Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)

Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in 1982 and lives in Vela Luka.

He worked as a sailor on an ocean carrier for a shipping company headquartered in Croatia.

In 2007 the police and the State Attorney’s Office for the Suppression of Corruption and Organised Crime (Ured za suzbijanje korupcije i organiziranog kriminaliteta; hereinafter: “the OSCOC”) investigated allegations of possible drug trafficking between Latin America and Europe via ocean carriers, involving several persons from Croatia.

On 23 March 2007, on the basis of a police report, the OSCOC requested an investigating judge of the Zagreb County Court (Županijski sud u Zagrebu) to authorise the use of secret surveillance measures to tap the applicant’s telephone and covertly monitor him.

The investigating judge granted the request and on the same day issued an order for the use of secret surveillance measures. Its statement of reasons reads as follows:

“On 23 March 2007 the OSCOC lodged a request, no. ..., for secret surveillance measures under Article 180 § 1 (1) and (3) of the Code of Criminal Procedure in respect of Ante Dragojević. The request refers to the [police] report of 2 March 2007, concerning the use of secret surveillance measures in respect of M.R., M.V., B.Ž. and I.B., alleging probable cause to believe that [Ante Dragojević] is also involved in the commission of the offence proscribed by Article 173 §§ 2 and 3 of the Criminal Code.

The investigating judge considers that the request is well-founded because the investigation cannot be carried out by other means and the use of these measures in respect of Ante Dragojević is also necessary for satisfactory completion of the investigation, given that there are sufficient grounds for suspecting that he has also been involved in the commission of the offence in issue.

It is therefore appropriate to temporarily limit the constitutional rights and decide as above.”

In the course of the further investigation the OSCOC learnt that the applicant had been using another telephone number. On 25 May 2007 it asked the investigating judge to extend the use of secret surveillance measures to tap that number.

On the same day the investigating judge granted that request and issued an order, which contains the following statement of reasons:

“Based on an order of this court under the above number, the secret surveillance measures provided for in Article 180 § 1 (1) and (3) of the Code of Criminal Procedure are being conducted in respect of several persons for the offence proscribed under Article 173 §§ 2 and 3 of the Criminal Code.

On 25 May 2007 the OSCOC lodged a request for secret surveillance measures under Article 180 § 1 (1) and (3) of the Code of Criminal Procedure in respect of D.Š., and the secret surveillance measure under [Article 180 § 1] (1) of the above-cited provision in respect of Ante Dragojević, who was using the telephone number ... This measure was also requested in respect of another unidentified person who was using the number ... since the results of the previous use of secret surveillance measures showed that they had made contact in order to commit the offence in issue.

The investigating judge considers that the request is well-founded because the investigation cannot be carried out by other means, so it is necessary to temporarily limit the constitutional rights and order the measures noted in the operative part of this order under points I and II.

The OSCOC also asked that certain measures be terminated because they had not produced any result, and a decision was made accordingly as noted under point V of this order.”

On 2 July 2007 the OSCOC requested that the use of secret surveillance measures be extended for a further three months.

The investigating judge granted the request and on the same day issued an order based on the following statement of reasons:

“Based on an order of this court under the above number, the secret surveillance measures provided for in Article 180 § 1 (1) and (3) of the Code of Criminal Procedure are being conducted in respect of several persons for an offence proscribed under Article 173 §§ 2 and 3 of the Criminal Code.

On 2 July 2007 the OSCOC lodged a request for an extension of the use of secret surveillance measures under Article 180 § 1 (1) and (3) of the Code of Criminal Procedure in respect of M.R., B.Ž. and Ante Dragojević on grounds of suspected conspiracy in drug trafficking between Latin America and Croatia. It appears, given their constant contacts, that the offence could be committed within a period of three months so it was proposed that the use of measures be extended for that period.

The investigating judge considers that the request is well-founded because the investigation cannot be carried out by other means and given the circumstances of the offence it is necessary to extend the use of [secret surveillance] measures in order to achieve satisfactory completion of the investigation and obtaining of evidence.

It is therefore decided accordingly as noted in the operative part of this order.”

On 6 August 2007 the OSCOC requested the investigating judge to discontinue the use of secret surveillance measures in respect of the applicant on the grounds that the results of the investigation did not justify further secret surveillance.

The investigating judge granted the request and ordered the discontinuation of secret surveillance on 7 August 2007.

On 17 September 2007 the OSCOC made a new request for secret surveillance in respect of the applicant.

On the same day the investigating judge issued a secret surveillance order with the following statement of reasons:

“By orders under the above number secret surveillance was ordered in respect of Ante Dragojević (on 23 March 2007 and discontinued on 7 August 2007), and in respect of ...

On 17 September 2007 the OSCOC lodged a request for secret surveillance measures under Article 180 § 1 (1) and (3) of the Code of Criminal Procedure in respect of Ante Dragojević, B.Ž. and M.M. for a period of two months in connection with offences proscribed under Article 173 §§ 2 and 3 of the Criminal Code, and for the discontinuation of secret surveillance in respect of N.I and an unidentified person. In their request [the OSCOC] submits that the investigation shows that there is a possibility that these individuals could contact each other again and that they could contact N.I., who travelled to Latin America and is expected to stay there for ten months. [The OSCOC] therefore considers that by resuming the use of secret surveillance relevant information for the further investigation could be obtained. On the other hand, there has been no communication on the telephone numbers of N.I. and the unidentified person so [the OSCOC] proposes that the secret surveillance in that respect be discontinued.

The investigating judge finds in the case in issue that it is necessary to temporarily limit the constitutional rights of the above-mentioned individuals since investigation by another means would not be possible. It has therefore been decided as noted under points I and II, while at the same time [certain] measures have been discontinued as noted under points III and IV of this order.”

After further preliminary investigation, on 16 January 2009 the applicant was arrested and detained on suspicion of drug trafficking.

The following day the Dubrovnik Police Department (Policijska uprava Dubrovačko-neretvanska) lodged a criminal complaint with the Dubrovnik County State Attorney’s Office (Županijsko državno odvjetništvo u Dubrovniku; hereinafter: the “State Attorney’s Office”) against the applicant and another person on charges of drug trafficking.

On the same day the applicant was questioned by an investigating judge of the Dubrovnik County Court (Županijski sud u Dubrovniku). He stressed that it was true that he worked on an ocean carrier between Latin America and Europe but denied that he had anything to do with any drug trafficking.

After the questioning the investigating judge opened an investigation in respect of the applicant and several other persons on suspicion of drug trafficking. The investigating judge also remanded the applicant in custody.

During the investigation the investigating judge questioned several witnesses and obtained the relevant results and analyses of the use of secret surveillance measures, as well as evidence obtained following a number of searches conducted during the investigation. Throughout the proceedings the applicant was remanded in custody.

After the completion of the investigation, on 10 March 2009 the State Attorney’s Office indicted the applicant and two other persons in the Dubrovnik County Court on charges of drug trafficking. The applicant was also indicted on charges of money laundering.

On 11 March 2009 a three-judge panel of the Dubrovnik County Court presided over by judge Z.Č. extended the applicant’s pre-trial detention under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges). The relevant part of the decision in respect of the applicant reads:

“This panel considers that the pre-trial detention under Article 102 § 1 (4) of the Code of Criminal Procedure in respect of the accused Dragojević and V. should be extended because the type and quantity of drugs which are the subject of the indictment, and the manner of commission [of the offence], indicate particularly grave circumstances of the offence for which the pre-trial detention should be extended”

On 13 March 2009 the applicant’s defence lawyer asked the Dubrovnik County Court for access to and a copy of the audio recordings obtained by the use of secret surveillance measures.

The request for access to the recordings was granted on 16 March 2009.

On 16 March 2009 the applicant challenged the decision on his pre-trial detention before the Supreme Court (Vrhovni sud Republike Hrvatske).

On 18 March 2009 the applicant also lodged an objection against the indictment, arguing, inter alia, that the results of the secret surveillance measures did not suggest that he had been involved in the offence.

On 30 March 2009 the Supreme Court allowed the applicant’s appeal against the detention order of 11 March 2009 (see paragraphs 24 and 27 above) on the grounds that the first-instance court had failed to state any reasons why the applicant’s detention should be extended under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending). Without releasing the applicant, it therefore ordered that the matter be re-examined.

The Dubrovnik County Court complied with that order and on 6 April 2009 a three-judge panel of that court, presided over by Judge Z.Č., extended the applicant’s pre-trial detention under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges). The relevant part of the decision reads:

“The fact that the defendant Ante Dragojević is a reoffender, who has been sentenced by a final judgment of the Split Municipal Court no. KML-160/02 of 10 July 2003, a final judgment of the Korčula Municipal Court no. K-33/05 of 25 May 2006, and a final judgment of the Korčula Municipal Court no. K-68/07 of 10 December 2007, suggests that his previous behaviour has not been in compliance with the law and that there is therefore a risk that, if at large, he might reoffend.

Accordingly, this court considers that his detention should be extended under Article 102 § 1 (3) of the Code of Criminal Procedure.

Furthermore, this panel considers that the detention of Ante Dragojević should be extended under Article 102 § 1 (4) of the Code of Criminal Procedure since the type and quantity of the drug which is the subject matter of the charges and the manner of execution [of the offence] suggest that the circumstances of the offence were particularly serious and thus warrant his further detention.

To be specific, cocaine is a hard drug and forty kilos of it is not an insignificant amount. Such a quantity could be distributed in a number of single doses and thus endanger the health of a number of people, particularly young people. Having regard also to the international character of the offence, and the recorded EUR 80,000 from the proceeds of the crime which surpasses the usual circumstances associated with such offences, and the criminal resolve and engagement necessary to commit the offence charged, [the court considers] that the detention should be extended under Article 102 § 1 (4) of the Code of Criminal Procedure.”

On 27 April 2009 a three-judge panel of the Dubrovnik County Court dismissed the applicant’s objection against the indictment as ill-founded (see paragraph 28 above) on the grounds that there was sufficient suspicion to warrant sending the case for trial.

The applicant’s pre-trial detention was further extended by a three-judge panel of the Dubrovnik County Court, presided over by Judge Z.Č. on 5 June 2009, which reiterated the same reasons as in its previous decision.

Meanwhile, Judge Z.Č., who had presided over the panels extending the applicant’s pre-trial detention (see paragraphs 24, 30 and 32 above), assumed responsibility for the applicant’s case as president of the trial bench of the Dubrovnik County Court.

At hearings held on 16 and 17 June 2009 the applicant pleaded not guilty and the trial bench heard evidence from several witnesses.

The applicant also applied to have the results of the secret surveillance measures excluded from the case file as unlawfully obtained evidence on the grounds that the orders for their use had not been sufficiently reasoned and had thus been contrary to Articles 180a, 181 and 182 of the Code of Criminal Procedure (see paragraph 55 below).

In a short oral explanation and ruling out the possibility of appeal against his decision, the president of the trial bench dismissed the applicant’s request as ill-founded. The trial bench then examined the evidence obtained by secret surveillance. It also decided to obtain further evidence proposed by the prosecution and the applicant, and adjourned the hearing.

On 4 August 2009 a three-judge panel of the Dubrovnik County Court, composed of judges P.M., E.Č. and M.V., extended the applicant’s pre-trial detention under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges) reiterating the reasons stated in the previous decisions on his detention.

On 25 August 2009 Judge Z.Č., referring to the Court’s case-law and the case-law of the Constitutional Court (Ustavni sud Republike Hrvatske), asked to withdraw from the case as president of the trial bench on the grounds that his previous involvement in the case, as president of the panels which had extended the applicant’s pre-trial detention, could raise doubts about his impartiality.

Following Judge Z.Č.’s request, on 26 August 2009 the President of the Dubrovnik County Court asked the Supreme Court to transfer the trial to another court since all the judges of the Criminal Division of the Dubrovnik County Court had already taken part in the applicant’s case.

On 9 September 2009 the Supreme Court dismissed that request on the grounds that there were no reasons to doubt the impartiality of the Dubrovnik County Court judges. It held that the mere fact that a judge had presided over the panels extending the applicant’s detention could not raise any issue of his impartiality since the questions to be decided when the detention was extended differed from those which the judge had to decide when examining the case on the merits. There were also no reasons to doubt the impartiality of Judge Z.Č. within the meaning of Article 36 § 2 of the Code of Criminal Procedure (see paragraph 55 below).

The applicant’s detention was further extended on 1 October 2009 by a three-judge panel in which Judge Z.Č. sat as a member of the panel, relying on Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges) and reiterating the reasons from the previous decisions on detention.

At a hearing on 26 November 2009 the trial bench questioned several witnesses and the defence again sought to have the evidence obtained by secret surveillance excluded from the case file as unlawfully obtained evidence. Ruling out the possibility of appeal, the president of the trial bench dismissed the request as ill-founded. The trial bench thus examined the evidence obtained by the use of secret surveillance measures.

On 3 December 2009 a three-judge panel of the Dubrovnik County Court, composed of judges P.M., S.V. and M.V., extended the applicant’s detention under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges), reiterating the reasons stated in the previous decisions.

At a hearing on 17 December 2009 the applicant pleaded not guilty and denied all the charges against him. The parties gave their closing statements and the trial bench concluded the hearing.

On 18 December 2009 the Dubrovnik County Court found the applicant guilty on charges of drug trafficking and money laundering and sentenced him to nine years’ imprisonment. The judgment was based on an analysis of the applicant’s defence and the statements of his co-accused, as well as on the statements of witnesses, evidence obtained through numerous searches and seizures and the use of secret surveillance measures.

As to the refusal to exclude the latter evidence from the case file, the Dubrovnik County Court noted:

“The court found that the defence of the accused Ante Dragojević was unconvincing, contradictory and aimed at avoiding his criminal responsibility .... The court examined the audio recordings (CD) of the conversations between the accused and witnesses I.Ž. and M.R. after it had found that the recordings had been made pursuant to the orders of the investigating judge of the Zagreb County Court no. Kir-Us-14/07 authorising the telephone tapping. These were the reasons why the court dismissed the request made during the proceedings that these recordings be excluded from the case file as unlawfully obtained evidence. [Moreover] the court considered them to be lawful and acceptable evidence obtained pursuant to valid court decisions. This court also refused the request by the defence to examine the case files of the Rijeka County Court no. Kir-Us-1/09 and the Zagreb County Court no. Kir-Us-14/07 [concerning the use of secret surveillance], because it considered those requests irrelevant and obsolete for the same reasons referred to in the decisions concerning the requests for exclusion of the secret surveillance recordings from the case file. As to the request that the secret surveillance orders be excluded from the case file as unlawfully obtained evidence on the grounds that they did not contain an assessment of the likelihood that the accused themselves or jointly with other persons had committed one of the offences proscribed under Article 181 of the Code of Criminal Procedure, and that they did not contain an assessment of whether the investigation could be conducted by other means, this court considers that this is not correct because the orders were sufficient and well-reasoned and eventually resulted in an indictment being lodged [against the accused]. In any event, as to the request by the defence that the secret surveillance orders be excluded from the case file as unlawfully obtained evidence, it should be noted that these are not evidence but court decisions so they cannot be excluded from the case file as unlawfully obtained evidence. And as regards the evidence obtained on the basis of these orders, this court considers that there was no breach of the Code of Criminal Procedure and therefore it does not consider them to be fruit of the poisonous tree but lawfully obtained evidence.”

On 27 January and 3 February 2010 the applicant lodged an appeal against the first-instance judgment with the Supreme Court. He argued, inter alia, that the secret surveillance orders had not been properly drafted as required under the Code of Criminal Procedure given that they had not given a proper assessment of the likelihood that the offences in issue had been committed, or of the circumstances indicating that the investigation could not be conducted by other means. In his view, this had led to his unlawful surveillance and therefore any evidence thus obtained could not be used in the criminal proceedings against him. He challenged, further, the basis of the first-instance court’s reasoning in its judgment, namely, the evidence obtained through secret surveillance. The applicant also requested the Supreme Court to quash the first-instance judgment and order that a retrial be held before a differently composed trial bench.

The Supreme Court dismissed the applicant’s appeal as ill-founded and upheld the first-instance judgment on 23 September 2010. It held that all relevant facts had been sufficiently and correctly established, that the applicant had had every opportunity to participate effectively in the proceedings and that the first-instance court had given sufficient reasons for its decisions. As to the alleged unlawfulness of the applicant’s secret surveillance, the Supreme Court noted:

“As regards the secret surveillance orders, contrary to what is alleged in the appeal, these impugned orders contain sufficient reasons as to probable cause to believe that the offence under Article 173 § 2 of the Criminal Code was committed, as well as to the fact that the investigation into this offence could not be conducted by other means and that [such investigation] would be extremely difficult, which is evident from the fact that the investigating judge did not refuse to issue the orders. In fact he issued the orders as required under Article 182 § 2 of the Code of Criminal Procedure. It follows that the appellant’s allegation that the impugned orders of the investigating judge do not contain sufficient reasons, is erroneous and that they are therefore not unlawfully obtained evidence within the meaning of Article 9 § 2 of the Code of Criminal Procedure.”

The applicant subsequently lodged a constitutional complaint with the Constitutional Court on 21 October 2010 arguing, inter alia, that the trial bench had lacked impartiality because of the previous involvement of Judge Z.Č. in the case; that his secret surveillance had been unlawful on account of the failure of the investigating judge to issue an order in the manner required under the relevant law; and that the use of the evidence thus obtained for his conviction had rendered the entire proceedings unfair.

On 25 May 2011 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded. It endorsed the reasoning of the Supreme Court with regard to the use of secret surveillance measures and the use of evidence thus obtained in the proceedings. As regards the lack of impartiality of the trial bench, the Constitutional Court observed:

“In the case in issue, the mere fact that the president of the trial bench had on three previous occasions ... sat on a panel which extended the appellant’s pre-trial detention cannot in itself be a reason for disqualifying the judge from deciding the merits of the case.

There is a significant difference between the decision on detention and the decision on the guilt of the appellant. When ruling on an extension of detention, a member of a panel of judges decides only the legal issues on which the application of the procedural law concerning the so-called causae arresti (Article 102 of the Code of Criminal Procedure) depends. Accordingly, he or she does not assess all the legal and factual aspects of the charges. The charges will be assessed in the first-instance proceedings. However, the appellant has not advanced any reasons why Judge Z.Č.’s participation in the panel [of judges] which had extended his detention could be considered to have led him to form a previous conviction as to his guilt.”

The decision of the Constitutional Court was served on the applicant’s representative on 13 June 2011.


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 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)

Aleš Pejchal;André Potocki;Angelika Nußberger

The applicant was born in 1975 and lived in Balakliya.

On 7 October 2003 the applicant was admitted to hospital to undergo treatment for drug addiction.

On 11 October 2003, in the course of a police operation, an undercover police agent bought a certain amount of cannabis from the applicant when he was in hospital. After the sale was completed it was documented in the presence of two witnesses. The applicant was further searched and some additional quantities of the drug were seized.

On the same day the police officers arrested the applicant under Article 263 of the Administrative Offences Code for a violation of the drug circulation rules. Relying on the provisions of that Code, the police detained the applicant for three days pending the results of an expert examination of the seized drugs.

On 14 October 2003, upon receipt of the expert report confirming that the seized drug was cannabis, the investigator of the Kharkiv Region Police Department decided to arrest the applicant and detain him further under Articles 106 and 115 of the Code of Criminal Procedure, considering that the sale of cannabis in hospital constituted a crime under Article 307 § 2 of the Criminal Code. The applicant was questioned on that day.

On 15 October 2003 the police also opened criminal proceedings against the applicant under Article 309 § 2 of the Criminal Code, noting that on 11 October 2003 they had seized some additional quantities of cannabis from him which he had transported to and kept in the hospital.

On 17 October 2003 the applicant was brought before the Leninskyy District Court of Kharkiv, which ordered his pre-trial detention as a preventive measure. The court noted that the charges against the applicant were serious, that he was not in employment and had committed crimes while being treated in a hospital. For these reasons the court concluded that the applicant might abscond from justice, obstruct the investigation, or reoffend.

On 18 December 2003 the criminal case file arrived at the Kominternivskyy District Court of Kharkiv (“the first-instance court”) for the applicant to be tried.

On 26 December 2003 the first-instance court committed the applicant for trial. It decided that the preventive measure applied in respect of the applicant, namely, custody, should remain the same.

On 4 May 2004 the applicant requested the first-instance court to release him under a written obligation not to abscond.

On 9 June 2004 the first-instance court rejected the applicant’s request. The court noted that there had been no grounds to consider that the reasons justifying the earlier court decision of 17 October 2003 on the applicant’s detention were no longer valid. The applicant’s reference to the illness of his mother and the death of this father was not relevant. Likewise, his acknowledgment of guilt was irrelevant and could only be taken into account for mitigation of sentence.

On 23 December 2004 the first-instance court ruled that the preventive measure in respect of the applicant should remain the same, without specifying the reasons.

On 10 March 2006 the local prosecutor’s office refused to open a criminal investigation in respect of the applicant’s allegations that his initial detention was unlawful.

On 27 April 2006 the applicant lodged a request to have the preventive measure changed. On the same day the first-instance court rejected the request as unfounded. The court noted that there were no grounds to consider that the reasons justifying the earlier court decision of 17 October 2003 on the applicant’s detention were no longer valid; the allegations of the aggravation of the applicant’s health were not confirmed by the materials in the case file and the applicant’s contentions that he was the only source of support for his mother were not convincing.

On 25 May 2006 the applicant and his mother, who had joined the proceedings as the applicant’s defence counsel, lodged a new request for release. The applicant’s mother specified that she could not work for health reasons and the applicant was her only support. On the same day the first-instance court rejected the request, noting that the reasons already given by the court for the applicant’s detention remained valid; the allegations that the applicant was providing support to his mother were not convincing, since at the time of his arrest the applicant had not been in employment, while his mother received a pension; likewise, the applicant could not be released for health reasons as there was no supporting information about his illnesses.

On 25 June 2006 the applicant complained to the Kharkiv Region Court of Appeal (“the Court of Appeal”) arguing that his initial detention had not been lawful.

On 7 and 11 July 2006 the applicant and his mother lodged requests for the release of the applicant with the first-instance court. The applicant’s mother specified that the applicant had been her only support and that his health was seriously deteriorating. The court dismissed the requests on the same days, repeating its earlier findings in respect of similar requests.

On 11 July 2006 the applicant’s mother lodged a complaint with the first-instance court arguing that the applicant’s initial detention under Article 263 of the Code of Administrative Offences, without a court order, had been unlawful.

On 19 July 2006 the Court of Appeal replied to the applicant that his complaint regarding the lawfulness of his initial detention would be considered by the first-instance court in the course of the trial in his criminal case.

On 10 August 2006 the first-instance court found the applicant guilty of the crimes under Articles 307 § 2 and 309 § 2 of the Criminal Code and sentenced him to five years’ imprisonment combined with confiscation of property. The court further found that the applicant’s contentions that his initial detention had been unlawful were unsubstantiated because there had been sufficient grounds to detain the applicant under Article 263 of the Administrative Offences Code. In particular, his detention for the first three days had been justified as the police had been waiting for the expert report confirming that the seized substance was cannabis. The court also decided that the term of the applicant’s imprisonment should be calculated from 11 October 2003.

The applicant appealed against that judgment.

On 10 April 2007 the Court of Appeal upheld the findings of the first-instance court, having amended the reasoning as regards the characteristics of the applicant’s crime under Article 309 § 2 of the Criminal Code. The court further reduced the sentence to three and a half years’ imprisonment.


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Possessions)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Síofra O’Leary;Yonko Grozev

The applicant was born in 1966 and lives in Ganja.

The applicant had ownership rights to a shop at 32 Attarlar Street in Ganja. According to the certificate “on the sale of State property to legal entities or individuals” issued on 30 October 2003 by the Ministry of Economic Development’s Department of Management and Privatisation of State Property, the total area of the property was 78.3 sq. m and it had been purchased by the applicant from the State for 1,309,000 old Azerbaijani manats (AZM) (equivalent to 261.8 New Azerbaijani manats (AZN) or approximately 230 euros).

According to the property’s “technical passport” issued by the Ministry of Economic Development’s Property Inventory Bureau on 5 September 2003, the shop had originally been constructed in 1972, was located on a plot of land of 84 sq. m, had a total surface area of 78.3 sq. m and was 3.5 m high. The shop had concrete foundations, the external and internal walls were made of metal and wood, while the roof was made of metal and covered with slate tiles. The property was classified as a nonresidential building used for wholesale or retail trade purposes. The document further stated that the plot of land on which the shop was located had been allocated on the basis of relevant documents. No other documents concerning the ownership of the land have been submitted by the parties.

The applicant paid land tax for 2004 of AZM 19,400 for the plot underneath the shop.

In 2004 the Ganja City Executive Authority (“the GCEA”) decided to renovate and widen Attarlar and Nizami Streets in accordance with the city’s planning scheme because the streets were not wide enough for the pedestrian and car traffic.

According to the applicant, in November 2004 GCEA officials asked him verbally to vacate the shop in connection with the above decision. The applicant refused and brought a legal action asking the court to order the GCEA to stop its allegedly unlawful activities.

According to the applicant, in December 2004 the GCEA destroyed the shop. According to the Government, the shop, being a transportable metal construction, was lifted away by crane and moved to an unspecified part of the city.

On an unspecified date in December 2004 the applicant asked AyselM, a private valuation firm, to assess the shop’s market value. According to Aysel-M’s expert report, dated 13 December 2004, the market value at the time was AZM 588,000,000, or 120,000 US dollars (USD) (there is no copy of the report in the case file).

The applicant supplemented his court action against the GCEA with additional claims, asking for compensation of AZM 588,000,000 for the shop, AZM 99,000 for an unspecified “State fee” and AZM 490,000 for Aysel-M’s fee for the report.

In its submissions to the court, the GCEA as the respondent stated that a number of “old shops and other retail facilities” on Attarlar and Nizami Streets had been removed owing to the urgent need to widen the streets in order to accommodate the number of pedestrians and cars. The respondent argued that the applicant’s shop had not been destroyed but, being a metal construction, had been removed by crane to another, unspecified location in the city. The applicant had been offered another plot of land in the city to continue operating his shop but he had refused. The applicant had not owned the original plot of land. The respondent argued that the compensation claimed by the applicant was excessive, taking into account the price he had paid the State for it in 2003.

Following the respondent’s submissions concerning the alleged excessiveness of the compensation claim, by an interim decision of 15 July 2005 the Khojavand District Court requested a new valuation by a State expert.

On an unspecified date the State expert refused to issue an opinion, noting that the shop at 32 Attarlar Street no longer existed and that therefore it was technically impossible to examine it and assess its market value. Accordingly, the interim decision of 15 July 2005 remained unexecuted.

On 6 October 2005 the Khojavand District Court dismissed the applicant’s legal action without citing any provisions of the applicable domestic law. In its reasoning the court accepted the GCEA’s explanation that the shop in question had been removed in accordance with townplanning policy. Being a metal construction it had been possible to move it in one piece. It had not been destroyed but simply transported to another location. The court also accepted that the applicant had been offered a new plot of land by the GCEA but had refused it. It further decided to reject the applicant’s compensation claim based on Aysel-M’s report, without providing any reasons. However, the court ordered the GCEA to allocate the applicant a plot of land in Ganja equivalent in size to the shop in question.

The applicant appealed, reiterating that his shop had been unlawfully destroyed and asking for compensation.

On 23 January 2006 the Court of Appeal dismissed the applicant’s appeal, upholding the first-instance court’s assessment. The appellate judgment contained no references to applicable domestic legal provisions.

Following a further appeal by the applicant, on 14 July 2006 the Supreme Court upheld the Court of Appeal’s judgment.

No information is available in the case file as to whether a new land plot was allocated to the applicant or as to its location or any other details.


András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Paul Lemmens;Robert Spano

The applicant, Ms Neslihan Olsoy, is a Turkish national, who was born in 1952 and lives in Diyarbakır. She was represented before the Court by Ms Rehşan Bataray Saman and Mr Serdar Çelebi, lawyers practising in Diyarbakır.

The Turkish Government (“the Government”) were represented by their Agent.

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

At the time of the events the applicant’s son, Fırat Olsoy, who was born in 1976, was serving a prison sentence in the Diyarbakır Prison.

On 24 January 2009 the applicant’s son asked to see the prison doctor. The doctor examined him, diagnosed him with myalgia (muscle pain) and anxiety and gave him medication to treat his problems.

At around 3 p.m. on 23 March 2009, suffering from severe chest pain and shortness of breath, the applicant’s son went to the prison infirmary. According to the applicant, the doctor was about to leave for the day and therefore hastily examined her son and gave him painkillers and a sleeping pill before sending him back to his cell.

At around 5 p.m. the same day the applicant’s son’s condition worsened and he had difficulty breathing. He told the other inmates in his wing that he had severe pain in his chest. Some of the inmates carried him to the infirmary but it was closed. Subsequently, a prison warden arrived and called an ambulance. The applicant’s son died on the way to the hospital.

On the same day an autopsy was conducted by a forensic pathologist at the Diyarbakır State Hospital in the presence of the Diyarbakır prosecutor. Since the cause of death could not be determined during that autopsy, blood samples and tissue samples taken from the heart, brain, lungs, liver, kidneys, spleen and the coronary arteries were sent for histopathological and toxicological examinations at the Forensic Medicine Institute’s headquarters in Istanbul.

The following day the prosecutor initiated an ex officio investigation into the death of the applicant’s son. He asked the prison administration to forward him the applicant’s son’s medical file and the names of the prison personnel who were on duty at the time of the events, as well as the names of the inmates detained on the same wing as the applicant’s son. That information was provided to the prosecutor on 25 March 2009.

On 26 March 2009 the prosecutor took a statement from the prison doctor. The doctor told the prosecutor that at around 2.30 p.m. on 23 March 2009 he had examined the applicant’s son who had come to the prison’s infirmary with pain in his chest and shoulder and complained of difficulties in sleeping. The doctor told the prosecutor that he had prescribed four medicines to the applicant’s son, namely “Zedprex, Cdoral, Voltaren and Duzyl”, to relax his muscles, relieve his pain and calm him down. However, as he had examined a total of eighty-four prisoners that day, he did not have any further recollection of the applicant’s son or his problems.

The same day the prosecutor took a statement from the prison director who explained that, according to the closed circuit video recordings showing the inside of the prison, the applicant’s son had been brought to the infirmary at 5.19 p.m. by his fellow inmates. An ambulance had then been called and a prison guard had administered first aid. The ambulance had arrived at 5.45 p.m. and taken the applicant’s son to the hospital.

The prison guard who had administered first aid to the applicant’s son was also heard by the prosecutor on the same day and told the prosecutor that he had been asked to go to the prison’s infirmary some time between 5.25 p.m. and 5.30 p.m. When he had arrived the applicants’ son was still alive but having difficulties in breathing. He had then called the ambulance again and urged them to come at once because the state of the applicant’s son’s health had become critical. The ambulance had arrived at 5.45 p.m. When put in the ambulance on a stretcher the applicant’s son had been alive but his condition had been critical. His body had started to take on a “purple colour”. The prison guard had also got in the ambulance and the doctor in the ambulance had carried out cardiac massage. However the applicant’s son had died on the way to hospital.

On 27 March 2009 the prosecutor took statements from nineteen inmates who had witnessed the incident on 23 March 2009. The inmates told the prosecutor that they had been aware that the applicant’s son had been suffering from chest pains. They had also been aware that the applicant’s son had gone to the infirmary earlier that day to see the prison doctor. One of the inmates stated that he had accompanied the applicant’s son to the infirmary at around 3 p.m. but that the prison doctor had been about to leave for the day and had hastily prescribed him painkillers without giving him a proper medical examination. The applicant’s son’s condition had deteriorated after his return from the infirmary and he had been unable to get out of his bed for the roll call which took place at 5 p.m. After the roll call the inmates had carried him to the infirmary because he had been unable to walk unaided.

Two of the inmates who had carried the applicant’s son out of his wing told the prosecutor that the infirmary had been closed at the time and that they had instead taken him to the dentist’s office where they had waited for 15-20 minutes for a prison warden to arrive. They also stated that the telephones in the infirmary had not been working. When the prison warden arrived he tried to put an oxygen mask on the applicant’s son but then quickly took it off when the applicant’s son felt worse with the mask. The inmates then “put pressure on the prison warden to call an ambulance” and they waited a further 15-20 minutes for the ambulance to arrive.

On 30 March 2009 the applicant’s other son, Mr Orhan Olsoy, filed a petition with the prosecutor’s office and informed the prosecutor that his brother had had no previous health problems and that during his frequent visits to the prison his brother had told him that he was well and would be released soon. Mr Olsoy asked the prosecutor to find out why his brother had lost his life and requested that an investigation be conducted to establish whether the death had been due to anyone’s negligence. He also asked the prosecutor to determine whether there had been any delays in calling the ambulance and requested the prosecutor to secure in evidence the recordings from the prison’s security cameras.

Between 22 and 28 April 2009 the prosecutor questioned the deputy director of the prison and four other prison guards. They explained to the prosecutor how they had been informed about the deterioration of the applicant’s son’s condition and how they had then called the ambulance and sent him to hospital.

At the request of the prosecutor, the footage recorded by the prison’s security cameras was examined by crime scene examination experts from the Diyarbakır police headquarters on 5 May 2009. According to the report prepared by these experts, two persons could be seen carrying another person in their arms at between 5.19 p.m. and 5.38 p.m. The person was put on a stretcher at 5.45 p.m. and put in an ambulance at 5.46 p.m.

The applicant and her husband were questioned by the prosecutor on 8 May 2009. They both told the prosecutor that they had not been aware that their son had had any health problems. The applicant added that on one occasion some ten days before her son was imprisoned he had told her that “he was not well”, but had not elaborated as to the nature of his problem.

On 9 June 2009 the prosecutor wrote to the Forensic Medicine Institute in Istanbul and urged it to carry out the necessary examinations of the blood and tissue samples taken from the body of the applicant’s son. The prosecutor sent another reminder to the Forensic Medicine Institute on 16 July 2009.

The doctor and the paramedic who had taken the applicant’s son to the hospital were questioned by the prosecutor on 29 June 2009. They told the prosecutor that they had been called to the prison at 5.31 p.m. and that they had arrived there at 5.39 p.m. When they had put the applicant’s son in the ambulance he had stopped breathing and his heart had stopped beating. They had tried to resuscitate him and had arrived at the hospital at 6.10 p.m. where they had handed the applicant’s son to the doctors waiting by the main entrance.

The doctor working at the accident and emergency department of the hospital made a statement on 13 July 2009 and told the prosecutor that the applicant’s son had already died on his arrival at the hospital. He and his colleagues had then unsuccessfully tried for approximately thirty minutes to resuscitate him.

The Forensic Medicine Institute in Istanbul prepared its report on 13 August 2009 and stated that according to the toxicological examinations there was no alcohol, drugs or other substances in the samples taken from the body. The Institute considered it necessary to seek the opinion of its specialist board on the cause of death.

On 25 November 2009 the Expertise Board of the Istanbul Forensic Medicine Institute, which consisted of eight medical experts, issued its report. It confirmed the findings of the toxicology report summarised in the preceding paragraph and added that during the autopsy no signs of traumatic changes on the body had been observed. According to the report, the eight experts unanimously concluded that the exact cause of death could not be determined.

On 19 February 2010 the Diyarbakır prosecutor delivered a decision of non-prosecution and concluded that there was no evidence to show that an offence had been committed. The prosecutor also added that the applicant’s son had died of natural causes and that there had been no fault or negligence attributable to another person in his death.

The applicant lodged an objection against the prosecutor’s decision and argued, inter alia, that the fact that there had been no signs of trauma on the body of her son and that the toxicology reports had not shown any harmful substances in his body did not exclude that someone’s negligence or fault had caused his death. She submitted that the prosecutor should have made attempts to establish whether or not the prison authorities had shown due care and attention and whether the prison doctor had examined him adequately. In this connection, she also argued that the role played in her son’s death of the infirmary being closed when his condition worsened and the appropriateness of the medicines prescribed by the prison doctor, should also have been examined by the prosecutor.

The applicant added in her objection petition that, according to the eyewitnesses, her son had been complaining about having breathing problems as well as pain in his chest, heart and muscles. However the doctor, instead of at least referring her son to a hospital for a detailed examination and further tests, had given him painkillers. The fact that her son’s condition had worsened after having taken the painkillers showed that the doctor had acted negligently. Finally, she alleged that the ambulance had not been called immediately.

On 14 May 2010 the Siverek Assize Court dismissed the applicant’s appeal. That decision was served on the applicant’s lawyer on 15 June 2010.

According to a report drawn up and signed by a doctor on 13 March 2013, at the time of his entry into the prison a medical examination had been carried out on the applicant’s son and no medical problems had been observed during that examination.


KRŽEVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Robert Spano

The applicant, Mr Pero Krževski, is a Macedonian national who was born in 1936 and lives in Skopje.

The Macedonian Government (“the Government”) are represented by their Agent, Mr K. Bogdanov.

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

In 2000 the applicant lodged a civil action against his employer, claiming payment of salary supplements. With decisions delivered on 3 March and 22 October 2003 respectively, the Skopje Court of First Instance and the Appeal Court both rejected the applicant’s claim, considering it as having been withdrawn.

On 11 February 2005 the applicant applied to the first-instance court for the proceedings to be resumed. The first-instance court ordered the applicant to make his claim more specific. In a reply dated 15 December 2005, the applicant specified that the claim concerned the payment of a 20% increase of his salary, as well as another employment-related allowance. In this connection he referred to his written submissions of April 2001 in which he specified his claim.

On 19 December 2005 the first-instance court held that the applicant had not specified the value of his claim to an extend allowing the court to rule on it. Furthermore, the court pointed out that it could not take into consideration his submissions of 2001 since they had been made in proceedings which had terminated with a final decision in 2003. As the applicant could not seek that those final proceedings be resumed, the court rejected the applicant’s request. This decision was confirmed on appeal by the Skopje Court of Appeal on 15 June 2006.

On 11 August 2008 the applicant contested these decisions by means of an appeal on points of law. On 30 January 2008 the Supreme Court allowed the applicant’s appeal, quashed the lower courts’ decisions and remitted the case for fresh examination. The relevant parts of the decision read as follows:

“... In the present case, the first-instance court correctly ordered [the applicant] to make the claim more specific. According to [this] court, [the applicant] complied with this order and with submissions of 15 December 2005, he specified the claim ... According to the Supreme Court, the claim is (sufficiently) specified and the proceedings can continue. The lower courts’ decisions to reject the claim as incomplete (неуредна) are wrong.

In view of the foregoing, (the court) decided in accordance with ... the Civil Proceedings Act of 1998, which was in force when the first-instance court delivered its decision ...”

By decisions of 7 November 2008 and 21 May 2009 respectively, the first-instance court and the Appeal Court both dismissed the applicant’s claim on the merits.

On 21 July 2009 the applicant challenged these decisions by means of an appeal on points of law.

By a decision of 17 February 2011, the Supreme Court rejected the applicant’s appeal as inadmissible ratione valoris, finding that the value of the claim was below the statutory threshold specified in section 372 § 2 of the 2005 Civil Proceedings Act (see paragraph 14 below). The court established that the subject matter of the dispute was the payment of salary supplements. Since it did not concern “termination of employment”, which was specified, under section 372(3) of the 2005 Civil Proceedings Act, as a dispute in which an appeal on points of law was always allowed irrespective of the value of the claim, the court declared the applicant’s appeal inadmissible. It further stated that:

“The [applicant] did not specify the value of the claim in his action. In such circumstances, the value of the claim is to be determined on the basis of the amount of court fees paid. The [applicant] paid court fees in the amount of 600 denars (Macedonian denars, MKD), which corresponds to the claim value of MKD 40,000, which is below the (statutory threshold) of MKD 500,000. The appeal on points of law is accordingly inadmissible given the (low) value of the claim.”

This decision was notified to the applicant on 30 March 2011.

Section 368 §§ 1 and 2 of the 1998 Act provided that parties concerned could lodge an appeal on points of law against a second-instance final decision within thirty days of the service of that decision. An appeal would be inadmissible in a property-related dispute which, inter alia, concerned a pecuniary claim, if the value of the claim in the dispute as specified by the plaintiff did not exceed MKD 1,000,000.

Under paragraph 4 of that section an appeal was always allowed in disputes which concerned (i) maintenance; (ii) compensation claims for loss of maintenance due to death of the care provider; (iii) copyright disputes; (iv) industrial-property-related disputes; and disputes concerning unfair competition and anti-competitive behaviour.

Under section 372 §§ 2 and 3, parties can lodge an appeal on points of law if the value of the claim in the dispute exceeds MKD 500,000. An appeal is always allowed irrespective of the value of the claim in disputes concerning (i) maintenance; (ii) compensation claims for loss of maintenance due to the death of the care provider; (iii) labour disputes concerning termination of employment; (iv) copyright disputes; (v) industrial-property-related disputes and disputes concerning unfair competition and anti-competitive behaviour.

Under section 474, if a first-instance decision was delivered before the 2005 Act became operable, the proceedings are conducted under the rules that were applicable at that time. If the first-instance decision was set aside after this Act became operable, the proceedings continue under this Act.

Under section 477, the 2005 Act entered into force on 29 September 2005 and it became operable on 29 December 2005.


CASE OF KENZIE GLOBAL LIMITED LTD v. THE REPUBLIC OF MOLDOVA

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

Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra

The applicant is a company incorporated in the United Kingdom.

At the time of the events the applicant company was the creditor of company C. which, in its turn, was the creditor of company P. On 1 October 2005 the applicant company and company C. concluded an agreement by which the debt owed by company P. to company C. was assigned to the applicant company in lieu of the debt owed by company C. to the applicant company.

Later company P. became bankrupt and the insolvency procedure was commenced in its respect. On 10 May 2006 the applicant company requested that the Chişinău Economic Court allow it to replace company C. in the list of creditors of company P. In so doing, the applicant company relied on an agreement that it had concluded on 1 October 2005 with company C.

On 5 June 2006 the Chişinău Economic Court held a public hearing in the case and accepted the applicant company’s request. As a result the applicant company replaced company C. in the list of creditors of company P. with a debt of some 14,015,000 Moldovan lei (MDL) (the equivalent of some 901,000 euros (EUR)).

On 16 October 2006 company C. lodged an appeal against the above decision on the ground, inter alia, that the agreement of 1 October 2005 was faulty and that the persons who had signed it from both sides had acted ultra vires.

On 9 November 2006 the Supreme Court of Justice examined the appeal lodged by company C. in a hearing to which the applicant company had not been summoned to appear. The other parties participated in the hearing. The Supreme Court upheld the appeal and reversed the judgment of the lower court. In particular, the Supreme Court held that the person who had signed the agreement of 1 October 2005 on behalf of company C. had acted ultra vires, because at the relevant time she had been on maternity leave. The decision of the Supreme Court of Justice was final and the applicant company was excluded from the list of creditors of company P.


Alvina Gyulumyan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant, Mr Vasile Rizea, is a Romanian national, who was born in 1953 and lives in Pitești. He was represented before the Court by Ms E. D. Dragomir, a lawyer practising in Bucharest.

The Romanian Government (“the Government”) were represented by their Agent, Mrs I. Cambrea, from the Ministry of Foreign Affairs.

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

The applicant was involved in a fraud case against S.L., G.N., M.M. and M.N. concerning the sale of a house. The applicant's civil complaints made the object of the case files no. 3387/P/2000 and no. 486/P/2000.

On 28 January 2003 the applicant and P.C. lodged a criminal complaint and a joined civil claim against twenty-one public administration officers and the four above-mentioned private persons for alleged corruption with the National Anticorruption Office.

On 26 May 2003 the National Anticorruption Office remitted the applicant's complaint to the Pitești Court of Appeal. The prosecutor stated that an analysis of the applicant's complaint had disclosed no clues or information warranting an investigation of the alleged crimes by an anticorruption prosecutor.

On 30 May 2003 the prosecutor examined the applicant's complaint and recommended that it be treated as a complaint against the prosecutor's decisions in the fraud cases 3387/P/2000 and 486/P/2000. He confirmed that there was no evidence that the public administration officers (including judges, prosecutors) had committed the alleged corruption offences.

According to the Government, the prosecutor dismissed the applicant's complaint on 18 June 2003. The applicant complained before the Pitești District Court. His complaint was dismissed on 7 October 2004. The judgment of the first-instance court was confirmed by the Argeș County Court which dismissed the applicant's appeal on points of law on 28 March 2005.

On 16 March 2004 the applicant reiterated his complaint against the 25 perpetrators. His complaint was registered as file no. 527/2003.

On 23 March 2004 the prosecutor informed the applicant that his complaint did not disclose other acts than those invoked in case files no. 3387/P/2000 and 486/P/2000.

Unsatisfied with a decision allegedly delivered by the prosecutor attached to the Pitești Court of Appeal on 3 June 2003, the applicant and P.C. lodged a complaint before the Pitești Court of Appeal. The court dismissed the action for lack of substance on 15 April 2004. It noted that the applicant's complaints in the fraud cases 3387/P/2000 and 486/P/2000 were still pending before the prosecutor's office and no decision to discontinue the criminal proceedings had been delivered on 3 June 2003.

By a decision of 29 June 2004, the High Court of Cassation and Justice upheld the first-instance judgment dismissing the action.

In the meantime, the examination of the applicant's first complaint was pending and would eventually result in the decision delivered by the Argeș County Court on 28 March 2005 (see paragraph 8 above).

The relevant provisions of the Code of Criminal Procedure regarding the initiation of a civil action related to criminal proceedings are the following:

“The object of a civil action is to establish civil liability against the defendant and any other party that bears civil liability.

A civil action may be joined to a criminal action within a criminal trial if the injured person claims for damages as a civil party (...)”.

“The injured person may join the proceedings as a civil party against the accused person or the defendant and against the party that bears civil liability.

Joining the proceedings as a civil party may be done either during the criminal investigation or in court, before the charges are read out (...)”.

“An injured person who did not sue for civil injury in the criminal trial may bring an action in the civil court for compensation for the pecuniary and non-pecuniary damage caused by the offence.

The civil trial shall be postponed until a final decision has been given in the criminal case (...)”.

“The injured person who can sue for civil injury in the criminal trial may initiate an action in the civil court if the criminal court, by its final decision, has not solved the civil action (...)”.


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

The applicants, Ms Seda Doshuyeva, who was born in 1978 and Mr Ismail Yusupov, who was born in 1998, are Russian nationals who live in Grozny. They were represented before the Court by lawyers of Stichting Russian Justice Initiative (in collaboration with NGO Astreya), an NGO based in the Netherlands with a representative office in Russia. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.

The application was communicated on 8 June 2011, and on 7 February 2012 the parties exchanged their observations on the admissibility and merits of the application. On 24 September 2015 the Court requested additional factual information from the parties.

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

The applicants are the wife and the son of Mr Isa Yusupov, who was born in 1969.

At about 3 p.m. on 19 June 2002 Mr Isa Yusupov was driving with Mr Alisan (also known as Iriskhan) Bakayev through the Voykovo (sometimes spelled Voikovo) settlement in Grozny when their car was stopped in Leningradskaya Street by a group of about twenty military servicemen who had been taken there in two armoured personnel carriers (APCs) and two UAZ vehicles. It appeared that the servicemen were manning a mobile military checkpoint.

In the presence of a number of local residents both men were blindfolded and taken away in the APCs. The applicants’ relative, Mr Isa Yusupov, has not been seen since then.

In response to the Court’s request for a copy of the investigation file, the Government submitted copies of the documents from the initial criminal case file no. 50109 (in the documents submitted the number is also referred to as 55109) that was opened into the abduction of just Mr Bakayev. This file has 36 pages and chronicles the steps taken by the investigation between July 2002 and May 2010. In response to the Court’s request for additional information, the Government submitted copies of the updated criminal case file no. 50109, which contains 418 pages concerning the investigation into the abduction of both Mr Bakayev and Mr Isa Yusupov and chronicles the steps taken by the investigation between May 2010 and August 2014. The relevant information may be summarised as follows.

On 2 July 2002 Ms L.D. complained to the prosecutor’s office that her husband, Mr Bakayev, together with “a man called Isa” had been abducted.

On 12 July 2002 Ms L.D. was questioned. She stated that her husband Mr Bakayev had been abducted by servicemen in two APCs on the bridge in the Voykovo settlement.

On 26 July 2002 the Grozny town prosecutor’s office initiated a criminal investigation into the abduction of Mr Bakayev in response to his wife’s complaint. The case file was given the number 50109. The decision in this regard stated:

“On the evening of 19 June 2002 Mr A. Bakayev and a man named Isa were abducted on the bridge in the Voykovo settlement by unidentified men in camouflage uniforms driving two APCs. The abduction of Mr Bakayev took place in the presence of civilians and military servicemen stationed in Voykovo...”

In their submission on the admissibility and merits of the case of 20 December 2011 the applicants stated that they “had been informed about it [the decision to open criminal case no. 50109]” without specifying the date or the circumstances under which they were informed thereof.

’s abduction, whereas the relatives of Mr Bakayev had been informed thereof on 26 July 2002.

On 8 August 2002 the investigators ordered the Zavodskoy district department of the interior (“Заводской районный отдел внутренних дел”) (hereinafter the Zavodskoy ROVD) in Grozny to carry out operative search measures stating, amongst other things, the following:

“The investigation established that... Mr A. Bakayev and an unidentified person known as Isa were taken away to an unknown destination by unidentified men wearing camouflage uniforms in two APCs. The abduction took place in the presence of civilians and servicemen stationed in the settlement of Voykovo, specifically, in the presence of serviceman A.E....”

In October 2002 the investigators forwarded requests for information to various authorities, asking whether any special operations had been carried out on the date of the abduction of Mr Bakayev and if so, whether anyone had been detained. These requests did not yield any pertinent information.

On 26 November 2002 the investigation was suspended. The suspension decision referred only to the abduction of Mr Bakayev; it did not contain any references to the applicants’ relative Mr Isa Yusupov:

“...the present criminal case was opened on 26 July 2002 in connection with the abduction on 19 July 2002 of A. M. Bakayev.

The preliminary investigation established that on the evening of 19 July 2002 unidentified persons in camouflage uniforms had detained Mr Bakayev on the bridge in the Voykovo settlement and taken him to an unknown destination. His whereabouts have remained unknown since.

Taking into account that the time-limit for the preliminary investigation has been reached and all of the possible steps have been taken.... It has been decided to suspend the investigation in the criminal case...”

From the documents submitted by the parties it is apparent that between 2002 and 2010 the applicants neither complained of Mr Isa Yusupov’s abduction to the Zavodskoy ROVD nor did they maintain contact with the relatives of Mr Bakayev concerning the proceedings in criminal case no. 50109.

On 4 May 2010 the first applicant contacted the investigators in criminal case no. 50109. She submitted a request that the investigations department of the Zavodskoy district prosecutor’s office in Grozny grant her victim status in the criminal case as follows:

“ ...On 19 June 2002 my husband Mr Isa Yusupov, who was born in 1969, was detained by armed men in military vehicles in Leningradskaya Street in the Oktyabrskiy district of Grozny. My husband disappeared thereafter. In connection with this, the Oktyabrskiy district prosecutor’s office opened a criminal case.

A long time has passed since the incident and I have started to doubt the effectiveness of the criminal investigation. I therefore decided to have recourse to the [procedural] rights given to victims in criminal proceedings under Articles 42, 119121, and 123-125 of the Code of Criminal Procedure and Article 46 of the Russian Constitution... However, neither I nor my relatives have been granted victim status in the criminal case. For that reason I have not been able to participate in the proceedings to the extent allowed by the Code of Criminal Procedure...

Mr Isa Yusupov is my husband. The crime committed against him has caused me psychological and material damage.

On the basis of the above I request that you:

Grant me victim status in the criminal case opened in connection with the disappearance of my husband Isa Yusupov;

Inform me of the progress in the investigation of the criminal case;

Resume the investigation if it has been suspended;

Inform me of the results of the examination of the present request... ”

On 21 May 2010 the investigation in criminal case no. 50109 was resumed. The decision stated:

“... On 19 June 2002 Mr A. Bakayev and Mr Isa Yusupov were detained and taken away in two APCs by unidentified men wearing camouflage uniforms.

In connection with this, on 26 July 2002 the Grozny prosecutor’s office opened criminal case no. 50109 under Article 126 of the Criminal Code.

On 26 November 2002 the investigation in the criminal case was suspended under part 1 of paragraph 1 of Article 208 of the Code of Criminal Procedure, that is to say for failure to identify the perpetrators.

On 20 May 2010 Ms S. Doshuyeva, the wife of the abducted Mr I. Yusupov, requested that the Zavodskoy district investigations department grant her victim status in the criminal case.

In connection with the decision to grant Ms S. Doshuyeva victim status in the criminal proceedings and her questioning on the matter, it is necessary to resume the investigation in criminal case no. 50109...”

On the same date, 21 May 2010, the first applicant was granted victim status and questioned. She stated that on 19 June 2002 her husband had left by car to do an errand, together with fellow villager Mr Bakayev, and had not returned home. Several days later she had found out from her neighbours that her husband Mr Isa Yusupov and Mr Bakayev had been abducted by armed men in APCs.

On the same date, 21 May 2010, the first applicant requested the investigators to grant her access to the contents of criminal case file no. 50109. It is unclear whether any reply was given to her request.

On 22 May 2010 the investigation was suspended and then resumed on 4 August 2011. The proceedings were subsequently suspended and resumed on several occasions; the last suspension took place on 6 August 2014. The proceedings are still pending.

22Октябрьский районный отдел внутренних дел“) (hereinafter the Oktyabrskiy ROVD) in Grozny to produce a copy of the first applicant’s complaint concerning Mr Isa Yusupov’s abduction, which had been lodged on 20 June 2002. In reply the police informed the applicants that the document no longer existed as the relevant registration logs had been destroyed following expiry of the time-limit for their storage.

23’s abduction to the police in June 2002, but had no written proof of the complaint. She also stated that at the end of June 2002 she had been approached by a military officer who had threatened to harm her and her relatives if she were to continue searching for her husband. Out of fear for her life and that of her relatives, on an unspecified date in 2002 she had moved to Moscow and only returned to the Chechen Republic in 2010. The applicants did not enclose any documents substantiating this information other than the first applicant’s written statement dated 17 October 2015.

According to the Government, the applicants did not lodge any official complaints concerning their relative’s alleged abduction within the framework of the criminal case.

On 25 March 2004 the Leninskiy district court of Grozny granted the first applicant’s request and declared Mr Isa Yusupov a missing person as of 19 June 2002. The decision, which made no reference to proceedings in criminal case no. 50109 and referred only to proceedings in criminal case no. 40120, stated:

“...Ms Doshuyeva requested the court to declare her husband a missing person on the basis of the following:

At about 11 a.m. on 19 June 2002 her husband Mr Isa Yusupov had left home and had not returned. She has had no news of him since that date. In connection with this occurrence, the Oktyabrskiy district prosecutor’s office in Grozny had opened a criminal case. The measures taken by the investigation failed to produce results. According to Ms Doshuyeva, the declaration of her husband as a missing person is a prerequisite for preparing a pension application in respect of the loss of a breadwinner...

According to the information statement of the Oktyabrskiy district department of the interior in Grozny no. 32/34 of 24 December 2003, [on an unspecified date] the Oktyabrskiy district prosecutor’s office opened criminal case no. 40120 in connection with the abduction of Mr Isa Yusupov on 19 June 2002. The whereabouts of Mr Isa Yusupov remain unknown.

Considering that the establishment of the above fact is of legal significance for the applicant, and that it is impossible otherwise, non-judicially, to establish that fact, on the basis of the above the court, decides ...

To recognise Mr Isa Yusupov as a missing person as of 19 June 2002...”

The decision became final on 5 April 2004.

According to the Government’s submission of 15 November 2015, criminal case no. 40120 was erroneously mentioned in the court’s decision as the criminal case concerning the investigation of the abduction of another person, Mr Adam S.


Preliminary objection joined to merits and dismissed (Article 35-3-b - No significant disadvantage);Remainder inadmissible (Article 35-1 - Six month period);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to receive information);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1961. According to the latest information in the Court’s possession, he was serving a sentence in the Pravieniškės Correctional Home.

On 30 May 2006 the applicant wrote to the Ministry of Education and Science (Švietimo ir mokslo ministerija, hereinafter “the Ministry”), requesting information about the possibility of enrolling at university. He mentioned having graduated in 1996 from the Medical Faculty of Vilnius University. The applicant stated that he wished to pursue studies via distance learning to acquire a second university degree (studijuoti neakivaizdiniu būdu aukštojoje mokykloje), this time in “law with a specialisation in human rights” (teisės studijos su žmogaus teisių pakraipa). The applicant mentioned that he was a prisoner and thus could not physically attend the place of study.

In a letter of 12 June 2006 sent to the applicant at the Pravieniškės Correctional Home, the Ministry of Education and Science wrote that information about the study programmes could be found on the website <www.aikos.smm.lt>. This website states that it belongs to the Ministry of Education and Science, and is administered by a public entity, the Centre for Information Technologies in Education (Švietimo informacinių technologijų centras), which is a public institution founded by the Ministry of Education and Science. The website contains information about learning and study possibilities in Lithuania. The website states the following about the aims of the “AIKOS” system:

“AIKOS is an open system for providing information, consultation and guidance, the main aim of which is to provide information about opportunities for learning in Lithuania.

AIKOS provides the possibility of searching information about professions, qualifications, studies and study programmes, educational and science institutions and rules of admission...

AIKOS allows users to submit a question to a consultant and to receive a reply ...

The information provided in the central part of the AIKOS website under the sections ‘I wish to learn’, ‘I wish to study’, ‘I wish to improve my qualifications’ reflects only the current and most pertinent information relevant to the current academic year and is aimed at those who wish to enter university, vocational school, or a secondary school, or who wish to improve their qualifications. The site also contains historical data regarding education ...

AIKOS provides information to three groups of users: adults, children (up to fourteen years of age) and English speakers. The users may use more functions after they have registered on this site.

The AIKOS website is refreshed daily, to reflect information about education and science institutions, study and learning programmes and the qualifications a person receives upon graduating from those programmes, ... programmes for improving qualifications... It also provides information from the Lithuanian Labour Exchange about job vacancies and unemployment. The latter information on the AIKOS website is renewed monthly...”

On 28 June 2006 the applicant wrote to the Pravieniškės Correctional Home authorities, noting the reply by the Ministry and asking to be granted Internet access to a website “where there was information from the Ministry about studies, as well as to [the applicant’s] email accounts hosted on the Internet sites <www.one.lt> and <www.yahoo.com>”.

On 1 July 2006 the Pravieniškės Correctional Home governor replied that the prison authorities did not consider the Ministry’s reply to be comprehensive. In particular, the Ministry had not taken into account the applicant’s particular situation – namely that he was in prison. The prison considered that the Ministry should have provided a comprehensive reply in writing. According to the prison governor, “given that the Ministry’s reply did not satisfy [the applicant], the latter should write to the Ministry again, so that he is provided with a comprehensive reply”.

The prison governor also informed the applicant that the request to have Internet access could not be granted because at that time none of the legislation allowed the prisoners to use the Internet or to have a mailbox. For that reason, the Pravieniškės Correctional Home authorities were unable to grant the applicant’s request.

The applicant then lodged a complaint with the Department of Prisons (Kalėjimų departamentas), arguing that none of the laws prohibited him from obtaining information from a State institution electronically. The applicant referred to the Ministry’s reply and asked to be granted Internet access.

On 26 July 2006 the Department of Prisons responded that the legal instruments regulating the execution of sentences did not permit prisoners to use the Internet. It was suggested that the applicant again ask the Ministry to provide the information he sought.

On 1 August 2006 the applicant started court proceedings, referring to his correspondence with the Ministry and challenging the Pravieniškės Correctional Home authorities’ decision not to grant him access to Internet.

In their written response to the court, the Pravieniškės Correctional Home authorities noted that, although prisoners had a right to address requests and complaints to the State authorities under Article 100 of the Code of the Execution of Sentences (see paragraph 29 below), this meant correspondence by regular post and not via electronic communication. Furthermore, the use of mobile phones in prisons was prohibited so that prisoners could not continue their criminal activity whilst serving a sentence. According to the Pravieniškės Correctional Home authorities, a number of fraudsters had already cheated people of large sums of money with the help of mobile phones. If the prisoners had the right to use Internet, they could pursue criminal activities and could also coordinate the activities of criminal organisations. Lastly, given that postal correspondence between prisoners was not permitted, providing prisoners with access to the Internet would make that prohibition pointless. The same was true regarding the prohibition in the 1st Annex of the Code of the Execution of Sentences of the prisoners’ possession of topographic maps (see paragraph 30 below).

The Prisons Department also asked the court to dismiss the applicant’s complaint, arguing that although Article 96 of the Code of the Execution of Sentences permitted prisoners to use computers (see paragraph 29 below), this did not encompass the right to Internet use. There was no right under Lithuanian law for a prisoner to be provided with Internet access.

On 2 February 2007 the Kaunas Regional Administrative Court dismissed the applicant’s complaint. Having reviewed the legal provisions regulating prisoners’ conditions of detention, the court pointed out that the prisoners could communicate with State institutions by postal correspondence and that their letters had to be sent via the prison authorities (see paragraph 33 below). Giving Internet access to prisoners would not be compatible with those legal norms. However, as the Internet was not an object, it was not possible to list Internet among the “objects” which the prisoners were not allowed to have in prison. At the same time, from the existing ban on telephone and radio communication devices in prison it was obvious that this ban included the Internet. Such prohibition was aimed at preventing crimes being committed in prison. The court also observed that the requirements were set by order of the prison authorities and were therefore mandatory for the applicant, as he was under an obligation to obey prison orders.

The applicant appealed, disputing the lower court’s interpretation of domestic law. He also argued that the lower court had ignored the fact that the core of his complaint was the restriction of his right to education and the right to obtain information. The applicant relied on Article 25 of the Constitution (see paragraph 28 below), and Articles 10 and 14 of the Convention.

The Pravieniškės Correctional Home authorities replied, indicating that there was “a secondary school (vidurinė mokykla) in the prison where students could access all the literature necessary for their studies. The secondary school graduation exams showed good results”. Furthermore, the prisoners could pursue computer literacy studies organised by the Elektrėnai vocational school (Elektrėnų profesinio rengimo centras), and that institution had not asked for Internet access. The prison thus considered that Internet access, or the lack thereof, had no impact on the quality of studies.

On 11 December 2007 the Supreme Administrative Court dismissed the applicant’s complaint. The court noted that, for its users, the Internet provided very wide opportunities to use email, to obtain information, to download files, and to sell or buy things. The Internet could be used for more than merely educational purposes. However, the right to use the Internet was not absolute and this right could be restricted to certain social groups. This stemmed from Article 10 of the Code of the Execution of Sentences (see paragraph 29 below). There was no legal provision in Lithuania permitting prisoners to use the Internet. Even so, the prisoners’ right to have computers could not be interpreted so widely as to encompass the right to have Internet access. The Supreme Administrative Court lastly noted that if prisoners had access to the Internet, the prison authorities would be hampered in their fight against crime by being unable to fully monitor the prisoners’ activities.

On 30 June 2006 the Elektrėnai Vocational Educational Centre (Elektrėnų profesinio mokymo centras) awarded the applicant a diploma in computer skills.

According to the Government, in 2007-2008 the applicant had attended English language courses and computer literacy courses organised by a secondary school in Kaunas region.

In 2006 the applicant started court proceedings, arguing that in July 2006 he had been held in the Lukiškės Prison for seven days in degrading conditions. Among other things, he also argued that the Lukiškės Prison authorities had seized the personal computer which the applicant had brought with him into prison.

On 15 January 2007 the Vilnius Regional Administrative Court dismissed the claim by the applicant as unfounded.

In a final ruling of 12 October 2007, the Supreme Administrative Court concluded that the computer had been unlawfully seized by the Lukiškės Prison authorities. However, the court found that the conditions of the applicant’s detention had been satisfactory overall, except for a few minor details, and that the gravity of those violations was not such as would amount to inhuman or degrading treatment.

In 2006 the Pravieniškės Correctional Home authorities granted the applicant’s request for an extended visit by his parents. However, the applicant later committed a disciplinary offence, and for that reason the extended visit was denied.

On 4 May 2007 the Kaunas Regional Administrative Court upheld the refusal of the extended visit as legitimate.

By a final ruling of 6 February 2008 the Supreme Administrative Court upheld the lower court’s decision.