testimony given on 26 January 2015, as he had never discussed the possibility of the applicant being treated in another hospital; and a statement by the head of the prison hospital in which he confirmed that the cancer treatment was only possible in a special oncological centre, and that he had never argued that it was accessible within the prison system.

On 28 May 2015 the applicant’s lawyer submitted that the Government had not made arrangements for the independent medical examination indicated by the Court to be carried out. However, two independent doctors summoned by the applicant’s lawyer had assessed the quality of his medical treatment in detention and the compatibility of further detention in the prison hospital with his state of health. In an expert report dated 23 May 2015 the doctors had concluded that the treatment the applicant was receiving in the prison hospital was inadequate. The belated diagnosis of prostate cancer and the failure to provide active treatment, such as glandular therapy, radiation therapy or surgery were mentioned among other major shortcomings on the part of the medical authorities. The doctors had also noted that the applicant could not be provided with adequate medical treatment in the prison hospital, because it had no licence for inpatient treatment of cancer patients and urological diseases. Accordingly, the experts had concluded that his detention in that facility did not correspond to his medical needs, and threatened his life.

Over the following months the applicant’s health continued to deteriorate, and the wasting syndrome progressed.

On 24 August 2015 the medical panel prepared a new report, again recommending the applicant’s early release on health grounds. A court hearing on the matter was scheduled for 11 September 2015. Four days before that date the applicant died of cancer.

At the request of the applicant’s lawyer, Mr A. Lepekhin, the Investigative Committee carried out a preliminary inquiry into the circumstances surrounding the applicant’s death, which ended with a decision of 15 October 2015 not to open a criminal case.


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicants are Russian nationals. They were owners of flats in Moscow. The State authorities reclaimed the flats, and the applicants’ title to the real property in question was annulled.

The flat at 21-110 Belovezhskaya Ulitsa, Moscow, was owned by K. On 5 January 2005 K. died intestate with no surviving kin.

On 18 May 2005 M. bought the flat from a person acting on K.’s behalf by virtue of a power of attorney.

On 28 October 2005 M. sold the flat to O.

On 7 April 2006 O. sold the flat to V.

On 19 April 2006 V. sold the flat to the applicant and his minor daughter.

On an unspecified date the police opened an investigation into the fraudulent sale of the flat after K.’s death. On 30 January 2008 the police informed the Moscow Department of Housing Policy and Housing Fund (the Housing Department) about the investigation.

On an unspecified date the Housing Department brought an action against the applicant seeking the transfer of the title to the flat to the City of Moscow and the applicant’s eviction.

On 18 December 2012 the Kuntsevskiy District Court of Moscow granted the Housing Department’s claims in full. The court established that K. had died intestate with no surviving kin and that the flat should have been considered bona vacantia. It considered all the transactions with the flat to be void and ordered the transfer of the title to the flat to the City of Moscow and the applicant’s eviction.

On 14 March 2013 the City Court upheld the judgment of 18 December 2012 on appeal.

On 16 May 2013 the City Court refused to allow the applicants’ cassation appeal.

On 14 August 2013 the Supreme Court of the Russian Federation refused to allow the applicants’ second cassation appeal.

On 24 December 2013 the City of Moscow had its title to the flat registered.

According to the Government, on 2 December 2014 the Housing Department entered into a social housing agreement with the applicant and his daughter who continued to reside in the flat.

The flat at 10-1-339, Orekhoviy Bulvar, Moscow, was owned by S. On 29 July 2009 S. died intestate with no surviving kin.

On 16 April 2010 an unidentified person sold the flat to B.

On 10 June 2010 B. sold the flat to K., the applicant’s father.

On 15 April 2011 the Nagatinskiy District Court of Moscow approved a friendly settlement agreement between the applicant and her father recognising the applicant’s title to the flat.

On 21 October 2011 the police opened an investigation into the fraudulent sale of the flat after S.’s death. On 29 February 2012 the police informed the Housing Department about the investigation.

On an unspecified date the Housing Department brought a civil action against the applicant seeking the transfer of the title to the flat to the City of Moscow and the applicant’s eviction.

On 19 June 2013 the District Court granted the Housing Department’s claims in full. The court established that S. had died intestate with no surviving kin and that the flat should have been considered bona vacantia. The court ruled that the case fell under one of the two exceptions to the protection of a bona fide purchaser’s title, which required that precedence be given to the previous owner who had been deprived of the property against his or her will. The applicant’s title to the flat was annulled and the title was transferred to the City of Moscow.

On 14 November 2013 the City Court upheld the judgment of 19 June 2013 on appeal.

On 25 March 2014 the City Court refused to allow the applicant’s cassation appeal.

According to the applicant, the judgment in the City’s favour has not been enforced and the applicant continues to reside in the flat.

The flat at 33-31, Stremyanniy Pereulok, Moscow, had been owned by N., who died intestate with no surviving kin on 14 April 2006.

On an unspecified date P. and other unidentified persons forged N.’s will, naming P. as N.’s heir.

On 19 October 2006 P. applied to a notary seeking to be recognised as N.’s heir. On 30 November 2006 the notary issued a certificate confirming that P. had inherited N.’s flat.

On 6 December 2006 the Moscow City Registration Board (the “Registration Board”) registered the certificate confirming P.’s title to the flat and issued the relevant deed.

On 30 January 2007 P. sold the flat to the first applicant.

On 6 February 2007 the Registration Board registered the flat purchase and issued the respective deed to the first applicant. The applicants moved into the flat and resided there.

On an unspecified date the authorities opened a criminal investigation concerning the forgery of the will issued on behalf of N.

On 26 April 2012 the Perovskiy District Court of Moscow found P. guilty of several counts of fraud and sentenced him to five and a half years’ imprisonment. In particular, the court established that P., acting in concert with other persons whose identity was not known, had fraudulently acquired N.’s flat and sold it to the first applicant on the basis of a forged will. The court also found that the flat was bona vacantia which therefore vested in the State and, by having fraudulently acquired title to it and then sold it to the first applicant, P. had caused damage to the State.

On 25 June 2012 the Moscow City Court upheld the judgment of 26 April 2012 on appeal.

On 25 March 2013 the Housing Department brought a civil action against the applicants seeking, inter alia, (1) revocation of the first applicant’s title to the flat; (2) the applicants’ eviction; and (3) restitution of the flat to the City of Moscow.

On 26 May 2014 the Zamoskvoretskiy District Court of Moscow granted the Housing Department’s claims. It established that the flat was bona vacantia and ordered its restitution to the City of Moscow. It also revoked the first applicant’s title to the flat and ordered the applicants’ eviction.

On 26 December 2014 the City Court upheld the judgment of 26 May 2014 on appeal.

On 17 March 2015 the Moscow City Court refused to allow the applicants’ cassation appeal.

On 17 April 2015 the Supreme Court of the Russian Federation refused to allow the applicants’ cassation appeal.

It appears that the judgment in the City’s favour has not been enforced to date. The applicants continue to reside in the flat.


CASE OF UNIFAUN THEATRE PRODUCTIONS LIMITED AND OTHERS v. MALTA

Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The first applicant, Unifaun Theatre Productions Limited, is a limited liability company which produces theatrical performances in Maltese theatres. The second and third applicants are the two directors of the company. The fourth applicant is the artistic director of the theatrical production known as “Stitching”, a play written by the Scottish playwright Anthony Neilson, originally published in 2002 in the United Kingdom by the publishing house Metheun Drama. The fifth as well as the third applicants are two actors engaged to perform in the mentioned production (as Stu and Abby, the main characters).

In October 2008, the first applicant, via the second applicant, decided to produce the play Stitching for the theatre audiences in Malta, and proceeded to obtain the necessary performance licence from the author and his agent. The relevant authorisation was granted to the first applicant by the author and agent of the production following the payment of a fee.

On 23 December 2008 the first applicant lodged an application with the Board for Film and Stage Classification (“the Board”), in order for a rating certificate to be issued in terms of the Stage Regulations (see Relevant domestic law). The relevant fee was paid and a clean copy of the script submitted.

At the same time, the first applicant entered into a reservation agreement with a theatre for eight dates between 13 February and 1 March 2009 and hired the third, fourth and fifth applicants in connection with the services for such play.

On 20 January 2009 the Board issued a certificate (no. 0000043), which was received by the applicants on an unspecified date, stating that the play had been examined by its chairperson (T.F.) and that it was decided that it was “Banned – Banned and disallowed”. No reasons were provided for the decision. Before this Court the Government submitted a further classification certificate with the same conclusion, also dated 20 January 2009, which stated that the classifier was T.F., as well as C.X., A.M. and D.M. (the latter names added by means of an asterisk). The applicants submitted that they had never received the certificate submitted by the Government. The Government explained that the latter certificate was an internal document.

On 23 January 2009 the first applicant, via the second applicant, sent an email, followed by a telephone call, to the chairperson of the Board enquiring about the decision. No reasons were provided by the chairperson.

On 25 January 2009 the first applicant, via its legal counsel, sent a letter to the chairperson requesting a reconsideration of the decision in terms of Regulation 47 (1) of the Stage Regulations.

By means of a letter of 29 January 2009 the Board informed the first applicant, via the latter’s legal counsel, that the original decision was reconfirmed. The letter contained no reasons and did not list the names of the persons who had been involved in the review.

On 31 January 2009 another letter was sent to the first applicant by the chairperson. It enclosed a document dated 30 January 2009 addressed “to whom it may concern”, which had been deposited with the Commissioner of Police, containing the reasons why the production was banned, namely:

“1. Blasphemy against the State Religion – pages 10 and 17

Obscene contempt for the victims of Auschwitz – page 29

An encyclopaedic review of dangerous sexual perversions leading to sexual servitude – pages 33, 34 and several others

Abby’s eulogy to the child murderers Fred and Rosemary West – page 35

Reference to the abduction, sexual assault and murder of children – page 36

In conclusion, the play is a sinister tapestry of violence and perversion where the sum of the parts is greater than the whole. The Board feels that in this case the envelope has been pushed beyond the limits of public decency.”

On 2 February 2009 the applicants filed a judicial protest against the chairperson, in her personal capacity and as Chairperson of the Board, the Commissioner of Police and the Attorney General claiming that the actions of the Board were illegal in so far as they constituted a violation of Article 39 of the Maltese Constitution and Article 10 of the Convention. They considered the defendants responsible for any damage suffered.

By 14 February 2009 (the day following what had to be the first performance date), no reply was received to the mentioned judicial protest. In consequence, the applicants called a press conference explaining the situation, noting that they were adhering to the law but that they were determined to perform the play at some stage.

In the evening of the same day, the applicants and their legal counsel were summoned for questioning at the Police Headquarters. The applicants were sternly warned by a police inspector that they would face immediate arrest if they attempted to stage the play.

Rehearsals for the production carried on unabated. According to the applicants around two hundred persons watched the rehearsals and none of them found the play objectionable.

The Board’s decision was not revoked and an invitation to the Chairperson to attend a rehearsal (as members of the Board sometimes did in connection with other performances) remained unanswered.

On 3 March 2009 the applicants instituted constitutional redress proceedings complaining that they had suffered a breach of Article 10 of the Convention. They also claimed damage and redress. Complaining under Article 6 they claimed that they did not have a fair hearing before the Board for Film and Stage Classification in so far as they had no hearing and no possibility to make submissions, nor were any reasons for the decision ever communicated to them. They also relied on the relevant provisions of the Maltese Constitution.

By a decree of 20 October 2009 the court rejected a request for the production to be shown behind closed doors to the court and the defendants.

During these proceedings the court heard several witnesses which it classified as (i) those who acted in the play and had thus read the script and performed it in rehearsals, (ii) persons who watched the rehearsals but did not read the script and (iii) the defendants who read the script but did not watch the rehearsal.

The court heard the applicants, four witnesses (who had watched the rehearsals) produced by the applicants, namely, P.M. a consultant psychiatrist, J.S. an educator, child psychologist and actress, K.D. a tourism marketing executive and actor, a priest who was a former film classifier for the Archdiocese of Malta, as well as the author of the play. The latter testified that the play had been performed uninterruptedly in all parts of the world and extensively in Europe, during which time it had collected a number of awards.

The author described the play as follows:

“A couple called Stewart and Abby, a very normal couple but however a couple who find themselves in relationship difficulties, there have been betrayals, they’re wondering whether to continue with their relationship. Abby discovers that she is pregnant by Stewart and so a large part of the play is concerned with them discussing whether or not to have the child. Ultimately they decide to have the child but they decide to do so in order to save their relationship, one might say for somewhat impure motives, they feel that having this child will keep them together. However their relationship continues to disintegrate and at one point during a fight they are having between themselves when their attention is diverted elsewhere, the child is involved in an accident and then dies. Obviously this is a huge trauma for them and they are driven apart. They come back together again sometime later, maybe a year later and meet and for them their relationship is not quite finished and they come back together in their grief because they are the only other people who understand the depths of their grief. When they come together they can only do so in a perverted fashion, where Abby actually poses as a prostitute. She wants to make their sexual relationship a matter of commerce in order to distance herself from the emotions.

What then ensues is a very violent and dark relationship, a kind of a punishment of themselves, confessions of their guilt. Eventually Abby is tipped into clinical mental illness and performs an act of self-mutilation which she believes will restore her to a virginal state, and that is what finally blows apart their relationship. In a final coda Stewart meets Abby sometime later when she has obviously received treatment for her mental illness and has in fact converted to Christianity and both of them decide to go their separate ways.”

He further testified as follows:

“(Concerning pornographic references) I would not for instance have used real pornographic pictures. I felt that that would be needlessly offensive for people however another director might chose to do so. ...

(Concerning women in Auschwitz walking towards death) it should not be an unfamiliar concept that in their grief that couple confess to thoughts, to feelings that they feel guilty about. The play to some extent is about life and about death. When he talks about masturbating and using as his material pictures of women from Auschwitz, this is something that occurs when he is a small child, this occurs when he is a very young child. He says that it is the first time that he masturbated which would imply that it is reasonably early. At that time of life a young man is completely concerned with procreation, with the creation of life and he understands nothing of death, of mortality. So in fact that is what actually that phrase is about, the fact that he is confessing, he is saying I knew nothing about death, I did not look at the atrocity of life, I saw only the nudity. So it’s actually nothing to do with Auschwitz, it’s to do with sexual urges and it’s to do with him, you know small children don’t understand Auschwitz.

(In reply to a court’s question concerning the swearing/blasphemy (daagħa)) well that’s not a concept that ever crossed my mind. I’m not a religious person.

(Domestic court’s question - Does the script allow the director to put aside certain references to things that could be described by people as hard? Will the text lose by the director leaving it out? ) I dare say that a director could remove one or two swear words but that would all have to be taken on the case by case basis, but largely speaking I would say they would suffer yes because there is a reason why every line is in every one of my plays. There’s a reason for it and I’m happy to stand here and justify them all day.

(Domestic court’s question - As far as Stitching is concerned an omission by the director could affect the whole performance?) Yes absolutely.”

P.M., a consultant psychiatrist, stated that in his opinion the play was a love story which unfortunately turned very badly. He explained that following the death of their son through their own negligence, the main characters had a relationship based on various fantasies, until the female character became mentally ill. It was a sad story, with however a redeeming feature, in that the two finally manage to get back a balance in their life. He testified that there was nothing pornographic in the story and the bad language was in the context of the emotions being felt by the couple.

J.S., a child psychologist, stated that in her opinion the play concerned a tragedy of a couple going through a crisis, which reached its peak when their son had died in an accident. She explained that the couple tried to connect in ways which were not necessarily conventional. She considered that it was a sensitive play that called for a mature audience. In reply to a court’s question concerning a specific part of the text, J.S. replied that she was not shocked because she could not dissociate her female gender from her being a psychologist.

The priest (who saw the rehearsal but did not read the script) considered that he would have classified it for wise adults (bil-għaqal). He explained that when a person was suffering she or he “may lose it” and enter into areas which decent people may object to. However, in his view that was the human reality. When one was ready to study illnesses and the suffering of people who were going through pain one must be democratic and tolerant and give society the chance to understand those not living normally.

K.D. (who saw the rehearsal but did not read the script) testified that most of the dialogue was between two people who had certain hang-ups and inter personal problems, and who in a quest to get closer, nearly started a competition between them as to who was the more outrageous. Nevertheless, in his view, at some point one could tell that they were flirting with each other despite them being outrageous.

The third applicant who was performing as Abby stated that she did not find the play offensive in any way, noting that the emotions were very real and that she felt that it was a love story. She also testified that no pornography was used as props.

The applicants also submitted that the script could be purchased and read by any person in Malta, without hindrance.

The defendants produced the witness testimony of the members of the Board and other individuals, as explained below.

Another priest (who read the script but did not see the play) felt that the script was offensive in various parts and dehumanising. He was annoyed by the blasphemous words and the reference to the Moors murderer, and very annoyed at the reference to the Holocaust. Further, he considered that the woman was being put forward as an object, and while it was possible that it was her choice, he thought she was totally subordinate to the man.

T.M. (a member of the Board who only read the script) had no doubt that it would have been better had they watched the theatrical production. He, however, explained that there were instances, such as the one in the present case, where the script was so objectionable, that he did not feel the need to watch it, since the two elements which he objected to (the words concerning Auschwitz and the passage about Fred and Rose Mary West) would always remain objectionable, no matter the way in which they were presented, be it a tragedy or a comedy. They would nonetheless remain offensive to certain sectors of Maltese society or indeed society anywhere. While shock was a legitimate theatrical weapon and may be used repeatedly, one could not offend other people’s sensibilities. Both in the case of the holocaust and that of child murders, humanity was at stake, and the relevant passages offended the sense of decency one individual should have towards another.

D.M. (a psychologist and member of the Board) found the script barely credible in so far as it was unlikely that a person would go through so many situations one after the other. While perversions did exist, this couple was being put forward as a normal couple. In his view a normal couple, a couple who went through a normal life experience such as the death of a child, would not react like the characters in the play, who for example, reenacted a killing which had greatly marked England. Further the scene concerning Auschwitz desecrated the memory of the persons who suffered.

Another witness, a retired Chief Justice and professor of law (who only read the script), examined the play from the point of view of public morals. He considered that certain parts of the play were disgusting, such as that describing Auschwitz, and the blasphemous words. He explained that the word “fuck” combined with the word “God” was unacceptable because it offended public morals, not only that of Catholics, but that of half the world. Thus, in his view those parts had to be deleted from the play. The parts concerning sex and sexual perversions, such as the part where the male figure wanted to pay the female figure to allow him to do certain things, disgusted him, but he considered that certain people could accept that.

J.C., the member of the board who confirmed on appeal that the play should be banned considered that, apart from other concerns mentioned by other members of the board, it was not justifiable for a couple to do certain things in public just because they were going through a bad patch. It was not acceptable that a woman had to give her vagina to a man to show him she loved him. In his view, if one were to make the appropriate deletions to the script, there would be nearly nothing left, and he could not find anything positive about it.

The Chairperson of the Board testified that there were entire scenes which she considered went against morality and were an affront and atrocious attack on human rights and the dignity of the individual. She was shocked and very annoyed by what she considered to be unadulterated pornography where the woman was becoming the man’s absolute slave. She considered that the play in its entirety, and not one scene here and there, was objectionable and offensive. The fact that the play ended with the couple possibly deciding to have a baby, did not suffice to hold that the play had a positive message, given the preceding eighty (sic) pages.

In an eighty-two-page judgment of 28 June 2010, the Civil Court (First Hall) in its constitutional competence rejected the applicants’ claims.

The court considered that the second applicant had no further interest than that of the director of the company, thus it sufficed that the company was an applicant, and he, thus, had no victim status in his own capacity. Nevertheless, the artistic directors as well as the actors were victims of the alleged violation, as persons who were giving life to a script by means of their artistic representation - a theatrical performance which was a form of expression for the purposes of Article 10.

It rejected the Government’s objection as to non-exhaustion of ordinary remedies since the applicants’ complaints concerned mainly issues of a constitutional and conventional nature, and thus were best dealt with by the courts of constitutional jurisdiction. For the purposes of the present case, the applicants were complaining of a human rights violation, and therefore an action for judicial review could not be an effective remedy in so far as it could not award the relevant damage, and could not order that the performance go ahead irrespective of the ban.

As to the merits, the court made extensive reference to the Court’s case-law, in particular Handyside v. the United Kingdom (7 December 1976, Series A no. 24), Otto-Preminger-Institut v. Austria (20 September 1994, Series A no. 295A) and Wingrove v. the United Kingdom (25 November 1996, Reports of Judgments and Decisions 1996V) as well as prominent authors in the field of human rights. It considered that the decision of the Board to ban the play had been correct and in accordance with the law and established guidelines. The court, having read the entire script, could not tie the plot which the author wanted to transmit with the means employed to do so. In the court’s view the author did not need to make use of such perversions in order to show the troubled reality of the characters.

It considered that the Board was correct to conclude that the play in its entirety was offensive to Maltese society. Indeed the specific scenes referred to, as well as other parts of the play, were an affront to the dignity of the individual, which was an integral part of the civil and moral fabric (tessut) of the country. Even in a pluralistic and democratic society, such as the Maltese one, human dignity could not be trampled on, even if the aim was “presumably” a genuine one. As problematic as the relationship of the couple might have been, one could not make extensive use of vulgar, obscene and blasphemous language to highlight perversions, vilify (ikasbar) the right to life and the right to freedom from inhuman and degrading treatment, and vilify the respect towards a woman’s dignity. It was not acceptable to publicise uncivil behaviour, which broke the law, debased the suffering of women during the holocaust, portrayed women as the object of sexual satisfaction, as well as ridiculed family life and the responsibilities parents have towards their children. A democratic society, while being tolerant, could not permit its values to be turned on their head in the name of freedom of expression. In the court’s view, the stitching of a vagina as an act of sexual pleasure, bestiality, the depravity arising from the thought of a woman eating another woman’s excrement, the pleasure obtained in raping children, the murder of children and sexual intercourse with parents of violated and murdered children, were unacceptable even in a democratic society. The court noted that under Maltese law, blasphemy was a contravention, and a person could not be immune from punishment simply because he or she was acting on stage. The Shoah, the court went on, “was a historical fact where innocent victims underwent unprecedented suffering. Instead of treating this sensitive and delicate subject...with due respect to the dignity of the victims, the character Stu shows only sexual depravity...the author permits the demeaning and humiliation of that tragedy totally out of context and for no other reason than for perversions. No matter how the text of the play is looked at, it runs aground on the reef of the inalienable dignity of the human person, and the court understands that this was the underlying reason for the Board’s decision.”

The court rejected their complaint under Article 6 on the basis that the proper procedure had been undertaken, the applicants had been free to put forward their views in their request for reconsideration, which was carried out by another person [not present at first-instance] and no bias had been shown.

The applicants appealed the first-instance judgment only in so far as it concerned the merits of their complaints, and asked the Constitutional Court to confirm the judgment in so far as it related to the second applicant’s victim status. By a judgment of 29 November 2012, the Constitutional Court confirmed the first-instance judgment and ordered the applicants to pay all costs.

The Constitutional Court noted that the first-court had chosen to exercise its jurisdiction and rejected the defendants’ objection of nonexhaustion of ordinary remedies, which in the absence of an appeal on the matter had become final. Nevertheless, it noted that the applicants had not instituted judicial review proceedings of the administrative action in question (the Board’s decision); thus they were not complaining that the Board’s decision was based on improper motives or irrelevant considerations. Moreover, the ordinary court,’s decision ut sic, and people’s opinions on the play were irrelevant given that the applicants considered the decision to be reasonable.

As to the constitutional and conventional complaint raised by the applicants, the Constitutional Court held that the existence of the Board did not breach any of the applicants’ rights, and indeed the applicants had not impugned the law establishing the Board. It further considered that freedom of expression had limits and that it was accompanied by duties and responsibilities. Both the Convention and the Constitution provided for inter alia the protection of morals and the reputation and rights of others, and the Maltese Constitution also included public decency, in the relevant provision.

The Constitutional Court, having read the script, shared the firstinstance court’s view about various scenes of the play. It considered that such scenes all throughout the play affected the morality and decency of the entire production, and it was within the Board’s competence to assess that in line with the Regulations. The Constitutional Court had no doubt that there were phrases which constituted disparaging and insolent remarks towards more than one belief, towards women and towards the suffering of the Jews in the Second World War.

Referring to the Court’s case-law, in particular, OttoPremingerInstitut v. Austria (§ 47) it recalled that those who chose to exercise the freedom to manifest their religion, “must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith. However, the manner in which religious beliefs and doctrines are opposed or denied is a matter which may engage the responsibility of the State, notably its responsibility to ensure the peaceful enjoyment of the right guaranteed under Article 9 to the holders of those beliefs and doctrines.”

In its view the limits of decency had been breached due to the blasphemy which was an offence under Maltese law and to the vilification of the dignity of a people, of a woman, of children, and of the human being, as well as the extreme glorification of sexual perversion. These instances were so strong that they affected the play in its entirety and prevailed over any genuine aim presumably intended by the play. The court emphasized that the production despised the dignity of the individual, in particular sectors, such as women and children, whether because of their nationality or religion, and opined that even though the main characters were acting in this way because of tension, pressure and depression, such contempt could not be justified as art. In the court’s view while art was a wide concept covering any type of manifestation of expression, it could not include language which was obscene and despised the trauma of a genocide, and which, in itself, was against the laws of the country. For a strong moral message to be portrayed it was possible to cause discomfort and annoy other persons, but not to the extent of insulting them because of their beliefs, their people, or simply because they were a woman or a child.

Recalling that it was the duty of the State to protect the morality of the country, the Constitutional Court considered that the Board had fulfilled its duty. What was morally correct depended on the State and the relevant religion, and could not be determined universally. Thus, the fact that the production was performed elsewhere did not mean that it had to also be produced in Malta, particularly in the light of the laws in force in each country. This was precisely why states had latitude in applying certain restrictions on freedom of expression.

It further noted that under the laws in force, the Board could ban the play, as opposed to classifying it for a mature audience. In any event it considered that adults, who could chose to watch the play in such a case, would also be deserving of protection, and thus limitations could also be necessary in such cases. It highlighted the states’ duty to preserve the sensitivities of the silent citizen (as opposed to the vociferous ones, who inundated media forums) and considered that no remedy after the performance could heal any harm already done to society. Thus, in the Constitutional Court’s view the Board’s decision was correct, was not capricious or exaggerated, and it corresponded to the need to protect public morality in Maltese society and the rights of others.

The Constitutional Court concluded that it was not necessary to watch the play as the script was enough. In the absence of an Article 14 complaint, it was also unnecessary to compare the performance to other performances which had been allowed by the Board. The applicants having refused to make any changes to the text, despite its invitation to do so, the Constitutional Court confirmed that it would remain banned and that there was no breach of Article 10.

In connection with their Article 6 complaint, the Constitutional Court held that the applicants did not institute judicial review proceedings and in any event there had been no breach of their rights. Furthermore, in their view there had been no determination of any civil right.