Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-1) Six-month period;(Art. 35-3-a) Manifestly ill-founded;(Art. 35-3-a) Ratione personae;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-e - Persons of unsound mind);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Speediness of review);Respondent State to take individual measures (Article 46-2 - Individual measures);Respondent State to take measures of a general character (Article 46-2 - General measures);Pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani

The applicant was born in 1959. He is currently detained at Săpoca Psychiatric Hospital, in a section of the hospital located in the municipality of Ojasca (Buzău County).

The applicant has been in receipt of a second-degree disability allowance since 1993.

On 29 January 2001, following the publication of an article in the national press and a programme broadcast on a national television channel, the police operating at Bucharest police station no. 20 initiated a criminal prosecution against the applicant. He was charged with incest and sexual corruption of his two under-age daughters, aged 15 and 16. He was alleged to have had sexual intercourse with his elder daughter and forced both his daughters to be present while he was having sexual intercourse with his wife.

On the same day the applicant was questioned by the police in the presence of an officially appointed lawyer regarding the charges against him, before being placed in police custody for twenty-four hours.

On 30 April 2001 the applicant, assisted by an officially appointed lawyer, was questioned by a prosecutor concerning the same charges.

On the same day the prosecution, with reference to Article 114 §§ 1 and 2 of the Penal Code (CP), ordered the applicant’s provisional detention in a psychiatric hospital with a view to conducting a medical examination to assess his capacity for discernment. The prosecution noted in that regard that a paranoid affective psychosis diagnostic had been posited on several occasions between 1994 and 1999. It stated the following:

“... in the present case there is sufficient circumstantial evidence of the precarious state of health of the accused, who represents an extremely serious danger to society given that he is liable to commit further such antisocial acts.”

On the same day the applicant was admitted to the Alexandru Obregia Psychiatric Hospital in Bucharest. He underwent psychiatric examinations which found, inter alia, paranoid impulsive tendencies with high conflict potential. Furthermore, the applicant’s state was described as comprising irritability, suspicion, interpretative tendencies and potential aggression.

A forensic medical report was drawn up on 2 November 2001 establishing that the applicant suffered from chronic paranoid schizophrenia and lack of discernment. It recommended putting in place the compulsory medical treatment provided for by Article 113 CP.

A preliminary investigation was also instigated against the applicant for the rape of his wife.

The prosecution heard the applicant’s wife and two daughters.

By decision of 27 February 2002 the prosecution, in the absence of a medical certificate and since the applicant’s daughter had not confirmed the sexual relations with her father, ordered the closure of the criminal proceedings against the applicant for incest. Drawing on the statements of his two daughters, it also concluded that the applicant had forced them to be present while he was having sexual intercourse with his wife, thus committing offences of sexual corruption of minors, but decided to close the proceedings on that count owing to the applicant’s lack of discernment, as found in the forensic medical report of 2 November 2001 (see paragraph 12 above). The prosecution further dropped the rape charge on the grounds that the applicant’s wife had not lodged a criminal complaint against him. Lastly, it referred the case file to the competent court for confirmation of the preventive measure of medical detention.

By decision of 22 April 2002 Bucharest District Court 6 upheld the medical detention order. Listing the criminal charges against the applicant, the court stated the following:

“In the light of the findings of the psychiatric forensic medical report that N. suffers from chronic paranoid schizophrenia and lacks discernment as regards the offences he committed, and having regard to the recommendations of the [reporting] committee that the preventive detention measure should be imposed on the accused, the court accedes to the [prosecution’s] request and, pursuant to Article 114 CP, confirms the provisional medical detention order and informs the Bucharest Health Department of the implementation of that order.”

The applicant did not attend the hearing, nor was he represented by a lawyer in court.

The decision was posted on the door to the applicant’s home and in the town hall of Bucharest District 6, where the applicant’s home was located.

From 30 January 2001 to 20 January 2003 the applicant was detained in the Alexandru Obregia Psychiatric Hospital. On 21 January 2003 he was transferred to the Poiana Mare Psychiatric Hospital, where he remained until 29 January 2006. The applicant was provided with a neuroleptic- and tranquilliser-based treatment.

In March 2007, after the entry into force of the amendments to the Code of Criminal Procedure (CPP) requiring periodic and automatic judicial review of the detention (see paragraph 90 below), the judge of Buzău District Court (“the delegated judge”) ordered a psychiatric forensic medical report.

In July 2007 the competent medical board drew up a report based on the results of an examination of the applicant, the medical documentation transmitted by the psychiatric hospital, the report by his GP, a social welfare inquiry concerning the applicant conducted on 3 May 2006, the 22 April 2002 decision of Bucharest District Court 6 and the forensic medical report of 2 November 2001.

The board found that during his detention the applicant had expressed delusions of grandeur with transient psychotic relapses, had endeavoured to conceal his symptoms, had behaved in a calm, composed manner, had accepted his treatment, had refrained from stirring up trouble with the other patients and had shown little hostility during the treatment. It pointed out, however, that he had been hostile during the examination and had expressed delusional ideas of injustice and his intention to remedy the latter. It concluded that the applicant was suffering from chronic paranoid schizophrenia and that, having regard to the medical documentation, to the evolution in the patient’s condition during his detention and to the psychiatric examination in issue, the detention measure should remain in place.

On 15 August 2007 the delegated judge invited Buzău District Court to replace the detention measure provided for in Article 114 CP with the compulsory medical treatment measure provided for in Article 113 CP.

On 11 September 2007 the applicant, assisted by an officially appointed lawyer, was heard by the court. He requested his release, seconded by his lawyer.

By decision of the same day, Buzău District Court decided to order the applicant’s continued psychiatric detention. It reasoned as follows:

“By Criminal Decision No. 588 of 22 April 2002, Bucharest District Court 6 ordered N.’s medical detention on the grounds that he had been charged with having committed the offence of incest, consisting of sexual relations with his 16-year-old daughter, in 2000, and the offence of sexual corruption on the grounds that on 21 January 2001 he had sexual intercourse with his wife in the presence of his two daughters.

The psychiatric forensic medical report [of July 2007] shows that the patient suffers from chronic paranoid schizophrenia and points to the advisability of maintaining the preventive detention measure laid down in Article 114 CP.

Having regard to the foregoing, the court ... decides to maintain the medical detention measure (Article 114 CP) imposed on patient N.”

The applicant took cognisance of that decision in summer 2008, when he underwent a further forensic medical examination. He appealed.

By final decision of 19 December 2008 Buzău County Court, referring to the reasoning of the Court of First Instance, dismissed the appeal as manifestly ill-founded after having heard the applicant, assisted by an officially appointed lawyer.

The applicant’s detention measure was made subject to several judicial reviews by Buzău District Court and Buzău County Court. It transpires from the decisions adopted, of which the Court has copies, that the applicant was heard by both courts during the different sets of proceedings.

He was assisted by various officially appointed lawyers, who, in the proceedings completed before 2016, had confined themselves to referring to the findings of the forensic medical assessments carried out, and had either left it to the discretion of the courts whether or not to maintain the measure or objected to the lifting thereof.

Apart from the decisions adopted after 2015, the case file does not indicate whether the prior decisions had been served on the applicant.

According to the forensic medical reports drawn up after each review, the applicant, who had not fully acknowledged the fact of his mental illness, had been calm, had not refused his treatment and had refrained from causing trouble with the other patients. On the other hand, the reports stated that he had vehemently denied having committed the criminal offences with which he had been charged, claiming that his former wife had been plotting against him.

By decision of 13 October 2008 Buzău District Court maintained the detention measure in respect of the applicant. The court referred to the 22 April 2002 decision and to a forensic medical report drawn up following an examination of the applicant in May 2008, which had recommended maintaining the measure. On 9 January 2009, on appeal from the applicant, Buzău County Court upheld that decision.

By decision of 18 February 2010 Buzău District Court dismissed a request submitted by the applicant for the lifting of the detention measure. The court referred to a forensic medical report drawn up after an examination of the applicant the same month, which had recommended maintaining the measure and described the applicant’s delusional ideas concerning the setting up of a new State, his lack of feasible future plans and the fact that he had not fully accepted his drug therapy.

By decision of 1 April 2010 Buzău District Court maintained the detention measure in respect of the applicant. It referred to the decision of 22 April 2002 to a forensic medical report drawn up after an examination of the applicant in December 2009, insofar as it recommended maintaining the measure and described the applicant’s delusional ideas concerning the setting up of a new State and his lack of realistic future plans.

Furthermore, although this aspect was not mentioned by the court, it transpires from that report that the applicant’s GP had noted an erotomaniac obsession with his former wife, which had indicated a total incapacity for social reintegration and would most likely have triggered conflicts or unforeseeable, potentially dangerous situations had he returned to the apartment where he had lived with his family. The report further noted that the applicant’s friend, who had attended most of the medical boards’ meetings, had come down emphatically in favour of the applicant’s release, claiming that he would accommodate him indefinitely in the apartment which he shared with his mother. However, the assessment board doubted the reality of such support proffered by someone who was himself suffering from psychiatric problems. On the other hand, the report mentioned that the applicant had been plainly rejected by his daughters and his former wife, and that despite the rejection by his former wife and the fact that he himself considered that his detention was the result of scheming on her part, he intended to get back together with her if he was released.

By decision of 22 April 2010 the Buzău Court of First Instance dismissed the applicant’s second application for release on the grounds that its decision of 18 February 2010 had meanwhile become final and was therefore res judicata. During the proceedings a forensic medical report had been drawn up on 9 March 2010, reaching conclusions similar to the findings of the report submitted in December 2009 (see paragraph 45 above).

In November 2010, May and November 2011 and April 2012 the delegated judge requested the Buzău Institute of Forensic Medicine to carry out psychiatric assessments with a view to periodic reviews of the need to maintain the applicant’s psychiatric detention.

The Institute of Forensic Medicine examined the applicant on the aforementioned dates but did not draw up or forward its reports until November 2013. The reports confirmed the diagnosis of the applicant’s condition and proposed maintaining the detention measure.

By four separate decisions adopted on 17 and 19 December 2013, the Court of First Instance, citing the case-law of the Court in matters of detention of persons suffering from mental disorders, maintained the detention measure. It referred to the findings of the above-mentioned forensic medical reports. In its decision of 17 December 2013 the court further had regard to a forensic medical report drawn up following an examination of the applicant carried out a few days previously, in December 2013. Furthermore, it referred, broadly, to the “aim of the preventive measures, which was to put an end to a situation of danger and prevent the perpetration of acts punishable under criminal law”, and concluded that the criteria set out in Article 434 § 1 CPP had been satisfied.

By three separate decisions adopted on 4 February 2014, Buzău District Court maintained the applicant’s detention measure on the basis of three psychiatric forensic medical reports drawn up following examinations of the applicant in November 2012, May 2013 and November 2013. The Court has not received copies of those reports and decisions.

On 1 July 2014 Săpoca Psychiatric Hospital applied to the courts to declare the applicant incapable and place him under guardianship (see paragraph 77 et seq. below for the conduct of the related proceedings).

By decision of 19 February 2015, citing the Court’s case-law in matters of detention of persons suffering from mental disorders, Buzău District Court maintained the detention measure in respect of the applicant. It referred to a forensic medical report drawn up after an examination of the applicant in September 2014, which recommended maintaining the measure and referred to the “aim of the preventive measures, which was to put an end to a situation of danger and prevent the perpetration of acts punishable under criminal law”.

The operative part of the decision was served on the applicant on 26 February 2015.

In April 2015 the applicant appealed to the Judicial Inspection Board of the Higher Council of the Judiciary against the alleged practice of Buzău District Court of conducting retrospective reviews of the need to maintain the detention measure. By decision of 15 June 2015 the Judicial Inspection Board dropped the applicant’s complaint. It confirmed the existence of the practice criticised by the applicant, but pointed out that it had been caused by the medical authorities’ delay in forwarding their expert reports and not in any breach by the judges of their attributions.

On 3 September 2015 the delegated judge requested the Buzău Institute of Forensic Medicine to conduct a further psychiatric expert assessment with a view to periodically reviewing the need to maintain the applicant’s psychiatric detention. The applicant filed a separate action seeking the replacement of the detention measure with a compulsory medical treatment measure.

On 23 September 2015 the Forensic Medical Board also examined the applicant. The applicant’s lawyer representing him in the present application before the Court sent a reasoned letter to the Board strongly advocating the replacement of the measure implemented in respect of his client.

On 1 October 2015 the Board drew up its forensic medical report recommending the replacement of the detention measure with a compulsory medical treatment measure. It emphasised that the persistence of the applicant’s delusional ideas concerning the setting up of a “new State” and his lack of social and family support, a factor conducive to social reintegration, supervision of his medical treatment and the management of the applicant’s daily needs relating to the purported “new State”, had justified maintaining the detention up until then. It noted that the applicant had not been aggressive to others or to himself during his detention. In that context, it welcomed the steps taken by Săpoca Hospital to place the applicant under guardianship, which it considered appropriate in the perspective of his release, given that the applicant had been rejected by his family (his brother, sister, former wife and daughters). Finally, the Board recommended that the social welfare services of the applicant’s district of residence should be informed that they had to take the necessary action with a view to releasing him.

On 22 October 2015 Buzău District Court, which was responsible for the review, ordered a fresh forensic medical report from the National Institute of Forensic Medicine (IFM) in Bucharest.

On 10 November 2015 the applicant underwent a medical examination at the IFM.

On 12 April 2016 the IFM submitted its expert report, which stated, in particular, that:

– the applicant was suffering from chronic delusional disorder with no prospect of improvement, but rather with future aggravation of the illness due to aging;

– the illness as manifested in the applicant did not point to any risk of a danger to society, but the lack of feasible plans for the future foreshadowed future conflicts, a risk of advanced social deterioration and the impossibility of monitoring the evolution of his illness;

– the applicant lacked any social support from his family or other persons of trust.

Under those conditions, the forensic medical board pointed out that the case presented a genuine psychiatric and deontological dilemma. Indeed, it considered that although, from the psychiatric point of view, the applicant could be released subject to compulsory medical treatment on the basis of Article 109 CP, that measure was inconceivable in the absence of social support. Consequently, it proposed provisionally maintaining the detention until the social welfare services could transfer the applicant to a specialised institution capable of providing him with appropriate living conditions and treatment.

By decision of 27 May 2016 the Buzău Court of First Instance, referring to the findings of the 12 April 2016 forensic medical rapport (see paragraph 61 above), ordered the maintenance of the detention measure.

The applicant appealed to Buzău District Court against that decision. He was represented by an officially appointed lawyer, who argued that the applicant’s wishes should be complied with. Questioned by the court, the applicant stated that he would live with his former wife and one of his daughters in their apartment. He added that he had a retirement pension.

By judgment of 29 August 2016 Buzău County Court upheld the 27 May 2016 decision. It held as follows:

“Given the absence of improvement in the patient’s state of health and the fact that the members of his family cannot monitor his continued medical treatment, and having regard to the nature of the charges against him which had resulted in his medical detention, family members against whom [the applicant] has committed antisocial acts cannot be expected to cohabit with him.

Nevertheless, the director of the establishment [where the applicant is detained] must inform the social welfare services responsible for transferring [the applicant] to a specialised institution capable of providing proper living conditions and treatment.”

On 6 September 2016 the Director of Săpoca Hospital invited the Directorate General of Social Assistance and Child Welfare (“DGASPC”) in Bucharest District 6 to adopt welfare measures in respect of the applicant pursuant to the instructions set out in the forensic medical report of 12 April 2016.

By letter of 29 September 2016 the DGASPC replied that the applicant’s former wife had informed it that she did not intend to be involved in any way in the process leading up to the applicant’s release. Furthermore, the DGASPC pointed out that it had contacted the social welfare services in the county of residence of the applicant’s sister with an eye to his possible placement with her. It also stated that the only centre in Bucharest District 6 which took in persons suffering from neuropsychiatric disorders could not admit the applicant owing to a lack of available places. Finally, it explained that it had also unsuccessfully attempted to contact other specialised and residential centres.

On 15 November 2016 the Director of Săpoca Hospital contacted the municipality of Unguriu, which had meanwhile been assigned the guardianship of the applicant .... The Director informed the municipal authorities the implementation of the preventive detention measure was temporary, and that they were required to act in the interests of the applicant, particularly with a view to his possible placement in a specialised institution after his release.

On 21 November 2016 Unguriu municipality replied that the guardianship order was not yet final and that it therefore could not act in respect of the applicant.

On 12 September 2016 the applicant underwent a further forensic medical examination.

The forensic medical report drawn up on 25 January 2017 recommended replacing the detention measure with a compulsory medical treatment order in view of the applicant’s “low level of dangerousness (while on treatment), compliance with the rules, absence of incidents, [and] the lengthy period of supervision”. The report mentioned in particular:

– the existence of a single, strange and systematic delusionary theme concerning the creation of a “united Somali State”, which delusion did not however alter his compliance with hospital rules;

– lack of conflict situations and of incidents pointing to potentially aggressive behaviour;

– proper therapeutic cooperation during detention, despite his purely formal acquiescence in the reality of his illness and need for treatment;

– absence of antisocial precedents – apart from the acts noted during his placement in detention – or consumption of psychoactive substances (drugs, alcohol);

– negative effect of the extension of detention for social reasons on the development of the applicant’s illness and physiological state, and

– the guardianship order.

The report nevertheless emphasised the risk of decompensation of the illness, involving possible negative social consequences should the aftercare provided to the applicant by the body assigned guardianship prove inadequate.

On 21 February 2017 the applicant was heard by Buzău District Court. He was represented by an officially appointed lawyer, who advocated replacing the detention measure.

By final decision given on the same day, Buzău District Court ordered the replacement of the detention measure with a compulsory treatment order until the applicant had made a full recovery. It referred to the forensic medical report of 25 January 2017 (see paragraph 70 above) and to the “aim of the preventive measures, which was to put an end to a situation of danger and prevent the perpetration of acts punishable under criminal law”.

On 7 March 2017 the applicant asked to remain in psychiatric hospital until his social situation had been settled.

On 8 March 2017 the lawyer representing the applicant before the Court sent a letter to Săpoca Hospital recommending, in the framework of enforcement of the decision of 21 February 2017, the applicant’s ultimate reintegration into society rather than his placement in a residential centre. He emphasised that releasing the applicant without adequate support would condemn him to vagrancy, destitution and the deterioration of his physical and mental health. Lastly, he requested the setting up of an interdisciplinary commission responsible for identifying the action to be taken on the applicant, on the model of the efforts expended in other countries to deinstitutionalise persons in medical detention.

On 9 March 2017 the applicant was transferred to another section of the same hospital for persons suffering from chronic illnesses.

On 14 March 2017 the Director of Săpoca Hospital invited la DGASPC to implement assistance measures in respect of the applicant pursuant to the final decision ordering the replacement of the detention measure. It also attempted, unsuccessfully, to contact two foundations in Bucharest for the same purpose.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicants were born in 1985, 1988 and 1984 respectively. The first and second applicants live in Moscow. The third applicant lived in the Moscow region and died there on 10 December 2007.

On 11 March 2007 elections to the Moscow City Duma were held. The applicants came to a polling station at about 10.30 a.m. They started to loudly criticise the elections and were immediately (at about 10.35 a.m.) arrested and brought to the Odintsovo police station.

At 3.30 p.m. on the same day the local prosecutor’s office opened criminal proceedings against the applicants. It follows from its decision that at 10.30 a.m. on 11 March 2011 at polling station no. 1763 the applicants had unrolled banners, turned on smoke jets and distributed leaflets in an attempt to disturb the work of the polling station. Their unlawful actions had been interrupted by the police.

At 6.30 p.m. on the same day the police started to draw up arrest records in respect of the applicants. According to those records the applicants were arrested at the Odintsovo police station. The first applicant was arrested at 6.30 p.m., the third applicant at 7.00 p.m. and the second applicant at 7.30 p.m.

On 13 March 2007 the investigator asked the Odintsovo Town Court to remand the applicants in custody.

During the hearings on the same day - which lasted from 11.30 a.m. to 1.00 p.m. for the first applicant, from 9.40 a.m. to 10.25 a.m. for the second applicant and from 10.30 a.m. to 11.25 a.m. for the third applicant – the judge heard the prosecutor, the applicants and their counsel. She also read the prosecutor’s applications for remand. No other documents were examined at the hearings.

On the same day, 13 March 2007, the Odintsovo Town Court ordered that the applicants be remanded in custody. The court found that the prosecutor’s applications had been supported by evidence showing the necessity of placing the applicants in custody in view of the risks of absconding, reoffending or interfering with the investigation.

On the same day the applicants prepared their preliminary appeal submissions against the detention orders and asked the detention facility administration to dispatch them. It follows from a document issued by the detention facility administration that the first applicant’s submissions were dispatched on 14 March 2007. However, the submissions by the second and third applicants were not dispatched until 23 March 2007.

On 20 March 2007 counsel for the applicants lodged additional appeal submissions. They complained that they had not still received copies of the detention orders of 13 March 2007. They further argued that the Town Court had disregarded the fact that the offence imputed to the applicants was not a serious one, that they had permanent places of residence, had positive references and studied at a university. On the same day counsel asked for permission to study the case-file. Their request was however rejected because the case file had been taken by the judge who was currently on leave.

On 27 March 2007 counsel for the applicants complained before the Odintsovo Town Court that the investigators had denied them access to the case file and had refused to give them copies of, in particular, the prosecutor’s applications for remand and of the detention orders.

On 29 March 2007 the second applicant received a copy of his detention order. The first and third applicants received copies of their respective detention orders on 30 March 2007. The delay in serving the detention orders on the applicants was due to the fact that the judge had sent the documents to the Mozhaysk detention facility, although the applicants were held at the Odintsovo detention facility.

On 3 April 2007 the Odintsovo Town Court found that the investigators had unlawfully restricted counsel’s access to the case file and had thereby violated the applicants’ defence rights. However, it was not until 6 April 2007 that counsel were ultimately granted access to the case file.

On 9 April 2007 counsel lodged additional appeal submissions in which they complained about the belated access to the case file. They further complained that the detention order had been based on insufficient reasons and that no time-limit for detention had been fixed. The evidence showing the existence of the risks of absconding, reoffending or interfering with the investigation to which the Town Court had referred in its detention orders had not been examined during the hearings and the applicants had not been given an opportunity to challenge it. They also complained that the investigator who had lodged the application for remand had acted outside his competence and that the detention orders had been issued more than forty-eight hours after the arrest. Moreover, the applicants’ arrest had been unlawful because the arrest records had been drawn with several hours’ delay. Finally, the applicants asked to be brought to the courtroom for the appeal hearing.

On 11 April 2007 the Moscow Regional Court held an appeal hearing. The applicants were not brought to the courtroom. On the same day the Regional Court quashed the detention orders of 13 March 2007. It found that the detention orders had been based on insufficient reasons. The Town Court had disregarded the facts that the charges were not serious, that the applicants had no criminal record, had a permanent place of residence and studied at a university. There was no evidence that they had threatened witnesses or had attempted to destroy evidence. The Town Court’s finding that the applicants might abscond, interfere with the investigation or reoffend had not been therefore supported by relevant facts. The Regional Court ordered the applicants’ immediate release.

Counsel for the applicants asked the court to give them copies of the appeal decisions so that they could bring it to the detention facility and have the applicants immediately released. Their request was refused.

On 12 April 2007 counsel asked for a second time for copies of the appeal decisions. By letter dated 18 April 2007 the President of the Moscow Regional Court informed them that under the domestic law copies were to be sent by post to the detention facility, which had been done on 12 April 2007. Copies of the detention orders could not be given to counsel.

On the same day, 12 April 2007, counsel asked the director of the detention facility to release the applicants, referring to the Regional Court’s order to release them. However, the director refused to release the applicants because the appeal decisions had not yet been received by the detention facility.

The appeal decisions were received by the detention facility on 13 April 2007. On the same day the applicants were released.


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

Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova

The applicant was born in 1985 and lives in Moscow.

In May 2008 she married R.M. The couple settled in Moscow.

On 23 July 2008 and 31 May 2012 the applicant gave birth to two children, a son and a daughter respectively.

In January 2014 she and R.M. decided to separate.

On 14 January 2014 R.M. took the children to the Republic of Ingushetiya without the applicant knowing. He left them with his parents (the paternal grandparents) and went back to Moscow.

On 4 March 2014 the marriage between the applicant and R.M. was dissolved.

On 11 March 2014 the applicant applied to the Izmaylovskiy District Court of Moscow (“the District Court”) for a residence order in respect of the children. She also applied for child maintenance from R.M.

On 25 June 2014 the District Court decided that the children should reside with their mother, the applicant. It further ordered R.M. to return the children to her and pay child maintenance. The judgment became final on 14 October 2014.

However, R.M. refused to comply with the judgment.

On 10 November 2014 the District Court issued a writ of execution.

On 17 November 2014 the Sunzhenskiy District Bailiffs’ Service in the Republic of Ingushetiya refused to institute enforcement proceedings since the debtor, R.M., resided in Moscow.

On 24 November 2014 the Izmaylovskiy District Bailiffs’ Service in Moscow opened enforcement proceedings.

On 2 February 2015 the enforcement proceedings were transferred to the Sunzhenskiy District Bailiffs’ Service in the Republic of Ingushetiya.

On 12 February 2015 the applicant challenged the lawfulness of the above-mentioned decision before the District Court.

On 8 April 2015 the District Court found the decision of 2 February 2015 to be unlawful.

Meanwhile, on 23 March, 2 April, 14 April and 16 April 2015 a bailiff from the Sunzhenskiy District Bailiffs’ Service tried to enforce the judgment of 25 June 2014 without success: on 23 March and 16 April 2015 due to the emotional state of the children, on 2 April 2015 because the children were outside the territory of the Republic of Ingushetiya, and on 14 April 2015 because the applicant was absent.

On 24 April 2015 the applicant challenged in court the lawfulness of the bailiffs’ actions during the attempt to return the children to her on 16 April 2015, in particular: involvement of the wrong district childcare authority in the enforcement, refusal of a request by her to have the enforcement filmed, refusal to examine an objection by her concerning a psychologist participating in the enforcement, delay in notification of the enforcement, establishment during the enforcement of the applicant’s son’s preferences as to his future living arrangements, as well as the bailiffs’ inaction resulting in the failure to secure enforcement of the judgment of 25 June 2014.

On 11 June 2015 the Magasskiy District Court of the Republic of Ingushetiya found the bailiffs’ actions during the attempt to return the children to the applicant on 16 April 2015 to be unlawful.

On 17 June 2015 a bailiff from the Sunzhenskiy District Bailiffs’ Service restricted R.M.’s travel within the Russian Federation for six months.

Meanwhile, according to the Government, on 16 June, 5 July, an unspecified date in July, 15 July and 17 August 2015 a bailiff from the Sunzhenskiy District Bailiffs’ Service informed the applicant that the enforcement was scheduled for 22 June, 6 July, 13 July, 27 July and 19 August 2015 respectively. On each of the five occasions R.M. took the children to the premises of the Sunzhenskiy District Bailiffs’ Service. However, since neither the applicant nor her representative were present, the enforcement could not take place.

According to the applicant, she was never informed of the enforcement dates scheduled for 22 June, 6 July, 13 July, 27 July and 19 August 2015.

It appears from the case file that the notification of 16 June 2015 was sent to R.M.’s address. The notifications of 15 July and 17 August 2015 were sent to the applicant’s address, though there is no evidence to suggest that she received them. The case file contains no evidence that she was notified of the other two scheduled dates for carrying out the enforcement measures either.

On 17 September 2015 the enforcement file was returned to the Izmaylovskiy District Bailiffs’ Service in Moscow pursuant to the decision of the District Court of 8 April 2015 (see paragraph 19 above).

On 6 October and 20 October 2015 a bailiff from the Izmaylovskiy District Bailiffs’ Service in Moscow ordered R.M. to comply with the judgment of 25 June 2014 by 13 October and 23 October 2015 respectively. He further visited R.M. at his place of residence in Moscow. It was established that the children were living with R.M.’s parents in the Republic of Ingushetiya.

On 23 October 2015 the deputy chief bailiff of the Izmaylovskiy District Bailiffs’ Service imposed an administrative fine on R.M. of 2,500 Russian roubles (RUB) for failure to comply with the judgment of 25 June 2014.

On 3 November 2015 a bailiff from the Izmaylovskiy District Bailiffs’ Service invited R.M. to the bailiffs’ office on 10 November 2015 to provide explanations for his non-compliance with the judgment of 25 June 2014.

On 10 November 2015 the bailiff imposed an execution fee on R.M. of RUB 5,000 for failure to comply with the judgment of 25 June 2014. He was ordered to comply by 13 November 2015.

On 20 November 2015 the deputy chief bailiff of the Izmaylovskiy District Bailiffs’ Service imposed a further administrative fine on R.M. of RUB 2,500 for failure to comply with the judgment of 25 June 2014.

On the same day the chief bailiff of the Izmaylovskiy District Bailiffs’ Service imposed an administrative fine on R.M. of RUB 1,000 for failure to comply with the lawful demands of the bailiffs.

On 14 January 2016 the Commission for the Affairs of Minors and the Protection of Their Rights of the Severnoye Izmaylovo District in Moscow imposed an administrative fine on R.M. of RUB 2,000.

On the same day the bailiff temporarily restricted R.M.’s travel in view of his failure to comply with the judgment of 25 June 2014, and ordered him to pay the imposed administrative fines. R.M. was invited to the bailiffs’ office on 19 January 2016 to provide explanations for his reluctance to comply with the judgment of 25 June 2014, and was ordered to comply by 20 January 2016.

At the applicant’s request, on 3 February 2016 the bailiff launched a search for the children and restricted R.M.’s right to drive.

On 5 February 2016 the chief bailiff of the Izmaylovskiy District Bailiffs’ Service imposed an administrative fine on R.M. of RUB 1,000 for failure to comply with the lawful demands of the bailiffs.

On 13 April 2016 the bailiff telephoned R.M. and asked him to attend the bailiffs’ office to provide explanations for his non-compliance with the judgment of 25 June 2014. He refused to do so.

On 14 April 2016 the bailiff suspended the enforcement proceedings.

According to the Government, on 5 May 2016 the bailiff informed the applicant that the enforcement was scheduled for 10 a.m. on 19 May 2016 at the children’s place of residence in the Republic of Ingushetiya. However, since she failed to attend, the enforcement could not be carried out.

According to the applicant, she was not informed of the enforcement scheduled for 19 May 2016.

It appears from the case file that the notification of 5 May 2016 was sent to R.M.’s address.

The judgment of 25 June 2014 remains unenforced to date. The children continue to live with their paternal grandparents in the Republic of Ingushetiya.


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

The applicant, Mr Sinan Tekpetek, is a Turkish national, who was born in 1980 and lives in Istanbul. He is represented before the Court by Mr M. Kaya, a lawyer practising in Istanbul.

The Turkish Government (“the Government”) are represented by their Agent.

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

According to the applicant, on 26 July 2007, at approximately 11.15 p.m., he was stopped by the police for a routine identity check in Taksim Square, Istanbul. After examining his identity card and running his information through the police database, the police let the applicant go. However, as he was leaving Taksim Square, a police car approached him from behind and a number of police officers grabbed him and shoved him into the police car. Once inside the car, three police officers sprayed him with pepper gas and beat him, whilst swearing at him. The applicant’s pleas to find out the reason for this treatment were left unanswered.

The applicant claimed that following a fifteen-minute drive, during which he continued to be assaulted, he was taken out of the car to find himself in a secluded area by the old city walls which he identified as the Yedikule or Yenikapı district of Istanbul, where two more police cars were waiting. There, the applicant was once again insulted, threatened at gunpoint, kicked, punched and beaten with a truncheon and subjected to pepper gas by a total of ten to twelve police officers for over one hour. He was eventually put back in the car where the beatings continued until he was thrown out of the moving car somewhere near Karaköy around 1.45 a.m. that same night. The applicant was subsequently taken to the Haydarpaşa Numune Hospital by some friends whom he contacted for help.

The Government disputed the facts as submitted by the applicant. They claimed that he had not even been stopped for an identity check on the relevant night as alleged.

After preliminary examinations at the Emergency Room at the Haydarpaşa Numune Hospital, the applicant was referred to the Siyami Ersek Thoracic and Cardiovascular Surgery Training and Research Hospital (“the Siyami Ersek Hospital”) with suspected chest trauma. At an unspecified time on 27 July 2007 the applicant was examined by a specialist at the Siyami Ersek Hospital, who noted the following injuries on his body: an ecchymosis of 20 x 3 cm on the left arm; an ecchymosis of 10 x 3 cm on the left cervical area behind the left ear; haematoma on the left ear; an ecchymosis of 3 x 1 cm on the left scapula, at the level of the spine of the scapula; a number of ecchymotic patches on the back measuring between 15 x 0.5 cm; an ecchymosis of 5 x 2 cm at the level of the right spine of the scapula; an ecchymosis of 2 x 2 cm on the right arm joint, at the posterior side; an ecchymosis of 10 x 3 cm on the right lateral arm starting from the shoulder level; ecchymotic patches spread over an area of 10 x 5 cm on the corpus sternum; two lesions of 5 cm, located 10 cm below the right patella; and a fracture of the sixth and seventh ribs on the right side.

On 30 July 2007 the applicant lodged a criminal complaint with the Beyoğlu public prosecutor’s office against the police officers who had allegedly assaulted him. The applicant stated in his complaint that he did not remember all the details of the ill-treatment he had received at the hands of the police officers, as he had passed out a number of times on account of the physical trauma and pepper gas he had been subjected to, but he believed that the police car in which he had been kidnapped was a Renault Clio. He added that the police might have targeted him upon finding out during his identity check that he was standing trial for assaulting several police officers and/or that he was the managing editor of a number of well-known opposition publications. The applicant asked the public prosecutor to summon the police officers on duty at the place of the incident on the night of 26 July 2007 for an identification parade and to examine images from the security cameras of the banks and other buildings in the area.

On the same day, the Beyoğlu public prosecutor’s office filed an urgent request with the Haydarpaşa Numune and the Siyami Ersek Hospitals for the submission of the medical reports documenting the injuries sustained by the applicant as a result of the alleged incident.

On 31 July 2007 the Beyoğlu public prosecutor took the applicant’s statement in relation to his complaints; the applicant reiterated his previous allegations. He added that the police officers involved in the incident were between the ages of 20 and 25, that he clearly remembered the face of one of the officers and could identify another one by his distinct accent. The public prosecutor subsequently referred the applicant to the Beyoğlu Branch of the Forensic Medicine Institute for further medical examinations.

In its report dated 31 July 2007 the Forensic Medicine Institute made the following findings: bruising and ecchymosis of 3 x 3 cm, 1 x 1 cm and 2 x 1 cm on the left scapula; scabbed scratches of 1 x 1 cm and 3 x 1 cm on the waist; scabbed scratches of 1 x 1 cm and 2 x 1 cm on the right elbow; ecchymosis on the right and left arms; ecchymosis around the left eye and ear; scabbed scratch on the front side of the right leg; a wide-spread yellowpurple ecchymosis of 15 x 15 x 20 cm at the centre of the left gluteal region; an ecchymosis of 3 x 1 cm on the right gluteal region; and ecchymosis and pain on the right side of the chest. The report noted that the injuries sustained by the applicant could not be treated by simple medical intervention and recommended that a radiologist examine his head and chest scans. There is no information in the case-file as to any further examinations of the head or the chest as suggested.

In the meantime, the applicant’s alleged ill-treatment by the police was covered in a number of national newspapers. In the issue of 29 July 2007 of the daily Radikal, the police authorities were reported as stating that they had no knowledge of the incident but that they would investigate the allegations.

On 29 November 2007 the Beyoğlu public prosecutor requested the Beyoğlu Security Directorate to make available any CCTV footage of the place of the alleged incident from 11.30 p.m. until midnight on the relevant night.

On the same day the Beyoğlu public prosecutor also requested from the Beyoğlu Security Directorate the list of police officers on duty at Taksim Square on 26 and 27 July 2007 between 11.15 p.m. and 1.45 a.m., along with their respective photographs.

Upon the public prosecutor’s request, three police officers, namely S.Ç., M.K. and S.C., were identified as being on duty at Taksim Square at the indicated time. On 5 December 2007 the Beyoğlu Security Directorate informed the Beyoğlu public prosecutor that while the officer S.Ç. had been instructed to report to the prosecutor’s office with a photo, the remaining two officers had changed departments and could not be contacted at their new places of duty.

On 4 January 2008 the Istanbul Security Directorate advised the Beyoğlu public prosecutor that, although a CCTV camera was in place at the place of incident, there was no recording available from the relevant night, as CCTV footage was preserved for only ten days.

On 10 January 2008 the two remaining police officers, namely M.K. and S.C., were successfully notified of the instruction to present themselves at the Beyoğlu public prosecutor’s office.

On 15 February 2008, following S.Ç.’s failure to report, the Beyoğlu public prosecutor summoned him once again to take his statement.

On 14 May 2008 the Beyoğlu public prosecutor requested the Bayrampaşa Branch of the Rapid Response Force to arrange for the applicant to review the photographs of all the officers and their chiefs on duty at the Rapid Response Force for identification of the suspects who had allegedly carried out the assault. A copy of this request was given to the applicant’s lawyer in person. The Government alleged that, despite being aware of the public prosecutor’s instruction, the applicant never applied to the Bayrampaşa Branch of the Rapid Response Force with a view to identifying the suspects.

On 14 May 2008 and 8 February 2009, respectively, the Beyoğlu public prosecutor reissued summons in relation to S.Ç., M.K. and S.C., none of whom had reported to give a statement as ordered.

On 12 February 2009 the Beyoğlu Security Directorate informed the Beyoğlu public prosecutor that the summons of 8 February 2009 could not be notified to S.Ç. as he had since been appointed to the Sarıyer Security Directorate (in Istanbul).

On 24 April 2009 the Beyoğlu Security Directorate notified the Beyoğlu public prosecutor that the officer M.K. had been instructed to report to the prosecutor’s office as requested, but S.C. could not be reached as he had been appointed to the Esenler Security Directorate (in Istanbul). Accordingly, on 28 May 2009, the public prosecutor’s office forwarded the summons in relation to S.C. to the Esenler Security Directorate and also reiterated the request regarding M.K. to the Beyoğlu Security Directorate.

On 9 November 2009 the Beyoğlu public prosecutor issued an order to bring S.Ç., M.K. and S.C. to his office, by force, to give statements.

On 25 December 2009 the Sarıyer Security Directorate advised the Beyoğlu public prosecutor’s office that S.Ç. could not be forcibly brought to the prosecutor’s office as he had been assigned outside Istanbul and was now stationed at the Van Security Directorate, as of 18 June 2009. Accordingly, on 13 January 2010 the Beyoğlu public prosecutor’s office contacted the Van public prosecutor’s office to arrange for the questioning of S.Ç.

In the meantime, on 29 December 2009 the Esenler Security Directorate similarly informed the Beyoğlu public prosecutor that S.C. had been appointed to the Tunceli Security Directorate in the east of Turkey. Accordingly, on 13 January 2010 the Beyoğlu public prosecutor’s office contacted the Tunceli public prosecutor’s office to take S.C.’s statement.

On 16 February 2010 the Van public prosecutor took S.Ç.’s statement. S.Ç. indicated that he had no recollection of an incident from the indicated date and that he could possibly remember more if he were given the incident report or other records from the relevant night.

On 12 May 2010 the Beyoğlu public prosecutor took the statement of M.K., who briefly denied all the allegations against him. He said that as a stationary unit, they could only leave their posts at Taksim Square in response to a call. He also asserted that the police car in their service at the relevant time was a Mercedes Vito.

On 21 May 2010 S.C. reported to the Tunceli public prosecutor’s office to give his statement in connection with the applicant’s complaints. He noted at the outset the considerable amount of time that had lapsed since the alleged incident. He then stated that he had not taken part in any such incident and added that his unit, stationed constantly at Taksim Square, rarely used any vehicles.

On 10 June 2010 the Beyoğlu public prosecutor decided not to bring a prosecution against the police officers S.Ç., M.K. and S.C. in connection with the applicant’s alleged ill-treatment on the night of 26 July 2007. Relying on the statements made by the three officers, the public prosecutor held that there was insufficient evidence or suspicion to proceed with the prosecution of these officers. The applicant did not appeal against the public prosecutor’s decision.

On the same date the Beyoğlu public prosecutor issued a permanent search warrant, in effect until 26 July 2022, which instructed the Beyoğlu Security Directorate to continue its search for the perpetrators and to report to the prosecutor’s office every three months with an update on the investigation.

It appears that the investigation, which is still open, has not yielded any results thus far.


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

The applicant, Mr Bobirzhon Baratovich Tukhtamurodov, is an Uzbek national. He was represented before the Court by Ms E. Davidyan, a lawyer practising in Moscow.

The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

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

The applicant was born in 1975 and lives in Novosibirsk. He is not currently in detention.

On 20 April 2010 the Uzbek authorities charged the applicant with participating in an extremist organisation of a religious nature (Nurchilar) and distributing material containing religious extremist ideas. On 22 April 2010 the Bukharskiy Town Court in Uzbekistan ordered the applicant’s arrest. The Uzbek authorities put the applicant’s name on the international list of wanted individuals. On an unspecified date in January 2010 the applicant fled to Russia, fearing both prosecution and persecution on religious grounds by the Uzbek authorities.

On 18 August 2010 the applicant was arrested in Novosibirsk, Russia in connection with criminal proceedings pending against him in Uzbekistan. He was placed in a temporary detention facility in Novosibirsk.

On 24 September 2010 the applicant requested refugee status in the Russian Federation.

On 25 November 2010 the Deputy Prosecutor General of Russia ordered the applicant’s extradition to Uzbekistan.

On 9 March 2011 the Federal Migration Service (“FMS”) in Novosibirsk denied the applicant’s request for refugee status.

On 23 March 2011 the Novosibirsk Regional Court overturned the Prosecutor General’s decision to extradite the applicant, terminated the extradition proceedings against him and ordered his immediate release from detention.

On 26 May 2011 the Supreme Court of the Russian Federation upheld the judgment of the Novosibirsk Regional Court on appeal. The appeal court held, inter alia, that the Russian Federation may refuse the extradition of an individual if there are serious grounds for believing that the individual would be subjected to torture or other cruel, inhuman and degrading treatment in the country that is requesting extradition. The court also held that the Prosecutor General’s decision to extradite the applicant had lacked sufficient guarantees regarding the applicant’s safety in the event of his extradition to Uzbekistan.

On 2 June 2011 the FMS in Novosibirsk examined a request from the applicant for temporary asylum. It studied in detail the applicant’s allegations concerning torture and ill-treatment whilst in police custody in Uzbekistan, which had been applied in order to force a confession from him. Moreover, the FMS in Novosibirsk also reviewed the applicant’s submissions concerning similar criminal prosecutions of his relatives and neighbours and the ensuing persecution of him after his release from detention. In particular, the applicant contended that two of his relatives and five of his neighbours had been convicted of being members of the extremist religious organisation. In addition, the applicant submitted that the authorities had pressured him to make a written denial ‒ on a weekly basis ‒ of his allegiance to the extremist religious organisation. They also questioned him on the activities of the organisation. When he found out that his brother had been forced to testify against him, he decided to flee to Russia, fearing further repercussions. The FMS in Novosibirsk found the applicant’s allegations substantiated and granted the applicant’s request for temporary asylum. Afterwards, the applicant withdrew his appeal against the earlier decision by the FMS in Novosibirsk not to grant him refugee status.

On 31 May 2012 the FMS in Novosibirsk granted the applicant’s request to have his temporary asylum status renewed for one more year, until 2 June 2013.

In the meantime, the applicant applied for temporary residence status in Russia. However, on 30 April 2013 the FMS in Novosibirsk denied the applicant’s request. Two months later the FMS Russia upheld this decision, citing unspecified security reasons as justification.

On 21 May 2013 the FMS in Novosibirsk refused the applicant’s request for renewal of his temporary asylum status relying ‒ inter alia ‒ on information received from Russia’s Federal Security Service (FSB) stating that the applicant’s presence in Russia had been deemed undesirable. The exact nature of the information remained undisclosed. The applicant appealed to Russia’s FMS concerning the refusal. In his appeal complaint, the applicant reiterated that the reasons behind the staying of his expulsion had not ceased to exist. He also submitted that the information obtained from the FSB had not been made known to him and, in any event, it would not have justified the termination of his temporary asylum status or his expulsion because the law contained no corresponding provision.

On 10 December 2013 the FMS of Russia upheld the decision of the FMS in Novosibirsk. It cited the procedural steps taken in the applicant’s case but did not evaluate his situation and arguments in detail. It also relied mainly on undisclosed information obtained from the FSB and found that no humanitarian grounds existed that would permit renewal of the applicant’s temporary asylum status.

On 24 February 2014 the FMS in Novosibirsk sent a letter to the applicant informing him that he would be deported should he fail to leave the territory of Russia of his own volition.

On 18 March 2014 the Basmanny District Court of Moscow refused the applicant’s request to have his temporary asylum status renewed and upheld the FMS decision issued on 10 December 2013.

On 1 July 2014, following the application of interim measures under Rule 39 by the Court, the Prosecutor of the Novosibirsk Region sought a court order to compel the FMS in Novosibirsk to renew the applicant’s temporary asylum status. No information is available regarding the outcome of these proceedings.

On 28 July 2014 the Moscow City Court heard the applicant’s case on appeal. The outcome of these proceedings remains unclear.

On 9 October 2014 the Government informed the Court that on 4 September 2014 the FMS in Novosibirsk had granted the applicant temporary asylum in Russia until 4 September 2015 on humanitarian grounds.

According to the text of the decision of the FMS in Novosibirsk, the applicant sought temporary asylum in Russia after the European Court of Human Rights had applied interim measures staying his removal in the light of the risk of ill-treatment in Uzbekistan. The FMS in Novosibirsk then noted that dynamic political and social reforms had been taking place in Uzbekistan since 2003. However, it also mentioned the incidents of human rights violations in the country. In particular, it referred to current authoritative human rights reports on ill-treatment of suspects in custody in Uzbekistan. Noting that the applicant remained on the wanted persons list, the FMS in Novosibirsk found that as a suspect, he might indeed be subjected to torture or other cruel, inhuman and degrading treatment in Uzbekistan and therefore granted his request for temporary asylum in Russia.

For a summary of the relevant general provisions of the Refugees Act of Russia (Law no. 4258-I of 19 February 1993), see Kasymakhunov v. Russia, no. 29604/12, §§ 83-86, 14 November 2013.

The Refugees Act (the Act) provides that a person who has been granted temporary asylum status cannot be returned against his will to the country of his nationality or to the country of his former habitual residence (section 12 § 4 of the Act).

The temporary asylum status may be terminated if (i) the circumstances generating eligibility for such temporary asylum cease to exist; (ii) the temporary asylum holder obtains permanent resident status in Russia or becomes a citizen of Russia or of another state; (iii) the temporary asylum holder resettles outside Russia (section 12 § 5 of the Act).

The temporary asylum status may be revoked as a result of (i) the conviction of the temporary asylum holder of a crime committed by him or her in Russia; (ii) the submission by the temporary asylum holder of false information on his or her application for temporary asylum; (iii) the imposition of an administrative sanction on the temporary asylum holder for a drug-related offence (section 12 § 6 of the Act).

The Rules on Temporary Asylum Status (the Rules) enacted by the Government of the Russian Federation in accordance with the Refugees Act (decree No. 274 of 9 April 2004) provide that temporary asylum may be granted for a period of up to one year and may be renewed annually at the request of a person seeking temporary asylum who can also provide reasons for such renewal (section 12 § 1 of the Rules). The request for renewal should be submitted no later than one month prior to the expiry of the person’s current temporary asylum status (section 12 § 2 of the Rules).

Under Article 254 § 1 and Article 255 of the Russian Code of Civil Procedure a person can bring civil judicial proceedings against an official decision which, in his or her opinion, has an adverse effect on his rights and freedoms.


CASE OF STAROKADOMSKIY v. RUSSIA (No. 2)

Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Public hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - award

Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in 1971 and lives in Moscow.

On 31 January 1998 the applicant was arrested on suspicion of murder. On 6 February 1998 he was charged with aggravated murder. Subsequently, the applicant and a number of other individuals (see Salmanov v. Russia, no. 3522/04, 31 July 2008) were accused of other violent crimes. The proceedings in relation to all these offences were joined into one case, which was investigated by a group of investigators from the Moscow prosecutor’s office. The investigation was completed in December 1998.

The applicant studied the case file in June and July 1999 and requested a trial by a jury.

On 19 July 1999 the Moscow city prosecutor approved the indictment and the case was submitted to the City Court for trial. The applicant was committed to stand trial on charges relating to a number of offences including conspiracy to commit murder. Fifteen other co-defendants were committed to stand trial on similar charges.

On 5 August 1999 the City Court noted that the majority of the defendants had opted to exercise their constitutional right to a trial by jury. However, as there were no juries in the City Court, it decided to send an inquiry to the Supreme Court of the Russian Federation as to where the case should be tried. The Supreme Court referred the case to the Moscow Regional Court, where juries were available.

On an unspecified date a judge of the Regional Court sent a request to the Constitutional Court of the Russian Federation, inviting it to rule on the compatibility of the Supreme Court’s interpretation of the jurisdictional rules with the Russian Constitution. On 17 February 2000 she suspended the proceedings pending a decision by the Constitutional Court and held that the defendants were to remain in custody because of the dangerousness of the criminal offences they had been charged with, which were classified as serious or particularly serious.

On 13 April 2000 the Constitutional Court issued a decision to the effect that the decision on the change of venue had been incompatible with the Russian Constitution.

In accordance with that ruling, on 14 June 2000 the Regional Court returned the case file to the Supreme Court, which decided on 6 September 2000 that the City Court was competent to try the case.

On 29 September 2000 the City Court scheduled the first hearing for 13 October 2000 before a bench consisting of a professional judge and two lay judges, but it was adjourned on the day because the presiding judge was sitting in another case.

In 2001 and 2002 the presiding judge was replaced by other judges of the City Court. The lay judges were replaced several times.

On 24 December 2001 the applicant asked the judge for additional time to study the case file. His request was left without reply.

Numerous hearings were scheduled between 2001 and early 2003. They were adjourned for various reasons, mainly because the prosecutor, interpreter and some of the defence lawyers failed to appear, but also because the presiding judge was involved in other proceedings in May and October 2001 and May, September and October 2002.

It appears that consideration of the merits began in March 2003, but hearings scheduled for 4 March and 29 April 2003 were again adjourned, inter alia, because several of the lawyers failed to appear.

On 12 March 2003 the trial judge ordered that the applicant be removed from the courtroom “until the closure of the oral pleadings” for contempt of court during the reading out of the indictment. He was kept away from the hearings that followed on 17 to 19, 24 and 25 March 2003.

The applicant was taken to a hearing on 9 April 2003, where he asked to be provided with a list of people to be called as witnesses at the trial. His request was left without reply.

Hearings scheduled for 26 January and 2 February 2004 were also adjourned. From February 2004 onwards the trial hearings were held in remand centre no. 77/1, where the applicant was being detained. On 11 and 16 February 2004 the trial judge refused to deal with a request from the applicant to be given reasons for the change of venue and a copy of the relevant court order.

On 10 March 2004 the trial judge ordered bailiffs to summons the absent witnesses and victims to a hearing scheduled for 16 March 2004, but not all of them were summonsed. On a number of occasions between March and July 2004 the judge reiterated his request.

On 1 July 2004 the trial bench (presiding judge M. and lay judges O. and L.) extended the defendants’ detention until 1 October 2004.

On 12 August 2004 the court closed the trial and started deliberations.

In October 2004 the governor of remand centre no. 77/1 wrote to the Moscow City Court on several occasions to say that the detention order in respect of the applicant had expired on 1 October 2004, and that a new detention order was required without delay.

On 18 October 2004 the City Court replied that since the trial bench was deliberating, it could not issue decisions concerning the detention of any of the defendants, including the applicant.

On 27 October 2004 the trial bench found the applicant guilty of a number of offences including conspiracy to commit murder, and sentenced him to ten and a half years’ imprisonment. The court held that the time he had spent in detention since 31 January 1998 should be counted towards his sentence.

On 10 November 2004 the court concluded its delivery of the judgment. It appears from its operative part of the judgment (dated 27 October 2004) that the trial bench decided to keep the applicant in detention as a preventive measure until the conviction became final and enforceable.

The applicant and the other defendants lodged an appeal. On 15 November 2005 the Supreme Court upheld the conviction, but reduced the applicant’s sentence to ten years’ imprisonment.

The applicant instituted proceedings under Article 125 of the Code of Criminal Procedure (“the CCrP”), alleging inaction on the part of the governor of the remand centre in failing to release him on 1 October 2004. On 17 January 2005 the Preobrazhenskiy District Court of Moscow dismissed the complaint, holding that the inaction in question could not be made the subject of proceedings under Article 125 of the CCrP. On 5 April 2005 the Moscow City Court set aside that decision and ordered a re-examination of the case, holding that a complaint in respect of a governor of a remand centre could not be processed under Article 125 of the CCrP.

According to the Government, on 14 October 2005 the authorities dismissed the applicant’s complaint and refused to initiate criminal proceedings against the governor of the remand centre for lack of corpus delicti.

In the meantime, in separate proceedings under Article 125 of the CCrP, the applicant argued that the prosecutor responsible for supervising detention facilities had acted unlawfully by failing to deal with the complaint concerning his detention after 1 October 2004. By a judgment of 4 February 2005 the Zamoskvoretskiy District Court of Moscow dismissed his case. On 7 April 2005 the City Court upheld that judgment.

Subsequently, the applicant brought civil proceedings against the remand centre, arguing that its governor had failed to release him on 1 October 2004. By that time, the most recent detention order had expired and thus between 1 October 2004 and the trial judgment there had been no valid order authorising his continued detention pending trial. By a judgment of 12 July 2005, the Preobrazhenskiy District Court of Moscow rejected his claim. On 24 November 2005 the Moscow City Court upheld that judgment.

During a trial the court is empowered to order, vary or cancel a preventive measure in respect of the defendant (Article 255 § 1 of the CCrP). In particular, “the court dealing with the case” is empowered to order extensions of the defendant’s detention (Article 255 § 3). If after the trial judge has started deliberations in the criminal case the term of detention meanwhile expires, it is not against the requirements of the CCrP for another judge of the same court to order an extension of the detention (Appeal Section of the Supreme Court of Russia decision nos. 47-O09-13 of 16 March 2009 and 44-O09-90 of 14 January 2010).

Deliberations take place in the deliberations room (Article 298 § 1), where the trial bench reaches its judgment and decides on the preventive measure (Article 299 § 1). After signing the judgment, the trial bench returns to the courtroom so that the presiding judge can deliver the judgment (Article 310 § 1). If only the introductory and operative parts of the judgment are read out, the court should explain the procedure for becoming acquainted with its full terms (Article 310 § 2).

Section 50 of the Custody Act (Federal Law no. 103-FZ of 15 July 1995) required at the relevant time that the governor of a detention facility should release a detainee upon receipt of an order to this effect. The governor should notify the authority in charge of the case that the authorised period of detention expires within twenty-four hours. If no extension order is received by the time the authorised period of detention expires, the governor must release the detainee.

Article 241 of the CCrP provides that criminal cases should be heard in public. A court may issue an order for a hearing in camera (i) if a public hearing could result in the disclosure of State secrets or other sensitive data; (ii) in cases concerning defendants under sixteen years of age; (iii) if a public hearing could result in the disclosure of information relating to the private life of the trial participants; or (iv) to guarantee the safety of the trial participants or their next of kin.


Violation of Article 2 - Right to life;Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicants were born in 1961 and 1960 respectively and live in Charleroi and Antwerp.

The applicants are the parents of Michael Tekin, who was born in 1978.

The latter was detained in the psychiatric wing of Jamioulx Prison on two occasions, from 1 February 2007 to 11 July 2007 and from 17 May 2008 to 7 July 2008, that is to say for a total period of about seven months. On both occasions he benefited from discharges on probation.

On 19 January 2009 Charleroi Criminal Court, sitting in private session, once again ordered the detention of the applicants’ son under the 9 April 1930 Social Protection in respect of Mental Defectives, Habitual Offenders and Specific Sexual Offenders Act as amended by act of 1 July 1964 (“the Social Protection Act”). During his detention in the psychiatric wing of Jamioulx Prison he was the subject of several disciplinary measures owing to his aggressive attitude to staff and other detainees.

On 3 July 2009 the Jamioulx Prison’s Social Protection Commission (“the CDS”) ordered his discharge on probation and made him subject to medico-social supervision by attaching a number de conditions to his provisional discharge.

By order of 7 August 2009, owing to his non-compliance with his conditions of discharge, the Public Prosecutor with the Charleroi Court of First Instance decided to return the applicants’ son to the psychiatric wing of Jamioulx Prison. Michael Tekin was arrested on that same date and detained for insulting and threatening two police officers.

On his arrival at the police station later the same day, he was examined by a general practitioner before being transferred in the evening to Jamioulx Prison, where he was examined by Dr S., who prescribed a sedative and a sleeping tablet.

The applicants’ son was then placed in an individual cell in an ordinary section of Jamioulx Prison.

The course of events as set out below was established following the judicial investigation and proceedings and is undisputed by the parties.

At around 9.30 a.m. on 8 August 2009 Michael Tekin was presented before the Deputy Director of Jamioulx Prison for his interview as a new arrival. After the interview, the Deputy Director decided to implement special security measures for a week. Those measures were adopted owing to Michael Tekin’s nervous, agitated state and because he considered his detention to be arbitrary and was demanding his release. The following special security measures were ordered: placement in an individual cell, individual access to the prison yard, receiving visits in a booth rather than in the collective visiting area, use of plastic knives and forks, opening of the cell only by heads of section accompanied by two prison officers, accompaniment by a member of staff during the detainee’s movements and implementation of special surveillance involving checks on the cell by a prison officer every fifteen minutes to ensure that nothing abnormal was happening.

Prison officer R., who had accompanied Michael Tekin since his return to prison, was instructed to inform him of those special security measures in his capacity as head of section acting as a prison assistant. He was accompanied by two other officers, L. and D.

On their arrival in the cell at about 11.30 a.m., Michael Tekin was just finishing his lunch. R. read out the special security measures ordered by the Director. According to R. – as confirmed by L. and D. – Michael Tekin provoked him by deliberately sneezing (or “spitting”, according to the Government) on him. When R. told the detainee to stop his provocative behaviour, otherwise he would be moved to an isolation cell, Michael Tekin moved up to him and placed his head so close to R.’s that all three officers thought that they was about to be attacked.

In view of Michael Tekin’s reaction and his previous history, R. decided to place him in an isolation cell. He seized Michael Tekin by the scruff of his neck and D. grabbed his shoulder in order to whisk him out of the cell.

R. explained that owing to the exiguity of the cell, he was unable to maintain his grip on the back of the detainee’s neck and he decided to resort to a different stranglehold technique, which involved an “armlock” around the detainee’s neck, while forcing him down to the ground. When Michael Tekin was face-down on the floor, he was still immobilised in an armlock by R., who was also leaning his full weight on the upper part of his back. Michael Tekin had allegedly then complained that he could not get any air and was suffocating. L. blocked the detainee’s right arm; his left arm was already blocked under L’s body. Finally, D. squatted on top of the detainee.

Reinforcements were called in, and several more officers arrived on the spot. A total of about ten officers were now present. Some of them helped with keeping Michael Tekin under control while others remained passive. Michael Tekin was handcuffed and shackles were placed on his ankles.

He was then lifted to his feet to be transported by two officers, including D., to the isolation cell. The officers’ witness statements diverge on Michael Tekin’s ability to talk and breathe on his way to the cell. However, they all agree that they had to drag him along, supporting him under the shoulders and then carrying him, and that his head was hanging down. The officers noted that he had urinated on himself. They had to carry him down twenty or so steps to reach the isolation cell.

On arrival at the door to the isolation cell, the officers placed Michael Tekin face down on the floor owing to the narrowness of the door, and dragged him inside. Once they were inside the isolation cell they turned him over, only to note that his face was cyanotic.

At about 11.50 a.m. the prison nurse received a telephone call to inform her that Michael Tekin was unconscious. She alerted the duty doctor and prepared the medical equipment.

When the nurse and the duty doctor arrived at the inner security gate of the prison, an officer, who had been a witness to the events, informed them that the “service 100” (the medical emergency service) and the SMUR (emergency ambulance service) had been called at about 11.54 a.m. A transcription of the call is included in the case file.

Pending the arrival of those services, the duty doctor and the prison nurse began a cardiac massage at 12 noon, having noted that Michael Tekin was not breathing and had no pulse.

The “service 100” paramedics arrived at 12.15 p.m. However, they noted that the SMUR had not been contacted, and decided to request its emergency intervention. A “service 100” nurse subsequently stated that they had been called for a straightforward assault and had therefore not been informed of the gravity of the situation.

The SMUR arrived at 12.35 p.m. and Michael Tekin was immediately intubated and put on a drip. However, the doctor could only note that in the absence of electrical activity it was pointless to continue the attempts at resuscitation.

Michael Tekin’s death was recorded at 12.50 p.m.

An inquiry was immediately instigated ex officio. The forensic pathologist instructed by the Public Prosecutor travelled to the scene of the events at 2.20 p.m. on the same day and noted very extensive cyanosis of the face and the neck region, and the presence of food products in the region of the nostrils and mouth.

All the main witnesses were heard on the same day or in the ensuing days.

At his first hearing on 8 August 2009, R. stated the following, as regards the prison officers’ intervention:

“Michael Tekin arrived in prison yesterday in a state of high nervous tension. In fact the police officers accompanying him described him as very dangerous.

On arrival Michael Tekin was very worked up against the police. We took over and he calmed down.

We knew Michael Tekin from his previous detention, and so, for security reasons we placed him in an individual cell in the 9th section, cell no. 9229. According to my information he didn’t cause any trouble during the night.

This morning Michael Tekin went to see Director [H.] for the ‘incomer’s report’, as for every new arrival.

I was present during this interview in the office used for that purpose.

Michael Tekin started shouted about the police officers, calling them disabled and claiming it was their fault he was there.

The Director explained that he had to visit the CDS (the Social Protection Commission). Michael Tekin replied that he did not have to wait around and that he was going to fetch his keys in the cloakroom and leave. When we told him that was impossible, he threatened us with the words ‘you’ll get what’s coming to you’.

Knowing that Michael Tekin had a capricious and unforeseeable character and had already attacked officers in the past, the Director imposed special measures on him such as an individual cell, opening the cell door by several officers, using plastic knives and forks, etc.

He was taken back to his cell by a number of officers, without incident.

Where special measures are ordered, they must be entered in writing and signed by the detainee.

At about 11.45 a.m. I went to his cell accompanied by [L., D. and C.]. Michael Tekin was eating when we went in.

When I explained the measures to him, Michael Tekin got up and pretended to sneeze, spitting some of his dinner (vol-au-vent) in my face. I stepped back. Michael Tekin moved towards me and started sneezing again.

I immediately told him to calm down and to spit somewhere else. He moved towards me again. I told him that if he did not calm down he would be moved to the isolation cell. He came right up to me, with his head against mine, and said ‘I’d like to see you doing that’. I then grabbed him by the neck in order to force him to the ground and take him to the isolation cell. I should point out that I got him in an armlock before pushing him off balance.

My colleagues were holding him by the arms and legs. We called for reinforcements. While I was holding him I spoke to him and he answered ‘I’m choking’. I relaxed my hold and told him that if he could talk he was not choking.

Michael Tekin was gesticulating with his arms and legs. I would specify that I fell to the ground with Michael Tekin and he was on his side. In the end I was no longer holding him around the neck but exerting pressure on his head.

The reinforcements arrived and we managed to handcuff him. We lifted him to his feet in order to take him to the isolation cell. The reinforcements took charge of Michael Tekin, and I started following them up near the rotunda after I’d got my breath back. Michael Tekin was no longer protesting, relaxing to the extent that the officers had to carry him. Arriving at the cell I realised that Michael Tekin was not pretending, as his face was turning blue. We called the infirmary and also the SMUR. Dr [L.] was at the prison, and Tekin was given first aid, including artificial respiration, for at least 15 minutes. He was also defibrillated. I stayed beside the doctor the whole time. The ambulance arrived and I stayed in the cell to help them. When the SMUR arrived I left the cell and waited in the corridor. From what I heard it was already too late. They hadn’t managed to resuscitate him.”

Later on the same day R. was questioned again, and he added the following statement:

“I would point out that during my explanation of the reasons for the [special security] measures I noticed the expression in Michael Tekin’s eyes changing and becoming more threatening, such that I was already on my guard when he got up.

When he was there with his forehead pressed against mine, I moved aside and got him in an armlock, that is I placed my right arm around his neck and fell to the ground with him. You ask me if I exerted pressure on his neck, and I would reply that I did not press on the front of his throat. Once we were on the floor on the corridor side of the cell door I reduced the pressure. When he started to struggle again I exerted a small amount of pressure and slackened it immediately. In any case he was talking to me, as I mentioned in my first statement.

We have not been trained in restraining detainees in critical situations. Following the events at Lantin we were given ‘conflict management training’, learning how to manage a conflict by talking, and especially how to prevent things getting out of hand. My answer to your question is that in the event of an attack by a detainee we just have to do our best to restrain him.”

Officer D. made the following statement:

“We pinned Michael Tekin to the ground. ... I didn’t hear Michael Tekin speaking, but I think he was trying to talk but nothing came out. ... On the way to the isolation cell I didn’t hear him talking or complaining. ... I think he was still alive because several times I felt resistance in his arm.”

Dr B. carried out the autopsy the next day, on 9 August 2009. The autopsy report of 14 August 2009 concluded that the manoeuvres on his neck had caused injuries deep enough to fracture the right upper horn of the thyroid cartilage and that those injuries had been prolonged, because symptoms of asphyxiation had been observed. The report added that the loss of urine reported by the investigators pointed to the moment when the loss of consciousness became so deep as to inhibit the sphincter reflex mechanism. Such an inhibition could be observed, for instance, during the unconscious phases occurring in epileptic episodes. As regards the “armlock” restraint technique, the autopsy report stated:

“During the compression exerted by a forearm (acting as a lever, with the person standing behind the victim), the lethal mechanism is virtually identical to traditional manual strangulation.

Such particularly severe compression causes a bilateral vascular obstruction and a flattening of the upper respiratory channels against the cervical vertebrae.”

An investigation was instigated on 10 August 2009 against persons unknown on charges of grievous bodily harm having led to unintentional death. The applicants applied to join the proceedings as civil parties.

The reconstruction of the events led Dr B., who had carried out the autopsy, to the conclusion that the cervical manoeuvres had been caused by the armlock applied by R., while the weight applied by L. on Michael Tekin’s thorax had had a negative effect on the latter’s respiratory mechanism and been conducive to asphyxia, his respiration being further hindered by the manner in which he had been transported to the isolation cell.

By judgment of 20 March 2012 the Indictments Division of the Mons Court of Appeal committed the three accused, that is to say R., L. and D., for trial before the Charleroi Criminal Court on charges of grievous bodily harm having led to unintentional death.

At the 24 October 2012 hearing before the Charleroi Criminal Court, Dr B. submitted that it was not impossible that the detainee’s fall to the ground had produced the force leading to the fracture of the right upper horn of the thyroid cartilage and that it had been quite possible that the armlock had on its own been sufficient to bring about the fatal outcome. He was, however, unable to affirm that if the strangulation had ceased after the thyroid cartilage had been broken Michael Tekin would have been able to breathe again normally and survive, since the outcome would have depended on the injuries sustained previously. Furthermore, Dr B. took the view that the compression of the thorax and the fact that Tekin had been carried to the isolation cell were not, in themselves, sufficient to have caused his death. Finally, he confirmed that the version of events provided by R. during the reconstruction had been compatible with the medical findings.

On 28 November 2012 the Charleroi Criminal Court acquitted R. The court held that R.’s intervention had indisputably been a matter of self-defence, which ruled out any responsibility on his part. Having regard to Michael Tekin’s personality and his nervous, agitated state, R. could reasonably have feared an imminent serious attack against L. and himself. The accused’s reaction had therefore been absolutely necessary. The court accordingly considered that R. had react proportionately to the attack by applying a hold which he had learnt during training in the management of that kind of incident, and in respect of which nothing in the case file suggested that it had been wrongly executed. Subsequently, the continuation of the armlock had been equally justified and proportional in view of the fact that Michael Tekin had continued to struggle. According to the court, there was no objective evidence to suggest that the accused’s actions had been dangerous, or that R. had used force not strictly necessary for the execution of the restraint technique. There was no indication that R. had known, or should have known, about the risk of fracture of the thyroid cartilage since that risk was not mentioned in the training programmes included in the case file; nor could he have been aware that in maintaining the hold he had been exacerbating the decrease in the oxygenation of Michael Tekin’s blood, particularly since R. had not known what his colleagues were doing. Moreover, the court considered that R. must not have been alarmed by the detainee’s reactions since he had continued to struggle and R. had regularly relaxed his grip to let him breathe. There was no evidence that the accused had noticed any change in the detainee’s voice resulting from the fracture of the thyroid cartilage, nor, in any event, that they could have connected that putative change with any risk to Michael Tekin’s physical integrity.

L. and D. were also acquitted under the rules on co-perpetration.

Moreover, the Criminal Court relinquished jurisdiction for determining the applications for civil-party status owing to the accused’s acquittal.

The applicants, as civil parties, appealed against the judgment as regards its civil-law provisions. The prosecution did not follow suit. The appeal has been pending before the Mons Court of Appeal since December 2012. The Government submitted that the applicants had not requested notification of the hearing such as to facilitate adjudication of the civil-law interests.

On 28 July 2014 the applicants lodged a criminal complaint, together with an application to join the proceedings as civil parties, against the three acquitted prison officers and three of their colleagues for failure to assist a person in danger.

On 9 May 2016 the Charleroi Court of First Instance, sitting in private session, declared inadmissible the application to join the proceedings as civil parties to the extent that it concerned the three prison officers acquitted by judgment of the Criminal Court on 28 November 2012 on the grounds that the facts were identical to those of the first set of criminal proceedings, and gave a discontinuance decision in respect of the other three accused on the grounds that the investigation had not uncovered sufficient evidence against them.

On 1 August 2014 the applicants further filed an action for damages before the Brussels Court of First Instance seeking a finding that the Belgian State had been responsible for Michael Tekin’s death and for the suffering which he had sustained owing to his placement in an ordinary cell instead of in the psychiatric wing of the Jamioulx Prison.

By judgment of 19 February 2016 the Brussels Court of First Instance declared the claim inadmissible as being time-barred.

Furthermore, the Government submitted that the applicants had complained about the same facts in Turkey, Michael Tekin’s country of origin, and that that complaint had given rise to letters rogatory addressed to the Belgian Public Prosecutor’s Office by the Turkish public prosecutor of the town of Sivas. On 6 May 2015 the Belgian authorities had allegedly sent a scanned copy of the criminal case file to the Turkish judicial authorities.

The applicants, however, denied ever having brought proceedings in Turkey.


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

Aleš Pejchal;Armen Harutyunyan;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano

The applicant was born in 1941 and lives in Yerevan.

A third person, G., owned a plot of land, a part of which, with her consent, was separated by a fence and used by another person, J.

On 21 April 1998 G. concluded an agreement with J., according to which she gave a part of her plot of land, measuring 285 sq. m., to him. It appears that the plot of land actually used by J., as separated by the fence, was 38.75 sq. m. bigger than the 285 sq. m. plot given by G. The 38.75 sq. m. also belonged to G. In this connection, another agreement was reached between G. and J., according to which G. gave her consent for J. to become the owner of the whole plot of land used by him. However, it appears that J.’s ownership rights were officially registered only in respect of the plot of land measuring 285 sq. m.

On 28 April 1998 the applicant bought the larger plot of land from J. and, since the fence was still in place, continued to use also the 38.75 sq. m. strip of land.

In 2004 G. instituted proceedings against the applicant, seeking to take the 38.75 sq. m. strip of land used by the applicant, claiming her ownership rights.

On 14 December 2006 the Erebuni and Nubarashen District Court of Yerevan granted the claim, ordering the applicant to release the strip of land to G.

On an unspecified date the applicant lodged an appeal.

On 9 March 2007 the Civil Court of Appeal granted the appeal and dismissed G.’s claim. In particular, the Court of Appeal found that since G. had agreed that J. become the owner of the plot of land used by him, as separated by the fence, she had relinquished her rights in respect of the strip of land in favour of J. and, consequently, in favour of the applicant.

This judgment was subject to appeal on points of law within six months from the date of its delivery.

On 26 March 2007 G. lodged an appeal on points of law against the judgment of 9 March 2007 with the Court of Cassation, claiming that it had been adopted in violation of substantive and procedural law. As a ground for admitting her appeal on points of law, G. submitted, pursuant to Article 231.2 § 1 (3) of the Code of Civil Procedure (the CCP), that the violations of the substantive and procedural law might have grave consequences, such as deprivation of her ownership rights in respect of the plot of land.

On 7 April 2007 amendments were introduced to the CCP which stipulated that there was no right to bring an appeal on points of law more than once, unless the Court of Cassation – when returning an appeal – fixed a time-limit to correct and re-submit it (see paragraph 26 below).

On 12 April 2007 the Court of Cassation decided to return G.’s appeal as inadmissible for lack of merit. The reasons provided were as follows:

“The Civil Chamber of the Court of Cassation ... having examined the question of admitting [G.’s appeal lodged against the judgment of the Civil Court of Appeal of 9 March 2007], found that it must be returned for the following reasons:

Pursuant to Article 230 § 1 (4.1) of [the CCP] an appeal on points of law must contain any of the grounds [required by] Article 231.2 § 1 of [the CCP].

At the same time, the Court of Cassation does not find it appropriate to fix a timelimit for correcting the shortcomings and lodging the appeal anew.”

This decision entered into force from the moment of its delivery and was not subject to appeal.

On 7 September 2007 G. lodged another appeal on points of law with the Court of Cassation against the judgment of the Court of Appeal of 9 March 2007, alleging violations of substantive and procedural law. As a ground for admitting her appeal G. indicated, in addition to the ground mentioned in her appeal of 26 March 2007, that the judicial act to be adopted by the Court of Cassation on her case might have a significant impact on the uniform application of the law, and that the contested judgment of the Court of Appeal contradicted a judicial act previously adopted by the Court of Cassation.

On 1 October 2007 the Court of Cassation decided to admit the appeal for examination. The reasons provided were as follows:

“[The appeal] must be admitted for examination since it satisfies the requirements of Articles 230 and 231.2 § 1 of [the CCP].”

On 8 October 2007 the applicant lodged a reply to G.’s appeal with the Court of Cassation where, inter alia, he stated that the admission of G.’s second appeal by the Court of Cassation was in violation of the principle of res judicata and his property rights. When the Court of Cassation, by its decision of 12 April 2007, had returned G.’s appeal without fixing a timelimit to correct any shortcomings and to re-submit the appeal, the judgment of the Court of Appeal of 9 March 2007 became final and binding.

On 12 December 2007 the Court of Cassation examined G.’s appeal on the merits and decided to grant it partially by quashing the judgment of the Court of Appeal of 9 March 2007 in its part related to G.’s property claim in respect of the plot of land and remitting the case for a fresh examination. The Court of Cassation found that the Civil Court of Appeal, when reaching its conclusions, had failed to take into account an expert opinion which was among the materials of the case file, as well as to indicate the provisions of the domestic law on which its judgment had been based.

On 1 April 2008 the General Jurisdiction Court of Erebuni and Nubarashen Districts of Yerevan conducted a fresh examination of G.’s claim and granted it by recognising G.’s ownership rights in respect of the strip of land in question.

On 10 July 2008 the Civil Court of Appeal dismissed the applicant’s appeal and upheld the judgment of the District Court.