Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant was born in 1926 and lives in Novi Sad. His son, Mr Vojislav Mučibabić, was born in 1951 and died on 23 June 1995. The present case concerns the investigation into the death of the applicant’s son.

On 23 June 1995 a powerful explosion occurred at the facilities of Grmeč, a company with headquarters in Belgrade.

It transpires from the judicial decisions and the case file that the explosion was caused by the covert production of composite solid rocket fuel under the auspices of the State Intelligence Service.

The general information the Court has been able to procure as to the production of rocket fuel and the risk of an explosion at production sites may be summarised as follows.

Composite fuel, also known as composite propellant, is a broad class of solid chemical fuels that are used as propellants in rockets. The rocket-fuel sheets resemble PVC folia but are less stable and require a specialised location with a high level of preventive measures and safety precautions. They are composed of fuel and oxidiser. An example of a fuel is phenol formaldehyde and of an oxidiser, ammonium perchlorate (“AP”). AP is a powerful oxidiser, which explains why it is used mainly in solid propellant rocket boosters, including space shuttles and military missiles.

AP is a white, granular, crystalline solid or powder. Its explosive characteristics depend on particle size and granulometric composition. It is a class 4 oxidiser (it can cause an explosive reaction) when particles measure over 15 micrometres. It is classified as an explosive when particles measure less than 15 micrometres. It has been apparently involved in a number of accidents. AP is stable when properly stored, transported and handled at temperatures below 150 degrees Celsius (oC). The amount put in any pile must be limited and storage sites must be designed with blast walls. The risks of explosion and fire associated with AP arise mainly when there is a large proportion of AP in a premix or when it is exposed to intensive heat or an organic compound. When heated to 300oC, AP degrades organic adhesive, breaking cemented joints. Complete reactions leave no residue.

At a series of meetings, an Intelligence Service executive had apparently agreed to the production of rocket fuel with a private company, JPL Systems (hereinafter “JPL”). The latter’s experts were supposed to provide the formula and certain components, including oxidisers. Certain Grmeč managers had allegedly been requested to make available a mill with two counter-rotating rollers in its facilities for the production of polyvinyl chloride sheets, as well as other substances and its experts.

On 23 June 1995, most of the components were blended together in a batch mixer in another company, transported in aluminium bins to Grmeč in a private car by JPL experts and stored next to the mill. When the mixture was put on the mill and extraction of the sheets of rocket fuel started, an explosion occurred in the presence of more than twenty workers from the two commissioned companies. As a consequence, the applicant’s son and ten other people died, while ten others were seriously injured.

It appears from the Serbian Business Register and the expert reports that neither Grmeč nor JPL was licensed and adequately equipped for the production of rocket fuel at the material time.

At about 9 p.m. on 23 June 1995 the investigating judge on duty, M.A., arrived at Grmeč to inspect the scene of the incident. V.V., the Deputy District Public Prosecutor Office (hereinafter “the prosecutor”), Z.L., a crime inspector, and V.M., a crime-scene technician, were also present.

According to the investigating judge’s two-page report of his inspection of the incident scene (zapisnik o uviđaju), at about 6.30 p.m. on 23 June 1995 a massive explosion occurred during the production of a new product – polyvinyl chloride sheets. The explosion greatly damaged the production room and killed a number of people who had been involved in the production process.

When the investigating judge arrived at the scene, unspecified members of the factory’s security staff and the Belgrade police prevented him and the prosecutor from entering the production room. They were requested to examine the scene two to three steps away from the entrance door for security reasons, given that the damaged roof could have collapsed. The judge noticed that it had been a powerful explosion, and that the production room had been covered in dust and pieces of the roof, which also prevented a good overview of the room.

As the judge could not inspect the incident scene, in order to gather evidence he talked to the director, R.U. He had to wait thirty minutes for the director to be found and to finish his telephone call with the Belgrade mayor, N.Č. The director stated that the explosion had occurred when the factory’s experts with a team of additional experts (part of the statement is illegible) had apparently tested a new product-manufacturing process with which he was not familiar. However, he clarified that the manufacturing process required special security measures and teams, and named all of the factory’s experts involved, including the applicant’s son as a chief engineer. The technical director, S.K., stated that his team of between seventeen and twenty employees had been testing a new product and that experts from other companies and faculties “might have been involved” in the manufacturing process that afternoon. Presuming that ten people had died, he anticipated that the cause of the explosion may have been “an unwanted, unexpected and unknown chemical reaction which had ‘broken out’ during the process”.

The investigating judge instructed (a) the Belgrade police’s expert team and the factory experts to continue looking for those involved who had died or survived; (b) the crime-scene technician to collect and register all traces, objects and details which might help to elucidate the account of the events and to make an appropriate file in that respect; (c) the removal of all the corpses to the Institute for Forensic Medicine for post-mortem examinations to determine the cause of death; and (d) the transfer of all the survivors to the appropriate medical centres. All those activities and the relevant documentation were to form an integral part of the incident report.

In his two-page report on the forensic inspection of the incident scene (izveštaj o kriminalističko-tehničkom pregledu lica mesta), the crime inspector, Z.L., noted that there had been traces of the destruction caused by a massive explosion which had occurred at about 6 p.m. on 23 June 1995 at the Vinfleks factory (production room) where bituminous materials were produced. He reported that nine corpses had been found and gave the names of several injured people who had been transported to hospital (one of them had died there) as well as a short statement by one of the workers who had been nearby. The inspector reported that the police firemen had already started extinguishing the fire, that the crime-scene technicians, M.P. and M.Š, had taken photographs, and that the criminal police (Kriminalistička služba (UZSK)) had taken on the case. The identification of the casualties and the cause of the explosion should have been determined the following day by specialised teams of criminal police. No other documents, photographs, scheme of the scene or results of any chemical or toxicological analysis, if any, have been submitted to the Court with the case file; nor apparently were they made available to the applicant.

On 24 June 1995 an additional forensic report was drawn up after the fingerprinting and photographing of the bodies. The bodies were transferred for post-mortem examination, together with additional body parts which had been found in the meantime, while the clothing was sent to the prosecutor’s office.

The post-mortem examination of victims’ bodies was carried out between 24 and 26 June 1995 by the Institute for Forensic Medicine of the Faculty of Medicine in Belgrade. The autopsy reports stated that the victims’ deaths had been violent and caused by the destruction of or damage to some vital organs and/or third and fourth-degree burns from the explosion, or complications thereafter.

On 24 June 1995 the Belgrade police ex officio set up a commission to examine the cause of the explosion. The commission was comprised of several officers from the Security Institute (Institut bezbednosti MUP-a Srbije), as well as two professors from the Mechanical Engineering Faculty in Belgrade, B.J. and Ð.B., who were also the co-owners of JPL (see paragraph 11 above).

Following site inspections between 23 and 26 June 1995 and computer simulations of the explosions, two experts from the Security Institute, B.G. and P.P., submitted their report to the DDPO on 9 August 1995. As regards the cause and origin of the accident, the experts stated (a) that the explosion appeared to have been initially caused by the heat generated by the mill’s rollers during the production of composite fuel; (b) that static electricity could not have ignited the composite fuel, premix or fuel sheet; (c) that the primary blast of the premix or the composite fuel sheet on the mill’s two counter-rotating rollers had most probably been caused by the presence of a mechanical object in the premix, which had ended up between the rollers; and (d) that the initial blast had led to two secondary explosions of the premix, which was stored in two aluminum bins next to the mill.

On 30 August 1995 the Labour Ministry inspectorate lodged a criminal complaint against the Director of Grmeč, R.U., for breaching health-and-safety regulations (see paragraphs 76-77 below). Previously, on 3 July 1995 the Ministry had informed the prosecutor that on 24 and 26 June 1995 they had been refused access to the factory and to documentation for inspection, and that Grmeč had not informed them to that date about the fatal incident, as required by the relevant law.

It would appear that the prosecutor lodged a request for a formal preliminary judicial investigation against unknown persons from Grmeč in respect of the explosion (zahtev za sprovođenje pojedinih istražnih radnji). On 13 September 1995 the applicant sought to be granted victim status.

On 8 March 1996 the applicant and two other victims’ relatives lodged a criminal complaint against a number of senior executives of Grmeč and JPL (R.U., D.M., S.K., D.Z., Lj.R., Z.O., B.I. and V.B.), on the grounds that there was a reasonable suspicion that they had committed grave breaches of public safety regulations (see paragraph 76 below, Article 194 § 2 in conjunction with Article 187 § 4 of the Criminal Code).

The experts’ report of 9 August 1995 was served on the applicant on 15 April 1996. Two weeks later, the applicant submitted numerous objections and posed questions. He questioned, inter alia, the expert commission’s authorisation to investigate the case, the fact that it had focussed on the cause of the explosion without establishing whether the appropriate safety precautions had been taken, and the experts’ conclusions, which were pure presumption.

On 5 June 1996 the prosecutor lodged a request with the Belgrade District Court that the police experts be heard.

At a hearing scheduled for 4 December 1996, however, the investigating judge did not take statements from the experts. The applicant again objected to the experts’ report. The investigating judge endorsed the experts’ request to be provided with all questions in writing and to be given another month to answer. In their reply of 15 April 1997, the experts clarified that (a) on 23 June 1995 at the scene of the incident, where they had gone ex officio, the investigating judge had instructed them orally to establish the cause of the explosion; (b) they had not made any plan or programme for the expert report; (c) they had not had sufficient information (for example, on the original premix or the final product) to examine and determine the cause of the blast, but they had found traces of AP at the accident scene and had been provided with the formulae of the premix by JPL; (d) they could not say whether the fire had started on the rollers, the fuel or the rocket-fuel sheet; (e) they had not found any documentation about the planning or technology programme of the production of rocket fuel which had led to the blast; and that (f) their task had been to establish the cause of, and not the responsibility for, the explosion.

On 14 May 1997 the applicant amended his criminal complaint, relying on Article 194 § 2 in conjunction with Article 187 § 4 of the Criminal Code (see paragraph 76 below).

Following the prosecutor’s proposal of 10 June 1997, a month later the court appointed the Military Institute to determine and submit a report on whether the cause of the explosion had been of a technical nature or a human mistake. On 18 July 1997 the Institute informed the investigating judge that it did not have the capacity to do so.

On 28 November 1997 the Belgrade Chemistry Faculty was appointed to determine the cause of the explosion, whether it could have been avoided and the possible liability in that respect.

Following two unsuccessful attempts to receive additional relevant data, on 12 May 1998 the Professor of the Belgrade Chemistry Faculty, I.J., submitted his report. He claimed that it was based on reliable data collected by the Security Institute, given that, owing to the lapse of time, it was impossible to analyse any samples found on the site. He clarified further that he had not used most of the Institute’s documentation, as it concerned computer-generated and simulated experiments of assumed events which could only indirectly hint at the possible answers. The expert stated that the collected data were incomplete and did not contain quantitative figures of the samples examined to allow any deeper analysis of the collected evidence or its compliance with the account of the events that had allegedly led to the explosion. While not excluding the possibility that the cause of the explosion might have been the one suggested by the police experts, the expert observed that the possible exposure of AP to humidity could have made it sensitive to an organic compound and the explosion could have been caused by a piece of paper, wood or engine oil, especially in the presence of unwanted metal or soot particles.

The expert also noted the following issues as relevant: (a) although explosive, carcinogenic and other dangerous substances were used during the production process, no technical-technological documentation and certificates for them had been found; (b) the purity of the components, especially of AP, was questionable (it was described as light pink powder, whereas it was a white, crystalline substance); (c) the samples revealed, unusually, included the presence of phosphates, which were not components of composite fuel, or equipment for the maintenance of the mill or the building itself; (d) the production process and technology did not seem to have been accurately specified and followed, as certain components had been added and mixed on the mill in the course of the production process; and (e) an unacceptably high number of individuals present had indicated that they did not know what had been produced and that other safety measures had probably not been taken.

Following the prosecutor’s proposal of 13 June 1998, the investigating judge heard evidence from a number of witnesses to and surviving victims of the accident (eighteen out of the nineteen were from Belgrade) on ten occasions between 10 November 1998 and 15 October 1999. They were asked who had allowed V.B. to bring the premix to Grmeč, and whether they had known what it contained and what safety measures had been taken. On 27 July 1999 and 18 February 2000 respectively the investigating judge also interviewed Mr Radosav Lukić and Mr Jovica Stanišić, Deputy Head and Head of the State Intelligence Service.

On 1 March 2000 the investigating judge returned the case file with the collected evidence to the prosecutor.

On 9 June 2000 the investigating judge, on the prosecutor’s initiative, withdrew the case file and sealed the statements of the State Intelligence Service executives, classifying them as State secret.

On 12 June 2000 the public prosecutor decided not to prosecute, relying on secret evidence and information. He stated that a detailed analysis of the facts had been provided in an official note of 15 March 2000, which had been classified as confidential. He summarily dismissed the applicant’s criminal complaint on the grounds that there were no elements of crimes prosecuted ex officio (da se prijavljeno delo ne goni ex officio), invoking Articles 184 to 187 of the Criminal Code. By a letter of the same date, the applicant was informed about the prosecutor’s decision and notified that he could pursue a subsidiary criminal prosecution within eight days of the date the letter had been served on him by lodging a request for an investigation (zahtev za sprovođenje istrage).

The applicant alleged that despite his request, he had not had access to the case file until 10 June 2000. In the meantime, he commissioned an expert report by the court’s permanent specialist on explosives and blasts, M.A.L. In her report of 11 May 2000, the specialist stated that most of the police experts’ work had been incomplete or irrelevant, and gave the reasons for her assertions. She found that neither Grmeč nor JLP had been registered and properly equipped for working with explosive materials, and that their employees had lacked the necessary skills and competences. She confirmed in principle, and further elaborated on, the findings of the Chemistry Faculty’s expert and itemised the numerous failures of the two companies to comply with the relevant provisions of the Explosive Substances, Flammable Liquids and Gases Act concerning transporting and working with explosive materials (see paragraphs 84-86 below).

On 20 June 2000 the applicant instituted subsidiary prosecution against R.U., S.K., R.Č., V.B., J.T. and R.L. by lodging a request with the Belgrade District Court that a criminal investigation be opened into breaches of safety regulations, referring to Articles 194 § 2 and 187 §§ 1 and 3 of the Criminal Code (see paragraph 76 below).

On 27 September 2000 the investigating judge of the Belgrade District Court refused to open the investigation sought by the applicant (izrazio neslaganje sa zahtevom), and referred the case to a three-judge criminal panel (see paragraph 81 below).

On 3 October 2000 the three-judge panel of the District Court upheld the investigating judge’s decision, having established that rocket fuel had been produced on the orders of the then Serbian President, Mr Milošević, and Mr Stanišić (see paragraphs 7 and 32 above). The applicant appealed on 21 October 2000.

On 28 December 2000 the Supreme Court of Serbia quashed that decision. On 25 January 2001 it referred the case back to the Belgrade District Court for additional investigation, holding that the prosecuting authorities had failed to assess the evidence properly.

A month after the prosecutor’s request of 19 March 2001, the investigating judge commissioned the Military Technical Academy (Vojno-tehnička akademija-Katedra za raketna goriva) to draw up a fresh expert report in respect of the explosion. The Academy refused, claiming that it did not have the power to do so.

On 10 May 2001 the investigating judge appointed the Security Institute to draw up the report, but that institute also refused, referring to its report of 9 August 1995 (see paragraph 28 above).

On 12 June 2001 the investigating judge informed the applicant that there was no other available institution to carry out a fresh expert report and that, instead, he could file an indictment directly if he so wished.

In June and August 2001 the applicant filed an indictment and requested further investigative measures.

On 25 March 2002 the criminal chamber of the District Court sent the case file back to the investigating judge, referring to the Supreme Court’s decision of 28 December 2000 (see paragraph 40 above). The chamber instructed the investigating judge to open an investigation and interview the suspects. It stated that the three-judge panel of the District Court would again decide on his refusal to open an investigation once the suspects had been heard. It explained that it would be inappropriate to proceed with a subsidiary indictment without first carrying out an investigation, even with the investigating judge’s permission to file a direct indictment, if the suspects had never been questioned.

On the same date, the investigating judge opened an investigation. Between 16 September and 10 October 2002 he questioned all five suspects and gave individual decisions on investigation in respect of each of them.

On 29 October 2002 the investigating judge again appointed the Military Technical Academy to draw up a report establishing in a clear and conclusive manner the cause of the explosion and which irregularities in the production process had led to the blast. In a short report drawn up in December 2002, the Academy stated this time that their task was apparently to examine the cause of the explosion, not the possible failure of any of the suspects to protect those involved from the risk of explosion.

On 8 April 2003 the investigating judge closed the investigation. The applicant was informed and instructed that he could file an indictment as a subsidiary prosecutor within fifteen days if he so wished.

On 22 April 2003 the applicant and two others filed an indictment, laying blame on four former senior executives of Grmeč and JPL, R.U., S.K., R.Č. and V.B., as well as on Mr R.L., former Deputy Head of the Intelligence Service, for failing to take measures that had been required of them to prevent the lives of the applicant’s son and others from being avoidably put at risk or to mitigate casualties. By 3 July 2003, the District Court rejected all of the objections raised by the defence that the indictment was defective, and upheld the indictment.

The beginning of the trial was scheduled for 12 December 2003 and then for 22 March 2004, but was adjourned on both occasions by the court because it had been unable to secure the proper composition of its bench and/or some of the defendants had not been properly summoned.

The trial before the Belgrade District Court eventually started on 14 May 2004, when the court heard two defendants and adjourned the hearing because the scheduled time had lapsed. The three scheduled hearings (14 June 2004, 16-17 September 2004 and 18 January 2005) were adjourned because of the presiding judge’s other commitments and/or because one or more of the defendants had failed to appear in court.

At a hearing held on 15-16 March 2005, the court heard four defendants (S.K., R.U., V.B. and R.Č.) and adjourned to decide on further objections to the indictment. Between 23 March 2005 and 7 December 2005, the competent courts dismissed the indictment in respect of R.L. and R.Č., because the applicant had failed to name them as suspects in his earlier criminal complaint for the crimes at issue (see paragraph 23 above), which were, in principle, supposed to be prosecuted firstly ex officio. The hearing scheduled for 24 October 2005 was adjourned to allow the court to decide on R.Č.’s objection, and the next hearing scheduled for eleven months later, on 13 September 2006, was cancelled as the case file had been at the Supreme Court to decide on appeals on points of law lodged by other suspects (R.U, S.K. and V.B.) against the courts’ decisions on their objections.

On 25 September 2006 the indictment was slightly amended with regard to the facts.

On 20 November 2006, the trial recommenced before a new chamber, and also owing to the lapse of time since the previous hearing. The court heard the defendants and two witnesses.

On 6 February 2007 the applicant requested the District Court to re-examine whether the classification of the testimonies of two Intelligence Service executives as State secret had been in accordance with the law, and to add them to the case file if appropriate. No decision in respect of his request has been submitted to the Court.

The trial recommenced once again before a new trial chamber on 12 February 2007, when the court heard two defendants and three witnesses. On 14 and 15 May 2007, the court heard four new witnesses, as well as R.L. and R.Č. The three hearings set for 13 February, 5 September and 12 November 2007 were adjourned or cancelled owing to a strike by court clerks (zapisničara) and/or as the witnesses had not been summoned properly or had failed to appear. The court imposed fines on four witnesses for failure to appear in court.

The trial recommenced before yet another trial chamber on 11 February 2008, as well as again because of the lapse of time. The court heard one witness and adjourned the hearing because it had been unable to maintain the proper composition of its bench. Two further scheduled hearings (15 April and 8 September 2008) were cancelled at the request of the defendants or their lawyers for private or professional reasons and/or because of the inadequate summoning of witnesses.

On 17 July 2008 the applicant lodged a new bill of indictment against R.L. and R.Č.

The trial started anew because of the lapse of time on 24 November 2008, when the court again heard defendants and four witnesses. On 28 November 2008 the present proceedings were joined with the criminal proceedings against R.L. and R.Č. The two hearings scheduled for 2526 February and 23 April 2009 were cancelled due to the failure of the defendants’ lawyers to appear in court and/or the difficulties of successfully tracing certain experts after so many years.

On 24 June 2009 the trial re-started again because of the lapse of time, but could not proceed as the competent experts failed to appear in court. The judge fined one of the experts. On 16 September 2009 the court heard one police expert (B.G.). The hearing scheduled for 15 December 2009 was adjourned because of the absence of two forensic experts (P.P. and I.J.) and the defendants’ attorneys.

Following judicial reforms, on 1 January 2010 the case was assigned to another judge of the newly competent Belgrade High Court and the proceedings had to begin anew. The hearing fixed for 21 May 2010 was cancelled because the court had been informed that R.L. had been found dead on 19 February 2010, as well as because one of the defendants’ lawyers had not been properly summoned.

On 6 July 2010, the court discontinued the proceedings against R.L. In order to speed up the trial, the applicant amended the indictment, accusing the defendants of being co-accomplices in serious breaches of safety regulations (see paragraph 77 below, Article 288.2 in conjunction with Article 278.3 of the Criminal Code). The hearing was adjourned until 19 October 2010 to allow the defendants to readjust their defence to the slightly amended indictment. The latter hearing was also not held due to a judiciary strike.

By September 2011, the District Court had held one hearing and adjourned another four hearings. Specifically, during a very short hearing on 11 February 2011 one defendant and a number of witnesses had been re-heard, whilst the hearings of 8 December 2010 and 24 March 2011 had been adjourned because the defendants’ lawyers had not appeared. The hearing scheduled for September 2011 was cancelled by the court itself because it had, apparently, been unable to secure the proper composition of its bench. When one of the parties to the proceedings complained about the delay, the Belgrade High Court informed him that the case had been classified as “backlog” and would be dealt with shortly.

On 24 April 2013 the court rendered the first-instance decision. It acquitted the defendants, finding that there was insufficient evidence to declare them guilty of the offences with which they had been charged. The judgment was served on the applicant on 8 September 2013.

According to the information made available by the parties, the case is still pending before the Belgrade Court of Appeal.

On 10 September 2010 the applicant lodged an appeal with the Constitutional Court (Ustavni sud), complaining about the length of the criminal proceedings described above. He complained, in particular, of obstacles and obstructions within the criminal proceedings, of not being involved in the investigative activities and of having had no access to the case file.

On 14 July 2011 the Constitutional Court held that the applicant had suffered a breach of his “right to a trial within a reasonable time” in respect of the ineffective, inadequate and lengthy criminal proceedings before the first-instance court, and ordered the latter to bring the impugned proceedings to a conclusion as soon as possible. In order to establish its jurisdiction ratione materiae, the court held that the criminal proceedings concerned the right to life, which was a civil right. The Constitutional Court also declared that the applicant was entitled to non-pecuniary damages, in accordance with Article 90 of the Constitutional Court Act. The applicant does not seem to have been served with that decision until October 2011.

On 31 October 2011 the applicant’s lawyer lodged a request with the Commission for Compensation. In so doing, he relied on the Constitutional Court’s decision, and sought 10,000,000 dinars (RSD) in compensation on account of the pecuniary and non-pecuniary damage suffered.

On 27 December 2011 the Commission for Compensation offered to pay the applicant the sum of RSD 100,000 (at the time approximately 840 euros (EUR)) for the non-pecuniary damage referred to in the Constitutional Court’s decision. According to the information contained in the case file, the applicant refused to accept that amount, deeming it insufficient.

Instead, on 17 July 2012 the applicant lodged a claim with the Belgrade Court of First Instance (Osnovni sud), noting that he had not received an appropriate offer from the Commission for Compensation, which was why he was entitled to bring a separate civil suit in this respect (Article 90 of the Constitutional Court Act, see paragraph 63 above). The applicant sought RSD 10,000,000 (at the time approximately EUR 85,000) for the non-pecuniary damage sustained.

On 12 December 2013 the Belgrade Court of First Instance accepted the applicant’s claim in part and awarded him RSD 500,000 (approximately EUR 4,330). The applicant was exempted from paying court stamp duty on account of his age and indigence.

On 14 May 2014 the Belgrade Court of Appeal (Apelacioni sud), decreased the award to RSD 300,000 (approximately EUR 2,580). The court stated that the payment of the original award would be contrary to the purpose of compensation and that the State could not be responsible for the omissions of third parties. According to information made available by the parties, the awarded amount has not yet been paid.

It would appear that on an unspecified date the applicant lodged another constitutional appeal with the Constitutional Court in respect of the compensation. The Court has not been informed by the parties about the outcome of the proceedings before the Constitutional Court.

Despite the Court’s request to the Government to provide it with the information indicating the ownership structure of Grmeč and JPL as of June 1995, the documents provided by the Government concerned only the legal status of Grmeč as of 1997, when it was incorporated as a limited liability company (društvo sa ograničenom odgovornošću). Nevertheless, documents in the Court’s possession show that in 1995 it was a well-established “socially-owned” holding company (društveno preduzeće/poslovni sistem) licenced for the production of homogeneous flooring and other products made of PVC masses. Its Vinfleks factory was apparently registered for the production of bituminous materials.

JPL was registered as a privately-owned company in 1995 for other services than the production of rocket fuel. It would appear that soon after the explosion the company was re-registered as Brunner, and that some of its co-founders, including R.Č. and B.J., further re-registered the company or established new companies called Infinity and/or EdePRO. According to media reports, a new explosion occurred on the EdePRO premises in November 2008. One person died and three were injured.

The Criminal Code 1977 (published in the Official Gazette of the Socialist Republic of Serbia – “OG SRS” – no. 26/77, amendments published in OG SRS nos. 28/77, 43/77, 20/79, 24/84, 39/86, 51/87, 6/89, 42/89, and Official Gazette of the Republic of Serbia – “OG RS” – nos. 16/90, 21/90, 26/91, 75/91, 9/92, 49/92, 51/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02, 80/02, 39/03 and 67/03) was in force from 1 July 1977 until 1 January 2006. The relevant provisions read as follows:

“(1) Whosoever by fire, flood, explosive, poison or poisonous gas, ionising or radioactive radiation, engine power or other generally dangerous act or generally dangerous means causes danger to life or body of people or to property of larger scale, shall be punished with imprisonment of between six months and five years.

(2) The penalty specified in paragraph 1 of this Article shall also be imposed on an official or responsible person who fails to install prescribed equipment for protection against fire, explosion, flood, poison, poisonous gas, ionising or radioactive radiation, or fails to maintain these in proper order, or fails to use the equipment in time of need, or generally fails to observe regulations or technical protection standards and thereby causes danger to life or body or to property of large scale.

(3) If a number of people are gathered at the location of the offences specified in paragraphs 1 and 2 of this Article, the offender shall be punished with imprisonment of between one and eight years.

(4) If the offence specified in paragraphs 1 and 3 of this Article is committed by negligence, the offender shall be punished with imprisonment of up to three years.”

“If the offence specified in Article 187 §§ 1-3, Article 188 § 1, Article 189 §§ 1-2 and Article 190 § 1 hereof resulted in the death of one or more persons, the offender shall be punished with imprisonment of not less than three years.”

The Criminal Code 2005 (published in OG RS no. 85/05 of 6 October 2005, amendments published in OG RS nos. 88/05 of 14 October 2005, 107/05 of 2 December 2005, 72/09 of 3 September 2009 and 111/09 of 29 December 2009) entered into force on 1 January 2006. It contains similar provisions (Articles 278 and 288 § 2 thereof), but the prescribed penalties are now imprisonment of between one and six years (instead of imprisonment of between one and eight years) for breaching general safety regulations at a location where a number of people are gathered, and imprisonment of between two and twelve years (instead of imprisonment of not less than three years) for the breach of general safety regulations which resulted in the death of one or more persons.

The Code of Criminal Procedure 2001 (published in the Official Gazette of the Federal Republic of Yugoslavia – “OG FRY” – no. 70/01 of 28 December 2001, amendments published in OG FRY no. 68/02 of 19 December 2002 and OG RS nos. 58/04 of 28 May 2004, 85/05 of 6 October 2005, 115/05 of 27 December 2005, 49/07 of 29 May 2007, 20/09 of 19 March 2009 and 72/09 of 3 September 2009) entered into force on 28 March 2002. The relevant domestic provisions are contained in Articles 19, 20, 46, 61, 64, 235, 242, 243, 379, 406 and 425 of the Code.

Most criminal offences (including those mentioned above) are subject to public prosecution, but some minor offences are only subject to private prosecution. The public prosecutor’s discretion to decide whether to press charges, however, is bound by the principle of legality, which requires that he must act whenever there is a reasonable suspicion that a crime subject to public prosecution has been committed. The public prosecutor must undertake measures necessary for the preliminary investigation of crimes subject to public prosecution and the identification of the alleged perpetrators. To that end, he is vested with the power to co-ordinate the work of various law-enforcement agencies and other governmental bodies.

If the public prosecutor finds, based on the evidence before him, that there is a reasonable suspicion that a certain person has committed a crime subject to public prosecution, he will request the competent court to open an official investigation or file a bill of indictment. If, however, the public prosecutor decides that there is no basis for the institution of such proceedings, he must issue a reasoned decision and also inform the victim of that decision; the victim then has the right to take over the prosecution of the case on his or her own behalf, in the capacity of “subsidiary prosecutor”, within eight days of the notification of the public prosecutor’s decision.

A subsidiary prosecutor may submit a request for the opening of an investigation or file an indictment. If an investigating judge refuses to open the investigation sought, the case will be referred to a three-judge criminal panel to issue a decision in that respect within forty-eight hours. A further appeal is allowed. If the prosecution has already been taken over by a subsidiary prosecutor, the public prosecutor nevertheless has the power to resume the prosecution of the matter ex officio.

At the relevant time the acquisition, production, trade and/or storage of armaments and explosive and flammable substances should have been carried out in compliance with numerous health-and-safety requirements and in the manner set out by the relevant laws and bylaws, as appropriate.

The Manufacturing of Armaments and Military Equipment Act of the Socialist Federal Republic of Yugoslavia prescribed the conditions for and manner of, inter alia, the production of armaments and military equipment needed to supply the Yugoslav army and for national defence in general, as well as the legal status of enterprises empowered to do so. Only enterprises which were empowered or contracted by the national defence authorities or by an extraordinary federal law were licensed to produce armaments and military equipment. The licensed enterprises were required to observe preventive measures and safety precautions, organise special units and adopt technical and physical firefighting-related plans and programmes in that respect. Under the law, the national defence authorities were responsible for supervision of the implementation of the law, while the data on capacity, development programmes and production of weaponry were confidential.

The Explosive Substances Trade Act of the Socialist Federal Republic of Yugoslavia and the Explosive Substances, Flammable Liquids and Gases Act of the Republic of Serbia regulate the terms and procedures for issuing authorisation, competence and control of the authorities, and their supervision over implementation of the legislation. The legislation also provides for other matters of importance for the production and trade of explosive and/or flammable substances that are not used in the military and mining sectors. Weaponry may be produced by registered enterprises, which have been licensed by the competent interior affairs authorities (at the level of the Republic of Serbia or of the autonomous provinces) following a positive opinion provided by the competent authorities in charge of national defence. No manufacturing permits may be used until the competent authorities have verified that the enterprise has met all the necessary requirements in respect of location, technical equipment, safety and preventive measures, storage and staff training, as required by the law.

The licensed enterprises are required to ensure that all preventive measures are carried out and that people and neighbouring buildings are protected. They must hold records of the materials produced and technologies used (to be verified by the competent State authorities). They must also make sure employees are properly informed about the production technology and the risks, and trained to control or deal with them, and obtain authorisation for the transportation of explosive and flammable substances. Furthermore, the enterprises are required to put in place adequate checks and regularly review their implementation of the prescribed requirements and measures.

Lastly, the interior affairs authorities of the Republic of Serbia or its provinces are responsible for supervision of the implementation of the regulations in respect of the production of explosive substances, while the municipal interior affairs authorities have a supervisory role in respect of all other activities and measures.

The relevant legislation sets out the liability for disciplinary, criminal or misdemeanour offences, as appropriate, for failures to adhere to the regulations.


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

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

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

The applicants complained of the excessive length of civil proceedings. Some applicants also raised other complaints under the provisions of the Convention.


CASE OF IGOR PASCARI v. THE REPUBLIC OF MOLDOVA

Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Criminal charge;Fair hearing);Pecuniary damage - reserved (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The applicant was born in 1983 and lives in Chisinau.

The applicant is a bus driver. On 14 August 2009 he was involved in an accident with a car in which no one was injured. According to the findings of the police, the driver of the other vehicle involved in the accident, P.C., had changed lanes without paying attention to the applicant’s bus, which had been overtaking it in the other lane. The applicant had not had enough time to brake and had hit P.C.’s car on the rear left side. On the same date the chief inspector of the traffic police issued a decision finding P.C. responsible for the accident under Article 242 § 1 of the Traffic Code (see paragraph 12 below), fined him 800 Moldovan lei (MDL) (the equivalent of 50 euros (EUR)) and gave him five penalty points.

On an unspecified date P.C. contested that decision.

By a judgment of 29 September 2009 the Anenii Noi District Court dismissed P.C.’s objection and upheld the decision of the chief inspector of the traffic police. The applicant was not involved in the proceedings. Only P.C. and the police officer who had been present at the site of the accident were present and the latter opposed P.C.’s objection. P.C. challenged the District Court’s decision.

On 19 November 2009, the Bender Court of Appeal reversed the decision of the first-instance court, finding the applicant guilty of causing the accident. The court found that the applicant had not kept a safe distance between his bus and the vehicle in front of him and stated as follows:

“... according to article 49 of the Route Code, the driver of a vehicle shall keep a safe distance between his vehicle and the vehicle in front of him, in such a manner as to avoid collision in case of sudden braking by the foregoing vehicle.

These rules were not observed by the driver of the vehicle which was behind, namely by the driver of the bus [...], Mr Igor Pascani, and by no means by Mr P.C.”

The applicant was again not involved in the proceedings and only found out about them at a later date. Under domestic law he was not able to challenge the Court of Appeal’s decision.

As a result of the above judgment and based on its conclusions, on 22 January 2010 the chief inspector of the traffic police issued a new decision by which he found the applicant guilty of the breach of Article 49 of the Traffic Code causing the accident of 14 August 2009. The operative part of the decision stated as follows:

“...Pascari Igor is declared guilty of having committed the offence provided by Article 242 § 1 of the Code of Administrative Offences (CAO), however, according to Article 30 § 3 of the CAO no sanction shall be applied in view of the statutory limitation period.”

It appears from the documents submitted by the parties that following the accident the owner of the bus recovered the cost of its repairs from P.C.’s insurance company. After the judicial proceedings in which the applicant was found responsible, P.C. attempted to recover the cost of the repairs of his car from the other party’s insurance company. However, it appears from the case file that the company suspended payment until the case has been finally determined by the Court.


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

The applicant, Mr Ali Nurdinovich Ibragimov, is a Russian national of Chechen ethnic origin, who was born in 1977 and is presently detained in Košice (Slovakia).

He was represented before the Court by Mr I. Ezheyev of the Goodwill Without Borders foundation and Ms H. Demeterová of the nongovernmental organisation Help a Man, who were succeeded by Ms I. Rajtáková, a lawyer practising in Košice.

The Government of the Slovak Republic (“the respondent Government”) were represented by their Agent, Ms M. Pirošíková.

The present case is a sequel to application no. 51946/08, which had been submitted by the same applicant. The latter application was examined by the Court jointly with application no. 21022/08, which had been submitted by applicant Mr Anzor Chadidovich Chentiev.

The Court’s decision on the admissibility of applications nos. 21022/08 and 51946/08 is referred to below in paragraphs 17 and 18.

The facts of the case, as submitted by the parties and established by the Court in the context of applications nos. 21022/08 and 51946/08, may be summarised as follows.

The applicant was arrested by Slovakian border police on 18 January 2006, having no valid travel document.

On 15 February 2006 he applied for asylum in Slovakia. His request was ultimately dismissed, the final decision being given by the Supreme Court on 26 March 2008 and becoming final on 12 May 2008.

On 20 April 2006 the Office of the Prosecutor General of the Russian Federation (“OPGRF”) applied for the applicant’s extradition. The request was based on the fact that the applicant had been accused of several offences, namely banditry with aggravating circumstances and attempt on the life of officials of a law-enforcement agency. He was suspected of having participated, as a member of an organised group, in the killing of two agents of the Ministry of the Interior in Grozny in June 2001.

The above letter and another letter from the OPGRF dated 19 September 2006 indicated that the applicant would not be tried by the Special Court, would enjoy the guarantees of a fair trial including the assistance of counsel and that he would not be subjected to treatment contrary to Article 3 of the Convention. As to the risk of the death penalty, the letters indicated that there was a moratorium on the death penalty in Russia, that the applicant would not face the death penalty if extradited and that, should the applicant be sentenced to death, the sentence would not be carried out. Reference was made to the fact that the Russian Federation had signed Protocol No. 6 to the Convention and that under Articles 18 and 26 of the Vienna Convention on the Law of Treaties of 1969 it had an obligation not to use the death penalty.

The applicant was placed in preliminary detention with effect from 28 April 2006. On 23 May 2006 the Košice Regional Court remanded him in custody pending extradition.

On 3 September 2008 the Regional Court found the applicant’s extradition to Russia inadmissible, but the Public Prosecution Service challenged that decision before the Supreme Court.

On 29 October 2008 the Supreme Court overturned the contested decision and held that the applicant’s extradition was admissible. It established that the applicant had been involved, as a member of an organised group, in the killing of two Russian servicemen in Grozny in 2001. That killing had taken place after the military conflict had ended and it was not therefore an exclusively political or military action within the meaning of the relevant provision of the Slovakian Code of Criminal Procedure, which prevented the extradition of foreigners in such cases. The Supreme Court further noted that Russia was a member State of the Council of Europe and that respect for human rights was permanently monitored.

Finally, the Supreme Court considered sufficient the guarantees offered by the OPGRF, which stated that the applicant would not face the death penalty and that such punishment was in any event not carried out in Russia, that he would not be tried by a Special Court as well as the undertaking that Articles 3 and 6 of the Convention would be respected in his case.

On 3 December 2008 the applicant lodged a complaint with the Constitutional Court. He relied on Article 3 of the Convention and Article 1 of Protocol No. 6 and referred to various reports on the situation in prisons in the Russian Federation. In particular, he invoked reports on treatment to which persons of Chechen origin suspected of fighting against Russian authorities were subjected. He also invoked the fact that the death penalty had not been formally abolished in Russia.

On 17 December 2008 the Constitutional Court dismissed the complaint as being manifestly ill-founded. It relied on the reasoning of the Supreme Court which it considered relevant and sufficient from the point of view of protecting the applicant’s rights under the Convention and the Constitution.

In a letter of 12 October 2009 addressed to the Slovakian authorities the OPGRF confirmed the guarantees previously given with regard to the applicant, including respect for his physical and psychological integrity. The letter indicated that, if he was convicted and given a prison sentence, the applicant would serve his sentence in a federal prison, where the Convention and the European Standard Minimum Rules for the Treatment of Prisoners are taken into account. The Embassy of Slovakia to Russia would be informed of the place of the applicant’s detention and Slovakian diplomatic representatives would be able to visit the applicant and speak to him without the presence of third persons. The applicant would be provided with sufficient medical care. It was guaranteed that capital punishment would not be applied in respect of the applicant. Finally, the OPGRF guaranteed that the applicant would not be prosecuted for his political views or because of his race, religion or nationality.

In applications nos. 21022/08 and 51946/08 the applicants Messrs Chentiev and Ibragimov complained, against a similar background, that their extradition to the Russian Federation would amount to a breach of their rights under Articles 3 and 6 of the Convention and Article 1 of Protocol No. 6.

On 14 September 2010 a Chamber of the Fourth Section of the Court decided to join applications nos. 21022/08 and 51946/08 and to declare them inadmissible. In view of the documents before it, it found nothing which could reasonably have given the Slovakian authorities grounds to doubt the credibility of the guarantees provided by the OPGRF during the decision-making process. Thus, the Court accepted the conclusion reached by the domestic authorities, namely that the facts of the case did not disclose substantial grounds for believing that the applicants Messrs Chentiev and Ibragimov, if extradited to Russia, faced a real and personal risk of torture or of inhuman or degrading treatment or punishment within the meaning of Article 3 of the Convention.

In view of additional information submitted by the newly appointed representatives of the applicants Mr Ibragimov and Mr Chentiev on 15 November 2010, the President of the Fourth Section decided to indicate to the respondent Government, under Rule 39 of the Rules of Court, that the applicants should not be extradited to Russia in the context of the present application until 23 November 2010. On the last-mentioned date a Chamber of the Fourth Section extended the interim measure by indicating to the respondent Government that the applicants should not be extradited until further notice. It was considered appropriate that they should have the possibility of having their cases reviewed at domestic level with the benefit of the new material, and that they should not be extradited pending such review.

The new application of Messrs Ibragimov and Chentiev was registered under no. 65916/10 and the case was later transferred to the Third Section of the Court, following the re-composition of the Court’s sections on 1 February 2011.

On 21 February 2012 a part of application no. 65916/10 was declared inadmissible and its remainder was notified to the respondent Government.

On 18 March 2014 the interim measure of November 2010 (see paragraph 19 above) was lifted in so far as it concerned Mr Chentiev. Subsequently, the remainder of application no. 65916/10 concerning him was reregistered under no. 27145/14, and it was declared inadmissible on 15 April 2014.

On 6 December 2010 the applicant Mr Ibragimov filed a fresh asylum claim in Slovakia. He referred to the suffering which he had had to endure during the war in Chechnya and his state of health, and indicated that his relatives were being threatened. The applicant’s arguments included those on which he relies in the context of the present application (see below).

The Migration Office discontinued the proceedings on that claim on 4 February 2011, finding that the applicant had submitted no relevant new information in relation to that already examined before. He then filed an administrative appeal to the Ministry of the Interior.

On 31 March 2011 the Minister of the Interior dismissed the applicant’s administrative appeal and upheld the decision of the Migration Office.

The Minister’s decision stated that there had been no substantive change in the applicant’s situation which would justify departing from the previous decision on his earlier asylum claim.

On 31 May 2011 the applicant challenged the Minister’s decision by way of an administrative-law action, arguing that the refusal of his asylum claim had been contrary to the law and that the administrative authorities had failed duly to take into account additional information and documents on which he had relied in his renewed claim.

On 10 May 2012 the Bratislava Regional Court dismissed the action and its judgment was upheld by the Supreme Court on 1 August 2012 following the applicant’s appeal. However, the latter judgment was quashed by the Constitutional Court on 29 October 2013, following the applicant’s constitutional complaint.

After the quashing by the Constitutional Court of the Supreme Court’s judgment of 1 August 2012, it became incumbent on the latter to determine anew the applicant’s appeal against the judgment of 10 May 2012, which it did, in a judgment of 12 February 2014, by quashing it as well as the ministerial decision of 31 March 2011.

In turn, it then became incumbent on the Ministry to determine anew the applicant’s appeal against the decision of 4 February 2011 discontinuing the proceedings on his new asylum claim, which it did on 14 August 2014, by quashing that decision and remitting the matter to the Migration Office.

The reasons behind the Constitutional Court’s judgment of 29 October 2013, as reflected in the subsequent quashing judgment of the Supreme Court of 12 February 2014 and the quashing decision of the Ministry of 14 August 2014, were that the authorities had failed to respond adequately to the new information and arguments submitted by the applicant, as a result of which their decisions lacked proper reasoning and manifested signs of arbitrariness, and this was contrary to the applicant’s right to a fair hearing under Article 6 § 1 of the Convention.

The applicant’s new asylum claim is now pending at the administrative level.

Meanwhile, on 22 May 2012, the OPGRF had confirmed in a letter to the Slovakian authorities the validity of all guarantees previously offered. In particular, they submitted that, in the event of extradition, the applicant would not be submitted to treatment contrary to Article 3 of the Convention and would benefit from a fair trial, and the OPGRF would directly supervise the observance of all such guarantees.

The applicant has been suffering from stomach ulcers for fifteen years and has had psychological problems. While in prison in Slovakia, he was kept in solitary confinement for significant periods. In the course of 2011, in reply to letters from the applicant’s representatives, the prison administration rebutted allegations that he had not been receiving appropriate medical treatment.

The applicant had a fight on 9 June 2010 with another detainee in the course of which the latter suffered physical injury. In a different context, on 31 August 2010, a prison officer accused the applicant of having attacked him. Criminal proceedings against the applicant in these two matters appear to be still pending.

The applicant submitted a press release of 24 November 2010 indicating that the Minister of the Interior had stated, after a meeting of the Cabinet, that Slovakia must not be a place where persons facing prosecution for serious criminal actions in one of the member States of the Council of Europe could move freely. The Minister further indicated that the applicant’s case had been sufficiently examined by the Supreme Court, the Constitutional Court and the European Court of Human Rights. The press release indicated that the Minister had refused to speculate as to whether the applicants would be extradited.

The applicant maintained that the criminal proceedings against him had been instituted in Russia on the basis of statements by A.M. Mukayev which had been extracted under torture. In that regard Mr Mukayev has a pending application before the Court against Russia (no. 22495/08).

The applicant also referred to the cases of M. Gasayev, A. Shakhayev and Z. Zubairayev. Mr Gesayev, for his part, had an application before the Court against Spain (no. 48514/06), which was declared inadmissible on 17 February 2009. Nevertheless, in 2012, he was granted asylum in France.

Further circumstances of these individuals are described in the Court’s partial decision of 21 February 2012 on the admissibility of the present application (see paragraphs 45-61 of that decision).

Other facts and documents referred to by the applicant are described in paragraphs 62–68 of the Court’s partial decision of 21 February 2012 on the admissibility of the present application.

In the decision of 15 April 2014 (see paragraph 22 above), the Court declared inadmissible application by Mr Chentiev, which had been submitted together with the present application, and which rested on identical or similar facts and allegations as the present application. The relevant part of the Court’s decision reads as follows:

“21. The documents before the Court indicate that in the proceedings on his renewed asylum request [Mr Chentiev] withdrew his action by which he had sought a review of the administrative authorities’ decisions. On that ground the Supreme Court discontinued the proceedings without addressing the merits of the case ...

Furthermore, as regards applications against Slovakia, a complaint under Article 127 of the Constitution has been generally considered as an effective remedy in respect of alleged breaches of the Convention which the applicants have been required to use after having had recourse to other domestic remedies available ...

In view of the above, the Court considers that [Mr Chentiev] has failed to use the remedies available in Slovakia as required by Article 35 § 1 of the Convention. Therefore, the subsidiary role of the Convention mechanism ... prevents the Court from dealing with the application.”

Subsequently, Mr Chentiev was extradited to the Russian Federation.

According to a report of 30 April 2015 submitted by the respondent Government, representatives of the Embassy of the Slovak Republic to the Russian Federation carried out an official monitoring visit of Mr Chentiev in the Federal Detention Centre in Grozny on 28 April 2015. The visit took place without the presence of the Russian party. Mr Chentiev submitted that he had been placed in the Grozny detention centre in June 2014. Of his free will and without any compulsion, he confirmed that during his detention he had not been subjected to any mistreatment and had had no complaint about the conditions of his detention. According to the report, Mr Chentiev appeared to be in good health and had displayed no signs of any mistreatment. The conditions of his detention had been inspected and found adequate. It was concluded that the guarantees of the OPGRF in relation to the treatment of Mr Chentiev were actually observed and there was no reason to question them.

A number of relevant international instruments and reports concerning the situation in Chechnya, and Russia in general, are summarised, for example, in the Court’s judgments in the cases of M.G. v. Bulgaria (no. 59297/12, §§ 39-58, 25 March 2014) and Chankayev v. Azerbaijan (no. 56688/12, §§ 44-52, 14 November 2013, with further references).


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

The applicant, A.F., is a dual United Kingdom/Libyan national, who was born in 1980 in the United Kingdom and lives in Manchester. He was represented before the Court by Mr S. Creighton, a lawyer practising in London with Bhatt Murphy Solicitors. The Government were represented by their agent, Ms M. Addis, Foreign and Commonwealth Office.

The present case concerns three control orders which were made against the applicant under the now repealed Prevention of Terrorism Act 2005 (“the PTA 2005”). The facts of the case may be summarised as follows.

On 24 May 2006, the Secretary of State (made a control order (PTA 6/2006) against the applicant, pursuant to section 2 of the PTA 2005, on the grounds that the Secretary of State had reasonable grounds for suspecting that the applicant was or had been involved in terrorism-related activity and considered it necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make such a control order. The control order was served on the applicant on 2 June 2006. It required him to remain in his home for eighteen hours per day (“the curfew period”) and contained the following additional restrictions:

- to wear at all times an electronic monitoring tag;

- to report by telephone to a monitoring company to ensure the curfew period was observed;

- to remain within a marked area in Manchester;

- to allow police offices and other authorised persons to enter and search his flat;

- not to allow visitors (other than his father, his legal representative and members of the emergency services) to his flat except with prior authorisation of the Home Office and, in respect of such a visitor, to supply the name, address, date of birth and photographic identity of the individual to the Home Office;

- to attend only one designated mosque and, while there, not to lead prayers, give lectures or provide any religious advice;

- a prohibition on all communication equipment (including access to the internet) in the flat save for one fixed telephone line;

- a prohibition on the use of mobile phone (including allowing someone to use one in the flat);

- to surrender his passport and any other travel documents;

- to inform the Home Office of any departure from the United Kingdom and of any intended return;

- a prohibition on entering any airport, port or international railway station;

- various financial restrictions including, inter alia, on owning more than one bank account and on international money transfers without Home Office consent;

- to provide the Home Office with details of any employment or change of employment;

- not to associate with anyone else subject to a control order; and

- not to associate or communicate, directly or indirectly, at any time or in any way with an individual named in the control order.

In August 2006 the Secretary of State served on the applicant a Security Service statement setting out the public or “open” reasons for the control order and the justifications for the various obligations imposed under it. The Security Service statement alleged that the applicant had links with extremist individuals in Manchester affiliated to the Libyan Islamic Fighting Group. No further information was given concerning these allegations, nor was any of the evidence supporting them communicated to the applicant.

On 11 September 2006, following the decision of the Court of Appeal in another control order case, Secretary of State for the Home Department v JJ and Others [2006] EWCA Civ 1141, the control order was revoked by the Secretary of State. The Secretary of State then made a second control order (control order PTA 33/2006) against the applicant. Under this control order, the curfew period was fourteen hours per day. The other restrictions were similar to those set out in the first control order, save that the applicant was now prohibited from associating with a further five individuals who were said to be associated with the Libyan Islamic Fighting Group.

In February 2007 control order PTA 33/2006 was reviewed by the High Court (Ouseley J) at a hearing under section 3(10) of the PTA 2005. The Secretary of State disclosed (“open”) evidence in support of his assessment that the applicant was or had been engaged in terrorism related activity and that the control order was necessary. None of the statements or evidence produced by the Secretary of State disclosed any specific allegations of wrongdoing against the applicant. Two special advocates were appointed to represent the applicant at the section 3(10) hearing. The applicant met with one special advocate once on 30 August 2006. He maintained that he was unable to give the special advocate any meaningful instructions of any kind.

Ouseley J handed down his judgment on 30 March 2007. This consisted of an open judgment and a closed judgment. Ouseley J found that the material disclosed to the applicant did not show reasonable grounds for suspecting that he had been or was involved in terrorism-related activity; it was clear, however, that the material which had been disclosed to the court and to the special advocates showed more than reasonable grounds for that suspicion. He nonetheless found that the control order had to be quashed because, taken cumulatively, the restrictions in it amounted to a deprivation of liberty and thus violated Article 5 of the Convention.

On 29 March 2007 the Secretary of State made a third control order against the applicant, PTA 4/2007. This Order was served on the applicant on 30 March 2007. It reduced the curfew period to twelve hours per day from the previous fourteen (from 7 p.m. to 7 a.m.). The geographical area to which the applicant was restricted in the remaining twelve hours of each day was enlarged to include a part of Manchester city centre, he was permitted to receive one visitor at his home between 7 p.m. and 7 a.m. without prior approval from the Home Office and he was granted permission to attend three different mosques. The materials served on the applicant in relation to control order PTA 4/2007 contain no further indication as to the case against him.

Ouseley J gave leave to appeal directly to the House of Lords against his judgment of 30 March 2007. The appeal was heard by the House of Lords, sitting as a panel of five judges, at the same time as three other control order cases. Judgment in all the cases was given on 31 October 2007 (Secretary of State for the Home Department v. E and another [2007] UKHL 45-47). The majority of the House of Lords (Lord Bingham, Lord Brown and Baroness Hale) held that, considered cumulatively, the restrictions amounted to a deprivation of liberty and had to be quashed, although Lord Brown specified that a control order which confined the individual to his home for 16 hours or less, regardless of the severity of the other restrictions, would not amount to a deprivation of liberty. Lords Hoffmann and Carswell dissented. A majority of their Lordships (Lords Brown, Hoffmann and Carswell) therefore held that a control order which confined a person to a residence for sixteen hours per day or less, even when coupled with other restrictions, did not amount to a deprivation of liberty under Article 5. Their Lordships were unanimous in their view that the criminal limb of Article 6 did not apply to control order proceedings, since the proceedings involved an assertion that a person was suspected of criminal activity, not that he was guilty of it. A majority (Lords Bingham, Brown and Carswell, and Baroness Hale) nonetheless held that, under the civil limb of Article 6, if it were necessary to disclose material to a controlled person in order to afford them a fair hearing, then either disclosure had to be made or the material could not be relied upon. They further held that the use and contribution of the special advocates in the applicant’s case could have been sufficient to afford him a fair hearing notwithstanding that none of the allegations and evidence relied upon against him was disclosed to him. In light of their conclusions, the House of Lords reversed Ouseley J’s decision to quash control order PTA 33/2006. Beyond their general observations on Article 6, their Lordships made no specific finding as to whether the Article 6 had been breached in the applicant’s particular case and instead remitted this issue back to the High Court for its consideration.

On 31 October 2007, following the House of Lords’ judgment, the Secretary of State modified PTA 4/2007. That modification increased the period that the applicant was confined to his residence to 16 hours a day (from 5 p.m. to 9 a.m., later modified to 4.30 p.m. to 8.30 a.m.). The further restrictions set out in the control order continued in force. The Secretary of State introduced a further obligation prohibiting the applicant from attending pre-arranged meetings outside his residence, other than for health, educational or employment purposes and at a mosque.

The present application was lodged on 5 February 2008. When it was lodged, the hearing concerning PTA 4/2007 was pending before the High Court. The proceedings concerning PTA 33/2006 (which had been remitted to the High Court by the House of Lords for consideration of the Article 6 issue in the case) were also heard in the High Court before Stanley Burnton J. In judgments given on 10 March 2008 and 9 April 2008 he found that, given the lack of disclosure of both the allegations against applicant and the evidence supporting them, the proceedings concerning PTA 33/2006 did not comply with Article 6. He further found that that conclusion would apply to the pending proceedings concerning PTA 4/2007.

The Secretary of State appealed against those findings to the Court of Appeal, which, on 17 October 2008 and by a majority of two to one, allowed the appeal. The majority found that there was no absolute rule that Article 6 required the gist or essence of the allegations and evidence to be disclosed to the person subjected to a control order (AF and others v. Secretary of State for the Home Department [2008] EWCA Civ 1148). The applicant and two other controlled persons whose cases had been heard by the Court of Appeal were given leave to appeal to the House of Lords.

On 10 June 2009, their Lordships unanimously allowed the appeal (AF and others v. Secretary of State for the Home Department [2008] UKHL 28). They found that, in light of this Court’s judgment in A. and Others v. the United Kingdom [GC], no. 3455/05, ECHR 2009, there was an absolute rule that Article 6 required that a controlee be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this requirement was satisfied there could be a fair trial notwithstanding that the controlee was not provided with the detail or the sources of the evidence forming the basis of the allegations. Where, however, the open material consisted purely of general assertions and the case against the controlee was based solely or to a decisive degree on closed materials the requirements of a fair trial would not be satisfied, however cogent the case based on the closed materials might be.

On 11 June 2009 the applicant wrote to this Court seeking leave to amend the application in the light of the House of Lords’ judgment. On 25 June 2009 he was informed that, on 23 June 2009, the President of the Chamber to which the case had been allocated had decided that, since the case would be remitted to the lower courts for further consideration, it was appropriate to adjourn the Court’s own consideration of the application.

As a result of the House of Lords’ judgment, the Secretary of State decided not to make the required disclosure to the applicant and instead to revoke control order PTA 4/2007.

On 18 January 2010, the High Court (Silber J) handed down another judgment finding, inter alia, that: (i) the control order against the applicant had to be regarded as having been revoked (or quashed) ab initio; and (ii) the disclosure requirements identified by the House of Lords applied to a claim for damages arising out of the imposition of a control order. The Secretary of State’s appeal against Silber J’s judgment was dismissed by the Court of Appeal on 28 July 2010 (AN v. Secretary of State for the Home Department [2010] EWCA Civ 869).

The applicant issued legal proceedings against the Secretary of State on 21 March 2012, claiming damages for the time he had spent under the control orders. In October 2013 the claim was dismissed, pursuant to a consent order agreed between the parties. The schedule to the consent order provided that the applicant would accept the sum of damages offered by the Government:

“in full and final settlement of the entirety of his claim herein and any other claims which he might have in relation to the control orders listed below that he was subject to between 25 May 2006 and 27 August 2009:

i. PTA6/2006

ii. PTA33/2006

iii. PTA4/2007

iv. PTA23/2008

v. PTA13/2009 ...”.


No violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Stand for election);No violation of Article 14+P1-3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 of Protocol No. 1 - Stand for election;Right to free elections-{general});No violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Stand for election);No violation of Article 14+P1-3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 of Protocol No. 1 - Stand for election;Right to free elections-{general});No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicant was born in 1945 and lives in Ankara.

The applicant, who was a professor of political science at the University of Ankara, had stood for the parliamentary elections of 22 July 2007, in the second electoral district of Istanbul, as an independent candidate. He had not been a member of any political party at the material time.

With a view to a deeper understanding of the background to the present applications, the Court considers it useful to outline the circumstances under which the parliamentary elections of 22 July 2007 took place. Accordingly it will refer to the relevant passages of Yumak and Sadak v. Turkey ([GC], no. 10226/03, §§ 22-26, ECHR 2008), which read as follows:

“22. In early May 2007 the Turkish Parliament decided to hold early parliamentary elections, choosing 22 July 2007 as the date. The decision followed a political crisis resulting from Parliament’s inability to elect a new President of the Republic to follow on from Ahmet Necdet Sezer before the expiry of his single seven-year term of office, on 16 May 2007. In the normal course of events, these elections should have been held on 4 November 2007.

Fourteen political parties took part in the elections, which were marked by two characteristics. Firstly, a strong mobilisation of the electorate was observed following the presidential crisis, since the participation rate rose to 84%. Secondly, political parties used two pre-electoral strategies to circumvent the national 10% threshold. The Party of the Democratic Left (DSP) took part in the poll under the banner of the CHP, a rival party, and by that means managed to win thirteen seats. The Party for a Democratic Society (DTP, pro-Kurdish, left-leaning) presented its candidates as independents using the slogan ‘A thousand hopes’; it also supported certain left-wing Turkish candidates. This movement was backed by other small left-wing groups such as the EMEP, the SDP and the ÖDP (the Liberty and Solidarity Party, socialist). More than sixty independent candidates stood for election in about forty provincial constituencies.

In the elections the AKP, the CHP and the MHP managed to get over the 10% threshold. With 46.58% of the votes cast, the AKP won 341 seats, 62% of the total. The CHP, with 20.88% of the votes, won 112 seats, 20.36% of the total; however, the thirteen MPs mentioned in paragraph 23 above subsequently resigned from the CHP and went back to the DSP, their original party. The MHP, which polled 14.27% of the votes, won seventyone seats, or 12.9% of the total.

The strong showing by independent candidates was one of the main features of the elections of 22 July 2007. There were none in the National Assembly in 1980 but 1999 saw them return, when there were three. In 2002 nine independent MPs were elected from a national total of 260 independent candidates. In the elections of 22 July 2007, twenty-seven independent MPs were elected. In particular, more than twenty ‘thousand hopes’ candidates were elected, after obtaining approximately 2.23% of the votes cast, and joined the DTP after the elections. The DTP, which had twenty MPs, the minimum number to be able to form a parliamentary group, was thus able to do so. The independents also included a socialist MP (the former president of the ÖDP), a nationalist MP (the former president of the Great Union Party – BBP, nationalist) and a centrist MP (the former president of ANAP).

A government was formed by the AKP, which again secured an absolute majority in Parliament.”

In accordance with Article 94 II a) of Law no. 298 as amended under section 24 of Law no. 3270 of 28 March 1986, electors were able to vote in polling stations set up at customs posts for political parties but not for independent candidates, who included the applicant.

In a Decree of 27 May 2007 the Higher Electoral Council (Yüksek Seçim Kurulu) stated that it had chosen 25 June 2007 and 22 July 2007 respectively as the dates for the beginning and end of the parliamentary elections in the polling stations set up at customs posts for nationals who had been resident abroad for over six months. In the Decree the Higher Electoral Council explained that the nationals in question could only vote in those polling stations for political parties.

On 3 July 2007, with reference to Articles 67 and 90 § 6 of the Constitution and Article 3 of Protocol No. 1 to the Convention, the applicant lodged with the Higher Electoral Council a request for the annulment of the Decree du 27 May 2007.

On 4 July 2007 the Higher Electoral Council dismissed the applicant’s request, on the basis of Article 94 II a) of Law no. 298. It pointed out that this provision could only be modified by a fresh legislative amendment.

Section 52 (1) of Law no. 298 on Elections allowed political parties participating in elections to transmit election broadcasts on national radio and television (TRT), subject to certain restrictions, particularly in terms of airtime.

The Higher Electoral Council oversaw the implementation of the Law, which laid down sanctions for infringements of the provisions on election broadcasts.

Election broadcasts were authorised from 15 to 21 July 2007, that is to say during the week before the elections.

According to the applicant, the Law did not allow independent candidates like himself who did not, as a matter of principle, belong to any political party, to electioneer on the national radio and television, or, for that matter, on the private channels.

The applicant stressed that one peculiarity of the 22 July 2007 elections had been the large number of independent candidates standing. He considered that this unprecedented phenomenon had stemmed, firstly, from the 10% electoral threshold imposed during the parliamentary elections, and secondly, from the dissatisfaction felt by most people at the material time with the performance of the political parties, whether in power or in opposition.


Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The first applicant, Mr Martin Donat, is a German national, who was born in 1963 and lives in Damnatz. The second applicant, Mrs Maleen Faßnacht-Albers, is a German national, who was born in 1942 and lives in Dannenberg. They were represented before the Court by Ms U. Donat, a lawyer practising in Hamburg.

s, may be summarised as follows.

On 10 November 2006 around 7.30 p.m. a group of persons started blocking the crossing of a federal road with a county road in Pudripp in order to protest against the forthcoming transport of “castor” containers to Gorleben. A total of thirty-six tractors and two cars blocked the crossing, preventing at least twenty lorry drivers from continuing their journey.

The first applicant, deputy mayor of Zernien and member of the Lüchow-Dannenberg county council, as well as the second applicant and her husband were caught in the traffic jam caused by the blockade on the federal road in their cars.

The police present at the crossroads allowed the applicants, who had parked and left their cars, to join the persons blocking the crossroads. In the first applicant’s submission, he intended to inform himself on the event and to mediate, if necessary, in his capacity as an elected local politician. The second applicant wished to inform herself of the reasons for the blockade. Subsequently, more police forces arrived at the crossing.

At 9.35 p.m. the Lüneburg police contained the 315 persons present on and around the crossroads, including the applicants, in a police cordon. They informed the persons concerned at 9.44 p.m. that they were suspected of having committed an offence in view of the fact that they had been blocking the federal road for a considerable time, thereby preventing other vehicles from continuing their journey. They declared the assembly dissolved and announced that the police would establish the identity of all persons involved at a checkpoint. They further asked persons who did not feel well, children and women to process to the identity check first in order to be able to leave the cordon rapidly. The first applicant subsequently attempted in vain to leave the cordon at a different place by presenting his identity papers only.

Following the establishment of their identities, twenty-five persons had left the cordon by 10.19 p.m., another forty-two persons by 10.31 p.m., another seventy-five persons by 10.47 p.m. and another eighty-five persons by 10.55 p.m. At 10.57 p.m. the police ordered a toilet van for the remaining some ninety persons.

Around 11.30 p.m. (in the second applicant’s submission) or around 10.30 p.m. (according to the police photo in the file) the second applicant left the cordon after her identity had been recorded.

On 11.35 p.m. the police started pushing the remaining persons, including the first applicant, towards the identity checkpoint. At 0.55 a.m. of the following day (11 November 2006), the twenty persons remaining within the cordon, including the first applicant, were escorted by the police to the checkpoint. The first applicant left the cordon at 1.02 a.m. after his identity had been recorded. All persons had left the cordon by 1.23 a.m. following the establishment of their identities.

The identities of the persons cordoned off by the police were established, in principle, in the following manner. They filmed the persons concerned with a video camera when they presented their identity cards. The personal data of those persons were read out by a police officer at the same time. In contrast, the second applicant gave her identity herself and two photographs were made of her in addition to the video recording as she had left her identity card in her car.

Following their release from the cordon, it took the applicants at least another hour to reach their cars which were parked on the opposite side of the crossroads because the police kept blocking the crossroads, which was surrounded by a forest difficult to traverse on foot at night.

On 11 December 2006 the first applicant and on 27 March 2007 the second applicant, both represented by counsel, requested the Dannenberg District Court, in an action against the Lüneburg police, to declare, in particular, that their deprivation of liberty and the manner in which personal data had been taken for the police records on 10/11 November 2006 had been unlawful.

On 29 March 2007 the Dannenberg District Court (civil section) transferred the cases brought by the applicants to the investigating judge responsible for the review of measures under the Code of Criminal Procedure. It argued that the applicants had not been deprived of their liberty for preventive purposes under the Lower Saxon Act on Public Security and Order. The police had in fact detained them on the basis of the Code of Criminal Procedure.

On 31 October 2007 the Dannenberg District Court (criminal section) found that the establishment of the first applicant’s identity under Article 163b § 1 of the Code of Criminal Procedure (see paragraph 36 below) and the taking of pictures of the first applicant for the police record under Article 81b, first alternative, of the Code of Criminal Procedure (see paragraph 37 below) had been lawful.

On 27 March 2008 the Lüneburg District Court (criminal section) made the same finding in respect of the second applicant.

In their decisions, phrased in almost identical terms, the District Courts found that the police had contained the persons participating in the blockade of the crossroads in a police cordon in order to establish their identities and to take pictures and in order to seize the vehicles involved. They considered that there had been at least sufficient factual elements for concluding that the persons concerned were guilty of joint coercion (Article 240 of the Criminal Code; see paragraph 34 below). By parking their vehicles on the crossroads and by their presence thereon, the 315 persons involved created, at least by the ensuing traffic jam, a physical barrier preventing cars from continuing their journey for a considerable time, which, having regard to the criminal courts’ case-law, amounted to force within the meaning of Article 240 § 1 of the Criminal Code. The District Courts further found that, having regard to the duration of the blockade of more than two hours and its effects for third persons, in particular at least twenty lorry drivers who partly had to deliver goods within a deadline, the blockade was also reprehensible for the purposes of Article 240 § 2 of the Criminal Code and not covered by the right to freedom of assembly or the right to freedom of expression.

The District Courts considered that in view of the suspicion that a joint coercion had been committed, the police had been obliged under Article 163b § 1 of the Code of Criminal Procedure to establish the identity of all persons present on the crossroads, including that of the applicants. Having regard to the number of persons involved, this measure naturally took a certain amount of time.

Likewise, the taking of video pictures of the persons concerned under Article 81b, first alternative, of the Code of Criminal Procedure was necessary to conduct the investigation proceedings. In order to establish the acts committed by individual perpetrators, their presence and the clothing at the time of the act had to be recorded.

In the District Courts’ view, the impugned measures taken by the police were not disproportionate. Even without the police cordon, there would have been inconveniences as a result of the lack of toilets, the weather and the lack of food at the crossroads, the blocking of which was to be upheld for a considerable period of time.

On 5 November 2007 the first applicant and on 4 April 2008 the second applicant lodged appeals against the District Courts’ decisions. They argued, in particular, that it had been arbitrary to treat them as suspects, given that they had been caught in the traffic jam caused by the blockade themselves and had only wanted to inform themselves of the cause for the traffic jam. The District Courts had insufficiently established the relevant facts and had failed, in particular, to hear them in person.

On 10 December 2007 the Lüneburg Regional Court dismissed the first applicant’s appeal as ill-founded.

As to the lawfulness of the first applicant’s detention by the police, the Regional Court clarified that the deprivation of liberty had been based on Article 163b § 1, second sentence, of the Code of Criminal Procedure. That provision authorised holding back a person suspected of a criminal offence if that person’s identity could not be established in a different way or if that establishment would be possible only with considerable difficulty. The first applicant had been present within a group of persons having blocked a crossing with the help of tractors causing a considerable traffic jam. Even taking into account the cause for the blockade, namely to demonstrate against the forthcoming transport of castor containers, this blockade, having regard to the Federal Constitutional Court’s case-law, could constitute coercion. It had been necessary to contain the some 300 suspects in a police cordon in order to take the identity of all of them.

The Regional Court further considered that the first applicant’s deprivation of liberty had been proportionate. The police had enabled persons who did not feel well and minors to leave the cordon speedily. They further speeded up the establishment of the suspects’ identities by recording the reading out of the personal data on video instead of writing the data down. If the first applicant had lacked food and had been cold, he could have asked for a speedy establishment of his identity. However, it appeared that the first applicant had been part of a group of some twenty persons who had refused to go to the checkpoint to have their identities established and he had thus caused delays in the establishment of his identity himself. In so far as it had not been possible for the first applicant to regain his car after his release for a considerable time, this had been caused by the partly ongoing blockade of the crossing and did not entail a deprivation of liberty imputable to the police.

The Regional Court further found that the taking of the first applicant’s identity via video recording had been lawful under Article 81b, first alternative, of the Code of Criminal Procedure. It had not been arbitrary to consider the first applicant, who was within the group of persons blocking the crossroads, as a suspect of a joint coercion. Filming the persons concerned had also been proportionate. It had been necessary to document the clothing worn by the suspects in order to enable witnesses to recognise the perpetrators of an offence having caused prejudice to a considerable number of drivers at a later stage.

The Regional Court considered that it had not been required by the Code of Criminal Procedure for the District Court to hear the first applicant in person in the present proceedings. The District Court had sufficiently established the relevant facts, having regard also to the file on the criminal investigations against the first applicant and the documentation of the video recording made by the police.

On 19 December 2007 and on 8 January 2008 the Lüneburg Regional Court dismissed the first applicant’s complaints about a breach of his right to be heard. It stressed that the first applicant had had full access to the case-files, which included the police reports and pictures of the first applicant drawn from the video recordings. He had therefore been in a position to explain his view comprehensively in writing.

On 29 April 2008 the Lüneburg Regional Court, endorsing the reasons of the Lüneburg District Court, equally dismissed the second applicant’s appeal. It stressed that the second applicant’s counsel had had access to the complete case-file. It had not been necessary to hear the second applicant in person as the lawfulness of the impugned measures could be determined irrespective of a personal impression of her.

On 23 June 2008 the Lüneburg Regional Court equally dismissed the second applicant’s objection and complaint about a breach of her right to be heard.

On 9 January 2008 the first applicant lodged a constitutional complaint with the Federal Constitutional Court. He complained, in particular, that his detention in the police cordon on 10/11 November 2006, which he had only been able to leave under the condition that he had himself and his personal data recorded on video, had breached his constitutional right to liberty, his personality rights and his right to freedom of assembly. Moreover, the procedure before the District Court and the Regional Court had failed to grant him effective redress in relation to these complaints.

On 26 May 2008 the second applicant lodged a constitutional complaint in which she endorsed the complaints made by the first applicant.

On 28 July 2008 the Federal Constitutional Court declined to consider the first applicant’s constitutional complaint (file no. 2 BvR 76/08) and on 16 October 2008 it declined to consider the second applicant’s constitutional complaint (file no. 2 BvR 1441/08), without giving reasons. The decisions were served on the applicants’ counsel on 5 August 2008 (in respect of the first applicant) and on 28 October 2008 (in respect of the second applicant).

On 25 April 2008 the Lüneburg Public Prosecutor’s Office discontinued the investigation proceedings for coercion against all persons present at the blockade of the crossroads on 10/11 November 2006. It dispensed with the prosecution of the offence as the suspects’ culpability would be of a minor nature and as there was no public interest in the prosecution.

On 30 January 2013 the Lower Saxony Administrative Court of Appeal confirmed the Lüneburg Administrative Court’s finding that the storage of data on the first applicant in the police databases on castor transports and on state security, which had been erased in the meantime, had been unlawful. Only the data concerning the first applicant contained in the Lower Saxony police’s electronic record of police measures could be kept.

Article 240 § 1 of the Criminal Code, on coercion, provides that whoever compels another person unlawfully by force or threat of a considerable harm to commit, acquiesce in or omit an act shall be punished by imprisonment of up to three years or a fine. The act shall be unlawful for the purposes of Article 240 § 1 if the use of force or the threat of harm is to be considered reprehensible in order to attain the objective pursued by the act (Article 240 § 2 of the Criminal Code).

The conditions under which the blocking of streets for reasons of political protest is punishable under Article 240 of the Criminal Code has been a matter of intense academic discussion for many years and has been addressed and clarified by the Federal Constitutional Court in at least three leading decisions (file no. 1 BvR 1190/84 and others, judgment of 11 November 1986, Collection of the decisions of the Federal Constitutional Court (BVerfGE) vol. 73, pp. 206 ss.; file no. 1 BvR 718/89 and others, decision of 10 January 1995, BVerfGE vol. 92, pp. 1 ss., and file no. 1 BvR 1190/90 and others, decision of 24 October 2001, BVerfGE vol. 104, pp. 92 ss.). The Federal Constitutional Court found, in particular, that only a blockade in which the participants set up a physical barrier, going beyond the mere mental impact on the road users by their physical presence in the blocked street, may be classified as “force” for the purposes of Article 240 § 1 of the Criminal Code (file no. 1 BvR 1190/90 and others, ibid., § 31). Moreover, in determining whether an act amounted to a “reprehensible” coercion for the purposes of Article 240 § 2 of the Criminal Code, the criminal courts had to take into account the purpose of the blockade and, if applicable, the importance of the constitutional protection of the right to freedom of assembly (ibid., §§ 55 ss.).

Under Article 163b of the Code of Criminal Procedure, the Public Prosecutor’s Office and the police officers may take the measures necessary to establish the identity of a person who is suspected of having committed a criminal offence (Article 163b § 1, first sentence). The suspect may be held back if his or her identity cannot be established in an alternative way or if establishment of his or her identity would be possible only with considerable difficulty (Article 163b § 1, second sentence).

Article 81b of the Code of Criminal Procedure provides that photographs and fingerprints of the accused may be taken even against his will and measurements may be made of him and other similar measures be taken with regard to him in so far as this is necessary for the conduct of the criminal proceedings or for the purposes of the police records.