CASE OF BÁTĚK AND OTHERS v. THE CZECH REPUBLIC

No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses)

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo

The applicants were born in 1969, 1968 and 1972 respectively and live in Lanžhot (Messrs. Bátěk and Elsner) and Břeclav (Mr Blažej).

From September 2003 to January 2004 the applicants were employed by the Lanžhot Customs Office on the border with the Slovak Republic. On 1 December 2003, pursuant to Article 158e of the Code of Criminal Procedure (“the CCP”) an undercover police agent infiltrated the team of customs officers. As a result of her observations over the following two months, the customs officers were suspected of corruption, namely taking bribes from truck drivers in exchange for granting priority or trouble-free customs clearance. The undercover agent left the Customs Office on 6 February 2004.

During March and April 2004 testimony was taken in the presence of a judge from twenty truck drivers from different countries in accordance with the provisions of Article 158a of the CCP, that is to say this step was taken as an urgent or non-repeatable measure (neodkladný nebo neopakovatelný úkon). The records show that the drivers’ testimonies were similar. According to the applicants, interviews with four of the drivers were of decisive significance. Three of them were of Romanian nationality and one of them was a Bulgarian citizen. The applicants, being not yet charged, were not present at these interviews.

Witness I.P.D. testified that it was common practice for the customs officers to ask drivers for documents and to check whether there was some money enclosed. If not, the drivers had to wait for hours to be cleared. He admitted that he had paid bribes on two or three occasions but he could not remember individual customs officers.

Witness C.D. testified that he had always had to pay 5 euros (EUR) in order to avoid inconvenience during customs clearance. He described one customs officer as a corpulent person with thinning brown hair. He did not remember any other officer.

Witness S.B. testified that he had paid 5 EUR on each of the ten trips he had made to pass the customs control. He was not able to describe any of the customs officers.

Witness A.A.U. confirmed the existence of corrupt practices at the customs office in question but could not specify any particular person.

On 22 April 2004 the applicants were charged, together with fifteen other individuals, with abuse of the authority of public official and accepting bribes. In February 2005 they were officially indicted.

On 14 December 2005 the Břeclav District Court (okresní soud) heard the police agent as an anonymous witness (utajený svědek) under the provisions of Article 55 § 2 and Article 209 of the CCP. She gave her testimony outside the courtroom using an audio streaming device. She did not recount any specific case of the acceptance of a bribe, stating only that her reports and the information therein were fully reliable. The third applicant was present at the hearing. He was represented by a defence counsel. The other two applicants were absent and were represented by a substitute defence counsel. Only the third applicant put a question to the anonymous witness.

In the course of the trial, the applicants argued that the agent would have been unable to see any other customs officers from her work-station, that none of the alleged acts had been filmed by the cameras installed at their workplace, and that the officers’ numbered rubber stamps could have been used by other people.

On 25 May 2006 the District Court found the applicants and other accused persons guilty as charged. They were sentenced to one year’s imprisonment suspended for two years’ probation and were fined. The court established the factual background to the body of evidence. The agent’s written report constituted directly incriminating evidence. The court further relied on customs documents stamped using the personal rubber stamps of specific customs officers, comparing these with the testimony of the truck drivers, the records of service rotations and the database linking the applicants to the times at which the interviewed truck drivers obtained their customs clearance. The District Court stated:

“As regards the defendant Roman Bátěk, he is incriminated by the relevant documentary evidence referring to counts 2 and 3 of the indictment and counts 4 and 5 of the indictment, from which it is apparent that he used a rubber stamp with the number 005 and that his personal number was 20627, these numbers appearing on the relevant documents. When it comes to counts 2 and 3 of the indictment, he is also incriminated by the witness statements of the Bulgarian driver [D.] and the Romanian driver [C.D.] who, according to their records, passed the border crossing point at the time in question, and their papers and travel documents bear the respective numbers of the defendant Bátěk. The above fully corresponds to the report from the defendant’s employer regarding the placement of the defendant, i.e. where ‒ that is to say at which work-station ‒ he was positioned at the time concerned. As to counts 4 and 5 of the indictment, the defendant Bátěk is also incriminated by a police officer of the Czech Republic who saw the defendant accepting a bribe and recorded this fact in the corresponding document, produced in evidence, which also corresponds with the testimony of the undercover agent given before the court.

As regards the defendant Radek Blažej, he is incriminated by the documentary evidence produced as regards counts 6 and 7 of the indictment, specifically the control sheets showing his personal number 16898 and rubber stamp number 090. He is also incriminated by the testimony of the Romanian driver [C.D.] and by a report from his former employer stating the defendant’s whereabouts at the time concerned. As to count 7 of the indictment, the defendant Radek Blažej is also incriminated by the undercover police agent of the Czech Republic who saw the defendant accepting a bribe.

As regards the defendant Karel Elsner, he is incriminated on counts 8, 9 and 10 of the indictment by the documentary evidence produced, especially by control sheets which were stamped with his personal number and also by other use made of his personal number, as is apparent in the corresponding computer records. He is also incriminated by the witness statement of [S.D.], who submitted details of his border crossing to the authorities and notes of bribes given at a specific time and place. As to count 9 of the indictment in relation to the defendant Karel Elsner, the witness stated that on 10 November 2003 he gave a bribe at a particular time and ‒ by checking the driver and the documentation relating to his border crossing ‒ it was established who had cleared him and who had stamped his documents, from which it is clearly apparent that it was the defendant Elsner who carried out the administrative measures concerned and hence received the bribe. As to count 10 of the indictment, Karel Elsner is also mentioned in the anonymous agent’s report.”

The District Court explained that the truck drivers’ statements were read out at the hearing pursuant to Article 211 § 2 b) of the CCP. The drivers had been interviewed in the presence of a judge during the pre-trial stage of the proceedings, because it had been deemed necessary to take the step of obtaining their testimonies as an urgent or non-repeatable measure since they were foreign nationals and it would have been almost impossible for the court to reach them at a later stage. The undercover police agent was heard as an anonymous witness pursuant to Article 209 of the CCP because of her potential future activities.

The applicants appealed against the judgment. They firstly argued that the truck drivers could have been questioned under the corresponding international treaties ‒ namely the European Convention on Mutual Assistance in Criminal Matters and bilateral treaties on mutual judicial assistance with Romania (treaty of 25 October 1958) and Bulgaria (treaty of 25 November 1976) ‒ and that they could have been granted immunity in exchange for testifying. They also contested the legal grounds and the necessity for the non-disclosure of the identity of the undercover police agent. According to them, she did not risk bodily harm or any other danger of interference with her fundamental rights as required by Article 55 § 2 of the CCP. The argument about her future activities was not sufficient justification. Moreover, the delays between the questions asked at trial and her replies implied that she had had with her some notes or someone whom she had consulted about her answers before replying.

On 22 March 2007 the Brno Regional Court (krajský soud) rejected the applicants’ appeal as unsubstantiated, arguing as follows:

“(...) the hearing of an undercover police agent as a witness is in practice exceptional, occurring only in the particular circumstances of a specific case and in the interests of proper clarification and vindication of particularly serious criminal actions and the conviction of the perpetrators thereof. In such circumstances, and when such an agent is heard as a witness, Article 55 § 2, Article 183a § 4, and Article 209 of the CCP would be applicable. In the instant case, the provisions of the CCP regulating the agent’s testimony were not violated and the allegations of some of the defendants that the agent had been heard as an anonymous witness in order to allow her to consult her notes or another person are unsubstantiated. The first-instance court had no doubts about the agent’s reliability as a witness. She reliably described how she had obtained the information about the criminal activity of the accused and how she had evaluated, recorded and processed it (...)

Under Article 160 § 4 of the CCP, a non-repeatable measure is a measure which cannot be repeated before the trial court. Questioning a witness who is a foreign national or stateless person without a permanent residence permit in the Czech Republic can be considered to be this kind of measure. None of the witnesses had a link to the Czech Republic of the kind which could have justified the conclusion that they would remain in the country or appear if summoned. The witnesses merely pass through the territory in the course of their work as truck drivers. The interviews with these witnesses were conducted in accordance with the provisions of the Code of Criminal Procedure. The allegations of the defendants that the witnesses did not even know the content of the records they had signed, and that they had been forced to testify and promised immunity if they stated particular facts, are not substantiated by the case file, and no other facts corroborating these allegations have been ascertained. It is apparent from the file that the truck drivers were questioned in the presence of an interpreter and in the presence of judges of the Břeclav District Court (...). Under Article 158a of the CCP, a judge who performs the urgent or nonrepeatable measure of examining a witness or in an identity parade also bears responsibility for the legality thereof."

The applicants filed a constitutional appeal alleging a violation of Article 6 §§ 1 and 3 d) of the Convention and complaining about the depositions of the truck drivers and the anonymous witness.

On 2 April 2009 the Constitutional Court (Ústavní soud) dismissed the constitutional appeal as manifestly ill-founded. It stated that the complaints raised at the previous instances had been properly addressed and that the courts had provided sufficient justification to show that the evidence had been obtained in accordance with the provisions of the CCP.


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

The applicant, Mr Aleksandr Mikhaylovich Gorbatenko, is a Russian national, who was born in 1973 and lives in the town of Omsk.

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

On 31 May 2005 the applicant was arrested on suspicion of inflicting bodily harm resulting in death. He was taken to the premises of the Omsk Town Department of the Interior in the Tsentralniy district of Omsk. He was subsequently placed in its custody room. On 3 June 2005 he was transferred to temporary detention facility IZ-1 located in the town of Omsk. According to the applicant, one of the cells he occupied was in an appalling condition.

On 10 June 2005 the applicant was transported to correctional colony IK-7 located in the same town. A prison doctor examined him on admission and made the following entry in his medical record:

“[The applicant] has no complaints. The medical examination indicates no pathology of bodily organs and systems. No traces of injuries found on [the applicant’s] body. He states that he does not have any venereal diseases or HIV”.

According to the applicant, on 10 June 2005, following his admission, he was ill-treated. Prison guards allegedly insulted and kicked him in his kidneys, put a gas mask with a closed air valve on his face and beat him on the ribs with a mallet.

The applicant stated that the next day he was forced to learn by heart the list of duties detainees must undertake while in prison. On that day, he was also handcuffed to a radiator and beaten with a mallet. According to the applicant, he was ill-treated by prison guards every day between 10 and 15 June 2005.

On 16 June 2005 a doctor from the correctional colony examined the applicant on his discharge. The relevant medical entry reads as follows:

“[The applicant] has no complaints. His skin shows no pathological condition. No pathological conditions of the bodily organs or system. No bodily injuries”

On an unspecified date the applicant complained to the Prosecutor’s Office of the Sovetskiy District of Omsk (“the prosecutor’s office”) that he had been subjected to ill-treatment between 10 and 15 June 2005.

On 29 December 2005 the prosecutor’s office dismissed his complaint as unsubstantiated.

On 11 January 2006 the Prosecutor’s Office of the Omsk Region (“the regional prosecutor’s office”) quashed the decision of 29 December 2005 as unfounded and ordered the prosecutor’s office to perform an additional investigation into the applicant’s allegations.

On 20 October 2006 the prosecutor’s office again refused to institute criminal proceedings. The regional prosecutor’s office informed the applicant about this decision by letter of 23 October 2006 and advised the applicant of his right to appeal against it in court. The applicant did not bring any court proceedings in this connection.

In 2010 the applicant brought a claim against the correctional colony IK7 and the Federal Service of Execution of Sentences seeking damages for the alleged ill-treatment he had suffered at the hands of prison guards between 10 and 15 June 2005.

On 22 February 2011 the Sovetskiy District Court dismissed the applicant’s claim as unsubstantiated.

On 23 March 2011 he appealed against that judgment.

On 25 March 2011 the Sovetskiy District Court rejected the applicant’s appeal for failure to comply with the statutory time-limit for lodging such claims, noting that the applicant had not applied for an extension of the deadline for appeal.

On 27 April 2011 the Omsk Regional Court upheld that decision.

On 31 May 2005, on the day of his arrest, the applicant was given access to defense counsel, Ms Z. The applicant allegedly considered her assistance ineffective and signed a waiver of his right to a lawyer, but did not ask the investigator to provide him with another defense counsel. The identification parade and a seizure of his personal effects, which took place on that day, were nevertheless carried out in the presence of Ms Z. During the identification parade the applicant was identified as a perpetrator of the crime by witnesses Bor., Bar. and Ya. The applicant did not take part in interrogations or cross-examinations on that day and did not give any evidence himself.

On 15 November 2005 the applicant was convicted as charged by the Pervomayskiy District Court of Omsk and sentenced to eight years and six months of imprisonment. It held that on 11 May 2005 the applicant, who had been drunk at the time, had beaten up a stranger on the street. The next day the victim of the applicant’s attack had died in hospital.

The applicant’s conviction was based on testimonies of eyewitnesses Bor., Bar. and Ya. who had seen him hitting and kicking the victim during the incident. Their trial statements were consistent with their oral evidence given during the pre-trial stage of proceedings. The court also referred to expert reports, which attributed the victim’s death to the injuries sustained during the beatings. The forensic examination established that the blood stains on the applicant’s clothes belonged to the victim of his attack. The applicant’s guilt was also confirmed by, among other things, the identification parade record of 31 May 2005. Throughout the trial the applicant was represented by defense counsel G.

The applicant challenged his conviction on appeal. He complained about the outcome of his case, in particular the findings of fact and law, the admission of allegedly inadmissible evidence, and the lack of effective legal assistance during the identification parade on 31 May 2005. The applicant did not raise an issue of an alleged ill-treatment between 10 and 15 June 2005 during the trial or on appeal.

On 2 March 2006 the Omsk Regional Court upheld the applicant’s conviction on appeal. It affirmed the findings of the lower court. It held that the identification parade had been performed in accordance with the applicable domestic rules. The court also noted that on 31 May 2005 the applicant’s defense rights had been properly secured by Ms Z.

Between 17 June 2005 and 6 February 2006 the applicant was frequently transferred between various detention facilities, including correctional colony IK-3 and temporary detention facility IZ-1. According to the applicant, the conditions of his detention and transportation were consistently appalling owing to overcrowding, dirt, insects, rats, poor heating and insufficient ventilation.

Article 21 provides that no one may be subjected to torture, violence or any other cruel or degrading treatment or punishment.

Article 48 provides that everyone has a right to qualified legal assistance. It also provides that an arrested or detained person or a person accused of a criminal offence should have a right to legal representation from the moment of his or her arrest, placement into custody or when charges are brought.

Article 116 § 1 of the Criminal Code of the Russian Federation of 13 June 1996 provides that the application to another person of physical force which has caused physical pain but has not resulted in any health damage is punishable by a fine, compulsory or correctional labour or arrest for a period of up to three months.

Article 286 § 3 (a) provides that actions of a public official which clearly exceed his authority and entail a substantial violation of the rights and lawful interests of citizens, committed with violence or the threat of violence, are punishable by three to ten years’ imprisonment, with a prohibition on occupying certain posts or engaging in certain activities for a period of three years.

Article 144 of the Code of Criminal Procedure of the Russian Federation provides that prosecutors, investigators and inquiry bodies must investigate every report of a crime committed or being planned, and take a decision on that information within three days. In exceptional cases, that time-limit can be extended to ten days. The decision should be one of the following: (a) to institute criminal proceedings; (b) to refuse to institute criminal proceedings; or (c) to transmit the information to another competent authority (Article 145).

Article 125 provides that the decision of an investigator or a prosecutor to dispense with or terminate criminal proceedings, and other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice, may be appealed against to a District Court, which is empowered to check the lawfulness and grounds of the impugned decisions.

Article 213 provides that, in order to terminate the proceedings, the investigator should adopt a reasoned decision with a statement of the substance of the case and the reasons for its termination. A copy of the decision to terminate the proceedings should be forwarded by the investigator to the prosecutor’s office. The investigator should also notify the victim and the claimant in writing of the termination of the proceedings.

Under Article 221, the prosecutor’s office is responsible for general supervision of the investigation. In particular, the prosecutor’s office may order that specific investigative measures be carried out, transfer the case from one investigator to another, or reverse unlawful and unsubstantiated decisions taken by investigators and inquiry bodies.

Article 51 of the Code provides for mandatory legal representation if the accused faces serious charges carrying a term of imprisonment exceeding fifteen years, life imprisonment or the death penalty. Unless counsel is retained by the accused, it is the responsibility of the investigator, prosecutor or the court to appoint legal-aid counsel.

Article 52 provides that an accused can waive his right to legal assistance, but such a waiver must be established in writing. The waiver may be revoked at any point in the proceedings.


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska

The applicant was born in 1970 and lives in Ukhta, the Komi Republic.

In April 2005 a jewellery shop and other premises in a commercial centre in the Sosnogorsk district of the Komi Republic were robbed; in the course of those events, a woman guard was attacked and suffered injuries. Investigator A., from the investigation unit of the Sosnogorsk police department, opened a criminal case into the robbery. On 15 June 2005 the criminal proceedings were suspended for failure to establish the identity of a person to be charged.

On 25 August 2005 a certain R. reported to the police that her boyfriend B. had committed the robbery together with Zh. and the applicant. On the same day investigator A. reopened the criminal proceedings.

On 26 August 2005 the police arrested B., Zh. and the applicant. Investigator A. was present at the time of the arrest. The three men were taken to the Sosnogorsk police department of the Komi Republic (отдел внутренних дел г. Сосногорска Республики Коми).

Police officers, in particular Z., the head of the criminal police division of the Sosnogorsk police department, interviewed the applicant about his involvement in the robbery. According to the applicant, they demanded that he confess to the robbery and G., an operative officer in the criminal investigation unit of the police department, punched and kicked him on different parts of his body. Fearing new violence, the applicant confessed to having participated in the crime as requested, and signed a record of his “surrender and confession” (явка с повинной) that had been drawn up by operative officer G. at Z.’s request.

According to that record, on 26 August 2005 in office no. 12 of the Sosnogorsk police department police officer G. obtained from the applicant his confession to the crime, in accordance with Article 142 of the Code of Criminal Procedure of the Russian Federation (“CCrP”). In particular, the record stated that the applicant had assisted B. and Zh. by loading the property stolen from the shops into his car and transporting it; that he had confessed without any physical or psychological pressure being exerted on him; and that he had been informed of Article 51 of the Constitution. The record did not indicate the exact time when the confession was obtained and did not explain the meaning of Article 51 of the Constitution (concerning self-incrimination, see paragraphs 28, 47 and 49 below).

At Z.’s request, the applicant wrote in the police station visitors’ registration log that he had struck his own head against a wall, and that he had no complaints against the police officers.

At 2.57 p.m. on the same day investigator A. drew up a record of the applicant’s arrest as a suspect in the case.

On the same day the applicant was placed in a temporary detention facility (IVS) at the Ukhta police department. According to the IVS records, on arrival he had bruises under his eyes, his lips were burst, his lower jaw was swollen on the left side, and he had bruises on his back and abrasions on his knees.

On 27 August 2005 the applicant was questioned as a suspect in the presence of a lawyer. He retracted the confession statement that he had given on the previous day, and explained that he had made the statement as a result of illtreatment by the police officers.

On 30 August 2005 a judge of the Sosnogorsk Town Court ordered that the applicant be detained on remand. In reply to the judge’s question about the origin of his facial injuries, the applicant stated that he had been beaten up by operative officers from the police department. On the same day the applicant’s legal-aid counsel, who was representing the applicant at the court hearing, lodged an application with the Sosnogorsk prosecutor in which he requested that an inquiry be conducted into the applicant’s complaint and that those responsible for his illtreatment be prosecuted.

On 31 August 2005 the applicant was placed in pretrial detention facility SIZO 11/2, where he was examined by a doctor and found to have bruising beneath his eyes, a swollen nasal bridge, two-centimetre abrasions on the right side of his forehead, hematoma on the left side of his lower jaw and abrasions on the small of his back and right knee (as recorded in a certificate of that detention facility dated 29 September 2005).

On 5 September 2005 the applicant’s counsel requested investigator A., who was in charge of the robbery case, to order a forensic medical examination (судебномедицинская экспертиза) of the applicant. The investigator rejected the request as irrelevant to the robbery case.

Following the application by the applicant’s counsel (see paragraph 15 above), investigator V. of the Sosnogorsk prosecutor’s office carried out a preinvestigation inquiry into the alleged illtreatment of the applicant.

On 5 September 2005 the investigator ordered a forensic medical examination of the applicant; this was carried out by the Ukhta Forensic Medical Bureau on 7 September 2005. The expert’s report stated that the applicant had the following injuries: bruises measuring up to 1 to 3.5 centimetres on the lower eyelids of both eyes, two abrasions measuring 4 to 0.6 and 1.5 to 0.2 centimetres on his back; and an abrasion measuring 0.6 to 0.5 centimetres on his right knee. The injuries could have been caused by impacts from blunt hard objects with a limited contact surface, in the period 8-12 days before the examination. They could not have been caused by a single impact as a result of a fall against a flat surface.

The investigator received “explanations” (объяснения) from investigator A. (responsible for the robbery case) and from the police officers who had taken the applicant to the police station and interviewed him about his involvement in the robbery. In particular, police officer G. stated that in the course of a “conversation” (беседа) which he had had with the applicant, the latter had suddenly jumped to his feet and hit his head against the wall, as a result of which his nose had started bleeding. Police officer K. also stated that he had seen the applicant hitting his own head against the wall. Police officer Z. explained that in the course of his “conversation” with the applicant the latter had recounted the details of the robbery committed by him; that the applicant had explained that he had hit his own head against the wall and that he had no complaints against police officers; and that the applicant had entered this explanation in the police station visitors’ registration log.

On 9 September 2005 investigator V. held that the applicant’s allegations of ill-treatment, in particular the claims that he had been struck “in his kidneys” and pushed so that his face had hit the wall and he had fainted, had not been based on real facts and that no criminal case was to be opened against police officers G., Z., Ku., B. and M., pursuant to Article 24 § 1 (2) of the CCrP (lack of the elements of a crime in the impugned acts).

On 5 December 2005 the Sosnogorsk prosecutor set aside the investigator’s decision of 9 September 2005 as unlawful and unfounded, on the ground that the circumstances in which the applicant had received his injuries had not been reliably established. He referred to the description of the applicant’s injuries on his arrival in the IVS (see paragraph 13 above) and the SIZO (see paragraph 16 above) and his examination by the forensic medical expert (see paragraph 19 above). He stated that the expert’s suggestions as to how the injuries had been sustained made it doubtful that the applicant could have received his injuries as a result of a one-off impact by his face against a wall. The prosecutor further noted that the applicant had explained that he would most likely be able to identify the police officer who had beaten him at the police station. However, it was not possible to carry out an identification parade and a confrontation in a preinvestigation inquiry. The prosecutor considered that it could not be ruled out that, after his arrest, the applicant had been subjected to acts of violence in order to make him confess to the crime. The applicant’s version of his illtreatment by the police officers could only be verified by way of a full investigation. In order to do so it was necessary to open a criminal case, given that there was sufficient information disclosing elements of a crime under Article 286 § 3 (a) of the Criminal Code (official misconduct with the use of violence). The prosecutor ordered that a criminal case be opened.

In the course of the ensuing investigation the police officers who had arrested the applicant were questioned as witnesses. The applicant was questioned as a victim. An additional forensic medical expert’s report was obtained on 15 February 2006. It reiterated the conclusions in the previous report (see paragraph 19 above).

On 4 March 2006 an investigator from the Sosnogorsk prosecutor’s office terminated the proceedings for lack of the elements of a crime in the acts of the police officers, pursuant to Article 24 § 1 (2) of the CCrP.

On 30 June 2006 a deputy prosecutor of the Komi Republic set aside the investigator’s decision and reopened the criminal proceedings. Three further decisions to terminate the proceedings were subsequently taken and then set aside as unfounded and based on an incomplete investigation. In one of the decisions, dated 24 November 2006, the deputy prosecutor ordered that the inconsistencies between the statements of the police officers and that of the applicant be eliminated and that identification parades and confrontations be held, if necessary. When questioned again as a victim, the applicant stated, inter alia, that he remembered that police officer G. had hit his head against the wall and started punching him “in the kidneys” (as stated in a decision to terminate the proceedings of 4 January 2007).

The most recent decision to terminate the proceedings for lack of the elements of a crime under Article 286 § 3 (a) of the Criminal Code in the acts of police officers G., Ku. and B. was taken on 1 April 2007. The investigator concluded that the applicant’s allegations had been refuted by police officers G. and K., who stated that the applicant had hit his own head against the wall; by the record of his surrender and confession and the forensic medical report of 15 February 2006, in that the applicant’s injuries could have been sustained as a result of impacts from blunt hard objects with a limited contact surface. It does not appear from the decision that investigative acts such as identification parades and confrontations with the applicant’s participation were carried out.

At a preliminary hearing held by the Sosnogorsk Town Court on 13 April 2006 the applicant’s counsel requested that the record of the applicant’s surrender and confession of 26 August 2005, on which the prosecution relied, be excluded from evidence pursuant to Article 75 § 2 (1) of the CCrP, as it had been obtained in the absence of a lawyer. The Town Court dismissed the request.

At his trial, the applicant pleaded his innocence and submitted that he had written his confession statement on the instructions of police officer Z. as a result of physical and psychological coercion by the police officers; in particular, police officer G. had beaten him “in the kidneys and liver” and his head had been struck against the wall so that he had fainted. He had not been informed of his right under Article 51 of the Constitution not to give selfincriminating statements, as that part of the record had been added by police officers at a later stage. The applicant asserted, in particular, that on the night of the robbery he had arrived at the commercial centre, by car and at B.’s request, and had towed B.’s car until its engine started, without knowing anything about the robbery. Two months later B. had offered him gold jewellery, allegedly belonging to B.’s acquaintance, for sale. The applicant had returned some of the jewellery to B. and kept the rest for himself. He had understood from police officer Z. that the gold which he had received from B. had been stolen from the Sosnogorsk district commercial centre. He had therefore told Z. about the gold he had kept at his home.

The applicant’s co-defendant Zh. pleaded his innocence, asserting that he had given self-incriminating statements as a result of his illtreatment by police officers, in particular by G., who had allegedly beaten him up, kicked him and burned his fingers with a cigarette; he also stated that after his arrest on 26 August 2005 he had seen the applicant, on his knees and bleeding, at the police station.

The applicant’s co-defendant B. admitted before the trial court that he had committed the robbery together with a certain Ch., and stated that the applicant and Zh. were innocent. In particular, B. stated that on the night of the robbery he had called the applicant, asking him for help because his car had broken down; the applicant had arrived by car as requested, towed B.’s car (with the stolen property inside) until the engine started and then left without knowing anything about the robbery. Two or three months later, since he was experiencing difficulties with storing and selling the stolen property, B. had asked the applicant to look after the gold jewellery and to buy some of it if he wished. The applicant had agreed. B. also stated that he had not given any selfincriminating statements during the preliminary investigation, in spite of the physical violence used against him by the police officers, in particular by G.

The applicant’s wife stated, among other things, that on the day of his arrest the applicant had been taken back to their home by the police officers in order for their flat to be searched. He had had an abrasion on his head, his lip was burst and his nose was swollen.

Police officer Z., examined by the trial court as a witness, stated that he and other police officers had arrested the applicant and his two codefendants after B.’s girlfriend had reported their involvement in the robbery. At the police station he had talked to the applicant about the robbery several times. The applicant had confessed, named his accomplices and expressed his readiness to surrender the stolen gold. Z. had suggested that the applicant write a statement of his surrender and confession. The applicant had agreed and Z. had asked his subordinates to prepare the necessary document. No violence or threats had been used against the applicant.

Police officer G. stated that after the applicant’s arrest he had taken the applicant to the police station. The applicant had been taken to Z.’s office and later Z. had requested G. to obtain from the applicant a statement of his surrender and confession. The applicant had written down his statement and signed it. G. had not used any violence against the applicant. G. had come out of his office to register the statement with an officer on duty, while the applicant had stayed with police officer K. On returning to his office, G. had seen the applicant suddenly jump to his feet and strike his head against the wall. The applicant had fallen to his knees and started bleeding, “probably from his nose”. K. had given him a towel and asked whether he needed a doctor. The applicant had answered negatively. Z. had then taken the applicant to his office again.

Police officer K. stated that the applicant had jumped to his feet and struck his forehead against the wall once and then had fallen to his knees. K. had wanted to call a doctor but the applicant had refused. He had given the applicant a towel because the applicant was bleeding. K. denied any violent behaviour on the part of the police officers.

Investigator A. stated that she had investigated the robbery case and had given instructions (отдельные поручения) to the police officers in the criminal investigation unit of the Sosnogorsk police department. She had not instructed them to question the applicant or to collect a statement of his surrender and confession. Police officer G. had obtained the applicant’s statement of his surrender and confession as a result of the applicant’s free will. When questioning the applicant as a suspect (on 27 August 2005, see paragraph 14 above) she had noticed his injuries and asked if he had needed medical assistance, but he had refused.

The applicant’s counsel maintained before the trial court that the applicant’s statement of his surrender and confession, which he had retracted on the following day when questioned for the first time in the presence of a lawyer, should be declared inadmissible evidence. She noted that investigator A. had drawn up the record of the applicant’s arrest as a suspect on 26 August 2005. However, for unknown reasons she had not questioned him as a suspect on the same day. Instead, the police officers had obtained the statement of his surrender and confession on their own initiative, without any such instruction from the investigator. They had done so using psychological and physical coercion, as confirmed, inter alia, by the statements of Zh. and the applicant’s wife (see paragraphs 29 and 31 above), the certificate from detention facility IZ-11/2 (see paragraph 16 above) and the forensic medical expert report of 7 September 2005 (see paragraph 19 above). Furthermore, his confession statement had been obtained in the absence of a lawyer. Under Article 142 § 1 of the CCrP, a statement of one’s surrender and confession was meant to be voluntary. Therefore, if obtained from a person arrested on suspicion of having committed a crime, any such statement should be subjected to particular scrutiny. Its voluntary nature was ensured through procedural guarantees under Articles 46 (“The suspect”) and 51 (“Compulsory participation of counsel for the defence”) of the CCrP. Otherwise, such a confession statement should be declared inadmissible evidence in accordance with Article 75 § 2 (1) of the CCrP.

In its judgment of 6 December 2007 the Town Court held that the applicant’s allegation that the statement of his surrender and confession had been given under duress was unsubstantiated. It relied on the statements by the police officers, denying any wrongdoing on their part (see paragraphs 32-34 above), the investigative authority’s most recent decision to terminate the criminal proceedings against them which, as the Town Court noted, had been taken in accordance with the Code of Criminal Procedure and had not been revoked or quashed (see paragraph 26 above), and a report from an internal police inquiry which had dismissed the applicant’s allegations of illtreatment.

The Town Court held that it had critically assessed the applicant’s statements at the trial and concluded that they represented the position of the defence, in that they were aimed at evading criminal responsibility. Those submissions had been refuted by his and Zh.’s statements of surrender and confession, as well as by the statements by the following witnesses: B.’s girlfriend, who had provided hearsay evidence about the applicant’s involvement in the robbery; five police officers who had participated in the applicant’s and his co-defendants’ arrest or the operative follow-up, in particular Z., G., and K.; investigator A., in charge of the robbery case; Z.A., who had denied seeing the applicant in the porch of his building on the night of the robbery (where, according to her former boyfriend who had been heard by the court as a witness for the defence, she had spent time that evening), and her mother Z.E., who had stated that Z.A. had not gone out after 9 p.m.; and Kh., who had been an attesting witness during the search at the applicant’s home during which certain items were seized.

The Town Court held that it had based its judgment on the statements of surrender and confession given by the applicant and Zh., along with statements by the victims, the prosecution witnesses and other evidence. It found that on 12 April 2005 B., Zh. and the applicant had entered into a conspiracy to commit theft from the shops in the commercial centre. According to the roles agreed on between them, the applicant had remained on guard in his car outside the commercial centre, while B. and Zh. had entered while the centre was still open and had hidden there. During the night they had attacked a woman guard and tied her up. Then they had forced locks and stolen property, in particular jewellery and mobile phones. The applicant had helped them to carry the stolen property out and load it into his car, in which they all had left.

The Town Court convicted the applicant of high-value theft with unlawful entry, committed in conspiracy by a group of persons, and sentenced him to six years’ imprisonment. In sentencing the applicant the Town Court took into account information about his personality, in particular that he had received positive character references from his places of residence and employment, and that he had no criminal or administrative offences record. It considered his statement of surrender and confession, the fact that he had two minor children and that he had voluntarily surrendered the stolen gold jewellery, as well as his health condition, as mitigating circumstances. B. and Zh. were convicted of robbery with the use of violence and sentenced to nine years’ and eight and a half years’ imprisonment respectively. The Town Court granted the victims’ civil actions and ordered the applicant and his co-defendants to pay 396,800 Russian roubles (RUB) jointly in respect of pecuniary damage. The victims’ remaining claims were to be examined in separate civil proceedings.

The applicant and his counsel appealed against the judgment. His counsel argued, inter alia, that the trial court had based its judgment on inadmissible evidence, in particular the statement of the applicant’s surrender and confession of 26 August 2005, which had been given by him as a result of ill-treatment by the police officers and in the absence of a lawyer. She reiterated the arguments put forward before the trial court (see paragraph 36 above).

On 6 June 2008 the Supreme Court of the Komi Republic examined the case on appeal. It endorsed in full the trial court’s decision concerning the admissibility of the statement of the applicant’s surrender and confession. It held, in particular, that the statement had been obtained in accordance with the Code of Criminal Procedure. Under Article 142 § 1 of that Code, a statement of surrender and confession was a voluntary statement by a person about a crime committed by him. It had not therefore been necessary to have an instruction from an investigator in order to obtain it. The law did not provide for any additional requirements to such a statement, save that the individual concerned was to be warned of his or her criminal responsibility for deliberately giving false information. Therefore, the absence of a lawyer had not rendered the statement unlawful and had not violated the applicant’s right to defend himself. He had been informed of his right under Article 51 of the Constitution, as confirmed by his signature on the record of his surrender and confession.

The Supreme Court of the Komi Republic further noted that the trial court had examined as witnesses all of the police officers who had seen the applicant at the police station with a view to verifying their implication in the alleged crime. They had all denied any wrongdoing. It had been established that, having written his confession, the applicant had suddenly jumped to his feet and hit his head against a wall. The Supreme Court also referred to the most recent decision by the investigative authority, dated 1 April 2007, by which the criminal proceedings against the police officers had been terminated (see paragraph 26 above), and to the results of the internal police inquiry dismissing the applicant’s allegations of illtreatment (see paragraph 37 above). It upheld the judgment.

The applicant’s counsel unsuccessfully raised the issue of the admissibility of the record of the applicant’s surrender and confession in her requests for supervisory review of the case before the Supreme Court of the Komi Republic and the Supreme Court of the Russian Federation. The former court rejected it for the same reasons as before (decision of a judge of the Supreme Court of the Komi Republic of 5 September 2008 dismissing the request, as endorsed by the President of that court on 27 October 2008).

The Supreme Court of the Russian Federation similarly stated that the applicant’s argument – that the statement of his surrender and confession had been obtained in the absence of a lawyer – lacked a basis in domestic law, and that the allegation of the applicant’s illtreatment at the hands of the police was unsubstantiated, as shown through its examination by the trial court which had heard the police officers, particularly Z., G. and B. (decision of a judge of the Supreme Court of the Russian Federation of 22 December 2008 dismissing the request for supervisory review, as endorsed by a Deputy President of the Supreme Court on 10 March 2009).


Remainder inadmissible;Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Degrading treatment;Inhuman treatment;Prohibition of torture;Effective investigation;Positive obligations);Violation of Article 14+11 - Prohibition of discrimination (Article 14 - Discrimination) (Article 11 - Freedom of assembly and association;Positive obligations;Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

George Nicolaou;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

With the exception of the first applicant, a legal entity registered under Georgian law on 8 November 2010, the remaining fourteen applicants live in Tbilisi. Their dates of birth are indicated in the attached annex.

The first applicant, a Georgian non-governmental organisation set up to promote and protect the rights of lesbian, gay, bisexual and transgender (LGBT) people in Georgia, planned to organise a peaceful march on 17 May 2012 in the centre of the capital city to mark the International Day Against Homophobia.

In advance of the march, on 8 May 2012 the first applicant gave the Tbilisi City Hall and the Ministry of the Interior prior notice of its intention to hold a peaceful demonstration on the above-mentioned date. It informed the authorities of the planned route of the march, which would start from the grounds of the Tbilisi Concert Hall and proceed to Orbeliani Square, and the approximate number of participants. In addition, in the light of a foreseeable protest from those opposed to the LGBT community in Georgia, given the general background of hostility towards the sexual minorities, the applicant organisation specifically requested that the authorities provide sufficient protection from possible violence.

On 14 May 2012 the Tbilisi City Hall acknowledged receipt of the first applicant’s request and explained, in reply, the rights and responsibilities of demonstrators, as provided for by the relevant law.

On 15 May 2012 the applicant organisation was contacted by a senior officer of the Ministry of the Interior, who clarified the details of the planned march and confirmed to the organiser that police forces would be deployed to ensure that the procession took place peacefully.

The second to fourteenth applicants submitted written statements describing the exact circumstances surrounding the incident. At around 1 p.m. on 17 May 2012, members of the LGBT community, staff members of Identoba and other LGBT activists, including the thirteen abovementioned applicants – approximately thirty people in total (“the LGBT marchers”) – gathered in the grounds adjacent to the Tbilisi Concert Hall. They were holding banners with slogans such as “I am gay”, “I love my gay friend”, “Love is love” and “Get colourful”, as well as rainbow flags and umbrellas. A police patrol was present, as agreed, near the Tbilisi Concert Hall.

Shortly before the beginning of the demonstration, members of two religious groups, the Orthodox Parents’ Union and the Saint King Vakhtang Gorgasali’s Brotherhood, arrived in the Tbilisi Concert Hall area. Journalists were also present, recording interviews with the LGBT marchers.

Approximately 200 metres from the starting point of the march, members of the two above-mentioned religious groups (“the counterdemonstrators”) stopped some of the LGBT marchers and started arguing with them. The counter-demonstrators claimed that nobody was entitled to hold a Gay Pride Parade or to promote “perversion”, as it was against moral values and Georgian traditions. In reply, the marchers tried calmly to explain that it was not a Gay Pride Parade but a public event dedicated to supporting the fight against homophobia, and continued to walk.

When the LGBT marchers reached Rustaveli Avenue, they were met there by a hundred or more counter-demonstrators, who were particularly aggressive and verbally offensive. The counter-demonstrators blocked the marchers’ way, made a human chain and encircled the marchers in such a way as to make it impossible for them to pass. The marchers were subjected to threats of physical assault and to insults, accused of being “sick” and “immoral” people and “perverts”. Further pejorative name-calling such as “fagots” and “sinners” was also repeated. At that moment, the police patrol cars which had been escorting the marchers from the Tbilisi City Hall suddenly distanced themselves from the scene.

The LGBT marchers, feeling threatened, immediately telephoned the police, alerting them to the danger and requesting the immediate dispatch of additional forces. While waiting for the arrival of the requested police support, the marchers noticed a few police officers present at the scene. However, when they approached them and asked for help, the officers replied that they were not part of the police patrol and it was not their duty to intervene.

The aggression towards the LGBT marchers continued to escalate and after approximately twenty to thirty minutes, the counter-demonstrators grabbed the banners from the hands of several activists and tore them apart. The counter-demonstrators then resorted to physical attack by pushing and punching the marchers in the front row. As a result of that assault, the sixth applicant (Mr G. Demetrashvili), who was in the front line of the march, was knocked down, beaten and kicked. Shortly afterwards, several police patrol cars arrived at the scene. Some of the law-enforcement officers intervened by stopping the beating of the sixth applicant. The police officers then separated the opposing parties by standing between them. At that time, the aggressive and agitated counter-demonstrators were still making particularly vitriolic threats, including that the marchers “should be burnt to death” and “crushed”.

The third applicant (Mr L. Berianidze), who was standing on the pavement with other LGBT marchers, asked the police to take more active measures to protect the demonstration. The police responded by forcing him into a patrol car and driving him to the Old Tbilisi Police Department of the Ministry of the Interior, where he was detained for some twenty minutes. He was given no official explanation for his arrest at that time. However, as subsequently explained by the Government, the police had simply sought to distance him from the scene in order to protect him from the angry counter-demonstrators.

Three other employees of Identoba – the sixth, seventh and tenth applicants (Mr G. Demetrashvili, Ms G. Dzerkorashvili and Ms M Kalandadze) – were also arrested by the police when they moved from the pavement to the road. They were forced into police patrol cars and driven around the city for some twenty minutes before being returned to Rustaveli Avenue. As subsequently explained by the Government, the aim of the applicants’ short-term retention was twofold: to prevent them from committing an administrative offence – impeding road traffic – and to protect them from the counter-demonstrators’ assault.

Later on 17 May 2012, the third and sixth applicants (Mr L. Berianidze and Mr G. Demetrashvili) sought medical help for their injuries. The third applicant had a bruised left knee, grazes on his left palm and fingers, a haemorrhagic forearm and a haematoma on the right eyebrow. The sixth applicant had a closed head trauma, cerebral contusions, and bruises on the left side of his chest. Two days later, on 19 May 2012, the fourteenth applicant (Ms M. Tsutskiridze) also visited a doctor. She was diagnosed with a contusion of the left wrist.

The clashes between the marchers and counter-demonstrators were recorded by journalists present at the scene and broadcast in the evening of 17 May 2012 by a number of national television channels. The faces of the applicants who had been attacked and the assailing counter-demonstrators were clearly recognisable.

On 18 May 2012 members of the board of the applicant organisation filed several complaints with the Ministry of the Interior and the Chief Public Prosecutor’s Office concerning the violent acts committed during the march of 17 May 2012 by representatives of the two religious groups. The complaints were mostly based on the account of the circumstances as described in the thirteen individual applicants’ written statements (see paragraphs 10-19 above).

On 19 May 2012 a criminal investigation was launched into the infliction of light bodily harm on the fourteenth applicant (Ms M. Tsutskiridze) by unidentified persons. When questioned as a witness the same day, she stated that unidentified men had grabbed her poster and hit her with the handle of the poster. On 23 May 2012 the eighth applicant (Ms E. Glakhashvili) was also questioned about the fourteenth applicant’s injury to her hand. Subsequently, on 21 June 2012 a forensic medical examination was commissioned by the investigation, the results of which suggested that the bruising and excoriation the fourteenth applicant had sustained on her wrist represented light bodily injuries. The fourteenth applicant was not granted victim status within the framework of that criminal investigation at that time.

On 26 June 2012 the first applicant received a letter from the deputy director of the police patrol department of the Ministry of the Interior in response to the board members’ complaints of 18 May 2012. The response stated that, as there were no signs of illegality in the actions of the police during the demonstration, there was no need to launch an investigation against them for abuse of power. As to the counter-demonstrators’ actions, two of them had indeed been arrested for transgression under Article 166 of the Code of Administrative Offences – minor breach of public order – and fined 100 Georgian laris (some 45 euros (EUR)) each.

On 3 and 5 July 2012 the first applicant and thirteen individual applicants in the present case (from the second to the fourteenth) filed additional criminal complaints with the Chief Public Prosecutor and the Minister of the Interior. The applicants specifically requested that criminal investigations be launched on account of two factual situations: firstly, the verbal and physical attacks perpetrated against them by the counter-demonstrators with clear discriminatory intent; and, secondly, the acts and/or omissions of the police officers who had failed to protect them from the assaults. The applicants emphasised that criminal inquiries should be conducted with due regard to Article 53 of the Criminal Code, which provided that the existence of homophobic intent was an aggravating circumstance in the commission of a criminal offence.

The criminal complaints of the third, sixth, seventh and tenth applicants focussed on the attacks against them by the counterdemonstrators and the lack of police protection. Those applicants did not request an inquiry into the alleged restriction of their liberty by the police during the incident of 17 May 2012 (Article 147 of the Criminal Code, see paragraph 33 below).

By a letter of 17 July 2012, the Ministry of the Interior replied to the first applicant and the relevant thirteen individual applicants that during the incident of 17 May 2012 the police had called upon both the LGBT marchers and the counter-demonstrators to exercise their right to demonstrate in a peaceful manner. The Ministry’s letter then reiterated the information concerning the imposition of administrative sanctions on two of the counter-demonstrators (see paragraph 22 above).

On 24 October 2012 a criminal investigation was opened into the alleged beating of the sixth applicant (Mr G. Demetrashvili) by unidentified persons on 17 May 2012. On the same day that applicant was interviewed as a witness. He stated that he had been encircled and insulted by five or six counter-demonstrators. The attackers then started kicking and hitting him. The ill-treatment lasted for a few minutes, until a police officer finally intervened and removed him from the scene. On 6 November 2012 a forensic medical expert issued an opinion confirming that the sixth applicant had sustained a contusion and closed head trauma. He was not granted victim status at that time.

In September 2014 the two counter-demonstrators who had previously been fined for administrative misconduct were examined as witnesses in relation to the beating of the sixth applicant. The latter, questioned again in September 2014 about the incident of 17 May 2012, stated that he could no longer remember certain circumstances due to the significant lapse of time. Nevertheless, he confirmed that he would still be able to recognise the faces of those individuals who had assaulted him.

According to the latest information available in the case file, the two criminal investigations opened on 19 May and 24 October 2012 into the light bodily injuries sustained by the sixth and fourteenth applicants are still pending, and the two applicants have never been granted victim status.


Branko Lubarda;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant in the first case, Mr Boško Mikulović, is a Serbian national, who was born in 1955 and is currently serving a prison sentence in Zabela Prison near Požarevac in Serbia. He is represented before the Court by Mr Z. Ilijevski, a lawyer practising in Kragujevac, Serbia.

The applicant in the second case, Mr Predrag Vujisić, is a Serbian national, who was born in 1967 and is currently serving a prison sentence in Padinska Skela Prison near Belgrade in Serbia. He is represented before the Court by Mr M. Kovačević, a lawyer practising in Niš, Serbia.

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

On 17 December 1992 the applicant committed a murder.

On 20 June 2003 the Kruševac District Court (Okružni sud u Kruševcu, hereinafter “the District Court”) imposed a forty-year prison sentence for murder on the applicant, under the Criminal Code of Serbia.

On 20 November 2003 the Supreme Court of Serbia (Vrhovni sud Srbije) quashed that judgment and remitted the case to the first-instance court for retrial.

On 21 May 2004 the District Court again sentenced the applicant to forty years’ imprisonment for murder.

On 4 November 2004 the Supreme Court of Serbia quashed that judgment and remitted the case to the first-instance court for retrial.

On 5 August 2005 the District Court again sentenced the applicant to forty years’ imprisonment for murder, finding as follows:

“The court did not accept the defence’s argument that, when it comes to the question of the applicable law, the law which was in force at the time of the commission of the crime ought to have been applied, as the Amendments to the Criminal Code of Yugoslavia (Zakon o izmenama i dopunama Krivičnog zakona Jugoslavije) had entered into force on 17 November 2001, before the accused was sentenced ... It is clear that with the entry into force of these amendments, the death penalty and a twenty-year prison sentence can no longer be imposed. Furthermore, the Amendments to the Criminal Code of Serbia (Zakon o izmenama i dopunama Krivičnog zakona Republike Srbije) ..., which entered into force on 9 March 2002, removed Article 2 of the Code and as a result, a forty-year prison sentence is prescribed for the crimes for which the death penalty had been previously prescribed ... it is therefore clear that upon entry into force of the Amendments to the Criminal Code of Yugoslavia (17 November 2001), the death penalty and the sentence of twenty years’ imprisonment were removed from the range of criminal sanctions, and that the Criminal Code of Serbia of 9 March 2002 prescribed a forty-year prison sentence for that particular crime.”

On 23 November 2005 the Supreme Court of Serbia upheld that judgment.

On 19 May 2006 the Supreme Court of Serbia, in another formation, changed the legal classification of the applicant’s offence to aggravated murder and upheld the remainder of the judgment.

On 28 May 2007 the Supreme Court of Serbia rejected an appeal on points of law lodged by the applicant. The applicant received that decision on 8 August 2007.

On 5 October 2000 the applicant committed a murder.

On 22 August 2005 the Vranje District Court (Okružni sud u Vranju) sentenced the applicant to forty years’ imprisonment for murder, under the Criminal Code of Serbia.

On 22 December 2005 the Supreme Court of Serbia quashed that judgment and remitted the case to the first-instance court for retrial.

On 13 November 2006 the Vranje District Court again sentenced the applicant to forty years’ imprisonment for murder.

On 25 September 2007 the Supreme Court of Serbia upheld that judgment.

On 5 September 2008 the Supreme Court of Serbia, acting as a third-instance court, upheld the judgment. In its reasoning on the question of the applicable law the Supreme Court found that the lower courts had correctly applied the more lenient law by sentencing the applicant to a forty-year prison sentence. The Supreme Court stated:

“... the Criminal Code of Serbia prescribed the death penalty for the crime in question, and the death penalty, contrary to the arguments in the appeal, had not been abolished at any stage during which said law had been in force ... [T]herefore, the [new] Criminal Code should be applied with regard to the crime in question as the more lenient law, which it indeed is, as a prison sentence from thirty to forty years is more lenient than the death penalty ...”

On 25 March 2010 the Supreme Court of Cassation rejected an appeal on points of law lodged by the applicant. The Supreme Court repeated that the death penalty remained in the Criminal Code of Serbia during the period between 9 November 2001 and 1 March 2002, when it had been replaced by a forty-year prison sentence. In its reasoning the said Court stated:

“... the chronology of the changes of the criminal law points to an evident continuity in replacing the death penalty with the prison sentences ...”

Having been served with the Supreme Court of Cassation’s judgment the applicant lodged a constitutional appeal with the Constitutional Court of Serbia. Relying on Article 7 of the Convention he complained that the most lenient criminal law provision had not been applied. The applicant maintained that during the period between 9 November 2001 and 1 March 2002 the courts could only have sentenced him to a fifteen or twenty years’ imprisonment and that, therefore, the law in force during that time had been the most lenient.

On 7 February 2013 the Constitutional Court of Serbia rejected the applicant’s constitutional appeal. In its reasoning, the Constitutional Court referred to the detailed reasoning in its decision concerning the same issue in another case involving different appellants (Už. 969/09, see paragraph 33 below).

At the time the applicants committed the crimes in question, the general provisions of the Federal Criminal Code defined which penalties were prescribed on both republic and federal levels. The death penalty was prescribed as one of possible penalties for murder in the Criminal Code of Serbia.

The Constitution of the Federal Republic of Yugoslavia (Official Gazette of the Federal Republic of Yugoslavia no. 1/92) was in force from 27 April 1992 until 4 February 2003.

The relevant provision of the Constitution reads as follows:

Human life is inviolable.

The death penalty cannot be imposed for crimes proscribed in the federal criminal code. “

The Constitution of the Republic of Serbia (Official Gazette of the Republic of Serbia no. 1/90) was in force from 28 September 1990 until 8 November 2006.

Human life is inviolable.

The death penalty can exceptionally be prescribed and imposed only for the most heinous forms of severe criminal acts. ”

The Criminal Code of the Socialist Federal Republic of Yugoslavia 1976 (Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 44/76, 36/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90, 45/90 and 54/90, in the Official Gazette of the Federal Republic of Yugoslavia nos. 35/92, 16/93, 31/93, 37/93, 24/94 and 61/01, and in Official Gazette of the Republic of Serbia no. 39/03) was in force until 1 January 2006.

The relevant provisions of the Code provided as follows:

No punishment or other criminal sanction may be imposed on anyone for an act which, prior to being committed, was not defined by law as a criminal act, and for which a punishment has not been prescribed by statute.

The law that was in force at the time a criminal act was committed shall be applied to the person who has committed the criminal act.

If the law has been altered one or more times after the criminal act was committed, the less severe law in relation to the offender shall be applied.

Provisions of the General Part of this Code are applicable to all criminal acts defined in the laws of the federation, republics and autonomous provinces.

The following punishments may be imposed on the perpetrators of criminal acts:

capital punishment;

imprisonment;

a fine;

confiscation of property.

(1) The term of imprisonment may not be shorter than fifteen days nor longer than fifteen years.

(2) The court may impose imprisonment for a term of twenty years for criminal acts eligible for the death penalty.”

On 17 November 2001 Article 34 of this Criminal Code was amended and the death penalty was deleted from the list of available penalties. It was amended to read:

(1) The term of imprisonment may not be shorter than thirteen days nor longer than fifteen years.

(2) A prison sentence of forty years may be prescribed for the most serious criminal acts or for the most heinous forms of severe criminal acts. This sentence may only be prescribed as an option alongside a prison sentence of fifteen years [it cannot be a stand-alone penalty] and may not be imposed on a person who was under the age of twenty-one at the time of commitment of the criminal act concerned.”

The Criminal Code of the Socialist Republic of Serbia 1977 (Official Gazette of the Socialist Republic of Serbia nos. 26/77, 28/77, 43/77, 20/79, 24/84, 39/86, 51/87, 6/89, 42/89, and Official Gazette of the Republic of Serbia nos. 16/90, 21/90, 26/91, 75/91, 9/92, 49/92, 51/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02, 80/02, 39/03 and 67/03) was in force until 31 December 2005.

Whoever causes the death of another shall be punished with imprisonment for a minimum of five years.

Imprisonment for a minimum of ten years or the death penalty [is prescribed for] whoever:

1) causes the death of another in a cruel or heinous manner;

2) causes the death of another by callous violent behaviour;

3) causes the death of another and with premeditation endangers the life of a third person;

4) causes the death of another for gain, to commit or conceal another offence, for callous revenge or other base motives.”

On 9 March 2002 this Criminal Code was amended and the death penalty was replaced with a forty-year prison sentence.

On 24 March 2010, in a similar case to that of the applicants, the Constitutional Court rejected a constitutional appeal of D.N. (Už. 969/09). In its decision, the Constitutional Court, inter alia, stated:

“Since the death penalty was prescribed in the Criminal Code of the Republic of Serbia continuously until 1 March 2002, it also was in force at the time of the commission of the crime in question, and was also prescribed for the crime the applicant had been accused and convicted of, the Constitutional Court found that the [new] Criminal Code was without doubt more lenient for the appellant, as it did not prescribe the death penalty as the heaviest penalty in the system of criminal sanctions. According to the Constitutional Court’s assessment, any prison sentence is more lenient than the death penalty, because life is of fundamental value to each human being, and it is subject to special protection in both the constitutional and criminal legal spheres. For all the above mentioned reasons, the Constitutional Court finds the rights of the appellant were not violated as guaranteed by the provisions of Article 34 § 2 of the Constitution.”

On 25 January 2008 the Supreme Court of Cassation of Serbia (Kzp Ok 3/07) took the view that the death penalty had ceased to be applicable in the republic upon the entry into force of the Amendments to the Criminal Code of Serbia of 9 March 2002, and that this penalty was abolished at that time and replaced with a forty-year prison sentence. The court held:

“... in the Criminal Code of Serbia, the death penalty continued to be in force during the period between 9 November 2001 and 1 March 2002 when, by the mentioned amendments, it was definitively abolished and replaced with a forty year prison sentence.”


Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)

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

The applicant was born in 1958. He is currently serving a life sentence in Schwalmstadt prison.

On 29 February 1984 the applicant was arrested after he had shot his wife, Ms I. M., who had recently left him, and injured two bystanders. On 17 December 1984 the Frankfurt am Main Regional Court convicted the applicant of murder and negligent bodily injury and sentenced him to life imprisonment. He has been imprisoned ever since.

On 3 December 1993 the Marburg Regional Court determined that the applicant’s guilt was not of “particular gravity” pursuant to Section 57 (a) of the German Criminal Code (see Relevant domestic law below), implying that the degree of the applicant’s guilt did not require an execution of more than fifteen years of his sentence.

From November 1995 until March 1997 the applicant served his sentence in a semi-custodial regime (offener Vollzug). On 13 March 1997 this privilege was withdrawn after preliminary investigations were initiated against the applicant who was suspected of having, in January 1997, while on prison leave, caused bodily harm to a female acquaintance, Ms J., by using an electric truncheon. On 2 February 1999 the Frankfurt District Court acquitted him of these charges on factual grounds without giving any further written reasons.

On 23 February 1999 the Marburg Regional Court, sitting as an execution of sentence chamber (Strafvollstreckungskammer) rejected the applicant’s request to suspend the remainder of his sentence and to release him on probation. The chamber considered that the criminal proceedings before the Frankfurt District Court had failed sufficiently to clarify the facts of the incident of January 1997. Having heard evidence by witnesses, the chamber noted that the applicant had started a sexual relationship with Ms J., who was married, in autumn 1995. When Ms J. decided to terminate the relationship in November 1995, the applicant had threatened to tell her husband and children about her extramarital relationship. Based on testimony given by several witnesses, the chamber was further convinced that the applicant had attacked Ms J. in the evening of 10 January 1997. The chamber considered that the applicant’s submissions that he had not been in Frankfurt at the time of the alleged incident lacked credibility.

With regard to the prognostic decision, the decision reads as follows:

“The Chamber is convinced that a serious danger still emanates from [the applicant] for other persons’ lives and limbs. The established facts disclose remarkable similarities to the crime against I. M. The convict knew both women from his youth... Irrespective of the qualification of the incident under criminal law – which is irrelevant for the prognostic decision at hand – both incidents were preceded by a long period of time during which the perpetrator and the victim were deeply involved on an emotional level. The convict made elaborate plans for the future with both women, which ended in disappointment, and both women decided to leave him for another man...The convict was unable to take a clear stance in respect of the separation from both women. He oscillated between aggressive acts and menacing behaviour on the one side and pleadings on the other. In both cases, his behaviour followed the same pattern: it started with rather low-key aggression, which escalated during the course of the crisis which was marked by serious feelings of mortification....Now and then he threatened the women with violence and displayed suicidal tendencies... Ms J. might not yet have been in serious danger, as the convict had still been able to set himself limits. However, the Chamber has very serious doubts whether he will remain able to respect these limits in the future.”

The Chamber further observed that the psychological expert Prof F., in an expert report prepared on 7 September 1994, had given the applicant a favourable legal prognosis. However, these findings had become obsolete in view of the freshly established events. The Chamber finally considered that the fact that the applicant had been acquitted in the criminal proceedings before the Frankfurt District Court did not prevent the execution of sentence chamber from making its own assessment of the relevant facts, as the Frankfurt District Court had failed sufficiently to examine those facts in a convincing way.

On 28 June 1999, the Frankfurt Court of Appeal rejected the applicant’s appeal. That court considered that the principle of presumption of innocence did not prevent the execution of sentence chamber from examining on its own motion those facts that were relevant for its prognostic decision.

On 11 October 2001, the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint. On 16 October 2001, the applicant lodged an application with the Court (no. 5598/02) in which he complained about his continued detention. On 6 April 2004, a Committee of three judges declared this application inadmissible.

Between February 2001 and November 2006, the applicant lodged four further requests for the stay of execution of the remainder of the sentence, which were likewise rejected by the domestic courts.

Since 2002, the applicant has again enjoyed relaxed conditions of detention (Vollzugslockerungen), like accompanied outings and therapy. Further relaxed conditions of detention were not granted because on 13 January 2004 the Hessian Ministry of Justice objected to the prison authority’s proposal in this regard.

By decision of 4 September 2007, the Kassel Regional Court, sitting as an execution of sentence chamber, and after having heard the applicant, rejected his request for a suspension of his sentence on probation. The court found that there was no real chance that the applicant would not reoffend if released. This finding was based on the psychiatric expert report submitted by Prof K. on 20 April 2007, which had found that the applicant continued to be dangerous. The Regional Court further found as follows:

“On the other hand, it has to be taken into account that the expert detected risk factors in the convict’s personality which make it difficult to come to an unconditionally positive social and legal prognosis... [The expert found] that these risk factors derived on the one hand from the fact that the convict had failed to deal with his offence, had not admitted any guilt and had not shown sympathy for his victims. In the expert’s view, he displayed a massive infantile egocentricity which was reflected in distinctive cantankerousness. While it was true that this would not necessarily lead to the commission of further criminal offences, the criminal offence that the applicant had committed to the detriment of Ms J. showed that the applicant was willing to enter into relationships with women once more and that a separation would lead to violent acts for reasons of wounded pride. His problem was that he was incapable of dealing either with his own weaknesses or with his catastrophic actions and that he could not take a mature, adult stance towards them”.

(“Anderenfalls war hierbei jedoch zu berücksichtigen, dass auch nach den Ausführungen des Gutachters in der Person des Verurteilten Risikofaktoren festgestellt wurden, die eine uneingeschränkt positive Sozial- und Legalprognose...erschweren. Diese Risikofaktoren ergeben sich zum einen daraus, dass der Verurteilte sich nach der Tat nicht mit seinem eigenen Tun auseinandergesetzt hat und weder seine eigene Schuld eingeräumt noch Mitleid mit den Opfern gezeigt hat. Bei ihm besteht nach Auffassung des Sachverständigen eine massive infantile Egozentrik, die sich in einer ausgeprägten Rechthaberei widerspiegelt. Zwar führe dies nicht notwendig zur Begehung weiterer Straftaten. Doch zeige die Straftat zum Nachteil der Frau J., dass der Verurteilte geneigt und imstande sei, wieder Beziehungen zu Frauen einzugehen und dass es bei Trennungen zu Gewalttaten aus gekränkter Eitelkeit komme. Seine Problematik bestehe darin, dass er auβerstande sei, sich mit seinen eigenen Schwächen, aber auch mit seinen eigenen katastrophalen Handlungen auseinanderzusetzen und diesen gegenüber einen reifen, erwachsenen Standpunkt zu gewinnen.“)

The Regional Court further considered that there was no need to obtain further expert reports. It observed, in this context, that it was part of the expert’s task to assess a factual situation from a medical point of view in order to deliver the requested prognostic assessment. The court observed that the risk associated with a suspension of the sentence on probation could only be taken once it was clear that the applicant would adhere to the norms and once his conduct had been tested for some time in the framework of relaxed conditions of detention, in particular in a semi-custodial regime. In this context, the court also welcomed that the applicant was now cooperating and it was thus envisioned to start individual therapy in September 2007.

On 13 September 2007, the applicant appealed against the Regional Court’s decision. He submitted, inter alia, that he had not received the Public Prosecutor’s observations the Regional Court had referred to in its decision and that his rights under Article 6 § 2 of the Convention were violated because the Regional Court had based its decision on the alleged incident with J., even though he had been acquitted of all charges in this respect. He further maintained that the decision could not be based on the lack of relaxed conditions of detention; otherwise, the court had an obligation to ensure that appropriate measures were taken.

On 9 October 2007, the Frankfurt Court of Appeal dismissed the appeal. The Court of Appeal based its decision on the expert report, recalling the expert’s findings, inter alia, that the murder of his wife and the incident with Ms J., as referred to in previous decisions of the Regional Court and of the Court of Appeal, showed that with regard to women the applicant thought he could execute his own “law” at his discretion. He still did not accept his own weaknesses and did not have a plan on how to avoid or deal with critical situations in the future. Referring to its previous decisions of 1999, 2001 and 2005, the Court of Appeal concluded that the circumstances had not changed to a decisive degree. The murder of his wife was not triggered by the environment, but by the applicant’s personality. Since the criminogenic structure of his personality remained unchanged, the fact that the applicant’s conduct was non-objectionable was only of minor prognostic relevance.

The Court of Appeal observed that it had been legitimate for the execution of sentence chamber to investigate on its own motion the incident with Ms J., since this was relevant for the prognosis. Therefore, the expert was allowed to base his prognostic assessment on the execution of sentence chamber’s findings in this respect. According to the Court of Appeal, which referred to its prior decisions, this did not constitute a violation of the presumption of innocence. Having regard to the persistent danger that the applicant committed further violent acts in situations which could be compared to the original offence, the Court of Appeal considered that it was not justifiable to take the risk of suspending the further execution of the life sentence.

On 19 October 2007, the applicant submitted a constitutional complaint. He raised in particular the issue of presumption of innocence and further alleged that his right to be heard had been violated since he had not received the prosecution’s observations.

On 6 February 2008, the Federal Constitutional Court declared the complaint inadmissible for non-exhaustion of prior remedies on the grounds that the applicant had failed to lodge a motion to be heard (Anhörungsrüge).

On 19 March 2008, the Kassel Regional Court dismissed the applicant’s motion to be heard on the grounds that the applicant and his counsel had been informed about the content of the public prosecutor’s statement and of the prison authority’s submissions during a hearing. Furthermore, the prison authority’s submissions had been served on the applicant’s counsel for comments on 12 July 2007. On 5 June 2008, the Frankfurt Court of Appeal, relying on the same grounds, rejected the applicant’s appeal.

On 18 July 2008, the Federal Constitutional Court refused to admit the applicant’s fresh complaint lodged on 12 May 2008 against the decisions given by the Frankfurt Court of Appeal on 9 October 2007 and by the Kassel Regional Court on 4 September 2007 for adjudication without giving any further reasons. This decision was served on the applicant on 29 July 2008.

On 21 January 2013 the Marburg District Court refused to order the applicant’s probationary release and, at the same time, instigated fresh proceedings on the review of the applicant’s continued detention. On 28 May 2013 the Frankfurt Court of Appeal confirmed.

Until July 2013, the applicant underwent therapy. He was granted prison leave to attend therapy lessons. As from March 2013 the applicant was additionally granted one or two prison leaves per week. Since 23 October 2013 the applicant is serving his sentence in a semi-custodial regime.


CASE OF CEREALE FLOR S.A. AND ROŞCA v. THE REPUBLIC OF MOLDOVA

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

The applicant company is a joint-stock company incorporated under Moldovan law. Ms Roșca was born in 1984 and lives in Chișinău.

On 23 February 2000 the Economic District Court ordered the applicant company to pay another company, E., 1,908,145 Moldovan lei (MDL) (equivalent to 152,190 euros (EUR)). The court issued a writ of enforcement.

On 14 July 2005 E. sought to restart the time-limit for the enforcement of the judgment dated 23 February 2000, arguing that it had been unable to initiate enforcement proceedings within the three-year statutory period because the bailiff had lost the original writ of enforcement.

On 2 May 2006 the Economic Court of Appeal, by a final judgment, dismissed E.’s application as being ill-founded, noting that a duplicate of the writ had been issued in 2003.

On 17 December 2008 the Economic Court of Appeal upheld an application by E. for a revision of the judgment, quashed the decision of 2 May 2006 and allowed the statutory time-limit to run anew. The court did not reply to the applicant company’s contention that the application was timebarred.

After communication, E. initiated enforcement proceedings and the applicant company paid MDL 294,405.37 (equivalent to EUR 18,400).

On 28 February 2007 the Ciocana District Court acknowledged the applicant’s entitlement, as a young family, to a plot of land for construction purposes. The court ordered the Tohatin local administration to grant the applicant ownership of such a plot of land. As there was no appeal, the judgment became final on 20 March 2007.

The applicant sought enforcement of the judgment of 28 February 2007, but to no avail.

On 11 February 2009 the Tohatin local administration lodged an application for a revision of the judgment, arguing that the applicant had not qualified as a young family because her husband had died in 2006 and she had therefore lost her entitlement to any land.

On 22 April 2009 the Ciocana District Court dismissed the application for revision, finding that the applicant had requested the plot of land in 2005. Her husband’s death had not qualified as a new circumstance because the local administration had been aware of that matter at the time of the proceedings. The local administration appealed.

On 24 June 2009, in the applicant’s absence, the Chișinău Court of Appeal allowed the appeal, quashed the decision of 22 April 2009 and upheld the application for revision. It also quashed the Ciocana District Court’s judgment of 28 February 2007 and delivered a new judgment on the merits that dismissed her claims as unsubstantiated.

After communication, the applicant brought a civil action, claiming damages for a violation of her right to a fair hearing within a reasonable time, pursuant to Law no. 87 of 21 April 2011. She referred to the period of twenty-six months between 20 March 2007 and 24 June 2009, during which the judgment of 28 February 2007 had not been enforced.

On 16 March 2012 the Rîșcani District Court found for the applicant, acknowledged a violation of her rights and awarded her MDL 450,000 (equivalent to EUR 27,250) in respect of pecuniary damage, MDL 66,000 in respect of non-pecuniary damage and MDL 38,193 for legal costs. The court noted that the compensation for pecuniary damage represented the average market price of a plot of land of 0.09 ha. It said that it had used the reference size of 0.09 ha because the Tohatin local administration had granted plots of that size when executing similar judgments in respect of young families. The Ministry of Finance appealed.

On 25 October 2012 the Chișinău Court of Appeal, by a final judgment, found the length of the proceedings to have been excessive, which it attributed to the acts of the authorities. It awarded the applicant MDL 30,000 (equivalent to EUR 1,895) in respect of non-pecuniary damage and MDL 5,000 (equivalent to EUR 316) for costs and expenses. The court dismissed the remainder of the claim, noting that the applicant had failed to substantiate alleged costs for renting alternative accommodation and finding that no compensation for the land should be awarded because the judgment acknowledging her entitlement to that land had been quashed.