CASE OF MIHAYLOVA AND MALINOVA v. BULGARIA

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

George Nicolaou;Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

The applicants, daughter and mother, were born respectively in 2001 and 1980 and live in Samokov. Mr Boris Mihaylov, the victim of the police action in question, was a young Roma man: the first applicant’s father and the second applicant’s unmarried partner.

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

Late in the evening of 3 August 2004, while driving in the centre of Samokov, KK noticed three individuals who were trying to open the doors of a parked lorry. Mr Mihaylov was one of these men. KK called the police. Shortly afterwards, two on-duty police officers from the Samokov District Police Unit, Chief Sergeants S and M, who at that time had been responding to another call, received information from the central office that three “gypsies” had been seen breaking into a lorry and the officers drove immediately to the scene.

When the police car, apparently with its siren on, approached the lorry, the three men started running. The officers followed by car. When the street became narrower, they got out of the car and separated, with Chief Sergeant S chasing Mr Mihaylov while Sergeant M followed the other two men, whom he was unable to catch. Chief Sergeant S caught up with Mr Mihaylov by the side of the street, close to a parked car. A short fight followed, and two shots were fired. One of the bullets, fired at very close range, entered the left back of Mr Mihaylov’s head and exited through the right side of his forehead. An ambulance was called and Mr Mihaylov was taken to a hospital where his death was registered at 00.10 a.m. on 4 August 2004.

On the same day a criminal investigation (VII-20/2004) was opened against Chief Sergeant S to establish whether he caused Mr Mihaylov’s death as a result of a disproportionate reaction to an attack (Article 119 of the Criminal Code: see paragraph 42 below). At this stage no charge was brought against him.

An autopsy was carried out on Mr Mihaylov’s body on 4 August 2004. In his report the forensic pathologist determined that death had resulted from a severe cerebral trauma and ensuing cardiovascular insufficiency. The trauma was caused by a transitory gunshot: the entry wound was located on the left side of the back of Mr Mihaylov’s head and the exit wound on the right side of the forehead towards the temporal bone. The shot was fired from a distance close to point-blank range. The expert noted that, as the head could move in different directions, on the basis of the route of the bullet it was difficult to establish the dynamic position of the victim’s body in relation to the gun at the moment of shooting. He also noted several bruises on the right side of Mr Mihaylov’s face, his right hand and both knees, which he concluded had in all probability resulted from the fall to the ground after the shooting.

The pathologist also examined Chief Sergeant S. He noted a reddishpink bruise on his right hand, measuring 0.5 centimetres long, and another bruise measuring 0.5 by 0.8 centimetres on his right side. The pathologist concluded that the injuries could have been inflicted in the manner described by the police officer, namely when he was trying to knock the knife from Mr Mihaylov’s hand and during the struggle for the gun.

An inspection of the scene was carried out at 2.20 a.m. on 4 August 2004 by a military investigator in the presence of two certifying witnesses. There was no subsequent day-light examination. The investigator examined the bonnet of the car next to which Mr Mihaylov’s body was found and noted a dent of 3.5 centimetres located at 0.98 metres from the front left corner and 1.03 metres from the front right corner as well as a bullet hole measuring 3 centimetres situated at 1.17 metres from the front left corner and 0.77 metres from the front right corner of the bonnet; blood stains on the bonnet and on the ground next to the car; and another dent with freshly peeling paint on the metal wall of the building to the left of the car. Photographs were taken of the dent and the bullet hole on the bonnet but these were not preserved as physical evidence, nor were impressions made of the dents and bullet holes. The vehicle was not taken away for examination and its owner, a security firm, repaired and sold it before the investigation was formally completed.

The investigator found a handgun on the ground under the bonnet of the parked car. The safety lever was lifted and there was one bullet in the barrel and two in the magazine. The investigator found and retrieved one spent cartridge case, on the other side of the street, two to three metres from the parked car where Mr Mihaylov was shot, but no bullets. During the subsequent stages of the investigation proceedings the initial number of cartridges in the officer’s gun was not clarified, nor was it determined how many shots were fired, including whether a warning shot was fired. The statements of the Chief Sergeant S were contradictory on this subject. In his testimony of 4 August 2004 he S stated that he had started with five cartridges in his handgun but on 10 September 2004 he changed his testimony, maintaining that he had had six cartridges.

A fingerprint report of 9 August 2004 did not record any traces of fingerprints on the handgun suitable for examination. The report on the acetone-drenched swabs of Chief Sergeant S’s hands of 11 August 2004 found no traces of gunpowder residue. The expert report on Chief Sergeant S’s handgun of 25 August 2004 concluded, inter alia, that it had been in good condition and would have discharged a shot only after the trigger was pulled.

During the inspection of the scene of the killing which took place in the early hours of 4 August 2004, the investigating officer found a folding knife, with an eight centimetre blade and a ten centimetre metal handle. The protocol of the search stated that it was found on the bonnet of a car parked across the street from the death scene but it did not state whether the blade was open when it was found. It seems that no steps were taken to check for fingerprints on the knife or to determine its ownership. A mobile telephone was found in a stone vase near the scene of the shooting, but the subsequent investigation did not determine who owned it.

The investigator questioned Chief Sergeant S, his colleague Chief Sergeant M and the three security guards who had been standing in the vicinity of the scene at the time of the events.

Questioned in the early hours of 4 August 2004, Chief Sergeant S stated that Mr Mihaylov had been running with his arms open wide while trying to escape. As the sergeant caught up to him, Mr Mihaylov had stopped and turned round. At this point Chief Sergeant S noticed that he held a knife, but it was dark and he could not see it well. Mr Mihaylov swung at the sergeant with his left hand, and the officer tried in vain to knock the knife away. Mr Mihaylov then grasped him tightly with both hands behind his back, while reaching for the handgun, which was in the officer’s unbuttoned holster at his waist. The two men had fought briefly for possession of the gun. Chief Sergeant S stated that he felt strongly afraid: it was dark, the other man had his hand on the officer’s loaded gun and was armed with a knife. The officer could not remember the exact position of their bodies in the fight that ensued for the gun and at the moment when the shots were fired, nor could he remember how many shots were involved. He had been expecting the man to shoot or stab him at any moment.

Questioned later, Chief Sergeant S stated that after the first shot was fired he panicked and could not remember what happened. In his subsequent statements he explained that he had been stabbed on earlier occasions while on duty, which had made him particularly fearful of knives. He was not even aware who actually pulled the trigger and at one moment he had feared that he had been shot, rather than Mr Mihaylov.

Throughout the subsequent proceedings the only testimony about the detail of the fight remained that of Chief Sergeant S. The other officer involved in the chase, Chief Sergeant M, and some other eye witnesses were also questioned in the early hours of 4 August 2004. Chief Sergeant M stated that he telephoned Chief Sergeant S when he lost sight of the other two suspects, to discuss how to proceed. Chief Sergeant S asked him to come to him immediately. When he arrived at the site there were a lot of people and he saw a man taken away by ambulance. Chief Sergeant S’s handgun was beneath a car and there was a blood stain on the ground next to the car. His colleague was extremely upset and told him that he had done the worst. There was a pocket knife on the bonnet of another car nearby.

At the time of the events, three employees of a private security company, GK, EK and GD, were chatting in front of their office, which was in a building adjacent to the street where Mr Mihaylov was shot. They were interviewed on five occasions and their statements were inconsistent, both in respect of each man’s previous statements and the statements given by the other men. Their statements varied as regards whether they heard a warning shot, how many shots were fired and whether they saw a knife in Mr Mihaylov’s hand. Some of them remembered the officer warning Mr Mihaylov from a distance to stop and lie down. All of them stated that the events unfolded within seconds and that they could not see what exactly happened when the police officer came into contact with Mr Mihaylov because it was dark. None of them had seen a knife or a gun in the hands of Mr Mihaylov or Chief Sergeant S in this short time, although they saw them afterwards. They agreed that when Chief Sergeant S, who had fallen to the ground with Mr Mihaylov, stood up, he was holding a knife, which he threw and which fell on the bonnet of a car parked on the other side of the street. The officer had been very upset, and appeared to be in a state of shock, waving his arms around, pacing up and down and repeatedly proclaiming: “What did I do?”

Later in the proceedings it transpired that there was a camera installed above the entrance door of the security company building, facing the street. The car next to which the shooting took place was parked on the opposite side of the street, at a short distance from where the men were standing. In his testimony of 18 October 2007, GK stated that on the night of the incident the security camera installed above the entrance to the building in which they worked had been broken. Another witness stated that the camera did not record footage, but only monitored the street outside, and was used by the night shift security guards to observe the firm’s vehicles. The guard on duty on the night of the shooting was GD. He was standing outside with the other two witnesses. There was also a dispatcher whose desk was below the monitor screen, but according to GK she could not see it. During his interview of the same day EK stated that he could not remember which dispatcher was on duty that night and that at that time the dispatchers employed by the firm were all new employees of the company. The camera was not inspected and none of the other employees of the firm were interviewed on this point during the investigation.

On 30 September 2004 the investigating officer completed his work on case-file VII-20/2004. In his findings on the facts he described the unfolding events in detail as follows:

“On 3 August 2004 the operator on duty at the district police station of Samokov Chief Sergeant KB, a witness, took a call from a private person KK who reported that three men were preparing to commit theft from a lorry parked on Tzar Boris III Street. The lorry belonged to Markan Ltd – it was left parked in the street with its signal lights on by GS, who worked as a supplier for Markan Ltd. The operator dispatched patrol officers Chief Sergeant SM and Chief Sergeant VS to the location in question. When the patrol vehicle approached the lorry on Tzar Boris III Street the three men who were around and inside the lorry attempted to escape and started running in the direction of the town centre. The patrol vehicle followed them along Tzar Boris III Street when two of the men ran towards the town centre and one ran towards Otez Paisii Street. Chief Sergeant SM went in pursuit of the two men running towards the town centre and Chief Sergeant VS followed the man who had gone in the direction of Otez Paisii Street; VS fired a warning shot in the air – using a ‘stop’ bullet. On Otez Paisii Street in proximity to Treger Café, and in front of building No. 5 Chief Sergeant VS caught up to the running man who while running had a mobile telephone in one of his hands and a pocket knife in the other. At this moment VS had already put his Makarov KT 23389 pistol into the holster on his hip so that he could run faster, and at the time there was a live bullet in the barrel of the pistol after the firing of the warning shot. VS was wearing a uniform, he had got off a police vehicle bearing insignia, he had shouted to the running man ‘Stop! Police! Get down on the ground!’ but the man had not stopped running. In front of the building on Otez Paisii Street BM stopped running, turned to face the police officer and swung at him with his hand which held a pocket knife. VS saw the blade in the street light and blocked the hand of the man. Without letting go of the knife, BM threw himself on VS, grabbed him around his waist while holding his arms, and attempted to take the gun out of VS’s holster. VS took hold of BM’s hand which was holding the gun, and then BM pushed VS onto the bonnet of an Opel with number plates CO 5486 KA which was parked nearby. As he was falling, V.S. managed to extricate himself from under B.M., while B.M. kept holding on to his gun with one of his hands, and holding the knife in the other. At the same time VS had both his hands on BM’s hand with which he was trying to take the gun out of the holster. BM had managed to take out the gun while VS held his hand – as a shot was fired and the bullet hit the metal wall of the building of Treger Café. The direction of that shot was to the side and away from the place of the incident, which means that this shot was not fired as a warning shot. After the shooting, because of the fear for his life which he had experienced, VS was in a state of extreme stress and he was not able to recollect the events in detail. The struggle between the two was observed by three witnesses: GD, GK and EK who were standing in front of the building at Otez Paisii No. 5 and who did not interfere. Their testimonies confirm that BM had stopped running and had started to wrestle with VS. However, because of the stress, the dim light and the speed of the events the witnesses cannot recall details about the manner in which BM was shot and the position of the two men’s bodies in relation to one another at the time of the shooting. From the appearance and the location of the gun wound on BM’s head and the gunshot hole found in the bonnet of Opel CO 5486 KA, it is evident that after the first shot was fired, VS had managed to regain possession of the gun and shoot him in the head at close range. After the shooting VS was in a state of shock: he dropped the gun on the ground, he was moving erratically, he was bending down to BM who was lying on the ground, he took the knife from BM’s hand and threw it onto the bonnet of Opel C 3034 ПХ. At this moment Chief Sergeant SM was in the town centre and he placed a call to VS’s mobile; VS told him that trouble had occurred and SM called the operator to dispatch support. KB, the operator on duty, sent a patrol vehicle and an ambulance. BM was taken to the hospital in Samokov where in spite of the medical assistance he passed away from a traumatic head injury followed by shock and coma that led to irreversible heart and lung failure.

In his 20 years of service with the Ministry of Interior Chief Sergeant VS has never been disciplined; he was awarded four times. The man who was killed, BM, had committed a large number of offences. He has been registered for 12 thefts and two robberies. He was convicted five times for the following crimes: ....”

Based on these findings, the investigator proposed to the prosecutor to discontinue the investigation since he considered that Chief Sergeant S had acted in self-defence within the meaning of Article 12a of the Criminal Code (see paragraph 42 below), which in his view meant that the acts of the police were not liable to prosecution. He further indicated that “even if there was no danger to the officer’s life, Chief Sergeant S was authorised to use a firearm in such circumstances, although he did not do so until his life was threatened”.

On 6 October 2004 the applicants’ counsel requested access to the investigation file. On 29 October 2004 a prosecutor from the Sofia military prosecutor’s office dismissed the request, on the grounds that at this stage the applicants were not participating in the criminal proceedings.

In a decree of the same day the prosecutor discontinued the criminal proceedings against Chief Sergeant S, stating that the officer had shot Mr Mihaylov but that this had not constituted an offence. In reaching his conclusion, the prosecutor found it established that, when running, Mr Mihaylov had been holding a mobile telephone in one hand and a knife in the other. At some point he had stopped abruptly, had turned around and had swung at the officer with the knife. When the officer had tried to knock away the knife, Mr Mihaylov had wrestled with him, tried to reach the officer’s handgun, and pushed him onto the bonnet of the car. A short struggle for the gun had followed and one shot had been fired accidentally. Following that, according to the prosecutor, the officer had managed to get hold of the gun and shoot Mr Mihaylov. As the victim had still been holding the knife, the police officer took it from his hands and threw it away. In the prosecutor’s view Mr Mihaylov attacked the officer in order to avoid arrest and also to help his accomplices, who at that time were running away with a cassette player stolen from the lorry.

On the basis of this account of the facts, the prosecutor reached the following conclusions. First, he concluded that Mr Mihaylov had attacked Chief Sergeant S. Secondly, the reaction of the police officer, who had shot Mr Mihaylov, had not been disproportionate to the attack. Chief Sergeant S had acted in self-defence against a much younger man who had been holding a knife. Because of the weak light and the speed of the events, the circumstances of the shooting and the position of the bodies could not be established. Thirdly, once Chief Sergeant S identified himself as a police officer and fired a warning shot he was entitled under Article 12a of the Criminal Code (see paragraph 42 below) to use force to arrest Mr Mihaylov, even if it had not been necessary to act in self-defence. The prosecutor also noted that Chief Sergeant S had never been disciplined but had been commended a number of times and that Mr Mihaylov had been known to the police and had been convicted five times. The fact that Mr Mihaylov held the knife in his left hand and that he must have used the same hand to grasp the gun of the officer, who was facing him, was not given attention.

In response to the applicants’ counsel’s appeal, by a decision of 13 December 2004 the Sofia Military Court quashed the prosecutor’s decree, finding that the prosecutor’s account of the events was based on arbitrary and contradictory assumptions rather than on established facts; the interviews of the witnesses had been formalistic and their statements were vague and contradictory. In particular, the prosecutor had failed to establish the number of shots fired, the position of the two bodies at the time of the fatal shooting, the trajectory of the bullet and the position of the victim’s head in relation to the barrel of the gun. The court also noted that the prosecutor had failed to give reasons for his conclusions regarding the applicability of the rules on self-defence or Article 12a of the Criminal Code (see paragraph 42 below). In view of those shortcomings the court remitted the case and instructed the prosecutor to re-interview the eyewitnesses; if possible, to find and interview other witnesses; to have prepared a medicalballistics report in order to establish, in particular, the position of the bodies and the trajectory of the bullet; and to organise a reconstruction of the events in order to verify the witnesses’ statements.

In execution of the court’s instructions, on 19 January 2005 the investigator commissioned a medical-ballistics report. The authors of the report made no mention of the bullet hole in the car bonnet and concluded that they could not determine the exact position of the two bodies at the time of the shooting. They found that at the moment of the shooting the gun was almost touching the back left side of Mr Mihaylov’s head, and that it had been pointing upwards and slightly to the right.

The investigator questioned Chief Sergeant S on 17 January 2005. Relying on his status as a witness, the sergeant refused to take part in a reconstruction, claiming that he had received threats from the Roma community in Samokov. On 11 August 2005 the investigator was discharged from the case for his failure to comply with the court’s directions and a new investigator was appointed. The new investigator questioned the three security guard eyewitnesses on 13 September and 20 September 2005 and he questioned Chief Sergeant S on 12 September 2005 and on 13 January and 1 February 2006. Chief Sergeant S maintained that he had acted in self-defence and in accordance with the rules governing the use of force. He was in shock and unable to remember the exact positions of himself and Mr Mihaylov when the latter was shot.

In a decree of 16 March 2006 the prosecutor discontinued the criminal proceedings on the grounds that the police officer had not committed an offence. The applicants again sought judicial review. In a decision of 13 June 2006 the Sofia Military Court quashed the prosecutor’s decree and remitted the case for further investigation. The court stated that the investigative authorities had failed to comply with the court’s previous directions and had thus obstructed the investigation. It noted again that the interviews of the witnesses had been formalistic, that their statements were contradictory and that the investigative authorities had failed to organise a reconstruction or confrontations in order to clarify the facts. The court noted that the forensic evidence suggested that at the moment of the shooting Mr Mihaylov had been facing the bonnet of the car. Also, the investigative authorities had never established the exact number of cartridges fired and the statements of Chief Sergeant S were inconsistent on this point. The court further noted that the experts who had carried out the medical-ballistics report had failed to discuss the bullet hole in the car bonnet. Furthermore, the investigative authorities had failed to inspect the knife and to analyse the circumstances surrounding its use or to inspect the mobile telephone and its whereabouts at the time of the events.

Following the remittal, the investigator re-questioned the security guards. They stated that they had only vague memories of the incident and refused to participate in a reconstruction. Chief Sergeant S again refused to give a further statement or to participate in a reconstruction. The fingerprint expert report on the knife of 26 July 2006 found no fingerprints suitable for examination.

On 13 October 2006 the applicants’ counsel examined the investigation file and requested the collection of additional evidence, namely that steps be taken to seek out other witnesses; that the certifying witnesses who had participated in the inspection of the crime scene early in the morning following the incident be questioned; that the two police officers be re-interviewed with a view to clarifying whether they had followed a preliminary plan for the arrest of Mr Mihaylov and his companions; that an additional medical-ballistics report be prepared to clarify the position of the bodies, in particular whether Mr Mihaylov had been neutralised at the moment of the fatal shooting, and the number of cartridges in the handgun as it had not been clear how many shots had been fired in total. She also demanded the inspection of the security camera, installed above the entrance of the building opposite the site of the shooting; a reconstruction of the events; and an identification by Mr Mihaylov’s family of the knife found at the scene. On 7 November 2006 these requests were rejected by the prosecutor on the grounds that they were aimed at delaying the proceedings. The prosecutor noted, inter alia, that any video recordings made by the camera belonging to the security firm would not qualify as evidence under the Criminal Procedure Act.

In a decree of 10 November 2006 the prosecutor discontinued the criminal proceedings since he considered that Chief Sergeant S had not committed an offence. In relation to the court’s instructions regarding further inquiries, the prosecutor stated that, despite efforts made, no other eyewitnesses had been identified; the inspection of the knife had not revealed any new evidence; it had been impossible to establish the owner of the mobile telephone; and that a reconstruction of the events would have been futile as Chief Sergeant S refused to take part owing to a justified fear of violence from the relatives of the victim and members of the Roma community. The prosecutor stated that when the fight had started Chief Sergeant S and Mr Mihaylov had fallen on the bonnet of the car. The prosecutor did not come to any conclusion as to whether Mr Mihaylov had been holding the knife when the fatal shot was fired, but noted only that at that moment the officer had been very afraid. The prosecutor reproduced the legal conclusions on the rules of self-defence under Article 12a of the Criminal Code, contained in the decree of 29 October 2004 (see paragraphs 23-24 above). Relying on unspecified information about injuries inflicted on Chief Sergeant S during earlier police operations, the prosecutor concluded that the latter should not be punished because he had acted in a state of acute fear.

The applicants challenged the decree, claiming, inter alia, that the authorities, influenced by their prejudice towards Roma, had conducted only a formalistic investigation. In a decision of 22 November 2006 the Sofia Military Court quashed the decree and remitted the case to the prosecutor. It held that the investigative authorities had failed to comply with the instructions given by the court in previous decisions and that they had intentionally protracted the investigation and failed to employ any meaningful efforts to establish the truth. The court noted, inter alia, that the exact circumstances of the fight and the shooting had not been established; that no reconstruction had been organised and no valid reasons given for this omission; and that the authorities had also failed to conduct confrontations, inspections of the knife and the mobile telephone or to order an additional medical-ballistics report.

Following the remittal by the Sofia Military Court, on 16 March 2007 the investigator arranged for an inspection of the knife, but this failed to determine whether the blade had been open or closed at the time of the shooting. A further medical-ballistics report, dated 27 March 2007, made no reference to the bullet hole in the bonnet of the car and concluded that it was impossible to establish the exact position of the bodies at the time of the shooting. The investigator also requested Chief Sergeant S to take part in confrontations with GD and GK, and a reconstruction, but the Chief Sergeant refused to participate.

On 21 April 2007 the applicants’ counsel repeated her earlier requests for additional investigative measures. In a decree of 31 May 2007 the prosecutor again discontinued the criminal proceedings. He repeated verbatim the reasoning given in the decree of 10 November 2006, but added as an additional ground that Chief Sergeant S had been suffering from fear and confusion and that in these circumstances, as a matter of domestic law, there had been no excess of force. The applicants sought judicial review. In a decision of 27 June 2007 the Sofia Military Court quashed the prosecutor’s decree and remitted the case for further investigation. The court stated that despite the numerous remittals the prosecutor had repeatedly failed to comply with the court’s instructions and that the actions of the authorities and the measures employed had been a parody of an investigation, revealing unwillingness to collect the evidence and establish the truth.

Following the remittal the investigator questioned the three security guards, Chief Sergeant M and two additional witnesses, as requested by the applicants. During the interview of GD on 18 October 2007, the investigator in one question referred to Mr Mihaylov as “the gypsy”. On 5 December 2007 the investigator organised a reconstruction of the events. Chief Sergeant S did not take part, relying on his capacity as a witness. A further ballistics report dated 14 December 2007 found, in particular, that on the basis of photographs it had not been possible to establish the morphology, character and orientation of the bullet hole and thus the exact position of the bodies at the time of the shooting. Meanwhile, it appears that around this time the prosecutor in charge of the investigation stated that he disagreed with the court’s instructions and requested to be allowed to withdraw from the case. It appears that this request was not granted, as he continued working on the case.

In a decree of 9 January 2008 the prosecutor discontinued the criminal proceedings finding, as before, that the police officer had shot Mr Mihaylov to defend himself from the latter’s attack and that the use of force had, in any case, been justified under Article 12a of the Criminal Code (see paragraph 42 below) once the police officer had asked Mr Mihaylov to stop and had fired a warning shot. The prosecutor noted, in support of his finding of self-defence, that an offender with a criminal record had attempted to attack a police officer, who had never been disciplined and who had received awards. The applicants sought judicial review, contending, inter alia, that the authorities had not bothered to carry out an effective investigation because of Mr Mihaylov’s ethnicity and low social status. The Sofia Military Court upheld the prosecutor’s decree. Upon the appeal of the applicants, in a decision of 22 July 2008, the Military Court of Appeal set aside the lower court’s decision. The Court of Appeal raised serious doubts in respect of the prosecutor’s impartiality. It further noted the prosecutor’s failure to establish who had fired the fatal shot and in what circumstances. The court also held that on the basis of the evidence collected, namely the eyewitnesses’ testimony that the shooting had taken place on the car’s bonnet and the conclusions of the medical-ballistics report about the channel of the wound, it was clear that at the moment of the lethal shooting Mr Mihaylov had been facing the bonnet of the car and the police officer had fired from behind. Thus the court found that immediately before the shooting the police officer had had full control over the victim, the use of force had not been necessary and there was sufficient evidence that the police officer had intentionally killed Mr Mihaylov. The court remitted the case, instructing the prosecutor to bring charges against the sergeant for murder as well as to discharge anybody who had demonstrated partiality from working on the case.

On 1 December 2008 a newly-appointed prosecutor laid charges against Chief Sergeant S for causing death as a result of a disproportionate reaction to an attack. However, two weeks later, in a decree of 15 December 2008, the prosecutor discontinued the criminal proceedings against Chief Sergeant S, using almost identical reasoning to that in the decree of 9 January 2008, with some additional findings, some of which appeared contradictory. For example, at one point in the decree the prosecutor found that Mr Mihaylov had dropped the knife before he had reached for the sergeant’s handgun, but subsequently he found that Mr Mihaylov had dropped the knife at the moment the fatal shot was fired. The prosecutor also referred to the police officer’s fear of knives as justification for using force. Chief Sergeant S had claimed in his testimony of 12 September 2005 that he had developed a fear of knives after he was stabbed while making another arrest a year before the incident with Mr Mihaylov. No assessment of the police officer’s psychological condition or his fitness to perform his duties at the material time was mentioned in the decree. In the report, the prosecutor advanced three different justifications for the use of force, namely, the justified use of force to make an arrest; self-defence; and the excessive use of force due to fear. No attempt was made to reconcile these three theories.

The applicants sought judicial review. In a decision of 14 January 2009 the Sofia Military Court quashed the prosecutor’s decree and remitted the case for further investigation. The court considered ill-founded the prosecutor’s conclusions that Mr Mihaylov had been holding a knife when he had turned to the sergeant and that at the beginning of the fight Mr Mihaylov had pushed the sergeant onto the bonnet of the car. The court found that the officer had had full control over Mr Mihaylov and that the use of force had been excessive. The court also noted the failure of the investigative authorities to comply with previous judicial directions.

Following the remittal, the prosecutor interviewed two witnesses who stated that Chief Sergeant S had been injured before, in 1997 and 2003, during police operations. In a decree of 8 June 2009 the prosecutor again discontinued the criminal proceedings. This time the prosecutor maintained that Mr Mihaylov had dropped the knife before reaching for the handgun. He further held that the fight had taken place next to the car and not on its bonnet and that Mr Mihaylov had fallen on the bonnet after he had been shot. Following an appeal by the applicants, on 7 July 2009 the Sofia Military Court quashed the prosecutor’s decree and again remitted the case for further investigation. Chief Sergeant S appealed against the decision. In his appeal he did not claim to have acted in self-defence but instead claimed that it had been an accidental killing, falling under Article 15 of the Criminal Code. The prosecutor also challenged the decision. His appeal was rejected in a decision of the Military Court of Appeal on 22 July 2008. In a decree of 13 October 2009 the prosecutor discontinued the proceedings for the eighth time, stating that Mr Mihaylov had been holding a knife when he attacked the officer and that he had pushed the officer onto the bonnet of the car, dropping the knife and reaching for the handgun, and that after the shooting the officer had taken the knife and had thrown it away. The applicants sought judicial review. By a decision of 6 November 2009 the court granted the appeal and remitted the case, finding that the court’s earlier instructions had not been complied with, that no additional investigation had been conducted, and that the prosecutor had based his conclusions on contradictory facts.

Chief Sergeant S challenged the court’s decision before the Military Court of Appeal and reiterated his claim that the shooting had been an accident. By a final decision of 17 December 2009 the Military Court of Appeal quashed the lower court’s decision and upheld the prosecutor’s decree. The court endorsed the conclusions of the prosecutor on the facts. It found that the police officer had been faced with a real and imminent attack by the victim which was not interrupted until the two shots were fired. The police officer had acted in self-defence and had not, therefore, committed an offence.


CASE OF MITROV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction);Reopening of case (Article 41 - Just satisfaction)

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano

The applicant was born in 1974 and lives in Strumica.

At the time when the criminal proceedings (see paragraphs 11-32 below) were initiated, there were four judges working in the criminal section of the Strumica Court of First Instance (“the trial court”): Judges M.A., C.K., T.D. and G.M. In addition, Judge B.B. was an investigating judge in the trial court, Judge V.D. worked on cases concerning minor offences, and Judge S.D. was on sick leave.

From 2002 Judge C.K. was a clerk (стручен соработник) at the trial court. From 2004 she worked with Judge M.A. and two other judges. She was appointed as a judge in February 2005.

In 2004 Judge M.A. became president of the criminal section of the trial court.

On 26 November 2006 the applicant was involved, as the driver of a car, in a traffic accident in which the eighteen-year-old daughter of Judge M.A. was killed.

On 19 January 2007, after examining the applicant in the presence of his lawyer, Judge B.B. opened an investigation against him.

Between 25 January and 7 February 2007 Judge B.B. heard evidence from five eyewitnesses, two experts and the victims’ representative. The applicant’s representative was only present when two of the eyewitnesses gave their statements.

On 8 February 2007, Judge B.B. commissioned an expert report, to be prepared by the Forensic Bureau (Биро за судски вештачења) (“the Bureau”), regarding the reasons for the accident, the speed at which the applicant had been driving at the relevant time, whether the accident could have been avoided, and other relevant matters.

On 14 March 2007 a mechanical engineer from the Bureau drew up an expert report (“the first expert report”), relying partly on the statements given by the witnesses before Judge B.B.

On 20 April 2007 the public prosecutor charged the applicant with “severe crimes against the safety of people and property in traffic” (тешки дела против безбедноста на луѓето и имотот во сообраќајот). On 15 May 2007 a three-judge panel of the trial court, presided over by Judge T.D., dismissed an objection (приговор) by the applicant to the indictment.

In June 2007 an alternative expert report was drawn up, at the applicant’s request, by a private expert agency (“the second expert report”).

On 12 July 2007 the applicant asked the president of the trial court to exclude the trial court judges who acted in the criminal proceedings, namely Judge C.K. and the other judge on the trial court panel which were acting in the applicant’s case, as well as Judges G.M., S.D. and T.D., given that the case concerned a traffic accident in which the daughter of a judge in the criminal section of the court had been killed. He further complained that the investigation had been unfair, and alleged that Judge B.B. had been partial. Finally, he stated that he hoped that the president of the trial court would ask the President of the Štip Court of Appeal (“the appellate court”) to assign the case to another first-instance court.

On the same day Judges C.K. and T.D., who had been appointed as members of the panel in the applicant’s case, gave written statements that the fact that their colleague’s daughter had died in the accident would not influence their adjudication. The president of the trial court referred to those statements, and dismissed the application for exclusion in respect of Judges C.K. and T.D., finding that the conditions of section 36(2) of the Criminal Proceedings Act (see paragraph 33 below) had not been fulfilled. The president of the trial court further rejected as inadmissible the application concerning Judges G.M. and S.D., given that under section 38(4) of the Criminal Proceedings Act an application for exclusion could only be lodged in respect of an individual judge who was acting in a particular case (see paragraph 33 below).

The trial continued, and on the same day the applicant lodged a fresh application for exclusion of Judge T.D., given that he had presided over the three-judge panel which had dismissed the applicant’s objection to the indictment (see paragraph 15 above).

On 13 July 2007 the president of the trial court upheld the latest application for the exclusion of Judge T.D.

At a hearing held on 26 September 2007 the trial court (Judge C.K. presiding, and including Judge S.D. and three lay judges) admitted in evidence the second expert report (see paragraph 16 above) submitted by the applicant. The applicant asked the trial court to examine the experts who had prepared both reports, in order to clarify their findings, which he described as contradictory.

At a hearing held on 19 October 2007 the composition of the trial court panel was changed to Judge C.K. (as president of the panel), Judge V.D., and three lay judges. At that hearing the trial court commissioned a fresh expert report (вештачењето да се обнови со други вештаци) to be prepared by three experts from the Bureau, not those who had drawn up the report of 14 March 2007 (see paragraph 14 above).

On 31 January 2008 a fresh expert report was issued by the Bureau (“the third expert report”).

On 4 March 2008 one of the experts who had drawn up the third expert report was examined at the trial.

On 5 March 2008 the applicant’s lawyer, in his closing remarks, submitted that the trial court was adjudicating a case concerning an incident in which their colleague’s daughter had died. He argued that the practice in similar cases was that the judges withdrew in order not to cast doubt on the court’s impartiality.

On the same day the trial court convicted the applicant and sentenced him to four years and six months’ imprisonment. It found that the applicant had been driving at excessive speed and under the influence of alcohol. It dismissed the applicant’s arguments that the victim in the accident had ignored a “Stop” sign and was not wearing a seat belt. It based its findings on the third expert report and the oral evidence. It did not give any weight to the second expert report. Finally, the trial court upheld the compensation claim lodged by Judge M.A., her husband and her other daughter against the applicant’s insurance company, which had acknowledged the claim (го призна барањето).

On 4 April 2008 the applicant appealed against the judgment, arguing, inter alia, that the case should have been assigned to another court, and that Judge C.K. had previously worked as a court clerk delegated to Judge M.A. for several years. In this connection he submitted that there had already been such transfers in cases concerning criminal proceedings against a public prosecutor and a president of a court. There had been grounds for exclusion under section 36(2) of the Criminal Proceedings Act. The trial court had not provided any reasoning in respect of the second expert report, and had not admitted evidence proposed by the applicant. The third expert report was identical to the first and contradictory to the second, as regards the speed at which the applicant had been driving at the time of the accident. The applicant further requested that the case be remitted and heard either before a different panel of the trial court or before a different court.

On 24 September 2008 the appellate court dismissed the applicant’s appeal, upheld the prosecutor’s appeal, and increased the sentence to six years’ imprisonment. The part of its judgment concerning the alleged lack of impartiality reads as follows:

“The complaints about a violation of section 36(2) of the [Criminal Proceedings Act] are groundless ... [the applicant’s] defence lawyer applied for exclusion of [Judges C.K, G.M., S.D. and T.D.]. According to the statements given by the Judges, the President of the Court of First Instance took a decision ... by which he dismissed the application for exclusion, for reasons stated in the decision.”

The appellate court further held that the second expert report had not been ordered by the court, that the experts had not been warned of their duties and had not taken an oath, that the court had not established which matters should have been addressed by the report, and that it was for the trial court to decide whether it would accept the report. As regards the applicant’s complaint that evidence proposed by him had not been admitted at the trial, the appellate court held that this did not amount to a violation of the applicant’s right to defence, as the trial court was not obliged to accept all proposed evidence.

On 11 November 2008 the applicant lodged a request for extraordinary review of a final judgment (барање за вонредно преиспитување на правосилна пресуда), arguing that the trial court had refused his request for an additional expert report (супервештачење) to be commissioned from an independent institution. Citing Articles 6 and 8 of the Convention, the applicant complained that Judge C.K., the clerk of the victim’s mother (Judge M.A.), had adjudicated the case, and that Judge M.A. was the president of the criminal section of the trial court. He further complained about the refusal to assign the case to another competent court.

On 13 January 2009 the Supreme Court dismissed the applicant’s request and confirmed the lower courts’ judgments. It endorsed the lower courts’ findings and reasoning, without providing further reasoning in respect of the applicant’s complaint concerning the judges’ alleged bias.

On 21 September 2010 and 29 March 2011 the Supreme Court dismissed two requests by the applicant for extraordinary mitigation of his sentence (барање за вонредно ублажување на казната).


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

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

The applicants complained of the domestic courts’ failure to ensure their participation in hearings in the civil proceedings to which they were parties.


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

Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra

The applicant is a taxi driver.

On the night of 25 July 2009 traffic police stopped the applicant’s car. Following the applicant’s failure to produce his driving licence and suspecting that it had been withdrawn, police officers took him to the duty unit of the Ezhvinskiy District police station, where he was kept in a cell for administrative detainees until the following morning. A record of the applicant’s administrative arrest was drawn up.

On 26 July 2009 the Justice of the Peace of the Vezhdinskiy Court Circuit of the Ezhvinskiy District found the applicant guilty of driving a vehicle after the withdrawal of his driving licence (an administrative offence under Article 12.7 § 2 of the Russian Code of Administrative Offences) and sentenced him to fifteen days of administrative detention.

On 31 July 2009 the applicant made a written request to the head of the detention unit seeking a family visit. The next day the request was returned to the applicant bearing a handwritten note by the acting head of the detention unit, Mr S., which stated that family visits were not “provided for [by law]”.

On 14 August 2009 the applicant’s representative lodged a complaint with the Syktyvkar Town Court, alleging that the applicant’s right to family life guaranteed by Article 8 of the Convention had been unlawfully restricted.

The police officials filed a written objection, arguing that the Internal Rules governing Detention Facilities for Administrative Detainees did not provide administrative detainees with the right to have a family visit.

On 15 September 2009 the Syktyvkar City Court dismissed the applicant’s complaint, having accepted the police authorities’ argument that administrative detainees were not entitled to a family visit under the domestic law in force and that the applicant had been subjected to those limitations of his rights as a negative consequence of the administrative detention.

The applicant’s representative appealed. Relying on the Court’s judgments in the cases of Messina v. Italy (no. 2) (no. 25498/94, § 61, ECHR 2000X) and Vlasov v. Russia (no. 78146/01, § 123, 12 June 2008), he argued that the authorities’ assistance in maintaining contact with close family was an essential part of a detainee’s right to respect for family life. Limitations imposed on the number of family visits constituted an interference with the applicant’s rights under Article 8 of the Convention. Restrictions of that kind could only be applied “in accordance with the law”, should pursue one or more legitimate aims and, in addition, should be justified as being “necessary in a democratic society”. The representative submitted that there was no norm in Russian law imposing restrictions on family visits for administrative detainees.

On 22 October 2009 the Supreme Court of the Komi Republic upheld the City Court’s decision, having reasoned as follows:

“There is no prohibition on family visits for administrative detainees.

[At the same time] a refusal to authorise a family visit has a basis in Russian law; however, it should be warranted by circumstances and conditions providing the competent authorities with the right to apply the disputed restriction. Providing lawenforcement bodies with unlimited powers in issues pertaining to fundamental rights could run contrary to the superior role of the law and could result in arbitrary interference with human rights.

In the case under examination, there are no grounds for concluding that the actions of the acting head [of the detention unit of the police station where the applicant had been detained] were unlawful because, having applied for a family visit, [the applicant] had not indicated whom he had wanted to see and what the relationship was between him and that person. If those important details are not provided, the authorisation of a family visit cannot be considered lawful.”


Remainder inadmissible;No violation of Article 7 - No punishment without law (Article 7-1 - Nullum crimen sine lege;Conviction;Criminal offence)

Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant was born in 1956 and lives in the village of Angisa, Ajarian Autonomous Republic (“the AAR”), Georgia.

On 15 February 2006 a criminal investigation was launched by the Ministry of the Interior of the AAR into the activities of a Mr A.K., on account of his alleged association with the criminal underworld, under Article 223(1) of the Criminal Code. Notably, he was suspected of being a “thief in law” (for an exact definition of this term, see paragraphs 1820 below) who ran criminal syndicates and participated in the settlement of various private disputes through criminal actions. In the course of the investigation, a number of relevant witnesses were questioned – the officers of the prisons where Mr A.K. had served his previous prison terms, his family members and other close persons, all of whom confirmed that Mr A.K. had indeed obtained, through the criminal ritual of “baptism”, the title of a “thief in law” in 1999. Since then he had participated in management of the “thieves’ underworld” (a well-organised network of criminal syndicates; for more details see paragraphs 21-22 below), in accordance with the special rules regulating the conduct of members of the criminal underworld.

On 5 March 2006 a search warrant was issued in respect of Mr A.K., who was living at that time in either Ukraine or Russia. According to the findings of that investigation, the fugitive suspect had been in regular telephone contact with other purported criminal leaders in the AAR, instructing them on how to settle various private disputes in the region. The subsequent judicially authorised tapping of Mr A.K.’s telephone conversation showed that one of the persons who had been receiving regular instructions from the “thief in law” was the applicant. Consequently, the criminal probe was expanded to include the latter’s activities.

On 31 July 2006 the applicant and another person, Mr Y.A., were arrested on suspicion of being members of the “thieves’ underworld”, an offence punishable under Article 223(1) § 1 of the Criminal Code. When questioned on the same day, the applicant confirmed that he had already known Mr A.K. for thirty years and was aware that he possessed the criminal title of a “thief in law”. The applicant added that a thief in law was, in his opinion, “a righteous man (კაი კაცობა)”.

On 29 September 2006 the criminal investigation against Mr A.K., the applicant and Mr Y.A., was terminated, and the case was transmitted by the prosecution service to a trial court.

By a judgment of 27 March 2007, the Batumi City Court convicted the applicant and Mr Y.A. of being members of the “thieves’ underworld” (Article 223(1) § 1 of the Criminal Code), sentencing them to seven and five years’ imprisonment respectively, whilst Mr A.K. was convicted of being a “thief in law” (Article 223(1) § 2 of the Criminal Code) and sentenced to ten years in prison.

The activities imputed to the applicant were described by the court, in general terms, as follows:

“Acknowledging and giving recognition to the thieves’ underworld, [the applicant] has publicly expressed his support for it through his own lifestyle, and has been actively involved in achieving the goals of this underworld... by obtaining profits for its members and for other persons, and by terrorising and exercising coercion with respect to ordinary individuals; [the applicant] has disseminated the special rules of the thieves’ underworld through his own actions, and by assisting the thief in law in running this underworld.”

More specifically, the finding of the applicant’s guilt was based on the following three episodes, the reality of which had been confirmed by statements from numerous pertinent witnesses, examined during both the investigation stage and the trial, and evidence obtained by tapping the telephone lines of the applicant, the other convicts and other relevant persons.

Firstly, the City Court established that Mr A.K., generally acknowledged to be one of the most authoritative criminal bosses in the region, had requested the applicant to settle a dispute over an apartment between his mother-in-law and another individual. The court accused the applicant of accepting that task and becoming involved, between 24 June and July 2006, in unofficial adjudication of the dispute, using Mr A.K.’s criminal authority. In reply, the applicant unsuccessfully argued that he had merely wished to help the woman, who was his close acquaintance, to have the dispute settled by friendly agreement, as indeed the parties had been invited to do during a civil court hearing of their case at the relevant time; he had been unaware that such ordinary conduct was a criminal offence. He did not contest that he had indeed been asked by Mr A.K., his old friend, to look into the dispute.

Secondly, the City Court established that the same co-accused “thief in law”, Mr A.K., had requested the applicant, on 24 July 2006, to establish the whereabouts in Batumi of two young men, aged 20-25 years, who had refused to pay a fare to a private taxi driver. The applicant was asked to persuade the young men, using his own authority as a senior member of the criminal world, and the authority of the more influential Mr A.K., to settle the debt towards the driver. Implicitly acknowledging that he had indeed been requested to look into this second private dispute by Mr A.K., the applicant unsuccessfully argued that he had not taken any action in practice and thus could not understand why he should be held responsible for something which had not occurred.

Lastly, the City Court relied on the fact that on 8 July 2006 the applicant, when visiting an imprisoned acquaintance who was considered by members of the “thieves’ underworld” to be a promising young man, that is, a future “thief in law”, the applicant, in addition to discussing financial issues relating to the kitty (obshyak), the common fund belonging to the “thieves’ underworld”, had also informed him that the Minister of the Interior might soon lose his post, which would then naturally lead to reinforcement of the authority of “thieves’ in law” and of the relevant rules of conduct in the criminal world. With respect to this third episode, the applicant unsuccessfully argued before the court that he had merely expressed his opinion about the personality of the Minister of the Interior and that he should not be punished for that.

On 10 July 2007 the Kutaisi Court of Appeal, dismissing the applicant’s appeal in which he reiterated all of his previous arguments, fully upheld his conviction of 27 March 2007.

By a decision of 29 February 2008, the Supreme Court of Georgia rejected the applicant’s cassation appeal as inadmissible, thus terminating the criminal proceedings against him.


Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicants are Russian nationals residing in Moscow. Their names and dates of birth are set out in the appendix.

In the early 1960s the municipal authorities of Moscow authorised the creation of a garage-owners’ cooperative, G., and allocated a plot of land for use by the cooperative. The plot of land remained municipal property.

All of the applicants were members of the cooperative G.

In 2001 the municipal authorities of Moscow adopted a new zoning and urban development plan, under the terms of which the plot of land occupied by the prefabricated metal garages was assigned for housing development.

On 1 December 2005 the lease on the land occupied by the garages expired. The municipal authorities informed the cooperative G. that it would not be renewed.

On 29 March 2006 the Justice of the Peace for the 125th Circuit of the Kuzminki District of Moscow recognised the applicants’ property rights in respect of the prefabricated garages. On 22 June 2006 the judgment was upheld on appeal by the Kuzminskiy District Court of Moscow. On the basis of these judgments the applicants’ property rights were recorded in the real estate register by the Moscow department of the Federal Registration Service.

Subsequently, in 2006, the urban development project was approved by the municipal authorities and T Jsc, a private construction company, was chosen to be the contractor for the project. The applicants were asked to vacate the plot of land and were offered compensation for the prefabricated garages or, as an alternative, the opportunity to invest in the construction of new parking facilities, with the price of the parking spaces being offset by the value of the expropriated prefabricated metal garages. The applicants refused these offers. The municipal authorities instituted civil actions against them.

On 16, 18, and 21 July 2008 the Kuzminskiy District Court of Moscow ordered the vacating of the plot of land, the expropriation of the applicants’ garages, and payment of compensation to the owners by T Jsc. The court awarded each of the applicants between 8,000 and 8,500 euros (EUR) in compensation for the expropriated property, the sums being derived from the expert valuation of 12 March 2008. It rejected an alternative expert valuation provided by the applicants because it had been based on market research rather than on a valuation of the actual properties, and also because of its failure to distinguish between the prefabricated garages and the various extensions built onto them without permission. The District Court reviewed the applicants’ claims regarding their title to the plots of land and concluded that since the expiry of the lease in 2005 the applicants had occupied and used the plots of land without any title or right. It took this fact into account in assessing the value of the expropriated garages, since it was only the cost of the actual prefabricated metal garage units themselves that had to be compensated.

The applicants appealed against the judgments.

On 16 October and 6 November 2008 the Moscow City Court upheld the lower court’s judgments in full, dismissing all of the applicants’ counter-arguments.

In view of the high cost of demolishing the garages and vacating the occupied land, the applicants did not comply with the judgments. On 29 January 2009 the Kuzminskiy District Court of Moscow – ruling on the municipal authorities’ application – altered the manner of enforcement of the aforementioned judgments by ordering the applicants to vacate their garages and allowing the municipal authorities to demolish them and to clear the plot of land.

By August 2009 the judgments had been enforced as regards the parts concerning the demolition of the prefabricated garages and the vacating of the plots of land. In respect of the part concerning payment of compensation for the expropriated garages, the applicants obtained the relevant writs of execution but chose not to initiate enforcement proceedings by submitting them to the Bailiffs’ Service. The main rationale behind this course of action by the applicants was their intention to further challenge the lawfulness of the aforementioned judgments before the courts.

In July 2010 – after several unsuccessful attempts to have the expropriation judgments reconsidered – the applicants submitted the writs of execution to the Taganskiy District Department of the Federal Bailiffs’ Service. By September 2010 all of the payments had been made to the applicants and the enforcement proceedings were completed by the bailiffs.


CASE OF PROMO LEX AND OTHERS v. THE REPUBLIC OF MOLDOVA

Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 13+11 - Right to an effective remedy (Article 13 - Effective remedy) (Article 11 - Freedom of assembly and association;Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

On 29 January 2009 the police arrested a person who was protesting peacefully in front of the Prosecutor General’s Office.

As a reaction to that event, the applicant organisations decided to hold a demonstration in front of the Prosecutor General’s Office, followed by a march to the Ministry of Internal Affairs and a demonstration in front of the latter.

On 2 February 2009 the first and the second applicants lodged a notification with the municipal authorities in which they stated their intention to conduct the above event, which they described as a spontaneous reaction to the events of 29 January 2009. They relied on Section 12(1) of the Assemblies Act (see paragraph 11 below).

On 3 February 2009 the first and the second applicants organised a protest demonstration in front of the Prosecutor General’s Office. From the video submitted by the parties, it appears that approximately twenty individuals took part in the demonstration. The third applicant was among the participants. Several minutes after the beginning of the demonstration the protesters were attacked by six men wearing masks who started to physically assault them and to spray tear gas and paint over them. As a result of the attack the third applicant sustained numerous injuries to his head and limbs and needed medical treatment. The protesters defended themselves and managed to chase away the attackers. They also managed to immobilise two of the attackers. One of the attackers admitted to having been paid 1,000 Moldovan lei (approximately 60 euros (EUR)) by an unknown person for his participation in the attack.

The gathering was observed from the very beginning by four uniformed police officers who were in a patrol car parked close to the place of the event. Also, the event was filmed by approximately six people in plain clothes, who ‒ according to the applicants ‒ were police officers. The Government denied that those filming the event were police officers. When the clash between the protesters and the attackers began, no police officer intervened. The protesters called the police and requested assistance but to no avail. A police patrol appeared only one hour and a half later and took the two immobilised attackers into custody.

The organisers of the demonstration lodged a criminal complaint with the Prosecutor General’s Office and complained inter alia about the failure of the police to intervene promptly. A criminal investigation was initiated and all six attackers identified. Only two of them were eventually given suspended sentences of four years for violation of the freedom of assembly of others and hooliganism. No action was taken in respect of the applicant’s complaint about the inaction of the police.


Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković

The applicant, Mr Ethem Sakin, is a Turkish national, who was born in 1961 and is currently serving a prison sentence in the Bolu TType Closed Prison. He is represented before the Court by Mr C. Yetkiner, a lawyer practising in Istanbul.

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

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

On 4 January 2010 the applicant was taken into pre-trial detention at the Bilecik M-Type Closed Prison (“Bilecik Prison”), pending the criminal proceedings against him on a charge of murder. He was initially placed in a smoking cell (koğuş, a multi-occupancy living unit) reserved for inmates in pre-trial detention only.

On an unspecified date in 2011 the Bilecik Assize Court found the applicant guilty on three counts of murder. The applicant appealed against that judgment. There is no further information in the case file as regards the outcome of the appeal proceedings.

According to the information and documents provided by the Bilecik Prison administration, the applicant changed cells a total of seven times during his detention at Bilecik Prison between 4 January 2010 and 26 December 2012. The changes were all effected at the applicant’s request. It appears that two of those changes were made to accommodate his wish to stay in a non-smoking cell, and the remaining changes were made following conflicts with his cell-mates. It further appears that while some of the cells he stayed in were allocated exclusively to inmates in pre-trial detention, others accommodated both those in pre-trial detention and convicts.

On 20 March 2012 the applicant sent a letter to the General Directorate of Prisons and Detention Centres of the Ministry of Justice, requesting his transfer to another prison. He argued that he was not safe in the Bilecik Prison, where he had many enemies. He also mentioned in the same letter that as a non-smoker he was sharing a cell with smokers, and that there were also convicts in his cell.

By a letter dated 9 May 2012 the General Directorate of Prisons and Detention Centres informed the Bilecek public prosecutor’s office that the applicant’s allegations regarding his safety in prison had been found to be groundless. The applicant could, therefore, continue to serve his sentence in conditions “suitable to his status”.

On 1 and 8 January 2013 the applicant sent letters to the Ministry of Justice and the Human Rights Inquiry Committee of the Grand National Assembly of Turkey (“the Human Rights Inquiry Committee”), respectively, alleging that the warden and some other officers at the Bilecik Prison had applied psychological pressure on him. The applicant also complained in his letters about the problem of accommodating smokers with non-smokers and detainees with convicts in the same cells.

On 11 February 2013 the Human Rights Inquiry Committee informed the applicant that his letter had been communicated to the Bilecik office of the General Directorate of Prisons and Detention Centres.

In the meantime, on 26 December 2012 the applicant had been transferred to the Çanakkale E-Type Closed Prison (“Çanakkale Prison”) on disciplinary grounds. The applicant claimed that at the Çanakkale Prison he had been placed in a cell measuring 4.5 by 4.5 metres, with eleven other inmates. According to the information provided by the Government, however, the cell where the applicant stayed measured 5.7 by 5 metres and accommodated nine other inmates.

On 30 May 2013 the applicant sent a letter to the General Directorate of Prisons and Detention Centres to complain about the cramped living conditions at the Çanakkale Prison.

In its reply dated 18 June 2013, the General Directorate of Prisons and Detention Centres informed the applicant that the Çanakkale Prison had a maximum capacity of 704 prisoners, but that it had accommodated only 647 prisoners at the material time. The General Directorate added that two hundred and seven new penal facilities would be set up in the next five years, following which prisoners would be accommodated in more favourable conditions.

Upon receiving the information provided by the General Directorate of Prisons and Detention Centres, on 27 June 2013 the applicant wrote a letter of reply, claiming that the figures provided did not reflect the real capacity of the prison, but the overinflated capacity that resulted from the use of triple bunk beds.

In the meantime, on 11 and 24 June 2013 the applicant had sent similar complaint letters to the Çanakkale Prison Monitoring Board, which in its response of 9 July 2013 informed the applicant that his complaints would be taken into consideration at their next visit to the prison in question.

It appears that on 30 July 2013 the Çanakkale Prison Monitoring Board visited the Çanakkale Prison and met with the applicant. In its letter dated 3 September 2013, the Monitoring Board informed the applicant that his complaints had been taken into consideration and that they would be communicated to the Ministry of Justice in its quarterly interim report.

In the meantime, on 19 August 2013 the applicant had been transferred to the Kocaeli T-Type Closed Prison (no.1) (“Kocaeli Prison”) following his request to be closer to his family.

On 23 August 2013 the applicant lodged an individual application with the Turkish Constitutional Court (“the Constitutional Court”), by post, to complain about the overcrowding problem at the Çanakkale Prison.

By a letter dated 29 August 2013, the Registry of the Constitutional Court informed the applicant that his application could not be registered because he had failed to comply with the procedural rules on the submission of applications set out in section 47(1) of Law no. 6216 on the Establishment and Rules of Procedure of the Constitutional Court of Turkey and section 63 of the Internal Regulations of the Constitutional Court (Anayasa Mahkemesi İçtüzüğü), which stipulated that individual applications had to be lodged directly with the Constitutional Court in person, or through local courts or representations abroad. Applications submitted by post would not, therefore, be accepted.

On an unspecified date the applicant was transferred to the Bolu TType Closed Prison.

Section 4 of Law no. 4675 on Enforcement Judges lays down the duties of Enforcement Judges as follows:

“1. To examine and resolve complaints concerning the admission of convicts and detainees to penal institutions and detention centres, [their] placement, accommodation, heating and clothing, feeding, hygiene, [their] medical examination and treatment for the protection of their physical and mental health, [their] relations with the outside world, ... and other such activities.

To examine and resolve complaints concerning the execution of the convicts’ sentences, ... [their] transfer, ...

To examine the reports prepared and communicated by the monitoring boards of penal institutions and detention centres on their observations on the penal institutions and detention centres falling under their jurisdiction, and to rule on any complaints.”

Section 5 of Law no. 4675, governing the application procedure to the enforcement judge, provides as follows:

Complaint[s] may be lodged directly with the enforcement judge by way of a petition, or through the intermediary of the office of the public prosecutor or the administration of the penal institution [or] detention centre. Applications lodged other than with the enforcement judge shall be transmitted to the latter at once and within three days at the most. Complaints made orally shall be recorded and a copy [of the record] shall be given to the applicant.

In accordance with section 6(5) and (6), an objection may be lodged against a decision of an enforcement judge with the local assize court.

The Government submitted fourteen examples of decisions delivered by the Constitutional Court concerning individual applications lodged by prisoners from different prisons. The decision delivered by the Constitutional Court in application no. 2013/2025 is particularly noteworthy on account of its pertinence to the present application. The application in question was lodged on 25 September 2012, only two days after the entry into force of the new remedy before the Constitutional Court. The applicant prisoner complained, inter alia, of the unlawful practices of the prison administration, including placing him in accommodation with smokers despite the fact that he suffered from asthma. The Court observes that the prisoner’s complaints regarding the unlawful practices of the prison administration, including placing him in accommodation with smokers, were declared inadmissible by the Constitutional Court for non-exhaustion of the available remedies, on account of the prisoner’s failure to bring his complaints before an enforcement judge.


Violation of Article 6 - Right to a fair trial (Article 6-2 - Charged with a criminal offence)

Aleš Pejchal;André Potocki;Angelika Nußberger;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant was born in 1963 and lives in Xanten.

The applicant’s daughter A. was born on 9 March 1994. Since their separation in September 1994, the applicant and A.’s mother, Ms J., have been quarrelling over the custody of and contacts with A. The child was initially living with her mother. In 2004, A. was placed in a home.

On 9 November 2006 Ms J. laid an information against the applicant with the police, accusing him of having raped their daughter since 1998. As A. had persistently declared not to be ready to make a statement before the police, the proceedings were initially discontinued. Following a visit of A. to her mother, the latter informed the police that A. was now ready to testify. A. was heard by the police twice in May 2007. On 5 November 2007 psychological expert K., having examined A., submitted a report on the credibility of A.’s submissions.

On 18 January 2008 the Münster Public Prosecutor’s Office charged the applicant with fifteen counts of serious sexual abuse of children (Article 176a of the Criminal Code, see paragraph 19 below) and of sexual abuse of a person entrusted to him for upbringing (Article 174 of the Criminal Code, see paragraph 20 below), his daughter A., committed between the beginning of 2002 and summer 2004 mostly in or in the vicinity of Senden. The applicant was accused of having raped A. in his car on thirteen occasions and in a holiday apartment on two occasions when he met her on weekends and during vacations following her parents’ separation.

The applicant was in detention on remand between 14 February 2008 and 26 February 2008, when the execution of the detention order was suspended.

On 17 September 2008 the Münster Regional Court, having held five hearings, acquitted the applicant of the charges on account of insufficiency of proof. It further ordered the Treasury to bear the costs of the proceedings and the applicant’s necessary expenses and to pay the applicant compensation for his detention on remand from 14 to 26 February 2008.

The Regional Court, having regard to the testimonies of several witnesses and the (diverging) reports of two psychological experts, K. and B., on the credibility of A.’s submissions, found that the offences the applicant had been charged with had not been proven with the certainty necessary for a criminal conviction. It noted that the applicant had contested the charges. He was only incriminated by A.’s statements. The Regional Court stated that it has not been convinced by A.’s testimony in the hearing that the charges were completely correct, in particular, in terms of a clear definition of the criminal acts and their time frame.

The Regional Court, having regard to the witness statements of two educators who had noted signs of sexual abuse in A.’s conduct, two psychologists who had treated A. and a friend of A., was not persuaded that A. had been influenced by third persons, including her mother, so as to incriminate her father.

The Regional Court then stated in its judgment:

“... To sum up, the Chamber does not discern any signs of suggestive influence.

Therefore, the Chamber assumes, in sum, that the core events described by the witness have a factual basis, that is, that the accused actually carried out sexual assaults on his daughter in his car. Nevertheless, the acts could not be substantiated, in terms of either their intensity or their time frame, in a manner that would suffice to secure a conviction. The inconsistencies in the witness’s testimony were so marked that it was impossible to establish precise facts.”

[“... Zusammengefasst sind Anhaltspunkte einer Suggestion für die Kammer nicht ersichtlich.

So geht die Kammer im Ergebnis davon aus, dass das von der Zeugin geschilderte Kerngeschehen einen realen Hintergrund hat, nämlich dass es tatsächlich zu sexuellen Übergriffen des Angeklagten zu Lasten seiner Tochter in seinem Auto gekommen ist. Die Taten ließen sich aber dennoch weder ihrer Intensität noch ihrer zeitlichen Einordnung nach in einer für eine Verurteilung hinreichenden Art und Weise konkretisieren. Die Inkonstanzen in den Aussagen der Zeugin waren so gravierend, dass konkrete Feststellungen nicht getroffen werden konnten.“]

In coming to that conclusion, the Regional Court took into account that witness A. had made the impression of being authentic. It was true that her statements had been short and she had appeared being relatively uninvolved. However, seven witnesses who knew A. partly for a longer period of time had confirmed that she generally spoke and acted in that manner and did not discuss problems in detail.

The Regional Court observed, however, that even having regard to these elements, the inconsistencies in witness A.’s statements prevailed to an extent that it was not in a position to establish concrete offences. There were inconsistencies in the witness’s statements on the number of the acts described by her (between 25 and 50), the place of these acts (notably concerning acts in a holiday apartment which the witness mentioned only at a later stage) and the time frame in which they took place (starting when the witness was between four and eight and ending either on the witness’s placement in the home or continuing also after that placement). Moreover, A. had been uncertain in the hearing about the exact manner in which the acts described by her were committed in the car and did not recall any details on several points. A. had, for instance, been very uncertain in the hearing whether the applicant had moved within the car onto the front passenger seat where she had sat or whether he had left the car and walked around it to come on her seat. Moreover, A. had declared several times in the hearing not to have any precise recollection of the events any more.

The judgment was served on the applicant’s counsel on 11 November 2008 and subsequently became final.

On 9 December 2008 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He claimed that the Regional Court’s statements “that the core events described by the witness have a factual basis, that is, that the accused actually carried out sexual assaults on his daughter in his car” had breached his constitutional right to a fair trial, his personality rights and human dignity.

On 10 March 2009 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 2499/08). The decision was served on the applicant’s counsel on 19 March 2009.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

Aleš Pejchal;André Potocki;Angelika Nußberger;Mark Villiger;Myroslava Antonovych;Vincent A. De Gaetano

The applicant was born in 1979 and lives in Kharkiv.

In August 2003 F., a cashier in a game-machines arcade, was found at his workplace unconscious with head injuries. He died in hospital shortly afterwards.

On 8 June 2004 the applicant was arrested by the Leninskiy District police of Kharkiv (“the district police”) and confessed to having inflicted injuries on F. and robbed the arcade. According to the applicant, that confession was false and had been given by him as a result of ill-treatment. In particular, police officers had applied electric current to his body, suffocated him in a gas mask and applied various other unspecified torture techniques.

At an unspecified time on the date of the applicant’s arrest he was assigned a legal-aid lawyer, S.

Also on the same date the applicant had a confrontation with two witnesses, who claimed that they had seen him running near the arcade, with his bare chest covered in mud and blood, on the day when F. had been found injured.

On 9 June 2004 the applicant participated in a reconstruction of the crime scene and confirmed his confessional statements in presence of S.

On 10 June 2004 the applicant was indicted on charges of causing fatal injuries to F. and robbing the arcade. During questioning on that date he confirmed his previous statements. On the same date the Leninskiy District Court of Kharkiv (“the District Court”) remanded the applicant in custody, having found that there was a substantial risk that he might abscond or commit other crimes, as the charges against him were serious and he had no steady employment.

On 11 June 2004 the applicant was placed in the Kharkiv pre-trial detention facility (“the Kharkiv SIZO”), examined by the SIZO medical staff and certified as having no bodily injuries.

In July 2004 the Kharkiv Psychiatric Hospital, having conducted an in-patient psychiatric assessment of the applicant, issued an opinion that he was suffering from a mixed personality disorder, which did not prevent him from understanding the meaning of his actions or controlling them.

In July 2004 B., a privately hired lawyer, was admitted in the proceedings as a replacement for the legal-aid lawyer, S.

On 31 July 2004 the applicant, questioned in B.’s presence, retracted his previous confessions, claiming that they had been given under duress from the police, and pleaded innocent. Copies of his relevant statements and ill-treatment complaints have not been submitted to the Court.

On 4 August 2004 in a confrontation with the applicant, police officer B. denied having ill-treated him. On the same date the Leninskiy District Prosecutor’s Office (“the District Prosecutor’s Office”) refused to set up a criminal inquiry into the applicant’s allegations of ill-treatment for want of objective evidence. There is nothing to show that the applicant appealed against that decision.

On 18 August 2004 the applicant was committed to stand trial before the District Court.

On 13 September 2004 the District Court extended the applicant’s detention, having found no reasons to release him.

On 14 December 2004 the applicant complained in court that he had been ill-treated by the authorities with a view to extract self-incriminating statements and requested to be released against an obligation not to abscond. On the same date the District Court ordered the applicant’s release against an undertaking not to abscond. It noted that, notwithstanding the gravity of the charges against the applicant, there was no evidence that he might abscond or commit other crimes if at liberty.

On 16 March 2005 the District Court remitted the applicant’s case for further investigation, having found that the applicant should have been charged with murder, rather than with injuring F. The court also ordered that the applicant’s ill-treatment allegations be verified. By the same decision, the court remanded the applicant in custody again. The relevant part of the decision read as follows:

“The court also considers that the preventive measure in respect of [the applicant] should be replaced by a custodial one, since, if he remains at liberty, he may hide from the investigative authorities, which would interfere with the establishment of the true facts of the case”.

The applicant, represented by B., appealed, seeking, in particular, to be released from custody.

The prosecution also appealed, arguing, in particular, that the case had been ready for trial and that the legal classification of the applicant’s crime could have been decided in the course of the trial proceedings.

On 7 July 2005 the Kharkiv Regional Court of Appeal (“the Regional Court”) allowed the prosecution’s appeal and remitted the case for trial. It also rejected the applicant’s request for release from custody, noting that the District Court had properly assessed the facts and adduced sufficient reasons for remanding him in custody.

In August 2005 the District Court ordered the prosecutor’s office to inquire into the applicant’s ill-treatment complaints.

On 2 September 2005 the District Court adjourned the proceedings to enable the prosecutor’s office to carry out its inquiry into the applicant’s ill-treatment allegations.

On 12 September 2005 the applicant underwent a forensic medical examination, which found, in particular, that he had an old scar and an area with a modified skin on his body. However, it was not possible to establish whether he had sustained any injuries in June 2004. On the same date the district prosecutor’s office refused to institute criminal proceedings against the police officers implicated by the applicant in his ill-treatment, for want of evidence of such ill-treatment.

On 14 September and 3 November 2005 the applicant requested that he be released against an undertaking not to abscond. His requests were rejected by the District Court with reference to the gravity of the charges and the absence of grounds for release.

On 19 December 2005 the District Court remitted the criminal case against the applicant for further investigation, having found that insufficient evidence had been collected for his conviction and that procedures had been breached in collecting the evidence. The court also ordered a further inquiry into the applicant’s ill-treatment allegations. In the same decision the District Court refused the applicant’s request for release from custody, stating that the custodial preventive measure had been “properly applied”.

On 18 January 2006 the Kharkiv Regional Prosecutor’s Office revoked the decision of 12 September 2005 not to institute criminal proceedings in respect of the applicant’s allegations of ill-treatment and ordered further inquiries.

On 4 February 2006 the district prosecutor’s office again refused to institute criminal proceedings in respect of the applicant’s ill-treatment complaints. They noted, in particular, that according to the applicant’s submissions, on 8 June 2004 two police officers, B. and M., had arrested him and taken him to a wooded area, where they had beaten and threatened him, demanding self-incriminating statements. Upon his arrival at the police station, they took him to the basement and continued beating him. They also made him smoke a cigarette while wearing a gas mask and applied electric current to his naked body. The district prosecutor’s office further noted that the applicant’s version of events was full of inconsistencies and wholly improbable. For instance, contrary to his allegations, it was physically impossible to smoke a cigarette in a gas mask without burning one’s face, which had not happened. In addition, the police officers could not possibly have tortured him in the basement, since the building at issue had no basement. They further noted that the applicant’s inconsistent conduct after arrest and his further submissions concerning ill-treatment might have been affected by his psychiatric diagnosis.

According to the applicant, he complained about that decision on various dates to different authorities, including the General Prosecutor’s Office, but to no avail. He did not submit copies of his relevant complaints to the Court.

On 1 March 2006 the applicant’s case was remitted to the District Court for trial.

On 14 April and 14 June 2006 the applicant requested that he be released against an undertaking not to abscond. On the same dates, the District Court refused his requests, finding no reasons for releasing him.

On 18 August 2006 the District Court acquitted the applicant of the charges and released him from custody. It noted, in particular, that the reconstruction of the crime scene of 9 June 2004 had been carried out in breach of various procedural requirements, which the applicant’s legal-aid lawyer S. had never complained about. In those circumstances, there were grounds to doubt that the applicant had been adequately represented at the beginning of the investigation and the court could therefore not conclude that his initial confessions had been genuine. The court held that in those circumstances, any doubts as to the applicant’s guilt should be interpreted in his favour and he should be acquitted.

On 30 October 2007 the Regional Court quashed the above judgment and ordered a further investigation of the charges against the applicant.

On 15 January 2008 the applicant was placed in hospital with acute sinusitis. On the same date the investigation was suspended.

On 31 January 2008 the applicant was discharged from hospital.

On 27 July 2012 the decision to suspend the proceedings was set aside and the investigation was resumed.

As of the last correspondence by the parties dated June 2013, the proceedings were pending.

On 7 May 2004 D.’s body was found in a river. She appeared to have been strangled. On the same date the Chuguiv police instituted criminal proceedings into the circumstances of her death.

In August 2004 the Chuguiv Prosecutor’s Office identified the applicant as an acquaintance of D.’s and a potential suspect. They notified the administration of the Kharkiv SIZO, where the applicant was being detained at the material time.

At about 11.50 p.m. on 25 August 2004 the applicant’s cellmates in the SIZO called the authorities, alleging that he had engaged in self-injury. On the same date the applicant was examined by a SIZO medical professional, who recorded that he had cut his left arm several times. According to the applicant’s explanations addressed to the SIZO governor following the accident, he had cut himself with a razor blade intended for shaving because of his sudden anguish on learning that his wife had filed for divorce and that he was potentially facing a long-term prison sentence. The applicant’s cellmates gave similar explanations.

Following the incident, the SIZO governor sent the applicant’s medical records to the Kharkiv forensic experts facility, asking it to assess the gravity of the applicant’s injuries. He informed the experts that according to his information, the applicant had inflicted the injuries on himself at about 11.50 p.m. on 25 August 2004.

On 1 and 15 September 2004 the forensic experts informed the SIZO governor, after examining the records, that the injuries at issue could be classified as minor and that they could have been inflicted at the time and in the manner described in the governor’s letter.

On 2 September 2004 representatives of the Chuguiv police visited the applicant in the SIZO and took his fingerprints and samples of his blood and saliva in connection with the investigation of D.’s death.

On 3 and 20 September 2004 the SIZO governor concluded that there was no need to conduct further investigations into the applicant’s injuries of 25 August 2004. Referring, primarily, to the experts’ findings, the applicant’s own explanations and those of his cellmates and the SIZO staff questioned, he found that there was sufficient evidence that the applicant had spontaneously inflicted those injuries on himself when suffering an anxiety attack.

On 21 September 2004 the SIZO authorities took a statement from the applicant, in which he confessed to having killed D.

On 9 October 2004 the applicant was indicted on charges of killing D. and pleaded guilty during questioning by the Chuguiv police investigator.

On the same date the Chuguiv prosecutor dropped the charges against the applicant, having found that his statements were inconsistent with the objective evidence on the file.

On 11 November 2004 the criminal proceedings against the applicant were discontinued for lack of evidence of his involvement in D.’s murder. Subsequently the Regional Court convicted two other individuals of the crime at issue.

On 14 December 2004, during a court hearing in the first set of criminal proceedings against the applicant, he complained that he had been subjected to unlawful pressure and ill-treatment in the SIZO. He claimed, in particular, that in August and September 2004 he had been questioned off the record by the SIZO authorities and various other officers, who had coerced him to give self-incriminating statements concerning D.’s murder. In addition, the authorities had engaged his cellmates in threatening and harassing him with a view to obtaining such confessions. The applicant also said that, although the charges concerning D.’s murder had been dropped, he was afraid of similar pressure in connection with the criminal proceedings in F.’s case.

On various occasions between 2004 and 2006 the applicant complained to the prosecutor’s office and other authorities that he had been ill-treated in the SIZO with a view to making him confess to D.’s murder. No copies of the relevant complaints have been submitted to the Court. It appears from the summaries of the applicant’s complaints drafted by the prosecutor’s office that he maintained that he had been psychologically pressured on numerous unspecified occasions in August and September 2004. On 25 August 2004, in particular, warden K. and detainee L. had beaten him in K.’s office. When the applicant returned to his cell, detainees L. and P. continued to beat him, while other cellmates held him down. According to some of the summaries, the applicant maintained that his arm had been cut by his inmates, while according to others he had cut it himself in the hopes that the wardens would be called and he could get out of the cell.

On 27 April 2006 the prosecutor’s office refused to institute criminal proceedings in respect of the applicant’s ill-treatment allegations, having found that the SIZO governor’s conclusions of 20 September 2004 had been well-founded.

On 23 August 2006 the deputy regional prosecutor revoked the decisions of 20 September 2004 and 27 April 2006 and ordered a further inquiry into the circumstances in which the applicant had sustained his injuries and had falsely confessed to D.’s murder.

On 25 September 2006 the prosecutor’s office took a fresh decision not to institute criminal proceedings, having found that there was no ill-treatment case to answer. They referred, primarily, to the explanations provided by the applicant’s inmates in 2004 and to the questioning of the SIZO wardens. They noted, in particular, that according to M., the deputy SIZO governor, on 20 August 2004 the SIZO had received information from the Chuguiv police concerning the applicant’s possible involvement in D.’s murder. Following this information, the SIZO officers had questioned the applicant about the matter and he had volunteered his confession without any pressure having been applied to him.

The parties did not inform the Court whether that decision was further appealed against.