No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Somalia)

André Potocki;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicants were born in 1964, 1990, 1994 and 1997 respectively and live in Gothenburg.

They entered Sweden on 1 June 2009, when they were respectively forty-five, nineteen, fifteen and twelve years old, and applied for asylum and residence permits the following day.

The first and second applicants were heard by the Migration Board (Migrationsverket) on 5 and 16 June and 26 August 2009. A language test was carried out by an analyst, who had been born and raised in Mogadishu and came to Sweden in 2003. After the initial interview, legal counsel was appointed to represent the applicants.

The first applicant submitted, among other things, that they were members of the Sheikal clan and that the family had lived together in a village called Hosingo in southern Somalia since 1999. The first applicant had a university degree from Saudi Arabia. On 16 June 2009, he explained to the Board that he had not visited Saudi Arabia since 1999. On 26 August 2009 he was confronted with the fact that his passport had been stamped on two occations, in 2000 and 2005 in Djibouti, situated northwest of Somalia, whereupon he explained that he had travelled via Djibouti to Saudi Arabia and that those trips must have been after 1999. Once he had visited his brother’s daughter in Saudi Arabia. He did not recall the other visit. There were also stamps in his passport up to 2005 from Lowyacado, Borama and Berbera, in Somaliland, but the first applicant maintained that he and his family had remained in Hosingo throughout that period.

Al Shabaab took over Hosingo when the Ethiopian army withdrew in the middle of 2008. On 5 June 2009, the first applicant explained to the Board that he had participated in a demonstration to protest against Al Shabaab taking over their village, and that therefore he was on their list of persons to kill. On 16 June 2009 he explained that the elders of the village decided that they would try to negotiate with Al Shabaab. The negotiation ended in disagreement and the spiritual leader of the village was killed immediately after the meeting by two masked men. The first applicant was listed as a person to be killed and shortly thereafter two armed and masked men came to his house and asked for him. On 26 August 2009 he explained that the leader of the village had been killed six days after the meeting with Al Shabaab. The applicants would not be able to move elsewhere in Somalia since their clan was not domiciled anywhere else in the country and Al Shabaab was present everywhere.

The second applicant stated initially that her mother and husband remained in Hosingo. Later she explained that her husband had left the village. She did not know where he was. She still had six siblings left in Hosingo, plus some uncles and cousins. In 2006 the family had problems with Al Shabaab, which burned down their house. The second applicant had burn scars on her upper body from that incident. In 2008 one of the village leaders was killed and her father and husband had to flee. She was afraid of being raped by Al Shabaab upon return.

On 11 September 2009 the Migration Board rejected the applicants’ request for asylum. It noted at the outset that it was difficult for Somali citizens to prove their identity since there was no authority that could issue passports or other acceptable identity documents. Accordingly, the applicants’ stories were decisive for determining their origin. The Board found that the first applicant had provided detailed information about Hosingo village, situated in southern Somalia. However, his pronunciation of some words was typical of that in northern Somalia. In addition he had stamps in his passport, dated 2000 to 2005, from airports in Somaliland. There were no entry or departure stamps from trips to or from southern Somalia. Finally, he had provided contradictory statements about the crucial event in 2008, notably whether the leader was killed immediately or six days after the negotiation with Al Shabaab, and why he was being sought by them, and he had been vague about the situation in south and central Somalia. The language analysis of the second applicant indicated that she originated from Somaliland. Moreover, she had not been able to give any detailed information about the village or her clan, which could be verified. In conclusion, the Migration Board did not find it credible that the applicants had been living in Hosingo until their departure from Somalia. It found it much more likely that the applicants’ most recent home had been in northern Somalia.

The applicants appealed against the decision to the Migration Court (Migrationsdomstolen), before which an oral hearing was held on 12 May 2010. The Migration Court refused to hear two witnesses on the applicants’ behalf, who allegedly could have certified that they were from Hosingo. However, their written testimony was allowed.

By a judgment of 2 June 2010 the Migration Court upheld the Migration Board’s decision. The Migration Court did not question that the first applicant originated from Hosingo in southern Somalia. Like the Migration Board, however, it found that the language analysis of the first and the second applicants, and their various explanations, did not support their contention that they had had their latest domicile in southern Somalia or that they should be considered refugees or otherwise in need of protection.

On 3 September 2010 the Migration Court of Appeal (Migrationsöverdomstolen) refused leave to appeal. Hence the deportation order became enforceable.

In autumn 2010 the applicants claimed that there were impediments to the enforcement of their deportation orders. On 19 October 2010 the Migration Board decided not to reconsider the case, finding that the applicants had failed to present new circumstances which could justify reconsideration of the case.

At the beginning of 2011, the applicants again requested a reexamination of their cases, which was refused by the Migration Board on 31 March 2011. The applicants appealed against this decision to the Migration Court, which rejected the appeal on 6 May 2011.

On 16 January 2012 the third applicant claimed that there were impediments to the enforcement of his deportation order. On 9 February 2012 the Migration Board decided not to reconsider the case, finding that no new circumstances justifying reconsideration had been presented.

Likewise, in March 2012 the first and the fourth applicants claimed that there were impediments to the enforcement of the deportation orders against them, claims which were rejected by the Migration Board on 29 March 2012.


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

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

The applicants, who are brothers, were born in 1986, 1987 and 1985 respectively and live in Bucharest.

In the early hours of 17 March 2008, around five minutes after midnight, the applicants, together with their parents, decided to go to a police station to report that the applicant Marius-Romeo Chinez had been a victim of crime. They stopped a taxi on the street and because the taxi driver, B.G., refused to take them, they got involved in a verbal dispute with him and one of the applicants punched the bonnet of the car. Shortly afterwards, several taxi drivers from the same taxi company arrived at the scene. A team of two police officers (D.M. and F.I.) who were patrolling the area also arrived at the scene of the incident. They were followed by three additional police units.

In the presence of the police the dispute between the applicants and the taxi drivers escalated, with the applicant Mihai Chinez being hit in the face. When he tried to retaliate, the police handcuffed him and took him to their car. At the same time the applicant Ionuţ Ludovic Chinez was hit on the head by an unknown person and lost consciousness. When he saw his brother lying on the ground, the applicant Mihai Chinez refused to get into the police car. At this point the three police officers who had hold of him started hitting him and used their electric stun gun to force him into their car. Afterwards, Ionuţ Ludovic Chinez was lifted off the ground, handcuffed and put into a police car. The applicant Marius-Romeo Chinez, who was watching the scene from a distance, was pushed to the ground by two policemen, handcuffed and taken to another police car nearby.

The applicants were then taken to the police station, where Mihai and Marius-Romeo were punched and kicked in the stomach and chest by the police officers who had brought them in. After several hours of waiting without being questioned and without making a statement, Marius-Romeo was taken by ambulance, under police escort, to the Floreasca Emergency Hospital, where he had treatment for two days.

The other two applicants were questioned separately by different police officers. On 17 March 2008, at around 4 p.m., when a lawyer hired by their father arrived, they were allowed to leave the police station.

According to the incident report drafted by the chief of the police units involved, on 17 March 2008 at around 00.20 a.m. the team of two police officers who were on patrol had seen a group of five persons attacking a taxi driver. When they intervened to stop the fight and to identify the persons involved, the applicants became aggressive towards them too and punched them. The officers asked for support and additional patrol units arrived at the scene. Subsequently, the decision was taken to accompany the attackers, namely the applicants, to the police station to identify them, but because they refused to go the police officers had to use force and handcuff them. The report further mentioned that the applicants had damaged a taxi belonging to Mr. B.G., who was identified by name, age, personal identity number and address.

The report also stated:

“Before the arrival of the police units, several colleagues came to protect the taxi driver and assaulted the five [people]; because of the injuries he sustained Marius-Romeo Chinez was taken to the Floreasca Emergency Hospital, where he was admitted to the surgical ward ...

On the occasion of the investigation at the crime scene four eyewitnesses were identified and gave statements ...”

The report concluded that, in accordance with an order given by the prosecutor by telephone, an investigation was immediately launched in connection with assault on police officers by the applicants and their father.

On the same day the chief asked for forensic expert reports from the National Forensic Medicine Institute in connection with the injuries suffered by police officers F.S.I. and N.C. The reports issued on 14 May 2008 confirm that officer F.S.I. had a 4 x 1 cm ecchymosis and excoriation on the left lumbar region, which could have been caused on 17 March 2008 by being hit with a hard object, and which required one to two days’ medical treatment. With respect to officer N.C., the report mentioned that he had a 2 x 2 cm ecchymosis in the left occipital region, which could have been caused by being hit with a hard object on 17 March 2008 and which required one to two days’ medical treatment.

According to a forensic medical report issued on 2 April 2008, Mihai Chinez had a haematoma of 1 x 0.5 x 0.5 cm in the occipital area, numerous ecchymoses on the face, arms and left leg, and five electrical burns on the left thigh. It was considered that the injuries, which could have occurred on 17 March 2008, were caused by being hit with a hard object, and required two to three days’ medical treatment.

According to a forensic medical report issued in June 2008, Marius-Romeo Chinez had an excoriation of 3 x 2 cm on the right of the forehead, a 1.5 x 1 cm ecchymosis outside the right eye, several ecchymoses and haematomas on the head, a 1 cm wound on the upper lip which had been sutured, several ecchymoses of 7 x 3 cm and 6 x 4 cm on the back and the lower right thorax, as well as on the right elbow. The report mentioned that he was drunk when he was brought to the Emergency Hospital. It was considered that the injuries, which could have been inflicted on 17 March 2008, had been caused by being hit with and against a hard object or surface, and required eight to nine days’ medical treatment.

A forensic medical report issued in August 2008 mentioned that Ionuţ Ludovic Chinez had a haematoma of 1 x 0.5 x 0.3 cm on the right side of the head and two ecchymoses on the right thigh. He also had limited capacity to open his mouth because of an injury to the right side of the jaw. The report concluded that the injuries could have been inflicted on 17 March 2008 by being hit with and against hard surfaces and objects, and that they required one to two days’ medical treatment.

On 7 July 2008 the applicants brought criminal proceedings against the police officers who were involved in the events of 17 March 2008, for abusive behaviour, unlawful arrest and misconduct. They claimed that on 17 March 2008 they had been beaten by police officers both before and after they were taken to the police station, following an incident they had been involved in with a taxi driver.

The investigation of the applicants’ complaint conducted by N.I., a police officer from the Control Unit of the Ministry of Internal Affairs, commenced by taking statements from the applicants on 11, 12 and 14 August 2008. They described the course of the events as mentioned in paragraphs 6 to 9 above. The applicant Ionuţ Ludovic Chinez stated that, while he was approaching the two police officers who were handcuffing his brother Mihai, he was hit on the head and lost consciousness. He further mentioned that after his arrival at the police station he had not been ill-treated. The applicant Mihai Chinez stated that “he was told later that [Ionuţ Ludovic] had been hit by taxi drivers and policemen”. The applicants mentioned that they did not know the names of the taxi drivers involved in the incident or of the police officers present at the scene. Lastly, they requested criminal sanctions against the police officers who had assaulted them both in the street and inside the police station.

On 11 August 2008, J.V., the applicants’ mother, who was present during the incident, declared that she had seen around twenty or thirty taxi drivers hitting the applicants Mihai and Ionuţ Ludovic Chinez. Then she had seen the two police officers pushing Marius-Romeo to the ground, hitting him and handcuffing him. She then stated that when the two police officers saw Ionuţ Ludovic lying on the ground they ran towards him, dragged him to their car, slapped him, turned him over with his face to the ground and handcuffed him. By this time all the taxi drivers had left the scene. Once they arrived at the police station she was not allowed to enter or to contact her sons. After approximately one hour she saw the applicant Marius-Romeo being taken away by ambulance, with his handcuffs still on and under police escort.

The investigation continued with the identification of the police officers involved in the incident. In this respect, on 20 August 2008, the operational order of 17 March 2008 as well as the incident report drafted by the police chief (see paragraph 10 above) were attached to the investigation file.

On 24 August 2008 N.I. took statements from police officers D.M. and F.S.I. They declared that they had been on patrol together in a police car when they saw several taxis and several individuals hitting another person. They immediately approached the scene of the incident and asked the aggressors to stop. When they refused the two officers called for back-up, and then intervened in order to remove from the crowd one person who was violent and had blood on his face. When they tried to immobilise this person he went up to a taxi and hit its windscreen with his fist, breaking it. They decided to handcuff him, and at that moment he kicked F.S.I. in the chest and refused to get into the police car, pointing to his brother, who had been beaten and was lying on the ground, and asking them to call an ambulance. Then they put him into the police car with the help of two other colleagues and drove him to their police station. They mentioned in their statement that they did not use any physical or psychological pressure on the person in question, and that they were not equipped with electric stun guns. When they arrived at the police station the person was identified as Mihai Chinez and “was taken over by officer F.L. from the criminal investigations unit and other colleagues who continued the investigation”.

The same day officer D.A.M. gave a statement in which she mentioned that she was part of one of the units called as back-up by officers D.M. and F.S.I. When she arrived at the scene she found one person pointing out a taxi driver who had allegedly just beaten his brother. She got back into her car and drove in the direction indicated but could not find the taxi driver. Then she returned to the scene and, according to her statement, she “identified two eyewitnesses who could describe the incident and they accompanied her to the police station”. She further declared that, once inside the police station, she did not participate in the questioning and did not physically or verbally assault any of the persons involved in the incident.

On 26 August 2008, in a note drafted by officer N.I., police officers D.M., Z.C., N.C., F.I., D.D.M., D.A., P.M.C. and S.L.E. were identified as having been present during the incident under investigation “together with other public order forces”.

On 5 September 2008 officer N.G., who was on duty at the police station on the night of the incident, gave a statement mentioning that he had helped his colleagues D.M. and F.I. to identify the applicants and their parents, and took a statement from J.V., the applicant’s mother.

On 24 and 25 September 2008 statements were taken from officers F.L.C. and D.D.M. They stated that they had not been on duty on the night of the incident, but were called in and asked to come to the police station. When they arrived they were informed about the incident and asked to help their colleagues. F.L.C. declared that he had heard statements from two eyewitnesses. D.D.M. declared that he had questioned Mihai Chinez. Both officers declared that they had not assaulted any of the participants in the incident.

On 25 September 2008 investigating officer N.I. took a statement from officer A.S, who had also been called in from home to the police station in the early hours of 17 March 2008. He stated that “at the station there were a number of people, including taxi drivers, witnesses and members of the Chinez family”. He then proceeded to question Ionuţ Ludovic Chinez. He continued by stating that he was aware that the applicants were being investigated for charges of assault against police officers. Lastly, he concluded that between 2005 and 2007 he was the community police officer in charge of the area in which the applicants lived. He stated in this respect that the applicants were disruptive individuals who had been sanctioned on numerous occasions for disturbing public order, and that in his opinion their complaint was “biased and based on untruths”.

The statements allegedly taken from the applicants and eyewitnesses immediately after the incident inside the police station were not included in the investigation file.

On 2 October 2009 the Prosecutor’s Office of the Bucharest Court of Appeal decided to relinquish jurisdiction to the Prosecutor’s Office of the Bucharest County Court. On 14 January 2010 it was decided that the Prosecutor’s Office of the Bucharest Court of Appeal was competent to examine the case after all, and the file was sent back to them.

On 15 and 17 March 2011 officers F.L.C., A.S. and D.D.M. were heard again, this time before the prosecutor. In addition to his initial statement given in 2008, officer F.L.C. pointed out that, once inside the police station and while he was handcuffed, the applicant Mihai Chinez had banged his own head against the wall and the floor several times.

On 1 June 2011 the Prosecutor’s Office of the Bucharest Court of Appeal dismissed the criminal complaint lodged by the applicants against some of the police officers who had taken part in the incident of 17 March 2008, in particular those officers who had questioned the applicants after they were taken to the police station, on the ground that no unlawful act had been committed by them. It held that following the incident the applicants had been restrained by police officers and taken to the police station for identification and questioning, because a car had been destroyed during the incident and police officers had been assaulted. It was further held that when they reached the police station it was already apparent from physical evidence that the applicants had been involved in a violent incident. There was therefore no evidence in the criminal investigation file to prove beyond reasonable doubt that the police officers who questioned the applicants at the police station, in particular A.S, F.L.C. and D.D.M., had acted violently against the applicants. Moreover, it was held that one of the applicants, namely Mihai Chinez, had inflicted injuries on himself. The prosecutor finally decided that the criminal investigation in respect of the remaining police officers, not identified by name, should be continued by the Prosecutor’s Office of the Bucharest County Court.

The applicants complained against this decision, arguing, inter alia, that no statements had ever been taken from any of the taxi drivers involved in the incident. They also argued that they had been hit by the taxi drivers in the presence of the police officers, who had done nothing to protect them. On the contrary, the police officers had also brutally attacked them, immobilising them in the street and then beating them up once they were inside the police station. They further alleged that two witnesses, namely I.S. and the applicants’ legal representative, had seen the injuries suffered by them but were never called to testify.

On 30 June 2011 the applicants’ complaint was rejected as ill-founded by the General Prosecutor of the Prosecutor’s Office of the Bucharest Court of Appeal.

The applicants appealed against the prosecutors’ decisions before the Bucharest Court of Appeal, reiterating their previous arguments (see paragraph 30 above). Their appeal was rejected with final effect on 20 October 2011. In reaching this decision the Bucharest Court of Appeal firstly considered that sufficient investigative action had been taken, such as taking statements from the applicants and the police officers present in the police station, and, because the alleged ill-treatment took place in a police station, no other evidence was available that could verify the applicants’ complaint with respect to police officers A.S, F.L.C. and D.D. The court further held that it could not decide with respect to the incident which took place in the street and which involved the taxi drivers, because it was the object of an ongoing investigation conducted by the Prosecutor’s Office of the Bucharest County Court.

The criminal investigation with respect to the rest of the police officers and concerning the incident which took place in the street is still pending before the Prosecutor’s Office of the Bucharest County Court.

The criminal investigation against the applicants for assaulting police officers (see paragraph 11 above) has also not been completed to date.


CASE OF MITROVA AND SAVIK v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

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

Armen Harutyunyan;Guido Raimondi;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano

The applicants were born in 1983 and 2007 respectively and live in Gevgelija, in the former Yugoslav Republic of Macedonia.

On 15 October 2006 the first applicant married Mr V. Savik (“the father”). On 11 February 2007 she gave birth to their daughter, the second applicant.

On 10 May 2007 the Gevgelija Court of First Instance (“the first-instance court”) dissolved the marriage and gave the first applicant custody of the second applicant.

On 31 May 2007, on an application by the father, the Gevgelija Social Welfare Centre (“the Centre”) made an order specifying that he could see the second applicant at the first applicant’s house every Friday for two hours. The order was made after the Centre had examined the situation in both families and had discussed the matter with the parents. Тhe order was served on the first applicant on 2 June 2007.

The first applicant’s refusal to allow the father to have contact with the second applicant at four scheduled meetings between 8 and 29 June 2007 led to her being convicted pursuant to Article 198 of the Criminal Code (judgment K.br.133/07 of 2 July 2007). The court, noting the child’s young age, dismissed the first applicant’s defence (that she had not been consulted and notified about the Centre’s order of 31 May 2007; that the child had not been developing properly at the time; and that the father had not shown any interest for the child) and sentenced her to six months’ imprisonment, suspended for one year. In determining the penalty, the court referred to gravity of the crime and the manner in which it had been committed, as aggravating circumstances, as well as to the first applicant’s age, her admitting to the crime, the fact that she had no previous criminal record, her good behaviour and her family situation, as mitigating factors. According to the court, the suspended prison term would deter her from reoffending and help crime prevention as a whole. The judgment was upheld on appeal on 27 December 2007.

A further refusal by the first applicant to comply with the Centre’s order of 31 May 2007 by not allowing the father to have contact with the second applicant between July and October 2007 resulted in her being convicted a second time and being given a further suspended prison sentence (eight months, suspended for two years, judgment K.br.229/07 of 17 December 2007, upheld on appeal on 14 May 2008). The first applicant was also ordered to allow the father to see the child within 30 days after the judgment would become final. In case of non-compliance, the court specified that the suspension would be revoked and the sentence would be enforced. The court dismissed the first applicant’s defence that the father had failed to observe the scheduled meeting times, that he had turned up instead under the influence of alcohol and drugs and that he had harassed her, her parents and the child. In determining the penalty, the court referred, inter alia, to the first applicant’s age and her standard of living, as mitigating factors. Both judgments (K.br.133/07 and K.br.229/07) were delivered after the court had heard oral evidence from the first applicant, the father and a representative of the Centre. They were given by Judge I.S. of the Gevgelija Court of First Instance.

In the meantime, on 21 November 2007, the Centre set a new venue and time for the meetings between the father and the second applicant. It was decided to increase the time to five hours every Friday and for the meetings to take place at the Centre rather than in the first applicant’s house. According to the order, the father’s right to have contact with the second applicant, as specified in the order of 31 May 2007, had been considerably affected by the strained relationship between him and the first applicant. The new arrangement required the first applicant to take the second applicant to the Centre at a specified time each week. The Centre stated, inter alia, that:

“... According to the established methodology of work, all efforts have been made for communication to be established between both parents, between the competent body and [the first applicant] and the parents have been alerted to all legal consequences should they fail to enforce their statutory duties as parents that can violate the rights of the minor child.

After actions have been taken and facts have been established ... on a meeting held on 12 November 2007 the expert team found that no communication could yet be established with [the first applicant] and the parents could not agree on [the second applicant’s] right to have regular contacts and meetings with the non-cohabitant parent. Such an attitude infringes the right of the minor S. Therefore, given [the second applicant’s] age, the need for an emotional bond to be created between the minor child and the non-cohabitant parent, the need to protect her rights, as well (the need) to eliminate any possibility for manipulation that would prevent the expert team to supervise the enforcement of the contact arrangements between the minor child and the father, (the Centre) decided the father’s visiting rights in respect of the minor S.S...”.

The first applicant failed to appear at three scheduled meetings in November and December 2007. On two occasions in January and March 2008, the father did not see his daughter because she was ill.

On 29 April 2008, after the Centre had obtained the views of the first applicant and the father and had examined the file, it partially accepted the father’s request for longer and more frequent meetings and issued an order (no. 12-07/33), specifying that his meetings with the second applicant were to take place in the Centre every Monday from 9 a.m. to 4 p.m. The order further stated that:

“... The expert team (notes that) the minor S. is still breast-fed, but (since) it is necessary to further strengthen the [child’s] emotional bond with the non-cohabitant parent and to protect the right of [the second applicant] to have contact with the father, it considers that the visiting rights should remain once a week, but longer, which would enable that (the child) stays overnight after she would no longer be breast-fed.”

The Centre further set two dates on which the father could meet the second applicant, to replace the meetings missed in January and March 2008 (see paragraph 13 above). The first applicant was ordered to comply with the new contact arrangements or risk criminal proceedings being instituted against her and the father being given temporary custody of the second applicant.

As the first applicant failed to comply in full with the order of 29 April 2008, on 28 May 2008 the Centre allowed the order of 29 April 2008 to be enforced by means of a separate order issued under section 14 of the Family Act (see paragraph 46 below). It established that the first applicant had failed to take the child to four of the scheduled meetings, despite being warned of the possible consequences should she fail to comply. The order further stated that:

“... Such a warning did not, for unknown reasons, enable the minor S.S. to enjoy the statutory right to contact her father and the mother not only ignores the order, but also engages in unreasonable and constant correspondence to describe incomprehensible situations, and makes accusations in a confused manner about matters which are the subject of other proceedings.

In view of the above and by virtue of law, the expert team ... decided unanimously that there are statutory grounds for forceful enforcement of the executive order of 29 April 2008 ... and for proceedings to be instituted regarding custody of the child and criminal liability of [the first applicant].

In view of the above and the fact that (the case concerns) the forceful prevention by [the first applicant] of contacts between minor S.S. and her father V.S. ...the expert team considers that the forceful enforcement (of the order of 29 April 2008) as specified in (this decision) is in the absolute interest of the minor [second applicant] ...”

The first applicant was ordered to take the second applicant to the Centre on 2 June 2008 or risk being prosecuted for child abduction under Article 198 of the Criminal Code. The order stated that an appeal would not suspend enforcement of the order (правото на жалба не го одлага извршувањето). The first applicant confirmed that she had received the enforcement order of 28 May 2008. She appealed against that order, arguing that she had never been served with the Centre’s order of 29 April 2008. Furthermore, she argued that the delivery that she had received by post on 2 May 2008 had not contained the order of 29 April 2008. No decision on the appeal was made.

On 17 June 2008 the first applicant asked the Centre to review the level of contact the father should have with the child. On 24 December 2008, the Centre made an order setting out the level of contact the father should have with the child. It appears that the first applicant complied with this order.

On an unspecified date, the father requested that the Centre review the level of contact with the second applicant. The first applicant failed to appear at the Centre to discuss the father’s request, notwithstanding that the Centre invited her to do so at two occasions. On 3 June 2009 the Centre made an order specifying that the father should meet his daughter every Monday to Tuesday (from 9 a.m. to 9 a.m.). The increased amount of contact was justified by the child’s “specific age and stage of development ... when a stable relationship (with the father), as well as an emotional bond between them, were necessary for [the child’s] proper mental and physical development”.

Subsequent to the two judgments against her of 2 July and 17 December 2007 (see paragraphs 10 and 11 above), on 19 June 2008, the public prosecutor brought criminal charges against the first applicant. She was accused of failing to allow the meeting scheduled for 2 June 2008 to take place, as required by the Centre’s orders of 29 April and 28 May 2008. In submissions of 30 June 2008, the first applicant denied the charge, arguing that she had never been served with the Centre’s order of 29 April 2008. In this connection, she maintained that she had received another order from the Centre dated 30 April 2008. She also expressed concerns about the fairness of the upcoming trial, given her Bulgarian nationality. She further applied for the removal of Judge I.S., should he be assigned to decide the case. On 1 July 2008 her application was dismissed by “a judge replacing the president” of the first-instance court. In submissions of 7 July 2008 to the first-instance court, the first applicant repeated her arguments and explained that she had sought Judge I.S.’s removal because he had convicted her in the previous criminal cases brought against her. She also maintained that he had allegedly solicited sexual favours from her. Her criminal complaint on the latter subject had allegedly been rejected by the same public prosecutor who had indicted her in the impugned proceedings. She also alleged that the judge who had replaced the president of the first-instance court, and who had dismissed her application for the removal of Judge I.S., was a relative of hers who, in discussions with her, had expressed disagreement with a decision she had made to study in Bulgaria.

The first applicant decided not to testify at the hearing held on 10 July 2008. The first-instance court heard the father, who stated that for reasons unknown to him he had not seen his daughter at any of the scheduled meetings since 29 April 2008. A representative of the Centre stated that the first applicant had not complied with its orders of 29 April and 28 May 2008, notwithstanding the fact that she had been informed of the consequences of non-compliance. She confirmed that the first applicant had been served with all the relevant orders the Centre had made. In a judgment of the same date the first-instance court, presided over by Judge I.S., found the first applicant guilty and sentenced her to three months in prison. In doing so, it relied on the oral and documentary evidence admitted at the trial, including the Centre’s orders of 29 April and 28 May 2008, which had provided explicitly for the need of the child to “strengthen the emotional bond with the [father] and to protect [her] right to have contact with [him]” as being “in [the child’s] absolute interest”. The court established that the first applicant had not complied with these orders notwithstanding that she had been alerted about the consequences for non-compliance. She had not allowed the father to see his daughter on several occasions before and after 2 June 2008, the date specified in the enforcement order of 28 May 2008. The court further stated that it could not assess the first applicant’s defence due to the fact that she had remained silent at the trial and provided no arguments regarding the incident. Lastly, it stated that:

“In assessing the severity of the sentence, the court took into consideration all relevant circumstances (aggravating and mitigating factors) ... in particular, the gravity of the charges and concrete consequences, the manner in which the crime had been committed, the fact that [the first applicant] had already been convicted of the same offence on 2 July [judgment K.br.133/07] and 17 December 2007 [judgment K.br.229/07] and [sentenced to an alternative penalty-suspended prison term]. The court found no alleviating circumstances related to the [first applicant].

The above stated leads to a conclusion that the suspended prison sentences issued against the [first applicant] had no impact on her, [given that the first applicant] continues committing the same offence. Accordingly, it decided to sentence her to a prison term finding that it would ... deter her from reoffending in the future and would [help crime prevention as a whole].

The first applicant appealed. On 3 December 2008 the Skopje Court of Appeal dismissed the appeal and upheld the lower court’s judgment. It held that the first-instance court had correctly established that she had not complied with the Centre’s orders of 29 April and 28 May 2008. Lastly, it endorsed the reasons of the first-instance court regarding her custodial sentence.

On 18 February 2009 the first applicant applied to the Supreme Court for an extraordinary review of the final judgment, reiterating the arguments she had raised in her appeal. On 5 May 2009 the Supreme Court dismissed her application, finding that the facts, as based on the evidence admitted at the trial, had been correctly established by the lower courts. In this connection, the lower courts had correctly applied the procedural rules and based their judgments on evidence admitted at the trial. Lastly, the court endorsed the reasons given by the lower courts.

The first applicant was ordered to present herself at prison on 10 March 2009. On 13 March 2009 the first-instance court postponed the execution of the sentence because the second applicant was ill and a new date was set for 14 June 2009. The first applicant started serving her sentence on 30 July 2009, and was released on 8 October 2009.

On 9 July 2009 the Centre gave the father custody of the second applicant for fifteen days.

On 30 July 2009, the date when the first applicant started serving the sentence, the Centre gave the father, of its own motion and on the basis of section 87(6) of the Family Act (see paragraph 54 below), temporary custody of the second applicant pending the conclusion of custody proceedings which he had initiated in August 2008 (see paragraph 33 below). According to the order, the first applicant had not allowed the second applicant to have any contact with the father at any of the scheduled meetings since 15 June 2009. After that date, the applicants had gone into hiding, despite the second applicant’s poor health, which required continuous medical supervision. The order further referred to the first applicant’s incarceration. The order did not provide for any contact rights for the first applicant in respect of the second applicant.

On 6 October 2009 the first applicant sought permission from the Centre to see the second applicant. According to the Government, the Centre invited her to an interview upon her release from prison. However, it appears that she did not receive the invitation and, accordingly, failed to appear.

According to the first applicant, on 23 November 2009 a lawyer acting on her behalf contacted the Centre to find out the whereabouts of her daughter and it was allegedly on that occasion that she was given the Centre’s order of 30 July 2009 (see paragraph 26 above). The lawyer allegedly requested the Centre to decide the contact arrangements between the first and second applicants, which the Centre refused to do, as under the law such orders were only made after both parents had been interviewed by the Centre’s welfare officers.

On 4 January 2010 the first applicant again requested that the Centre specify her contact rights. In reply, the Centre twice asked the first applicant to specify a time and place for meeting her daughter. The first applicant refused to be served with these notifications.

According to the Government, on 29 January 2010 the first applicant applied to the first-instance court for a decision on the amount of contact she could have with her daughter. Since she had specified a time and place for her contact with the daughter, the Centre, in an order dated 10 February 2010, specified her contact rights, which were to be every Friday from 10 a.m. to 3 p.m.

On 19 February 2010 the first applicant met her daughter.

On an application lodged by the first applicant, on 5 March 2010, the order of 10 February 2010 was replaced by a new order by the Centre, dated 17 March 2010, according to which the first applicant was allowed to stay with the second applicant every second weekend in the month, from Friday (3 p.m.) to Monday (9 a.m.).

On 26 August 2008 the father initiated custody proceedings, seeking to have the first-instance court amend its judgment of 10 May 2007 (see paragraph 8 above) and give him custody of the second applicant. In a judgment of 11 March 2010, the court granted his application and ordered the first applicant to hand the child over to the father. The first applicant would be allowed to maintain personal and direct contact with her. On 20 May 2010, however, the judgment was set aside by the Skopje Court of Appeal, which remitted the case for a fresh examination. The Court of Appeal ordered the first-instance court to reassess the available evidence and provide convincing reasons why the first applicant was unfit to enjoy custody of the child.

On 15 October 2010 the first-instance court dismissed the father’s application after hearing evidence from him and the first applicant and admitting expert opinions, of 25 August 2009 and 5 February 2010, which confirmed that both parents were mentally fit and had the required capacity to care for the child. It also admitted a report by the Centre, dated 24 September 2009, in which welfare officers confirmed that the first applicant had the necessary capacity to provide basic care for the child, but that she had continuously prevented her from seeing the father. They had not applied to a court to have her parental rights restricted since there were other ways to protect the interests and rights of the child. They further argued that the first applicant’s behaviour had been inappropriate: she had used insulting language towards everyone involved in the case, and had portrayed herself, without any justification, as a victim of the system. According to the experts, this was not a suitable environment for the second applicant. On the basis of all the available information, the Centre’s welfare officers suggested that it would be in the child’s best interests for the father to be given custody. In that way the child could maintain a relationship with both parents, which she had been unable to do when the first applicant had had custody.

Referring to the aforementioned facts, (see paragraphs 7-32 above), the court found that the first applicant had, for a protracted period of time, prevented the father from having contact with his daughter at the scheduled meetings. She had not been cooperative or shown any insight in her dealings with the State authorities, unlike the father, whose behaviour had been of no concern. Her past behaviour had been the result of her lack of trust in the authorities and her strained relationship with the father, but this had not affected her ability to care for the child. In this connection, the court stated:

“The court took into consideration the [Centre’s welfare officers’] opinion, but it has found that it would be in the best interests of the child, given the child’s (young) age and current stage of her development, for her to remain in the custody of the mother. The father may maintain a personal relationship and direct contact with the child. The court also took into consideration the fact that, as a consequence of these proceedings, the parties have understood the need for mutual communication in order to ensure the rights of the child. They ... have reached an agreement regarding their right to have contact with the child, which reduces the need for the competent body to determine those relationships ... In this connection, there is always the possibility that the parents reach their own agreement, at any given time, regarding custody of the child, as befits her interests.”

Lastly, the court concluded that the first applicant’s nationality was of no relevance to the case. On 3 February 2011 the Skopje Court of Appeal upheld the judgment.

After the judgment became final, on 7 March 2011 the Centre specified the contact rights of the father and allowed him to meet his daughter on the second and fourth weekend of the month, between Friday (3 p.m.) and Monday (9 a.m.).

On 1 March 2012 the Supreme Court upheld an appeal on points of law (ревизија) by the father, finding that there had been a “wrongful application of the substantive law given the established facts” (погрешна примена на материјалното право, ако се има предвид утврдената фактичка состојба). The court overturned the lower courts’ judgments and gave custody of the second applicant to the father. The first applicant was further ordered to pay maintenance of 2,000 Macedonian denars (approximately 30 euros) per month. Referring to the first applicant’s non-compliance with the Centre’s orders of 31 May and 21 November 2007, the fact that she had been convicted on three occasions, as well as to the Centre’s expert opinion, as “the competent and responsible body” (надлежен и меродавен орган), the court held that there were grounds to amend the first-instance court’s order of 10 May 2007 regarding custody of the child. Relying on sections 8, 45, 47, 76 and 80 of the Family Act (see paragraphs 45-52 below) the Supreme Court stated, inter alia:

“This court considers that after [the first-instance court’s] judgment of 10 May 2007, which granted [the first applicant] custody of [the second applicant], the child was deprived of the fundamental right to receive parental care from both parents because of the first applicant alone. That is the fundamental, most important and decisive reason for amending the judgment [of 10 May 2007] (and) granting the [father] custody of the minor [the second applicant]. The court notes that the lower courts disregarded the change in circumstances and the Centre’s expert opinion, without any legally justified and reasonable grounds. This court considers, contrary to the findings of the lower courts, that ... it is in the best interests of the minor, S., with a view to her enjoying the company of both parents, and ensuring her development, that [the father] should be given custody. His past behaviour has shown that he is a constructive and cooperative parent whose main concern is the interests of the minor, S.

This court further considers that the reason why the lower courts dismissed the appellant’s claim to have custody of [the second applicant], namely that she was three years and eight months old and that at that age she needed to stay with the mother, with whom she was biologically connected, cannot be regarded as the only relevant legal ground (единствено правно решавачка причина). The child’s age is an important ground, but it is not the only [element] which is decisive for the court. A court order determining which of the parents of a minor child should be given custody is dependent on other factors, such as the parents’ personalities; their views regarding their rights and duties in respect of their child; the rights and interests of the child, including, certainly, [the child’s] right to both parents; and the need for the child to have the best environment for [his or her] healthy mental and physical development. In the present case, and having regard to all the circumstances, not only the [second applicant’s] age, a final conclusion can be drawn that it is in the [child’s] interests, and best for her mental and physical development, that [the father] should have custody rights.”

The applicant was served with the judgment on 18 June 2012.

On an application by the first applicant, on 12 July 2012 the Centre specified how much contact she could have with her daughter. According to the order, which was based on the explicit consent of both parents, the first applicant was to live with the second applicant between Monday and Friday. Both parents were allowed a ten-day summer holiday and a five-day winter holiday with her. The order further specified who would stay with the child on religious and family holidays.

On an unspecified date, the first applicant applied to the first-instance court for custody of the second applicant. The first-instance court accepted the application and granted custody to the first applicant. On 13 March 2014 that judgment was set aside. The custody proceedings are allegedly still pending before the first-instance court.

While the custody proceedings were pending, on 10 June 2013 the father applied to the Centre to change the living arrangements to allow him to live permanently with the second applicant. The mother would have the child two weekends a month. By a decision of 3 July 2013, the Centre suspended the proceedings relating to that application until the custody proceedings launched by the first applicant had been completed.

The parties confirmed that the Centre’s order of 12 July 2012 was being complied with by all involved.


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

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in 1971 and lives in the town of Beloozerskiy (Moscow Region).

According to the Government, in the morning of 20 March 2002 the applicant, who was armed with a handgun, along with two other persons robbed a shop in Moscow. After the robbery the applicant left the shop with bags containing the stolen items – mobile phones. The two victims of the robbery (Mr G., the owner of the shop, and Mr P., a shop assistant) ran after the applicant. They managed to catch up with him and knocked him to the ground. Mr P. and Mr G. then disarmed the applicant and tied his hands with a belt. The applicant offered resistance. With the help of passers-by, Mr P. and Mr G. held the applicant down for several minutes until the arrival of the police at 11.20 a.m. The police arrested the applicant, seized his handgun and the bags containing mobile phones, and took him to the Lefortovo police station in Moscow. In the police station the applicant wrote a “voluntary confession” acknowledging his participation in the robbery.

According to the applicant, he had nothing to do with the robbery. He was walking down the street when Mr G. and Mr P. suddenly pushed him in the back, knocked him to the ground and apprehended him. He offered no resistance. The bags and the handgun did not belong to him. Then he was arrested by the police and escorted to the Lefortovo police station, where they arrived at about 12 noon. After admission formalities had been completed, including a personal search in the presence of attesting witnesses, he was taken to an office, seated on a chair and handcuffed to it. Then five or six police officers entered, including Mr S.P. and Mr R., who started to question him about the circumstances of the robbery. He denied his involvement in the robbery. Mr S.P. took out a baseball bat and threatened to use it unless he confessed to the robbery. He refused and Mr S.P. started to beat him on the head with the bat wrapped in a terry towel. The applicant then fell to the floor. Other police officers started to kick him and beat him with the bat and with rubber truncheons. He alleged that the questioning and beatings continued for about five hours. The police officers also threatened to suffocate him with a gas mask, and to use other torture instruments, such as needles and pincers. To avoid further suffering, the applicant wrote the “voluntary confession”.

The handwritten confession of 20 March 2002 contains the following statement, followed by the applicant’s signature:

“This confession statement has been written by me voluntarily, without any mental or physical pressure from police officers.

[I] have read Article 51 of the Constitution, which states that I have the right not to give explanations concerning my conduct.”

Subsequently, the applicant was placed in a temporary isolation ward (“IVS”) at the Lefortovo police station.

The following day, on 21 March 2002, the applicant and his counsel lodged complaints with the investigator, Ms K., alleging that he had been ill-treated by the police officers. The applicant’s counsel also asked the investigator to arrange a medical expert examination of the applicant in order to establish when the injuries had occurred and how they had been inflicted. The request contained a description and diagram of the applicant’s injuries.

Still on 21 March 2002, a face-to-face confrontation between the applicant and Mr G. and Mr P. took place. They testified that on 20 March 2002 they had apprehended the applicant, who had offered resistance and had tried to escape. Although they acknowledged having knocked the applicant to the ground, they denied having beaten him. They also testified that they had not seen anybody beating him during his apprehension and subsequent arrest. They stated that the applicant had not resisted his arrest by the police.

Following the above, the investigator refused the request of the applicant’s counsel for a medical expert examination, pointing out that the injuries could have been caused by Mr G. and Mr P. when they apprehended the applicant. However, the applicant was taken to a hospital for a superficial medical examination.

According to a medical certificate of 21 March 2002, the applicant received medical aid at 6.45 p.m. at Moscow hospital no. 111 in connection with “multiple traumatic lesions on the head, chest and the left side of the lower back”. It was also noted in the certificate that the applicant’s medical condition was compatible with detention in the IVS.

According to the applicant, after the medical examination he was taken to another office in the Lefortovo police station. For about thirty minutes several police officers beat him up again in an attempt to extract unspecified information of which he was not in possession.

On 22 March 2002 the applicant was placed in remand prison IZ77/1, where he was examined by a doctor. The doctor recorded the same injures as those mentioned above. He made the following entry in the applicant’s prison medical file:

“On 22 March 2002 the first medical examination was carried out. Diagnosis: multiple traumatic lesions on the head, chest and the left side of the lower back.”

On the same date the applicant lodged a complaint with the prosecutor, alleging that he had been subjected to ill-treatment by the police during his detention on 20 and 21 March 2002. The investigator, Ms K., also sent the complaints which the applicant and his counsel had lodged with her on 21 March 2002 to the prosecutor’s office for further processing.

Still on 22 March 2002 the applicant’s counsel lodged with the investigator, Ms K., a written request for a visual examination of the applicant to be carried out. According to the applicant, the request was made in order to confirm the bodily injuries inflicted on him by the police on 21 March 2002. However, the text of the request contained no reference to that. The investigator refused the request, noting that a medical examination of the applicant had already been conducted on 21 March 2002.

On 28 March 2002 the investigator, Ms K., questioned three police officers (Mr Gal., Mr Pop. and Mr Zav.) as witnesses in the applicant’s criminal case. They stated that on 20 March 2002 they had been on duty at the Lefortovo police station. At about 12 noon, following the instructions of a superior officer, they picked up a suspect from a police unit in the Aviamotornaya metro station and escorted him to the Lefortovo police station. The suspect was handcuffed. He was wearing a shoulder holster with a gun. In the station, the suspect was searched in the presence of two attesting witnesses and identified as the applicant. His gun was seized. The police officers added that a shop assistant carrying four big handbags had accompanied them to the police station. They were not asked whether the applicant had had visible injuries on his body at that time and gave no information in that respect.

On 26 April 2002 the assistant prosecutor at the Lefortovo inter-district prosecutor’s office refused to institute criminal proceedings on the grounds that the applicant’s allegations of ill-treatment were unsubstantiated. The decision read as follows:

“... On 19 March 2003 [sic] the Lefortovo inter-district prosecutor’s office of Moscow received [the applicant’s] confession to robbery ...

Later, in the course of questioning, [the applicant] complained that police officers had used physical force in order to make him confess. He could not give any information as to the names of the police officers who had arrested him, their distinguishing features, location of the office [where the alleged ill-treatment took place] or other facts.

During the inquiry it was also established that the applicant is registered with a neuropsychology clinic ... and had not been drafted into the army owing to a neurological disease. Thus, [his] allegations [of ill-treatment] have not been confirmed.”

The prosecutor’s decision contained no information concerning any actions taken to verify the applicant’s version of events. The medical documents attesting to his injuries were not mentioned either.

On an unspecified date the applicant appealed against this decision to the prosecutor’s office, complaining of the perfunctory nature of the inquiry into his allegations of ill-treatment at the police station.

Approximately two and a half years later, on 24 September 2004, the supervising prosecutor set aside the decision of 26 April 2002 refusing to institute criminal proceedings and sent the case back to the prosecutor’s office for further inquiry into the applicant’s allegations of ill-treatment.

On 7 October 2004 the Lefortovo deputy prosecutor again refused to open a criminal case. The decision read as follows:

“It follows from the applicant’s complaint that on 20 March 2002 he had been brought to the Lefortovo police station of Moscow by two police officers, [Mr] S.P. and [Mr] R. [sic], where he was handcuffed to a chair and beaten with a baseball bat wrapped in a terry towel in order to make him confess to a robbery ...

In the course of the additional inquiry the police officer at the Lefortovo police station, [Mr] S.P., was questioned. He explained that on 20 March 2002 [the applicant] had been arrested and questioned in connection with a robbery. The applicant was informed of his rights provided for by the Code of Criminal Procedure and Article 51 of the Constitution against his signature. He gave his testimony voluntarily and without any physical or psychological pressure. None of the police officers used any violence [against the applicant] during his arrest, while escorting him to the police station, or in the station.

It was impossible to question the [former] police officer at the Lefortovo police station, [Mr] R., as he had been discharged from the police. Several attempts were made to summon him to the prosecutor’s office. So, on 4 and 7 October 2004 the head of the Lefortovo police station was ordered to send a police officer to do that. According to the information submitted by the head ..., on 4 and 7 October 2004 a police officer went to [Mr] R.’s address, but no one answered the door. According to the neighbours, he had not lived in the flat for a long time.

Mr Sap., Mr Sub. and Mr Paut. [police officers at the Lefortovo police station], questioned in the course of the inquiry, stated that they had not met [the applicant] while on duty [on the relevant day]. They did not exercise physical or psychological pressure on him.

The investigator of the investigative division at the Lefortovo police station, [Ms] K., stated that she had been in charge of a criminal investigation into robbery ... The applicant was arrested on suspicion of his involvement in the crime and taken to the police station. During the initial investigative actions he made no complaints of any ill-treatment by police officers. Neither she nor any other officer used physical or psychological force against [the applicant].

In the course of the present inquiry it has been impossible to establish the involvement in the events under investigation of any other police officers who were on duty at the police station and in charge of arrestees at the relevant time.”

The medical documents confirming the applicant’s injuries were not mentioned.

On 3 December 2004 the supervising prosecutor set aside the decision of 7 October 2004 and instructed the prosecutor to question Mr R. and to arrange a medical expert examination of the injuries sustained by the applicant in March 2002.

Pursuant to a decision by the prosecutor of 7 December 2004, a medical expert examined the applicant’s medical file. In his report of 16 February 2005, he stated as follows:

“According to medical file no. 1812, at 6.45 p.m. on 21 March 2002 [the applicant] went to the outpatient trauma unit of Moscow hospital no. 111 ... In [his?] words, he was beaten up by unknown persons at about 11 a.m. on 20 March 2002. [Results of the examination]: grazes around the hairline (forehead). Violet and yellow bruising around the left shoulder blade and a strip of bruising measuring 1.5 x 6 [cm] in the lumbar area. Palpation [is] painful. Diagnosis: traumatic lesions (ушибы) in the soft tissue of the forehead, left shoulder blade and the left side of the lower back.

There are no other entries in the medical file.

Conclusions

The following injuries on [the applicant] were recorded at the trauma unit:

- grazes (ссадины) on the forehead,

- bruises (кровоподтёки) on the left shoulder blade,

- a strip of bruising on the left side of the lower back.

The above-mentioned injuries could have been caused by blunt solid objects and did not cause damage to [the applicant’s] health. The bruises resulted from contact with blunt object(s) and could have been caused by blows with the object(s) as well as by [the applicant] hitting the objects. The grazes were caused by the sliding of an object against the surface of the skin.

As the medical file did not contain a more detailed description of the bruises ... it is impossible to determine the exact time when they were sustained.”

On 17 February 2005 the Lefortovo deputy prosecutor again refused to institute criminal proceedings. His decision read as follows:

“... As it follows from the police report submitted ... the former police officer [Mr] R. has not been found despite several visits to his address in January and February this year. According to his neighbors, [Mr] R. no longer lives there and comes seldom to his flat; they do not know his place of residence.

According to the expert report of 16 February 2005 ... [the applicant] sustained bodily injuries in the form of bruises on his face and body ... As the medical documents contain insufficient information, it was impossible to establish when and how they were inflicted.

Thus, despite the measures taken, it was impossible to verify the [applicant’s] allegations.”

On an unspecified date the applicant complained to a court about the refusal to institute criminal proceedings.

On 6 February 2006 the Basmanny District Court of Moscow found that the applicant’s allegations had been duly examined by the prosecution and had been found unsubstantiated. The District Court rejected the complaint on those grounds, stating:

“It follows from the material submitted that the [applicant’s] allegations [of ill-treatment] ... have been examined in the course of the preliminary investigation. Following each inquiry a decision refusing to open a criminal case was issued.

The [applicant’s] allegations were also the subject of an internal inquiry carried out by the Internal Security Directorate of the Moscow Police Department ...

According to the results of the above inquiries, no convincing, objective and sufficient proof of unlawful conduct by the police officers has been established.

According to the conviction judgment by the Lefortovo District Court of Moscow [of 19 April 2004, see below], the [applicant’s] allegations were subject to judicial review in the course of the examination of [his] criminal case on the merits. In its judgment the court assessed them and found them ill-founded.

The judgment convicting [the applicant] has entered into legal force.

Under such circumstances, there are no grounds for granting the [applicant’s] complaint.”

On 21 August 2006 the Moscow City Court upheld the decision of 6 February 2006 on appeal, reiterating the reasoning of the District Court.

Neither the applicant nor his representative were present at the court hearings, whereas the prosecutor was present and addressed the courts.

On an unspecified date the applicant was committed for trial before the Lefortovskiy District Court of Moscow. The charges against him were brought by the Lefortovo inter-district prosecutor’s office.

During the trial the applicant repeatedly raised the issue of his alleged ill-treatment at the police station and argued that his “voluntary confession” had been obtained under duress.

The applicant’s wife testified before the trial court that when the applicant had left their home on the morning of 20 March 2002, he had been in good health.

Mr G. and Mr P. confirmed their previous testimonies: they had not beaten the applicant while apprehending him, nor had they seen anyone else beating him. They did not remember whether the applicant had had any visible injuries by the time the police arrived. However, Mr G. did not rule out the possibility that he may have caused some injuries to the applicant while apprehending him.

The police officers who had arrested the applicant and taken him to the police station also denied any ill-treatment of the applicant on their part. They stated that they did not remember whether he had had any visible injuries at the time of his arrest.

On 19 April 2004 the applicant was convicted of illegal possession of a firearm and two counts of robbery with violence, committed by an organised group. The conviction was based, inter alia, on the applicant’s confession statement of 20 March 2002. He was sentenced to eleven years’ imprisonment in a colony with a “strict regime”. The court noted in its judgment that on 20 March 2002 the victims of the robbery (Mr G. and Mr P.) had received medical aid in a hospital – Mr G. for a bite on his right hand and Mr P. for an abrasion on his right forearm.

On 29 September 2004 the Moscow City Court amended the judgment on appeal, but upheld the sentence.

Both courts rejected the applicant’s allegation of ill-treatment, referring to the results of the inquiry carried out by the prosecution authorities so far.

Neither the application lodged by the applicant for a supervisory review of his conviction nor his numerous complaints to various authorities about procedural irregularities in his criminal case were to any avail.

After the applicant’s conviction had become final, he was transferred to a “strict-regime” colony in the Republic of Komi to serve his sentence. The colony is situated about 1,500 km from his home in the Moscow Region.

On an unspecified date in 2005 the applicant asked the Federal Prison Service (“the FSIN”) to transfer him to a colony closer to his home. In its reply of 11 July 2005 the FSIN refused his request on the grounds that there were no “strict regime” colonies in the Moscow Region. The applicant complained about the refusal to the Moscow City Court, which redirected his complaint to the Ministry of Justice. The latter forwarded the complaint to the FSIN. On 14 April 2006 the FSIN wrote to the applicant informing him that his request had been refused on the same grounds. Following a further complaint submitted by the applicant, the prosecutor’s office issued a formal warning (представление) to the FSIN and asked it to remedy the breach of the applicant’s right to serve the sentence close to his home. In September 2006 the FSIN offered the applicant a transfer to a colony in the Vladimir Region, which directly borders the Moscow Region. On 7 September 2006 the applicant declined the offer for unspecified reasons.

In January 2007 the applicant applied to the Ust-Vymskiy District Court of the Republic of Komi for a transfer from the strict-regime colony to a “colony settlement” (another type of colony with less stringent conditions). On 24 January 2007 the court rejected the application without consideration and discontinued the proceedings, since the applicant had not yet acquired the right to ask for a transfer. On 3 April 2007 the Supreme Court of the Republic of Komi upheld the decision on appeal. On 18 August 2009 the prosecutor’s office lodged an application for supervisory review (надзорное представление) with the Supreme Court of the Republic of Komi and asked for a fresh examination of the applicant’s case because his transfer request had not been examined on the merits. The outcome of the proceedings is unknown.

On an unspecified date in 2010 the applicant was released on probation, having served part of his sentence.


Dmitry Dedov;Elisabeth Steiner;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant, Mr Slaven Rukavina, is a Croatian national who was born in 1964 and lives in Zagreb.

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

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

On 7 July 2007 the applicant married a certain Ms S.L.

On 22 August 2007 S.L. gave birth to their daughter L.R.

On 4 May 2009 S.L., accusing the applicant of domestic violence, left the matrimonial home and moved to a safe house. In so doing she took their daughter with her.

On 10 June 2009 S.L. brought a civil action against the applicant in the Sesvete Municipal Court (Općinski sud u Sesvetama) seeking a divorce and custody of their daughter.

After a hearing held in the presence of the parties and the representative of the Sesvete Social Welfare Centre (Centar za socijalnu skrb Sesvete), on 18 June 2009 the Municipal Court issued a decision whereby it regulated interim custody and access rights until the adoption of the final judgment on S.L.’s action. In particular, the court temporarily awarded custody to S.L. and granted the applicant access rights, allowing him to have contact with his daughter twice a month for three hours on the premises of the association Children First. The applicant appealed.

On 5 October 2009 the Municipal Court held a hearing at which the applicant did not oppose the divorce but asked the court to award him custody of his daughter. At the same hearing the court decided to refer the parties to mandatory mediation procedure, in accordance with the law. Specifically, the parties were referred to the Sesvete Social Welfare Centre. for the institution of this procedure.

After completing the mediation procedure, on 14 December 2009 the Centre submitted its report to the court suggesting that reconciliation of the parties was not possible and stating that they could not agree over custody of and contact with their daughter.

At the hearing held on 27 January 2010 the court heard the parties and invited the Sesvete Social Welfare Centre to submit its recommendation as regards custody of the applicant’s daughter and the (extent of) access rights of the non-custodial parent.

On 2 March 2010 the Zagreb County Court (Županijski sud u Zagrebu) quashed the first-instance decision of 18 June 2009 (see paragraph 8 above) and remitted the case to the first-instance court, holding that the latter had not provided sufficient reasons for its decision. In particular, the County Court found that no reasons had been given for the interim award of custody to S.L. and saw no reason why the applicant’s contact with his daughter had to be supervised.

In the resumed proceedings, on 19 April 2010 the Sesvete Social Welfare Centre informed the court that it could not make the requested recommendation (see paragraph 11 above) and that, in any event, because S.L. had changed the address, the matter was no longer in their competence but fell within the competence of the Trešnjevka Social Welfare Centre. It nevertheless recommended that both parties undergo psychiatric assessment.

On 28 April 2010 the Municipal Court invited the Trešnjevka Social Welfare Centre (hereinafter: “the local social welfare centre” or “the Centre”) to submit its recommendation as regards (the extent of) the applicant’s access rights and the manner in which they should be exercised.

On 6 May 2010 the Centre recommended that the applicant exercise his access rights under supervision every Wednesday from 5 to 7 p.m. on the premises of another association. The Centre explained that supervision was necessary because criminal proceedings for domestic violence were pending against the applicant (see paragraphs 43-46 below) and because psychiatric assessment of both parents was necessary.

At the hearing held on 11 May 2010 the applicant proposed that he be awarded custody or, in the alternative, that he be granted access rights to be exercised without supervision in his home for three hours twice per week, every other weekend, and half of all holidays.

At the hearing held on 11 June 2010 the parties agreed that the applicant would have contact with his daughter twice a week for two hours under supervision.

On 14 June 2010 the court decided to obtain a joint expert opinion from experts in psychology and psychiatry.

At the hearing held on 8 September 2010 the applicant proposed that his access rights be extended from two to four hours per week and also that he should have contact with his daughter every other weekend.

On 18 November 2010 the experts in psychology and psychiatry submitted their joint opinion. They recommended that custody be awarded to S.L. and that the applicant have contact with his daughter four times a week for two and a half hours and for two and a half hours on official holidays and other important days (birthdays, etc.), all under supervision.

On 9 December 2010 the local social welfare centre submitted its observations on the expert opinion, criticising the contact schedule proposed by the experts as unworkable. It also added that the experts had failed to explain why the applicant should exercise his access rights under supervision.

At the hearing held on 14 December 2010 the applicant objected to the expert opinion in so far as it recommended awarding custody to S.L. and supervised contact with his daughter. He also submitted an opinion obtained from another expert in psychology.

On the same day the Municipal Court issued a fresh decision regulating interim custody and access rights. In particular, the court again temporarily awarded custody to S.L. and granted the applicant access rights entitling him to have contact with his daughter twice a week (on Tuesdays and Thursdays from 4 to 6.30 p.m.) under supervision. The applicant appealed.

At the hearing held on 14 January 2011 the court heard the expert in psychiatry who had prepared the aforementioned joint expert opinion of 18 November 2010 (see paragraph 20 above).

On 1 February 2011 the Zagreb County Court quashed the first-instance decision of 14 December 2010 (see paragraph 23 above) and remitted the case.

In the resumed proceedings, on 9 March 2011 the Sesvete Municipal Court issued another decision regulating interim custody and access rights, the content of which was identical to its decision of 14 December 2010 (see paragraph 23 above). The applicant appealed.

On 14 March 2011 the applicant requested the withdrawal of the first-instance single judge sitting in the case. The hearing scheduled for 22 March 2011 was therefore adjourned until the Zagreb County Court decided on the applicant’s withdrawal request. On 13 May 2011 that court dismissed the applicant’s request.

On 7 July 2011 a multidisciplinary team of experts composed of a psychologist, a psychiatrist, a paediatrician and a social worker submitted their report on the physical and mental health of the applicant’s daughter, finding that she was healthy but that her mother’s insistence on a vegan diet posed a risk as regards her normal psychophysical development. The report was obtained at the request of the local social welfare centre in response to the applicant’s allegations that S.L. had been emotionally abusing their daughter and endangering her health by subjecting her to a vegan diet.

On 13 September 2011 the Zagreb County Court quashed the first-instance decision of 9 March 2011 (see paragraph 26 above) and remitted the case. It again held that the first-instance decision had not been sufficiently reasoned.

In the resumed proceedings, the hearing scheduled for 14 November 2011 was adjourned owing to the absence of the judge sitting in the case.

On 25 November 2011 the Sesvete Municipal Court issued a new decision regulating interim custody and access rights in a manner identical to its two previous decisions (see paragraphs 23 and 26 above).

At the hearing held on 19 December 2011 the court, in accordance with the applicant’s proposal ‒ with which the representative of the local social welfare centre agreed ‒ decided to obtain an expert opinion from another expert on the issue of the custody of the applicant’s daughter and her contact with the non-custodial parent.

On 31 January 2012 the Zagreb County Court, following an appeal by the applicant, again quashed the first-instance decision of 25 November 2011 (see paragraph 31 above) and remitted the case.

On 26 March 2012 the Municipal Court held a hearing at which it heard the parties and a representative of the local social welfare centre.

At the same hearing the Municipal Court issued yet another decision regulating interim custody and access rights in respect of the applicant’s daughter but in a manner different from its three previous decisions (see paragraphs 23, 26 and 31 above). The court firstly, as it had done before, temporarily awarded custody of the applicant’s daughter to her mother S.L. Secondly, for the period between 28 March and 31 May 2012, the court granted the applicant access rights allowing him to have contact with his daughter twice a week (on Tuesdays and Thursdays from 4 to 6.30 p.m.) under the supervision of an employee of the social welfare centre, and also without supervision every Friday from 3 to 8.30 p.m. and during the weekends of 20-22 April, 4-6 May and 18-20 May 2012. Both parties appealed against that decision

At the next hearing held on 31 May 2012 the Municipal Court issued a new decision regulating the applicant’s access rights on an interim basis. The court granted the applicant access rights twice a week (on Tuesdays and Thursdays from 4 to 6.30 p.m.) under the supervision of an employee of the social welfare centre, as well as without supervision every other weekend from 3 p.m. on Friday until 7 p.m. on Sunday The applicant appealed.

On 4 June 2012 the Municipal Court received the combined expert opinion of a psychiatrist, a psychologist and a defectologist. The experts recommended that the applicant be awarded custody of his daughter and that the mother be granted extensive access rights.

On 11 September 2012 the Zagreb County Court quashed the first-instance decisions of 26 March and 31 May 2012 (see paragraphs 35-36 above) and remitted the case.

In the resumed proceedings, at a hearing held on 12 October 2012 the Sesvete Municipal Court heard the experts in psychiatry and psychology who had prepared the expert opinion of 4 June 2012 (see paragraph 37 above). After hearing the experts, the representative of the local social welfare centre agreed with their recommendation and suggested that the court award custody to the applicant while granting the mother extensive access rights.

By a judgment of 25 October 2012 the Sesvete Municipal Court definitively awarded the applicant custody of his daughter and granted S.L. access rights to be exercised every Tuesday and Thursday from 3 to 7 p.m., every other weekend from Friday 3 p.m. to Sunday 6 p.m., every other public holiday from 10 a.m. to 7 p.m. and for half of the winter, summer and spring holidays. At the same time the court issued a decision regulating interim custody and access rights in the same way as stipulated in its judgment until such time as that judgment became final.

On 9 November 2012 S.L. appealed against that judgment.

By a judgment of 19 February 2013 the Zagreb County Court dismissed the appeal and upheld the first-instance judgment, which thereby became final.

In 2009 the Sesvete State Attorney’s Office (Općinsko državno odvjetništvo u Sesvetama) indicted the applicant before the Sesvete Municipal Court for the criminal offence of domestic violence allegedly committed against S.L. in the period between October 2006 and May 2009.

By a judgment of 13 May 2011 the Sesvete Municipal Court acquitted the applicant. It found that he had not committed the acts of violence with which he had been charged. In its judgment that court also stated that the criminal proceedings against the applicant had been instrumental in the dispute over custody of his daughter and that S.L. had used those proceedings in order to portray the applicant as a violent person and inadequate father, unworthy of that role, and thus prevent him from maintaining contact with his daughter.

Following an appeal by the State Attorney, on 5 July 2012 the Bjelovar County Court (Županijski sud u Bjelovaru), quashed the first-instance judgment and remitted the case.

It would appear that the proceedings are currently pending before the Sesvete Municipal Court as the first-instance court.

In 2010 S.L. brought a private bill of indictment (privatna tužba) against the applicant in the Sesvete Municipal Court accusing him of defamation. In particular, S.L. alleged that in his numerous statements to the media, the applicant had depicted her as mentally ill, a person with whom “something was wrong”, a fanatic and a proponent of eco-feminism.

The Sesvete Municipal Court convicted the applicant, on 22 November 2011, but the judgment was subsequently quashed by the second-instance court following his appeal and the case was remitted.

In the resumed proceedings, on 3 September 2013 the Sesvete Municipal Court acquitted the applicant, that judgment being upheld by the Rijeka County Court on 8 January 2014.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

The applicant was born in 1954 and lives in Gdynia.

On 2 January 2007 the applicant was arrested on suspicion of having committed homicide together with other persons.

On 5 January 2007 the Gdynia District Court (Sąd Rejonowy) remanded him in custody. The court stressed the need to ensure the proper conduct of the proceedings, given that extensive evidence had still to be obtained in the case. It also referred to the fact that the proceedings in question concerned several alleged accomplices. The court further relied on the likelihood that a severe penalty would be imposed on the applicant.

On 12 February 2007 the applicant applied for the preventive measure to be lifted or varied. On 15 February the District Prosecutor refused the request, finding that the grounds for the imposition of this measure remained valid.

The applicant’s detention was further extended by decisions of the Gdańsk Regional Court (Sąd Okręgowy) of 20 March, 19 June and 21 August 2007. The applicant appealed against all of those decisions. His appeals were dismissed by the Gdańsk Court of Appeal (Sąd Apelacyjny) on 4 May, 1 August and 19 September 2007 respectively. The courts repeatedly relied in their decisions on the strong suspicion that the applicant had committed the offence in question, the likelihood of a severe prison sentence being imposed on him and the need to secure the proper conduct of the investigation, especially the need to obtain further expert evidence.

On 17 September 2007 the applicant again applied for release. His application was refused on 21 September 2007 by the Gdynia District Prosecutor.

On 27 November 2007 the Gdańsk Regional Court further extended the applicant’s detention until 31 March 2008. The applicant appealed, unsuccessfully.

On an unspecified date in late 2007 a bill of indictment was lodged with the Gdańsk Regional Court. The applicant was charged with homicide committed together with two other co-accused.

The applicant’s detention was continually extended during the course of the trial.

On 4 August 2008 the applicant requested the court to release him on health grounds. On 19 August 2008 the trial court refused his request. It relied on the medical certificate issued by a prison doctor, stating that the applicant could be adequately treated in detention.

On 25 September 2008 the Gdańsk Regional Court gave judgment (case no. IV 457/07). The applicant was convicted as charged and sentenced to fifteen years’ imprisonment. He lodged an appeal.

On 13 May 2009 the Gdańsk Court of Appeal quashed the impugned judgment and remitted the case for retrial (case no. II AKa 45/09).

The applicant’s detention was continually extended by the domestic courts, pending his appeal and in the course of the retrial. In particular, on 24 August 2009 the Gdańsk Regional Court extended his detention until 31 December 2009. The applicant appealed against this decision. On 23 September 2009 the Gdańsk Court of Appeal upheld the impugned decision, finding that the reasonable suspicion that the applicant had committed the offence in question persisted, despite the fact that the judgment convicting the applicant had been quashed. The Court of Appeal further considered that the Regional Court had correctly relied on the severity of the anticipated penalty as the principal ground for the applicant’s continuing detention and on the risk of the obstruction of the proceedings.

On 16 March 2010 the Gdańsk Regional Court gave judgment (case no. XIV K 48/09). The applicant was again convicted as charged and sentenced to twelve years’ imprisonment. The applicant lodged an appeal.

On 10 November 2010 the Gdańsk Court of Appeal quashed the judgment and remitted the case for retrial (case no. II AKa 277/10).

On 23 March 2012 the Gdańsk Regional Court further extended the applicant’s detention, reiterating the grounds given in its initial decisions. The applicant appealed unsuccessfully.

During the retrial proceedings the Gdańsk Regional Court held fifteen hearings in total.

On 12 July 2012 the court gave judgment (case no. XIV K 210/10). The applicant was again convicted and sentenced to twelve years’ imprisonment. He lodged an appeal against that judgment.

On 26 October 2012 the Gdańsk Regional Court extended the applicant’s detention until 30 December 2012. On 13 November 2012 the Gdańsk Court of Appeal upheld the impugned decision. It considered that the applicant’s involvement in the offences with which he had been charged had been supported by the non-final judgment of 12 July 2012, in which he had been convicted and had received a severe sentence. The court also held that further detention on remand was the only preventive measure capable of securing the proper course of the proceedings until the delivery of a final judgment.

On 6 June 2013 the Gdańsk Court of Appeal partly allowed the applicant’s appeal (case no. II AKa 84/13). The appellate court upheld the conviction but reclassified the offence as involuntary manslaughter (nieumyślne spowodowanie śmierci). The applicant’s sentence was reduced to four years’ imprisonment. The applicant was released on the same day.