Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - After conviction);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom to impart information);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1977 and lives in Kiev, Ukraine.

In his application to the Court the applicant stated that at the relevant time he had been employed as a journalist by a Ukrainian television channel. In July 2006 he had volunteered to cover the G8 Summit, which was being held in the St Petersburg region, for Libertarian Information and News Collective (LINC), disseminating press-releases and information on the Internet about protests, connecting journalists and protesters, and providing coverage about the issues raised by activists. In his comments on the third-party submissions before the Court, the applicant added that at the time he had been “involved with” the Independent Media Centre (Indymedia); prior to the G8 summit, he had taken leave from his television assignments and had “focused on media work” in the framework of LINC.

According to the applicant, at 8.30 a.m. on 16 July 2006 he happened to “be around” when a so-called “anti-globalism” march was taking place in Nevskiy Avenue in St Petersburg (see also paragraphs 19 and 20 below). He was not wearing any distinctive clothing or insignia to designate him as a journalist. He did not take part in the protest; rather, his actions were limited to observing people and taking photographs, including when the police started to disperse the gathering and to arrest some of the participants. One of the police officers spotted him taking pictures and ordered him to switch off the camera. According to the applicant, he complied and no further order was given to him; he did not show any resistance to the police. In his observations before the Court the applicant said that he had presented his press-card issued by the International Federation of Journalists, and explained his presence at the venue.

It follows from the identical reports of two police officers that they approached the applicant and ordered him to cease his “unlawful actions”; despite several warnings, the applicant refused; he was then ordered to follow them to the police vehicle in order to be taken to the police station. Despite several warnings, he refused, grabbed their uniforms, behaved defiantly and shouted. He was then taken to the police vehicle by force.

A record of administrative escorting was drawn up under Article 27.2 of the Federal Code of Administrative Offences (hereinafter “the CAO”). The record contained no reasoning.

The applicant was then subjected to the procedure of administrative arrest under Article 27.3 of the CAO. The following pre-typed text was underlined in the record: “arrested in order to put an end to the offence, to compile the record of administrative offence, to examine the case and so on, as required by the CAO”. According to the record, the applicant was not subjected to the procedure involving a personal search or an examination of his belongings.

According to the Government, when the applicant was arrested and held in the police station, he was in possession of an immigration card indicating “a private visit” to Mr T. residing in Moscow as the aim of his presence in Russia, as well as photocopies of his Ukrainian passport and Shengen visa. The applicant was then interviewed and said that he was a journalist and worked as an editor for the Studio1+1 television channel. The Government pointed out, in this connection, that the administrative case file contained no photocopies of any document confirming the applicant’s status as a professional journalist.

Apparently, the applicant managed to contact a lawyer. In the applicant’s submission, the lawyer arrived at the police station at 9.15 a.m. but was not allowed to see him until 2 p.m.

At around that time, the applicant was allowed access to the administrative-offence record. The record compiled by Officer F. indicated that the applicant had been arrested because of his “participation in a nonauthorised demonstration in Nevskiy Avenue, thus creating a risk of accident threatening his own and others’ lives and limb”. The record also stated:

“A police officer approached [the applicant], introduced himself and asked [the applicant] to cease his unlawful actions. Despite repeated and lawful orders to cease unlawful actions, [the applicant] refused. Despite repeated and lawful orders to get into the police vehicle, he also refused while grabbing the police officers’ clothes and shouting. Physical force had to be used against him to make him get into the vehicle.”

“Witnesses, attesting witnesses, victims: Go., [address]; So., [address] ...”

Several hours later, a new administrative-offence record was compiled by Officer D. The applicant read and signed it at around 7 p.m. According to the record, the applicant was arrested because he had “disobeyed a lawful order from a police officer”. The record also had the following pre-typed line with added handwritten text:

“Witnesses, attesting witnesses, victims: Bo., [address]; Ka., [address] ...”

At around 8.30 p.m. the applicant was brought before a justice of the peace. He was accused of disobeying two orders from the police: (i) to cease his participation in the non-authorised demonstration; and (ii) to get, “voluntarily”, into the police vehicle, as stated in the judgment of the justice of the peace.

The applicant stated before the court that while having a walk with his friend, Ms K., he had seen people running along Nevskiy Avenue with banners and posters; he had followed them to take some photographs.

The applicant’s lawyer pointed out that the second record drawn up by the police was substantially different from the initial one. His efforts to have it admitted to the file, however, were unsuccessful. The judge heard Ms K., who stated that she had been taking a walk together with the applicant at 8.30 a.m. on 16 July 2006 when they had seen people running along Nevskiy Avenue; the applicant had started to follow them; she had lost sight of him and had eventually caught up with him when he had been placed in a police vehicle; at that point, he had not been showing any resistance to the police.

According to the applicant, the court refused to hear the officers who had arrested him (“the arresting officers”), the officers who had compiled the initial and the amended administrative-offence records or anyone mentioned in the record (see paragraphs 16-17 above). According to the Government, the applicant made no request to have the arresting officers examined at the trial.

On the same evening, the justice of the peace convicted the applicant under Article 19.3 of the CAO and sentenced him to three days of detention, to be counted from 10 a.m. on the same day.

The court relied on (i) the (second) administrative-offence record, compiled by the authority initiating prosecution against the applicant, and (ii) the written statements made by the arresting officers prior to the trial.

The applicant was held in a police cell for a night and then transferred to a special detention facility to serve the sentence.

Although the trial judgment was amenable to appeal within ten days, the applicant chose to lodge an appeal without delay. He also made a written statement, which read:

“Acting as a journalist, on 16 July 2006 I took photographs during a public event. I did not think I was breaching any law. If I did so unknowingly, I am sorry about that. On the same day I was sentenced to three days’ detention. I ask the appeal court, when examining my appeal, to grant it as regards my release. I would ask you to examine the appeal in my absence but with the participation of my counsel and a representative from the Ukrainian Consulate.”

On 18 July 2006 the applicant was visited by an official from the Ukrainian Consulate and signed a document authorising the Consul to represent him on appeal.

The Consul asked the appeal court to examine the appeal without delay.

On 18 July 2006 the Kuybyshevskiy District Court of St Petersburg heard the representative, upheld the conviction but reduced the sentence to two days’ detention. The appeal court held as follows:

“[The applicant] argued in his statement of appeal that the trial court had not taken into account that as a journalist he had not taken part in the so-called “anti-globalist” protest; the trial court had not examined prosecution witnesses while the judgment was solely based on the written reports made by the police officers who had arrested him ...

The trial judge gave a proper assessment of the officers’ reports and testimonies, including the testimony by K. who had been examined at the defendant’s request. It followed from K.’s statement that she had not observed the moment of the defendant’s arrest. This court has no reasons to doubt the officers’ reports because they had not been previously acquainted with the defendant and had no reason to commit perjury.”

The appeal court indicated that its decision was “subject to immediate enforcement”.

According to the applicant, he was released at 4 p.m. on the same day. Referring to a logbook of detainees (a copy of the relevant extract from which has not been submitted to this Court), the Government submitted that the applicant had been released at 10 a.m. on 18 July 2006.

The applicant sought a supervisory review of the judgments before the City Court. He argued, inter alia, that he had been refused an opportunity to examine the arresting officers whose pre-trial reports had constituted the main adverse evidence. On 13 November 2006 the deputy President of the City Court upheld the conviction in a summary manner.


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicant was born in 1977 and at the material time was serving a sentence of imprisonment. The facts of the case as submitted by the parties may be summarised as follows.

The case file indicates that in April 2001 and March 2005 the applicant was found guilty of various criminal offences, but his prison sentence was suspended for health reasons (cardiovascular and lung disorders, high blood pressure, a left bundle branch block, and tuberculosis of the left lung).

In November 2005 and March 2007 two additional sets of criminal proceedings on multiple charges including armed robbery were initiated against the applicant. He was arrested on 28 December 2006 and placed in pre-trial detention.

On 14 June 2007 the applicant was found guilty as charged in the first set of proceedings and sentenced to twenty-four years’ imprisonment. The applicant did not appeal against his conviction.

On 25 September 2007, in the second set of criminal proceedings, the applicant was found guilty of armed robbery and sentenced to thirteen years’ imprisonment. The court further decided that the aggregate term of imprisonment to be served pursuant to that judgment and the judgment of 14 June 2007 should be fixed at thirty years.

The judgment of 25 September 2007 was altered on appeal on 21 January 2008. The prison sentence for the offences committed in 2005 was reduced to ten years, but the total sentence to be served remained unchanged at thirty years. An appeal on points of law by the applicant was rejected as inadmissible by the Supreme Court of Georgia on 15 September 2008.

On 1 November 2012 the applicant was granted early release from prison.

The applicant entered the prison system with a history of tuberculosis of the left lung. On 10 April 2008 he was transferred to the Department of Prisons’ medical facility (“the prison hospital”), where an Xray of his lungs was performed. As no pathologies were revealed, the applicant was returned to Rustavi Prison no. 6 on 17 April 2008.

On 1 May 2008 he was hospitalised again because of a cyst on his right testicle, and on 4 May 2008 he underwent a surgical operation to have the cyst removed. The results of a subsequent biopsy revealed that the cyst was a benign skin cyst. On 6 May 2008 additional blood tests revealed that the applicant did not have AIDS, but it was not possible at that stage to determine the presence of the hepatitis C antibody in his blood. Further tests three months later were recommended. After a trouble-free period of convalescence, the applicant was sent back to prison on 24 May 2008.

On 23 June 2008 the applicant’s lawyer asked for additional medical tests to be organised for the applicant. In particular, he asked for a blood test for hepatitis C. That request apparently went unanswered. On 10 July 2008 the applicant was transferred to the prison hospital because of an abscess in his lower jaw. In addition to being treated by a dentist, according to the medical file, the applicant had a consultation with a neurologist and an endocrinologist because he was experiencing persistent headaches. The neurologist diagnosed him with post-traumatic encephalopathy and prescribed treatment. On 30 July 2008 the applicant was discharged from the prison hospital, although his headaches persisted.

On 8, 9, 15 and 24 September 2008 the applicant applied to the prison authorities to be returned to the prison hospital “for serious health reasons”. He did not specify what was wrong with his health. On 10 September 2008 the prison authorities forwarded the applicant’s letters to the governor of Rustavi Prison no. 6 and the head of the prison administration’s group of medical experts, so that they could be examined and appropriate action could be taken.

On 30 October 2008 the applicant staged a hunger strike to obtain an examination by a neurologist. On 5 November 2008 the applicant was seen in prison by a neurologist, who prescribed treatment for his post-traumatic encephalopathy.

On 10 November 2008 representatives of the Public Defender’s Office visited the applicant, who complained of headaches. The applicant alleged that during his previous stay in the prison hospital he had taken medicine for his headaches for a week, but to no avail. He said that he had suffered from headaches before his arrest, however, the pain had become more severe, and at that point it had been constant for six months. He also alleged that the treatment prescribed on 5 November 2008 had not yielded any results. On 11 November 2008 the Public Defender sent a report on the meeting to the prison governor and requested news of the applicant’s state of health.

On 27 November 2008, after having examined the applicant, the neurologist diagnosed neurasthenia and post-traumatic encephalopathy. Noting that the previous treatment had not worked, he considered that a more thorough examination was necessary.

On 8 December 2008 the applicant staged a second hunger strike, requesting that he be transferred to the prison hospital. He maintained that, having suffered a serious head injury in the past, he was in need of a comprehensive inpatient examination of his head. He further complained that, although he was only being prescribed simple sedatives, he was not receiving them. On 17 December 2008 a representative from the Public Defender’s office met with the chief physician of Rustavi Prison no. 6, where the applicant was staying at the material time. The doctor confirmed that the applicant was suffering from headaches and was in need of a tomography scan. He explained, however, that the applicant was only receiving pain medication, as the relevant insurance company refused to finance the required examination and treatment. According to an entry in the applicant’s medical file, on 19 December 2008 he was still on hunger strike, suffering from headaches.

On 29 December 2008 the Public Defender wrote a letter to the Minister of Justice, the head of the Prisons Department, and the Governor of Rustavi Prison no. 6, challenging the effectiveness of the insurance company with which the Ministry of Prisons had concluded a contract, on the basis of, inter alia, the applicant’s case. The Public Defender alleged that the applicant was being denied adequate examination and treatment for his post-traumatic brain condition. While discussing in detail the failures and shortcomings of the existing insurance scheme, the Public Defender recommended that the relevant authorities annul the relevant contract.

In the meantime, an X-ray of the applicant’s lungs taken on either 22 or 23 of December 2008 had revealed signs of recurrent tuberculosis. His doctor recommended bacteriological analysis and an examination by a specialist. On 23 January 2009 bacteriological tests revealed the presence of tuberculosis bacteria, and the applicant was immediately put on a DOTS (Directly Observed Treatment, Shortcourse) programme, the treatment strategy for the detection and cure of tuberculosis, as recommended by the World Health Organisation.

According to an entry in the applicant’s medical file, on 18 February 2009 he was still suffering from constant headaches. The doctor treating the applicant recommended that he be transferred to the prison hospital for proper examination. On 19 February 2009 the applicant was placed in the prison hospital with a diagnosis of pulmonary tuberculosis and posttraumatic encephalopathy. There, he underwent various medical tests, including a blood test for hepatitis C markers, which was negative, and a tomography scan. He also had a consultation with a neurologist. As a result, he was diagnosed with intracranial hypertension syndrome. The applicant was prescribed relevant treatment and sent back to Rustavi Prison no. 6 on 26 February 2009.

On 5 March 2009 the applicant was placed in a facility in Ksani for prisoners with tuberculosis. On 10 and 13 July 2009 he violated the internal rules of the facility. As a result, on an unspecified date he was transferred back to Rustavi Prison no. 6, where, according to the latest medical examination of which the Court was informed, he continued his treatment for tuberculosis.

On 14 July 2009 the applicant underwent a serological test, which detected no active hepatitis C virus in his system.

On 29 December 2006 the applicant was placed in Tbilisi Prison no. 5, where he stayed for almost six months. According to him, the conditions of detention in that prison were inhuman and degrading. In view of the severe overcrowding in prison, he had to take turns sleeping, sleeping for a maximum of four hours a day. The sanitary and hygienic conditions were appalling, and for months there was no opportunity for him to have proper shower. The applicant was also deprived of the opportunity to have regular outdoor exercise. Whilst in Tbilisi Prison no. 5, he was not allowed to see his family even once.

On 23 June 2007, following his conviction, the applicant was transferred to Rustavi Prison no. 6. According to him, the conditions of his detention improved there, although he was still deprived of regular outdoor exercise. Moreover, the nutrition in the prison was poor and he was deprived of basic items relating to hygiene, such as soap, bed linen, toilet paper, and towels.

According to a letter from the prison governor dated 24 June 2008, the applicant was only visited by his family once during his time in that prison, on 22 April 2008.


Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in 1977 and is currently serving a sentence in a correctional colony in the Tambov Region.

On 17 July 2007 the applicant was arrested on suspicion of robbery. On the following day the Meshchanskiy District Court of Moscow authorised his detention.

On 6 September 2007 the Taganskiy District Court extended the detention. That detention order was upheld on appeal on 22 October 2007 by the Moscow City Court.

Another extensions of detention followed on 16 October 2007 and 11 December 2007. The applicant appealed against both detention orders.

On 17 January 2008 the applicant was convicted as charged and sentenced to nine years’ imprisonment. The conviction became final on 19 March 2008.

On 2 July 2008, in reply to the applicant’s complaint about the failure to examine his appeal, the City Court informed him that his appeal against the detention order of 16 October 2007 was not received by the City Court. However, by a letter of 22 August 2008 the City Court forwarded the applicant’s appeal statement lodged on 17 October 2007 to the District Court, requiring it to perform procedural steps necessary to initiate the appeal proceedings. The City Court also informed the applicant that his appeal complaint of 17 October 2007 was mistakenly attached to another case-file.

No further information on organisation of the appeal hearing against the detention order of 16 October 2007 was provided.


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)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicant was born in 1943 and lives in Niš.

On 28 April 2010 the applicant brought an enforcement action before the Smederevo Court of First Instance (Osnovni sud u Smederevu) against a socially/State-owned company “FŽV Želvoz a.d. Smederevo” (the debtor).

On 15 December 2010 that court ordered direct enforcement of the outstanding invoice (izvršenje na osnovu verodostojne isprave).

On 15 June 2011 the Privatisation Agency ordered the restructuring of the debtor as part of privatisation process.

On 25 October 2011 the enforcement proceedings were stayed because the debtor was undergoing restructuring.

On 3 November 2011 the applicant appealed the decision to stay the enforcement proceedings.

On 10 February 2012 the applicant’s appeal was rejected by the enforcement court.

On 21 March 2013 the applicant urged the court to continue the enforcement proceedings.

On 7 June 2013 the court informed the applicant that the debtor was still undergoing restructuring and that therefore the enforcement proceedings could not be continued.

It would appear that the applicant did not appeal against this decision.

On 11 January 2010 the applicant brought an enforcement action before the Niš Commercial Court (Privredni sud u Nišu) against a socially/State-owned company “Vagonka a.d. Niš” (the debtor).

On 29 January 2010 that court ordered direct enforcement of the outstanding invoice.

On 4 November 2009 the Privatisation Agency ordered the restructuring of the debtor as part of privatisation process.

On 4 February 2010 the enforcement proceedings were stayed because the debtor was undergoing restructuring.

The applicant did not appeal against this decision which became final on 17 February 2010.

On 20 March 2013 the applicant urged the court to continue the enforcement proceedings.

On 22 March 2013 the court informed the applicant that the debtor was still undergoing restructuring and that therefore the enforcement proceedings could not be continued.


Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant, Ms Yelena Vladislavovna Gruzdeva, is a Russian national, who was born in 1978 and lives in the city of Rostov-on-Don, the Rostov Region.

The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

The applicant married V.G. in 1996. Two children, a boy and a girl, were born to the couple in 2002 and 2006 respectively. The family lived together in a house acquired during the marriage.

On 20 February 2008, due to growing tensions between the applicant and her husband, she left the house together with the children and moved into a rented apartment. Her husband continued to reside in the house.

On 12 March 2008 a court dissolved the marriage between the applicant and her husband. The issue of the children’s residence was not resolved in the course of the divorce proceedings.

According to the applicant, she reached an oral agreement with her husband that the children would stay with her. Shortly after the divorce, the applicant initiated civil proceedings for the division of marital property, including the house (see paragraphs 28-30 below).

On 20 March 2008 babysitter T., who was staying with the children in the applicant’s rented apartment, took them to the applicant’s former husband. According to the applicant, this was planned by her former husband and took place with his assistance.

On 21 March 2008, during the night, the applicant entered the house with the help of the police and took her daughter back. It appears that she could not, for some reason, take her son.

The applicant subsequently took her daughter to her mother’s home (her daughter’s maternal grandmother). She lived in another town. The applicant submitted that shortly after the incident her former husband sent their son with the babysitter to another town as well.

From 24 March until 15 April 2008 she was neither able to see nor contact her son. V.G. subsequently allowed the applicant to see her son for two hours every week.

On an unspecified date the applicant brought civil proceedings against her former husband, seeking a residence order in respect of her two children. The applicant’s former husband lodged a counterclaim and also asked the court to grant a residence order in respect of the children in his favour.

At a preliminary hearing, the Voroshilovskiy District Court, Rostov-on-Don (“the District Court”) ordered the Department of Education for the Voroshilovskiy District of Rostov-on-Don’s child welfare board (“the Department of Education”) to prepare reports on the living conditions of the applicant and her former husband.

On an unspecified date the Department of Education made a report on the living conditions of the applicant’s former husband. The report described the former matrimonial home in detail. The house had three floors and measured 478 sq. m.

On 24 April 2008 the Department of Education drew up a report on the applicant’s living conditions. The report stated that the sanitation conditions of and services supplied to the two-room rented apartment where the applicant and her daughter were living at the time were satisfactory. The applicant’s daughter had a separate room with a bed, a wardrobe and toys.

On 24 April 2008 K., the deputy head of the Department of Education, wrote her final remarks following the inspection of the applicant’s living conditions and those of her former husband. In the remarks K. stated that the Department considered that the children should reside with their father. The reasoning for that conclusion was as follows:

“V.G. is well off and [is able to] offer very good living conditions, there is a separate furnished room for each child in his house, a gym, a swimming pool, [and] the children’s babysitter lives in the house. V.G. is very attached to the children, loves and cherishes them and wants to support and develop them. V.G. is of good character, and does not have bad habits.

Gruzdev A. [the applicant’s son], currently living with his father, is tidily dressed, is [a] cheerful, well-brought-up, communicative, well-developed [child], [he] can read, [and] quickly assemble ‘Lego’ models. There is a quiet and kind atmosphere in the family. The child is surrounded with love, attention and care.”

During the trial the applicant lodged a motion for a repeated inspection of her living conditions to be carried out. On 27 June 2008 the Department of Education produced a second report which stated that the applicant, who worked as a senior customs inspector, earning 20,000 Russian roubles a month, and her daughter were living in a two-room flat in an apartment block. The flat measured 40 sq. m. During the summer the child’s maternal grandmother stayed with them. At the time of the inspection the applicant’s daughter had gone with her maternal grandparents to the seaside. One room of the apartment had two beds for the applicant’s children, another one had cushioned furniture. The kitchen furniture and a gas oven belonged to the landlord, whilst a table, a refrigerator and a number of other electrical appliances belonged to the applicant. There were children’s clothes, shoes and toys in the wardrobes in the corridor.

During the trial the District Court questioned witnesses Sh., D. and K., who gave evidence for the applicant and who stated that the applicant was considered to be of good character at work. Witness K. confirmed that the applicant’s son lived with his father and the applicant’s daughter lived with her maternal grandparents. K. also stated that the applicant’s former husband was a bad father.

The District Court also questioned a representative of the Department of Education, who stated that a residence order in respect of the children should be made in favour of their father.

Witnesses Ya., T., G. and T.K. gave oral evidence for the applicant’s former husband to the District Court to the effect that V.G. had always duly performed his paternal duties, had fully supported the family, and had established good living conditions for the children. The witnesses also noted that V.G. was the head of a business and could set his own working schedule, in order to spend more time with his children, and could also afford to employ a babysitter. The witnesses asserted that the applicant had not fully performed her parental duties and that most of the time the babysitter had taken care of the children, who had often been anxious and had cried in the applicant’s presence.

On 3 July 2008 the District Court granted a residence order in respect of the children to their father. The court relied on the reports and final remarks of the Department of Education and the statements made by its representative during the trial. The court also accepted the oral evidence given by witnesses Ya., T., G. and T.K. for the applicant’s former husband, as it considered that they were not concerned by the outcome of the case. At the same time, the court rejected the statements of K. that V.G. was a bad father, as they contradicted the facts of the case and the evidence led by V.G.

The District Court reasoned as follows:

“... Having analysed all the evidence, the court concludes that V.G. can create the conditions most favourable for the upbringing and development of his children, which will [...] correspond to the children’s best interests ...

Witnesses Sh. and D., questioned during the trial, who are the colleagues of Gruzdeva Ye.V. [the applicant] stated that [the applicant] is considered to be of good character at work, [is] polite, [and] has not received any reprimands from her superiors. These witnesses stated to the court that they knew that [the applicant] had a family and children ... D. stated that she knew that after the divorce the [applicant’s] son stayed with his father, and [the applicant] had taken her daughter, but [that] the girl was not living with her, as [the applicant had] sent her to [live with her] parents, and [the applicant] would visit her at the weekend. [The applicant] did not deny these facts during the trial.

Witnesses for the other party Ya., T., G. and T.K., questioned during the trial, stated that V.G. ... had always duly performed his paternal duties, had fully supported the family, had established good living conditions and had constructed the house with the needs of children in mind. Moreover, these witnesses stated that V.G., being the head of a business, could set his own working schedule, which would allow him to devote more time to the upbringing, education and development of his children and to spend more time with them. V.G. can afford to employ a babysitter, who has taken care of the children from birth. At the same time the witnesses asserted that [the applicant] had not fully performed her parental duties, since the babysitter had taken care of them most of the time. [T]he children would stay with the babysitter when [the applicant] repeatedly left on her own business and went on holiday, the children had often been anxious and had cried in the presence of [the applicant], [whereas] the father had always looked after the children, had played and spent his free time [with them] ... These witnesses are not concerned by the outcome of the case and therefore the court considers their statements to be credible.

Thus the court considers the [applicant’s] argument that her address should be determined as the children’s residence to be unsubstantiated, as it has been established during the trial that this dwelling does not belong [to her], but [rather] has been rented to her for the period from 20 February 2008 until 20 January 2009, [and] she is not registered at this address. Moreover, from the time of dissolution of the marriage her son has lived with his father in the house where they had all lived as a family before, while her daughter, who was taken by [the applicant], does not live with her, having been sent to [live with the applicant’s] parents, [thus] depriving the girl of the opportunity to see both her father and her brother.

The court is not convinced by [the applicant’s] argument that [her former husband] is unable to provide for the proper support, upbringing and development of the children, as [the applicant] has not provided any reliable evidence in support [of this argument].

The statements of K. ... that V.G. is a bad father and that the children should reside solely with their mother cannot be taken into account, since her statements contradict the facts of the case and the evidence provided by the [defendant, V.G.]...

In these circumstances the court ... basing its decision on the best interests of the children... [the] finances and family status of the parents, [and] taking into account the final remarks of the Department of Education ... rules that a residence order should be granted in favour of their father V.G. ...”

In July 2008 the applicant complained to the Rostov-on-Don Department of Education and the Rostov Region Ministry of Education that the final remarks made by employees R. and K. on behalf of the Department of Education had been improper and solely based on her former husband’s financial situation, without taking into account her situation, personality and relationship with the children and her role in their upbringing.

On 8 August 2008 the Department of Education informed the applicant that an internal investigation had confirmed some of the applicant’s allegations and R. had been subjected to a disciplinary sanction. On 20 August 2008 the Rostov Region Ministry of Education informed the applicant by letter that it had been established in the course of the internal investigation conducted by the Rostov-on-Don Department of Education that R., when preparing the final remarks concerning the official recommendation as to the residence of the applicant’s children, had not thoroughly studied the issue and had not reflected in the remarks the facts relating to the applicant’s personality and her relationship with the children. R. had been subjected to a disciplinary sanction in the form of a warning. It also noted that the final remarks of the Department of Education had not served as the sole basis for the judgment, since the court had analysed the totality of the evidence.

The applicant appealed against the judgment of 3 July 2008, arguing that when deciding on the issue of residence the first-instance court had only taken into account the financial situation of her former husband. The court had not assessed the evidence provided by her, namely that she was the coowner of the house the children were living in, the proceedings for division of marital property were pending and her stay in a rented apartment was only temporary. The applicant challenged the court’s conclusion that she had given her daughter to her grandparents and had not been taking part in her upbringing as unsubstantiated, submitting that the court had ignored her explanation of the reasons for the girl’s temporary stay with her grandmother. According to the applicant, she had had to leave the girl with her maternal grandparents for the fear that her husband may abduct her. In addition, the applicant pointed out that she had taken maternity leave to take care of the child from July 2008 until May 2009. The applicant complained that the first-instance court had treated the evidence led by her former husband more favourably and had not taken into account the testimony of K. The applicant argued that the first-instance court had not assessed the evidence showing that she had supported and taken care of the children, namely the evidence that she was employed at a customs office, including a salary slip, and had not taken into account the children’s minor age and their attachment to her. The applicant pointed out that the first-instance court had based its judgment on the flawed final remarks of the Department of Education. The applicant complained that the first-instance court had not explained why it had rejected the evidence concerning her former husband’s bad character and had not taken into account the fact that he had not let her come to the house to see the children.

On 1 September 2008 the Rostov Regional Court rejected the applicant’s appeal as unfounded. It ruled as follows:

“... [T]he first-instance court correctly assessed the evidence, including the reports on the inspections of the parties’ living conditions and the Department of Education’s final remarks of 23 April 2008, which had been supported during the hearing by their representative, and considered the totality of the evidence.

The court considered that all necessary conditions for the children to live with their father were satisfied, taking into account their interests, age and needs, their attachment to the father, [and] their father’s ability to establish the optimal conditions for their upbringing and psychological and social development.

Moreover, the court rightly ... pointed out that [the applicant] had not proved her allegations.

The court considers the appellant’s arguments that living with their father would not be in the children’s interests to be unsubstantiated...

According to the Department of Education’s final remarks of 23 April 2008, V.G. is [able to provide the children with] good housing conditions, there is a separate furnished room for each child in his house, a gym, [and] a swimming pool. He loves the children and is able, in the court’s opinion, to establish the [optimal] conditions for their upbringing, development and healthy living.

In these circumstances the court concluded that V.G. can ... raise the children and that living with their father would to a greater extent correspond to their best interests, as he is considered to be of good character in everyday life and at work and he has established appropriate living conditions for the children.

In addition, the court established during the trial that [the son] was in fact living with his father in the house while [the daughter], who had been taken by her mother, does not live with [the applicant] in the same apartment, but stays with relatives in another town.

In these circumstances the court rightly concluded that [the applicant] ... was not in fact living with the child.

The appellant’s reasons for not being able to live with her daughter cannot be taken into account ... since the present dispute concerns the granting of a residence order in favour of one of the parents and not [other] relatives, especially [relatives] living in a different town.

The fact that [the applicant] took maternity leave to take care of the child after the first-instance hearing does not in any way affect the legality of the first-instance judgment for the following reasons.

Firstly ... at the time of examination of the case at first instance the applicant was not on maternity leave ... the girl ... was staying with relatives although [the applicant] had taken her from her father to live with her. At the same time, [the applicant] had highlighted in her claim that the child, due to her minor age, needed to stay with her mother (and not with [other] relatives). The court considers that, in view of the family situation, [namely] the parents’ divorce, the girl should have been living with one of her parents, since she needed their support and protection...

In addition, the court takes into account the fact that before the first-instance judgment ... [the applicant] had not considered it necessary to take maternity leave to care for the child, or to be with the children.

The court also takes into account the fact that in spite of the children’s minor age at the time, [the applicant] returned to work after the birth of her daughter. She had not considered [them] to be worthy of her attention in the period when the family had been together and had had a stable income, and [went back to work from] maternity leave [she had taken] to take care of the baby, who was only one year old at the time, and the second child, who was five years old.

During the appeal hearing [the applicant] stated that she had been forced to interrupt her maternity leave because her husband had not been giving her any money, but this claim is refuted by the materials of the case, which describe the living conditions of the family ... [and by] the witness testimony, and the appellant has not provided any evidence in support of this claim at the appeal hearing. The applicant has not previously made this claim...

It is also important that the children can stay together at their father’s home.

In view of the above-mentioned reasons, the appellant’s argument that the court had only considered the financial situation of V.G. cannot be taken into account.

The first-instance court when resolving the dispute ... and assessing the evidence in the case proceeded from [standpoint of] the best interests of the children only and considered the ... situation from the point of view of which one of the parents offered greater opportunities for raising the children, had communicated with them more often, had spent more time with them, and could take care of them better.

When making its findings the court relied, among other things, on the pre-trial behaviour of the parties towards the children.

The argument of [the applicant] that the house ... is part of the common marital property and that she has initiated proceedings for its division is not relevant... The marital property ... was not the subject matter of the dispute. The dwelling where the children’s mother currently resides is not her property, it has been rented to her for the period from 20 February 2008 until 20 January 2009, she is not registered [as having her permanent residence] there.

At the same time the right of the children’s mother to live in the house ... has been established by a court judgment and, taking into account the fact that the children and their father live in the house, [she] will be able to see her children.

Moreover, she can subsequently lodge a [further] application for a residence order if the circumstances (the basis of the claim) change.

It should also be noted, that ... the maternity leave records, the records of witness statements and the other documents attached to the appeal submissions cannot be taken into account by the appeal court, since ... the appeal court can only consider new evidence in the case that could not have been submitted to the first-instance court. There is no evidence that [the applicant] could not have submitted the [relevant] documents to the first-instance court.”

On 11 November 2008 the Department of Education brokered an agreement between the applicant and V.G. (entitled Agreement no. 1) setting out the following contact schedule between the applicant and her children:

“1. On Tuesdays from 6 p.m. to 8.30 p.m. children are with [the applicant].

On Wednesday at 4 p.m. V.G. takes the boy to school.

At 6 p.m. [the applicant] takes the boy.

On Friday at 6 p.m. [the applicant] takes the boy home and until 11 a.m. on Sunday he stays [with his mother].

The [children’s] toys and other such objects are to be divided.

The number of holidays is divided in half. With the other parent’s consent ... the children may be taken outside of the city.

Responsibility for the health and safety of the children is borne by both parties.

During their annual leave period each party has the right to spend 20 days with the children.

Remarks: In case of an extraordinary situation each parent is under the obligation to warn the other two hours in advance of a change to the schedule. It is necessary to take joint and coordinated action in respect of the health of the children, both psychological and physical; [and to ensure that they] undergo medical examinations on time.”

Subsequently both parties on several occasions petitioned the Department of Education, citing their dissatisfaction with the established contact schedule. In particular, the applicant submitted fifteen affidavits, signed by witnesses, allegedly confirming her former husband’s refusals to let her enter the marital home in July and August 2008.

On 9 April 2009 the applicant brought court proceedings against V.G. for division of their marital property.

By a judgment of 12 May 2009 the District Court granted the applicant’s claims in part, having decided that the applicant now owned half of the marital house and a car. The first-instance judgment of 12 May 2009 was upheld on appeal by the Regional Court on 13 July 2009.

It appears that thereafter the applicant and V.G. commenced renovation and construction works on the former marital home with a view to residing in it as two separate families. By September 2009 all of the relevant renovation and construction works were completed.

On 18 May 2009 the applicant again sued her former husband V.G., seeking a residence order in respect of her two children.

In the applicant’s statement of claim, which she modified and updated on a number of occasions during the course of the court proceedings, she raised her previous arguments again and also referred to various changes in the relevant circumstances.

The applicant argued, in particular, that she now owned half of the former matrimonial home, a car, a flat and a plot of land, had a steady monthly income of some 24,990 Russian roubles (RUB) (573 euros), whilst the financial situation of her former husband had deteriorated, in that he had lost the business premises he had formerly owned, was no longer self-employed and was now in receipt of a modest salary at a private company and, lastly, had issues with honouring his personal debts.

The applicant also alleged that V.G. had repeatedly breached the agreement of 11 November 2008, had hurt the children, could not handle them on his own and had to have recourse to nannies, which he frequently changed, and that the applicant’s views in this respect were ignored. Furthermore, after the divorce proceedings V.G. had started living with a young woman, marrying her on 20 November 2009 and moving out of the matrimonial home.

In his response to the applicant’s claims, V.G. explained that he had moved out pending the renovation of the house, that he was still well off, as he earned between RUB 30,000 and 50,000 each month (688 to 1,146 euros) and that the applicant’s maintenance payments were not spent on the children, but rather were put aside. He also referred to expert reports (see below) confirming that he was a good father and that his relationship with the children was good.

On 3 June 2009 the Department of Education produced a report on an inspection of the applicant’s living conditions. It stated that at the time the applicant was living in a rented apartment consisting of two rooms with an overall surface area of 40 square metres and a living area of 25 square metres. One of the two rooms was used a room for children, with many books and toys. It was clean and at the time of the inspection the applicant’s son A. was there, clean and neatly dressed.

On 26 June 2009 the Department of Education produced a report on an inspection of V.G.’s living conditions. At the time V.G. was living in a rented three-room apartment with his then partner and future wife, A.S., and the two children, A. and D. The apartment was well-equipped and had a room for the children.

On 30 June 2009 a child welfare centre run by the local council produced a report on a psychological examination of the applicant, V.G. and their children that it had conducted. The report concluded that both children felt love and emotional attachment to both parents, and that both children needed to be able to properly communicate with both parents. The report stated that there were no concerns as regards the parenting styles of either their mother or their father.

At the same time, it noted some concerns in terms of the applicant’s behaviour in that she had dragged the children into the conflict between the parents, had a generally heightened level of protectiveness towards the children and a somewhat inconsistent parenting style. As regards their father, the report noted that he was also excessively protective of the children.

The report also concluded that the conflict had affected negatively the psychological state of the children, especially their son A., and that the level of conflict might lead to the children developing physical health problems. It was also noted that a conflict-free relationship between the parents was a significant factor in the psychological health of both children.

Overall, the report concluded that at this point a change of residence for the children was not recommended, because their adaptation to new conditions might worsen the effect of the stress factors on them.

On 28 April 2009 psychologist B. examined the children and compiled a report, which concluded that the boy A. did not present any significant mental health problems but that he had minor personality problems in the form of a heightened level of anxiety, which could be a reaction to a traumatising family situation. As regards the girl D., the doctor did not detect any problems at all.

In a report of 22 July 2009 the Department of Education stated that it favoured the children residing with their mother, given that she owned a three-room apartment in the town of Belaya Kalitva in the Rostov Region and a one-half share of the former matrimonial home in the city of Rostov-on-Don.

After the renovation of the former matrimonial home was over, the applicant and her former husband (together with his new family) moved back into the building, each of them occupying one half of the house, in accordance with the property split provided for in the previous court decisions (see paragraphs 28-30 above). Shortly afterwards the Department of Education inspected their respective homes.

In its report of 17 September 2009 the applicant’s home was said to contain two living rooms, a shower, two WCs and a swimming pool. Each child had a separate room and was provided all necessary home comforts. The report stated that the applicant “did not create obstacles to communication between the children and their father”. Both children lived with their father, but “missed their mother, wanted to see her more often and loved her”. The living and parenting conditions were “good and comfortable”, her relationship with the children was “generally good, based on trust and [was] open [in nature]”.

On the same date the Department of Education issued a report on the living conditions offered by V.G.’s family. His part of the house was similar in size and had three living rooms. The relationship between father and children was described as “good, taking their interests into account”. The children loved him, and respected, supported and loved each other. The living and parenting conditions established by V.G. for the children were described as being “very good, regard being had to the age and gender of the children”, the relationship between the children being “good and based on trust”.

Basing themselves on the results of the inspections of 17 September 2009, the Department of Education took the view that regard being had to all relevant factors it would be advisable for the children to reside with their mother.

On 2 November 2009 the Department of Education again inspected the applicant’s living conditions and on 16 November 2009 her former husband’s living conditions, concluding that they were equally good in both homes.

The applicant’s action for a residence order was examined by the District Court at court hearings which took place between 9 and 15 October and on 25 November 2009. The court questioned twenty one witnesses, including officials of the Department of Education, the doctors who had been involved in the expert reports detailed above and expert witnesses from various authorities. Expert E.V., in charge of the report of 30 June 2009, gave evidence in court in the presence of the parties, speaking in favour of not changing the residence arrangements and confirming the reasons given in the report of 30 June 2009.

On 4 December 2009 the District Court delivered a judgment, dismissing the applicant’s claim in full. The court relied on the evidence presented by the parties to the court and examined during the hearings and concluded that it would be equally beneficial for the children to live with either parent. Having regard to the home environment offered by V.G. to date, the court considered that it was more favourable for the children’s upbringing and development. At the same time, the applicant’s submissions to the effect that her former husband was deficient in supervising the health of the children were refuted and rejected as unfounded.

The court reasoned as follows:

“... The court, examining the report of the Department of Education on the need to change the residence of the children, comes to the opinion that [the Department’s] findings were made only on the basis of the amelioration of the [applicant’s] housing and finances.

[The applicant’s] claims that [her former husband’s] situation has worsened are not confirmed by the materials of the case... Apart from that, [the applicant] is a State official and being busy at work is [thus] unable to give the children due attention, whilst [her former husband] is a director of a firm, choosing his work schedule for himself, which is confirmed by the case-file materials. He can spend more time educating and developing [the children], whilst [they] are also given constant care and attention by [V.G.’s] family, namely their grandfather, uncle and V.G.’s wife, the atmosphere in the family being positive. The children love their family members and meet with them frequently.

[The applicant] in court confirmed that she has contact with her children five times a week, which refutes her arguments that [V.G.] has been blocking contact with the children.

The respondent has created a new family, which is confirmed by his marriage certificate, but this fact has no negative bearing on his relationship with the children, he cares about them and loves them just as much. Moreover, the witnesses questioned in court confirmed that [V.G.’s new] wife had a positive and caring relationship with the children. V.G. does not affect his children in a negative way, and this has never been mentioned in any of the [expert reports].

The time to date has demonstrated that the children growing up with V.G. has not [impacted on them] negatively and that, quite the contrary, they are growing up in a loving and caring [environment].

Overall, the court has not established any relevant and sufficient grounds for changing the residence arrangements. The court, in taking this decision, has had regard to the best interests of the children and their age, their attachments to all members of their extended family, their parents’ capacity to create the optimal conditions for the children’s education and development...”

The first-instance judgment of 4 December 2009 was upheld on appeal by the Regional Court on 4 March 2010, which stated that:

“...The judicial panel is unable to agree with [the applicant], who sought to have the first-instance judgment quashed on the grounds that [her finances and living conditions had considerably improved, whilst those of her husband had deteriorated].

Under [applicable domestic law] the mere fact that a parent has an advantage in [terms of] finances and living conditions cannot in itself be viewed as grounds compelling [the court] to grant the claim.

Moreover, [the applicant] failed to present any evidence which could confirm that V.G. has been evading his duty to maintain and educate his children or is unable to provide for them...

[The applicant] has not substantiated her claims about the deterioration of V.G.’s relationship with the children, that his new wife has a conflict of interests vis-à-vis the children or the existence of any threats to their physical or mental well-being...

Apart from that, the judicial panel takes into account the proximity at which the respective parents reside from each other and the absence of any impediments to contact between [the applicant] and the children...”

Article 65 (on the exercise of parental rights) of the Family Code of the Russian Federation of 29 December 1995 provides as follows:

“3. The place of the children’s residence, if the parents live apart, shall be established by an agreement between the parents.

In the absence of an agreement, a dispute between the parents shall be resolved in court, proceeding from the [standpoint of the] children’s best interests and taking into account the children’s opinions. In doing so, the court shall take into account the child’s affection for each of his parents and for his brothers and sisters, the child’s age, the moral and other personal characteristics of the parents, the existing relationships between each of the parents and the child, and [each parent’s] ability to create optimal conditions for the child’s upbringing and development (the parent’s kind of activity and work schedule, their financial situation and family status, etc.).”

Article 66 (on the exercise of parental rights by the parent residing separately from the child) of the Code provides as follows:

“1. The parent residing separately from the child shall have the right to communicate with the child and to take part in his upbringing and education.

The parent with whom the child lives shall not prevent the child communicating with the other parent, unless such communication would damage the child’s physical and mental health or his moral development.

The parents shall have the right to enter into a written agreement concerning the way in which the parent residing apart from the child may exercise his or her parental rights.

If the parents cannot reach an agreement, upon an action being brought by one (or both) of the parents the dispute shall be resolved in court with the participation of the [competent] guardianship or trusteeship authority.

In the event of failure to abide by the court’s decision, the measures stipulated by civil procedure legislation shall be applied to the respective parent. In the case of persistent failure to comply with the court’s decision, the court shall have the right, upon the claim of the parent residing separately from the child. to take a decision ordering that the child be handed over to that parent, proceeding from the [standpoint of the] child’s best interests and taking into account the child’s opinion.

The parent residing separately from the child shall have the right to obtain information on his or her child from educational establishments and medical centres, from social welfare institutions and from other similar institutions. Such information may only be refused if the parent presents a threat to the child’s life and health. Refusal to provide information may be disputed in court.”


CASE OF DOROSEVA v. THE REPUBLIC OF MOLDOVA

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

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

The applicant was born in 1978 and lives in Chisinau.

On 11 November 2009 at approximately 11.30 p.m. the applicant was arrested on the street by several police officers wearing plain clothes, on suspicion of possession of drugs.

According to the applicant, she was ill-treated by the police officers before being taken to the police station. At the police station she was held until the next morning.

In a medical report issued on 13 November 2009 a forensic doctor found that the applicant presented numerous bruises to her face, arms and hips. An x-ray examination of the applicant’s head, which according to the medical report was conducted on the same date, showed that the applicant also had a broken nose.

On 15 November 2009 the applicant was examined by a neurologist who determined that she had also suffered concussion.

On 14 January 2010 the applicant lodged a criminal complaint with the Prosecutor’s Office concerning her ill-treatment by the police on 11 November 2009.

On 1 April 2010 the Rascani Prosecutor’s Office refused to initiate criminal proceedings on the ground that the applicant’s complaint was illfounded. The decision was based on the statements of the accused police officers who had denied having ill-treated the applicant and on the fact that there was a possibility that the applicant’s injuries were the result of her falling over.

On 15 October 2010 a superior prosecutor from the same Prosecutor’s Office rejected the applicant’s appeal.

On 29 November 2010 an investigating judge from the Rascani District Court upheld the applicant’s appeal on points of law and ordered a re-examination of the applicant’s case. The judge found that the investigation conducted by the Prosecutor’s Office had been superficial and incomplete.

After the reopening of the investigation, the Prosecutor’s Office ordered the conduct of a new forensic medical examination. In a report dated 30 December 2010 a forensic doctor found that on 13 November 2009 the applicant had presented numerous bruises on her face and limbs and a broken nose. The applicant’s injuries had been produced by at least six different blows with a hard blunt object and since they were located on different parts of her body, they could not have been a result of a fall from the height of her body.

On 20 May 2010 the Rascani Prosecutor’s Office refused again to initiate criminal proceedings. This time the prosecutor argued that according to his verifications in the documents of the hospital where the applicant had undergone an x-ray of her nose, the procedure had been carried out not on 13 but on 10 November 2009. Moreover, the prosecutor found a discrepancy between the records in the forensic medical report of 13 November 2009 where the time of the applicant’s ill-treatment was indicated as 1 a.m. on 12 November and her subsequent statements indicated it as 11.30 p.m. on 11 November 2009. This decision was upheld by a superior prosecutor on 26 September 2011 and by an investigating judge from the Rascani District Court on 1 November 2011.


André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant, Mr Heinz Wilfried Müller, is a German national, who was born in 1944 and is currently detained in Straubing Prison. He was represented before the Court by Mr A. Ahmed, a lawyer practising in Munich.

Between 1980 and 2006 the applicant was convicted by courts in Germany, Italy and the Czech Republic in four judgments of numerous counts of sexual abuse of minors entrusted to him (essentially boys, often aged under fourteen), committed, inter alia, in a boarding school directed by him and in the context of activities of a boy scout group founded by him. The applicant was sentenced to several terms of imprisonment of up to five years and two months and a prohibition for life on exercising a profession entailing the education and supervision of minors aged under fifteen.

On 22 February 2008 the Deggendorf Regional Court convicted the applicant of two counts of serious sexual abuse of children (committed between July 2001 and October 2004, probably in summer 2002), of three counts of attempted rape (committed between July 2001 and October 2004, probably in summer 2003) and of three counts of having breached a prohibition on exercising a profession. It sentenced him to seven years’ imprisonment and reserved the order for the applicant’s preventive detention (vorbehaltene Sicherungsverwahrung) under Article 66a § 1 of the Criminal Code, read in conjunction with Article 66 §§ 1 (3) and 3 of the Criminal Code (see paragraphs 28 and 30-31 below).

The Regional Court found that the applicant, together with another person, had abused a boy aged approximately seven and a girl aged approximately ten and had attempted on three occasions to rape a boy aged around sixteen in his residence in the Czech Republic. He had further given private lessons to boys aged under fifteen, in breach of the prohibition on exercising a profession entailing the training and supervision of adolescents.

The Regional Court further found that the requirements under Article 66a read in conjunction with Article 66 § 3 of the Criminal Code for making a reserved order for the applicant’s preventive detention were met. It noted that the applicant had been found guilty of serious sexual abuse of children for which he was sentenced to at least three years’ imprisonment, as required by Article 66 § 3 of the Criminal Code. As confirmed by psychiatric expert L. whom the court had consulted, the applicant had a propensity to sexually abuse minors, in particular boys aged below fourteen, for the purposes of Article 66 § 1 (3) of the Criminal Code. The court noted that the psychiatric expert had diagnosed the applicant with a sexual deviation, namely a long-standing paedophilia, which had already determined his choice of profession.

The Regional Court considered, however, that it could not establish with sufficient certainty that the applicant, as a result of that propensity, was dangerous to the public, as required by Article 66 § 1 (3) of the Criminal Code. As the applicant had refused having himself examined by the psychiatric expert, there were insufficient factual elements permitting a sound prognosis on the applicant’s – very probable – dangerousness to the public. The court further took the view that the reserved order for the applicant’s preventive detention was proportionate as the applicant had it in his hands to substantially influence the result of a subsequent prognosis concerning his dangerousness by undergoing a therapy.

On 9 September 2008 the Federal Court of Justice dismissed the applicant’s appeal on points of law against the Regional Court’s judgment. It noted that there had been an error of law in that, contrary to the Regional Court’s findings, the conditions for making an unconditional order for the applicant’s preventive detention had been met. However, the applicant did not suffer any disadvantage by the merely reserved order for his preventive detention.

On 18 November 2010 the Deggendorf Regional Court, sitting as a chamber composed of two professional judges and two lay judges, ordered the applicant’s preventive detention under Article 66a § 2 of the Criminal Code (see paragraph 28 below), read in conjunction with Article 66 § 3 of the Criminal Code.

The Regional Court considered that the requirements laid down in Article 66a § 2 of the Criminal Code were met. It had regard to the applicant’s convictions and endorsed the findings made by psychiatric expert O. who had diagnosed the applicant with paedophilia and a dissocial personality disorder. It considered that, in view of these elements, there was a very high risk that the applicant, who denied his offences and had not completed a therapy, would reoffend if released. He had a propensity to commit further sexual offences similar to those he had been found guilty of and was therefore dangerous to the public. Having regard to the large number of offences involving many victims he had committed over a long period of time and his failure to reflect on his offences, the applicant’s preventive detention was proportionate despite his age of then 66 years.

On 29 March 2011 the Federal Court of Justice dismissed the applicant’s appeal on points of law.

On 11 May 2011 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He argued that his right to liberty under the Constitution and Article 5 § 1 of the Convention and the principle of proportionality had been violated by the order for his preventive detention, having regard to the findings in the Federal Constitutional Court’s leading judgment of 4 May 2011 (see paragraph 32-34 below). He further claimed that his right to a tribunal established by law had been breached in that the Deggendorf Regional Court had decided his case in a composition of two professional and two lay judges only. Given the complexity of the legal issue and the severity of the measure involved, the court should have sat in its standard composition of three professional and two lay judges.

On 20 June 2012 the Federal Constitutional Court allowed the applicant’s constitutional complaint, quashed the decision of the Federal Court of Justice of 29 March 2011 and remitted the case to that court (file no. 2 BvR 1048/11).

The Federal Constitutional Court referred to its judgment of 4 May 2011 in which it had found that Article 66a §§ 1 and 2 of the Criminal Code were incompatible with the constitutional right to liberty. These provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment (Abstandsgebot). They could only be further applied in the transitional period (until the entry into force of new legislation and until 31 May 2013 at the latest) subject to a strict review of proportionality. Proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released.

The judgment of the Deggendorf Regional Court and the decision of the Federal Court of Justice violated the applicant’s constitutional right to liberty for failure to examine the applicant’s case under the strict proportionality criteria set up in the Federal Constitutional Court’s judgment of 4 May 2011.

The Federal Constitutional Court further found that Article 66a of the Criminal Code was not incompatible with the Constitution on other grounds.

The Federal Constitutional Court considered that, just as preventive detention, reserved preventive detention, which served the protection of the public, was compatible with the dignity of the person enshrined in Article 1 § 1 of the Constitution. The court conceded that it remained unclear for a person concerned by a reserved preventive detention order during a large part of the duration of his term of imprisonment whether he would be taken in preventive detention. However, it was essentially in the hands of the person concerned whether the requirements for a subsequent preventive detention order would be met. That person was notably in a position to reduce or eliminate his dangerousness while serving his term of imprisonment by completing a therapy with success.

Moreover, apart from the above-mentioned ground (see paragraphs 14-15), reserved preventive detention complied with the constitutional right to liberty. In particular, it did not disproportionately restrict the constitutional right to liberty having regard to the valuations (Wertungen) of Article 5 § 1 of the European Convention on Human Rights and the case-law of the European Court of Human Rights.

The Federal Constitutional Court took the view that reserved preventive detention complied with sub-paragraph (a) of Article 5 § 1 of the Convention. There was a sufficient causal connection, as required by the European Court of Human Right’s case-law (see Van Droogenbroeck v. Belgium, 24 June 1982, § 35, Series A no. 50; and M. v. Germany, no. 19359/04, §§ 87 s., ECHR 2009) between the “conviction” by the sentencing court, in which the applicant’s preventive detention had already been reserved, and the applicant’s detention flowing from the later order for his preventive detention.

The court argued in this respect that the preventive detention subsequently ordered against the applicant was within the limits defined by the law applicable at the time of the applicant’s conviction and by the sentencing court’s judgment. The sentencing court’s judgment had already authorised a subsequent order for his preventive detention should he prove dangerous to the public (compare also the European Court of Human Right’s judgments in the cases of Van Droogenbroeck, cited above; De Schepper v. Belgium, no. 27428/07, §§ 35 ss., 13 October 2009; Haidn v. Germany, no. 6587/04, 13 January 2011; and B v. Germany, no. 61272/09, § 75, 19 April 2012). Therefore, the order for the applicant’s preventive detention was not a correction of, but a necessary complement to the sentencing court’s judgment, which concluded a two-part decision on the order of preventive detention. Only by the subsequent order for the applicant’s preventive detention a final decision on the applicant’s dangerousness was taken. It had been likely that he had been dangerous at the time of the sentencing court’s judgment, but the court had not been in a position to establish this with the necessary certainty.

The causal link between the authorisation of the applicant’s preventive detention in the sentencing court’s judgment and the later order for his preventive detention was also not broken by the lapse of time between that judgment and the preventive detention order. Article 66a of the Criminal Code was further formulated with sufficient precision and was foreseeable in its application so as to comply with the requirement of a “lawful” detention under Article 5 § 1 of the Convention.

The Federal Constitutional Court finally found that the impugned judgment of the Regional Court, taken in a composition of two professional judges (instead of three) and two lay judges, had not breached the applicant’s constitutional right to a tribunal established by law. The Deggendorf Regional Court’s assessment that the applicant’s case, which necessitated the hearing of three witnesses and one expert only, was not particularly complex and thus permitted reducing the formation from three to two professional judges under the applicable law was not arbitrary.

On 10 January 2013 the Federal Court of Justice, following the Federal Constitutional Court’s remittal of the case to it, again dismissed the applicant’s appeal on points of law against the judgment of the Deggendorf Regional Court of 18 November 2010. It found that the order for the applicant’s preventive detention complied with the stricter proportionality criteria set up by the Federal Constitutional Court in its judgment of 4 May 2011. It was very likely that the applicant would again commit serious sexual offences similar to those he had been found guilty of by the Deggendorf Regional Court in 2008.

Since October 2013 the applicant, having served his full prison sentence, has been in preventive detention on the premises of Straubing Prison.

On 6 November 2014 the Federal Constitutional Court declined to consider the applicant’s further constitutional complaint of 13 March 2013 against the judgment of the Deggendorf Regional Court dated 18 November 2010 and the decision of the Federal Court of Justice dated 10 January 2013 (file no. 2 BvR 582/13).

A comprehensive summary of the provisions of the Criminal Code and of the Code of Criminal Procedure governing the distinction between penalties and measures of correction and prevention, in particular preventive detention, and the making, review and execution in practice of preventive detention orders, is contained in the Court’s judgment in the case of M. v. Germany (no. 19359/04, §§ 45-78, ECHR 2009). The provisions referred to in the present case provide as follows:

Article 66a of the Criminal Code, which provides for the possibility to make reserved preventive detention orders, was inserted in the Criminal Code by the Introduction of Reserved Preventive Detention Act (Gesetz zur Einführung der vorbehaltenen Sicherungsverwahrung) of 21 August 2002, which entered into force on 28 August 2002 (see Federal Gazette I, p. 3344).

Article 66a §§ 1 and 2 of the Criminal Code, on reservation of placement in preventive detention, in the version in force at the relevant time, read:

“(1) If on conviction for one of the offences listed in Article 66 § 3, first sentence, it cannot be established with sufficient certainty whether the perpetrator is dangerous to the public within the meaning of Article 66 § 1 (3), the court may reserve the order for preventive detention if the remaining requirements of Article 66 § 3 are met.

(2) The court decides on whether preventive detention shall be ordered no later than six months before the date on which the suspension of the remainder of the prison term on probation ... is possible. It shall order preventive detention if a comprehensive assessment of the convicted person, of his acts and of his development while serving his prison term reveal that it is likely that he will commit serious offences which seriously harm their victims mentally or physically.”

Article 66a of the Criminal Code remained in force in an amended version also after the legislative changes made to the provisions on preventive detention since then.

Article 66 of the Criminal Code, to which Article 66a of that Code refers, concerns orders of preventive detention. Article 66 § 1, in the version in force at the relevant time, provided that the sentencing court had to order preventive detention in addition to the penalty if someone was sentenced for an intentional offence to at least two years’ imprisonment and if the following further conditions were satisfied. Firstly, the perpetrator must have been sentenced twice already, to at least one year’s imprisonment in each case, for intentional offences committed prior to the new offence (Article 66 § 1 (1)). Secondly, the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for at least two years (Article 66 § 1 (2)). Thirdly, a comprehensive assessment of the perpetrator and his acts must reveal that, owing to his propensity to commit serious offences, notably those which seriously harm their victims mentally or physically or which cause serious economic damage, the perpetrator presents a danger to the general public (Article 66 § 1 (3)).

Under Article 66 § 3, first sentence, of the Criminal Code, preventive detention may further be ordered in addition to a prison sentence if the perpetrator is sentenced for certain serious offences, including rape and sexual abuse of children, to at least two years’ imprisonment, if he has previously been convicted (only) once of one or more such offences to at least three years’ imprisonment and if the remaining requirements laid down in Article 66 § 1 (2) and (3) are met. Article 66 § 3, second sentence, provides that if a person committed two of the offences listed in the first sentence of that provision for each of which he is punishable to at least two years’ imprisonment and if he is sentenced for one or more of these offences to a term of imprisonment of not less than three years, the court may order preventive detention in addition to the prison sentence under the conditions laid down in Article 66 § 1 (3) even in the absence of a prior conviction or detention (Article 66 § 1 (1) and (2)).

On 4 May 2011 the Federal Constitutional Court delivered a leading judgment concerning the retrospective prolongation of the complainants’ preventive detention beyond the former ten-year maximum period and also concerning the retrospective order for a complainant’s preventive detention under Article 66b § 2 of the Criminal Code and Article 7 § 2 of the Juvenile Courts Act (file nos. 2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10). Reversing its previous position, the Federal Constitutional Court held that all provisions concerned, both on the retrospective prolongation of preventive detention and on the retrospective ordering of such detention, were incompatible with the Basic Law as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law, read in conjunction with the constitutional right to liberty.

The Federal Constitutional Court further held that all the relevant provisions of the Criminal Code on the imposition and duration of preventive detention were incompatible with the fundamental right to liberty of persons in preventive detention. It found that those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment (Abstandsgebot). These provisions included, in particular, Article 66 of the Criminal Code in the version of 27 December 2003 and Article 66a §§ 1 and 2 of the Criminal Code in the version of 21 August 2002.

The Federal Constitutional Court ordered that all provisions declared incompatible with the Basic Law remained applicable until the entry into force of new legislation and until 31 May 2013 at the latest. In relation to detainees whose preventive detention had been prolonged retrospectively, or ordered retrospectively under Article 66b § 2 of the Criminal Code or Article 7 § 2 of the Juvenile Courts Act, the courts dealing with the execution of sentences had to examine without delay whether the persons concerned, owing to specific circumstances relating to their person or their conduct, were highly likely to commit the most serious crimes of violence or sexual offences and if, additionally, they suffered from a mental disorder within the meaning of section 1 § 1 of the newly enacted Therapy Detention Act. The other provisions on the imposition and duration of preventive detention could only be further applied in the transitional period subject to a strict review of proportionality; as a general rule, proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released.


Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in 1960 and lives in Omsk.

The applicant was deputy head of the Omsk Regional Department for the Execution of Sentences.

On 22 August 2002 the Novosibirsk Regional Court authorised for 180 days the interception and recording of the applicant’s telephone conversations, interception of postal communications and the collection of data from technical channels of communication. The surveillance authorisation read in its entirety as follows:

“Operational-search measures carried out with the aim of combatting corruption within State authorities have revealed indications of a systematic bribery scheme operated by certain prison officials in the Omsk region.

According to operative information, there are good reasons to suspect [the applicant], deputy head of the Omsk Regional Department for the Execution of Sentences, of arranging for, and systematically receiving, unlawful payments from confidants of the convicts serving their sentences in Omsk penal institutions in exchange for granting them various privileges (such as a prison leave, improved conditions of detention or transfer to another penal institution within the Omsk region, which was for some reason preferred by the convict in question).

Given that [the applicant’s] actions contain elements of criminal offences under Article 290 § 4 of the Criminal Code [bribe-taking], classified as a serious offence, and under Article 285 § 1 of the Criminal Code [abuse of power], it is necessary to perform a combination of operational-search measures (interception and recording of telephone conversations, monitoring of correspondence and collection of data from technical channels of communication) in order to collect evidence of his criminal activities, and to receive information about the bribegivers and the payment mechanisms used.”

On 18 February 2003 the Novosibirsk Regional Court authorised “audio surveillance” of the applicant’s office for 180 days. The Government did not submit a copy of that decision.

Charges of bribe-taking or abuse of power have never been brought against the applicant.

In March 2003 the applicant was charged with disclosure of State secrets, an offence under Article 283 § 1 of the Criminal Code, for informing a convict’s relative that the convict was under covert surveillance.

When studying the criminal case file, the applicant learnt for the first time that his telephone conversations had been recorded and his other communications monitored. He also learnt that a recording of his telephone conversation with Ms L., a sister of a convict detained in a penal institution under his supervision, formed the basis for the charge of disclosure of State secrets. During the conversation, which had taken place on 17 October 2002, the applicant had warned Ms L. that her relative was under covert surveillance and that there were listening devices hidden in his cell.

At the trial the applicant pleaded not guilty. He claimed, in particular, that the recording of his telephone conversation with Ms L. was inadmissible as evidence as it had been obtained unlawfully.

On 16 February 2005 the Omsk Regional Court found the applicant guilty of disclosure of State secrets, an offence under Article 283 § 1 of the Criminal Code. It relied on the recording of the applicant’s telephone conversation with Ms L., among other evidence. It found that the recording was admissible as evidence as it had been obtained in accordance with the procedure prescribed by law. In particular, the interception of the applicant’s telephone conversations had been authorised by a court on the grounds that he was suspected of the serious criminal offence of bribetaking. The applicant was sentenced to three years’ imprisonment, suspended for two years.

In his appeal submissions the applicant complained, in particular, of a violation of his right to respect for his private life. He argued that the interception of his communications had been unlawful and unjustified, and that the recording of his conversation with Ms L. was inadmissible as evidence.

On 21 June 2005 the Supreme Court of the Russian Federation upheld the conviction on appeal. It noted that all the evidence had been collected in accordance with the procedure prescribed by law and was admissible.