Violation of Article 7 - No punishment without law (Article 7-1 - Nullum crimen sine lege;Retroactivity;Criminal offence;Article 7-2 - Criminal offence);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;André Potocki;Ann Power-Forde;Dean Spielmann;Egidijus Kūris;Guido Raimondi;Ineta Ziemele;Jon Fridrik Kjølbro;Josep Casadevall;Khanlar Hajiyev;Mark Villiger;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen;Ksenija Turković

The applicant was born on 21 October 1930 and lives in Tauragė.

On 23 August 1939 the Soviet Union (hereafter at times referred to as “the USSR”), led by Josef Stalin, signed a non-aggression treaty with Germany, led by Adolph Hitler (“the Molotov-Ribbentrop Pact”). Under a secret additional protocol approved by the parties on the same date, as amended on 28 September 1939 and 10 January 1940, Lithuania and other Baltic States were attributed to the USSR’s sphere of interest in the event of a future “territorial and political rearrangement” of the territories of these then independent countries. After Germany’s invasion of Poland on 1 September 1939 and the subsequent start of the Second World War, the Soviet Union began exerting considerable pressure on the Governments of the Baltic States with a view to taking control of those countries pursuant to the Molotov-Ribbentrop Pact and its additional protocol.

Following an ultimatum to allow an unlimited number of Soviet troops to be stationed in the Baltic countries, on 15 June 1940 the Soviet army invaded Lithuania. The Government of Lithuania was removed from office, and a new Government was formed under the direction of the Communist Party of the Soviet Union, the USSR’s only political party. On 3 August 1940 the Soviet Union completed the annexation of Lithuania by adopting an act incorporating the country into the USSR, with Lithuania being named the “the Lithuanian Soviet Socialist Republic” (hereinafter referred to as “the LSSR”). In 1941 the territory was occupied by Nazi German forces. In July 1944 Soviet rule was re-established in Lithuanian territory (see Kuolelis and Others v. Lithuania, nos. 74357/01, 26764/02 and 27434/02, § 8, 19 February 2008, and also Ždanoka v. Latvia [GC], no. 58278/00, §§ 12 and 13, ECHR 2006IV).

A nation-wide partisan movement began in Lithuania. The goal of the entire armed and unarmed resistance was the liberation of and reestablishment of independent Lithuania. In 1949 an all-partisan organisation, the Movement of the Struggle for the Freedom of Lithuania (Lietuvos laisvės kovos sajūdis (“LKKS”)) was formed. On 16 February 1949 the organisation adopted the Declaration stating that the LKKS Council was “the highest political authority of the nation, leading the nation’s political and military struggle for freedom (aukščiausias tautos politinis organas, vadovaująs politinei ir karinei tautos išsilaisvinimo kovai)”. The Soviet repressive structures, embodied in the NKVD (People’s Commissariat for Internal Affairs, Narodnyy Komissariat Vnutrennikh Del), the MGB (Ministry of State Security, Ministerstvo Gosudarstvenoj Bezopastnosti) and other bodies, sought to suppress the resistance. The system of repressive organisations was reorganised on repeated occasions. Most of the leading and operative employees of those structures were nonLithuanians sent to Lithuania from the USSR. In the 1950s the partisan movement was suppressed by the Soviet authorities, although separate partisan formations were operating for some time until after 1953, the year in which the leadership of the LKKS was captured and murdered.

Lithuania regained its independence on 11 March 1990; this was officially recognised by the USSR on 6 September 1991. The Russian army left Lithuania on 31 August 1993.

The Government provided the Court with copies from the Lithuanian Special Archive (Lietuvos ypatingasis archyvas) of the applicant’s service file from the period when he worked for the MGB of the Lithuanian SSR. The documents are in Russian and were translated into Lithuanian by a translator from the Kaunas region public prosecutor’s office. It appears that these documents were relied upon by the prosecutor when he brought the bill of indictment against the applicant in 2001 (see paragraph 29 below). The documents disclose the following information.

Between 1950 and 1952 the applicant studied at the Lithuanian SSR MGB School in Vilnius.

On 8 April 1952 the applicant was employed as an assistant operational agent (operatyvinis įgaliotinis), and from 15 September 1952 he worked as an operational agent in the Šakiai district unit of the LSSR MGB. As of 1 July 1953 the applicant worked as a senior operational agent in the MGB and subsequently in the KGB.

The minutes of the Šakiai district MGB unit Communist party members’ meeting of 2 March 1953 record that the agenda of that meeting was devoted to discussing “the decisions of the USSR Central Committee, and orders from the USSR MGB and LSSR MGB as to the extermination of nationalist elements in the [Šakiai] district”. The minutes further record that a member of the Šakiai district MGB urged that in the immediate future the “bandits and nationalist underground should be eradicated”. The regional unit of the Communist party was encouraged to put more effort into enlightening the inhabitants about the “fight against the bandits and nationalist underground”. The minutes record the applicant’s view that “their [his MGB unit’s] goal was to exterminate as quickly as possible the bandits, those who help them and their contacts”.

It appears from the minutes of the meeting of 18 September 1953 of the Šakiai district MGB unit Communist party members, that on that occasion the applicant gave a speech about “the fight against the nationalist underground”. The applicant stated that so far he “had not succeeded in exposing all the members of the nationalist gangs in the district assigned to him”. In the applicant’s view, “if each communist, each member of his [MGB] unit, takes up his duties more thoroughly, they can obtain good results in the fight against the nationalist underground”.

During the meeting of 4 November 1953 of the Šakiai district MGB unit Communist party members, the applicant was described as a person who had achieved good results in his work.

On 23 December 1953 the applicant became a member of the Communist Party of the Soviet Union. The record of the meeting of the Šakiai district MGB unit Communist party members indicates, that the applicant’s superiors characterised him as being disciplined (disciplinuotas), being politically aware (politiškai raštingas) and having good work results. The superiors pointed out that joining the ranks of the “glorious Communist party” obliged the applicant to “raise his political awareness, study the history of the Communist party in its fight with various enemies and always be alert”.

In 1964 the applicant gained the qualification of a jurist at the KGB Felix Dzerzinskij Higher Institute.

From 1967 until he retired in 1975 on health grounds, the applicant worked as the Head of the KGB Department in the Jurbarkas district.

According to the applicant’s service record, during his 25 years’ service in the MGB (KGB), he was awarded, decorated or commended at least 24 times. During his service in the MGB and the KGB the applicant served up to the rank of lieutenant-colonel (papulkininkis).

On 2 January 1953 the applicant took part in an operation against two Lithuanian partisans, the brothers J.A. and A.A., who had been hiding in the forest in the Šakiai area. M.Ž., the applicant’s co-accused in the subsequent criminal proceedings for genocide, had provided the Soviet authorities with information about the partisans’ whereabouts. An operation to capture or liquidate the partisans had been planned. Several soldiers were involved and the applicant was part of the operation. During the attempt to apprehend them, J.A. and A.A. resisted by opening fire on the MGB officers and Soviet soldiers. The partisans were shot and killed.

On the day of the operation, that is, on 2 January 1953, the Head of the Šakiai district MGB drafted a report to his superior – the head of the Kaunas region MGB, wherein it was mentioned that the applicant had contributed to the success of the operation during in which “two bandits had been liquidated”, and thus deserved to be commended (užsitarnavo paskatinimą).

On 1 September 1953 the Head of the Šakiai district MGB wrote to the Minister of the Interior of the Lithuanian SSR, informing him that on 2 January 1953 the applicant and the MGB officers had liquidated “two members of a nationalist gang [J.A. and A.A.]”. He proposed that the applicant be rewarded for that operation. The applicant’s service file indicates that on 15 September 1953 the applicant received a commendation and was paid a premium of 500 roubles.

On 10 December 1971 the Chairman of the Executive Committee of the Šakiai district indicated that brothers J.A. and A.A. belonged to a “bourgeois nationalistic armed gang” during the post-war period and that in 1953 they were shot as its members.

After Lithuania regained its independence, the Kaunas region public prosecutor’s office started an investigation in April 2001 into the death of the brothers J.A. and A.A. In September 2001 the prosecutor charged the applicant and M.Ž. with genocide, pursuant to Article 71 § 2 of the Criminal Code then in force (see paragraph 52 below). The prosecutor found it to be established that as of 15 September 1951 the applicant had served as an operational agent in the Kaunas region Šakiai district branch of the LSSR MGB. He knew that “the LSSR MGB’s main purpose was to physically eradicate part of the Lithuanian population belonging to a separate political group (atskira politinė grupė), namely, the Lithuanian partisans, participants in the resistance to the Soviet occupation”. “The applicant had been active in fulfilling that main goal of the LSSR MGB by killing some of the inhabitants of Lithuania belonging to the aforementioned political group”. For the prosecutor, the applicant’s guilt was proved on the basis of his service record (tarnybos kortelė), the applicant’s superiors’ commendation for his persistence when executing search measures, managing the operation and personal participation when apprehending the bandits (pareikšta padėka už atkaklumą pravedant agentūrines-tyrimo priemones, vadovavimą operacijai, asmeninį dalyvavimą sulaikant banditus). The evidence examined by the prosecutor included statements by witnesses, minutes of the meetings of the Šakiai district MGB unit which were obtained from the Lithuanian Special Archive (Lietuvos ypatingasis archyvas) and the Genocide and Resistance Research Centre of Lithuania (Lietuvos gyventojų genocido ir rezistencijos tyrimo centras) and translations of those documents, which mentioned the applicant, the tasks he had been assigned with regard to the liquidation of banditry, bandits’ assistants and contact persons. Other evidence included [MGB] reports about the liquidated bandits J.A. and A.A.

By a judgment of 4 February 2004, the Kaunas Regional Court found that there was sufficient evidence to convict the applicant of genocide. On the basis of witness statements, written evidence provided by the Genocide and Resistance Research Centre of Lithuania and statements by the applicant and his co-accused M.Ž., the court established that J.A. and A.A. had belonged to the 37th unit of the Tauras district partisans. The trial court noted that the information in the case file allowed it to conclude that in order to compromise the partisan brothers the Soviet authorities had spread misinformation to the effect that J.A. and A.A. had deserted from the partisan unit, were hiding alone and, thereafter, had no connection with the partisans. Those accusations were untrue. In reality, the partisans, including the brothers J.A. and A.A., operated in small groups in order to avoid extermination by the Soviets. Lastly, there was no credible evidence in the case which would disprove the assertion that J.A. and A.A. “were members of the organised resistance and that they belonged to a political group”. The trial court also noted testimony by one witness that the partisan brothers had been hiding in the forest for three to four years, and that his family had given them food.

As to the applicant, the court noted that as of 15 September 1951 he had been working as an operational agent of the MGB of the Lithuanian SSR and “knew the main goal of that Ministry, which was to physically eradicate a separate political group, Lithuanian partisans, constituting part of the Lithuanian population”. In the MGB files the two brothers had been listed as partisans, members of the armed national underground resistance (partizanai – nacionalinio ginkluoto pogrindžio dalyviai). The court dismissed the applicant’s contention that he had not actively participated in the operation to capture or to liquidate the two partisans during which those two partisans had died. On the contrary, the applicant’s superior officer’s operational file had stated that one of the bandits had been personally eliminated by the applicant. After the operation the applicant had been admitted to the Communist party and both he and M.Ž. had received a financial reward. Most importantly, neither the applicant nor M.Ž. denied taking part in the operation to liquidate the partisans. The trial court took the view that all of the circumstances allowed the conclusion that both of the accused had participated on 2 January 1953 “in the physical extermination (killing) of inhabitants of Lithuania who belonged to separate political group (atskira politinė grupė), participants in the resistance to the Soviet occupational power, that is to say, [the applicant] took part in genocide”.

The Kaunas Regional Court noted that Article 3 of the Law of 9 April 1992 “On Responsibility for Genocide of Inhabitants of Lithuania” provided for the possibility of applying criminal liability for genocide retroactively.

The Kaunas Regional Court convicted the applicant of genocide under Article 99 of the Criminal Code (see paragraph 53 below) and sentenced him to six years’ imprisonment. The applicant was granted a suspension of his sentence on health grounds.

M.Ž. was also convicted of being an accessory to genocide under the same provision of the Criminal Code. She was sentenced to five years’ of imprisonment, suspended on health grounds.

The trial court also granted a civil claim by the injured party, M.B., who was the daughter of J.A. and the niece of A.A., but reserved the question of the amount of damages for separate civil proceedings.

Both the applicant and M.Ž. appealed against their convictions.

On 21 September 2004 the Court of Appeal upheld the convictions and held that the trial court’s verdict had been lawful and well-founded. The appellate court indicated that the trial court had not concluded that the applicant had personally shot one of the partisans. In fact, the applicant had been sentenced only for taking part in the operation to eradicate the partisans as representatives of a political group. The applicant himself acknowledged, and it had been proven by the witnesses’ statements and documents, that he had taken an active part in the impugned operation, that he had been responsible for M.Ž., who had shown the Soviet authorities the partisans’ hiding place, that he had been one of the officers who had surrounded the bunker, and that he had stayed with M.Ž. until the end of the operation. In passing sentence, the Court of Appeal observed that the applicant, as an operational officer of the Šakiai district MGB who had worked voluntarily for the occupying authority (MGB) “had clearly known that the goal of that institution was to physically exterminate the Lithuanian partisans, as part of the Lithuanian population (tikrai žinojo, kad šios įstaigos tikslas yra Lietuvos partizanų, kaip Lietuvos gyventojų dalies, fiziškas sunaikinimas)”. Conscious of that fact, the applicant, together with other participants in the operation, had taken part in person in the killing of the partisan brothers J.A. and A.A. Likewise, M.Ž., as an MGB agent, also understood the goals of that organisation and by providing it with information about the partisans’ whereabouts and by showing MGB the partisans’ bunker, had understood that the brothers would be exterminated. Accordingly, both the applicant and M.Ž. had acted with direct intent (tiesioginė tyčia). Lastly, the Court of Appeal found that at the time of the criminal proceedings against him the applicant had still been of the view that the Soviet authorities’ actions against the Lithuanian partisans were lawful.

The appellate court dismissed the argument by the applicant that the definition of genocide under Lithuanian law, pursuant to Article 99 of the Criminal Code, contradicted the definition enshrined in Article II of the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter referred to as “the Genocide Convention”). The Court of Appeal noted the trial court’s conclusion that the brothers J.A. and A.A. had been exterminated for belonging to a “political group”. Whilst admitting that the definition of the crime of genocide in Article 99 of the Criminal Code also included social and political groups, and was therefore wider than that established by the Genocide Convention, the appellate court found that the addition of those groups was “reasonable and in line with reality”. The Genocide Convention did not contain specific provisions to the effect that the concept of genocide could be interpreted widely; however, neither did the Genocide Convention prohibit such an interpretation. The concept of genocide had been expanded in Criminal Codes of other countries. The appellate court further explained that “political group means people connected by common political views and beliefs and the goal to physically eradicate such a group also means genocide, because this has an intention to eradicate part of the people (politinė grupė – tai žmonės, susiję bendromis politinėmis pažiūromis ir įsitikinimais, ir siekimas tokią grupę fiziškai sunaikinti taip pat reiškia genocidą, nes siekiama sunaikinti dalį žmonių)”. The court emphasised that:

“the attribution of the Lithuanian partisans, that is to say, participants in armed resistance to occupational power, to a particular “political” group, as was done in the trial court’s verdict, in essence was only relative/conditional and not very precise. The members of this group had at the same time been representatives of the Lithuanian nation, that is, the national group. The Soviet genocide was carried out precisely on the criteria of the inhabitants’ nationality-ethnicity. It follows that Lithuanian partisans could be attributed not only to political, but also to national and ethnic groups, that is to say, to the groups listed in the Genocide Convention.”

The Court of Appeal dismissed the applicant’s and M.Ž.’s contention that their actions were not genocide because at the time of their deaths the brothers J.A. and A.A. had not been partisans and thus could not have been considered as belonging to “a political, social or other group”:

“... The complaints of the convicted V. Vasiliauskas and M.Ž. also contain allegations that during the war the brothers J.A. and A.A. had collaborated with the German occupying forces and had committed crimes. Besides, in 1947 they had deserted from the partisan squad and afterwards did not keep in touch with other partisans. Therefore, in the appellants’ view, J.A. and A.A. could not have been considered members of any political, social or other group, and actions against them could not have been considered as acts of genocide. This Chamber is of the view that these arguments have been reasonably rejected by th[is] court and have already been addressed in the judgment of conviction. Both V. Vasiliauskas and M.Ž. mention certificate no. 1767 of the Lithuanian Archive Department, dated 13 November 2001. The certificate indicates that the KGB archive contains a criminal case on J.A., and that in the indictment of that case it is written that, when Germany occupied Lithuania, J.A. joined the armed squad of white partisans; he carried weapons and took part in arrests, detention and transportation of active Soviet party members and Jews. Besides, he conducted anti-Soviet agitation and made terrorist threats against communists, which means that he has committed the crime provided for in Article 581a of the Criminal Code of the Russian Soviet Federative Socialist Republic [counter-revolutionary crime and treason of the motherland]. On 4 May 1945 J.A. escaped from prison and joined the partisan squad.

As regards A.A., the certificate indicates that during the German occupation he served in the German police, and in 1944 he began living as an outlaw, joining the armed nationalist partisans’ unit. It is also indicated that in 1947 J.A. and A.A. left the partisan unit and went into hiding alone: they did not keep in touch with other partisans, and by order of the commander of the Tauras partisan unit were considered deserters. In respect of J.A. the same is indicated in the indictment of 16 March 1945 drawn up by the [MGB]. The specific acts that J.A. was accused of were not detailed. Assessing the above documents, it appears that they contain no data about the brothers’ involvement in particular crimes against humanity. Moreover, from the charges against J.A. it is more likely that he had been accused primarily of activity against the [USSR] occupying forces themselves. There are no data in the case file about any involvement by the brothers in other criminal acts. Even in KGB documents it is indicated that from 1947 J.A. and A.A. were hiding “without committing robberies, and they did not belong to any [criminal] gang”. The Genocide and Resistance Research Centre’s letter “Resistance activity by J.A. and A.A.” indicates that from 1945 they belonged to partisan unit no. 37... According to data from the Šakiai MGB, in 1949 [J.A. and A.A.] still belonged to partisan unit no. 37... Afterwards they left the unit and took no further part in active partisan actions.

In the Chamber’s view, the information given does not indicate that until their liquidation J.A. and A.A. could not have been considered Lithuanian partisans. In the judgment of conviction it is rightly noted that during the relevant period partisans had already been forced to fight in small groups to avoid extermination. Even in the MGB files there is an indication that in August 1952 other partisans were looking for an opportunity to meet J.A. and A.A. in order to form a single squad. Therefore the MGB decided to spread the rumour that J.A. and A.A. were MGB agents. Particular plans to discredit J.A. and A.A. are apparent from the plan of 12 September 1952 confirmed by the head of the MGB board of Kaunas District... Witness A.S. testified that in 1952 she met partisans J.A. and A.A. and supplied them with food. In addition, J.A. and A.A. gave her a certificate confirming that she was a supporter of the partisans. She has kept that certificate to this day.

On 18 November 1992 the Office of the Prosecutor General cleared J.A.’s name in respect of crimes attributed to him in the indictment of 1945. The prosecutor indicated that from October 1944 to May 1945 J.A. was unlawfully imprisoned. In 1998 and 2002 the Lithuanian Genocide and Resistance Research Centre posthumously granted J.A. and A.A. volunteer fighter (kario savanorio) certificates. The fact that the MGB itself had considered J.A. and A.A. to be partisans is clear from the report of 11 June 1952, in which the head of the Kaunas MGB informed the LSSR Minister of the Interior that measures had been adopted to ascertain the hiding place of [J.A. and A.A.] and liquidate them. The Šakiai district MGB was to take measures for speedier liquidation of [J.A. and A.A.]. All this served to prove that when putting those plans into action J.A. and A.A. had been killed as participants in the armed resistance.”

On 22 February 2005 the Supreme Court, in cassation proceedings, upheld the conviction of the applicant and M.Ž. As concerns the concept of genocide, the court held:

“Both of those convicted argue that the concept of genocide, as established in Article 99 of the Criminal Code, is broader than the one established in Article II of the 1948 Genocide Convention, thus not corresponding to the norms of international law. This argument must be dismissed.

Indeed, Article 99 of the Criminal Code does provide for a broader concept (platesnė nusikaltimo sudėtis) of the crime of genocide than that in Article II of the [Genocide] Convention. According to Article 99 of the Criminal Code, genocide also comprises actions aimed at the physical eradication of some or all of the members of a social or political group. Article II of the Convention does not mention such groups.

By acceding to the [Genocide] Convention, the Republic of Lithuania acquired the obligation to ensure that its norms were applied on its territory. Accordingly, by acceding to the [Genocide] Convention Lithuania acquired the obligation to punish actions aimed at the total or partial destruction of a national, ethnic, racial or religious group, and to prevent such actions. Acceding to the [Genocide] Convention does not deprive a State of the right to define actions which are crimes, and to prohibit them (apibrėžti veikas, kurios yra nusikaltimai, ir jas uždrausti). This is even truer because Article V of the [above] Convention provides that the Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the Convention and to provide penalties for those guilty of genocide or any of the other acts enumerated in Article III. In Lithuania, this provision has been put into force by enactment of the Law of 9 April 1992 “On Responsibility for Genocide of Inhabitants of Lithuania”. The concept of genocide, as established in Article 1 of that law, corresponded to the concept of genocide established in Article II of the Genocide Convention. At the same time, when joining the Convention, in Article 2 of the Law “On Responsibility for Genocide of Inhabitants of Lithuania” the Lithuanian Parliament established that killings and torture of Lithuanian people and their deportations during the years under Nazi German and USSR occupation and annexation corresponded to the characteristics of the crime of genocide as established by the norms of international law. The 1998 amendments to the Criminal Code established the elements of the crime of genocide (apibrėžta genocido nusikaltimo sudėtis), and included in them acts aimed at physical extermination of some or all of the members of a social or political group. This characteristic of the crime of genocide remained in Article 99 of the Criminal Code. It is clear that adding acts aimed at the physical extermination of some or all of the members of a social or political group to the definition of the crime of genocide amounts to nothing more than execution of the legal norms of Article 2 of the Law of 9 April 1992 “On Responsibility for Genocide of Inhabitants of Lithuania”. It follows that the doubts by the applicant and M.Ž. about the interpretation of the concept of the crime of genocide are not founded.”

The Supreme Court noted that the applicant and M.Ž. “had been convicted of involvement in the physical extermination of a part the inhabitants of Lithuania, who belonged to a separate political group, that is Lithuanian partisans – members of the resistance to the Soviet occupation power (nuteisti už dalyvavimą fiziškai sunaikinant Lietuvos gyventojų dalį, priklausiusią atskirai politinei grupei, t.y. Lietuvos partizanams – pasipriešinimo sovietų okupacinei valdžiai dalyviams)”. The court dismissed arguments by the applicant and M.Ž. that the brothers J.A. and A.A. had deserted from the partisans and at the time of their death they therefore no longer belonged to the partisans’ political group. That argument had been raised both before the trial and appellate courts and had been dismissed by them for sound and clear reasons.

The Supreme Court observed that in 1944-53 the “nation’s armed resistance – the partisan war – against the Soviet Union’s occupying army and structures of occupying regime was underway in Lithuania”. It further pointed out that under the Law on the Status of Participants in Resistance against the Occupations of 1940-90, enacted on 28 November 1996, the partisans who fought against the occupation had been declared to be volunteer-fighters. In 1998 and 2001 the Lithuanian Genocide and Resistance Research Centre granted volunteer-fighter status to J.A. and A.A., which meant that they had met the condition contained in that Law that such status was not to be granted to individuals who had committed crimes against humanity or had killed civilians.

The Supreme Court also dismissed the applicant’s argument that he had not committed any act causing the death of the two partisans:

“The trial court has concluded that V. Vasiliauskas took part in the killing of Lithuanian partisans J.A. and A.A.: he surrounded the bunker with other MGB officers and attacked the bunker; during the attack J.A. and A.A. were shot and killed. The trial court’s verdict does not state that V. Vasiliauskas himself killed any of the partisans, although data to that effect exists in the case file [the 2 January 1953 report by the head of the Šakiai district MGB).

Participation in killing people who belong to a political group is one of the objective elements (vienas iš nusikaltimo sudėties objektyviosios pusės požymių) of the crime of genocide listed in Article 99 of the Criminal Code. Involvement in the killing of members of the groups enumerated in Article 99 means not only committing acts causing loss of life; it also means setting up conditions (sudarymas sąlygų) so that the killings happen. It has been established that V. Vasiliauskas, as an MGB officer, together with an MGB subsection chief, took part in preparations for the operation to exterminate J.A. and A.A.; V. Vasiliauskas was armed, and during the operation he was responsible for the MGB agent [M.Ž.], who had located the partisans’ bunker; V. Vasiliauskas stayed with M.Ž. until the end of the operation. V. Vasiliauskas himself acknowledges those actions. Having taken the above into account, the Court of Appeal arrived at the reasonable conclusion that V. Vasiliauskas had played an active role in the operation of extermination of the partisans J.A. and A.A. Even though it has not been established that V. Vasiliauskas killed either of the partisans himself, the actions he took when preparing the operation and at the time of the operation correspond to the objective element of the crime of genocide, as established in Article 99 of the Criminal Code – involvement in killing people who belong to a political group.

The actions of V. Vasiliauskas also correspond to the subjective element of genocide – direct intent (tiesioginė tyčia): V. Vasiliauskas, when taking those actions, had known the goal of the Soviet Government – to eradicate all Lithuanian partisans. He knew that the brothers J.A. and A.A. were partisans, and understood that during the operation they would be killed or arrested and then tortured, tried as “traitors to the homeland” and [possibly] sentenced to death, and [V. Vasiliauskas] wished that to happen.”

On 20 December 2004 M.B. brought civil proceedings, claiming 200,000 Lithuanian litai (LTL, approximately 58,000 euros (EUR)) from the applicant and M.Ž., to be paid by them jointly. The plaintiff noted that one of the partisans who had been killed, J.A., was her father, and the other partisan, A.A., was her uncle. At the time of their death she was nearly seven years old. Her father’s death had left her an orphan. Because of the applicant’s actions she and her remaining family members had sustained enormous mental suffering, depression, humiliation, and loss of reputation; her opportunities to communicate with others had been reduced and she had had to hide and constantly change her place of residence. M.B. argued that she continued to feel the repercussions of the crime up to the present time, because the applicant and M.Ž. still refused to tell her where her father was buried.

On 9 November 2006 the Kaunas Regional Court dismissed the claim. It noted that the State of Lithuania had already paid M.B. the sum of LTL 20,000 as one-off compensation payable to those whose families had suffered under the 1940-90 occupation (see paragraph 68 below). It followed that the State had already compensated for M.B.’s suffering caused by the loss of her family members.

By a ruling of 20 June 2007 the Court of Appeal overturned the above decision and found that the applicant and M.Ž. were to pay a sum of LTL 150,000 for the damage their criminal actions had caused M.B. The court also emphasised that M.B. could not have applied for damages in Soviet times, when Lithuania was under occupation, that is, during the period when the applicant and M.Ž. had committed the crimes “against the Lithuanian partisans’ battles for the freedom and independence of the Lithuanian State (nukreipti prieš Lietuvos partizanų kovas už Lietuvos valstybės laisvę ir nepriklausomybę)”. It found that the loss of her family member and a close relative had caused M.B. serious suffering and emotional depression. Furthermore, the court emphasised that “it had to be taken into consideration that the criminal acts were committed on a massive scale and in essence were directed not against particular individuals, but against everyone who had fought for the independence of Lithuania”. Given the applicant’s and M.Ž.’s serious health problems and the fact that considerable time had elapsed since the crimes were committed, the appellate court awarded M.B. the sum of LTL 150,000 in compensation for non-pecuniary damage, to be paid jointly by both individuals who had been found guilty of genocide.

By a ruling of 28 February 2011 the enlarged chamber of the Supreme Court upheld the appellate court’s decision, but reduced the sum to be paid jointly (solidariai) by the applicant and M.Ž. to LTL 50,000 (approximately EUR 14,500). The court observed, inter alia, that the applicant and M.Ž. had committed the crime of genocide when acting together with officers of the LSSR Šakiai district MGB and Soviet soldiers. Accordingly, it was necessary not to impose a disproportionate burden on the applicant and M.Ž. Moreover, “crimes against humanity had the characteristic that they were directed against many people, that is to say the perpetrator caused harm to many victims”, which also had to be taken into account when adjudging the damages to be paid to each of the victims. Should the court grant too large a sum of money, it could complicate the execution of subsequent court decisions if not all the victims were known or should they come forward in future.

After the Constitutional Court’s ruling of 18 March 2014 (see paragraphs 56-63 below), by a decision of 10 April 2014 the Prosecutor General decided to initiate a process under Article 444 of the Code of Criminal Procedure on account of newly discovered circumstances. The Prosecutor General noted that the trial court had found the applicant and M.Ž. guilty of genocide of a political group. The conviction had been upheld by appellate and cassation courts. The Prosecutor General’s decision states that, taking into consideration the conclusions set out in the Constitutional Court’s ruling to the effect that retroactive prosecution for genocide of persons belonging to a political or social group was in breach of the principle of the rule of law, it had to be ascertained whether the applicant (and his co-accused M.Ž.) were to be considered innocent, guilty of genocide or, as another alternative, whether they might have committed some other criminal activity. A prosecutor from the Prosecutor General Office was appointed to examine those newly discovered circumstances.

By a final decision of 28 May 2014 the prosecutor held that the Constitutional Court’s ruling of 18 March 2014 constituted an interpretation of a legal norm and not a newly discovered factual circumstance (“another circumstance” within the meaning of Article 444 § 1 (4) of the Code of Criminal Procedure). Consequently, it could not be the basis for requesting the Supreme Court to re-open the applicant’s criminal case. Accordingly, this constituted a legal impediment to an application to the Supreme Court to re-open the criminal procedure in the applicant’s case.


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)

The applicant was born in 1957 and lives in Ljubljana.

The applicant served his prison sentence in the closed section of Ljubljana prison in the period between 28 May 2009 and 27 February 2010. From 28 May 2009 to 23 September 2009 he was held in cell 2 (third floor), which measured 18 square metres (including a separate 1.72 square metre sanitary facility) and contained 5 sleeping places. From 23 September 2009 to 22 January 2010 and from 28 January 2010 to 27 February 2010 he was held in cell 129 (second floor), which measured 8.8 square metres (including a separate 1.3 square metre sanitary facility) and contained two sleeping places. From 22 January 2010 to 28 January 2010 he was held in cell 121 (second floor), which measured 18 square metres (including a separate 1.72 square metre sanitary facility) and contained six sleeping places. According to the applicant, five prisoners were being held in each of the cells during his detention. The Government submitted that in cell 2 the numbers varied between four and five, in cell 129 the applicant was held alone and in cell 121 three prisoners were held.

During his imprisonment the applicant had three consultations with a general practitioner and one dental appointment. He did not ask for psychological or psychiatric treatment.

As regards the general characteristics of the cells, 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).

From 26 October 2009 to 13 January 2010 the applicant was placed under a stricter regime as he had physically attacked another prisoner. During that time he could spend two hours per day outside his room during recreation time, he had two hours for visits per week and telephone contacts twice a week. He was not allowed to use a multipurpose hall and he received his meals in his cell.

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.


CASE OF DUMITRESCU AND OTHERS v. ROMANIA

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

Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

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

The applicants complained of the inadequate conditions of their detention.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-3-d - Examination of witnesses)

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

The applicant was born in 1975 and is detained in Turkey.

On 22 August 2004 the applicant was arrested on suspicion of membership of an illegal organisation, namely the PKK (the Kurdistan Workers’ Party). The following day, on 23 August 2004, he was questioned by the gendarmerie, at which time he was reminded of his rights, including the right to benefit from legal assistance. He refused the assistance of a lawyer and gave a statement of forty-nine pages in length in which he admitted his membership of the PKK and gave detailed information about the organisation and its members. According to transcripts of that statement, the applicant read its content and signed every page of it.

On 26 August 2004 the applicant was brought before the Tunceli public prosecutor and he was again reminded of his right to benefit from legal assistance. He indicated that he did not wish to be assigned a lawyer and that he would make a statement without assistance. He confirmed his membership of the PKK and his support for that illegal organisation, however maintaining that he had never been involved in an armed operation. The applicant was placed in detention pending trial on the same day.

On 3 December 2004 the Malatya public prosecutor filed an indictment with the Malatya Assize Court, charging the applicant under Article 125 of the former Criminal Code with seeking to destroy the constitutional order and unity of the Turkish State and to remove part of the country from the State’s control. The public prosecutor claimed that the applicant:

- had exploded a remote-controlled land mine in Ovacık province in November 2003 that had caused the injury of one soldier,

- had exploded a time bomb in Ovacık province on 28 October 2003 that had caused the injury of two soldiers.

In its assessment report (tensip zaptı) dated 10 December 2004 the Malatya Assize Court ordered a copy of the police statements of D.T., M.A., A.Ç., S.G., H.B. and V.D. The trial court further ordered that the whereabouts of D.T. be ascertained.

M.A. was tried in another set of criminal proceedings concerning the same organisation. On 17 February 2004 M.A. lodged an application to benefit from the Reintegration of Offenders into Society Act (Law no. 4959), which had come into force on 6 August 2003.

On 30 December 2004, at the first hearing, the applicant gave evidence in the presence of his lawyer and accepted the contents of his police statement. In other words, the applicant once again admitted his membership of the PKK while insisting that he had not been involved in any armed activity. He further stated that his statement had not been read back to him by the police and asked the trial court not to take it into consideration in case it had any incriminatory remarks in respect of himself or third persons in so far as they concerned participation in armed activities. When asked about his statement before the public prosecutor, the applicant essentially confirmed it, whilst insisting that he had not given any statement concerning the attacks in Tunceli, a city in the east of Turkey, and adding that he had signed it without reading it. Lastly, the applicant stated that he had received training in bomb-making and that he had been planning to carry out bomb attacks in major cities in accordance with the instructions of the PKK. His lawyer submitted that he had nothing to add to the applicant’s statements.

During the same hearing the trial court questioned several witnesses, namely A.Ç., M.A. and K.A. A.Ç. testified that he knew the applicant but that they had not carried out any armed attack together. M.A. stated that he had not known the applicant’s real name, but he had known him as “Hamza”. M.A. further testified that he had no knowledge of the applicant’s position and activities within the illegal organisation. K.A. testified that he did not know the applicant.

At a hearing on 25 November 2005 the trial court noted that D.T. was in Kırklareli Prison and it issued a letter of request to the Kırklareli Assize Court, requesting that the latter obtain his statements.

On 14 December 2005 D.T.’s statement was taken by the Kırklareli Assize Court, pursuant to the letter of request by the trial court. According to the transcript of the hearing at the Kırklareli Assize Court, D.T. was detained in Kırklareli E-type Prison at the time his statement was taken. D.T. stated that he had known the applicant as “Zafer” and that he had knowledge of the attack in Ovacık province, adding that he had heard such information from the member with the code name “Serhildan”.

On 15 March 2006 the applicant asked the trial court to hear evidence from D.T. in person. The trial court rejected this request on the basis that hearing D.T.’s testimony in person would not contribute to its assessment since his statement given before another court had been considered sufficient for a conviction.

On 10 May 2006 the Malatya Assize Court found the applicant guilty pursuant to Article 125 of the former Criminal Code and sentenced him to life imprisonment. The court took account of the variety of evidence and witness statements, including those of D.T., which had been taken by the Kırklareli Assize Court at the trial court’s request. The relevant parts of the trial court’s reasoned judgment read as follows:


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant was born in 1979 and resides in Kyiv.

At 4.00 a.m. on 3 March 2003 M.’s house in the town of Pyryatyn (in the Poltava region) was burgled by several persons. M., his mother (M.S.), his wife (M.L.) and M.G. (M.L.’s niece) were in the house at the time. M. and M.S. sustained bodily injuries. Various items of property, including jewellery, were stolen. Criminal proceedings were instituted by the police on the same day.

On 24 April 2003 the applicant was arrested in Kyiv. According to the applicant, he was arrested while at home. According to official records, the applicant was arrested at 6.20 p.m. for swearing in public and behaving “with insolence” (викликаюче).

On 25 April 2003 the Kyiv Golosiyivskyy District Court imposed on the applicant fifteen days’ administrative arrest for disorderly conduct.

On 7 May 2003 the applicant was transported from Kyiv to the town of Pyryatyn (about 150 kilometres). On 8 May 2003 he confessed to the above-mentioned burglary.

On 9 May 2003 the applicant was formally arrested on suspicion of having committed a crime.

On 11 May 2003 a lawyer, Ma., allegedly hired by the applicant’s family, submitted a request to the investigation officer for permission to represent the applicant in the criminal case against him. The lawyer also noted that since investigative actions planned for that day had not taken place he had returned to Kyiv. On the same day, Ma. was given leave to represent the applicant.

On 12 May 2003 an identification parade took place in the presence of two attesting witnesses. The victims, M., M.L. and M.G., identified the applicant as the person who had been in their house on the night of 3 March 2003. Two more persons participated in the identification parade. Their description, according to the official records, was as follows: person no. 1: 1.81 metres tall, dark hair, brown eyes, wearing dark blue jeans, a grey T-shirt and trainers; person no. 2: 1.76 metres tall, dark blond hair, green eyes, wearing grey trousers, a grey T-shirt and trainers; person no. 3 (the applicant): 1.89 metres tall, dark blond hair, grey eyes, wearing dark blue sport pants, a T-shirt and trainers.

M.G. stated that she had recognised the applicant by his voice, height and body type. M. stated that he had recognised the applicant by his voice, and M.L. that she had recognised the applicant by his voice and body type.

The identification parade was carried out in the absence of the applicant’s lawyer. The police officer who conducted the parade informed his supervisor that the applicant’s lawyer was not able to attend as he was busy in another criminal case. The applicant was offered another lawyer but refused. The record of the identification parade was signed by all those present and it was noted that the parade’s participants had “no complaints”.

On 14 May 2003 a lawyer, S., was given leave to represent the applicant. She represented him until at least 18 August 2005.

On 9 November 2004 the Pyryatynskyy District Court sentenced the applicant to nine years’ imprisonment with confiscation of his property, and two of his accomplices (D. and Zh.) to terms of imprisonment and confiscation of their property for the burglary of M.’s house and the infliction of minor bodily injuries on M. and M.S. Two other persons involved in the crime (P. and L.) had not been found. The court also granted the victims’ civil claims.

In the course of the trial proceedings, the applicant pleaded innocent. His testimonies at the trial could be summarised as following. In March 2003 he had been asked to drive D. in exchange for payment. Zh. and My. had been with them. They had stopped near a building. Everybody except the applicant had left the car. The applicant stated that he had slept in the car for a night and a day. Then D., Zh. and two unknown persons had driven “to the garages”. Everybody had left and he had stayed in the car. The applicant did not know where they had gone i.e. he did not know about the burglary. The applicant further stated that he had pleaded guilty because the police officers had beaten him.

At his court hearing Zh. pleaded partially guilty and testified that the applicant had remained in the car while M.’s house was being burgled. D. pleaded partially guilty but did not say anything regarding the applicant’s involvement in the crime.

M. and M.L. testified that they had seen four or five persons break into the house that night. They had tied M.L. up and had taken money. M. had been severely beaten by D. The former recognised the applicant since the applicant had been very frightened and he remembered his eyes. It was noted in the court hearing record that M. said: “I saw [the applicant], he was trembling all over, he was so stressed, I saw his eyes. I cannot be mistaken”. The aggressors had worn masks but later removed them. All of them had been shorter than D. and the applicant, who were the tallest. M.L. testified that she had seen four persons and that M.S. had seen a fifth one, who had been in the corridor.

M.G. testified that the applicant had been very frightened and had been trembling all over. He had been similarly frightened during the identification parade. She also recognised him because of his height and voice. She remembered that he had asked her age and whether she was married. During the identification parade all three persons had said the same sentence and she had recognised the applicant.

The court found that on 3 March 2003 the applicant, D., Zh., P. and L. upon prior planning had broken into the house of M., had inflicted bodily injuries to M. and M.S., and robbed the M.’s family. In this finding, the court referred to various pieces of evidence, including the record of the reconstruction of events where Zh. explained how he, D., P., L. and the applicant had committed a robbery; the record of the identification parades in which M., M.G. and M.L. had recognised the applicant; and the conclusion of the forensic examination of tyre tracks found near M.’s house, which matched the applicant’s car.

In respect of the applicant’s punishment, the court noted that the applicant was young, had positive character traits, and it was the first crime he had committed; however, his guilt had been aggravated by the fact that he was transporting criminals to and from the place of the crime.

The applicant’s lawyer appealed against that decision. In her appeal she stated that the applicant had been ill-treated and had pleaded guilty under physical pressure. The applicant had been paid by D. to drive him and the others. As the applicant had been drunk, D. had driven the car himself. The applicant had remained in the car all the time. The applicant’s dog had also been in the car as the applicant had initially been taking him to an acquaintance to have him mated. Once there, he had been asked to drive D. The applicant’s lawyer also noted that during the investigation stage the victims had given contradictory statements as to whether they had seen their aggressors. Moreover, the identification parade had been carried out in the absence of a lawyer.

On 18 August 2005 the Poltava Regional Court of Appeal dismissed the appeal. The court held that the applicant’s guilt was confirmed by the testimony of D. and Zh. given during the pre-trial investigation in the presence of their lawyers. The court also noted that the applicant’s complaints of ill-treatment were unsubstantiated and that the separate ruling adopted on 9 November 2004 (see paragraph 36 below) had been quashed accordingly.

On 23 February 2006 the Supreme Court of Ukraine rejected the applicant’s appeal in cassation. The court noted that the applicant’s complaints of ill-treatment had been properly checked and dismissed as unsubstantiated.

The applicant stated that police officers had beaten him in Kyiv and on 7 May 2003 in Pyryatyn. They had hit him with a book on the head, punched him, threatened him with murder and rape, and put a gas mask over his face and blown cigarette smoke into it. After being severely beaten he had been forced to confess.

On an unspecified date the applicant made a complaint about this illtreatment.

The case-file materials contain references to an expert forensic medical examination performed on 12 September 2003 (the applicant stated that it was performed on 12 May 2003 following his complaint lodged on 9 May 2003). According to the references, the expert concluded that the applicant had minor bodily injuries which could have been caused by “items in his surroundings” (предмети оточуючої обстановки). However, the applicant stated that the expert had concluded that the injuries could not have been caused by “items in his surroundings”. Neither of the parties submitted a copy of the report in question.

On 29 October 2003 an investigative officer of the Pyryatynskyy District Prosecutor’s Office issued a decision refusing to institute criminal proceedings following the applicant’s complaints of ill-treatment. Several police officers had been questioned. They had testified that the applicant had confessed his guilt and that nobody had ill-treated him. The prosecutor also referred to the forensic medical examination report of 12 September 2003.

On 2 April 2004 that decision was quashed by another prosecutor of the same prosecutor’s office. It was noted that not all of the circumstances of the applicant’s complaint had been looked into. In particular, it should have been ascertained why the applicant had been arrested in Kyiv, and under what circumstances he had sustained the bodily injuries; his medical documents should have been studied and his complaints should have been carefully examined.

On 29 April 2004 the Pyryatynskyy District Prosecutor’s Office refused to institute criminal proceedings against the police officers. The decision was similar to the one of 29 October 2003.

On 10 June 2004 the Pyryatynskyy District Court quashed that decision and ordered an additional investigation. The court specified that the investigation should ascertain the cause of the applicant’s injuries, whether he had had those injuries upon his arrival at the Pyryatynskyy Police Station, and which police officers had had contact with him.

On 16 July 2004 the Pyryatynskyy District Prosecutor’s Office again dismissed the applicant’s complaints. In its decision it noted that the applicant had been arrested in Kyiv on 9 May 2003. Upon his arrest and transfer to the Pyryatyn Temporary Detention Centre the applicant had not complained about any ill-treatment. The rest of the decision was similar to the one of 29 October 2003.

On 10 September 2004 the court quashed that decision and remitted the case for additional investigation. The court raised the same points as in its decision of 10 June 2004.

On 9 November 2004 the Pyryatynskyy District Prosecutor’s Office adopted another refusal to institute criminal proceedings which was identical to its previous decisions. In particular, it was noted that the applicant had been arrested in Kyiv on 9 May 2003.

On the same date, the Pyryatynskyy District Court adopted a separate ruling by which it requested the Poltava Regional Prosecutor’s Office to examine the applicant’s complaints of ill-treatment. The court stated that the applicant had been unlawfully transported from Kyiv to Pyryatyn and that, according to the forensic medical report, he had had three bruises on his chest from being punched.

On 20 May 2005 the Poltava Regional Court of Appeal adopted another separate ruling in which it requested the Poltava Regional Prosecutor’s Office to examine the applicant’s complaints of ill-treatment. The court noted that according to the conclusions of the forensic medical examination of the convicted persons, they had bodily injuries which could have been inflicted on the date and under the circumstances described by them. However, the court did not indicate whether the persons concerned included the applicant. The court also noted that the applicant had made a note on the decision ordering his arrest of 9 May 2003 that he had been illtreated on 7 May 2003. The court further noted that on 11 June 2003 the applicant had complained about ill-treatment, but the case-file contained no response to that complaint.

On 31 May 2005 the Poltava Regional Prosecutor’s Office quashed the decision of 9 November 2004 not to institute criminal proceedings and remitted the case for additional investigation. On the same date it requested the Kyiv City Prosecutor’s Office to ascertain the following:

- which police officers had arrested the convicted persons and on what grounds;

- who had conducted the “pre-investigation” activities (дослідчі дії) in respect of the applicant and prepared the relevant procedural documents;

- who had picked up and transported the convicted persons from the Golosiyivskyy Police Station to the Pyryatynskyy Police Station;

- whether the convicted persons had had bodily injuries upon their arrival at the Pyryatynskyy Police Station.

It further requested the Kyiv City Prosecutor’s Office to question the personnel of the Golosiyivskyy Police Station.

A decision not to institute criminal proceedings was adopted on 15 June 2005. It was similar to the one of 29 October 2003. It was noted that the applicant had been arrested in Kyiv on 9 May 2003. The police officers of the Pyryatyn Police Station had testified that the applicant had not been ill-treated but had confessed on his own free will. According to the forensic medical report of 12 September 2003, the applicant had had minor bodily injuries which could have been caused by “items in his surroundings”. Scratches on his wrists had been caused by handcuffs.

On 18 August 2005 the Poltava Regional Court of Appeal quashed the separate ruling of 9 November 2004.


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);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

On the dates set out in the appended table domestic courts and a labour disputes commission delivered decisions according to which the applicants were entitled to various pecuniary amounts or to have certain actions taken in their favour. The decisions became final and enforceable. However, the applicants were unable to obtain the enforcement of the decisions in due time.

Some of the applicants also made submissions concerning factual and legal matters unrelated to the above non-enforcement issues.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Brought promptly before judge or other officer);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);No violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

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

The applicant was born in 1961 and lives in Poltava.

The applicant is a private entrepreneur in the food supply sector.

Since November 2009 the Poltava Regional Police Department has been investigating a number of apparent offences related to forgery of food quality certificates and supply of overpriced foodstuffs for school catering in the city of Poltava. As part of this investigation the police ran checks on the applicant’s business and questioned his associates and family members.

On 3 November 2010 the police instituted criminal proceedings against the applicant in the context of an investigation of unlawful food supply price increases.

On 5 November 2010 the applicant was arrested by the police on suspicion of a financial offence. A record of his arrest was drawn up between 2.45 and 3.30 p.m. on that day.

On 8 November 2010 the applicant was taken to the Poltava Oktyabrsky District Court (hereinafter “the District Court”), which remanded him in custody for up to ten days under Article 165-2 of the Code of Criminal Procedure (see paragraph 19 below) without giving any specific reasons for this decision. According to the applicant, the hearing started at 2.55 p.m. and the decision was taken only at 4 p.m., when the maximum period of detention without a court decision (seventy-two hours) permitted under domestic law had expired. The applicant’s lawyer lodged a formal complaint with the judge about unlawful arrest and detention. That complaint was not examined that day.

On the same day the police instituted two more sets of proceedings against the applicant on suspicion of other counts of the same crime.

On 9 November 2010 the applicant’s lawyer submitted to the court a further complaint about unlawful detention, in addition to the one he had submitted on the date of the hearing (see paragraph 9 above).

On 15 November 2010 the District Court remanded the applicant in custody with no maximum duration and on the basis of standard reasoning, referring to gravity of charges, risk of interference with investigation, and personal characteristics without any further explanation. In a separate ruling it rejected the applicant’s lawyer’s complaint (see paragraph 9 above) that from 2.45 p.m. onwards on 8 November 2010 his detention had been unlawful. It noted “Documents [attached] to the application [for a warrant for the applicant’s arrest] refute the allegations regarding the detention of [Mr] Gal O.A. in terms that are not provided by law.”

On 23 November 2010 the Poltava Regional Court of Appeal upheld the decision of the first-instance court. In reply to the lawyer’s complaint about the failure to release the applicant after seventy-two hours of initial detention without a court order, the appellate court noted that on 8 November 2010 the applicant’s detention had been extended for up to ten days.

On 29 December 2010 the District Court extended the applicant’s detention for up to three months, i.e. until 5 February 2011, on the grounds that the applicant might avoid justice, obstruct the investigation and continue his criminal activities, and that it was necessary to ensure the implementation of procedural decisions.

On 18 January 2011 the Poltava Regional Court of Appeal upheld the decision of the first-instance court.

On 3 February 2011 the criminal case against the applicant was referred to the court and was received by that court on 4 February 2011. Twenty days later the prosecution authorities called the case back to correct certain shortcomings. On 25 February 2011 the court returned the case to the prosecutor, who sent the case back to the court on the same day.

On 25 March 2011 the Poltava Leninskiy District Court examined the application for release lodged by the applicant’s lawyer and allowed it. The applicant’s pre-trial detention was replaced by an obligation not to abscond.

The relevant provision of the Constitution reads as follows:

“Every person has the right to freedom and personal inviolability.

No one shall be arrested or held in custody other than pursuant to a reasoned court decision, and only on grounds and in accordance with a procedure established by law.

In the event of an urgent need to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be established by a court within seventy-two hours. The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of the time of detention, with a reasoned court decision in respect of the holding in custody.

Everyone who has been arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the time of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of defence counsel.

Everyone who has been detained has the right to challenge his or her detention in court at any time.

Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.”

The relevant provisions of the Code read as follows:

“An investigating body shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on one of the following grounds:

if the person is discovered whilst or immediately after committing an offence;

if eyewitnesses, including victims, directly identify this person as having committed the offence;

if clear traces of the offence are found on the body of the suspect or on the clothing he is wearing or which is kept at his home.

For each case of detention of a criminal suspect, the investigating body shall be required to draw up a record mentioning the grounds, the motives, the day, time, year and month, the place of detention, the explanation given by the person detained and the time when it was recorded that the suspect was informed of his right to consult defence counsel in person before he is questioned, in accordance with the procedure provided for in paragraph 2 of Article 21 of the present Code. The record of detention shall be signed by the person who drew it up and by the detainee.

A copy of the record with a list of his rights and obligations shall be immediately handed to the detainee and shall be sent to the prosecutor. At the request of the prosecutor, the material which served as a ground for detention shall be sent to him as well ...

Within seventy-two hours of the arrest the investigating body shall:

(1) release the detainee if the suspicion that he committed the crime has not been confirmed, if the term of detention established by law has expired, or if the arrest has been effected in violation of the requirements of paragraphs 1 and 2 of the present Article;

(2) release the detainee and select a non-custodial preventive measure;

(3) bring the detainee before a judge with a request for a custodial preventive measure to be imposed on him or her.

If the detention is appealed against to a court, the detainee’s appeal shall be immediately sent by the head of the detention facility to the court. The judge shall consider the appeal together with any request by the investigating body for the preventive measure. If the appeal is received after the preventive measure has been applied, the judge shall examine it within three days of receiving it. If the request has not been received, or if the appeal has been received after the term of seventy-two hours of detention, the appeal shall be considered by the judge within five days of receiving it.

The appeal shall be considered in accordance with the requirements of Article 165-2 of this Code. Following its examination, the judge shall give a ruling, either declaring the detention lawful or allowing the appeal and finding the detention to be unlawful.

The judge’s ruling may be appealed against within seven days of the date of its adoption by the prosecutor, the person concerned, or his or her defence counsel or legal representative. Lodging such an appeal does not suspend the execution of the court’s ruling.

Detention of a criminal suspect shall not last for more than seventy-two hours.

If, within the terms established by law, the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre-trial detention facility, the head of the pre-trial detention facility shall release the person concerned, drawing up a record to that effect, and shall inform the official or body that carried out the arrest accordingly.”

“... In the event that the investigating body or investigator considers that there are grounds for selecting a custodial preventive measure, with the prosecutor’s consent he shall lodge an application with the court. The prosecutor is entitled to lodge an application to the same effect. In determining this issue, the prosecutor shall be obliged to familiarise himself with all the material evidence in the case that would justify placing the person in custody, and to establish that the evidence was obtained in a lawful manner and is sufficient for charging the person.

The application shall be considered within seventy-two hours of the time at which the suspect or accused is detained ...

Upon receiving the application, the judge shall examine the material in the criminal case file submitted by the investigating bodies, the investigator, or the prosecutor and shall question the suspect or accused and, if necessary, hear evidence from the person who is the subject of the proceedings, obtain the opinion of the previous prosecutor or defence counsel, if the latter appeared before the court, and issue an order:

(1) refusing to select a custodial preventive measure if there are no grounds for doing so;

(2) selecting a custodial preventive measure.

The court shall be entitled to select a non-custodial preventive measure for the suspect or accused if the investigator or prosecutor refuses to apply a custodial preventive measure.

The judge’s order may be appealed against to the court of appeal by the prosecutor, suspect, accused or his or her defence counsel or legal representative, within three days of the date on which it was made. The lodging of an appeal shall not suspend the execution of the judge’s order.

If the selection of the preventive measure for the detained person requires further examination of information about that person, or if other circumstances relevant to the decision on this matter need to be established, the judge may issue a decision to continue the detention for up to ten days, and, at the request of the suspect or accused, for up to fifteen days. Where such a need arises in respect of a person who has not been apprehended, the judge may postpone the hearing for up to ten days and take measures which would ensure that person’s cooperation or issue a decision to detain a suspect or an accused for that period of time.”


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant, Mr Joni Hänninen, is a Finnish national, who was born in 1970 and lives in Vantaa. He was represented before the Court by Mr Jukka Juusela, a lawyer practising in Helsinki.

The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

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

On 4 June 2011 the police conducted a search of an apartment which the applicant owned. The apartment was searched because another person staying there was suspected by the police of attempted manslaughter (tapon yritys, försök till dråp).

The applicant claims that he, as the owner of the apartment, was not allowed to be present during the search, nor was he told why the apartment was being searched and why he could not be present. The search was conducted late at night (at 11 p.m.) without any special reason. The apartment had been damaged because the police had entered violently, even though the applicant had been willing to give them a key, and the police dog had damaged the floor. The applicant’s car had also been searched.

According to the Government, the minutes drawn up after the search indicated that the applicant, as the owner of the apartment, had been informed about the search. He had been requested to give the police the key to the security lock of the door to the apartment. As no key was available, the security lock was drilled with the applicant’s consent. It appeared from the minutes that the applicant’s car was never searched. Nor had the police dog entered the apartment during the search.

On 12 September 2011 the applicant received the minutes drawn up after the search.

By letter dated 8 December 2011, the applicant claimed compensation from the Helsinki Police Department for the damage caused by the police.

On 16 April 2012 the applicant’s claim for compensation was rejected by the Helsinki Police Department for lack of fault or negligence on the part of the police.

The applicant has the possibility to take the issue further by instituting a civil action in a District Court (käräjäoikeus, tingsrätten) but apparently he has not done so.

According to Article 10 of the Finnish Constitution (perustuslaki, grundlagen, Act no. 731/1999), the sanctity of everyone’s home is guaranteed. Measures derogating from this right, and which are necessary for the purpose of guaranteeing basic rights and liberties or for the investigation of crime, must be laid down by an Act.

Chapter 5, section 1, subsection 1, of the Coercive Measures Act (pakkokeinolaki, tvångsmedelslagen, Act no. 646/2003) provides that a search may be conducted, inter alia, if there is reason to suspect that an offence has been committed and provided that the maximum sentence applicable exceeds six months’ imprisonment.

The person whose domicile is being searched, or in his or her absence someone else, must be given the opportunity to be present at the search and to call a witness, unless this causes delay. If none of the abovementioned persons were present at the search, the person whose domicile has been searched must be informed immediately (Chapter 5, section 4, subsection 2).

A search at domicile cannot be conducted between 9 p.m. and 6 a.m. unless there are special reasons (Chapter 5, section 5, subsection 4).

The search warrant is issued by the investigative organs themselves.

According to Chapter 21, section 1, of the Penal Code (rikoslaki, strafflagen, as modified by Act no. 578/1995), a person shall be sentenced for manslaughter to imprisonment for a minimum of eight years and a maximum of twelve years. For an attempt, the maximum sentence is at most three quarters of the maximum sentence for the accomplished offence.

According to section 118, subsection 3, of the Constitution anyone who has suffered a violation of his or her rights or sustained loss through an unlawful act or omission by a civil servant or other person performing a public function shall have the right to request that the civil servant or other person in charge of the public function be sentenced to punishment and that the public organisation, official or other person in charge of a public function be held liable for damages, as provided in more detail by an Act.

Chapter 40, section 9, subsection 1, of the Penal Code (Act no. 604/2002) provides that if a public official, when acting in office, intentionally in a manner other than that provided above in this Chapter violates or neglects to fulfil his official duty based on the provisions or regulations to be followed in official functions, and the act, when assessed as a whole, taking into consideration its detrimental and harmful effect and the other circumstances connected with the act, is not a petty offence, he shall be sentenced for violation of official duties to a fine or to imprisonment for at most one year.

Chapter 40, section 10, of the Penal Code (Act no. 604/2002) provides that if a public official, when acting in office, through carelessness or lack of caution, in a manner other than that referred to in section 5, subsection 2, violates or neglects to fulfil his or her official duty based on the provisions or regulations to be followed in official functions, and the act, when assessed as a whole, taking into consideration its detrimental and harmful effect and the other circumstances connected with the act, is not a petty offence, he shall be sentenced for negligent violation of official duties to a warning or to a fine.

According to Chapter 1, section 14, of the Criminal Procedure Act (laki oikeudenkäynnistä rikosasioissa, lagen om rättegång i brottmål, Act no. 689/1997), an injured party may bring a private prosecution only if the public prosecutor has decided not to press charges.

Under Chapters 3 and 4 of the Tort Liability Act (vahingonkorvauslaki, skadeståndslagen, Act no. 412/1974) proceedings may be brought against the State in respect of damage resulting from fault or negligence by its employees in the performance of their duties.


Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)

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

The applicant was born in 1979 and habitually resides in Pružina.

Between 29 October 2007 and 12 March 2009 the applicant was charged with a number of offences, mainly of a violent nature and with an organised crime background.

On 27 September 2008 he was arrested in the context of his prosecution on these charges, and subsequently remanded in custody pending trial. At the time of his request for release, which forms the subject matter of this application and is described in detail below, his detention was authorised by the Special Court (Špeciálny súd) until 27 September 2009.

After the events complained of, the applicant was released on 1 April 2010. However, the criminal proceedings against him appear to be still pending.

By a submission dated 20 May 2009, addressed to the Office of Special Prosecutions (Úrad Špeciálnej prokuratúry - “the OSP”), and received by its addressee on 26 May 2009, the applicant requested release.

He relied on a recent judgment of the Constitutional Court (Ústavný súd) concerning the status of the Special Court (see Fruni v. Slovakia, no. 8014/07, §§ 11-15 and 68-89, 21 June 2011), argued that his detention on the authority of the Special Court had been unlawful, and maintained that his detention had in any event been unwarranted.

By a submission dated 21 May 2009, the applicant addressed a similar request to the Office of the Prosecutor General (Generálna prokuratúra - “the OPG”), where it was received on 25 May 2009.

Lastly, by a submission dated 21 May 2009, addressed to the Special Court and received there on 29 May 2009, the applicant requested release on similar grounds and offered a formal pledge that, if released, he would live in accordance with the law.

By law, all three submissions fell to be examined at first instance by the OSP. Those made to the OPG and the Special Court were therefore transmitted to the OSP on 26 May and 3 June 2009, respectively.

As the OSP did not grant the request formulated in the three submissions, they fell to be judicially examined by the Special Court, to which they were transmitted on 2 and 3 June 2009, respectively.

By way of a submission dated 23 May 2009, which was received by the Special Court on 29 May 2009, the applicant expressed objections to the handling of his case by the Special Court judge who was handling his detention case at first-instance, which the Special Court interpreted as a challenge to the judge on the grounds of bias.

On 2 June 2009 the challenge was dismissed. On 10 June 2009 the decision was served on the applicant and on 11 June 2009 he lodged an interlocutory appeal (sťažnosť), which was dismissed by the Supreme Court (Najvyšší súd) on 24 June 2009. The case file was returned to the Special Court on 1 July 2009.

On 1 July 2009 the Special Court ordered that the request be examined in the framework of a public session (verejné zasadnutie) to be held on 13 July 2009.

On 8 July 2009 the Special Court was informed that the applicant’s lawyer had been struck off the list of counsel and thus could no longer represent him. In response, on 9 July 2009 the Special Court enquired of the investigator whether the applicant had been asked to appoint a new lawyer and, if so, whether he had actually done so. Later on the same day, the investigator asked the applicant to appoint a lawyer within three days, failing which a lawyer would be appointed for him by the court.

On 13 July 2009 the applicant was heard before the Special Court. He submitted that it was his intention to appoint a lawyer, that the three-day timescale allowed him for that purpose had been unrealistically short, and that he disagreed with having a lawyer appointed for him by court.

In the circumstances ‒ as legal representation was mandatory ‒ the public session scheduled for later on 13 July 2009 had to be cancelled.

Nevertheless, on the same day, that is on 13 July 2009, the applicant also made a written submission containing his arguments and waiving his right to have the request for release examined in a public session.

On 16 July 2009 the Special Court appointed a lawyer for the applicant and dismissed the applicant’s request for release.

The written version of the decision to dismiss the applicant’s request for release was served on his courtappointed lawyer on 21 July 2009, on his subsequently appointed lawyer of choice on 27 July 2009, and on the applicant himself on 30 July 2009.

In it, the Special Court recapitulated the procedural history and the applicable statutory provisions. In addition, it observed that the Constitutional Court’s judgment referred to by the applicant (see paragraph 9 above) had not yet been published in the Collection of Laws. Its rulings had thus not entered into force yet and the Special Court’s status was not compromised for the time being. Moreover, the Special Court explained in detail why it considered the applicant’s detention necessary and why his release in return for a pledge of lawful conduct was not acceptable.

By way of an interlocutory appeal lodged by both the applicant’s lawyer and the applicant himself, the applicant challenged the decision of 16 July 2009 to dismiss his request for release.

The appeal lodged by his lawyer was dated 23 July 2009, was addressed to the Special Court, reached its addressee on 27 July 2009, and was transmitted to the Supreme Court on 31 July 2009.

The applicant’s own appeal was dated 2 August 2009, was addressed directly to the Supreme Court, and was received there on 5 August 2009.

At the same time as lodging the appeal, the applicant challenged the entire criminal-law bench of the Supreme Court on grounds of bias, once again relying on the Constitutional Court’s judgment mentioned above (see paragraph 9).

On 13 August 2009 the Supreme Court dismissed the challenge. Prior to this decision, all the Supreme Court judges concerned had been asked to state a position in respect of the challenge and a special chamber had been appointed to rule on it.

On 25 August 2009, sitting in private (neverejné zasadnutie), the Supreme Court dismissed the applicant’s interlocutory appeal against the decision of 16 July 2009.

The Supreme Court’s decision was served on the applicant on 2 September 2009.

On 4 November 2009 the applicant filed a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) with the Constitutional Court. The complaint was directed against the Specialised Criminal Court (Špecializovaný trestný súd), which had by then come into being as the legal successor to the Special Court, and also against the Supreme Court and the OSP.

Relying on Article 5 §§ 3 and 4 of the Convention and its constitutional equivalents, he argued that his request for release had not been determined by an independent tribunal, that its dismissal had not been supported by adequate reasoning, that he had arbitrarily been denied his right to release pending trial, and that his request had not been determined “speedily”.

In terms of relief, the applicant requested that the decisions of 16 July and 25 August 2009 be quashed, that his release be ordered, and that he be awarded 21,000 euros (EUR) by way of compensation for nonpecuniary damage, plus reimbursement of his legal costs.

On 17 June 2010 the Constitutional Court declared the complaint inadmissible for being in essence manifestly ill-founded.

As to the complaint about the alleged failure to achieve a speedy determination of the applicant’s request, the Constitutional Court observed, in particular, that the delay in serving the Special Court’s decision of 16 July 2009 on his lawyer of choice and the applicant himself (see paragraph 20 above) was due to the facts that the lawyer of the applicant’s choice had only announced his appointment to the police, that this information had accordingly had to be transmitted to the court, which had taken some time, and that the prosecution service had failed to inform the court that, at the given time, the applicant had been transferred to a prison other than the one known to the court, as a consequence of which the decision had been sent to a wrong address and had had to be sent again.

Examining separately the proceedings before the Special Court and the Supreme Court and the involvement of the OSP, the Constitutional Court concluded that, taking into account all the circumstances, there had been no delays attributable to the authorities that had reached a constitutionally relevant threshold. From that perspective, the Constitutional Court considered that any delays resulting from the applicant’s challenges alleging bias had been imputable to him and that the relevance of the delays in serving the Special Court’s decision of 16 July 2009 on the applicant (on 30 July 2009) ‒ which had been due to a lack of coordination among the authorities concerned ‒ had been diminished by the service of that decision on the lawyer of the applicant’s choice on 27 July 2009.

The written version of the Constitutional Court’s decision was served on the applicant on 26 August 2010.