No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect)

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

The applicant was born in 1983 and lives in Mārupe. At the material time the applicant held a pilot licence and was undergoing aviation training.

In 2008 the applicant used the services of a company, KD.C. (the name of this company was subsequently changed, but it will be referred to hereinafter as “KD.C.” or “the company”). D.K. held 100% of the shares in the company (he was its sole owner) and he was also its sole board member. The company provided private flights and organised private pilot training courses. The Civil Aviation Agency had issued the company with a registration certificate for the provision of private pilot training courses.

The company did not provide commercial flights, therefore it fell outside the scope of the Regulation of the Cabinet of Ministers on Procedures Regarding the Issuing of an Air Operator’s Certificate for Aerial Work (8 May 2007), and was not certified by the Civil Aviation Agency.

On 16 August 2008 KD.C. organised a private flight from Riga to Tukums using a multi-engine aircraft, a Piper PA-31 with a maximum allowed mass of 2,900 kg. The applicant and six other people boarded the aircraft as passengers. The applicant occupied the front seat of the aircraft, next to the pilot, G.V., and maintained radio communication with the air traffic control service.

At around 10 a.m. the pilot, G.V., lost control of the aircraft and it crashed (see paragraph 12 below). As a result, the pilot died and all passengers sustained serious injuries.

According to a forensic medical examination, the applicant suffered serious, life-threatening injuries. He permanently lost the vision in his right eye and sustained other permanent damage to his health. He underwent treatment in Latvia and abroad.

After rehabilitation, the applicant was able to continue working as an aviation specialist, but under certain limitations. He was not permitted to operate an aircraft independently and was required to undergo medical checks more often than other aviation specialists.

Following the accident on 16 August 2008 officials from the Transport Accident and Incident Investigation Bureau (Transporta nelaimes gadījumu un incidentu izmeklēšanas birojs, hereinafter “the TAIIB”), whose main task was to establish the circumstances of an accident, went to the scene of the accident and carried out an investigation.

According to the TAIIB’s final report of 27 June 2009, on the day of the accident, when operating in cloudy weather, G.V., the pilot, made a series of chaotic manoeuvres, as a result of which the aircraft, which was about 30-50 m from the ground, lost altitude. The attempts to stabilise it were unsuccessful. As a consequence of hitting the ground and damaging its tank, the aircraft caught fire.

The investigation concluded that the primary cause of the accident was “human error” (cilvēka faktors), namely G.V. having insufficient skills and experience to independently operate a multi-engine aircraft in accordance with instrumental flight rules and, in particular, to operate a Piper PA-31 aircraft. The pilot had not obtained authorisation from the Civil Aviation Agency to fly that particular type of aircraft. In particular, G.V. had started the “differences training programme” for the Piper PA31 aircraft on 1 August 2008, but had not finished it. Nevertheless, on 16 August 2008 he had flown without sufficient qualifications.

The final report indicated several aspects which had contributed to the accident, such as unfavourable weather conditions with poor visibility, and the “unsafe supervision” (nedroša uzraudzība) carried out by the Civil Aviation Agency “[to ensure] that the aviation legislation and visual flight rules were complied with”.

With regard to KD.C., the company which owned the aircraft, the investigation concluded that it had not followed up on the pilot’s differences training programme and its outcome. On the day of the accident the company had not checked whether the pilot’s documents complied with the requirements of the legislation, and it had unjustifiably (nepamatoti) handed over the aircraft to him and verbally authorised him to fly.

The above report, inter alia, addressed to the Civil Aviation Agency eight recommendations concerning flight safety. The second recommendation advised the Civil Aviation Agency to impose a duty on aircraft owners to set up a procedure for aircraft handovers which would prevent pilots from operating a flight without a licence and would contain confirmation of an appropriate qualification certificate issued by the Civil Aviation Agency.

On 16 August 2008 a criminal investigation was opened into the aircraft accident. In the course of the investigation the police gathered evidence, ordered that forensic examinations be carried out, and interviewed numerous witnesses, including various aviation specialists.

Questioned as a witness, D.K. stated that he himself had no experience of operating aircrafts, and that G.V. had been the company’s de facto associate, although legally he had had no contractual relationship with the company; D.K. also stated that he had had no doubts that G.V. had had sufficient qualifications, because he had undergone the necessary training and obtaining a certificate had only been a formality. It had been supposed that G.V. would at all times be accompanied by a more experienced instructor during the training flights. On the day of the accident D.K. had a telephone conversation with G.V. and the latter informed him that he had finished his “instruction” and would soon be starting a flight. Only afterwards did D.K. find out that another aeroplane had returned to the same airport owing to bad weather conditions.

The investigation revealed that G.V. had undertaken to fly the aircraft even though he lacked the requisite skills, which had caused the accident in question. On 14 January 2010 the proceedings with regard to G.V. were terminated due to his death.

The material in the criminal case contained a letter from the TAIIB dated 20 October 2009 which stated, inter alia, that at the material time the legislative acts regulating aviation safety in Latvia had not provided for a procedure setting out how to hand over an aircraft for a general aviation flight.

This was further confirmed in a statement given by a TAIIB official during the investigation, that in general aviation, unlike in commercial aviation, there were no established (nebija sakārtots) regulations regarding an aircraft owner’s responsibility in relation to a specific flight and a pilot’s skills. Therefore the recommendations of the TAIIB were adopted to address that issue within the existing system (see paragraph 16 above). During the investigation, an official of the Civil Aviation Agency testified that in commercial aviation, the question of an operator’s responsibility with regard to the qualifications and rights of a pilot was sufficiently regulated, however this regulation did not apply to general aviation flights.

On 24 May 2011 the prosecution indicted D.K. for negligence in the performance of his professional duties (section 197 of the Criminal Law) and violation of air traffic safety or operation regulations (section 257(2) of the Criminal Law). The prosecution alleged that D.K. had handed over the aircraft to G.V. knowing that the latter lacked the requisite permit and skills to operate it. On 8 June 2011 the prosecution referred the case for trial.

On 22 October 2012 the Tukums District Court found D.K. guilty on both counts. It established that D.K. had not applied any measures to verify G.V.’s qualifications. He had given the aircraft to the pilot knowing that the latter lacked the appropriate authorisation and had permitted him to fly. D.K. was given a suspended prison sentence of five years. He was also ordered to pay the applicant 20,000 Latvian lati (around 29,000 euros (EUR)) in compensation for non-pecuniary damage.

On 15 May 2013 the Zemgale Regional Court, acting as an appellate court, quashed the above judgment and acquitted D.K. In the appeal proceedings, D.K. testified that in his telephone conversation with G.V. on 16 August 2008 they had agreed that G.V. would not fly, owing to the bad weather conditions. He explained the inconsistency in relation to his pretrial testimony (see paragraph 18 above) as follows. Firstly, he had been a witness at that stage. Secondly, he had been interviewed in Latvian, which was not his mother tongue, and he had not been as fluent as was necessary. He had no doubt that G.V. was responsible for the accident, and he could not envisage also being charged in criminal proceedings.

With regard to negligence in the performance of his professional duties (see paragraph 44 below), the court deemed that neither the indictment nor the first-instance judgment had shown what professional duties in particular D.K. had neglected. Also, not being an aviation specialist, he could not have been regarded as a “special subject” for the purposes of this section of the Criminal Law (an organisation’s responsible employee).

Concerning the alleged violation of air traffic safety or operation regulations (see paragraph 45 below), the appellate court concluded that it had not been established precisely what regulations D.K. had violated and by what conduct in particular. Besides, section 257 of the Criminal Law required that the prohibited conduct be committed by a transport employee, which D.K. was not.

The appellate court indicated that, even though D.K. could not be held criminally liable, KD.C. had an obligation to provide compensation for the damage sustained by the victim, and therefore the applicant had rights to seek damages in civil proceedings.

Both the applicant and the prosecutor submitted appeals against the appellate court’s judgment.

On 9 December 2013 the Senate of the Supreme Court endorsed the appeal court’s findings that it had not been shown that D.K. had committed the requisite actus reus. The Senate confirmed that D.K.’s actions did not contain the necessary elements of a crime under sections 197 and 257(2) of the Criminal Law.

The Senate stated that the prosecution should not have relied on certain provisions of the Commercial Law, the Civil Law, the Law on Aviation and the Convention on International Civil Aviation (hereinafter “the Chicago Convention”). Those provisions were applicable when determining the civil and not criminal liability of an aircraft owner. In accordance with section 34 of the Law on Aviation, a pilot was prohibited from performing his functions in the event that he had not acquired the appropriate qualifications. The above provision had been binding upon the pilot and not D.K. The Senate also stated that only on 18 November 2010 had Part II of Annex 6 to the Chicago Convention, Seventh Edition, come into force, making provision for the liability of an aircraft owner and a pilot; before that date the Chicago Convention provided the responsibility only of the pilot (see also paragraph 58 et seq. below).

Furthermore, at the material time, no legislation had provided for a procedure for handing over an aircraft to a pilot, designating a person responsible for verifying pilots’ training, or checking flight planning and implementation. Only subsequent to the accident in question had recommendations been issued to the Civil Aviation Agency on the preparation of statutes relevant to flight safety. As of 24 April 2013, section 91 of the Law on Aviation had provided that an aircraft owner or operator was not allowed to hand over an aircraft to a person lacking the appropriate qualifications and insurance cover (see paragraph 55 below).

On 13 August 2010 the applicant lodged a claim for damages against KD.C. (the company which owned the aircraft), D.K. (the sole owner and board member of the company), and the insurance company. In the claim, inter alia, the applicant relied on sections 1782, 2347 and 2349 of the Civil Law (see paragraphs 42-43 below). In the meantime, by a final decision of the Riga Regional Court of 8 November 2010, KD.C. was declared bankrupt (maksātnespējīgs) upon application by one of its creditors and respective proceedings were started with retrospective effect from 31 December 2008.

On 14 May 2013 the Riga Regional Court, acting as a court of first instance, dismissed the claim in full on the grounds that the defendants had not committed unlawful actions (prettiesiska darbība). There was no dispute that D.K. had agreed to the pilot starting a “differences training programme” for the Piper PA-31 aircraft with a flight instructor, O.G. However, there was no evidence that on 16 August 2008 D.K. had allowed the pilot to operate this aircraft carrying seven passengers. On the contrary, the instructor and another witness (J.Z.) had testified that it had been planned that the pilot would operate the aircraft with the flight instructor, who had not arrived at the airport to take the flight on that date because of the bad weather conditions. The pilot had been informed of the bad weather conditions and the fact that the flight instructor would not arrive for the flight.

By referring to the investigation carried out by the TAIIB, the Riga Regional Court noted that the primary reason for the accident was “human error” on the part of the pilot, and that the lack of sufficient procedure in relation to handing over an aircraft had contributed to the accident, but was not the sole cause of it. Moreover, the applicant had occupied the front seat of the aircraft, next to the pilot, and had maintained radio communication. Taking into account that he was a pilot himself and that he had received information about the unfavourable weather conditions, he could have avoided any damage by choosing not to fly in such circumstances.

By referring to the second recommendation (see paragraph 16 above), the court concluded that, at the material time, there had been no obligation for aircraft owners to verify the qualifications and health of pilots.

On 24 September 2015 the Civil Cases Chamber of the Supreme Court, acting as an appellate court, dismissed the applicant’s claim in full on the following grounds.

With regard to KD.C., the civil proceedings were terminated because the company had ceased to exist (on 26 May 2015 it had been excluded from the Companies Register) and there was no legal successor.

Next, the appellate court found that D.K. could not be held liable under sections 1779 and 1635 of the Civil Law for the damage sustained by the applicant. By referring to the investigation carried out by the TAIIB, the appellate court also noted that the primary cause of the accident had been “human error” on the part of the pilot. While the lack of a sufficient procedure in relation to handing over the aircraft had contributed to the accident, there was no causal link between the accident and the actions of D.K., who managed the company.

The appellate court also referred to the conclusions made in the criminal proceedings to the effect that D.K. was not liable for the flight operated by the pilot, and the fact that he had been acquitted. Moreover, the appellate court referred to evidence given to the first-instance court and concluded that on 16 August 2008 D.K. had not allowed the pilot to operate the aircraft independently and that the pilot’s course of action (to operate the aircraft independently) had been arbitrary and unlawful. It had been planned that the pilot would operate the aircraft with the flight instructor (see paragraph 33 above).

In the light of sections 97 and 98 of the Law on Aviation, the owner of the aircraft was the company and not D.K. Thus, the latter could not be held responsible under the Law on Aviation. In so far as the applicant referred to the Chicago Convention, this was inapplicable, because it only provided for the responsibility of a pilot-in-command and, from 18 November 2010 onwards, the responsibility of an owner; D.K. was neither a pilot nor an owner.

Neither could D.K. be held liable under section 1782 of the Civil Law (see paragraph 43 below) because the pilot had not been an employee of the company. Nor could he be held liable under sections 2347 and 2349 of the Civil Law (see paragraph 42 below). Referring to the conclusions made in the criminal proceedings, the appellate court held that D.K. had not engaged in any unlawful (prettiesiska) or liable (vainojama) activity. Therefore, he could not be required to pay damages to the applicant. There was no doubt that the aircraft was a source of dangerous activity, but D.K. was not its owner. Instead, KD.C. was the owner of the aircraft, therefore it was liable for loss caused by the source of dangerous activity.

The appellate court also refused to hold D.K. liable as a board member of the company. It concluded that, under the relevant provisions of the Commercial Law, board members were liable for damage caused to a company. In the present case, the company had not incurred any losses because it had not provided compensation for any damage sustained by the applicant.

Lastly, the appellate court dismissed the claim against the insurance company. In the judgment, it stated that the aircraft accident fell outside the terms of the aircraft’s insurance, which provided that compensation was not awarded if an accident was caused by a pilot who had no right to operate an aircraft. In the present case, the pilot had not had a permit to operate the aircraft in question.

In a preparatory meeting on 5 May 2016 the Senate of the Supreme Court dismissed an appeal on points of law by the applicant in the case against KD.C., D.K. and the insurance company.

In a letter dated 12 May 2015 addressed to the Government regarding the accident in question, the Civil Aviation Agency stated:

“As regards the responsibility of the aircraft owner, we note that the legislative acts [at the material time] provided that the owner of an aircraft was responsible for ensuring the maintenance of the aircraft’s airworthiness, but not its safe operation during a flight, which was the pilot’s responsibility. In particular, in accordance with Commission Regulation (EC) No 2042/2003 of 20 November 2003 on the continuing airworthiness of aircraft and aeronautical products, parts and appliances, and on the approval of organisations and personnel involved in these tasks, under Annex I (Part M) M.A. 201 (a), the owner is responsible for the continuing airworthiness of an aircraft and shall ensure that no flight takes place unless: the aircraft is maintained in an airworthy condition; and any operational and emergency equipment fitted is correctly installed and serviceable or clearly identified as unserviceable; and the airworthiness certificate remains valid; and the maintenance of the aircraft is performed in accordance with the approved maintenance programme.”


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Civil rights and obligations;Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicants are pensioners. On various dates they successfully sued the authorities for miscalculating and adjustment of their pensions. The judgments became final.

On various dates the Presidia of Regional Courts or the Supreme Court of Russian Federation allowed the defendant authorities’ applications for supervisory review and quashed the judgments delivered in the applicants’ favour, considering that the lower courts misapplied the material law.

Some of the judgments remained unenforced or partially enforced until the date of their quashing or were enforced with delay.


Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Kyrgyzstan);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);No violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)

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

The applicant was born in 1961 and lives in the town of Artyom, in the Primorye Region.

The applicant is a Kyrgyz national of Uzbek ethnic origin. He originally lived in the town of Osh in Kyrgyzstan.

In June 2010, which was a time of mass disorders and interethnic clashes in the region, the applicant had been the head of the territorial board of a municipal authority in which most residents were ethnic Uzbeks. He was, according to him, considered as a leader of the local Uzbek community.

After the clashes, the applicant had repeatedly been invited by the Kyrgyz investigative bodies for questioning as a witness.

In June 2011 the applicant learned that criminal proceedings had been opened against him (see paragraph 12 below). The applicant submits that law-enforcement officers started to extort money from him, threatening him with imprisonment. Due to this he moved to a different city in Kyrgyzstan, to his sister’s home, where he stayed for several months.

Afterwards, in March 2012, the applicant left Kyrgyzstan for Russia. He settled in the Primorye Region, and after obtaining a work permit, worked as a sports instructor.

On 16 June 2011 the Kyrgyz authorities charged the applicant with the commission of violent crimes in June 2010 (attempted murder, participation in mass disorders and unlawful firearms trafficking) and ordered his arrest. It appears that when the authorities eventually tried to execute the arrest order, the applicant had left the country (see paragraphs 10 and 11 above). The applicant was therefore put on the international wanted list.

On 14 March 2013 the applicant was arrested in Russia and detained in custody pending extradition

On 5 April 2013 the Kyrgyz authorities lodged an extradition request with the Prosecutor General of Russia, asking that the applicant be extradited to Kyrgyzstan for prosecution and trial.

On 16 September 2013 the Russian Prosecutor General’s Office granted the extradition request and ordered the applicant’s extradition.

The applicant appealed, arguing that due to his Uzbek ethnic origin the aforementioned decision would expose him to a serious risk of torture. The applicant supported his appeal through reference, inter alia, to various UN sources, NGOs’ reports and the judgment of the Court in the case of Makhmudzhan Ergashev (see Makhmudzhan Ergashev v. Russia, no. 49747/11, 16 October 2012).

On 1 November 2013 the Primorye Regional Court rejected the applicant’s appeal against the extradition order, giving the following reasoning:

“The charges pressed against [the applicant] [by Kyrgyz authorities] are criminal offences liable to punishment in Russia ... They are not time-barred ...

Pursuant to Article 464 § 1 (1) of the Russian Code of Criminal Procedure, an extradition request lodged by a foreign state in respect of a Russian citizen should be denied ...

It is apparent from the conclusions of the Federal Migration Service (FMS) for the Primorye Region that [the applicant] is not a Russian citizen. ... He holds a Kyrgyz passport ... and is a Kyrgyz national. ...

On 28 June 2013 the FMS for Prymorye Region rejected a request from [the applicant] for refugee status in Russia.

[The applicant’s] allegations of persecution by the Kyrgyz authorities on false criminal charges on the basis of his [Uzbek] ethnic origin were addressed [within the refugee status procedure].

The lawfulness of the refusal [to grant the applicant refugee status in Russia] was confirmed by Russia’s FMS on 24 September 2013 ...

[The applicant’s] argument [that] the decision to extradite him was taken before any judicial review of the refusal to grant him refugee status is groundless.

It is apparent from the evidential material gathered during the extradition check that [the applicant] arrived in Russia ... for employment purposes and that he had not been persecuted in Kyrgyzstan on racial, national or religious grounds ...

It is likewise apparent from the evidential material gathered during the extradition check that [the applicant] lodged his request for refugee status on 16 April 2013, while being held in custody following his arrest in Russia ... , [therefore] his appeal against the decision of the FMS did not prevent the Prosecutor General’s Office from taking a decision concerning extradition, in line with ruling no. 11 of 14 June 2012 of the Plenary Session of the Russian Supreme Court ...

[The applicant] does not have immunity from prosecution [and] there are no grounds preventing his extradition.

The Prosecutor General’s Office of Kyrgyzstan provided assurances that [in the event of extradition] [the applicant] would have the benefit of [legal assistance]; that he would not be extradited to a third State; that he would be prosecuted only for the offence for which he was being extradited; that [he] would not be subjected to torture, inhuman or degrading treatment or punishment; that he was being prosecuted for an ordinary criminal offence devoid of any political character or discrimination on any grounds; that he would be able to freely leave Kyrgyzstan after he had stood trial and served a sentence; and that Russian diplomats would be allowed access to him.

It is apparent from the above guarantees that [the applicant] is being prosecuted for ordinary criminal offences; his prosecution is not politically motivated and is not connected with his [ethnic origin].

[The applicant’s] allegations concerning his persecution on political grounds, lack of fair trial in Kyrgyzstan, and persecution of his family members by law-enforcement bodies in Kyrgyzstan are not supported by any objective data.

The court has established that [the applicant’s] wife and daughter live in Kyrgyzstan, [that there is] no substantiated information concerning their alleged persecution by the Kyrgyz authorities, [and] that they do not travel outside the territory of the Kyrgyz Republic. [The applicant himself] did not apply for refugee status until his arrest.

... The Russian Ministry of Foreign Affairs does not have any information that would prevent [the applicant’s] extradition to Kyrgyzstan.

Therefore, there are no grounds ... preventing [the applicant’s] extradition to Kyrgyzstan for criminal prosecution.

The argument of [the applicant’s] lawyer referring to international sources (report of the United Nations Special Rapporteur on Torture, report of the United Nations High Commissioner for Human Rights on technical assistance and cooperation on human rights for Kyrgyzstan, report of the United Nations Committee on the Elimination of Racial Discrimination, International Crisis Group Kyrgyzstan report) to the effect that after the interethnic clashes in the south of Kyrgyzstan in June 2010 the lawenforcement bodies had subjected ethnic Uzbeks to torture and that there are grounds to believe that [the applicant] might be subjected to torture in the event of his extradition, is unsubstantiated. The aforementioned international documents describe the general human rights situation in Kyrgyzstan, are unspecific and unsupported by evidence, and are countered by the guarantees offered by Kyrgyz Republic, which relate directly to the applicant and are sufficient to eliminate the risk of [the applicant’s] being subjected to inhuman treatment.

[As to] the reference by the defence to ... the judgment of the European Court of Human Rights in the case of Makhmudzhan Ergashev, [the case] has no connection with [the applicant’s] case and cannot be taken into consideration.

The applicant appealed to the Supreme Court of Russia.

In the meantime, on 28 January 2014 the Court indicated to the Government, under Rule 39 of the Rules of Court, that the applicant should not be extradited or otherwise involuntarily removed from Russia to Kyrgyzstan or another country for the duration of the proceedings before the Court.

On 30 January 2014 the Supreme Court upheld the judgment of 1 November 2013 on appeal, endorsing the reasoning of the first-instance court:

“The court has taken into consideration the arguments of the defence and the documents submitted, including the concluding observations of the UN Committee against Torture [dated December 2013] on Kyrgyzstan’s second periodic report, in which the Committee expressed its deep concern with regard to apparent impunity regarding widespread acts of torture and ill-treatment that remained uninvestigated by the authorities of the Kyrgyz Republic ... and the report that the investigations, persecutions, convictions and punishments in connection with the events of June 2010 are mainly directed at persons of Uzbek ethnic origin.

At the same time, these circumstances cannot in themselves be considered to constitute sufficient grounds for refusing to extradite [the applicant] to the Kyrgyz Republic ...

Pursuant to Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, no State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be at risk of being subjected to torture. For the purpose of determining whether such grounds exist, the competent authorities must take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

The provisions of Article 3 of the Convention against Torture imply that it is necessary not only to verify the existence in the State concerned of gross and mass violations of human rights, but also the existence in that State of the likelihood that the individual concerned would personally be at risk of torture if returned to his or her country. That risk must be real, immediate and foreseeable.

According to the legal position of the UN Committee against Torture as outlined in a number of its decisions (...), the existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country does not of itself constitute sufficient grounds for determining whether the person in question would be at risk of being subjected to torture upon return to that country. Additional grounds must be adduced showing that the individual concerned would be personally at risk ...

The Committee ... noted that it is necessary to establish the existence of substantial grounds for believing that the person would be at risk of torture if returned, and that such risk of torture must be assessed on grounds that go beyond mere theory or suspicion. The risk need not be highly probable, but it must be personal and present. In this regard the Committee has determined, in previous decisions, that the risk of torture must be foreseeable, real and personal.

The evidential material submitted by the Prosecutor General’s Office – on the basis of which the decision to extradite [the applicant] was taken – does not contain any information demonstrating that [the latter] personally would be at risk of torture, inhuman or degrading treatment or punishment in the event of his extradition.

[A long passage on the guarantees provided by the Kyrgyz authorities].

Neither [the applicant] nor his lawyers provided any substantial evidence showing that [the former] was at risk of being subjected to torture, inhuman or degrading treatment or punishment by the Kyrgyz authorities, or that he might be persecuted on grounds [such as] race, religion, national or social origin, or political opinion.

... [The applicant] does not belong to any political or other party, organisation or group that opposes [the present government of Kyrgyzstan].

While living in Kyrgyzstan [the applicant] was not subjected to any torture, inhuman or degrading treatment by the authorities; he arrived in Russia in March 2012, that is to say a year and nine months after the crimes of which he stands accused had been committed in June 2010. [The applicant’s] wife and daughter remain in the Kyrgyz Republic.

No evidence has [therefore] been provided showing that [the applicant] or his relatives were persecuted by [the Kyrgyz] authorities.

[The applicant’s] statement to the effect that he is a “leader of Uzbek diaspora” and belongs to the ethnic Uzbeks – which allegedly gives him reason to believe that he would be subjected to repressive criminal prosecution and unfair conviction – is an assumption unsupported by any evidence. It cannot therefore be considered to constitute sufficient grounds for concluding that he is personally at risk of being subjected to torture and other ill-treatment in the event of his extradition to Kyrgyzstan.

On 16 March 2013 the Artyom Town Court in the Primorye Region ordered the applicant’s detention pending extradition until 23 April 2013.

On 22 April 2013 the same court extended the applicant’s detention until 14 September 2013. On the same day the applicant’s lawyer lodged an appeal against this decision. On 12 July 2013 the Primorye Regional Court upheld the extension order on appeal.

On 13 September 2013 the Leninskiy District Court of Vladivostok extended the applicant’s detention until 13 March 2014. On 19 September 2013 the applicant’s lawyer lodged an appeal against this decision. The appeal was dispatched by post on 20 September 2013. The Leninskiy District Court received the applicant’s appeal on 21 October 2013. On 23 October 2013 a copy of the appeal was forwarded to the applicant and the local prosecutor’s office, and the latter was invited to submit comments by 28 October 2013. On 31 October 2013 the Leninskiy District Court forwarded the case file to the Primorye Regional Court for examination. On 6 November 2013 an appeal hearing was scheduled for 7 November 2013 and the parties were informed accordingly. On 7 November 2013 the Primorye Regional Court upheld the extension order of 13 September 2013 on appeal.

On 7 March 2014 the deputy Prosecutor of the Primorye Region decided to release the applicant in the light of the decision of the Court to apply Rule 39 of the Rules of Court to the present case. The applicant was released on the same day.

On 16 April 2013 the applicant lodged a request for refugee status with Russia’s FMS, alleging persecution on the grounds of ethnic origin.

On 28 June 2013 the FMS for the Primorye Region rejected the applicant’s request, having found that the applicant had left his country of nationality for reasons falling outside the scope of section 1(1)(1) of the Refugee Act.

On 24 September 2013 Russia’s FMS upheld the refusal of 28 June 2013.

The applicant lodged an appeal against the above decision before the Basmanniy District Court of Moscow. In his appeal he referred to reports concerning the widespread ill-treatment of Uzbek detainees in Kyrgyzstan, as confirmed by various UN sources, NGOs’ reports and the judgment of the Court in the case of Makhmudzhan Ergashev.

On 22 January 2014 the Basmanniy District Court of Moscow rejected the applicant’s appeal against the FMS’s decisions. The District Court considered that the applicant had failed to substantiate his fears of persecution in Kyrgyzstan and that his allegations that the criminal charges against him were unlawful fell outside the scope of the refugee status proceedings. The District Court pointed out that his application for refugee status contained no indications that he had been previously accused or convicted of a criminal offence, or that he had been a member of any political, religious or military organisations. It also took into account the fact that the applicant had not applied for refugee status until after his placement in detention.

In his appeal against the judgment of 22 January 2014 the applicant requested a rigorous examination of his arguments regarding the risk of illtreatment. He again referred to various reports by international organisations and reputable NGOs to support his position.

On 20 May 2014 the Moscow City Court upheld that decision on appeal, reiterating the conclusions of the migration authorities and the firstinstance court.

On 25 April 2014 the FMS for the Primorye Region issued a decision granting the applicant temporary asylum in the Russian Federation until 25 April 2015, referring to the existence of circumstances preventing the applicant’s extradition, namely the application of Rule 39 of the Rules of Court in the applicant’s case before the Court and the impossibility of foreseeing the duration of those proceedings.

On 10 April 2015 the FMS for the Primorye Region extended the term of the temporary asylum granted to the applicant until 25 April 2016, with reference to the same grounds.


MILADINOV AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review)

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

The applicants were born in 1966, 1953 and 1961 respectively and live in Struga (the first and third applicants) and Ohrid (the second applicant). The applicants were private entrepreneurs.

On 23 December 2008 an investigating judge of the Skopje Court of First Instance (“the trial court”) opened an investigation against fifteen people (some of the accused were bankruptcy trustees, trial judges, lawyers, notaries and civil servants), including the applicants, on reasonable suspicion of having been involved in crimes with respect to bankruptcy proceedings concerning company I. All the applicants were charged with money laundering. In respect of the first applicant, the investigation also concerned charges of abuse of position, fraud and forgery and as regards the third applicant, charges of fraud. After having heard oral evidence from the accused, the investigating judge, in a single decision, ordered that nine of the accused, including the applicants, be placed in pre-trial detention for thirty days. The detention order was based on all the grounds specified under section 184(1)(1-3) of the Criminal Proceedings Act (hereinafter “the Act”, see paragraph 32 below), namely, a risk of the accused absconding and reoffending and interfering with the investigation. The judge relied on the gravity of the charges, the severity of the potential sentence and the possibility of the accused influencing witnesses, accomplices and other people concerned.

The first and second applicants appealed, arguing that the investigating judge had not given any concrete reasons to justify the detention of each of them. Both applicants pointed out that they had a permanent residence and family in the respondent State. The second applicant further submitted evidence regarding his poor health.

On 25 December 2008 a three-judge panel of the trial court (“the panel”), set up under section 22(6) of the Act (see paragraph 29 below), sitting in private, dismissed the appeal submitted by the first applicant. On 26 December 2008 it replaced the order for pre-trial detention with an order for house arrest in respect of the second applicant.

With three decisions dated 21 January, 19 February and 20 March 2009, the panel ordered, on each occasion, a thirty-day extension of the applicants’ pre-trial detention and house arrest, respectively. All extension orders were taken at hearings held in private (нејавна седница). The first two extension orders were given on a proposal by the investigating judge and were based on all three grounds specified under section 184(1)(1-3) of the Act. In the decision of 20 March 2009, which was given on a proposal by the public prosecutor, “interference with the investigation” was excluded from the list of grounds since an indictment was lodged against the applicants on that date. According to the applicants, the indictment was communicated to them on 6 April 2009.

As regards the risk of absconding, the extension order of 21 January 2009 stated that:

“Having regard to the type, gravity and nature of the criminal offenses with which the accused are charged, the panel considers that there is a real risk of them absconding if they are released. That is sustained with the behaviour of some of the accused, namely [the first applicant] has a previous criminal record and criminal proceedings are pending in respect of [the second applicant]. As regards the personal circumstances of the accused, the panel took into consideration that most of them have a family; that they are parents and have possessions, but it considers that they do not provide for a sufficient guarantee, at this stage of the investigation, that they would not abscond if they are released...”

As to the possibility of their reoffending, in all three orders the panel stated, inter alia:

“... the panel has taken into consideration the nature, character and type of offences and the manner and conditions in which they were committed, which make the possibility of reoffending particularly likely. Particular attention has been paid to the fact that the criminal offences with which the accused are charged (or ‘in respect of which there is a reasonable suspicion’) have been committed through the use of the position and characteristics of the accused as holders of special powers [со искористување на положбата и својствата на обвинетите и како носители на посебни овластувања].”

The extension order of 19 February 2009 relied on the same reasons and used identical wording to justify the risk of the applicants absconding and reoffending. It added a reference to the severity of the potential penalty, as a ground that justified the risk of flight.

As regards the risk that the applicants might flee, the extension order of 20 March 2009 stated:

“... The contents and quality of the material and verbal evidence adduced corroborates the suspicion that the accused have committed the crimes with which they are charged ... Consequently, the panel considers that at this stage of the proceedings, namely, after the indictment was lodged ... there is still a real risk of the accused absconding if they are released. That would considerably affect the proceedings and prevent the case from being decided. Having been acquainted with the indictment and the reasons given therein, and having been faced with the possibility of a prison sentence, the accused, if released, could flee or otherwise go into hiding ...”

As regards the possibility that the applicants might reoffend this order provided an explanation identical to that contained in the previous orders. The panel further added:

“... In particular, [the first and third applicants] are the owners of several companies through which the offences with which they are charged were committed. The other accused are employed by or otherwise connected with those companies ...”

After 16 April 2009 the panel extended the applicants’ pre-trial detention and house arrest, respectively on its own motion. Between 16 April and 16 September 2009 the panel, sitting in private (нејавна седница), issued six orders each providing for a thirty-day extension of the applicant’s detention due to the risk that they might flee and the possibility that they might reoffend. The risk was justified, in all extension orders with an explanation identical to that described above (see paragraphs 13 and 14 above). Besides the above reasons, in all six extension orders given during this time, the panel stated:

“... Given the fact that the detention in prison custody and house arrest are the most efficient measures that secure the attendance of the accused at the trial ... which had a positive bearing on their right to a hearing within a reasonable time .... the panel considers that the extension and maintaining of the detention .... is justified ...”

In addition to the above reasoning, the extension orders of 18 June, 17 July, 17 August and 16 September 2009 (each proving for a thirty-day extension of the applicants’ detention) contained a reference to the third applicant’s previous criminal record.

On 28 May 2009 Mr D. Godžo visited the first applicant in Skopje prison. On that occasion, the first applicant signed a letter of attorney for Mr Godžo to represent him in the proceedings before the Strasbourg Court. The prison administration retained that document because Mr Godžo had not informed them in advance that such a document would be signed. The first applicant requested that the prison governor, the trial court and the Ombudsman take measures to remedy the situation. After eighteen days the retained document was returned to Mr Godžo.

On 18 September 2009 the panel set aside the order for house arrest in respect of the second applicant and ordered that his passport be seized. In the absence of an appeal, the order became final.

Between 15 October 2009 and 14 January 2010 the panel issued four orders each providing for a thirty-day extension of the detention of the first and third applicants for the same reasons and with an identical wording to that described above (see paragraphs 13-16). All orders were taken at hearings held in private.

As evident from the available material in the case file, the applicants appealed against the extension orders, arguing, inter alia, that the panel had not given sufficient reasons to substantiate the risk of them absconding and reoffending, given their family situation and the state of health of the second applicant (who suffered from a chronic illness and needed regular medical care). The first applicant further argued that his previous conviction concerned a traffic offence, which could not be relied on by the courts to justify the risk of his reoffending. The applicants also complained that the wording used in the decisions in question violated their right to the presumption of innocence as guaranteed by the Act and the Convention. The first and third applicants further requested, under section 388(1) of the consolidated version of the Act (the text of which is identical to section 362(1) of the Act, see paragraph 31 below), to be informed of the date of the session (седница) of the Court of Appeal. Lastly, the applicants sought release and replacement of the detention order with a more lenient measure specified under the domestic law.

The Skopje Court of Appeal, sitting in private, dismissed the appeals, finding that the panel had given sufficient reasons for the applicants’ continued detention. In the decisions (dated 5 May, 8 June, 6 July, 30 July,10 September, 5 October and 2 November 2009), the Court of Appeal referred to written submissions in which the public prosecutor requested, under section 361(1) of the Act (see paragraph 36 below) that the court dismisses the applicants’ appeals. In its decisions of 5 October and 2 November 2009 it also dismissed the requests of the first and third applicants that it decide in a public session (седница), finding that section 388(1) of the Act was inapplicable in their case.

As regards the risk of the applicants absconding, in the decisions dated 5 May, 8 June, 30 July and 10 September 2009, the Skopje Court of Appeal stated, inter alia:

“... The court considers that, as evident from the case-file, the circumstances of the concrete criminal act, taken in connection with the nature, type, gravity and the manner in which the criminal offences were committed ... faced with the possibility to be sentenced to imprisonment and the severity of (this penalty) suggest that there is a risk of the accused of absconding in order to avoid eventual criminal responsibility for the criminal offences in question ...

In this connection the court neither accepts nor does it consider that the allegations of the accused that they have family; that they are parents with a permanent residence [in the respondent State] are of any relevance ... ”

Regarding the possibility that the applicants might reoffend, the court stated that:

“... [the court took into consideration] all the circumstances of the concrete criminal act, in particular, the nature and type of the criminal offences, the manner in which they were committed, especially the fact that the (first and third applicants) are the owners of several companies through which the crimes were committed and (the second applicant) was linked with those companies by way of having been engaged in work-related activities ... The above is further supported by the fact that there are criminal proceedings pending in respect of (the second applicant) and that (the first applicant) has already been convicted. All [the above] increases the risk of the accused reoffending if they are released at this stage of the proceedings ... having regard, in particular, to the fact that the criminal offences, as stated, were committed through the use of the position and powers of the accused ...”

Identical wording, limited to the first and third applicants, was used in decisions of 5 October, 2 and 25 November and 29 December 2009 in which the Skopje Court of Appeal dismissed the appeals brought by these applicants. In all decisions the Court of Appeal also referred to the detention “as the most efficient measure to secure the attendance of the accused at the trial”.

In all the above decisions the Skopje Court of Appeal further stated:

“The court examined the complaints ... denying the existence of offenses and criminal responsibility of the accused, but it considers that they are irrelevant in the appeal proceedings in question, given that the only issue to be decided at this moment is whether there are reasons for detention ... In this connection (these) complaints will be examined at the trial ... where the court will adjudicate on the merits (of the case).”

On 29 January 2010 the trial court found the applicants guilty and sentenced the first and third applicants to six and a half years’ imprisonment and the second applicant to a prison term of two years. The court further decided that the first and third applicants would remain in custody until the judgment became final.

On 24 September 2010 the Skopje Court of Appeal allowed the appeals submitted by the applicants’ and the public prosecutor and quashed, in a public session, the trial court’s judgment. It also ordered the first and third applicants’ release of its own motion, finding that there were no grounds to justify their detention.

No further information was provided as regards the criminal proceedings against the applicants.


No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life)

András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1975 and lives in Tryszczyn.

On 2 December 2002 the applicant’s son J. was born. At that time the applicant lived with the boy’s mother, M.K., in a flat belonging to her parents. In 2003 the applicant moved out after a disagreement with M.K.’s father.

In 2005 the applicant filed a court complaint that M.K. was hindering his contact with his son.

On 2 December 2005 the parties reached a friendly settlement before the District Court detailing when the applicant was able to visit the child. It was agreed that the applicant could see J. on two Saturdays and two Sundays each month from 10 a.m. to 6 p.m., as long as the meetings had been arranged with M.K. the preceding week. The applicant could also take J. on holiday for two weeks during the summer. It was arranged that he would pick the child up from M.K.’s place of residence and take him back.

In 2006 the applicant’s meetings with his son were on some occasions made impossible by the mother, but most of them took place. A few of the visits were cancelled because the child was ill.

On 7 June 2006 M.K. applied to change the applicant’s access rights. M.K. wanted to reduce the amount of time the applicant could spend with J. She also indicated her intention to move to Germany with her son for financial reasons.

On 6 September 2006 the applicant applied to increase his access rights. He stated that M.K. had been interfering with his contact visits. The applicant asked the court to order that he be able to see his son twice a month from 10 a.m. on Friday to 7 p.m. on Sunday; one day at Christmas or Easter from 10 a.m. to 10 a.m. the next day; and three weeks in the summer holidays and one week in the winter holidays.

At a hearing on 17 January 2007 M.K. withdrew her application and the Bydgoszcz District Court discontinued the proceedings. The applicant appealed, complaining that his application had still to be examined.

On 29 March 2007 the Bydgoszcz Regional Court quashed the Bydgoszcz District Court’s decision. The court considered that it had been a mistake to assume that the applicant had consented to the discontinuation of his application just because M.K. had chosen to withdraw hers. It was also established that the applicant’s access rights were not being respected at the time because M.K. had moved to Germany with the child.

On 16 January 2007 M.K. moved to Germany with the child without the applicant’s consent. The parties disagreed on whether or not M.K. had informed the applicant of their address in Germany (the applicant submitted that she had not).

The applicant initiated proceedings under the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (“the Hague Convention”). On 23 November 2007 the Celle District Court in Germany ordered that the child be returned to Poland to the father or a guardian because under the Hague Convention the mother had abducted the child. The court also noted that the applicant and M.K. had joint custody of J. under Polish law.

On 20 December 2007 the High Court in Celle dismissed an appeal by M.K. and ordered the return of the child to Poland. However, the court agreed that the child need not be handed over to the applicant. It stated that it would be enough to move back to Poland by the required date to comply with the court’s order.

On 14 January 2008 the German Central Agency communicated the above decisions to the Polish Ministry of Justice. The applicant was informed on 15 January 2008. The mother and the child returned to Poland on 6 January 2008.

In January 2007 the applicant lodged an application for sole custody of J. and to establish J.’s place of residence with him.

On 23 July 2007 M.K. lodged an application to grant her sole custody of the child and to establish J.’s place of residence with her.

The proceedings were stayed between September 2007 and January 2008 owing to proceedings pending under the Hague Convention.

On 1 April 2008 the Bydgoszcz District Court approved a settlement between the parties regarding the applicant’s access rights. It was agreed that the applicant would be informed whenever J.’s place of residence changed. It was also agreed that he would be able to see J. every other Saturday and Sunday of the month from 9.30 a.m. to 6.30 p.m.; the second day of Christmas and Easter holidays at the same times; every 1 June from 4 p.m. to 7 p.m.; and for two weeks in the summer holidays from 1 to 15 July. The applicant was also under an obligation to allow M.K. to contact J. when the child was under his care and agreed that he would not see the child on 19 and 20 July 2008 as well as on 18 and 19 July 2009.

According to the applicant’s own statements before the domestic authorities contact took place according to the agreement.

The agreement was further modified by the parties on 29 September 2009 by extending the amount of time the applicant could spend with his child. It was agreed that the applicant would spend two weekends per month from Friday to Sunday with his son, as well as three weeks in the summer holidays and one week in the winter holidays. The applicant was also to have telephone contact with the child.

During the proceedings, on 11 March 2010, the Bydgoszcz District Court ordered the parties to have counselling. The applicant and M.K. began to go to counselling but M.K. pulled out. The court also ordered mediation to resolve their issues. The court ordered the preparation of several expert opinions. In particular the Regional Family Consultation Centre (Rodzinny Ośrodek DiagnostycznoKonsultacyjny -“the RODK”) submitted at least two reports by experts between 2008 and the beginning of 2010. The applicant contested the conclusions of the opinions.

On 19 March 2011 the Bydgoszcz District Court dismissed the applicant’s application to order that J.’s place of residence be with him, leaving the child in M.K.’s care. The court also dismissed M.K.’s application to decrease the applicant’s visiting hours. The applicant and M.K. retained joint custody of J. The court established that in the period up to 2008 the bond between the applicant and the child had weakened considerably owing to a lack of contact between them. However, their relations had significantly improved because after the settlement of 1 April 2008 contact between the applicant and his son had taken place without disturbance. Afterwards, at the applicant’s request, the contact arrangements had been modified on 29 September 2009. The court noted that the parties had had strong disagreements, had stopped talking to each other and should both be held responsible for the situation. According to the experts, the parents were not able to decide together on important aspects of the boy’s life. Nevertheless, the court found that both parents loved their child very much and wanted the best for him. The court found no reasons to limit either parent’s parental rights.

The parties appealed.

On 3 November 2011 the Bydgoszcz Regional Court partly granted the appeal lodged by M.K. and dismissed the applicant’s appeal. It found it necessary to limit the applicant’s parental rights only to the most important decisions on J.’s health, education, and upbringing. The court considered that the conflict between the parents meant it would not be possible for them to continue to carry out their parental responsibilities jointly.

In the meantime, on 11 August 2010, the Bydgoszcz District Court increased the amount of child support payable by the applicant to M.K. from 400 Polish zlotys (PLN) to PLN 500 per month.

On 19 May 2012 the applicant asked the court to further modify the contact arrangements. He submitted that his relationship with his son had got considerably worse since February 2012 and blamed the mother’s behaviour. The applicant asked for visits to take place in the presence of a guardian. The applicant also sought enforcement of the contact arrangements ordered in the agreement of 29 September 2009 (see paragraph 46 below).

On 20 December 2012 the court commissioned another report by experts from the RODK. The experts met the applicant, M.K. and J.

On 15 February 2013 M.K. applied to annul the settlement of 29 September 2009. She stated that J. refused to see his father and, while waiting for the experts’ report, it would be in his best interests to no longer see his father.

On 19 February 2013 the Bydgoszcz District Court applied an interim measure to limit the applicant’s access rights and ordering that both the applicant and M.K. have counselling. The applicant was allowed to see his son at McDonald’s or another public place for short visits in the presence of his mother or maternal grandparents. The applicant appealed.

On 8 April 2013 J. was questioned in the presence of a psychologist. The boy, eleven years old at the time, stated that he no longer wished to see his father. He stated that the applicant had paid no attention to him during visits and that he had been allowed to play computer games all day.

On 28 May 2013 the Bydgoszcz Regional Court quashed the interim order of 19 February 2013. The court ordered the parties to attend counselling and to submit attendance certificates to the court every two months. The court further emphasised the need to modify the way the father and the child communicated without suspending contact between them, which would lead to breaking the bond between them.

On 13 June 2013 M.K. applied to change the access rights of the applicant agreed in the settlement of 29 September 2009. M.K. asked the court to order that contact should take place every other weekend and be in her or her parents’ presence because J. had not seen the applicant for a long time and would feel unsafe with him. She also requested an interim measure from the court.

On 7 June 2013 the Bydgoszcz District Court gave an interim measure. It stated that the applicant would have the right to see J. every other weekend for two hours on Saturday and two hours on Sunday in a public place and in the presence of M.K. or her parents. Upon appeal by the applicant the decision was amended by the Bydgoszcz Regional Court on 9 September 2013 by extending the length of the meeting to three hours. The visits were to take place in a neutral place, in the presence of M.K. or her parents, and with a guardian for the first three months.

The applicant met his son in November 2013 in a McDonald’s restaurant. The boy was accompanied by his mother and was aggressive and hostile to the applicant.

On 3 March 2014 the RODK issued its report, recommending that the applicant and M.K. have counselling in order to learn to cooperate when making decisions about their son. The RODK also proposed that J. should consult a psychologist. It further observed that relations between the applicant and his son were strained because J. had a negative attitude towards the applicant and no longer liked to have contact with him. That attitude was the result of a negative image of the applicant that had been created under the influence of the mother.

At a hearing on 24 June 2014 the applicant declared that he was no longer attending the meetings because of his son’s disruptive and aggressive behaviour. The last meeting took place in November 2013.

On 8 September 2014 the RODK issued another report which stated that the boy had been loyal to his mother and had turned away from the applicant.

On 18 February 2015, after ineffective mediation, the court modified the contact arrangements by ordering longer meetings with the applicant. The court again ordered the parties to have counselling so they could learn how to reach agreement with each other. The court also noted that the applicant had the possibility to apply for imposing a fine on M.K. for noncompliance with court orders. On 15 May 2015 the applicant appealed.

The proceedings are still pending.

On 31 January 2007 the applicant complained that the arrangements for meeting his child, as established by the agreement of 2 December 2005, were not being enforced. After the child was removed to Germany the applicant initiated proceedings under the Hague Convention (see paragraphs 14-17 above).

On 1 April 2008 the court ordered M.K. to pay a fine if a contact meeting scheduled for 5 April 2008 did not take place. That and subsequent visits took place in accordance with the settlement of 1 April 2008.

On 27 April 2012 the applicant brought a claim to enforce his access rights under Article 598(16) § 1 and § 2 of the Polish Code of Civil Procedure (Kodeks Postępowania Cywilnego – “the CCP”). He submitted that his relations with his son had worsened substantially since February 2012 for which he blamed the mother’s behaviour. It appears that he withdrew the claim at an unspecified later date.

On 16 May 2012 the applicant requested the assistance of a court guardian during his meetings with the child (see paragraph 29 above). On the same day the applicant brought a claim to enforce the arrangements for meeting his child, as determined by the settlement of 29 September 2009, by imposing a fine on the child’s mother. The applicant submitted that M.K. had been making it impossible for him to call his son although that had been provided for by the settlement. Moreover, after November 2011, when his parental rights had been limited, M.K. had cancelled all his subsequent meetings with his son. Since March 2012 M.K. had started claiming that their child refused to meet him.

By a decision issued on 19 February 2013 the Bydgoszcz District Court ordered that M.K. pay the applicant a penalty each time he was denied his rights to have access to J. as set down by the settlement of 29 September 2009. She was ordered to pay PLN 200 each time she interfered with the applicant’s right to see J. and PLN 50 every time she did not allow them to converse by telephone on Wednesdays as scheduled. The court noted that there was no dispute about the fact that M.K. had prevented the applicant from seeing his son for about one year. M.K. lodged an appeal against the decision but it was dismissed on 26 June 2013 by the Bydgoszcz Regional Court. It appears that the applicant never applied to enforce that decision or to impose penalty payments on M.K.


Remainder inadmissible;Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3-c - Defence through legal assistance) (Article 6 - Right to a fair trial;Article 6-3-c - Free legal assistance);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in 1953.

By judgment of 16 January 2006 the Athens Criminal Court of Appeal, composed of three judges and adjudicating as a court of first instance, convicted the applicant of fraud and forgery to the detriment of a bank and sentenced him to eight years’ imprisonment. The applicant, who was being detained in Korydallos Prison at the time, appeared in person, assisted by a lawyer of his own choosing, N.G.

At the hearing held on 11 February 2009 before the Criminal Court of Appeal, composed of five judges, the applicant, who had meanwhile been transferred to Grevena Prison, appeared in person, assisted by two lawyers of his choosing, N.T. and E.P. The hearing was adjourned and scheduled to resume the next day. On 12 May 2009 the proceedings were once again adjourned, owing to a lawyers’ strike, until 20 May 2009. Before the end of the 12 May 2009 hearing the court informed the applicant that he would not be summoned to appear at the hearing on 20 May 2009.

Before the hearing on 20 May 2009 the applicant informed the court in writing that he would not be present but would be represented by his lawyers. However, neither of the lawyers whom the applicant had appointed on 11 February 2009 attended the hearing in question. The court then concluded that at the 12 February 2009 hearing the applicant had voiced a wish for a ruling on his appeal; it appointed G.M. official counsel for the applicant and adjourned the 27 May 2009 hearing so that the latter could familiarise himself with the case file. At the hearing G.M. submitted to the court that the offences with which the applicant had been charged were petty rather than serious offences, which plea had also been raised and dismissed at first instance. He also invited the court to take account of mitigating circumstances in respect of the applicant.

On 27 May 2009 the Criminal Court of Appeal reduced the applicant’s sentence to seven years’ imprisonment for the same offences. It dismissed the allegations that the offences came under tort law and ruled that they should be classified as criminal offences because the conditions set out in Act No. 1608/1950 on “increasing sentences imposed on persons found guilty of embezzling public funds” were fulfilled in the instant case. However, it acknowledged the existence of mitigating circumstances.

On 1 June 2009 the applicant lodged an appeal on points of law complaining of the erroneous application of the relevant legislation, in particular Act no. 1608/50. Relying on the case-law of the Court of Cassation, he submitted that the offences with which he had been charged fell under tort law and not under criminal law, and had become statute-barred by the date on which he had stood trial. He also complained of a violation of Articles 6 and 7 of the Convention. The applicant had prepared his appeal on points of law himself (albeit, evidently, with the assistance of a lawyer), lodging it with the Court of Cassation through the intermediary of the Grevena Prison authorities. On 5 November 2009, in Grevena prison, the applicant received a summons to appear at the 5 February 2010 hearing before the Court of Cassation.

On 30 December 2009 the applicant asked the President of the Court of Cassation to appoint an official lawyer to represent him before that court.

On 2 January 2010 the President of the Court of Cassation, noting the applicant’s situation of financial hardship, appointed F.K. to represent him at the 5 February 2010 hearing and/or at any other hearing held in the context of his case.

By judgment of 25 February 2010 (finalised on 29 March 2010 and authenticated on 28 April 2010, as of which date copies of the judgment could be issued on request), the Court of Cassation dismissed the appeal on points of law as having been abandoned, on the grounds that the applicant, who had, according to the court, been summoned to appear at the hearing pursuant to standard procedure and within the requisite time-limit, had failed to appear.

The applicant submitted that he had contacted F.K. from prison after appointment of the latter, who had assured him that he would attend the hearing. However, F.K. had informed him of the reasons for his absence neither before nor after the hearing. The applicant explained that it was only later, during a telephone conversation (without providing details regarding the date, method or reasons for that conversation), that the lawyer had informed him that he had telephoned the registry of the Court of Cassation to request the adjournment of the hearing.

On page 4 of his application to the Court the applicant stated that he had taken cognisance of the judgment of the Court of Cassation on 18 October 2010, as clearly mentioned at the bottom of page 3 of the judgment.


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant in the first case, Mr Rolands Kočegarovs, is a Latvian national who was born in 1977 and is currently serving a prison sentence in Daugavpils. He was represented before the Court by Mr A. Zvejsalnieks, a lawyer practising in Riga.

The applicant in the second case, Mr Aldis Bernots, is a Latvian national who was born in 1965 and is currently residing in Riga. He was represented before the Court by Mr A. Stumbergs, a lawyer practising in Riga.

The applicant in the third case, Mr Raivo Jurševskis, is a Latvian national who was born in 1971 and is currently in detention in Riga. He was represented before the Court by Ms D. Rone, a lawyer practising in Riga.

The Latvian Government (“the Government”) in the first case were represented by their Agent at the time, Ms I. Reine, and subsequently by Ms K. Līce, who represented the Government also in the second and third cases.

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

Between 12 July 2002 and 28 November 2005 the applicant served his prison sentence in Grīva Prison (Grīvas cietums). During that time he was temporarily placed in Daugavpils Prison (Daugavpils cietums), between 20 and 26 June 2003.

On 25 May 2004, the applicant was diagnosed with infiltrative tuberculosis of the left lung, for which he received treatment.

On 4 December 2007 the applicant lodged a compensation claim against the Grīva Prison with the Administrative District Court (Administratīvā rajona tiesa) in relation to his having contracted tuberculosis between July 2002 and June 2004. He also requested exemption from the court fee owing to his financial situation.

On 27 December 2007 the Administrative District Court refused to consider the applicant’s claim because he had failed to observe the extrajudicial procedure. Having complied with that requirement, the applicant re-lodged his compensation claim with the District Court.

On 7 April 2008 he submitted a request to the District Court to decide on the issue of the court fee on the grounds that he was unable to pay it. On 30 May 2008 the District Court lifted the court fee.

On 15 June 2009 the District Court examined the merits of the applicant’s claim. It assessed the applicant’s allegation, including whether he had been imprisoned with persons suffering from tuberculosis. The District Court could not, however, establish that the applicant had contracted tuberculosis because of any action by the prison administration. It dismissed the applicant’s claim.

The applicant appealed against the aforementioned decision. On 9 July 2009 the District Court refused to proceed with his appeal. It found that the applicant had not submitted a document on the payment of court fee for lodging an appeal, which totalled 10 Latvian lati (LVL). Nor had he applied for exemption from it.

It gave the applicant a deadline of 10 August 2009 to submit a document on the payment of the court fee or a request for full or partial exemption from it.

On 3 November 2009 the Administrative Regional Court (Administratīvā apgabaltiesa), on an appeal from the applicant upheld the aforementioned ruling. It set a new deadline of 21 December 2009 for the submission of a document on the payment of the court fee. No further appeal was available.

The applicant did not pay the court fee. On 30 December 2009 the Administrative District Court decided that his appeal should be considered as not having been lodged and be returned to him. An appeal lay against that decision. The applicant did not appeal.

On 19 August 2009 the applicant submitted a complaint to the Health Inspectorate (Veselības Inspekcija). He requested information on when and where he had contracted tuberculosis. He considered that he had not received adequate healthcare while in detention.

The Health Inspectorate instigated an inquiry. On 26 November 2009 it issued a decision finding no shortcomings in the healthcare provided to the applicant while he was in detention. It refused to commence administrative violation proceedings. That decision was subject to appeal. The applicant apparently did not appeal.

On 10 May 2008 the applicant was arrested on suspicion of having committed a robbery.

On 12 May 2008 he was questioned by police officers. The same day he was brought before the Investigating Judge of the Jūrmala City Court (Jūrmalas pilsētas tiesa), B.H., who authorised his detention on remand.

The applicant was held in a short-term detention facility in Jūrmala from 10 to 16 May 2008. According to the applicant, the conditions there were appalling.

On 19 December 2009 the applicant complained to the Office of the Prosecutor General (Latvijas Republikas Prokuratūras Ģenerālprokuratūra) regarding a police officer, D.J., in relation to the applicant’s detention in May 2008. In particular, D.J. had allegedly failed to inform the applicant’s relatives of his arrest and had refused to accept the applicant’s written requests concerning his conditions of detention and his medical needs. The applicant claimed that D.J. had been aware of those issues but had not followed them up.

This complaint was transmitted to the Internal Security Office of the State Police (Valsts policijas Iekšējās drošības birojs) for examination. On 15 January 2010 the Office received another similar complaint from the applicant.

The Internal Security Office of the State Police conducted an inquiry. On 15 February 2010 it refused to open criminal proceedings against D.J., which refusal was subject to appeal.

On 15 March 2010 the Office of the Prosecutor General, upon the applicant’s appeal, upheld the aforementioned decision. No further appeal was available.

On 30 March 2012 the applicant lodged a compensation claim with the State Police in relation to the alleged inadequate conditions of his detention between 10 and 16 May 2008.

On 19 April 2012 the State Police considered the applicant’s claim belated and refused to renew the procedural time-limit for its submission. An appeal against that decision lay with the Ministry of the Interior (Iekšlietu ministrija).

On 17 May 2012 the applicant wrote to the Ministry that he accepted the State Police’s refusal to renew the procedural time-limit.

On 14 April 2009, between 5 and 6 p.m., the applicant was arrested on suspicion of aggravated murder and taken to the Riga Regional Police Department (Rīgas reģiona pārvaldes Rīgas pilsētas Latgales iecirknis).

According to the applicant, he was questioned for several hours at the Riga Regional Police Department by three police officers, while seated handcuffed on the chair. They accused him of being involved in the murder. They were aggressive and insulting. The Police Officer, V.J., holding a gun silencer in his hands, suggested taking the applicant to the woods and shooting him. He invited the applicant to write a confession to the murder. Another police officer was holding a stick-type object.

At 8 p.m. the report was drawn up on the applicant’s arrest. The applicant said that he had signed the report without having read it. The Government pointed out that according to the report the applicant had been under influence of alcohol.

Between 9.20 and 9.30 p.m. the applicant was searched.

He was subsequently placed in a holding cell in the Riga Regional Police Department, in order, according to the Government, to sober up.

The applicant submitted that the only furniture in the holding cell was a bench. He had no access to a toilet or water or food. He spent the night sitting on the bench.

The following morning, on 15 April 2009, V.J. interrogated the applicant, during which time he wrote a confession.

According to the applicant, V.J. had locked the office door. The same police officers were present as on the previous day. V.J. told the applicant to confess if he wanted to avoid trouble. The applicant refused, but eventually he wrote a confession under dictation from V.J.

Between 3 and 3.35 p.m. the Police Inspector, B.B., questioned the applicant. The record showed that the applicant had agreed to testify without a lawyer. He described the events of the day of the incident, including his attack on the victim.

At 6.15 p.m. on the same day, the applicant was transferred to a short-term detention facility in Riga (Rīgas īslaicīgās aizturēšanas vieta), located in another building.

On 16 April 2009, between 10 and 10.20 a.m., the applicant testified as a suspect. The minutes showed that the applicant’s lawyer, V.S., was present. The applicant maintained his earlier testimonies given on 15 April 2009. He gave certain other details regarding the attack on the victim, including the fact that he had committed it in anger.

On 16 April 2009 the applicant was brought for a detention hearing before the Judge of the Riga City Latgale District Court (Rīgas pilsētas Latgales priekšpilsētas tiesa), I.K. The applicant was represented by his lawyer, V.S. The Judge, I.K., remanded the applicant in pre-trial detention. According to her ruling, the applicant, during the hearing, explained that he had committed the crime and expressed his remorse.

On 23 April 2009, a visit was conducted to the crime scene from 1 to 2.20 p.m. The applicant and his lawyer, V.S., participated. The record showed that the applicant had pointed to the place where he had committed the crime and had given its other details.

On 19 May 2009 the applicant underwent a psychiatric examination. According to the report, during that examination the applicant’s description of the incriminated conduct had tallied with his earlier testimonies.

On 16 June 2009 the applicant was brought for a detention hearing before the Judge, I.K. According to I.K.’s ruling, during the hearing the applicant and his lawyer, A.K., stated that the applicant had confessed to the crime and expressed his remorse. It was decided that the applicant should remain in pre-trial detention.

On 3 August 2009 the Prosecutor, I.F., questioned the applicant in his capacity as an accused. His lawyer, V.S., was present. The applicant denied his involvement in the alleged crime. He stated as follows:

“... [the applicant] confessed to the crime owing to moral pressure by the Police Officer, [V.J.], who informed [the applicant] that [he] had already previously committed a murder, and therefore [he] would be convicted anyway, although an admission of guilt was a mitigating circumstance. Therefore, [the applicant] was compelled to confess...”

The applicant lodged with the Riga City Latgale District Court a motion to review his pre-trial detention. On 18 August 2009 he was brought for a hearing before the District Court Judge, S.V.

During that hearing the applicant informed S.V. of the pressure exerted on him by the police officers. S.V.’s ruling reflected the applicant’s statement in that regard as follows:

“... [the applicant] had admitted his guilt because of psychological pressure exerted by the police officials.”

In relation to the two earlier hearings of 16 April and 16 June 2009 before the Judge, I.K. the applicant submitted to the Court that on both occasions the escorting officers and the investigating officer, B.B., who were present at the hearings, had been V.J.’s colleagues. The applicant had therefore been afraid to mention his ill-treatment.

The applicant was brought before the Riga Regional Court (Rīgas apgabaltiesa) for the main trial on the charge of aggravated murder.

In the course of the trial the applicant maintained that he was innocent and that he had written the confession under psychological pressure, as follows:

“During the conversation with [V.J.] on 14 April 2009 [the applicant] was psychologically influenced. [He] was told that [he] had to accept responsibility for the crime and there was no point in denying anything. [V.J.] ... indicated that [the applicant] had been previously convicted of a similar crime, and so [he] had better plead ... guilty ... as [he] would not get away with it in any case. In fact ... the admission of guilt would constitute a mitigating circumstance and ... [V.J.] would himself testify that [the applicant] had cooperated with the investigation... Likewise ... it was ironically said that [the applicant] was not a useful man, that [he] lived off a woman and was not capable of providing [for himself] financially. Also, the subsequent conditions of detention ... amounted to ridicule and psychological pressure. [The applicant] was not given food, or allowed to use a toilet or provided with a bed, since [he] spent the whole night sitting on a bench.”

At the hearing of 19 October 2009 the Regional Court granted the applicant’s request that V.J. be summoned to testify. V.J. was examined at the subsequent hearing on 16 November 2009.

On 16 November 2009 the trial was concluded. The applicant was found guilty of aggravated murder. The judgment, among other pieces of evidence, referred to the applicant’s impugned confession. The applicant’s allegation of having been pressured to write the confession was dismissed.

On 23 August 2011 the Supreme Court Appeal Panel, presided over by the Judge, P.O., examined the applicant’s appeal against the first-instance judgment.

The applicant maintained that his confession should not have been used in the trial.

The Appeal Panel acknowledged that between 8 p.m. on 14 April 2009 and 6.15 p.m. on 15 April 2009, the applicant had not been provided with conditions complying with section 7 of the Law on Arrested Persons Holding Procedures (Aizturēto personu turēšanas kārtības likums). However, it could not establish that the applicant had written the impugned confession as a result of the circumstances adduced. The Appeal Panel upheld the first instance judgment on the applicant’s guilt.

The applicant appealed against the aforementioned judgment to the Criminal Cases Division of the Senate of the Supreme Court (Augstākās tiesas Senāta Krimināllietu departaments).

Referring to his confession of 14 April 2009 and certain subsequent statements, the applicant submitted that his admission of guilt should have mitigated his sentence. Also, he had not intended to kill but only to injure the victim. The applicant had acted in a state of severe mental distress caused by the victim.

On 15 November 2011 the Senate of the Supreme Court dismissed the applicant’s appeal on points of law.

On 8 February 2010 the applicant submitted a complaint to the Office of the Prosecutor General that he had spent the night between 14 and 15 April 2009 in the Riga Regional Police Department sitting on a bench, and that owing to the layout of these premises, he had been denied access to a toilet. He had not been provided with food or access to drinking water. The next day, moreover, the applicant had been questioned by three police officers who had “threatened and blackmailed him in an attempt to extract a confession”. As a result, the applicant had written a text dictated by one of the police officers.

The applicant’s complaint concerning conditions in the Riga Regional Police Department was transmitted for examination to its Internal Investigation Office (Rīgas reģiona pārvaldes Iekšējās izmeklēšanas birojs). In the part concerning testimonies given in the Riga Regional Police Department, however, the complaint was transmitted to the Riga Regional Court for consideration during the criminal trial.

On 19 March 2010 the Internal Investigation Office of the Riga Regional Police Department replied that the applicant had signed the record of his arrest on 14 April 2009 without indicating any grievances. Further, his allegation regarding conditions of detention contradicted material in the case file.

In the applicant’s submission to the Court, the Office’s inquiry had been exclusively formal.

On 7 April 2010 the applicant lodged a complaint with the Ombudsperson (Tiesībsargs). His complaint was very similar to that lodged with the Office of the Prosecutor General (see paragraph 57 above).

On 16 July 2010, having conducted an assessment, the Ombudsperson concluded that the inquiry conducted by the Internal Investigation Office of the Riga Regional Police Department had not been effective, in breach of Article 13 of the Convention. The Ombudsperson advised that if the applicant had suffered damage because of the inquiry, he was entitled to apply for compensation from the Head of the State Police.

On 19 September 2010, referring to the aforementioned findings of the Ombudsperson, the applicant applied for damages from the Head of the Riga Regional Police Department.

On 22 October 2010 the Head of the Riga Regional Police Department replied that the earlier investigation had shown that the applicant had not been denied access to a toilet or drinking water. The applicant had not specified the damage which he had suffered as a result of the investigation by the Internal Investigation Office of the Riga Regional Police Department. The applicant’s claim was dismissed.

On 31 January 2011 the applicant lodged a request with the Office of the Prosecutor General. He requested the commencement of criminal proceedings against the officers of the Riga Regional Police Department who had arrested and questioned him and had “exerted psychological pressure on and threatened the applicant in order to make him testify”.

On 7 February 2011 the Prosecutor, A.M., refused to commence criminal proceedings into the applicant’s complaint on the ground that there was no suggestion that a crime had been committed. He noted that the applicant had claimed, in a general manner, that certain police officers had exerted psychological pressure on him.

That refusal was open to appeal before the Prosecutor General. The applicant did not appeal.

The applicant’s complaint was also sent to the Presiding Judge of the Supreme Court Appeal Panel, P.O., who was also involved at the time in the criminal case against the applicant (see paragraph 51 above).

The Administrative Procedure Law (Administratīvā procesa likums) came into force on 1 February 2004. It provides, among other things, for the right to challenge administrative acts and actions of public authorities before the administrative courts (see D.F. v. Latvia, no. 11160/07, § 40, 29 October 2013, and Melnītis v. Latvia, no. 30779/05, § 24, 28 February 2012).

Section 124(2) of the Administrative Procedure Law provided at the material time a State fee (valsts nodeva) of LVL 10 for lodging appeals in proceedings before administrative courts. Section 128(3) of the Law reads as follows:

“(3) A court or a judge, in the light of a natural person’s financial situation, may fully or partly exempt the person from the payment of the State fee at the person’s request.”

Under Article 2381(3) of the Code of Administrative Violations (Administratīvo pārkāpumu kodekss), refusal by a State institution to instigate administrative violation proceedings could be appealed to a higher institution within thirty days. Where there was no higher institution, or where the latter was the Cabinet of Ministers, the refusal could be challenged before the Administrative District Court, whose decision was final.

Section 6(3) of the Law on the Prosecutor’s Office (Prokuratūras likums), providing for an appeal against action taken by a prosecutor, was cited in Leja v. Latvia (no. 71072/01, § 34, 14 June 2011).

Section 7 of the Law on Arrested Persons Holding Procedures (Aizturēto personu turēšanas kārtības likums) provides, inter alia, that an arrested person must be provided with food three times a day and with drinking water at any time. It sets out the surface areas of holding cells. It also requires every arrested person to be provided with a bed, mattress and blanket. It further states that a holding cell must be equipped with a toilet, partitioned off from the cell.


Preliminary objection dismissed (Article 34 - Victim);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (Article 35-3-a - Ratione materiae);Violation of Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens-{general} (Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens);Violation of Article 13+P4-4 - Right to an effective remedy (Article 13 - Effective remedy) (Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens-{general};Prohibition of collective expulsion of aliens);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The first applicant was born in 1986 and the second applicant in 1985.

The first applicant left his village in Mali on account of the 2012 armed conflict. He arrived in Morocco in March 2013. He spent approximately nine months in the makeshift camp for migrants on Gurugu Mountain, near the Spanish border crossing into Melilla, a Spanish enclave on the North African coast. He spoke of several raids on the camp by the Moroccan law-enforcement authorities.

The second applicant arrived in Morocco in late 2012. He also stayed in the camp on Gurugu Mountain.

On 13 August 2014 the applicants left the Gurugu Mountain camp and attempted to enter Spain as part of a group of sub-Saharan migrants, via the Melilla border crossing. The crossing comprises three successive fences: two six-metre-high outer fences and a three-metre-high inner fence. A system of infrared CCTV cameras and movement sensors is in place. The applicants and other migrants scaled the first fence in the morning. They claimed that stones had been thrown at them by the Moroccan authorities. The first applicant managed to climb to the top of the third fence, and remained there until the afternoon without medical or legal assistance. The second applicant stated that he had been hit by a stone while climbing the first fence and had fallen, but had subsequently succeeded in climbing over the first two fences. During this time the applicants allegedly witnessed violence against some of the sub-Saharan migrants by the Spanish Guardia Civil and Moroccan law-enforcement officials. At around 3 p.m. and 2 p.m. respectively the first and second applicants climbed down from the third fence, assisted by Spanish law-enforcement officials. As soon as they reached the ground they were apprehended by members of the Guardia Civil, who handcuffed them and sent them back to Morocco. At no point were the applicants’ identities checked. They had no opportunity to explain their personal circumstances or to be assisted by lawyers, interpreters or medical personnel.

The applicants were then transferred to Nador police station, where they requested medical assistance. Their request was refused. They were subsequently taken, together with other individuals who had been returned in similar circumstances, to Fez, some 300 km from Nador, where they were left to fend for themselves. The applicants stated that between 75 and 80 migrants from sub-Saharan Africa had also been returned to Morocco on 13 August 2014.

Journalists and other witnesses were at the scene of the assault on the fences and the expulsions of 13 August 2014. They provided video footage which the applicants submitted to the Court. Some non-governmental organisations subsequently lodged a complaint with the Melilla investigating judge no. 3, seeking the opening of an investigation.

On 9 December and 23 October 2014 respectively, the first and second applicants succeeded in entering Spanish territory by the Melilla border crossing. Two sets of proceedings were commenced concerning them and orders were subsequently issued for their expulsion.

N.D. was returned to Mali on 31 March 2015 under an expulsion order issued on 26 January 2015, after his asylum application of 17 March 2015 had been rejected by the administrative authorities on 26 March 2015. He is currently in the Bankoumana area (Koulikoro region, south-west of Bamako).

An order for N.T.’s expulsion was issued on 7 November 2014 and was upheld on 23 February 2015 after the dismissal of his administrative appeal (de alzada). His current situation is unknown.

Both applicants were represented by lawyers during these proceedings.


CASE OF HUTCHINSON v. THE UNITED KINGDOM

No violation of Article 3 - Prohibition of torture (Article 3 - Degrading punishment;Inhuman punishment) (Substantive aspect)

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

The applicant was born in 1941 and is detained in Her Majesty’s Prison Durham.

In October 1983, the applicant broke into a family home, stabbed to death a man, his wife and their adult son and repeatedly raped their 18 yearold daughter, having first dragged her past her father’s body. He was arrested several weeks later and charged with the offences. At trial he pleaded not guilty, denying the killings and claiming that the sex had been consensual. On 14 September 1984, at Sheffield Crown Court, he was convicted of aggravated burglary, rape and three counts of murder.

The trial judge sentenced the applicant to a term of life imprisonment and recommended a minimum tariff of 18 years to the Secretary of State for the Home Office. When asked to give his opinion again on 12 January 1988, the judge wrote that “for the requirements of retribution and general deterrence this is genuinely a life case”. On 15 January 1988 the Lord Chief Justice recommended that the period should be set at a whole life term stating that “I do not think that this man should ever be released, quite apart from the risk which would be involved”. On 16 December 1994, the Secretary of State informed the applicant that he had decided to impose a whole life term.

Following the entry into force of the Criminal Justice Act 2003, the applicant applied to the High Court for a review of his minimum term of imprisonment. On 16 May 2008, Tugendhat J handed down judgment in the applicant’s case ([2008] EWHC 860 (QB)), finding that there was no reason for deviating from the Secretary of State’s decision. The seriousness of the offences alone was such that the starting point was a whole life order. In addition, there were a number of very serious aggravating factors. Tugendhat J made express reference to an impact statement from the surviving victim, which described “sadistic as well as sexual conduct”. There were no mitigating factors. On 6 October 2008, the Court of Appeal dismissed the applicant’s appeal.