Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman punishment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicants are:

The applicants live in Moscow.

At the material time the first applicant was the Chairman of Memorial, a Russian non-governmental human rights organisation. The second applicant was a reporter for REN TV, a Russian television company. The third applicant was a camera operator and the fourth applicant an assistant camera operator with REN TV.

Following the death of a six-year-old boy, Rakhim Amriev, in the course of a counter-terrorist operation in the Chemulga settlement in Ingushetia on 9 November 2007, a protest meeting against abuse of authority by the security forces was planned in Nazran, the capital of Ingushetia, for 24 November 2007. On 22 November 2007 REN TV dispatched a team consisting of the second, third and fourth applicants in order to cover the protest planned for 24 November 2007. The first applicant was on a business trip in Nazran at that time. All four applicants were staying in the Hotel Assa in Nazran (“the hotel”).

On 23 November 2007 at about 9 p.m. the first applicant returned to the hotel from Memorial’s office in Nazran. Two and a half hours later (at about 11.30 p.m.), three men in balaclava masks and camouflage uniforms, armed with automatic weapons, burst into his room. The men neither introduced themselves nor produced any documents. They pointed their guns at the first applicant, ordered him to lie face down on the floor and asked him the reason for his trip to Ingushetia. The applicant explained that he worked for the NGO and had arrived in Nazran to monitor the human rights situation in Ingushetia. The men collected all of the applicant’s belongings and put them into a bag. He attempted to protest but was kicked in the ribs by one of the intruders. They then pulled a black plastic bag over his head, took him out of the hotel and forced him into a minibus.

On the same evening, the three other applicants returned to the hotel from Vladikavkaz, where they had been working on a news story. At about 11 p.m. they gathered in the second applicant’s room. At about 11.30 p.m. five men in balaclavas and camouflage uniforms, armed with automatic weapons, burst into the room. Without any explanation, they forced the third and fourth applicants to the floor, kicked them, and put black plastic bags over their heads. These two applicants were then taken down to the lobby and put into the minibus with the first applicant. Despite the bag over his head, the third applicant was able to see other figures dressed in camouflage uniforms in the lobby.

When the intruders broke into the second applicant’s room, they struck him on the shoulder with a rifle butt so that he fell onto the floor. They then ordered him to look away. In reply to his question as to their identities, the men kicked him and hit him with their rifle butts. One of the intruders told him in unaccented Russian that they were from the Ministry of the Interior. They collected his personal belongings and his professional equipment and put it into bags. They then pulled a black plastic bag over his head and, continuing to beat him, took him out of the room and down to the minibus.

At the time of their abduction, the applicants were wearing jeans or tracksuit trousers, shirts, T-shirts and slippers and were taken out as they were. The abductors did not allow them to put on shoes or warm clothing.

In the minibus one of the abductors asked the second, third and fourth applicants who they were. They introduced themselves. The first applicant also started to explain who he was but was silenced with a number of blows. One of the abductors told the driver that the hotel had been “mopped-up” and ordered him to drive off. The applicants were ordered to be silent and to keep their heads bowed; the abductors threatened them with beatings and promised they would shoot them if they did not obey. All of the abductors spoke unaccented Russian.

The minibus drove for about an hour. Initially it went through the streets of Nazran. The windows were not obscured and through the bags on their heads the applicants could see the streetlights and the headlights of passing cars. According to the third applicant, the bag on his head was loose enough to enable him to see that their abductors did not put aside their weapons during the drive. He concluded they must be State agents.

Some time later the minibus drove along a country road and stopped in a snow-covered field. The applicants were taken out of the minibus one by one and beaten up with kicks and blows from rifle butts. One of the abductors told the applicants that they would be shot and ordered his colleagues to fetch silencers from the bus. The applicants thought that they were going to be executed on the spot. One of the abductors checked the minibus, but could not find the silencers. The abductors ordered the applicants to remain on the ground until they had left, threatened to kill them if they returned to Ingushetia in future, and drove off. The applicants took the bags off their heads and saw a white Gazel minibus driving away.

The applicants ran off in the opposite direction, fearing that their abductors would return to execute them. Walking in the snow, they suffered from the cold as they had neither overcoats nor proper shoes. After about an hour they reached the Nesterovskaya settlement, where they knocked on local residents’ doors asking for help. After some time one of the residents let them in and called the police. The police arrived and took the applicants to the local police station, where they were provided with medical assistance.

Early in the morning of 24 November 2007 the applicants were taken by the police to the Nazran District Department of the Interior (Отдел внутренних дел Назрановского района (РОВД)) (the Nazran ROVD) and made statements concerning their abduction and illtreatment. The second applicant asked a police officer whether he knew who was responsible for the incident. In reply the officer did not say anything but typed on his mobile phone three letters “FSB” (ФСБ), (the Russian Federal Security Service (Федеральная Служба Безопасности)).

On 24 November 2007 the Ingushetia Investigative Committee (“the investigative committee”) opened an investigation into the incident under Articles 139, 144 and 161 of the Russian Criminal Code (violation of privacy, obstruction of the lawful professional activity of journalists, and robbery) and opened criminal case no. 07560126. In the decision it was stated that the crime in respect of the applicants had been committed by unidentified perpetrators who had used violence.

On 24 November 2007 the investigators questioned the second applicant, who stated that at about 11 p.m. on 23 November 2007 he and the third and fourth applicants had been in the second applicant’s room at the hotel when a group of five or six armed men in balaclava masks and camouflage uniforms had forced their way into the room. The men had been armed with automatic rifles. The applicants thought that they must be from a law-enforcement agency. The intruders had searched the room and collected the applicants’ personal belongings and their professional equipment. They had then blindfolded the applicants, taken them down to the minibus and driven somewhere. They had stopped in a field and had subjected the applicants to severe beatings with rifle butts and kicks, as a result of which the second applicant had twice lost consciousness. Thereafter the abductors had driven off and the three applicants had spoken to the first applicant, who introduced himself as Mr Orlov. They had then made their way to the nearest village, where they had gone to the local police station, and from there they had been taken back to Nazran.

On the same date, 24 November 2007, the investigators questioned the third and fourth applicants, whose statements were similar to that of the second applicant. In particular, both applicants also stated that the abductors, who had also beaten them unconscious, must have been from a law-enforcement agency.

On the same date, 24 November 2007, the investigators questioned the first applicant’s colleague, Ms E.S., who stated that she had been called to come to the police station, where she had found the first applicant covered in bruises and hematomas, without an overcoat, and wearing slippers and dirty clothing.

On 24 November 2007 the investigators questioned the hotel duty manager, Ms M.K., who stated that their hotel was usually guarded by police security officers, but they had been called off duty at about 9 p.m. on 23 November 2007 when a Deputy Minister of the Interior of Ingushetia had telephoned the hotel and ordered them to leave the premises. At least one other Deputy Minister of the Interior of Ingushetia had been staying at the hotel at the material time and his security officers had also been called off. The witness had asked the second Deputy Minister whether he had been aware that his security had been called off, and he had confirmed that he had been aware of it. At about 11.30 p.m. on 23 November 2007 a group of about fifteen armed men in balaclavas and camouflage uniforms had arrived at the hotel in a white Gazel minibus without registration plates. The men had told her that they had been conducting an identity check within the framework of counter-terrorist operation and ordered her to provide the registration log of the hotel’s guests. Having checked the names, some of the men had gone upstairs whilst others had stayed in the lobby and held the staff at gunpoint. The intruders, who had communicated among themselves by gestures, had taken her and the other staff members’ mobile telephones and removed the sim-cards and the batteries. About twenty minutes later the intruders who had gone upstairs had returned with four blindfolded men with sacks over their heads and had put the four men into the white minibus and driven off. The witness had not gone into the rooms raided by the intruders, but had been able to see from the corridor that everything inside the rooms had been turned upside-down.

On 24 November 2007 the investigators twice questioned the hotel’s managing director, Mr R.M., who stated that he had not been at the hotel during the events in question, but had been informed by his staff about the abduction of four of the hotel’s guests.

On 24 November 2007 the investigators questioned the first applicant, whose statement was similar to the account of the events submitted to the Court. In addition, he stated that at about 11.30 p.m. on 23 November 2007 someone had knocked at the door of his room and a female voice asked him to open. After that, the intruders had rushed in and subjected him to questioning about the purpose of his visit to Ingushetia. They had thrown him to the floor, collected his mobile telephone, documents and other belongings, blindfolded him with a black sack and taken him out to the minibus, where he had seen the other applicants. The abductors had then driven for about an hour, stopped and taken the four men out and assaulted them with kicks and rifle butts. The abductors had threatened to kill the first applicant; during the beating, the sack over his head had been displaced and he had seen the abductors and their vehicle. The abductors had left the applicants lying in the field in the cold, with no warm clothing, and had driven off having told them not to return to their region.

On 24 November 2007 the investigators again questioned the second applicant, whose statement was similar to the one given previously and to the account before the Court. He additionally stated that he was sure that the abductors, who had acted as a well-organised professional group, must have been agents of a police special task unit. During their search of his room, one of the abductors had told him that they were from the police and that they would take him to the police station. The applicant also provided the investigators with a list of items stolen by the abductors, including his personal belongings, cash, passport, professional equipment, and credit cards and stated that the overall monetary value of his stolen items amounted to 46,500 Russian rubles (RUB) (about 1,300 euros (EUR)) and that of the stolen company’s equipment to 580,000 RUB (about 16,200 EUR).

On 24 November 2007 the investigators again questioned the third applicant, whose statement was similar to the account before the Court. He also stated that the abductors, who had acted as a well-organised professional group, had beaten him and the other applicants severely, and that he had lost consciousness at least once. He also provided the investigators with a list of items stolen by the abductors, including his personal belongings, cash, documents and professional equipment.

On 24 November 2007 the investigators again questioned the fourth applicant, whose statement was similar to the account before the Court. He also stated that the abductors, who had acted as a well-organised professional group, had beaten him and the other applicants severely, and that when he had been taken out to the abductors’ minibus, the first applicant had already been there. He also provided the investigators with a list of items stolen by the abductors, including his personal belongings, cash, documents and professional equipment.

On 26 November 2007 the investigators questioned police sergeant I.S., who stated that on the evening of 23 November 2007 he and three other police officers, G.O., A.M. and Kh.T., were on their regular duty at the hotel, where they had been assigned to ensure the safety of the hotel guests in addition to the hotel’s own security service. The police at the hotel worked in groups of four officers, in twenty-four hour shifts, starting at 9 a.m. each day. In addition to the police presence at the hotel, the administrator also had a special button to call the police in case of emergency. At about 9 p.m. on 23 November 2007 the administrator had told them that Deputy Minister of the Interior A.Kh. had telephoned. Officer G.O had spoken to the Deputy Minister, who had ordered the officers to leave the hotel and go to the building of the Ministry of the Interior. The witness and his colleagues had gone to the Ministry of the Interior, where Colonel Gu. had told them to remain, without giving any explanation. At 9 a.m. on the following morning, the four officers had been dismissed from their shift and gone home. According to the witness, he had learnt of the applicants’ abduction from hotel staff two days after the event. Prior to 23 November 2007 their security team had never been called off duty from the hotel.

On 26 November 2007 the investigators also questioned the hotel security guard, Mr S. Dz., who stated that on the evening of 23 November 2007 he had been on duty at the hotel with his colleague Mr Z. Ko. The hotel’s security service worked in teams of two guards in twenty-four-hour shifts. A team of four police officers had also guarded the hotel. At least two deputy Ministers of the Interior of Ingushetia had been staying at the hotel. The hotel’s lobby was equipped with CCTV cameras. At about 9.50 p.m. the police officers had left the hotel, which they had never done before. At about 11.30 p.m., as he was locking the back door, he had seen a group of five armed men in balaclavas and camouflage uniforms who had ordered him and his partner to stand up against the wall. The witness had thought that the men must have been a police special forces unit conducting a special operation. The men had searched them and taken them into the hotel lobby, where there were five more armed men in balaclavas and camouflage uniforms holding at gunpoint the duty manager, Ms M.K., and restaurant employees Ms O.A. and Mr T.Ga. The men had behaved like a special forces unit during a special operation; in unaccented Russian they had ordered everyone to lie down on the floor, be quiet and not to move. They had not beaten anyone. At about 12.30 a.m. they had left. The witness had not seen whether the intruders had taken anyone with them. He stressed that he had been certain that the intruders must have been law-enforcement agents. It was only on the following day that he had learnt that the intruders had abducted the applicants.

On 26 November 2007 the investigators questioned the other security guard who had been on duty at the hotel on the evening of 23 November 2007, Mr Z. Ko. His statement was similar to that of his colleague Mr S. Dz. and he also provided a detailed description of the intruders’ firearms and stated that they had acted under a chain of command. The intruders had guarded all the exits and entrances to the hotel, the stairs and the elevator. Then they had taken his and the others’ mobile telephones, removed the batteries and sim-cards and thrown them onto the floor. While they had been held at gunpoint in the lobby, some of the women had started crying and panicking. One of the intruders, who had acted like the one in charge, had told them in unaccented Russian that they just needed to check something and would then leave. The witness emphasised that the intruders had acted as a well-organised group and that they must have been a highly-trained special police unit. The intruders had spent about half an hour at the hotel. After their departure, he had learnt that they had taken away the applicants.

On 27 November 2007 the investigators questioned the managing director of the hotel’s restaurant, Mr T.Ga., who stated that at about 11.10 p.m. on 23 November 2007 he had just gone down from the restaurant into the lobby with his colleagues Ms O.A. and Ms L.Dz. when three men armed with machine guns, wearing balaclavas and camouflage uniforms, had run up to them and ordered them by gesturing to lie down on the floor and not to move. About ten to fifteen more intruders had already been in the lobby; they had not spoken among themselves and had communicated by gesturing. Both of the hotel security guards were already lying on the floor. The intruders had taken his mobile telephone and removed its sim-card and battery.

On 27 November 2007 the investigators questioned police officer G.O., who made a statement about the events similar to that given by his colleague, sergeant I.S. (see paragraph 27 above). In addition he stated that he and his colleagues had been providing security for the hotel’s residents, including the Deputy Ministers of the Interior Selivanov and Seliverstov, who were in residence there at the time. At about 8 p.m. on 23 November 2007 a duty officer from the Ministry of the Interior had arrived at the hotel and told them that a Deputy Minister of the Interior had ordered the security team to leave the hotel and go to the Ministry of the Interior building. The witness had refused to do so, as there had been no orders from his superior officers to this effect. Then, about two hours later, the Deputy Minister of the Interior in charge of the borders, Mr A. Kh., had phoned the hotel and ordered the police security group to go to the Ministry of the Interior to secure its premises. The witness and his colleagues had spent the night there and it was not until the next morning that he had learnt about the applicants’ abduction from the hotel.

On the same date, 27 November 2007, the investigators also questioned the police officers Kh.T. and A.M., whose statements were similar to those of their colleagues I.S. and G.O (see paragraphs 27 and 31 above).

On 27 November 2007 the investigators also questioned the hotel’s cook and a waitress, Ms L.Dz. and Ms O.A., whose statements were similar to that of Mr S. Dz. (see paragraph 28 above). In addition, both women stated that they had seen the applicants being taken away by the intruders and that the applicants, who had had black sacks over their heads, had not been wearing outdoor shoes or warm clothing. In addition, Ms O.A. had seen the abductors’ white Gazel minibus without official registration plates.

On 27 November 2007 the investigators again questioned the hotel’s administrator, Ms M.K., who reiterated her earlier statement (see paragraph 21 above) and added that the intruders had told her that they had come to conduct an identity check and were from the anti-terrorist unit of the police. They refused to let her see their service documents. Some of the intruders had stayed in the lobby while others had ordered her to go to the first applicant’s room to ask him to open the door, which she had done. Later, she had seen the men take the applicant outside and had seen their white minibus. She also stated that she was now not sure whether the intruders had in fact been from a law-enforcement agency and that she did not remember whether anyone had called off the four police officers who had been on duty at the hotel on 23 November 2007.

On various dates in November and December 2007 the investigators questioned two police officers from the Nesterovskaya police station and four officers from the Sunzhenskiy district police station whose statements concerning the circumstances of the applicants’ arrival at the police station in the early hours of 24 November 2007 were similar to the applicants’ account before the Court.

On 9 December 2007 the investigators questioned Ingushetia Deputy Minister of the Interior A. Kh., who stated that he was in charge of the security of the administrative border of Ingushetia. To his knowledge, the hotel’s police security service had consisted of officers from the Special Task Unit, in view of the fact that high-ranking law-enforcement officials were staying at the hotel, including two Deputy Ministers of the Interior, Mr Seliverstov and Mr Selivanov. He had called the police officers off duty from the hotel on the evening of 23 November 2007 as there had been a threat of attacks on the building of the Ministry of the Interior and the officers had therefore been needed elsewhere. He had not known that on that date the applicants had been staying at the hotel and learnt of their abduction and beating only the following morning when he read the police service incidents report.

On 17 December 2007 the investigators questioned Deputy Minister of the Interior of Ingushetia Mr V. Selivanov, who stated that he had been resident in the hotel since mid-October 2007. On the evening of 23 November 2007 he had been in his room, had not heard anything and had not seen the police security guards that evening. He had been unaware of the reasons for the guards’ recall from the hotel and learnt of the applicants’ abduction and ill-treatment only the next day.

On 18 January 2008 the investigators questioned First Deputy Minister of the Interior of Ingushetia Mr S. Seliverstov, whose statement was similar to that given by Mr V. Selivanov (see the paragraph above).

On various dates in January and March 2008 the investigators questioned eleven police officers, who stated that on 23 November 2007 they had manned various checkpoints on the motorway between Ingushetia and Chechnya, on the roads between Nazran and the Ordzhenikidzevskaya settlement, and in the vicinity of the local airport. They did not recall the white Gazel minibus with abductors passing through their checkpoint due to the large number of similar vehicles going through daily, but said that any vehicle of that type passing through in the evening or at night should have been stopped and registered in the log.

On 20 February 2008 the investigators questioned Mr Sh.A. and Mr A.Ge., both of whom stated that they had been present during the crimescene examination on 24 November 2007 at the hotel and that during the examination they had not seen any CCTV cameras on its premises.

On 23 February 2008 the investigators questioned the hotel manager Ms L.T, who stated that she had not been at the hotel on 23 November 2007.

On 24 February 2008 the investigators questioned Mr Akh.D., who stated that on the night of 23 November 2007 he had been at home in the Sunzhenskiy district of Nesterovskaya when at about 1 a.m. four men had knocked at his door. The men, who were not wearing warm clothing, had traces of beatings and were suffering from the cold; they had told him that they had been abducted from Nazran, beaten and left in the fields near the village. He had let the men in and then had gone to the Nesterovskaya police station to report the incident.

On various dates in February 2008 the investigators also questioned several witnesses in Nesterovskaya whom the applicants had asked for help on the night of 24 November 2007 and who had refused to open the door.

On various dates between December 2007 and April 2008 the investigators questioned more than forty employees of the school situated near the hotel. The persons questioned were primarily teachers or administrators. All of them gave similar statements to the effect that they worked at the school during the day, that they had therefore not witnessed the events late at night on 23 November 2007 and had learnt about them some time later. None of the school’s security guards or night watchmen was questioned.

On 24 November 2007 the investigators granted each of the applicants victim status in the criminal case. In the decision they listed the items of their professional equipment and personal belongings taken by the perpetrators, including cash, credit cards, mobile phones, clothes, a laptop, tape recorder, service identity cards and a digital camera.

On the same date, 24 November 2007, the investigators ordered a forensic expert examination of each of the applicants. On 29 November 2007 the medical forensic examiner issued report no. 735, which described the numerous bruises and hematomas received by the third applicant as being ones of a “light degree of gravity”. The same report described the injuries of the second applicant as unsuitable for forensic categorisation due to the absence of a chest X-ray and conclusions of other medical specialists. As for the injuries of the first and fourth applicants, they did not qualify for a degree of gravity, there being a “lack of lasting impact on his health”.

On 24 November 2007 the investigators examined the crime scene at the hotel, collected some fingerprints and ordered an expert forensic examination thereof. No other evidence was found. On 12 December 2007 the experts concluded that the fingerprints were not suitable for examination.

On 25 November the applicants left for Moscow, where on 26 November 2007 the second applicant was admitted to hospital and received medical treatment in connection with his injuries, which included cerebral concussion. He was discharged from hospital on 4 December 2007.

On 26 November 2007 the investigators seized and examined the registration log of the hotel guests.

On 26 November 2007 the head of the Ingushetia investigative committee issued instructions for the investigators, ordering them to take these steps, amongst others:

“ [...] 4) to identify and question the Deputy Minister of the Interior who, according to the statement of Ms M.K., telephoned the hotel at about 9 p.m. and recalled the police security officers; [...]

9) to identify the police officers who had manned the checkpoints on motorway “Kavkaz” on 23 November 2007 and question them about the passage of the Gazel minibus and examine the passing vehicles’ registration logs; [...]

15) to identify persons who had been staying at the hotel at the material time and question them about the events; [...]

17) to establish whether there were CCTV cameras inside and outside the hotel and examine their contents; [...]”

On 27 November 2007 the investigators took fingerprints from six employees of the hotel for comparative forensic examination of the fingerprints collected at the crime scene.

On 5 December 2007 the investigators examined the registration log of vehicles passing the Volga-20 checkpoint during November 2007. No passage of a Gazel minibus on 23 November 2007 was recorded.

On 7 December 2007 the Nazran town police department replied to the investigators that there had been no CCTV cameras in the vicinity of the crime scene.

On 8 December 2007 the Ingushetia Minister of the Interior, Colonel Medov, wrote to the investigators, stating that on 23 November 2007 his Deputies Mr Seliverstov and Mr Selivanov, as well as a number of other police officers from other regions of Russia had been staying at the hotel. They had all “been resting in their rooms” at the time of the abduction and had no pertinent information to offer the investigation.

On 10 December 2007 the first applicant asked the investigators to change the legal classification of the crimes committed against him and the other applicants to that of “exceeding official powers”, a crime that is committed by State agents and punishable under Article 286 of the Russian Criminal Code. In particular, he stated that within the scope of their official powers, the perpetrators had been able to unlawfully break into the applicants’ rooms, search them, take away their property, deprive them of liberty and subject them to ill-treatment.

On 13 December 2007 the investigators rejected the request as unsubstantiated, referring to the lack of evidence of the involvement of State agents in the incident.

On 4 February 2008 the investigators asked the hotel to inform them whether any CCTV cameras capable of recording had been in use on 2324 November 2007. On 8 February 2008 the hotel replied that there had been “no working CCTV cameras” on their premises on the dates in question.

On 22 February 2008 the investigators again examined the crime scene at the hotel. No evidence was collected.

On 22 May 2008 the investigators requested the permission of the Nazran District Court to obtain a list of the mobile telephone calls made between 11 p.m. on 23 November and 12 a.m. on 24 November 2007 in the vicinity of the hotel. Permission was granted on 30 May 2008.

On 26 May 2008 the preliminary investigation was suspended for failure to identity the perpetrators.

On 27 May 2008 the head of the Ingushetia Investigative Committee overruled the decision to suspend proceedings as premature and unsubstantiated and ordered that the investigators take such additional steps as were possible even in the absence of identified perpetrators.

On 29 May 2008 the first applicant complained to the head of the Nazran Branch of the Investigative Committee, alleging that the crime against him and the other applicants had been perpetrated by State agents but that the investigation was not taking any steps to examine this theory. He requested that the theory of State agents’ involvement be examined. In particular, he pointed out the following facts:

- due to the security threats in the region at the material time, the hotel was usually guarded by several police officers. However, about two hours prior to the abduction, the police officers had been recalled by their superior and a vehicle had been despatched to pick them up and take them to another location. The police officers had therefore been removed from the hotel in order not to create obstacles for the applicants’ abduction;

The applicant asked that his request be included in the investigation file, but received no reply.

On 28 January 2009 the first applicant requested permission to have access to the investigation file.

On 30 January 2009 the investigators granted the request in part, namely in respect of the records of investigative actions which had been carried out with the applicants’ participation and the investigator’s decisions to order forensic examinations and expert reports. Access to the rest of the file’s contents was refused.

On 7 April 2009 the first applicant appealed against the above refusal. On 24 April 2009 the Magas District Court in Ingushetia dismissed the complaint, stating that victims in criminal proceedings could familiarise themselves with the entire contents of the investigation file only after completion of the investigation. On 9 June 2009 the Ingushetia Supreme Court upheld that decision on appeal.

On 28 April 2008 the first applicant asked the investigators to inform him of the progress in the criminal proceedings. On 3 June 2008 they replied that the investigation had been suspended on 26 May 2008.

On 10 June 2008 the investigators familiarised the first applicant with the conclusions of the forensic medical examination. He pointed out that in addition to the bruises and hematomas received as the result of the beating by the abductors, he had been subjected for about an hour to extremely cold temperatures while wearing only the very light clothing in which he had been taken from the hotel.

On 26 June 2008 the investigation was again suspended.

On 28 January 2009 the first applicant’s lawyer requested access to the entire contents of the investigation file. On 30 January 2009 he was allowed to familiarise himself only with documents concerning the investigative steps taken with his participation.

On 11 April 2011 the Interim Deputy Head of the Ingushetia Investigative Committee overruled the decision to suspend the investigation as premature and unsubstantiated and ordered that it be resumed and the investigators take additional steps.

On 16 March 2011 the investigators requested that the Interim Deputy Prosecutor of Ingushetia order the police to take steps to examine the theory of the involvement of State agents in the applicants’ abduction and ill-treatment.

On 3 April 2011 the investigators issued an official statement addressed to the Minister of the Interior criticising the failure of the police to take the steps necessary to identify the perpetrators of the applicants’ abduction. The document stated:

“... from the very beginning of the investigation no operational search information of relevance and importance has been provided [to the investigators] regarding the identities of the possible culprits.

Such violations of the procedure committed by the operational officers of the police create obstacles for the full, thorough and objective investigation....the facts stated demonstrate the Ingushetia police’s complete ignorance in respect of the requirements of criminal procedure, their lack of discipline and the absence of any control over their work by the senior officers.

There can be no change in this unhealthy situation as regards the operational units of the Ingushetia Ministry of the Interior [the police] when it comes to the execution of the investigators’ lawful requests without your personal intervention. Your intervention could change the basis of the operational search officers’ attitude to the execution of their tasks...”

On 30 May 2011 the Head of the Criminal Police Department of the Ministry of the Interior replied to the investigators, stating that as the result of their criticism they had conducted an internal inquiry and implemented various disciplinary measures against the officers responsible for their failure to take the necessary steps.

On 4 May 2011 the hotel’s administration replied to the investigators’ request of 29 April 2011, stating that on 23 November 2007 there had been no CCTV cameras on their premises.

On 11 May 2011 the investigation was suspended again. The proceedings are still pending.

The Government did not contest the factual circumstances of the events as presented by the applicants. They added only that at the material time four Deputy Ministers of the Interior had been residing at the hotel. In addition to Mr Seliverstov and Mr Selivanov, Mr Seriy and Mr Magera were also staying there.

In their submission before the Court on 1 February 2013 the Government stated that “it has been positively confirmed that on 23 November 2007 [the applicants] were subjected to ill-treatment by unidentified perpetrators. There is no information showing that the crime was committed by representatives of the law-enforcement agencies or other State agents”.

In reply to the Court’s request for a copy of the investigation file, the Government furnished its contents, amounting to 1182 pages. According to the applicants, the documents submitted did not contain copies of the transcripts of the questioning of the first applicant, in which he had stressed the involvement of State agents in the abduction and ill-treatment.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life)

Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant was born in 1953 and lives in Kharkiv.

In 1985 she got married and gave birth to her first daughter. In 1987 she gave birth to her second daughter.

The applicant’s relationship with her husband deteriorated and in August 1994 she and her daughters moved into a house rented by her husband in the village of Pisochyn. Her husband visited his daughters from time to time.

In late November or the beginning of December 1994 the applicant’s husband took the children back to Kharkiv. The applicant was left alone.

On 17 December 1994 the applicant was admitted to Kharkiv Regional Psychiatric Hospital (“the psychiatric hospital”), a State-run institution. According to the medical records, the applicant was brought by ambulance since she was in a reactive state and showed signs of mental disorder.

Soon after her admission to the psychiatric hospital, the applicant was diagnosed as suffering from paranoid schizophrenia and given treatment.

Between January 1995 and November 1997 the applicant unsuccessfully and repeatedly asked to be discharged from the psychiatric hospital and lodged complaints about her internment. During that time the applicant was provided with neuroleptic treatment.

On 7 November 1997 the applicant escaped from the psychiatric hospital and found shelter with some acquaintances. By that time she was divorced.

On 23 December 1997, at the applicant’s request, she was admitted to Kharkiv Municipal Psychiatric Hospital for in-patient psychiatric assessment. According to the medical records, during the applicant’s stay in the municipal hospital she did not take any medicine; discussions with psychiatrists were the only treatment.

On 4 February 1998 the applicant was discharged from that hospital with the conclusion that her mental health was normal.

Subsequently, the applicant re-established contact with her children and started living with them.

Following the applicant’s complaint, on 17 February 1998 the Kharkiv Regional Prosecutor’s Office instituted criminal proceedings against P., the applicant’s doctor, on suspicion of unlawful placement of the applicant in a psychiatric hospital, an offence under Article 123-2 of the Criminal Code of 1960.

On 21 July 1998 an expert panel conducted a forensic psychiatric examination and found that the applicant was not suffering from any mental illness. It further concluded that the applicant’s admission to the psychiatric hospital on 17 December 1994 might have been necessitated by her state of health; however, during her stay in the psychiatric hospital she had been wrongly diagnosed, she had not been assessed comprehensively, and she had not been provided with correct medical treatment from the outset, in December 1994.

On 9 October 1998 the expert panel additionally concluded that the applicant could have been discharged from the psychiatric hospital on 17 January 1995 on the basis of her discharge request, since her mental state had not suggested that she had posed a danger to herself or to the others.

On 24 February 1999 the applicant was recognised as a civil claimant within the framework of the criminal proceedings.

On 25 February 1999 the charges against P. were classified as negligence in the performance of official duties which resulted in grave consequences for the applicant.

On 9 April 1999 P. was committed to stand trial in the Kharkivskyy District Court.

On 20 June 2000 the case file was destroyed in a fire at the court house.

On 24 November 2000 the court remitted the case to the prosecutor’s office for supplementary investigation.

On 8 June 2001 the case was referred back to the court.

Between June 2001 and June 2002 some hearings were scheduled, but for various reasons none of them took place.

On 26 June 2002, in response to a complaint from the applicant, the Kharkiv Regional Department of Justice asked the President of the Kharkivskyy District Court to expedite the examination of the case, considering it to be unreasonably protracted.

On 24 February 2003 the Kharkivskyy District Court ordered the investigating authorities to carry out a further psychiatric assessment of the applicant.

On 14 April 2004 the investigating authorities ordered a psychiatric assessment of the applicant.

On 12 January 2005 the case was referred back to the court without this assessment having been carried out.

On 27 April 2005 the applicant, having regard to the fact that the case-file had been destroyed by fire in 2000, lodged another civil claim with the Kharkivskyy District Court seeking damages from P. and the psychiatric hospital for her unjustified psychiatric hospitalisation.

On 3 June 2005, at P.’s request, the Kharkivskyy District Court discontinued the criminal proceedings as time-barred.

The applicant appealed, alleging, in particular, that the impugned decision had been unlawful and that the examination of the case had been unreasonably protracted by the authorities. She further complained that the trial court had not examined her civil claim.

On 22 December 2005 the Kharkiv Regional Court of Appeal upheld the court decision of 3 June 2005.

On the same date the Court of Appeal delivered a separate ruling, drawing the attention of the Regional Council of Judges to the omissions by the Kharkivskyy District Court which had resulted in the protracted examination of the applicant’s case. It noted, in particular, that between 8 June 2001 and 3 June 2005 there had been an unjustifiable number of adjournments of the hearings and that there had been an unjustifiable two-year period of inactivity pending a forensic assessment which was never carried out.

The applicant appealed on points of law against the decision to discontinue the criminal proceedings, raising the same arguments as in her appeal. She asserted that the courts had failed to determine her civil claim.

On 13 May 2008 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal on points of law.

In March 2006 the applicant instituted separate civil proceedings against P. and the psychiatric hospital, claiming 10,000 Ukrainian hryvnias (UAH) from P. and UAH 90,000 from the psychiatric hospital by way of compensation for the damage sustained as a result of her unjustified hospitalisation. She alleged, in particular, that the three-year stay in the psychiatric hospital had caused her severe mental and physical suffering. She argued that she had constantly felt debased and treated like a deficient human being, whose opinion was of no value. In addition, she had been subjected to involuntary medical interventions. Furthermore, the applicant’s private and family life had been ruined.

On 31 January 2007 the Chervonozavodsky District Court of Kharkiv found that on 17 December 1994 the applicant had been admitted to hospital lawfully given the signs of mental disorder. It further found that during her stay in hospital, the applicant’s medical doctor, P., had been at fault for breaching a number of legal provisions governing psychiatric assistance. The court established that the requisite procedures for involuntary hospitalisation had not been followed; by contrast, if the applicant had been hospitalised as voluntarily patient, she ought to have been discharged on the basis of her request (see paragraphs 48-50 below). The court also noted that the applicant had repeatedly asked to be discharged and concluded that she could have been discharged as early as 17 January 1995 on the basis of such a request. The court found that as a result of those breaches of domestic law, the applicant had been wrongly diagnosed and mistakenly treated for a considerable time in the psychiatric hospital.

The court further noted that during her wrongful stay in the psychiatric hospital the applicant had been unable to freely exercise her rights or manage her life. It therefore concluded that the applicant had sustained non-pecuniary damage which should be compensated by the psychiatric hospital employing P. In reaching that conclusion, the court also referred to the criminal case against P. and the evidence collected by the investigating authorities in that case.

The court awarded the applicant UAH 7,000 in respect of non-pecuniary damage noting that, in determining that amount, it had taken into account the length of the applicant’s unjustified stay in the psychiatric hospital, the nature and the scope of physical and mental suffering, the enforced changes in her lifestyle, and the restrictions imposed on her rights as a citizen to freely arrange her life and take care of her own health.

The applicant appealed, seeking a higher amount of damages from both defendants.

On 19 April 2007 the Kharkiv Regional Court of Appeal upheld the judgment of 31 January 2007.

The applicant did not lodge a further appeal before the Supreme Court.


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

Remainder inadmissible (Article 35-3-a - Ratione materiae);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Robert Spano

The applicant was born in 1936 and lives in Skopje. He was a high-ranking official during the communist era. At the time of the events, he neither held a public office nor was a candidate for such an office.

On the basis of a request by a third person and of its own motion, on 27 May 2013 the Fact Verification Commission (“the Commission”) established in lustration proceedings that the applicant had collaborated with State security bodies. Relying on two files from the State Archives, it “established indisputably that [the applicant] gave information ... to State security bodies about individuals ... namely ... he collaborated with the State security services in a conscious, secret, organised and continuous manner as a secret collaborator.” Accordingly, it held that the applicant had fulfilled the condition for restricting his candidacy to or performance of public office. The Commission based its decision on the relevant provisions of the 2012 Lustration Act (see paragraphs 19, 23-26 below) and the Administrative Proceedings Act.

Referring to a report registered as file no. 6825, the Commission established that in 1963, after he had visited his brother in Sweden, the applicant had given information about his brother, his brother’s wife and other people to State security bodies. He also had provided information about other people after he had returned to the city of Gevgelija. The Commission established that the applicant had been engaged by the security services before leaving for Sweden and that they had intended to continue collaborating with the applicant. The file further noted that in 1964 the applicant had shared his impressions about his stay in Sweden with his father.

On the basis of documents in another file, file no. 2599, the Commission established that the applicant, while editor-in-chief of a newspaper in 1962 and afterwards, had provided information to the security services about a colleague, the colleague’s articles and his relations with other people.

The Commission’s decision was published on its website on 30 May 2013, in accordance with sections 29 and 31 of the Lustration Act (see paragraphs 25 and 26 below). It contained information about the applicant’s place of birth, his personal identification number and the positions he had held. The decision was served on the applicant on 4 June 2013.

On 11 June 2013 the applicant challenged the decision in the Administrative Court, arguing that the Commission’s findings based on file no. 6825 had been wrong since the file had obviously been about another person with the same name and not him. He submitted several documents to show that the lustration decision had been a result of mistaken identity. The documents were his birth certificate, which showed a date of birth that was different from the one in file no. 6825; an inheritance decision, certified by a notary public, attesting that the applicant had a sister rather than a brother; his notarised military card, which showed that in 1963 he had been doing military service in Bosnia and Herzegovina; and a death certificate showing that his father had died in 1962. He argued that he had never visited Sweden and had lived since 1955 in Skopje. He also challenged the veracity and authenticity of the documents in file no. 2599 and denied that he had ever collaborated with or provided any information about any colleague to the State security services, let alone that any such collaboration had met the criteria specified in section 18 of the Lustration Act (see paragraph 24 below). In that connection, he submitted that none of the documents in the file had been signed by him. Lastly, he complained about the fact that the decision on the Commission’s website had included his father’s name, despite the fact that the Lustration Act made no provision for the release of such information. He argued that his reputation, dignity, personal information and integrity had been compromised.

In a hearing held in private on 29 January 2014, the Administrative Court dismissed the applicant’s claim. The court held that the Commission had correctly established the facts and applied the relevant law. The court stated:

“[the Commission] established that there were documents in the State Archives created by the State security bodies confirming that [the applicant] had collaborated with State security bodies in a conscious, secret, organised and continuous manner and that he had obtained favours when being promoted, as set out in sections 14 and 18 of [the Lustration Act] ... The Commission correctly established that [the files in question] contained information provided by [the applicant], which had been used to restrict and violate the human rights and freedoms of other people on political and ideological grounds ... ”

As regards the applicant’s complaints of mistaken identity, the court stated:

“... the Commission’s decision clearly established collaboration with security bodies by [the applicant], by determining his personal identification number, place of birth and the office that he had held.”

As to his arguments that the Commission had erred in finding “conscious, secret, organised and continuous collaboration” with State security bodies, the court held:

“[the applicant] was entitled to obtain access to the documents attesting to his collaboration. In case of doubts about their veracity, he could have initiated proceedings before the competent court to prove their inaccuracy, before the impugned decision had been delivered.

In addition, the court considers that the above State security service documents on [the applicant’s] secret collaboration were drawn up on the basis of the rules and regulations of those bodies.”

Lastly, the court stated:

“The court made its decision at a hearing held in private because the Commission had correctly established the relevant facts [on the basis of written material] and [the applicant] had not submitted any evidence that led to different facts.”

On 7 March 2014 the applicant appealed to the Higher Administrative Court. He reiterated the complaints raised in his action in the Administrative Court and submitted that the latter court had not provided any reasoning regarding his complaint that the publication of the Commission’s decision on its website had violated his right to respect for his private and family life, his reputation and dignity. It had also disregarded his evidence that file no.6825 had not concerned him, but a person with the same name, which had led to facts being wrongly established. He stated that the court had also relied on evidence adduced by the Commission without analysing it in adversarial proceedings in the presence of the applicant or any other relevant witness or expert. He complained that the lower authorities had not explained why they had considered that he had collaborated with the security bodies in an intentional, secret, organised and continuous manner, as set out in the Lustration Act. He further complained about the lack of an oral hearing before the Administrative Court and argued that there had been no statutory provision allowing him to request such a hearing. Lastly, he contested the Administrative Court’s explanation about the possible legal avenues he could have used to challenge the veracity of the documents in file no. 2599. In that connection, he submitted that before 4 June 2015 he had not been aware of the existence of documents about his alleged secret collaboration with the security services. Furthermore, his arguments on that point should have been dealt with in the impugned proceedings.

On 12 June 2014 the Higher Administrative Court dismissed the applicant’s appeal and upheld the lower court’s decision. It found no grounds to depart from the facts as they had been established and the reasons given by the Commission and the Administrative Court. It stated:

“The Fact Verification Commission only checks whether or not there was collaboration with the security services; there are no adversarial proceedings, the documents created and held by the [security services] are regarded as facts ...”


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Civil proceedings;Article 6-1 - Reasonable time)

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

The applicants complained of the excessive length of civil proceedings and of the lack of any effective remedy in domestic law.


George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Pavlina Panova;Zdravka Kalaydjieva

The applicants, Ms Ekaterina Atanasova Lolova and Ms Kalina Iliyanova Popova, are Bulgarian nationals, who were born in 1978 and 1998 respectively and live in Toronto. The first applicant is the mother of the second applicant. They were represented before the Court by Ms S. Razboynikova, a lawyer practising in Sofia.

The Bulgarian Government (“the Government”) were represented by their Agent, Ms K. Radkova, of the Ministry of Justice.

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

The first applicant gave birth to the second applicant in 1998 and shortly thereafter ended her relationship with the child’s father, I.P., to whom she was never married.

In 2004 the Sofia District Court confirmed an agreement reached between the first applicant and I.P. According to the agreement, the first applicant was to exercise the parental rights related to the upbringing and daily care of the child, and I.P. was to see his daughter under a “free access regime”, which included the right to see the child in private as often as he wished after informing the mother and not less than two weekends a month, and 30 days during the child’s annual holidays.

The first applicant got married to a Bulgarian-Canadian citizen in Niagara Falls, Ontario, Canada, on 5 September 2007. She left her job in Bulgaria in April 2008 with a view to joining her husband in Canada.

During two periods, 30 November 2007 to 29 December 2007 and 5 July 2008 to 24 December 2008, the first applicant stayed in Canada with her husband. During the rest of the time, she lived in Bulgaria with her daughter. On 26 March 2009, the first applicant settled in Canada.

On 1 September 2006 the first applicant brought proceedings before the Sofia District Court under Article 72 of the Family Code 1985. She sought a decision from the court, in the absence of the father’s consent, to allow the child to be issued with a passport and to travel abroad to join her in Canada.

The Sofia District Court granted her claim on 3 June 2008. The court found that the possibility for the second applicant to travel abroad would enrich her life and stimulate her personal development. It considered that I.P.’s refusal to allow her to travel was provoked by his personal interest which should not be allowed to bear negatively on the child’s rights, especially since I.P. could seek protection of his rights in separate court proceedings. Nothing in the mother’s personality and demeanour was found to represent a risk for the child’s well-being. Guided by the primary interest of the child, the court recalled the United Nations Convention on the Rights of Children, which was ratified by Bulgaria, and held that the second applicant had the right to move about freely, including to leave her country.

Upon an appeal by I.P., the Sofia City Court confirmed the lower court’s findings on 7 May 2009. It found that, as the first applicant had married and settled in Canada, not allowing the daughter to join her there would impede the mother’s ability to act as her primary carer. Those were the terms reached in the 2004 court agreement (see paragraph 5 above), which I.P. had not sought to amend at any time. During the periods which the mother had spent in Canada, the second applicant had been primarily cared for in Bulgaria by the first applicant’s parents. When the second applicant had stayed at I.P.’s house, her daily care had been carried out by the child’s aunt and grandmother. A report by the social services favoured the second applicant’s free travel with her mother and found that both mother and child had strong emotional ties to each other. The child had specifically asked to live with her mother in Canada and to visit her father in Bulgaria during the holidays. The decision of 7 May 2009 of the Sofia City Court was not appealed against and became enforceable on 3 July 2009.

On 3 October 2007 the first applicant requested the police to issue a passport to her daughter. In a letter of 5 November 2007 the head of the “Bulgarian Identity Papers” section in the Sofia Police Department refused to issue a passport to the girl. He referred to the absence of a document giving the father’s consent.

The first applicant applied for judicial review, challenging the police refusal. On 6 March 2008, the Sofia City Administrative Court, examining the application under Article 145 of the Code of Administrative Procedure, quashed as unlawful the police refusal to issue a passport to the second applicant. The court observed that the absence of both parents’ agreement to the issuing of a passport to their child was not sufficient grounds to justify a refusal. It went on to say that the police should have carried out an in-depth analysis of the specific circumstances of the applicants’ case, being guided in their assessment primarily by the interests of the child. The court returned the case to the police with specific instructions as to how to apply the law when examining the applicant’s request.

I.P. appealed against the decision of 6 March 2008. On 29 September 2008 the Supreme Administrative Court upheld the findings of the Sofia City Administrative Court that the police refusal of 5 November 2007 had to be quashed as unlawful. It further noted that, on the question whether or not to issue a passport to a child, the police enjoyed decisionmaking discretion (оперативна самостоятелност) pursuant to section 76

In the meantime, on 6 June 2008 the first applicant again applied for a passport for her daughter. On 6 August 2008 the police refused to issue a passport, referring to the fact that the Sofia District Court’s decision of 3 June 2008 in respect of replacing the father’s agreement was not final as I.P. had appealed against it (see paragraph 10 above).

On 28 October 2008 the first applicant asked once again that a passport be issued to her daughter, referring to the two judgments of the administrative courts (see paragraphs 12 and 13 above). On 30 October 2008 the police informed both the border authorities and the applicant that a procedure was underway for the refusal of a passport to the second applicant. On 4 February 2009 the police refused the applicants’ request because of the absence of written consent from the child’s father. In doing so, the head of the Sofia Directorate of the Interior referred to the social services’ latest conclusions that, while the first applicant spent time in Canada, the second applicant was well cared for in Bulgaria by the first applicant’s parents. In addition, he found that the girl’s departure from Bulgaria would impede the possibility for the father effectively to exercise his access rights and that would affect his relationship with the child in an irreparable manner. The police concluded that the competent body to decide on the relationship between the father and the child was the relevant district court in accordance with Articles 72 and 106 of the Family Code 1985.

After the judgment giving permission to the second applicant’s travel became final (see paragraph 10 above), the police issued a passport to the child on 30 July 2009. She obtained a visa and left for Canada with her mother in December 2009.

In January 2009 the first applicant brought proceedings for damages under the Code of Administrative Procedure, as related to the State and Municipalities Responsibility for Damage Act 1988 (“the Act 1988”), on behalf of herself and her daughter. The applicants claimed they had both suffered as a result of the unlawful refusals by the police to issue a passport despite the findings of the administrative courts which had quashed the first refusal. They also claimed damages as a result of the unlawful failure of the police to comply in good time with the final decision of the Supreme Administrative Court of 29 September 2008. The applicants invoked a breach of Article 8 of the European Convention on Human Rights in respect of them both and of Article 2 of Protocol No. 4 to the Convention in respect of the second applicant.

The Sofia City Administrative Court partly upheld their claim on 1 July 2009. The court found that the Sofia Directorate of the Interior had to pay: (a) around 1,500 euros (EUR) to the first applicant and around EUR 2,500 to the second applicant, for non-pecuniary damage stemming from the quashing as unlawful of the police refusal of 5 November 2007 to issue a passport to the second applicant; and (b) around EUR 500 for nonpecuniary damage to each applicant, as a result of the police unlawful failure to decide within the statutory 30-day deadline on the applicant’s request for a passport made on 28 October 2008 (see paragraph 22 below and 15 above). The court also awarded around EUR 100 to the applicants for costs and expenses, to be paid by the Sofia Directorate of the Interior.

On appeal by the applicants and cross-appeal by the Sofia Directorate of the Interior, on 3 May 2010 the Supreme Administrative Court (SAC) quashed the lower court’s decision in its entirety. It found that the appeal by the applicants had been inadmissible as lodged out of time. Ruling on the appeal by the police, the court observed that the first condition for the application of the Act 1988 was not present, given that a court had not quashed as unlawful an administrative act as required by section 1 of the Act 1988. It then went on to say that the lower administrative court had not decided the matter in the place of the police. Instead, it had returned the case to the interior authorities with instructions as to how to apply the law. The head of the Sofia Directorate of the Interior had then given ample reasons for his refusal of 4 February 2009 to issue a passport. The applicants had not appealed against that refusal. As to the second condition under section 1 of the Act 1988, namely a causal link between the failure by the police to decide in good time on the request for a passport and the damage suffered by the applicants, the court found that such a causal link was missing. More specifically, when deciding whether to issue passports to minors, the police did not enjoy discretion in respect of how to apply the law. Instead, the police were bound to act within the remit of “subordinate competence” (обвързана компетентност). It meant that, in their decision-making process, the police did not need to analyse the circumstances of each case, but rather only had to check whether the conditions listed in law were present or not. Consequently, the SAC concluded in its final decision of 3 May 2010, the damage caused to the applicants did not stem from the police refusal to issue a passport to the second applicant. The police had acted in application of the law. The fact that a passport had not been issued was entirely the result of the first applicant’s failure to submit either an authorisation by the father or by the relevant district court for the second applicant’s travel, as required by law.

According to Article 72 of the Family Code 1985, in force until 1 October 2009, parental rights and obligations were to be exercised by both parents together as well as separately by each parent. In case the parents disagreed, the relevant district court resolved the disagreement after hearing both parents and, if need be, the child. The court’s decision was subject to appeal.

Under the new Family Code 2009, Article 123 § 2 provides that parental rights and obligations are exercised following an agreement between the parents. If the parents disagreed, they could bring the matter before the district court whose decision is subject to appeal. Article 127 of the Family Code 2009 provides that, in cases where the parents do not live together, if they disagreed on questions related to the child, the disagreement is to be decided by the district court whose decision is subject to appeal. As of 21 December 2010, a new Article 127a specifically provides that the questions related to a minor’s travel abroad and to the issuing to him or her of identity papers, are to be decided jointly by both parents. If the parents disagreed, the issue is to be settled by the district court of the minor’s place of residence.

According to section 45, as worded at the time of the events, an application for the issuing of a passport or another identity document for a minor was to be made “in person” (added in 2007) and by the minor’s parents or guardians. The police have to issue a passport within 30 days of such an application (section 48).

According to section 23(2), in force as of 2006, every Bulgarian citizen has the right to leave the country, including with an identity card, and to return crossing the borders of Bulgaria with the member States of the European Union.

According to section 33, as in force since 2004, every Bulgarian citizen has the right to leave the country and return to it with a passport. That right is subject only to such limitations as may be necessary for the protection of national security, public order, people’s health or the rights and freedoms of others.

According to section 76(9), the police may refuse to allow a minor to leave the country in the absence of a written consent for that of his or her parents. If the parents disagreed, the Family Code 2009 specifically provided between 16 October 2009 and 21 December 2010 that the matter was decided in accordance with Article 123 § 2 of the Family Code 2009; as of 21 December 2010 onwards, the matter is to be decided in accordance with Article 127a of the Family Code 2009.

Section 11(8), adopted in 2007, provided that, in cases where the authorisation of one parent for the issuing of passport to a minor was missing, such an application had to be submitted together with one of the following documents: a judicial decision allowing the issuing of a passport which had become enforceable; a judicial decision depriving the missing parent of his or her parental rights; or, a death certificate of the parent who had not given his agreement.

According to Article 145 § 1, individual administrative acts are subject to judicial review as regards their lawfulness. Judicial review proceedings in respect of administrative acts are two-instance proceedings (Article 131) and they suspend the enforcement of the appealed administrative acts (Article 166 § 1).

According to Article 203, individuals or legal persons may bring claims for compensation for damage caused to them by an unlawful act or failure to act by an administrative body, when that act or failure to act have been quashed by a court. For questions not covered by this Code, the State and Municipalities Responsibility for Damage Act 1988 (“the Act 1988”) is applied.

Section 1(1) of the Act 1988 provides that the State and municipalities are liable for damage caused to private individuals and legal entities as a result of unlawful decisions, acts or omissions by their own authorities or officials while discharging their administrative duties. Section 4 of the Act 1988 provides that compensation is due for all damage which is the direct and proximate result of the unlawful act or omission. The State’s liability is strict, i.e. no fault is required on the part of the civil servants in the commission of the unlawful acts.

The Supreme Court of Cassation held in a 2001 decision concerning a request for the issuing of a passport to a minor (реш. № 21 от 30.01.2001 г. на ВКС по гр. д. № 717/2000 г., II г. о.) that all questions related to the exercise of parental rights had to be decided by the relevant district court if the parents could not reach an agreement. In subsequent decisions (реш. от 11.11.2008 г. на ВКС по к. д. № 4252/2007, V г. о.; опр. № 396 от 18.11.2008 г. на ВКС по ч. гр. д. № 1672/2008, III г. о.; реш. № 1200 от 19.12.2008 г. на ВКС по гр. д. № 2871/2007; опр. № 84 от 16.02.2009 на ВКС по ч. гр. д. № 66, IV г. о.) the Supreme Court of Cassation reaffirmed its findings that questions related to the travel of minors abroad had to be decided specifically by the civil courts in accordance with Article 72 of the Family Code 1985, and not by the police following the administrative procedure under section 76(9) of the Bulgarian Identity Documents Act (see paragraphs 22 and 27 above). In doing so, the highest national court referred to its constant practice in respect of questions related to the exercise of parental rights. In two of the above-mentioned decisions (see реш. от 11.11.2008 г. на ВКС по к. д. № 4252/2007, V г. о.; опр. № 396 от 18.11.2008 г. на ВКС по ч. гр. д. № 1672/2008, III г. о.) the Supreme Court of Cassation quashed the findings to the contrary of two regional courts (see paragraph 31 below).

Two regional courts held in 2007 and 2008 respectively that claims under Article 72 of the Family Code 1985 were inadmissible because there existed an administrative procedure which was sufficient for obtaining a passport for a minor even where one of the parents disagreed (see реш. на окр. съд Хасково от 26.04.2007 г. по гр. д. № 93/2007; and опр. № 378 от 31.07.2008 г. на окр. съд Габрово по ч. гр. д. № 220/2008).

In a legal column, published on 9 June 2003 in a daily newspaper with national circulation called “24 Hours”, a Sofia District Court judge advised that a claim under Article 72 of the Family Code 1985, seeking the permission for a minor’s travel abroad with one parent only, was inadmissible and the correct avenue for settling the matter was via the administrative procedure under the Bulgarian Identity Documents Act 1998.

The Convention is in force in respect of Bulgaria as of 1 August 2003. It provides as follows:

“The objects of the present Convention are:

(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”

“The removal or the retention of a child is to be considered wrongful where:

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.”

The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”

The Convention was ratified by Bulgaria on 3 June 1991. It provides as follows:

“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

“1. In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.

A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present Convention.”

“1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.”


András Sajó;Egidijus Kūris;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant, Ms Marina Kokashvili, is a Georgian national, who was born in 1962 and lives in Tbilisi. She was represented before the Court by Ms M. Kobakhidze, Ms E. Fileeva, Ms Ts. Javakhishvili, Ms L. Mukhashavria and Mr V. Vakhtangidze, lawyers practising in Tbilisi.

The Georgian Government (“the Government”) were represented by their Agent, Mr M. Kekenadze, of the Ministry of Justice.

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

The applicant was born in 1962 and lives in Tbilisi.

On 1 January 1998 the Office of the Personal Representative of the Organisation for Security and Cooperation in Europe Chairman-in-Office, located in Tbilisi (“the OSCE Tbilisi office”), recruited the applicant as a local fixed-term staff member. She was assigned the tasks of an administrative and information assistant, such as drafting letters, providing interpretation and translation services, answering to telephone calls in the office, file keeping, making travelling arrangements for the Personal Representative of the OSCE and so on. According to the employment contact, the parties were entitled to terminate the contract unilaterally either by giving one month’s prior notice or upon the completion of the OSCE Tbilisi Office mandate.

On 11 June 2001 the applicant, who was pregnant at that time, requested maternity leave from 18 June to 7 October 2001, which was granted by her employer.

On 22 September 2001 the mission coordinator of the OSCE Tbilisi Office notified the applicant of their intention to terminate the employment contract with her on 26 October 2001 by sending her the requisite one month’s prior notice, as stipulated in the employment contract.

On 26 November 2001 the applicant filed a lawsuit against the OSCE Tbilisi office with the Vake-Saburtalo Court, complaining that her dismissal had been contrary to Article 164 § 3 of the Labour Code of Georgia.

In reply to the applicant’s claim, on 20 December 2001 the Office of the Secretary General of the OSCE in Vienna (“the OSCE Vienna Office”) filed comments with the Vake-Saburtalo District Court in Tbilisi, arguing that the Georgian courts lacked jurisdiction over employment disputes between the OSCE Tbilisi Office and its local staff members. In support, it referred to the Memorandum of Understanding signed between the Government of Georgia and the Personal Representative of the OSCE (“the Memorandum”) on 24 October 1995, according to which the members of the OSCE Missions and Personal Representatives enjoyed “immunity from legal process in the host country”. Consequently, the dispute arising from the job termination notice of 22 September 2001 which was clearly issued by the OSCE Tbilisi Office in the performance of their official duties could not be adjudicated under the Georgian law. The OSCE Vienna Office invited the court to address the Ministry of Foreign Affairs of Georgia (“the MFA”) for any further clarification on the matter.

On 13 February 2002 the MFA was involved as a third party to the proceedings.

Since neither the respondent, the OSCE Tbilisi Office, nor the third party, the MFA, was present at the main hearing of 12 June 2002, the VakeSaburtalo District Court delivered a judgment by default on that day. The court first reasoned that international organisations could not be said to enjoy immunity from legal process with respect to labour disputes with local staff. Consequently, the Georgian legislation should be held applicable to the dispute between the applicant and the OSCE Tbilisi Office. The District Court found that the applicant’s dismissal was clearly in breach of Article 164 § 3 of the Labour Code, restoring her to the position of administrative assistant and ordering the respondent organisation to compensate her for the loss of salary from the date of her unlawful dismissal.

The judgment of 12 June 2002 was never appealed by either the applicant or the respondent OSCE Tbilisi Office, whilst the MFA did not have standing to lodge an appeal as a third party, and thus became binding.

On 2 October 2002 the Vake-Saburtalo District Court issued an enforcement writ. It was sent to the Enforcement Office of the Georgian Ministry of Justice.

By a notification of 11 October 2002, a bailiff invited the OSCE Tbilisi Office to enforce voluntarily the judgment of 12 June 2002 within five days. In reply, the OSCE Vienna Office addressed to the MFA a note verbale stating that “as the [OSCE Tbilisi] Office does not intend to comply with the decision wrongly made by the court, the Secretariat would be grateful if the Ministry would ensure, in accordance with the relevant international law, that the [OSCE Tbilisi] Office will not be subject to any execution measures.”

On 4 November 2002 the Ministry of Foreign Affairs invited the Ministry of Justice to terminate the enforcement proceedings.

On 26 December 2002 the bailiff returned the enforcement writ to the applicant, officially informing her about the discontinuation of the enforcement proceedings. The notification mentioned that, in view of the debtor’s immunity from legal process in Georgia, it was impossible either to hold its administration criminally liable for the non-enforcement or to resort to any other measures of compulsory enforcement.

Article 6 § 2

“The legislation of Georgia conforms to universally recognised norms and principles of international law. International treaties or agreements concluded by Georgia, if they do not contradict the Constitution of Georgia and a constitutional agreement, take precedence over domestic normative acts.”

Pursuant to Section 3 (a) of the Act on International Treaties, an “international treaty” was an international agreement concluded between the Georgian State and other State(s) or international organization(s) in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever was its particular designation.

Section 6 of the Act stated, similarly to Article 6 § 2 of the Constitution, that an international treaty, subject to its compliance with the country’s Constitution, should take precedence over domestic statutes.

Section 7 of the Act specified that the Georgian State could express its consent to be bound by an international treaty by several means, including by the signature of its representative.

Sections 31, 32 § 2 and 33 of the Act provided that the Georgian State was under the obligation to abide by the commitments provided for by an international treaty in good faith, and that its executive branch of power, notably the Government represented through its various Ministries, was required to supervise that the approved international agreements were duly enforced throughout the territory of the Georgian State.

Article 164 § 3 of the Labour Code of Georgia, in force at the material time, read as follows:

“The administration [of an organisation] shall not dismiss a pregnant woman, or a woman who has a child under three years of age, unless this organisation...has been completely liquidated...”

The Memorandum was signed on behalf of the Georgian State by the Minister of Foreign Affairs on 24 October 1995. Article 2 of the Memorandum provided:

“The Tbilisi Office will be manned by the Personal Representative and his Field Assistants who shall enjoy in full the legal capacity as provided for in the Provisions Concerning the Legal Capacity of the CSCE Institutions and Privileges and Immunities (Rome Council 1993/Decision no. 2), and with local staff to insure its proper functioning.”

Section 15 of the above-mentioned Rome Council Decision no. 2 read as follows:

“Members of OSCE Missions and Personal Representatives of the ChairmaninOffice enjoy immunity from legal process, even after the termination of their mission, in respect of acts, including words spoken or written, performed by them in the exercise of their functions.”

On 20 July 2000 the Permanent Council of the OSCE, a major decision-making body of the Organisation, adopted, by its Decision no. 366, an amended version of the OSCE’s Staff Regulations and Staff Rules for FixedTerm Staff. This official document set out the conditions of service and the basic duties, obligations and rights of staff members of the OSCE, and, according to its Regulations 1.01 (c) and 1.02 applied “to all staff members of the OSCE Institutions holding a fixed-term appointment”, including staff occupying local posts.

Regulations 11.01 and 11.02 and Rule 11.01.1 contained rules on examination of employment related disputes between coordinators of the various OSCE Institutions and fixed-term staff members. In particular, two procedures for examination of such disputes were provided for: a purely administrative one – the so-called “internal appeals procedures” – and a quasi-judicial, arbitration instance – the so-called “external appeals procedures”. Those Regulations and Rules read, in their most relevant parts, as follows:

Regulation 11.01 – Internal Appeals Procedures

“The Secretary General shall establish, in consultation with the other Heads of Institution, an administrative procedure with staff participation to advise the Secretary General and the Head of Institution concerned in the event of any appeal by a staff member against an administrative decision in which the staff member alleges non-observance of the terms of his/her appointment.”

Rule 11.01.1 – Internal Review Board

(a) In the event of an appeal by a staff member under Staff Regulation 11.01, an Internal Review Board shall be established to advise the Secretary General and the Head of Institution concerned regarding that appeal.

(b) The Internal Review Board shall consist of three members as follows:

(i) A Chairman designated by the Secretary General, after consultation with the Head of Institution concerned and the Staff Representatives;

(ii) One member appointed by the Head of Institution concerned;

(iii) One member appointed by the Staff Representatives. ...”

Regulation 11.02 – External Appeals Procedures

(a) Further to the procedure established in Regulation 11.01, a staff member shall have a right of final appeal to a Panel of Adjudicators against an administrative decision directly affecting him/her in accordance with the Terms of Reference of the Panel to be established by the Permanent Council. ...

(b) The Panel of Adjudicators shall be appointed by the Chairman of the Permanent Council from a roster to which all participating states are invited to nominate candidates, and shall carry out its functions in accordance with the Terms of Reference referred to above.”

Rule 11.02.1 – Adjudication

“(a) Staff members shall have the right to appeal to a Panel of Adjudicators after compliance with the internal appeals procedure set forth in Rule 11.01.1.

(b) A staff member may, in agreement with the Secretary General or the Head of Institution concerned, waive the jurisdiction of the Internal Review Board and appeal directly to the Panel of Adjudicators.”

On 26 November 2000, during its 312th plenary meeting, the Permanent Council of the OSCE examined and endorsed a report containing a study and recommendations on the question of legal capacity of the OSCE and the granting of privileges and immunities to the organisation in the various participating States.

Relevant excerpts from the report read as follows:

“36. [T]absence of a constituent treaty has not prevented participating States from endowing the OSCE over the years with the attributes usually regarded as those of an international organisation: ...

(b) The OSCE is no longer only a vehicle for meetings and the organisation of cooperation between States; it acts as an organisation with functions of its own entrusted to it by participating States. For doctrine, such autonomy presupposes that the organisation has the necessary capacity to carry out its mandate at the international level and under public international law, i.e. that the organisation has become a subject of public international law. ...

(e) The staff of the OSCE are employed by the organisation (international and local staff) and not participating States. ...

(f) The OSCE has also established an internal legal structure and norms (Staff Regulations and Rules, Financial Regulations, Financial Instructions, Organisation and Administrative Directives), and its own mechanism for settling employment disputes through a Panel of Adjucators rather than national courts.”


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

Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant company is a limited liability company with its seat in Bad Gleichenberg, producing building materials of concrete and using crushed stones (Schotter) for this purpose.

On 29 November 2002 the applicant company requested the Steiermark Regional Governor (Landeshauptmann) to issue a licence under the Water Act (wasserrechtliche Genehmigung) for dredging (Nassbaggerung) on its plot.

On 20 May 2003 the Steiermark Regional Governor decided to issue the licence for dredging and imposed certain conditions.

On 31 July 2003 H.P., the owner of the Sicheldorfer mineral water spring appealed against this decision, claiming that the dredging had a negative impact on the spring.

On 8 September 2004 the Ministry for Agriculture, Forestry, Environment and Water (Bundesministerium für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft) (“the Ministry”) ordered the applicant company to submit a plan of the projected dredging area and of all the springs and wells concerned.

On 21 September 2004 the applicant company submitted some plans but stated that it had no knowledge about the location of the spring and H.P. refused to provide the necessary information.

On 13 October 2004 the applicant company submitted further plans to the authorities.

On 23 February 2005 the Ministry served an expert opinion on the applicant company. According to this expert opinion the information submitted by the applicant company was not sufficient to prove that there was no negative impact of dredging on the springs. The applicant company was requested to comment hereon.

On 19 April 2005 the Ministry quashed the decision of the Steiermark Regional Governor and remitted it back to the first instance authority on the grounds that the applicant company had failed to provide sufficient information in order to assess a possible negative impact on the spring.

On 17 May 2005 the Steiermark Regional Governor ordered the applicant company to submit the missing documents.

On 4 October 2005 the applicant company submitted a private expert opinion to the Regional Governor.

On 21 November 2005 an oral hearing was held.

On 13 February 2006 the Steiermark Regional Governor again issued the requested licence for dredging and imposed certain conditions.

On 1 March 2006 H.P., the Bad Radkersburg municipality and the Bad Radkersburg spring company appealed against this decision to the Ministry.

On 31 July 2006 the applicant company submitted written comments to the Ministry.

On 25 September 2006 the applicant company complained to the Administrative Court (Verwaltungsgerichtshof) about the administration’s failure to decide (Säumnisbeschwerde).

On 27 September 2006 the Administrative Court ordered the Ministry to decide within three months.

On 24 November 2006 the Ministry transmitted another expert’s opinion to the parties and requested the applicant company to submit the missing documents.

On 28 November 2006 the Ministry requested the Administrative Court to extend the deadline for the decision to nine months as the proceedings were not finalised.

On 29 December 2006 the applicant company commented on the recently obtained expert opinion (see paragraph 21 above) claiming, inter alia, that the Ministry failed to determine which missing documents were to be submitted.

On 26 February 2007 the Administrative Court prolonged the deadline for the Ministry until 30 April 2007.

On 13 March 2007 the applicant company submitted another private expert opinion to the Ministry.

On 17 April 2007 the Ministry rejected the requested dredging licence on the grounds that the applicant company had failed to submit all the requested documents.

On 26 April 2007 the Administrative Court closed the proceedings on the applicant company’s complaint about the administration’s failure to decide (see paragraph 19 above) and ordered the reimbursement of the costs related to this complaint.

On 29 May 2007 the applicant company lodged a complaint with the Administrative Court.

On 1 June 2007 the Administrative Court asked the Ministry and the other parties to submit written observations within eight weeks.

On 12 June 2007 H.P., the Bad Radkersburg municipality and the Bad Radkersburg spring company submitted their written observations.

The Ministry submitted written observations which were served on the applicant company on 11 July 2007.

On 19 July 2007 the applicant company put forward further submissions in reply to the Ministry’s observations; H.P., the Bad Radkersburg municipality and the Bad Radkersburg spring company replied hereto on 2 August 2007.

On 30 October 2008 the Administrative Court quashed the decision by the Ministry as it was not clarified which documents the applicant company had to submit.

On 11 December 2008 the applicant company submitted two other private expert opinions to the Ministry.

On 22 May 2009 the applicant company lodged another application against the administration’s failure to decide with the Administrative Court.

On 27 May 2009 the Administrative Court ordered the Ministry to decide within three months.

On 5 August 2009 the Ministry submitted another expert opinion to the parties and asked the applicant company to submit certain precisely mentioned documents within four weeks.

On 28 August 2009 the applicant company referred to the already submitted private expert opinions and claimed that the mentioned documents were not necessary. In addition, it requested to appoint another expert. Nonetheless, it submitted a supplementary expert opinion.

On 28 September 2009 the Administrative Court extended to 15 months the deadline for the Ministry to decide.

On 12 January 2010 the Ministry requested the Bad Radkersburg municipality and the Bad Radkersburg spring company (H. P.’s appeal had meanwhile been considered to be withdrawn) to submit written observations on the documents recently transmitted by the applicant company.

On 12 February 2010 the Bad Radkersburg municipality and the Bad Radkersburg spring company submitted their written observations, to which the applicant company replied on 19 February 2010.

On 26 July 2010 the applicant company submitted another private expert opinion to the Ministry in compliance with the Ministry’s request of 5 August 2009 (see paragraph 37 above).

On 10 August 2010 the Ministry communicated a further expert opinion for the applicant company’s information.

On 20 October 2010 the Ministry dismissed the appeals and therefore permitted the requested dredging by the applicant company. This decision, served on the applicant company on 27 October 2010, became final.

On 18 November 2010 the Administrative Court closed the proceedings on the applicant company’s second complaint about the administration’s failure to decide (see paragraph 35 above) and ordered the reimbursement of the costs related to this complaint.


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicants were born on 18 September 1971 and 24 December 1994 respectively and live in Moscow.

A two-roomed flat at 29-1-26 Ozernaya Ulitsa, Moscow, was owned by the city. G. and her son resided there as tenants under the social housing agreement with the city.

On 16 November 2002 G. died. On 17 September 2003 the municipal authorities de-registered her tenancy.

On 3 October 2003 G.’s son died. On an unspecified date the municipal authorities de-registered his tenancy.

On an unspecified date A. submitted a forged copy of a court judgment to the Department of the Municipal Housing and Housing Policy (the “Housing Department”) recognising her right to reside in the flat and on 9 February 2005 the Housing Department entered into a social housing lease agreement with A. and her family.

On 25 February 2005 the Housing Department transferred the title to the flat to A., her husband and her daughter under the privatisation scheme.

On 15 December 2005 A. and her husband sold the flat to the applicant. On 29 December 2005 the city registration body issued a certificate confirming the first applicant’s title to the flat. The applicants moved into the flat and resided there.

On an unspecified date the Housing Department obtained information that the court judgment submitted by A. might have been forged and on 15 December 2005 the housing authorities asked the prosecutor’s office to conduct a relevant inquiry.

On 20 March 2008 the Nikulinskiy District Court of Moscow invalidated the social housing lease agreement of 9 February 2005 and the privatisation agreement of 25 February 2005.

On an unspecified date the Housing Department brought an action against the applicants seeking the transfer of the flat to the city and the applicants’ eviction.

On 9 October 2009 the District Court granted the Housing Department’s claims in full. The court ruled that the case fell under one of the two exceptions to the protection of a bona fide purchaser’s title, which required that precedence be given to the previous owner who had been deprived of the property against his or her will. The first applicant’s title to the flat was annulled and the title was transferred to the City of Moscow. The court also ordered the applicants’ eviction. The applicants appealed.

On 25 February 2010 the City Court upheld the judgment of 9 October 2009 on appeal.

On an unspecified date the bailiff instituted enforcement proceedings.

On 12 March 2012 the District Court granted the applicant’s additional time to comply with the judgment of 9 October 2009. The applicants were required to vacate the flat by 1 August 2012. On 14 May 2012 the City Court upheld the said decision on appeal.

The applicants continued to reside in the flat. On 14 August 2013 the Housing Department entered into a housing agreement with them in respect of the flat for a term of five years.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention;Trial within a reasonable time)

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

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