No violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Robert Spano;Stéphanie Mourou-Vikström

The applicants are journalists. At the relevant time they were employed by one of the two national television stations in Denmark, Danmarks Radio, hereafter “DR”. The first applicant produced a television programme, described as a documentary, called “When the doctor knows best”, which was broadcast at 8 p.m. on 24 September 2008, and seen by 534,000 viewers. The second applicant was the first applicant’s superior and responsible for the content of the programme.

The television programme concerned the treatment of pleural mesothelioma cancer, notably at Copenhagen University Hospital (Rigshospitalet), where Consultant S was in charge of treatment. It focused on two types of chemotherapy medication, Alimta, produced by L, and Vinorelbine, produced by F. Copenhagen University Hospital and S used Vinorelbine as first-line treatment in combination with Cisplatin or Carboplatin, depending on whether the treatment was related to an operation (operable patients) or to prolonging life and relieving pain and symptoms (inoperable patients).

Three experts participated in the programme: a medical doctor from Karolinska Hospital in Sweden, a professor from Switzerland and a medical doctor from Grosshandorf Hospital in Germany. They all used Alimta as first-line treatment, most often in combination with Cisplatin or Carboplatin. The programme followed four patients and their relatives, who told their stories, and a narrator spoke as a voice-over throughout the programme.

In preparation for the programme, the first applicant had carried out research on the subject which included, inter alia, the following.

On 20 September 2004 the European Union had approved the marketing of Alimta in combination with Cisplatin for treatment of patients with inoperable pleural mesothelioma cancer. The background for the approval was, among others, research which had been carried out examining the effect of treatment with Alimta in combination with Cisplatin as compared to treatment with Cisplatin alone (a phase III trial, see paragraph 14 below) as first-line therapy.

In July 2007 the Minister for Internal Affairs and Health replied to various questions posed by Members of Parliament as to the treatment of pleural mesothelioma cancer in Denmark. The Minister replied, inter alia, that there was no proof that an Alimta-based treatment was more efficient than other chemotherapy-based treatments, including that offered in Denmark; that the combination of Vinorelbine and Cisplatin, which was used at Copenhagen University Hospital, resulted in a one-year survival rate of 50% and a median lifetime of 12 months, which was exactly the survival rate from using the combination of Alimta and Cisplatin, but that there had been no direct comparison of the two treatments; and that there was no internationally accepted standard chemotherapy for the treatment of pleural mesothelioma cancer, but that several single and combined treatments were used.

On 11 June 2008 Copenhagen University Hospital produced a memorandum about pleural mesothelioma cancer and its treatment, which was sent to DR. It stressed that international studies, including of Vinorelbine and Alimta, had not shown that any two-combination regime was superior to other twocombination regimes. That information was confirmed by the professor from Switzerland in an email of 25 June 2008 and by the medical doctor from Grosshandorf Hospital in Germany in an email of 27 June 2008. The memorandum also referred to a fund aimed at developing research on pleural mesothelioma cancer, in the amount of 90,000 Danish kroner (DKK), equal to approximately 12,000 Euros (EUR), received by S from company F, which produces Vinorelbine. The money had been used to pay nurses and students and for data collection. It emerged that there had been no financial profit for the doctors involved.

Having received the above-mentioned memorandum, the first applicant again contacted the professor from Switzerland and the medical doctor at Grosshandorf Hospital in Germany. In essence, they confirmed in subsequent emails of 2 and 21 July 2008 that since there had been no direct comparative clinical studies, there was no scientific evidence that one twocombination regime was superior to another two-combination regime.

Medical research studies involving human subjects are called clinical trials. They are divided into different stages, called phases. Generally, it can be said that the earliest phase trials may look at whether a drug is safe or at its side-effects. A later phase II trial aims to find out whether the treatment works well enough, for which types of cancer the treatment works, more about side effects and how to manage them and more about the best dose to use. A later phase III trial aims to test whether a new treatment is better than existing treatments (standard treatment). These trials may compare a completely new treatment with the standard treatment or with different doses or ways of giving a standard treatment.

Subsequent to the broadcast on 24 September 2008 of the television programme, on 27 October 2008 Copenhagen University Hospital and S instituted defamation proceedings before the Copenhagen City Court (Københavns Byret) against the Director of DR and the two applicants, maintaining that the latter, in the programme in question, had made direct and indirect accusations, covered by Article 267 of the Penal Code (Straffeloven), against Copenhagen University Hospital and S, of malpractice regarding certain patients suffering from pleural mesothelioma cancer, allegedly resulting in the patients’ unnecessary death and shortening of life, in the interest of S’s professional prestige and private finances.

Before the City Court, the applicants, S, and Medical Director H for Copenhagen University Hospital gave evidence.

The first applicant stated, inter alia:

“... that she had not criticised Copenhagen University Hospital for improper treatment causing death. Her message was only to point out that the substance of Alimta had been better documented than the substance of Vinorelbine. She had collected statements from patients and experts, but could not state herself whether Alimta was a better product than Vinorelbine ... The experts had not stated whether Alimta in combination with another product was better than Vinorelbine in combination with another product. However, all experts had emphasised that Alimta had been evaluated in a phase III trial, for which reason it was a more thoroughly tested product. ... her questions had been answered during her conversations with professor M on 19 October 2007 and S on 22 October 2007. Subsequently no one had been willing to answer her questions. That was the only real conversation she had had with S. The next time she had called him, he had put down the receiver. When it had not been possible for her to get any response to her many points of criticism, she had contacted H ... she had wanted statements from both H and S as the programme would be unbalanced if they were not heard ... Some found that Alimta had been better documented than Vinorelbine. She was not aware of any trial demonstrating that a combination with Alimta was better than a combination with another medicinal product ...”.

S stated, inter alia, the following:

“Alimta has been used for second-line therapy in Denmark since 2004, and since 2007 as first-line therapy. Patients had been given the impression in the media that Alimta was a miracle cure. Therefore Copenhagen University Hospital had introduced it as an option. Today, Alimta is used in combination with Carboplatin as the standard therapy for inoperable patients ... Sometimes in autumn 2008, the standard therapy for operable patients had been changed to Cisplatin in combination with Alimta. If some patients were offered Alimta everybody had to be offered Alimta ... After the programme had been broadcast ... patients started mistrusting the Vinorelbine therapy. Afterwards it was not possible to perform the trial [phase II] on this drug. Nor would it be possible to obtain funding for the trial. Therefore no trial had been performed of Vinorelbine ... he had provided the information included in professor M’s memorandum of 23 September 2008 ...he had talked to [the first applicant] several times and had spent a lot of time and energy on explaining cancer therapy... he had also lost confidence in [the first applicant]...”

H stated, among other things:

“ ...The approval of Alimta by the Danish Medicines Agency for the treatment of mesothelioma only means that a marketing authorisation has been granted for the drug, which means that advertisement of the product is permitted. Vinorelbine has also been approved by the Danish Medicines Agency, but for a wide range of oncological therapies ... in 2003 when Alimta was tested [phase III] the bar had been set quite low. The study compared Alimta with a clearly inferior treatment that would not actually be offered to anybody. It would have been more relevant to study Alimta in combination with Cisplatin versus Vinorelbine with Cisplatin .... S has made a phase II trial of the standard therapy [Vinorelbine] ... Subsequently the standard therapy regimen has been expanded to include Alimta, which is not a better product than Vinorelbine, but eight times more expensive ... if two drugs are equally effective, but one of them is eight times more expensive than the other, patients will be offered therapy using the cheaper drug. ... The standard therapies now offered by Copenhagen University Hospital are Vinorelbine in combination with Cisplatin for inoperable patients and Alimta in combination with Cisplatin for operable patients ... the shift to Alimta as the standard therapy at Copenhagen University Hospital did not reflect that Alimta was medically better. The [applicants’] programme had had a large impact as patients were asking not to be treated with Vinorelbine. Copenhagen University Hospital had therefore had to change medical products because patients had the clear impression that Vinorelbine was not as good as Alimta ... It is quite usual for Copenhagen University Hospital to surrender material to the press and to answer questions, but the questions of [the first applicant] were never-ending. Copenhagen University Hospital has spent about a man-year, or about DKK 400,000, responding to inquiries from [the first applicant], and huge efforts had been made to accommodate her requests ... the programme had created distrust towards both Copenhagen University Hospital and S and had created uncertainty in both patients and relatives. He had received 50 to 100 “hate mails” himself ...”

By a judgment of 9 April 2010, the Copenhagen City Court found against the applicants (and the Director of DR) and sentenced them each to 10 day-fines of 1,000 Danish Kroner (DKK). The allegations were declared null and void. The reasoning was as follows:

Based on the evidence, the City Court accepts as a fact that in 2004, following a phase III trial, EMEA approved Alimta in combination with Cisplatin for treating patients suffering from inoperable malignant pleural mesothelioma and that subsequently the same was approved by the Danish Medicines Agency. The court also accept as a fact that Vinorelbine is a drug dating back more than 20 years whose effect had been documented by clinical experience and approved by the Danish Medicines Agency for a wide range of oncological therapies. Finally, the court also accepts as a fact that it has not been documented that Alimta therapy in combination with a platin medicinal product is more effective than Vinorelbine therapy in combination with a platin medicinal product.

As regards the term “experimental drug” the court accepts as a fact that a drug administered to patients in a trial is referred to as an experimental drug, no matter whether the same drug is the standard therapy offered outside the trial setting.

No matter that [the applicants] are deemed to have been aware of the above circumstances following their comprehensive research of the matter, it was said in the programme that, for dying patients, [S and Copenhagen University Hospital] had prescribed a “non-approved chemotherapy regimen” not approved for the diagnosis or which was not “the correct chemotherapy”, and that [S and Copenhagen University Hospital] used an “experimental drug”, the “worst-case scenario being that patients would die earlier than if they had been treated with an approved substance”, or that it would have “fatal consequences”. Moreover, the phrase “the only drug with a known effect” was used.

Since no account was given in the programme of the above-mentioned trials and approval process and the terminology applied for that process, the court finds that it would seem to a non-professional viewer that Alimta was the only effective drug for mesothelioma, particularly because the programme linked the treatment of two patients with Vinorelbine to their death, whereas the prospect of several more years to live was held out to the one patient who had been given Alimta therapy in Germany.

Moreover, the programme also linked S’s use of Vinorelbine to his personal esteem and his “personal research account”, although [the applicants] had been made aware of the research grant management procedure though Professor M’s memorandum of 23 September 2008 before the broadcast.

Since no account was given either of the procedure for managing research grants, the court also finds in this respect that it would seem to a non-professional viewer that S had a personal financial interest in starting Vinorelbine treatment rather than Alimta.

The [applicants] are therefore considered to have violated Article 267 of the Penal Code.

According to the information on [the applicants’] knowledge after their comprehensive research of the matter, the court finds no basis for exempting them from punishment or remitting the penalty under Article 269 of the Penal Code, compare also Article 10 of the Convention.

[The applicants] are furthermore jointly and severally liable for paying legal costs of DKK 62,250.”

On appeal, on 10 June 2011 the judgment was upheld by the High Court of Eastern Denmark (Østre Landsret) with the following reasoning:

“In the introduction to the programme ‘When the doctor knows best’ a narrator states, among other things: ‘A Danish doctor is entering a medical congress to show his research results. For years he has gone his own way, he has treated dying patients with chemotherapy that is not approved.’

Later during the programme, it is stated at which hospitals one can receive treatment for pleural mesothelioma cancer, that these hospitals co-operate with Copenhagen University Hospital, and a reference is made to a named Consultant, S, head of the Scandinavian Centre for treatment of pleural mesothelioma cancer.

During the various interviews, a narrator states, inter alia:

- ‘The doctor does not give his patients the only approved medication. Instead, he uses a test medication. In the worst scenario, that may result in the patients dying earlier than if they had been given the approved substance.’

- ‘There is only one approved chemotherapy against pleural mesothelioma cancer, but that is not offered to SP [one of the patients followed in the programme]. The doctors chose to treat her with a substance that is not approved for the diagnosis, and whose effect on pleural mesothelioma cancer is not substantiated.’

- ‘However, that chemotherapy turned out to have huge consequences for her [SP].’

- ‘S can freely choose the medication that he thinks is best. There is only one treatment which, in comparative studies, has proved to have an effect on pleural mesothelioma cancer. Accordingly, that is the only medication which is approved as treatment. That medication is called Alimta. However, S chose not to use that medication on his patients.’

- ‘Thus, it has not been proved whether Vinorelbine works. According to the calculations made by DR, close to 300 patients in Denmark have been given test medication. In the worst scenario, that may result in patients dying earlier than if they had been given the approved medication.’

-’For her [SP] the lack of effect of treatment by Vinorelbine turns out to have had fatal consequences.’

- ‘The family K ask themselves why S goes his own way. They suspect that he has other interests than those of the patients. That suspicion grows, when they talk to SK’s personal doctor.’

- ‘It turns out, however, that S may also have had other reasons for choosing Vinorelbine. Because he has used this medication in medical tests on the patients. In a phase when they are fighting for their lives.’

-’The question remains: why does S carry out tests with Vinorelbine? Could it have something to do with the prestige which is implicit in having research articles published?’

- ‘We do not know whether it is prestige that impels S.’

- ‘Thus, S will not acknowledge what leading experts agree on; [namely] that Alimta is the only medication whose effect is substantiated.’

- ‘Here it turns out that S has received more than DKK 800,000 over the last five and a half years from the company F. That is the company behind the test medication Vinorelbine. The money has been paid into S’s personal research account. DKK 90,000 is earmarked for the tests. S withheld that information.’

The programme ends by informing us, among other things, that two of the patients who were interviewed have passed away. The narrator says, inter alia:

‘TJ, who was part of S’s tests with Vinorelbine, died on 4 January 2008.’

With these statements, [the applicants] not only passed on assertions by patients, relatives and experts, but also took a stand, so that the programme undisputedly gave the viewers the impression that malpractice has occurred at Copenhagen University Hospital, in that S has deliberately used medication (Vinorelbine), which is not approved for treatment of pleural mesothelioma cancer, and whose effect has not been substantiated, that the medication in question was part of a test, and that the test medication has resulted in patients dying or having their lives shortened. The way that the programme is built up with its beginning and ending, the viewers get the clear impression that the reasons behind this choice of medication [Vinorelbine] were S’s professional prestige and personal finances.

Against this background, in the programme, the applicants, as producer of the programme and as chief sub-editor, have made an allegation against Copenhagen University Hospital and S of malpractice and of nourishing irrelevant considerations to the detriment of the lives and health of patients. Such an accusation is likely to disparage [Copenhagen University Hospital and S] in the eyes of their fellow citizens as set out in Article 267 of the Penal Code. It must have been clear to them [the applicants] that they were making such an allegation by way of their presentation of the programme.

The applicants have not attempted to establish the truth of the allegation, but have submitted that the allegation shall be unpunishable by virtue of Article 269 (1) of the Penal Code as they acted in lawful protection of an obvious public interest or the interest of others or, in the alternative, that punishment should be remitted under Article 269 (2) of the Penal Code because they were justified in regarding the allegations as true.

These provisions must, in connection with Article 267 of the Penal Code, be understood in the light of Article 10 of the Convention on the protection of freedom of expression. A very considerable public interest is related to journalistic discussion about risk to life and health, or suspicion thereof, as regards public hospital treatment. When balancing considerations of freedom of expression with considerations of the protection of the name and reputation of persons and companies, the former is accorded tremendous weight on the scale. That entails acknowledgement of a very far-reaching freedom of expression for the press, and accordingly the press must be permitted, as the public control- and information organ (‘public watchdog’), a certain amount of exaggeration and provocation in connection with their discussion of these questions, when factually there are reasons for expressing criticism.

On the basis of the information in the case, including the research material that the applicants possessed before the broadcast of the programme, in particular the emails from [the medical doctor from Grosshandorf Hospital in Germany and the professor from Switzerland], the replies by the Minister for Internal Affairs and Health to various questions [posed by Members of Parliament], and the memorandum of 11 June 2008 produced by Copenhagen University Hospital [about pleural mesothelioma cancer], it can be established that Vinorelbine in combination with Cisplatin or Carboplatin was standard treatment at Copenhagen University Hospital, that the European Union on 20 September 2004 approved the marketing of Alimta in connection with Cisplatin for treatment of inoperable patients with pleural mesothelioma cancer, that there was no substantiation or basis for believing that an Alimta-based treatment was more efficient than the treatment offered by Copenhagen University Hospital, that some patients at Copenhagen University Hospital, who were already about to receive Vinorelbine as standard treatment, were chosen and offered the same medicine as part of a test [it is not known for what], and that S did not make any private financial profit from these tests.

Against this background, including the fact that the word ‘approved’ was not explained during the programme, namely the difference between medication approved for treatment and [medication] approved for marketing, and by consistently using the word “test medication”, even though only one patient in the programme participated in tests, [the applicants] made allegations which were based on an incorrect factual basis, of which they must have been aware via the research material.

The aim of the programme – to make a critical assessment of the treatment of patients with pleural mesothelioma cancer offered by Copenhagen University Hospital and the responsible consultant – is a legitimate part of the press’s role as ‘public watchdog’, but it cannot justify an allegation, which is built on a factually incorrect basis, and thus a wrong premise. [The applicants], who did not limit themselves to referring to or disseminating statements by experts, patients and relatives, did not have any basis for making such serious allegations against Copenhagen University Hospital and S. The allegations cannot be justified on the grounds that Copenhagen University Hospital and S refused to participate in the programme.

Against this background, and since in relation to Article 10 there is no interest to protect when there is no factual basis for the accusations, the allegations are not unpunishable under Article 269 (1), nor is there any basis for remitting the punishment under Article 269 (2) [of the Penal Code].

It is an aggravating factor that the wrongful accusations were disseminated on national television during primetime and on DR’s homepage, by means of which the accusations had a significant spread.

Accordingly, [the High Court] agrees [with the Copenhagen City Court’s judgment] that [the applicants] be fined under Article 267, and that the allegations be declared null and void by virtue of Article 273 (1).

The High Court thus dismisses the appeal and upholds the judgment of the Copenhagen City Court.

The applicants shall be jointly and severally liable for paying legal costs of the High Court appeal to Copenhagen University Hospital and S, in the amount of DKK 90,000, which constitutes the legal fee inclusive of VAT. In fixing the amount, the High Court took into account the scope and duration of the case.”

On 27 October 2011 the Appeals Permission Board (Procesbevillingsnævnet) refused the applicants’ request for leave to appeal to the Supreme Court (Højesteret).

Subsequent to the broadcast on 24 September 2008 of the television programme, four complaints were lodged with the Patient Insurance Association (Patientforsikringen) relating to the issues raised by the programme. A press release published on the Associations’ website on 9 March read as follows:

“As of today, the Patient Insurance Association has received four complaints relating to the treatment of mesothelioma patients with combinatorial drugs other than Carboplatin and Alimta. That treatment was questioned by the Danish Broadcasting Corporation (DR) in a documentary programme in September 2008.

The Patient Insurance Association has received four complaints relating to the criticism raised. This means that the persons claiming compensation are either patients or their dependants, one of the reasons being their belief that the combinatorial drugs administered to treat the disease were incorrect ones.

All four complaints have been refused, one of the reasons being that the independent medical oncologists who assessed the cases found that it was in compliance with optimum medical standards to treat patients with the selected combination therapy.

Two of the cases have been appealed against to the National Agency for Patients’ Rights and Complaints (Patientskadeankenævnet). The National Agency for Patients’ Rights and Complaints upheld the decision of the Patient Insurance Association, finding, inter alia:’... [patients] were offered Carboplatin and Vinorelbine, which must be considered to be as active as other combinations with a favourable profile of adverse reactions’. The other appeal does not concern the issue of combination therapy.”


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

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 criminal proceedings. They also raised other complaints under the provisions of the Convention.


CASE OF KADIRZHANOV AND MAMASHEV v. RUSSIA

Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Kyrgyzstan);No violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

The applicants are of Uzbek ethnic origin. They lived in the JalalAbad region of Kyrgyzstan. After mass disorders and inter-ethnic clashes in the region in June 2010, they left Kyrgyzstan for Russia to flee, together with many other ethnic Uzbeks, ethnically motivated violence.

Mr Kadirzhanov was born in 1970. He currently lives in Orel, Russia.

In July 2010 the applicant arrived in the town. Before June 2012 he had not lodged any applications for refugee status or temporary asylum.

On 3 October 2011 the Kyrgyz authorities charged the applicant in absentia with violent crimes committed in the course of the inter-ethnic violence of June 2010, when a group of individuals had barricaded a road near the village of Suzak, which had led to a number of deaths.

On 11 November 2011 the Suzak District Court ordered the applicant’s detention for two months. The Kyrgyz authorities also added the applicant’s name to an international wanted list.

On 14 May 2012 the applicant was arrested in Orel and placed in remand prison no. 1. It appears that he first learnt about the criminal prosecution and charges against him in Kyrgyzstan on that day. He denied his involvement in the June 2010 violence. On an unspecified date, the applicant was provided with the services of a State-appointed lawyer for the purposes of the extradition proceedings.

On 15 May 2012 the Severnyy district prosecutor of Orel ordered the applicant’s custodial detention on the basis of the decision of 11 November 2011, referring to Article 61 of the 1993 CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (“the Minsk Convention”).

The Kyrgyz authorities confirmed their intention to seek the applicant’s extradition.

On 12 June 2012 the Kyrgyzstan Prosecutor General’s Office lodged a formal extradition request with its Russian counterpart. It submitted the following diplomatic assurances: that the applicant would be provided with every opportunity, as prescribed by international and Kyrgyz criminal law, to defend himself, including by way of legal assistance; that he would not be subjected to torture, cruel, inhuman or degrading treatment or punishment; and that he would not be prosecuted on political, racial, ethnic or religious grounds.

On 15 June 2012 the Severnyy district prosecutor again ordered the applicant’s custodial detention, referring to Article 466 § 2 of the Russian Code of Criminal Procedure (“CCrP”).

On the same date the applicant applied to the regional migration authority for refugee status.

On 10 July 2012 the Severnyy District Court of Orel examined the Severnyy district prosecutor’s request to extend the applicant’s detention for four months. Noting that the prosecutor had not substantiated the need for such a long period by reference to specific measures to be taken during the “extradition check” procedure (экстрадиционная проверка) and noting the need to take account of the upcoming decision on the application for refugee status (which could bar further extradition proceedings), the judge extended the applicant’s detention for one month only, until 14 August 2012. On 25 July 2012 the Orel Regional Court upheld the extension order.

On 25 July 2012 the applicant’s lawyer made submissions to the Russian Prosecutor General’s Office in relation to, inter alia, the risk of illtreatment in the event of the applicant’s extradition to Kyrgyzstan.

On 9 August 2012 the Russian Ministry of Foreign Affairs wrote to the Russian Prosecutor General’s Office, indicating that it had no specific information disclosing any impediment to the applicant’s extradition. At the same time it indicated that because the applicant was of Uzbek ethnic origin “there could be a risk of premeditated biased attitude in the Kyrgyz authorities’ examination of his case”.

On 9 August 2012 the Severnyy District Court extended the applicant’s detention until 14 November 2012. The decision was upheld on appeal on 31 August 2012.

On 31 October 2012 the regional migration authority dismissed the applicant’s refugee status application. The authority relied on a note dated 13 July 2012 by the Federal migration authority on the general political and human rights situation in Kyrgyzstan in 2010-11. The applicant’s allegation that he had received threats from ethnic Kyrgyz while in Kyrgyzstan was dismissed, because the reason behind the threats had been his wealth, not ethnic origin. The applicant appealed to the Federal migration authority. On 25 December 2012 his appeal was dismissed. The risk of ill-treatment remained unassessed.

In the meantime, on 13 November 2012 the Severnyy District Court extended the term of the applicant’s detention until 14 February 2013, despite the lawyer’s request to release the applicant on bail. The Orel Regional Court upheld the decision on appeal on 28 November 2012 arguing, inter alia, that there was no reason to vary the preventive measure in accordance with Article 110 of the CCrP.

On 11 February 2013 the Severnyy District Court extended the applicant’s detention until 14 May 2013. The applicant lodged an appeal with the court on the same day. On an unspecified date the case was transferred to the Orel Regional Court for examination.

On 26 February 2013 the Orel Regional Court held an appeal hearing and, finding that there was no reason to vary the preventive measure in accordance with Article 110 of the CCrP, upheld the extension order of 11 February 2013.

In the meantime, on 20 February 2013 the Kyrgyzstan Prosecutor General’s Office amended its extradition request, with reference to the amended decision listing the charges against the applicant.

On 18 March 2013 the Russian Prosecutor General’s Office granted the extradition request. The extradition order contained no assessment of the factual and legal matters relating to the alleged risk of ill-treatment in the requesting country, and did not mention any of the diplomatic assurances given by the Kyrgyz authorities.

On 2 April 2013 the applicant appealed against the extradition order claiming, inter alia, that the Russian Prosecutor General’s Office had failed to assess the alleged risk of ill-treatment.

On 22 April 2013 the Basmannyy District Court of Moscow upheld the migration authorities’ decisions of 31 October and 25 December 2012. The risk of ill-treatment was not assessed. On 12 July 2013 the Moscow City Court upheld the judgment.

In the meantime, on 23 April 2013 the Orel Regional Court held a judicial review hearing against the extradition order and upheld it. It summarily dismissed the allegations regarding the risk of ill-treatment, referring to the assurances given by the Kyrgyz authorities and to the fact that the applicant had been charged with “ordinary crimes” and thus was not being persecuted on political or ethnic grounds. The applicant appealed to the Supreme Court of Russia.

In May 2013 the Orel regional prosecutor sought the extension of the applicant’s detention. The matter was submitted to the Orel Regional Court.

On 13 May 2013 the Orel Regional Court extended the applicant’s detention for six months, to reach the maximum statutory period of eighteen months on 14 November 2013. It found that there were no grounds to vary the preventive measure in accordance with Article 110 of the CCrP. The applicant appealed.

On 24 May 2013 the Appeal Section of the Orel Regional Court held a hearing and upheld the detention order.

On 4 July 2013 the Supreme Court of Russia confirmed the judgment of 23 April 2013, thus upholding the extradition order. It summarily dismissed the applicant’s arguments relating to the risk of illtreatment. The court also stated that the Kyrgyz authorities had provided guarantees relating to legal assistance and the absence of ill-treatment.

On 20 September 2013 the applicant’s lawyer, N., filed a request with the regional prosecutor’s office for the applicant’s release.

On 25 September 2013 the Orel regional deputy prosecutor ordered the applicant’s release from custody under, inter alia, Articles 103 and 110 of the CCrP. He reasoned that the examination of the case pending before the Court, which had indicated interim measures pursuant to Rule 39 of the Rules of Court in respect of the applicant, would last longer than the maximum period of detention permissible. The deputy prosecutor varied the preventive measure to release from custody, after a personal guarantee was given by N. The ruling was not challenged and the applicant was released from custody.

Mr Mamashev was born in 1984. He currently lives in Manyukhino, a village in the Moscow region of Russia.

The applicant arrived in Moscow in early August 2010. In 2010 and 2011 he did not lodge any applications for refugee status or temporary asylum in Russia.

On 24 August 2010 the Kyrgyz authorities charged the applicant in absentia with violent crimes committed in June 2010, when a group of individuals had barricaded a road near the village of Suzak, which had led to a number of deaths. The Kyrgyz authorities also added the applicant’s name to an international wanted list.

On 25 August 2010 the Suzak District Court in Kyrgyzstan ordered the applicant’s arrest and authorised his custodial detention for two months.

On 6 February 2012 he was arrested in Moscow and placed in a remand prison. It appears that he first learnt about the criminal prosecution and charges against him in Kyrgyzstan on that day.

On 7 February 2012 the Babushkinskiy inter-district prosecutor’s office applied the preventive measure of custodial detention to the applicant, which was authorised by the Suzak District Court on 25 August 2010.

On an unspecified date the applicant was provided with the services of a State-appointed lawyer for the purposes of the extradition proceedings.

On 16 March 2012 the Kyrgyzstan Prosecutor General’s Office submitted an extradition request to its Russian counterpart. The request contained the following diplomatic assurances: that the applicant would be provided with every opportunity, as prescribed by international and Kyrgyz criminal law, to defend himself, including by way of legal assistance; that he would not be extradited to a third country and would only stand trial in relation to the charges that gave rise to the extradition request; that he would not be subjected to torture, cruel, inhuman or degrading treatment or punishment; and that he would not be prosecuted on political, racial, ethnic or religious grounds.

On the same date the Babushkinskiy inter-district prosecutor’s office again applied the Suzak District Court’s chosen preventive measure to the applicant, thus extending his custodial detention.

On 30 March 2012 the Babushkinskiy District Court extended the applicant’s detention until 5 June 2012.

On 12 April 2012 the applicant applied to the Moscow migration authority for refugee status, arguing persecution on the grounds of ethnic origin. On 17 July 2012 the authority dismissed the applicant’s application at the admissibility stage. The Federal migration authority quashed this decision. His application was examined in October 2012.

In the meantime, on 18 April 2012 the Russian Ministry of Foreign Affairs wrote to the Russian Prosecutor General’s Office, indicating that it had no specific information disclosing any impediment to the applicant’s extradition. At the same time, it indicated that because the applicant was of Uzbek origin “there could be a risk of premeditated biased attitude in the Kyrgyz authorities’ examination of his case”.

On 23 April 2012 the applicant’s lawyer made submissions to the Russian Prosecutor General’s Office on the issue regarding the risk of illtreatment in the event of the applicant’s extradition to Kyrgyzstan. On 21 May 2012 it acknowledged receipt of the above-mentioned submissions and stated that they would be taken into consideration.

On 28 May 2012 the Babushkinskiy District Court extended the applicant’s detention until 5 August 2012. The Moscow City Court dismissed an appeal against the decision on 9 July 2012.

On 8 June 2012 the Ostankinskiy District Court of Moscow dismissed complaints lodged by the applicant under Article 125 of the CCrP against the prosecutor’s decisions of 7 February and 16 March 2012. The Moscow City Court upheld the decision on 1 August 2012.

On 2 August 2012 the Babushkinskiy District Court extended the applicant’s detention until 5 October 2012. The Moscow City Court upheld the decision on appeal on 10 September 2012.

On 1 October 2012 the Babushkinskiy District Court extended the applicant’s detention until 5 December 2012. The applicant’s lawyer filed a statement of appeal dated 3 October 2012, which was registered by the Babushkinskiy District Court on 10 October 2012. On an unspecified date it was forwarded to the Moscow City Court.

On 11 October 2012 the Moscow migration authority examined the applicant’s refugee status application on the merits, but dismissed it for lack of evidence regarding the applicant’s allegations of possible persecution on the grounds of ethnic origin. The risk of ill-treatment was not assessed. The applicant challenged the refusal of 11 October 2012 before the Federal migration authority. His appeal was summarily dismissed on 26 December 2012. On an unspecified date he sought a judicial review of the refusals issued by the migration authorities.

On 4 December 2012 the Babushkinskiy District Court extended the applicant’s detention until 5 February 2013. On 6 December 2012 the applicant’s lawyer filed a statement of appeal, which was registered by the Babushkinskiy District Court on 13 December 2012. On an unspecified date it was forwarded to the Moscow City Court.

On 24 January 2013 the Russian Prosecutor General’s Office requested further guarantees from its Kyrgyz counterpart, in relation to the possibility of visits to the applicant by Russian diplomatic staff during his detention in Kyrgyzstan. On 6 February 2013 the Kyrgyzstan Prosecutor General’s Office submitted the required guarantees.

On 28 January 2013 the Moscow City Court heard appeals against the decisions of 1 October and 4 December 2012, but dismissed them.

On 1 February 2013 the Moscow City Court extended the applicant’s detention until 5 August 2013. It received the applicant’s appeal against this decision on 12 February 2013. The date on which it was filed remains unknown.

On 27 February 2013 the Russian Deputy Prosecutor General granted the extradition request. The extradition order did not contain any reasoning in relation to the alleged risk of ill-treatment in Kyrgyzstan. On 12 March 2013 the applicant was notified of the decision and appealed against it.

On 14 March 2013 the Appeal Section of the Moscow City Court dismissed the appeal against the decision of 1 February 2013.

By a judgment of 10 April 2013 the Basmannyy District Court of Moscow upheld the refugee application refusals issued by the migration authorities. The alleged risk of ill-treatment was not mentioned.

On 15 April 2013 the Moscow City Court upheld the extradition order on judicial review. It summarily dismissed the allegations regarding the risk of ill-treatment, stating that the applicant had been charged with “ordinary crimes” and thus was not being persecuted on political or ethnic grounds, and relied on the diplomatic assurances given by the Kyrgyz authorities.

On 19 June 2013 the Supreme Court of Russia upheld the judgment of 15 April 2013 on appeal, thus upholding the extradition order.

On 8 July 2013 the Moscow City Court confirmed the judgment of 10 April 2013 concerning the refusals issued by the migration authorities. It stated that the first-instance court had analysed the applicant’s situation sufficiently.

On 31 July 2013 the Babushkinskiy district prosecutor of Moscow ordered the applicant’s release because interim measures under Rule 39 of the Rules of Court had been indicated in respect of the applicant. The applicant was released on 1 August 2013 after a personal guarantee given by his lawyer.


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

All the applicants were employed by Raketa-Putnički Saobraćaj AD, a company based in Užice (hereinafter “the debtor”).

Since the debtor had failed to fulfil its obligations toward its employees, the applicants brought numerous separate civil claims, seeking payment of salary arrears and various social security contributions.

The applicants obtained final court decisions ordering the debtor to pay them certain sums. The essential information as to the domestic proceedings in respect of each application is indicated in the annexed table.

On 12 July 2010 the Commercial Court (Privredni sud) in Užice opened insolvency proceedings in respect of the debtor. As a result, all of the ongoing enforcement proceedings against the debtor were terminated.

The applicants duly reported their respective claims based on the above-mentioned court decisions to the insolvency administration.

On 8 June 2011 the court accepted the applicants’ claims.

On 29 July 2014 the applicants’ representative informed the Court that some of the decisions at issue had been partially enforced in the insolvency proceedings.

The insolvency proceedings in respect of the debtor are still ongoing.

The debtor, which operated as a socially-owned company, was privatised on 27 December 2002.

On 17 July 2007 the privatisation was annulled because the buyer in question had failed to fulfil his contractual obligations.

Following the annulment of the debtor’s privatisation the State owned 58.18% of shares in the company.

On 11 December 2008 the State sold its shares to a private company.


CASE OF GÜLBAHAR ÖZER AND YUSUF ÖZER v. TURKEY

Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

The applicants were born in 1963 and 1965 respectively and live in İzmir. They are brother and sister. Their respective children, Sibel Sartık and Nergiz Özer, aged 24 and 15 respectively, were killed by soldiers on 19 January 2005 in south-east Turkey. During the same incident the soldiers also killed three other young people, aged 13, 16 and 22 (see Gülbahar Özer and Others v. Turkey, no. 44125/06, 2 July 2013). The bodies of those three individuals were subsequently handed over to their families, who buried them in Diyarbakır.

On 23 January 2005 the prosecutor ordered the release of the bodies of the applicants’ two children. The applicants took the bodies from the morgue in order to take them to the city of Siirt, where they wanted to bury them and where their graves had already been prepared with the help of the municipal officials.

On the same date the governor of Siirt issued a decision stating that crowds had gathered at the cemetery in Siirt and had attacked the municipal workers who were preparing the graves. Subsequently, the incidents at the cemetery had escalated and turned into “unlawful demonstrations”. Therefore, “in order to prevent any unwanted consequences”, the governor decided to order the burial of the applicants’ children in the two villages named in the respective birth register records of the two deceased.

While the applicants, together with the coffins of their two children, were on their way to Siirt, their vehicles were stopped by gendarme soldiers who told the applicants that they were not allowed to bury their children in Siirt. The soldiers told the applicants that, in accordance with the decision taken by the Siirt governor, the bodies would be buried in two other villages. The applicants told the soldiers that they had no connection with the two villages in question which, in any event, had been evacuated by soldiers in the 1990s. They stated that they wanted to bury their children side by side in their family cemetery in Siirt. Despite their objections, the bodies of the two children were confiscated and taken away by the soldiers.

The same day the second applicant made an official request to the office of the governor and asked for permission to bury the children in the city of Batman instead. This request was refused but the governor amended his decision so that the applicants’ children could be buried in the same cemetery in the town of Eruh, instead of being buried in two separate villages as he had previously ordered. In accordance with that decision, the applicants’ children were buried by the authorities in the municipal cemetery in Eruh at 1.45 a.m. on 24 January 2005 without any religious ceremony.

On 11 March 2005 the applicants brought a case before the Diyarbakır Administrative Court and asked for the Siirt governor’s decision to be annulled. They also requested that the Administrative Court issue an interim measure allowing them to exhume the bodies before they decomposed, and to bury them in a cemetery of their choice. The applicants agreed, in particular, that it was important and necessary to maintain public order. However, they argued that the governor’s decision had completely disregarded the moral values of their society and had aroused anger. The news that their children would not be buried in Siirt and that their bodies had been confiscated by the soldiers had caused an upsurge of emotion in the people waiting at the cemetery in Siirt and as a result they had attacked members of the security forces and local shops with sticks and stones. When the security forces responded to those attacks heavy handedly, scores of people had been injured and more than a hundred people had been arrested. All of that unrest had been caused by the governor’s unlawful decision. No such incidents had taken place during the burial of the three other individuals who had been killed at the same time as their children. In their complaint the applicants also referred to their rights under Articles 8 and 9 of the Convention.

On 30 March 2006 the Diyarbakır Administrative Court rejected the case. It noted that the governor’s decision had been based on section 11/C of the Law on the Administration of Provinces, which provided that the governor had a duty to maintain peace and public order in the province under his responsibility. The decision had been taken because the people who had gathered at the cemetery in Siirt and who were waiting for the bodies to arrive had thrown stones at municipal workers and members of the security forces. The decision to bury the bodies in the town of Eruh had therefore been taken with a view to maintaining public order. The Administrative Court considered that, although the applicants had the right to bury their children in a cemetery of their choice, the refusal to permit them to do so had been in compliance with the restrictions set out in the second paragraphs of Articles 8 and 9 of the Convention and in section 13 of the Turkish Constitution.

The applicants appealed against the decision and maintained that the incidents at the cemetery referred to by the Administrative Court had only occurred after the crowds had found out about the authorities’ refusal to allow them to bury their children in Siirt. They repeated their argument that the three others killed by the soldiers at the same time as their children had been buried by their families in Diyarbakır without incident. The applicants also reiterated their request for an interim measure.

The request for an interim measure was rejected by the Supreme Administrative Court on 13 December 2006. In a decision of 24 October 2008 the Supreme Administrative Court also rejected the appeal lodged by the applicants against the decision of the Diyarbakır Administrative Court. In reaching its conclusion the Supreme Administrative Court stated that the incidents at the Siirt Cemetery had begun when the people who had gathered there had insisted that the applicants’ two children be buried next to the graves of members of the PKK.

The decision of the Supreme Administrative Court was communicated to the applicants on 19 March 2009.


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

A list of the eleven applicants, who are all Slovak nationals, is set out in the appendix (“the applicants”).

The applicants were represented before the Court by Mr M. Hrouda, a lawyer practising in Košice. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.

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

This application and three others (nos. 18803/10, 48554/10 and 44019/11) concern the regularisation of the relationship between ownership and use of real property located in the cadastral area of Košice-Sever.

Certain land in this area was expropriated in the 1980s by the (then socialist) State and a public sports centre was built on it. The sports centre comprises buildings and various other facilities, such as a tennis court, a grandstand, a water station and paved areas.

After the post 1989 political, constitutional and legal changes, litigation took place with a view to resolving various property claims made by the original owners (or their legal successors) against the entities that owned or operated the sports centre or various parts of it.

The land concerned is divided into a number of plots with various owners, many of whom are linked by family relations and history, and who had the same legal representation in the above-mentioned proceedings. Their lawsuits followed a similar pattern, but sometimes had varying results. They included the following proceedings.

The applicants in the present case are all successors in title to a plot of land in the above-mentioned area, having inherited their title from the original owners, who died in 1948 and 1982, respectively.

On 3 October 1994 the applicants, represented then and throughout the proceedings by a laywer, lodged an action against a sports club seeking to obtain a court order for the removal of the constructions on the land.

The principal line of argument was that the expropriation decision of 24 February 1984 was invalid in law. The applicants were therefore the lawful owners of the land in question, in particular plot no. 10605 (recorded on sheet no. 1303 of the “old” records), and the defendant had no lawful title to the constructions on the applicants’ land.

The action was subsequently amended to state that, alternatively, the applicants sought a judicial ruling establishing an easement on their land for the benefit of the owner of the sports centre in return for financial compensation payable to the applicants. It was also extended to two more defendants, a municipality and a private company.

The action was dismissed at first instance by the Košice I District Court (Okresný súd) on 11 August 2008, and – following the applicants’ appeal – by the Košice Regional Court (Krajský súd) on 2 February 2009.

The courts reached their conclusions after having taken complex oral and documentary evidence, including expert evidence.

In accordance with the applicants’ claim, the courts found that (i) the expropriation of 1984 was legally ineffective on account of procedural flaws; (ii) the applicants were the owners of the land in question; (iii) the constructions on it had been built without a valid legal title in so far as the land was concerned; and (iv) the applicants were entitled to seek redress under general civil law, that is to say Article 135c of the Civil Code (Law no. 40/1964 Coll., as amended), which was not subject to any statute of limitation, unlike the special legislation on restitution, which contained specific time-limits.

As regards the options available under Article 135c of the Civil Code for resolving the discrepancy between the ownership and use of the land and the constructions concerned, the District Court found that, for practical reasons, it was out of the question to have the applicants established as the owners of the constructions and to order them to pay the current owners financial compensation. Furthermore, in the circumstances, it was likewise not practical to order the physical removal of the constructions in question.

The establishment of an easement for the benefit of the owners of the constructions in return for compensation payable by them to the applicants was therefore in principle an option.

However, on the specific facts, and contrary to the applicants’ assertions, the courts found that no easement could be established on the land. The bone of contention was the legal nature of the constructions concerned. In particular, these constructions could not be considered as “buildings” in terms of civil law. However, an easement over land could only be established for the benefit of the owner of a “building”.

The court dismissed the applicants’ argument that the buildings and the adjacent facilities belonged to one integrated complex and in reality served a single purpose, that in the past easements had been established on some plots in that area and that, accordingly, a similar solution should be adopted in their own case. However, the court did not respond to their specific argument that, in case no. 15C 251/94, an easement had been established also over land that had no “buildings” on it (see paragraph 27 below).

Observing that the sports centre had always served the public, the courts also took into account the “nature and extent of economic prejudice” suffered by the applicants.

Lastly, it was held that the applicants had alternative means of asserting their rights by lodging an action for a declaratory ruling and an action for compensation in respect of unjustified enrichment.

On 23 April 2009 the applicants lodged a complaint with the Constitutional Court (Ústavný súd) under Article 127 § 1 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended), to which they added further grounds of complaint on 14 January 2010.

Citing similar grounds to those mentioned above, the applicants contested the outcome of the proceedings and alleged that their rights under, inter alia, Article 6 § 1 of the Convention (fairness, adequate reasoning) and the constitutional equivalent of Article 1 of Protocol No. 1 had been violated.

On 18 March 2010 the Constitutional Court declared the complaint inadmissible as being manifestly ill-founded. Observing that it was not a court of further appeal against decisions of the ordinary courts, it found no constitutionally relevant unfairness, arbitrariness or irregularity in the impugned judgments.

The decision was served on the applicants’ lawyer on 25 October 2010.

The position taken by the courts was subsequently fully endorsed by the Public Prosecution Service when it dismissed the applicants’ petition for an extraordinary appeal on points of law to be lodged on their behalf in the present case.

Article 135c deals with situations concerning so-called “unlawful constructions”, that is buildings (stavba) constructed on somebody else’s plot of land (pozemok) without an entitlement to do so.

At the request of the owner of the land, the court has the power to order the removal of such buildings at the cost of the person who constructed it (paragraph 1).

However, if the removal of the building is not practical, and subject to consent by the owner of the land, the court has the power to rule that title to the building be transferred to the owner of the land in return for compensation (paragraph 2).

The court also has the power to regularise the relationship between the owner of the land and the owner of the building by taking other measures, in particular by establishing an easement, which is necessary for the exercise of ownership rights in respect of the building, in return for compensation (paragraph 3).

In a case registered at the District Court under file no. 15C 251/94 a different group of claimants raised essentially the same claims as the applicants in respect of other plots of land under the same sports centre, the defendant being the respective municipality.

Before the case was resolved on the merits with final effect, the Supreme Court had determined the claimants’ appeal on points of law (dovolanie) (no. 3 Cdo 96/98) against a previous judgment of the Regional Court. In its judgment of 25 February 1999, the Supreme Court observed that before the action could be determined on the merits (of the claim for an easement), preliminary questions had to be answered as to whether the claimants were the owners of the property concerned and, if they were, whether they had standing to sue in the case.

The Supreme Court further observed that, when dealing with those questions, the Regional Court had noted that the land in question had been expropriated in 1984. The Regional Court had therefore held that, even assuming that the expropriation had been flawed, it could only have been challenged by means of administrative-law remedies and within the statutory timelimits. That, however, had been beyond the scope of the case at hand and, therefore, the Regional Court held that the 1984 expropriation should be considered as being a matter of fact.

The Supreme Court disagreed with the Regional Court’s position described above. As was found in the present case (see paragraph 14 above), it found that the expropriation of 1984 was legally ineffective. As a consequence, the courts were bound to examine the preliminary question of the claimants’ ownership independently and irrespective of the expropriation decision.

The case was finally decided on the merits by the District Court on 13 March 2002. The action was granted and an easement was established for the benefit of the claimants in respect of the entire property covered by their claim, that is to say including some plots on which no “buildings”, in the sense explained above, were situated.

The judgment was not appealed against and became final and binding on 3 May 2002.

The ensuing question concerning the financial compensation payable by the municipality to the claimants for the easement was resolved by the District Court in a judgment of 13 December 2006 (case no. 15C 717/02) on the basis of an expert assessment.

In another similar case concerning property in the same area as in the present case, the claimants raised in principle the same claims. The court took the same position as in the present case, that is to say that the claimants were entitled to assert their property claims under the general provisions of the Civil Code and the determinative factor was whether or not the land in question was under “buildings”. As that was only partly so, the action was partly granted and partly dismissed. The respective judgments were given on 24 November 2008 (the District Court) and 20 April 2009 (the Regional Court), and the final decision was given by the Constitutional Court on 8 September 2009.

In a number of other similar cases concerning property in the same area as in the present case, the position was taken that the claimants could not assert their rights under the general provisions of the Civil Code, as those provisions constituted a lex generalis, and their application was excluded by virtue of the special legislation on the restitution of property, as a lex specialis. However, that position does not appear to be settled.

The relevant parts of the report state that, in order for the principle of legal certainty – essential for maintaining confidence in the judicial system and the rule of law – to be achieved, the State must make the law easily accessible and must also apply the laws it has enacted in a foreseeable and consistent manner. As the existence of conflicting decisions within the highest courts may be contrary to this principle, it is necessary for these courts to establish mechanisms to avoid conflicts and ensure the coherence of their case-law.

The relevant parts of the Opinion read as follows:

“47. While recognising the judges’ power to interpret the law, the obligation of the judges to promote legal certainty has also to be remembered. Indeed legal certainty guarantees the predictability of the content and application of the legal rules, thus contributing in ensuring a high quality judicial system.

Judges will apply the interpretative principles applicable in both national and international law with this aim in mind. ... In civil law countries, they will be guided by case law, especially that of the highest courts, whose task includes ensuring the uniformity of case law.

Judges should in general apply the law consistently. However when a court decides to depart from previous case law, this should be clearly mentioned in its decision.”


No violation of Article 14+8-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life)

André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicants were born in 1966 and 1964 respectively and live in Linz. They have been living in a stable relationship for many years.

On 21 February 2010 the applicants lodged an application to enter into a registered partnership under the Registered Partnership Act (Eingetragene Partnerschaft-Gesetz).

On 17 March 2010 the Mayor of Linz dismissed their application in accordance with sections 1, 2 and 5(1)(1) of the Registered Partnership Act, finding that the applicants did not meet the legal requirements, as the registered partnership was exclusively reserved for same-sex couples.

The applicants appealed. Citing, inter alia, Articles 8 and 14 of the Convention, they complained of discrimination based on their sex and their sexual orientation. The Upper Austrian Regional Governor (Oberösterreichischer Landeshauptmann) dismissed the appeal on 18 August 2010, arguing with reference to Schalk and Kopf v. Austria (no. 30141/04, ECHR 2010) that as the Contracting States were allowed to restrict access to marriage to different-sex couples, it would appear unreasonable not to allow them to reserve access to registered partnerships exclusively for same-sex couples.

The applicants subsequently lodged complaints with both the Administrative Court and the Constitutional Court, arguing that marriage was not a suitable option for them, as it was substantially different from a registered partnership. In their view, a registered partnership was in many ways more modern and “lighter” than marriage. The applicants put forward several examples: the different statutory time-limit for divorce versus the time-limit for dissolution of a registered partnership in the event of an irretrievable breakdown (unheilbare Zerrüttung) of the relationship; the alimony payment obligations following a divorce/dissolution where blame could be placed on one spouse/partner; the obligations conferred by the respective legal institutions, in particular as regards trust, faithfulness and contributions to the household; and the consequences of a declaration of the death of a spouse/partner. The applicants argued that the Court’s considerations in Schalk and Kopf in respect of marriage were not applicable to the registered partnership, which was a new legal institution, introduced in the twenty-first century. It was therefore neither based on a long-standing discriminatory tradition and deep-rooted social connotations, nor aimed at possible procreation.

On 22 September 2011 the Constitutional Court dismissed the applicants’ complaint. The relevant parts of its judgment read as follows:

“Article 12 of the [Convention] only applies to the traditional civil marriage ..., which has ‘deep-rooted social and cultural connotations’ and was, in the historical context, clearly understood ‘in its traditional sense’ (ECHR, case of Schalk and Kopf, §§ 55, 62). If the Court, in its judgment in the case of Schalk and Kopf, considers that the national provisions in the Council of Europe member States are diverse and range from allowing same-sex marriage to explicitly forbidding it, and concludes from this that, as matters stand, the question whether or not to allow same-sex marriage is left to regulation by domestic law (ECHR, case of Schalk and Kopf, §§ 60f), this must, in view of the small number of States providing for a registered partnership for differentsex couples in addition to marriage, be even more valid for this question.

As the [Convention] has to be read as a whole and its Articles have to be construed in harmony with one another, and as Article 12 of the [Convention] does not grant different-sex couples, in addition to the right to marry, a right to enter into a registered partnership, the prohibition of discrimination pursuant to Article 14 taken in conjunction with Article 8 of the [Convention], a provision of more general purpose and scope, cannot be interpreted as imposing such an obligation beyond the scope of Article 12 of the [Convention] either (see, concerning the correlating question of the right of same-sex couples to marry, which cannot be derived from Article 14 of the [Convention] either, ECHR, case of Schalk and Kopf, § 101).

[A]s the Austrian legislator has provided for the possibility of legal recognition for same-sex couples by introducing the registered partnership, people may rely on the prohibition of discrimination provided for by Article 14 of the [Convention] ...

The Court has also stated, however, in the case of Schalk and Kopf, that the legislator may restrict access to marriage to different-sex couples because it has a certain margin of appreciation as regards the exact status conferred by alternative means of recognition. Moreover, the Court assumes that the Registered Partnership Act allows couples to obtain, in many aspects, a legal status that is equal or comparable to marriage; apart from parental rights, there were only slight differences (see ECHR, case of Schalk and Kopf, §§ 108 et seq.).

Given that persons of different sex have access to marriage (see the [explanatory report on the draft law]); the registered partnership was introduced only to counter discrimination against same-sex couples; [the registered partnership] should, in substance, have the same effects as marriage; different-sex couples are not a group (historically) discriminated against; and there is no European consensus on this matter, it does not amount to a violation of Article 14 taken in conjunction with Article 8 of the [Convention] if the Austrian legislator does not grant different-sex couples access to the registered partnership.

The Constitutional Court is not called upon to examine whether the particular differences between these legal institutions, as regards the legal consequences and dissolution options, comply with the principle of equality [Gleichheitssatz] and the prohibition of discrimination pursuant to Article 14 taken in conjunction with Article 8 of the [Convention], since the only question to be examined is whether different-sex couples have a constitutional right to access to the registered partnership.”

On 27 February 2013 the Administrative Court dismissed the applicants’ complaint (see paragraph 9 above) as unfounded. That decision was served on the applicants’ counsel on 25 March 2013.


CASE OF ALIYEVA AND ALIYEV v. AZERBAIJAN

Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicants were born in 1947 and 1942 respectively and live in Baku.

The applicants’ son, E.A., was born in 1971 and was an Azerbaijani national. He had his own business in Ukraine and lived in Kiev at the time of the events.

At around 4 a.m. on 1 June 2001 E.A. was stabbed with a knife outside a cafe in Kiev, Ukraine. He died as a result of the stabbing.

On the same day the Shevchenko District Police instituted criminal proceedings in connection with E.A.’s death.

On 9 June 2001 an investigator from the Shevchenko District Police decided to charge G.A., an Azerbaijani national working at the Azerbaijani embassy in Ukraine at the time of the events, on suspicion of E.A.’s murder.

It appears that on the same date G.A. was arrested by the Ukrainian law-enforcement authorities and on 12 June 2001 was remanded in custody. During the investigation, G.A. denied that he had murdered E.A., but refused to testify in connection with his stabbing.

On 11 July 2001 a forensic expert established that the stab wound to E.A.’s body had been caused by a knife with a blade 22 centimetres long and 2 centimetres wide.

On 17 July 2001 the Shevchenko District Court ordered G.A.’s release from custody on account of serious illness. On an unspecified date he left Ukraine for Azerbaijan.

It transpires that in the course of the investigation, the Ukrainian authorities also considered the possible involvement of another person in E.A.’s murder. In this connection, they requested the Azerbaijani authorities to question R.A., a major general of the Azerbaijani army who had been on an educational mission to Ukraine at the time of the events.

On 5 January 2002 the Azerbaijani prosecution authorities questioned R.A. as a witness in connection with E.A.’s stabbing. According to the record of questioning of the same date, R.A. denied any involvement. He stated that he knew G.A. who was an employee of the Azerbaijani embassy in Ukraine and that he had met E.A. there, but had not known him very well. As regards his whereabouts on 1 June 2001, R.A. stated that he did not remember exactly where he had been that day. He further stated that he had learned about E.A.’s death from employees at the Azerbaijani embassy.

On 30 January 2002 an investigator from the Shevchenko District Prosecutor’s Office decided to transfer the criminal case to the Prosecutor General’s Office of the Republic of Azerbaijan for further investigation, relying on the CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 22 January 1993 (“the 1993 Minsk Convention”). The investigator substantiated the transfer by the fact that the two Azerbaijani nationals (G.A. and R.A.) who had been identified by witnesses as the people involved in E.A.’s murder on 1 June 2001, were on Azerbaijani soil.

The relevant part of that decision reads as follows:

“M.S., who was questioned within the framework of the investigation, indicated that on 1 June 2001 he had been with E.A. at Cafe Sikora. When he had left the cafe, he had seen E.A. having an argument with two Azerbaijani nationals he did not know. One of the two men had then stabbed E.A. in the thorax.

Subsequently, among the photographs submitted for identification, M.S. recognised R.A’s photograph and identified him as the person who had stabbed E.A.

It was established that R.A., born on 4 June 1965, married, an Azerbaijani national, who had no criminal record, a degree holder, a major general, a head of the Army Corps, who resided in Baku ... was in Kiev between 28 March and 4 July 2001 on an educational mission at the National Academy of Defence of Ukraine.

Among other photographs submitted for his identification, M.S. also identified G.A., indicating that he very much looked like the person who was with R.A. at the time of E.A.’s murder.

Another eyewitness, S.N., who saw the events from a distance, clearly identified G.A ... during the identification procedure and indicated that [he] had been involved in the argument between the Azerbaijanis at Cafe Sikora and on the street outside the cafe at the time of E.A.’s murder...”

On 27 February 2002 the Deputy Prosecutor General of the Republic of Azerbaijan decided to return the criminal case to the Ukrainian authorities. He substantiated his decision by alleging failure on the part of the Ukrainian authorities to carry out the relevant investigative actions. In particular, he noted that the Ukrainian authorities had not identified and questioned all possible witnesses to the crime, such as customers and employees of the cafe on 1 June 2001, nor had they tried to establish the whereabouts of G.A. and R.A. on that day. He further noted that there were contradictions between the evidence given by eyewitnesses M.S. and S.N. in the investigation, and that the clothes G.A. and R.A. had been wearing on 1 June 2001 had not been examined by a forensic expert.

On 26 February 2003 the investigator from the Shevchenko District Prosecutor’s Office terminated criminal proceedings against G.A. and on the same day instituted criminal proceedings against R.A, relying in particular on the evidence given by M.S., who had insisted that R.A. was the person who had stabbed E.A. on 1 June 2001.

On 27 February 2003 the investigator from the Shevchenko District Prosecutor’s Office relying on Articles 72 and 73 of the 1993 Minsk Convention, decided to transfer the criminal case to the Prosecutor General’s Office of the Republic of Azerbaijan for further investigation in accordance with Azerbaijani law. He concluded that R.A. was the person who had stabbed E.A. on 1 June 2001. The relevant part of his decision reads as follows:

“Among the photographs submitted for identification, M.S. clearly identified R.A. and indicated that [he] was the person who had stabbed E.A. Moreover, M.S. indicated ... that G.A. looked like the person who had been with R.A. at the time of the commission of the crime; however, he could not confirm for definite that [he] had been there.

It was established that R.A., born on 4 June 1965, married, an Azerbaijani national, who had no criminal record, a degree holder, a major general, a head of the Army Corps, who resided in Baku ... was in Kiev between 28 March 2001 and 4 July 2001 on [an educational] mission at the National Academy of Defence of Ukraine.

In the course of the investigation, therefore, it was established that the Azerbaijani national E.A. was not murdered by G.A., but by R.A., an Azerbaijani national.”

On 8 April 2003 the criminal case was assigned to the Military Prosecutor’s Office of the Republic of Azerbaijan and criminal proceedings were instituted in Azerbaijan.

Following the institution of the criminal proceedings in Azerbaijan on 8 April 2003, the applicants wrote on several occasions, in particular on 12 July 2003, on 29 July 2003, on 2 August 2003, on 28 August 2003 and on 10 September 2003, to the Prosecutor General’s Office asking for an effective investigation into their son’s death. In particular, they alleged that although R.A. had murdered their son, he had not faced prosecution and had enjoyed de facto protection.

On 18 September 2003 an investigator from the Military Prosecutor’s Office dismissed the criminal proceedings against R.A., finding that there was insufficient evidence to prove that he had been involved in E.A.’s murder. He also decided to continue the investigation in connection with the murder. The relevant part of his decision reads as follows:

“Without clarifying the contradiction between the statements in the case file and carrying out the investigative steps necessary to establish which of them are true, and without identifying two people other than E.A. and M.S. who were at Cafe Sikoracategorically identifying who murdered E.A., and despite the fact that there was not any reliable evidence to prove that R.A. had murdered [him], the investigator instituted unjustified and unlawful criminal proceedings against R.A., concluding that [he had] murdered E.A.

In the course of the criminal investigation of the case carried out in the Military Prosecutor’s Office, no reliable evidence was obtained to prove that R.A. had murdered E.A.

For this reason, the criminal proceedings instituted under Article 115 § 1 of the Criminal Code of Ukraine against R.A. should be terminated, as [he] did not have anything to do with the commission of the crime, and the criminal investigation in connection with E.A.’s murder should be completely, in detail and objectively continued in accordance with Article 120 of the Criminal Code of the Republic of Azerbaijan and the perpetrator of the crime identified and prosecuted.”

The applicants were not informed of this decision.

As the applicants were not informed of the investigator’s decision of 18 September 2003, they continued to write to the Prosecutor General’s Office asking for an effective investigation into the death of their son. In reply to their letters, the applicants received the replies from the prosecution authorities which were all worded in a similar fashion. In particular, by letters dated 17 October 2003, 3 November 2003, 11 November 2003, 5 December 2013 and 7 January 2004, the prosecution authorities informed the applicants that the investigation would be carried out effectively and that they would be informed of its results. However, the prosecution authorities did not mention in their letters the existence of the investigator’s decision of 18 September 2003.

On 24 February 2004 the criminal case was assigned to the Serious Crimes Unit of the Prosecutor General’s Office.

On 28 June 2004 the investigator in charge of the case in Azerbaijan asked the Kiev City Prosecutor’s Office for legal assistance, with a view to questioning witnesses and obtaining other evidence. Following this request, an Azerbaijani investigator was sent on a mission to Ukraine from 2 September to 23 September 2004 and from 14 October to 21 October 2004.

By a letter of 19 May 2005 the Prosecutor General’s Office informed the applicants that in September and October 2004 an Azerbaijani investigator had been sent on a mission to Ukraine but it had not been possible to establish the whereabouts of the relevant witnesses or to question them. The relevant part of the letter reads as follows:

“On 28 June 2004 the investigator [R.H.] sent a request to the Kiev City Prosecutor’s Office for legal assistance within the framework of the criminal case no. 803636/0363 in connection with the murder of E.A. and in September-October 2004 [R.H.] was on a mission in Kiev and participated in several investigative actions carried out by the Shevchenko District Prosecutor’s Office.

However, as police officers of the Kiev City Shevchenko District Police Office failed to bring before the investigating authorities several witnesses whose statements were of particular importance to the investigation, it was not possible to question them and to carry out other investigative actions.

An operational request was sent to the relevant Ukrainian authorities in order to take relevant steps for bringing the relevant witnesses before the investigating authorities by establishing their whereabouts.

As the investigative actions were carried out on the territory of another State and some witnesses were not timely identified, it was not possible to complete the investigation and for this reason the period of investigation was extended in accordance with Article 218 of the Code of Criminal Procedure of the Republic of Azerbaijan...”

In reply to their further letters addressed to the prosecution authorities about the progress of the investigation, the applicants received two letters dated 7 September 2005 and 6 April 2006 from the Prosecutor General’s Office. The content of these letters were almost identical to the letter of 19 May 2005.

By letters dated 11 July 2005 and 21 November 2006 respectively, the Prosecutor General and Deputy Prosecutor General of the Republic of Azerbaijan asked their Ukrainian counterparts to establish the whereabouts of some witnesses and to question them in connection with E.A.’s stabbing.

On an unspecified date in 2006 the applicants asked the investigator to remove R.A. from office until the termination of the criminal proceedings.

On 11 September 2006 the investigator dismissed the applicants’ request, holding that such a preventive measure could be applied only in respect of a suspect or an accused person, of which R.A. was neither. The relevant part of the decision reads as follows:

“In accordance with Articles 154 and 155 of the Code of Criminal Procedure of the Republic of Azerbaijan, the preventive measure of removal from office during the investigation may be applied only in respect of a suspect or an accused.

However, it appears from the case file that R.A. was neither arrested as a suspect, nor adopted a decision recognising him as an accused.

In these circumstances, there is no basis to apply the preventive measure of removal from office in respect of him...”

On 3 July 2007 the applicants wrote to the Prosecutor General again, complaining of the ineffectiveness of the investigation and the investigating authorities’ failure to secure evidence concerning the incident. In this connection, they submitted that G.A., who had been involved in the crime, had died in unclear circumstances.

By a letter of 6 July 2007 the Prosecutor General’s Office informed the applicants that the circumstances of G.A.’s death were not unclear, as he had died of heart disease.

On 28 December 2007 the applicants lodged an application with the Nasimi District Court, complaining of inactivity on the part of the investigating authorities and the ineffectiveness of the investigation. In particular, they alleged that the investigation of their son’s murder had been unlawfully extended for years, and that despite R.A. having been identified as the perpetrator of the crime, he had not faced prosecution. They also argued that they had not been informed of the progress of the investigation.

At a hearing before the Nasimi District Court, the applicants and their representative reiterated their complaints, stating that they had not been informed of the procedural decisions taken during the investigation, and that the investigation had been extended, despite the perpetrator of the crime having been identified.

On 1 February 2008 the court dismissed the application, considering that the investigating authorities had not acted unlawfully and that the relevant investigative steps had been taken by the prosecution authorities. The court held that prosecutors were entitled to extend investigations and that this kind of decision could not be challenged before the courts. The relevant part of the decision reads as follows:

“Article 218.11 of the same Code [the Code of Criminal Procedure] provides that the time limit for conducting the investigation into an unsolved criminal case may be extended several times by the Prosecutor General of the Republic of Azerbaijan, until the case is solved in accordance with Articles 218.8 and 218.9 of the Code of Criminal Procedure...

As it transpires from the legislation the extension of the time limit for conducting the preliminary investigation is the right of the prosecutor supervising the investigation...

Moreover, Article 449 of the Code of Criminal Procedure of the Republic of Azerbaijan lays down the procedure by which actions or decisions of the prosecuting authorities could be challenged before a court. This Article clearly establishes the extent of actions and decisions which could be challenged. This Article does not provide the possibility to challenge under the procedure of judicial review the investigating authorities’ decision to extend the time limit for conducting the investigation ...”

The court further held that at that moment there was insufficient evidence to charge anyone with E.A.’s murder. However, it also found that the applicants had not been duly informed by the prosecution authorities, who had failed to provide them with all the relevant decisions. The relevant part of the decision reads as follows:

“It was established during the court investigation that several rights of the victim in this case were not fully secured by the investigating authority, that he was not informed in detail of the progress of the investigation, and that he was not provided with some of the decisions [on the criminal case] ...

In accordance with Article 87.6.13 of the Code of Criminal Procedure of the Republic of Azerbaijan, the victim, in circumstances and pursuant to the rules provided for in the Code of Criminal Procedure, is entitled to be informed of the decisions taken by the investigating authorities which have affected his rights and lawful interests, and to obtain copies of these decisions at his request.

The court takes into account the facts that the investigator R.M. admitted these violations during the court investigation, and that the victim was provided with copies of several important decisions on the criminal case during the examination of this complaint.”

On 23 February 2008 the applicants appealed against this decision, reiterating their previous complaints.

On 13 March 2008 the Baku Court of Appeal dismissed their appeal and upheld the Nasimi District Court’s decision.

On 3 June 2008 the Supreme Court refused to admit the applicants’ cassation appeal holding that the Baku Court of Appeal’s decision was final and not subject to appeal.

On 14 December 2010 an investigator from the Serious Crimes Unit of the Prosecutor General’s Office issued a decision suspending the criminal proceedings in connection with E.A.’s death. The investigator substantiated the decision by the fact that although all possible investigative steps had been taken, it had not been possible to determine who had killed E.A. The relevant part of the decision reads as follows:

“As it was not possible to determine the person (persons) who committed the crime despite the fact that at the time being all possible operational investigative measures were taken, it is appropriate to suspend the criminal proceedings.”

On an unspecified date in 2013 the applicants lodged a complaint with the Nasimi District Court asking the court to quash the investigator’s decisions of 18 September 2003 and 14 December 2010. The applicants noted that they had not been informed of the investigator’s decision of 14 December 2010 suspending the criminal proceedings in connection with their son’s murder and they had learned about this decision only when the Government submitted to the Court a copy of the decision in question in their observations within the framework of the examination of their complaint by the Court. The applicants also submitted that they were never provided with a copy of the investigator’s decision of 18 September 2003.

On 31 May 2013 the Nasimi District Court granted partially the applicants’ claim and quashed the investigator’s decision of 14 December 2010 suspending the criminal proceedings in connection with the murder of the applicants’ son. In this connection, the court held that the prosecution authorities failed to prove that they had informed the applicants of the decision of 14 December 2010. The court further found that the prosecution authorities’ failure to inform the applicants of the decision of 14 December 2010 had been unlawful and had deprived the applicants of the exercise of their right to challenge the decision in question. Thus, it appears that the criminal proceedings are still pending, whereas the Court has not been informed of any further developments.

As to the part of the applicants’ claim concerning the investigator’s decision of 18 September 2003, the Nasimi District Court considered that this claim fell outside its jurisdiction and decided to transfer it for an examination to the Baku Military Court. The court held in this respect that the decision of 18 September 2003 was delivered by an investigator from the Military Prosecutor’s Office and therefore the decision in question could be challenged before a military court.

On 23 October 2013 the Baku Military Court dismissed the applicants’ claim considering it unjustified without further explanation.

On 5 November 2013 the Baku Court of Appeal upheld the Baku Military Court’s decision of 23 October 2013.