Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Just satisfaction dismissed (out of time) (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The applicant was born in 1953 and lives in Split.

The applicant is the owner of a commercial building in Split, which he uses as a car repair workshop. The building in issue was bought from the State in 2001. At the time of purchase, no limitation on its use was registered or apparent.

On 28 March 2003 the Split Department for the Conservation of Cultural Heritage (Ministarstvo kulture, Uprava za zaštitu kulturne baštine, Konzervatorski odjel u Splitu, hereafter “the Split Department”) ordered a measure of preventive protection relating to cultural heritage with regard to the applicant’s building, pending the final evaluation of its cultural value. It explained that the building, which was being used as a car repair workshop at that point, appeared to be a rare example of early industrial architecture in Split, and therefore this warranted a measure limiting its use by the applicant. Under section 10 of the Protection and Preservation of Cultural Heritage Act (Zakon o zaštiti i očuvanju kulturnih dobara, hereafter “the Cultural Heritage Act”) the measure would remain in place for a period of three years, and, in accordance with section 11 of the same Act, would afford the same protection as a final protective measure (see paragraph 21 below).

The decision ordering the preventive protection was not transmitted to the applicant. It was forwarded to the land registry of the Split Municipal Court (Općinski sud u Splitu) and duly registered in the land register.

On 10 January 2007, after the expiry of the three-year period, the Split Department again ordered a measure of preventive protection with regard to the applicant’s commercial building, reiterating the same grounds as those specified in its previous decision.

The applicant was not informed of the above decision relating to the second measure of preventive protection in respect of his building. On 3 September 2007 the measure was registered in the land register.

On 16 October 2007, after becoming aware of the second measure of preventive protection following an enquiry with the land registry, the applicant challenged the extended application of that measure before the Ministry of Culture (Ministarstvo culture, hereafter “the Ministry”). He contended, in particular, that he had not been informed of the decision ordering the preventive protection, and that the protection could no longer be ordered, since the maximum duration of such a measure under the Cultural Heritage Act was three years. The applicant also enquired about compensation in respect of the pecuniary damage he had sustained as a result of the measure of preventive protection.

On 8 January 2008 the Split Department forwarded the applicant’s appeal to the Ministry. It stressed that the decision of 10 January 2007 extending the preventive protection after the expiry of the first three-year period had been necessary, owing to the fact that it had not been possible to obtain an excerpt from the land register from the Split Municipal Court, and that the building represented an important example of early industrial architecture in Split.

On 31 January 2008 the Ministry dismissed the applicant’s appeal as unfounded, on the grounds that there was nothing in the law preventing the competent authority from applying the measure twice for periods of three years, and that the measure of preventive protection had not limited the applicant’s ownership rights. It also pointed out that it was necessary to extend the preventive protection in respect of the building, as the determination of its heritage value required further comprehensive assessment.

On 9 March 2008 the applicant lodged an administrative action in the Administrative Court (Upravni sud Republike Hrvatske), challenging the lawfulness and reasonableness of the measure of preventive protection, and emphasising the passivity of the competent authorities in finally resolving the matter. He also contended that the decisions of the lower authorities had been arbitrary. He pointed out that, contrary to what the Ministry had stated, his ownership rights had been significantly limited, as his freedom to deal with the property as he wished had been restricted. In particular, his several attempts to sell the building and set up another business cooperation had failed, owing to the existing preventive protection. The applicant also asked the Administrative Court to award him 200,000 euros (EUR) in respect of the damage he had sustained as a result of the conduct of the administrative authorities.

Meanwhile, the Split Department found that the applicant’s building should not be registered as an object of cultural heritage. On 15 April 2010, after the expiry of the measure of preventive protection, the Split Municipal Court ordered that the entry concerning the measure be deleted from the land register.

On 18 May 2011 the Administrative Court dismissed the applicant’s administrative action as unfounded, endorsing the reasoning of the lower authorities. In particular, it pointed out that there had been solid evidence suggesting that the building was an important object of cultural heritage, and that the measure of preventive protection was therefore justified given the need to carry out further assessments. Moreover, the Administrative Court considered that nothing in the relevant domestic law prevented the adoption of the second decision on preventive protection following the expiry of the first three-year time-limit.

On 10 September 2011 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), complaining of a violation of his property rights under Article 48 of the Constitution with regard to the allegedly unlawful and unreasonable application of the measure of preventive protection in respect of his property.

On 14 December 2011 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded.


CASE OF PALEVIČIŪTĖ AND DZIDZEVIČIENĖ v. LITHUANIA

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

Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano

The applicants are sisters, who were born in 1949 and 1950 respectively and live in Vilnius and Varėna.

On 23 May 1996 the national authorities issued a decision to restore the applicants’ father’s property rights in respect of a plot of land measuring 9.87 hectares. His property rights were registered on 6 June 1996.

Following their father’s death on 23 December 1995, the applicants were issued with a certificate of inheritance on 27 June 1996 and inherited his property in equal parts. Two plots of land measuring 8.93 hectares and 0.94 hectares respectively were returned to them in natura. These plots were marked out in October 1995, but an engineer did not indicate in the plan that there was a house situated on the plot of land of 8.93 hectares that did not belong to the applicants.

On 5 July 2001 J.P. bought a house and a storehouse. The cadastral measurements of the house were taken in September 1992, and the building was classified as residential. The plot of land under the house and for residential purposes measured 0.5204 hectares, and although J.P. did not buy the land on which the house stood, he used it. On 4 August 2005 A.P., who was J.P.’s mother, had her property rights restored, and transferred her plot of land of 0.51 hectares to the place where J.P.’s house was located. J.P., as A.P.’s heir, asked for the plot of land of 0.51 hectares to be entered into the land registry in his name. However, his request was refused by the national authorities, because that plot overlapped the applicants’ land.

In June 2007 the Alytus County Administration (“the ACA”) stated that the applicants’ father’s rights had been restored in respect of the land under the buildings that did not belong to him. The ACA also explained that, if there was no dispute, the decision of 23 May 1996 (see paragraph 6 above) could be amended and the borders of one of the applicants’ plots of land could be changed as well (see paragraph 39 below). If there was a dispute, the ACA would initiate court proceedings in order to annul part of the decision of 23 May 1996. The applicants were given until 1 August 2007 to reply in writing to the ACA’s proposal. The applicants did not agree with the ACA’s proposal.

In December 2007 the National Land Service held that domestic law did not allow the restoration of property rights to land under buildings owned by third parties. As a result, the documents restoring the property rights of the applicants’ father had to be amended.

As there was a dispute, the ACA asked a prosecutor to start court proceedings. In April 2008 the prosecutor lodged a claim with the Varėna District Court and asked it to annul part of the decision of 23 May 1996 (see paragraph 6 above) restoring the property rights of the applicants’ father in respect of 0.4863 hectares of land, and the relevant part of the succession document issued to the applicants.

On 21 April 2009 the Varėna District Court allowed the prosecutor’s application, indicated that the part of the decision of 23 May 1996 regarding the 0.4863 hectares had to be annulled, and held that a plot of land of 0.51 hectares had to be demarcated for J.P. The applicants’ property rights would be protected by giving them an equivalent plot of land in another area. It appears that the court suggested several times that the parties conclude a friendly settlement agreement, but the applicants refused.

The applicants appealed. They claimed, among other things, that the prosecutor had missed the thirty-day time-limit for lodging a claim.

On 4 November 2009 the Vilnius Regional Court upheld the decision of the court of first instance. The court held that the prosecutor had only found out about the situation at issue on 31 March 2008, and had lodged the complaint on 30 April 2008, thus the time-limit for lodging a claim had not been missed. The court further held that the plot of land that J.P. had been using had been formed back in 2001 when the buildings had belonged to V.G., and that the applicants had signed the documents and agreed with the borders of the plot under the buildings. The court also held that the restitution of property was a matter of public interest, because it not only related to specific individuals, but to public opinion in general (formuoja visos visuomenės nuomonę). The property rights of land owners were not absolute, and in the case at issue the lawful interests of a third party had to be protected.

The applicants submitted an appeal on points of law, and on 19 April 2010 the Supreme Court sent the case back to the Court of Appeal for fresh examination, stating that the lower courts had not examined the factual circumstances regarding how big the plot of land had to be in order for the buildings to be used. The Supreme Court also held that the Vilnius Regional Court should assess the fact that no plot of land under the buildings had been demarcated at the time the applicants’ father’s property rights had been restored.

On 2 February 2011 the Vilnius Regional Court sent the case back to the court of first instance for fresh examination, stating that the substance of the case had not been examined thoroughly. The court held that one of the buildings belonging to J.P. had previously been a school building, but since 1992 it had been registered in the register of immovable property as a residential building. The court observed that some mistakes had been made in the process of restoring both J.P.’s mother’s and the applicants’ father’s property rights. The court further held that the conclusion of the Varėna District Court that J.P. was entitled to a plot of land measuring 0.51 hectares was unfounded. Although there were some buildings on the land that had been returned to the applicants’ father, the exact size of the plot necessary in order for the buildings to be used had not been determined. Moreover, although the applicants and J.P. had provided some evidence, this was insufficient to prove that the size of the plot of land under the buildings had to be 0.51 hectares. Lastly, the Vilnius Regional Court obliged the parties to the proceedings to provide documents proving how big the plot of land had to be in order for J.P.’s buildings to be used.

On 20 February 2012 the Varėna District Court established that J.P.’s buildings were on the plot of land measuring 0.51 hectares. The court also held that J.P. was using the exact plot which had been marked out for V.G., and the plan of the land had been signed by the applicants (see paragraph 14 above). The court considered that the person who had measured the land for the applicants had not marked the house in that area, and had not taken any actions to find out who the owner of the house was; therefore, he was the person who had made a mistake. The court noted that in fact 0.5019 hectares overlapped the applicants’ land, but as J.P. was not asking for this, only 0.4863 hectares of land had to be taken from the applicants. Lastly, although the 0.4863 hectares of land had to be taken away from the applicants, their property rights had to be protected by providing them with a new plot of land of equivalent value in another place.

The applicants appealed, and on 24 July 2013 the Vilnius Regional Court upheld the decision of the Varėna District Court of 20 February 2012. The court held that, although the applicants claimed that J.P.’s house was not a residential building and thus no land for residential purposes could exist, the data from the register of immovable property and the purchase agreements showed that the building was a residential building. The court also held that the applicants’ father’s property rights to the land under the buildings at issue could not have been restored, as those were not his buildings. In fact, since 1992 the relevant documents had referred to there being a plot of land of 0.5204 hectares near the buildings.

The applicants submitted numerous appeals on points of law, but they were dismissed by the Supreme Court on 5 September 2013, 7 and 25 October 2013 and 10 December 2013 as either not raising important legal issues or being repetitive.

On 27 January 2014 the National Land Service sent a letter to the applicants explaining that the legal registration in respect of their plot of land of 0.4863 hectares had been annulled following the decisions of the domestic courts, and asked them to choose the means by which they wanted their property rights in respect of the plot of land of 0.4863 hectares to be restored. The National Land Service noted that the restoration of property rights in natura was not possible.

In February 2014 one of the applicants wrote to the National Land Service and asked for the return of the plot of 0.4863 hectares in natura. She also claimed that J.P. was using the plot of land for residential purposes unlawfully and that she had sustained damage.

In March 2014 the National Land Service informed the applicant that she could start court proceedings for damages. The National Land Service also explained that the purchase agreement in respect of J.P.’s buildings was valid, and that, in accordance with the decisions of the domestic courts, J.P. was entitled to use the plot of land under the buildings.

In September 2014 the National Land Service replied to a request by one of the applicants in July 2014 for an explanation of the actions of the Varėna Division of the National Land Service and compensation in respect of pecuniary damage. The National Land Service stated that the applicants were aware of the court proceedings regarding the decision of 23 May 1996 to restore their father’s property rights. It also held that J.P. was entitled to buy the plot of land for residential purposes located under the buildings from the State.

In June 2014 J.P. was included into the list of candidates to buy a plot of land of 0.51 hectares and on 18 November 2015, after some measurements had been carried out, the plot of land of 0.5082 hectares was sold to J.P.

In March 2015 the National Land Service replied to a complaint by one of the applicants about the restoration of her father’s property rights. Among many other things, the applicant asked for: the process of amending the borders of their plot of land to be terminated; J.P. to be prohibited from constructing buildings and growing plants; his property to be kept on the plot of land at issue; an opportunity to buy the plot of land that had been taken from them; and an easement under J.P.’s buildings to be established. The National Land Service indicated that such a request had already been dismissed by the domestic courts (see paragraph 29 below). It was impossible to allow the applicants to buy the same plot of land that had been taken from them, because that plot of 0.4863 hectares had not belonged to their father in the first place. In addition, J.P. was not stating that he wanted an easement to be established, thus the applicant’s request in this respect was unfounded.

The applicants complained to a member of the Seimas, who sent their complaint to the Varėna Division of the National Land Service. The member of the Seimas asked for explanations about the procedure for restoring the applicants’ property rights and why their property rights to the 0.4863 hectares of land had not been restored. In May 2015 the Varėna Division of the National Land Service explained that the applicants’ property rights to the plot of land of 0.4863 hectares had been annulled in accordance with the decisions of the domestic courts (see paragraphs 17-19 above). In January 2014 the applicants had been asked to choose the means by which they wished their property rights in respect of the 0.4863 hectares of land to be restored (see paragraph 20 above), but they still insisted on having the land returned in natura (see paragraph 21 above), which was not possible. The Varėna Division of the National Land Service also provided detailed information about monetary compensation as a means of restoring the applicants’ property rights. The monetary compensation procedure could be started after the applicants submitted a request for their property rights to be restored by means of monetary compensation. As a preliminary estimate, the value of the plot at issue was estimated at 217 euros (EUR).

In June 2015 the Varėna Division of the National Land Service once again informed the applicants that returning the 0.4863 hectares of land in natura was not possible and that they could have monetary compensation. The applicants were also informed that the procedure could be started after a request to restore their property rights by means of monetary compensation was received by the authorities (see paragraph 42 below). The preliminary estimate as to the value of the plot was also indicated as being EUR 217. It appears that the applicants did not reply to this letter, nor did they submit a request for monetary compensation, but the National Land Service calculated the compensation at EUR 433 after having adjusted it in line with the inflation index, and on 12 July 2017 invited the applicants to come and discuss the restoration of their property rights. The meeting was adjourned once until 25 July 2017 because the applicants’ lawyer had holidays planned. On 24 July 2017 the applicants’ lawyer asked to adjourn the meeting again because one of the applicants was ill, but she did not provide any documents confirming this. The National Land Service decided to hold a meeting as planned on 25 July 2017, and issued a decision to restore the applicants’ property rights to the 0.4863 hectares of land by paying them monetary compensation of EUR 433.60. One of the applicants collected the decision on 8 September 2017. The decision was not appealed against.

In 2010 one of the applicants asked a prosecutor to start a pre-trial investigation into J.P.’s actions. According to her, J.P. was using land to which he had no rights. In November 2010 the prosecutor decided to terminate the pre-trial investigation, as there was no evidence of a criminal act. That decision was upheld by a higher prosecutor in December 2010 and by the Varėna District Court and the Vilnius Regional Court in January 2011.

In 2011 the applicants asked for interim measures to be applied and for J.P. to be prohibited from constructing buildings, temporary constructions and roads, and from growing plants and farming on the plot of land at issue. Their application was dismissed by the Varėna District Court and Vilnius Regional Court in May 2011 and November 2011 respectively.

On an unspecified date one of the applicants started court proceedings regarding the cadastral measurements of the land. The applicant also claimed that J.P. had acquired his building unlawfully and that he had been using her land without any legal grounds. On 6 May 2014 the Kaunas Regional Administrative Court held that the applicant’s allegations had already been rejected by the decision of the Varėna District Court of 20 February 2012 (see paragraph 17 above). The court also stated that the cadastral plan proposed by the applicant was not approved, because she had included J.P.’s land on it and marked it as hers. As a result, the applicant’s complaint was dismissed.

In 2015 the applicants initiated civil proceedings regarding the change of purpose of one of the buildings belonging to J.P. They claimed that J.P.’s house had previously been a school, and thus its purpose was communal and not residential. In November 2015 the Varėna District Court dismissed their claim. In April 2016 the Kaunas Regional Court upheld the first-instance decision, and in July and August 2016 the Supreme Court dismissed appeals by the applicants on points of law.


Preliminary objections joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies;Six month period);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;George Nicolaou;Helena Jäderblom;Johannes Silvis;Luis López Guerra

The applicant was born in 1933 and lives in Karabulak, Ingushetia. He is the uncle of Mr Apti Dalakov, who was born in 1986. Mr Apti Dalakov’s parents and brother died in a car accident in 1998.

are disputed by the parties.

At about 5 p.m. on 2 September 2007 Mr Apti Dalakov and his friend Mr I.D. left a computer club in Karabulak. While they were walking down Oskanova Street, two Gazel minivans with heavily tinted windows and without number plates pulled over and a group of men armed with assault rifles and pistols emerged from the vehicles. Two of the armed men wore plain clothes, while the others were in camouflage uniforms and balaclavas. Without identifying themselves or giving any explanation they pointed their guns at Mr Apti Dalakov and Mr I.D. and opened fire. Mr Apti Dalakov ran away. The armed men pursued him and continued shooting.

In Dzhabagiyeva Street, in the presence of a number of local residents, including Mr I.B.M., Ms A.I.Ts. and Ms F.Kh.Ts., Mr Apti Dalakov was hit by a car and fell to the ground. He got up and limped into the courtyard of the adjacent nursery school. A man from the car which had hit Mr Apti Dalakov ran after him and fired at him several times with his pistol. Mr Apti Dalakov fell to the ground face down. Several other armed men ran towards the scene and one of them fired at Mr Apti Dalakov several times while he was on the ground. After having ascertained that Mr Apti Dalakov was dead, one of the armed men lifted his body and placed an object under it.

Shortly thereafter a group of officers of the local police and the special police force (Отдел милиции особого назначения (ОМОН)) (hereinafter “the OMON”) arrived at the scene. A number of civilians present on the premises and the adjacent streets alerted the police officers to the fact that Mr Apti Dalakov had not offered any resistance to his pursuers, that he had not been armed and that his pursuers had placed an object under his body; it turned out to be a hand grenade with its pin pulled. The police officers requested the pursuers, who were officers of the Ingushetia Department of the Federal Security Service (Федеральная Служба Безопасности (ФСБ)) (hereinafter “the FSB”) to identify themselves; they refused to do so. In the ensuing scuffle the police officers arrested the FSB officers and took them to the Karabulak town police department. Mr I.D., who had been arrested by FSB officers after the chase, was also arrested by the town police and then released several days later.

After bomb disposal experts had deactivated the grenade, Mr Apti Dalakov’s body was taken for a post-mortem examination and was returned to his relatives for burial at midnight on 2 September 2007.

The above account of the events is based on the information contained in the application form as well as on written statements by Mr I.B.M., dated 26 September 2007, Ms A.I.Ts. and Ms F.Kh.Ts., both dated 2 October 2007, and a written statement by the applicant dated 31 July 2009.

Referring to the contents of the investigation file in criminal case no. 27520028 the Government stated in their submission of 22 January 2014 that the circumstances of the incident had been as follows.

“6. Between 5.30 p.m. and 6 p.m. on 2 September 2007 servicemen of the Ingushetia FSB found presumed members of a bandit group Mr Apti Dalakov and Mr [I.D.] The FSB servicemen got out of the service car and attempted to detain these two men. They ordered the two men to get down on the ground, having identified themselves as FSB agents.

Mr [I.D.] obeyed and lay down on the ground. Mr Apti Dalakov did not comply with the order and started to run away. One of the FSB agents followed him. During the pursuit he warned Mr Apti Dalakov that he would open fire if the latter did not stop. ... Mr Apti Dalakov stopped, took a grenade from his pocket and prepared to pull the pin. Taking into account information in their possession concerning the presumed criminal activity of Mr Apti Dalakov and his refusal to obey law-enforcement agents’ orders, the FSB officer took the decision to open fire, shooting to kill in order to eliminate the threat to his own life and health and that of the other people present at the time in the street.

As regards Mr [I.D.], on 3 September 2007 the record of his arrest was drawn up and he was questioned as a suspect ... arrest as a measure of restraint was chosen for him. He was released ten days later, and on or about 23 September 2007 he left to live permanently in Kazakhstan ...”

On 2 September 2007 the Karabulak investigating department of the Investigating Committee with the Prosecutor’s Office of the Russian Federation in Ingushetia (hereinafter “the investigating department”) opened criminal case no. 27520028 against Mr Apti Dalakov under Articles 317 and 222 § 1 of the Criminal Code (assault on a law-enforcement official and unlawful possession of arms and explosives).

On the same date, 2 September 2007, the investigating department examined the crime scene. According to the crime scene report, forty cartridge cases were collected from the scene and a grenade was found under Mr Apti Dalakov’s body, under the lower part of his stomach. No objects were found in the hands of Mr Apti Dalakov. As a result, forty cartridges and the grenade were collected from the scene for expert examination.

Between 2 and 11 September 2007 a senior operational search officer, Mr A.Kh. of the Internal Investigations Department of the Ingushetia Ministry of the Interior, conducted an internal inquiry in connection with “collaboration between police officers from the Ingushetia Ministry of the Interior and officers of the Ingushetia Federal Security Service” concerning the circumstances of Mr Apti Dalakov’s killing. Its results were stated in conclusion no. 172 dated 11 September 2007. The document, amongst other things, contained the following information:

“... at about 5 p.m. on 2 September 2007 the FSB officers conducted a special operation in Karabulak aimed at arresting members of illegal armed groups.

The local police department was not informed about it.

During the special operation, the FSB officers eliminated a member of an illegal armed group, Mr Apti Dalakov, who had offered active armed resistance.

At about 5.20 p.m. police captain [G.G.], who was on duty, ... had seen two armed men pursuing a young man who was running away; one of the armed men had opened fire on him. The pursuers had been accompanied by a white Gazel vehicle with darkened windows and without number plates.

Captain [G.G.] had reported the incident to the duty unit of the Karabulak town police department, and had remained at his post ...

A group of police officers dispatched to the crime scene from the town police station and a group of Ingushetia OMON which had arrived there after hearing shots from automatic weapons ... found a dead man and a disorderly group of about 100 people, some in camouflage uniforms and others in civilian clothing, who were shouting ... and yelling about why the police were not arresting armed bandits who had killed an unarmed man who had not offered any resistance.

The armed men, who were in camouflage uniforms and civilian clothing, who had conducted this special operation, had refused to identify themselves, had not presented any documents, and had warned that they would use firearms against the police officers.

The law-enforcement officers of Karabulak had taken those men for terrorists and/or active members of illegal armed groups ...

Under these circumstances, to prevent the presumed law-enforcement officers from being lynched by the enraged crowd, the head of the Karabulak town police department, Lieutenant-Colonel [A.M.], had tried to separate the armed men who had killed [the man on the ground] and the civilians from the local residents. However, the police officers had ended up being isolated by the unidentified armed men and had become, in effect, their hostages; the armed men had behaved aggressively and refused to state what organisation they belonged to.

The OMON group had arrived at the scene, quickly assessed the situation, and then blocked and disarmed the unidentified individuals using special physical force techniques against those who resisted. After that the armed men were taken to the Karabulak town police department and the premises of the OMON unit (the entire perimeter of the town police station had been surrounded by civilians expressing their indignation at the actions of the unidentified persons who had made several “insurance” shots to the head of the unarmed wounded young man who had fallen to the ground next to the nursery school and who, according to the nearby residents, then had placed an armed grenade under his body to make it look like the young man had offered resistance).

The Ingushetia Minister of the Interior and the head of the Ingushetia FSB had arrived at the scene and taken the decision to immediately release the arrested persons to avoid making their identities known to the public ...

The unidentified persons ... had offered resistance to the OMON officers ... as a result [of the scuffle], the police officers [M.O.] and [M.K.] and the head of the operational search unit of the Karabulak town police department, LieutenantColonel [A.Ts.], required medical assistance...

All the arrested persons who were law-enforcement officers were released without logging their names in the detention log upon confirmation of their identities by the head of the Ingushetia FSB; their guns were returned to them ...

Therefore, the above misunderstanding took place due to lack of proper coordination between the law-enforcement agencies who were carrying out a special task in the Republic of Ingushetia ...”

The documents submitted indicate that on various dates in September 2007 the investigators questioned several witnesses who lived near the crime scene. For the most part the witnesses stated that they had not seen the actual events but had seen a young’s man body on the ground surrounded by a large number of police who had cordoned off the area.

On 12 September 2007 the investigators questioned Ms F.Kh.Ts., who stated that at about 5 p.m. on 2 September 2007 she had been at home. She had looked out of the window on to Dzhabagiyeva Street and heard a muffled sound of an impact. Then she had seen a young man limping rapidly past her window into the premises of the nursery school. He had been followed by a masked man in camouflage uniform with a pistol and a man with a camouflage Tshirt pulled over his head. This man was running with an automatic rifle and firing at the young man. Then all three men went round the corner of the building. The witness had immediately run outside and followed the men. She saw the young man on his stomach on the ground, convulsing. The other two men were standing next to him and arguing. Then one of them ordered the witness to go away and she obeyed the order. After that a large number of police officers had arrived at the scene and cordoned off the area.

On 12 September 2007 the Ingushetia Forensic Examinations Bureau (“the Forensic Bureau”) concluded that the detonating fuse of the grenade recovered from the crime scene was not capable of exploding due to a missing part, but that the grenade itself was capable of exploding provided the fuse was in working condition.

On 19 September 2007 the investigators questioned a police officer of the Ingushetia OMON, Akh.Ya., who stated that at about 5.30 p.m. on 2 September 2007 he had been at work when he and his colleagues had heard sounds of sporadic gunfire coming from the area around Karabulak central market. He and thirteen to fifteen of his colleagues were then dispatched to the scene of the shooting, next to the nursery school. Upon arrival at the scene the witnesses had seen a large crowd of local residents and a group of about twelve to fifteen masked men with automatic firearms. The local residents had been aggressively expressing their indignation, as according to them the armed men had killed an unarmed young man; the body was still on the ground. The armed men had refused to identify themselves or to give reasons for killing the young man. They resisted the police officers: behaved aggressively, swore, fired their weapons into the air several times, and threatened the police with firearms. When the second group of police arrived, owing to the armed men’s behaviour and the threats from the outraged crowd of local residents they disarmed the masked men, forced them into a Ural lorry, and took them to the Karabulak town police department.

Between 20 and 28 September 2007 the investigators questioned the police officers M.K., M.Ku., B.She., M.Ts. and A.-G.M.; their statements concerning the events were similar to that of their colleague Akh.Ya.

On 22 September 2007 the investigators were informed by the Ingushetia FSB that it was impossible to question their officers implicated in the incident, as they were all undergoing medical treatment in hospital in Kislovodsk, Russia.

On 26 September 2007 the investigators questioned police officer Captain G.G., who stated that at about 5.30 p.m. on 2 September 2007 he had been on duty across the road from the nursery school. He had heard the gunshots and immediately called the police station. After that he had run out into the street and seen two men in the sand-coloured camouflage uniforms of special service agents. The men, who had been running ahead, had been firing at someone in front of them. Then the two men went round the corner of a building and out of sight. Then the men following them in a white Gazel minivan without registration numbers had turned and driven off.

On 1 October 2007 the Forensic Bureau informed the investigators of its conclusions concerning the cause of Mr Apti Dalakov’s death. According to their report of 3 September 2007, Mr Apti Dalakov had died from gunshot wounds, including two in the back, one in the back of the lower leg, and one in the back of the head.

On 15 or 16 October 2007 the investigators questioned an FSB officer, V.L., and granted him victim status in the criminal case. In his statement the officer submitted that at about 5 p.m. on 2 September 2007 he and his colleagues had arrived in Karabulak in a service vehicle to identify and detain members of an illegal armed group, Mr I.D. and Mr Apti Dalakov. At about 5.30 p.m. they had received information that both men were heading in their direction. The officers had been given descriptions of Mr I.D. and Mr Apti Dalakov and ordered to detain them. The witness and his colleagues got out of the car, shouted “on the ground! FSB!” and ran after the two men. Mr I.D. immediately got down on the ground, whereas Mr Apti Dalakov ran away. The witness thought Mr Apti Dalakov was armed and could offer resistance. The witness and his colleagues put Mr I.D. into their vehicle and then went after Mr Apti Dalakov. When the witness reached Dzhabagiyeva Street he heard “FSB! Stop!” and then “Stop or I’ll fire!” and then heard machine-gun shots and ran towards them. He saw his colleagues next to a two-storey building in Dzhabagiyeva Street, standing next to the body of Mr Apti Dalakov and one of the colleagues holding a grenade. He checked Mr Apti Dalakov’s pulse and confirmed that he was dead, then the witness and his colleagues called the mine squad and cordoned off the area.

On 16 and 17 October 2007 the investigators questioned FSB officers A.Ch., I.K., and P.Ch., and granted them victim status in the criminal case. The statements given by the three officers to the investigation were identical to that of their colleague, officer V.L.

On 2 November 2007 the investigating department terminated the proceedings in case no. 27520028. The decision referred to statements by FSB officers V.L., I.K. and P.Ch. They submitted, among other things, that on 2 September 2007 they had gone to Karabulak to arrest members of an illegal armed group, Mr Apti Dalakov and Mr I.D. When the officers had spotted the two men, they got out of their Gazel minivan and shouted: “FSB! Get down!”. Mr I.D. had complied with the order but Mr Apti Dalakov had run away. Officers A.B. and A.Ch. followed Mr Apti Dalakov, while V.L., I.K. and P.Ch. put Mr I.D. securely into their vehicle. After that they heard shooting and went to Dzhabagiyeva Street, where they found FSB officers and Mr Apti Dalakov, face down on the ground with a grenade in his hand. The officers checked his pulse, ascertained that he was dead, called bomb disposal experts and secured the area. The decision further stated that officers A.B. and P.Ch. “had given similar statements”, without providing any further details in that respect. The examination of the grenade seized at the scene by the authorities had established that it was capable of exploding. The decision concluded that there existed sufficient evidence to prove that Mr Apti Dalakov was guilty of assaulting lawenforcement officials and of unlawful possession of ammunition, but in view of his death in the exchange of fire the criminal case against him was to be terminated. The applicant learnt of that decision at some point in February or March 2008 (see paragraph 40 below).

On 3 December 2007 the head of the investigating department overruled the decision of 2 November 2007 to terminate the criminal investigation as unsubstantiated at the request of the Karabulak town prosecutor. The latter stated in his request, among other things, the following:

“... the decision of 2 November 2007 ... is premature, unlawful and unsubstantiated due to the incompleteness of the investigation ... for instance,

Mr [I.D.], who had complied with the order of the arresting group ... was not questioned about the circumstances of the incident.

In addition, the investigators did not examine the legal grounds for the use of firearms against Mr A. Dalakov.

From conclusion no. 172 of the internal inquiry of 11 September 2007 carried out by the Internal Investigations Department of the Ingushetia Ministry of the Interior, residents of the nearby houses had stated that after the liquidation of Mr A. Dalakov, an armed grenade had been placed under his body to make it look like he had offered armed resistance. However, this information was not examined further ...”

The applicant was informed of the decision on 6 December 2007.

On 27 December 2007 the investigators separated the part of the evidence concerning the use of the firearms during the incident from criminal case no. 27520028 and forwarded it to another investigator in the Karabulak investigating department for further examination. In the documents submitted it is also stated that on the same date the same material was forwarded to the military investigations department of military unit no. 68799 for examination.

On 3 January 2008 the investigating department again terminated the proceedings in case no. 27520028 because of the death of the suspect. The text of the decision reiterated in identical wording the decision of 2 November 2007 (see paragraph 26 above).

On 22 January 2008 the head of the Ingushetia investigating department overruled the decision of 3 January 2008 to terminate the criminal investigation as premature and unsubstantiated. In particular, he pointed out that the investigators had neither questioned Mr I.D. and the FSB officer who had shot Mr Apti Dalakov nor obtained information on the inquiry concerning the use of the firearms against Mr Apti Dalakov by the FSB servicemen.

On 6 February 2008 the investigation in criminal case no. 27520028 was again terminated, because of the death of the suspect. The text of the decision reiterated verbatim that of 2 November 2007 (see paragraph 26 above) but did not mention that according to the mother of Mr I.D. the latter had moved to Kazakhstan on or about 23 September 2007. The applicant was not informed of that decision.

On 26 February 2008 the investigators requested the head of the military investigations department to inform them of the results of the examination of the materials concerning Mr Apti Dalakov’s killing.

On 28 February 2008 the military investigations department replied to the investigators that on 30 January 2008 they had refused to initiate criminal investigation into the killing owing to the lack of corpus delicti in the actions of the FSB officer A.K. who had opened fire on Mr Apti Dalakov. The copy of the decision enclosed with the letter indicated that the decision had been taken on the basis of the explanation given by officer A.K., which was identical to the statement given by him on 5 March 2008 to the investigators in criminal case no. 27520028 (see the paragraph below). Neither the applicant nor his relatives were informed of that decision.

On 28 February and 5 March 2008 respectively the investigators granted FSB officer A.K. victim status in criminal case no. 27520028 and questioned him. The officer stated that on 2 September 2007, as a member of a special combat group, upon the order of the head of the Ingushetia FSB, he had arrived in Karabulak to carry out a special operation aimed at arresting active members of “the Karabulak illegal armed group” Mr Apti Dalakov and Mr I.D., who were suspected of involvement in terrorist acts in Ingushetia. Having arrived at the place of the operation next to the nursery school, the officer had got out of the vehicle, run towards Mr I.D. and Mr Apti Dalakov, and shouted: “On the ground! FSB!” In reply to this warning Mr I.D. had got down on the ground, whereas Mr Apti Dalakov had started running away. The officer had run after him and continued shouting from time to time: “Stop! FSB!” Having understood that Mr Apti Dalakov had no intention of stopping, the officer shouted: “FSB! Stop or I’ll fire!” and then fired once into the air when Mr Apti Dalakov was about ten to fifteen metres away from him. At that point Mr Apti Dalakov had stopped, turned round to face the officer, taken a grenade out of the right pocket of his trousers and tried to pull out the fuse. Having assessed the situation as threatening, the officer opened fire, aiming to hit Mr Apti Dalakov. When the shots were fired Mr Apti Dalakov’s body was flung about in various directions and then he fell to the ground face down. After ascertaining that Mr Apti Dalakov was dead, the officer reported the incident to the head of the operation. The latter ordered the officer and his colleagues from the FSB to cordon off the area and wait for the investigators’ arrival.

On 5 September 2007 a relative of Mr Apti Dalakov, Mr M.Kh., complained to the Karabulak town prosecutor about the killing of Mr Apti Dalakov and asked for a criminal investigation to be opened into the matter.

On 20 and 29 September 2007 the applicant complained about the killing to the Ingushetia Prosecutor and the Karabulak town prosecutor.

On 10 October 2007 the town prosecutor replied to the applicant that on 2 September 2007 criminal case no. 27520028 had been opened against Mr Apti Dalakov concerning assault on a law-enforcement official and unlawful possession of arms and explosives. The letter did not specify whether any proceedings had been initiated to investigate Mr Apti Dalakov’s killing.

On 27 November 2007 the applicant complained to the town prosecutor that he had not been informed of any decisions in respect of the complaint concerning his nephew’s killing.

On 6 December 2007 the town prosecutor replied to the applicant that the decision to terminate proceedings in criminal case no. 27520028 had been overruled as unlawful and the proceedings resumed on 6 December 2007. The letter did not specify whether any proceedings had been initiated in respect of an investigation of Mr Apti Dalakov’s killing.

On 6 March 2008 the applicant again complained to the Karabulak investigating committee about Mr Apti Dalakov’s killing, and stressed that according to numerous witnesses his nephew had not been armed and had not offered resistance to FSB officers. However, none of those eyewitnesses had been interviewed and no criminal proceedings had been instituted in connection with his death. The applicant further stated that he had in the meantime been provided with the decision of 2 November 2007 and that the town prosecutor had overruled it as unfounded. The applicant requested the investigating department to institute criminal proceedings in connection with the killing and to question the FSB officers who had participated in the arrest of his nephew, the OMON and police officers and other eyewitnesses. He also asked the investigators to grant him victim status in those proceedings. The applicant’s complaint was received by the investigating department on 19 March 2008 but no reply was given to it.

On 14 August 2008 the applicant complained to the Karabulak District Court under Article 125 of the Code of Criminal Procedure about the failure of the investigating department to open a criminal case in connection with Mr Apti Dalakov’s killing and failure to take basic steps to establish the circumstances of the incident. In his complaint the applicant stated, amongst other things, the following:

“... On 2 September 2007 ... officers of law-enforcement bodies shot and killed my nephew Mr Apti Dalakov, who, according to eye-witnesses, was not armed and did not resist.

I lodged a request with the Ingushetia Prosecutor asking for a criminal case to be opened in connection with the killing. In reply I received the decision to terminate the investigation in criminal case no. 2750028 opened against Mr Apti Dalakov.

The Karabulak Town Prosecutor overruled this decision ... I lodged another complaint with the Karabulak Investigating Department in which I requested that a criminal case be opened in order to investigate the killing of Mr Apti Dalakov; witnesses to the incident, in addition to the police officers from the Karabulak Town Police Department and the Ingushetia OMON who had participated in the detention of the FSB officers who had shot Mr Apti Dalakov, be identified and questioned ... and victim status in the criminal case be granted to me. This complaint was delivered on 19 March 2008.

According to ... the Russian Criminal Procedure Code, my complaint should have served as the reason for opening of a criminal case ... a criminal case is opened when there is sufficient evidence that a crime has been committed... and the decision is taken within ten days from the receipt of the complaint...

However, those regulations were not complied with. The investigating authorities received my complaint, but they neither took any appropriate decisions nor informed me thereof. This procedural violation led to the failure to take the other steps I had requested in my complaint.

Witnesses to the incident, who could have confirmed Mr Apti Dalakov’s killing and refuted the allegations that he had resisted arrest, have not been identified or questioned. We ourselves have identified such witnesses, including Mr [M.Ku.], Mr [I.Ma.], and others.

The police officers from the Karabulak Town Police Department and the Ingushetia OMON who had arrested the individuals, who shot Mr Apti Dalakov were not questioned. I was not granted victim status either.

The failure of the investigating authorities to act violates Article 2 of the European Convention of Human Rights...

I request, on the basis of Article 125 of the Russian Criminal Procedure Code that the court ...

Declare unlawful the failure of the investigating authorities to initiate a criminal investigation in respect of my complaint, to identify and question witnesses to the killing ... and grant me victim status in the proceedings;

Oblige the Karabulak Investigating Committee

(1) to remedy the above breaches;

(2) to open a criminal case in connection with Mr Apti Dalakov’s killing

(3) to grant me victim status in the criminal case

(4) to identify and question witnesses to Mr Apti Dalakov’s killing

(5) to question officers of the Karabulak Town Police Department and the Ingushetia OMON who arrested those involved in Mr Apti Dalakov’s killing ...”

According to the Government, the applicant lodged this complaint on 18 August 2008. The incoming mail registration stamp on the copy of the document indicates that this complaint was received on 14 August 2008.

On 18 September 2008 the District Court held a hearing in connection with the applicant’s complaint. According to the transcript of the hearing, both parties were present. During the examination the representative of the investigating authorities submitted that they had transferred the evidence concerning the killing of Mr Apti Dalakov to a military prosecutor’s office. The judge requested that the documents reflecting the transfer be provided for the next hearing, scheduled for 23 September 2008.

On 23 September 2008 the District Court examined and rejected the applicant’s complaint as unsubstantiated. The court reasoned as follows:

“... [the applicant] M. K. Dalakov ... requested that his complaint be allowed and the refusal to initiate a criminal investigation into his nephew’s killing be declared unlawful ... that the police officers ... who had been present at the crime scene be questioned as witnesses, and that more witnesses to the crime, in addition to the FSB officers who had shot Mr A. Dalakov dead, be identified and questioned.

The public prosecutor Mr [A. P.] requested the court to reject the complaint as unsubstantiated. In support of his position he stated that the criminal case related to Mr A. Dalakov’s death had been terminated by the Karabulak Investigating Committee, as the actions of the FSB officers who had carried out the operation in respect of Mr A. Dalakov had been declared lawful. The OMON police officers on whose questioning the applicant insists before the court arrived at the scene later and did not witness Mr A. Dalakov’s killing. No other witnesses were identified.

Having been duly informed of the date and place of the hearing, and in the absence of requests for the examination of the case in their absence, both parties failed to appear at the hearing; this does not preclude the court from examining the complaint on its merits.

The court finds the applicant’s and his lawyer’s allegations unsubstantiated, as they are not properly argued and are not supported by appropriate evidence.

On the basis of the above, under paragraph 5 of Article 125 of the Russian Criminal Procedure Code, the court finds that the complaint of Mr Magomed Dalakov under Article 125 of the Russian Criminal Procedure Code concerning alleged failure of the Karabulak Investigating Committee to act should be rejected ...”

According to the Government’s submission, both parties were present during the examination on 18 and 23 September 2008. The applicant, who was represented at the hearing by his lawyer, was provided with a copy of the decision by letter from the court, sent to his address on the same date. The Government provided a copy of that letter without an envelope, bearing the applicant’s address in Karabulak and dated 23 September 2008.

According to the applicant’s submission, on 23 September 2008 no examination of the complaint took place and, therefore, he was not informed of any decisions taken on that date and did not receive the decision by post. The applicant stated that prior to the hearing of 23 September 2008 his lawyer had been informed in person that the hearing had been rescheduled for an unspecified date. Subsequently, the lawyer repeatedly enquired with the court by telephone and in person about the examination of the complaint. In reply to his queries he was assured that he would be apprised of the date and venue of the examination. Neither the applicant nor his lawyer was provided with a copy of the decision of 23 September 2008.

In the applicant’s submission, the court’s decision allegedly taken on 23 September 2008 was backdated, and had in fact been prepared at a later date. In particular, he pointed out that the text of the decision and the transcript of the hearing allegedly held on that date contained inconsistencies. In particular, according to the transcript, both parties, including the applicant’s lawyer, had been present at the hearing and the delivery of the decision by the judge. However, in the text of the decision of 23 September 2008 it was stated, amongst other things, that neither party had appeared at the hearing (see paragraph 42 above).

According to the applicant, on 30 November 2008 his lawyer telephoned the court and was informed that the examination of his complaint had again been rescheduled as the judge had gone on holiday.

On 9 April 2009 the applicant wrote to the military investigating department, asking whether they had returned to the town prosecutor’s office the materials concerning Mr Apti Dalakov’s killing (see paragraph 42 above). No reply was given to that request.

On 16 April 2009 the applicant’s lawyer complained to the Ingushetia Supreme Court. The text of the complaint included the following:

“... M. Dalakov lodged a complaint with the Karabulak District Court ... of inaction on the part of the Investigating Committee of Karabulak. The complaint was assigned for examination to Federal Judge Ms [B].

According to Article 125 of the Russian Code of Criminal Procedure, this complaint should have been examined within five days of its receipt. However, this has not yet been done.

I request that you take measures to expedite the examination of the complaint.”

No reply was given to this complaint.

From the documents submitted it appears that no criminal proceedings against the FSB officers concerning Mr Apti Dalakov’s killing have been initiated to date.


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

Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1960 and lives in Grozny, Chechnya.

In early October 1999 the Russian Government launched a counter-terrorist operation in the Chechen Republic.

On 14 December 1999, during an identity check, military servicemen seized a truck (and the registration papers) from the home of the applicant and his family at 90, Shkolnaya Street, in the town of Shali, Chechnya. The truck had the following vehicle details: model – “KAMAZ”-53212; year of manufacture – 1991; registration number – И 05-92 ЧИ; engine number 798859; chassis number – 071560; cab number – 1392122; colour – khaki. According to the applicant, the truck was in working order and in use. The servicemen failed to present any document authorising the seizure.

On several occasions between December 1999 and February 2000 the applicant’s father, Mr Abu-Sultan Salamov, complained to various military and civilian authorities, as well as the local police and the prosecutor’s office, and requested the return of the truck.

On an unspecified date Major-General V., the head of the “East” zone group of the joint forces of the internal troops of the Ministry of the Interior, wrote to the Shali district prosecutor’s office:

“In reply to your written enquiry of 22 February 2000 concerning Mr A. A. Salamov’s complaint, I would like to confirm that vehicle “KAMAZ”-53212, made in 1991, engine number 798859, khaki colour, chassis number 071560, is indeed located at the base of military unit no. 3702.

At present the truck is not being used; it has been sealed and placed in the car park for seized and wanted cars.

Enquiries about a car with the above vehicle details have been sent to units of the [Ministry of the] Interior and other armed forces in order to verify the ownership of the truck on the basis of the lists of vehicles seized (stolen or lost) during the antiterrorist operations in 1994-1995 and 1999-2000.

Upon confirmation that the vehicle concerned does not belong to a unit of the [Ministry of the] Interior or other armed forces, the truck will be returned to its owner, Mr A. A. Salamov.”

On 24 April 2000 the truck was returned to the applicant. On the same date Colonel K., Commander of the operative headquarters of the zone “East” of the counter-terrorist operation, issued the applicant with the following certificate:

“The present document is given to Mr Aslambek A. Salamov, residing at ..., passport ..., to certify that on 14 December 1999, during an identity check, officers of the [Ministry of the] Interior seized his truck KAMAZ-53212, made in 1991, colour khaki, engine number 798859, chassis number 071560, registration no. Ч 05-92 Ш, and returned it to him on 24 April 2000. The vehicle’s registration document and number plates were lost while it was at the military unit.”

On 27 April 2000 a commission consisting of a deputy head and two employees of Shali town council – in the presence of the applicant’s father – drew up an evaluation report to certify the damage caused to the truck. It stated that on 14 December 1999, during an identity check, officers of the Interior had seized the truck and on 24 April 2000 had returned it to the applicant’s father (referred to as the owner) without the vehicle registration documents and number plates. The commission prepared a list of parts missing from the vehicle (which amounted to 69 items) and estimated the total damage at 147,650 Russian roubles (RUB).

On 26 May 2003 a forensic expert examined the truck and stated that its engine number had been erased, but that the cab number (1392122) remained intact.

On an unspecified date the applicant brought an action in the Oktyabrskiy District Court of Grozny for his title to the truck to be recognised.

On 21 August 2003 the District Court granted the action. It noted that the vehicle registration documents had been lost by military officers and that the state archives had been destroyed during the conflict. On the basis of statements given by the applicant and two witnesses, as well as the relevant documents submitted by the applicant, the court held that the applicant was the owner of a KAMAZ truck corresponding to the relevant vehicle details, with the registration number И 05-92 ЧИ, but without an identification number. On 1 September 2003 the judgment became final.

The applicant attempted to obtain compensation from the military authorities and lodged complaints with various law-enforcement and administrative authorities in Chechnya, describing in detail the seizure of the vehicle on 14 December 1999, alleging that it had been used by the military unit stationed at the village of Avtury, in the Shali district, and referring to the damage inflicted. The applicant’s family had written, inter alia, to the head of the Chechnya Administration (on 28 January 2001), the Chechnya military prosecutor (on 3 January 2003), and the Shali district prosecutor’s office (on 3 January 2003). On 22 August 2003 the military prosecutor of military unit no. 20116 advised the applicant to seek damages in civil proceedings.

On 17 May 2004 the applicant sued military unit no. 3702 in the Prikubanskiy District Court of Krasnodar for unlawful seizure of his truck. He also claimed compensation for the missing parts, the cost of repairs and the use of the truck by the military. The applicant also sought non-pecuniary damages. He referred to Articles 151 and 1064 of the Russian Civil Code (see “Relevant domestic law and practice” below), which set out the general principles of liability in respect of pecuniary and non-pecuniary damage.

On 22 July 2004 the Prikubanskiy District Court of Krasnodar delivered its judgment. It examined the log book of the military unit for the period between 14 and 16 December 1999, but found no record of the seizure of the applicant’s truck. The court heard evidence from two servicemen who had served in unit no. 3702 at the relevant time and who denied the presence of any alien truck in the base of the unit. On this basis, the court doubted the veracity of the information contained in the letter from Major-General V. (see paragraph 9 above) which stated that the truck was being kept at the base of military unit no. 3702. It noted that the letter had not referred to the sources of such information and that, in any event, the ownership of the truck in question remained unclear at that time. The court declined to calculate the amount of damages on the basis of the evaluation report of 27 April 2000 because the commission consisting of the local council representatives had had no special knowledge or expertise enabling it accurately to assess the damage inflicted. The court examined the case with reference to Articles 1069 and 1070 of the Russian Civil Code (see “Relevant domestic law and practice” below). Under those provisions, damage caused by an unlawful act or a failure to act on the part of the State or municipal bodies, or their officials, is to be compensated at the expense of the federal, regional or municipal treasury, as appropriate. The court thus concluded that military unit no. 3702 was not the proper defendant in the case.

On 14 September 2004 the Krasnodar Regional Court held an appeal hearing. It endorsed the reasoning of the first-instance court.

The Government submitted that following the communication of the case, another check had been carried out by the military prosecutor for the North Caucasus Military Circuit (“the military prosecutor”). They submitted documents attesting to the following.

On 13 January 2009 military unit no. 3702 informed the military prosecutor that although a number of military units of the Ministry of the Interior had been involved in special operations on 14 December 1999 in the town of Gudermes [in the Shali district], they had not conducted any operations in the town of Shali. Further details about the nature of operations in Gudermes could not be disclosed as such information was classified. The archive of the military unit contained no documents relevant to the alleged seizure of the KAMAZ truck and no record of any complaints by the applicant regarding the alleged seizure.

On 22 January 2009 the chief of headquarters of the North Caucasus regional command centre of the joint forces of the internal troops of the Ministry of the Interior (“the regional command centre”) informed the military prosecutor by letter that military unit no. 3702 had not been involved in any special operations in the village of Avtury, in the Shali district, on 14 December 1999. The regional command centre had no information about the truck allegedly seized from the applicant or about his complaints to that effect. Finally, the letter stated that Major-General V. had not served in the regional command centre of the Ministry of the Interior.

On 24 January 2009 military unit no. 3702 issued two notes, to the effect that on 14 December 1999 its servicemen had not carried out any operations in the village of Avtury and that they had not undertaken any actions there aimed at the identification of stolen vehicles and had not seized the applicant’s truck.

In January 2009 four servicemen who had served in military unit no. 3702 signed affidavits concerning the events of December 1999. The servicemen confirmed that they had been serving in military unit no. 3702 in December 1999 and had been stationed in the village of Avtury, but could not recall the presence or use of any KAMAZ truck seized from a local inhabitant.

On 2 February 2009 the head of military unit no. 3702 signed a report on an internal investigation into the alleged seizure and retention by the military unit of the applicant’s KAMAZ truck in December 1999. The investigation had begun in December 2008 following the communication of the applicant’s complaint to the Russian Government. The report referred to two documents produced in 2000 (see paragraphs 9 and 10 above) as the basis for the allegation. The report further noted that four officers who had served in the military unit during its mission to Chechnya in 1999-2000 – two colonels and two lieutenant-colonels – had stated in January 2000 that they had not been aware of any such seizure (see preceding paragraph). The report concluded that it could not be established that the KAMAZ truck had been kept at the base of military unit no. 3702 following its seizure on 14 December 1999.


Preliminary objection allowed (Article 35-3 - Ratione materiae)

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in 1955 and lives in Riga.

Before 29 October 1998, when the Latvian Parliament (Saeima) enacted the Education Law, education in State and municipal schools continued to be conducted in Latvian and Russian, a practice which was inherited from Soviet times. The Education Law, which took effect on 1 June 1999, provided that the only language of instruction in all State and municipal schools in the Republic of Latvia would be the State language, that is, Latvian. It also provided that the language of instruction might be different in private schools, in State and municipal schools implementing national minority curricula and in other educational establishments as provided by law. As regards the State and municipal schools implementing national minority curricula, it was for the Ministry of Education to set out specific subjects to be taught in the State language (section 9(1) and (2)) and the Minister for Education was to ensure that the relevant regulations were submitted to the Cabinet of Ministers by 1 September 1999 (transitional provisions, paragraph 3). It was also established that everyone should learn the State language and take the State language proficiency test in order to obtain primary and secondary education (section 9(3)).

Between 2003 and 2004 the applicant was actively involved in protests against the education reform. He was one of the main leaders of a movement named “Headquarters for the Protection of Russian Schools” (“Krievu skolu aizstāvības štābs” in Latvian), which was involved in promoting and advocating protests against the education reform. He participated in meetings and demonstrations against the education reform and made public statements advocating ideas concerning the Russian-speaking community’s rights to education in Russian and the preservation of the State-financed schools with Russian as the sole language of instruction. The Government provided the Court with evidence of media coverage of these protests in the period from 28 June 2003 to 23 September 2005, including news reports by the Latvian news agency LETA and articles in the daily newspapers Diena and Lauku Avīze and in the regional newspaper Novaja Gazeta (in Russian). There were thirteen news reports and articles in total.

After several sizable meetings and demonstrations, Parliament adopted amendments to the Education Law on 5 February 2004. The new text provided that from 1 September 2004 all secondary State and municipal schools implementing national minority curricula had to ensure instruction in the State language in not less than 60% of the study curriculum, including foreign languages, in respect of pupils commencing their studies in the tenth grade. These schools also had to ensure that the curriculum relating to minority language, identity and culture was taught in the minority language (transitional provisions, paragraph 3).

In November 2003 the applicant applied to the Naturalisation Board (Naturalizācijas Pārvalde) seeking to acquire Latvian citizenship through naturalisation. On 1 December 2003 he passed the naturalisation exams (see paragraph 29 below).

The Naturalisation Board examined the documents submitted by the applicant and, finding that he met the requirements of Articles 11 and 12 of the Citizenship Law, included his name in the list of candidates applying for citizenship. The list was attached to the draft decision on granting citizenship and transferred to the Cabinet of Ministers (Ministru kabinets) for the final decision.

On 16 November 2004 the Cabinet of Ministers decided to strike the applicant’s name out of the list, thus refusing his application for naturalisation.

On 30 November 2004 the Naturalisation Board informed the applicant of the decision of the Cabinet of Ministers.

On 7 December 2004 the applicant instituted administrative proceedings against the Cabinet of Ministers. He asked the Administrative District Court (Administratīvā rajona tiesa) to “obligate the Cabinet of Ministers to take a decision on admitting him to Latvian citizenship”. The applicant stated that the decision regarding admission to Latvian citizenship was an administrative act and could not be regarded as a political decision. He considered inter alia that a person fulfilled the obligation of loyalty if he met all the requirements of the Citizenship Law and unless any restrictions stated in the Law could be applied to such person. He considered that the refusal to grant him citizenship was unlawful; in accordance with the principle of equal treatment, his views could not constitute grounds for a refusal. He stated that his name had been struck out of the list owing to his participation in the political party “For Human Rights in United Latvia” (“Par cilvēka tiesībām vienotā Latvijā”, abbreviated to PCTVL) and to his public statements. The PCTVL had nominated him to run for office as mayor of Riga, but the refusal had denied him the right to stand for election in the local municipal elections and had been politically motivated.

On 10 December 2004 the applicant gave an interview to a journalist from the daily newspaper Lauku Avīze. His answer to the question whether he hoped to win the case before the domestic and international courts was reportedly as follows:

“If I wanted to gain political power, I would have been naturalised a long time ago and would have been elected to [Parliament]. The chances of winning a case in a court in Latvia might be fifty-fifty. But I do not need that. Frankly speaking, we need a broad international scandal. With my case of citizenship we’ve achieved that, and, additionally, [we’ve got] a broad public relations campaign for the PCTVL for free.”

In its submissions of 5 January 2005 to the Administrative District Court, the Cabinet of Ministers emphasised that the Minister of Justice had drawn attention to the provisions of the Citizenship Law to the effect that in seeking Latvian citizenship a candidate must demonstrate allegiance to the Republic of Latvia, not only with a promise but also by his actions, and that the applicant’s actions were not compatible with the oath of allegiance to the Republic of Latvia. Having examined the information at its disposal, the Cabinet of Ministers decided that the applicant’s actions at the material time had not demonstrated loyalty to the Republic of Latvia.

In its additional submissions of 17 November 2005 to the Administrative District Court, the Cabinet of Ministers argued, inter alia, that its political decision had been based on the applicant’s actions; it was clear that he could not truthfully give a pledge of allegiance. It was evidenced by his own public statements, which indicated that he did not have a genuine link with the Republic of Latvia, that he did not wish to establish such a link and that he had applied for citizenship as part of a political campaign to harm the Republic of Latvia. The Cabinet quoted statements he had made during the interview on 10 December 2004 (see paragraph 15 above). Relying on the principle of “democracy capable of protecting itself”, it argued that national security, protection of others and also the State language were the democratic values which the State purported to protect. The applicant’s public statements revealed that his actions were aimed at destabilising the situation in the country and that his wish to become a citizen had this purpose in mind. His statements and actions showed that he posed a real threat to national security: (i) the applicant was a leader of an organisation whose activities were directed towards disturbing public order and safety; (ii) the organisation’s activities attested to the possibility of using violence; (iii) the applicant’s statements indicated that he was ready to use violence; (iv) the applicant’s actions demonstrated his unwillingness to allow the State authorities to exercise legitimate control over the lawfulness of the organisation’s activities; and (v) the applicant’s genuine aim was not to acquire Latvian citizenship but to conduct an organised campaign directed at triggering a political scandal.

On 16 December 2005 the Administrative District Court decided to terminate the proceedings without examining the case on the merits. The court concluded that the decision of the Cabinet of Ministers regarding admission to Latvian citizenship (lēmums par personas uzņemšanu Latvijas pilsonībā) was “a political decision” (see paragraph 33 below) and as such not subject to examination by a court. The applicant appealed, stating, inter alia, that the Citizenship Law could not be used as a political weapon and that a court should have full jurisdiction over such decisions.

On 13 February 2006 the Administrative Regional Court (Administratīvā apgabaltiesa) upheld the decision of the Administrative District Court and also considered that the decision of the Cabinet of Ministers was a political decision. The applicant appealed, stating, inter alia, that the granting of citizenship could not be used as a political weapon and that a court should have full jurisdiction over such decisions.

On 11 April 2006 the Administrative Department of the Senate of the Supreme Court (Augstākās tiesas Senāta Administratīvo lietu departaments) upheld the decision of the Administrative Regional Court. The court established that, under the Citizenship Law, the Naturalisation Board should prepare a draft decision as regards the establishment of legal facts. The final decision was taken by the Cabinet of Ministers. The Cabinet took its decision, based on the draft decision prepared by the Naturalisation Board, by a vote. Members of the Cabinet were not required to give reasons for their vote and the Law did not stipulate the details of the decision-making process in this respect. The court stated, inter alia, that:

“[8.3] ... the Cabinet of Ministers [has] unrestricted competence as regards granting or refusing citizenship to persons who, as affirmed by the Naturalisation Board, have met the naturalisation criteria. Such unrestricted freedom of action, which is also in stark contrast (krasi kontrastē) with the detailed regulation regarding a decision of the Naturalisation Board, attests that the Cabinet of Ministers in such a case performs not an administrative but rather a constitutional function. Thus, the Cabinet of Ministers cannot be regarded as a public authority for the purposes of administrative procedure. Therefore, the argument stated in the ancillary complaint that the said decision meets all criteria of an administrative act is unfounded.

Having regard to the above, the conclusion of [the Administrative Regional Court] that the decision appealed against cannot be regarded as an administrative act, but as a political decision, is correct. ...

[10] In the Administrative Department’s view, if a person meets all the requirements for naturalisation and if no restrictions for naturalisation are applicable, [there is] a subjective right only to have a draft decision concerning acquisition of citizenship examined by the Cabinet of Ministers.

[11] The fact that the legislation does not set out a procedure for appeal against a decision of the Cabinet of Ministers does not mean that such decision is subject to appeal like an administrative act, in accordance with the Administrative Procedure Law. There is no established practice in Latvia of indicating expressis verbis in a legal act that the relevant decision is not subject to appeal ...

[12] ... In the Administrative Department’s view, the laws of Latvia provide for the possibility of monitoring (kontrolēt) decisions taken on naturalisation issues. That is to say, decisions taken by the Naturalisation Board (administrative acts) are subject to appeal before a court, in accordance with the Administrative Procedure Law, whereas if a decision of the Cabinet of Ministers or a part of it is incompatible with the law, a public prosecutor can submit an application for supervisory review (protests) under section 19 of the Law on the Prosecutor’s Office. Therefore, the [applicant’s] reference to [Article 12 of] the European Convention on Nationality is unfounded.”

The applicant has not re-applied for Latvian citizenship through naturalisation to date.


No violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)

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

The applicant was born in 1974 and lives in Aachen.

On 20 April 2010 the premises in which the applicant ran a café were searched, based on a search warrant of 2 March 2010 issued by the Aachen District Court. The applicant was found in a back room of the café, weighing and packaging some 400 grams of cocaine, with a sum of 2,325 euros (EUR) in the pockets of his trousers. He was arrested.

The following day, the Aachen District Court issued a warrant for the arrest of the applicant on the ground that he was strongly suspected (dringend verdächtig) of commercial trafficking of a substantial amount of drugs and that there was a risk of his absconding. It considered that the applicant could face a considerable prison sentence for the offences in question, that he did not have strong ties to Germany, that he was unemployed and living on social security, and that he could easily abscond to Turkey.

At a detention review hearing on 5 May 2010, the applicant’s counsel applied for the applicant’s release on bail, stating that the applicant’s family were able and willing to furnish the amount of bail to be determined by the court. The following day, the applicant’s counsel withdrew the application after the court indicated that bail would not be granted.

On 6 July 2010 the Public Prosecutor’s Office lodged a bill of indictment against the applicant, charging him with three counts of commercial trafficking of a substantial amount of drugs.

On 6 August 2010 the Aachen District Court decided to open the trial against the applicant.

On 29 September 2010 the District Court convicted the applicant on one of three counts of commercial trafficking in a substantial amount of drugs and acquitted him on the other two counts. It sentenced him to two years and six months’ imprisonment and ordered the continuation of his detention.

On 30 September 2010 both the applicant and the Public Prosecutor lodged appeals against the District Court’s judgment.

That same day, the applicant lodged an appeal against the decision ordering his continued detention and asked for the detention order to be set aside or its execution to be stayed. He argued that there was no incentive for him to abscond. The strength of his ties to Germany rendered his absconding to Turkey unlikely. He had lived in Germany for twenty years, had been married for the past thirteen years, and had two children, aged eight and one. His parents and his brother also lived in Germany. His only tie to Turkey, by contrast, was his parents’ holiday home.

On 1 October 2010 the Aachen District Court decided not to grant the applicant’s appeal against the continued detention order and to refer the matter to the Aachen Regional Court. It considered that it was possible that the applicant would be sentenced to a significant prison sentence on appeal. There was, hence, an incentive for him to abscond which was not counterbalanced by his existing social ties to Germany. In that regard, it noted that the applicant and his entire family had lived on social security since 2001, that his command of the German language was insufficient and that he had no prospects of employment. Considering that his wife was also a Turkish national, that his children were of a young age and that his parents owned a holiday home in Turkey, there was a risk that the applicant would abscond to Turkey with his family. This risk could not be adequately remedied by reporting requirements or payment of security.

On 7 October 2010 the Aachen Regional Court dismissed the applicant’s appeal. It limited the basis of the detention order to the count on which he had been convicted and annulled it for the two counts on which he had been acquitted by the District Court. Yet, referring to the reasoning of the District Court and underlining that the applicant had no legal employment whereas he had family ties to Turkey, it considered that there continued to be a risk of the applicant’s absconding.

On 26 October 2010 the applicant lodged a further appeal against that decision. After essentially reiterating his earlier submission as to why there was no risk of his absconding, he stated that such risk could, in any event, be remedied by imposing a less severe measure. In that regard, he proposed that his family furnish security of EUR 10,000.

After the Regional Court decided not to grant the applicant’s further appeal and to refer the matter to the Cologne Court of Appeal, that court informed the applicant’s counsel, in a letter dated 22 November 2010, that it was considering staying the execution of the detention order. It asked the applicant to clarify the offer made and requested that the necessary means be given to him by his family in a manner that allowed him to dispose freely of those means and to furnish the security himself. The lawful origin of those means had to be credibly demonstrated.

The following day, the applicant’s counsel informed the Court of Appeal that the applicant’s family was able and willing to furnish security of EUR 10,000 to the court and to demonstrate credibly the lawful origin of those means. The family was, however, unwilling to put the money at the applicant’s disposal as they were unwilling to run the risk of having the repayment claim attached for payment against future claims the authorities might have against the applicant. He added that, if the applicant had to assume that the security would be forfeited in any event, that is to say, even if he did not abscond, because the repayment claim would be attached for payment against other claims, the security could not effectively remedy a risk of his absconding.

On 3 December 2010 the Cologne Court of Appeal dismissed the applicant’s further appeal. It endorsed the assessments of the District Court and the Regional Court as to the risk of the applicant’s absconding and noted that the sentence the applicant risked incurring was not limited to two years and six months’ imprisonment, for the Public Prosecutor had appealed against the District Court’s judgment, seeking the applicant’s conviction on the two counts on which he had been acquitted. It stated that it would nonetheless consider staying the execution of the detention order if security were furnished. As long as the applicant’s family was not willing to put the necessary means at his own disposal it was, however, not ready to do so, arguing that this unwillingness indicated that his family lacked confidence in him and concluding that the family ties appeared not to be strong enough to prevent him from risking forfeiture of the security by absconding. The Court of Appeal furthermore found that there was a risk that the applicant would commit more drug-related offences if he were released from detention and also based the detention order, by way of subsidiarity, on a risk of reoffending. The decision was served on the applicant on 9 December 2010.

On 3 January 2011 the District Court’s judgment of 29 September 2010 became final, following the Regional Court’s decision to discontinue the proceedings in relation to one of the charges and the withdrawal of appeals by both the applicant and the Public Prosecutor.

That same day, the Aachen District Court stayed the execution of the detention order against the applicant on a number of conditions, including that either he or another person furnish security of EUR 5,000. Upon the furnishing of that amount by another person that same day, the applicant was released from detention.

On 14 April 2011 the Federal Constitutional Court declined to accept the applicant’s constitutional complaint against the Court of Appeal’s decision not to stay the execution of the detention order against him, lodged on 10 January 2011, for adjudication, without providing reasons (file no. 2 BvR 155/11).


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

Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Paul Lemmens;Robert Spano;Ksenija Turković

The applicant was born in 1992.

On 8 May 2013 he was arrested on suspicion of sexual abuse and indecent behaviour towards two children.

On 10 May 2013 an investigating judge of the Z. County Court (Županijski sud u Z. –“the County Court”) ordered his pre-trial detention under Article 123 § 1(2) and (3) of the Code of Criminal Procedure (risk of collusion and reoffending).

On 17 May 2013 the applicant appealed. On 21 May 2013 a three-judge panel of the County Court dismissed his appeal as ill-founded, upholding the decision of the investigating judge.

On 6 June 2013 the investigating judge extended the applicant’s detention under Article 123 § 1(3) of the Code of Criminal Procedure (risk of reoffending) on the grounds that he might commit the same offences against the victims again if at large.

The applicant appealed on 12 June 2013, arguing that there was no reason to suspect that he had committed the offences at issue and alleging numerous procedural flaws when his pre-trial detention was extended.

On 14 June 2013 a three-judge panel of the County Court dismissed the appeal as ill-founded, endorsing the view of the investigating judge. The decision was served on the applicant’s representative on 26 June 2013.

On 5 July 2013 the applicant lodged a complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the decision of 14 June 2013, challenging the decisions on his pre-trial detention. He argued, in particular, that they lacked the relevant reasoning, and that the procedure for ordering and extending pre-trial detention had not been duly complied with.

On 8 July 2013 the applicant was indicted in the Z. Municipal Criminal Court (Općinski kazneni sud u Z. –“the Municipal Court”) on charges of sexual abuse and indecent behaviour towards two children.

On the same day a three-judge panel of that court extended his pre-trial detention under Article 123 § 1(3) of the Code of Criminal Procedure (risk of reoffending). The decision was served on the applicant’s representative on 15 July 2013.

On 10 July 2013 the applicant challenged the decision by lodging an appeal with the County Court, arguing that it lacked the relevant reasoning and alleging procedural flaws in the Municipal Court’s conduct.

On the same day the Constitutional Court declared the applicant’s complaint of 5 July 2013 (see paragraph 12 above) inadmissible, on the grounds that a new decision on his detention had since been adopted (see paragraph 14 above) and he was no longer being detained in connection with the decision complained about.

The Constitutional Court’s decision was served on the applicant’s representative on 18 July 2013.

On 19 July 2013 a three-judge panel of the County Court, in its examination of the applicant’s appeal of 10 July 2013 (see paragraph 15 above), quashed the decision of 8 July 2013 extending the applicant’s pre-trial detention and remitted the case to the Municipal Court for re-examination.

On 22 July 2013 a three-judge panel of that court released the applicant from detention, imposing a number of conditions on his release.