CASE OF SALIKHOVA AND MAGOMEDOVA v. RUSSIA

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

Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicants were born in DATE and DATE respectively and live in GPE , GPE , GPE . They are the mother and the wife of PERSON , who was born in DATE .

At the material time Mr Sakhrab Abakargadzhiyev and the applicants , along with other relatives , lived together at CARDINAL Magomed Dalgata Street , GPE , ORG . According to the applicants for DATE prior to the events in question Mr PERSON had been suspected of illegal activities and had been followed by PERSON law enforcement agencies , in particular by ORG of ORG of the ORG ( “ the ORG ” ) ( Центр по Борьбе с ORG по PERSON ( ЦПЭ ) ) .

At TIME on DATE Mr LOC drove in his white ORG car along FAC to visit his relatives , who lived about a QUANTITY - minute drive from his house in GPE . At TIME his car was stopped and he was abducted by a group of CARDINAL armed men who were driving CARDINAL civilian vehicles : a silver - coloured VAZ-CARDINAL , which had a registration number which partially read “ ACARDINAL ” , and a black PERSON . The men were dressed in civilian clothing and were masked . The applicants’ relative , PERSON Ub . , called Mr PERSON during the abduction and upon hearing him screaming immediately informed the applicants that there was a problem . Directly after that Mr Ub . Ub . , together with the first applicant , went along Mr PERSON route and found his car in the street with CARDINAL police vehicles and officers from the Sovetskiy district police station in GPE ( “ the Sovetskiy ROVD ” ) ( PERSON районный отдел внутренних дел ( ORG ) ) next to it . The police told the first applicant and PERSON Ub . that they had arrived TIME and that TIME prior to their arrival a man had been abducted . They told the applicant and PERSON Ub . to wait at home for a telephone call from the police and took Mr PERSON ’s car to the LOC of the Sovetskiy ROVD .

DATE after the abduction , that is to say DATE , police officers from the ORG searched the applicants’ house .

DATE after the events , on or around DATE , the applicants obtained video footage of the abduction from a local resident ( see paragraph CARDINAL below ) . They recognised CARDINAL of the abductors by his voice as the ORG officer named “ PERSON ” and informed the authorities of this .

On DATE a burnt male corpse was found QUANTITY from GPE in the NORP district in ORG .

On DATE the body was identified by the authorities as that of Mr Sakhrab Abakargadzhiyev ( see paragraph CARDINAL below ) . The applicants and their relatives disagreed with that conclusion ( see paragraphs DATE below ) .

According to the applicants , they have had no news of Mr Sakhrab Abakargadzhiyev since his abduction .

The Government did not dispute the facts as presented by the applicants , but denied any involvement of ORG agents in the incident .

NORP In reply to the ORG ’s first request for a copy of the contents of the investigation file , the Government provided CARDINAL copied pages of documents from it reflecting steps taken by the authorities between DATE and DATE .

NORP In reply to the ORG ’s further request for a copy of the contents of the investigation file , the ORG submitted CARDINAL copied pages of the relevant documents , some of which were illegible . The contents of the legible documents can be summarised as follows .

NORP Immediately after the incident the applicants went to PERSON , informed the police of the abduction and gave statements to the police investigator . They also conducted their own search for eye witnesses to the incident and found several of them in nearby shops and blocks of flats . The applicants informed the investigators of their findings ( see , for example , paragraph CARDINAL below ) .

On DATE and then on CARDINAL DATE the applicants complained of the abduction to the Sovetskiy district investigations department ( “ the investigations department ” ) . In their second complaint they stated that , in their opinion , the police were wilfully postponing steps in the investigation of the incident .

On DATE the investigators examined the crime scene . No evidence was collected .

On DATE the investigators examined the car from which Mr Sakhrab Abakargadzhiyev had been abducted ; CARDINAL fingerprints were collected from the chassis of the vehicle . On DATE a forensic examination of the fingerprints was ordered .

On DATE the investigations department opened criminal case no . CARDINAL into the abduction . The applicants were informed thereof .

On DATE the investigators granted Mr PERSON father , Mr PERSON , victim status in the criminal case and questioned him . His statement was similar to the applicants’ account submitted to the ORG . The witness stated , amongst other things , that he had not witnessed the abduction and had learnt of it from his relatives . According to the witness , his son had no unpaid debts or personal enemies and had the mobile telephone number CARDINAL - CARDINAL - CARDINAL - CARDINAL - CARDINAL .

On DATE the investigators questioned Mr Ub . Ub . whose statement concerning the incident was similar to the ORG account before ORG .

According to the applicants , shortly after their initial complaint to the authorities they identified witnesses to the incident and informed the investigators accordingly . As a result , on DATE the investigators questioned PERSON . who stated that at about CARDINAL.CARDINAL p.m. on DATE he had been smoking on his balcony at LOC when he had heard men arguing . He had looked out and seen a group of CARDINAL or CARDINAL masked men with pistols in their hands . CARDINAL of those men had been trying to pull the driver out of a white ORG car but the latter had been resisting . Then the men had started beating him and had somehow managed to pull him from his seat into the back seat of the car . CARDINAL of them had got inside the vehicle . In TIME the masked men had carried the immobilised driver out of the car and put him in a silvercoloured PERSON . Then all of the masked men had driven off in that car and a black VAZ-CARDINAL car . Immediately afterwards the witness had gone outside and asked a passerby to call the police . In TIME the police had arrived at the scene . According to the witness , he had recorded the abduction on his mobile telephone camera and then copied it to a CD .

On DATE , DATE , the investigators seized the abduction footage made by PERSON . PERSON . On DATE they examined the video , the contents of which were similar to the applicants’ account of the abduction submitted to the ORG .

On DATE the investigators questioned the second applicant ’s mother , PERSON , whose statement concerning the abduction was similar to the applicants’ account before ORG . She had not witnessed the incident and had learnt of it from her relatives .

On DATE , DATE , the investigators questioned the first applicant , whose statement was similar to the applicants’ submission before the ORG . In addition the investigators obtained samples of the first applicant ’s saliva for DNA testing and for its database .

On DATE the investigators ordered a comparison of the first applicant ’s DNA samples with those from the DNA database .

On DATE the investigators again questioned the first applicant who stated that in DATE and DATE she had received text messages on her telephone from CARDINAL unknown numbers . The first message contained the following :

“ Congratulations , your son became a shahid on the path of jihad in the ORG district ... May Allah accept his shahada and take him to the gardens of GPE . PERSON ! ”

The second message contained the following :

“ ... Your son and son - in - law were set up by your neighbour PERSON who worked for the CARDINALth department [ of the police ] . If you do n’t believe it , have your men follow him . I could not do nothing about it as I have got nobody who could help me eliminate him . This beast spares no one . I hope you will believe me as I have got no other way out . My brother was the only tower of strength in my life . Friend . ”

On DATE , DATE , the investigators seized the first applicant ’s mobile telephone to examine the above messages . It was established that the first message had been received on DATE from a mobile telephone located DATE in FAC in GPE ; the second message – received on DATE came from a different telephone number .

On DATE the investigators requested ORG in GPE to grant them permission to obtain from the relevant mobile phone operator the call logs of Mr PERSON telephone number ( CARDINAL - CARDINAL - CARDINAL - CARDINAL - CARDINAL ) DATE and DATE .

On DATE the investigators received the court ’s permission and examined the call logs of Mr Sakhrab Abakargadzhiyev ’s telephone calls . According to the logs , at CARDINAL TIME on DATE he had received a telephone call from PERSON Ub and after that the handset had been switched off . On DATE a DATE call had been received on Mr PERSON number ; the caller had been located in the area of LOC in GPE .

On DATE the investigators again questioned the first applicant who stated that on TIME CARDINAL DATE she had received a call on her mobile telephone from a man who had not introduced himself but had stated that he was an officer of ORG ( “ the ORG ” ) ( ORG ( ORG ) ) and that he was holding Mr PERSON . The man , who had called from DATE - CARDINAL - CARDINAL - CARDINAL , had told her that he would release her son in DATE in exchange for MONEY ( RUB ) . The applicant had passed the telephone to her husband who had told the man they had had MONEY and that they would pay RUB CARDINAL at once and then RUB CARDINAL after their son ’s release . The man had told them that Mr Sakhrab PERSON was being held about a TIME drive from GPE and that he was in a bad state of health . TIME on that date ( DATE ) the first applicant ’s husband and the man had called each other several times . The applicant ’s husband had been ordered to deposit RUB CARDINAL in the account of mobile telephone number CARDINAL - CARDINAL - CARDINAL - CARDINAL - CARDINAL , which he had done on DATE . The man had confirmed receipt of the money and told the applicant and her husband to wait for his call . But he had not called back and his telephone number had been disconnected since DATE .

On DATE the forensic experts informed the investigators that the fingerprints collected from Mr PERSON car ( see paragraph CARDINAL above ) were not fit for identification . The applicants were informed thereof on DATE .

On DATE the investigators requested that ORG in PERSON grant them permission to obtain the call logs of telephone number CARDINAL - CARDINAL - CARDINAL - CARDINAL - CARDINAL ( used by the alleged ORG officer on DATE ) DATE and DATE . Permission was received on DATE .

On DATE the investigators searched Mr PERSON house . No evidence was collected .

On DATE the investigators questioned the second applicant whose statement concerning the abduction was similar to that submitted by the applicants to the ORG . She had not witnessed the incident but had learnt of it from her relatives .

On DATE the investigators received the call logs of the telephone number CARDINAL - CARDINAL . According to these logs , the caller who had contacted the first applicant and her husband on DATE ( see paragraph CARDINAL above ) had been located in GPE .

On DATE the first applicant requested the investigators to order an expert analysis of the voice of CARDINAL of the abductors from the video footage of the incident ( see paragraph CARDINAL above ) ; according to her , Mr Ub . Ub . had identified that voice as belonging to a ORG officer named PERSON whom he would be able to identify if necessary . The applicant requested that the investigators examine the video and compare the abductor ’s voice to that of PERSON .

On DATE the investigators granted the first applicant ’s request and ordered that steps be taken to identify the ORG officer PERSON and to analyse the voice on the video . The applicants were informed thereof .

On DATE the investigators questioned Mr GPE who stated that he lived next to the scene of the abduction but had not witnessed it and learnt of it from his neighbours .

On DATE the investigators questioned police officer PERSON who stated that on DATE he had been on duty at LOC and had been called to the abduction scene . According to the witness , the investigators had examined the crime scene and had towed away the white ORG car left behind after the abduction to their police station . After DATE the car had been picked up by an unnamed individual .

On DATE the investigators questioned PERSON , an officer with the Dagestan CPE , who stated that he did not have information pertaining to the abduction , but that he had participated in the search of the applicants’ house in DATE ( see paragraph CARDINAL above ) . The witness also confirmed that in DATE , DATE after the search , he had spoken with PERSON Ub . who had visited the ORG with his son Mr A.Ub . , who had been suspected of involvement in illegal armed groups . Mr Ub . Ub . had requested his assistance in the criminal case against his son PERSON . but the witness had refused to help him . Due to the passage of time the witness could not recall where he had been on TIME CARDINAL DATE but stated that he had not met Mr PERSON and had not participated in a special operation against him . The NORP mobile telephone number was CARDINAL - CARDINAL - CARDINAL - CARDINAL - CARDINAL and he had been using that number since DATE .

On DATE the investigators again questioned the first applicant who stated that , in her opinion , her son had been abducted by special forces servicemen or law - enforcement officers as they had suspected Mr PERSON of aiding members of illegal armed groups . DATE after the abduction the ORG officers had searched her house ( see paragraph CARDINAL above ) . According to the applicant , Mr Ub . Ub . had met officer PERSON in DATE when he had gone to the ORG with his son .

On DATE the investigators received the call logs of the telephone number used for the deposit of RUB CARDINAL ( see paragaph CARDINAL above ) . According to the list , on DATE the caller had been located in GPE , GPE .

On DATE the investigators ordered an expert analysis of the voices in the abduction video ( see paragraph CARDINAL above ) . It can be seen from the documents submitted that on an unspecified date between CARDINAL and CARDINAL DATE the experts concluded that the voice on the footage was not fit for identification ( see paragraph CARDINAL below ) .

On DATE or DATE the investigators requested ORG in GPE to grant them permission to obtain the call logs for TIME on DATE from the telephone number belonging to officer PERSON ( see paragraph DATE above ) . This was granted on DATE .

On DATE the Dagestan Ministry of the Interior conducted an internal inquiry into the applicants’ allegations of the involvement of the ORG officers in the abduction and concluded , amongst other things , the following :

“ ... On DATE PERSON complained of the abduction of his son Mr PERSON to ORG ...

... According to the witness statements of the first applicant , PERSON , Mr Ub . Ub . and Mr A.Ub . , enclosed with the complaint , officers of the ORG were involved in the abduction ... In their statements PERSON Ub . and Mr PERSON directly indicate the ORG officers PERSON . PERSON and PERSON ; the latter they had been able to identify from the video posted on PERSON under the title “ Abduction of Mr S. Abakargadzhiyev ” .

According to the statement of the ORG operational search officer PERSON given to the inquiry , ... in DATE he had participated with his colleagues from the ORG in the search of Mr PERSON home ... After the search , prior to the departure , he and his colleagues had asked Mr PERSON relatives to ensure that PERSON . would appear at the ORG . The latter , who had been related to Mr Sakhrab Abakargadzhiyev , had been listed in the ORG ’s database as a supporter of terrorist groups , had been told to report to the ORG to help with enquiries ... DATE Mr A.Ub . had been arrested and charged with the same crimes for which he had been investigated . After the arrest , the father of PERSON . , Mr Ub . Ub . , had asked the witness and PERSON . PERSON to assist him in persuading the authorities to be lenient towards his son , but his requests had been refused by the officers ... On the date of Mr Sakhrab Abakargadzhiyev ’s abduction the witness had taken a detainee , PERSON , to the court ... he had had nothing to do with the abduction . In addition , the witness explained that Mr PERSON had been an ardent supporter of Wahabiism and on several occasions had aided members of ORG terrorist groups , in particular , PERSON . , and had participated in the attack on PERSON traffic police officers near GPE in DATE ...

When questioned , the head of the operational search divison of the ORG CPE , PERSON . PERSON , confirmed the above statement and explained that neither he nor his subordinate officers had had anything to do with the abduction . Mr Ub . Ub . had told lies about them as he and the servicemen of his department had arrested his son Mr A.Ub . in connection with the investigation of criminal case no . DATE .

According to the evidence submitted by the ORG , they had obtained information concerning planned attempts on the lives of law - enforcement officers committed by Mr PERSON , PERSON . , PERSON and Mr Sakhrab Abakargadzhiyev on DATE . The ORG officers did not arrest or detain Mr PERSON and no operational measures were taken against him ...

... It can be seen from the case file that according to the expert analysis of the video “ Abduction of S. Abakargadzhiyev ” it was imposssible to analyse and identify the voices therein ...

Thus , the internal inquiry was not able to verify the first applicant ’s complaints concerning the unlawful actions of the ORG officers owing to significant discrepancies between the statements of those questioned during the inquiry ; those discrepancies could be resolved only within the framework of a criminal case ... ”

On DATE the investigators received the call logs of officer PERSON mobile telephone for DATE , according to which on that date his telephone had been located in GPE .

DATE . On DATE the investigators questioned forensic expert Mr GPE , who had fingerprinted the white ORG car ( see paragraphs CARDINAL above ) . According to the witness , nobody else had touched the vehicle until after the examination .

On DATE the investigation was suspended . The applicants were informed thereof .

On DATE the investigation was resumed and the applicants were informed accordingly . The decision stated , amongst other things , the following :

“ ... the investigation established that Mr PERSON corpse had been found QUANTITY north - west of GPE village ... In connection with this , on CARDINAL DATE ORG opened criminal case no . CARDINAL ... ”

On DATE the investigators examined the contents of criminal case file no . CARDINAL . According to the contents , there was a PERCENT DNA match between the DNA of the burnt corpse and that of the first applicant taken from the DNA database , as shown by the results of a forensic examination of DATE .

On DATE , having established that the burnt body found on DATE had been that of Mr Sakhrab Abakargadzhiyev , the investigations in criminal cases nos . CARDINAL and DATE were joined by the investigators under the number CARDINAL . The decision stated that the body had been found in a VAZ-CARDINAL vehicle in which a home - made explosive device had been detonated .

On an unspecified date DATE the investigators asked the first applicant to identify the body found on DATE . According to the applicant , she was not shown the actual corpse , but a photograph of it . She was able to tell from the photograph that it was not the body of her son Mr Sakhrab PERSON : according to the police , the corpse had CARDINAL gold teeth ; Mr PERSON did not have any .

On DATE the first applicant ’s husband asked the investigators to question him and the first applicant again about the circumstances of the abduction , to order another expert forensic examination of the corpse and to further examine and identify the voice of PERSON recorded by PERSON Ub . The outcome of this request is unknown .

It appears from the documents submitted that the proceedings are still pending .

The applicant maintained that it was beyond reasonable doubt that the men who had abducted their relative Mr PERSON on DATE had been ORG agents . In support of their allegation they referred to the following : the abduction had taken place in broad daylight , in an area surrounded by ORG cameras , in the presence of witnesses ; the perpetrators had acted openly , without fear of arrest by law - enforcement authorities ; the authorities had wilfully delayed the investigation of the incident by conducting , for instance , the crime scene examination DATE after the ORG complaints about it ( see paragraphs CARDINAL and CARDINAL above ) and by taking further steps either belatedly or with major deficiences ( see , for example , paragraphs CARDINAL above ) ; the ORG officer PERSON had been present in the vicinity of the abduction scene during the incident ( see paragraphs CARDINAL and DATE above ) and the applicants had informed the investigators of his and his colleagues’ alleged involvement in the crime ; Mr PERSON had been suspected of involvement in illegal activities and , therefore , the authorities had had motives for his abduction ( see paragraphs CARDINAL , CARDINAL and DATE above ) . The applicants also referred to a number of abductions allegedly perpetrated by ORG authorities in ORG DATE in similar circumstances , where some of the abducted men had subsequently been found in ORG custody .

The Government denied any involvement of ORG agents in the events . In particular , they stated that only in DATE had the first applicant alleged that law - enforcement officers had been involved in the incident ( see paragraph CARDINAL above ) .

The ORG points out that a number of principles have been developed in its case - law as regards applications in which it is faced with the task of establishing facts on which the parties disagree . As to the facts that are in dispute , the ORG reiterates its jurisprudence requiring the standard of proof “ beyond reasonable doubt ” in its assessment of evidence ( see ORG v. GPE , no . CARDINAL/CARDINAL , § CARDINAL , ORG CARDINAL-VII ) . Such proof may follow from the coexistence of sufficiently strong , clear and concordant inferences or of similar unrebutted presumptions of fact . In this context , the conduct of the parties when evidence is being obtained has to be taken into account ( see ORG and Others v. GPE , no . CARDINAL , § CARDINAL , ECHR CARDINALVIII ) .

The ORG is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first - instance tribunal of fact , where this is not rendered unavoidable by the circumstances of a particular case ( see , for example , ORG v. GPE DATE . ) , no . CARDINAL , DATE ) . Nonetheless , where allegations are made under LAW and CARDINAL of the Convention , the ORG must apply a particularly thorough scrutiny ( see , mutatis mutandis , PERSON v. GPE , DATE , § CARDINAL , Series A no . CARDINAL , and ORG , cited above , § CARDINAL ) even if certain domestic proceedings and investigations have already taken place .

ORG reiterates that it has noted the difficulties for applicants to obtain the necessary evidence in support of allegations in cases where the respondent Government are in possession of the relevant documentation and fail to submit it . Where the applicant makes out a prima facie case and the ORG is prevented from reaching factual conclusions owing to the lack of such documents , it is for the ORG to argue conclusively why the documents in question can not serve to corroborate the allegations made by the applicants , or to provide a satisfactory and convincing explanation as to how the events in question occurred . The burden of proof is thus shifted to the ORG and if they fail in their arguments , issues will arise under LAW ( see GPE v. GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE , and Akkum and Others v. GPE , no . LOC , § CARDINAL , ORG CARDINALII ) .

DATE . The ORG notes that in reply to its request for a copy of the investigation file into the abduction of Mr Sakhrab Abakargadzhiyev the Government produced the relevant documents from the file ( see paragraphs CARDINAL and CARDINAL above ) .

The ORG has found the NORP State authorities responsible for a number of extra - judicial executions or disappearances of civilians perpetrated in GPE at DATE and DATE , even in the absence of final conclusions from the domestic investigation ( see ORG and GPE v. GPE , nos . LANGUAGE and QUANTITY , DATE ; PERSON and Others v. GPE , no . MONEY , ECHR CARDINAL-XIII ; Estamirov and Others v. GPE , no . MONEY , DATE ; and GPE v. GPE , no . CARDINAL/CARDINAL , CARDINAL DATE ) . It has done so taking into account the length of time during which the applicants had not had any news of their missing relatives and on the basis of witness statements and other documents attesting to the presence of military or security personnel in the area concerned at the relevant time . It has relied on references to military vehicles and equipment , on witness accounts , on other information on security operations and on the undisputed effective control of the areas in question by the NORP military . On that basis , it has concluded that the areas in question were “ within the exclusive control of the authorities of the ORG ” in view of the military or security operations being conducted there and the presence of servicemen ( see , mutatis mutandis , Akkum , cited above , § CARDINAL , and PERSON v. GPE , no . GPE , § CARDINAL , DATE ) .

NORP However , in the present case the circumstances in which the events occurred do not warrant an unequivocal conclusion that ORG agents were responsible for the abduction of the applicants’ relative for the following reasons . As regards the general background , the events complained of took place not in GPE , but in PERSON in DATE , and there was neither a curfew in place nor any restrictions on driving civilian vehicles . Noting that the applicants’ version of the events was based on the statements of those who had not witnessed the abduction themselves , except for the statement of PERSON . , that the video of the abduction had not assisted in the identification of the culprits ( see paragraphs CARDINAL and QUANTITY above ) and taking into account that the abductors drove ordinary vehicles and were wearing balaclavas and civilian clothing , the ORG has little evidence to rely upon . However , bearing in mind that after the events the applicants received information alleging knowledge of their relative ’s whereabouts which they submitted to the authorities with a delay varying from DATE to DATE ( see , for example , CARDINAL and DATE above ) , along with the subsequent discovery of the burnt body and the experts’ evaluation concerning its identity ( see paragraphs DATE and CARDINAL above ) , the ORG is not persuaded that the abduction of the applicants’ relative by ORG agents is the only possible explanation of the events in question .

Accordingly , the information in the ORG ’s possession does not suffice to establish that the perpetrators belonged to the security forces or that a “ security operation ” had been carried out in respect of Mr Sakhrab Abakargadzhiyev .

To sum up , it has not been established to the required standard of proof that ORG agents were implicated in the disappearance of Mr PERSON ; nor does the ORG consider that the burden of proof can be entirely shifted to the Government .


Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court;Fair hearing;Reasonable time)

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Marko Bošnjak;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE in LOC .

On CARDINAL DATE the applicant was arrested and remanded in custody pending the outcome of the investigation and trial .

On DATE ORG of the Luhansk Region convicted the applicant and his CARDINAL co - defendants of armed robbery committed in an organised group , banditry and illegal possession of firearms in connection with a series of armed attacks committed in LOC of LOC . The court sentenced the applicant to DATE and QUANTITY months’ imprisonment , to be counted from DATE ( the date on which he had been arrested ) , and to confiscation of his property . It ordered that the applicant remain in detention pending appeal .

On DATE the applicant ’s sister , acting in the capacity of his lay defender , appealed against the judgment to ORG ( “ the Court of Appeal ” ) . Other parties lodged appeals as well .

From DATE , armed groups started to seize official buildings in the GPE and GPE regions and announced the creation of self - proclaimed entities known as the “ GPE ” and the “ GPE ” ( “ ORG ” and “ LPR ” ) .

NORP In response , on DATE ORG , who consider those armed groups to be terrorist organisations , authorised the use of force against them in the legal form of an “ anti - terrorist operation ” .

As a result of extensive military action , DATE ORG forces recaptured some territory in the GPE and GPE regions , but certain parts of the regions have remained outside of the ORG ’s control since that time . The parts of LOC not under the ORG ’s control include LOC , where the offences for which the applicant was convicted were committed , PERSON , where the applicant was tried and convicted , and GPE , where ORG was located .

A ceasefire was agreed upon within the framework of ORG composed of representatives of GPE , GPE and ORG in LOC ( hereinafter , “ the OSCE ” ) . An obligation to uphold the ceasefire and to withdraw heavy weaponry from the contact line was enshrined in the GPE Agreements and ORG for their LAW and DATE respectively . However , numerous violations of the ceasefire have continued to occur ever since .

At the time the events of DATE and DATE were unfolding , the applicant was detained in Starobilsk remand prison , located in the part of GPE that has remained under the control of ORG . He remained in that prison until his release ( see paragraph CARDINAL below ) .

On DATE ORG , which was still sitting in GPE , failed to hear the applicant ’s case because the applicant could not attend the hearing on account of the armed conflict . A hearing by video conference was scheduled for DATE , but it did not take place because as from CARDINAL DATE the electricity and water supply and telephone communications were cut off at ORG ’s building in GPE . At some point around that time , the judges of the court moved to the Government - controlled territory . The case files , however , remained at the court ’s building in GPE .

On DATE the President of ORG , acting under LAW DATE ( see paragraph CARDINAL below ) , reassigned jurisdiction over cases which would normally have fallen within the jurisdiction of FAC to ORG of GPE ( “ the Lysychansk Court ” ) , located in the NORP area .

On DATE the President of GPE issued a decree defining Sieverodonetsk in GPE , also located in the Government - controlled area , as the seat of ORG instead of GPE .

On DATE the applicant complained to ORG about the delay in the examination of his appeal .

On DATE the applicant lodged a similar complaint with the office of the Parliamentary Commissioner for Human Rights .

On DATE ORG informed the applicant that his criminal case file was in GPE , which was not under the ORG ’s control , and that this prevented the court from examining his case . In order to resolve the problem , amendments would have to be made to the relevant legislation .

On DATE the Parliamentary Commissioner ’s office responded that there was no way to obtain case files from the territory that was not under the ORG ’s control , but that the Commissioner was working with the courts , the prosecutor ’s office and other authorities to find a way to resolve the problem .

NORP In response to another complaint from the applicant , on DATE ORG informed him that it was unable to apprise him of the state of proceedings in his case because his criminal case file was in the court archives in GPE , to which there was no access .

On DATE ORG PERSON ) adopted a declaration which read , insofar as relevant , as follows :

“ PERSON from Obligations

In view of the armed aggression of GPE against GPE involving both the regular ORG Russian Federation and illegal armed groups guided , controlled and financed by GPE , since DATE an anti - terrorist operation has been conducted by the units of ORG of GPE , ORG of GPE and ORG in certain areas of the GPE and GPE regions ( oblasts ) of GPE . The anti - terrorist operation is part of GPE ’s inalienable right to individual self - defense against aggression under LAW . GPE , which has occupied and is exercising control over certain areas of the GPE and GPE regions , is fully responsible for respect for and protection of human rights in these territories under international humanitarian law and international human rights law .

GPE ongoing armed aggression against GPE , together with war crimes and crimes against humanity committed both by the regular ORG and by illegal armed groups guided , controlled and financed by GPE , constitutes ‘ a public emergency threatening the life of the nation’ in the sense of ... LAW .

In order to safeguard the vital interests of society and the ORG in response to the armed aggression of GPE , ORG , ORG of GPE and other authorities have to adopt decisions which constitute a derogation from certain obligations on the part of GPE under LAW and LAW .

On DATE , ORG adopted ORG and Criminal Proceedings in connection with the Antiterrorist Operation . The PERSON changed , for the duration of the anti - terrorist operation , the territorial jurisdiction over cases amenable to the courts located in the anti - terrorist operation area and , concerning the situations where it is impossible to conduct a pre - trial investigation in that area , investigative jurisdiction over criminal offences perpetrated there . The application of this law makes it necessary for GPE to derogate from certain of its obligations under LAW . However , the courts and pre - trial investigation bodies are not currently functioning in certain areas of the GPE and GPE regions because of the armed aggression of GPE and the actions of terrorist groups backed by GPE . That is why GPE has had to change the territorial jurisdiction of the courts and investigative jurisdiction in respect of criminal offences in conditions where the life of the nation is threatened .

On DATE ORG to ORG transmitted to the Secretary General of ORG a note verbale containing the text of the above declaration and its translation .

On DATE the applicant applied to ORG for restoration of the lost case file ( відновлення матеріалів втраченого провадження ) .

On DATE ORG held a hearing in the presence of a prosecutor but in the applicant ’s absence . The prosecutor stated that the case file in question was not in the area of the GPE controlled by ORG and that it was therefore not possible to furnish the court with any of the material therein . The court found that there was insufficient material available to restore the file . It discontinued the examination of the application , reminding the parties that if sufficient material was provided , the question of restoration could be reexamined .

On DATE ORG again informed the applicant that examination of his case required amendments to the legislation . In this context , it referred to draft law no . CARDINAL ( see paragraph CARDINAL below ) .

On CARDINAL occasions DATE and DATE the applicant applied for release , arguing that his detention was unlawful because his conviction was not final and “ would never become final ” .

The Starobilsk Court of the Luhansk Region rejected the applicant ’s applications for release , finding that , contrary to his submissions , there were sufficient legal grounds for continuing to detain him , since he had been convicted and his case was pending before ORG . The most recent of those decisions was taken on DATE . No appeal lay against them .

On DATE the applicant applied to ORG for release under LAW of DATE ( see paragraph CARDINAL below ) .

On DATE ORG released the applicant . It considered that , as he had been held in pretrial detention since DATE , under the PERSON of DATE he could be deemed to have already served his sentence .

NORP The regional prosecutor ’s office appealed , arguing that the applicant ’s conviction had not become final because his domestic case file had remained inaccessible in a non - Government - controlled area and appeals against his conviction were still pending before ORG . According to the prosecutor ’s office , only convicted persons whose convictions had become final could benefit from the application of the new legislation . By contrast , those whose convictions were not final could be released only once the period for which they had been detained had exceeded CARDINAL of the maximum sentence for the offence of which they stood accused . Since the applicant was accused of offences , in particular banditry and aggravated robbery , the maximum punishment for which was DATE imprisonment ( see paragraph CARDINAL below ) , and he had served much CARDINAL of that term , he could not be released .

On CARDINAL DATE ORG upheld ORG ruling of CARDINAL DATE ( see paragraph CARDINAL above ) .

Following communication of the case to the respondent Government , on CARDINAL DATE the regional prosecutor ’s office informed the office of ORG that , apart from the applicant , there were CARDINAL other individuals still held in the region ’s remand prisons against whom criminal proceedings were still pending but whose case files were in the non - Government - controlled areas . The prosecutor ’s office stated that it had requested the assistance of the police in gathering the documentation necessary to restore the relevant files . That work had allowed the prosecutor ’s office to gather sufficient material to ask the courts to consider the case against CARDINAL of those individuals . The work was ongoing concerning CARDINAL other defendants . Assistance had also been requested from ORG , which operated in both the Government - controlled and the non - Government - controlled areas , in facilitating the transfer of files from ORG building in GPE .

At DATE information made available to ORG ( DATE ) , the applicant ’s appeal against his conviction remained pending before ORG .


MC KEVITT AND CAMPBELL v. THE UNITED KINGDOM

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

The first applicant , Mr PERSON , is an NORP national who was born in DATE and is currently imprisoned in GPE , GPE . The second applicant , Mr PERSON , is an NORP national , who was born in DATE and is currently detained in GPE in GPE . Both applicants are represented before the ORG by PERSON of ORG Law - LLP , a lawyer practising in GPE .

ORG ( “ the Government ” ) are represented by their Agent , PERSON of ORG .

The Government of GPE were notified of the applications and were asked if they wished to exercise their right to intervene pursuant to LAW . However , they did not seek to exercise this right .

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

At CARDINAL.CARDINALpm on CARDINAL DATE a QUANTITY bomb exploded in the centre of GPE , a town in GPE , GPE . As a result of the explosion , CARDINAL people were killed , including a woman pregnant with twins , and CARDINAL people were injured . In addition , there was extensive damage to property in the town . The incident was the single worst atrocity in the course of DATE of violence which occurred in GPE from DATE .

TIME before the blast , CARDINAL warning calls had been made by callers using a code word previously used by an organisation calling itself Óglaigh na ORG , otherwise known as “ ORG ” ( “ the Real IRA ” ) . The callers gave conflicting and misleading information about the location of the bomb .

Following the blast , responsibility was claimed by ORG . However , no individual has been convicted of causing the bomb or the consequent deaths , injuries and property damage .

Many of the families who suffered as a result of the GPE bomb brought an action for damages for trespass to the person , intentional infliction of harm and conspiracy to injure against the parties they believed to be responsible for the incident . Those parties included ORG as an organisation and the CARDINAL applicants , who they believed were responsible for the planning , production , planting and detonation of the bomb .

The principal witness of the plaintiffs in the civil action was PERSON , an ORG agent who had infiltrated dissident NORP terrorist groups .

On DATE ORG ordered that PERSON could give evidence by video link because he was receiving the benefit of an ORG witness protection program in GPE and ORG ( “ GPE ” ) had assessed the risk to his life to be severe if he were to give evidence in GPE .

On DATE the plaintiffs indicated that ORG was no longer available to give evidence by video link . They submitted an affidavit explaining that the ORG was no longer prepared to make him available because of the threat to his security and an unexplained medical condition . In his absence , they sought to rely on evidence he had given in CARDINAL previous criminal trials .

NORP In or around DATE the first applicant had been convicted by ORG in GPE of membership of the ORG and directing terrorism during the period from DATE . PERSON had been the principal witness for the prosecution . His evidence , which described the involvement of ORG in the GPE bombing , the direct involvement of the first applicant in procurement and training within that organisation , and the presence of the second applicant at army council meetings , was based on CARDINAL statements made by him DATE , and documents disclosed by the ORG and ORG , including CARDINAL pieces of email traffic between him and his handlers .

At the trial ORG had given evidence over DATE . For DATE he was cross - examined by counsel for the first applicant , who attacked his credibility as a witness . PERSON did not rely on the email documentation in his direct evidence and he was not cross - examined in relation to it .

In DATE , following a sting operation by ORG , CARDINAL persons had been arrested by the NORP police and extradited to GPE to stand trial for offences committed under LAW . The subsequent criminal proceedings took place at ORG ( for further details see O’Farrell and Others v. GPE , no . CARDINAL/CARDINAL , DATE ) . Neither applicant in the present proceedings was involved in the criminal trial . However , in the course of those proceedings a tape was produced containing a compilation of conversations between a person named “ PERSON ” and members of ORG . It was clear from the conversations that “ PERSON ” was directing ORG operation in GPE and seeking to procure arms and/or funding from foreign Governments . In the course of the GPE proceedings PERSON identified “ PERSON ’s ” voice as that of the first applicant . His evidence was supported by that of an Inspector in An FAC ( “ the NORP ” ) , ORG of GPE .

The plaintiffs applied for permission to rely on the transcript of evidence and materials disclosed during the GPE proceedings . However , the first applicant submitted that the introduction of this hearsay evidence would deprive him of the opportunity to cross - examine D.R. and prevent the court from assessing his credibility .

The High Court judge heard evidence about the effort made by the plaintiffs and the first applicant to secure ORG attendance to give video link evidence . He accepted that the plaintiffs’ solicitor had made a number of attempts to cause the ORG to alter its view ; the ORG solicitor had attempted to obtain some written explanation for PERSON ’s inability to give evidence but had been unable to do so ; any application to the relevant judicial authorities in GPE to take the evidence of GPE would likely be opposed by the ORG ; and although the first applicant had applied to the court to institute a request for D.R. to be called for crossexamination under LAW , that request had been refused by ORG authorities . The judge therefore accepted that the plaintiffs and the first applicant had taken every possible step to secure the attendance of LAW as a witness .

The judge further considered whether or not the action in trespass constituted a “ criminal charge ” in accordance with the autonomous jurisprudence of this ORG . However , he decided that there had been no “ criminal charge ” as the proceedings were classified as civil under domestic law and any award the court could make would be compensatory . Although the ORG had stated that the objective of the proceedings was not to obtain compensation but to “ see the applicants held to account ” , the judge considered that their subjective intention was of “ little or no bearing ” in deciding whether the proceedings were criminal or civil . The judge therefore held that the protections contained in LAW did not apply as of right .

The judge then considered whether the evidence could be admitted pursuant to ORG LAW ( see paragraph CARDINAL below ) . In answering this question in the affirmative , he noted that although his power to exclude relevant evidence was circumscribed by LAW ( see paragraph CARDINAL below ) , the court ’s obligation to ensure a fair trial within the meaning of LAW could be achieved by permitting the plaintiffs to admit the evidence and applying the appropriate safeguards contained within the Order . In particular , he indicated that once the evidence was received it would be open to the applicants to submit that he should accord it no weight .

The plaintiffs also sought to rely on a copy of the “ PERSON ” tape . Counsel for the first applicant contended that pursuant to LAW DATE , the tape had been disclosed unlawfully by ORG to the plaintiffs .

In a decision dated DATE the ORG Judge found that the tape had been lawfully disclosed to the plaintiffs and could therefore be admitted in evidence , although the weight to be given to it would be “ a matter for submissions ” .

At the hearing , the first applicant chose not to give evidence in answer to this case against him . The second applicant had initially entered a defence to the claim but subsequently instructed his solicitors to come off record .

The High Court judge first considered the appropriate standard of proof and concluded that it should be the balance of probabilities since the seriousness of the allegation against the applicants alone was not a reason for departing from the civil standard .

The judge accepted that the GPE bombing was part of a campaign of terror involving the use of explosive devices in locations where there was a large number of members of the public . In view of the fact that the warnings were specifically designed to prevent detection of the location of the bomb car before the explosion , the judge was satisfied that those involved in the planning , production , planting and detonation of the bomb recognised the likelihood of serious injury or death from its detonation but had decided to take that risk .

NORP The plaintiffs sought to adduce evidence of the first applicant ’s conviction by ORG in GPE for directing terrorism . The judge held that the conviction could not be admitted as evidence that the first applicant had committed the acts which grounded the conviction . However , he found that the conviction could be admitted at common law as evidence of bad character , if probative and relevant .

The first applicant mounted an attack on the character of GPE based in substantial part on answers he gave during cross - examination in the GPE proceedings . In particular , in one email PERSON had suggested an intention to perjure himself in unrelated proceedings ; he had once described himself as a “ whore ” and a “ mercenary ” ; he had been charged with passing bad cheques ; there was evidence to suggest that he had been prepared to facilitate criminal activity as long as there was a suitable financial reward for him ; he was paid for the information provided to the ORG and ORG ; and he had had a reputation as a smuggler , drug dealer and “ bad guy ” .

In assessing the weight to be attached to the evidence of GPE , the judge identified CARDINAL separate questions : whether the email material represented a fair and accurate account of the actual traffic that passed between PERSON and his handlers , and whether the statements and emails represented a fair and accurate account of the exchanges between PERSON and the first applicant . Both of those questions required consideration of ORG .

In respect of the first question , the judge made the following observations :

The statements which were prepared for the purpose of giving evidence in the GPE proceedings were not prepared contemporaneously , but the emails represented actual traffic between PERSON and his handlers . In virtually all cases the emails were generated within TIME of the end of lengthy meetings , but caution had to be exercised in relation to isolated comments in response to queries raised by handlers where there may have been failures of recollection or misinterpretation .

ORG motivation for embarking on his activity was the prospect of financial reward . He had been dishonest in his dealings with money and in representation of circumstances , particularly where his financial interests and reputation were involved .

ORG was engaged under a financial contract with his handlers . Since he had a financial interest in producing material that was likely to be considered significant , care had to be exercised in assessing the material .

The extraordinary level of detail , which included identification by name of a significant number of people whom it was highly unlikely that ORG would previously have known was compelling evidence of an attempt to provide an accurate and comprehensive record of actual meetings .

The materials were generated for the purpose of enabling handlers to assess intelligence and there was no reason to think that the content had been manipulated in any particular way .

The hearsay evidence of PERSON was decisive in the sense that without it the plaintiffs could not succeed against the first applicant .

The applicant had a proper opportunity to investigate the credibility of GPE He had had the advantage of the disclosures which had been made for the purposes of the criminal trial , including the transcript of cross - examinations .

It was recognised that some material might be missing and there was the possibility of human error , having regard to the limited interaction necessary to deal with the encryption of these materials .

In light of the above considerations , the judge was satisfied to a very high standard of probability that the exchanges set out in the emails represented actual traffic that occurred between PERSON and his handlers .

The judge further considered LAW and , in particular , the ORG judgment in PERSON and PERSON v. GPE , nos . CARDINAL and ORG , DATE . Although he recognised that this was not a criminal case and the minimum rights set out in LAW were therefore not expressly engaged , he accepted that the entitlement to a fair hearing would often involve consideration of many of the issues identified as minimum rights within LAW and it was therefore necessary to examine whether the admission of the hearsay evidence and the giving of weight to it would render the hearing unfair . In this regard , the judge noted that the guarantee of a fair hearing required observance of the principle of equality of arms and the principle that proceedings as a whole should be adversarial ; in other words , each party had to be afforded a reasonable opportunity to present his case under conditions that did not place him at a substantial disadvantage vis - à - vis his opponent , and be given the opportunity to have knowledge of and comment on the evidence adduced by the other party . Nevertheless , the judge noted that in this case the material upon which the plaintiffs relied had long been known to all of the parties . Consequently , the defendants , who had available the disclosure which was made within the criminal trial and the transcript of the extensive cross - examination of D.R. at that trial , had had a proper opportunity to investigate PERSON ’s credibility .

In respect of the second question of whether the material was an accurate record of events and conversations , the judge made the following observations :

There was evidence of dishonesty by LAW of financial matters and the fact that he was being paid for intelligence should properly cause the court to exercise caution in relation to the accuracy of this material .

There was , however , overwhelming evidence that ORG account in relation to attendance at meetings and gatherings was accurate – including evidence from PERSON officers involved in surveillance of the first applicant DATE and he could be confident that the emails represented a reliable record of ORG activities .

The PERSON evidence was strongly supportive of the content of the emails : taken together with the hearsay statement made in the GPE proceedings that the person identified as “ PERSON ” was in fact the first applicant , the PERSON evidence would appear to confirm that the first applicant had been actively involved in the procurement of terrorist materials , that he had a leadership role in relation to procurement and was a committed terrorist .

The judge was therefore satisfied that he should give considerable weight to the content of the email traffic without offending the first applicant ’s fair trial rights under LAW .

The principal evidence against the second applicant was also that of LAW , who had recorded his attendance at meetings of the army council where the second applicant appeared to be in charge . In addition , there was independent telephone evidence which indicated that the drivers on the “ bomb run ” had phoned the second applicant a number of times on TIME of the GPE bombing .

The judge , having already dealt with the weight to be given to the hearsay evidence of LAW in considering the position of the first applicant , was satisfied that there was also cogent evidence that the second applicant was a member of the army council of ORG at the time of the GPE bomb , and that he held an important leadership position in ORG both at that time and subsequently . He was further satisfied that there was cogent telephone evidence demonstrating that the second applicant had been involved in directing the operation and participating in it .

The judge therefore found both applicants liable in trespass to the plaintiffs . In reaching this conclusion , he described the applicants’ failure to answer the case against them ( the first applicant having elected not to give evidence and the second applicant having not attended the hearing at all , either in person or through representatives – see paragraph CARDINAL above ) as “ inexplicable ” and opined that these failures had made the case against them “ overwhelming ” .

The quantum of damages was assessed separately for each plaintiff depending on the losses suffered , and included financial awards to reflect dependency ( the loss of financial support from the deceased ) ; bereavement ( a fixed sum of GBP CARDINAL payable for grief and trauma following the death of certain specified family members ) ; psychiatric injury to the surviving relatives ; loss of earnings ; “ aggravated damages ” to compensate for the injury to feelings flowing from consequences such as the indignity , mental suffering , disgrace and humiliation which may be caused by tortious conduct ; and funeral costs .

The applicants appealed against the judge ’s decision on the ground that he had been wrong to conclude that the appropriate standard of proof was the civil standard of proof on a balance of probabilities . However , ORG found that ORG judge had correctly analysed the authorities and was right to apply the civil standard . A tort was a claim for civil law remedies – the findings of the court gave rise to no criminal sanctions and would not in themselves assist in any prosecution – and did not cease to be such because the conduct giving rise to the tort was also criminal .

Counsel for the first applicant also argued that ORG judge had been wrong to attach the weight he did to the evidence of GPE , since evidence had shown him to be a demonstrable confidence trickster who manipulated information at every turn ; that the evidence of the first applicant ’s conviction by ORG in GPE should not have been found to be admissible at common law ; and that the judge should not have drawn any adverse inference from the decision of the first applicant not to answer the case against him .

However , ORG observed that the fact that a witness had been demonstrated to be unreliable and , indeed , mendacious and dishonest on important occasions did not mean that everything he said should be discounted as valueless and unreliable . The judge had made it clear that ORG hearsay evidence had to be approached with care . Moreover , he was evidently alive both to the financial motive to lie and exaggerate and to the evidence from PERSON himself which indicated dishonesty in his own financial affairs . Therefore , on a fair reading of the judgment the judge was fully conscious of serious flaws in D.R. as a witness of truth on some issues .

Insofar as the judge had held that the evidence of the first applicant ’s conviction by ORG in GPE could be admitted at common law as evidence of bad character , ORG found that he had erred . However , this error did not affect the outcome of the proceedings , as the PERSON evidence had already established that the first applicant was a committed and active terrorist who was willing to participate in serious terrorist crime . The GPE conviction therefore added no material weight to the GPE case against him .

Furthermore , ORG found that in the circumstances of what was a relatively strong prima facie case the judge had been fully entitled to draw an adverse inference from the first applicant ’s failure to give evidence . The first applicant had clearly had access to material facts but gave no explanation for his failure to call any evidence or go in the witness box .

The second applicant appealed on the grounds that the judge should have subjected the hearsay evidence to proper scrutiny in the context of the case against him instead of adopting the findings in relation to the case against the first applicant , especially as he had not been a party to the criminal proceedings in GPE and had not , therefore , had an opportunity to cross - examine D.R. ; that the judge had been wrong to make the evidential leap that his alleged use of a particular mobile telephone connected him to the bomb and placed him in a position of control and command ; and that it was wrong of the judge to draw inferences from his absence from the proceedings as he had been unrepresented ( his assets were frozen in GPE by ORG and his legal aid had been revoked ) .

However , ORG found that the judge had been entitled to reach the conclusion that he did in respect of the evidence of FAC While his analysis of the evidence in the context of the first applicant ’s case was not of itself determinative of the question whether it was reliable evidence against the second applicant , he had been aware of the relevant considerations in determining the strength and weaknesses of the evidence . Moreover , there was some corroboration as the PERSON had observed the second applicant and LAW together and the telephone evidence also connected him to the bombing . Linking the pieces of evidence together , the judge was justified in reaching the conclusion that he did .

The Court of Appeal further found that the fact the second applicant had declined to testify meant that he had nothing to contradict the evidence against him , which strengthened that evidence even in the absence of any inference which could be drawn .

In a decision dated DATE ORG dismissed the appeals of both applicants .

On DATE the applicants were refused permission to appeal to ORG .

A claim for trespass to the person , which may be brought for a wilful or negligent act of direct force , is classified as a civil action under domestic law . It is tried before a civil court , which does not determine whether a criminal offence has been committed in order to assess liability .

Where liability for trespass to the person is established , the plaintiff is entitled to claim damages to compensate for his or her loss . The general principle underlying the award of damages for tortious acts is to seek to put the plaintiff in the financial position he or she would have been in had the tort not taken place .

The admissibility of hearsay evidence in civil proceedings in GPE is governed by ORG Order DATE . LAW provides that in civil proceedings evidence shall not be excluded on the ground that it is hearsay .

Articles CARDINAL , DATE and CARDINAL contain safeguards relating to the admission of hearsay evidence :

“ CARDINAL . —(CARDINAL ) Rules of court may provide that , where a party to civil proceedings adduces hearsay evidence of a statement made by a person and does not call that person as a witness , any other party to the proceedings may , with the leave of the court , call that person as a witness and cross - examine him on the statement as if he had been called by the first - mentioned party and as if the hearsay statement were his evidence in chief .

( CARDINAL ) Without prejudice to any other power to adjourn proceedings , where , in accordance with rules of court made by virtue of paragraph ( CARDINAL ) , the court gives a party leave to call the maker of a statement as a witness , the court may adjourn the proceedings , on such terms as to costs or other matters as it thinks fit , for the purpose—

( a ) of enabling the witness to be brought before the court ; or

( b ) of giving the party concerned a proper opportunity to investigate the statement or the credibility of the witness .

LOC ) In estimating the weight ( if any ) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence .

( CARDINAL ) Regard shall be had , in particular , to whether the party by whom the hearsay evidence is adduced gave notice to the other party or parties to the proceedings of his intention to adduce the hearsay evidence and , if so , to the sufficiency of the notice given .

( CARDINAL ) Regard may also be had , in particular , to the following—

( a ) whether it would have been reasonable and practicable for the party by whom the evidence is adduced to have produced the maker of the original statement as a witness ;

( b ) DATE whether the original statement was made contemporaneously with the occurrence or existence of the matters stated ;

( c ) NORP whether the evidence involves multiple hearsay ;

( d ) whether any person involved had any motive to conceal or misrepresent matters ;

( e ) NORP whether the original statement was an edited account , or was made in collaboration with another or for a particular purpose ;

( f ) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight .


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Substantive aspect) (Iran);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-2 - Prompt information);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in DATE and lives in GPE .

In DATE the applicant fled from GPE to NORP because of pressure from the police , who suspected him of anti - constitutional activities in connection with his alleged NORP religious beliefs and practices . He feared , in particular , that if he stayed in GPE , he would face persecution from the ORG authorities , and would eventually be imprisoned and tortured like some of his fellow NORP friends . In support of his allegation of the risk of ill - treatment in GPE , the applicant submitted a copy of a list of persons who had been charged with offences against the ORG . The list had been prepared by ORG “ FAC , a non - governmental organisation based in GPE , and included the applicant ’s name . According to this document , the applicant was charged under LAW of LAW ( attempting to violently overthrow the ORG ’s constitutional order ) . At the top of the document , it was explained that the list had been compiled on the basis of the “ Bulletin on ORG prepared by the criminal investigation and counter - terrorism department of ORG of GPE and published in GPE in DATE .

NORP From NORP , the applicant went on to GPE and GPE . In DATE he arrived in GPE , where he settled in GPE . The applicant applied to the ORG High Commissioner for Refugees ( “ the ORG ” ) in GPE for recognition as a refugee . He lived in GPE for DATE without experiencing any major problems . In DATE , however , together with some other NORP asylum seekers who had left their country for the same reasons , the applicant decided to flee from GPE following deportation threats . He claimed that the threats had been a response to certain disagreements with the NORP authorities over their living conditions .

On DATE the applicant entered GPE illegally through PERSON and went to GPE to apply for refugee status at the ORG . Following a preliminary interview , the applicant was referred to the ORG office in GPE . The PERSON office issued him with an asylum seeker certificate . Subsequently , he registered with the GPE police headquarters and started the domestic temporary asylum procedure . Thereafter he was given a temporary residence permit until DATE and was ordered to report to the police CARDINAL times a week for signature . It appears that the other NORP asylum seekers who had fled GPE together with the applicant were granted similar certificates and permits after following the same procedural steps .

On an unspecified date the PERSON police sent a notice to a number of NORP families requiring them to appear at the police station on DATE . The notice stated that their attendance was required for the distribution of food rations and school stationery .

Although the applicant did not receive such a notice , at TIME on DATE he went to the police station for signature , as part of his DATE routine . Once at the police station , CARDINAL asylum seekers , including the applicant , were placed in detention . Their personal items , including identity documents , money and telephones , were confiscated . They were driven to the border at TIME and forcibly deported to GPE . The applicant was allegedly illtreated and threatened by the police during deportation .

After crossing the border to GPE on foot , the NORP asylum seekers , including the applicant , were captured and held hostage by people smugglers , who demanded MONEY to spare their lives and to release them . The asylum seekers contacted some other NORP who had managed to escape deportation from GPE and obtained the ransom fee . The smugglers made them walk for DATE to PERSON , a town close to the NORP border of GPE , where they were released .

After re - entering GPE illegally , the applicant went back to PERSON together with the other NORP asylum seekers . They requested legal advice from ORG , which , along with CARDINAL NORP non - governmental organisations , published a report on DATE regarding the NORP asylum ORG collective expulsion . It was argued in the report , inter alia , that the expulsion of the NORP by ORG authorities , despite their valid residence permits , had had no legal basis . It was also alleged that the expulsion had been motivated by political considerations to improve relations with GPE , which had been strained following the acceptance by GPE of members of NORP opposition groups , such as the applicant , as asylum seekers in DATE .

On DATE a number of NORP asylum seekers , who had previously been deported to GPE on DATE , were collected from their homes by police officers from the GPE police headquarters . TIME , they were deported to GPE once again . The applicant , however , escaped this deportation by pure chance , as the police did not have his correct home address .

The deportation of the applicant and the other NORP nationals was brought to the attention of the national and international public through press releases from various NGOs and the ORG . In particular , CARDINAL human rights and refugee rights organisations , including ORG , issued a press release in which they condemned the forced illegal deportation of the applicant and the other NORP nationals to GPE . Likewise , a NORP parliamentarian issued a press release within the ORG and criticised the removal as well as the existing refugee protection system in GPE .

On an unspecified date the applicant ’s representative sent letters to , inter alia , ORG of ORG , ORG of the GPE office and ORG .

On DATE the head of ORG of the ORG of GPE replied to the applicant ’s representative that ORG had informed the ORG , in a letter dated DATE , that the applicant had been deported to GPE , a safe third country , in compliance with the legislation in force .

In his reply dated DATE , in his capacity as head of ORG of the GPE office , the Deputy Governor of PERSON informed the applicant ’s representative that the applicant and the other deportees had been removed to GPE in compliance with the legislation in force and that GPE was a safe third country where the applicant had lived before he had arrived in GPE in DATE .

On DATE ORG sent a letter to the applicant ’s representative , informing him that the ORG had learned that the applicant , along with a number of other NORP nationals , had been illegally deported to GPE and that the applicant ’s asylum claim was under review . The ORG also informed the applicant ’s representative that on CARDINAL DATE they had sent a letter to the NORP authorities requesting the latter to take the necessary measures to grant the applicant and other NORP nationals who had been deported on DATE residence permits with a view to legalizing their status in GPE pending the completion of the procedures with regard to their cases .

Since DATE , the applicant has been living in GPE in hiding and his application for refugee status under the mandate of the ORG is still under consideration . On DATE and CARDINAL DATE he was interviewed by officers from the ORG ’s GPE office regarding his application for refugee status . He has not received any information from the NORP authorities as to his request for asylum . The applicant can not approach the NORP authorities to apply for asylum or to obtain a temporary residence permit for fear of being deported to GPE , like the other NORP asylum seekers who were deported once again to GPE in DATE . Moreover , he can not appoint a lawyer to undertake the necessary legal and procedural actions on his behalf before the domestic authorities as he does not possess the necessary identity documents required to issue a power of attorney before a notary public .

When the applicant applied for asylum in GPE in DATE , he informed the authorities that he had been granted refugee status in GPE by the ORG . His application was registered and he was asked not to leave the city of PERSON .

On DATE the applicant left PERSON and returned there on CARDINAL DATE . He subsequently repeated his asylum request .

On an unspecified date the applicant ’s asylum request was assessed in the light of LAW , LAW , LAW and Other Cruel , Inhuman or Degrading Treatment or Punishment and the national legislation . He was subsequently deported to GPE , a safe third country , where he was recognised as a refugee by the ORG . According to a document signed by CARDINAL police officers and CARDINAL military officer , submitted by the Government , CARDINAL NORP and NORP nationals , including the applicant , were deported on DATE .

According to the ORG , the applicant was not deprived of his liberty . Moreover , his identity documents were not confiscated .

The applicant complained under LAW , DATE and CARDINAL of the Convention that he had been unlawfully deported to GPE on DATE without an individual assessment of his situation and claims , and whilst he was legally residing in GPE , and that he had not been informed of the decision to deport him to GPE on DATE and , thus , had had no effective domestic remedies to challenge it .

The Government submitted that the applicant ’s claims were not substantiated .

The ORG considers that this part of the application should be examined under LAW alone . However , having regard to its reasoning which led it to conclude LAW was breached in the present case , the ORG finds nothing that would justify a separate examination of the same facts from the angle of LAW of the Convention . It therefore deems it unnecessary to rule separately on either the admissibility or the merits of the applicant ’s complaints under this head ( see PERSON and PERSON , cited above , § DATE ) .


Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione materiae);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Just satisfaction reserved

András Baka;Egidijus Kūris;Guido Raimondi;Helena Jäderblom;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

The applicant was born in DATE and lives in GPE .

On DATE , after DATE of service ( DATE ) as a judge at ORG and , subsequently , DATE service as a member of ORG , the applicant was elected by ORG , by decision no . CARDINAL/CARDINAL ( VI.CARDINAL ) OGY , as President of ORG for a DATE term , until DATE .

In that capacity , the applicant not only performed managerial tasks but also had a judicial role , presiding over deliberations on uniformity issues and guiding decisions . He was also President of ORG . This second function was added to the tasks of the President of ORG in DATE by ORG LXVI of DATE ) . As the head of ORG , the applicant was under an explicit statutory obligation to express an opinion on parliamentary bills that affected the judiciary , after having gathered and summarised the opinions of different courts via ORG .

On DATE ORG of the Network of the Presidents of the Supreme Judicial Courts of ORG unanimously elected the applicant President of the Network for a DATE term ( from DATE ) .

NORP In DATE the alliance of GPE – PERSON ( GPE – Hungarian Civic Union , hereinafter “ FAC ” ) and ORG ( “ the ORG ” ) obtained a CARDINAL parliamentary majority and undertook a programme of comprehensive constitutional reform . Thereafter , the applicant spoke up several times in order to express his views on the integrity and independence of the judiciary . In his professional capacity as President of ORG and ORG , the applicant expressed his views on CARDINAL issues : the Nullification Bill ; the retirement age of judges ; the amendments to LAW ; and ORG Bill .

Firstly , LAW ( subsequently LAW of DATE ) sought to redress convictions relating to the crowd dispersion in DATE . The applicant criticised the manner in which that goal would be achieved , namely by reopening final judgments and annulling through legislation certain judicial decisions . On DATE the applicant ’s spokesman explained to the ORG newspaper that , in the applicant ’s view :

“ the PERSON ordering the annulment of some judicial decisions delivered in relation to the DATE riots gives cause for concern , because it violates the right of judges to freely assess evidence . This is a serious constitutional problem . ... the judiciary is examining the PERSON only from a professional point of view and distances itself from any kind of political debate . PERSON [ the applicant ] , President of ORG , hopes that ORG will choose a legal technique that eliminates the problem of unconstitutionality ” .

On DATE , DATE after the adoption of ORG ( PERSON MP , Chairman of the LAW , ORG and ORG at the relevant time ) , responded to the critiques of the judiciary in a press conference , where he declared : “ The adopted legal solution was said to be unfortunate . Now , I myself find it unfortunate if a member of the judiciary , in any position whatsoever , tries to exert influence over the legislative process in such a way ” .

Secondly , in relation to the proposal to reduce the mandatory retirement age of judges ( from DATE to the general retirement age of QUANTITY ) in LAW , on DATE court presidents , including the applicant , addressed a letter to different actors in the constitutional process ( the President of the Republic , the Prime Minister , the Speaker of ORG ) in which they pointed out the possible risks to the judiciary posed by that proposal . Their concern was that by abolishing the possibility for judges to remain in office until DATE , the proposed rule would force CARDINAL of NORP judges ( CARDINAL persons ) to end their careers unexpectedly in DATE . In TIME of DATE ( the day of the vote on the proposals for amendment ) , the applicant addressed a letter to the Prime Minister in which he stressed that the proposal was humiliating and professionally unjustifiable ; it infringed the fundamental principles of independence , status and irremovability of judges ; and it was also discriminatory , since only the judiciary was concerned . He added as follows :

“ It is , however , unacceptable if a political party or the majority of ORG makes political demands on the judiciary and evaluates judges by political standards . ”

DATE , ORG adopted the above - mentioned proposal ( see Relevant domestic law below ) .

On DATE the plenary session of ORG , the applicant in his capacity as President of ORG , as well as the presidents of regional and county courts addressed a communiqué to the NORP and ORG public , pleading for the autonomy and independence of the judiciary and criticizing the new mandatory retirement age for judges . The relevant extracts from the communiqué read as follows :

“ According to the proposal , the mandatory retirement age of judges will be reduced by DATE as of DATE . As a result , the tenure of CARDINAL judges ( among them CARDINAL judges responsible for court administration and professional supervising ) will be terminated DATE , without any transition period , due to the fact that they will have turned DATE . By DATE a further CARDINAL judges will have to terminate their career . As a consequence of this decision the timeliness of judicial proceedings will significantly deteriorate ( reassignment of CARDINAL cases will be necessary , which may even cause several years’ delay in the judicial proceedings of CARDINAL of clients ) . The administration of courts will be seriously hindered since the replacement of CARDINAL of retiring judges is extremely difficult .

The multiple effect of the forced pensioning off , without any real justification , of highly qualified judges , who have DATE of experience and practice , and most of whom are at the apex of the hierarchy , will fundamentally shatter the functioning of the court system – leaving aside other unforeseeable consequences . Moreover , the proposal is unfair and humiliating with respect to the persons concerned , who took an oath to serve GPE and to administer justice and who devoted their life to the judicial vocation .

It is incomprehensible why the issue of the retirement age of judges is worth regulation in LAW . There is CARDINAL answer : by including it in LAW , there will be no chance to contest this legal rule , which violates the fundamental principles of a democratic state governed by the rule of law , before ORG .

Such an unjustified step insinuates a political motivation . ”

Thirdly , on DATE , PERSON on the amendment of certain legislation concerning judicial procedure and the judicial system ( including LAW ) was submitted to ORG . At the applicant ’s request , ORG of ORG prepared an analysis of the PERSON , which was communicated to Members of ORG . As no substantive changes were made to the PERSON ( enacted on DATE as Act LXXXIX of DATE ) , the applicant decided to challenge the LAW before ORG on grounds of unconstitutionality and violation of obligations enshrined in international treaties , making use of that prerogative for the first time in NORP history . ORG , in its decision no . CARDINAL/CARDINAL.(XII.CARDINAL . ) AB of DATE , established the unconstitutionality of the impugned provisions and quashed them ( notably , the provision concerning the Attorney General ’s right to establish court competence by derogation from default statutory rules ) .

Lastly , the applicant expressed his views in a parliamentary debate on CARDINAL new Cardinal Bills : ORG PERSON ( no . T/CARDINAL ) and ORG PERSON ( no . PERSON ) . According to the explanatory memorandum to the Bills , it was proposed that ORG be abolished and replaced by ORG and ORG . The purpose of those proposals was to separate judicial and managerial functions , which had been “ unified ” in the person of the President of ORG , who was at the same time president of ORG . The proposed reform sought to concentrate the tasks of judicial management in the hands of the president of the new ORG , while leaving the responsibility for overseeing the uniform administration of justice with the president of ORG ( renamed with the historical appellation “ GPE ” ) . On DATE , the applicant addressed a detailed analysis of ORG , taking account of the comments received from judges throughout the country . He also decided to express his opinion directly before ORG , in accordance with LAW CARDINAL/CARDINAL ( IX.CARDINAL ) OGY on the Rules of ORG . In his speech , delivered on DATE , the applicant raised his concerns about the fact that the draft legislation did not address the structural problems of the judiciary , but left them to the discretion of the chief executive of an external administration ( the president of the new ORG ) , to whom excessive and , in LOC , unprecedented powers were being conferred without adequate accountability .

LAW DATE established that the highest judicial body would be the PERSON ( the historical NORP name for ORG ) .

On DATE , in an interview on ORG , the ORG Secretary of ORG , PERSON , MP , declared that under ORG Bill ( no . T/CARDINAL ) , the new GPE would have the same function as the current ORG and that only ORG name would change . He said that the legislation “ will certainly not provide any legal ground for a change in the person of the Chief Justice ” . DATE , on DATE , during a debate on LAW , another PERSON politician , PERSON , MP , had declared on Inforádió that the President of ORG would remain the same and that only the name of the institution would change .

On DATE , PERSON submitted a PERSON ( no . PERSON ) to ORG proposing an amendment to LAW . The amendment sought to provide that ORG would elect the president of the GPE by DATE at the latest .

On DATE , MPs PERSON and PERSON , ORG and ORG party leaders respectively , submitted a PERSON ( no . PERSON ) to ORG on the transitional provisions of LAW GPE . Under LAW the legal successor of ORG and ORG would be the GPE for the administration of justice , and the President of ORG for the administration of the courts . Pursuant to section CARDINAL(CARDINAL ) of LAW , the mandates of the President of ORG as well as of the President and members of ORG would be terminated upon the entry into force of LAW . The reasoning of the PERSON stipulated that it provided comprehensive regulation of the succession of ORG , ORG and their President . The successor ( body or person ) would be different according to the different nature of the separated functions . Having regard to the modifications of the court system , the PERSON provided that the mandates of the President of ORG currently in office , as well as that of the President and members of ORG , would be terminated upon the entry into force of LAW .

NORP In order to bring other legislation into line on this issue , on CARDINAL DATE a ORG MP , PERSON ORG , submitted an amendment to sections CARDINAL and CARDINAL of ORG Bill . The amendment sought to terminate the mandates of the members and President of ORG as well as those of the President and Vice - President of ORG upon the entry into force of LAW .

On DATE ORG enacted both ORG Bill ( as Act CLXI of DATE ) and LAW ) PERSON ( as LAW of DATE ) , the content of which is described above . LAW was adopted without amendment on DATE and published ( as Transitional Provisions of LAW ) in ORG on DATE . The date of the entry into force of LAW was scheduled for DATE .

The applicant ’s mandate was terminated on DATE , DATE before its normal date of expiry .

NORP In order for a new president to be elected to the GPE in due time , LAW of DATE , adopted on DATE , see paragraph CARDINAL above ) entered into force on DATE . On DATE , ORG Bill was amended with the introduction of a new criterion for the election of the new president of the GPE . It provided that he or she would be elected by ORG from among the judges appointed for an indeterminate term , having served DATE as a judge ( section CARDINAL ) of Act CLXI of DATE see Relevant domestic law below ) . On DATE , the President of the Republic proposed that ORG elect PERSON as President of the GPE and PERSON as President of ORG . On DATE , ORG elected those candidates in accordance with the proposal of the President of the Republic .

The applicant is serving as a judge of the new GPE ( civil section ) . According to the internal regulation on press contacts at the GPE , he is no longer entitled to express his opinions freely , as the giving of interviews is subject to prior consent by the President of the GPE .

NORP The premature termination of the applicant ’s mandate has also had pecuniary consequences . Firstly , he has lost the remuneration and other benefits ( social security , presidential residence , personal protection ) to which a president of ORG is entitled throughout the period of the fixed presidential term . Secondly , outgoing presidents of ORG had the statutory right to certain benefits ( an allowance for DATE following the termination of his or her mandate , an office and a secretariat with CARDINAL employees for DATE , a pension supplement for life ) of which the applicant was also deprived . LAW DATE dealing , inter alia , with the entitlements of the President of ORG , was repealed as from DATE . Section CARDINAL ) of ORG ( as amended on CARDINAL DATE , in force from DATE ) supplemented this abrogation and stipulated that the repealed legislation would be applied to any former president of ORG only to the extent that he or she was entitled to the allowance specified in sections CARDINAL ) and CARDINAL ) ( pension supplement for life ) , if he or she had reached retirement age at the time of the entry of force of the LAW and had requested the allowance .

Since the applicant had not attained retirement age by DATE , he could not claim payment of that post - function benefit .

On DATE , ORG Justice Commissioner PERSON wrote a letter to the NORP authorities raising concerns on the issue of the retirement age of judges . An annex to the letter also raised the issues of the President of the new ORG and the transformation of ORG into the GPE , in particular the early termination of the applicant ’s mandate as President of ORG before the end of the regular term . The NORP authorities answered and ORG , on DATE , issued a statement on the situation of GPE .

On DATE , the Commission decided to open “ accelerated ” infringement proceedings against GPE on , inter alia , the independence of the judiciary . As regards the new mandatory retirement age for judges ( and prosecutors ) , the ORG stated that ORG rules on equal treatment in employment ( Directive CARDINAL ) prohibited discrimination at the workplace on grounds of age . Under the case - law of ORG of the ORG , an objective and proportionate justification was needed if a government were to decide to reduce the retirement age for CARDINAL group of people and not for others . ORG did not find any objective justification for treating judges and prosecutors differently from other groups , notably at a time when retirement ages across LOC were being progressively increased . ORG also asked GPE for more information regarding the new legislation on the organisation of the courts . In its press release IP/CARDINAL/CARDINAL , the ORG stated as follows :

“ [ u]nder the law , the president of a new ORG concentrates powers concerning the operational management of the courts , human resources , budget and allocation of cases . ... In addition , the mandate of the former president of ORG , who was elected for DATE in DATE , was prematurely terminated at DATE . In contrast , other former judges of ORG continue their mandate as judges of the new Curia , which has replaced ORG . ”

On DATE , the ORG decided to send GPE a reasoned opinion on the measures regarding the retirement age of judges and an administrative letter asking for further clarifications regarding the independence of the judiciary , in particular in relation to the powers attributed to the President of ORG ( powers to designate a court in a given case and the transfer of judges without consent ) .

On DATE , ORG referred the case to ORG of ORG ( case C-CARDINAL/CARDINAL ) . On DATE , ORG declared that by adopting a national scheme requiring the compulsory retirement of judges , prosecutors and notaries when they reach DATE giving rise to a difference in treatment on grounds of age which is not proportionate as regards the objectives pursued – GPE had failed to fulfil its obligations under ORG CARDINAL of DATE , which established a general framework for equal treatment in employment and occupation . The court observed that the categories of persons concerned by the provisions at issue benefited , until their entry into force , from a derogation allowing them to remain in office until DATE , which gave rise , in those persons , to a well - founded expectation that they would be able to remain in office until that age . However , the provisions at issue abruptly and significantly lowered the age - limit for compulsory retirement , without introducing transitional measures to protect the legitimate expectations of the persons concerned .