Remainder inadmissible (Article 35-3-a - Manifestly ill-founded);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance;Legal assistance of own choosing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Yonko Grozev

The applicant was born on 12 May 1988 and at the time of his most recent communication with the Court was detained in Toretsk (previously Dzerzhynsk).

Early on the morning of 16 February 2005 Mrs D., a night security guard at a shop in Toretsk, was found dead and partially undressed at her place of work, with injuries on her head and genitals. It was established that a grinder tool had also gone missing. The prosecutor’s office instituted criminal proceedings on the same day and over the following days proceeded to interview a number of witnesses.

At about 10 a.m. on 20 February 2005 two police officers arrived at the applicant’s home and asked him, at the time sixteen years of age, and his father to go to the police station with them.

Once at the police station, the applicant was separated from his father and questioned as to whether he had any information about the grinder which had disappeared from the shop. According to the applicant, then the police had started urging him to plead guilty to the murder and theft. According to him, as he repeatedly denied those allegations, three officers allegedly beat him on various parts of his body and threatened him that he would be raped in prison.

At an unspecified time the same day the applicant’s father and grandfather, who lived in the same house as the applicant, made statements to the police about the presence of the grinder in their house. The father stated that the applicant had apparently brought the grinder home around the time of the murder and had originally told him that a stranger had been offering the grinder for sale. On learning that the police were searching for a grinder, the applicant had told him the story he had told the police (see paragraphs 8 above and 13 below). However, in the applicant’s story as retold by the father, the grinder was found in a different street. On hearing this, the father had hidden the grinder. The grandfather’s account of events was similar to the father’s. On the same day the police also obtained a statement of Mr S., the applicant’s friend, about the time they had spent together on the night of the murder and the circumstances under which they had parted.

From 12.30 p.m. to 1.20 p.m. the police went to the place where the applicant’s father had hidden the grinder. The father pointed to where the grinder was and the police seized it.

At about 3 p.m. the applicant signed a document explaining his rights as a suspect, including the right to remain silent and to consult a lawyer before his first questioning. When signing the document, the applicant added that he did not object to L. representing him. The applicant alleged that he had mistakenly understood that L. had been asked to appear on his behalf by his parents. In fact, L. had been asked to represent the applicant by the investigator.

Subsequently the Qualifications Commission of the Bar of Ukraine, at the time the highest authority in charge of the advocates’ qualifications and discipline, examined the applicant’s parents’ complaint concerning the procedure used in the appointment of L. The Commission established that there was no evidence that L. had been appointed through a bar association, as required by law, in particular there was no order of the bar association or agreement with the client appointing L. It also established that there was no evidence that the investigator had issued a formal decision appointing L. as the applicant’s lawyer, as he had been required to do by law.

At 3.20 p.m. the applicant was questioned in the presence of L. He stated that on the night of the murder he had been walking home after a night out with friends. He had observed a stranger running down the street with a grinder and had started running after him. Once the man had dropped the grinder, the applicant had picked it up and run away. When he had brought the grinder home he had said to his father that someone had been offering to sell a grinder. When he had learned the next day that a night security guard had been killed and that grinders had been stolen, he had revealed the truth to his father, who had then hidden the grinder.

At 3:55 p.m. the applicant was examined by a forensic medical expert, who concluded that he had several light injuries that had been inflicted two to seven days before the examination.

At 4 p.m. the investigator K. drew up an arrest report, whereby the applicant was arrested on suspicion of D.’s murder. According to the report, the applicant was being arrested on the grounds that “eyewitnesses indicate the person who committed the crime”. According to the Government, the applicant’s parents were informed of the applicant’s arrest at that time. According to the applicant, no such notification was made.

At the same time most of the applicant’s clothes were seized for a forensic examination.

The applicant’s father was taken to the family home to accompany the police during a search.

At about 6.20 p.m. the police completed the search of the applicant’s home, seizing some clothes. According to the applicant it was only then that the police officers who had conducted the search brought replacement clothes from the applicant’s home to the police station.

According to the applicant, he was left handcuffed at the police station, wearing just his underwear, for the entire period from the seizure of his clothes until the end of the search and return of the police officers who conducted it, feeling very cold and vulnerable. During that time police officers continued urging the applicant to confess to the murder and beat him with plastic water bottles.

On the evening of 20 February 2005 the applicant was placed in a cell in the police’s temporary detention facility with two adult detainees, K., born in 1975, and O., born in 1956, who were at the time registered as suffering from drug addiction. O. had also been suffering from tuberculosis and had had a prior conviction (see paragraphs 62 and 63 below). It is unclear whether the applicant knew of the above background of his codetainees at the time he had been held with them.

According to the applicant, the two other detainees were secret police informants. They advised the applicant that as he was a minor and if he chose to cooperate the investigative authorities would prosecute him on less serious charges and he would not receive a real prison sentence.

K. was diagnosed with tuberculosis in November 2005. O. and K. died in January and December 2006 respectively, the former allegedly of an overdose and the latter of a disease.

The applicant continued to be detained in the cell with O. and K. until a court detention order arrived on 23 February 2005 and he was transferred to the remand prison (see paragraph 26 below).

According to the applicant, on the morning of 21 February 2005 two police officers took him out of his cell without registering it. They threatened to make sure he got a long prison sentence, to charge him with rape, which would lead to him being raped and harassed in prison by other inmates, and to create “problems” for his family, unless he confessed. Unable to withstand such pressure, the applicant agreed to copy by hand a statement prepared for him by the police officers, acknowledging his guilt for murder in “self-defence”.

According to the authorities, on the morning of 21 February 2005 the applicant asked to see the officer in charge of the police detention facility.

The applicant then made a handwritten statement of surrender to Officer G., the head of the police detention facility. In his statement, the applicant noted that early on 16 February 2005, while in a state of alcoholic intoxication, he had decided to burgle the shop. Having suddenly run into the victim, who had tried to attack him with a grinder, he had defended himself and had hit her with a brick. When she had become unconscious, the applicant, scared of what had happened, had carried her to a couch and had undressed her to make it look as though there had been a rape. Then he had picked up the grinder and taken it home.

Later on the same day the applicant repeated the above confessions in a formal questioning session in the presence of his lawyer, L.

On the same day the applicant, unaccompanied by L., was taken to an identification parade, where Y., a shop assistant who had been working on a night shift at a kiosk close to the scene of the crime on the night of the murder, picked the applicant out of a four-person line-up as the person she had seen by her kiosk shortly before D. had been killed. In the course of one of the subsequent trials Y. stated that she had not identified the applicant with total certainty but had merely thought that there was a resemblance between him and the person she had seen that night.

On 22 February 2005 the applicant was charged with murder without aggravating circumstances and theft. Accordingly, his procedural status changed from that of “suspect” to “accused”. Questioned on the same day in the presence of L. the applicant repeated his previous confession.

On 23 February 2005 the Toretsk Court remanded the applicant in custody pending the completion of the investigation. That decision was not appealed against and became final.

On the same day the applicant’s cellmates, K. and O., were released.

On 25 February 2005 the applicant was transferred from the police detention facility to the remand prison in Bakhmut (at the time Artemivsk).

On 31 March 2005 the applicant was questioned in the presence of B., a lawyer engaged by his parents. He stated that he confirmed his prior statements about the murder. In the course of the subsequent investigation he was again questioned in the presence of the same lawyer and made detailed statements that repeated his confession.

On 6 April 2005 a commission of psychologists and psychiatrists produced a report at the request of the investigator concerning the applicant’s mental state at the time of the crime and at the time of his examination by the experts. The experts concluded, in particular, that the applicant, according to his own account, had committed the killing in self-defence, without premeditation and through an unexpected confluence of circumstances. As a result, he had suffered a serious shock and confusion. At the remand prison he had suffered from sleep troubles, fear, and confusion and had displayed inappropriate behaviour. When examined by a prison psychiatrist he had been diagnosed with an acute reaction to stress, put in the prison’s medical wing and treated with sedatives, which had helped.

In the course of the trial, conducted in the presence of his lawyer A.Kh. and his mother acting as a lay defender, the applicant confirmed the account of the attack on D. which he had given in the course of the pre-trial investigation.

On 21 July 2005 the Toretsk Court convicted the applicant of murder without aggravating circumstances and theft and sentenced him to seven and a half years’ imprisonment.

On 5 August 2005 the applicant, represented by his parents and a new lawyer, Y.K., appealed against the judgment. Additional appeals were also lodged by them on later dates. In the appeals the applicant retracted his confessions as false. He and his representatives alleged that the confessions had been extracted from him under physical and psychological pressure from the police, namely that he had been subject to “physical pressure”, “threats and beatings”, “moral and physical influence”, that his statement of surrender “resulted from beatings” (“применены меры силового давления”, “угрозами, избиваниями”, “моральные и физические воздействия”, “выбита явка с повинной” respectively). According to him, he had been told that unless he confessed to murder he would be falsely accused of rape making his life in prison extremely difficult. He stated that two cellmates at the police detention facility also urged him to confess. He also noted that he had kept to his initial confessions until his conviction because his cellmates and the police had told him that the police would make his life difficult in prison if he told anyone of the pressure on him. On the other hand, they had assured him that if he chose to cooperate with the police they would make sure the charges against him were not serious and that he would be released from custody right after his trial. Accordingly, he had said nothing to his lawyers about his ill-treatment.

The prosecutor also appealed, in particular arguing that the sentence was excessively lenient.

On 4 October 2005 the Donetsk Regional Court of Appeal (“the Regional Court”) quashed the judgment of 21 July 2005 and returned the case for further investigation. The court noted that the judgment had been poorly reasoned. As far as the motives for the applicant’s actions were concerned, it had also been based heavily on the applicant’s confessions, without sufficient corroboration from other evidence. The description of the crime scene, for instance that the lock had been sawn off rather than broken off, had not matched the trial court’s conclusion, based on the applicant’s account, that the applicant had simply been exploring the shop out of curiosity. The victim had also had unexplained injuries on her genitals.

On 19 December 2005 and on several subsequent occasions the investigators attempted to question the applicant within the framework of the further investigations. However, he refused to answer any questions and denied any involvement in the crimes he had been charged with.

On 11 and 12 January 2006 the investigator reclassified the charges against the applicant from simple murder to aggravated murder for gain, and from theft to robbery. The applicant was also charged with theft of a friend’s cell phone.

On 17 February 2006 the Regional Court released the applicant from custody, finding that a further extension of his detention would be in breach of the applicable procedural time-limits.

On 21 April 2006 the applicant’s case was submitted for a retrial.

On 10 May 2006 the Toretsk Court again remanded the applicant in custody. It held that while the applicant had no prior convictions and had positive character references, he had no employment and had been charged with grave offences. Accordingly, it held that detention was necessary to prevent the applicant from absconding or interfering with the investigation and to ensure his compliance with procedural decisions. No time-limit for his detention was fixed in that decision or in those made on 30 November 2006, 21 May 2007, 24 July and 30 December 2008, and 27 May 2009 (see below).

On 30 November 2006 the Toretsk Court returned the case for further investigation and ruled that the applicant should remain in custody. The court based its decision on the gravity of the charges which, according to the court, made the applicant likely to abscond.

On 21 March 2007 the applicant’s case was submitted to the Regional Court for a retrial.

On 21 May 2007 the Regional Court again sent the case back for further investigation and, without giving reasons, ruled that the applicant should remain in custody.

On 25 January 2008 the Regional Court convicted the applicant of robbery and the murder of D.

On 24 July 2008 the Supreme Court quashed the conviction, returning the case for further investigation. The Supreme Court also ruled that the applicant should remain in custody. It gave no reasons for the latter part of its decision.

On 30 December 2008 the Regional Court returned the case, which in the meantime had been re-submitted to it, for further investigation. It also ruled that the applicant should remain in custody. By way of reasoning it stated that there were no grounds to order his release given that, in view of the gravity of the charges against him, it could not be ruled out that the applicant would attempt to abscond. On 9 April 2009 the Supreme Court quashed that decision.

On 27 May 2009 the Regional Court committed the applicant for trial and ruled that he should remain in custody for the same reasons as given in the order of 10 May 2006 (see paragraph 41 above).

In the course of the final retrial the applicant denied any involvement in the attack on D. and said that he had found the grinder, describing essentially the same circumstances as on 20 February 2005 (see paragraph 13 above). To explain the presence of his fingerprint in the shop where the victim had been killed he stated that he had bought cigarettes there on 15 February 2005.

On 11 November 2009 the Regional Court convicted the applicant of robbery and aggravated murder and sentenced him to thirteen years’ imprisonment. In particular, it made the following findings.

(a) It found established that the applicant had broken into the shop intending to burgle it, had discovered D. sleeping, had repeatedly hit her on the head with a brick and then, after she had become unconscious, had inserted the neck of a vodka bottle into her vagina.

(b) In finding the applicant guilty, the court referred to various pieces of evidence, including forensic examinations, witness statements and the applicant’s confessions “given by him when questioned as a suspect and as an accused” (see paragraph 26 above), and the presence of the applicant’s fingerprint at the crime scene. In particular, the trial court referred to the pre-trial identification of the applicant by witness Y. and to the testimony of V.B., who had seen the applicant near the shop around the time of the murder. The court considered the applicant’s explanation for the presence of his fingerprint in the shop unconvincing since he had first mentioned the supposed visit to the shop on 15 February 2005 in the course of the retrial and had not previously mentioned that visit.

(c) The court rejected the applicant’s argument that his confessions had been inadmissible because they had been obtained under duress. It noted in particular that there was no evidence that the applicant had suffered any physical injuries at the hands of the police. Moreover, the applicant had consistently repeated his confessions in the presence of his lawyers, mother, and psychiatric experts in the course of the first investigation and trial. His parents had voluntarily paid the victim’s burial costs. Still, the applicant’s confessions had only partially reflected the truth. In particular, according to the forensic and other evidence, D. had been raped with a vodka bottle, which was not in line with the applicant’s initial statements that he had accidentally killed her after being surprised by her and had then run away almost immediately.

(d) The absence of the applicant’s lawyer from the identification parade on 21 February 2005 had not breached the applicant’s defence rights since he had not made any statements on that occasion and had simply been physically shown with other men in the line-up to the witness Y. through a one-way glass partition. It had been Y., and not the applicant, who had actively participated in that investigative measure, and therefore it had not had any impact on his chosen defence strategy. Moreover, contrary to the applicant’s submissions, Y.’s statements concerning the applicant’s presence near the crime scene on the night of the murder had been consistent with the statements of other witnesses.

(e) On an application by the defence the court ruled certain expert evidence inadmissible.

(f) While the statement in the arrest report that “eyewitnesses indicate the person who had committed the crime” (see paragraph 15 above) had been technically incorrect in the applicant’s case, the discovery of the grinder in the applicant’s home had in fact constituted an independent legal basis for his arrest. Accordingly, the Regional Court refused to declare the applicant’s arrest unlawful.

In an appeal to the Supreme Court the applicant gave the account of alleged ill-treatment by the police set out above. He stressed, however, that he had managed to withstand most of the pressure from the police. What had made him finally agree to plead guilty to a murder he had not committed had been the threat that he would be charged with rape and that that would lead to him being raped in prison. That threat had had a particularly strong impact on him given that he had already been made to spend several hours in a state of undress and vulnerability. He had chosen the false confession as a lesser evil. He had then maintained his confession throughout the trial because he had been assured by the lawyer B., who had good relations with the investigator in charge of the case, that the trial court would reclassify the charges against him from murder to a lesser charge of a “killing committed while exceeding the limits of legitimate defence”. He had hoped that such a reclassification would allow him to get probation instead of an actual prison sentence. It was not true that, as stated by the Regional Court, he had repeated his confession to psychiatrists. In fact the investigator had assured him that the psychiatric assessment was prearranged to allow for reclassification and its results would be worded accordingly. The applicant had not talked to the experts and his mother assured him that she had arranged for the psychiatrists’ report to be worded in such terms that it may justify reclassification of charges against him.

On 3 June 2010 the Supreme Court upheld the above judgment and it became final.

It would appear that the applicant first raised his allegations of illtreatment in his appeals against his first conviction (see paragraph 34 above). In those appeals his allegations were framed in rather general terms and were limited essentially to allegations of “beatings” and “psychological pressure”. He also stated, more specifically, that he had been told that, unless he confessed, charges of rape would be brought against him and this would make his life in prison extremely difficult.

Afterwards the applicant’s parents also lodged complaints about his alleged ill-treatment with the prosecutor’s office. It appears that the applicant’s mother lodged first such complaints on 23 December 2005 and 16 January 2006. The Court has not been provided with copies of those complaints.

On 26 January 2006 the Toretsk prosecutor’s office, in response to the applicant’s mother’s complaint of 16 January 2006, refused to institute criminal proceedings in relation to the applicant’s complaints for lack of a corpus delicti in the police officers’ actions, concluding that there was no evidence of any physical or psychological illtreatment. The prosecutors referred essentially to the lack of medical evidence of any injuries suffered by the applicant at the time of the alleged ill-treatment and the lack of any complaints from him before his first conviction. The prosecutors also stated that there had been no irregularities in the applicant’s placement and holding in the police detention facility and that O. and K. with whom the applicant had been placed at that facility had had no prior convictions.

In the course of examination of the case against the applicant, on 14 June 2006, the applicant complained to the trial court about the beatings, handcuffing, stripping and the threats of prison rape he had allegedly been subjected to by the police. On 15 June 2006 the trial court ordered the prosecutor’s office to investigate the allegations.

On 29 June 2006 the prosecutor’s office again refused to institute criminal proceedings essentially on the same grounds. No mention was made of the applicant’s placement with adults in the detention facility.

On 26 September 2006 the applicant’s mother complained to the regional prosecutor’s office, reiterating her allegations that the applicant had been physically ill-treated by the police, left in a state of undress and handcuffed and threatened that he would be charged with rape and would, therefore, be raped in prison. She referred to her previous complaint of 23 December 2005 on the same subject and complained that she had received no satisfactory answer to it.

On 16 October 2006 the regional prosecutor’s office overruled the decisions of 26 January and 29 June 2006.

On 3 November 2006 the Toretsk prosecutor’s office again refused to institute criminal proceedings, essentially on the same grounds as in its previous decisions. The prosecutors stated, with no further explanation, that there were no irregularities in the course of the applicant’s placement and holding in the police detention facility. On 25 June 2007 the regional prosecutor’s office overruled that decision as premature.

On 10 July 2007 the Toretsk prosecutor’s office again refused to institute criminal proceedings essentially on the same grounds. No mention was made of the applicant’s detention with adults. On 8 February 2008 the regional prosecutor’s office upheld that decision.

Subsequently, other decisions refusing to institute criminal proceedings were taken, the most recent one on 31 December 2008. The copies of those decisions have not been provided to the Court.

On 6 January 2011 the Toretsk prosecutor’s office wrote to the applicant’s father in response to his complaint. It said that the records of local medical institutions showed that at the time the applicant had been placed in the cell with O. the latter had been registered as suffering from tuberculosis but, according to his file, he had not posed a danger of infection to others. He had been admitted to hospital in March 2005 to treat his tuberculosis. O. had had a conviction at some point in the past but his conviction had been considered sufficiently old to have been considered expunged by time the applicant had been detained with him.

On 14 March 2011 the Toretsk prosecutor’s office wrote to the applicant’s father, again in response to his complaint, stating that the placing of adult arrestees in the same cell with the applicant, a minor, had been in breach of domestic law (section 8 of the Pre-Trial Detention Act) and had constituted a disciplinary infraction on the part of the police officers who had taken that decision. However, they could not be disciplined because the six-month limitation period for disciplinary measures had expired. The prosecutor’s office also confirmed that the applicant’s cellmates were at the time registered as drug users.


CASE OF SHALYAVSKI AND OTHERS v. BULGARIA

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 - Degrading treatment;Prohibition of torture)

Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicants were born in 1966, 1967, 1988 and 2003 respectively and live in Blagoevgrad. The first and second applicants are cohabiting partners and the fourth applicant is their daughter. The third applicant is the second applicant’s son. At the relevant time all the applicants were living together.

The first applicant suffers from muscular dystrophy, which has gradually progressed since the age of twelve. Currently (and at the time of the relevant events), he is only able to move his head and hands. He needs assistance for most daily activities, which is usually provided by the second applicant or his care assistant. According to the applicants, the care assistant, who was specially trained and had taken care of the first applicant for many years, was the only person with whom the latter felt secure when he needed to go out of his home, in particular to go to his office, as this involved the assistant carrying him and installing him in a car. The assistant also drove the applicant’s car. At the time the first applicant owned a pawnshop and managed several companies. One of his activities was giving short-term loans at high interest rates.

In 2010 the prosecution authorities opened criminal proceedings against the first applicant for usury. Prior to that, in 2006 and 2009 he had been convicted for an abuse in the exercise of a disputed right and for threatening another person.

On 7 April 2011, at about 11 a.m., the first applicant, while travelling in his car which was being driven by his care assistant, was stopped by police officers and ordered to follow them to the police station. Upon arrival, his care assistant was arrested. While the parties have not specified the grounds for this arrest, it is very likely that it was on the basis of the Ministry of the Interior Act, which allowed, inter alia, the detention for up to twenty-four hours of a person suspected of having committed an offence, and that it was related to the investigation against the first applicant.

The car remained in the carpark and the first applicant remained in it. Unable to move, he stayed in that position for several hours, guarded by two police officers. At about 3 p.m. his care assistant was brought out under guard to move him to another car, because the first one was going to be impounded as physical evidence. On two or three occasions during the day the second applicant was allowed to come to help him with his physical needs.

During the time the first applicant spent in front of the police station, police officers searched his home, his office and his pawnshop, as well as his parents’ flat and house. They also searched the applicant’s cars. The operation against him had been planned in advance.

At about 6 p.m., while still in the car and in the presence of his lawyer who had arrived in the meantime, the first applicant had charges of usury brought against him by an investigator. For that purpose the police officers installed the necessary equipment in the carpark, including a computer and a printer. The applicant was invited to make a declaration in relation to the charges; he stated that he was not guilty.

The first applicant remained in the car in front of the police station until about 7.30 p.m. After that he was brought in front of the building of the Blagoevgrad Regional Court, which was to hold a hearing to examine an application by the prosecution to place him under house arrest. In the court carpark police officers attempted to take the applicant out of the car and place him in a wheelchair, despite the second applicant’s protests. They gave up, after becoming aware that they could hurt him. After that his care assistant, still in detention, was again brought out under guard. The first applicant was thus able to get out of the car at about 9.30 p.m. He attended the court hearing, which ended at 11.30 p.m. The care assistant remained with him until the end of the hearing. The prosecution’s application to have the first applicant placed under house arrest was allowed.

The applicant’s care assistant was released on 8 April 2011 and has not been questioned any further or prosecuted.

The Blagoevgrad Regional Court’s decision to place the first applicant under house arrest was upheld on appeal by the Sofia Court of Appeal on 14 April 2011. Before taking its decision, that court heard evidence from, among others, A.Z., who stated that she was the first applicant’s sister and a neurologist and gave evidence concerning the applicant’s state of health.

On 22 January 2016 the first applicant had charges brought against him once again, in a detailed bill of indictment listing more than a hundred occasions where he had given loans to individuals at high interest rates. According to reports published in the Bulgarian media, in November 2016 he was indicted and is standing trial at present.

The observance of the first applicant’s house arrest was supervised by the police.

Between 8 and 14 April 2011 there were no checks on whether he was complying with the measure.

On 15 April 2011 the first applicant was seen by patrolling police officers in the city centre. When asked to provide an explanation, he stated that he had gone out to buy something. The police checked on him at his home in the evening of the same day.

Between 16 April and 27 May 2011 police officers visited the applicants’ home to check on the first applicant on twenty-nine occasions, once a day and almost every day. On eight days there were no checks at all, and on another four days officers did not go to the applicants’ flat, but observed for some time the building’s entrance. On 29 April 2011 the applicant was met by officers in front of the building as he arrived in his car.

On 28 May 2011 officers checked on the first applicant on three occasions, and on two occasions on 30 May. On 31 May they visited the flat on three occasions, but on one of them were not allowed in.

On 1 and 2 June 2011 the second applicant did not allow the police into the flat. On 3 June they visited the flat five times; on one of the visits nobody answered the doorbell.

Between 4 and 20 June 2011 officers visited the applicants’ flat usually three or four times a day. One of the visits on 16 June was provoked by the fact that the applicant, having received authorisation to visit a physiotherapist, had not shown up for his appointment.

During some of the visits the fourth applicant, then eight years old, was present as well. Usually she was taken by her mother to another room. The third applicant, then twenty-three years old, was working full time during this period.

On 21 June 2011 the first applicant was released from house arrest, by a decision of the Sofia Court of Appeal, which noted in particular his grave state of health and the fact that much of the evidence in the investigation against him had already been collected.


Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

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

The applicant was born in 1978 and habitually resides in Krupina.

On 20, 21 and 22 May 2009 respectively the applicant was arrested, charged and remanded in custody on suspicion of unlawful production, possession and trafficking in drugs within the meaning of Article 172 § 1 (c) of the Criminal Code, on grounds that, if left at liberty, he would continue offending.

On 22 July 2009 the applicant requested release, and in support of his request he offered a pledge that he would live in accordance with the law and that he would not interfere with the course of justice.

On 3 August 2009 the Zovlen District Prosecutor found no reasons for releasing the applicant and transmitted his request to the Zvolen District Court (Okresný súd) for a judicial determination with a proposal that the request be dismissed.

On 19 August 2009 the District Court examined the request in chambers (neverejné zasadnutie), following which, on the same day, the request was dismissed. The District Court observed, inter alia, that by a judgment of 23 April 2009 the applicant had been convicted of theft.

Immediately after the decisions of 19 August 2009 had been pronounced, the applicant submitted an oral interlocutory appeal (sťažnosť), which he later amended with the assistance of his lawyer.

The written version of the District Court’s decision of 19 August 2009 was served on the applicant on 24 September 2009.

On 8 October 2009, sitting in chambers (neverejné zasadnutie), the Banská Bystrica Regional Court (Krajský súd) dismissed the applicant’s appeal, fully endorsing the reasoning of the District Court, adding that, at the same time, the applicant was also being prosecuted for other drugrelated offences.

On 16 October 2009 the written version of the Regional Court’s decision was transmitted to the District Court, which was responsible for ensuring service of that decision on the applicant.

Service was effected on 30 October 2009.

On 11 November 2009 the applicant lodged a complaint with the Constitutional Court (Ústavný súd), relying on Articles 127 of the Constitution and 5 § 4 of the Convention, challenging the length of the proceedings relating to his request for release, and claiming 1,500 euros (EUR) by way of just satisfaction. In support of the latter claim, he submitted that, while his request for release had been under examination, he had been in a state of legal uncertainty, which had had a particularly severe effect on his state of mind since he had been deprived of liberty.

On 20 January 2010 the Constitutional Court appointed the applicant a legal-aid lawyer and, on 18 February 2010, it declared the complaint admissible.

On 30 March 2010 the Constitutional Court issued a judgment (nález) finding a violation of the applicant’s right to a speedy review of the lawfulness of his detention within the meaning of Article 5 § 4 of the Convention. At the same time, it awarded him EUR 500 in compensation for non-pecuniary damage. The amount was not explained by any particular reasons.

The written version of the constitutional judgment was served on the applicant on 24 May 2010.


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

All the applicants were employed by RTB Bor – grupa Industrija za preradu Majdanpek, a socially-owned company based in Majdanpek (hereinafter “the debtor”).

Since the debtor had failed to fulfil its obligations toward its employees, the applicants brought numerous separate civil suits, seeking payment of salary arrears and various social security contributions.

The applicants obtained final court judgments ordering the debtor to pay them certain sums. The essential information as to the domestic proceedings in respect of each application is indicated in the appended table.

Following a period during which the enforcement proceedings had been suspended, between June and August 2011 the final court judgments in question were all fully enforced in respect of the applicants.

Since October 2011, the debtor is a company predominantly comprised of State or socially owned capital and is still in the process of being restructured.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Procedure prescribed by law);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);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);No violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review);No violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicant was born in 1952 and lives in Bellevue, Washington, USA. He is a president of Global Fishing Inc., a corporation which was the largest importer of crab to the United States of America.

On 29 June 2007 the Investigating Committee of the Ministry of the Interior of the Russian Federation opened a criminal investigation into crab poaching in Russia’s exclusive economic zone in the Bering Sea and the Sea of Okhotsk. The investigation concerned the charges of engagement in organised criminal activities, unlicensed fishing activities in Russia’s exclusive economic zone and money laundering. The decision to open the investigation identified Global Fishing Inc. as a major purchaser of the crab illegally harvested in the said region.

On 20 September 2007 the applicant was arrested in a hotel in Moscow. His passport was confiscated.

On 21 September 2007 the Tverskoy District Court of Moscow authorised the applicant’s detention pending investigation. In particular, the court noted:

“When deciding that [the applicant] should be detained [pending investigation], the court notes that he is suspected of having committed a grave and serious offence, that he does not have a permanent residence in Russia, that there are reasons to believe that, if released, the applicant might abscond or continue his criminal activity, destroy the evidence or in any other way interfere with the criminal proceedings against him. Under such circumstances, application of any restrictive measure other than deprivation of liberty would not be feasible”.

On 27 September 2007 the Investigating Committee formally charged the applicant with engagement in organised criminal activities, money laundering and unlicensed fishing activities in Russia’s exclusive economic zone.

On 10 October 2007 the Moscow City Court upheld the decision of 21 September 2007 on appeal.

On 16 November 2007 the District Court extended the applicant’s detention until 29 February 2008. The applicant’s lawyers attended the hearing. The applicant was unable to attend for health reasons. He asked to be released on bail or alternatively on personal surety given by the chief rabbi of Russia. He presented to the court positive character references from two U.S. senators. He further argued that he was not fit for detention for illhealth. In this respect he relied on the opinion prepared by his family doctor, which indicated that the applicant suffered from arthritis, high cholesterol, kidney stones, chronic pyelonephritis, gastritis, loss of hearing in the right ear, nasal allergies, frequent headaches and dizziness. He also submitted a guarantee signed by Mr Sh. who undertook to accommodate the applicant at his place of residence in Moscow pending investigation. The court dismissed the applicant’s arguments noting as follows:

“The court takes into account the arguments presented by the defence, including the references concerning his character. It discerns no new material facts or circumstances justifying [the applicant’s] release or application of another restrictive measure.

It follows from the materials submitted that [the applicant] is charged with a very serious offence, he is a national of another state. The medical documents presented do not demonstrate that [the applicant] is unfit for detention.

The court concludes that the grounds for the [applicant’s] detention have not ceased to exist. Accordingly the restrictive measure applied cannot be lifted or replaced with a less strict one, including the bail.”

On 26 December 2007 the City Court upheld the decision of 16 November 2007 on appeal.

On 21 February 2008 the District Court extended the applicant’s detention pending investigation until 29 May 2008. The court reiterated that the applicant’s detention was justified due to the gravity of the charges and lack of a place of permanent residence in Russia. The application for release on bail or personal surety was dismissed. On 26 March 2008 the City Court upheld the decision of 21 February 2008 on appeal.

On 28 May 2008 the District Court extended the applicant’s detention until 29 August 2008. The court reiterated practically verbatim the reasoning used in the previous court order. On 23 June 2008 the Moscow City Court upheld the court order of 28 March 2008 on appeal.

On 19 August 2008 the City Court extended the applicant’s detention until 29 November 2008. According to the applicant, the court referred to the gravity of the charges and his “significant financial possibilities”. On 2 October 2008 the Supreme Court of the Russian Federation upheld the court order of 19 August 2008 on appeal. In particular, the Supreme Court noted:

“It follows from the materials in the case-file that [the court] took into account the gravity of the charges against [the applicant]..., and it is reasonable to assume that, if at large, he may abscond..., or continue his criminal activities, or threaten the witnesses, the victims and other parties to the proceedings, or destroy the evidence... that may be found in foreign companies or interfere with investigation in any other way. ... [I]n view of the extreme complexity and scope of the case, there are no grounds for [the applicant’s] release.

Furthermore, the grounds for the applicant’s detention have not ceased to exist and there are no exclusive circumstances rendering the lifting or replacement of the restrictive measure... possible.”

On 20 November 2008 the City Court extended the pre-trial detention in respect of the applicant, E. and S., his co-defendants, noting as follows:

“According to the materials submitted, E., S. and [the applicant] are charged with a number of offences, including especially serious ones for which a custodial sentence exceeding two years can be applied in the event of conviction.

It follows from the investigator’s motion, submitted materials and his explanation given in court, that the criminal case is very complex, fourteen people were indicted, a big volume of investigative activities have been carried out, including those under way in different regions in the Russian Federation; there are complex forensic expert examinations ongoing, the responses to the inquiries sent are still pending, including the ones concerning international criminal assistance, the investigators have planned numerous activities aimed at establishment of facts to be proved and completion of the investigation.

’s arguments that the defendants’ detention should be extended are convincing and justified and that the grounds for extension of their detention are exceptional regard being had to the nature of the charges and pending investigative activities aimed at the completion of the investigation.

In the course of investigation the information was obtained that, should they be released, the defendants might abscond or interfere with the proceedings.

’ character, the court concludes that there are sufficient grounds to believe that, should they be released, the defendants might abscond, put pressure on witnesses and other parties to the proceedings, try to conceal or destroy evidence in order to obstruct justice.

Under such circumstances... E., S., and [the applicant] should be detained pending investigation which means that the grounds and the circumstances ... taken into consideration by the court when deciding on their detention have not changed and it is still necessary to detain them.

In view of the above, it is not possible to use a less strict restrictive measure in respect of E., S., and [the applicant], including release on bail.

When deciding on the extension of the defendants’ detention, the court takes into account the circumstances as required by [law], notably their family status, age, health condition, and character information submitted by the defence.”

On 14 January 2009 the Supreme Court upheld the decision of 20 November 2008 on appeal. The court dismissed the applicant’s argument that the City Court’s findings that he might abscond, continue criminal activities, obstruct justice, destroy evidence had been erroneous and unsubstantiated.

On 17 February 2009 the applicant received an amended and finalised bill of indictment.

On 19 February 2009 the City Court extended the detention of the three defendants, including the applicant, until 20 March 2009 in view of pending investigation. It noted in respect of the applicant as follows:

“Even though... [the applicant] does not have a criminal record, is married and have a child, prior to his arrest was employed and had a permanent source of income, he is charged with a number of very serious offences which entail, in case of conviction, a custodial sentence exceeding two years and which, according to the investigators’ version, have been committed by an organised criminal group managed by E. and [the applicant]... The applicant is a national of another state, he does not have a permanent place of residence in the Russian Federation...

The above information about the applicant’s character and the gravity of the charges are, in the court’s opinion, sufficient to assume that he may abscond, despite his and his defence’s declarations and assurances. Furthermore, according to the report of policemen Z. and V., the applicant..., if released, is planning to flee abroad and continue criminal activities connected to illegal fishing in the exclusive economic zone of the Russian Federation, put pressure on witnesses, try to destroy physical evidence. In addition, [the applicant] repeatedly tried to bribe the officials in order to influence the investigation. Besides, E., S. and [the applicant] have been trying to get in touch with other members of the organised criminal group who are still at large. It follows from the testimony of witness P., that American companies are taking steps to secure [the applicant’s] release.”

On 23 March 2009 the Supreme Court upheld the decision of 19 February 2009 on appeal.

On 11 March 2009 the City Court extended the applicant’s detention pending the defendants’ study of the case file, which comprised 160 volumes, until 20 June 2009. The court referred to the gravity of the charges against the applicant and the lack of permanent residence in Russia. It further reiterated that the applicant might put pressure on witnesses, obstruct justice or abscond. On 21 April 2009 the Supreme Court upheld the decision of 11 March 2009 on appeal.

On 28 May 2009 the City Court extended the applicant’s detention until 20 September 2009. The court noted that the defendants, including the applicant, and eighteen lawyers that represented them had not completed the study of the case file. As to need for detention pending investigation, the court reiterated the formula which it used for prior extensions. On 16 July 2009 the Supreme Court upheld the decision of 28 May 2009 on appeal.

On 26 August 2009 the applicant completed the study of the case file.

On 15 September 2009 the City Court extended the applicant’s detention until 20 December 2009 noting that the applicant’s co-defendants and their lawyers needed further time to complete the study of the case-file. Referring to the gravity of the charges against the applicant and the lack of a permanent residence and of “established social links” in Russia, the court noted that the applicant might abscond, put pressure on witnesses and other parties to the proceedings in order to obstruct justice. On 29 October 2009 the Supreme Court upheld the decision of 15 September 2009 on appeal.

On 4 December 2009 the City Court received the applicant’s casefile and on 17 December 2009 it extended the defendants’ pre-trial detention until 4 June 2010 noting as follows:

“[The defendants] have been remanded in custody. This restrictive measure corresponds to the nature and seriousness of the charges against them. The circumstances underlying the [defendants’] remand in custody have not ceased to exist. Notwithstanding personal surety and a possibility of bail proposed by [the applicant], the fact that [the applicant] and S. have minor children, the length of their pre-trial detention, the measure of restraint earlier imposed on [the defendants] should remain unchanged.”

On 25 February 2010 the Supreme Court upheld the decision of 17 September 2009 on appeal.

It appears that on an unspecified date the applicant’s case was transferred for trial to the Kamchatka Regional Court.

On 27 May 2010 the Regional Court extended the defendants’ pretrial detention until 4 September 2010 noting that the circumstances underlying their remand in custody had not ceased to exist.

On 2 September 2010 the Regional Court extended the defendants’ detention until 4 December 2010 reiterating verbatim its reasoning of 27 May 2010.

On 29 November 2010 the Regional Court considered it possible to release the defendants on bail in the amount of 5,000,000,000 Russian roubles (RUB). The applicants submitted that they were unable to pay such bail. The court reasoned that the bail in a lesser amount would not ensure the defendants’ appearance before it and extended their detention until 4 March 2011 reiterating its earlier reasoning.

On 16 December 2010 the jury delivered a not-guilty verdict in the applicant’s case. The applicant was released on the same date. On 17 January 2011 the Regional Court issued the relevant judgment advising the applicant of his right to rehabilitation.

On 27 April 2011 the Supreme Court upheld the judgment of 17 January 2011 on appeal.

On 21 May 2008 in an article entitled Special Protection for the Mafia («Спецприкрытие для мафии») Rossiyskaya Gazeta, an official national newspaper, published an interview about the criminal investigation with General Ts., the head of the department of the Investigating Committee of the Ministry of the Interior of the Russian Federation. In the interview Ts. referred to the applicant as the head of an international criminal organisation which had been engaged in illegal fishing activities conducted in Russia’s territorial waters.

On 28 and 29 May 2008 General Ts. gave two interviews about the criminal investigation which were broadcast by Channel One, the national TV channel. Ts. reiterated his previous statements alleging that the applicant had been the head of the illegal fishing business and referred to him as “the don of the crab mafia”.

On 28 February 2013 the Regional Court granted the applicant’s claims for damages against the Ministry of Finance of the Russian Federation in part. The court awarded the applicant RUB 83,208,240 in respect of lost earnings and RUB 603,000 as reimbursement of legal costs and expenses.

On 21 May 2013 the Regional Court upheld the judgment of 28 February 2013 on appeal.

On 24 October 2014 the District Court dismissed the applicant’s claims for pecuniary damages resulting from criminal prosecution against the Ministry of Finance of the Russian Federation.

On 20 March 2015 the City Court upheld the judgment of 24 October 2014 on appeal.


CASE OF SEMYANISTY AND OTHERS v. UKRAINE

Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

In the period from 1998 to 2002 (the exact dates are listed in the appended table) the Krasnyy Luch Court delivered decisions according to which the State-owned coal mine “Almaznaya” was obliged to pay the applicants or their next of kin heating coal, to which they were entitled under the domestic law. The decisions became final and enforceable. However, the applicants were unable to obtain the enforcement of the decisions in due time.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)

Aleš Pejchal;André Potocki;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Síofra O’Leary;Vincent A. De Gaetano

The applicant was born in 1975. According to the most recently available information, in September 2013 the applicant arrived at Buchanska Correctional Colony No. 85, Ukraine, to serve a sentence. He has not informed the Court of his current whereabouts.

For a number of years the applicant has been suffering from various health problems. In particular, in July 2009, apparently also while serving a sentence, he was hospitalised in Buchanska Correctional Colony No. 85 and later transferred to a tuberculosis hospital in Slavyanoserbska Correctional Colony No. 61. Since November 2009 the applicant has been registered with the Kyiv City Aids Prevention and Control Centre. It appears that in December 2011 the applicant had a CD4+ cell count, the result of this count being 23 cells. No more detailed information about his precise diagnosis or about any further events between 2009 and September 2012 is available.

According to the applicant, on 7 September 2012 he was arrested on suspicion of theft. In a letter to this Court of 21 June 2013 the applicant stated that at the moment of his arrest he had had the following illnesses: human immunodeficiency virus (HIV) at clinical stage 4, post-tuberculosis residual effects, oropharyngeal candidiasis, and chronic hepatitis type C.

The decision on the applicant’s pre-trial detention was taken by a court on 10 September 2012. Between 27 September 2012 and 29 September 2013 the applicant was detained in the Kyiv Pre-Trial Detention Centre (Київський слідчий ізолятор) (“the SIZO”).

On arrival at the SIZO the applicant underwent an initial medical examination. The Government submitted a copy of the applicant’s initial medical examination card with the following information: height 1.77 m; weight 63 kg; blood pressure 125/80; blood type (unclear handwriting); bodily injuries none; infectious diseases: pulmonary tuberculosis – 2008, Botkin’s disease, – “-”, and sexually transmitted diseases – “-”. It was noted that the applicant had “no health complaints”. The applicant also submitted during the examination that he was registered with the Kyiv City Aids Prevention and Control Centre.

According to the applicant, because of the deterioration of his health in November 2012 he was examined in the above Centre. The only document provided in support of this statement is an advisory opinion issued by the Centre “on request” on 8 November 2012. The opinion stated, without noting when exactly the applicant had been examined, that the applicant had been diagnosed with HIV at clinical stage 4, post-tuberculosis residual changes, oropharyngeal candidiasis, and chronic viral hepatitis type C. The opinion also cited the result of the applicant’s CD4+ cell count performed on 13 December 2011. It was recommended that the applicant take antiretroviral therapy (“ART”) for life. In their submissions of 5 July 2013 following the applicant’s request under Rule 39 of the Rules of the Court (see paragraph 4 above), the Government noted that on 8 November 2012 the applicant had been diagnosed as above.

On 10 December 2012 the applicant agreed to undergo an HIV test following his “request submitted to the SIZO doctors”. According to the results of this test dated 12 December 2012, the applicant had HIV antibodies.

On 9 January 2013 the applicant underwent a biochemical blood analysis and a CD4+ cell count (the result of the count was 3 cells, or 0.5% (percentage of total lymphocytes)). The applicant was diagnosed with a high degree of immunological suppression and prescribed preventive anti-tuberculosis treatment.

On 14 February 2013 the applicant was placed in the infectious diseases ward of the SIZO. It was noted that the applicant’s state of health was of “medium seriousness”. He underwent an X-ray and various other examinations and was diagnosed with a tuberculosis relapse, extra-pulmonary tuberculosis, HIV infection at clinical stage 4, chronic hepatitis of the mixed type (toxic type and C type), and other diseases. The applicant was prescribed anti-tuberculosis treatment, detox and symptomatic treatment. The Government submitted that the applicant had received this treatment in full.

According to the available medical documents, between 14 February and 12 June 2013 the applicant’s weight dropped from 63 kg to 58 kg.

On 19 February 2013 the applicant was examined in the Kyiv City Anti-Tuberculosis Treatment Centre.

According to the medical file submitted by the Government, between 21 February and 2 July 2013 the applicant had consultations with SIZO doctors on the following dates: 21 and 28 February 2013; 7, 14, 21 and 28 March 2013; 4, 11, 18 and 29 April 2013; 6, 8 and 16 May 2013; 4, 19, 21 and 26 June 2013; and 2 July 2013.

It was noted on some of those occasions that the applicant complained of general weakness but that his condition was stable. He “bore the treatment in a satisfactory manner” and after the applicant had started the ART (see paragraph 18 below) the consistent advice was that the ART should be continued. On several occasions the applicant was also prescribed various medication.

On 26 February 2013 the applicant was prescribed “a preventive treatment”. It was recommended that anti-tuberculosis treatment be continued in order to prepare the applicant for the ART.

In his letter of 23 July 2013 the applicant submitted that the ART had been prescribed to him in February 2013. In his further observations the applicant stated that the treatment had only been prescribed to him on 30 March 2013. The exact date when the applicant started the ART is unclear.

On some occasions in March and April 2013 the applicant refused to take the ART. According to the applicant, the prescribed drugs did not agree with him.

On 26 April 2013 the applicant was prescribed the ART “under the TDF/FTC (tenofovir/emtricitabine +ztv) schema”.

On 16 May 2013 the applicant consulted an infectious diseases specialist from Kyiv City Clinic No. 5, and was prescribed a diet and various medication. It was noted that the applicant had again stopped the ART.

On 14 June 2013 SIZO officials, at the request of the police, informed the police that the applicant’s state of health was of “medium seriousness, with a tendency to deteriorate which might lead to a lethal outcome”. They confirmed that, apart from the said diagnoses, the applicant was suffering from inflammation of the lymph nodes, dermatitis, intestinal dysbacteriosis, and other diseases. The applicant was receiving anti-tuberculosis treatment, ART and symptomatic treatment. It was stated that the applicant needed long-term medical treatment in a specialised medical facility. Consequently, they asked for the investigation to be speeded up and for the possibility of the applicant’s release to be considered. The document was signed by the head of the SIZO and the head of the SIZO’s medical department.

On the same date the criminal case against the applicant was transferred to a court for consideration on the merits.

On 18 June 2013 the applicant’s lawyer requested the applicant’s release before the national court.

Between 26 June and 5 July 2013 the applicant underwent a number of tests (blood and urine tests and X-ray examinations). In particular, on 3 July 2013 a biochemical blood test and CD4+ cell count were performed. The increase in the CD4+ blood cells from 3 to 69 was established (from 0.5% to 4.5%). On 5 July 2013 an expert MTB/RIF diagnostic test of the applicant’s sputum for identification of Mycobacterium tuberculosis was carried out. The test was negative.

In his application form to this Court of 8 July 2013 the applicant stated that he was suffering from general weakness, intestinal pain, severe headache, increase in the number and size of mycotic ulcers on his body and face, liver and chest pain, haemorrhoids, diarrhoea, pain in the lymph glands, and severe shortness of breath. He also had severe pain in his left leg, had lost around 20 kilograms in weight, and had difficulty sleeping. His CD4+ cell count had, however increased. For the hepatitis C, ulcers and left leg problem there was no treatment at all.

On 11 July 2013 the SIZO administration informed the applicant’s lawyer that the applicant was in the SIZO medical ward. He was receiving anti-tuberculosis treatment, ART and symptomatic treatment. The applicant underwent an X-ray examination, had various tests (complete blood count, biochemical blood test, blood sugar test, CD4+ cell count, and urine and sputum analyses) and had a number of consultations with infectious diseases and tuberculosis specialists. It was noted that the applicant’s condition was stable and there was a positive dynamic. He did not need hospital treatment, but required monitoring by infectious diseases and tuberculosis specialists.

On the same date the Kagarlytskyy District Court, Kyiv Region, extended the applicant’s pre-trial detention for two months. The applicant’s lawyer’s request for release on medical grounds was rejected by the court as not substantiated by appropriate documents. It also rejected the applicant’s lawyer’s request for a medical examination for him.

The applicant stated that on 13 July 2013 an ambulance had been called for him. He was given painkillers on that occasion.

In a letter of 23 July 2013 to this Court the applicant stated that there had been no change in his medical treatment between 14 June and 23 July 2013. According to him, the current treatment was not improving his health.

On 5 and 14 August 2013 the applicant was examined by a tuberculosis specialist, who concluded that the applicant’s condition was stable.

On 29 September 2013 the applicant was transferred to Buchanska Correctional Colony No. 85 to serve a sentence (the parties did not submit to the Court the details of the applicant’s conviction). He was provided with ART medication for two months’ treatment. On arrival at the Colony the applicant was examined by a doctor and diagnosed with HIV infection (IV clinical stage), hepatitis in the stage of remission, and post-tuberculosis residual changes (category 5.1).

On 10 October 2013 the applicant complained of fever, cough and abdominal pain. He was diagnosed with aggravation of his hepatitis, gastroduodenitis, and bronchitis, and was placed in a medical ward.

According to the applicant, on 25 June and 3 July 2013 he was subjected to psychological pressure by the SIZO authorities and their medical staff, who shouted at the applicant, called him names and told him to sign a paper stating that he had refused ART treatment of his own volition and that he had no complaints. The material in the case file includes a copy of a handwritten note dated 3 July 2013 and signed by the applicant. The note says the following:

“Despite the worsening of my state of health, the personnel of the SIZO medical ward are doing everything possible and I have no complaints about them”.

On 4 July 2013 the applicant had a meeting with his lawyer. On the same date the applicant complained about the alleged pressure to the prosecutor’s office. He stated that SIZO doctors and an unknown police officer had forced him to sign a paper “that he refused (or had refused)” the ART and had no complaints. According to the applicant, he was threatened with being beaten, with being removed from the medical ward, with being placed in a disciplinary cell, and that other detainees would suffer because of him. The applicant stated that he had signed a paper stating that he had no complaints against the SIZO doctors.

By a letter of 8 July 2013 the Shevchenkivskyy District Prosecutor’s Office sent the applicant’s lawyer’s complaint to the Kyiv Department of the State Prison Service “for consideration”.

On an unknown date a State Prison Service official informed the Head of the Kyiv Department of the State Prison Service that there had been “no breaches of law by the staff on the medical ward or by the SIZO authorities”. On 5 August 2013 this information was submitted to the prosecutor and to the applicant.

On 14 October 2013 the head of the SIZO medical ward informed the head of the SIZO that there had been no incidence of pressure being put on the applicant during the latter’s stay there.

On the same date inmates B. and F. testified to the head of the SIZO that there had been no incidence of any kind of pressure being put on the applicant, and that he had always been provided with medical assistance when he requested it.


Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković

The applicants, Mr Mehmet Yılmaz Savaşçın, Ms Ayşe Şayan Ataklı, Ms Yılma Savaşçın and Ms Solmaz Gülper Refiğ, are four Turkish nationals. They were born in 1941, 1948, 1938 and 1943 respectively. They were represented before the Court by Ms Fatma Belgin Adalı, a lawyer practising in Izmir.

s, may be summarised as follows.

In 1976 the applicants purchased a plot of land measuring 7,860 sq. m in Foça, in the Yenifoça Salhan District of Izmir, which had been registered in the land register as parcel no. 2066.

On 30 November 1999, following a claim submitted by the forest administration, the Foça Civil Court of First Instance ordered that the applicants’ title deed be annulled and the land entered in the land register as belonging to the Treasury, holding that the land was part of the public forest. An appeal and a request for rectification lodged by the applicants were subsequently rejected by the Court of Cassation and the decision became final on 4 February 2002.

On 14 June 2002 the applicants brought a case before the Foça Civil Court of First Instance. They sought compensation for pecuniary damage from the Treasury under Article 917 of the old Civil Code, which prescribed that the State was responsible for any damage resulting from the keeping of the land registry records.

On 21 December 2004 the Foça Civil Court of First Instance dismissed the applicants’ compensation claim. The Court of Cassation rejected an appeal and a request for rectification lodged by the applicants, and the decision became final on 31 October 2006.

Under Article 169 of the Turkish Constitution of 1982, ownership of public forests may not be transferred to others; public forests will be managed and exploited by the State in accordance with the law. Ownership of such forests cannot be acquired through adverse possession, nor may forests be subject to any easement, unless it is considered to be in the public interest.

Under section 7 of Law no. 6831 of 31 August 1956, the cadastral commissions decide whether an area will be categorized as a public forest or a private forest. The same law governs the way in which the cadastral commissions operate (sections 7 to 12).

A full description of the relevant domestic law and practice regarding the designation of land as public forest may be found in Turgut and Others v. Turkey (no. 1411/03, §§ 41-67, 8 July 2008).

The object of Law no. 6384 was to provide for the settlement, by means of compensation, of applications lodged with the Court concerning length of judicial proceedings, and non-enforcement or delayed enforcement of judicial decisions. A Compensation Commission was set up for that purposes. A full description of the relevant domestic law may be found in Turgut and Others v. Turkey ((dec.), no. 4860/09, §§ 19-26, 26 March 2013).

The competence ratione materiae of the Compensation Commission was subsequently extended by a decree which came into force on 16 March 2014. The decree extended the competence of the Compensation Commission to the examination of other complaints, such as alleged restriction of the right of detainees to correspondence in a language other than Turkish and the prison authorities’ refusal, on different grounds, to hand over periodicals. A full description of the relevant domestic law may be found in Yıldız and Yanak v. Turkey ((dec.), no. 44013/07, §§ 9-17, 27 May 2014).

The Turkish Council of Ministers issued a decree which came into force on 9 March 2016. The decree extended anew the competence ratione materiae of the Compensation Commission.

The Compensation Commission is now entitled to examine the following subjects under Article 4 of the decree, which reads as follows:

“a) Applications concerning an alleged violation of the right to peaceful enjoyment of possessions on account of the annulment of an applicant’s title deeds because his or her land was classified as part of the public forest area, or as a result of the application of section 2/B of Law no. 6831, or because the land was classified as part of the public forest area in cadastral surveys;

b) Applications concerning an alleged violation of the right to peaceful enjoyment of possessions on account of the annulment of an applicant’s title deeds because the impugned land was classified as located within a coastal area;

c) Applications concerning an alleged violation of the right to peaceful enjoyment of possessions on account of the allocation of the impugned land for public use in local land development plans;

d) Applications concerning an alleged breach of an applicant’s right to private and family life on account of the respective disciplinary sanctions imposed on detainees and convicted persons by the prison authorities;

e) Applications concerning an alleged breach of the right to respect for correspondence on account of the prison administration’s refusal to receive or send letters or similar correspondence drafted in Turkish.”


Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom

The applicant, Mr Joeri Borisovitch Zaloilo, was born in 1980 in Tblisi and lives in Schiedam. His nationality is stated to be unknown. He was represented before the Court by Ms H.H.R. Bruggeman, a lawyer practising in Lisse.

The applicant was detained for the purpose of deportation in the Rotterdam detention centre, a remand centre accommodating persons in immigration detention.

On 25 August 2011 the governor of the detention centre gave a disciplinary decision placing the applicant in solitary confinement for fourteen days. The written confirmation of the decision, handed to the applicant on 28 August 2011, states the following grounds:

“You have displayed seriously inflammatory behaviour and incited your fellow detainees to an uprising. You have incited them to disobey the instructions of staff. You have refused, with a number of fellow detainees, to return to your cell. You have tried to prevent your fellow detainees from obeying the instructions of staff. You have seriously intimidated staff and forced them to open the door of the cell to let out one of the detainees who was already locked in.”

The term of solitary confinement was to end on 8 September 2011.

On 26 August 2011 the applicant submitted a complaint form stating that he had incited no one to rise against the prison staff and requesting the hearing of witnesses to prove it.

On 31 August 2011 the applicant, through his lawyer, lodged a formal complaint (beklag) against the solitary confinement decision with the supervisory board (Commissie van Toezicht) of the institution.

Also on 31 August 2011 the applicant lodged a request for the suspension of the solitary confinement measure with the Appeals Board (beroepscommissie) of the Council for the Administration of Criminal Justice and Juvenile Protection (Raad voor Strafrechtstoepassing en Jeugdbescherming) (hereafter “the Appeals Board”).

On 8 September 2011, immediately after the end of his term of solitary confinement, the applicant was transferred to the remand centre (huis van bewaring) within the penal institution “De Schie” in Rotterdam, a regular prison, on the orders of the governor of the Rotterdam detention centre. The decision ordering the transfer was not given in writing.

Also on 8 September 2011 the applicant lodged an objection (bezwaar) against the decision to place him in the remand centre within “De Schie”, together with a request for its suspension, with the Appeals Board.

On 16 September 2011 the Chairman of the Appeals Board ordered the suspension of the applicant’s placement in the remand centre within “De Schie” on the formal ground that the transfer decision had been given irregularly by the governor of the Rotterdam detention centre instead of by the selection officer (selectiefunctionaris) of the Ministry of Security and Justice.

Also on 16 September 2011 an official signing in the joint capacity of selection officer and head of the Bureau for the Coordination of Matters Concerning Aliens (Hoofd Bureau Coördinatie Vreemdelingenzaken) gave an order, effective on the same day, for the applicant to be transferred to the remand centre within “De Schie”. The decision stated the following reasons:

“During your stay in the Rotterdam detention centre you have endangered order, peace and quiet and security by inciting to an uprising and by particularly intimidating conduct towards staff.”

On 22 September 2011 the applicant, through his lawyer, lodged an objection against this decision also. As relevant to the case before the Court, he alleged a violation of Article 6 of the Convention in that he had not been heard before this decision was taken.

It is noted in the decision of the Appeals Board (see paragraph 18 below) that on 7 October 2011 the governor of the Rotterdam detention centre wrote to the applicant recognising that his detention in the remand centre within “De Schie” between 8 September 2011 and 16 September 2011 had not been based on a decision in proper form and that he was entitled to monetary compensation on that account.

On 24 October 2011 the selection officer cum head of the Bureau for the Coordination of Matters Concerning Aliens of the Ministry of Security and Justice gave a decision on the applicant’s objection of 8 September 2011 (see paragraph 9 above). This decision stated that the governor of the detention centre had decided on 25 August 2011 that the applicant should be transferred to the remand centre within “De Schie” in Rotterdam on 8 September 2011, immediately after the end of his term of solitary confinement. However, since the governor had not the competence to give such a decision, a formal decision to this effect – dated, or backdated, 8 September 2011 but not committed in writing – was taken by the selection officer cum head of the Bureau for the Coordination of Matters Concerning Aliens instead.

The applicant’s objection was declared inadmissible as out of time, the decision in issue having been taken on 25 August 2011 and the time-limit for lodging an objection being only seven days. It was added that the objection would have been dismissed as unfounded even if it had been admissible: the applicant had been transferred to a regular remand centre for legitimate operational reasons (om beheersmatige redenen) in view of his misbehaviour.

On 24 October 2011 the selection officer cum head of the Bureau for the Coordination of Matters Concerning Aliens of the Ministry of Security and Justice gave a decision dismissing the applicant’s objection of 16 September 2011 as unfounded. As relevant to the case before the Court, it included the following reasoning:

“I have been informed by the governor of the Detention Centre that the person concerned has played an active part in the uprising on 25 August 2011 in the Rotterdam Detention Centre. The person concerned (was among those who) created the uprising. He displayed inflammatory behaviour and repeatedly incited other detainees to rise up. He has refused to follow instructions given by staff and has encouraged others to do the same. He has forced the staff in a threatening way to release detainees who had been already locked in. The staff has complied in order to prevent further escalation. The person concerned has seriously intimidated the staff and seriously endangered order and security. The person has been placed in a regular remand centre for operational reasons in view of the disturbance he has caused in the Rotterdam detention centre, his prison history (which has also led to his being declared an undesirable alien (ongewenste vreemdeling)), and because he escaped from the Zeist detention centre on 7 January 2011.

In taking a placement or transfer decision I may reasonably trust the relevant information given me by the governor of the institution. My competence to transfer the person concerned to a different institution is not affected by the fact that the lawfulness of the governor’s decision, i.e. the disciplinary measure, is not yet established in law.”

On 31 October 2011 the applicant, through his lawyer, appealed against the latter decision to the Appeals Board. As relevant to the case before the Court, he denied any wrongdoing; he complained of failures to hear staff of the Rotterdam detention centre and fellow detainees as witnesses and of the failure to make videotaped recordings of the incident available for viewing.

The Appeals Board gave its decision on 23 January 2012. It dismissed the applicant’s appeal. As to the fact that the applicant’s placement in the remand centre within “De Schie” between 8 and 16 September 2011 had not been based on any decision, the Appeals Board took note of the governor’s letter of 7 October 2011 recognising that fact (see paragraph 13 above) and referred the applicant to the governor of the Rotterdam detention centre himself for the compensation to which he was entitled. As relevant to the case before the Court, its decision further read as follows:

“4.2. ...

The complainant [i.e. the applicant], on whom immigration detention has been imposed, belonged to the category of detainees for whose accommodation remand centres are intended.

4.4. A sufficient case has been made out on the basis of the submissions made on appeal as well as the reports drawn up about the complainant that the behaviour of the complainant could justify his transfer to a different institution.

4.5. In situations that so require, such as the present, in which a further stay in a detention centre intended specifically for aliens is no longer a possibility, it is permitted, given the circumstances of the particular case, to place the detained alien concerned in an ordinary remand centre. The complainant has brought his transfer to the remand centre upon himself by his behaviour. In the remand centre, which has no separate department for aliens, the complainant’s status of alien is (as is apparent from the file) taken into consideration inasmuch as he is accommodated in a single-person cell. The appeal will therefore be declared unfounded.”

As relevant to the case before the Court, the Aliens Act (Vreemdelingenwet 2000) provides as follows:

“1. If necessary in the interest of public order or national security, the Minister may order the detention of any alien who:

a. is not lawfully resident [in the Netherlands]; ...”

As relevant to the case before the Court, the Aliens Decree 2000 (Vreemdelingenbesluit 2000) provides as follows:

Detention based on section 59 ... of the Aliens Act 2000 shall be executed in a police station, a Netherlands Royal Constabulary (Koninklijke Marechaussee) cell, in a remand centre (huis van bewaring) ... The execution of the detention shall not impose further restrictions on the alien’s exercise of his or her basic rights than is necessary for the purpose of this measure and the maintenance of order and safety in the place where [the detention] is put into effect.

If the execution of the detention takes place in a police station or a Netherlands Royal Constabulary cell, then as soon as reasonably possible such execution shall be continued in a remand centre. ...

Detention shall be terminated as soon as grounds for it no longer exist.”

The framework for the execution of detention based on section 59 of the Aliens Act 2000 is constituted by the Prisons Act (Penitentiaire Beginselenwet), which as relevant to the case before the Court provides as follows:

Persons subject to the execution of a custodial sentence or measure (vrijheidsstraf of vrijheidsbenenemde maatregel) shall be subjected to no further restrictions than necessary for the purpose of the detention or in the interest of maintaining order or safety within the institution. ...”

Custodial institutions (inrichtingen) are categorised as remand centres (huizen van bewaring), prisons (gevangenissen) and institutions for systematic offenders (inrichtingen voor stelselmatige daders). ...

Remand centres are intended to accommodate:

a. persons in respect of whom an order for detention on remand (voorlopige hechtenis) has been given and who are awaiting trial at first instance;

d. persons in immigration detention; ...”

“1. If a civil servant or staff member finds that a detainee is involved in acts incompatible with order or security in the institution or with the unimpeded execution of the detention and he intends to report on this in writing to the governor, he shall so inform the detainee.

The governor shall decide on the imposition of a disciplinary penalty as soon as possible after the report has been submitted to him. ...”

“1. The governor may impose the following disciplinary penalties for the commission of acts as referred to in section 50(1):

a. confinement in a punishment cell or another living space (verblijfsruimte) for no more than two weeks;

If a penalty is imposed, it shall be executed without delay. ...”

In the Netherlands, three remand centres are especially reserved for accommodating persons undergoing immigration detention: the Zeist Detention Centre (Detentiecentrum Zeist), the Schiphol (Amsterdam) Airport Detention Centre (Justitëel Complex Schiphol) and the Rotterdam Detention Centre (Detentiecentrum Rotterdam).


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

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

The applicants complained of the excessive length of their pre-trial detention. Some applicants also raised other complaints under the provisions of the Convention.