Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

The applicant was born in 1984 and lives in Babushkin, Republic of Buryatiya, Russia.

On 6 January 2005 M.D. was arrested and taken to a police station. Allegedly, police officers threatened him with murder and ill-treatment if he refused to make a confession. In the presence of counsel, he made a written statement confessing to a murder. On 7 January 2005 an investigator compiled an arrest record.

On 30 September 2005 another investigator issued a formal decision confirming that M.D.’s real name was M.M., the applicant in the present case before the Court.

On 12 March 2007 the Verkh-Isetskiy District Court of Yekaterinburg (“the District Court”) convicted the applicant of murder and sentenced him to ten years’ imprisonment. On 6 June 2007 the Sverdlovsk Regional Court (“the Regional Court”) upheld the judgment.

In the meantime, on 4 April 2005 the applicant had tested positive for HIV.

According to the applicant, on 30 August 2006 (see below) he learnt that in October or November 2005 Z., a deputy district prosecutor, had given G., the sister of the murder victim, access to the file concerning the criminal charges against the applicant.

At a hearing on 30 August 2006 the trial court granted G. victim status in the criminal case (see paragraph 36 below). At the same time, the trial court allowed a decision granting G. victim status to be added to the file (a decision apparently taken in late 2005 by an unspecified authority during the criminal investigation – however, see paragraphs 14-15 below). G. was cross-examined at that hearing. She stated that she had had access to the file and had then told D., the applicant’s relative, about his HIV status to prove that the applicant was not a good person. According to the applicant, G. also disclosed his HIV status to some other neighbours.

Between September 2006 and 2010 the applicant unsuccessfully sought the institution of criminal proceedings against G. for the disclosure of private information, which was an offence under Article 137 § 1 of the Criminal Code (see paragraph 38 below). It appears that the applicant also sought the institution of criminal proceedings against Z. in relation to the disclosure of private information involving the use of an official position and abuse of power (Article 137 § 2 and Article 286 of the Criminal Code; see also paragraph 15 below).

A pre-investigation inquiry was carried out for the offence allegedly committed by G.

In December 2006 Z., the deputy district prosecutor, wrote to the applicant indicating that G. had not been granted victim status, and that the investigator in charge of the case had not provided her with access to the file during the preliminary investigation.

In December 2006 the regional prosecutor’s office informed the applicant that G. had been granted victim status and had studied the case file in August 2006, she had not applied for victim status before that time, and there were no grounds for any pre-investigation inquiry in respect of Z. It is unclear whether the applicant took any further action as regards his criminal complaint against Z.

As a result of the inquiry in respect of G., a refusal to institute criminal proceedings was issued. It was then overruled. Further refusals to prosecute were issued on 1 October and 26 November 2007 and on 9 February 2008.

On 25 November 2008 the District Court refused to carry out judicial review of the refusal dated 9 February 2008. The Regional Court then considered that the applicant was entitled to judicial review and ordered the District Court to re-examine the issue. In the resumed proceedings, on 13 February 2009 the District Court noted that the applicant no longer wished to pursue the judicial complaint, and discontinued it.

In the meantime, on 23 January 2009 an investigator had issued a new refusal to prosecute with reference to the expiry of the two-year timelimit for prosecution of an offence under Article 137 of the Criminal Code. The investigator heard D., who confirmed that G. had briefly mentioned the applicant’s HIV status. The investigator’s decision indicates that he considered the disclosure of the applicant’s medical data an established fact.

On 28 September 2009 the District Court confirmed the refusal to prosecute dated 23 January 2009. The judge noted (apparently with reference to 2007) that for some time the institution of criminal proceedings had been refused because “at the time no written statement could be obtained from [the applicant] in relation to his complaint”. This had prompted the supervising prosecutor to set aside, among other things, the refusals to prosecute dated 1 October and 26 November 2007 and 9 February 2008. The prosecutor had acted promptly by taking decisions on 5 October and 29 December 2007 and on 30 December 2008. Following each decision, law-enforcement officers had taken measures to interview the applicant (apparently by asking staff at his remand centre to interview him), but “no statement had been received from him”.

On 17 March 2010 the Regional Court upheld the judgment of 28 September 2009. The appeal court stated that, while the fact of the dissemination of the applicant’s medical data by G. had been established, she could not be prosecuted, owing to the expiry of the time-limit for prosecution. However, those grounds for discontinuing the case were, in a way, in the applicant’s interest, and it remained open to him to bring civil proceedings against her.

In May 2010 the applicant brought civil court proceedings against G., seeking compensation for non-pecuniary damage on account of the disclosure of his HIV status to other people. On 13 September 2010 the District Court discontinued the case because the respondent was a foreign national not residing in Russia. Apparently, the applicant did not appeal.

The applicant also lodged a claim under the 2010 Compensation Act. A judge rejected it, noting that the Act did not give standing to a criminal complainant with no “victim” status seeking compensation on account of the length of a pre-investigation inquiry. Apparently, the applicant did not appeal.

The applicant provided the following account of his conditions of detention.

Between 17 January 2005 and July 2007 the applicant was kept in Yekaterinburg Remand Centre no. 66/1. After his arrival he was placed in cell no. 301, which measured 20 square metres and accommodated five people. This cell had no window, and the temperature in the cell was around 2˚C. There was no bed or bedding. The toilet did not work and was not separated from the main area.

On 18 January 2005 the applicant was transferred to cell no. 625, which measured 20 square metres and had six beds, but which actually accommodated seventeen people. The toilet was not separated from the main area.

From 19 January to 4 April 2005 the applicant was in cell no. 125, which measured 4 or 7 square metres and accommodated four detainees (or up to six people, according to the applicant’s amended description).

From 4 April to 18 May 2005 the applicant was kept in cell no. 204, which measured 20 square metres and had six beds, but accommodated twenty-three to twenty-eight people.

From 18 May to 2 June 2005 the applicant was in hospital. It appears that the material conditions of his stay there were acceptable. However, between 24 May and 1 June 2005 he was allegedly ill-treated by medical assistants (also people who had been convicted) who, at the instigation of police officers, tried to extract a confession from him.

After being returned to the remand centre, the applicant was placed in cell no. 205, which measured 20 square metres and accommodated up to twenty-five people, despite having only sixteen beds.

From 11 July 2005 the applicant was in cell no. 117, which measured 4 square metres and accommodated four detainees.

Furthermore, the applicant provided a detailed account of the conditions of his detention between July 2005 and July 2007, conditions which were also cramped or unacceptable and where, at times, he was not able to have an individual bed.

Between 2005 and 2009 the applicant lodged numerous complaints in relation to his conditions of detention. For instance, on 15 February 2006 the Prisons Department of the Sverdlovsk Region dismissed one of his complaints, whilst indicating that the actual number of detainees in the remand centre exceeded the design capacity of this detention facility. By a letter of 13 March 2006 the administration of the remand centre informed the applicant that the actual capacity of cells was such as to afford each detainee 2.5 square metres of space, which was a temporary measure related to the overpopulation problem.

By a letter of 2 October 2008 the Sverdlovsk prosecutor’s office supervising prisons confirmed that the applicant had been afforded between 0.9 and 3.8 square metres of cell space.

By a letter of 2 December 2008 the prosecutor’s office of the Sverdlovsk Region informed the applicant that, following an inspection, it could be not confirmed that the cell toilets were not separated from the main area.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

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

The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.


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 was born in 1953 and lives in Budapest.

On 17 August 2009 the applicant was appointed as deputy general manager of a State-owned company limited by shares.

The applicant’s employment was terminated by mutual agreement as of 30 August 2010. Under this agreement the applicant received severance payment, subject to payroll burdens.

Under new legislation (see paragraph 9 below) the severance payment was subsequently taxed at a 98% rate in its part exceeding 3.5 million Hungarian forints (HUF); the income tax and social security contributions already paid (see paragraph 7 above) were deducted from the tax payable. Thus, the applicant paid an additional HUF 1,492,898 (approximately 4,700 euros (EUR)) in special tax on 5 September 2011.


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

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

The applicants were both targeted in undercover operations designed to investigate bribe-taking launched by the police under sections 6 and 8 of the Operational-Search Activities Act of 12 August 1995 (no. 144-FZ).

The facts of each individual criminal case, as submitted by the parties, are summarised below. The factual details of the undercover operations are not in dispute and the applicants admitted that they had received the money in return for promises to render certain services. However, the applicants contested the Government’s position as to the reasons for the undercover operations and the circumstances leading to them. In particular, they contended that they had accepted the money only because the police had incited them to do so, and they would not have done it under any other circumstances.

The applicant was born in 1960 and lives in Zarechnyy, in the Penza Region. At the time of her arrest, she was working as a dermatologistvenerologist in the outpatient unit of the municipal hospital in Zarechnyy.

According to the Government, the police in Zarechnyy received confidential operational information implicating the applicant in the illegal acceptance of money for issuing and extending false sick-leave certificates. On 19 November 2007 it was decided to conduct an undercover operation targeting the applicant, with the aim of documenting her illegal activity. The police proposed Ms A. to participate in the operation as their agent.

According to the applicant, she had not been implicated in any bribetaking prior to the operation and the police had had no grounds to suspect her. On 20 November 2007 her colleague and former fellow classmate from medical school, X, had come to her office while she was seeing patients. He had been accompanied by a young woman, Ms A. He had asked the applicant to provide Ms A. with a sick-leave certificate as she had herpes on her leg. The applicant had examined the woman, confirmed the diagnosis, prescribed treatment and issued the sick-leave certificate. The applicant thought that she had recognised Ms A. as the mother of a girl she had treated on a previous occasion. On 23 November 2007 Ms A. had come to the applicant’s office by herself and the applicant had agreed to extend her sick-leave as her condition had not yet been cured. Ms A. had been given the certificate and had handed 500 roubles (RUB – 11 euros (EUR)) to the applicant. The applicant had taken the money as she thought that Ms A. was offering it as a token of appreciation for having successfully treated her daughter previously. Immediately after Ms A. had left, the police had entered the applicant’s office and asked her and the nurses who were present to show them all the money in their possession. The applicant had taken out her wallet and while the police were searching the office she had remembered about the money that Ms A. had given her. She had become frightened and had moved the money from the pocket of her uniform into her left boot, where the police eventually discovered it.

On 26 May 2008 the Zarechenskiy Town Court of the Penza Region examined the applicant’s case. The applicant admitted that she had taken the money because she had thought of it as a gift from a grateful patient. She maintained that the police had incited her to accept the money. In particular, they had sent their agent to her office together with a colleague of hers whom she had known well since their student years in medical school and at whose request she had issued the sick-leave certificate to Ms A.

Ms A. testified at the trial that on 19 November 2007 she had agreed to help the police conduct an undercover operation investigating bribetaking. She had telephoned her acquaintance X and told him that she needed a sick-leave certificate to justify her stay at home while she redecorated her flat. X had agreed to help her and she had come to the hospital outpatient unit with him the next day. She had had with her RUB 2,000 (EUR 42) in cash and a recording device given to her earlier by the police. She had given X RUB 500 (EUR 11) for his intermediary services and also RUB 500 (EUR 11) to pay the applicant, who did not examine her at the time but nevertheless issued the sick-leave certificate. On 23 November 2007 she had returned to the applicant’s office. The applicant had not examined her but had extended her sick-leave certificate for RUB 500 (EUR 11) which the applicant had placed in the pocket of her uniform.

X testified that Ms A. had repeatedly called him requesting the false sick-leave certificate. He had agreed to help her and had received RUB 500 (EUR 11) from her. He had called several doctors but they had refused to help and he had decided to ask the applicant to issue the certificate. On 20 November 2007 he had come to the applicant’s office and she had handed him the certificate for Ms A. for RUB 500 (EUR 11) without actually examining Ms A.

The police officer in charge of the undercover operation also testified at the trial. In particular, he stated that following the receipt of confidential information implicating the applicant in bribe-taking, an undercover operation had been launched to verify and to document the applicant’s unlawful activity.

On 26 May 2008 the Zarechenskiy Town Court of the Penza Region granted the prosecutor’s request to drop the charges against the applicant in relation to the episode of 20 November 2007 for lack of evidence. It found the applicant guilty of bribery committed on 23 November 2007 and imposed a suspended sentence of three years in prison with three years’ probation.

On 6 August 2008 the Penza Regional Court examined the applicant’s case on appeal and upheld the conviction. The court dismissed the plea of entrapment and held that the police had had good reason to conduct the undercover operation as they were in possession of incriminating information against the applicant which revealed a preexisting intent to commit bribery.

The applicant was born in 1951 and lives in Cheboksary, in the Chuvash Republic. At the time of his arrest, he worked as a narcology psychiatrist at a regional narcology centre.

The Government submitted that in early 2008 the police had received information which had implicated the applicant and other staff members at the regional narcology centre in the issuance of false forensic medical examination reports in return for monetary consideration. On 17 July 2008 the police decided to conduct an undercover operation in order to expose and document the applicant’s unlawful acts. One of the police officers, Mr Y., was chosen to participate in the undercover operation and to bribe the applicant into altering the results of Mr Y.’s blood test and issuing a false forensic medical report.

The applicant contested the Government’s allegations. In particular, he claimed that the incriminating information had been ambiguous and had referred to medical personnel at the local narcology centre in general. It did not specifically identify him as an individual who was taking bribes. Moreover, the police were not in possession of any complaints from persons allegedly aggrieved by his unlawful acts.

The applicant further maintained that on 18 July 2008, when he started his shift at the regional narcology centre, traffic police officers had brought Mr Y. to his office for a blood alcohol test. The applicant had conducted preliminary tests that had shown that Mr Y. was under the influence of alcohol. Mr Y. acknowledged that he had drunk some alcohol the day before. Meanwhile, the officer who had accompanied Mr Y. had stepped out of the room and Mr Y. had repeatedly asked the applicant to help him obtain a favourable blood test result as he feared that the alcohol level in his blood would exceed the legal limit and he would have his driving licence revoked. The applicant had categorically refused at first and had sent the applicant to a laboratory for a blood test in the presence of police officers. Mr Y. had then returned to the applicant’s office and resumed his requests for help. He had offered to pay the applicant and had stated that his earnings and ability to support his family depended on his having a driving licence. On 19 July 2008 the applicant had again seen Mr Y. in his office, where he had repeated his requests. The applicant had then agreed to try talking to the laboratory staff and speculated that Mr Y. would need to pay RUB 6,000 (EUR 126) or 7,000 (EUR 147) to the laboratory technician. However, the nurse working in the applicant’s office had commented that at least RUB 10,000 (EUR 210) would be needed, as the laboratory technician would not accept less. Mr Y. had then paid the applicant RUB 10,000. The applicant had used RUB 5,000 (EUR 105) to pay the laboratory technician to alter the results of Mr Y.’s blood test and had paid RUB 1,500 (EUR 32) to the nurse to ensure her confidentiality. On 25 July 2008 the applicant had received a further RUB 4,000 (EUR 84) from Mr Y. and they had agreed on an additional RUB 2,000 (EUR 42) to be paid at a later date. Immediately afterwards, the police had entered the applicant’s office, charged him with abetting bribery and arrested him on the spot.

On 29 May 2009 the Moscovskiy District Court of Cheboksary examined the applicant’s case. The applicant testified that he had at first refused to help Mr Y. with his request. He conceded that he had taken the money from Mr Y. but only because Mr Y. had described his difficult personal situation and had strongly urged and incited the applicant to help him.

Mr Y. testified that on 18 July 2008 he had consumed 200 grams of vodka in the presence of the police officers who were to participate in the undercover operation. He did not know the name of the applicant at the time. Following some documentary formalities, they all proceeded to the local narcology centre, where the applicant had first established that he tested positive for alcohol. When he and the applicant were alone, he had asked the applicant to tamper with the results of his blood test to prevent him losing his driving licence. The applicant had refused and had sent him off to the laboratory for a blood sample. He had then urged the applicant to help him out once again, had offered him money, and the applicant had at last agreed. On 19 July 2008 he had met the applicant in his office. The applicant had told him that he needed to pay RUB 6,000 (EUR 126) or 7,000 (EUR 147) to the laboratory technician. However, Mr Y. had given RUB 10,000 (EUR 210) to the applicant as the nurse in the applicant’s office had commented that the technician would not take less than that. The applicant had later informed him that the technician would modify the test results accordingly. On 25 July 2008 he had paid RUB 4,000 (EUR 84) to the applicant in addition to the money given earlier and had agreed to pay a further RUB 2,000 (EUR 42) later, at the applicant’s request.

The police officer responsible for the undercover operation testified that in early 2008 the police had received information implicating the applicant and other staff members at the regional narcology centre in bribetaking. In July 2008 an undercover operation had been planned and launched with the participation of one of the police officers, Mr Y. In the course of the operation, the applicant had agreed to tamper with the results of a forensic medical test in return for financial remuneration from Mr Y. The undercover operation had been both audio-recorded and videotaped and a body search of the applicant at the end of the operation had revealed that he had marked banknotes on his person.

On 29 May 2009 the Moscovskiy District Court of Cheboksary convicted the applicant of abetting bribery and sentenced him to imprisonment for two years and six months and to a three-year ban on federal and municipal employment. The court dismissed the applicant’s plea of entrapment in its entirety as it found that the police had conducted the undercover operation in a lawful manner. The applicant appealed, pleading police incitement to commit the offence of which he was convicted.

On 30 July 2009 the Chuvash Regional Court found the applicant’s entrapment claim unsubstantiated and upheld his conviction on appeal.


Preliminary objection joined to merits and dismissed (Art. 34) Individual applications;(Art. 34) Victim;Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect)

André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Gabriele Kucsko-Stadlmayer

The applicant was born in 1950 and lives in Batumi.

On 16 February 2004 the applicant’s son, G.B., fell off a crane while fixing electric cables. He was admitted to the intensive care unit of Batumi Hospital No. 1 (“the hospital”). His injuries included a fractured skull and brain damage.

On 28 February 2004 doctors observed that G.B. had gastrointestinal bleeding and he was given the relevant treatment. On 5 March 2004 he was transferred to a general medical ward as there had been an improvement in his condition.

On 6 March 2004 G.B.’s state of health deteriorated and he was transferred back to the intensive care unit because of a bleeding duodenal ulcer. Urgent surgery was performed on 10 March 2004 to stop the bleeding, but he died on 14 March 2004.

It appears from the criminal case files that the applicant refused to allow an autopsy of G.B.’s body.

On 17 February 2004 the hospital informed the Batumi police that G.B. had been admitted with traumatic injuries. An investigator visited the hospital but was unable to question him in view of his state of health.

On 24 March 2004 the investigator returned to the hospital to enquire about the incident of 16 February 2004 (see paragraph 6 above) and was informed that the applicant’s son had died. An investigation was launched into G.B.’s death and the applicant was questioned the following day.

On 2 April 2004 the investigator ordered an examination by a panel of experts of the Forensic Bureau under the Ministry of Labour, Health and Social Affairs (“the forensic bureau”) of the Ajarian Autonomous Republic (“AAR”) in order to determine the exact cause of G.B.’s death. The examination was carried out between 6 April and 18 June 2004. The report that followed (“report no. 9-k” or “the first report”) stated as follows:

“1. As ... no autopsy was performed upon [G.B.’s] death, the exact cause of his death is unknown to the ... panel [even though] the [related] medical records indicate abdominal bleeding ...

We consider that a medical error was committed with respect to G.B.’s treatment in terms of the timing of the surgery, which was caused by an incorrect assessment of the clinical, endoscopy and laboratory data.”

On 23 June 2004 a criminal medical negligence case was opened against the relevant doctors of the hospital, in which the applicant was granted victim status.

The experts of the forensic bureau who had participated in the panel examination (see paragraph 12 above) were questioned as part of the investigation. The majority confirmed the earlier findings, stating that the therapeutic treatment had been adequate, but an assessment of the delay in surgery was the exclusive competence of a surgeon on the panel. The latter reiterated the findings of the report that the surgery had been delayed in view of several previously registered relapses of bleeding. He added however that this might not have made any difference to the fatal outcome.

The head of the expert panel further stated that a conclusive finding on the exact cause of death could not be reached without a forensic examination of the body.

On 7 July 2004, relying on the findings of the expert panel, a prosecutor applied to the first-instance court for permission to exhume G.B.’s body in order to determine the exact cause of his death. The request was granted on 8 July 2004.

On 14 July 2004 the applicant refused to allow the exhumation despite being warned of its importance for the case.

On 2 August 2004 the case was closed as the prosecuting authority was unable to establish a causal link between the alleged medical negligence and G.B.’s death without an exhumation of his body.

On 4 August 2004, relying on the findings of the panel of experts in report no. 9-k (see paragraph 12 above) the Batumi city prosecutor wrote to the Minister of Labour, Health and Social Affairs of the AAR. He noted that despite the closure of the investigation, the family’s resistance to allow an exhumation of the body to determine the precise cause of death, and the inability to establish criminal responsibility on the part of the doctors in question, the conclusion of the panel of experts that a medical error had been committed in the course of G.B.’s treatment called for “the implementation of adequate measures to prevent similar violations.”

On 27 September 2004, referring to the findings of the prosecutor and the panel of experts in report no. 9-k concerning the medical error committed in the course of G.B.’s treatment, the director of the hospital dismissed the neurosurgeon who had been in charge of G.B.’s treatment (მკურნალი ექიმი) and reprimanded two intensive care specialists and a surgeon.

On various dates the applicant asked for the investigation to be reopened.

On 1 August 2006 the prosecutor’s office granted the applicant’s request and reopened the investigation under Article 130 § 2 of the Criminal Code (the offence of abandoning a patient in distress, see paragraph 51 below).

Several witnesses were questioned, including the then director and deputy director of the hospital, who had considered the family’s resistance as grounds for not carrying out an autopsy upon G.B.’s death.

On 21 September 2006 the investigator obtained a second exhumation order from the court in order to determine the exact cause of G.B.’s death. The applicant once again refused to allow implementation.

On 4 January 2008 the prosecutor terminated the case as there was no proof causally linking the medical error with G.B.’s death. It does not appear that the applicant appealed against that decision, despite it being amenable to appeal within fifteen days of service upon the parties.

On an unspecified date the applicant lodged a claim with the Batumi City Court against the hospital, its medical staff and the Ministry of Labour, Health and Social Affairs of the AAR. She argued that her son’s death had been caused by medical negligence, namely incorrect and delayed treatment of his gastroduodenal bleeding.

Between 18 and 28 October 2004, at the request of the Batumi City Court, the Quality Control Inspectorate of the Ministry of Labour, Health and Social Affairs (“the inspectorate”) implemented an inspection of the hospital in connection with G.B.’s death, which was carried out by a panel of experts. They reached the following conclusions (“the second report”):

“The institution is carrying out medical practice without a licence in the following fields: cardiology, plastic and reconstructive surgery, proctology, urology, paediatrics, epidemiology, clinical transfusion and expert assessments of temporary incapacitation.

In relation to patient G.B., non-licensed activity was carried out in the following fields: cardiology and clinical transfusion.

Out of the 29 doctors who took part in patient G.B.’s treatment, the invited specialists ... in endoscopy and ophthalmology do not hold a licence to practise medicine. A neurosurgeon (currently dismissed from the post) and an intensive care specialist are practising medicine independently despite being ... junior doctors. The doctor ... working as a transfusion specialist is a certified paediatrician ...

... [I]t is evident that the surgery, the sole purpose of which was to definitively determine the cause of bleeding and stop it, was carried out too late. It is difficult to determine whether the scope of the surgery was adequate, as it is impossible to determine the exact location of the ulcer (there is no forensic pathology examination report concerning the body and the two endoscopy specialists reached different conclusions concerning the ulcer’s location).

It is also worth mentioning that a pathomorphological analysis of the material obtained during the surgery was not carried out...”

An undated study of the relevant medical files, ordered by the inspectorate from a professor of surgery at the Tbilisi State Medical University (“the third report”) noted the difficulty of making categorical claims in the absence of an autopsy of the body. It nevertheless pointed to a lack of adequate supervision by a surgeon, despite the relapses of abdominal bleeding, inadequacies in the choice of treatment, and a lack of appropriate diagnostic measures for the timely detection and possibly even aversion of the otherwise risky surgery. Stressing that it was conventional treatment methods that had been insufficiently explored, the report continued to note that it would be incorrect to make a categorical assertion, such as in the first report, as regards the medical error in relation to the delay in the otherwise high-risk surgery.

On an unspecified date two experts of the forensic bureau gave statements to the court and confirmed the findings of the first report that a medical error had been committed in terms of the delay in surgery. They further indicated that the cause of G.B.’s death, according to the medical records, was gastroduodenal bleeding which could have been averted by timely and adequate medical treatment.

On 20 January 2006, relying on the expert reports and the medical documentation available in the case files, the Batumi City Court ruled in favour of the applicant. It concluded that the doctors of the hospital had been responsible for a medical error resulting in the patient’s death. It further noted that the participation in the patient’s treatment of doctors not holding the appropriate medical licences reinforced the conclusion that he had not been offered adequate medical care. The court took the decision of the hospital director of 27 September 2004 dismissing the neurosurgeon in charge of G.B.’s treatment and reprimanding two intensive care specialists and a surgeon (see paragraph 20 above) as acknowledgment that medical negligence had been committed in the course of G.B.’s treatment.

The applicant was awarded 2,756 Georgian laris (GEL, approximately 1,070 Euros (EUR)) in respect of pecuniary damage. Relying on section 10 of the Patient Rights Act (see paragraph 46 below) the court also awarded non-pecuniary damages in the amount of GEL 6,000 (approximately EUR 2,331). As the contract concerning G.B.’s treatment had only been concluded with the hospital, the latter was found to be the only appropriate respondent and was accordingly ordered to pay the corresponding amount. Both the applicant and the hospital appealed, disagreeing with the court’s assessment of the facts and the scope of the award.

On 9 February 2007 the Kutaisi Court of Appeal upheld the lower court’s reasoning. It noted as follows:

“Based on an analysis of the evidence before it, the appellate court concludes that in the course of Mr G.B.’s treatment in [the hospital] the medical negligence of the medical staff (insufficient attention towards the patient, misdiagnosis) caused harm to a person’s health and eventually caused the patient’s ... death.”

The appellate court continued to note that:

“In addition to establishing that harm was caused to a person’s health as a result of the medical negligence of the [hospital] staff, it can also be established from the case files that [the hospital] was carrying out unlicensed activities in a number of medical fields and at the same time some of the medical staff did not have authorisation to practise medicine independently, in violation of the requirements of the [relevant legislation]...”

The Kutaisi Court of Appeal further found the hospital to be the only appropriate respondent to pay the damages in respect of the medical negligence of the doctors. As regards who should be held responsible for the hospital and its doctors operating without the necessary licences, it was noted that:

“The Ministry of Health of the AAR cannot be held responsible in the present case ... for [the hospital] operating in certain medical fields without the requisite licences considering that, in accordance with section 54 of the Health Care Act, the issuance of such licences is [the exclusive competence] of the Ministry of Health of Georgia.

Accordingly, the claim for ... pecuniary and non-pecuniary damages with respect to the Ministry of Health of the AAR is groundless.”

The appellate court upheld the lower court’s award of nonpecuniary damages and increased the amount of pecuniary damages to GEL 6,953 (approximately EUR 2,701).

Both parties appealed, disagreeing with the court’s assessment of the facts and the scope of the award.

On 14 May 2008 the Supreme Court adopted a decision without holding an oral hearing. Referring to the evidence available in the case files, the court found that despite the fact that the exact cause of death could not be determined without an exhumation of the body, the case files confirmed that gastroduodenal bleeding was the cause of death and that a medical error had been committed in terms of the surgery and an incorrect assessment of the various data.

The Supreme Court further upheld the lower courts’ findings that the hospital had been carrying out unlicensed medical activities and noted as follows:

“It is confirmed ... that [the hospital] was carrying out unlicensed medical activities in the following fields: cardiology, plastic and reconstructive surgery, proctology, urology, paediatrics, epidemiology, clinical transfusion and expert assessments of temporary incapacitation. Unlicensed medical activities performed in respect of Mr G.B. were in the following fields: cardiology and clinical transfusion. Of the medical staff invited to treat ... Mr G.B. ... the endoscopy specialist and ... an ophthalmologist did not have a certificate [authorising them] to practise medicine. [Those] appointed as junior doctors ... the neurosurgeon (currently dismissed) and ... the intensive care specialist were practising medicine independently. The doctor ... certified as a paediatrician was working as a transfusion specialist. The Court of Cassation upholds the views of the appellate court that this gave rise to a violation of ... the Health Care Act and ... the Medical Practice Act.”

The Supreme Court noted that the Ministry of Health of Georgia was the entity responsible for issuing licences to medical institutions and that the applicable legislation did now allow medical institutions and individual doctors to practise medicine without requisite licences (see paragraphs 4445 below). It did not elaborate on whether responsibility could be attributed to the respondent Ministry of Health of the AAR.

The award of pecuniary damages in the amount of GEL 6,953 (approximately EUR 2,701) was upheld.

As regards the question of non-pecuniary damages, the Supreme Court found that domestic law did not entitle the applicant to receive an award for non-pecuniary damage for the death of her son. In particular, it observed as follows:

“Under Article 1007 of the Civil Code, harm caused to a person’s health during his or her treatment at a medical institution (a result of surgery or misdiagnosis etc.) shall be compensated on a general basis. In accordance with Article 413 of the Civil Code, monetary compensation for non-pecuniary damage may be requested only in the cases expressly provided for by law, in the form of reasonable and fair compensation. The Civil Code does not define moral (non-pecuniary) damage... Under Article 413 of the Civil Code, not all types of moral harm (mental suffering) shall be compensated, even if there is no doubt as to its existence, only those for which compensation is expressly provided for by law... Accordingly, in accordance with the practice of the Supreme Court of Georgia, non-pecuniary damage resulting from the infringement of the right to life of a person’s husband, child or other relative shall not be compensated as it is not expressly provided for by law...”

The Supreme Court disagreed with the lower court’s interpretation that the right to claim non-pecuniary damages under section 10(a) of the Patient Rights Act also applied to the death of a relative, and noted that that right was strictly personal. The Supreme Court therefore rejected the applicant’s claim for non-pecuniary damages, noting that:

“It is undisputed that a parent is subjected to moral pain as a result of the death of a young child, but it shall not be compensated considering that it is not expressly provided for by the law in force.”


Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Uzbekistan);Violation of Article 5 - Right to liberty and security (Article 5-4 - Take proceedings);Violation of Article 5 - Right to liberty and security (Article 5-1-f - Expulsion)

Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in 1980. Prior to his arrest in 2012 he resided in Arzamas, in the Nizhniy Novgorod Region. He is currently detained in the special detention facility in Balakhna, in the Nizhniy Novgorod Region.

Until April 2011 the applicant lived in Uzbekistan. His family members, including a minor son, live in Uzbekistan. From 2001 onwards he went to Russia on several occasions, in order to earn money.

On 12 April 2011 the applicant arrived in Russia to look for employment. On 12 July 2011 the period of the applicant’s lawful residence in Russia expired.

On 24 January 2012 he was fined for failure to comply with immigration laws. He did not leave the country at that point.

On 12 June 2012 the investigator at the Department of the Interior of the Andizhan Region of Uzbekistan charged the applicant with establishing, leading or participating in religious extremist, separatist, fundamentalist or other prohibited organisations (Article 244-2 of the Uzbek Criminal Code). The applicant was accused, in particular, of membership of a banned religious extremist organisation, “the Islamic Movement of Uzbekistan”, and a terrorist organisation, “O’zbekiston Islomiy Harakati”, between late 2008 and October 2009. According to the relevant investigator’s decision, the applicant, together with his brother and two other persons, “planned to destroy the constitutional order of Uzbekistan” and then “to create an Islamic State on the territory of Nizhniy Novgorod, Russia”. For these purposes they had moved to Russia and started to “study the ideology of the head of the terrorist movement, Tohir Yo’ldoshev, and Jumaboi Khojayev, also known as Jummah Namangani”. Further, together with other members of O’zbekiston Islomiy Harakati, they had planned an attack with intent to destroy the constitutional order of Uzbekistan and other countries in order to create an Islamic State there. They had also attempted to “carry out terrorist attacks”. The investigator stated that there was sufficient evidence against the applicant, without giving further details.

On the same date, the Andizhan Town Court of Uzbekistan ordered the applicant’s arrest and his name was put on a cross-border wanted list.

On 13 September 2012 the applicant was arrested in the town of Arzamas in the Nizhny Novgorod Region, pursuant to a request by the Uzbek authorities, and was detained pending extradition.

On 12 October 2012 the Deputy Prosecutor General of the Republic of Uzbekistan submitted a formal request for the applicant’s extradition. The request contained assurances that the applicant would be prosecuted only for the offences for which he was extradited, that he would be able to freely leave Uzbekistan when he had stood trial and served any sentence, and that he would not be expelled or extradited to a third State without the consent of the Russian authorities. The Uzbek prosecutor’s office further assured its Russian counterpart that the applicant would not be prosecuted in Uzbekistan on political or religious grounds, that he would not be subjected to torture or other inhuman or degrading treatment, that he would be provided with an opportunity to defend himself, inter alia through legal assistance, and that the criminal proceedings against him would be conducted in compliance with the domestic law of the Republic of Uzbekistan. It was pointed out in the letter that all forms of inhuman and degrading treatment were prohibited in the destination country.

On 12 November 2012 the lawyer representing the applicant in the domestic proceedings filed objections against the extradition request. He argued that according to independent international observers, illtreatment was widespread in the Uzbek prison system and fair trial guarantees were not respected. Referring to the Court’s case-law on the matter, he submitted that the applicant, who was charged with a religious offence, would run a risk of illtreatment and would be deprived of the minimum fair trial guarantees if extradited to the requesting country.

On 9 April 2013 the Prosecutor General’s Office of Russia refused the Uzbek authorities’ extradition request. It appears that the decision was not appealed against, and the extradition proceedings were discontinued. The parties did not submit a copy of the decision.

By a letter of 12 August 2013 the Prosecutor’s General Office, in reply to a letter from the applicant’s lawyer, notified the applicant of the decision to refuse his extradition to Uzbekistan.

On 15 September 2012, that is, two days after the applicant’s arrest, the Arzamas Town Court authorised his detention pending extradition. It appears that the decision was not appealed against.

On 12 November 2012 the Town Court extended the period of his detention to a total of six months, that is, until 12 March 2013. That decision was upheld by the Nizhniy Novgorod Regional Court on appeal on 11 December 2012. Until 11 March 2013 the applicant was detained in remand prison FKU SIZO-3 in the Vadskiy District of the Nizhniy Novgorod Region.

On 11 March 2013, that is, one day before the date when he was due to be released, the applicant was transferred to the Arzamas police station. On 12 March 2013 the authorised term of his detention pending extradition expired, and the Arzamas town prosecutor ordered the applicant’s release.

According to the applicant, at midnight on 12 March 2013 he was let out into the internal yard of the police station. He was not provided with any documents confirming his release from custody. Immediately afterwards, at 0.05 a.m. on 13 March 2013, he was arrested in the yard by officers of the local department of the Federal Migration Service in connection with a violation of immigration laws (Article 18-8 of the Code of Administrative Offenses (“the CAO”)) and taken into custody.

The Government submitted that “according to the [case] materials on the applicant’s detention” he had had to be released from custody at 7 p.m. on 12 March 2013.

According to the custody register at the Arzamas police station, the applicant was released from detention at 11.55 p.m. on 12 March 2013, on account of the expiry of the time-limit for his detention.

According to the Arzamas Town Court’s decision of 13 March 2013 (see paragraph 28 below), the applicant was arrested at 0.05 near the Arzamas police station in the course of an “extraordinary check” by the Arzamas unit of the Nizhniy Novgorod Regional Department of the Federal Migration Service.

At 1.20 a.m. on 13 March 2013 an officer of the Arzamas Department of the Interior drew up a record of the applicant’s arrest “for the establishment of the circumstances of an administrative offence following a request by the Arzamas Department of the Federal Migration Service.” At some point in the morning of 13 March 2013 an administrative-offence record was drawn up in respect of the applicant in connection with his failure to leave Russia after 12 July 2011. At some point on 13 March 2013 the applicant was interviewed by the head of the Arzamas unit of the Federal Migration Service and submitted, inter alia, that he had not applied for refugee status in Russia and had not had valid reasons not to leave Russia.

On 13 March 2013 the Arzamas Town Court of the Nizhniy Novgorod Region examined the applicant’s case. During the hearing the applicant acknowledged that he had not left Russia after 12 July 2011, contrary to the requirements of the immigration laws. However, his representative submitted that, in accordance with Article 28.1 of the CAO, administrative proceedings should have been brought against him immediately upon the obtaining of sufficient data indicating the occurrence of an administrative offence. The applicant had been arrested on 13 September 2012, and by 14 or 15 September 2012 the authorities had been in possession of sufficient information on the applicant’s immigration status. However, administrative proceedings had been brought against him only six months later, once the term of his detention pending extradition had expired. In these circumstances, the defence considered that the administrative removal of the applicant, if ordered, would amount to a form of extradition in disguise.

The defence further referred to reports by the UN, international nongovernmental organisations, and the Court’s case-law, arguing that the applicant was wanted by the Uzbek authorities in connection with charges relating to a religious offence, and thus he would run a risk of illtreatment if expelled to Uzbekistan.

Finally, they submitted that in any event his expulsion could not be ordered, since refugee-status proceedings were pending in respect of him. They pointed out in this connection that he had appealed against the refusal of 7 December 2012 to grant him refugee status (see paragraph 36 below) and had received no response by the time of the events.

The Arzamas Town Court found that the applicant had been residing in Russia in breach of the immigration laws. The court established that at 0.05 a.m. on 13 March 2013 at the address of the Arzamas police station “the applicant had failed to leave the Russian Federation after the expiry of the registration term, that is, 12 July 2011”. The court established that there were no circumstances precluding his administrative removal from Russia. The court dismissed the applicant’s argument as regards the refugeestatus proceedings, observing that “according to the letter of 23 January 2013 by the Russian Federal Migration Service (“the Russian FMS”), his relevant application had been rejected” (see, for the contents of the letter, paragraph 38 below). It also noted, without giving further details, that the defence’s submissions as regards the risk of torture in Uzbekistan “could not be accepted as wellfounded”. In accordance with Article 18 § 8 of the CAO the court found the applicant liable to pay a fine in the amount of 3,000 Russian roubles (RUB) and ordered his administrative removal from Russia. Citing the provisions of the CAO on controlled forced removal (see paragraphs 50-51 below), the court decided that the applicant should be detained in a special detention centre at the Nizhniy Novgorod Regional Department of the Interior («специальный приемник ГУВД по Нижегородской области») until his administrative removal. No specific timelimit for the applicant’s detention was given by the court.

On 22 March 2013 the Court indicated to the Government, under Rule 39 of the Rules of Court, that the applicant’s administrative removal and extradition should be suspended until further notice.

On 19 March 2013 the defence appealed against the decision of 13 March 2013. In addition to their initial arguments, they submitted that the first-instance court had incorrectly established the facts of the case, including in respect of the applicant’s arrest. Contrary to the case materials, they submitted, on 12 March 2013 the applicant had only been let out into the yard of the police station and, in any event, he had not been provided with any documents confirming his release from custody. Therefore, at 0.05 a.m. on 13 March 2013 he had not been at liberty and thus had been unable to deliberately “avoid leaving Russia”. They further maintained that the applicant’s expulsion would amount to his “extradition in disguise”. The extradition proceedings in respect of him had been pending at the material time. The applicant, if removed to Uzbekistan, would be unable either to challenge any decision taken within the extradition proceedings, or to benefit from the minimum guarantees in such proceedings.

They also stated that, contrary to the court’s findings, no final decision in the refugee-status proceedings had been taken on 25 January 2013, as clearly confirmed by the letter of the Russian FMS. Where an application for refugee status was made, domestic law prohibited the expulsion of an applicant in the absence of a final decision on his refugee status. They stressed that the first-instance court had failed to make any assessment of their ill-treatment argument, and reiterated their submissions as regards the risk of ill-treatment if the removal order were to be enforced. Finally, they submitted that the decision ordering the applicant’s detention did not contain any time-limit and was therefore in breach of Article 5 of the Convention.

On 26 March 2013 the Nizhniy Novgorod Regional Court upheld the administrative removal order, finding that the first-instance court had correctly established the facts of the case, assessed the admissibility of various items of evidence and applied the domestic law. The appeal court upheld the administrative sanction as lawful and found no grounds to amend it. As regards the applicant’s argument about the authorities’ failure to bring the administrative proceedings against him in a timely manner, the court noted that the administrative-offence record had been drawn up in accordance with the domestic procedure. The court found nothing in the applicant’s submissions to suggest that his family members had been persecuted in Uzbekistan. Finally, it noted the applicant had not been granted refugee status in Russia. The administrative removal order became final.

After 12 March 2013 the applicant was detained in the special detention facility in Arzamas. At some point before 25 November 2013 he was transferred to the special detention facility in Balakhna, in the Nizhniy Novgorod Region. He remains detained there to date.

On 14 September 2012, when interviewed by the Arzamas town prosecutor after his arrest, the applicant stated that he had moved to Russia to look for work. Since April 2011, the date of his arrival in Russia, he had not registered as a foreign national temporarily residing in the country. He stated that he had not been persecuted on political grounds in Uzbekistan, and had not applied for refugee status in Russia. He had learned that a criminal case was pending against him in his home country from his parents, since at some point local police had searched their home. However, he had been unaware of the nature of the charges and the basis on which the criminal case had been brought against him until his arrest in Russia. He made similar submissions when interviewed by the Vasdkiy district prosecutor of the Nizhniy Novgorod Region on 27 September 2012.

On 2 October 2012 the applicant lodged an application for refugee status with the Nizhniy Novgorod FMS on the ground of fear of persecution on account of fabricated charges relating to a religious offence. He stated that he did not have any religious beliefs. However, he had learned after his arrest that he had been charged with a religious offence. He submitted that the accusations against him were unfounded. He feared that in Uzbekistan he would be tortured, forced to incriminate himself and sentenced to imprisonment for religiously motivated anti-State offences he had not committed.

On 7 December 2012 the Nizhniy Novgorod FMS rejected the application. They referred to the applicant’s own submissions, as well as the results of checks conducted by the local Department of the Interior and FMS. It also noted that the Nizhniy Novgorod Regional Department of the Federal Security Service had recommended that the applicant should not be granted refugee status. The decision also contained a reference to an unspecified undated report on the State system and the social and economic situation in Uzbekistan. It was stated in the report, inter alia, the Uzbek authorities exercised close control over the religious life of the population, that Uzbekistan had ratified several UN human rights treaties and that the use of any unlawful investigative methods was prohibited in the requesting country. The Nizhniy Novgorod FMS observed, with reference to the applicant’s own submissions, that he had applied for refugee status after learning, at the time of his arrest, that he had been placed on the wanted list. Thus, there were grounds to consider the applicant’s request as an attempt to avoid extradition. The Department further found that the applicant had not had any problems with the authorities in his home country prior to his departure to Russia. Overall, the Nizhniy Novgorod FMS concluded that the applicant had not produced any “objective evidence to the effect that he would be persecuted on national, religious or political grounds” and that he had left Uzbekistan in order to look for employment, that is, for a reason falling outside the scope of an admissible refugee request.

On 25 December 2012 the applicant lodged an appeal against the refusal with the Russian FMS office, referring to the risk of illtreatment and imprisonment in his home country. He cited reports by various NGOs for 2011-2012 pointing to serious human rights problems in Uzbekistan and stated that the Nizhniy Novgorod FMS had omitted to take into account the political and religious nature of the charges against him and to analyse the specific circumstances of his case.

The Russian FMS received the applicant’s appeal on 15 January 2013 and by a letter of 23 January 2013 advised him that it would be considered upon receipt of documents from the Nizhny Novgorod FMS.

On 11 February 2013 the Russian FMS dismissed his appeal. It upheld the decision of the Nizhniy Novgorod FMS, finding that the latter had examined all the relevant individual, social and political aspects of the case and had reached a well-founded conclusion. The Russian FMS found that there was no evidence that the criminal proceedings against the applicant “had a political background”. It noted that neither the applicant nor his wife, child, mother or father, who resided in Uzbekistan, had received any threats or been subjected to any kind of persecution, and reiterated that the applicant had only applied for refugee status after his arrest. It further found that the applicant did not fit the definition of a refugee, since a fear of criminal prosecution did not constitute a ground for granting refugee status.

By a letter of 12 February 2013 the Russian FMS sent its decision to the applicant by post at the address of the remand centre in Arzamas. Having received the decision on 15 March 2013, he challenged it on 2 April 2013 before the Basmannyy District Court of Moscow. He argued, in particular, that the Russian FMS had failed to address his arguments or to assess the circumstances of his case. He reiterated, in addition to his initial submissions, that the thrust of his grievance was not simply the fact of the criminal prosecution, but the fear of being subjected to torture in detention in Uzbekistan with a view to a confession being extracted in respect of offences he had not committed.

On 18 June 2013 the Basmnnyy District Court dismissed the appeal and endorsed the Russian FMS’s decision as lawful, noting the applicant’s failure to adduce “convincing arguments to support his allegations of fear of being persecuted for reasons of race, religion, nationality or membership of a particular social group”. The court noted from the questionnaire completed by the applicant on the date of the submission of his application that he had not been a member of any political, religious or military organisations in his home country and had not had any problems with the authorities prior to his departure for Russia. Nothing in the statement of charges drawn up by the Uzbek authorities revealed any political motivation. The court reiterated that the applicant’s family members were living in Uzbekistan and were not subject to any kind of persecution. The actual purpose of his application was to avoid criminal prosecution in Uzbekistan. Further, the applicant had not complained of a risk of persecution in Uzbekistan and had not expressed his wish to remain in Russia as a refugee until after his arrest. Moreover, there existed no medical reasons precluding his departure from Russia. The court concluded that the applicant did not meet the “refugee” definition.

The court also refused the defence’s request to have Ms Ryabinina questioned as an expert on the human rights situation in Uzbekistan.

The applicant appealed, reiterating his earlier arguments and submitting that the first-instance court had failed to assess the risk on the basis of all the available information, as well as to address his counterarguments to the Russian FMS’s decision. He maintained that the charges against him were politically motivated and emphasised the risk of illtreatment, with extensive references to reports by Human Rights Watch and Amnesty International, as well as to the Court’s case-law. As regards the court’s finding that none of his family members had been persecuted, he noted that on 12 March 2013 his brother had also been arrested in Arzamas, but had then been released because his extradition had been refused by the Russian authorities.

On 24 October 2013 the Moscow City Court upheld the judgment of 18 June 2013. The applicant in his observations of 25 November 2013 provided a copy of the information note on the case progress from the city court’s website containing the case references and indicating that the appeal had been rejected and the judgment had been upheld. The parties did not submit a copy of the decision.

In their letter of 4 April 2013 the Government submitted that at some point the applicant had applied for temporary asylum in Russia, and on 23 January 2013 the Nizhniy Novgorod FMS had refused his application, the refusal being upheld on 18 February 2013 by the Sormovskiy District Court of Nizhniy Novgorod.

The applicant stated that he had not applied for temporary asylum and enclosed a letter from the Nizhniy Novgorod FMS of 29 May 2013 confirming that the authority had not received any such application from him.


Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani

The applicant, Mr Khalil Nazari, is an Afghan national who was born in 1986 and lives in Copenhagen. He is represented before the Court by Mr Niels-Erik Hansen, from the “Documentation and Advisory Centre on Racial Discrimination” (DACoRD), an NGO in Copenhagen,

The Danish Government (“the Government”) were represented by their Agent, Mr Tobias Elling Rehfeld, from the Ministry of Foreign Affairs, and their Co-agent, Mrs Nina Holst-Christensen, from the Ministry of Justice.

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

The applicant was born in Afghanistan. In 2001, when he was 15 years old, he was granted asylum in Denmark as an unaccompanied minor. In that connection he was provided with a travel document in accordance with Article 28 of the 1951 UN Convention Relating to the Status of Refugees.

He acquired proficiency in the Danish language and eventually graduated from High School. Currently he is studying at university to become a civil engineer.

The applicant maintained that on leaving Afghanistan, he lost contact with his family. Ten years later, in 2011, he regained contact with his parents and siblings, who had been granted residence permits in Canada.

In the meantime, on 12 January 2007, the applicant applied for naturalisation. His request was refused on 27 May 2008 because he did not fulfil all the criteria for being granted Danish nationality.

Based on a renewed application, on 6 October 2010 the then Ministry for Refugees, Immigrants and Integration (Ministeriet for flygtninge, indvandrere og integration) informed the applicant that his name would be on the next bill of naturalisation, which was expected to be presented in Parliament by the end of April 2011 and to be passed by the Parliament in July 2011. It was stated that, before the passing of the law, the Ministry would reassess whether he still satisfied the criteria for obtaining Danish citizenship (on 3 October 2011 the tasks pertaining to nationality were transferred to the Ministry of Justice. Henceforth, both ministries will be referred to as “the Ministry”).

On 15 April 2011 the Ministry informed the applicant that he was not eligible to have his name on the said bill and that he could not at that time become a Danish national. His name was therefore not listed on the bill introduced to Parliament on the same day. The applicant was informed that he could not expect to have a re-application examined within the next five years. Referring to the principles set out in section 24, subsection 3, and section 15 of the Public Administration Act (Forvaltningsloven), it was stated that no grounds could be given for the decision. No appeal lay against the decision by the Parliamentary Committee on Naturalisation.

The applicant noted that section 21 of Circular Letter No. 61 of 22 September 2008 on Naturalisation contained a possibility of excluding an applicant from being listed in a naturalisation bill for a specific period if the National Security Service (Politiets Efterretningstjeneste, PET) considered that he or she was a danger to national security. Accordingly, since he was excluded from re-applying for five years, he was convinced that the Minister of Justice had received information from the National Security Service that the applicant was considered to be a danger to national security, and that therefore a security assessment had been submitted to the Parliamentary Committee on Naturalisation with a recommendation that the applicant be excluded from being listed in a naturalisation bill for five years. In his view, though, there was no reason to consider him a danger to national security.

Before the Court, the Government have submitted that they can neither confirm nor deny that the decision to exclude the applicant from being listed in the naturalisation bill was taken on the basis of section 21 of the said Circular Letter.

On 31 May 2011 the applicant requested that the National Security Service grant him access to the documents concerning him, which was refused on 1 July 2011 with the information that the National Security Service would neither confirm nor deny whether it had any information about him.

The applicant complained about that decision to the Ministry of Justice, which upheld it on 16 February 2012.

In the meantime, the applicant’s request of 22 August 2011 that the Ministry grant him access to the documents concerning him was granted on 12 December 2011 for the major part. A few documents were withheld with reference to the “excepted information” set out under section 15, subsection 1, of the Public Administration Act (Forvaltningsloven), which includes considerations for national security or defence.

The applicant did not bring the refusal to grant him Danish nationality, or the refusals to grant him access to information, before the Danish courts.

Article 44 of the Constitution of 1849 set out that “no alien shall be naturalised except by an Act of Parliament”.

Article 63, section 1, of the Constitution reads as follows:

“The courts of justice shall be empowered to decide any question relating to the scope of the executive’s authority; though any person wishing to question such authority shall not, by taking the case to the courts of justice, avoid temporary compliance with orders given by the executive authority.”

Under section 6 (1) of Act No. 422 of 7 June 2004 on Danish nationality, Danish nationality may be acquired through naturalisation granted by virtue of the Danish Constitution.

The procedure for applying for nationality involves an interview with the police, preparation of the bill by a Ministry (currently the Ministry of Justice), a debate and a decision by the Parliamentary Naturalisation Committee, which is made up of seventeen members of Parliament, and finally the passing of the bill by Parliament.

The debates and votes of the Parliamentary Naturalisation Committee are confidential and only Committee members can participate in the meetings. The decision to grant or refuse nationality is discretionary and not subject to any form of judicial review (however, see below).

Two bills are usually passed per year, in April and October. The passing of naturalisation bills in Parliament follows the same procedure as other bills, which means three readings of the bill before it is passed by Parliament. The Act is then promulgated in the Danish Law Gazette (Statstidende).

The initial examination of applications for naturalisation by Act of Parliament is carried out by the Ministry of Justice. When preparing naturalisation bills and assessing whether applicants can be listed in a naturalisation bill, the Ministry is obliged to adhere to the Guidelines on Naturalisation contained in a circular (Cirkulære om dansk indfødsret ved naturalisation), in force at the relevant time, as agreed by the majority in Parliament (Circular Letter No. 61 of 22 September 2008 at the relevant time). The guidelines stipulate the requirements that must be satisfied in order for applicants to be listed in a naturalisation bill without prior submission of their application to the Parliamentary Naturalisation Committee. Applicants listed in a naturalisation bill therefore have either satisfied the requirements of the Guidelines or have been exempted from certain requirements following the submission of their application to the Committee. On this basis, the parties in Government who agreed on the Guidelines will vote in favour of the Government’s naturalisation bill at the readings of the bill in Parliament. If an applicant fails to meet one or more of the requirements set out in the Guidelines on Naturalisation, the Ministry will refuse the application in accordance with the authorisation given to the Ministry by Parliament. The decisions by the Ministry of Justice to submit or refuse to submit cases to the Parliamentary Naturalisation Committee, as well as the decisions of the Committee, are not made pursuant to a statute, but are classified as preparation of a statute. Hence the procedure cannot be characterised as an administrative process. Nevertheless, in resolution no. 36 of 15 January 1998, Parliament instructed the Ministry of Justice to comply with international conventions, and the rules of the Public Administration Act and other principles of public administration to the extent possible, when preparing naturalisation bills.

By virtue of Article 63, section 1, of the Constitution, review by the courts of the administration’s general and specific decisions is a common legal remedy. The courts cannot review the exercise of administrative discretion (see, for example, Weekly Law Report (Ugeskrift for Retsvæsen) for 1973, p. 897 (U.1973.897H)), but they can conduct a judicial review of the competence of the authority, the observance of formal rules, and the legal basis of an administrative decision, including whether it is in accordance with Denmark’s obligations under the Convention.

Thus, in various cases the Danish courts have reviewed whether the administrative authorities’ decision was in accordance with Article 8 of the Convention, alone or taken in conjunction with Article 14 (see, for example, Biao v. Denmark [GC], no. 38590/10, §§ 25-30, 24 May 2016; Osman v. Denmark, no. 38058/09, §§ 19-21, 14 June 2011 and Priya v. Denmark (dec.), 13594/03, 6 July 2006, referring to the Weekly Law Review 2004, p. 1765, concerning respectively family reunification, the lapse of a residence permit and a deportation order; moreover, although a decision by the Refugee Appeals Board (Flygtningenævnet) is final pursuant to section 56, subsection 8, of the Aliens Act (Udlændingeloven), an alien may, by virtue of Article 63 of the Danish Constitution, bring the case before the courts for a review of the legality of the administrative decision, including the compliance with the Convention: see, inter alia, Panjeheighalehei v. Denmark (dec.), 11230/07, 13 October 2009, referring to numerous Supreme Court judgments from 1997 to 2007).

On 13 September 2013, the Danish Supreme Court (Højesteret) passed a judgment (U.2013.3328H) concerning the right to judicial review under Article 63 of the Constitution relating to the process of granting nationality. The Supreme Court stated, among other things:

“The Supreme Court agrees with the view that the Minister’s decisions to refrain from listing an applicant in a naturalisation bill or to refrain from submitting an application to the Parliamentary Naturalisation Committee are elements of the legislative process. Article 63 of the Constitution, according to which the courts are empowered to decide any questions relating to the scope of the executive authority, does not apply to such decisions as no authority is exercised by the executive, see in this respect the Supreme Court’s judgment, reproduced on page 903 of the Danish Weekly Law report (UfR) 1972.

Denmark has acceded to the European Convention on Human Rights and several other international conventions that may be significant to the processing of applications for or to the grant of nationality. Accordingly, Denmark has assumed a number of obligations under international law, compliance with which is assumed, also in the preparatory works of the Danish Nationality Act (Indfødsretsloven), when Parliament and the Parliamentary Naturalisation Committee exercise their discretion as to whether Danish nationality should be granted to an applicant, see in this respect Bill L 69, Official Report on Parliamentary Proceedings (Folketingstidende) 1998-99, supplement A, column 1794. An applicant who has not been included in a naturalisation Act can therefore request the courts to review whether obligations under international law have been breached, and whether the applicant has a claim for damages or compensation in that connection. Such judicial review will not be contrary to the authority of the Government or Parliament under Articles 21 and 41(1) of the Danish Constitution, regarding the introduction of bills, or under Article 44(1) on naturalisation by law. By contrast, these provisions precluded any judicial review of claims to the effect that the applicant must be listed in a naturalisation bill or must be granted nationality by an Act.” ...

In the case in question, the Supreme Court ruled in favour of the appellant and remitted the case to the High Court for retrial on the merits (whether the appellant, on the ground of his diagnosis (PTSD), had suffered discrimination in violation of Article 14 of the Convention in conjunction with Article 8).


Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

Following the delivery of the judgment by the Court in the applicant’s case, the applicant lodged an application with the Golovinskiy District Court of Moscow, asking it to review the judgment of 30 October 2012 as upheld on 12 March 2013 by the Moscow City Court whereby the District Court had revoked the applicant’s title to the flat located at 12-5 Ulitsa Lavochkina, Moscow, ordered his eviction and returned the flat to the City of Moscow.

On 10 April 2017 the District Court dismissed the applicant’s application. The applicant appealed. The parties have not informed the Court of the outcome of the proceedings.


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

Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra

The applicant was born in 1983 and lives in Moscow.

On 21 August 2007 the applicant’s wife, Ch., gave birth to a son, A.

The family lived at the applicant’s flat, where A. had his registered residence. He received ongoing paediatric care at the neighbourhood children’s clinic and attended a neighbourhood nursery school.

In November 2009 Ch. decided to leave the applicant. She moved back to her parents’ residence and took A. with her. A. has been living with her ever since.

On 9 March 2010 the applicant applied to the Justice of the Peace of the 339th Court Circuit of the Vostochnoe Dergunino District of Moscow for a residence order under which A. would live with him. He was instructed to make corrections to his claim, which he did on 8 April 2010. On the same day the case was transferred to the Timiryazevskiy District Court of Moscow. It registered the case on 26 April 2010 and scheduled the first hearing for 13 May 2010.

On 26 April 2010 Ch. lodged a counterclaim, asking for a residence order under which A. would live with her, and for an interim measure pending the proceedings. She claimed, in particular, that there was a risk that the applicant might kidnap A. and take him to Belarus, where his stepfather had a house. She stated that he had already tried to take A. away from her and had in particular attempted to pick him up from the boy’s nursery school.

On the same day, 26 April 2010, the Timiryazevskiy District Court allowed Ch.’s request for an interim measure and forbade the applicant from contacting A. or picking him up from the nursery school without Ch.’s prior permission. It held as follows:

“The subject matter of the case is the residence of a child [A.] born in 2007. The parents have been unable to come to an agreement on this matter. The child is now living with his mother [Ch.]. The court therefore considers that the requested interim measure would be proportionate to the claim. Otherwise, failure to take interim measures might complicate or make impossible the execution of the forthcoming judgment.”

The applicant learned of the interim measure on 30 April 2010. On that day he came to visit A. at the nursery school and the teachers refused to let him see the boy, citing the interim order.

In April and May 2010 the Lyublino and Dergunino childcare authorities examined the applicant’s and Ch.’s flats and found their living conditions satisfactory and suitable for a small child.

The first hearing was scheduled for 20 May 2010 but it was adjourned until 24 May 2010 at the applicant’s request. The next hearing was scheduled for 9 June 2010 but it was also adjourned until 23 June 2010 for the purposes of “obtaining evidence”.

On 22 June 2010 the Lyublino childcare authority issued its report on the case. It considered that, by reason of his very young age, A. should reside with his mother. The childcare authority considered that it was particularly important for a child to be raised by the mother until the age of five or six. A lack of maternal care during that period, and in particular during the behavioural crises that a three-year-old typically undergoes, could result in the child developing negative character traits, such as stubbornness, surliness, hysterical reactions and inadequate social adaptation. The residence arrangements could be reconsidered after A. had reached the age of five or six years.

On 29 June 2010 the Timiryazevskiy District Court ordered an expert psychological examination and adjourned the proceedings. The experts were asked their opinion on what residence arrangements would be in A.’s best interests.

On 6 July 2010 the applicant lodged an appeal with the Moscow City Court against the decision of 29 June 2010 ordering an expert examination. The appeal hearing was scheduled for 29 July 2010 but was adjourned until 17 August 2010 because the parties did not appear. On 17 August 2010 the Moscow City Court upheld on appeal the decision of 29 June 2010. The case file was sent to the experts on 8 September 2010.

Meanwhile, as Ch. had prevented him from seeing A., the applicant applied to the childcare authority for a contact order. On 15 July 2010 the childcare authority rejected the application, referring to the interim measure imposed by the Timiryazevskiy District Court.

On 9 August 2010 the District Court received by post the applicant’s appeal, dated 6 May 2010, against the decision of 26 April 2010 ordering the interim measure. The applicant submitted that there had been no justification for the interim measure, which had been motivated solely by the prevailing belief that a child should be raised by the mother rather than the father. He further submitted that the interim measure was contrary to A.’s best interests. A lack of contact with his father and the paternal family – A.’s grandparents, uncle, aunt and cousins – to whom he was very attached might cause A. psychological trauma. It might, moreover, result in A.’s estrangement from his father or, given his very young age, even his forgetting his father altogether. It also created a risk that Ch. might turn A. against his father. It might in turn mean that the results of any future expert examinations – and, by extension, any future judicial decision on the child’s residence – would be biased against the applicant. Lastly, the applicant submitted that the interim measure breached his right to maintain contact with his son.

On 17 September 2010 the Justice of the Peace of the 133th Court Circuit of the Mytichshinskiy District of the Moscow Region convicted Ch. of assault and battery, a criminal offence under Article 116 of the Criminal Code. In particular, the court found it established that on 20 June 2010 the applicant had approached Ch. and A. while they were playing at the local public beach and had hugged his son. Ch. had immediately snatched the boy away from him and had hit the applicant at least two times, causing him bodily injuries, before carrying the boy away. A fine was imposed on her.

On 11 November 2010 the experts issued their report. They found that it would be beneficial for A. to maintain contact with both parents. He was equally attached to both of them. Both parents were equally capable of raising the child. The serious conflict currently persisting between the parents could negatively affect A.’s psychological development.

On 12 November 2010 the proceedings were resumed. Hearings were scheduled for 24 November and 7 December 2010 but could not take place because some of the participants did not appear.

On 23 December 2010 the Dergunino childcare authority issued its report on the case. It found that A. should reside with his mother, referring to A.’s young age and the fact that he had lived with his mother for some time already and was attending a neighbouring nursery school.

During the hearing of 24 December 2010 the applicant lodged an objection against the judge of the Timiryazevskiy District Court, submitting that she (that is to say the judge) had stated on several occasions that she would rule against the applicant because according to the established practice of the Timiryazevskiy District Court a residence order was always made in favour of the mother. The judge dismissed the applicant’s objection.

On 18 January 2011 the Timiryazevskiy District Court allowed a request lodged by the applicant for the proceedings to be stayed; it accordingly stayed the residence order proceedings pending the criminal proceedings against Ch.

On 26 January 2011 the Mytishchi City Court upheld Ch.’s criminal conviction on appeal. The conviction acquired binding force.

On 8 February 2011 the Moscow City Court quashed on appeal the decision of 26 April 2010 ordering the interim measure. It found that the interim measure had been unconnected to the subject matter of the case and had therefore been disproportionate. There had been no evidence that the execution of the forthcoming judgment might be complicated or impossible. By applying the interim measure, the judge had prejudged the case. The City Court remitted Ch.’s request for an interim measure for fresh examination by the Timiryazevskiy District Court, which rejected it on 1 April 2011 as unsubstantiated.

Meanwhile, on 16 March 2011 the childcare authority instructed Ch. that she should stop preventing A. from seeing his paternal family.

On 30 March 2011 the Timiryazevskiy District Court granted the divorce of the applicant and Ch.

On 7 April 2011 the Moscow City Court, acting by way of supervisory review, quashed the judgment of 26 January 2011 upholding Ch.’s conviction and remitted the criminal case for fresh examination by the appellate court.

On 12 April 2011 the Timiryazevskiy District Court resumed the residence order proceedings and held a hearing.

During the hearings the applicant stated that he possessed a comfortable flat in a safe and ecologically clean neighbourhood, with parks and schools in the vicinity. Before the applicant’s separation from his former wife, A. had attended a nursery school in that neighbourhood. The applicant also had a countryside residence. Being the owner of his own business, he had flexible working hours and could therefore devote a lot of time to his son. He had always paid child maintenance and his income permitted him to give the child a good education. There was a strong personal attachment between the applicant and his son; A. was also very attached to his paternal family – especially his cousin, who was of the same age. The applicant had positive character references: he was calm, polite and affectionate towards his son. By contrast, Ch. was aggressive and irresponsible. She had physically assaulted him in front of A. and had been criminally convicted in connection with that incident. She had also been convicted of the administrative offence of leaving the scene of a road accident and had had her driving licence suspended for a year. As could be seen from the documents submitted by the applicant to the court, she lived in a severely polluted and criminally unsafe neighbourhood in the vicinity of an oil refinery plant and a prison. Moreover, Ch. shared her flat with her mother, who smoked and abused alcohol and could therefore have a bad influence on A. Until recently, Ch. had prevented the applicant and his relatives from seeing A., and currently she allowed occasional contact only.

The applicant’s mother and sister stated that Ch. prevented them from seeing A. Ch. was often aggressive and occasionally abused alcohol. All her family smoked, even in the child’s presence. A. was very attached to his father and obviously suffered from their forced separation.

Ch. stated that the applicant would have no time to take care of the child as he was managing a business, was following a distance-learning course at a university and had earlier stated his intention of building a countryside residence. Ch. had a higher education and was working. The alleged defects in her character and behaviour to which the applicant had referred had been confirmed by his relatives only.

A teacher from A.’s current nursery school stated that she had seen the applicant once and that he had made a bad impression on her. On 30 April 2010 he had come to the nursery school and had told her that he wanted to take A. home with him. When she had refused to let him in, referring to the court order prohibiting any contact between them, he had become agitated and had talked about taking A. away with him when the children went out for a walk.

The director of the nursery school gave a similar description of the incident. She said that the applicant had become angry when he had learned of the court decision ordering the interim measure, had asked for a copy of that measure and had called his lawyer.

The following documents were submitted by the parties for the court’s examination: (i) the applicant’s and Ch.’s pay statements, (ii) documents showing that the district where Ch. lived was among the most polluted districts of Moscow, (iii) documents from the criminal case file against Ch., and (iv) documents relating to A.’s medical history and A.’s pre-school education both at the applicant’s place of residence prior to his parents’ separation and at the mother’s place of residence after the separation.

On 12 April 2011 the Timiryazevskiy District Court granted Ch.’s application for a residence order in her favour and dismissed a similar application by the applicant. It held as follows:

“Having examined the entirety of the evidence, the court finds that there is a very serious conflict between the parties as regards the child’s residence arrangements, ... which has a negative impact on the child by creating a psychologically unhealthy and tense atmosphere around him. At the same time, each parent, taken alone, possesses moral, personal and other qualities rendering each of them capable of raising a small child. According to the expert report, the child is equally attached to both of them. It also follows from the expert report that the parents’ improper behaviour towards each other may have negative psychological consequences for the child.

The court notes that [Ch.’s] criminal conviction for assaulting [the applicant] has not yet acquired binding force. It however takes into account the criminal charges brought against her. It is clear that the incident was prompted by the personal hostility [between the applicant and Ch.] caused by a disagreement on the issue of their son’s residence and education. In the court’s opinion, these charges cannot constitute a decisive reason for making a residence order in favour of the father. There is an accumulation of reasons on the basis of which the court considers that the child should live with the mother.

In the present case the court is guided by the best interests of child [A.], who at the moment of the judgment has not yet reached the age of four years old and who has an established way of life. For a long time the child has lived with his mother at her place of residence and has attended a nursery school there. Given his age, a change of residence and a separation from the mother will have a negative impact on the child’s general and psychological state.

The court considers that [the applicant’s] arguments that the district where [Ch.] lives is polluted and that close members of her family smoke cannot serve as a basis for making a residence order in favour of the father because, as mentioned above, a change of residence will have a negative impact on the child. [The applicant’s] arguments that he has better living conditions and a better financial situation than [Ch.] are not decisive for granting a residence order to the father either.

The childcare authorities are unanimous that it is in [A.’s] interests to live with the mother. The court agrees with that finding.

The court also finds that [the applicant’s] request for a residence order is at the moment premature. [The applicant] is entitled to apply for a reconsideration of the issue after A. has reached a more conscious age [по достижению сыном более сознательного возраста].”

The applicant appealed, repeating the arguments he had raised before the District Court. He relied, in particular, on the right to equality between spouses.

On 30 June 2011 the Moscow City Court upheld the judgment of 12 April 2011 on appeal, finding that it had been lawful, well-reasoned and justified.

On 6 December 2011 the Lyublinskiy District Court of Moscow found it established that Ch. was preventing the applicant and his family –namely his mother, brother and sister – from seeing A. It held that A. was entitled to maintain contact with his father and his paternal family and determined the contact schedule as follows. The applicant should be able to have contact with A. (i) on the first and third weekend of each month from 10 a.m. on Saturday until 8 p.m. on Sunday at the applicant’s place of residence, in the mother’s absence and with the right to attend outdoor activities for children, and (ii) for two weeks during the summer and two weeks during the winter on dates agreed with the mother, provided that the child is in good health, with the right to leave Moscow and to go abroad. The applicant’s mother, brother and sister should be able to have contact sessions with A. from 11 a.m. until 1 p.m. on the first and third Saturdays of each month at the applicant’s place of residence.

On an unspecified date the Moscow City Court upheld that judgment on appeal.

On 2 February 2012 the Mytischy Town Court upheld Ch.’s conviction for assault and battery on appeal.