Angelika Nußberger;Erik Møse;Nona Tsotsoria;Síofra O’Leary;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicants, Ms Bluma Zipa Perelman and Mr Alain Michel Perelman, are French nationals who were born in 1947 and live in Frankfurt/Main. They were represented before the Court by Mr S. Schödel, a lawyer practising in Bonn.

In November 2002 the applicants moved from France to Frankfurt/Main in Germany. They submitted a registration form dated 11 November 2002 to the local registration authority, to inform the latter of their new place of residence. The form required information about their religion, and for both applicants they indicated “Mosaic” (“Mosaisch”) in the relevant part of the form.

The applicants remained members of their liberally-oriented Jewish community in France.

By letter dated 12 May 2003 the Jewish community of Frankfurt/Main welcomed the applicants as new members. A copy of the community’s statutes was attached to the letter. According to the statutes, all persons of Jewish faith whose place of residence or usual abode was in Frankfurt/Main were members of the community, unless they had made a written objection to the community council within three months from their date of arrival.

By letter of 11 June 2003 the applicants opposed membership. They further requested restitutio in integrum (Wiedereinsetzung in den vorigen Stand), pointing out that they had received the community’s statutes only after the expiry of the period for filing an objection.

As the community did not accept their objection, the applicants, as a precautionary measure, resigned their membership with effect from the end of October 2003. This was accepted by the community.

As a public-law entity (Körperschaft öffentlichen Rechts) the Jewish community of Frankfurt/Main levies a church tax based on the individual income of their members, which is collected by the State tax authorities. For the period from November 2002 to October 2003 the Frankfurt/Main tax office levied a church tax on the applicants. They objected to paying the church tax in a separate set of proceedings which is not the subject of the application at issue.

On 9 June 2005 the applicants brought an action before the Frankfurt/Main Administrative Court to obtain a declaration that they had not been members of the community between November 2002 and October 2003.

On 20 September 2005 the Frankfurt/Main Administrative Court rejected the action as inadmissible, denying that such a judgment would have a legitimate interest.

The applicants appealed and, on 19 May 2009, the Hesse Administrative Court of Appeal dismissed their appeal. It held that the applicants’ action was admissible, but ill-founded because their membership was based on internal regulations of the religious community which had to be recognised by State authorities, in view of the principle of autonomy of religious organisations.

On 23 September 2010 the Federal Administrative Court quashed the judgment of the Administrative Court of Appeal and declared that, in the public sphere, the applicants’ membership could not have legal effect. It reasoned, in essence, that notwithstanding the autonomy of religious organisations’ religion was “Mosaic” could not be taken as a declaration of willingness to become members of the local Jewish community.

After the Frankfurt/Main Jewish community had lodged a constitutional complaint (no. 2 BvR 278/11), on 17 December 2014 the Federal Constitutional Court, sitting in a chamber of three judges, quashed the Federal Administrative Court’s judgment, finding a violation of the community’s fundamental right under Article 4 §§ 1 and 2, read in conjunction with Article 140 of the Basic Law and Article 137 § 3 of the Weimar Constitution of 11 August 1919 (Weimarer Reichsverfassung). The court held that the Federal Administrative Court had not correctly evaluated the scope and the significance of the guarantee of autonomy (Selbstbestimmungsrecht) afforded to religious communities by the aforementioned Articles of the Basic Law. Regulations governing membership had to be seen as affairs that religious communities are free to determine at their own discretion. The State’s duty to acknowledge the guarantee of autonomy of religious associations for the secular legal sphere found its limits in the negative religious freedom of potential members. The inclusion of members by religious communities had to be acknowledged where this was legitimised by positive declaration, albeit possibly by an implicit declaration. There were various ways to express willingness to be a member of a religious community. This did not necessarily have to be expressed to the religious community itself. From the information submitted by the applicants to the registration office in Frankfurt/Main it could be concluded, from the objective standpoint of the onlooker (objektivierter Empfängerhorizont), that the applicants had expressed their willingness to be members of the Jewish community of Frankfurt/Main.

On 21 September 2016 the Federal Administrative Court, to which the case had been remitted, dismissed the applicants’ appeal on points of law. It pointed out that, on procedural grounds, the judgment of the Federal Constitutional Court was binding. It nevertheless expressed doubts as to the compatibility of the finding with Article 9 of the Convention. It noted in particular that the Federal Constitutional Court had attached no importance to the fact that the applicants had not been asked for their religious affiliation but for their religion in the registration form at issue. Notwithstanding the Jewish community of Frankfurt/Main’s conception of itself as a uniform community, everyone who lived in the community’s district and declared his or her religious belief should be free to choose another Jewish community. Due to the binding effect of the judgment of the Federal Constitutional Court, the court considered itself prevented from founding its decision on these aspects.

On 23 November 2016 the applicants lodged a constitutional complaint with the Federal Constitutional Court which is still pending (no. 2 BvR 2595/16). Relying on Article 4 § 1 of the Basic Law and Article 9 of the Convention and referring to the Court’s case-law they complained in particular that their membership in the Jewish community of Frankfurt/Main was not based on their consent.


Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Violation of Article 3 - Prohibition of torture (Article 3 - Extradition;Positive obligations) (Substantive aspect) (Uzbekistan);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application)

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

The applicant was born in 1978. He is currently serving a prison sentence in Uzbekistan.

The information provided by the applicant’s representative and the Government is limited and conflicting. The elements at the Court’s disposal are described below.

The following account of events is based on a series of written submissions to the Court by the applicant’s representative.

The applicant, while living in Uzbekistan, was a friend of a former boyfriend of Ms Gulnara Karimova, one of President Islam Karimov’s daughters. At some point Ms Karimova turned against her former boyfriend’s friends. Fleeing political persecution, on 26 December 2010 the applicant moved to Russia. He resided in Moscow with his partner, Ms I., and their child.

In 2011 the Uzbek authorities charged the applicant in absentia with crimes related to religious extremism on account of his alleged involvement in the establishment in 2009 of a jihadist organisation, issued an arrest warrant and put his name on an international wanted list.

On 10 July 2013 the applicant was arrested in Moscow on the basis of the Uzbek warrant.

On 12 July 2013 the Golovinskiy District Court of Moscow authorised the applicant’s detention pending extradition.

On 9 August 2013 the Golovinskiy inter-district prosecutor’s office of Moscow ordered the applicant’s release on the grounds that the Uzbek authorities had not lodged a formal extradition request and that the crimes he had been charged with did not constitute criminal offences under Russian law. It was also noted that the applicant could not have established the jihadist organisation in 2009 as the organisation in question had been banned by the Supreme Court of Russia in 2003. The applicant was then released.

Following his release, the applicant continued to live in Moscow. At some point he applied for refugee status, referring to a risk of illtreatment in Uzbekistan.

On 8 November 2013 the Moscow Department of the Federal Migration Service (“the Moscow FMS”) dismissed the allegations of a risk of ill-treatment in Uzbekistan as unfounded and rejected the applicant’s application for refugee status. He challenged that decision in court.

On 12 May 2014 the Zamoskvoretskiy District Court of Moscow approved the applicant’s application, quashed the Moscow FMS’s rejection and ordered it to grant the applicant refugee status.

The applicant’s passport remained in the Moscow FMS’s file concerning his application for refugee status.

Given that no appeal against the judgment of 12 May 2014 was lodged within the required time, the judgment entered into force.

On the evening of 9 June 2014, while the applicant and his family were visiting a friend, Mr T., the applicant’s child fell ill. The applicant and Ms I. decided to take him to hospital and the applicant called a taxi. A silver Lada Priora arrived. Mr T. wanted to accompany the applicant and Ms I., but the Lada’s driver told him that the car had been ordered for two adult passengers only. The applicant, Ms I. and the child got into the taxi.

On their way, at about 7.20 p.m., Ms I. decided to stop at a pharmacy in the centre of Moscow. She took the child out of the taxi and the applicant waited in the car. When Ms I. left the pharmacy she saw that the taxi had driven away. A woman told Ms I. that she had seen two men getting in a parked car, which had then driven off.

Ms I. tried calling the applicant but his mobile telephone was turned off. She then alerted Mr T.

The applicant’s representative was notified of the applicant’s disappearance shortly after. On the same date, that is, on 9 June 2014, he contacted the Federal Security Service (“the FSB”) and the border control agency, asking them to prevent the applicant’s involuntary removal from Russian territory. According to the applicant’s representative, he suspected the involvement of two FSB officers, “Timur” and “Zakhar”, who had shown an interest in the applicant in 2011. Nevertheless, he did not mention those people in his letters to the FSB and the border control agency.

On 18 June 2014 the investigation department of the Uzbek Ministry of the Interior informed the applicant’s father that the applicant had been arrested and placed in custody on 17 June 2014. On 25 June 2015 the applicant’s representative forwarded a copy of the notification to the Court.

The criminal case against the applicant was brought to trial before the Tashkent City Court. He was appointed a legal aid lawyer.

At the end of October 2014 the applicant’s representative, Mr Vasilyev, travelled to Tashkent. He discovered that the applicant had been kept incommunicado in a remand prison in Tashkent. Mr Vasilyev was repeatedly denied access to the applicant.

Mr Vasilyev attended three hearings at the Tashkent City Court on 31 October, and 3 and 4 November 2014. On 31 October and 3 November 2014 the trial judge allowed Mr Vasilyev to talk to the applicant. During the conversations the applicant sat in a cage in the courtroom surrounded by guards. The applicant’s representative summarised the applicant’s description of the events of 9 June 2014, given orally on 31 October and 3 November 2014, as follows.

At 7 p.m. on 9 June 2014 the applicant had been abducted by two FSB officers. They had put a sack over the applicant’s head during the abduction. They had then taken the applicant to an unidentified house, tied him up and taken the sack off his head. The applicant had recognised the two men as “Timur” and “Zakhar”, the FSB officers whom he had met previously in November 2011. The two men had beaten the applicant and kept him inside the house until the following day.

On 10 June 2014 the two FSB officers had taken the applicant to a runway at one of Moscow’s airports without passing through any border or passport controls as the applicant’s passport had remained with the Moscow FMS. The FSB officers had handed the applicant over to Uzbek officials near the steps of a Tashkent-bound airplane.

Once in Uzbekistan, the applicant had been placed under arrest by the Main Investigation Department of the Ministry of the Interior of Uzbekistan on suspicion of crimes related to religious extremism. He had been kept in detention for two months and had been subjected to torture and other illtreatment by Uzbek law-enforcement officers with a view to securing a self-incriminating statement. The applicant had been tied head downwards to a bar attached to the wall and had been beaten repeatedly. The officers had broken two of the applicant’s ribs and knocked out seven of his teeth.

On 4 November 2014 the applicant’s representative interviewed Ms I.

Ms I. stated that on 3 May 2011 an FSB officer named “Zakhar” and some police officers had come to their Moscow flat to search for the applicant, but had not found him.

In November 2011 “Zakhar” and another FSB officer, “Timur”, had interviewed Ms I. about the applicant and his religious views and practices.

Following the applicant’s abduction, on 10 June 2014 Ms I. had called “Timur” on his mobile phone, enquiring about her partner. “Timur” had replied that he was no longer working for “that office” (the FSB). Ms I. had also tried calling “Zakhar” but had received no response.

On 13 June 2014 Ms I. had flown to Tashkent with her son and mother. Upon arrival she had been detained at the airport for seven hours and then released.

Ms I. had been questioned by the investigator in charge of the applicant’s case at the Ministry of the Interior of Uzbekistan, Mr K., but had been denied access to the applicant. When she had seen the applicant in the courtroom, he had made signs to her that he had been beaten.

On 4 November 2014 Mr Vasilyev interviewed the applicant’s mother, Ms Kh.

Ms Kh. stated that her younger son had been convicted of crimes related to religious extremism in December 2010, which had influenced the applicant’s decision to leave Uzbekistan. She had had occasional contact with the applicant during his time in Moscow.

On 15 June 2014 Ms I. had arrived in Uzbekistan and informed Ms Kh. of the applicant’s abduction.

On 25 June 2014 officers of the Ministry of the Interior of Uzbekistan had come to Ms Kh.’s home and searched it.

On 27 June 2014 the applicant’s mother had visited the investigator, K., who had said that the applicant had voluntarily returned to Tashkent on 8 June 2014 and had gone to the police with a statement of surrender.

Some people had informed Ms Kh. that her son had been severely beaten while in detention. She had not had access to the applicant, but when she had seen him in the courtroom, he had looked very poorly.

On 18 November 2014 the Tashkent City Court found the applicant guilty of crimes under Articles 216 (“the illegal establishment of public associations or religious organisations”) and 244² (“the establishment of, management of, participation in religious extremist, separatist, fundamentalist or other proscribed organisations”) of Uzbekistan’s Criminal Code and sentenced him to eight years’ imprisonment.

The lawyer appointed for the applicant refused to lodge an appeal against the judgment.

On 26 November 2014 Mr Vasilyev lodged an appeal with the Appeal Chamber of the Tashkent City Court on the applicant’s behalf. It appears that later the applicant withdrew the statement of appeal.

The applicant remains imprisoned in Uzbekistan.

On 29 July 2014 the Moscow FMS lodged an appeal against the judgment of 12 May 2014. The statement accompanying the appeal did not contain any request to restore the time-limit for lodging it.

The Moscow City Court admitted the appeal on an unspecified date. The reasons for admitting it after the time-limit had run out are unknown.

On 19 October 2014 the UNHCR Representation in the Russian Federation (“the UNHCR”) submitted a memorandum on the applicant’s case to the Moscow City Court for consideration. It was noted that torture was a widespread method of coercion used by the Uzbek authorities to obtain selfincriminating statements from those suspected of involvement in “religious extremism”. The statement read, in particular:

“As follows from the document of the Call for Urgent Action published by Amnesty International on 6 November 2014, after the forced return to Uzbekistan, Mr Khamidkariyev was subjected to torture and other kinds of proscribed treatment and punishment for two months with a view to obtaining a confession to made-up charges – he was tied head down to a bar attached to a wall and beaten, as a result of which he had seven teeth knocked out and two ribs broken.”

On 2 December 2014 the Moscow City Court examined the appeal lodged by the Moscow FMS against the judgment of 12 May 2014, quashed the judgment and upheld the Moscow FMS’s decision of 8 November 2013 owing to the fact that the applicant had not provided “convincing and irrefutable evidence of the existence of well-founded fears of becoming a victim of persecution in Uzbekistan”. The reasons for examining a belated appeal on the merits were not given in the text of the judgment.

In the course of the proceedings before the Court, the Government sent four sets of correspondence, the contents of which are described below.

By a letter of 1 July 2014 in reply to the Court’s request for information of 10 June 2014, made at the same time as the indication of the interim measures (see paragraph 4 above), the Government informed the Court that “the relevant State bodies have been informed about the disappearance of the applicant and the indication by the Court of the interim measures under Rule 39 of the Rules of Court”.

They further noted that the applicant had not been “apprehended by the officers of any Russian law-enforcement bodies on 9 June 2014 in Moscow” and that “his current whereabouts [are] unknown”.

The Government also stated that on 10 June 2014 the Basmannyy district department of the interior (“the Basmannyy police”) had received a complaint about the applicant’s kidnapping from Mr T. and that on 19 June 2014 a case file with the preliminary inquiry conducted on the basis of that complaint had been forwarded to the Basmannyy district investigative unit of the Moscow investigative department of the Investigative Committee of the Russian Prosecutor’s Office (“the investigative authority”) “for further enquiry and the possible initiation of a criminal case”.

Lastly, they noted that the applicant’s representative’s letter of 25 June 2014 (see paragraph 24 above) had been forwarded to the investigative authority for consideration.

No documents were enclosed with the letter of 1 July 2014.

On 24 October 2014 the Government submitted their observations on the admissibility and merits of the application, the contents of which can be summarised as follows.

On 9 September 2014 the investigative authority opened an investigation into the applicant’s kidnapping as criminal case no. 815447 under Article 126 § 2 (a) of the Russian Criminal Code (“aggravated kidnapping”).

In the course of the investigation CCTV pictures from cameras located in the vicinity of the scene of the incident were examined. They showed that on 9 June 2014 at about 7 p.m. the applicant had been kidnapped by unidentified people and taken away by car.

The Government claimed that the Court’s demand to submit lists of passengers checked in on Uzbekistan-bound flights between 9 and 12 June 2014 (see paragraph 5 above) could not be complied with as the lists in question contained personal data about third parties and could not be submitted to the Court without their prior consent.

The Government further submitted that there was no information about the arrest of the applicant on 9 June 2014 by lawenforcement agencies or his detention in remand prisons in Moscow or the Moscow Region, and that no information regarding the applicant crossing the State border had been received at that time.

The notification by the Uzbek authorities to the applicant’s father of 18 June 2014 concerning the applicant’s arrest and detention in Uzbekistan had been added to the criminal investigation file.

The Government concluded that there was no evidence to prove any direct or indirect involvement of the Russian authorities in the applicant’s alleged kidnapping and transfer to Uzbekistan.

The Russian authorities had not been made aware and could not have known of any risk that the applicant might be kidnapped.

The Government were not in a position to provide information on the criminal proceedings against the applicant in Uzbekistan as those proceedings fell outside their jurisdiction. However, they had sent a request for mutual legal assistance to the Uzbek authorities in order to establish the applicant’s whereabouts.

In conclusion, the Government submitted that there had not been any administrative practice of the involuntary removal of persons in respect of whom Rule 39 had been applied to their countries of nationality. Inquiries and investigations were opened into instances of the disappearance of such people. The Russian Prosecutor’s Office oversaw the compliance with Russian law of any decisions taken in the course of such inquiries and investigations. A large group of State agencies had held a co-ordination meeting on 10 September 2014 on the further enforcement of measures to ensure the security of asylum seekers.

No documents were enclosed with the Government’s observations of 24 October 2014.

On 26 February 2015 the Government, in reply to the applicant’s observations on the admissibility and merits of the application, submitted that they reaffirmed the position stated in their observations of 24 October 2014 and commented on the applicant’s just satisfaction claims.

No documents were enclosed with the Government’s correspondence of 26 February 2015.

Following the Court’s additional question to the Government regarding the respondent State’s compliance with Article 38 of the Convention (see paragraph 6 above), the Government submitted a letter which read as follows:

“With reference to your letter of 24 April 2015 in respect of the above application, please find enclosed copies of the criminal investigation documents disclosed by the investigative authorities after a repeated request.

The Government kindly ask the Court to join the documents to the case-file.”

No answer to the Court’s question under Article 38 of the Convention was given.

Forty-three pages of various documents issued by the Russian and Uzbek authorities were enclosed with the Government’s cover letter.

The contents of the documents issued by the Russian authorities and which were enclosed with the Government’s letter of 15 May 2015 can be summarised as follows.

On 10 June 2014 Mr T. reported the applicant’s kidnapping to the Basmannyy police and made a statement. Mr T. stated, in particular, that a woman on the street near the pharmacy had seen two men getting into the parked silver Lada Priora.

On 10 June 2014 Ms I. made a statement to the Basmannyy police that at 7 p.m. on 9 June 2014 she, her partner and child had taken a taxi, a silver Lada Priora. She had got out of the car to go into a pharmacy, but by the time she had come out the taxi had disappeared.

On 30 June 2014 the Basmannyy police reported to the investigative authority that they had failed to identify the applicant’s whereabouts and that there had been no “positive information” concerning any aeroplane or railway tickets issued in the applicant’s name or about the applicant being placed in remand prisons. Furthermore, it was noted that the Moscow department of the FSB and the data centre of the Russian Ministry of the Interior had not sent any reply to the police’s enquiries. The Basmannyy police also reported that the whereabouts of Mr T. and Ms I. were unknown and that it had been impossible to identify the taxi driver who had taken the applicant to the scene of the kidnapping.

On 9 July 2014 the investigative authority decided to open a criminal investigation into the applicant’s kidnapping. The decision described the events as follows:

“On 9 June 2014 at about 7 p.m. persons who have not been identified by the investigation, acting jointly and by common accord, approached a car which has not been identified by the investigation parked near house no. 7/2 at Bolshoy Kharitonyevskiy Lane in Moscow, in which Mr Khamidkariyev was travelling, and, having got in the said car against the will of the victim, kidnapped Mr Khamidkariyev, fleeing the scene of the crime in the said car to an unknown destination.”

On 11 September 2014 the investigative authority requested the transport police to inform them whether any aeroplane or railway tickets had been issued in the applicant’s name between 1 June and 1 August 2014.

On 9 October 2014 the investigative authority granted the applicant victim status in case no. 815447.

On 15 January 2015 an investigator with the investigative authority decided to suspend the investigation of case no. 815447. The decision stated that the applicant’s whereabouts had been established as he had been detained in a remand prison in Tashkent, the scene of the incident had been inspected, seven witnesses had been questioned, various requests had been sent to the Russian authorities and a request for mutual legal assistance had been sent to Uzbekistan, but no reply had been received.

On 29 April 2015 the investigator’s superior at the investigative authority overruled the decision of 25 April 2015 to suspend the case and returned it to the investigator on the grounds that the suspension decision had been taken prematurely. It was noted that the following measures had to be taken to ensure a proper investigation: a response to the request for mutual legal assistance from the Uzbek authorities had still to be received, as had replies to “previously sent requests”. “Other requisite investigative and procedural measures” also still had to be performed.

On 29 April 2015 an investigator at the investigative authority decided to resume case no. 815447 following the order from his superior. It is clear from the text of the decision that between 9 October 2014 and 29 April 2015 the investigation had been suspended and resumed four times on the basis of decisions by a more senior officer at the investigative authority or by a prosecutor.

The materials provided by the Government included the following documents:

- an undated sheet of paper with no letterhead entitled “Federal Search for an Individual” containing the applicant’s personal information and information on a criminal case pending against him in Uzbekistan, from which it transpires that the applicant was put on a Russian federal wanted list. The sheet contains a handwritten note “Database ‘Region’ of the Russian Ministry of the Interior (has not been arrested)”.

- an undated document entitled “Request for legal assistance” addressed to “the competent State bodies of Uzbekistan” and signed by an investigator at the investigative authority, including a list of questions to ask the applicant, Ms I. and the officers in charge of the applicant’s arrest. The questions concerned, in particular, the circumstances of the applicant’s arrival in Uzbekistan, including how he crossed the border and the reasons for his detention in Tashkent.

The contents of the documents issued by the Uzbek authorities which were enclosed with the Government’s letter of 15 May 2015 can be summarised as follows.

According to an arrest record drawn up in Russian by the Uzbek police the applicant was placed under arrest at 10.40 a.m. on 14 June 2014 as a suspect in a crime under Article 244² § 1 of the Uzbek Criminal Code. The place of arrest was not indicated in the record. The grounds for the arrest were stated as “other information leading to a suspicion that a person has committed a crime, and if the person has attempted to flee or has no abode or his or her identity has not been established”. The purpose of the arrest was stated as “there are enough grounds to suspect the person of having committed a crime”. A note observed that “the arrested person has been placed in a temporary detention unit of the Ministry of the Interior of Uzbekistan”.

According to a document in Russian entitled “Record of providing an arrested person with the right to make a telephone call” of 14 June 2014, the applicant made use of that right to call his mother between 10.45 and 10.49 a.m. on 14 June 2014 to inform her of his arrest.

The record of the search of the applicant in Russian showed that 300 Russian roubles and one metallic ring were seized from the applicant when he was searched after being arrested.

On 18 June 2014 the Main Investigation Department of the Ministry of the Interior of Uzbekistan informed the applicant’s father that his son, who had been wanted and “declared guilty in absentia”, had been arrested on 17 June 2014, placed in custody and had been participating in investigative measures.

According to a Russian translation of a document in Uzbek of 10 February 2015 an investigator, K., at the Ministry of the Interior of Uzbekistan asked the State Customs Committee of Uzbekistan to provide information on “the facts of crossing the State border of Uzbekistan” by the applicant between 1 June and 1 July 2014. A Russian translation of the reply in Uzbek by the State Customs Committee of Uzbekistan of 12 February 2015 stated that there was no information in the customs’ database on the applicant crossing the Uzbek border between 1 June and 1 July 2014. It was noted that the database was compiled on the basis of written statements by those crossing borders and could thus contain errors owing to differences in people’s handwriting.

According to the record of an interview held on 11 February 2015 K. questioned the applicant as a victim in an unspecified criminal case. The interview was in Russian. In the course of the interview the applicant stated that he had not been arrested by the Russian authorities and that he had voluntarily left Moscow to go to Uzbekistan to visit his ailing mother. He stated that he had had no documents on him. Once in Uzbekistan, the applicant had taken a taxi to his mother’s, but the taxi had broken down and stopped. After getting out of the car, the applicant had been asked by police officers who had happened to be passing for an identification document. Since he had had no such document, he had been taken to a police station for identification and then arrested. The applicant’s answer to a question about his whereabouts between 9 and 15 June 2014 was as follows:

“On 9 June 2014 I was at home, in the evening I took the child to hospital, then at about 9 p.m. I returned and stayed at home. Then on 10 June 2014 I was at home and at about 11 p.m. went to the railway station, and at 12 midnight left for Uzbekistan by bus. I was on the road for about seventy-two hours or a little longer, and on 14 June 2014 I arrived at the border between Kazakhstan and Uzbekistan, then, using roundabout ways, I crossed the border and at about 7 a.m. was on Uzbek territory, where I was arrested by officers of law-enforcement agencies.”

On 12 February 2015 the investigator K. questioned Ms I. as a witness. The interview was in Russian. Ms I. stated that the applicant had voluntarily and secretly left for Uzbekistan by bus on 10 June 2014 and that she had flown to Tashkent on 13 June 2014.

On 12 February 2015 K. questioned one of the police officers who had arrested the applicant, Mr Kh., as a witness. The interview was in Russian. The answer to the question about the circumstances of the applicant’s arrest reads as follows:

“On 14 June 2014 at about 7.30 a.m. in the Yakkasarayskiy district of Tashkent Mr Khamidkariyev was stopped with a view to checking his identity documents, however, given that he had no documents on him, the latter was taken to the Yakkasarayskiy district department of the interior of Tashkent, where it was established that Mr Khamidkariyev was wanted, accordingly, Mr Khamidkariyev was taken to the initiator of the search for him in the temporary detention facility of the Ministry of the Interior of Uzbekistan, where the requisite documents were filled in.”

On an unspecified date K. drew up a report on the actions performed under the request for mutual legal assistance. According to the report, the investigator had questioned Ms I., Mr Kh. and the applicant, had received copies of documents pertaining to the applicant’s arrest, requested information concerning the border crossing and had identified two men allegedly connected with the applicant who as of November 2014 had been fighting on the side of ISIS in Syria.

The Government also submitted two documents in Uzbek of 14 June 2014 – a copy of the first page of Ms I.’s passport, and an extract from the Criminal Code of Uzbekistan with the text of Article 244² § 1 in Russian. The Article reads as follows: “the establishment, management, or participation in religious extremist, separatist, fundamentalist or other proscribed organisations shall be punishable by five to fifteen years of imprisonment”.

The Court observes that both parties to the present case have submitted information concerning its factual circumstances that is very fragmented.

The applicant’s representative summarised the applicant’s description of the events of 9 June 2014, given orally to the representative on 31 October and 3 November 2014 in the courtroom in Tashkent (see paragraphs 27-30 above), as follows.

At 7 p.m. on 9 June 2014 the applicant had been abducted by “Timur” and “Zakhar”, FSB officers whom he had previously met in November 2011. The two men had put a sack over the applicant’s head during the abduction. They had then taken him to an unidentified house, tied him up and taken the sack off his head. The FSB officers had beaten the applicant and kept him inside the house until the following day.

On 10 June 2014 “Timur” and “Zakhar” had taken the applicant to a runway at one of Moscow’s airports without passing through any border or passport controls as the applicant’s passport had remained with the Moscow FMS. The FSB officers had handed the applicant over to Uzbek officials near the steps of a Tashkent-bound airplane.

Once in Uzbekistan, the applicant had been placed under arrest by the Main Investigation Department of the Ministry of the Interior of Uzbekistan and had been subjected to torture and other ill-treatment by lawenforcement officers for two months with a view to securing a selfincriminating statement. The applicant had been tied to a bar attached to the wall head downward and had been beaten repeatedly. The Uzbek officers had broken two of the applicant’s ribs and knocked out seven of his teeth.

The Government submitted that according to CCTV pictures the applicant had been kidnapped at about 7 p.m. on 9 June 2014 by unidentified people and had been taken away by car to an unidentified destination. There had been no proof of the direct or indirect involvement of the Russian authorities in the applicant’s alleged abduction and forced transfer to Uzbekistan.

From the limited material provided by the parties the Court can discern the following as the few facts which appear to be not in dispute. Both parties have agreed that the applicant was abducted in Moscow at about 7 p.m. on 9 June 2014 (see paragraphs 21 and 77 above). It follows by implication from the Government’s assertion that the applicant was kidnapped by unidentified people (see paragraph 115 above) that they have acknowledged that the applicant was restricted in exercising his free will from that moment on. It is thus reasonable to assume that the Government have not contested the allegation that the applicant was involuntarily removed from the Russian territory. Furthermore, there is no dispute about the fact that the applicant was arrested and placed in custody in Tashkent by the Uzbek authorities, although there appears to be a certain amount of confusion as to the date of his arrest (see paragraphs 24, 62 and 92 above). The Government also raised no objection to the applicant’s representative’s submission that the applicant stood trial at Tashkent City Court and was convicted of crimes related to religious extremism (see paragraph 43).

Nevertheless, the events from 7 p.m. on 9 June 2014 onwards, in particular the factual circumstances of how the applicant travelled from Russia to Uzbekistan, have not been elucidated.

The Court notes in passing that the Government enclosed a record of the applicant’s interview by the Uzbek authorities, without providing any accompanying comment or explanation. According to that document, the applicant had travelled from Moscow to Tashkent by bus without a passport (see paragraph 90 above). Were the Government to be understood to be tacitly relying on the explanation appearing in that document, the Court would be reluctant to accept is as satisfactory given that the interview in question was not attended by sufficient procedural safeguards against abuse and arbitrariness.

The Court reiterates that it has established a number of general principles concerning situations in which, owing to a conflicting account of events by the parties, it has confronted difficulties when establishing the facts (for a summary of those principles see El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, §§ 15153, 13 December 2012).

In particular, the Court reaffirms its constant position that the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation where the events giving rise to a complaint under Articles 2 or 3 of the Convention lie within the exclusive knowledge of the authorities, as in the case of persons under their control in custody (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000VII), or where, although it has not been proved that a person has been taken into custody by the authorities, it is possible to establish in the context of a disappearance complaint under Article 5 of the Convention that he or she was officially summoned by the authorities, entered a place under their control and has not been seen since (see Tanış and Others v. Turkey, no. 65899/01, § 160, ECHR 2005–VIII).

Turning to the circumstances of the present case, the Court observes that, owing to the scarcity of the information before it, it is not in a position to establish with certainty the exact circumstances of the applicant’s travel from Moscow to Tashkent, including the date of arrival to destination and the means of transportation employed. Given that three documents issued by the Uzbek authorities that were submitted by the Government suggest that he reached Tashkent on 14 June 2014 (see paragraphs 85-86 above), the Court is ready to accept, in the absence of any other evidence, that date as the date of arrival. As to the means of transportation, the applicant’s representative submitted that the applicant was put on an aeroplane in one of the Moscow airports. The Government remained silent on the matter. The Uzbek authorities implied that the applicant took a bus from Moscow to Tashkent.

The Court considers that, owing to the scarcity of the information available, it cannot establish the precise circumstances surrounding the applicant’s travel from Moscow to Tashkent. Nevertheless, it regards the following two elements as salient for the analysis of the present case: (a) that the applicant was without his passport on 9 June 2014 (see paragraph 18 above), and (b) that, in order to arrive to Tashkent, he must have crossed the Russian State borders in one manner or another.

The Court notes in this connection that it has previously concluded that a forcible transfer of an individual to a State that was not a party to the Convention by aircraft from Moscow or the surrounding region could not happen without the knowledge and either passive or active involvement of the Russian authorities (see Iskandarov v. Russia, no. 17185/05, §§ 113-15, 23 September 2010; Abdulkhakov v. Russia, 14743/11, §§ 125-27, 2 October 2012; and Ermakov v. Russia, no. 43165/10, § 176, 7 November 2013). Any airport serving international flights is subject to heightened security measures, remaining under the permanent control of the respondent State’s authorities and notably, the State border service (ibid., also, see Savriddin Dzhurayev v. Russia, no. 71386/10, §§ 201-02, ECHR 2013 (extracts)). As to the possibility of transport by bus, it would appear implausible that an individual whose name appeared on the wanted lists (see paragraphs 11 and 83 above) could travel some 3,400 kilometres through Russia and Kazakhstan by bus and cross the Russia-Kazakhstan and Kazakhstan-Uzbekistan State borders unimpededly despite having no passport on him (see paragraph 18 above).

The Court considers, accordingly, that a strong presumption of the Russian authorities’ involvement in the applicant’s relocation to Uzbekistan has arisen. The Government, however, have failed to rebut this presumption. In particular, they did not disclose the passenger logs for the Tashkentbound flights which had departed from the Moscow airports after 9 June 2014 (see paragraph 60 above). Nor did the Government submit any explanation as to how the applicant could cross the Russian border without a passport.

In view of the above, the Court considers that, whereas the applicant made out a prima facie case that he had been abducted and transferred to Uzbekistan with the direct or indirect involvement of the Russian authorities, the Government failed persuasively to refute his allegations and to provide a satisfactory and convincing explanation as to how the applicant arrived in Tashkent.

The Court accordingly finds it established that the Russian authorities bear responsibility, as a result of direct or indirect involvement, for the applicant’s forcible transfer from Moscow to Tashkent. On the basis of this finding, the Court will proceed to examine the applicant’s complaints under Article 3 of the Convention.


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

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Sergiy Goncharenko;Síofra O’Leary

The applicant, Mr Volodymyr Oleksandrovych Kryvenkyy, is a Ukrainian national who was born in 1934 and lives in Velyki Gadomtsi.

On 25 March 1997 the applicant obtained a certificate (cертифікат на право на земельну частку (пай)) attesting his entitlement to a nominal 3.61-ha share of the land belonging to the V.G. collective farm. At the same time, according to him, he was allocated a specific plot measuring 3.61 ha, which, he had farmed and paid land tax on since that time. It appears that the allocated land consisted of at least two different parcels, one of them measuring 0.6021 ha.

In September 1998 V.G. merged with Kh., a neighbouring collective farming company, which was designated as its successor. Following the merger, Kh. did not register itself as the new owner of the land formerly allocated to V.G. Subsequently the two farms separated again.

On 18 March 1999 the Parliament of Ukraine ordered the expropriation of 150 ha of Kh.’s land and its transfer to U.C.C. closed joint stock company for the exploitation of kaolin deposits. By the same decision, U.C.C. was obliged, in particular, to compensate the local council for the damage suffered by the agricultural producers in connection with the expropriation of the land.

On 10 June 1999 the Berdychiv district land authority drew up a draft land-ownership certificate designating the boundaries of the plot to be allocated to U.C.C. This plot was de facto located on the land which had been registered as belonging to V.G.. The draft certificate mentioned, in particular, that U.C.C. had to obtain and register a relevant State land-use certificate.

According to the applicant, until 2004 U.C.C. took no action to register its land-use rights and the plot designated for expropriation by Parliament’s decision of 18 March 1999 remained in the hands of the members of the V.G. collective farm. The 0.6021-ha parcel of the land farmed by the applicant was affected by the Parliament’s decision.

Meanwhile, on 17 January 2003 the Berdychiv district administration approved a draft certificate determining the boundaries of the plots of land to be designated to individual farmers from the lands allocated to V.G. and ordered production of the respective individual land-ownership certificates.

On the basis of this decision, on 4 June 2003 the applicant was issued with the land-ownership certificate for the aforementioned 0.6021-ha plot. No information concerning registration of ownership in respect of any other land parcels farmed by the applicant has been provided to the Court.

On 7 July 2005 the Berdychiv district prosecutor addressed the Berdychiv district administration objecting to its decision of 17 January 2003. The prosecutor maintained, in particular, that 150 ha of land designated for exploitation of kaolin deposits had been allocated to individual farmers in breach of U.C.C.’s rights.

On 22 July 2005 the Berdychiv district administration accepted the prosecutor’s objection and annulled its decision of 17 January 2003 in so far as it related to the 150 ha of land claimed by U.C.C.

On 31 August 2005 U.C.C. lodged a civil action claiming the 0.6021-ha plot of land allocated to the applicant and seeking annulment of the land-ownership certificate issued to him on 4 June 2003. It noted, in particular, that the Berdychiv district administration had already annulled its own decision of 17 January 2003, which had served as the basis for the issuance of the land-ownership certificate to the applicant. The issuance had therefore been devoid of legal basis.

On 17 August 2006 the Berdychiv Court allowed the aforementioned claim. It noted that the disputed plot had been allocated to the applicant mistakenly on the basis of the decision of 17 January 2003, without due regard to the fact that in 1999 this very plot had already been expropriated and transferred to U.C.C.

Following this decision, U.C.C. blocked the road leading to the plot disputed by the U.C.C. and it became impossible for the applicant to access it or use it for farming.

On 12 December 2006 the Zhytomyr Regional Court of Appeal upheld the above judgment.

The applicant appealed in cassation before the Supreme Court of Ukraine. He noted, in particular, that he had obtained the disputed land lawfully and in good faith. He could therefore not be deprived of it unless fair compensation was paid.

In February 2007 the applicant added to his cassation appeal, informing the Supreme Court of Ukraine that on 12 February 2007 the Regional Court had annulled the decision of 22 July 2005 and revalidated the decision of 17 January 2003, on the basis of which he had obtained his land-ownership certificate (see paragraph 23 below).

On 4 April 2007 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal in cassation.

On an unspecified date several individuals, excluding the applicant, apparently the land owners whose land was also being claimed by U.C.C., instituted administrative proceedings against the Berdychiv district administration. They sought, in particular, to annul its decision of 22 July 2005 and to declare lawful the decision of 17 January 2003, on the basis of which their land-use certificates had been issued.

On 12 February 2007 the Zhytomyr Regional Court of Appeal allowed their claim. It noted, in particular, that Parliament had ordered the expropriation of Kh.’s land, while the land, whose boundaries had been in dispute, had belonged to V.G., which had been a separate legal entity on the date of the decision at issue.

On 23 July 2008 the Higher Administrative Court of Ukraine quashed the above decision and remitted the case for retrial.

After several rounds of proceedings, on 14 September 2011 the Berdychiv Court found that the decision of 22 July 2005 had been unlawful in so far as it had related to the plots of land of the individuals who had instituted the proceedings. On 6 December 2011 and 27 August 2013 the judgment of 14 September 2011 was upheld by the Zhytomyr Regional Administrative Court and the Supreme Court of Ukraine respectively.


CASE OF KRIVOROTOVA AND OTHERS v. UKRAINE

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 - Civil proceedings;Right to a fair trial;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.


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

Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicants were born in 1959, 1950 and 1952 respectively, and live in Brestovec Orehovički and Krapina respectively.

In 1990 I. Ku., the applicants’ predecessor, brought a civil action in the Zagreb Municipal Court (Općinski sud u Zagrebu) against M.K., seeking his eviction from a flat and reimbursement of the costs of the proceedings.

In 2001, following the death of I. Ku, the applicants, as his heirs, took over the proceedings as plaintiffs, while M. K. also died in the course of proceedings and I. Kr. replaced him as defendant.

During the proceedings, I. Kr. brought a counterclaim against the applicants, seeking either a specially protected tenancy of the flat at issue or compensation for investments in the flat he had made in the amount of 95,000 Croatian kunas (HRK). The applicants also, in addition to I. Ku.’s civil action, requested the Zagreb Municipal Court to order I. Kr. to remove everything he had installed in the flat.

At the closing hearing before the Zagreb Municipal Court on 12 June 2007 the applicants reiterated all their arguments and requested reimbursement of the costs of proceedings. At the same hearing, the applicants submitted a written itemised claim for costs in the amount of HRK 14,786.40. At the same time, the defendant’s representative reiterated his arguments and requested reimbursement of the costs in the amount which he promised to specify later.

On the same day the Zagreb Municipal Court allowed the applicants’ action in part, ordering the eviction of I. Kr. from the flat, whereas it dismissed the remainder of their civil action, as well as I. Kr.’s counterclaim for compensation of the investments in the flat. As regards the costs of the proceedings, the Zagreb Municipal Court noted:

“With regard to the costs of the proceedings, each party shall bear their own costs, as provided under section 154 § 2 of the Civil Procedure Act, since the plaintiff succeeded with part of [their] action while [they] were dismissed as regards the remainder, and the counterclaim was fully dismissed.”

On 10 October 2008, in a supplementary judgment, the Zagreb Municipal Court dismissed I. Kr.’s civil action for a specially protected tenancy.

Meanwhile, the parties challenged the first-instance judgment of the Zagreb Municipal Court of 12 June 2007 before the Zagreb County Court (Županijski sud u Zagrebu). The applicants argued that the first-instance court had incorrectly assessed the situation concerning their right to reimbursement of the costs of proceedings.

On 2 February 2010 the Zagreb County Court (Županijski sud u Zagrebu) dismissed the appeals and upheld the first-instance judgment. As regards the applicants’ arguments concerning the costs of proceedings, the Zagreb County Court noted:

“... it is to be noted that [the applicants] correctly consider that they should be reimbursed the costs of the proceedings, since the part of their claim by which they sought the eviction [of I. Kr.] from the flat was successful. However, it is to be noted that the case file shows that they failed to comply with the requirement under section 164 § 3 of the Civil Procedure Act, which provides that a party must set out his or her request for reimbursement of costs at the latest at the end of the closing hearing which precedes the decision on costs. At the hearing held on 12 June 2007, by which the proceedings terminated, [the applicants’] representative sought reimbursement of the costs of the proceedings based on an itemised claim which he was supposed to submit. However, there is no such itemised claim in the case file, and the reimbursement of costs was not sought earlier, while certain procedural actions were being taken. This is the reason why the costs of the proceedings could not be reimbursed to [the applicants].”

On 14 April 2010 the applicants challenged the judgment of the Zagreb County Court by lodging a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske). They pointed out that the Zagreb County Court had manifestly incorrectly assessed their request for reimbursement of the costs of the proceedings, overlooking the fact that they had indeed submitted in writing an itemised claim for costs, and had therefore arbitrarily dismissed their complaints in that respect.

On 23 September 2010 the Constitutional Court declared the applicants’ constitutional complaint inadmissible, on the grounds that the contested judgment had not concerned the merits of their civil rights or obligations, and as such was not susceptible to constitutional review. This decision was served on the applicants on 18 October 2010.


ÖZEL FEZA EĞİTİM ÖĞRETİM YURT VE KANTİN İŞLETMECİLİĞİ TİCARET ANONİM ŞİRKETİ v. TURKEY

Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Georges Ravarani;Ksenija Turković

The applicant, Özel Feza Eğitim Öğretim Yurt ve Kantin İşletmeciliği Ticaret Anonim Şirketi, is a joint stock company registered in Turkey that operated a private tutoring centre (dershane) in Kütahya for students preparing for secondary school and university entrance examinations at the time of the events giving rise to the present application. The applicant company was represented before the Court by Mr M. Kasap, a lawyer practising in Ankara.

Law no. 5580 on Private Education Institutions was enacted on 8 February 2007 to govern the authorisation, operation, management and supervision of private education institutions. According to former section 2 (b) of Law no. 5580, the term “institution” included, for the purposes of that Law, private institutions engaging in pre-school, elementary and secondary school education, schools for special education and various training courses, distance learning institutions, private tutoring centres, driving schools, inservice training centres, student study centres, special education and rehabilitation centres, and other similar private education institutions.

According to former section 2 (f) of Law no. 5580, a “private tutoring centre” was defined as a private education institution that prepared students for, inter alia, examinations held for admittance to secondary education or higher education (hereinafter referred to as “entrance examinations”).

On 1 March 2014 Law no. 6528 was enacted to amend various laws, including Law no. 5580. Amongst other changes, Law no. 6528 removed “private tutoring centres” from the list of private education institutions that were authorised to operate within the scope of Law no. 5580, and made certain arrangements for the transformation of private tutoring centres in operation to other education institutions. It also amended the definition of “various training courses” mentioned in section 2 (b) of Law no. 5580 to specify that such training courses could not engage in preparing students for entrance examinations, and further added that “student study centres” referred to in the same paragraph could only offer services to students who were aged twelve or below. According to the preparatory works to Law no. 6528, such amendments were considered necessary mainly to tackle the dichotomy and inequality of opportunity caused by private tutoring centres within the education system, which had over the years begun to be perceived as an alternative to compulsory education institutions.

On 13 July 2015, following an action brought by a group of Members of Parliament, the Constitutional Court decided to annul those provisions of Law no. 6528 that concerned private tutoring centres, as well as the amendments made to the definitions of “various training centres” and “student study centres”. The annulment became effective on 24 July 2015, the date of publication of the Constitutional Court’s decision. The Constitutional Court stressed in its decision that private tutoring centres had been set up to prepare students for entrance examinations, and thus served a specific need which was not always met by regular schools. Instead of taking more targeted measures to deal with the problems posed by those tutoring centres, however, the legislator had opted for their complete abolition, which was not a proportionate response in the circumstances, considering in particular that no alternatives were on offer to meet the specific needs of students preparing for entrance examinations. The Constitutional Court noted in this connection the amendment of the definitions of “various training courses” and “student study centres” to prevent them from replacing private tutoring centres.

On 8 August 2015 the Regulation on Private Education Institutions was amended. The amendments concerned, inter alia, details regarding the “transformation programme” that had to be followed by private tutoring centres and the various education institutions that they could transfer into.

On 12 August 2015 the Ministry of Education issued a circular (no. 2015/23) regarding, inter alia, the situation of private tutoring centres. The circular stated that following the Constitutional Court decision, private tutoring centres currently in operation had to transform themselves into other private education institutions in order to be able to continue to operate. According to section 1 of this circular, any private tutoring centres which had not applied for the “transformation programme” by 1 September 2015 would have their operating licences revoked.

Following an action brought by an education workers’ trade union, on 15 September 2015 the Supreme Administrative Court ordered a stay of execution of circular no. 2015/23. The Supreme Administrative Court stated that by virtue of Article 153 of the Constitution decisions delivered by the Constitutional Court did not have retroactive effect, which meant that while the relevant provisions of Law no. 6528 abolishing private tutoring centres had been annulled, the former provisions of Law no. 5580 governing those centres had not been reinstated. This, the Supreme Administrative Court explained, created a gap in the law in respect of the legal status of private tutoring centres which were currently in operation; this gap had to be filled by the legislator. In the absence of such action by the legislative body, any measures taken by the administration to close down private tutoring centres or limit their activities would be ultra vires. For this reason, the Supreme Administrative Court found that circular no. 2015/23 issued by the Ministry of Education had been ultra vires and had contravened the Constitutional Court decision by virtue of its provisions providing for the closure of private tutoring centres. Two of the members of the Supreme Administrative Court, including the president, delivered a dissenting opinion stating that circular no. 2015/23 was lawful and in compliance with the Constitutional Court decision. It appears that the Supreme Administrative Court has not yet delivered a decision on the merits of this case.

On 18 September 2015 the Ministry of Education issued another circular (no. 2015/25) on the subject. According to section 1 of this circular, no administrative action would be taken by governors’ offices against private tutoring centres which were operating lawfully at the time of the enactment of Law no. 6528. However, legal action would be taken against those private tutoring centres which continued to operate without transforming themselves into one of the other private education institutions defined in Law no. 5580.

On 18 December 2015 the Ministry of Education revoked the licence of the applicant company to operate a private tutoring centre, on the ground that it had continued to operate without being transformed into one of the other private education institutions listed in Law no. 5580, contrary to circular no. 2015/25. As a result of this decision, on 24 December 2015 the applicant company was banned from operating a private education institution for five years.

Prior to its amendment by Law no. 6528 (see below paragraphs 13-14), section 2 of Law no. 5580 provided as follows:

“The definitions

Section 2- The [terms] mentioned in this Law [are defined as follows] ...

(b) Institution: private institutions engaging in pre-school, elementary and secondary school education, schools for special education and various training courses, institutions of distance learning, private tutoring centres, driving schools, inservice training centres, student study centres, special education and rehabilitation centres, and other similar private education institutions ...

(f) Private tutoring centre: private education institutions that prepare students for examinations held for admittance to secondary education or higher education, to train [students] in their desired subjects and to enhance their level of knowledge.

(g) Various training courses: private education institutions that operate for the purpose of enhancing individuals’ knowledge, skills, linguistic [skills], abilities and experiences in social, artistic, sportive, cultural and vocational spheres, [and] to [enable them to] make use of their free time according to their wishes ...

(j) Student study centre: private education institutions established to assist students to study their lessons [and] to complete their assignments and projects; [and] to conduct social, artistic, sporting and cultural activities in accordance with [the students’] interests, wishes and abilities ...”

Among other changes, Law no. 6528 removed “private tutoring centres” from the list of institutions defined in section 2 (b) of Law no. 5580 and abolished section 2 (f) accordingly. It also amended section 2 (g) and (j) as follows:

“(g) Various training courses: private education institutions that operate for the purpose of enhancing individuals’ knowledge, skills, linguistic [skills], abilities and experiences in social, artistic, sporting, cultural and vocational spheres, [and] to [enable them to] make use of their free time according to their wishes, on the condition that they do not engage in preparing students for examinations for entrance to secondary education and higher education ...

(j) Student study centre: private education institutions established to assist students of twelve years of age and below to study their lessons [and] to complete their assignments and projects; [and] to conduct social, artistic, sporting and cultural activities in accordance with [the students’] interests, wishes and abilities.”

Law no. 6528 also added a provisional section 5 to Law no. 5580. According to paragraph 1 of this provisional section, private tutoring centres which had not transformed themselves into another private education institution could only operate until 1 September 2015.

The decision of the Constitutional Court of 13 July 2015 has been outlined in paragraph 6 above.

The relevant information regarding the circular no. 2015/23 issued by the Ministry of Education on 12 August 2015 and the decision of the Supreme Administrative Court dated 15 September 2015 ordering the stay of execution of that circular may be found in paragraphs 8-9 above.

The relevant information regarding circular no. 2015/25 issued by the Ministry of Education on 18 September 2015 may be found in paragraph 10 above.

According to information obtained proprio motu by the Court, on an unspecified date an action was brought by an education workers’ trade union seeking the annulment and stay of execution of circular no. 2015/25. On 11 December 2015 the Supreme Administrative Court dismissed the request for a stay of execution. It held that the repeal of the relevant provisions of Law no. 6528 by the Constitutional Court had created a legal lacuna concerning the legal status of private tutoring centres. The circular at issue had sought to fill that lacuna by providing for the operation of such private tutoring centres after transformation into other private education institutions, which was also in conformity with the Constitutional Court decision in this respect. Two members of the Supreme Administrative Court delivered a dissenting opinion against the decision of the majority, following the reasoning of the previous Supreme Administrative Court decision concerning circular no. 2015/23 (see paragraph 9 above). It appears that the Supreme Administrative Court has not yet delivered a decision on the merits of this case.

According to Article 125 of the Turkish Constitution, all acts and decisions of the administration are subject to judicial review.

Section 2 of Law no. 2577 (Administrative Procedure Act) provides that anyone whose personal rights have been violated as a result of an allegedly unlawful administrative act or decision can bring an action for annulment of that act or decision.

A description of the relevant domestic law and practice regarding the right of individual application to the Turkish Constitutional Court, as well as a review of the mechanism for individual application, may be found in Hasan Uzun v. Turkey (dec.), no. 10755/13, §§ 7-27 and §§ 52-71, 30 April 2013).


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

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

The applicants complained of the non-enforcement of domestic decisions and of the lack of any effective remedy in domestic law.


Branko Lubarda;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant, Mr Eugen Constantin, is a Romanian national, who was born in 1959 and lives in Timişoara. He was represented before the Court by the National Organisation for Human Rights (Organizaţia Naţională Pentru Drepturile Omului), an association based in Timişoara.

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

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

On 26 February 2008 at around 6 p.m. the applicant’s twenty-four year old son G.C. was on his way to work. While he was on the pavement intending to cross the street at a zebra crossing, he was hooked by the lateral right side of a lorry and dragged under the wheels of its trailer. He died immediately. The lorry, driven by F.M., was carrying six workers from their place of work to their homes.

Immediately after the accident the police arrived at the scene and started drafting the crime scene report, which included identification data of the parties involved in the accident and of two eyewitnesses, various measurements, a description of the lorry and of the area where the accident happened as well as photographs. F.M. was sent to the hospital for a blood alcohol test.

The same day a criminal investigation was started against F.M. for unintentional killing. The police took written statements from four eyewitnesses. C.I. explained that she had been a few metres behind G.C., who had been on the pavement “at the zebra crossing”, when he had stumbled on a manhole cover then lost his balance and fallen under the wheels of a small lorry. She mentioned that, when the accident had happened, the traffic lights had been green for cars. S.L.V., B.I. and C.V., who were passengers in the lorry involved in the accident, stated that the lorry in question had been moving slowly on the inside lane towards green traffic lights when they had seen the victim hurrying on the pavement towards their vehicle. When S.L.V. and C.V. had looked in the right side mirror, they had seen the victim stumbling and falling under the lorry. The lorry’s driver had stopped immediately to see what had happened. C.V. also mentioned that the lorry had been travelling at a speed of no more than 30 kph because at that time of day the traffic was busy. At a later date, N.M. and G.D., who were also in the lorry at the time of the accident, gave similar statements.

In March 2008 statements were taken from R.C. and M.R., work colleagues of the victim, as well as the victim’s brother, C.B, who had all seen the accident from across the street. R.C. mentioned that she had been waiting for the bus to go to work together with M.R. and other colleagues including C.B. After their bus left the traffic lights and arrived at the stop where she had been waiting, she saw that the cars in the opposite lane were all stopped at the red traffic light and that only the lorry in question was moving. Immediately afterwards, she saw C.G. lying on the road. She explained that the lorry had been moving at high speed and that she had seen C.G. standing on the kerb of the pavement in front of the zebra crossing and not crossing the street. She did not see how C.G. had fallen under the lorry’s wheels. M.R. and C.B. gave similar accounts of the events.

On an unspecified date H.A., a witness proposed by the applicant, stated to the police that at the time of the accident he had been walking on the opposite side of the street when he had heard a noise and had turned to see what had happened. At that point he had noticed that all the cars had stopped on both sides of the road and that the traffic lights had been red for cars. The traffic lights for the zebra crossing had been green but he had not seen any pedestrian crossing at that moment.

On various dates polygraph tests were carried out on some of the witnesses. The results of blood alcohol tests came back negative for both the victim and F.M.

On 3 April 2008 the applicant joined the criminal proceedings as a civil party.

On 4 September 2008 an independent technical expert was chosen and specific questions were raised for his analysis in the presence of F.M. and the applicant. A record was drawn up stating that the parties had had no objections to the expert chosen or to the questions. Subsequently, the expert, accompanied by the applicant, went to the site of the accident for technical verifications. A record was drawn up of his findings, and of the applicant’s version of the facts, namely that C.G. had been crossing the street at a zebra crossing while the traffic lights were on green for pedestrians, when the lorry, which was moving at high speed, hooked him with its right side.

On 26 September 2008 the technical expert report was submitted to the investigating authorities. After a thorough analysis of the conflicting statements given by the work colleagues of the two parties, corroborated by the statement given by C.I., and with technical data such as the sequence of the traffic lights obtained from the traffic control authorities, the report established that on 26 February 2008 at around 6 p.m. F.M. was driving a small lorry with a trailer on the inside lane of the road next to the pavement. When the lorry reached the zebra crossing in question the traffic lights were green for cars and the victim, who was running towards the street, had tried to stop before stepping onto the road but had stumbled and bumped against the right side of the lorry’s trailer and was dragged underneath it. The expert mentioned that the speed of the truck could not be calculated mathematically because the brake marks had not been measured after the accident. However, from the distance to which the victim was thrown – 2.60 m – and the spot where the lorry stopped after the impact, it could be analytically inferred that the speed had been low. The report concluded that the driver had not breached any traffic rules and could not have avoided the accident.

On 14 November 2008 the applicant, represented by a lawyer, submitted objections to the technical expert report. He requested that the expert be required to determine precisely what the speed of the lorry had been, how the charge had been arranged in the open trailer, what had been the sequence of the traffic lights, whether the victim had been run over or hit by the lorry and whether the driver was guilty of causing the accident. On 27 November 2008 these requests were dismissed by the prosecutor in a reasoned decision since these aspects had already been clarified in the report.

The investigation was concluded on 27 November 2008 with the prosecutor’s decision not to pursue criminal charges against F.M. for the crime of unintentional killing because no guilt could be established. The prosecutor examined the conflicting statements given by the two sets of witnesses – the victim’s work colleagues and F.M.’s work colleagues – and balanced them against the statement of the independent witness C.I. as well as the findings of the technical expert report and concluded that F.M. had not breached any traffic rules and could not have avoided the accident.

The applicant challenged that decision but his complaint was rejected as ill-founded by the head prosecutor of the Prosecutor’s Office of the Timiş County Court on 29 December 2008.

The applicant challenged the prosecutors’ decisions before the Timişoara District Court. He averred that, considering the severity of the crime, it was necessary to at least charge F.M. with a crime and thus allow the opportunity for more thorough technical tests to be conducted, to further examine the discrepancies between the witness statements and to enable him to take part in the proceedings as an injured party.

On 22 April 2009 his complaint was allowed by the Timişoara District Court, which decided to send the case back to the prosecutor’s office to reopen the criminal proceedings in order to fully respond to the applicant’s allegations.

An appeal by the prosecutor on points of law (recurs) against the above judgment was allowed by the Timiş County Court on 23 November 2009. The County Court thoroughly examined the applicant’s complaints and the available evidence and considered that they had been fully and clearly answered by the investigation and that no additional expert reports or other investigative steps were necessary in the case. With respect to the applicant’s allegations that he could not take part in the proceedings, the court held that it had not been proved that the applicant’s procedural rights had been breached; for example, he had been able to propose witnesses.

On 9 April 2010 the applicant authorised the National Organisation for the Defence of Human Rights to request a reopening of the case before the Prosecutor’s Office of the High Court of Cassation and Justice. This request was forwarded to the courts for examination.

On 10 November 2010 the Timişoara District Court held that a reopening of the criminal proceedings in a case which had already been subject to the scrutiny of a court was only possible when new facts had been uncovered which had not been known to the investigating authorities at the relevant time. Since this was not the situation in the current case, the court declared the request inadmissible. An appeal by the applicant on points of law against that judgment was allowed on 5 January 2011 by the Timiş County Court. The court held that a request for reopening proceedings must first be examined and resolved by way of a reasoned decision by the prosecutor and only afterwards could it be brought before the courts.

The investigation was briefly re-opened following the above-mentioned court judgment. After new statements were taken from the applicant, F.M. and a new witness proposed by the applicant, on 16 November 2011 the prosecutor decided again not to pursue criminal charges in the case owing to a lack of negligence on the part of F.M. The new witness admitted that he had not in fact seen the accident but that the applicant had asked him to come and testify against F.M.

The applicant’s complaint against that decision was rejected with final effect by the Timişoara District Court on 11 June 2012. The court examined all investigative steps taken by the prosecutors in the case and decided that the applicant’s complaint was ill-founded.

The applicant was represented by a lawyer of his own choosing throughout the proceedings before the domestic courts.


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

Carlo Ranzoni;Ganna Yudkivska;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani

In a dispute between the applicant and the domestic pension authorities, on 18 February 2011 the Kryviy Rih Dovgyntsivskyy District Court ruled in his favour, ordering an increase of his pension based on the rise in the average wages in the country since his retirement. The court sat in camera.

On 3 November 2011 the first-instance court amended the judgment at the applicant’s request, indicating that it was enforceable immediately. In doing so, the court referred to the provision of the Code of Administrative Justice governing abridged procedure (see paragraph 11 below).

The defendant pension authority appealed to the Dnipropetrovsk Administrative Court of Appeal (“the Court of Appeal”).

On 23 November 2011 the first-instance court informed the applicant that an appeal had been lodged in his case. On 29 February 2012 he wrote to the Court of Appeal, requesting to be informed about the date of the hearing of his case. According to him, he received no response and no further information about the proceedings until 22 February 2013 when he received the Court of Appeal’s final decision, dated 26 June 2012, quashing the first-instance court’s judgment.

It can be seen from the material before the Court that the applicant’s domestic case file contains copies of the ruling of the Court of Appeal’s judge (date illegible) opening appeal proceedings in his case and a notification letter dated February 2012 from the court clerk informing him of the upcoming examination of his case in camera on 26 June 2012 and stating that the judge’s ruling and a copy of the appeal were enclosed with the letter. The Government alleged that the above documents had been sent to the applicant, while the applicant alleged that they had not. The file does not contain any postal documents or registers of sent correspondence showing that the above documents had been sent or delivered to the applicant.

On 26 June 2012 the Court of Appeal, in a final decision not amenable to appeal, quashed the first-instance court’s judgment, dismissing the applicant’s claim for a pension increase and holding that the domestic law did not require the pensions to be increased in case of rise in the average wages in the country following retirement. The court sat in camera.