No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

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

The applicant, Mr Matthew O’Donnell, is an Irish national who was born in 1980. He is currently detained at HMP Maghaberry.

The applicant has an I.Q. of 62, which is within the bottom 1% of the general population. He has an understanding of spoken English equivalent to that of a six year-old child.

On the morning of 13 October 2004, the body of Mr Williamson was found on the banks of the Blackwater River in County Tyrone.

The applicant had spent most of the previous day drinking in public with the deceased and a third man, Mr Samuel Houston. There was evidence from witnesses that both Mr Houston and the applicant had been threatening and aggressive towards a number of individuals including the deceased. One witness also stated that, when Mr Houston produced a knife and said he was going to kill the deceased, the applicant encouraged him to “just kill him”. There was also evidence that the applicant and Mr Houston asked the deceased to come out to fight with them after they had been refused admission to a public house.

The deceased was last seen alive at around 1:30 a.m. on 13 October 2004 when he, Mr Houston and the applicant were seen making their way to a park area beside the Blackwater River. A post-mortem examination of the deceased revealed that he had been extensively beaten before his death and that he had sustained a number of knife wounds including a severance of the carotid artery.

The police searched the flat where the applicant was staying and found two sets of clothes which were heavily stained with the blood of the deceased (two sets of sweatshirts, a pair of blue jeans and pair of beige and navy tracksuit bottoms). The fact that two sets of clothes were found was material to the prosecution’s case that Mr Williamson was killed by two men. One of the items of clothing, namely the beige and navy tracksuit bottoms, had the applicant’s name tag ironed on to the back of the garment. A plastic bag containing a knife was also found at the applicant’s premises. The plastic bag and the knife contained blood which matched the blood of the deceased. Medical evidence indicated that the knife was one that could have been used to inflict the wounds sustained by the deceased.

Mr Houston admitted the manslaughter of Mr Williamson and was sentenced to ten years’ imprisonment.

The applicant was arrested in the Republic of Ireland. He was interviewed by Irish police officers about the death of Mr Williamson. Those interviews were videotaped. He was subsequently extradited to Northern Ireland in April 2007.

At the applicant’s trial, the prosecution sought to rely on the interviews which had been conducted in the Republic of Ireland. The applicant challenged the admissibility of those interviews, inter alia on the ground that the proper procedures for interviewing a suspect with a mental handicap had not been followed. A voir dire (that is to say, a hearing to determine the admissibility of the contested evidence) was held, in the course of which evidence was led from clinical psychologists and psychiatrists who had examined the applicant and watched the interview tapes. At the conclusion of the voir dire, the trial judge decided to exclude the interviews from evidence.

At the close of the prosecution case, the trial judge rejected a defence submission that there was no case to answer.

The defence then applied to the trial judge for a ruling that the applicant’s mental condition made it undesirable for him to be called to give evidence. The effect of a favourable ruling would have been that the jury would not be permitted to draw an adverse inference from any failure of the applicant to give evidence in his own defence (see 28 below). In the course of the trial judge’s consideration of that application, a second voir dire was held, in which further evidence was given by one of the clinical psychologists, Dr Davies. The trial judge refused to allow Dr Davies to give evidence concerning the conclusions he had reached from watching the interview tapes. The trial judge reasoned that, once the interview tapes were excluded from evidence, they were excluded from evidence for all purposes. The trial judge did, however, hear evidence from Dr Davies as to his concern that the applicant’s low I.Q. would place him in considerable difficulty if he were to give evidence in his defence. In Dr Davies’ view, the applicant would be highly suggestible, he would have problems understanding questions and would find it difficult to give coherent responses.

In considering the defence application, the trial judge referred to the evidence of Dr Kennedy, consultant psychiatrist. The trial judge read out three passages of her report, the last which was the following:

“He [the applicant] reports having had difficulty in comprehending court proceedings in the past as long words are used and people talk at speed. However, if account is taken of his need to have material simply phrased and to allow for adequate consultation with others to ascertain his understanding and clarify where necessary, it is my opinion that he should be capable of following proceedings and actively contributing to them.”

Turning to Dr Davies’ evidence, the trial judge noted that Dr Davies had entered a significant reservation in relation to the applicant’s ability to give evidence. Dr Davies had expressed doubts as to whether even in circumstances such as those referred to by Dr Kennedy the applicant could give a coherent account.

The trial judge refused the defence application, finding that he could control the manner in which questions would be asked and could ensure that no unfairness would result. In the event that the applicant chose not to give evidence the judge informed the parties that he would give an adverse inference direction to the jury.

The applicant elected not to testify but Dr Davies was permitted to give evidence to the jury as to the applicant’s vulnerability and the difficulties he would have faced.

The prosecution invited the jury to draw an adverse inference from the applicant’s failure to give evidence. The trial judge’s summing up contained the following direction to the jury:

“I have said to you that the defendant has not given evidence and that is his right. He is entitled not to give evidence, to remain silent and to make the prosecution prove his guilt beyond reasonable doubt. Two matters arise from his not giving evidence. The first is that you try this case according to the evidence. You will appreciate that the defendant has not given evidence at this trial to undermine, contradict or explain the evidence put before you by the prosecution. The second matter, as you heard him being told when I addressed Mr McGrory [counsel for the applicant], is that the law is that you may draw such inferences as appear proper from his failure to give evidence. It is for you to decide whether it is proper to hold the defendant’s failure to give evidence against him when deciding whether he is guilty. On the basis of the evidence of Dr Davies, Mr McGrory invites you not to hold it against the defendant that he has not given evidence before you. Dr Davies’s contradicted evidence is that the defendant has an IQ of 62 and therefore is a person of very limited intellectual ability who should be regarded as mentally handicapped. He has the ability of a six year-old to understand spoken English. Dr Davies said that mentally handicapped people find giving evidence very challenging and his ability to provide a coherent and consistent account and to understand the implications of his replies is limited. Dr Davies said that he seems to have difficulty in functioning as an average person and has difficulty in maintaining relationships, keeping a job and performing everyday tasks such as looking after money.

Dr Davies’s evidence about the accused and the abilities of mentally handicapped people in general about which I have just reminded you is an important factor to bear in mind, but there are others that you should bear in mind and consider as well. There is no evidence that the defendant is not fit to stand his trial; in other words, it has not been suggested that he cannot understand questions, nor has it been suggested that he cannot instruct his legal advisers as to the nature of his case. It has not been suggested that he is unable to remember what happened that night, indeed, Dr Davies did not ask him to recall the events of that night, so you do not know from what Dr Davies has said to what extent the defendant can explain what he did or where he went, indeed, when he was charged with Mr Williamson’s death he replied, ‘I didn’t go near him’, not, ‘I don’t know anything about it’, or, ‘I didn’t have anything to do with it.’ You have to consider along with many other questions you have to consider whether the answer he gave is not merely a denial of guilt, which it plainly is, but whether it implies that he knows something about the circumstances of Mr Williamson’s death.

You should also consider whether the defendant, despite his undoubted handicaps, his low IQ and limited comprehension of English, could have answered questions in the witness box. I say that because Mr McGrory said in his closing remarks to you, ‘What chance would a man like that have in proceedings like this?’ I must tell you that the defence were well aware that had the defendant given evidence the court would have ensured he was treated fairly and given every chance to put his case and in particular that questions were simply phrased and put in such a way that they did not suggest the answer to him. It is not enough that a person would find it difficult to give evidence to excuse them from giving evidence. Many people have to give evidence and find it difficult - even children as young as six. Fortunately, we do not have that very often but it does happen sometimes. Every effort is made to simplify the proceedings and the form of questions to ensure that people like that can give evidence. If you think that because of the evidence of Dr Davies you should not hold it against the defendant that he has not given evidence do not hold it against him, but if you are satisfied beyond reasonable doubt that the evidence he relies on, that is, the evidence of Dr Davies, presents no adequate explanation for his absence from the witness box then you may hold his failure to give evidence against him.

If you consider that there is no excuse for his not giving evidence what proper inferences - in other words, what conclusions - can you draw from the defendant’s decision not to give evidence before you? You may think that the defendant would have gone into the witness box to give you an explanation or answer to the case against him. If the only sensible explanation for his decision not to give evidence is that he has no answer to the case against him, or none that could have stood up to cross-examination, then it would be open to you to hold against him his failure to give evidence. It is for you to decide whether it is fair to hold that failure against him. In considering that it might be useful for you to consider what sort of questions might the defendant have had to face if he had given evidence.”

The trial judge went on to give examples of questions that might have been asked of the defendant had he given evidence before emphasising that the jury should not find him guilty only or mainly because he had not given evidence, but that they might take it into account as some additional support for the prosecution’s case and in deciding whether or not the case made on his behalf was or might be true.

The applicant was convicted by the jury and sentenced to life imprisonment with a minimum term of twelve years. He appealed against his conviction on three grounds: (i) that the trial judge had erred in not allowing Dr Davies to give evidence concerning the conclusions he had reached from watching the interview tapes; (ii) that the trial judge had erred in rejecting the applicant’s submission that it was undesirable for him to be called to give evidence; and (iii) that the trial judge had failed to direct the jury that they should not draw adverse inferences unless they were satisfied that there was case to answer.

On 28 January 2009 an application for leave to appeal was refused by a single judge of the Court of Appeal in Northern Ireland. A renewed application was dismissed by the full court on 15 January 2010.

In respect of the first ground of appeal, namely the exclusion of the video evidence, the Court of Appeal accepted that the videotapes were admissible to demonstrate how the applicant expressed himself and to demonstrate that he was suggestible. However, the portion of the videotape on which the applicant had intended to rely did not in fact touch on suggestibility and, in any event, the applicant’s suggestibility was not in dispute between the experts who had testified for the prosecution and defence. Therefore, the omission of the evidence would not have had any material effect on the trial judge’s decision.

In respect of the second ground of appeal, namely the ruling under Article 4(1)(b) of the Criminal Evidence (Northern Ireland) Order 1988, the Court of Appeal considered that the trial judge had reached his conclusion in a proper and balanced manner and his conclusion was not unreasonable. The Court of Appeal noted that there was competing expert evidence in the case. On the one hand, there was the evidence of Dr Kennedy, a consultant psychiatrist, whose opinion was that the applicant “should be capable of following proceedings and actively contributing to them” if account were taken of his need to have material simply phrased and if he was allowed adequate consultation with others to ascertain his understanding and clarify matters where necessary. On the other, Dr Davies, a clinical psychologist, entered a significant reservation in relation to the applicant’s ability to give evidence. He did not know whether even where the procedures were simplified and the questions simply phrased, the applicant could give a coherent account of events. The Court of Appeal found that there was nothing unreasonable about the manner in which the trial judge preferred the evidence of the consultant psychiatrist over that of the clinical psychologist.

For the third ground, which related to the trial judge’s direction on a case to answer, the Court of Appeal recognised that, in England and Wales, trial judges were required to direct juries that they, the jury, had to find that there was a case to answer on the prosecution evidence before drawing an adverse inference (see paragraph 28 below). By contrast, in Northern Ireland, it was left to the judge in each case to decide whether to direct the jury in this manner, depending on the strength of the prosecution case. The Court of Appeal considered that, in the applicant’s case, the absence of such a direction to the jury reflected the trial judge’s view that this was not a case where the evidence was so weak as to require such a direction. The substantial body of evidence against the applicant supported that view. The trial was not, therefore, unfair. The Court of Appeal nonetheless recommended that the specimen direction in Northern Ireland should be amended to follow the approach taken in England and Wales, by adding a direction that the jury should not draw an adverse inference unless they consider that the prosecution case is such that it clearly calls for an answer.

The applicant asked the court to certify questions of general public importance for the consideration of the Supreme Court. It refused to do so in a decision handed down on 29 January 2010.


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

Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

The applicant was born in 1980 and lives in Kópavogur. At the material time he was a well-known person in Iceland who for years had published articles, blogs and books and appeared in films, on television and other media, under pseudonyms.

In November 2011, an 18-year-old woman reported to the police that the applicant and his girlfriend had raped her. In January 2012 another woman reported to the police that the applicant had committed a sexual offence against her a few years earlier. Upon the completion of the police investigation the Public Prosecutor, on 15 June and 15 November 2012, dismissed the cases in accordance with Article 145 of the Act on Criminal Procedures, because the evidence which had been gathered was not sufficient or likely to lead to a conviction. The applicant submitted a complaint to the police about allegedly false accusations made against him by the two women. This case was also dismissed.

On 22 November 2012 Monitor, a magazine accompanying Morgunblaðið (a leading newspaper in Iceland), published an interview with the applicant. A picture of the applicant was published on the front page and in the interview the applicant discussed the rape accusation against him. The applicant claimed several times that the accusations were false. He stated, inter alia, that it was not a priority for him for the girl’s name to be exposed and that he was not seeking revenge against her. He accepted that having placed himself in the spotlight of the media he had to tolerate publicity which was not always “sunshine and lollipops” but criticised the way the media had covered his case. When asked about the girl’s age, he responded that the girl had been in a club where the minimum age had been 20 years and that it had been a shock to find out later that she had been only 18 years old. When asked about his complaints against the girl for allegedly wrongful accusations, he stated again that he was not seeking revenge against those who had reported him to the police, but that it was clear that they had had ulterior motives. He hoped that the police would see that it was important to have a formal conclusion in the case and that the documents in the case were “screaming” conspiracy.

On the same day, X published an altered version of the applicant’s front-page picture with the caption “Fuck you rapist bastard” on his account on Instagram, an online picture-sharing application. X had altered the picture by drawing an upside down cross on the applicant’s forehead and writing “loser” across his face.

Apparently X had believed that only his friends and acquaintances, who were his “followers” on Instagram, had access to the pictures he published. However, his pictures were also accessible to other Instagram users.

On 23 November 2012 the newspaper Vísir published an online article about X’s post, along with the altered picture and an interview with the applicant.

On 26 November 2012 the applicant’s lawyer sent a letter to X requesting that he withdraw his statement, apologise in the media and pay the applicant punitive damages. By email the same day, X’s lawyer submitted that X had not distributed the picture online; it had been posted for a closed group of friends on Instagram and others had distributed it. Furthermore, the email stated that X was sorry and that the picture had been shared without his consent or knowledge.

On 17 December 2012, the applicant lodged defamation proceedings against X before the District Court of Reykjavík and asked for him to be sentenced to punishment, under the applicable provisions of the Penal Code, for altering the picture and for publishing it on Instagram with the caption “Fuck you rapist bastard”. The applicant further requested that the statement “Fuck you rapist bastard” be declared null and void and that X be ordered to pay him 1,000,000 Icelandic krónur (ISK; approximately 8,800 euros (EUR)) in non-pecuniary damages under the Tort Liability Act, plus interest, ISK 150,000 (approximately 1,300 EUR) for publishing the judgment in the media under Article 241 of the Penal Code, and the applicant’s legal costs.

By judgment of 1 November 2013, the District Court found against the applicant. The court stated, inter alia, that the applicant enjoyed the personal protection afforded by law, irrespective of which of his pseudonyms he was using. In the same way, the applicant had to take responsibility for material he issued, irrespective of the name he chose to use when doing so. The court further considered that the altered picture, along with the text, should be considered as a whole and that it contained X’s opinion of the applicant’s person, which indicated a strong dislike. As to the subject matter, the District Court found that the picture and the statement had been a part of general public debate because the applicant was a well-known person in Iceland and had to accept being the subject of public discussions. The court then described in detail his professional activities of writing online, publishing books and appearing on television, especially under pseudonyms, the subject matter of his work, the subsequent criticism of his work and his participation in public debates about it. The court noted that this had led to greater outcry and public debate about the accusations against him of sexual offences, a debate in which he had participated. The court concluded that the manner in which the words had been presented by X had been more invective than a factual statement, and should therefore be considered as a value judgment rather than a statement of fact. X’s statement had been within the bounds of freedom of expression granted to him by law.

On 26 March 2014 the applicant appealed to the Supreme Court against the District Court’s judgment. Before the Supreme Court the applicant reiterated his argument that X’s Instagram account had been an “open” account, meaning that the picture had been accessible not only to his followers but to all Instagram users, over 100,000,000 people at the material time. He submitted further documents to support his argument.

By judgment of 20 November 2014 the majority of the Supreme Court (two out of three judges) upheld the District Court’s conclusion. The Supreme Court accepted that the altered picture had been accessible, not only to X’s followers on Instagram, but to other users as well.

Furthermore, the judgment contained the following reasons:

“[X] claims that his act of uploading the altered picture onto the picture-sharing application in question did not constitute the publication of the picture within the meaning of Article 236(2) of the Penal Code No 19/1940, as he had believed that only a limited number of people would have access to it. This cannot be accepted, as the act of making something accessible in electronic format to such a large number of people as stated above, irrespective of whether the persons in question are the friends and acquaintances of the person doing so, [...], is considered to be a publication according to the traditional definition of the term. It remains to be determined whether [X’s] publication of the picture had, given the circumstances, constituted a defamatory allegation against the [applicant] under Article 235 of the Penal Code.

The appealed judgment describes in detail that, before the complaints of sexual offences against him as described above had been reported, [the applicant] had been a well-known person, not least for his performance in public under the names of Gillz or Gillzenegger, the names under which he wrote on Internet, published books and pictures and presented himself in the media. The views of the [applicant] published there garnered some attention, as well as controversy; views which included his attitudes towards women and their sexual freedom. The documents of the case reveal that there were instances when his criticism had been directed towards named individuals, often women, and in some cases his words could be construed to mean that he was in fact recommending that they should be subjected to sexual violence. The [applicant] has often justified such conduct by stating that the material had been meant in jest and that those who criticised it lacked a sense of humour. The Supreme Court agrees with the District Court that the [applicant] enjoys the personal protection provided for by law, under Article 71 of the Constitution and Article 8(1) of the European Convention of Human Rights, cf. Act No 62/1994, irrespective of whether he was appearing under his own name or a pseudonym. In the same manner, he must take responsibility for the material he produces, irrespective of what name he chooses to use.

When the [applicant] gave the aforementioned newspaper interview and employed provocative, if not derogatory, comments about others, including the girl who had accused him of sexual offences, he launched a public debate and should, moreover, have known that his comments would result in strong reactions from those who strongly disliked his abovementioned views. [X] enjoys freedom of expression according to Article 73(2) of the Icelandic Constitution and Article 10(1) of the European Convention on Human Rights, and the District Court reached the correct conclusion that under these circumstances he had enjoyed greater freedom to express himself about the [applicant] and his opinions.

In assessing whether or not comments or other expressions can be considered a defamatory allegation according to Article 235 of the General Penal Code, taking into consideration the manner in which the provision of Article 10 of the [Convention] has been clarified by the European Court of Human Rights, it has to be decided whether the expression involved a value judgment or a factual statement. Although it can be agreed that by using the term ‘rapist’ about a named person, that person is being accused of committing rape, account must be taken of the context in which the term is set, cf. the ruling of the Supreme Court on 29 January 2009 in Case No 321/2008. If the altered picture and the comment ‘Fuck you rapist bastard’ are taken as a whole – as the parties agree should be the case – the Supreme Court agrees with the District Court that this was a case of invective on the part of [X] against the [applicant] in a ruthless public debate, which the latter, as stated previously, had instigated. It was therefore a value judgment about the [applicant] and not a factual statement that he was guilty of committing rape. In this context, it makes a difference, even though this alone is not decisive for the conclusion, that [X] did not maintain that the [applicant] had thus committed a criminal offence against someone else, named or unnamed. Accordingly, and with reference to the conclusion of the appealed judgment, the conclusion that [X] expressed himself within the limits of the freedom to which he is entitled under Article 73(2) of the Constitution, must be upheld. As a result he is acquitted of all the [applicant’s] claims.

As is rightly stated in the appealed ruling, the modified picture and the comments of [X] attached thereto were indecent and tasteless with respect to the [applicant]. For this reason, and with reference to Article 130(3), cf. Article 166 of Act No 91/1991 on Civil Procedure, legal costs before both court instances will be cancelled.”

In the minority’s opinion, the statement “Fuck you rapist bastard”, considered in the light of the content of the article published by Monitor, could not be considered a value judgment but rather a grave insinuation that the applicant had committed a serious criminal offence. The minority concluded that, considering that the criminal investigation had ended with the case against the applicant being dismissed, and even if the applicant was a public person who had expressed himself in a controversial way in public, he should not have to tolerate this kind of comment.


András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić

The applicant, Mr Mustafa Gür, is a Turkish national who was born in 1979 and is currently serving a prison sentence in Silifke. The Turkish Government (“the Government”) were represented by their Agent.

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

On 14 October 2004 the applicant, who was being searched for on suspicion of murder, surrendered himself to the gendarmerie.

On 15 October 2004 he was taken to the Sütlüce Central Gendarmerie Station for questioning. According to a form explaining arrested persons’ rights and which the applicant signed in acknowledgement, he was advised of the charges against him, as well as of his right to remain silent and to have access to a lawyer, and was asked to make a statement regarding the murder of M.S., a shepherd, by poisoning on 13 October 2004. The applicant stated that he did not wish to benefit from the assistance of a lawyer and then proceeded to give a detailed account of how he had poisoned M.S. He alleged that he had been blackmailed by his creditors into killing M.S. in order to steal his sheep.

At 4.25 p.m. on 15 October 2004 the applicant was examined by a doctor, who stated that there were no traces of ill-treatment on his body. In addition, the medical report indicated that the applicant had not complained of any physical ailments or psychological conditions.

On the same date he was brought before the Gülnar Public Prosecutor, where he was again advised of his right to remain silent and to request a lawyer. The applicant refused the assistance of a lawyer and repeated the statement he had given at the gendarmerie station. He stated that he had surrendered to the gendarmerie and that he regretted what he had done.

Later on the same day the applicant was questioned at the Gülnar Magistrates’ Court. Having refused legal assistance, he confirmed his statements given before the gendarmerie and the public prosecutor. He stated that he was in debt and that to secure payment of his debt his creditors had coerced him into killing the shepherd in order to steal his sheep. Subsequently he had agreed to kill the shepherd, and had bought an agricultural poison. He had also rented a lorry with a driver to transport the sheep. They had gone to the village and he had asked the driver to wait outside the village until he brought the sheep. Then, when he had approached the shepherd, a dog had attacked him. He had thrown a piece of bread laced with poison to the dog and it had calmed down. Subsequently, he had found the shepherd, had a chat with him and offered him a soft drink laced with poison. Right after the shepherd had drunk it, the applicant had gone away, regretting what he had done. At the end of the questioning, the judge ordered the applicant’s pre-trial detention.

An expert report dated 20 October 2004 established that the fingerprints found on the lorry’s rear-view mirror matched those of the applicant.

On 26 October 2004 the Gülnar Public Prosecutor filed an indictment with the Silifke Assize Court against the applicant and three other people, accusing the applicant of a number of offences including premeditated murder and the other three individuals of murder and/or incitement to murder.

During the trial, the assize court heard more than twenty witnesses.

A.K.K., the head of the village (muhtar), stated that a villager had noticed a lorry parked outside the village and had brought its driver to the village. The driver had explained that he had brought a person to the village who had told him that he was going to buy 68 sheep from someone. He had been asked to stay until 5.00 p.m. but the person had not come back. A.K.K. had asked gendarmerie officers to come to the village, and when they arrived they had started to search for the sheep with the villagers. The next day the body of the deceased had been found.

H.H.K. testified that he had spotted the deceased walking with a man outside the village. However, two hours later he had seen that person a long distance away, herding the sheep himself.

M.A., the driver of the lorry, stated that on the day of the incident the applicant had rented his lorry to transport some sheep. On the way to the village the applicant had bought bread and a soft drink. The applicant had asked him to stay outside the village until 5.00 pm. After a while, a dog had passed by which appeared to have been poisoned. The applicant had not come back and he had begun to suspect that there was something wrong. He had gone into the village and had explained the events to the head of the village and gendarmerie officers.

A.T. testified that the applicant had rented his car three or four times before the incident. He had been called in by the gendarmerie for questioning. While he had been at the gendarmerie station the applicant and B.D. had arrived at the station.

B.D. stated that the applicant had rented his colleague’s (A.T.’s) car three or four times. B.D. had been invited to the gendarmerie station for questioning. Thereafter the applicant had come to rent the car again. B.D. had mentioned the phone call he had received from the gendarmerie to the applicant. Upon B.D.’s suggestion they had gone to the station together.

According to the crime scene examination report dated 14 October 2013 drawn up by the gendarmerie, the deceased’s body was found lying face down on the ground. His arms were under his abdomen. There was foam and blood around his mouth, and there was vomit residue around his feet. There were no signs of a firearm wound, open wound or blood on his body. The report further revealed that 68 sheep had been found hidden some distance away.

Following a toxicological examination, on 23 February 2005 the Adana Branch of the Forensic Medicine Institute prepared a report finding that there were no traces of toxic substances, alcohol or drugs in the deceased’s blood, urine and internal organs.

Lastly, on 3 May 2006 a report was prepared by the Forensic Medicine Institute upon the request of the Pathology Department of the Forensic Medicine Institute. The report revealed that the crime scene and the residue of vomit would lead to the conclusion that the deceased had been poisoned. It further disclosed that traces of toxic substances could not be detected in the deceased’s tissue or fluids due to the time which had elapsed. However, taking into account the fact that there was no medical evidence to show that the deceased had been poisoned, the report was unable to establish the exact cause of death.

During the trial, the applicant was represented by a lawyer. In his defence submissions before the Silifke Assize Court, the applicant denied the statements he had made before the gendarmerie, the public prosecutor and the magistrates’ court. He alleged that his statement at the gendarmerie station had been extracted under duress and that he had been forced to sign a statement dictated by the gendarmerie. Moreover, he alleged that the gendarmerie had forced him to repeat the same statement before the public prosecutor and the magistrates’ court and he had done so because he was scared that if he did not comply he would be ill-treated again. In the written defence submissions presented to the trial court, the applicant’s lawyer stated that the applicant had been forced by the authorities to sign self-incriminating statements which included his alleged refusal to be assisted by a lawyer. He maintained that the statements in the case file had no legal validity.

On an unspecified date, the public prosecutor submitted his written opinion on the merits of the case to the Silifke Assize Court, in which he recommended the applicant’s acquittal, along with the three other defendants, due to a lack of evidence establishing beyond a reasonable doubt that the applicant had committed the offence with which he was charged.

On 30 October 2007 the Silifke Assize Court convicted the applicant of murder and robbery and sentenced him to life imprisonment under Articles 82 § 1 and 149 § 1 of the Criminal Code (Law no. 5237), but acquitted his co-defendants due to a lack of evidence. In convicting the applicant, the assize court principally relied on his statements before the gendarmerie, the public prosecutor and the magistrates’ court, the witness statements of approximately twenty witnesses, identification reports, the scene of incident report and fingerprint evidence. It did not give credence to the defence submissions made by the applicant during the proceedings in which he denied all his previous statements, finding that he had only made them to avoid conviction. The trial court moreover stated that a number of the witness statements were perfectly consistent with the applicant’s initial self-incriminating statements, which suggested their accuracy. As regards his allegations of ill-treatment, the assize court stated that the medical reports issued prior to and following the applicant’s detention at the gendarmerie station indicated no traces of illtreatment on his body. These allegations were, therefore, held to be unfounded.

On 8 July 2009 the Court of Cassation upheld the judgment of the Silifke Assize Court with a correction. Noting that the deceased had been a minor at the material time, it changed the sentence to aggravated life imprisonment (a whole life tariff).

The relevant domestic law and practice in force at the material time can be found in Salduz v. Turkey ([GC], no. 36391/02, §§ 27-44, 27 November 2008).


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

Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicant was born in 1964.

In 1993 the applicant was convicted of murder and sentenced to twenty four years’ imprisonment.

On 8 March 2002 the applicant was conditionally released from prison.

On 23 March 2002 at 8.40 p.m. the applicant was arrested at his home on suspicion of leading a criminal organisation and involvement in the attempted abduction of a certain Ş.H. and his son, H.H. He was subsequently placed in custody by the organised crime division of the Istanbul Security Directorate.

On 24 March 2002 at 8 p.m. the applicant and six other persons were examined at the Haseki Hospital, in Istanbul, by a doctor who recorded on a single sheet of paper that there was no sign of violence on the bodies of these seven persons.

On the same day at 10.30 p.m. the applicant was once again examined at the Haseki Hospital by a doctor who noted that he had been told that the applicant had hit his head against a wall. The doctor, a general practitioner, observed the following injuries on the applicant’s body: a swelling on the left side of the forehead and a headache, a hyperaemia of 0.5 cm in width around both wrists and a hyperaemia of 2 cm on the right side of the neck. The doctor considered that the applicant should also be examined by a neurosurgeon, who subsequently carried out a number of tests on the applicant and concluded that the applicant did not show any signs of pathology.

On 25 March 2002 at 9.10 p.m. the applicant underwent a further medical examination at the Haseki Hospital by a doctor who noted in a medical report the same injuries as those mentioned in the medical report of 24 March 2002.

On 26 March 2002 at 7 p.m. the applicant was once again taken to the Haseki Hospital for an examination. The medical expert noted that there was an erythema of 3 cm in diameter on the right side of the applicant’s forehead, scabbed wounds of 3 cm on the underside of his wrists and a hyperaemia of 2 cm on the right side of his neck.

On 27 March 2002 the applicant underwent two medical examinations. The first examination took place at the Haseki Hospital at 9.30 a.m. The doctor observed scabbed wounds on the underside of the wrists, a recovering hyperaemia of 2 cm on the right side of the neck and an erythema of 2 cm in diameter on the right side of the forehead. The second medical examination was carried out by a medical expert at the Forensic Medicine Institute branch responsible for the Istanbul State Security Court at 11 a.m. The doctor who examined the applicant observed the following injuries on his body: a scabbed abrasion of 3 cm on the underside of the left wrist, a scabbed abrasion of 1 cm on the underside of the right wrist, a scabbed abrasion of 0.5 cm on the back of the right wrist, two thin abrasions of 1 cm and 3 cm on the right side of the forehead. The doctor concluded that these injuries did not put the applicant’s life at risk but rendered him unfit to carry out daily activities for three days.

According to the applicant, he was subjected to ill-treatment throughout his detention in police custody. In particular, he was kept blindfolded and handcuffed to an iron bar for five days. He was beaten, given electric shocks and made to lie on a bed over which his arms and legs were stretched, and his genitals were squeezed.

According to the Government, the applicant sustained his injuries as a result of his own conduct. The scratches and traces on his body were a result of having attempted to break his handcuffs, and he had hit his head on the floor. In support of their submissions, the Government provided video footage from the surveillance camera monitoring the room in which the applicant was detained, recorded between 9.11 p.m. and 9.16 p.m. on 24 March 2002 (see paragraph 21 below).

On 24 March 2002 at 9.20 p.m. eight police officers and the applicant signed an incident report according to which the applicant was kept attached to a bed in order to prevent him from harming himself. The report states that at around 9.10 p.m., he managed to break one of his handcuffs and hit his head on the floor. The officers recorded that they had used force to handcuff the applicant and that the applicant had sustained injuries on his wrists as a result. According to the report, the injuries on the applicant’s head had occurred when he hit his head on the floor.

On 26 and 27 March 2002 statements were taken from the applicant by two police officers. According to the document drafted at 00.35 a.m. on 27 March 2002 and signed by the applicant, the police told the applicant that he had been in possession of a mobile phone whilst in prison and that the conversations that he had held using this telephone had been intercepted by the police. The police officers alleged that he had given instructions for the abduction of a number of persons by phone and that it was considered that he had been the leader of a criminal organisation. The applicant denied the allegations that he had made the phone calls in question and that he had been involved in criminal activities. In his statements to the police, the applicant accepted that he knew some of the persons who had been arrested on the same day as him and that he knew that two other arrestees had attempted to abduct Ş.H. He stated that he knew Ş.H. personally, but that he had not been involved in his abduction attempt.

On 27 March 2002 the applicant appeared before the public prosecutor at the Istanbul State Security Court. He denied the allegations against him and submitted that he had been subjected to torture in police custody. He alleged that he had been beaten, given electric shocks and stretched by his arms and legs, had his testicles squeezed, and been handcuffed to an iron bar for five days. On the same day he was remanded in detention by a judge.

Between 23 and 27 March 2002 the six persons who had been taken into police custody on the same day as the applicant also made statements to the police. According to some of these statements, the applicant had been the leader of a criminal organisation and had given instructions for the abduction of Ş.H. These persons were also medically examined during and after their detention in police custody. Some of them were found to have sustained injuries to various parts of their bodies.

During the proceedings before the Court, the Government produced a CD-ROM containing a police video recording. The CD-ROM contains images of a room. The part which concerns the applicant was recorded between 9.11 p.m. and 9.16 p.m. on 24 March 2002. It shows that the applicant was kept in a room on a mattress, the top of which is placed on two chairs. The applicant is seen lying down on the mattress with his arms straight out to the sides and attached to the chair legs. He is also blindfolded with a piece of black cloth. On the other side of the room, there are four or five plainclothes police officers standing around a desk and a chair. The applicant begins moving with a view to standing up. Four officers approach the applicant, detach him from the chairs, put him on the floor, kneel around him and for about one and a half minutes keep the applicant under physical restraint on the floor. During this period, the applicant cannot be seen by the camera. Thereafter, another plainclothes officer arrives in the room and instructs the other officers to arrange the mattress and the chairs in a certain way. Subsequently, the applicant is seen without the blindfold and with his arms held behind his back by two officers who are also holding him around his neck. They make the applicant stand in front of the newly-arrived officer, who douses the applicant’s face with water from a plastic bottle. He then hits the applicant on the head with the same bottle. Afterwards, six officers place the top of the mattress on the chairs, force the applicant to lie down on the mattress on his back, handcuff him to the chair legs and blindfold him.

On 3 April 2002 the applicant lodged a petition with the Fatih public prosecutor’s office and alleged that he had been subjected to ill-treatment during his detention in police custody.

On 22 May 2002 the applicant made statements to the Fatih public prosecutor in which he complained about his alleged ill-treatment while in police custody. He claimed that he had been insulted, threatened, beaten, stripped naked, stretched by his arms and legs, blindfolded, given electric shocks and had his genitals squeezed. The applicant submitted that there were a superintendent, A.İ., and the director of the Department of Organised Crime of the Istanbul Security Directorate, A.S.S., among those who had tortured him. The applicant also provided the names of several persons who had allegedly witnessed his ill-treatment in police custody and asked the public prosecutor to take their statements as witnesses.

On 29 July and 6 and 22 August 2002 the Fatih public prosecutor took statements from İ.E., N.K., S.G. and M.G., the police officers who had been on duty at the time of the applicant’s detention in police custody. They all denied the veracity of the applicant’s allegations of ill-treatment.

On 17 October 2002 the Fatih public prosecutor further obtained statements from A.İ., who submitted that the applicant had hit his head on the floor. On 20 January 2003 A.S.S. also made statements to the Fatih public prosecutor and maintained that he had not been involved in the applicant’s questioning.

On 21 January 2003 the Fatih public prosecutor requested the Department of Organised Crime of the Istanbul Security Directorate to submit any video recording demonstrating that the applicant had resisted the officers, if such recording existed.

On 25 February 2003 A.S.S., in his capacity as the director of the Department of Organised Crime, sent the video recording of 24 March 2002 (see paragraph 21 above) along with a letter to the Fatih public prosecutor’s office. In his letter, A.S.S. noted that the applicant had resisted the police officers while in police custody.

On 20 June 2003 the Fatih public prosecutor sent the video recording to the Forensic Medicine Institute and requested that a report clarifying whether the applicant could have sustained the injuries noted in the medical reports as a result of his own conduct be drafted. The public prosecutor also submitted the medical reports concerning the applicant to the Institute.

On 13 August 2003 six medical experts from the Forensic Medicine Institute, including the president, drafted a report after examining the medical reports issued during the applicant’s police custody and the photographs and video footage submitted to them by the Fatih public prosecutor. In their report, the doctors concluded that the applicant’s injuries had occurred as a result of his own conduct. They considered that, following the applicant’s agitation, the police officers had struggled to lay him down on a camp bed and had handcuffed his hands to the bed. They further stated that the applicant did not appear to have been subjected to any beatings in the video footage. Having considered the position of the applicant’s injuries on his body, they concluded that the injuries must have been caused by the applicant’s own conduct.

On 15 October 2003 the Fatih public prosecutor filed a bill of indictment with the Fatih Criminal Court accusing six police officers, A.İ, A.S.S., İ.E, N.K., S.G. and M.G., of inflicting ill-treatment on the applicant and one of his co-accused, Ö.Ç.

On 8 December 2003 the applicant testified before the Bolu Criminal Court, acting on letters rogatory. The applicant contended that he had been kept blindfolded throughout his detention, stretched by his arms and legs, given electric shocks, hosed with cold water, stripped naked and had his genitals squeezed.

On 12 February 2004 the Fatih Criminal Court held the first hearing on the merits of the case and heard evidence from the accused police officers, except one officer, A.S.S., who did not participate in the hearing. They all maintained that they had not ill-treated the applicant or Ö.Ç. As regards the applicant, they contended that they had handcuffed him upon the instructions of a public prosecutor and subsequently used force with a view to preventing him from harming himself. One of the officers, İ.E., maintained that the applicant had sustained injuries to his head as he had hit his head against the wall. They referred to the video footage recorded on 24 March 2002. During the same hearing, C.A., one of the applicant’s lawyers who represented him along with A.K. Özcan, requested that the applicant be allowed to join the proceedings as an intervening party. His request was granted. The applicant’s representative further requested the court to obtain the entire video recording of the places where the applicant had been held throughout his detention in police custody. The court decided to consider this request subsequently, after obtaining the statements of all accused police officers.

Between 12 February 2004 and 5 October 2004 the trial court adjourned the hearings as A.S.S. could not be located.

On 5 October 2004 A.S.S. made statements before the Fatih Criminal Court and denied the veracity of the applicant’s allegations. He reiterated that he had not been involved in the questioning of the applicant and Ö.Ç. On the same day the Fatih Criminal Court ordered the Security Directorate to send it the video recordings concerning the applicant’s police custody.

On 2 February 2005 the first-instance court adjourned the hearing as the video footage requested during the previous hearing had not been received. One of the applicant’s lawyers, C.A., was present during this hearing.

Upon receipt of the video footage of 24 March 2002, during the hearing of 3 March 2005 the Fatih Criminal Court viewed the recording and observed that one person had suddenly bent forwards and the police officers had immediately intervened. The court noted that the video footage was very short, lasting a few seconds, and the people in the images were not identifiable. At the same hearing, one of the accused police officers, İ.E., contended that the person in the footage was the applicant himself, who had hit his head on the floor in order to be able to lodge a complaint against them for ill-treatment in police custody, and that they had intervened to stop him.

On 14 June 2005 the Fatih Criminal Court referred the case to the Istanbul Assize Court on account of lack of jurisdiction, pursuant to Article 94 of the new Criminal Code (Law no. 5237), which defined ill-treatment by public servants as torture, an offence that should be tried by assize courts.

On 3 October 2005 the Istanbul Assize Court issued a summons requiring the applicant and the accused police officers to attend the hearing to be held on 29 November 2005. The summons issued in respect of the applicant was served on A.K. Özcan. On 29 November and 27 December 2005 the Istanbul Assize Court held two hearings and heard evidence from the accused police officers, who reiterated the statements they had made before the Fatih Criminal Court. Neither the applicant nor his representatives participated in these hearings.

During the hearing held on 27 December 2005 the public prosecutor requested that the police officers be acquitted of the charges against them. At the end of the same hearing the Istanbul Assize Court acquitted the accused police officers of the charges of torture. On the basis of the evidence before it, namely the medical reports, the report of the Forensic Medicine Institute dated 13 August 2003, the statements taken from the accused officers, the applicant and Ö.Ç., and the aforementioned video footage, the Istanbul Assize Court found that the applicant had been agitated and the police officers had handcuffed him to a camp bed with a view to preventing him from injuring himself. The court noted that the injuries observed on the applicant’s wrists and other parts of his body had thus occurred as a result of his agitation. The assize court considered that the applicant had not been subjected to beatings. It concluded that the accused officers had not tortured the applicant.

On 20 January 2006 the judgment of 27 December 2005 was served on lawyer C.A. As C.A. could not be found in his office, the notification document was left with the mayor of the neighbourhood, in accordance with the provisions of the Law on Notifications.

On 21 January 2011 A.K. Özcan, acting on behalf of the applicant, submitted a petition to the Istanbul Assize Court. He maintained that the judgment of 27 December 2005 had been served on a lawyer who had not been involved in the case and asked to be officially served with the judgment in question.

On 14 February 2011 another lawyer lodged an appeal with the Istanbul Assize Court, to be submitted to the Court of Cassation, against the judgment of 27 December 2005 on behalf of the applicant, claiming that the judgment of 27 December 2005 had erroneously been served on C.A.

On 28 February 2011 the Istanbul Assize Court rejected the petition, holding that C.A. had represented the applicant during the proceedings and his power of attorney was in the case file. It further noted that the judgment had already been served on him and that notification to one of the applicant’s representatives had been sufficient for the judgment to become final. The assize court therefore considered that the appeal dated 14 February 2011 had been submitted outside the time-limit laid down for submission of appeals in Article 310 of the Code of Criminal Procedure.

The applicant appealed against the decision of the Istanbul Assize Court.

On 22 May 2013 the Court of Cassation upheld the decision of 28 February 2011.

According to the documents in the case file, on 18 March 2003 A.S.S. and on an unspecified date A.İ. were dismissed from duty respectively on account of some other criminal convictions. According to the judgment of 27 December 2005 one of the police officers, İ.E., was promoted and became a superintendent during the criminal proceedings brought against him.

On 30 April 2002 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant and fifteen other individuals. The applicant was charged with leading a criminal organisation and the attempted abduction of Ş.H. and H.H. in order to obtain a ransom. The charges were brought under Article 1 of Law no. 4422 on the Struggle against Profit-oriented Criminal Organisations and Article 499 of the former Criminal Code. The public prosecutor claimed that the applicant had been in possession of a mobile phone while he was in prison, that his conversations had been intercepted by the police following a court decision and that he had given instructions by phone to two of his co-accused for the abduction attempt. In this connection, the public prosecutor referred to the transcripts of the telephone conversations which were included in the investigation file. The public prosecutor further claimed that the applicant had expanded the criminal organisation subsequent to his release from prison and his coaccused had either become members of this organisation or had aided it. In the indictment, the public prosecutor had explained the details of the abduction attempt regarding Ş.H. and H.H., specifying the role of each accused. The applicant was identified as the person who had given the order for this offence to be committed.

On 23 July 2002 the Istanbul State Security Court held the first hearing on the merits of the case. During this hearing, the applicant made statements before the court and maintained that he had been tortured while in police custody. He maintained that he had been made to listen to a recording of a telephone conversation by the police and that as he had denied that he had held the conversation in question, he had been tortured. He described the treatment he had allegedly been subjected to in detail and denied the veracity of his police statements. He further submitted that he had not made any phone calls or given instructions when he had been in prison and that these allegations had been invented by the police. He contended that he knew neither his co-accused nor Ş.H. or H.H. During the hearing of 23 July 2002 the applicant’s co-accused also denied the veracity of their police statements, claiming that they had been forced to sign those statements by the police and that they had been ill-treated whilst in police custody. During the hearing, the medical report of 27 March 2002 issued by the Forensic Medicine Institute in respect of the applicant was read out. At the end of the hearing, noting that the applicant had lodged a formal complaint with the Fatih public prosecutor’s office requesting that his allegations of illtreatment be investigated, the Istanbul State Security Court decided to request information from the Fatih public prosecutor as to the outcome of the investigation.

During the second hearing in the case, held on 24 September 2002, the applicant once again denied that he had made telephone calls while in prison. One of his lawyers contended that the police reports according to which the applicant had made telephone calls did not reflect the truth and requested his client’s release. At the end of the hearing, as the Fatih public prosecutor’s office had not sent the information requested on 23 July 2002, the first-instance court reiterated its request for information regarding the investigation into the applicant’s allegations of ill-treatment.

During the third hearing on 12 December 2002 one of the applicant’s lawyers maintained that it would have been impossible for the applicant to possess a mobile phone whilst detained in an F-type prison. At the end of the hearing, the Istanbul State Security Court once again decided to request information from the Fatih public prosecutor’s office.

On 11 March 2003 the fourth hearing in the case was held. During the hearing one of the applicant’s lawyers stated that the information requested from the Fatih public prosecutor’s office had been submitted and the investigation into the applicant’s allegations of ill-treatment was pending. However, the first-instance court neither noted that this document had been submitted nor read it out.

During the same hearing, H.H., the son of the person whose abduction had allegedly been ordered by the applicant, made a statement before the trial court and submitted that neither of the accused had been involved in the attempted abduction. During the same hearing, the applicant’s lawyers contended that the only evidence against the applicant was the police statements of his co-accused, which had been obtained through illtreatment and the veracity of which had been denied by each of the accused.

On 29 May 2003 the fifth hearing was held, during which the public prosecutor submitted his opinion on the merits of the case and the accused were asked to provide their observations on the public prosecutor’s opinion by the next hearing. During the hearing, the applicant submitted a petition to the first-instance court in which he submitted that he did not have a good relationship with his brother and claimed that he had been the victim of a conspiracy organised by a senior police director who was a friend of his brother. Finally, one of the applicant’s lawyers maintained that the investigation into the applicant’s allegations of ill-treatment was still pending.

During the sixth and last hearing in the case, held on 18 July 2003, one of the applicant’s lawyers maintained that there was no evidence against the applicant in the case file other than the statements obtained under torture and that an investigation had been launched into the applicant’s allegations of torture by the Fatih public prosecutor. Another lawyer representing the applicant also made defence statements. He contended that the telephone tapping in question had been illegal and that there had not been a court order authorising it. He further noted that the police statements obtained from the applicant under torture could not be used as evidence.

On the same day the Istanbul State Security Court rendered its judgment in the case. The applicant was convicted of leading an armed criminal organisation and of the abduction of Ş.H. and H.H. in order to obtain a ransom as charged and was sentenced to nine years, five months and ten days’ imprisonment. His conditional release in respect of his previous sentence was also revoked.

In its judgment, the first-instance court found it established, in the light of the content of the case file as a whole, to which the court repeatedly referred in its reasoning, and the evidence in its possession (which included, inter alia, the following evidence: transcripts of telephone conversations allegedly held by the applicant, material evidence collected where the attempted abduction of Ş.H. and H.H. had occurred, witness statements, the applicant’s and the co-accuseds’ police statements, and statements made to the public prosecutor and a judge at the State Security Court on 27 March 2002), that the applicant had planned the attempted abduction of Ş.H. and had given instructions to two of his co-accused to carry out the abduction in telephone calls he had made using a mobile phone when he was in prison. This telephone had originally been used by other inmates in prison and had been tapped by the police. The police had found out that the applicant had also used it in order to give instructions to the members of his criminal organisation and had subsequently conducted an investigation into the applicant and his coaccused. The first-instance court further noted that, after having assessed all the evidence in the case file, taking into account the legislation and the Court of Cassation’s case-law, it had come to the conclusion that the applicant and his co-accused had already formed a criminal organisation prior to the attempted abduction. The State Security Court therefore found, once again referring to the content of the case file, which included the applicant’s police statements, that the applicant was the leader of the criminal organisation in question and six other co-accused were members of that organisation.

On 26 May 2004 the Court of Cassation upheld the judgment.

Following the entry into force of the new Criminal Code in 2005, the Istanbul Assize Court reviewed the applicant’s conviction of 18 July 2003 and his sentence in the light of the provisions of the new Code. On 6 April 2006 the assize court amended the applicant’s sentence and imposed on him four years and three months’ imprisonment, holding that the new Code provided more favourable conditions for the applicant. One of the applicant’s lawyers, A.K. Özcan, was present when the assize court pronounced its judgment.

On 20 February 2007 the Court of Cassation rejected the applicant’s appeal and upheld the judgment of 6 April 2006.


Preliminary objection joined to merits and dismissed (Article 35-1 - Effective domestic remedy);Violation of Article 9 - Freedom of thought, conscience and religion (Article 9-1 - Freedom of conscience;Freedom of religion;Manifest religion or belief);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković

Mr Adyan (“the first applicant”) was born in 1991, while Mr Avetisyan, Mr Khachatryan and Mr Margaryan (“the second, third and fourth applicants”) were born in 1993. The first and second applicants live in Yerevan, while the third and fourth applicants live in Tsaghkavan and Kapan respectively.

The applicants are four Jehovah’s Witnesses who were found to be fit for military service.

In May and June 2011 the applicants were called up for military service. They failed to appear, and instead addressed letters to the local military commissariat (զինվորական կոմիսարիատ) and the regional prosecutor’s office, refusing to perform either military or alternative service. They stated that they were Jehovah’s Witnesses and that, having studied the Alternative Service Act, they had come to the conclusion that, by European standards, the service proposed was not of a genuinely civilian nature since it was supervised by the military authorities. Their conscience did not allow them to work directly or indirectly for the military system. The alternative labour service was known to be organised and supervised by the military authorities because the alternative labour serviceman’s record booklet was marked “Armed Forces of Armenia”, and alternative servicemen were subject to military discipline and penalties and had to register with the military subdivisions of the Armed Forces of Armenia. Furthermore, the law required that they remain at their place of service around the clock, seven days a week, which was akin to house arrest and was unacceptable to the applicants. The requirement to perform military service or the available alternative service violated their rights guaranteed by, inter alia, Article 9 of the European Convention on Human Rights. For the reasons stated above, their conscience did not allow them to perform the alternative service available in Armenia. The applicants added that they were willing to perform alternative service as long as it was not in any way connected with the military authorities and did not violate their religious beliefs.

On 15 June 2011 charges were brought against the second applicant under Article 327 § 1 of the Criminal Code (evasion of regular conscription for military or alternative service).

On 6 July 2011 the first and fourth applicants were arrested.

On 7 July 2011 the same charges were brought against the first and fourth applicants. Finding the investigator’s applications for their detention substantiated, the Syunik Regional Court decided to detain them.

On 28 July 2011 the Criminal Court of Appeal dismissed appeals lodged by the first and fourth applicants against the detention orders, finding, inter alia, that as the alleged offence carried a sentence of more than one year’s imprisonment, that increased the probability that the first and fourth applicants would commit a new offence or evade punishment if they remained at large.

On 27 July 2011 the same charges were brought against the third applicant and the Tavush Regional Court decided to detain him at the investigator’s request, finding that there was a reasonable suspicion that he had committed the offence with which he was charged.

On an unspecified date his criminal case was sent to court.

On 19 August 2011 the Tavush Regional Court decided to set the case down for trial, finding that the “detention was to remain unchanged”.

On 24 August 2011 the Criminal Court of Appeal examined an appeal lodged by the third applicant against the detention order of 27 July 2011 and decided to dismiss it, finding, inter alia, that the offence with which he was charged carried a sentence of more than one year’s imprisonment, which increased the probability that he would commit a new offence or evade punishment if he remained at large.

In the course of the proceedings before their respective trial courts, the applicants submitted that their opposition to military and alternative service was based on their religious beliefs. The alternative service provided for under domestic law was not of a genuinely civilian nature, as it was supervised by the military authorities. The right to conscientious objection was protected by, inter alia, Article 9 of the Convention. The applicants were willing to perform alternative service as long as it was not supervised by the military and was of a genuinely civilian nature.

On 19 July 2011 the Kotayk Regional Court found the second applicant guilty as charged and sentenced him to two years and six months in prison. He was taken into custody on the same day.

On 27 July 2011 the Syunik Regional Court imposed similar sentences on the first and fourth applicants.

On 25 November 2011 the Tavush Regional Court imposed a similar sentence on the third applicant.

The applicants lodged appeals against their convictions, arguing that they violated the requirements of Article 9 of the Convention. Their opposition to the alternative service available in Armenia was based on their religious beliefs, as that service was not of a genuinely civilian nature and failed to comply with European standards. It was organised and supervised by the military authorities (section 14 of the Alternative Service Act (see paragraph 28 below)) and was equivalent to non-armed military service, whereas their conscience did not allow them to perform any service supervised by the military authorities. Furthermore, section 17(3) of the Act authorised a military authority to order the transfer of an alternative labour serviceman to another institution, while certain aspects of the service were organised in accordance with military rules (section 18(2) of the Act). Alternative labour servicemen were also required to wear a uniform that resembled a military uniform and to follow orders, and were not allowed to leave their place of service without authorisation. The cover of the alternative labour serviceman’s record booklet (այլընտրանքային աշխատանքային ծառայողի գրքույկ) bore the coat of arms and the words “The Armed Forces of Armenia”, and the monthly allowance paid was the same as that of military servicemen. Moreover, alternative service was punitive in nature as it lasted forty-two months and alternative servicemen were required to stay at their place of service around the clock. They reiterated their readiness to perform a genuinely civilian alternative service and argued that, in the absence of alternative service that complied with European standards and was of a truly civilian nature, their sentences did not pursue a pressing social need and were not necessary in a democratic society.

On 2 December 2011 the Criminal Court of Appeal upheld the judgments of the Regional Courts in the cases of the first and second applicants.

In the first applicant’s case, the Court of Appeal found as follows:

“Having examined the arguments of the defence that the alternative labour service in Armenia does not comply with European standards, is of a military nature and is supervised by the military, the Court of Appeal finds that [the State] ... is taking appropriate measures in respect of the obligations assumed before the Council of Europe as regards, in particular, the enactment and continuous improvement of the legislation concerning alternative service.

The Court of Appeal finds it necessary to point out that the Alternative Service Act, the [relevant] Government decrees and [other executive orders] are based on the Armenian Constitution and must therefore be applied in the present case with the following considerations.

[Citation of sections 2 and 3(1) of the Act (see paragraph 28 below)]

It follows from the above-mentioned provisions that [the State] has made a clear distinction between alternative military service and alternative labour service, and has guaranteed by law the civilian nature of the latter.

[Citation of sections 17 and 18(3) of the Act (see paragraph 28 below)]

Based on an analysis of the above-mentioned provisions, the Court of Appeal finds it necessary to point out that the fact that the head of the institution [where alternative service is performed] notifies [the local military commissariat] regarding the alternative labour service to be performed by the serviceman, the fact that the serviceman can be transferred to another institution or place and the fact that alternative labour servicemen are discharged from service to the reserve and are registered in the reserve in accordance with a procedure prescribed by law, are not sufficient to conclude that the alternative labour service in Armenia is of a military nature, since ... the type, procedures and conditions of such labour are determined by the heads of the relevant institutions without any interference by the military authorities or their representatives.

Furthermore, it is the head of [the relevant] institution who is responsible for the organisation and implementation of the alternative labour service and not the subdivisions of the Armed Forces of Armenia.

The argument put forward by the defence that the alternative labour service is supervised by a public authority in the field of defence authorised by the Government of Armenia similarly does not suggest that there is no alternative labour service in Armenia. It must be noted that in reality, servicemen perform the labour service outside the Armed Forces of Armenia and it does not contain elements of military service.

The Court of Appeal also finds it necessary to note that an analysis of the Alternative Service Act shows that the specifics of the legal status of alternative labour servicemen are set out in the said Act and the labour legislation of Armenia and they are subjects ... of labour rather than military relations.

The preceding conclusion is evidenced also by a number of other provisions of the Act, in particular, the fact that alternative labour servicemen are subordinate only to the heads of the relevant civilian institutions, are obliged to follow only their orders and instructions, and must abide by the internal disciplinary rules of such institutions, while questions relating to the social security of servicemen and their family members are regulated by the legislation on State pensions rather than military laws (sections 19 and 20).

It must be noted that Government Decree no. 940-N of 25 June 2004 established the list of institutions where alternative service is performed and the form and the manner of wearing the alternative serviceman’s uniform.

Paragraph 2(b) of the Decree stipulates that ‘alternative labour servicemen perform their service in the institutions under the Ministry of Health and the Ministry of Labour and Social Affairs’.

Pursuant to [Annex 1] to the Decree, ‘the tasks performed by alternative labour servicemen in the said bodies are those of an orderly’.

The Government have entrusted the ministers of the bodies in question, as well as the Minister of Defence, with certain responsibilities, such as the provision of clothing, food and financial means to servicemen and other organisational work (paragraph 3 of the Decree).

The fact that the Minister of Defence is also involved in the organisation of the alternative service does not suggest that the labour service transforms into military service, since, firstly, the Minister of Defence and certain subdivisions of the Armed Forces are called upon to participate in the organisation of the alternative military service.

As regards the fact that the military authorities carry out supervision of labour servicemen together with the heads of the relevant institutions, the Court of Appeal considers that this still does not change the nature of the service performed. Moreover, as already noted above, the type, procedures and conditions of the civilian labour are determined and may be changed only by the head of the relevant institution.

It must be noted that performing the tasks of an orderly at the relevant medical institutions of Armenia is not only not demeaning, but on the contrary is humanitarian, serves the interests of society and is aimed at preservation of human health and life.

The argument put forward by the defence that the alternative labour service is punitive in nature is also unsubstantiated.

In the light of the above, the Court of Appeal, based on the concrete facts of the case, namely that [the first applicant] has categorically refused to be conscripted to perform alternative labour service, concludes that he has been found criminally liable and sentenced in a justified and fair manner for such actions, and this fact does not contradict ... the case-law of the European Court regarding Article 9 of the Convention.”

In the second applicant’s case, the Court of Appeal found that his conviction had been lawful, well-founded and reasoned.

On 9 December 2011 and 6 March 2012 the Criminal Court of Appeal adopted judgments in the cases of the third and fourth applicants similar to its judgment in the case of the first applicant.

The applicants lodged appeals on points of law, raising the same arguments as in their appeals.

On 7, 8 and 17 February and 7 May 2012 the Court of Cassation declared the applicants’ appeals inadmissible for lack of merit.

On 8 and 9 October 2013 the applicants were released from prison following a general amnesty, after having served between twenty-six and twenty-seven months of their sentences.


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

The list of applicants is set out in the appended tables.

The applicants were employees of a municipal education institution.

On 13 June 2001 they brought proceedings before the Kolomna Town Court of the Moscow Region (“the Town Court”) against their employer and the town administration seeking recovery of unpaid wages and taxes to various social funds.

On 13 July 2004 the Kolomna Town Court issued a first-instance judgment on the merits of the case. On 22 September 2004 the Moscow Regional Court quashed the judgment on appeal and remitted the case for a fresh examination.

On 7 July 2005 the Town Court granted the applicants’ claims awarding each of them a certain amount against their employer (see Appendix I). The judgment was upheld on appeal by the Moscow Regional Court on 28 September 2005.

Between 26 June 2001 and 7 July 2005 the court hearings were adjourned twenty-five times due to the respondents’ or one of the respondents’ failure to appear, eighteen times on the claimants’ request and eleven times pursuant the requests by the defendants; four times the firstinstance court adjourned the case as the respondent authorities had been requested to submit additional documents. Moreover, on 11 June 2002 the proceedings were suspended pursuant to a decision by the domestic court on account of the claimants’ alleged failure to appear; on 4 February 2003 that decision was quashed by the appeal court, due to the first-instance court’s failure to notify the applicants of the hearing date. Thus, the period attributable to the authorities amounts to over one year.

On an unspecified date in 2005 the employer institution was liquidated. On 18 October 2005 the relevant record was made into the State Register of Legal Entities.

According to the Government’s submissions of 19 July 2011, on 30 June 2006 the judgment of 7 July 2005 was partially enforced in respect of certain applicants, as specified in Appendix I.


András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant, Mr Constantin Oprea, is a Romanian national, who was born in 1958 and lives in Bucharest. He was represented before the Court by Mr M.A. Tănăsescu, a lawyer practising in Bucharest.

The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.

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

On 4 March 2006, a dispute took place between the applicant and a neighbour regarding car parking. It happened in front of the building where they lived. The applicant alleged that B.C. hit him several times on the head and face with a solid object, leaving him unconscious for a few moments.

Helped by his son and wife, he returned to his house and immediately called the police.

The police officers, who immediately arrived on the scene, imposed a fine on both him and his neighbour for a public order infraction.

The infraction fine (proces-verbal de contravenţie) stated that it had been acknowledged by both parties involved in the incident that there had been a physical altercation between them. It had also mentioned that the applicant and B.C. had been advised to present themselves for a medical examination by the Bucharest forensic office.

The same day, after the police left, the applicant went to the closest hospital, Sfântu Ioan Emergency Hospital, for medical care.

On the medical certificate issued on 14 March 2006 by the Mina Minovici National Forensic Institute, it was mentioned that the applicant presented with traumatic cuts and bruising that could have been caused by repeated blows from a hard object on 4 March 2006. According to the same certificate, the applicant needed at least seven to eight days of medical care to recover.

The applicant lodged a criminal complaint against his aggressor for the offence of bodily harm under Article 180 § 2 of the Criminal Code. In turn, the defendant lodged a criminal complaint against the applicant for intimidation, insult and defamation. The two files were joined and examined together. Both parties to the criminal trial also joined a civil complaint to the criminal one. Sfântu Ioan Emergency Hospital also lodged a civil claim.

The Bucharest District Court heard evidence from five witnesses proposed by the parties. None of the witnesses had been present at the incident of 4 March 2006 and consequently they stated that they were not aware of any physical altercation between the applicant and B.C.

By a judgment of 25 January 2007, the Bucharest District Court acquitted both defendants and dismissed the joint civil actions. The defendant indicated by the applicant in the criminal complaint was acquitted on the grounds that the applicant had not proved that he had caused the injuries.

The applicant appealed. He argued that the court of first instance had failed to investigate how the injuries attested by the medical certificate had been caused. He also claimed that the only eyewitness to the incident, O.M.M., although admitted as a witness and summoned by the court of first instance, had not had an opportunity to give evidence. The applicant did not indicate why this witness had not been heard.

By a decision of 27 April 2007 the Bucharest County Court dismissed the applicant’s appeal on points of law upholding the decision of 25 January 2007 on the grounds that the simple submission of a medical certificate to the court does not prove the guilt of t.e defendant.

The provisions of the Criminal Code, as in force on the date the offence was allegedly committed, defining bodily harm, read as follows:

“Violence causing physical injuries needing medical care of up to twenty days for recovery is punishable by imprisonment of between three months and two years, or by a fine.”


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

The applicant, Mr Krasimir Milchev Atev, is a Bulgarian national, who was born in 1962 and lives in Troyan.

The Bulgarian Government (“the Government”) were represented by their Agent, Mrs N. Nikolova, of the Ministry of Justice.

The applicant was born in 1962 and lives in Troyan. He is a sole trader, registered on an unspecified date under the name ET Atev – Krasimir Atev, with an office in Letnitsa. He is engaged in various commercial activities. Under Bulgarian law his business does not have a distinct legal personality.

In 1994 the applicant registered his business for value-added tax (“VAT”).

In December 1998 and December 1999 the applicant purchased electrical devices from another sole trader (“the supplier”). The supplier issued the relevant invoices and, as it appears, indicated on them the VAT charged. In 2000 the tax authorities conducted a VAT audit of the supplier. On 15 May 2000 he was issued with a tax assessment which made no mention of the goods supplied in December 1998 and December 1999.

In June 2003 the Lovech Territorial Tax Directorate conducted a VAT audit of the applicant for the periods, in particular, from 1 to 31 December 1998 and from 1 to 31 December 1999. On 18 July 2003 it issued him with a tax assessment whereby it refused him the right to deduct the VAT of 19,570.78 Bulgarian levs (BGN), (9,980 euros (EUR)), which the supplier had charged him in December 1998 and December 1999. It also ordered that interest be paid in the amount of BGN 12,312.02 (EUR 6,278).

The applicant appealed against the 2003 tax assessment. On 17 September 2003 the director of the Veliko Turnovo Territorial Tax Directorate upheld the 2003 tax assessment in its entirety. The authorities stated that in order to recognise the applicant’s entitlement to have the input VAT deducted, the VAT had to be entered in the accounting records of the supplier (see paragraph 13 below). Therefore, they would have to crosscheck those records and verify that the VAT had been properly reflected as an obligation to the State budget. When the cross-check was carried out, however, the supplier declared that the relevant accounting records had been lost. Since the authorities could not verify whether the VAT had been reflected accordingly, they refused to deduct it. As for the applicant’s argument that his supplier’s 2000 tax assessment did not contain any irregularities regarding the said supplies, the authorities dismissed it as being irrelevant for the proceedings at issue.

The applicant sought judicial review. During the proceedings and following a request on the part of the applicant, the Veliko Turnovo Regional Court ordered an expert report. The applicant put questions to the expert. In a judgment of 30 July 2004 the court dismissed the applicant’s appeal and upheld the 2003 tax assessment. The court found that the tax authorities’ refusal to recognise the applicant’s right to have the VAT he had paid deducted was correct because the supplier’s accounting records had been lost, making it objectively impossible to verify whether the VAT had been properly charged and reflected as an obligation to the State budget. The court also noted that although the applicant had had an opportunity to do so, he had not questioned the expert about those supplies and had failed to rebut the statements of the tax authorities in the tax assessment.

The applicant lodged a cassation appeal, and in a final judgment of 10 May 2005 the Supreme Administrative Court upheld the tax assessment. The court found that during the proceedings the applicant had submitted only documents originating from his own accounting records. Those documents, however, could not have served as evidence given the subject matter of the case. The court further noted that the applicant had failed to question the expert about the contested supplies. Having regard to the applicant’s failure to rebut the authorities’ findings and in the absence of the supplier’s accounting records, the court concluded that it had been impossible to establish whether the VAT had been entered in them, which was one of the pre-conditions sine qua non for allowing the applicant to have the input VAT deducted.

It is unclear whether the supplier was penalised for his failure to keep his accounting records diligently and in line with the relevant domestic provisions (see paragraph 16 below).

On an unspecified date the applicant paid part of the debt under the 2003 tax assessment, namely BGN 5,132.63 (EUR 2,624). In 2005 enforcement proceedings were instituted against the applicant for the collection of the remaining debt. It is unclear how the proceedings unfolded until 2010, when they were apparently resumed. The proceedings were still pending at the time of the latest information from the applicant.

Under the VAT Act 1993, input VAT, referred to as “tax credit” in domestic legislation, was the amount of VAT which a taxable person had been charged on goods or services received under a chargeable transaction or from the importing of goods or services (section 24(1)). The VAT was to be charged by the supplier (section 24(2)(2)). The recipient should have been in possession of a VAT invoice which met the statutory requirements (section 24(2)(6)). In order for the recipient to have the right to deduction of VAT, it was mandatory for the supplier to have reflected the VAT charged to the recipient in his accounting records as an obligation to the State budget (section 24(2)(2) with reference to paragraph 3(e) of the Additional Provisions of the VAT Act 1993).

The relevant provisions of the VAT Act 1999, which replaced the 1993 Act, are summarised in the case of Bulves AD v. Bulgaria (no. 3991/03, §§ 20-28, 22 January 2009). In particular, the supplier’s obligation to reflect the VAT that he has charged in his accounting records remained unchanged (section 64(1)(2) in relation to section 55(6) of the 1993 Act).

The VAT Act 2007 replaced the 1994 Act to include in national legislation the latest EU legislation in the sphere of VAT. The explicit requirement that, in order for the right to have input VAT deducted to arise, the supplier had to have reflected it in his accounting records, was abandoned.

Pursuant to the Accountancy Act 2001, accounting documents relating to tax obligations must be maintained by the trader for a period of up to five years after the expiry of the statutory time-limit for the relevant obligation (section 42(1)(3)). Failure to observe that obligation is sanctioned by an administrative penalty (section 47(4)).

The general rules of the law of tort are set out in sections 45 to 54 of the Obligations and Contracts Act 1951 (“the 1951 Act”). Section 45(1) provides that everyone is obliged to make good the damage which they have, through their fault, caused to another. Under section 45(2), fault is presumed until proved otherwise.

In that connection, a recipient may successfully seek pecuniary damages from a supplier when the latter has acted in violation of the relevant VAT provisions, resulting in the authorities’ refusal to deduct the input VAT (for example, if the supplier has failed to issue an invoice and to enter the tax in its accounting records, issued invoices but failed to enter the tax in its monthly declaration to the authorities, or failed to submit the relevant documents proving that he has discharged his VAT reporting obligations to the authorities) (реш. № 1158 от 5 ноември 2008 г. на ВКС по гр. д. № 3225/2007 г., IV г. о.; опр. № 55 от 3 февруари 2009 г. на ВКС по т. д. № 742/2008 г., II т. о.; опр. № 170 от 30 декември 2008 г. на ВКС по т. д. № 480/2008 г., II т. о.; реш. № 304 от 20 октомври 2005 г. на АС-Велико Търново по гр. д. № 151/2005 г.; реш. № 110 от 9 юли 2010 г. по в. т. д. № 41/2009 г. на АС-Варна; реш. от 10 юни 2010 г. на ОС-Стара Загора по гр. д. № 1164/2009 г.; реш. № 476 от 9 май 2011 г. на РС-Велико Търново по гр. д. № 4230/2010 г.). The compensation granted for the pecuniary damage suffered is usually in the amount of the paid VAT plus the relevant interest.

Section 1 of the State and Municipalities Responsibility for Damage Act 1988 (Закон за отговорността на държавата и общините за вреди – “the 1988 Act”) provides that the State and municipalities are liable for damage suffered by individuals (and since 1 January 2006 also legal persons) as a result of unlawful decisions, actions or omissions by their organs and officials committed in the course of, or in connection with, the carrying out of administrative action.


CASE OF RUSU LINTAX SRL v. THE REPUBLIC OF MOLDOVA

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

The applicant is a limited liability company incorporated under Moldovan law.

On 11 June 2008 the Supreme Court of Justice acknowledged the applicant company’s entitlement to a plot of land adjacent to a warehouse it owned. The judgment ordered the Public Property Agency to sell the plot of land to the applicant company. The judgment was final.

On 24 December 2008 the Supreme Court of Justice upheld an application for revision lodged by a third party, quashed the final judgment of 11 June 2008 and remitted the case for a fresh examination on the merits. As new evidence the court cited a letter dated 2 November 2007 from the Public Property Agency which, referring to the disputed plot of land and other plots, listed the legal provisions applicable to the sale of land that was public property.

After a fresh hearing, on 16 June 2010 the Supreme Court of Justice dismissed in a final judgment the applicant company’s claims in respect of the plot of land as unsubstantiated.