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

The applicants, Mr Darko Štimac and Ms Daniela Kuzmin-Štimac, are Croatian nationals who were born in 1957 and 1958 respectively and live in Opatija. They were represented before the Court by the second applicant, who is a lawyer practising in Opatija.

The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

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

The applicants’ flat is located in a house which they shared with a certain D.D., until his death in April 2014, and his partner M.D., who occupied a flat on the ground floor of the house. Another flat on the ground floor of the house is owned by company B. Title to the applicants’ flat is registered in the name of their son, I.Š., who lived in it with them.

Over a number of years the applicants submitted complaints to various domestic authorities about the problems which they were having with their neighbour D.D. and his family. This resulted in various proceedings before the competent domestic authorities, in particular criminal proceedings instituted in the late 1980s, as well as civil proceedings for the removal from the house of an outdoor lighting device and an awning, which terminated in the applicants’ favour.

On 1 December 2008 the Opatija Municipal Court (Općinski sud u Opatiji) convicted D.D. of the offence of carrying out illegal construction work between 4 and 11 June 2007, and sentenced him to four months’ imprisonment suspended for two years. This judgment became final on 17 April 2009.

On 21 July 2010 the Opatija Municipal Court convicted D.D. of the offence of making threats to the first applicant on 28 July 2008, and fined him the sum of 1,693 Croatian kunas (HRK) (approximately EUR 230). On appeal, the Rijeka County Court (Županijski sud u Rijeci) upheld the judgment on 23 March 2011 but amended the sentence to four months’ imprisonment suspended for three years.

On 28 February 2011 the Rijeka Municipal Court (Općinski sud u Rijeci) convicted D.D. and his partner M.D. of the offence of making threats to the first applicant on 14 April 2008 and to the applicants’ son on 27 May 2008. D.D. was fined HRK 1,739 (approximately EUR 230) and M.D. was fined HRK 1,434.78 (approximately EUR 190). On appeal, the Rijeka County Court upheld the judgment on 9 May 2012 but amended M.D.’s sentence, suspending it for one year.

On 26 July 2012 the Rijeka Municipal Court convicted D.D. of the offence of carrying out illegal construction work between 3 September and the beginning of October 2010, and fined him HRK 1,207 (approximately EUR 160). This judgment became final on 10 August 2012.

In September 2008 the applicants’ son, I.Š., instituted a civil action in the Opatija Municipal Court against D.D., asking the court to order D.D. to remove an awning from the balcony. He was represented in the proceedings by the second applicant.

On 3 October 2008 the Opatija Municipal Court instructed I.Š. to modify his civil action by indicating the value of the claim. The order was made public on the court’s notice-board on the grounds that the second applicant had failed to collect the item from her mailbox at the court. It was thereby deemed to have been properly served.

On 17 February 2009 the Opatija Municipal Court found that I.Š. had not complied with the order and therefore discontinued the proceedings, since in the circumstances it was presumed that the civil action had been withdrawn. The court’s decision was likewise served by means of a public announcement on the court’s notice board due to the second applicant’s failure to collect the item from her mailbox.

In April 2010 I.Š. requested that the Opatija Municipal Court hold a hearing but was informed that the proceedings had been discontinued.

On 8 July 2010 I.Š. asked the Opatija Municipal Court to reinstate the proceedings on the grounds that he had not been properly served with that court’s decisions.

On 4 October 2010 the Opatija Municipal Court dismissed I.Š.’s request as unfounded on the grounds that the second applicant, as his legal representative, had a mailbox at the court and was obliged to collect all her mail every eight days. As she had failed to do that, the mail had been posted on the court’s notice-board and upon the expiry of eight days it had been deemed to have been duly served. I.Š. did not appeal against this decision and it became final on 26 November 2011.

In the period between 2000 and 2010 the applicants lodged several complaints with the Ministry responsible for construction and spatial planning matters (hereinafter: the Ministry of Construction) regarding D.D.’s construction of an exterior staircase on the house, renovation work carried out in his flat, and his installation of an awning.

These complaints led to several inspections by the competent construction inspectors and orders prohibiting D.D. from carrying out further illegal construction work.

In October 2012 the applicants filed a complaint with the Ministry of Culture (Ministarstvo kulture), arguing that there was a serious threat to the stability of their house, which was located in the historic city centre of Opatija.

The Ministry of Culture replied on 26 October 2012, stating that D.D.’s construction work could be considered to constitute serious damage to the building which would need to be repaired.

In January 2013 the applicants filed a complaint with the Primorsko-Goranska County Administration (Primorsko-goranska županija; hereinafter: the “County Administration”) arguing that the structural stability of their house was endangered.

In the meantime, on 3 May 2013 the Ministry of Culture dismissed a request from D.D. to legalise the construction work carried out on the house on the grounds that it had not been executed in compliance with the relevant standards and principles of conservation.

On 18 September 2013 the Ministry of Culture urged the Ministry of Construction to implement the measures necessary in the applicants’ case on the basis of their assertion that the structural stability had been seriously disturbed and that there was a real and imminent risk to their lives and property.

On 16 January 2014 a construction inspector invited the applicants and the Ministry of Culture to submit evidence showing that the structural stability had been disturbed.

The applicants complied with that order and on 31 January 2014 submitted an expert report drafted by Z.K. attesting that the structural stability of the building had been disturbed and that there was a risk that, in the event of an earthquake, it could collapse.

On 5 February 2014 the construction inspector expressed his doubts about Z.K.’s findings. He considered that the report needed to be clarified as it was incomplete and methodologically flawed. The inspector also expressed his doubts as to Z.K.’s qualifications.

On an unspecified date, the applicants provided the Ministry of Construction with a letter from the Rijeka County Court attesting that the expert who had drafted the report was an officially appointed court expert.

On 2 December 2014 the chief construction inspector carried out an on-site inspection of the applicants’ house ‒ accompanied by a Ministry of Construction expert in the structural analysis of buildings ‒ to examine the issues raised in the expert report submitted by the applicants. The applicants and all other interested parties to the proceedings were invited to attend the on-site inspection. The inspectors found that there was a small crack in the house and that it had not been properly maintained. However, there was no sign of any damage to the building indicating that any aspect of its structural stability was endangered.

The applicants challenged these findings before the Ministry of Construction. On 18 December 2014 the chief construction inspector replied, explaining that ‒ although there were issues regarding the construction work carried out by D.D. insofar as the house was located in the historic centre of Opatija ‒ there were no indications that the structural stability of the house was in any way endangered.

There were numerous police interventions in connection with the applicants’ disputes with their neighbours. Those interventions concerned matters such as the parking of a car, the walking of a dog and arguments over the management of various installations in the house.

In July 2012 the applicants complained to the Ministry of the Interior (Ministarstvo unutarnjih poslova) about the manner in which the Opatija police had dealt with their complaints. They received a reply from the Chief of the Primorsko-Goranska police department (Policijska uprava Primorsko-goranska) stating that they had so far registered twelve police interventions in connection with disputes between the applicants and their neighbours and that the Opatija Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Opatiji) had lodged four indictments against D.D. with the competent criminal courts. However, there was nothing indicating irregular or improper conduct on the part of the police in handling the applicants’ case.

The applicants again complained to the Ministry of the Interior and on 24 October 2012 they received a reply from the internal control department endorsing the police department’s findings.

The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2014) read as follows:

“The home is inviolable ... ”

“Everyone has a right to respect for and legal protection of his private and family life, dignity, reputation and honour.”

“The right of ownership shall be guaranteed ... ”

The relevant provisions of the Property Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette nos. 91/96, 68/98, 137/99, 22/00, 73/00, 129/00, 114/01, 79/06, 141/06, 146/08, 38/09, 153/09 and 143/12) read:

“(1) If a third party unlawfully disturbs the owner, without depriving him of his possessions, the owner may request the court to issue an injunction.

(2) In order to exercise the right referred to in paragraph 1 of this section in courts or in proceedings before another competent authority, the owner shall prove his ownership and that there has been nuisance by the third party; and if the third party claims to have the right to carry out the impugned activity, he or she shall bear the burden of proof thereof.

(3) If damage is sustained as the result of nuisance referred to in paragraph 1 of this section, the owner shall be entitled to claim compensation in accordance with the general rules governing compensation for damage ... ”

The relevant part of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 35/2005, 41/2008, 125/2011 and 78/2015), reads as follows:

“(1) All natural persons or legal entities are entitled to protection of their rights of personality [prava osobnosti] under the conditions provided by law.

(2) Rights of personality within the meaning of this Act are the right to life, to physical and mental health, reputation, honour, dignity, name, privacy of personal and family life, liberty, etc.

(3) A legal entity shall have all the above-mentioned rights of personality – apart from those related to the biological character of a natural person – and, in particular, the right to a reputation and good name, honour, name or company name, business secrecy, entrepreneurial freedom, etc.”

“Damage may result from ... an infringement of rights of personality (non-pecuniary damage).”

“(1) Any person may request that another person eliminate a major source of danger for him or her or for another person, as well as refrain from activities causing disturbance or a risk of damage if such disturbance or damage cannot be prevented by applying the appropriate measures.

(2) The court shall order, at the request of an interested party, the taking of appropriate action to prevent the occurrence of damage or disturbance, or to eliminate a source of danger, at the expense of the possessor of such a source of danger, if the latter fails to do so himself or herself.

(3) If damage results from the performance of an act of public interest for which approval has been obtained from the competent authority, only compensation for damage exceeding the usual limits may be requested (excessive damage).

(4) In that event, however, the taking of socially justified measures may be requested in order to prevent the occurrence of damage or to reduce damage.”

“Anyone may request a court or other competent authority to order the cessation of an activity which violates his or her rights of personality and the elimination of its consequences.”


Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicant was born in 1982 and is serving a prison sentence in Donskoy, Tula Region.

On 27 June 2005 the Zhukov District Court of the Kaluga Region found the applicant guilty of battery and manslaughter and sentenced him to eleven years and one month’s imprisonment. On 6 September 2005 the Kaluga Regional Court upheld the applicant’s conviction on appeal.

On 20 December 2005 the applicant started serving a prison sentence in correctional colony no. IK-1 in the Tula Region. Prior to the applicant’s arrest and conviction, he suffered from duodenal ulcer, chronic bronchitis and high blood pressure. In detention he developed chronic gastritis, hernia of a diaphragm, chronic cholecystitis, lipomas and pilonidal cysts.

On 23 January 2012 the applicant was placed in a disciplinary cell. During the day time, the pull-down beds were folded up during the day. The inmates were able either to stand or sit on a metal stool fastened to the floor. The cell was cold and damp. There was no ventilation system. Because of the cracks in the door and windows, there was constant draught. The toilet was separated with a 80-centimetre high partition from the living area of the cell. There was no hot water supply. The applicant was allowed 1.5 hours’ daily exercise and one 30 minutes’ shower per week.

On 21 March 2012 the applicant started having a fever resulting from an inflamed pilonidal cyst in the coccyx area.

On 22 March 2012 a prison doctor examined the applicant, prescribed him a treatment by antibiotics and pain killers. The doctor also recommended that the applicant consult a surgeon.

On 23 March 2012 the head of the correctional colony extended the applicant’s detention in a disciplinary cell for another fifteen days. The prison doctor examined the applicant and concluded that he was fit for detention in the disciplinary cell. He continued the prescribed treatment.

On 28 March 2012 the applicant was admitted to a prison hospital at correctional colony no. IK-5. According to the applicant, he was able to consult a surgeon only on 5 April 2012. The applicant’s surgery was scheduled on 10 April 2012.

On 8-9 April 2012 the applicant’s cyst opened up and the inflammation stopped.

On 18 April 2012 the applicant was released from hospital and transferred back to the correctional colony.

On 25 April 2012 the applicant consulted a surgeon and a neurologist at the hospital of correctional colony no. IK-2. He was prescribed medication for high blood pressure. The surgeon recommended that the applicant undergo a surgery in connection with the pilonidal cyst.

From 14 to 30 August 2012 the applicant underwent additional examination and treatment at the surgical division of the hospital at correctional colony no. IK-5. According to the doctors who treated the applicant, no surgery was required.

According to the applicant, on 5 June 2012 the applicant was summoned by the head of the operations division of the colony. There were several officers present in the office. They advised the applicant to withdraw his application before the Court. They threatened him that, should he choose to pursue his application, he would be serving the rest of his sentence in a disciplinary cell without family visits and he could be charged with another offence. The applicant complied. He signed a letter. It was stamped by the colony and dispatched to the Court on 6 June 2012.

On 14 June 2012 the applicant wrote another letter to the Court wherein he asked the Court to disregard his previous letter that he had had to write because of the pressure put on him by the administration of the colony.

On 25 June 2012 the Court received the applicant’s letter wherein he asked for withdrawal of his complaint. The letter bore a stamp of the correctional colony and a number attributed to by the administration.


No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicant was born in 1963 and lives in Warsaw.

On 30 March 2007 the applicant, who was at that time a journalist of the weekly magazine Wprost, contacted A.C., the then rector of the University of Gdańsk, in order to inform him that she considered him to be a long-term informant for the communist secret services in the past. She did not refer to any relevant documentary evidence in her possession.

On 2 April 2007 the applicant published an article in Wprost entitled “Agents Wearing Ermine”, alleging that during the communist times A.C. had been an informant for the communist secret police. The article had the subheading “Leaders of university anti-vetting revolt collaborated with communist secret services”. A photo showing A.C. in the course of his official duties alongside the article had the caption: “A.C., rector of the University of Gdańsk, used to be an informant for the communist secret services under the name Lek”. The article did not quote its sources, referring in general terms to unspecified documents.

The article was also published on the magazine’s website (www.wprost.pl), where it was available until 8 April 2007.

On 9 May 2007 the applicant obtained consent from the President of the Institute of National Remembrance (Instytut Pamięci Narodowej –“the IPN”) to access its files. The IPN’s tasks included, inter alia, storing and researching documents of the communist security services. On 10 May 2007 the applicant checked its files registered as Virginia no. 23461, IPN Gd 003/190.

On an unspecified date A. C. informed the prosecution authorities that he had been libelled by the author of the article. On 10 May 2007 the Regional Prosecutor in Warsaw refused to institute a criminal investigation and informed A.C. that the offence alleged could only be prosecuted by way of private prosecution.

A.C.’s lawyer requested Wprost to publish an apology rectifying the allegations against him and his reply to them. On 15 May 2007 the magazine refused to do so.

On 14 May 2007 the magazine published an article written by the applicant (but signed R.P.) entitled “The Party of Fear”. It was available on the magazine’s website until 20 May 2007. Its main thrust was that highsociety former informants opposed amendments to vetting legislation introduced in 2006 (see paragraphs 36 below) for fear that their past would come to light. It referred to A.C. as a former informant and contained his photo as rector of the University of Gdańsk.

On 15 May 2007 the Media Ethics Council (Rada Etyki Mediów), a body composed mainly of media representatives designated to observe whether journalists followed the applicable rules of professional ethics, sent a letter to the applicant. It criticised the articles in so far as they alleged A.C.’s involvement with the communist secret services, saying that the arguments presented by the applicant in the articles were not sufficiently convincing. It also criticised the applicant for her failure to refer to the precise sources of her allegations. It further referred to a previous public plea to the media requesting them to deal with allegations of collaboration with the communist secret services with the utmost diligence, seriousness and caution, so as not to cause detriment to anyone and to avoid a sensationalist approach to a very serious issue. It recommended that only thoughtful discussion should be held about themes of such importance as collaboration with the secret services and the manner in which vetting legislation should be applied, commensurate with the gravity of the issues involved.

On 12 August 2007 the same magazine published an article “New Documents about the Chancellor – Informant”. It was available on the magazine’s website until 19 August 2007. Its thrust was also that A.C. was a former informant. The article did not quote its sources and merely referred generally to unspecified documents. A photo of A.C. was again published alongside it.

On 14 August 2007 A.C. brought a private bill of indictment against the applicant and S.J., the editor-in-chief of the magazine at that time. It was argued that they had libelled him by publishing the articles and by disseminating untrue information alleging secret and conscious collaboration with the communist secret services. It was submitted that this publication could discredit him in the eyes of the public and result in him losing the confidence necessary to perform his duties as a public university rector, a criminal offence punishable under Article 212 of the Criminal Code.

Criminal proceedings were instituted against the applicant and S.J., but were subsequently stayed in May 2010 to obtain information about the result of the vetting process (procedura lustracyjna) in respect of A.C. which was pending at the time.

At a hearing on 15 March 2011 in the latter proceedings, the Gdańsk Regional Court held, referring to documents stored by the IPN, that A.C. had made a true vetting statement to the effect that he had not been an informant for the communist secret services. The court established that he had been registered as such, but without his consent or knowledge. It further noted that on 15 April 2003 A.C. had obtained the security certificate issued by the Internal Security Agency guaranteeing him access to classified information. He had therefore already been positively vetted for integrity by the authorities of a democratic State prior to the judgment.

The Gdańsk Court of Appeal upheld the first-instance judgment on 7 July 2011.

On 11 October 2011 the criminal proceedings against the applicant were resumed.

On 15 February 2012 the Warsaw District Court held that the applicant and editor were guilty of libel under Article 212 § 2 of the Criminal Code.

The court found that the plaintiff had been working at the University of Gdańsk since 1974. He had been questioned by the communist secret police on several occasions before 1989, when the communist system in Poland had collapsed.

The applicant had contacted him, apparently by telephone, prior to publication of the first article of 2 April 2007 claiming to know that he had been an informant. She had neither informed him about any IPN documents on which she would be basing her allegations nor sought to meet him in person.

The applicant stated before the court that she had written the articles motivated by the public interest. A.C. was a well-known personality and society should be made aware of persons in positions of responsibility who were former informants for the communist secret police.

The court considered that while before it the applicant had referred to IPN documents, neither the documents she had submitted originating from these files nor the full file obtained by the court had supported the conclusion that A.C. had been an informant. Certain documents did not refer to him at all, while others did not indicate that he had been an informant. He had never declared willingness to become one. The court referred to a document in the IPN’s files which noted his reluctance to be involved with the services when urged by them to turn into an informant. In these files he was only referred to as being on the staff of the university in the 1970s. They also demonstrated that he had been questioned by the communist services after coming back to Poland following a scholarship in the United States.

The court concluded that the documents it had before it in evidence were manifestly insufficient to hold that the plaintiff had been an informant.

In the light of the documents available, the thesis advanced by the applicant was not only devoid of factual basis, but also incompatible with her obligation to show proper journalistic diligence. She had only obtained access to the full set of IPN files concerning A.C. after her first article had been published. She had only received a decision from the director of the IPN allowing her to access the documents on 9 May 2007, after the article had been published and created a considerable media stir. She had failed to contact A.C. prior to the publication to try to check the veracity of the information, apart from her telephone call to him whereby she had only informed him that she would be publishing the article.

The Warsaw District Court concluded that the applicant had failed to show the journalistic diligence required of her under section 12 of the 1984 Press Act. The impugned articles contained unreliable information, which she had assessed in a superficial manner. Being an informant for the communist secret police was perceived in society in an extremely negative manner. It was therefore not open to doubt that allegations made by the applicant could stigmatise A.C. and undermine public confidence in his capacity to hold office within the meaning of Article 212 of the Criminal Code. The mere fact that the court had gathered more material relevant to establishing the facts concerning A.C.’s past than the applicant had had at her disposal prior to the publication of the impugned articles demonstrated that she had formulated her allegations without a sound factual basis. In the light of that material, it had to be concluded that the statements made in the article were untrue, or at least unfounded.

The court referred to the Court’s case-law on Article 10 of the Convention on freedom of the press. It noted that that freedom carried duties and responsibilities on the part of journalists. It was limited by the criterion of truthfulness on the one hand, and the necessity to protect important values such as dignity, reputation, honour and the private life of individuals on the other. In the present case, the applicant had not had sufficient knowledge at her disposal to support the factual thesis she had advanced in the articles. She had therefore overstepped the limits of acceptable criticism, defamed the plaintiff and thereby committed a criminal offence.

The court imposed fines on the applicant and her co-defendant, the magazine’s editor-in-chief. It determined the amount of the applicant’s fine at 3,000 Polish zlotys (PLN - approximately 750 euros (EUR)) and ordered her to pay PLN 2,500 (approximately 625 EUR) to charity. The court observed that the amount of the fine had been determined with regard to the degree of the applicant’s guilt. The publication of the articles had been her idea and she had written them. However, the fine imposed on her was lower than that imposed on the editor, regard being had to the fact that her income was lower than his. The court further noted that the plaintiff had demanded that a custodial sentence be imposed on the applicant. However, the court was of the view that a non-custodial sentence was sufficient in the circumstances, commensurate with the gravity of the offence. It further ordered that the judgment be made public, having regard to a request submitted by the plaintiff and Article 215 of the Criminal Code, which obliged the court to allow such requests in cases involving convictions based on Article 212 of that Code.

The applicant and her co-accused appealed, raising many procedural arguments.

On 26 September 2012 the Warsaw Regional Court upheld the judgment, essentially sharing the findings and views of the first-instance court. The defendants’ appeals were considered by the court to be unfounded. The court ordered the applicant to pay PLN 300 (approximately EUR 85) in costs to the State Treasury. It further ordered her and her coaccused to pay jointly the plaintiff’s costs before the appellate court, amounting to PLN 3,100 (approximately EUR 775).


Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-e - Persons of unsound mind);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Take proceedings);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);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Dmitry Dedov;Elisabeth Steiner;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicants were born in 1977, 1937 and 1938 respectively and live in Moscow. The second and third applicants are the parents of the first applicant.

In 2004 the first applicant, who was suffering from tachycardia and severe headaches, was diagnosed with neurocirculatory dystonia. In 200405 he underwent treatment in various hospitals in Moscow, without any tangible result.

In April 2005 his illness worsened.

On 25 May 2005 he called an ambulance and was taken to the neurology unit of Moscow City Clinical Hospital no. 6 (Московская городская клиническая больница № 6). The doctor in the admissions unit, however, refused to admit him, finding no pathology, and recommended outpatient treatment in a district polyclinic.

Desperate for relief, on the same day the first applicant cut the veins on his forearm. Another ambulance was called for him by the second and third applicants, and he was taken to N.V. Sklifosovsky Research Institute of Emergency Medicine (НИИ скорой помощи им. Н.В. Склифосовского). After the first applicant was provided with emergency medical aid at the surgical unit, he was taken to somatopsychiatric unit no. 2 (ПСО-2, “the psychiatric hospital”) of the Institute with a diagnosis of “chronic somatoform pain disorder, personality disorder, continuous sluggish schizophrenia, cutting of left forearm, attempted suicide”.

On 26 May 2005 the first applicant contacted his parents, asking them to take him home. When the parents arrived, they were not allowed to take him home and were asked to leave.

During the night of 26 to 27 May 2005 the first applicant alleged that he was beaten up. According to him, three nurses held his arms and two recovering patients hit him on the face and body. He was taken to his ward, and one of the nurses allegedly threw him on the bed with such force that his head hit the bedside table, following which he lost consciousness. When the first applicant recovered he found himself bleeding and strapped to the bed with a gag in his mouth. He was given no medical assistance.

The first applicant was subsequently allegedly warned by a doctor, L., that his parents would not be allowed to see him and that it would be put on record that he had himself initiated a brawl. Furthermore, he was allegedly warned that any complaints to the authorities, including the police, would be futile as he would be given a diagnosis which would show that his allegations could not be taken seriously.

The first applicant remained hospitalised until 9 June 2005. He alleged that he was subjected to scientific research by being treated with Seroquel (a then new antipsychotic medication) and forbidden all contact with the outside world. He had blood tests every other day.

Some hours after the first applicant’s discharge from the psychiatric hospital on 9 June 2005, an ambulance was called for him at home due to his state of health. The ambulance doctor saw a haematoma under the first applicant’s right eye, and bruises and contusions around his chest and waist. The first applicant was further diagnosed with hypertensive crisis and severe tachycardia. He was immediately hospitalised in Moscow City Clinical Hospital no. 67 (Московская городская клиническая больница № 67), where he remained until 5 August 2005 and was diagnosed with “depressive hypochondriasis against the background of traumatic encephalopathy”. The diagnosis of personality disorder was not confirmed.

In October 2005 the applicants complained to the Russian Federation Ombudsman that the first applicant had been unlawfully committed and treated in the psychiatric hospital, and that he had been beaten by the hospital nurses with the assistance of two hospital patients. The applicants’ complaint was referred to the Meshchanskiy District Prosecutor’s Office, Moscow, from where it was referred on to the Meshchanskiy District Department of the Interior.

After two refusals to institute criminal proceedings, on 2 November 2006 criminal proceedings were instituted (criminal case no. 82906) under Article 116 of the Russian Criminal Code (Beatings).

On 15 November 2006 the first applicant was granted victim status in the proceedings.

On 16 March and 25 June 2007 an investigator from the Meshchanskiy District Department of the Interior investigation department suspended the proceedings on the grounds of an impossibility of identifying the alleged perpetrators.

On 19 March and 1 July 2007 respectively the Meshchanskiy InterDistrict Prosecutor’s Office quashed the above decisions and remitted the case for additional investigation.

On 11 August 2007 the investigator discontinued the proceedings on the grounds of expiry of the procedural time-limit for prosecution.

On 30 August 2007, however, the above decision was set aside and the proceedings were reopened.

The proceedings were subsequently suspended on 14 January 2008 and 16 March 2009 and resumed again on unspecified dates.

In 2012 the applicants were informed that the proceedings had been discontinued on 25 November 2010 on the grounds of expiry of the procedural time-limit for prosecution.

On an unspecified date the decision of 25 November 2010 was set aside and the proceedings were reopened.

On 22 December 2012 the proceedings were again discontinued.

On 9 January 2013 the above decision was set aside and the case file material referred to the investigation department for additional investigation, which appears still to be pending.

On 5 March 2007 the complaints concerning the first applicant’s placement in the psychiatric hospital were removed from criminal case no. 82906 for separate examination.

On 24 March 2007 an investigator from the Meshchanskiy InterDistrict Prosecutor’s Office refused to institute criminal proceedings.

On 3 May 2007 the Moscow Preobrazhenskiy District Court found the above decision unlawful and groundless.

On 6 July 2007 the acting prosecutor of the Meshchanskiy InterDistrict Prosecutor’s Office quashed the decision of 24 March 2007 and ordered an additional inquiry.

On 12 October 2007 criminal proceedings were instituted (criminal case no. 401966) under Article 128 § 2 of the Russian Criminal Code (Unlawful Placement in a Psychiatric Hospital).

On 12 January, 5 March and 27 April 2008 the proceedings were suspended on the grounds of an impossibility of identifying those responsible.

However, on 5 February, 27 March and 27 April 2008 respectively the above decisions were quashed and additional investigations ordered.

In the meantime, on 18 April 2008 a forensic psychiatric examination was conducted which established that the first applicant’s involuntary psychiatric hospitalisation on 25 May 2005 had been justified (psychiatric pathology of an acute character accompanied by expressed depression with attempted suicide). It was further established, however, that his subsequent stay in the psychiatric ward had been unlawful. In particular, contrary to the provisions of the relevant domestic law (the Psychiatric Treatment Law of 2 July 1992), no report had been drawn up by a panel of psychiatrists in the forty-eight hours following the first applicant’s involuntary hospitalisation on the need for a further stay in the psychiatric hospital, and no application had been made to the court by the head of the psychiatric hospital on the need for the first applicant’s continued involuntary stay in the psychiatric hospital. It was further noted that the first applicant’s mental health episodes between 27 May and 9 June 2005 did not fall under the definition of a “severe” mental disorder or any other acute mental condition, and did not require involuntary psychiatric treatment.

In the absence of any meaningful investigation since the institution of the criminal proceedings, the applicants challenged the investigator before the court for failure to take action.

On 7 May 2008 Preobrazhenskiy District Court found the investigator’s failure to take action unlawful (failure to identify and question witnesses and carry out other relevant investigative actions).

On 28 October 2008 the head of the psychiatric hospital, D., was involved in the proceedings as a defendant.

On the same day D. was questioned, and made the following statement:

“... [Somatopsychiatric] unit no. 2 was staffed [at the material time] by only two attending doctors: a scientific associate, L., and an attending doctor whose last name I cannot remember. The question of assigning patients to a specific attending doctor was decided by E. E., who assigned [the first applicant] to L. as a scientific thematic patient (научный тематический больной) for research on the effects of the Seroquel medication ...

Scientific associates monitor only scientific research patients to study scientific subjects which involve research into new methods of treatment and the use of new drugs approved by the Ministry of Health, with a view to later disseminating these throughout the territory of the Russian Federation. Following the results of their research, a scientific associate writes an article about the work done and defends a dissertation based on their research material.”

On 31 October 2008 the preliminary investigation was completed, and on 28 November 2008 a bill of indictment was submitted for approval to the Meshchanskiy Inter-District Prosecutor’s Office.

On 9 December 2008, however, the case was returned for an additional investigation, as the prosecutor considered the charges brought against D. unsubstantiated.

On 5 February 2009 the qualification of the crime with which D. was charged was changed to Article 127 § 1 of the Criminal Code (Unlawful Deprivation of Liberty). The case-file material was sent to the Meshchanskiy District Department of the Interior for further investigation.

On 19 July 2009 an investigator from the Meshchanskiy District Department of the Interior discontinued the proceedings on the grounds of expiry of the procedural time-limit for prosecution.

It appears that subsequently the proceedings were reopened.

In 2012 the applicants were informed that on 26 November 2010 the proceedings had again been discontinued as time-barred.


Remainder inadmissible;Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 2 of Protocol No. 4 - Freedom to leave a country);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in 1965 and lives in Baku.

The applicant is an opposition politician and, since 2001, the chairman of the reformist wing of the Azerbaijan Popular Front Party.

On 10 September 1994 the applicant was arrested during a demonstration organised by the Popular Front Party and taken to the Baku City Chief Police Department where a hand grenade was allegedly found in the pocket of his suit’s jacket. According to the applicant, the suit had been acquired immediately before the demonstration and he had not had time to remove the manufacturer’s stitches sealing the pockets and, therefore, would not have been physically able to put anything inside the pockets.

On the same day, criminal proceedings were instituted against the applicant under Article 220 (illegal possession of weapons) of the 1960 Criminal Code (in force until 1 September 2000, when it was replaced by the new Criminal Code).

Until 13 September 1994, the applicant was detained as a suspect. On 13 September 1994 he was formally charged under Article 220 § 1 of the 1960 Criminal Code by the investigator of the Baku City Chief Police Department. On the same day, the investigator ordered his detention on remand pending trial.

By a decision of the investigator of 23 September 1994 the applicant was released from detention.

By a decision of the investigator of the Nasimi District Prosecutor’s Office of 11 December 1995, the investigation in the framework of the criminal proceedings against the applicant was suspended on the ground that “the perpetrator of the criminal offence [had] not been identified”. The applicant was not informed about the decision to suspend the investigation at that time.

In the 1995 and 2000 parliamentary elections, the applicant was elected and re-elected to the National Assembly for two consecutive terms and served as a parliament member until 2005. In the elections of 6 November 2005, according to the official election results published by the Central Electoral Commission, he was again re-elected to the National Assembly, however on 1 December 2005 the Constitutional Court annulled the election results in the applicant’s constituency in an arbitrary manner, depriving the applicant of his parliamentary seat (see, for more details, Kerimli and Alibeyli v. Azerbaijan, nos. 18475/06 and 22444/06, 10 January 2012).

The applicant held a diplomatic passport issued in 1998, which expired in 2003. On 15 July 2003 he was issued a new diplomatic passport valid until 31 December 2005.

In addition, the applicant held a regular passport issued in 2001, which expired on an unspecified date in June 2006 (according to the applicant) or on 24 July 2006 (according to the Government).

In June 2006 the applicant applied to the Passport Registration Department of the Ministry of Internal Affairs (“the PRD”) for a new regular passport. However, according to the applicant, his application was rejected in an informal manner. The applicant was informed that the PRD had no information of the outcome of the criminal proceedings instituted in 1994. He was told that, as the PRD could not issue passports to persons against whom criminal proceedings were pending, the applicant had to provide a statement from the relevant prosecuting authorities confirming that the criminal proceedings had been discontinued.

Following an inquiry with the Baku City Chief Police Department, the applicant discovered that the criminal proceedings instituted in 1994 had been transferred to the Nasimi District Prosecutor’s Office and suspended on 11 December 1995, but had never been discontinued.

Subsequently, the applicant complained about the authorities’ failure to discontinue the proceedings and his resulting inability to receive a passport to the Prosecutor General’s Office, the Baku City Prosecutor’s Office, the Nasimi District Prosecutor’s Office and the Ministry of Internal Affairs, but to no avail.

In September 2006 the applicant lodged a civil action against the PRD and the Nasimi District Prosecutor’s Office, asking the court to order the PRD to issue him a passport and to order the prosecutor’s office to “remove the restriction on his freedom of movement” by discontinuing the criminal proceedings instituted in 1994. He noted that, the limitation period for prosecution in respect of the criminal offence under Article 220 of the 1960 Criminal Code was five years from the date of the alleged criminal offence, while under the 2000 Criminal Code it was seven years in respect of the equivalent criminal offence. He therefore argued that the proceedings should have been discontinued years earlier owing to the expiry of the prescription period.

On 2 November 2006 the Nasimi District Court dismissed the applicant’s claim as unsubstantiated. It noted that the Nasimi District Prosecutor’s Office had responded to the applicant’s requests by advising him to apply to the PRD and that the applicant had been unable to demonstrate that the PRD had breached his rights.

On 14 March 2007 the Court of Appeal upheld the Nasimi District Court’s judgment on the same grounds, and also added that the applicant had failed to appeal against the decision of 11 December 1995 to suspend the investigation under the relevant procedure of judicial supervision.

On 15 February 2008 the Supreme Court quashed the Court of Appeal’s judgment and terminated the civil proceedings. It noted that the complaints raised by the applicant, and more specifically his complaint concerning the prosecution authorities’ failure to discontinue the criminal proceedings, were subject to examination under the criminal procedure and not in the civil proceedings under the rules of civil procedure. The applicant was advised to lodge a complaint against the prosecuting authorities’ actions under the relevant procedure of judicial supervision envisaged by the Code of Criminal Procedure (“the CCrP”).

In May 2008 the applicant lodged such a complaint under the procedure of judicial supervision provided by Article 449 of the CCrP, asking the court to discontinue the criminal proceedings instituted in 1994 owing to the expiry of the prescription period.

On 26 May 2008 the Nasimi District Court dismissed this complaint, noting that, while the CCrP provided for a right to complain against a prosecuting authority’s decision to discontinue the proceedings, the same Code did not provide for a right to complain against the prosecuting authority’s failure to take a decision to discontinue the proceedings. Therefore, the court could not order the Nasimi District Prosecutor’s Office to discontinue the proceedings. Furthermore, the court noted that it had no competence under the CCrP to discontinue the proceedings itself.

On 22 July 2008 the Baku Court of Appeal upheld the decision of the Nasimi District Court. No further appeal lay against the Baku Court of Appeal’s decision.


CASE OF ABDURAKHMANOVA AND ABDULGAMIDOVA v. RUSSIA

Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Liberty of person;Security of person);Violation of Article 13+2-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Life)

András Sajó;Dmitry Dedov;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque

The applicants were born in 1950 and 1987 respectively and live in Makhachkala. The applicants are the mother and the wife of Mr Abdurakhman Abdurakhmanov (in the documents submitted also written as Abdurashidov), who was born in 1985.

The second applicant and her husband Mr Abdurakhman Abdurakhmanov have lived in Moscow since 2008. In the middle of June 2010 the second applicant went to Makhachkala to visit her relatives. On 24 June 2010 her husband Mr Abdurakhman Abdurakhmanov arrived from Moscow, and on the same date they went to visit Mr Abdurakhman Abdurakhmanov’s sister Ms F.Sh. at 29 Sovetskaya Street in Kaspiysk, Dagestan.

The first applicant and her husband, a federal judge of the Leninskiy District Court in Makhachkala, lived at 11 Gadzhiyeva Street, Makhachkala.

At about 8 p.m. on 25 June 2010 a group of five officers from the Sovetskiy district department of the interior in Makhachkala (the Sovetskiy ROVD) arrived at the first applicant’s house. One of them, who identified himself as Shamil, showed the first applicant arrest warrant no. 6/3-3726 issued in the name of her son Mr Abdurakhman Abdurakhmanov and signed by Captain A. Plugin, the investigator of the Investigative Committee of the Federal Security Service (the FSB). According to the warrant, Mr Abdurakhman Abdurakhmanov was suspected, amongst other things, of involvement in terrorist activities.

Meanwhile, on 25 June 2010 the second applicant and her husband Mr Abdurakhman Abdurakhmanov were visiting their relative Ms F.Sh. in Kaspiysk. At about 9 p.m. on that date, a group of five to seven men, some of whom were in black masks, arrived at the house of Ms F.Sh. in a black VAZ-2107 (‘Приора’) car with the registration number containing the numbers 256 or 259 and the letters PH. One of them told the second applicant that they were from the police. The men abducted Mr Abdurakhman Abdurakhmanov next to the house, in the street. First they fired shots at his feet, then they knocked him down, dragged him into the car and drove off. The abduction took place in broad daylight and in the presence of a number of witnesses, including neighbours and the applicants’ relatives.

Shortly after the abductors’ departure, several police officers in uniform and plain clothes arrived at the scene of the shooting in two police cars; without giving any explanation they collected the cartridge cases left after the incident.

The Government did not dispute the applicants’ account of the circumstances of the abduction, stating that it “does not contradict the information collected by the authorities during the course of the investigation”.

At about 9 p.m. on 25 June 2010, immediately after the incident, the second applicant in Kaspiysk called the first applicant in Makhachkala and informed her about the abduction.

In the morning of 26 June 2010 the first applicant complained about the abduction to the Dagestan FSB and the Dagestan Prosecutor’s office. She stated that on the date of the abduction she had been visited by a group of five officers from the Sovetskiy ROVD who had showed her a warrant for her son’s arrest issued by the FSB Captain A. Plugin; that shortly after their visit the second applicant had called her from Kaspiysk and told her about the abduction of Mr Abdurakhman Abdurakhmanov by a group of armed men who had opened fire and that shortly after the incident a group of police officers had collected the cartridge cases left at the scene.

On 28 June 2010 the Dagestan FSB replied to the first applicant that they had forwarded her complaint to the Dagestan Prosecutor’s office. On 29 June 2010 the latter informed her that they had forwarded the complaint to the Kaspiysk prosecutor’s office.

On 28 June 2010 the first applicant complained about the abduction to the Dagestan Ministry of the Interior (the MVD), and provided a detailed description of the circumstances surrounding the abduction, including the police officers’ visit to her house and the collection of the cartridge cases after the abductors’ departure. On 5 August 2010 the Dagestan MVD informed her that they had forwarded her complaint to the Kaspiysk town department of the interior (the GOVD).

On 6 July 2010 the Kaspiysk prosecutor’s office informed the first applicant that they had forwarded her complaint to their investigations department for a preliminary inquiry.

Between 13 and 19 July 2010 the Kaspiysk prosecutor’s office forwarded eleven requests to various law-enforcement agencies, asking them to establish the whereabouts of Mr Abdurakhman Abdurakhmanov and inform them about his possible detention and the reason for it. They also asked for a copy of the arrest warrant used by the police officers from the Sovetskiy ROVD and for information on whether Mr Abdurakhman Abdurakhmanov had been involved in extremist or illegal activities.

On 15 July 2010 the first applicant complained about the abduction to the Kaspiysk prosecutor’s office and asked whether a criminal case had been opened to investigate the incident, and if so what was the progress of the proceedings.

On the same date, 15 July 2010 the first applicant again lodged a complaint about her son’s abduction with the investigations department of the Kaspiysk prosecutor’s office. The complaint stated, amongst other things, that the abduction had been perpetrated by police officers in broad daylight and in the presence of numerous witnesses. The applicant asked the authorities to take urgent steps to investigate and to protect her son. In particular, she requested the investigators to take the following measures: granting her victim status in the criminal case; questioning a number of eyewitnesses to the abduction, including the second applicant, Ms F.Sh., Ms D.A., Ms S.G., and Ms R.A.; establishing whether any criminal charges had been pending against Mr Abdurakhman Abdurakhmanov and whether he had been on the authorities’ wanted list; identification of the five police officers who had visited the applicant in Makhachkala on 25 June 2010 and seizure of the warrant signed by Captain A. Plugin; identification of the latter and of the abductors’ car.

On 16 July 2010 the first applicant requested the Kaspiysk prosecutor’s office to take additional investigative steps to establish her son’s whereabouts. In particular, she asked them to request information from various detention centres in Dagestan in case Mr Abdurakhman Abdurakhmanov had been detained there, and to initiate a criminal investigation into the abduction.

On 16 July 2010 the applicants’ lawyer complained to the FSB investigator Captain A. Plugin about the abduction and the warrant used by the police officers from the Sovetskiy ROVD. The complaint gave a detailed description of the incident and stated that the officers had showed the first applicant a warrant allegedly signed by him. On 23 August 2010 Captain A. Plugin replied stating “... no orders to detain Mr Abdurakhman Abdurakhmanov have been given to the Sovetskiy ROVD ...” and that the applicants should complain about the abduction to the prosecutor’s office.

On 17 July 2010 the first applicant again complained to the head of the Dagestan FSB and the Dagestan Prosecutor (see paragraph 13 above). She asserted that Mr Abdurakhman Abdurakhmanov had been abducted by police or FSB officers from Dagestan, and requested the law-enforcement agencies to assist her in establishing his whereabouts.

On 19 July 2010 the first applicant complained to the Russian Prosecutor General. She provided a detailed description of the circumstances surrounding the abduction and stressed that the warrant under outgoing no. 6/3-3726 allegedly signed by Captain A. Plugin could have been forged by the police officers. She also stated that the abductors had told the second applicant that they were from the police and that all her efforts to establish her son’s whereabouts by complaining to local lawenforcement agencies had not produced any tangible results. The applicant further stated that she had learned from an unidentified source that on 25 June 2010 a special operation had been conducted by the police or the FSB officers against her son, and requested the authorities to carry out an effective investigation of the incident.

On 21 July 2010 the first applicant again complained about the abduction to the Dagestan FSB. On 30 July 2010 they replied to her that her complaint had been forwarded to the Dagestan Prosecutor’s office.

On 5 August 2010 the first applicant complained to the head of the Russian FSB. She stated that her son had been abducted by members of law-enforcement agencies and that the responses received by her from the Dagestan FSB had not provided any meaningful information. The applicant asked whether any criminal proceedings were pending against her son, whether he was suspected of a crime, and whether Captain A. Plugin had issued the order for her son’s arrest. She also requested to be informed about her son’s whereabouts and the reasons for his detention. On an unspecified date in August 2010 the Russian FSB replied to the applicant stating that her son had not been charged with any offence and that they had not ordered the Sovetskiy ROVD to detain him.

On 11 August 2010 the first applicant complained to the Russian Prosecutor General, the head of the Russian FSB and the head of the Russian MVD about the unlawful detention of her son Mr Abdurakhman Abdurakhmanov by members of law-enforcement agencies. She also requested to be informed whether her son was a suspect in criminal case no. 17822, and if so what charges had been brought against him.

On 13 August 2010 the applicants’ lawyer requested information from the Dagestan Prosecutor’s office concerning the criminal charges against Mr Abdurakhman Abdurakhmanov and the place of his unlawful detention.

On 20 August 2010 the applicants again complained about the abduction to the Dagestan Prosecutor and the Dagestan MVD. They stated that local law-enforcement agencies had consistently denied any involvement in the abduction of Mr Abdurakhman Abdurakhmanov, but the head of the Sovetskiy ROVD had told them that their relative had been detained by ROVD officers and handed over to the Dagestan Centre for Terrorism Counteraction (the CTC) (“Центр по противодействию экстремизму и терроризму МВД РФ по РД”). However, according to the applicants, the latter agency had denied detaining Mr Abdurakhman Abdurakhmanov.

On an unspecified date in August 2010 the Dagestan Council of Judges complained on the applicants’ behalf to the head of the Russian FSB and the Russian Minister of the Interior. The complaint stated that the abduction of Mr Abdurakhman Abdurakhmanov had most probably been perpetrated by members of law-enforcement agencies, officers of the Sovetskiy ROVD in particular, and that the criminal investigation into the incident was ineffective.

On 24 August 2010 the Judicial Department of the Russian Supreme Court informed the Dagestan Council of Judges that they had forwarded the complaint about Mr Abdurakhman Abdurakhmanov’s abduction to the prosecutor’s office.

In reply to the Court’s request for a copy of the investigation file on the abduction of Mr Abdurakhman Abdurakhmanov the Government produced the relevant documents, which ran to seventy-eight pages. Their contents can be summarised as follows:

On 28 July 2010 the Kaspiysk prosecutor’s office initiated a criminal investigation into the abduction of Mr Abdurakhman Abdurakhmanov under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The case file was given the number 006210.

On 29 July 2010 the investigators examined the crime scene. No evidence was collected.

On the same date, 29 July 2010, the investigators granted the first applicant victim status in the criminal case and questioned her. She provided a detailed description of the circumstances surrounding the abduction, including the police officers’ visit to her house in Makhachkala, and stated that she had learned from unidentified sources that her son had been detained at a base of the Dagestan CTC.

On 30 July 2010 the investigators questioned the applicants’ relative Ms F.Sh., who stated that she had witnessed Mr Abdurakhman Abdurakhmanov’s abduction by a group of seven men in plain clothes, five of whom were masked. According to the witness, the abductors had opened fire and forced Mr Abdurakhman Abdurakhmanov into a black VAZ2107 (‘Приора’) car with the registration number either E256 or E259. The numerous neighbours who had also witnessed the abduction had later told her that the abductors had used two black VAZ-2107 cars.

On 30 July 2010 the investigators questioned Ms R.A. and the second applicant, whose statements about the events were similar to that of Mr F.Sh. The second applicant added that about 15-20 minutes after the abduction two police cars had arrived at the place of the skirmish. A group of police officers, both uniformed and plain clothes, had searched the ground with flash lights looking for the spent bullet cartridges.

On 2 August 2010 the head of the criminal search division of the Kaspiysk ROVD informed the investigators that they had been unable to identify any witnesses to the abduction.

From the documents submitted it follows that on 12 August 2010 the head of Police Station no. 1 in Makhachkala sent the investigators letter no. 2/4298, stating that on 25 July 2010 four of their police officers, M.D., D.M., M.Z. and M.A., following the order of the Russian FSB no.6/33726 of 16 June 2010 given as part of the investigation of criminal case no. 171822, had arrived at the house of the judge of the Leninskiy district of Makhachkala Mr Sh.A. to establish the whereabouts of his son Mr Abdurakhman Abdurakhmanov. The police officers had questioned the first applicant who had told them that her son and his wife were in Moscow. The police officers had not participated in Mr Abdurakhman Abdurakhmanov’s arrest.

On 2 September 2010 the head of the Supervision and Control Department of the Dagestan Investigations Committee examined the criminal case file opened into the abduction. He criticised the investigators for their failure to take a number of steps, and ordered that remedial measures be taken. In particular, the document stated the following:

“... The case file examination demonstrated that the investigation is being conducted without purpose, that most important circumstances of the crime are not being established and clarified, and that the necessary steps to establish them are not being taken ...

[The applicant] Ms Abdurakhmanova stated that at about 8 p.m. on 25 July 2010 five men had arrived at her house. They had introduced themselves as servicemen from the Sovetskiy ROVD in Makhachkala. One of them named Shamil had shown her an arrest warrant for her son Mr A. Abdurakhmanov signed by the FSB investigator A. Plugin ...

Later on the same day she had learnt of her son’s abduction in Kaspiysk by unknown masked persons ... who fired weapons during the incident and absconded from the crime scene. Shortly afterwards policemen had arrived at the scene and, according to the neighbours, had collected the cartridge cases and left.

To verify Ms Abdurakhmanova’s statements it is necessary to take the following steps:

- identifying the policemen who had visited her house as well as the investigator from the Sovetskiy ROVD named Shamil ...

- questioning all the policemen in Kaspiysk who were on duty on 25 June 2010 to find out whether they were called to a scene of shooting and abduction at 29 Sovetskaya Street ...

- questioning all the witnesses, including the neighbours in Sovetskaya Street, about the events, and finding out the registration numbers of the cars used by the policemen who had arrived at the scene after the abduction ...

... in the letter from the Dagestan FSB of 4 August 2010 it is stated that the FSB had sent a letter to the Investigations Committee (no. 5/3170 of 3 July 2008) concerning Mr A. Abdurakhmanov, in which it was stated that the Dagestan Investigations Committee had been investigating case no. 6021567 concerning ... a bandit group which had planned murders of policemen in Makhachkala as well as terrorist attacks. One of that group’s members was Mr A. Abdurakhmanov ... who had maintained close contact with active members of the bandit subversive movement and had aided and abetted them. In particular, Mr A. Abdurakhmanov had sheltered in his flat armed members of the bandit subversive movement who were hiding from the authorities ...

The investigation of criminal case no. 171822 opened by the Russia FSB obtained information concerning activities of an organised armed group in Dagestan and Moscow which was aiding and abetting the armed bandit subversive movement in Dagestan ... the investigation received information concerning Mr A. Abdurakhmanov’s involvement in the activities of that group ...

In connection with the above, it is necessary that the investigators:

- write to the FSB investigator A. Plugin concerning the operational search measures to be taken against Mr A. Abdurakhmanov ...”

On 20 September 2010 the FSB Investigations Department informed the investigators of the following:

“... the FSB investigations department is investigating criminal case no. 171822 concerning ... members of the illegal armed group “Imarat Kavkaz”.

Mr R.A. and Mr R.M. have been charged in the criminal case with membership of illegal armed groups ... Mr A. Abdurakhmanov is a witness to their criminal activity. In this connection, a request for operational search measures (outgoing no. 6/3-3726 of 17 June 2010) to establish his whereabouts and question him has been forwarded to the Dagestan FSB ...”

On 28 September 2010 the investigators requested the Internal Security Service of the Dagestan MVD to oblige police officers M.D., D.M., M.Z. and M.A. to provide statements for the investigation concerning the abduction. The letter stated, amongst other things, that the first applicant had insisted that her son’s abduction had been perpetrated by police officers from the Dagestan CTC.

On the same date, 28 September 2010, the investigation of the criminal case was suspended. The applicants were not informed thereof.

On an unspecified date in October 2010 the applicants complained to the Kaspiysk Prosecutor about the investigators’ failure to take basic steps to investigate the abduction. On 14 October 2010 the applicants were informed by the Kaspiysk Prosecutor that an investigation into the abduction was in progress.

On 15 November 2010 the applicants requested the investigators to take a number of actions, including questioning the heads of the Kaspiysk Town Department of the Interior (the GOVD) to find out whether any special operations had been carried out in the settlement on 25 June 2010 and the reason for the collection of the cartridge cases from the crime scene after the shooting; questioning the head of the Sovetskiy ROVD to establish the reason for the police officers’ visit to the first applicant’s house on 25 June 2010; and questioning the head of the Dagestan CTC to establish whether Mr Abdurakhman Abdurakhmanov had been taken to their premises and if so why this had been done.

On 22 November 2010 the head of the Kaspiysk Investigations Department criticised the investigators for an unlawful and premature suspension of the investigation, and ordered that the investigation be resumed and a number of steps be taken.

On 23 November 2010 the investigators questioned police officers M.D. and M.Z., both of whom stated that on 25 June 2010 they had visited the first applicant’s house to establish the whereabouts of Mr Abdurakhman Abdurakhmanov on suspicion of his membership of illegal armed groups. The first applicant had told them that her son was not at home. The witnesses had then left the house and had subsequently learnt of the abduction from a local newspaper.

On 24 November 2010 the applicants complained to the head of the Kaspiysk Investigations Department, the Dagestan Investigations Department, the Kaspiysk Prosecutor and the Dagestan Prosecutor about the investigators’ failure to take basic steps to investigate the abduction in spite of numerous pieces of evidence implicating law-enforcement officers in the crime. They requested that the investigators be ordered to expedite the investigation and identify the perpetrators.

On 30 December 2010 the deputy head of the Kaspiysk Investigations Department rejected the applicants’ complaint as groundless.

From the documents submitted it follows that the proceedings are still pending.

On 19 July 2010 the first applicant complained to the Sovetskiy District Court of Makhachkala (the district court). She provided a detailed description of the circumstances surrounding her son’s abduction and alleged that he had been abducted by members of law-enforcement agencies. The applicant requested the district court to order the prosecutor’s office to take a number of essential investigative steps and to provide her with information concerning the whereabouts of Mr Abdurakhman Abdurakhmanov.

On 29 July 2010 the court requested the Dagestan MVD to inform it whether the police officers had arrested the applicants’ relative.

On 12 August 2010 the Dagestan MVD replied to the court, stating the following:

“... on 25 June 2010 ... a group of officers from the ROVD, including Major M.D., Senior Lieutenants D.M. and M.Z. and Lieutenant M.A., following the investigator’s order no. 6/3-3726 of 17 June 2010 issued as part of the criminal case no. 171822 opened under Articles 186 § 1 (money counterfeiting) and 205 § 1 (terrorist activity) of the Criminal Code, visited [the first applicant’s house in Makhachkala] in order to establish the whereabouts of Mr Abdurakhman Abdurakhmanov, who was suspected of committing the above crimes ...”

The letter further stated that no further information about the visit was available.

On 24 August 2010 the district court rejected the applicant’s complaint of 19 July 2010. The decision stated, amongst other things, the following:

“... from the letter of the head of the Dagestan FSB Mr A.G., outgoing no. 13465 dated 2 July 2010, it follows that order no. 6/3 dated 17 June 2010 was issued by the Investigations Department of the Dagestan FSB as part of criminal case no. 171822, to establish the whereabouts of Mr Abdurakhman Abdurakhmanov ... Following this order the officers of the Sovetskiy ROVD visited the home of [the first applicant] Ms A. Abdurakhmanova and took a statement from her concerning her son’s whereabouts. Their actions do not contravene Article 6 of the Federal Law “On Operational and Search Activity”....”

The applicants maintained that it was beyond reasonable doubt that the men who had abducted Mr Abdurakhman Abdurakhmanov were State agents. In support of their complaint, they referred to the following facts. Mr Abdurakhman Abdurakhmanov was suspected by the authorities of membership of illegal armed groups (see paragraphs 39, 40, 46 and 52 above); two hours prior to the abduction five officers from the Sovetskiy ROVD visited the first applicant’s house in Makhachkala and showed the FSB warrant (see paragraphs 8, 13, 23, 39 and 52 above). Then, in Kaspiysk, less than an hour later, one of the abductors identified himself as a police officer and shortly after the abduction the police arrived at the scene and removed the spent cartridges to cover the perpetrators’ tracks. The perpetrators were violent and opened fire without hesitation, in the presence of a number of witnesses. The applicants further stated that since Mr Abdurakhman Abdurakhmanov had been missing for about a year at the time of the submission of their observations to the Court, he could be presumed dead. That presumption was further supported by the circumstances in which he had been abducted, which should be recognised as life-threatening.

The Government submitted that the applicants’ relative had been abducted by unidentified men and that neither the perpetrators’ behaviour nor their vehicles provided for any firm evidence that they were State agents. The Government further contended that there was no evidence that Mr Abdurakhman Abdurakhmanov was dead.

The Court observes that in its extensive case-law it has developed a number of general principles relating to the establishment of matters in dispute, in particular when faced with allegations of violations of fundamental rights (for a most recent summary of these, see El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, §§ 151-53, 13 December 2012).

More specifically, the Court has adjudicated a series of cases concerning allegations of disappearances in the Russian North Caucasus. Applying the above-mentioned principles, it has concluded that it would be sufficient for the applicants to make a prima facie case of abduction of the missing persons by State agents, thus falling within the control of the authorities, and it would then be for the Government to discharge their burden of proof, either by disclosing the documents in their exclusive possession or by providing a satisfactory and convincing explanation of how the events in question occurred (see, for example, concerning abductions in Dagestan, Alpatu Israilova v. Russia, no. 15438/05, 14 March 2013, and Umarovy v. Russia, no. 2546/08, 12 June 2012). If the Government failed to rebut this presumption, that would entail a violation of Article 2 in its substantive part. Conversely, where the applicants failed to make a prima facie case, the burden of proof could not be reversed (see, for example, Shafiyeva v. Russia, no. 49379/09, § 71, 3 May 2012).

In view of the parties’ submission concerning the circumstances of the abduction (see paragraphs 8-11 above), the Court concludes that the materials in its possession demonstrate the validity of the applicants’ allegation, for the following reasons. Firstly, the abductors, who arrived in a civilian vehicle, acted as an organised group and did not hesitate to open fire and perpetrate the abduction in the street, in daylight and in the presence of witnesses. One of them told the second applicant that they were from the police. Secondly, a group of local police officers arrived at the crime scene shortly after the incident and collected the cartridge cases left by the abductors. Thirdly, the police officers’ visit to the first applicant’s house in Makhachkala looking for Mr Abdurakhman Abdurakhmanov on suspicion of his involvement in terrorist activities, just an hour prior to his abduction in Kaspiysk, provides grounds to believe that these two events were interconnected. Further, the investigators took no meaningful steps to check whether the abduction could have been perpetrated for other reasons, such as a blood feud, ransom, drugs or hostility. No serious steps were taken to verify those hypotheses and no information was obtained that the abductors could have been other than State agents (see, by contrast, Zubayrayev v. Russia, no. 67797/01, § 81, 10 January 2008). Lastly, the procrastination of the authorities in the investigation into the matter, along with the applicants’ consistent allegations that law-enforcement officers were involved in the incident (see, for example, paragraph 47 above), provide the Court with the grounds to conclude that the applicants have made a prima facie case that their relative Mr Abdurakhman Abdurakhmanov was abducted by State agents. The Government’s statement that the investigators found no evidence that members of lawenforcement authorities were involved in Mr Abdurakhman Abdurakhmanov’s disappearance is insufficient to discharge them from the above-mentioned burden of proof. Having examined the documents submitted by the parties and drawing inferences from the Government’s failure to provide another plausible explanation for the events in question, the Court finds that Mr Abdurakhman Abdurakhmanov was apprehended on 25 June 2010 by State agents (see, for a similar situation, Askhabova v. Russia, no. 54765/09, § 135, 18 April 2013).

There has been no reliable news of Mr Abdurakhman Abdurakhmanov since his arrest. The Government have not submitted any explanation as to what happened to him afterwards.

The Court finds that, in a situation where a person is detained by unidentified police officers without any subsequent acknowledgment of the detention and is then missing for several years, that situation can be regarded as life-threatening. The absence of Mr Abdurakhman Abdurakhmanov or of any news of him for over five years supports this assumption.

Accordingly, the Court finds that the evidence available permits it to establish to the requisite standard of proof that Mr Abdurakhman Abdurakhmanov must be presumed dead following his unacknowledged detention by State agents.


CASE OF PETRESKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

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

Aleš Pejchal;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo;Robert Spano

The applicant was born in 1953 and lives in Skopje.

The applicant was employed by the State Intelligence Agency (Агенција за разузнавање, “the employer”).

On 28 February 2001 she was dismissed from work as redundant given that internal regulations (Правилник за систематизација на работните места, “the Regulations”) of 27 February 2001 provided for reduced number of employees for posts such as the post held by the applicant.

On 9 April 2001 the applicant challenged her dismissal before the Skopje Court of First Instance (“the first-instance court”).

After three remittal orders, on 29 November 2005 the first-instance court dismissed the applicant’s claim, finding that she had been dismissed on 28 February 2001 on the basis of the Regulations, which had been adopted by the employer and approved by the Government on 27 February 2001. It further found that the Government’s approval had been received by the employer on 2 March 2001, but that had been irrelevant given that it was only the date when approval had been given by the Government that was important for the entry into force of the Regulations.

On 14 December 2005 the applicant appealed, arguing inter alia that the Regulations could not have applied to her case, as it could only be adopted after the employer had received the Government’s approval. The applicant relied on another final judgment of the Skopje Court of Appeal (“the appellate court”) in a similar case concerning a former colleague of the applicant, in which it had been established that the Regulations had not entered into force at the time of the dismissal (see paragraph 17 below). She contended that under the relevant law (see paragraph 16 below) the Regulations could only be adopted after the Government’s approval had been obtained.

On 23 February 2006 the appellate court dismissed the applicant’s appeal. It found that the Government had approved the Regulations on 27 February 2001, that they had entered into force the same day, and that the applicant’s dismissal of 28 February 2001 was therefore lawful.

On 7 April 2006 the applicant lodged an appeal on points of law with the Supreme Court. In it she argued, inter alia, that the Regulations could only be adopted after the Government’s approval had been obtained, and that they had thus not entered into force at the time of her dismissal. She referred to the earlier judgment of the appellate court (see paragraph 17 below), and argued that it had deviated from its established practice on the matter without providing any reasons. She further contended that the dismissal of her former colleagues, which had been based on the same grounds, had been quashed and they had been reinstated to their posts.

On 25 October 2007 the Supreme Court dismissed the applicant’s appeal on points of law. It found that on 27 February 2001 the Government had approved the Regulations, which had thus entered into force the same day. On 15 January 2008 the applicant was served with the Supreme Court’s judgment.


Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Georges Ravarani;Ksenija Turković

The applicant was born in 1982 and lives in Şırnak.

On 3 September 2005 a demonstration was held in the Gemlik district of the city of Bursa by the Association for the Solidarity of Prisoners’ and Convicts’ Relatives (Tutuklu ve Hükümlü Yakınları Yardımlaşma ve Dayanışma Derneği – “Tuhay-Der”) in order to protest about the conditions of detention in prisons, and in particular those of Abdullah Öcalan, the leader of the PKK (the Workers’ Party of Kurdistan), an illegal armed organisation.

On 5 September 2005 a group who had attended the demonstration in Gemlik returned to Cizre, a district of Şırnak, and a gathering was held in front of the building of the Cizre branch of the People’s Democratic Party (Demokratik Halk Partisi – “DEHAP”). The applicant, as president of the Şırnak branch of the DEHAP, made a speech during that gathering.

On 6 October 2005 the Cizre public prosecutor filed a bill of indictment with the Cizre Criminal Court against the applicant and four others. The applicant was charged with disseminating propaganda in favour of a criminal organisation and its goals, proscribed by Article 220 § 8 of the Criminal Code, on account of his speech on 5 September 2005. The public prosecutor submitted that the following passages in the speech constituted propaganda in favour of an illegal organisation:

“... We want peace in this country. Those who wish for war prevent us from having peace. As you know, Mr Abdullah Öcalan, the leader of the Kurdish people, called for a ceasefire six years ago. The Government have failed to take a proper view of that six-year unilateral ceasefire and therefore the war has re-started. We have once again started to receive the bodies of guerrillas and soldiers. We want an end to the crying of the mothers of guerrillas and soldiers. We want peace. Mr Abdullah Öcalan has not been able to meet his lawyers or members of his family for the last three months. We believe that that sanction is harmful to the peace process.”

On 7 October 2005 the Cizre Criminal Court accepted the bill of indictment.

On 24 July 2006 upon the request of the Cizre Criminal Court, the Şırnak Criminal Court obtained the applicant’s defence statements. The applicant contended that he had not praised an illegal organisation in his speech and that he had not intended to disseminate propaganda. He noted that he had only thanked those who had made an effort to bring about peace. The applicant finally stated that the slogans chanted by the crowd during his speech had promoted peace.

The Cizre Criminal Court held nine hearings on the merits of the case and obtained a report by an expert on the video-recordings of the gathering of 5 September 2005, which stated that the applicant had made a speech to a crowd. Subsequently, on 22 December 2006, the Cizre Criminal Court issued a decision that it lacked jurisdiction as it considered that the acts of the accused should be examined under the Prevention of Terrorism Act (Law no. 3713). The case was transferred to the Diyarbakır Assize Court.

On 7 April 2007 the Diyarbakır Assize Court ordered an expert to examine the video-recordings of the gathering of 5 September 2005.

On 8 May 2007 the applicant made a statement to the Diyarbakır Assize Court. He contended that he had not disseminated propaganda during his speech but had only thanked those who had worked for peace and had also condemned Abdullah Öcalan’s solitary confinement. The applicant denied the allegation that he had referred to Abdullah Öcalan as the leader of the Kurdish people. He further noted that there had been no violent incidents during or after his speech. Following his speech the demonstrators had dispersed quietly and the slogans that had been chanted while he spoke had been peaceful.

According to the report, dated 21 May 2007, on the examination of the police video-recordings of the gathering of 5 September 2005 submitted by the expert to the first-instance court, the applicant had made the following speech:

“... Friends, I would like to say a few words about how grateful we are to you. First of all, as you already know, we left Şırnak to go to the peace meeting, Gemlik meeting which was organised by Tuhay-Der. As a result of the arbitrary security measures taken by the security forces and the fact that we were forced to wait two and a half hours at each checkpoint for identity checks, we were not able to travel as fast as we wanted. For us, those who conducted themselves in such a manner are the people who do not want peace in this country (his speech is interrupted by applause and ululations). Subsequently, we were taken into police custody because of our democratic reaction to the search order. We were kept in police custody for one night and then taken before a court. The court released us. However, it took a decision to place me under judicial control. I have to go to give my signature every Monday and I am banned from travelling abroad (His speech is interrupted by boos and the slogan ‘Barışa uzanan eller kırılsın’ (‘May those hands which aim to damage peace be broken’). We condemn with contempt the mentality which obstructed the meeting in Gemlik; we condemn with contempt the fact that Mr Abdullah Gül, the Minister of Foreign Affairs, called us ‘provocateurs’ as well as the mentality which prevented the peace meeting from taking place and which blocked and attacked the crowds. Two vehicles were burned. A person lost his life and hundreds were injured. We condemn with contempt the mentality which is against your and the Kurdish people’s sensibility, your wish for peace and the meeting on peace. We want peace in this country. We want harmony. Those who are against unity and solidarity in this country and those who do not want this country to reach modernity, that is to say, who obtain an unjustified gain out of this war, prevent us from having peace ... As you know, Mr Abdullah Öcalan, the leader of the Kurdish people (His speech is interrupted by the slogan ‘Biji Serok Apo’ (‘Long live President Öcalan’) called for a ceasefire six years ago. The Government have failed to take a proper view of that six-year unilateral ceasefire and therefore the war has re-started. We have once again started to receive the bodies of guerrillas and soldiers. We want an end to the crying of the mothers of guerrillas and soldiers in this country. We want peace in this country. We will continue our struggle for peace. The demonstration organised by Tuhay-Der will contribute to peace because a one-month ceasefire has been declared. Mr Abdullah Öcalan has not been able to meet his lawyers or members of his family for the last three and a half months. We believe that that sanction is harmful to the peace process. That is why we participated in the peace march that was organised by Tuhay-Der. We thank those who attended that demonstration for their wish for peace and for their determination, despite injustice and obstructions. We hope that our friends who were injured will recover soon. We condemn with contempt those who obstructed the peace march. We want peace and we will continue to struggle for peace. I thank you all. You can disperse now in silence ...”

According to the report, the demonstrators waved yellow, red and green pieces of cloth and carried photographs of Abdullah Öcalan. Some of the applicant’s co-accused were seen chanting slogans or carrying photographs of Abdullah Öcalan. In particular, one of them chanted the slogans “Biji Serok Apo” (“Long live President Öcalan”) and “Dişe diş kana kan, seninleyiz Öcalan” (“A tooth for a tooth, blood for blood, we are with you Öcalan”) for periods of thirty-seven and ten seconds respectively. Another accused was seen chanting the slogans “Dısa dısa serhildan serokeme Öcalan” (“Rise up again and again, our president is Öcalan”), “Baskılar bizi yıldıramaz” (“We will not be defeated by oppression”), “PKK halktır. Halk burada.” (“The PKK is the people. The people are here.”), “Şırnak ovası PKK’nin yuvası” (“Şırnak is the home of the PKK”) for periods of between six and fifteen seconds while waving a photograph of Abdullah Öcalan. Some other demonstrators also chanted the slogan “Savaşta barışta seninleyiz Öcalan” (“In war and in peace we are with you Öcalan”).

On 19 February 2008 the Diyarbakır Assize Court delivered its judgment. The court noted that those who disseminated propaganda in favour of the PKK were expressing their support and approval for the PKK, whose methods were those of terrorism and violence. The court accordingly considered that the dissemination of propaganda in favour of that organisation essentially amounted to incitement to violence and the use of terrorist methods. The first-instance court further noted that it was a well-known fact that during illegal demonstrations and meetings PKK members and supporters disseminated propaganda by way of waving photographs of the leader of the PKK and yellow, red and green pieces of cloth, symbolising the so-called flag of the PKK. The court thus concluded that on 5 September 2005 the accused had disseminated propaganda by acting in support of the PKK’s aims and by their acts in front of the building of the Cizre branch of the DEHAP.

As regards the applicant, the Diyarbakır Assize Court also noted that he had referred to Mr Öcalan as “the leader of the Kurdish people” and to members of the PKK who had been killed as “guerrillas”. The court also found it established that the applicant had directed the demonstrators who had chanted slogans in favour of the PKK, waved yellow, red and green pieces of cloth and carried photographs of Abdullah Öcalan. The Diyarbakır Assize Court further noted that section 7(2), as amended by Law no. 5532, which had entered into force on 18 July 2006, was more favourable to the applicant than the previous version of the same provision in force on the date the applicant had committed the acts that constituted the basis for his conviction (see paragraph 19 below). As a result, the first-instance court convicted the applicant of disseminating propaganda in favour of a terrorist organisation under section 7(2) of Law no. 3713, as amended by Law no. 5532, and sentenced him to ten months’ imprisonment. The court also ordered that Article 53 §§ 1, 2 and 3 of the Criminal Code should apply in respect of the applicant (see paragraph 20 below).

On 13 July 2010 the Court of Cassation upheld the Diyarbakır Assize Court’s judgment.