REPRESENTATION OF THE UNION OF COUNCILS FOR JEWS IN THE FORMER SOVIET UNION AND UNION OF JEWISH RELIGIOUS ORGANISATIONS OF UKRAINE v. UKRAINE

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

The applicants are the Representation of the Union of Councils for Jews in the Former Soviet Union (“the first applicant organisation”) and the Union of Jewish Religious Organisations of Ukraine (“the second applicant organisation”). According to the applicants, the first applicant was established in 2000 "with the purpose of representation of the interest of the Union of American Councils for Jews in the Former Soviet Union and for monitoring the situation regarding observance of human rights, facilitation of harmonisation of interethnic and inter-religious relations". The second applicant "is a religious organisation" aimed at "assistance to Jewish religious organisations in the protection of religious and other human rights". They were represented before the Court by Mr M. Sheykhet.

The applicant organisations alleged that several ancient Jewish cemeteries on the territory of Ukraine were in a state of neglect, in breach of a bilateral agreement of 4 March 1997 between the United States of America and Ukraine “on the protection and preservation of cultural heritage” and of the Ukrainian laws on cultural heritage. The applicant organisations instituted numerous proceedings requesting the courts to reestablish the boundaries of those cemeteries and to ban all construction on the land concerned.

By a letter of 16 November 1998 the Volyn Region Natural History Museum informed the Head of the Volodymyr-Volynskyy Town Council that in October 1997 the foundations of an ancient building near the Kosmos cinema had been examined. It was established that these were the vestiges of an 18th-19th century construction over the tomb of a prominent rabbi.

In May 1999 the first applicant organisation asked the Head of the Volodymyr-Volynskyy Town Council to prohibit any common use of the land on which the former Jewish cemetery was situated and to forbid the privatisation of any buildings that already existed on that territory. It proposed that the Jewish community would maintain the land and would not carry out any new burials on the site.

In reply, the town council informed the Chief Rabbi of Ukraine that it was favourable to the above proposal. It noted, however, that there were buildings on the territory of the former Jewish cemetery, as well as some unfinished constructions. It was also noted that the council had informed the first applicant organisation’s representative about the existing problems and proposals, but that no compromise had been reached.

The photographs and maps submitted to the Court by the applicant organisations show that there is a park and some constructions on the land in question (garages, a block of flats, an unfinished multi-storey construction, a cinema, a playground, a sports ground and a school).

According to the information submitted by the applicant organisations, the last burial at the cemetery took place in 1939. There are around twenty tombstones within the cemetery; the majority of them are not in their original places. The tombstones, however, are not visible on the photographs submitted.

On 8 April 2002 the Volyn Regional Commercial Court allowed the applicant organisations’ claim against the Volodymyr-Volynskyy Town Council to have the historic boundaries of the Jewish cemetery reestablished as they existed before the Second World War in the town of Volodymyr-Volynskyy.

On 5 June 2002 the Lviv Commercial Court of Appeal amended that decision. The court held that the applicant organisations had requested only the establishment of the cemetery’s historical boundaries and therefore the boundaries of the cemetery that existed at the time of the German occupation during the Second World War should be determined in accordance with the relevant technical documentation. There is no information about the enforcement of that decision.

Following a complaint lodged by the applicant organisations against the Volodymyr-Volynskyy Town Council, on 17 December 2002 the Lviv Commercial Court of Appeal banned all construction within the historic boundaries of the ancient Jewish cemetery.

On 13 February 2003 the bailiffs’ service terminated the enforcement proceedings in this case, since the town council had informed it that there was no construction on the site. On 29 October 2003 the Lviv Commercial Court of Appeal quashed that decision. On 10 January 2004 the same court informed the bailiffs’ service that the decision of 17 December 2002 should be understood as banning all construction works by the council. The council was also not allowed to issue any construction permits. It appears that in 2004 the enforcement proceedings were again terminated. The applicant organisations challenged the termination decision in the court. This Court has not been given any further information about the developments in these proceedings, despite an explicit request to that effect,

The applicant organisations also challenged in the courts a decision of 1974 to adopt a general construction plan for Volodymyr-Volynskyy and a decision taken in 1986 to construct an administrative building for the communist party on a certain plot of land. The courts rejected those claims as time-barred.

It appears from the documents submitted by the applicant organisations that they also instituted other court proceedings. However, it is impossible to establish, on the basis of the materials in the file, the subject matter of those proceedings. For example, the applicant organisations challenged a decision of the executive committee of the Volodymyr-Volynskyy Town Council of 17 August 2001. It appears from the decision of 1 December 2003 of the Lviv Commercial Court of Appeal that by a decision of 7 August 2003, the Volyn Regional Commercial Court had left the applicant organisations’ claim unexamined. The applicant organisations did not provide any further details about those proceedings (the subject matter of the council’s decision, the reasons for leaving the claim without consideration, and whether they appealed against the decision of 1 December 2003).

It follows from a letter of 13 December 2004 submitted by the applicant organisations to the Minister of Justice, the Supreme Court of Ukraine and to other State bodies that at least eight sets of court proceedings were instituted by the applicant organisations in respect of the cemetery in Volodymyr-Volynskyy. The applicant organisations stated that at the end of 2004, six of those sets of proceedings were still pending.

In particular, on 25 May 2005 the Volyn Regional Commercial Court terminated the proceedings in which the applicant organisations were seeking the cancellation of the Volodymyr-Volynskyy Town Council’s decision on the reconstruction of a certain building. The court held that the building had already been reconstructed and that fifty-two people had bought apartments in it. The court further held that it was not competent to examine such claims. There is no information as to whether that decision was appealed against.

On 24 May 2006 the Higher Commercial Court of Ukraine upheld the lower courts’ decisions that the applicant organisations’ claim, by which they had challenged the contract between the town council and a private party for the sale of an unfinished building, was not within the jurisdiction of the commercial courts.

By a final decision of 24 January 2007 the Higher Administrative Court of Ukraine upheld the lower courts’ decisions to reject the applicant organisations’ claim to have the historic boundaries of the Jewish part of Yanovskyy cemetery in Lviv re-established. The courts held that the documents submitted by the applicant organisations (including 19th century land-sale contracts and archive maps) could not serve as a legal basis for establishing the historic boundaries of the cemetery with a view to its further preservation, since streets and buildings were now situated on part of the land.

The applicant organisations did not submit a copy of their claim, copies of the appeals lodged by them or a copy of the first-instance court decision taken in those proceedings.

By a final decision of 6 March 2007 the Higher Administrative Court of Ukraine upheld the lower courts’ decisions rejecting a request lodged by the applicant organisations to re-establish the historic boundaries of the ancient Jewish cemetery in Lviv. The applicant organisations claimed that before the 1950s there had been a cemetery on a plot of land indicated by them. The court held that there were no tombstones on the land indicated by the applicant organisations.

The applicant organisations did not submit copies of their claims or of the appeals lodged by them within those proceedings.

By a final decision of 14 February 2007 the Higher Administrative Court of Ukraine refused to consider the applicant organisations’ appeal in cassation against the lower courts’ refusals to re-establish the historic boundaries of the Jewish cemetery in the town of Drogobych. The court held that as the case had been considered by the lower courts under the commercial-law procedure, the Higher Administrative Court had no jurisdiction to examine the applicant organisations’ appeal in cassation.

Apart from a copy of that decision, the applicant organisations submitted only a copy of a decision of the Lviv Commercial Court of Appeal. Copies of all other documents (claims, appeal, and court decisions) are missing.

By a final decision of 11 May 2010 the Higher Commercial Court of Ukraine upheld the lower courts’ decisions rejecting as unsubstantiated the applicant organisations’ claim against the failure of Kolomyya Town Council and two companies to ban any construction and to order the land boundary survey to re-establish the historic boundaries of the Jewish cemetery in the town of Kolomyya. In particular, the applicant organisations had complained that a petrol filling station had been constructed on land on which a cemetery had been situated.

The courts found that in 1997 the executive committee of a local council had issued permission for a mobile gas station to be installed on the land in question. An expert examination held in 2005 established that it was impossible to conclude whether the land in question was part of an ancient Jewish cemetery. In 2007 the same body allowed a private company, B., to build a permanent gas station on that plot, which the company did. The applicant organisations did not ask to be given the land in question.

The Higher Commercial Court noted that the applicant organisations had failed to substantiate in which way their rights had been breached and the legal basis for their claims. Moreover, it noted that the court decisions could not be based on “religious norms of Judaism”.

The applicant organisations did not submit copies of the claims and appeals which they had lodged in that case.


Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life)

Erik Møse;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicant was born in 1961 and lives in Blumau.

The applicant and his former partner, S.O., have two children, born out of wedlock in 2002 and 2004 respectively. S.O. always had sole custody of the children as the parents never agreed to have joint custody. The applicant and S.O. never cohabited on a permanent basis. The children lived with their mother during the week. At weekends, the whole family usually stayed at the applicant’s house.

In April 2008 S.O. and the applicant separated and the children remained with their mother.

On 27 June 2008 the applicant lodged an application with the Vienna Inner City District Court (Bezirksgericht Innere Stadt; hereinafter, “the District Court”) to transfer sole custody to him, or to grant him joint custody together with S.O. Furthermore he applied for an interim measure concerning his visiting rights, as he had not seen his children since 20 April 2008.

On 8 October 2008 the parents agreed that the applicant would be able to see his children every second Monday from 2.30 pm or 3 pm until 6 pm and every second Saturday from 10 am until 6 pm.

On the same day the applicant applied for an extension of his visiting rights to the whole weekend.

After five visits from the applicant in October and November 2008, S.O. unilaterally stopped further visits, claiming that these had a negative influence on the children. Between November 2008 and Easter 2009, on his own initiative, the applicant secretly went to see his children at their school and kindergarten a few times.

The Vienna Juvenile Court Assistance Office (Jugendgerichtshilfe) submitted its statement on 10 March 2009 and recommended maintaining sole custody for the mother and visiting rights for the applicant according to the agreement the parents had concluded on 8 October 2008.

On 6 April 2009 the District Court decided to grant the applicant visiting rights on every second Saturday from 8 am until 7 pm. It dismissed the applicant’s application for sole custody.

In its reasoning the court held that the children were well cared for by their mother. According to Article 176 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) as in force at the relevant time, a transfer of custody was only possible if the children’s best interest was at risk. In the present case the court found no such risk and the applicant actually had not claimed such a risk. The court further held that the visiting rights were decided in accordance with the parents’ mutual agreement.

The applicant appealed on 14 April 2009 and argued in essence that he was discriminated against, compared to the mother. Also, he complained that the court had not decided on the question of whether the parents could be awarded joint custody.

According to the applicant’s submissions, his visiting rights were resumed on 24 April 2009 in the amount determined by the District Court (see paragraph 13 above).

On 28 July 2009 the Vienna Regional Court (Landesgericht) dismissed the applicant’s appeal as unfounded. It confirmed the reasoning of the District Court and held that there was no indication of a risk to the children’s best interest if the mother maintained sole custody. It further held that there was no provision in law ordering a preference for granting one of the parents sole custody. The court also found that the parents had not mutually agreed on joint custody, therefore no further issues arose in this connection.

The applicant lodged an extraordinary appeal with the Supreme Court (Oberster Gerichtshof) on 10 November 2009, again claiming that he was discriminated against compared to the mother and that the decision of the lower instances violated his rights under Article 8 of the Convention.

On 1 September 2010 the Supreme Court rejected the applicant’s extraordinary appeal for lack of an important issue of law.

After the amendment of the Civil Code (see paragraph 22 below), the applicant on 5 February 2013 again applied for joint custody, or sole custody in the alternative. Shortly after, S.O. moved with the children to the south of Austria, about 400 kilometers from Vienna. The applicant’s requests for sole or shared custody were finally dismissed by the Supreme Court on 7 May 2014.


Alena Poláčková;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

Mr Abdulazhon Mamadzhanovich Isakov was born in 1963 and lived, prior to his disappearance, in Tyumen. He is a stateless person. The application in his name was submitted to the Court by Ms N. Yermolayeva, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.

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

In 1989 Mr Isakov moved from Uzbekistan to the Tyumen Region in Russia.

In 1998 the Uzbek authorities opened a criminal case against Mr Isakov on charges of attempting to overthrow the State’s constitutional order in Uzbekistan and put his name on the wanted persons’ list.

On 6 March 2008 Mr Isakov was arrested in Tyumen, Russia, and remanded in custody with a view to extradition.

On 12 August 2008 the Russian Prosecutor General’s office decided to extradite Mr Isakov to Uzbekistan. The domestic courts at two levels of jurisdiction upheld the extradition order. A final decision on the matter was taken by the Supreme Court of the Russian Federation on 22 December 2008.

On 21 March 2008 Mr Isakov lodged an application with the Court in which he complained about his detention in Russia with a view to extradition to Uzbekistan where he faced politically-based persecution by the local authorities. On 30 September 2008 Mr Isakov signed an authority form authorising several lawyers, including Ms Yermolayeva, to represent him in the proceedings before the Court.

On 10 November 2008 the Court granted Mr Isakov’s request for the application of interim measures under Rule 39 of the Rules of the Court and indicated to the Russian Government that he should not be extradited to Uzbekistan until further notice. On the same date the application was communicated to the Government which were requested to submit observations concerning the risk of ill-treatment if the extradition order in respect of Mr Isakov were enforced, lawfulness and review of his detention in Russia and alleged lack of effective remedies in this respect. The parties’ observations were received on 28 July and 2 October 2009 respectively. The Government complied with the Court’s request as to the application of interim measures and submission of observations.

On 5 March 2010 Mr Isakov was released from custody and on 17 March 2010 he was granted temporary asylum in Russia.

On 8 July 2010 the Court delivered a judgment in Mr Isakov’s case (see Abdulazhon Isakov v. Russia, no. 14049/08, 8 July 2010) where it found, inter alia, that in the event of the extradition order against Mr Isakov being enforced, there would be a violation of Article 3 of the Convention.

On 1 June 2011 the Presidium of the Supreme Court quashed the decision of 12 August 2008 and the ensuing judicial decisions, including the Supreme Court’s decision of 22 December 2008 (see paragraph 6 above).

Mr Isakov and his family (wife and children) continued to reside in Tyumen, Russia.

On 3 February 2012 the Government informed the Committee of Ministers of the individual measures taken within the framework of the execution of the judgment in Mr Isakov’s case. In particular, the Government reported that (1) the judgment had been enforced as regards the payment of non-pecuniary damage and reimbursement of costs and expenses and (2) the extradition-related judicial decisions had been quashed.

In September 2013, within the framework of the supervision of the execution of a number of judgments against Russia relating to disappearances and/or forcible transfers and also repeated allegations of such incidents, the Committee adopted an Interim Resolution (CM/ResDh(2013)200) exhorting the Russian authorities to develop without further delay an appropriate mechanism tasked with both preventive and protective functions to ensure that applicants belonging to the risk group benefit from immediate and effective protection against unlawful or irregular removal from the Russian territory.

In the night of 21-22 July 2014 Mr Isakov’s car was found damaged on the road and Mr Isakov had disappeared. His family’s attempts to establish his whereabouts were to no avail.

On 22 July 2014 A.M., Mr Isakov’s nephew, reported Mr Isakov’s disappearance to the regional department of the interior. Mr Isakov’s family retained counsel Kh. to represent them in connection with the investigation into Mr Isakov’s disappearance.

On 23 July 2014 the Court granted a request lodged by Ms Yermolayeva, under Rule 39 of the Rules of the Court, and indicated to the Government that Mr Isakov should not be extradited, expelled or otherwise involuntarily removed from Russia to Uzbekistan or another country for the duration of the proceedings before the Court. The Government were also requested to furnish any information about Mr Isakov’s whereabouts and possible arrest and detention in Russia and/or removal to Uzbekistan. The application was also granted priority under Rule 41 of the Rules of the Court.

On 6 August 2014 the Government reported that the investigation into Mr Isakov’s disappearance was pending and that his whereabouts were unknown to the authorities.

On the same date, relying on the authority form issued by Mr Isakov in 2008, Ms Yermolayeva lodged an application in Mr Isakov’s name. She alleged that Mr Isakov had been abducted by Russian state agents and forcefully removed to Uzbekistan where he would be subjected to treatment contrary to Article 3 of the Convention. Referring to Article 34 of the Convention, she argued that the Government had failed to comply with the Court’s indication made under Rule 39 of the Rules of the Court.

On 25 August 2014 the senior investigator with the regional investigative committee opened criminal investigation into Mr Isakov’s disappearance.

On 4 September 2014 the senior investigator in charge of Mr Isakov’s disappearance questioned Kh.I., Mr Isakov’s brother. Kh.I. submitted that, according to his older sister who lived in Uzbekistan, Mr Isakov was allegedly in Tashkent, Uzbekistan.

On 12 September 2014 the President of the Section gave notice of the application to the Government and invited the latter to submit written observations on the admissibility and merits of the case.

On 24 October 2014 the senior investigator in charge of Mr Isakov’s disappearance questioned Z.I., Mr Isakov’s son.

On 29 October 2014 the Government submitted the observations.

On 8 January 2015 Ms Yermolayeva submitted the observations on the matter maintaining the complaints on Mr Isakov’s behalf and claims for just satisfaction.

On 12 February 2015 the Government provided comments on the claims for just satisfaction and further observations.

On 15 April 2015 the President of the Section invited the parties, under Rule 54 § 2 (c) of the Rules of the Court, to submit further observations on the admissibility and merits of the case. The parties were to comment as to whether the application was compatible ratione personae with the provisions of the Convention and the Government’s failure to submit a complete investigation file concerning Mr Isakov’s alleged abduction and disappearance.

On 31 May and 1 June 2015 Ms Yermolayeva and the Government respectively submitted further observations (see paragraphs 34-35 below).

Mr Isakov’s whereabouts remain unknown to date.

In its decisions adopted at 1214th and 1230th meetings (December 2014 and June 2015), the Committee of Ministers, responding to the situation concerning disappearances and/or forcible transfers, noted that the Russian authorities adopted a number of awareness-raising measures and instructions. Nevertheless, the Committee of Ministers considered that these measures were insufficient and invited the authorities to adopt special protective measures in respect of the applicants who were exposed to such risks and underlined the need for special measures to ensure rapid and effective investigations into such incidents.

On 2-4 December 2014 (CM/Del/Dec(2014)1214E/05 December 2014) at its 1214th meeting (DH), the Committee of Ministers noted as follows, as regards Mr Isakov’s situation:

“As to the investigation of the alleged abductions of Messrs Abdulazhon Isakov and Mukhitdinov reported in July 2014, criminal cases have been opened. No evidence has thus far been obtained regarding the removal of Mr Abdulazhon Isakov from the territory of the Russian Federation. The Russian authorities also insisted that the Committee of Ministers was not competent to supervise this issue as it was already being examined in the adversarial proceedings before the European Court.

As regards the Russian authorities’ comments with respect to the Committee’s competence to supervise the investigations into the recent alleged abductions of Messrs Abdulazhon Isakov and Mukhitdinov, the following factors have to be taken into account. As regards the first case, there already exists a final Court judgment establishing a violation, granting the Committee full competence to look into both individual and general measures, irrespective of any new application made on behalf of the same person to the Court. Such situations are frequent and have never led the Committee to exempt the State concerned from its obligation to keep the Committee informed of the developments. As regards the second case, while it is true that there is no final judgment at the moment, the case is relevant for execution purposes as an example, among others, of the development of the situation and the efficiency of the general measures adopted (see e.g. the Court’s indication in the Savriddin Dzhurayev judgment (§263).”


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

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

The applicants complained of the non-enforcement or delayed enforcement of domestic decisions and of the lack of any effective remedy in domestic law. The applicant in application no. 20857/05 also raised other complaints under the provisions of the Convention.


Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque

The applicant, Mr Dorin Mircea Giurgiu, was a Romanian national who was born in 1955 and lived in Urziceni. He was represented before the Court by Mr V. Gafiuc, a lawyer practising in Urziceni. The applicant died on 16 December 2009. His daughter, Ms Dora Samira Giurgiu, born in 1983, applied to pursue the application before the Court in his name and retained the same lawyer to represent her.

The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs.

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

On 18 December 2000 the Sibiu Police Department opened criminal proceedings against the applicant and two co-accused for fraud and aiding and abetting fraud.

5ne-am adunat pentru a trage țepe, dar nu am gandit-o de o aşa mare amploare).

On the same date the applicant was taken into police custody for twenty-four hours. He was released the following day.

On 28 December 2000 the applicant complained to the Sibiu Prosecutor’s Office about the Sibiu Police Department’s action in seizing several items of movable property used by him on the day of his placement in police custody.

On 23 August 2001, following an inquiry conducted by the Sibiu Police Department, the Romanian Ministry of Justice informed the aforementioned police department that the applicant was not being held in any detention facility.

On 10 September 2001 the Sibiu Police Department verified the applicant’s identity data and registered address with the Agency for Computerised Records of Individuals (Direcția Generală de Evidență Informatizată a Persoanei). In a report produced on the same date the Sibiu Police Department noted that, according to the available information, the applicant’s registered address was that of his domicile and that a search warrant had been issued in the applicant’s name on 30 May 2001 by the Ialomița Police Department because it (the Ialomița Police Department) had initiated an investigation against the applicant for fraud.

According to a police report produced on 21 November 2001, the Sibiu Police Department contacted the Sânnicolau Mare Police Department and asked them to find and summons the applicant to appear before the Sibiu Prosecutor’s Office so that he could be served with the prosecution material. In reply, the Sânnicolau Mare Police Department informed the Sibiu Police Department that for the past year the applicant had not been living in his former domicile and that the Ialomița Police Department had issued a search warrant in his name. Several other police departments had also been searching for the applicant in connection with a number of financial offences.

On 7 December 2001 the Sibiu Prosecutor’s Office indicted both the applicant − in his absence − and the two co-accused and sent their case for trial on the basis of documentary and testimonial evidence and their statements. In the act of indictment the Prosecutor’s Office noted that the applicant and his co-accused had been questioned on 18 December 2000 but that it had subsequently been impossible to serve the applicant with the prosecution material because he had absconded.

The applicant did not attend any of the hearings held before the firstinstance court.

During the hearings of 20 February and 20 March 2002 the Sibiu District Court allowed the Sibiu Prosecutor Office’s request that the Department of Prisons be asked if the applicant was being detained in any prison facility in the country. Moreover, it adjourned the proceedings to 20 March and 10 April 2002, respectively, and ordered that a summons for the applicant to appear before the court be served both by delivery to his domicile and by publicly posting it in the Sibiu Local Council building. The applicant’s registered address, as provided by the court, was incomplete.

According to summons reports produced by a bailiff on 7 and 28 March 2002, the court summonses of 20 February and 20 March 2002 were both publicly posted in the Sibiu Local Council building.

According to summons reports produced by a bailiff on 8 and 28 March 2002, summonses were served on 20 February and 20 March at the registered address provided by the court. The bailiff found the applicant’s mother at the aforementioned address, but she refused to accept the summonses. Although the applicant had apparently changed his address, the bailiff had been unable to find out his new address from her.

On 15 March 2002 the Sibiu Mayor’s Office informed the Sibiu District Court that they had removed the summons posted by the bailiff in the Sibiu Local Council building on 7 March 2002 (see paragraph 16 above).

During the hearing of 13 November 2002 before the Sibiu District Court, the applicant was represented by Mr F., a publicly appointed legal representative. His co-defendants were also assisted by a publicly appointed legal representative, namely Mr M. The applicant’s lawyer did not ask the court to admit any evidence in his favour and agreed that the court could dispense with the questioning of a witness who could not be brought before the court because he was no longer living at his registered address. Moreover, he submitted to the court that the facts had been proved and that one of the applicant’s co-defendants, namely V., had partly admitted to having committed the offence. Consequently, the applicant could be convicted for being an accessory to fraud but Mr F. urged the court to take into account the extenuating circumstances in his favour when imposing the applicant’s sentence.

On the same date the Sibiu District Court convicted the applicant for aiding and abetting fraud and sentenced him to four years’ imprisonment. In addition, it ordered the applicant and his co-defendants to pay jointly to a third party compensation amounting to 114,757,865 Romanian lei (ROL) (approximately 3,132 euros (EUR)) in respect of pecuniary damage.

The Sibiu Prosecutor’s Office and the applicant’s co-defendants lodged an appeal against the judgment with the Sibiu County Court.

The applicant did not attend any of the hearings before the secondinstance court.

On 11 February 2004, during a hearing before the Sibiu County Court, the applicant and one of his co-defendants, namely V., were represented by the same publicly appointed legal representative, namely Mr C. The latter did not submit any arguments to the court on the applicant’s behalf and left his conviction and sentence to the court’s discretion.

On the same date the Sibiu County Court allowed the appeals lodged by the Sibiu Prosecutor’s Office and by the applicant’s co-defendants on the grounds that the first-instance court had miscalculated V.’s sentence. It quashed the first-instance judgment and ordered a re-trial.

During the re-trail at first-instance the applicant had been represented by the same publicly appointed legal representative as V. and did not attend any of the hearings held by the first-instance court.

26’s conviction and sentencing to the court’s discretion.

Between 13 May and 31 August 2004 the Sibiu District Court issued three “warrants to appear” in the applicant’s name. According to enforcement reports produced by bailiffs on 13 May, 15 June and 31 August 2004, the applicant’s neighbours stated that he had not been living at the address registered as his domicile for four or five years. Moreover, the applicant’s mother had sold the apartment a year earlier and no one had been able to provide information about her new address.

Between 23 September 2004 and 27 March 2005 the Sibiu District Court issued three search warrants in the applicant’s name. According to enforcement reports produced by bailiffs on 23 September and 20 October 2004 and 27 March 2005, neither the applicant nor his mother was still living at the address registered as his domicile. They had sold the apartment and left town. Neither the neighbours nor the persons who had purchased the apartment from the applicant’s mother had known where they could be contacted. Moreover, several warrants to appear had been issued in the applicant’s name by different district courts in the country following numerous proceedings that had been instituted against him.

On 26 October and 5 November 2004 and 24 March 2005, following inquiries by the first-instance court, the National Agency for Persons’ Records (Inspectoratul Național pentru Evidența Persoanelor) informed it that their records showed the applicant’s known address to be his registered address. Moreover, the applicant had never notified the relevant authorities of any change of address.

During the hearing of 4 May 2005 the Sibiu District Court noted that, according to information submitted by the Bucharest Department of Prisons following an inquiry from the court, the applicant was detained in Timişoara Prison. Consequently, it adjourned the proceedings until 18 May 2005 and ordered that a summons be served on the applicant in that prison. It also ordered the applicant’s transfer to Aiud Prison and asked the Romanian Ministry of Justice to assist with the transfer. Lastly, it ordered that a summons also be served on him in Aiud Prison.

During hearings on 18 May, and on 8 and 29 June 2005, the Sibiu District Court noted the applicant’s absence from the hearings and the fact that he had not been transferred from Timişoara Prison. It adjourned the proceedings and ordered that a summons be served on him in Timişoara and Aiud Prisons as well as his transfer from the former prison to the latter. Furthermore, on 8 June at the request of all the parties, the court heard one of the witnesses in the case.

On 30 June and 11 July 2005, in reply to the first-instance court’s order of 4 May 2005 (see paragraph 30 above) the Prisons Department informed the Sibiu District Court that they had been unable to transfer the applicant because he had been made available for an appearance before the Constanța County Court but had been released by it on 23 June 2005. Furthermore, upon his release the applicant had provided them with the same home address he had given to the authorities previously.

At the hearing of 28 September 2005 the Sibiu District Court adjourned the proceedings. Moreover, it ordered that a summons be served on the applicant at the home address provided by him and that it also be posted at both the Sibiu and Sânnicolau Mare Local Councils. It also asked the Timiş Agency for Computerised Records of Individuals to provide the applicant’s new home address.

According to a summons report produced by bailiffs on 5 October 2005, the court summons of 28 September 2005 was posted at both Sibiu and Sânnicolau Mare Local Councils as well as on the main door of the building in which the applicant had his last known home address.

On 16 December 2005 the Sibiu District Court re-examined the case, convicted the applicant for aiding and abetting fraud, and sentenced him to four years’ imprisonment. In addition, it ordered the applicant and his codefendants to pay jointly to a third party compensation in the amount of EUR 3,132 in respect of pecuniary damage.

The applicant’s co-defendants lodged an appeal against the judgment before the Sibiu County Court.

The applicant did not attend any of the hearings held before the second-instance court.

On 11 September 2006, during a hearing before the Sibiu County Court, the applicant was represented by Ms H., a publicly appointed legal representative, while his co-defendants were assisted by other publicly appointed legal representatives. The applicant’s lawyer did not submit any arguments before the court and left the assessment of the circumstances of the applicant’s case to the court’s discretion. The court noted that all the parties had been lawfully summonsed to appear before the court.

On 18 September 2006 the Sibiu County Court dismissed the appeal lodged by the applicant’s co-defendants and upheld the judgment of the first-instance court. The applicant’s co-defendants appealed on points of law against the judgment.

The applicant, assisted by his chosen legal representative, lodged a belated appeal on points of fact and points of law against the judgment and asked for the time-limit for appeal on points of fact and points of law to be reinstated. In addition, he asked the last-instance court to order the reopening of the appeal proceedings. He further argued that, although he had informed the authorities of his correspondence address at the criminal investigation stage of the proceedings, during the appeal stage of the proceedings the summons and the judgment had been served at an incorrect address. He had found out about the judgment by chance after having been detained in a separate set of proceedings. Lastly, he indicated that his new correspondence address, to which the courts should deliver any summons, was the address of his chosen legal representative’s law practice.

During the hearing of 30 November 2006 the Alba-Iulia Court of Appeal found that the applicant’s summonsing for that hearing had been flawed and that the applicant’s chosen legal representative had reiterated that the applicant’s new correspondence address for the purpose of receiving summonses from the courts was the address of his representative’s legal practice. It also noted that the applicant’s legal representative had asked for the proceedings to be adjourned in order for him to have time to prepare his defence. Consequently, it adjourned the proceedings and ordered that the summons be served on the applicant at both his former and his new correspondence addresses.

According to a summons report produced by a bailiff on 15 December 2006, the court’s summons of 30 November 2006 inviting the applicant to attend the hearing of 4 January 2007 was delivered to the new correspondence address and was handed to the assistant charged with receiving correspondence for the legal representative’s law practice.

On 4 January 2007, in the presence of the applicant’s chosen legal representative, the Alba-Iulia Court of Appeal allowed the applicant’s belated appeal on points of fact and points of law, quashed the judgment of 18 September 2006 (see paragraph 39 above) and ordered a re-trial of the appeal on the grounds that the applicant had not been lawfully summonsed and notified of the judgment. It noted that the applicant had notified the authorities of his correspondence address at the criminal investigation stage of the proceedings (see paragraph 5 above); but that during the proceedings before the first and the second-instance courts the summons and the judgments had been served at an address that was incorrect as it had been misspelled.

Between 5 March and 2 July 2007, after the appeal proceedings had been re-opened, the Sibiu County Court adjourned the proceedings five times at the request of the applicant’s chosen legal representative or of the other parties. On 4 June 2007 the court also decided to ask the Bucharest Department of Prisons to inform it if the applicant or his co-defendants had been incarcerated in any of the prisons in the country. The court continued to serve summonses for the applicant at the address of his chosen legal representative’s law practice.

On 3 September 2007 the applicant’s lawyer informed the court that the applicant had been detained following his conviction by the firstinstance court and asked for the applicant’s release pending the outcome of the proceedings.

On the same date the Sibiu County Court allowed the applicant’s lawyer’s request and ordered the applicant’s release. In addition it ordered that a summons be served on the applicant at the address of the applicant’s lawyer’s law practice.

On 3 October 2007 the applicant’s legal representative informed the court that the applicant had been released and a summons had been served on him at his former home address. He left to the court’s discretion the issue of whether the applicant should also have been summonsed at his new home address.

On the same date the Sibiu County Court held that, in the light of his request for an appeal, the applicant had indeed been lawfully summonsed for that hearing. Moreover, it ordered that the applicant be served with a summons both at the address of his lawyer’s law practice and at the address of his new domicile.

Between 12 November 2007 and 7 January 2008 the Sibiu County Court adjourned the proceedings three times either on procedural grounds or at the request of the applicant’s lawyer and continued to summons the applicant both at the address of his chosen legal representative’s law practice and at his new home address. On 7 January 2008, when the court adjourned the proceedings to 4 February 2008, the applicant’s daughter appeared before the court and notified it that the applicant and his lawyer had been snowed in in a different city and that they had therefore been unable to attend the hearing. She confirmed that the applicant was living at his new home address and requested that the court adjourn the proceedings.

On 4 February 2008 the applicant’s chosen legal representative asked the Sibiu County Court to quash the judgment of the Sibiu District Court of 16 December 2005 (see paragraph 35 above) and to order a re-trial. He argued that the summons and the judgment had been served on the applicant at an incorrect address, even though he had notified the investigating authorities of his correspondence address (see paragraph 5 above). In addition, the applicant had not had effective legal representation because he had been assisted by a publicly appointed legal representative who was the same legal representative as the one appointed to assist the co-defendant V., even though they had conflicting interests in the case.

The Sibiu Prosecutor’s Office argued that if the applicant’s summonsing at a misspelled address by the first-instance court had been perceived as a flawed summonsing procedure in respect of his trial, the applicant’s appeal would have had to have been allowed and the proceedings before the first-instance court would have had to have been reopened. Also, in the light of the applicant’s and V.’s modus operandi, it did not appear that they had had conflicting interests entailing that they should not have been represented by the same lawyer.

On 11 February 2008 the Sibiu County Court allowed in part the applicant’s and his co-defendants’ appeals, dismissed the third party’s claims for civil damages, and upheld the remaining part of the first-instance court’s judgment. It held, inter alia, that the applicant’s appeal against the first-instance court’s judgment had been lodged within the lawfully allowed time-limit. In this connection it noted that the judgment of the first-instance court had been served at an incorrect address, even though the applicant had notified the investigating authorities of his correspondence address. Consequently, the applicant had never been lawfully notified of the judgment. The court further held that, even if the applicant and V. had had to share the same publicly appointed legal representative, it could not be argued that they had conflicting interests in the case and that the applicant had therefore been deprived of his right to defence.

All the parties, including the applicant, appealed on points of fact and points of law against the judgment.

On 29 April 2008 the applicant asked the Alba-Iulia Court of Appeal to adjourn the proceedings in order to allow him to appear before it together with his chosen legal representative and to defend himself.

On the same date the Alba-Iulia Court of Appeal allowed the applicant’s request and adjourned the proceedings. It also ordered that the applicant be summonsed and indicated as his address that of his former domicile.

On 20 May, 10 June, 2 and 23 September and 14 October 2008 the Alba-Iulia Court of Appeal allowed the applicant’s lawyer’s requests for an adjournment of the proceedings. The court continued to summons the applicant and ordered that the summons specify that the applicant had to attend the hearing in order to be questioned. The court indicated as the address for the summons that of his former domicile.

At the hearing of 4 November 2008, in the applicant’s absence, his chosen legal representative argued, inter alia, that the applicant’s right of defence had been breached on account of the superficial defence mounted during the proceedings by the publicly appointed legal representatives. In addition, during the first round of proceedings, although his interests in the case that conflicted with those of V., they had been assisted before the last-instance court by the same publicly appointed legal representative and no additional submissions had been made before that court. Consequently, the applicant’s defence had been ineffective and the proceedings before the first-instance court should be re-opened.

On the same date the court held that the summonsing procedure had been lawfully conducted.

By a final judgment of 12 November 2008 the Alba-Iulia Court of Appeal dismissed the applicant’s appeal on points of fact and points of law. It held that there was no evidence that the applicant’s right to defence had been breached. Moreover, he had been lawfully assisted by a publicly appointed legal representative and his interests had been protected appropriately. However, the court allowed the argument put forward by the Sibiu Prosecutor’s Office that the third party’s civil claims had been wrongly dismissed by the second-instance court, quashed the aforementioned judgment, and upheld the judgment of the first-instance court in respect of the civil limb of the proceedings.

On 24 November 2008 the applicant’s chosen legal representative lodged an extraordinary appeal for annulment against the judgment on the applicant’s behalf. He argued that the conditions for the examination of his appeal on points of fact and points of law on 4 November 2008 (see paragraphs 54-59 above) had been inappropriate both procedurally and in respect of the merits of the case in so far as they related to the provisions of Article 386 of the Code of Criminal Procedure (hereinafter “the CCP” – see paragraph 65 below). He also argued that at the time of writing his application for an extraordinary appeal for annulment he had not been fully aware of the grounds relied on by the last-instance court because its reasoning had not been made available to the parties. However, he submitted that he had lodged his application in order to comply with the ten-day time-limit provided for by Article 388 of the CCP (see paragraph 67 below) and that he had intended to state the specific reasons for his extraordinary appeal for annulment under Article 386 of the CCP after having had sight of the reasoning part of the judgment. He also stated that he had reserved his right to clarify his application no later than the second hearing held by the court.

On 16 December 2008 the Alba-Iulia Court of Appeal dismissed the applicant’s extraordinary appeal for annulment as inadmissible. It held that the reasons relied on by the applicant did not correspond to the reasons for an extraordinary appeal for annulment expressly provided for by Article 386 of the CCP. On 4 November 2008, when the debates had been held before the Alba-Iulia Court of Appeal, the procedure concerning the applicant had been lawfully conducted and he had been assisted by his chosen legal representative. In addition, the court had answered all the points raised in his appeal on points of fact and points of law.

Article 46 (1) of Law no. 51/1995 on the legal profession provides that a lawyer may not assist or represent parties who have conflicting interests in the same case.

Law 356/2006, published in the Official Gazette no. 677 of 7 August 2006, amended the former CCP. It entered into force on 6 September 2006 but, in accordance with its transitional provisions, it was not applicable to pending proceedings.

Articles 378 (11) and 38514 (11) of the former CCP, introduced by Law no. 356/2006 (see paragraph 63 above), provided that the court examining an appeal or an appeal on points of fact and points of law had to hear a defendant who was present if he or she had not been heard by the lower courts.

Article 386 of the former CCP provided that an extraordinary appeal for annulment could be lodged against a final judgment if the procedure to summons a party to the hearing at which the appeal on points of fact and points of law was examined had not been executed in accordance with the law. Following its amendment by Law no. 356/2006 (see paragraph 63 above), the aforementioned Article of the CCP also provided that an extraordinary appeal for annulment could be lodged against a final judgment if, when examining or re-examining an appeal on points of fact and points of law, the last-instance court had not heard a defendant who had been present although such hearing by the court was mandatory according to Article 38514 (11) of the former CCP.

Pursuant to Article 387 of the former CCP, the accused had to mention in his application for an extraordinary appeal for annulment all the grounds on which he was basing the said appeal and all the supporting arguments.

Article 388 of the former CCP provided that an extraordinary appeal for annulment could be lodged by the person against whom the final judgment had been enforced within ten days of the enforcement of the judgment and by the other parties within thirty days of the delivery of a final ordinary judgment.


Alena Poláčková;Branko Lubarda;George Nicolaou;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant is a Russian national who was born in 1978 and is currently detained in Banská Bystrica. The President decided of his own motion to grant the applicant anonymity (Rule 47 § 3). He is represented before the Court by Kolíková & Partners s.r.o., a law firm with its registered office in Bratislava.

The Government of the Slovak Republic (“the Government”) are represented by their Agent, Ms M. Pirošíková.

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

The applicant is of Ingush ethnic origin.

In March 2008 he left Russia for Ukraine, Slovakia, the Czech Republic and, ultimately, Germany, where he arrived in April 2008.

The applicant was subsequently returned to the Czech Republic and then to Slovakia, where he applied for asylum on 13 May 2008 under a different identity.

While the asylum proceedings in Slovakia were pending he left for Switzerland, where he remained, unsuccessfully seeking asylum, from November 2008 to March 2009.

The applicant’s asylum request in Slovakia was dismissed on 1 August 2008 and then again on 12 May 2010, after the first decision had been quashed on administrative appeal. The applicant’s subsequent administrative-law appeal was declared inadmissible as belated at two levels of jurisdiction. The dismissal of his asylum request thus became final and binding on 18 November 2010.

On an unspecified date in 2010 the applicant left Slovakia for Belgium, where he unsuccessfully applied for asylum in November 2010 and was ultimately returned to Slovakia on 9 December 2010.

After this the applicant applied for asylum in Slovakia and the Russian Federation applied for his extradition in order for him to be tried on charges related to acts of terrorism allegedly committed by the applicant with others on the territory of North Ossetia. This resulted in two sets of proceedings, which ran in parallel and are described below in turn.

On his return to Slovakia (see paragraph 9 above), on 9 December 2010, the applicant claimed asylum again, this time under his true identity.

The claim was examined at the first administrative level by the Migration Office of the Ministry of the Interior, which dismissed it on 6 September 2011, 28 June 2012 and 28 November 2013. However, all these decisions were quashed by administrative courts following administrative-law appeals by the applicant.

The last-mentioned decision was quashed by the Košice Regional Court on 14 April 2014 and the matter was remitted to the Migration Office for reconsideration.

The principal ground for this decision was that the Migration Office had failed to follow binding instructions issued by the court as part of its previous judgments quashing the Migration Office’s decisions, namely to examine properly:

(i) the applicant’s allegations that he was suffering from amnesia due to torture at the hands of Russian law-enforcement officers and resultant concussion;

(ii) the applicant’s allegation that, in view of his Ingush origin and the political situation in North Ossetia where he was wanted, he would be in danger if extradited there, while these allegations were to be examined in the light of existing reports on the police and justice situation in North Ossetia;

(iii) the existing documentation concerning the situation of the individuals whose depositions had provided the basis for the charges against the applicant (see paragraphs 34 et seq. below);

(iv) the validity of the guarantees given by the Office of the Prosecutor General of the Russian Federation (“the OPGRF”) to the Slovakian authorities as regards the applicant’s treatment in the event of his extradition to Russia (in particular those specified in a letter of 2 February 2011); and

(v) reports by non-governmental organisations concerning the applicant’s individual case and the situation in the requesting country in general.

On 5 May 2015 the Migration Office dismissed the applicant’s second asylum request for the fourth time and decided not to grant him any subsidiary protection.

It observed that at various stages of the proceedings the applicant had given three different time references (August 2005, May 2006 and May 2007) to his allegation that he had been arrested and mistreated by the police in Ingushetia, that there had been inconsistencies as to the length of his ensuing hospitalisation, and that there were further incongruities between the time and scope of the offences imputed to him in the official extradition documentation and those referred to by the applicant himself.

Moreover, the applicant had never before relied on any of the statutory grounds for granting asylum, and his present allegations of persecution on political, religious and ethnic grounds were entirely novel, while his prosecution in the requesting state had no political or ideological connotations. The applicant’s account of the facts was therefore found to be untrustworthy.

The Migration Office observed that the available documents confirmed that the applicant had been hospitalised in a traumatology department from 12 May to 14 June 2006 with a number of injuries. There was however no evidence showing that his injuries were in any way attributable to the State.

His present digestive problems could not be linked to those injuries, because the applicant had been suffering from them even before his alleged mistreatment. As to his alleged amnesia, by which he sought to explain the incongruities in his factual submissions, the Migration Office considered it improbable, because his recollection of other facts was clear and precise. Nevertheless, the Migration Office had obtained expert evidence concluding that the concussion he had sustained in 2006 could neither have produced amnesia, nor could it have had any permanent effects on his health.

Furthermore, the Migration Office observed that the requesting State, through the OPGRF, had provided assurances as to the applicant’s treatment in the event of his extradition on 2 February 2011, and that these guarantees had been confirmed and amended on 12 October 2012 and 23 January 2013.

According to these guarantees, the applicant would have at his disposal all existing legal means of asserting his rights, including the assistance of a lawyer. He would not be exposed to torture or any other form of illtreatment, and the death penalty would not be imposed on him. His prosecution was not motivated politically, racially, religiously or ethnically. He would not be prosecuted for any other offences than those for which his extradition was sought, and he would not be extradited further to another State without Slovakia’s consent. Slovakian diplomatic representatives would also be free to monitor compliance with the guarantees given.

In its assessment of these guarantees the Migration Office took into account that they had been provided by the OPGRF and that there was no indication that they would not be effective in North Ossetia. Once the applicant’s criminal proceedings were completed and any sentence served, he would be free to settle in any other place, not necessarily North Ossetia. There was no precedent for the Russian Federation not to comply with the diplomatic guarantees given to Slovakia in a similar context.

The Migration Office pointed out that the Russian Federation did not have a record of systematic human rights violations, that the guarantees were clear, specific and individualised, that they had also been confirmed by the requesting State as an intervening third party in the proceedings before the Court (see paragraph 47 below), that their observance was subject to diplomatic monitoring, and that their validity had been recognised by the Supreme Court in the extradition proceedings (see paragraph 23 below).

As to the various reports concerning the situation in Russia, the Migration Office considered them general in nature and in the circumstances not capable of prevailing over the specific and individual guarantees provided by the OPGRF.

Concerning the available material on the applicant’s co-accused, which included their pre-trial depositions, the Migration Office found that it was general, contained no more than allegations, was flawed by inconsistencies, and did not constitute proof of the allegations that they had been mistreated. The applicant was mentioned only once, in one of the pre-trial depositions, and this mention did not implicate him in any way. Moreover, when the applicant’s co-accused changed their versions before the court, their submissions were properly examined in adversarial proceedings. Therefore, this material did not represent a probability that, in the event of his extradition, the applicant would himself be mistreated or that he would be denied a fair trial in the proceedings against him.

In sum, there was no trustworthy indication of the existence of any grounds for granting the applicant asylum. Moreover, with reference to his state of health as established in a report from a prison hospital of 15 October 2013, the Migration Office found no humanitarian reasons linked to the applicant’s health or otherwise for providing him with subsidiary protection.

The applicant challenged the decision of 5 May 2015 by way of an administrative-law appeal, arguing in principle that the Migration Office had yet again completely ignored the binding instructions of the administrative court and had simply reaffirmed its previous line of decisions with all the errors therein.

That appeal is still pending before the Košice Regional Court.

On 9 July 2010 a judge of the Lenin District Court of Vladikavkaz (Republic of North Ossetia-Alania) issued a warrant for the applicant’s arrest on the charges of membership of an existing armed illegal group and of perpetration of assaults organised by it, illegal possession of firearms and explosives, terrorist acts, homicide of two or more persons, and other offences committed in the Republic of North Ossetia-Alania between 25 December 2005 and 21 July 2006.

On 20 and 21 January 2011 respectively the applicant was arrested and placed in preliminary detention in Slovakia.

On 2 February 2011 the Russian Federation asked for the applicant’s extradition.

On 1 March 2011 the Trnava Regional Court remanded the applicant in custody pending his extradition to Russia.

On 27 March and 12 June 2012 respectively the Regional Court and, following the applicant’s interlocutory appeal, the Supreme Court, ruled that the applicant’s extradition was permissible.

The courts found that none of the statutory grounds preventing extradition had been given and, in particular, that the applicant’s extradition was not precluded by his asylum claim of 9 December 2010 (see paragraph 11 above) as this was a repeated claim. In reaching that conclusion, they ascribed significant importance to the guarantees provided by the OPGRF as regards the applicant’s treatment in the event of his extradition by the requesting State.

In addition, the courts took into account that the requesting State was a member State of the Council of Europe and a High Contracting Party to the Convention. Moreover, they referred to the case-law of the Court, including its decision of 14 September 2010 in the cases of Chentiev v. Slovakia and Ibragimov v. Slovakia (nos. 21022/08 and 51946/08).

In so far as the applicant had argued that the case against him in Russia was concocted and based on evidence obtained by torture, these allegations were to be examined in the proceedings on the merits of his charges in Russia, the Slovakian authorities being by no means equipped to assess them, not least as they did not even have the relevant case files at their disposal.

Lastly, the courts observed that, in so far as the applicant’s argument was based on generally worded reports by non-governmental organisations, these reports were outweighed by the individualised and specific guarantees of the requesting State, and there were no obstacles to the nongovernmental organisations’ monitoring the fairness of the applicant’s proceedings in Russia.

On 23 August 2012 the Constitutional Court acceded to the applicant’s request of 18 June 2012 by indicating an interim measure suspending the Supreme Court’s decision of 12 June 2012. At the same time, it declared admissible the applicant’s constitutional complaint that that decision was in violation of his rights under Article 3 of the Convention.

On 2 October 2013 the Constitutional Court found that the Supreme Court’s decision of 12 June 2012 was in violation of the applicant’s Article 3 rights, quashed it, remitted the case to the Supreme Court for a new examination of the applicant’s interlocutory appeal against the decision of 27 March 2012, and awarded him costs. It found that the Supreme Court’s assessment of the case was formalistic, superficial, and inadequate, in particular as regards (i) the available reports on the general situation with respect to human rights in Russia and especially in the North Caucasus region, (ii) the applicant’s allegations that he and his co-accused had been ill-treated by the police and that his charges were based on evidence obtained by the ill-treatment of his co-accused, and (iii) the validity of the diplomatic guarantees of the requesting State in the light of the Court’s case-law.

On 10 July 2014 the Supreme Court ruled again on the applicant’s interlocutory appeal against the decision of the Regional Court 27 March 2012, as instructed by the Constitutional Court in its judgment of 2 October 2013. In its decision the Supreme Court again dismissed the interlocutory appeal. It did so having observed that the offences of which the applicant stood accused had taken place more than eight years ago, that the two consecutive asylum proceedings had together taken more than six years and were still not completed, that the applicant had been detained pending extradition for three and a half years, and that the maximum duration of such detention was not limited by statute. It held that the length of the asylum proceedings was unreasonable and that in the circumstances it was inappropriate for the Supreme Court to await the ultimate resolution of the asylum proceedings.

The Supreme Court summarised the requesting State’s guarantees (see paragraph 14 above) and concluded that they were sufficiently specific, individualised and reliable. As there had not been any specific instance of extradition from Slovakia to Russia, there was no concrete experience of or practice in monitoring compliance with guarantees given, nor was there any instance of failure to respect the guarantees.

The general reports on human rights situation in Russia were to be seen in the light of the applicant’s specific circumstances.

Moreover, the Supreme Court referred to reports on the 2011 and 2013 visits of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) to Russia and the measures taken by the Russian authorities in response to the CPT’s findings. In addition, the Supreme Court again referred to the Court’s assessment of the guarantees provided by the Russian Federation in Chentiev and Ibragimov (both cited above) and other cases. Lastly, it considered that it was not the task of the courts in extradition proceedings to take a stance as regards the lawfulness of the prosecution for the purposes of which a person was to be extradited.

There was no appeal available against the Supreme Court’s decision of 10 July 2014 and, accordingly, the ruling that the applicant’s extradition was permissible became final and binding on that day.

The applicant subsequently contested the Supreme Court’s decision by way of a constitutional complaint, which the Constitutional Court declared inadmissible without examining its merits on 24 November 2014, on the ground that it fell manifestly short of the applicable formal requirements.

The final decision on the applicant’s extradition now lies with the Minister of Justice, who has discretion to allow or disallow extradition subject to various considerations under Article 510 § 2 of the Code of Criminal Procedure, including specifically those under Article 3 and 6 of the Convention.

The request of the Russian Federation of 2 February 2011 for the applicant’s extradition (see paragraph 18 above) was accompanied by guarantees from the OPGRF as regards the treatment to be accorded to the applicant in the event of his extradition.

In a letter of 12 October 2012 from the Representative of the Russian Federation before the Court to the Ministry of Justice of the Slovak Republic, the guarantees in question were confirmed and summarised as follows: the applicant would enjoy all the fair trial guarantees which existed in international law, would only be tried for the crimes for which he had been extradited by Slovakia, would not be subjected to torture or inhuman or degrading treatment or punishment, would be free to leave the Russian Federation on the completion of his proceedings and after serving any sentence, and would not be extradited to a third country without Slovakia’s consent.

In a letter of 3 October 2014 the OPGRF responded to Slovakia’s request for an amendment of the guarantees in question by pledging that, in the event of his extradition, the embassy of Slovakia in Moscow would be informed of the place of his detention and officers of the embassy would be allowed to visit him and speak to him without the presence of a third person.

In a letter of 20 February 2015, in reply to a further request by Slovakia, the OPGRF confirmed the guarantees previously given.

The applicant claims that in September 2005 he was arrested and interrogated by police in Nzran (Republic of Ingushetia) on suspicion of involvement in terrorist activities. As he refused to confess, he was beaten and otherwise tortured for four days. He was subsequently provided with a lawyer, and it took a further six days until he was released and then immediately admitted to hospital, where he spent a month with concussion and multiple other traumas.

Once the applicant had learned of the arrests of his acquaintances on terrorist charges (see below), he went into hiding in Ingushetia, Chechnya and elsewhere.

His home was subsequently searched and his relatives interrogated as to his whereabouts. These included an uncle whose property was plundered and who was beaten during his interrogation before being released on the same day.

The applicant submits that in July 2006 three acquaintances of his, Messrs Rustam Yunusovich Tsurov, Alikhan Magomedovich Ozdoyev, and Umar Bagaudinovich Khadziyev, were arrested on charges of terrorist acts in North Ossetia; that they were taken to a police station in Vladikavkaz where they were interrogated, beaten and tortured into confessions; and that one of them had given the applicant’s name.

The case-file contains documentation concerning these individuals, including expert reports on injuries suffered by U. Khadziyev in the night of 21 to 22 July 2006 and on the mental condition of A. Ozdoyev; what appears to be parts of transcripts of undated court hearings of a witness I.S. Kostolev, an accused R. Tsurov, Mr Tsurov’s lawyer, U. Khadziyev, and Mr Tsurov’s mother; and a statement issued by the mother of U. Khadziyev.

This documentation contains allegations of ill-treatment and coercion with regard to Messrs Tsurov, Ozdoyev, Khadziyev and Kostolev.

In so far as the applicant is concerned, in one of the transcribed submissions, Mr Tsurov stated that he had never seen A. Ozdoyev and the applicant together, admitted having seen the applicant once, but submitted that he had had no personal or telephone contact with him. In addition, in her statement concerning principally the convictions of her son and his associates, which according to her was based solely on self-incriminating evidence extracted from them by torture, the mother of U. Khadziyev stated that the convicts had been coerced into implicating other people, including the applicant.

Messrs Tsurov, Ozdoyev and Khadziyev introduced an application of their own under Article 34 of the Convention against the Russian Federation (no. 30444/08). It has been communicated to the Government of the Russian Federation for observations and is still pending.

Finally, in addition to the material referred to in the subsequent paragraph, the applicant relied on a number of international documents including from Amnesty International, the United Nations Committee against Torture, Human Rights Watch, a Special Rapporteur of the Parliamentary Assembly of the Council of Europe, the Commissioner for Human Rights of the Council of Europe, the United States Department of State, the United Kingdom Foreign and Commonwealth Office, Freedom House, the United Nations Special Rapporteur on the independence of judges and lawyers and the United Nations Special Rapporteur on the independence of judges and lawyers originating from or pertaining to the period between the years 2006 and 2013 and the year 2014.

A number of relevant international instruments and reports concerning the situation in Russia are summarised, for example, in the Court’s judgments in the cases of M.G. v. Bulgaria (no. 59297/12, §§ 39-58, 25 March 2014), and Chankayev v. Azerbaijan (no. 56688/12, §§ 44-52, 14 November 2013, with further references).


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

Angelika Nußberger;Vincent A. De Gaetano

The applicant was born in 1942 and lives in Kamna Gorica.

The applicant served his prison sentence in the closed and semi-open sections of Ljubljana prison.

In the period from 7 June 2009 to 31 August 2009 he was held in the closed section: for five days in cell 117, measuring 17.66 square metres (not including a separate 1.68 square metre sanitary facility) shared with three to five other inmates and with 2.66 to 3.99 square metres of personal space and for eighty-one days in cell 7 measuring 16.7 square metres (not including a separate 1.68 square metre sanitary facility). The Government submitted that in cell 7 the number of prisoners varied between three and five and when there were three prisoners therein the applicant had 5 square metres of personal space.

In the period between 1 September 2009 and 12 November 2009 he was held in the semi-open section in cell 137, measuring 17.94 square metres (not including a separate 1.75 square metre sanitary facility) shared with two to four other inmates and with 3.2 to 5.4 square metres of personal space and cell 136, measuring 18.44 square metres (not including a separate 1.78 square metre sanitary facility) shared with two to four other inmates and with 3.3 to 5.6 square metres of personal space.

As regards the general characteristics of the cells in the closed and semi-open sections, material conditions inside the cells, sanitary conditions and health care, see the judgment in Štrucl and Others v. Slovenia, nos. 5903/10, 6003/10 and 6544/10, §§ 21 to 32, 20 October 2011.

As to the out-of-cell time in the closed section, the Court found in the aforementioned judgment that sentenced prisoners in the closed section of the prison were locked up in their cells and were only able to leave them if they applied for certain activities, most of which were to take place in the recreation room. There was, however, only one 50square-metre recreation room per floor, which was to be used by ten inmates at most (Štrucl and Others § 86).

As to the out-of-cell time in the semi-open section, the Government submitted that the cell doors in the semi-open section of the prison were unlocked, except from 9.45 p.m. (on Fridays, Saturdays and before holidays from midnight) until 6.00 a.m. (on Saturdays, Sundays and during holidays until 8.30 a.m.). During this time prisoners could move freely in the corridor (35.7 square metres), living quarters of co-prisoners or in the indoor or outdoor exercise areas, in accordance with prison rules. The Government contended that this regime had been in place for several years.

As regards the cell temperature, the data provided by the Government showed that the average temperature in the cells in the late afternoon (5- 5.30 p.m.) in the second half of July and August 2009 had been approximately 28oC, exceeding 30oC on seven days.


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

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

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

The applicants complained of the excessive length of their pre-trial detention. In applications nos. 18682/09 and 49397/10, the applicants also raised other complaints under the provisions of the Convention.


Violation of Article 2 - Right to life (Article 2 - Positive obligations) (Procedural aspect)

Alvina Gyulumyan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant was born in 1974 and lives in Lugoj.

A private exporting company (“company E”) had concluded a contract with the Lugoj Merchandise Subsidiary of the National Railway Company (Stația CFR Marfă Lugoj) and another private company (company M). The contract provided that company E could use an industrial railway track for the five wagons put at its disposal by the National Railway Company in order to perform all the necessary operations, including customs inspections, for exporting its merchandise abroad.

On 20 September 2002, at about 9.30 a.m., S.V. went to Lugoj Railway Station with all the documents relating to the transportation of company E’s merchandise, in order to have the station’s stamp applied to them. When all the documents had been stamped, the manager of company E, together with S.V., went to the Lugoj Customs Office to ask for a customs inspector to carry out an inspection of the wagons and apply the required seals. The applicant was designated to carry out the customs inspection.

At about 1 p.m. the applicant went with the manager of company E and S.V. to Lugoj Railway Station. They firstly went to the station’s cash desk, where the manager of company E paid the taxes relating to the transportation of the merchandise and asked to have the consignment note (CIM) stamped. According to the statements of the manager of company E, S.V., and the applicant, an employee of the National Railway Company, M.M., went with them in order to show them where the wagons were.

At 1.19 p.m., while he was on top of a wagon trying to apply the customs seals, the applicant was electrocuted. As a result of the accident, the applicant needed 138 days of medical care. He suffered burns to 70% of his body.

In most of the official documents regarding the accident, such as the report of the investigation commission of 16 October 2002, the decisions of the courts and the prosecutors, and a medical report drafted on 16 February 2004, it was stated that the applicant’s life was at risk. For almost two months he was in a deep coma in a hospital in Hungary. Because of the severe burns he had serious breathing difficulties and had to undergo multiple skin grafts.

Following a decision by the National Pension Authority on 28 May 2004, the applicant was classed as permanently disabled.

Two police officers attended at the scene of the accident and drafted a preliminary on-the spot report on the same day.

A special commission composed of experts from the Timișoara Labour Inspectorate, the Timișoara Regional Customs Department (Direcția Regională Interjudețeană Timișoara) and the Timișoara Subsidiary of the National Railway Company was set up to investigate the accident. The commission started its investigation on 24 September 2002, four days after the accident.

According to the report drafted by the commission, which was completed on 16 October 2002, the accident had occurred because of the improper organisation of the procedure for inspecting the merchandise. It stated that there were several concurrent causes which had led to the applicant’s accident.

The report stated that the receipt of the wagons by company E from the National Railway Company had not been effected in accordance with the framework agreement signed on 24 June 2002 by the Lugoj Railway Station and company M, or with the document entitled “Declarație” signed by company M, company E and the National Railway Company. According to a final decision of 25 January 2006, delivered in criminal proceedings, this last document was signed after the accident occurred, but the manager of the National Railway Company back-dated it (see paragraph 36 below).

The report also stated that health and safety regulations had not been observed and the applicant’s employer had not ensured that he was properly trained for performing his duties on the railway tracks.

The report concluded that the following were responsible for the accident: (i) the manager of company E because he had not organised the customs inspection and had not complied with the above-mentioned agreement; (ii) the applicant because he had not complied with the rules for carrying out the inspection; (iii) the applicant’s superior for not training him on the applicable safety regulations, and (iv) company E, also for not training its employees properly.

The Timișoara Regional Customs Department raised certain objections in respect of the report. It insisted that the report mention that the applicant had gone up onto the wagon only after M.M., an employee of the National Railway Company, had assured him that there was no danger of an accident (a reference to the statements of S.V. and the manager of company E, who had been present when the accident occurred).

It also pointed out that the applicant had undergone training on 3 June 2002.

Finally, it contended that an analysis of the documents and the statements of the witnesses present at the incident showed that the accident had occurred because the National Railway Company had not observed Order no. 26 of 11 January 2000, which set out the health and safety regulations for the rail transport industry.

At the end of the investigation the special commission imposed administrative fines on company E and its manager for nonobservance of the applicable health and safety regulations.

Company E lodged a complaint seeking to have the fine cancelled, arguing that it had been under no legal obligation to train the applicant because he was not employed by them.

By a judgment of 16 September 2003 the Lugoj District Court allowed the complaint and held that the National Railway Company should be held liable for the accident. Its reasoning was as follows: “Demonstrating gross negligence, the representatives of the National Railway Company did not order the removal of the five freight wagons to the industrial track”. The industrial track was not electrified. The court continued its reasoning by stating that since the National Railway Company had agreed to transport the merchandise by presenting the necessary documents to the customs authority, it had become responsible for the operation. In accordance with decision T1 concerning the application to Romanian territory of the common transit system for rail freight transport, the National Railway Company was required, among other obligations, to ensure appropriate conditions for a safe customs inspection. The court concluded that by leaving the five freight wagons on high voltage railway tracks without informing all the persons involved in the customs inspection, the National Railway Company had failed to fulfil that obligation.

The special commission also imposed a fine on the manager of company E on the ground that he had not taken the necessary steps to ensure the safety of the customs inspection, and that although he had accompanied the applicant to the railway station he had not made a written request for the removal of the freight wagons from the electrified railway track.

The manager lodged a complaint against the fine and, by a final judgment rendered on 29 September 2003, the Lugoj District Court allowed the complaint, holding that the manager had not been obliged to request the removal of the wagons from the electrified railway tracks. It also held that he could not have known that the tracks were electrified. Further, it stated that according to the framework agreement signed on 24 June 2002, the wagons should have been at track no. 20, which was located outside the railway station, and that employees of the National Railway Company should have moved the wagons from the railway station to track no. 20. It concluded that the employee of the National Railway Company who had also been present at the customs inspection, M.M., had assured the applicant that he could perform his inspection even though the wagons were on an electrified track.

On 8 January 2003 the Timiș Labour Inspectorate asked the prosecutor’s office to start a criminal investigation into whether the manager of company E could be held responsible for the accident. Accordingly, the prosecutor’s office attached to the Lugoj District Court opened a preliminary investigation.

The applicant gave a statement before the prosecutor on 26 February 2003. He informed that he intended to claim compensation from the persons found responsible for the accident.

By a decision of 24 April 2003, the prosecutor decided not to initiate a criminal investigation on the ground that the accident had been caused through the applicant’s own fault. That decision was upheld by the chief prosecutor on 31 July 2003.

The applicant lodged a complaint against that decision with the prosecutor’s office attached to the Timiș County Court. He contended that the investigation body had not managed to clarify the circumstances under which the accident had occurred and therefore it was necessary to hold a confrontation between all the witnesses who had given contradictory statements, and that a reconstruction of the accident scene would be useful. As to the presence of M.M., the employee of the National Railway Company, at the scene of the accident, even the statements of her own colleagues were contradictory. The applicant further maintained that without M.M., who had accompanied them to track no. 7, he and the manager of company E would not have been able to find the wagons to be inspected. The applicant also claimed that the warning sign on the wagons to be inspected had not been there at the time of the accident but had been placed there after the accident. In this connection, he pointed out that such a sign could not be seen in the photographs taken by the police officers who had examined the scene immediately after the accident. The sign appeared only in the photographs taken by the Timiș Labour Inspectorate four days after the accident.

On 30 October 2003 the chief prosecutor dismissed the applicant’s complaint as unfounded. He held that the applicant alone was responsible for the accident because he had mounted the wagon while it was connected to live electricity without paying heed to the warning sign on the wagon and the framework agreement signed by the National Railway Station and the beneficiary (company E). He dismissed the applicant’s allegation that the warning sign had not been attached to the wagon on the day of the accident, stating that the sign could not be seen from the angle at which the photographs had been taken on that day. He also dismissed the applicant’s request to have the witnesses reheard on the ground that their statements were not relevant in so far as they could not make any difference to the final conclusion.

On 14 April 2004 the applicant lodged a complaint against that decision with the Lugoj District Court, alleging that the staff of the National Railway Company were responsible for the accident. By a judgment of 18 June 2004 the court allowed the complaint and sent the file back to the prosecutor’s office for an expert report to be drafted and for it to be determined whether M.M., the employee of the National Railway Company who the applicant claimed had accompanied him to the freight train, bore any responsibility. The experts were to establish whether the railway tracks had been electrified when the applicant climbed onto the freight train on the day of accident.

On 27 September 2004 the Timiș County Court allowed an appeal on points of law lodged by the prosecutor’s office and quashed the judgment of 18 June 2004 on the ground that on the basis of Article 278 (1) of the Code of Criminal Procedure, the first-instance court could not remit the case to the prosecutor’s office for further investigation. Consequently, the file was sent back to the District Court for fresh examination.

On 21 January 2005 the Lugoj District Court dismissed the applicant’s complaint and upheld the prosecutor’s decision not to initiate a criminal investigation. It held that none of the National Railway Company’s employees had been responsible for the applicant’s accident. In this connection, it found that according to the statements given by M.M.’s colleagues, she had not accompanied the applicant, S.V. and the manager of company E to the freight train. It also stated, however, that the customs inspection should have been carried out at track no. 20 and not at track no. 7. It concluded that the applicant alone was responsible for the accident because he had not paid heed to the warning sign on the wagon and the framework agreement signed by the National Railway Station and company E.

The applicant lodged a criminal complaint against the manager of the National Railway Company for forgery of a document called “Declarație”, submitted to the special commission while it was carrying out its investigation into the accident. The document was in fact an agreement signed by the National Railway Company, company E and company M stipulating that customs inspections of merchandise should be carried out only at track no. 20 (which was not electrified). The applicant stated that the manager had drafted it and asked the managers of the two other companies to sign it immediately after the applicant’s accident (on 21 September 2002), but had given 16 September 2002 as the date of signing.

After repeated decisions not to initiate criminal proceedings delivered on 28 September, 27 October and 17 December 2004, on 7 June 2005 the prosecutor’s office attached to the Lugoj District Court indicted the manager of the National Railway Company for abuse of office, forgery and the use of forged documents, and sent his file to the Lugoj District Court.

By a judgment of 25 January 2006, the Lugoj District Court found the manager guilty as charged. It held that he had drafted the agreement in order to protect his company from liability for the applicant’s accident. The subsequent appeal and appeal on points of law were dismissed as unfounded by the Timiș County Court and the Timișoara Court of Appeal on 17 April and 6 September 2006 respectively.

On 8 May 2006 the applicant lodged an application for judicial review of the criminal judgment rendered on 21 January 2005 by the Lugoj District Court. He claimed that there were new elements which could prove the guilt of the National Railway Company in respect of the events which had led to his accident. In this connection he relied on the final decision of the Lugoj District Court of 25 January 2006, by which the manager of the National Railway Company had been found guilty of the forgery of the document entitled “Declarație” which had been used as evidence in the criminal proceedings relating to the applicant’s accident. He also applied for three new witnesses to be heard on the question of whether M.M. had been present when the accident occurred.

The applicant argued that that document had played a decisive role in the conclusions of the investigation commission, as well as in the decisions of the prosecutors and judges, as to liability for the accident.

The Lugoj District Court dismissed the application as inadmissible as it concerned a decision in which the court had not examined the merits of the case, and as unfounded because the new evidence referred to by the applicant did not de facto affect the facts established in the decision.

On 18 October 2005 the applicant brought a civil action before the Lugoj District Court seeking compensation in respect of pecuniary and non-pecuniary damage. He claimed damages from the National Railway Company and M.M on account of their negligence in the organisation of the customs inspection. He stressed that because of the accident he had had to undergo expensive surgical interventions and had been classed as permanently disabled.

On 20 June 2006 the Lugoj District Court dismissed an objection of res judicata raised by the defendants. It held that the criminal decision of 21 January 2005 had not examined the civil liability of the defendants but only their criminal liability. The court noted that although the evidence concerning M.M.’s presence at the scene of the accident was not conclusive, the National Railway Company’s employee should nevertheless be held liable because she had not fulfilled her professional duties. The court further noted that, according to one of M.M.’s colleagues who had occupied the same position as M.M., and to her job description (“Fișa Postului”), it had been M.M.’s duty to handle the customs documentation for the customs agent and also to supervise the shunting of the relevant wagons in the railway station. The court also found that under the applicable law on the application of the common transit system in Romania, the National Railway Company had been obliged to be actively involved in the customs inspection of the wagons. However, the company had observed its obligations superficially through its employees. Thus, by applying the stamp to the CIM, the company employee had convinced the applicant and the manager of company E that everything was ready for inspection.

The court partly allowed the applicant’s action, held that both the applicant, the National Railway Company and M.M. were equally responsible for the accident, and ordered the defendant company and M.M. to pay half the damages claimed.

The defendant company appealed and the appeal was allowed by the Timiș County Court on 19 February 2008. It quashed the judgment of the first-instance court, holding that the de facto situation had already been established by a final decision of a criminal court, and had thus acquired the authority of res judicata before the civil courts.

On 26 January 2009 the Timișoara Court of Appeal dismissed an appeal on points of law lodged by the applicant.

Order no. 26 of 11 January 2000 sets out the health and safety regulations for the rail transport industry. Article 3 provides that the regulations are compulsory and that they must be communicated to the interested persons by local labour inspectorates. They are not published in the Official Gazette.

Article 66 of the Order prohibits the inspection, application of seals or carrying out of any work on the upper parts of a wagon while the train is on electrified tracks.

Article 79 of the Order provides that all specified preventive steps must be taken when operations presenting a danger of electrocution are performed.

The CIM is a standardised document for the cross-border transport of cargo by rail, based on UN recommendations for uniform international rules and in use in the European Union (EU). CIM stands for Convention Internationale concernant le transport des Marchandises par chemin de fer, the French name for the Convention that governs its definitions and application.

The T1 procedure concerns the movement of non-EU goods when customs duties or other import taxes are involved.

According to Article 70 of the above-mentioned Convention, which sets out a common transit procedure, a railway company which accepts goods for carriage under cover of a CIM consignment note serving as a common transit declaration shall be the principal for that operation.

Criminal proceedings in Romania are regulated by the Code of Criminal Procedure and based on the principles of legality and officialness. Prosecution is mandatory when reasonable suspicion exists that a criminal offence subject to mandatory prosecution has been committed.