The list of applicants is set out in the appended table. The Turkish Government (“the Government”) were represented by their Agent.

The applicants’ complaints under Article 5 § 3 of the Convention concerning the excessive length of pre-trial detention were communicated to the Government. In application no. 53351/11, the applicant also raised another complaint under the Article 5 § 5 of the Convention.

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

On various dates, the applicants were placed in pre-trial detentions on suspicion of having committed a crime. Subsequently, criminal proceedings were initiated against them. However, there is no further information in the case files about the outcome of the proceedings. The relevant details of the applications appear in the table below.


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

Krzysztof Wojtyczek;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in 1976 and is currently detained in Łódź Remand Centre.

On 25 September 2006 the Łódź District Court (Sąd Rejonowy) gave a decision, ordering the applicant’s detention on remand for a period of three months. He was charged with a number of offences committed in an armed organised criminal group. At that time the applicant was serving a prison sentence imposed in another criminal proceedings against him. The end of that prison sentence fell on 18 November 2007.

In its decision, the District Court relied on a reasonable suspicion that the applicant had committed the offences in question. The court further emphasised the gravity of the offences and the likelihood of a heavy prison sentence being imposed on the applicant after conviction. According to the domestic court, the fact that the applicant was at the relevant time serving a prison sentence did not minimise the risk of him obstructing the proceedings. Additionally, the ongoing questioning of other members of the criminal group as well as the necessity to obtain other evidence justified remanding the applicant in custody.

On 19 December 2006 and 26 June 2007 the Łódź Regional Court (Sąd Okręgowy) extended the applicant’s pre-trial detention. Subsequently, the Łódź Court of Appeal (Sąd Apelacyjny) extended the applicant’s detention on 19 September 2007, 19 December 2007, 28 March 2008, 18 June 2008, 22 October 2008 and on 23 December 2008.

In their detention decisions the courts repeatedly relied on a strong suspicion that the applicant had committed the offences in question and on the likelihood of a heavy prison sentence being imposed on him. The courts considered that keeping the applicant in detention on remand was necessary to secure the proper conduct of the proceedings. They emphasised the complex character of the case and the considerable number of co-accused involved who, if released, would had obstructed the proceedings. The courts noted that due to the nature of the organised criminal group, its methods of influencing and bringing pressure to bear on the other members of the group as well as witnesses, the authorities had had difficulties in collecting evidence and taking statements.

On 18 March 2009 the State Prosecutor (Prokurator Krajowy) lodged a bill of indictment against the applicant with the Łódź Regional Court. The applicant was charged with several counts of extortion and drug-trafficking committed in an organised and armed criminal group. The bill of indictment comprised 94 charges brought against 28 defendants. The prosecution authorities requested that 318 witnesses be heard before the court.

On 30 March 2009 the Łódź Court of Appeal extended the applicant’s detention on remand until 31 December 2009. Subsequently, the same court ordered prolongation of his detention on 21 December 2009 (detention extended until 30 September 2010), on 22 September 2010 (detention extended until 31 March 2011) and on 23 March 2011 (detention extended until 30 September 2011). The applicant lodged a number of motions to be released as well as appeals against the decisions extending his pre-trial detention, all in vain.

In their decisions the courts repeated the grounds previously given for the applicant’s detention.

Meanwhile, the court scheduled fifteen hearings for November and December 2009. Due to sick-leaves of the presiding judge and of some of the accused those hearings did not take place.

The trial was eventually opened on 18 January 2010. Subsequent scheduled hearings were adjourned due to absences of some of the coaccused and problems with sound system in the court room.

In May 2010 the Regional Court gave a severance order and decided to determine charges against two coaccused separately.

The bill of indictment was only finally read out to the defendants at the hearing held on 27 May 2010.

At the hearing of 28 May 2010 the Regional Court started taking evidence from the accused. It subsequently held fourteen hearings until the end of 2010, during which some of the accused gave evidence. Five of the scheduled hearings were adjourned due to sick-leaves of the accused. One hearing was adjourned because of the motion for disqualification of the presiding judge lodged by one of the co-accused.

In 2011 the Regional Court continued taking evidence from the defendants. Of the twenty nine hearings scheduled for this year, eleven took place. The trial court adjourned fifteen hearings due to justified absences of the parties, three hearings were cancelled due to sick-leaves of the presiding judge and the lay judges.

Meanwhile, on 17 August 2011 the Łódź Regional Court ordered that the applicant’s detention on remand be lifted on condition that he paid the bail in the sum of 20,000 Polish zlotys (PLN) within the period of two weeks from the date of the decision.

On the same date the applicant was released on bail and police supervision. He was also prohibited from leaving the country.

The Regional Court scheduled twenty hearings for 2012, of which six hearings were eventually held. At the hearing of 16 April 2012 the trial court started taking evidence from witnesses.

Of the fourteen hearings cancelled this year, two were adjourned because of a sick-leave of a judge, three because of absences of witnesses, and the remaining nine hearings – because of absences of the parties.

Until 30 July 2013 the Regional Court scheduled nine hearings for 2013, of which seven were adjourned due to justified absences of the defendants.

The criminal proceedings against the applicant are still pending at first instance.

On 27 April 2011 the applicant lodged a complaint with the Łódź Court of Appeal under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”). He sought a finding that the length of the criminal proceedings against him had been excessive and PLN 20,000 in compensation.

On 27 July 2011 the Łódź Court of Appeal dismissed the applicant’s complaint. The court found that, considering the complexity of the case and the number of co-accused who had actively tried to obstruct the proceedings, the Łódź Regional Court had conducted the proceedings in a correct and timely manner. Consequently, the appellate court refused to award the applicant compensation.


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

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Síofra O’Leary

The applicant was born in 1934 and lives in Strausberg. Before the reunification of Germany he lived in the former GDR, serving in the police force from 1952 to 1954.

On 13 June 1958, the Frankfurt (Oder) District Court convicted the applicant of “criminal assault against the local bodies of the State” (“verbrecherischer Angriff gegen die örtlichen Organe der Staatsmacht”) after he had attacked a member of the GDR parliament of the ruling Socialist Unity Party. He was sentenced to one year and eight months’ imprisonment and served 14 months in prison.

On 8 February 1994 the Frankfurt (Oder) Regional Court annulled the 1958 judgment for its incompatibility with the principles of the rule of law and rehabilitated the applicant pursuant to Section 1 § 1 of the Criminal Rehabilitation Act (Gesetz über die Rehabilitierung und Entschädigung von Opfern rechtsstaatswidriger Strafverfolgungsmaßnahmen im Beitrittsgebiet Strafrechtliches Rehabilitierungsgesetz) designed to rehabilitate and compensate prisoners of the GDR regime for deprivation of their liberty incompatible with the principles of the rule of law.

On 25 April 1994 the applicant lodged an application for compensation under the Criminal Rehabilitation Act. The application form contained instructions that, according to Section 16 § 2 of the Act (see Relevant domestic law and practice, paragraphs 23 and 24 below), such compensation could not be granted to a person who had offended against the principles of humanity and the rule of law. The applicant declared on the questionnaire that he had never acted in disregard of these principles and never worked for the former GDR’s Ministry of State Security (Ministerium für Staatssicherheit). On 13 February 1995 the President of the Frankfurt (Oder) Regional Court, acting as the competent authority, awarded him compensation of 8,250 German marks, equivalent to about 4,218 euros (EUR), pursuant to Section 17 in conjunction with Section 16 §§ 1 and 3 of the Criminal Rehabilitation Act.

On 7 August 2007, after an amendment of the Act, the applicant also applied for a special, incomerelated pension which benefits former victims of imprisonment (monatliche besondere Zuwendung für Haftopfer). He again confirmed that he had never offended against the principles of humanity and the rule of law and never worked for the former GDR’s Ministry of State Security. On 14 November 2007 he was granted a special monthly pension of EUR 250 pursuant to Section 17a of the Criminal Rehabilitation Act, with the reservation that information held by the Federal Commissioner for the Records of the State Security Service of the former GDR (“the Federal Commissioner”) must not contradict the applicant’s statements. A respective request for information was submitted on 19 November 2007.

On 25 February 2008 the Federal Commissioner informed the President of the Regional Court that the applicant, between 22 September 1953 and 25 November 1954, had been a secret informant of the Ministry of State Security while he was a member of the police force. This information was based on a number of documents, including 32 handwritten reports allegedly drafted by the applicant and a declaration to commit to serve as a secret informant to the state security service.

On 18 February 2009 the President of the Regional Court, relying on Section 48 §§ 1 and 2, third sentence, no. 2 of the Brandenburg Administrative Procedure Act (Verwaltungsverfahrensgesetz für das Land Brandenburg), withdrew the decisions granting compensation and a special pension and at the same time ordered the applicant to reimburse the amounts already received pursuant to Section 49a of the same Act. The President considered that the decisions had been unlawful from the beginning as the prerequisites for either entitlement had never been met and that the applicant could not legitimately rely on these decisions being maintained, as he had obtained them by giving information that was substantially incorrect. Referring to Section 16 § 2 of the Criminal Rehabilitation Act, he observed that the applicant, contrary to the statements in his applications, had worked as a secret informant for the Ministry of State Security and had produced at least five reports for the Ministry in which he put at real risk the persons on whom he had informed.

On 9 March 2009 the applicant applied for judicial review of that decision and asked to be heard in person. He claimed that the information contained in the documents of the Federal Commissioner was incomplete and not accurate. The fact that at the time of recruitment he was only 19 years old and had been severely traumatised when fleeing his home town in Silesia in 1945 and experiencing the bombing of Dresden on 13 February 1945, followed by several months of homelessness after the war had ended, also had to be taken into account. His father had returned, incapacitated for work, from Soviet captivity only in 1947 or 1948. While serving in the police forces he had not been aware of working for other government agencies. The written commitment to the state security service might have been dictated to him when he was under the influence of alcohol but he had no memory of it whatsoever. In any case, he ruled out that the wording was his own and that he had known that the reports were to be used by the state security service.

On 16 February 2010 the Frankfurt (Oder) Regional Court, sitting as a chamber of three judges, dismissed the applicant’s request for judicial review, finding that his work as a secret informant for the Ministry of State Security was of such nature, scope and duration that it was reprehensible enough to justify ruling out the applicant’s eligibility for compensation payments pursuant to Section 16 § 2 of the Criminal Rehabilitation Act. Acknowledging that in a dictatorship which lasted for decades, minor involvement with the regime was frequent, it considered that the applicant’s position as a secret informant of the state security service did not itself suffice to trigger the application of that provision. However, compensation provided under the Act was intended to benefit innocent victims only, but not those who had also participated in offences contrary to the principles of humanity and which were harmful to others or at least put them at risk. This could be assumed when a secret informant voluntarily reported on others and the reports could potentially cause persecution by the state security service. In that case compensation payments were ruled out, no matter how great the offender’s own suffering had been. The courts were not to compare the extent of suffering involved.

The Regional Court observed that the applicant had penned a handwritten commitment to serve the state security service after he had already reported twice on others. Thus the applicant’s submission that he had believed that he was reporting to police officers and not to the state security service was, in the light of that declaration, not credible (“nicht glaubhaft”). Furthermore, the five reports mentioned in the decision of the President of the Regional Court, as well as two more reports were capable of putting in danger the persons informed on. The applicant mainly reported on their contacts with West Germany and West Berlin. An intention to leave the former GDR without permission, in particular, could have led to severe criminal persecution of the persons involved. The reports were not meaningless but contained valuable information for the state security service. The applicant’s claim that some reports were unknown to him and factually incorrect and that he did not recognise the names of the superior officers was irrelevant to the Regional Court’s decision.

The Regional Court also pointed out that it was unnecessary to hear the applicant in person. His personality at the time and the circumstances of his recruitment would have been relevant only if there were indications that the applicant acted under insupportable pressure. However, there were no such indications and the applicant had made no claims in this regard. He had reported twice on others, even before being recruited by the state security service. Further, the court could not see a connection between the applicant’s experiences relating to the impact of war and the post-war period on him and his psychological strain at the time of recruitment on the one hand and his willingness to cooperate with the state security service on the other hand.

On 24 August 2010 the Brandenburg Court of Appeal dismissed the applicant’s appeal, endorsing the Regional Court’s reasons.

On 28 October 2010 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint without providing reasons (2 BvR 2329/10).


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)

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

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


CASE OF GRA STIFTUNG GEGEN RASSISMUS UND ANTISEMITISMUS v. SWITZERLAND

Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova

The applicant is a non-governmental organisation which promotes tolerance and condemns all types of racially motivated discrimination. It was established under Swiss law and registered in Zürich.

On 5 November 2009 the youth wing of the Swiss People’s Party (Junge Schweizerische Volkspartei) held a demonstration in the train station square in the town of Frauenfeld concerning a public initiative to support the prohibition of the building of minarets in Switzerland. After the event the party published a report on its website, including the following excerpts:

“In his speech in front of the Thurgau government building [Thurgauer Regierungsgebäude], B.K., the president of the local branch of the Young Swiss People’s Party [“the JSVP”], emphasised that it was time to stop the expansion of Islam. With this demonstration, the Young Swiss People’s Party wanted to take an extraordinary measure in an extraordinary time. The Swiss guiding culture (“schweizerische Leitkultur”), based on Christianity, cannot allow itself to be replaced by other cultures, B.K. added. A symbolic sign, such as the prohibition of minarets, would therefore be an expression of the preservation of one’s own identity.”

In response, the applicant posted an entry on its website in the section called “Chronology – Verbal racism”, entitled “Frauenfeld TG, 5 November 2009”, including the following extract:

“According to the report of the event, B.K., the president of the local branch of the Young Swiss People’s Party, emphasised that it was time to stop the expansion of Islam. He added further: ‘The Swiss guiding culture, based on Christianity, cannot allow itself to be replaced by other cultures. A symbolic sign, such as the prohibition of minarets, would therefore be an expression of the preservation of one’s own identity.’ Swiss People’s Party of Switzerland canton representative H.L. also spoke to the few people who attended; nevertheless, the Young Swiss People’s Party speaks of a great success. (Verbal racism)”

On 29 November 2009 the popular initiative against the construction of minarets was accepted in a referendum and a constitutional amendment banning the construction of new minarets was introduced.

On 21 August 2010 B.K. filed a claim for the protection of his personality rights with the Kreuzlingen District Court (Bezirksgericht Kreuzlingen). He applied, firstly, to have the applicant organisation withdraw the entry in question from its homepage and, secondly, for it to be replaced with the court’s judgment. The applicant organisation replied that the title of the Internet entry had to be considered as a value judgment, which could only lead to an infringement of personality rights if it entailed an unnecessarily hurtful and insulting attack on the person concerned.

On 15 March 2011 the Kreuzlingen District Court dismissed B.K.’s action. It held that the publication of the impugned article on the applicant’s website had been justified since it had related to a political discussion on a matter of public interest.

On appeal, on 17 November 2011 the Thurgau Cantonal High Court (Obergericht des Kantons Thurgau) reversed the first-instance judgment. It held that classifying B.K.’s speech as “verbally racist” had been a mixed value judgment, which could lead to an infringement of personality rights if it was based on untruths. The High Court concluded that B.K.’s speech itself had not been racist. It therefore ordered that the impugned article be removed from the applicant’s website and replaced with the court’s judgment.

On 25 January 2012 the applicant organisation filed an appeal with the Federal Supreme Court (Bundesgericht), reiterating its argument that any interference with B.K.’s personality rights had been justified. One of the applicant’s main aims was to fight racism and to inform the public about hidden and open racist behaviour. Its website stated that public comments would be documented, even if they did not fall within the scope of the prohibition of racial discrimination enshrined in Article 261bis of the Swiss Criminal Code. To fulfil its role of watchdog in that sense, it published articles and interviews concerning current events relating to racism and antiSemitism.

On 29 August 2012 the Federal Supreme Court dismissed the applicant organisation’s appeal, finding as follows (unofficial translation):

“3. The classification of and commenting on a person’s statements as ‘verbal racism’ violate that person’s honour. Not only in the context of the criminal offence of racial discrimination (Article 261bis of the Criminal Code) but more generally, the term in question is, in the eyes of the average reader, capable of deliberately debasing the person whose comments have been classified as ‘verbally racist’, accusing him or her of behaviour which is frowned upon by society in the form of an act which is, at the very least, questionable in constitutional terms (cf. BGE 127 III 481 E. 2b / aa p. 487, 129 III 49 E. 2.2 p. 51 and 715 E. 4.1 p. 722). The appellant referred to the respondent’s speech at the public demonstration of 5 November 2009 on its website ... freely accessible on the Internet, commenting on the term ‘verbal racism’. It thereby violated the respondent’s honour as part of his personality within the meaning of Article 28 § 1 of the Civil Code. The infringement is unlawful if it is not justified by the consent of the injured party, by an overriding private or public interest or by law (Article 28 § 2 ZGB).

The main point in dispute is whether the appellant can rely on an overriding interest in classifying the respondent’s comments as ‘verbal racism’.

4.1. The case-law on press statements, on which the appellant relies, distinguishes between statements of facts on the one hand and value judgments on the other, and can be summarised as follows: ...

4.2. The appellant assigned the respondent’s statements to the section entitled ‘verbal racism’ ... That was a mixed value judgment. It contains a substantive core and, at the same time, a value judgment. In order to justify the substantive core, it is necessary to examine whether the respondent’s comments were indeed racist.

4.3. The term ‘racism’ is understood as ‘a doctrine’ which states that ‘certain races or nations are superior to others in terms of their cultural capacity’, and, on the other hand, a ‘certain attitude, manner of thinking and acting towards people of (certain) other races or nations’ (cf. Duden, The Great Dictionary of the German Language in Six Volumes, Vol. 5, 1980, p. 2099). The adjective ‘verbal’ describes racism as ‘[occurring] with words, with the help of language’ (cf. Duden, The Great Dictionary of the German Language in Six Volumes, Vol. 6, 1981, p. 2730). Verbal racism is, therefore, no longer merely a certain attitude, but an attitude in the instant case which was expressed publicly through language (as opposed to, for example, through deeds). ‘Verbal racism’ could therefore mean racial discrimination in the criminal sense, as the respondent claims. What is decisive, however, as the second-instance court correctly stated, is that the mere demonstration of a difference between two individuals or groups does not constitute racism. Racism begins where the difference amounts simultaneously to denigration of the victims and where the highlighting of differences is ultimately only a means to represent the victims negatively and to show disregard for their dignity.

4.4. The statements that led the appellant to conclude that there had been ‘verbal racism’ are the core phrases ‘it is time to stop the spread of Islam ... The Swiss guiding culture (“schweizerische Leitkultur”), based on Christianity, cannot let itself be repressed by other cultures ... A symbolic sign, such as the prohibition of minarets, is therefore an expression of the preservation of one’s own identity’.

4.4.1. In his public speech, the respondent expressed his opinion on the prohibition of minarets, which, in the opinion of the High Court, would not be compatible with freedom of religion and non-discrimination. He has, in that connection, compared his own beliefs (‘Christianity’) with foreign beliefs (‘Islam’), delimited them (‘to halt’, ‘preserving one’s own identity’) and described his own as worthy of protection and defence (‘Swiss leading culture’, ‘not to be repressed’). For the average listener, that does not result in the blanket denigration of the followers of Islam or show fundamental contempt for Muslims.

4.4.2. On the whole, it cannot be said that the comments made by the respondent, as understood by the average listener, could be described as ‘verbally racist’. Therefore, the substantive core does not apply and the assessment is not acceptable. It shows the respondent in the wrong light. Therefore, the mixed value judgment, which infringed personality rights, cannot be justified by any overriding interest within the meaning of Article 28 § 2 of the Civil Code.

4.4.3. That assessment cannot be altered by the fact that in the general interest of informing the public, there is an increased degree of publicity and a reduced level of protection for personality rights for people who engage in a political debate, such as the respondent in the campaign for the minaret initiative (see BGE 105 II 161 E. 3b p. 165, 107 II 1 E. 3b p. 5). That special framework allows for the assessment of breaches of honour on a somewhat different scale, but it can neither justify the dissemination of untruths nor the publication of value judgments that do not appear to be justified with regard to the underlying facts.”


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

The applicant, J.S., is a British national, who was born in 1993 and lives in Belfast. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). He was represented before the Court by Mr F. Shiels of Madden & Finucane Solicitors, a firm of solicitors based in Belfast.

The United Kingdom Government (“the Government”) were represented by their Agent, Ms J. Neenan of the Foreign and Commonwealth Office.

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

In 2008 the applicant was a pupil at a high school in County Down (“the school”). On 28 August 2008 the Public Prosecution Service for Northern Ireland (“the PPS”) received a police investigation file which alleged that the applicant had assaulted a teacher at the school.

In September and October 2008 teachers at the school refused to teach the applicant because of the alleged assault. On 13 October 2008 the teachers went on strike. In order for the strike to be resolved, the applicant voluntarily excluded himself from school and was provided with alternative educational assistance.

The strike nonetheless generated a great deal of publicity. Two articles appeared in the News Letter (one of Northern Ireland’s main daily newspapers) on 21 October 2008.

The first article carried the headline “Details of school ‘assault’ revealed” and continued:

“Details of the alleged attack which sparked the teachers’ strike at [the school] have been released exclusively to the News Letter ... An incident report filed with [the school’s] management by the teacher who was allegedly attacked has been obtained by the News Letter. The staff member, who wishes to remain anonymous while negotiations continue, claimed he was shoved through the doorway of his class after being screamed and cursed at by the boy ... The pupil is understood to have suffered two family bereavements, including the death of his brother, before the alleged attack. Internal documents show school bosses had branded the boy ‘high risk’, with emotional and anger management issues. Reports also reveal management had warned staff to move at least 3 ft away from the pupil when he was in a confrontational mood. The boy was involved in a serious fight with another [school] pupil earlier this year after he was taunted about family members. He was being taught in the school’s special needs Pupil Support Centre just before the strike. The teachers have asked for the pupil to be removed from school or taught in isolation – but education authorities have refused.”

The second article, published under the headline “Pupil involved in 10 detentions” stated:

“The pupil at the centre of the strike row was involved in up to 10 detentions in the past year, behaviour records obtained by the News Letter show.

The punishments were given between September 2007 and February this year for incidents from aggression directed towards teachers and other pupils to disruptive behaviour and leaving school without permission.

He was also involved in a serious fight with another pupil after he was teased about his family, confidential files say.

Union officials have insisted the pupil has problems that make him a candidate for special needs teaching.

The pupil’s monitoring diary from his time in the segregated pupil support centre shows he was making improvements.”

A similar article had appeared in the Belfast Telegraph (another daily newspaper published in Belfast) on 20 October 2008 under the headline “Details of strike school incident revealed”. This article also contained details from the monitoring diary, including the applicant’s marks for behaviour and comments made by teachers.

During the strike, the media made enquiries of the police, the PPS and the Northern Ireland Office (“the NIO”) as to what action had been taken in respect of the alleged assault at the school. The PPS, through a NIO press release, informed the media that a youth had been reported to the PPS by the Police Service of Northern Ireland (“the PSNI”), that a decision had been issued and that there would be a first appearance on summons in November on a charge of assault. In response to further queries, the PPS informed the media that the youth’s court appearance would take place on 4 November 2008.

The press release did not disclose the applicant’s name, age or school. However, subsequent media reports connected the youth in the press release to the previous stories about the strike at the school. Although the applicant’s name was not published, his age, the name of his school and the date of his hearing before the Youth Court were disclosed in these reports.

The applicant’s solicitors wrote to the PPS asking it to explain its decision to issue the press release. They also invited the PPS to withdraw the summons and reissue it without informing the media that a new court date had been set.

In the absence of a reply from the PPS, the applicant issued judicial review proceedings in which he contended that the information it had disclosed to the NIO and the press constituted an unjustified interference with his rights under Article 8 of the Convention (see section 3 below).

On 4 November 2008, in order to have the media excluded from the trial, the applicant applied to the Youth Court for the case to be adjourned to a date not to be announced in open court. The application was refused by the District Judge, who instead adjourned the hearing to 2 December 2008 and ordered that only three reporters could attend it. Pursuant to Article 22 of the Criminal Justice (Children) (Northern Ireland) Order 1998 (“the 1998 Order”) the District Judge also ordered that “no details pertaining to the identification of the applicant be published or released to the media”.

The applicant renewed his application in writing. On 2 December 2008 the District Judge decided that the case should not be adjourned to an undisclosed date but indicated that the court would hear argument as to the exclusion of the press. Those arguments were heard on 20 January 2009. The Belfast Telegraph was represented and opposed the applicant’s application for exclusion; the PPS made no representations.

After hearing the parties’ arguments, the District Judge refused the application on the ground that, due to the extent of the publicity in the case, much of it from the perspective of the teacher alleged to have been assaulted, the applicant would be disadvantaged by a media ban because it would mean his version of events would not be aired.

The applicant sought judicial review of the District Judge’s decision, relying on Articles 6 and 8 of the Convention and Article 40(2)(b)(vii) of the United Nations Convention on the Rights of the Child (see Relevant law and practice below).

The applications for permission to apply for judicial review against the PPS (see paragraph 13 above) and against the District Judge’s decision (see paragraph 17 above) were heard together by the High Court, sitting as a Divisional Court. However, on 26 June 2009 the applications were dismissed.

The Divisional Court accepted that Article 8 was engaged as the applicant had a reasonable expectation of privacy due first, to the statutory scheme in place under the 1998 Order; and secondly, to the personal intrusion which had arisen from the extensive nature of the media reporting of the case. In reaching this conclusion, the Divisional Court did not consider the applicant’s complaints individually but instead had general regard to the intrusive nature of the media reports taken as a whole.

Having found that Article 8 was engaged, the Divisional Court went on to consider whether the PPS had been justified in the disclosures it made and whether the Youth Court had been justified in allowing three members of the press into the hearing. In respect of the PPS disclosures, the Divisional Court found that it was the responsibility of the media not to publish anything that disclosed the name, address or school of a child covered by the 1998 Order and the PPS had not been under any obligation to warn the media of its responsibilities.

With regard to the attendance of the press at the hearing, the Divisional Court found that the public interest in securing open justice had outweighed the interest of the applicant in preventing reporting of the case. It added that, in the course of the Youth Court hearing, personal material relating to the applicant might be disclosed in which there was little or no public interest. However, the Divisional Court considered that the Youth Court would make appropriate orders preventing publication of such information.

On 1 July 2009 the Divisional Court refused to certify a point of law of general public importance which ought to be considered by the House of Lords.

The applicant’s trial began on 26 July 2009. The applicant gave evidence in his defence and was acquitted. The Youth Court found that he had been unlawfully detained by the teacher concerned and that the force used by the applicant on the teacher had been reasonable and proportionate.

Before the trial, the applicant’s solicitors had complained to the police about the conduct of the media and alleged that the school had breached its obligations under the Data Protection Act 1998 in releasing personal information about him to the media. The police advised the applicant’s solicitor that the complaint about the release of personal information to the media would be forwarded to Information Commissioner as that aspect of the complaint was not a matter which they could investigate. The police took a statement from the applicant on 25 February 2010.

On 7 October 2010 the PSNI wrote to the applicant’s solicitor to confirm that a report has been submitted to the PPS and its advice and direction were awaited. On 12 November 2010 the PSNI notified the applicant’s solicitor that the PPS had advised that the offence in question was a summary only offence and, as such, had become statute barred six months after the date it was committed. No prosecution could therefore be brought.

The PSNI did not forward the applicant’s complaint to the Information Commissioner and the applicant therefore complained directly to the Commissioner on 16 November 2010. The outcome of this complaint is unknown.

In addition, by letter dated 22 February 2011 the applicant complained to the school about the release of confidential information to the media. The school replied on 14 March 2011, indicating that it had not released any personal or confidential information to the media, except where authorised by the applicant to do so.

Article 22 of the above Order provides as follows:

“Restrictions on reporting proceedings

(1) Where a child is concerned in any criminal proceedings (other than proceedings to which paragraph (2) applies) the court may direct that -

(a) no report shall be published which reveals the name, address or school of the child or includes any particulars likely to lead to the identification of the child; and

(b) no picture shall be published as being or including a picture of the child,

except in so far (if at all) as may be permitted by the direction of the court.

(2) Where a child is concerned in any proceedings in a youth court or on appeal from a youth court (including proceedings by way of case stated) -

(b) no picture shall be published as being or including a picture of any child so concerned,

except where the court or the Secretary of State, if satisfied that it is in the interests of justice to do so, makes an order dispensing with these prohibitions to such extent as may be specified in the order.

(4) A court shall not exercise its power under paragraph (3) without -

(a) affording the parties to the proceedings an opportunity to make representations; and

(b) taking into account any representations which are duly made.

(5) If a report or picture is published in contravention of a direction under paragraph (1) or of paragraph (2), the following persons -

(a) in the case of publication of a written report or a picture as part of a newspaper, any proprietor, editor or publisher of the newspaper;

(b) in the case of the inclusion of a report or picture in a programme service, any body corporate which provides the service and any person having functions in relation to the programme corresponding to those of an editor of a newspaper,

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale...

(6) For the purposes of this Article a child is ‘concerned’ in any proceedings whether as being the person by or against or in respect of whom the proceedings are taken or as being a witness in the proceedings.

(7) In this Article -

‘publish’ includes -

... (b) cause to be published...”

The relevant Data Protection principles are set out in section 4 of the Act:

“4 The data protection principles

(4) Subject to section 27(1), it shall be the duty of a data controller to comply with the data protection principles in relation to all personal data with respect to which he is the data controller.”

and in paragraphs 1 and 2 of Schedule 1 of the Act:

“1. Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless —

(a) at least one of the conditions in Schedule 2 is met, and

(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.

Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.”

Schedule 3 provides that in the case of sensitive personal data, the processing must be necessary for the purposes of exercising or performing any right or obligation which is conferred or imposed by law on the data controller in connection with employment. Pursuant to section 2, “sensitive personal data” includes information as to “any proceedings for any offence committed or alleged to have been committed by [the data subject], the disposal of such proceedings or the sentence of any court in such proceedings”.

Section 13 of the Act provides for the award of compensation for damage caused by a contravention of the Act:

“13 Compensation for failure to comply with certain requirements

(1) An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage.

(2) An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if—

(a) the individual also suffers damage by reason of the contravention, or

(b) the contravention relates to the processing of personal data for the special purposes.

(3) In proceedings brought against a person by virtue of this section it is a defence to prove that he had taken such care as in all the circumstances was reasonably required to comply with the requirement concerned.”

Moreover, one of the roles of the Information Commissioner’s office is to uphold information rights in the public interest. The Commissioner can rule on eligible complaints and take appropriate action when the law is broken. In particular, section 40 of the Act permits the Information Commissioner to issue an enforcement notice where a data controller has contravened the Act:

“40 Enforcement notices

(1) If the Commissioner is satisfied that a data controller has contravened or is contravening any of the data protection principles, the Commissioner may serve him with a notice (in this Act referred to as “an enforcement notice”) requiring him, for complying with the principle or principles in question, to do either or both of the following —

(a) to take within such time as may be specified in the notice, or to refrain from taking after such time as may be so specified, such steps as are so specified, or

(b) to refrain from processing any personal data, or any personal data of a description specified in the notice, or to refrain from processing them for a purpose so specified or in a manner so specified, after such time as may be so specified.”

Section 7(1) of the Human Rights Act 1998 provides that

“A person who claims that a public authority has acted (or proposed to act) in a way which is made unlawful by section 6(1) may

(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b) rely on the Convention right or rights concerned in any legal proceedings,

but only if he is (or would be) a victim of the unlawful act.”

Article 40 of the United Nations Convention on the Rights of the Child provides:

“1. States Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the reintegration and the child’s assuming a constructive role in society.

To this end ... the States Parties shall, in particular, ensure that:

(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:

(vii.) To have his or her privacy fully respected at all stages of the proceedings.”


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home;Respect for private life);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant was born in 1958 and lives in Riga.

In May 2004 an official representing the Ministry of Health informed the State police authorities in writing that a private person – the applicant – was selling unlicensed pharmaceutical products via the internet. The products were advertised as medicines for the treatment of HIV, hepatitis C and cancer.

The official mentioned that the Department for the Combat of Organised Crime (Organizētās noziedzības apkarošanas pārvalde) had established the applicant’s address, but that it had declined to launch an investigation on the grounds that a sample of the product sold by the applicant did not contain narcotic or other dangerous substances. Other departments of the State police had similarly refused to investigate the case.

An undercover investigation was carried out and on 11 June 2004 police officers responsible for investigating economic crime made a test purchase. They contacted the applicant via the email address indicated on the website that was advertising the pharmaceuticals products, and met him at a pizzeria near his home. After having bought a pack of ten bottles of one of the products for 50 Latvian lati (LVL) (about 70 euros (EUR)), the police officers informed the applicant about the test purchase which had been carried out.

A record of the operation (pārbaudes akts), dated 11 June 2004 and signed by four police officers and the applicant, stated, inter alia:

“given that company Baltijas elektronikas izstrādes has been registered at [the applicant’s] address, and that the applicant himself lives at that address, [the applicant] voluntarily agreed that the apartment be subjected to an inspection (apskate) and to show the tools used to fabricate the medicaments.”

Immediately after the test purchase, the same police officers carried out an inspection at the applicant’s apartment. Later, four police officers from the organised crime department, an expert and officers from the police press centre arrived.

During the inspection, the applicant explained that he was director of the company “Baltijas elektronikas izstrādes” and that the company was not connected with the production of medicines. He had been producing alleged medicines at home since the beginning of 2004, when several pharmaceutical companies in Latvia had refused to cooperate with him in the production of medical products for the treatment of HIV and hepatitis C. He alleged that he had sold about fifty packs of the alleged medicines. He admitted to being aware that the sale of medicines required a licence, but claimed that he did not have the means to obtain such a patent.

As a result of the inspection, which lasted five hours, a computer, a computer hard drive and items used in the production of the medicines (chemical substances, spare bottles and labels) were seized from the applicant’s apartment. The inspection was video-recorded and photographs were taken; the seized items were packed and sealed. The inspection record of 11 June 2014 listed everything which the police officers had observed during the inspection at the applicant’s three-room apartment, including the composition of the apartment, and detailed content of shelves and boxes, and of the fridge.

The above inspection record was written on a standard form with a pre-typed text according to which the inspection had been carried out under Articles 179-183 of the Code of Criminal Procedure.

A subsequent forensic examination concluded that there were no signs of narcotic or psychotropic substances in the seized items. The expert report concluded that the computer contained a massive volume of information, including on the production and distribution of the alleged medicines, as well as email correspondence, including communication with potential clients.

As a result, the police authorities instituted two sets of administrative offence proceedings under the Code of Administrative Offences on unlicensed business operations (see paragraphs 27-35 below) and on the sale of unlicensed pharmaceutical products (see paragraph 36 below). The first set of proceedings was remitted for examination by the State Revenue Service (Valsts ieņēmumu dienests – “the VID”), whereas the latter was remitted to the State Pharmacy Inspectorate (Valsts farmācijas inspekcija).

In June and July 2004 the applicant submitted various complaints to the State police authorities concerning the events of 11 June 2004. An internal inquiry by the Internal Security Office of the State Police (Valsts policijas Iekšējās drošības birojs) was completed on 26 July 2004. It concluded that there had been no violations of law in the conduct of the police officers who had carried out the test purchase and the subsequent inspection of the applicant’s apartment.

In addition, the Internal Security Office of the State Police refused to initiate criminal proceedings following a complaint lodged by the applicant about the theft by the police officers of weights from his apartment on 11 June 2004 (decision adopted on 25 November 2004), the alleged unauthorised conduct of investigative activities and false testimonies given by one of the police officers present during the inspection (decision adopted on 30 December 2009).

Contrary to what was indicated in the decisions adopted by the Internal Security Office of the State Police, the applicant did not appeal against those decisions to a higher official within the State police hierarchy. Instead, he submitted a new complaint to the Office of the Prosecutor General. The complaint was dismissed by a final decision of 29 December 2009 (see paragraph 25 below).

On 30 May 2005, following the internal inquiry, the Pre-trial Investigation Department of the State Police (Valsts policijas Galvenās Kriminālpolicijas pārvaldes Pirmstiesas izmeklēšanas pārvade) dismissed the allegations that the police officers had carried out a search of the applicant’s apartment on 11 June 2004. They concluded that the police officers had verified the facts about the alleged sale of pharmaceutical products. After the test purchase and with the permission of the applicant, they had inspected the legal address of the company “Baltijas elektronikas izstrādes” and had taken items in accordance with section 12(1)(23) of the Law on the Police, which authorised the examination of premises of legal entities (see Relevant domestic law section).

The decision further stated that on arriving at the address of the company registered at the applicant’s apartment, the police officers had had no intention of drawing up an administrative offence record. The latter had been drawn up only after the examination of all the evidence seized during the inspection. According to the decision, the police officers had not carried out a search because all the seized items were easily visible and accessible. Therefore the Code of Criminal Procedure could not have been violated.

The decision also stated that the applicant himself had not taken back the computer. The applicant did not appeal against the decision.

On various occasions the applicant complained to various branches of the Office of the Prosecutor, alleging that the “search” of his apartment on 11 June 2004 had been unlawful. He also requested that the seized items be returned to him.

According to information submitted by the Office of the Prosecutor General, between December 2004 and March 2012 the applicant complained to the Office of the Prosecutor General on sixty-two occasions in relation to the events of 11 June 2004, out of which the Office examined forty eight complaints. It appears that most of the complaints were related to various aspects of the administrative offence or criminal proceedings (see paragraphs 29-30 below).

On 17 November 2004 a prosecutor in charge of investigating financial end economic crimes replied to the applicant that the inspection of the applicant’s apartment, which was also the registered address of company “Baltijas elektronikas izstrādes”, had been carried out “in accordance with the law”, and that the items from the apartment had been seized, recorded and filmed in accordance with the provisions of the Code of Criminal Procedure. The prosecutor’s reply was amenable to appeal to a higher prosecutor.

On 13 January 2005 the applicant complained to the Office of the Prosecutor General that, inter alia, items from his apartment had been seized “without judicial authorisation”.

On 5 April 2005 the applicant was offered to receive back a computer hard drive seized in 2004. The computer was added to the materials of the criminal case.

On 27 April 2005 a supervising prosecutor ordered an internal inquiry into the conduct of the police officers at the applicant’s apartment and the seizure of items there on 11 June 2004. The prosecutor noted that the police had had no legal grounds on which to carry out an inspection of the applicant’s apartment, in that the Code of Administrative Offences did not provide for such a measure. The prosecutor also noted that the police officers had breached various procedural rules, notably Articles 168-178, 179 and 180 of the Code of Criminal Procedure.

On 25 August 2009 a prosecutor from the Office of the Prosecutor General dismissed the applicant’s request to institute criminal proceedings in respect of the conduct of the police officers. The decision stated that the police officers had carried out the investigative measure – an inspection of the applicant’s apartment – on the basis of Articles 179 and 183 of the Code of Criminal Procedure. Having concluded that there were no grounds to institute criminal proceedings, the police officers drew up an administrative offence record. The Prosecutor General’s Office recognised that the police officers should have remitted the administrative offence files to the court for adjudication, rather than to the VID. However, that omission had later been rectified by a supervising prosecutor (see paragraph 29 below). The decision stated that in any event, the statutory deadline for instituting disciplinary proceedings against the police officers had expired.

By a final decision of 29 December 2009 a supervising prosecutor from the Office of the Prosecutor General upheld the decision not to initiate criminal proceedings with regard to the conduct of the police officers on 11 June 2004. The decision stated that the police officers had conducted an inspection and seizure at the applicant’s apartment pursuant to sections 10(1)(6), 12(1)(4) and 12(1)(24) of the Law on the Police.

Meanwhile, in August 2009 and again in August 2010 the applicant claimed compensation for non-pecuniary damage from the Office of the Prosecutor General on the basis of the alleged unlawful activities of police officers on 11 June 2004. On 15 September 2009 the claim was dismissed and the applicant was informed that it was open to him to institute civil damages proceedings. On 29 October 2010 the same prosecutor dismissed the applicant’s claim for damages with respect to the seized items. The applicant appears to have appealed against that decision to the administrative courts. The Court has no further information on the outcome of the proceedings.

On 20 September 2004 the VID held the applicant liable for committing the administrative offence of unlicensed business activities – manufacturing of pharmaceutical products. He was fined LVL 200 (about EUR 300) and the items he had used in manufacturing the pharmaceutical products were confiscated. On 11 August 2004 the items were destroyed.

The applicant appealed against the decision to the administrative courts and to the Office of the Prosecutor.

On 7 October 2004 the Office of the Prosecutor of Financial and Economic Offences established that the impugned actions of the applicant had amounted to a criminal offence under section 207 of the Criminal Law, and therefore instituted criminal proceedings. On the basis of the prosecutor’s instruction, on 11 October 2004 the VID revoked their decision to hold the applicant liable for an administrative offence.

Following the pre-trial investigation in the criminal case, in which the applicant was questioned as a witness, on 26 June 2006 the criminal proceedings were terminated owing to lack of evidence that a criminal offence had been committed, and the materials, including the items seized from the applicant’s apartment, were remitted to the VID for the initiation of administrative offence proceedings.

Subsequently, on 21 July 2006 the VID adopted in substance an identical decision to that adopted after the first attempt to institute administrative offence proceedings (see paragraph 27 above).

The applicant appealed against the decision to the VID and later to the administrative courts, seeking revocation of the allegedly unlawful decision. Among other things, the applicant complained that an unlawful search and seizure had been carried out at his home on 11 June 2004. He claimed compensation for non-pecuniary damage in the amount of LVL 5,000 (about EUR 7,140), and later increased the claim to more than a million lati.

On 11 December 2008 the District Administrative Court dismissed the appeal. It noted that, within the powers vested in the State police under section 18(2) of the Law on the Police, in June 2004 police officers had inspected the applicant’s apartment in the course of criminal proceedings. Therefore the activities carried out prior to the institution of the administrative offence proceedings fell outside the administrative courts’ competence. The court nevertheless analysed the information concerning the alleged unlawful conduct of the police officers and concluded that there were no grounds to question the legality of the police officers’ conduct.

The applicant submitted a further appeal in which he argued, inter alia, that the evidence had been obtained unlawfully and therefore it could not be admitted in the administrative offence proceedings.

On 15 April 2010, by a final decision, the Regional Administrative Court upheld the VID’s decision. At the same time it varied the lower court’s finding that the police officers had carried out the contested measure as part of criminal proceedings. The appellate court relied on the outcome of the police internal inquiry into the lawfulness of the police officers entering the applicant’s apartment and seizing evidence. The court noted that the police officers had acted pursuant to section 12(1)(23) of the Law on the Police (see paragraph 40 below), which vested police officers with powers to inspect company premises, and section 10(1)(6) and (7), which provided that police officers had a duty to prevent and terminate administrative offences (see paragraph 37 below). As a consequence, the appellate court did not find that any of the evidence had been obtained unlawfully.

On the merits, the Regional Administrative Court established that the applicant had carried out an unlicensed business activity, i.e. the manufacturing of pharmaceutical products, with an aim of receiving income. The court came to this conclusion by analysing the applicant’s activities, such as him setting up a web site, communication with potential clients via emails and setting a price. Accordingly, it was concluded that the applicant was rightly fined. It was also noted that the fine was the lowest possible for an individual person.

On 15 September 2004 the State Pharmacy Inspectorate fined the applicant under Article 46¹, second paragraph, of the Administrative Offences Code in the amount of LVL 500 (about EUR 700) for selling unauthorised pharmaceutical products (see paragraph 51 below). The decision was upheld at three levels of the administrative jurisdiction and came into force in June 2009.


Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Uzbekistan);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-1-f - Expulsion);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)

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

The applicant was born in 1971. Prior to his arrest he was residing in the Moscow Region.

On an unspecified date in 1999 the applicant arrived in Russia and settled in Moscow. Between 1 and 18 November 2009 he travelled to Uzbekistan (see paragraphs 43-44 below). It appears from the domestic judgment of 18 September 2013 (see paragraph 39 below) that he was registered with the local migration authorities from 20 November 2009 to 18 February 2010.

On 3 March 2010 the National Security Department of the Samarkand Region of Uzbekistan brought criminal proceedings against the applicant on suspicion of his alleged membership between 1990 and 1998 of Hizb utTahrir (“HT”), a transnational Islamic organisation, banned in Russia, Germany and some Central Asian republics, and making public calls to overthrow the constitutional order of Uzbekistan and to establish an Islamic state in its place.

On 6 April 2010 the applicant was charged in absentia in Uzbekistan with attempting to overthrow the Uzbek State’s constitutional order (Article 159 § 3 (b) of the Criminal Code of the Republic of Uzbekistan); storage and disseminating of documents containing ideas of religious extremism, separatism and fundamentalism, and threats to national security and public order (Article 244-1 § 3 (a) of the Code); and participation in and direction of religious, extremist, separatist and other prohibited organisations (Article 244-2 § 1 of the Code). The statement of charges indicated that between 1990 and 1998 the applicant, as a member of HT, had regularly held unlawful religious gatherings with three other persons at which they had made “public calls to overthrow the existing constitutional order” in their home country and “made use of materials containing ideas of religious extremism”. The applicant had shown a video-recording of an address by Yu., the leader of the religious extremist “Islamic Movement of Uzbekistan”. Furthermore, since 1990 the applicant had systematically participated in religious studies and physical training sessions of a “shahid belt community”, as well as meetings organised by R. at which public calls for the replacement of the Uzbek Government by an Islamic state in the form of a recreated Caliphate had been made.

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

On 17 April 2013 the applicant was arrested by the police in Moscow as a person wanted by the Uzbek authorities. On the same date the National Security Department of the Samarkand Region of Uzbekistan confirmed their intention to request the applicant’s extradition and requested that he be remanded in custody.

When interviewed by the police on the same date after his arrest, the applicant stated that he had moved to Russia in 1999 to look for work. He had not registered as a foreign national temporarily residing in the country and had not applied for refugee status in Russia. He was unaware of the reasons for his criminal prosecution in Uzbekistan and had not been persecuted on political grounds in his home country. His wife and four minor children lived with him in the Moscow Region.

On 13 May 2013 the Deputy Prosecutor General of the Republic of Uzbekistan submitted a formal request for the applicant’s extradition. The request contained assurances that the applicant would be prosecuted only for the offences for which he was being extradited, that he would be able to freely leave Uzbekistan once he had stood trial and served any sentence, and that he would not be expelled or extradited to a third State without the consent of the Russian authorities. The Uzbek prosecutor’s office further assured its Russian counterpart that the applicant would not be prosecuted in Uzbekistan on political or religious grounds, or subjected to torture or other inhuman or degrading treatment, that he would be provided with an opportunity to defend himself, inter alia, through legal assistance, that the criminal proceedings against him would be conducted in compliance with the domestic law of the Republic of Uzbekistan, and that he would receive any medical treatment required.

On 1 July 2013 the applicant’s representative filed objections against the extradition request. She argued that according to independent international observers, illtreatment was widespread in the Uzbek prison system and fair-trial guarantees were not respected. Referring to the Court’s caselaw on the matter (Yakubov v. Russia, no. 7265/10, 8 November 2011; Rustamov v. Russia, no. 11209/10, 3 July 2012; and Zokhidov v. Russia, no. 67286/10, 5 February 2013), as well as to the reports by UN bodies and NGOs cited in paragraphs 64, 65, 67, 68, 70 and 71 below, she submitted that the applicant, who had been charged with religious and political offences, including membership of HT, would run an increased risk of illtreatment and would be deprived of the minimum fair-trial guarantees if extradited to the requesting country. The applicant’s representative also referred to a report of 2009 by the CIS Department of the Ministry of Foreign Affairs of the Russian Federation in which the department, referring to various international NGO reports, pointed out that criminal proceedings in Uzbekistan depended to a considerable extent on self-incriminating statements. She further referred to a letter of 2011 from the same CIS Department, which stated that any extradition to Uzbekistan would be in breach of Article 3 of the Convention from the point of view of the European Court.

According to a letter from the prosecutor’s office of 30 July 2013 (see paragraph 19 below), on 24 July 2013 the Prosecutor General’s Office refused to order the applicant’s extradition, since his criminal prosecution had become time-barred. According to the applicant, neither he nor his representatives had been informed about the refusal at that point. The parties have not submitted a copy of the relevant decision.

On 19 April 2013 the Kuntsevskiy District Court of Moscow ordered the applicant’s detention pending extradition until 17 May 2013. The decision was not appealed against.

On 16 May 2013 the Kuntsevskiy District Court of Moscow ordered an extension of the applicant’s detention until 17 October 2013 in order to ensure his extradition.

On 29 May 2013 the Moscow City Court upheld the decision on appeal.

By a letter of 30 July 2013 the head of the extradition department of the Prosecutor General’s Office informed the Kuntsevskiy InterDistrict prosecutor of Moscow that on 24 July 2013 the Prosecutor General’s Office had refused to order the applicant’s extradition to Uzbekistan since his criminal prosecution had become time-barred, and requested that the applicant be immediately released from custody. The letter continued as follows:

“At the same time, [I] ask you to check the lawfulness of Mr Rakhimov’s residence in Russia and his compliance with the immigration laws.

[I] ask you to send a copy of the release order, as well as information about the results of the check, to the extradition department of the city prosecutor’s office no later than 31 July 2013 by fax and mail.”

A hand-written note on the letter, apparently made by the addressee, indicated that it would be necessary “to conduct a migration check under Article 18 § 8 [of the Code of Administrative Offences] if there are grounds [for it]”.

By a decision of 30 July 2013 the Kuntsevskiy InterDistrict prosecutor’s office ordered the applicant’s release from detention, because on 24 July 2013 the extradition proceedings had been discontinued. At 6.45 p.m. on that date the applicant was released from a remand centre in Moscow.

According to the applicant, at 6.45 p.m. on 30 July 2013 he was apprehended by the police at the exit of the remand centre, immediately after his release from detention, and taken into custody.

According to the administrative offence record (see paragraph 25 below), the applicant was arrested at 8.10 p.m. by an officer of the Department of the Interior of the Mozhaiskiy District of Moscow in connection with a violation of the immigration laws (Article 18-8 of the Code of Administrative Offences (“the CAO”)).

At 8.10 p.m. on 30 July 2013 an officer of the Mozhaiskiy District Department of the Interior recorded that the applicant had been arrested “for the purpose of drawing up an administrative record”. In the part of the record reserved for comments the applicant wrote that he objected to the arrest and that he could not be removed to Uzbekistan since he ran a risk of torture there. Furthermore, proceedings were pending in respect of his refugee status.

At some point on the same date an administrative-offence record was drawn up on account of the applicant’s failure to leave Russia after 12 July 2011. The applicant, in a hand-written comment made in the relevant part of the record, conceded that he had breached the migration laws but claimed that he could not be removed to Uzbekistan because he would be tortured in his home country.

On the same date the case file was forwarded to the Kuntsevskiy District Court of Moscow. By a separate petition the head of the Mozhaiskiy District Department of the Interior requested the court to order the applicant’s detention pending administrative removal, since he had been residing in Russia unlawfully and in breach of the immigration laws and had been avoiding leaving Russia; accordingly there were grounds to believe that he would continue to breach the immigration laws.

On 31 July 2013 the Kuntsevskiy District Court of Moscow examined the applicant’s case.

During the hearing the defence acknowledged that the applicant had failed to register with the migration authorities or leave Russia, contrary to the requirements of the immigration laws. However, they submitted that, in accordance with Article 28.1 of the CAO, administrative proceedings should have been brought against him as soon as sufficient data indicating the occurrence of an administrative offence had been obtained. When the applicant had been arrested on 17 April 2013, the authorities had already been in possession of sufficient information on the applicant’s immigration status. However, administrative proceedings had not been brought against him until three months and two weeks later, once the term of his detention pending extradition had expired. In those circumstances, the defence considered that the administrative removal of the applicant, if ordered, would amount to a form of extradition in disguise.

The defence further submitted that in any event the applicant’s expulsion could not be ordered, since proceedings were pending in respect of his refugee status. They pointed out in this connection that the applicant’s request for refugee status had been accepted for examination (see paragraph 40 below), and that he had received no response by the time of the events.

Lastly, the defence made a detailed argument to the effect that the applicant was wanted by the Uzbek authorities in connection with charges relating to religious offences, and would therefore run a risk of illtreatment if expelled to Uzbekistan. They referred to reports by the UN and international nongovernmental organisations (cited in paragraphs 64, 6768 and 72-73 below), as well as the Court’s case-law in support of that position.

The Kuntsevskiy District Court found the applicant guilty of the administrative offence of breaching the immigration regulations (Article 18 § 8 of the CAO). The court considered that the administrative-offence record had been compiled by a competent officer and in accordance with the domestic law. It rejected as irrelevant the applicant’s arguments to the effect that the authorities had been aware of the impugned breach of the immigration laws as early as 17 April 2013, arguing that on that date the applicant had been arrested on different grounds. The court took note of the applicant’s submissions concerning his request for refugee status and dismissed them as having no bearing on the administrative offence under examination. The lack of information on the progress of the proceedings in respect of refugee status did not preclude the court from applying an administrative sanction under Article 18 § 8 of the CAO.

When deciding on the sanction to be applied, the court took note of “the information on the applicant’s personality”, as well as of the fact that he had admitted breaching the immigration laws. On the other hand, it observed that the applicant had been unlawfully residing in Russia for a considerable period of time and that he did not have a permanent residence or job in Russia. In accordance with Article 18 § 8 of the CAO the court fined the applicant 2,000 Russian roubles (RUB) and ordered his administrative removal from Russia.

Lastly, the court granted the request of the head of the Mozhaiskiy District Department of the Interior for the applicant’s placement in detention pending removal. It reiterated that the applicant had been residing in Russia in breach of the law and had avoided – and was likely to further avoid – leaving Russia of his own will. The court decided that the applicant should be detained in a special detention centre for foreigners of the Moscow Department of the Interior until his administrative removal. No specific timelimit for the applicant’s detention was given by the court.

On 5 and 26 August 2013 the defence submitted their points of appeal before the Moscow City Court. In addition to their initial arguments, they submitted, first, that the first-instance court had incorrectly established the facts of the case, including in respect of the applicant’s arrest. Contrary to the case materials, on 30 July 2013 the applicant had only just been let out of the remand centre when he was immediately arrested at the exit of the detention facility. They argued that the administrative-offence record had been forged and therefore was inadmissible. Secondly, they maintained that the applicant’s expulsion would amount to his “extradition in disguise”. They pointed out, with reference to the letter of 30 July 2013 (see paragraph 19 above) that the very initiative to conduct an urgent check of the applicant’s migration status had been taken by the prosecutor’s office, that is the authority in charge of his extradition case. The interest the prosecutor’s office displayed in the carrying out of the migration check – a matter clearly outside their competence – could be interpreted as an indication of that authority’s interest in ensuring the applicant’s return to Uzbekistan. However, the applicant, if removed to his home country, would be unable to benefit from the minimum guarantees he could have in extradition proceedings.

Thirdly, the defence maintained that domestic law prohibited the expulsion of a person who had applied for refugee status until a final decision in that respect had been made. However, the domestic court had omitted to elaborate on that aspect of the case. They argued that, contrary to the first-instance court’s findings, the requirement to take into account the proceedings in respect of the applicant’s refugee status had had no effect on the lower court’s findings as to whether an administrative offence had – or had not – taken place. However, it could have had a bearing on the determination of the administrative sanction. In that regard, they drew the appeal court’s attention to the fact that administrative removal constituted a sanction additional to an administrative fine.

Fourthly, the defence stressed that the first-instance court had failed to make any assessment of their ill-treatment argument. Having referred to the Court’s case-law, they reiterated their extensive submissions as regards the risk of ill-treatment if the removal order were to be enforced. They complained that the first-instance court had refused to admit to the case the reports by reputable NGOs, the Russian courts’ decisions, or the Court’s decisions in similar cases.

Lastly, the defence submitted that the decision ordering the applicant’ s detention did not contain any time-limit and was therefore in breach of Article 5 of the Convention.

The examination of the case was initially scheduled for 2 September 2013 but was adjourned in order to obtain updated information on the proceedings in respect of the applicant’s refugee status from the Federal Migration Service.

On 18 September 2013 the Moscow City Court upheld the judgment of 31 July 2013, finding it lawful and justified. It held that the first-instance court had been right in finding that the applicant’s actions had constituted an administrative offence. The appeal court upheld the administrative sanction as lawful and found no grounds to amend it. The court rejected the applicant’s argument to the effect that he could not be removed from Russia in the absence of a final decision in the refugee-status proceedings as irrelevant, since “the examination of the respective appeal did not have a bearing on the event or the legal qualification of the administrative offence”. The court further noted that, in any event, on 27 August 2013 his application for refugee status had been refused. As regards the applicant’s argument about the authorities’ failure to bring the administrative proceedings against him in a timely manner, the court considered that this circumstance did not constitute a ground for quashing the lower court’s judgment. It argued that that violation had been insignificant, since the time at which the respective record of the administrative offence had been drawn up had not had a “preclusive effect («не является пресекательным»)”.

At some point in May 2013 the applicant applied to the Moscow Department of the Federal Migration Service (“the Moscow FMS”) for refugee status in Russia on the grounds of fear of persecution on account of fabricated charges against him relating to a religious offence. He submitted that the accusations against him were unfounded. On 24 June 2013 his case was accepted for consideration.

On 6 August 2013 the Russian Office of the United Nations High Commissioner for Refugees (UNHCR) concluded, in a letter to the applicant’s representative, that there existed a real risk of ill-treatment of persons whose extradition was sought in connection with politically motivated charges of a religious nature.

On 27 August 2013 the Moscow FMS rejected the applicant’s application for refugee status. According to a copy of the decision as submitted by the parties, it observed that the applicant was wanted in Uzbekistan in connection with his alleged membership of HT and noted that “the initiator of the search had confirmed its intention to claim extradition”. The authority reiterated that it was for a petitioner to adduce persuasive arguments why there existed an individual risk of persecution on the grounds of nationality, religious beliefs or membership of a social group. The authority took note of both the administrative removal order of 31 July 2013 (see paragraph 31 above) and the indication by the Court of an interim measure in the applicant’s case (see paragraph 4 above). The Moscow FMS found as follows:

“It transpires from the case materials that after the death of the applicant’s mother in 1999 the applicant’s father married another woman. In order to obtain the father’s heritage, in 2002 she complained to the local police that some time before the applicant had come to Uzbekistan to kill his father. However, according to the applicant, criminal proceedings had not been brought against him. However, in 20092010 she wrote a new complaint, this time accusing the applicant of extremism. It may be concluded from the above that the reason for which, according to the applicant, unfounded charges had been brought against him was a domestic conflict.”

The Moscow FMS also noted that the applicant had deliberately hidden the fact of the State border transfer between 1 and 18 November 2009 and that he had not applied for refugee status until his arrest, even though he had learned of the extremism charge against him in 2010. The authority also observed that the applicant’s brother was living in Uzbekistan and had not been persecuted. It therefore concluded that the applicant had lodged a request with the sole purpose of avoiding criminal prosecution in Uzbekistan and that he did not satisfy the refugee criteria.

On 26 October 2013 the defence lodged an appeal against the refusal with the Russian FMS office, arguing that the FMS Moscow had omitted to take into account the political and religious nature of the charges against him and to analyse the specific circumstances of his case. They submitted, in response to the regional authority’s findings (see paragraph 42 above), that it was immaterial who had brought the complaint against the applicant. Nor was the situation of his brother of relevance, since no criminal case had been opened against him in Uzbekistan. Contrary to the migration authority’s findings, the applicant had not learned about the exact nature of the charges or the stage of the proceedings against him in Uzbekistan until his arrest. The fact of his border crossing in 2009 was of little relevance and did not undermine his statement that since 1999 he had not left Russia for a considerable period of time. The Moscow FMS in its decision had referred to the extradition proceedings but had omitted to note the crucial point, namely the fact that extradition had been refused in the meantime (see paragraph 15 above). Lastly, the defence reiterated that the practice of torture against detainees in Uzbekistan could be described as systemic and that there was no evidence of any improvement in recent years. The defence referred, in particular, to the concluding observations of the UN Human Rights Committee of 2010, as well as the Human Rights Watch reports of 2011 and 2013 (see paragraphs 67-68 below), the Amnesty International reports published in May and July 2013 (see paragraphs 71-72 below), and other material (see paragraphs 64 and 66 below). They maintained that the applicant, charged with membership of HT, ran a particularly serious risk of illtreatment and detention in his home country.

On 25 December 2013 the Russian FMS rejected the applicant’s appeal. The federal migration authority considered that the Moscow FMS had thoroughly analysed all the relevant circumstances and had taken a wellfounded and lawful decision that the applicant did not meet the refugee criteria. The Russian FMS further noted that it was not competent to conduct investigative activities within a criminal case or to doubt the wellfoundedness of the materials submitted by the Prosecutor’s Office of the Russian Federation about the criminal case brought by the Uzbek authorities.

By the same decision the Russian FMS instructed the Moscow FMS to examine the issue of granting the applicant temporary asylum in Russia, with regard to the indication made by the Court under Rule 39 of the Rules of Court (see paragraph 4 above). The parties have not informed the Court of any follow-up to that instruction.

On 26 February 2014 the defence challenged the decision of 25 December 2013 before the Basmannyy District Court of Moscow as unlawful and unfounded. They reiterated their earlier submissions regarding the risk of ill-treatment in the event of the applicant’s expulsion (see paragraphs 40 and 44 above) and referred, in addition to the international material cited in their earlier submissions, to the World Report released by Human Rights Watch in January 2014 (see paragraph 69 below). They argued that the federal migration authority had failed to address the foreseeable consequences of the applicant’s removal to Uzbekistan, and above all the risk of ill-treatment run by the applicant in the event of his removal. Instead of conducting such an analysis, the migration authority argued that they were not competent to conduct an investigation or review the extradition materials, even though that issue had been clearly outside the scope of the applicant’s request. That attitude, in the applicant’s view, rather demonstrated that the Russian FMS were relying on the presumption of his guilt in the criminal proceedings brought against him by the Uzbek authorities.

It appears that the appeal proceedings are pending to date.

After his arrest on the evening of 30 July 2013 (see paragraph 22 above) the applicant was placed in a cell at the Mozhaiskiy District police station of Moscow.

According to the applicant, the cell measured 4.5 sq. m and accommodated, during the applicant’s detention there, between four and fifteen detainees. It was separated from the main corridor by a barred grill. The applicant did not have an individual sleeping place, since the cell was equipped with only one metal bench instead of beds. There were no windows in the cell, so he had no access to natural light and air. The cell was not equipped with a lavatory or toilet facilities. No linen or mattresses were available. The applicant received food and water once a day.

According to the Government, the cell measured 5.46 sq. m. The applicant was provided with food and bed linen.

At 12.10 p.m. on 5 August (according to the Government) or on 6 August 2013 (according to the applicant) the applicant was transferred to the Moscow special detention centre for foreigners. The parties have not submitted documents in respect of the date of that transfer.

The applicant is detained in the Moscow special detention centre for foreigners to date.