Violation of Art. 3 (in case of extradition to Uzbekistan);Violation of Art. 5-1;Violation of Art. 5-4;Violation of Art. 13+3

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and is currently detained in GPE .

The facts of the case , which were partially disputed by the parties , may be summarised as follows .

NORP In DATE the applicant , who was born and lived in GPE , received an NORP passport . In DATE he moved from GPE to GPE . From DATE the applicant resided on FAC , GPE , GPE .

It appears that in DATE the applicant officially informed the NORP authorities that he had changed his permanent residency from GPE to GPE . DATE the applicant was officially registered as residing in ORG , GPE . Since DATE the applicant has been officially registered as residing on GPE in GPE .

In DATE the applicant exchanged his GPE passport for a NORP passport in Department of the Interior no . CARDINAL in the LOC district of LOC ( ГОМ-CARDINAL УВД GPE района PERSON ) .

On DATE the ORG and ORG of ORG of the ORG ( the UVD ) examined the validity of the applicant 's NORP passport and stated that the document had been issued unlawfully , that it should be confiscated as invalid and that the applicant was not a NORP citizen .

On DATE ORG ( the ORG ) informed the LOC regional prosecutor 's office that “ ... in DATE the issuance of the NORP passport to QUANTITY was declared unsubstantiated as he was not a NORP citizen ... the passport was declared invalid and it was supposed to be confiscated . However , as it has been impossible to establish A.M. GPE 's whereabouts , at the time of writing the passport has not been confiscated ... ”

On DATE ( the document is also dated DATE ) the applicant complained to the LOC court of ORG and requested that the decision of CARDINAL DATE be overruled as unlawful . The applicant stated , among other things , that he was a NORP citizen and that he had not been informed about the decision concerning the invalidity of his passport until the hearing conducted on DATE by the LOC court on the issue of his detention pending extradition to GPE ( see part ORG proceedings ” , below ) .

On DATE the LOC court refused to examine the applicant 's complaint . The applicant appealed and on DATE the NORP regional court overruled that decision and remitted the case for a fresh examination .

On DATE the LOC court again refused to examine the applicant 's complaint .

The applicant lodged a civil claim challenging the validity of the decision of DATE . On CARDINAL DATE the LOC court rejected the claim , stating that the applicant had failed to substantiate his allegation that he had been a legal resident of GPE since DATE and that therefore he could not be a NORP citizen .

On DATE this decision was upheld on appeal by ORG .

On DATE the ORG regional prosecutor 's office of GPE ( the ORG prosecutor 's office ) opened a criminal case against the applicant under LAW of LAW Criminal Code ( attempt to violently overthrow the ORG 's constitutional order ) . The applicant was accused of “ ... actively participating in the subversive activities of an extremist movement ... by conducting the holy war “ jihad ” ... to create an NORP state ” .

On DATE the applicant was charged in absentia and his name was put on the wanted list .

On DATE the ORG prosecutor 's office brought additional charges against the applicant under LAW ( organisation of a criminal group and subversive activities ) . The applicant was charged in absentia . The decision also stated that the applicant should be arrested and his name should remain on the wanted list . The NORP courts did not issue orders for his arrest .

On DATE the applicant was arrested by officers of the LOC town department of the interior ( the ORG ) on unknown grounds .

On DATE the applicant was placed in FBU / IZ-CARDINAL/CARDINAL ( “ the detention centre ” ) . The decision to arrest the applicant and detain him in the detention centre was not authorised by a court .

On DATE the LOC court of ORG authorised the applicant 's detention in view of extradition . The decision did not provide any time - limits for his detention .

On DATE ORG office officially requested ORG office to extradite the applicant to GPE to be prosecuted as charged by the local authorities .

On DATE ORG office decided to extradite the applicant .

On DATE the applicant was informed about the extradition order .

On DATE ( in the document the date was also stated as DATE ) the applicant appealed against the extradition order to the LOC regional court . He stated , inter alia , that he was sought by the NORP authorities for alleged commission of political crimes and participation in an extremist religious movement . The applicant denied the accusations and stated that under NORP law the alleged religious activity was not prohibited .

On DATE the NORP regional court rejected the applicant 's complaint , stating , inter alia , the following :

“ ... in their extradition request the NORP authorities guarantee that the applicant will be prosecuted only for the crimes his extradition is requested for and that after the trial and the completion of his sentence he will be able to freely leave GPE and that he wo n't be extradited to a third country without the consent of GPE .

In addition , the NORP authorities guarantee that the applicant will not be subjected to torture in GPE and his constitutional rights will be respected ....

... There are no circumstances precluding the applicant 's extradition to the law - enforcement agencies of GPE or any grounds for its suspension ...

... from the case file it follows that ORG and ORG possess no information either concerning the applicant 's persecution in GPE on political grounds or any other data which would preclude his extradition to GPE ... ”

On DATE the applicant appealed against this decision to ORG of GPE ( ORG ) . The applicant stated , inter alia , that the NORP regional court had ignored his allegations of a risk of ill - treatment in GPE ; that his detention from DATE had not been authorised by a court ; that the court order of DATE authorising his detention pending extradition had not provided any time - limits ; that the detention had been excessively long and its extensions had not been authorised by court orders .

On DATE ORG granted the applicant 's request for the application of interim measures under Rule CARDINAL of the Rules of Court to suspend his extradition to GPE .

On DATE ORG upheld the decision of the NORP regional court and the extradition order . The ruling , inter alia , referred to the assurances provided by the NORP authorities that “ ... GPE guarantees that QUANTITY will not be subjected to torture and that his constitutional rights in GPE will be protected ” . ORG did not examine any of the applicant 's complaints concerning the lawfulness and the length of his detention pending extradition .

On CARDINAL DATE the applicant applied to the Tyumen FMS requesting asylum , stating that the extradition order against him had been finalised , that the authorities had declared his NORP citizenship invalid and that he was being persecuted in GPE for his religious beliefs .

On DATE the Tyumen FMS informed the applicant that on DATE they had rejected his asylum request as it had been motivated by “ ... fear of lawful prosecution for a committed crime ” .

On DATE the applicant appealed against that decision to the GPE ORG .

On DATE the GPE ORG dismissed the applicant 's appeal and upheld the decision of the Tyumen FMS .

On DATE the applicant appealed against the decision of the GPE ORG to the GPE district court of GPE . The proceedings are still pending .

At DATE the applicant applied to the Tyumen FMS with a request for temporary asylum .

On DATE the Tyumen FMS granted the applicant temporary asylum in GPE for DATE , stating , inter alia , that the measure had been applied in view of the examination of the applicant 's case by the ORG .

On DATE the applicant complained about his detention to the head of the detention centre and requested to be released . He stated that his detention was unlawful as it had been neither authorised nor extended by court orders .

NORP On DATE or DATE the head of the detention centre refused to release the applicant and informed him that under LAW his detention pending extradition “ would not exceed DATE ” .

On DATE the applicant complained to the NORP district court of ORG that his detention pending extradition was unlawful and requested to be released .

On DATE the LOC court of ORG decided to detain the applicant in view of his extradition to GPE . In its decision the court referred to LAW ( “ the Criminal Procedure Code ” ) . The decision did not provide time - limits for the detention .

On DATE the NORP district court rejected the complaint , stating that the decision to detain the applicant did not contravene the regulations concerning detention on remand ( LAW ) and that it had already been authorised on DATE by the LOC court . The applicant appealed against this decision , stating , inter alia , that DATE he had been detained without a court order .

On DATE ( in the submitted documents the date was also referred to as DATE ) the NORP regional court dismissed his appeal . The court did not examine the issue of the lawfulness of the applicant 's detention DATE ; it rejected the appeal for the same reasons as the ones stated in the decision of DATE .

On DATE the applicant again lodged a complaint with the NORP district court challenging the lawfulness of his detention pending extradition . He pointed out that it had been DATE since his arrest , but his detention had not been extended by domestic courts , in violation of LAW . The applicant further stated that his complaint to the head of the detention centre of DATE had been rejected without a proper legal basis and requested the court to overrule the decision of the head of the detention centre .

On DATE the NORP district court rejected the applicant 's complaint , stating that the applicant should have appealed against the decision of DATE through civil proceedings . On DATE the applicant appealed against the court 's decision to the ORG regional court .

On DATE the NORP regional court rejected the applicant 's appeal and upheld the decision of the district court .

On DATE , in his appeal against the extradition order , the applicant lodged a detailed complaint with ORG challenging the lawfulness and the length of his detention pending extradition ( see paragraph CARDINAL above ) . In its decision of DATE ORG did not examine the applicant 's complaints concerning the lawfulness and length of his detention pending extradition ( see paragraph CARDINAL above ) .

DATE . On DATE the applicant again complained to the NORP district court stating that for DATE his detention pending extradition had not been extended by court orders .

On DATE the NORP district court refused to examine the applicant 's complaint stating that the applicant had failed to specify “ ... whether any criminal proceedings had been pending against him in LOC and by which local authority they had been initiated ... ” .

On DATE the applicant again complained to the NORP district court , stating that for DATE his detention had not been extended by court orders .

On DATE the district court left the applicant 's complaint without examination as he was supposed to use a different procedure to appeal against the alleged unlawfulness of his detention .

On DATE that decision was upheld by the NORP regional court through the supervisory review procedure .

On DATE the maximum DATE detention period laid down in LAW expired , but the applicant remained in detention .

On DATE the applicant again complained to the NORP district court that his detention pending extradition was unlawful and requested to be released .

On DATE the district court refused to order the applicant 's release and stated that his detention was warranted by the application of the interim measure by the ORG . The applicant appealed against this decision to the LOC regional court .

On DATE the NORP regional court held that the applicant 's detention had exceeded the maximum detention period prescribed by LAW and ordered his release .

On DATE the applicant was released from detention .

The Government disagreed with the statement of facts as presented by the applicant and , without referring to any specific documents and/or submitting copies of them , they stated the following .

According to the ORG 's submissions , ORG office provided the NORP authorities with the following assurances ; “ ... the applicant will be prosecuted only for the crimes listed in the extradition request ; after the trial and the completion of sentence he will be able to leave GPE without restraint . The applicant will not be deported or extradited to a third country without the consent of the GPE ” .

They further stated that the sanctions for the crimes with which the applicant had been charged by the NORP authorities did not extend to the death penalty .

ORG office requested that ORG and ORG provide information concerning the applicant 's alleged persecution in GPE . According to their replies , there were no circumstances preventing the applicant 's extradition to GPE ; no information had been received confirming that the persecution had been politically motivated .

During the examination of the applicant 's allegations “ ... the NORP courts of the first and the second instances noted that the NORP authorities had guaranteed that the applicant would not be subjected to unlawful treatment in GPE and that his constitutional rights would be respected . In addition , the NORP courts noted the absence in the case file of any information confirming the applicant 's persecution by the lawenforcement bodies of GPE on account of his political beliefs ... ”

The Government further stated that “ ... the authorities of GPE are informing [ the ORG ] that the applicant 's detention DATE was not based on a court order . However , the applicant was arrested on DATE and detained in SIZO-CARDINAL in LOC as a person who had been put on the international wanted list ... as a result of the decision to arrest him which had been taken by the ORG prosecutor 's office on DATE . In accordance with LAW , upon receipt of the extradition request and [ after ] the subsequent checks [ had been carried out ] , on DATE ... the LOC court of ORG ordered the applicant 's detention ... ”

On DATE the NORP regional prosecutor 's office requested the LOC court to order the applicant 's detention in the view of his extradition to GPE .

On DATE the district court granted the request and ordered the applicant 's detention in accordance with ORG CARDINAL , CARDINAL and CARDINAL § CARDINAL of the Criminal Procedure Code . The applicant was informed about his right to appeal against this decision to the NORP regional court . The applicant exercised this right and appealed against the detention order .

On DATE the NORP regional court dismissed the applicant 's appeal and upheld the detention order .

DATE . The LAW guarantees the right to liberty ( LAW ) :

“ CARDINAL . Everyone has the right to liberty and personal integrity .

Arrest , placement in custody and detention are only permitted on the basis of a judicial decision . Prior to a judicial decision , an individual may not be detained for longer than TIME . ”

Article CARDINAL of LAW DATE ( ORG no . CARDINAL ) , to which GPE is a party , provides as follows :

“ CARDINAL . In case of urgency the competent authorities of the requesting ORG may request the provisional arrest of the person sought . The competent authorities of the requested ORG shall decide the matter in accordance with its law .

Provisional arrest may be terminated if , within DATE after arrest , the requested ORG has not received the request for extradition and the documents mentioned in LAW . It shall not , in any event , exceed DATE from the date of such arrest . The possibility of provisional release at any time is not excluded , but the requested ORG shall take any measures which it considers necessary to prevent the escape of the person sought . ”

The CIS Convention on legal aid and legal relations in civil , family and criminal cases ( the DATE Minsk Convention ) , to which both GPE and GPE are parties , provides that a request for extradition must be accompanied by a detention order ( LAW ) .

A person whose extradition is sought may be arrested before receipt of a request for his or her extradition . In such cases a special request for arrest containing a reference to the detention order and indicating that a request for extradition will follow must be sent . A person may also be arrested in the absence of such request if there are reasons to suspect that he has committed , in the territory of the other ORG , an offence entailing extradition . The other ORG must be immediately informed of the arrest ( Article CARDINAL ) .

A person arrested pursuant to LAW must be released if no request for extradition is received within DATE of the arrest ( LAW ) .

LAW of LAW ( “ Measures of restraint ” ) governs the use of measures of restraint , or preventive measures ( меры пресечения ) , which include , in particular , placement in custody . Custody may be ordered by a court on an application by an investigator or a prosecutor if a person is charged with an offence carrying a sentence of DATE imprisonment , provided that a less restrictive measure of restraint can not be used ( LAW ) . The period of detention pending investigation may not exceed DATE ( LAW ) . A judge may extend that period DATE ( LAW ) . Further extensions of DATE , or in exceptional circumstances , DATE , may only be granted if the person is charged with serious or particularly serious criminal offences ( LAW ) . No extension beyond DATE is permissible and the detainee must be released immediately ( LAW ) .

LAW ( “ Complaints about acts and decisions by courts and officials involved in criminal proceedings ” ) provides for the judicial review of decisions and acts or failures to act by an investigator or a prosecutor that are capable of adversely affecting the constitutional rights or freedoms of the parties to criminal proceedings ( LAW ) . The court should examine the complaints within DATE from its receipt .

LAW ( “ Extradition of a person for criminal prosecution or execution of sentence ” ) regulates extradition procedures . Upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court , a prosecutor must decide on the measure of restraint in respect of the person whose extradition is sought . The measure must be applied in accordance with the established procedure ( LAW ) . A person who has been granted asylum in GPE because of possible political persecution in the ORG seeking his extradition may not be extradited to that ORG ( LAW ( CARDINAL ) ) .

DATE . An extradition decision made by ORG may be challenged before a court . Issues of guilt or innocence are not within the scope of judicial review , which is limited to an assessment of whether the extradition order was made in accordance with the procedure set out in the relevant international and domestic law ( LAW and CARDINAL ) .

A person may apply for judicial review of decisions and acts or failures to act by a ORG body or a ORG official that are capable of violating his / her rights or freedoms , hindering the realisation of his or her rights and freedoms , or imposing an obligation or liability unlawfully ( Articles CARDINAL § CARDINAL and CARDINAL ) . If the court finds the application well - founded , it must order the ORG body or ORG official concerned to remedy the violation or remove the obstacle to the realisation of the rights and freedoms in question ( Article CARDINAL § CARDINAL ) .

On DATE ORG issued decision no . CARDINAL on the complaint of PERSON about the ex post facto extension of his “ detention during trial ” by ORG decision . It held as follows :

“ LAW provides that the [ trial court ] may ... upon the expiry of DATE after the case was sent to it , extend the defendant 's detention for successive periods of DATE . It does not contain , however , any provisions permitting the courts to take a decision extending the defendant 's detention on remand once the previously authorised time - limit has expired , in which event the person is detained for a period without a judicial decision . Nor do other rules of criminal procedure provide for such a possibility . Moreover , Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW expressly require the court , prosecutor , investigator ... to immediately release anyone who is unlawfully held in custody beyond the time - limit established in the LAW . Such is also the requirement of LAW and CARDINAL of LAW ... which is an integral part of the legal system of GPE , pursuant to LAW ... ”

Verifying the compatibility of LAW ORG with LAW , ORG reiterated its constant caselaw that excessive or arbitrary detention , unlimited in time and without appropriate review , was incompatible with LAW in all cases , including extradition proceedings .

In ORG view , the guarantees of the right to liberty and personal integrity set out in DATE and LAW , as well as the legal norms of LAW of the ORG on preventive measures , were fully applicable to detention with a view to extradition . Accordingly , LAW ORG did not allow the authorities to apply a custodial measure without respecting the procedure established in the ORG , or in excess of the time - limits fixed therein .

The Prosecutor General asked ORG for an official clarification of its decision no . CARDINAL-O of DATE ( see above ) , for the purpose , in particular , of elucidating the procedure for extending a person 's detention with a view to extradition .

ORG dismissed the request on the ground that it was not competent to indicate specific criminal - law provisions governing the procedure and time - limits for holding a person in custody with a view to extradition . That was a matter for the courts of general jurisdiction .

In this decision ORG reiterated that LAW ORG did not imply that detention of a person on the basis of an extradition request did not have to comply with the terms and time - limits provided for in the legislation on criminal procedure .

Article CARDINAL of ORG of DATE , which was ratified by GPE on DATE , provides as follows :

“ CARDINAL . No Contracting State shall expel or return ( ' refouler ' ) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race , religion , nationality , membership of a particular social group or political opinion .

The benefit of the present provision may not , however , be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is , or who , having been convicted by a final judgement of a particularly serious crime , constitutes a danger to the community of that country . ”

LAW ( Law no . GPE of DATE ) incorporated the definition of the term “ refugee ” contained in LAW , as amended by LAW relating to ORG . The LAW defines a refugee as a person who is not a NORP national and who , owing to a well - founded fear of being persecuted for reasons of race , religion , nationality , ethnic origin , membership of a particular social group or political opinion , is outside the country of his nationality and is unable or , owing to such fear , unwilling to avail himself of the protection of that country , or who , not having a nationality and being outside the country of his former habitual residence as a result of such events , is unable or , owing to such fear , unwilling to return to it ( section CARDINAL § CARDINAL ( CARDINAL ) ) .

The Act does not apply to anyone believed on reasonable grounds to have committed a crime against peace , a war crime , a crime against humanity , or a serious non - political crime outside the country of refuge prior to his admission to that country as a person seeking refugee status ( section CARDINAL § CARDINAL ( CARDINAL , CARDINAL ) ) .

A person who has applied for refugee status or who has been granted refugee status can not be returned to a ORG where his life or freedom would be imperilled on account of his race , religion , nationality , membership of a particular social group or political opinion ( section QUANTITY ) .

ORG If a person satisfies the criteria established in LAW ) , or if he does not satisfy such criteria but can not be expelled or deported from GPE for humanitarian reasons , he may be granted temporary asylum ( section CARDINAL § CARDINAL ) . A person who has been granted temporary asylum can not be returned against his will to the country of his nationality or to the country of his former habitual residence ( section CARDINAL § CARDINAL ) .

The ORG General Assembly resolution CARDINAL/CARDINAL of DATE “ Torture and other cruel , inhuman or degrading treatment or punishment ” ( ORG Doc.:A / RES/CARDINAL/CARDINAL ) reads as follows :

“ ORG ...

Urges GPE not to expel , return ( ' refouler ' ) , extradite or in any other way transfer a person to another ORG where there are substantial grounds for believing that the person would be in danger of being subjected to torture , and recognizes that diplomatic assurances , where used , do not release GPE from their obligations under international human rights , humanitarian and refugee law , in particular the principle of non - refoulement ... ”

In his interim report submitted in accordance with ORG resolution CARDINAL/CARDINAL ( ORG . : ORG , DATE ) , the Special Rapporteur of ORG on torture and other cruel , inhuman or degrading treatment or punishment , PERSON , reached the following conclusions :

“ CARDINAL . It is the view of the Special Rapporteur that diplomatic assurances are unreliable and ineffective in the protection against torture and ill - treatment : such assurances are sought usually from GPE where the practice of torture is systematic ; post - return monitoring mechanisms have proven to be no guarantee against torture ; diplomatic assurances are not legally binding , therefore they carry no legal effect and no accountability if breached ; and the person whom the assurances aim to protect has no recourse if the assurances are violated . The Special Rapporteur is therefore of the opinion that GPE can not resort to diplomatic assurances as a safeguard against torture and ill - treatment where there are substantial grounds for believing that a person would be in danger of being subjected to torture or illtreatment upon return .

The Special Rapporteur calls on Governments to observe the principle of non - refoulement scrupulously and not expel any person to frontiers or territories where they might run the risk of human rights violations , regardless of whether they have officially been recognized as refugees . ”

Specifically referring to the situation of torture in GPE and returns to torture effected in reliance upon diplomatic assurances from the NORP authorities , the UN Special Rapporteur on Torture has stated to the CARDINALnd Session of the UN Human Rights Council on DATE :

“ The practice of torture in GPE is systematic , as indicated in the report of my predecessor PERSON visit to the country in DATE . Lending support to this finding , my mandate continues to receive serious allegations of torture by NORP law enforcement officials ... Moreover , with respect to the events in DATE in GPE , the ORG High Commissioner for Human Rights reported that there is strong , consistent and credible testimony to the effect that NORP military and security forces committed grave human rights violations there . The fact that the Government has rejected an international inquiry into the LOC events , independent scrutiny of the related proceedings , and that there is no internationally accepted account of the events , is deeply worrying . Against such significant , serious and credible evidence of systematic torture by law enforcement officials in GPE , I continue to find myself appealing to ORG to refrain from transferring persons to GPE . The prohibition of torture is absolute , and GPE risk violating this prohibition - their obligations under international law - by transferring persons to countries where they may be at risk of torture . I reiterate that diplomatic assurances are not legally binding , undermine existing obligations of GPE to prohibit torture , are ineffective and unreliable in ensuring the protection of returned persons , and therefore shall not be resorted to by GPE . ”

Further referring to the situation of torture in GPE , ORG has stated to the CARDINALrd Session of ORG on DATE :

“ CARDINAL . The Special Rapporteur ... stressed that he continued to receive serious allegations of torture by NORP law enforcement officials ...

Moreover , with respect to the events in DATE in GPE , the ORG High Commissioner for Human Rights reported that there is strong , consistent and credible testimony to the effect that NORP military and security forces committed grave human rights violations there . The fact that the Government has rejected an international inquiry into the LOC events , and any independent scrutiny of the related proceedings , and that there is no internationally accepted account of the events , is deeply worrying . Even more so , given that no independent monitoring of human rights is currently being conducted .

In light of the foregoing , there is little evidence available , including from the Government that would dispel or otherwise persuade the Special Rapporteur that the practice of torture has significantly improved since the visit which took place in DATE ... ”

The ORG High Commissioner for Refugees ' Note on ORG and ORG published on DATE reads as follows :

In general , assessing the suitability of diplomatic assurances is relatively straightforward where they are intended to ensure that the individual concerned will not be subjected to capital punishment or certain violations of fair trial rights as a consequence of extradition . In such cases , the wanted person is transferred to a formal process , and the requesting ORG 's compliance with the assurances can be monitored . While there is no effective remedy for the requested ORG or the surrendered person if the assurances are not observed , non - compliance can be readily identified and would need to be taken into account when evaluating the reliability of such assurances in any future cases .

The situation is different where the individual concerned risks being subjected to torture or other cruel , inhuman or degrading treatment in the receiving ORG upon removal . It has been noted that ' unlike assurances on the use of the death penalty or trial by a military court , which are readily verifiable , assurances against torture and other abuse require constant vigilance by competent and independent personnel ' . ORG addressed the issue in its decision in PERSON GPE ( Minister of ORG ) , contrasting assurances in cases of a risk of torture with those given where the person extradited may face the death penalty , and signalling

' ... the difficulty in relying too heavily on assurances by a state that it will refrain from torture in the future when it has engaged in illegal torture or allowed others to do so on its territory in the past . This difficulty becomes acute in cases where torture is inflicted not only with the collusion but through the impotence of the state in controlling the behaviour of its officials . Hence the need to distinguish between assurances regarding the death penalty and assurances regarding torture . The former are easier to monitor and generally more reliable than the latter . '

In his report to ORG of DATE , the special Rapporteur of ORG Human Rights on torture and other cruel , inhuman or degrading treatment or punishment examined the question of diplomatic assurances in light of the non - refoulement obligations inherent in the absolute and nonderogable prohibition of torture and other forms of ill - treatment . Noting that in determining whether there are substantial grounds for believing that a person would be in danger of being subjected to torture , all relevant considerations must be taken into account , the Special Rapporteur expressed the view that :

' in circumstances where there is a consistent pattern of gross , flagrant or mass violations of human rights , or of systematic practice of torture , the principle of nonrefoulement must be strictly observed and diplomatic assurances should not be resorted to . ' ”

United States Department of State , DATE Country Reports on Human Rights Practices - GPE , CARDINAL DATE .

“ C. Torture and Other Cruel , Inhuman , or Degrading Treatment or Punishment

Although the constitution and law prohibit such practices , law enforcement and security officers routinely beat and otherwise mistreated detainees to obtain confessions or incriminating information . Torture and abuse were common in prisons , pretrial facilities , and local police and security service precincts . Prisoners were subjected to extreme temperatures . Observers reported several cases of medical abuse , and CARDINAL known person remained in forced psychiatric treatment ....

Authorities reportedly gave harsher than normal treatment to individuals suspected of extreme NORP political sympathies , notably pretrial detainees who were alleged members of banned extremist political organizations PERSON ut - GPE ( ORG ) or PERSON . Local human rights workers reported that authorities often paid or otherwise induced common criminals to beat suspected extremists and others who opposed the government . CARDINAL human rights defenders who were arrested reported beatings in pretrial detention facilities .

There were reports of politically motivated medical abuse . Victims could request through legal counsel that their cases be reviewed by an expert medical board . In practice , however , such bodies generally supported the decisions of law enforcement authorities ....

Prison and ORG

Prison conditions remained poor and in some cases life threatening . There continued to be reports of severe abuse , overcrowding , and shortages of food and medicine . Tuberculosis and hepatitis were endemic in the prisons , making even short periods of incarceration potentially life - threatening . Family members frequently reported that officials stole food and medicine that were intended for prisoners .

There were reports that authorities did not release prisoners , especially those convicted of religious extremism , at the end of their terms . Instead , prison authorities contrived to extend inmates ' terms by accusing them of additional crimes or claiming the prisoners represented a continuing danger to society . These accusations were not subject to judicial review .

ORG for the Prevention of Torture 's ( the CPT ) CARDINALth ORG of DATE on their activities covering the period from DATE to DATE expressed concern about reliance on diplomatic assurances in light of the absolute prohibition against torture :

“ CARDINAL . Reference was made in the Preface to the potential tension between a ORG 's obligation to protect its citizens against terrorist acts and the need to uphold fundamental values . This is well illustrated by the current controversy over the use of ' diplomatic assurances ' in the context of deportation procedures . The prohibition of torture and inhuman or degrading treatment encompasses the obligation not to send a person to a country where there are substantial grounds for believing that he or she would run a real risk of being subjected to such methods . In order to avoid such a risk in given cases , certain ORG have chosen the route of seeking assurances from the country of destination that the person concerned will not be ill - treated . This practice is far from new , but has come under the spotlight in DATE as GPE have increasingly sought to remove from their territory persons deemed to endanger national security . Fears are growing that the use of diplomatic assurances is in fact circumventing the prohibition of torture and ill - treatment .

DATE . The seeking of diplomatic assurances from countries with a poor overall record in relation to torture and ill - treatment is giving rise to particular concern . It does not necessarily follow from such a record that someone whose deportation is envisaged personally runs a real risk of being ill - treated in the country concerned ; the specific circumstances of each case have to be taken into account when making that assessment . However , if in fact there would appear to be a risk of ill - treatment , can diplomatic assurances received from the authorities of a country where torture and ill - treatment is widely practised ever offer sufficient protection against that risk ? It has been advanced with some cogency that even assuming those authorities do exercise effective control over the agencies that might take the person concerned into their custody ( which may not always be the case ) , there can be no guarantee that assurances given will be respected in practice . If these countries fail to respect their obligations under international human rights treaties ratified by them , so the argument runs , why should one be confident that they will respect assurances given on a bilateral basis in a particular case ?

In response , it has been argued that mechanisms can be devised for the postreturn monitoring of the treatment of a person deported , in the event of his / her being detained . While the ORG retains an open mind on this subject , it has yet to see convincing proposals for an effective and workable mechanism . To have any chance of being effective , such a mechanism would certainly need to incorporate some key guarantees , including the right of independent and suitably qualified persons to visit the individual concerned at any time , without prior notice , and to interview him / her in private in a place of their choosing . The mechanism would also have to offer means of ensuring that immediate remedial action is taken , in the event of it coming to light that assurances given were not being respected . ”


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger

The applicant was born in DATE and died on DATE .

On DATE the applicant had a work - related accident . Subsequently , he received the status of a partially disabled person .

The applicant 's former employer , the ORG company “ Makeyivvugillya ” ( “ the company ” ) paid the applicant a lump sum accident benefit and awarded him a DATE allowance for his disability .

NORP In DATE the applicant instituted proceedings in ORG against the company and ORG ( “ the Fund ” ) . He sought re - calculation of the above allowances and claimed compensation for losses sustained due to erroneous calculation .

On DATE the court found for the applicant and awarded him CARDINAL NORP hryvnas ( ORG ) , to be paid by the company , and ORG CARDINAL,CARDINAL.CARDINAL to be paid by the ORG .

On DATE the Tsentralno - gorodskoy ORG of ORG instituted enforcement proceedings .

On an unspecified date the ORG paid the applicant the full amount awarded under the judgment .

In the period from DATE to DATE the company partly paid its debt . The judgment remains unenforced .

NORP The relevant domestic law is summarised in the Romashov v. GPE judgment ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .


Preliminary objections rejected (non exhaustion of domestic remedies, six month period);No violation of Art. 5-2;Violation of Art. 5-3;Violation of Art. 3 in respect of ill-treatment;Violation of Art. 3 in respect of ineffective investigation;No violation of Art. 6-1 and 6-3-c;No violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicants , PERSON and his mother , PERSON , were born in DATE and DATE respectively . The first applicant is currently held in FAC . His mother lives in GPE .

The circumstances in which the first applicant was arrested , taken into police custody and detained pending trial , as set out by him in a letter dated DATE , may be summarised as follows .

At TIME on DATE CARDINAL police officers stopped and questioned the first applicant and his female companion NORP in the LOC district of GPE . Both were in possession of false identity papers . They were immediately arrested and , after a wait of TIME at the local police station , were taken to the anti - terrorist branch of the LOC police headquarters in GPE ( “ the branch ” ) .

They were taken into custody in separate parts of the building . On arrival , the first applicant was blindfolded and a group of police officers who said they were members of the “ anti - Dev - Sol ” squad began punching and kicking him , threatening to kill him if he did not reveal his true identity . He was then led to a ground - floor room where he was stripped , had his hands tied together behind his back and was suspended by his arms , a method known as “ NORP hanging ” . For TIME the police officers beat him repeatedly while he was in this position and administered electric shocks through electrodes attached to his feet and genitals .

At TIME carried to another room and made to lie on the floor with his hands still tied behind his back . A man who said he was a member of the secret service told him : “ You belong to PERSON , and if you do n't give us the information we need , you 'll be leaving here feet first ! ” The police officers then started to beat him , aiming some of their blows at his genitals . That lasted until TIME , at which point he was taken to a CARDINAL-sq . m. cell , where he had to sleep naked on the floor .

At TIME he was taken back to the ground floor , tied up and laid on the ground . He suffered a further beating and electric shocks were administered to his feet , the area behind his ears and his tongue . By the time the torturers went to lunch , he had already fainted twice . TIME he was again subjected to “ NORP hanging ” and given electric shocks while having cold water poured over him . He was then left lying on the concrete , naked and blindfolded .

That TIME he was taken back upstairs , where the secret - service agent dragged him by the hair and twice banged his head against the wall . He was then dressed and taken to a forest , where somebody pointed a revolver at his head and urged him to say his “ last prayer ” before firing a blank shot . Immediately after this mock execution , he was escorted back to the branch . There he was again blindfolded and stripped and then placed in a bath of ice - cold water . DATE the police officers continued to ill - treat him .

The ill - treatment ended on Mr Dikme 's DATE in custody . However , he continued to be questioned while blindfolded , and was subjected to a barrage of abuse .

Mr Dikme had no assistance from a lawyer at any time while he was in police custody ; he spent TIME a day in his cell and was not allowed to have any visitors or to read any books or newspapers . The only person he saw after entering the premises of the branch was his companion NORP , although he was not able to speak to her .

In that connection , he produced to the ORG a letter from NORP containing the following passages :

“ PERSON and I were arrested on DATE . ... As soon as we arrived at the first branch they blindfolded us and separated us . Before I was taken to a cell , I saw that they had started to beat him . During DATE I spent in the branch , I only saw PERSON when he was on his way to or from interrogation sessions , and sometimes when he was being taken to the toilet . On each occasion he was blindfolded . Just once , I could see bruises on his eyes . However , when they questioned me they were always insulting ORG and telling me how they had tortured him ... ”

On DATE the branch requested the public prosecutor at ORG ( “ the public prosecutor ” , “ the ORG ” ) to refer the first applicant and GPE to the GPE office of ORG . The public prosecutor consented and on DATE of their detention in police custody – they were examined by a forensic medical expert , who allegedly told the first applicant : “ You 're fighting fit ; there 's nothing wrong with you . ”

The medical report , drawn up that DATE , stated that no traces of blows or physical force had been found on GPE 's body ; only “ old grazes covered by a scab were observed on [ the first applicant 's ] left elbow ” .

DATE the first applicant and Y.O. were interviewed by the public prosecutor and brought before a judge of ORG . They retracted the statements which they had made to the police and said that they had been signed “ under torture ” ; they denied the accusations against them . Y.O. made the following statement : “ I am lodging a complaint against the police officers who tortured me and who ... called themselves ORG . ”

The judge ordered them to be detained pending trial , as he found that there was “ substantial evidence ” of their membership of PERSON and of their involvement in acts of violence carried out by that organisation .

The following comment , signed by PERSON , appeared at the bottom of the order : “ I do not wish to inform anybody that I am being held in detention . ”

After being transferred to FAC , the first applicant was examined by the prison doctor , without a lawyer being present .

In his “ preliminary ” report , dated DATE , the doctor noted the presence of a series of marks on the first applicant 's body . These findings were subsequently reiterated and confirmed in the final report of CARDINAL DATE , drawn up by the Eyüp office of ORG following a further examination of the first applicant by a forensic medical expert from that office :

“ With reference to report no . CARDINAL of DATE , signed by the prison doctor and drawn up in respect of PERSON ... and further to an examination of the latter , the following findings were recorded :

[ Observed ] a scab QUANTITY in diameter in the left axillary region ; a QUANTITY by QUANTITY erosion on the left elbow , which had formed a scab ; CARDINAL parallel circular lesions , which had partly formed a scab , QUANTITY apart on the left wrist ; skin erosions on the proximal phalanges of the thumb , index finger and middle finger and a QUANTITY skin abrasion on the inner side of the distal phalanx of the middle finger of the left hand ; a scab on the right elbow ; QUANTITY scabs on the right outer forearm ; a skin lesion on the right wrist ; scabs measuring QUANTITY on the distal phalanx of the third finger , QUANTITY on the proximal phalanges of the middle , third and little fingers , QUANTITY by QUANTITY and QUANTITY by QUANTITY behind the patella , QUANTITY by QUANTITY in the region of the right thigh , QUANTITY by QUANTITY on the upper part of the right medial malleolus , and QUANTITY by QUANTITY on the lateral malleolus ; a bruise on which a scab had formed on the fifth toe of the right foot and a QUANTITY by QUANTITY scab on the big toe ; a QUANTITY by QUANTITY skin erosion on the upper part of the right foot ; and a QUANTITY by QUANTITY scab on the medial malleolus and QUANTITY by QUANTITY scab on the lateral malleolus .

There are also signs of abrasions which have partly formed scabs and partly healed over , as well as of yellowish and brownish bruises ( whose dimensions were recorded in the preliminary report ) now returning to a normal colour on the fingers of both hands , on both wrists , on the elbows , arms and ankles , on the upper parts of the toes of both feet , and on the right thigh and patella . ”

The forensic medical expert concluded by stating that the above - mentioned sequelae were not life - threatening and prescribing a DATE period of convalescence .

On DATE , the date of the religious festival marking DATE , PERSON sought to visit the first applicant , but was refused permission by the prison managers .

On DATE the first applicant signed an authority for a lawyer to act on his behalf , although he did not see the lawyer in person ( see paragraph CARDINAL below ) .

In an indictment issued on DATE the public prosecutor charged the first applicant and Y.O. with carrying out a series of attacks DATE , the victims of which had included a public prosecutor , a retired general and QUANTITY police officers , and with involvement in a number of acts of violence committed on behalf of the illegal armed organisation Dev - Sol . He sought the death penalty for the first applicant and GPE , under LAW .

On DATE the trial began at ORG . The first applicant filed pleadings in which he denied the charges against him and categorically repudiated the content of the records of statements taken by the police while he was in custody , alleging that the statements had been obtained by torture . He accordingly made formal complaints against the officers responsible for him during his time in police custody , and relied on the medical report of CARDINAL DATE ( see paragraph CARDINAL above and paragraph CARDINAL below ) .

The first applicant submitted , inter alia , that he and Y.O. had had to use false identity papers for fear of police reprisals on account of the criminal record of his sister , who had been killed during a clash with the police in GPE , and that they had passed themselves off as a married couple simply in order to be able to rent a flat more easily . He consequently pleaded not guilty and applied for release on bail .

On DATE and DATE the public prosecutor preferred CARDINAL further indictments , charging the first applicant with carrying out other acts of violence , likewise DATE , including murder , armed assaults and robberies , bomb attacks and assault and battery .

After holding CARDINAL hearings and hearing evidence from QUANTITY witnesses , ORG delivered its judgment on DATE . It held that “ in the light of the evidence , the accused 's guilt [ was ] established ” in relation to some of the offences , which he had committed on behalf of PERSON with the aim of undermining the constitutional order , and sentenced him to death , having regard to the intensity , quantity and seriousness of the offences and to his failure to show any remorse during the trial .

The first applicant 's counsel and ORG at ORG appealed on points of law against ORG judgment on DATE and CARDINAL DATE respectively . In his appeal counsel for the first applicant did no more than complain that the sentence was “ unjust and severe ” , while ORG submitted that the impugned judgment could not be regarded as having been supported by sufficient grounds , since it did not contain details , where they were needed , of the evidence on which the conviction had been based and ORG assessment of that evidence .

In a judgment of CARDINAL DATE , delivered on DATE , ORG set aside the judgment of DATE on the ground that it was “ contrary to LAW and CARDINAL of the Code of Criminal Procedure to deliver a judgment without applying the rule that judgments must be reasoned in such a way as to enable ORG to carry out its review , and without referring in the operative provisions to the substantiated evidence in respect of each of the charges and the assessment made of it ... ” .

ORG consequently remitted the case to ORG , where it is still pending .

After putting forward their defence at the hearing of DATE in ORG ( see paragraph CARDINAL above ) , the first applicant and Y.O. had lodged CARDINAL separate written complaints against their alleged torturers . On DATE , in the light of that and , it would seem , on the instructions of a ministerial authority , the public prosecutor decided to contact the relevant authorities in order to ascertain whether the first applicant had had access to a lawyer while in police custody and/or been subjected to ill - treatment after being taken into custody at FAC .

In a letter dated DATE the head of the branch replied that “ no interview with a lawyer [ had taken ] place , since throughout PERSON time in police custody , no lawyer [ had ] submitted ... a request to that effect ” .

On DATE the governor of ORG stated : “ PERSON ... was not subjected to ill - treatment during his detention and has never lodged a complaint to that effect with our management . There is no risk of his being subjected to ill - treatment while he is held in our prison . Our files also indicate that he had never conferred with a lawyer . ”

On DATE the President of ORG forwarded the complaints filed on DATE to the public prosecutor for action .

In an order of CARDINAL DATE the public prosecutor ruled that he had no jurisdiction ratione materiae and sent the case to the GPE prefecture , pursuant to section CARDINAL ) of LAW ( Law no . ORG – see paragraph CARDINAL below ) .

On DATE ORG of GPE decided that there was no case to answer in respect of the criminal complaint lodged by the first applicant and GPE That decision was served on the first applicant on DATE .

The ORG does not have any other information regarding those proceedings .

At the material time section CARDINAL of Law no . CARDINAL on procedure in the national security courts provided that any person arrested in connection with an offence within the exclusive jurisdiction of those courts had to be brought before a judge within TIME at the latest or , if the offence was a joint one committed outside the region under emergency rule , within DATE , not including the time needed to convey the detainee to the judge .

NORP Before questioning an arrested person , police officers must inform him of the offence of which he is suspected and ask whether he wishes to say anything in reply . With regard to legal assistance , LAW ( “ ORG ” ) provides , in the version applicable in the instant case , that an accused may confer or correspond with a legal adviser only after being detained pending trial , and the judge may decide that certain items in the file which are considered sensitive will not be disclosed to the accused until criminal proceedings have been instituted . In addition , the accused 's legal adviser may not inspect documents in the file until the public prosecutor 's office has preferred the indictment ( Article CARDINAL ) .

Under LAW it is an offence for a government employee to subject a person to torture or ill - treatment ( Article CARDINAL in relation to torture and Article CARDINAL in relation to ill - treatment ) . The authorities ' obligations in respect of conducting a preliminary investigation where acts or omissions that may constitute such an offence are brought to their attention are governed by ORG CARDINAL to CARDINAL CCP . Offences may be reported not only to public prosecutors ' offices or the security forces but also to local administrative authorities . Complaints may be made in writing or orally . If they are made orally , the authority must make a record of them ( Article CARDINAL ) .

Under Article CARDINAL of LAW , any government employee who fails to report to the police or a public prosecutor 's office an offence of which he has become aware in the performance of his duties is liable to imprisonment . A public prosecutor who is informed by whatever means of a situation that gives rise to the suspicion that an offence has been committed is under a duty to investigate the facts in order to decide whether or not there should be a prosecution ( LAW ) .

If the suspected offender is a civil servant and the offence was committed in the performance of his duties , the preliminary investigation of the case is governed by ORG , which restricts the public prosecutor 's jurisdiction ratione personae at that stage of the proceedings . In such cases it is for the relevant local administrative council ( for the district or the province , depending on the suspect 's status ) to conduct the preliminary investigation and , consequently , to decide whether to prosecute . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case .

An appeal to ORG lies against decisions of local administrative councils . If a decision not to prosecute is taken , the case is automatically referred to that court .

With regard to accusations against members of the police force and intelligence services engaged in combating terrorism , section CARDINAL(CARDINAL ) of PERSON no . ORG DATE which was in force at the material time DATE was a lex specialis under which preliminary investigations were subject to the same rule on jurisdiction , but only in respect of offences other than homicide . Subsequently , in a judgment of DATE published in ORG on DATE , ORG annulled that provision with effect from DATE .

Under LAW of LAW taken together with Articles CARDINAL and CARDINAL cited earlier , there is a DATE time - limit for prosecuting offences of ill - treatment and torture committed by civil servants .

From the principles established by the NORP courts when applying the criminal law it is clear that the questioning of a suspect is a means of enabling him to defend himself that should work to his advantage and not a measure designed to obtain evidence against him . While statements made during questioning may be taken into consideration by the judge in his assessment of the facts of a case , they must nonetheless be made voluntarily , and statements obtained through the use of pressure or force are not admissible in evidence . By LAW , as interpreted by ORG , any confessions made to the police or the public prosecutor 's office must be repeated before the judge if the record of the questioning containing them is to be admissible as evidence for the prosecution . If the confessions are not repeated , the records in question are not allowed to be read out as evidence in court and consequently can not be relied on to support a conviction . Nevertheless , even a confession repeated in court can not on its own be regarded as a decisive piece of evidence but must be supported by additional evidence .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by PERSON , a lawyer practising in GPE . The respondent Government were represented by PERSON , Representative of GPE at ORG

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

The applicant is a commercial agent involved in the grain trade and is established as an independent entrepreneur .

On DATE the applicant submitted to the tax authorities his official income declaration for DATE whereby he declared a gross revenue of MONEY ( ORG ) . After deductions , his taxable income was PERSON , in respect of which the applicant was due to pay ORG CARDINAL as income tax .

On DATE the payment of the DATE income tax was due . However the applicant did not have sufficient funds on his account and did not pay the full amount . The outstanding amount was RUR CARDINAL,CARDINAL.CARDINAL .

ORG charged him with tax evasion under LAW ( tax evasion concerning a particularly large sum of money ) . It was stated that the applicant had committed the offence by “ other means ” as opposed to a failure to declare or a false declaration of income .

On DATE ORG examined the case and acquitted the applicant having found that the lack of funds on the applicant ’s account on the payment day was partially caused by his ORG failure to transfer money under the contracts . The prosecutor ’s office appealed against the acquittal .

On DATE ORG , composed of CARDINAL judges , quashed the acquittal having found that the circumstances established by the first instance court did not constitute a valid justification for a failure to comply with the statutory duty to pay tax . It stated that it was the applicant ’s obligation to manage his assets so as to secure funds for meeting the forthcoming tax payments . The appeal court remitted the case to the town court for a fresh determination with the following instructions :

“ When rehearing the case , the [ town ] court must examine the evidence comprehensively , fully and objectively . [ It must also ] determine correctly the question of [ the applicant ’s ] guilt . ”

On DATE the town court re - examined the case and found that the applicant , having received commercial income , dissipated the whole amount including the part that he should have saved for paying tax . It also found that the applicant knew or should have known of his statutory duty to pay tax and was aware what amount he would be required to pay , and that he spent his funds for other purposes knowing that that might prevent him from complying with the tax duty . Having thus established his intentional failure to pay tax , the court found him guilty of tax evasion under Article CARDINAL § CARDINAL of LAW . The applicant was sentenced to DATE imprisonment but was immediately discharged from serving the sentence under the DATE LAW .

The applicant appealed against the conviction asserting , inter alia , that LAW was inappropriately vague because the phrase “ by other means ” was open to misinterpretation . He claimed that he did intend to pay tax but did not have money at the right time .

On DATE ORG dismissed the applicant ’s appeal and upheld the conviction . CARDINAL out of CARDINAL judges in the court composition were the same as on DATE . According to the applicant , the appeal hearing lasted for TIME . The applicant was represented in the proceedings by legal counsel .

LAW , in force at the material time , read , in so far as relevant , as follows :

“ Tax evasion committed through non - declaration of income ... , or by false declaration , or by other means ... shall be punishable ... ”

On DATE the Law no . CARDINALFZ “ On Amendments and PERSON to LAW of the GPE ” excluded the phrase “ or by other means ” from LAW .


Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicants , PERSON and Mr PERSON are NORP nationals who were born in DATE and DATE respectively and live in GPE . ORG ( “ the Government ” ) were represented by PERSON and Ms PERSON , former Representatives of GPE at ORG .

On DATE the applicants were arrested on suspicion of having committed several crimes . They were detained pending investigation .

On DATE ORG convicted the first applicant of unlawful carriage of firearms , forgery , death threats and misappropriation ( Articles CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL of the Russian Soviet Federative Socialist Republic ( “ RSFSR ” ) Criminal Code , hereinafter the “ Criminal Code ” ) and the second applicant of forgery and misappropriation ( Articles CARDINAL and CARDINAL of LAW ) . ORG further acquitted the applicants of several other crimes . The applicants were sentenced to DATE and CARDINAL months’ imprisonment and DATE imprisonment respectively . The applicants were released in the courtroom .

On DATE ORG of the RSFSR upheld the above judgment on appeal .

On DATE the first applicant applied to ORG requesting the court to initiate a supervisory review of his criminal case , to quash the judgment of CARDINAL DATE , as upheld on DATE , and to terminate the criminal proceedings against him owing to the absence of corpus delicti in his actions .

On an unspecified date the President of ORG lodged an application for supervisory review of the judgment of CARDINAL DATE , as upheld on DATE .

On DATE the ORG of ORG of the ORG quashed the judgment of CARDINAL DATE , as upheld on DATE , by way of supervisory review . ORG found that the above judgment could not be considered lawful and well - founded At the same time , the ORG left the remainder of the judgment , that is the acquittal part , in force .

On DATE the Prosecutor of the Smolensk Region discontinued the criminal proceedings in respect of the first applicant partly for want of proof of a crime and partly on the ground that further prosecution was time - barred . The criminal proceedings against the second applicant were discontinued partly because of the lack of corpus delicti in his actions and partly because further prosecution was time - barred .

The applicants appealed against the above decision . In their appeal they expressed discontent with the grounds given for termination of the criminal proceedings against them and insisted on the remittal of their case to the court for its examination on the merits . As a result , on DATE the Prosecutor of the GPE Region quashed the decision of DATE . The preliminary investigation into the case was assigned to ORG .

On DATE and CARDINAL DATE ORG again terminated the criminal proceedings against the applicants on the same grounds as previously . However , on DATE and DATE respectively ORG quashed the above decisions on appeal and resumed the preliminary investigation . ORG noted on both occasions that a criminal case could be terminated on nonexonerative grounds , such as a time - bar on further prosecution , only with the consent of the prosecuted person . As the applicants had never agreed to the termination of the case on this ground the investigation would have to be continued .

On DATE the investigator made the applicants sign a written undertaking not to leave the town .

After the completion of the preliminary investigation , on DATE the case was remitted to ORG of GPE for examination on the merits .

Since the applicants refused to attend the preparatory hearing , ORG decided on DATE to change the above preventive measure to detention on remand .

The second applicant was remanded in custody on DATE ; however , on DATE ORG ordered his release subject to an undertaking not to leave the town .

On DATE ORG upheld on appeal the decision of DATE in respect of the first applicant .

On DATE the first applicant was detained .

On DATE the applicants consented to termination of the criminal proceedings against them owing to the expiry of the statutory limitation period for their criminal prosecution .

On DATE the Monastyrshinskiy District Court of GPE in compliance with LAW ( CARDINAL ) of LAW the ORG discontinued the criminal proceedings against the applicants for being time - barred . The first applicant was released from detention .

On DATE ORG upheld the above decision on appeal .

The first applicant challenged the lawfulness of the decision of DATE , as upheld on DATE , before the ORG of ORG .

On DATE the ORG of ORG acknowledged that the decisions in question had been unlawful and accordingly quashed them by way of supervisory review .

Section VI , LAW , of DATE кодекс РСФСР ) , as in force at the material time , allowed certain officials to challenge a judgment which had become effective and to have the case reviewed on points of law and procedure . The supervisory review procedure ( Articles CARDINAL - CARDINAL of the Code ) is distinct from proceedings in which a case is reviewed in the light of newly established facts ( Articles CARDINAL - CARDINAL ) . However , similar rules apply to both procedures ( Article CARDINAL ) .

Under the terms of LAW , a judgment takes effect and is enforceable from the date on which the appeal court renders its decision or , if no appeal has been lodged , once the timelimit for appeal has expired .

“ The grounds for quashing or varying a judgment [ on supervisory review ] are the same as [ those for setting aside judgments ( which have not taken effect ) on appeal ] ... ”

“ The grounds for quashing or varying a judgment on appeal are as follows :

( i ) prejudicial or incomplete investigation or pre - trial or court examination ;

( ii ) inconsistency between the facts of the case and the conclusions reached by the court ;

( iii ) a grave violation of procedural law ;

( iv ) misapplication of [ substantive ] law ;

( v ) discrepancy between the sentence and the seriousness of the offence or the convicted person ’s personality . ”

Article CARDINAL of the Code of Criminal Procedure provided that the power to lodge a request for a supervisory review could be exercised by ORG , the President of ORG of GPE or their respective deputies in relation to any judgment other than those of the Presidium of ORG , and by the presidents of the regional courts in respect of any judgment of a regional or subordinate court . A party to criminal or civil proceedings could solicit the intervention of those officials for a review .

Article CARDINAL of LAW did not set a limitation period for lodging an application for a supervisory review that might be beneficial to a convicted person .

Under Articles CARDINAL , CARDINAL and CARDINAL of the Code of Criminal Procedure , a request for supervisory review was to be considered by the judicial board ( the ORG ) of the competent court . The court could examine the case on the merits and was not bound by the scope and grounds of the request for supervisory review .

The ORG could dismiss or grant the request . If it dismissed the request , the earlier judgment remained in force . If it granted the request , the ORG could decide to quash the judgment and terminate the criminal proceedings , to remit the case for a new investigation , to order a fresh court examination at any instance , to uphold a first - instance judgment reversed on appeal , or to vary or uphold any of the earlier judgments .

Article QUANTITY provided that the ORG could , in the same proceedings , reduce a sentence or amend the legal classification of a conviction or sentence to the defendant ’s advantage . If it found a sentence or legal classification to be too lenient , it was obliged to remit the case for a new examination .

Under LAW an appeal against a decision of a first - instance court ( including an order authorising or extending pre - trial detention ) lay to a higher court . It had to be lodged within DATE and examined within the same time - limit as an appeal against a judgment on the merits .

The ORG or regional treasury is liable DATE irrespective of any fault by ORG officials DATE for the damage sustained by an individual on account of unlawful criminal prosecution , unlawful application of a preventive measure in the form of placement in custody or an undertaking not to leave the place of residence , or an unlawful administrative penalty in the form of detention or community work ( Article CARDINAL § CARDINAL of LAW ) .

A court may hold the tortfeasor liable for non - pecuniary damage incurred by an individual through actions impairing his or her personal non - property rights , such as the right to personal integrity and the right to liberty of movement ( Articles CARDINAL and CARDINAL ) . Non - pecuniary damage must be compensated for irrespective of the tortfeasor ’s fault in the event of unlawful conviction or prosecution , unlawful application of a preventive measure in the form of placement in custody or an undertaking not to leave the place of residence , or an unlawful administrative penalty in the form of detention or community service ( LAW ) .


Violation of Art. 8;Violation of Art. 10;Violation of Art. 13+8 et 10;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant , who is a sociologist by training , was employed as an expert by ORG at ORG ( see paragraph CARDINAL below ) . He was a close friend of ORG , a prosecutor at ORG , who had become widely known for his public accusations against ORG , PERSON , and for his assertions that ORG and his entourage were harassing him and exerting improper pressure on him , and who committed suicide on DATE , leaving a note which said that the Chief Prosecutor should resign .

Following this event , the applicant was considering resigning from his position . For this purpose , he had prepared CARDINAL draft resignation letters , which he kept in a drawer of his office desk . However , he eventually decided that he would not resign .

On DATE the applicant sent a letter to the DATE newspaper ORG , the DATE newspaper ORG , and ORG . In that letter he made a number of allegations against ORG , PERSON N.F. He averred that the latter had groundlessly discontinued criminal proceedings against high - ranking persons from the executive branch , and had exploited ORG for the purpose of reprisals against political opponents of the ruling party and his own opponents . The applicant also claimed that ORG had created a fearful and morbid working atmosphere in ORG by acting rudely and insultingly towards his subordinates , even , as rumour had it , occasionally physically assaulting them . He further claimed that , according to certain rumours , ORG had heavily beaten his former wife and a female judge . According to the same rumours , ORG was mentally ill and suffered from paranoia , for which he had undergone treatment in a psychiatric hospital . According to the applicant , all these rumours had to be verified by ORG . The applicant also alleged that ORG had deliberately tried to wreck ORG by harassing members of its staff . The applicant further averred that ORG and his entourage , who had repeatedly uttered threats against the late Mr N.D. , were responsible for the latter 's death . According to the applicant , that event had to be investigated with a view to determining whether ORG had incited ORG suicide , which was a criminal offence . Finally , the applicant submitted that he had intended to resign because of the bad atmosphere in ORG , but had eventually decided that the more proper thing to do was to continue performing his work and opposing the nuisance generated by ORG from within .

The letter was published in DATE issue of ORG under the heading “ [ ORG ] finished [ GPE ] off ” and the subheading “ Fear and evil reign in the ORG ” . The CARDINAL DATE issue in fact came out during TIME of CARDINAL May , in accordance with the practice of ORG 's publishers .

At TIME on DATE GPE , a prosecutor from ORG , ordered the police officer who was on duty at the entrance of ORG building in GPE to let him enter in order to seal off the applicant 's office . TIME he came back and handed the police officer a written order to not allow the applicant into the building on CARDINAL and DATE , stating that the latter had been dismissed .

At TIME CARDINAL DATE the applicant tried to enter ORG building in order to go to his office , but was stopped by the police officer at the entrance .

At TIME on DATE the applicant went to ORG building , accompanied by an editor from ORG and other journalists . He tried to enter his office , but could not , as the door was locked and his key did not fit in , the lock having apparently been changed . He then went to the office of a prosecutor from ORG , where he was informed that his resignation letter ( see paragraph CARDINAL above ) had been brought to the attention of ORG and that the latter had accepted it .

At TIME on CARDINAL DATE the applicant was handed an order for the termination of his employment on the basis of LAW ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) , signed by ORG and effective immediately . The applicant objected that he had never in fact tendered his resignation and that the termination was therefore contrary to that provision .

DATE the applicant requested ORG to inquire into the events ( in particular , an alleged search of his office ) and , if justified , to open criminal proceedings for abuse of office against the officials who had committed the alleged acts .

On DATE a commission consisting of the head of the administrative department of ORG , the head of ORG administration and ORG secretary inspected the applicant 's office . It drew up a very detailed inventory of the items that it found in his desk drawers and filing cabinets , which included medicines , compact discs with personal material , notes , notebooks , diplomas , personal photographs , books and personal documents , including medical ones . On DATE the same commission inspected the contents of the hard disk of the applicant 's computer and drew up an inventory of its findings .

On DATE the applicant and his brother went to the applicant 's office to collect his personal belongings . They found that all the cabinets and the applicant 's desk had been sealed , that the cabinets and the desk drawers had been rummaged in , and that the draft resignation letters which the applicant had prepared ( see paragraph CARDINAL above ) were missing , as were his letter of CARDINAL DATE ( see paragraph CARDINAL above ) and his office computer .

In an order of DATE the ORG , to which the applicant 's complaint of DATE ( see paragraph CARDINAL above ) had been referred , refused to open criminal proceedings . It reasoned that in refusing to allow the applicant to enter ORG building on CARDINAL DATE the police officers at the entrance had acted lawfully .

The applicant appealed , arguing , inter alia , that the order was incomplete , because his complaint had included allegations of official misconduct by prosecutors of ORG , who , according to the relevant rules of criminal procedure , could be investigated only by a specially appointed prosecutor from the same office . His complaint should therefore also have been brought to the attention of ORG . In an order of DATE ORG upheld the refusal of ORG to open criminal proceedings against the police officers . However , it agreed that the remainder of the applicant 's complaint fell within the competence of ORG and referred it to it .

In a decision of DATE a prosecutor from ORG refused to open criminal proceedings . He briefly reasoned that in his complaint the applicant had not named particular persons and had not identified the specific provisions of LAW that had allegedly been breached by them . Having studied the file , the prosecutor had not found any evidence of a publicly prosecutable offence relating to the refusal to allow the applicant access to his workplace or relating to his resignation letter .

In the meantime , on DATE , the applicant had brought a civil action against ORG . He alleged that the termination of his contract had been unlawful and sought reinstatement and compensation for loss of salary . He averred , inter alia , that the climate in ORG had deteriorated as a result of the actions of ORG . After the death of ORG he had decided to resign and had prepared a draft resignation letter , but had eventually decided not to and instead to make public his observations about the atmosphere in ORG . In consequence , he had written a letter to ORG and ORG . Later , access to his office had been impeded and his employment had been terminated on the basis of a resignation which he had never in fact tendered .

In a judgment of DATE the ORG declared the termination of the applicant 's employment unlawful , ordered that he be reinstated in his position , and awarded him CARDINAL NORP levs , plus interest , for loss of salary for DATE following the termination of his employment , in line with LAW ( see paragraph CARDINAL below ) . In the facts part of its judgment it described in detail the events set out in paragraphs CARDINAL , CARDINAL , DATE and DATE above . After analysing in detail the evidence , the court found that there was no indication that at any point in time the applicant had in fact tendered his resignation . On the contrary , it was evident from the facts that his draft resignation letter had been taken from his office by a person having access to it during the period from DATE and had been submitted by that person to ORG . This made the termination of the applicant 's employment by ostensible mutual agreement unlawful , as LAW ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) required proof of both parties ' actual intention to terminate the employment .

The Prosecutor 's Office appealed to ORG , arguing that the applicant had in fact tendered his resignation .

In a judgment of DATE the ORG upheld the lower court 's judgment . It likewise described in detail the events set out in DATE , DATE , DATE and QUANTITY above , and held , like the court below , that the available evidence did not indicate that the applicant had in fact tendered his resignation . Therefore , in the court 's view , the termination of the applicant 's employment had been unlawful .

The Prosecutor 's Office appealed on points of law to ORG . It argued that the lower court had erroneously assessed the evidence and established the facts .

NORP In a final judgment of DATE ORG upheld the lower court 's judgment . It fully agreed with its finding that , on the basis of the available evidence , there was no indication that the applicant had in fact tendered his resignation . Therefore , one of the key requirements of LAW ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) had not been complied with , which made the termination of the applicant 's employment unlawful .

The applicant was not reinstated in his former position , as in DATE ORG at ORG had been abolished . However , during the pendency of the proceedings , again in DATE , a similar body was established at ORG and on DATE the applicant was appointed there , apparently independently of the court order for his reinstatement . He has been working there to DATE .

Section CARDINAL of the Judicial Power Act of DATE ( „ Закон за съдебната власт “ ) provides that ORG is unified and centralised , that each prosecutor is subordinate to the relevant senior prosecutor , and that all prosecutors are subordinate to ORG ( the last - mentioned aspect is also provided by LAW ) . ORG may issue directives and give instructions relating to ORG activities ( sections CARDINAL ) and CARDINAL of the Judicial Power Act of DATE ) . ORG oversees the work of all prosecutors , and the prosecutors of the appellate and regional prosecutor 's offices oversee the work of their subordinate prosecutors ( section CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW of DATE ) . Higher prosecutors may perform any acts which are within the competence of their subordinate prosecutors . They may also stay or revoke their decisions in the cases provided for by law ( section CARDINAL(CARDINAL ) of LAW of DATE ) . The higher prosecutors ' written orders are binding on their subordinate prosecutors ( section CARDINAL(CARDINAL ) of LAW of DATE ) .

Until DATE ORG was an agency attached to ORG ( section CARDINAL(CARDINAL ) of LAW of DATE , as in force at the relevant time ) .

Article CARDINAL § CARDINAL ( CARDINAL ) of LAW of DATE provides that an employment contract may be terminated by the parties without notice by mutual agreement expressed in writing .

By LAW , an unlawfully dismissed employee is entitled to compensation amounting to his gross salary for the time during which he has remained unemployed , but not for a period exceeding DATE .


Preliminary objections dismissed;Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lives in GPE .

The applicant receives an old - age pension . The PERSON of DATE on the Calculation and Upgrading of State Pensions ( “ the Pensions Act ” ) introduced , from CARDINAL DATE , a new method for calculating pensions . The idea behind this method , based on what is known as an “ individual pensioner coefficient ” , was to link the pension to the pensioner 's previous earnings .

The authority in charge of the applicant 's pension , ORG of LOC of GPE ( “ the Agency ” ) , fixed the applicant 's coefficient at CARDINAL . The applicant challenged the ORG 's decision in ORG . She argued that her coefficient should be TIME .

On DATE ORG found for the applicant , considering that the ORG had misinterpreted LAW . In particular , it held as follows :

“ ... DATE [ of LAW ] fixes an individual pensioner coefficient at the maximum rate of CARDINAL . This rate is subject to changes hereafter by a federal law at the adoption of a federal law on the budget of the ORG PF [ ORG ] for DATE . ”

ORG decided that the ORG was to recalculate the applicant 's pension using a coefficient of PERCENT from DATE “ until a change in the legislation ” .

The ORG appealed against the judgment . On DATE ORG upheld the judgment , which became enforceable on DATE . The judgment was never executed .

On DATE ORG ( “ the Ministry ” ) issued an Instruction on the “ Application of Limitations ” established by LAW ( “ the Instruction ” ) . The LAW clarified how to apply LAW .

NORP On DATE the ORG lodged an application with ORG for the reconsideration of the applicant 's case owing to newly discovered circumstances . They asked the court to take account of the ORG , which supported their arguments that had been rejected by the court during the initial examination of the case .

Some time thereafter a group of individuals challenged the ORG before ORG of GPE . On DATE ORG dismissed the complaint . It found that , contrary to what the complainants had suggested , ORG had not acted ultra vires in issuing the ORG , and that the ORG 's interpretation of LAW had been correct . On DATE ORG upheld this judgment on appeal .

On DATE ORG examined the ORG 's request . ORG noted that by virtue of LAW enforceable judgments may be reconsidered owing to newly discovered circumstances which could not have been known at the time when the judgment had been delivered . The court further noted that the ORG had been upheld by ORG which , therefore , had found it lawful to interpret article CARDINAL of LAW so that the rate of PERSON should not apply to an “ individual pensioner coefficient ” .

In a decision of DATE ORG granted the ORG 's application , under LAW , quashed the judgment of DATE , as upheld on DATE , and ordered a fresh examination of the case . It stated that its decision was not subject to appeal .

As a result of the fresh examination of the case ORG delivered a judgment of DATE in which it rejected the applicant 's claims in full . The applicant appealed . On DATE ORG dismissed the applicant 's appeal and upheld the judgment of DATE .

From DATE , following changes to the pension regulations , the applicant 's pension was calculated based on a coefficient of CARDINAL .

The Code of Civil Procedure of DATE ( “ CCivP ” ) , in force at the material time , provided as follows :

“ [ Judgments ] which have come into force may be reconsidered on the basis of newly discovered circumstances . The grounds for reconsideration ... shall be as follows :

significant circumstances which were not and could not have been known to the party who applies for reconsideration ; ...

cancellation of a court [ judgment ] or of another authority 's decision which served as legal basis for the [ judgment ] in question . ”

“ ... [ An application for reconsideration of a [ judgment ] owing to newly discovered circumstances ] shall be lodged within DATE after the discovery of the circumstances . ”

“ After examination of an application for reconsideration of a [ judgment ] owing to newly discovered circumstances , the court may either grant the application and quash the [ judgment ] , or dismiss the application .

The court decision by which an application for reconsideration of a [ judgment ] owing to newly discovered circumstances is granted shall not be subject to appeal . ... ”

On DATE ORG of GPE adopted a ruling concerning certain provisions of LAW ( “ CCrP ” ) . In that ruling ORG decided that LAW CCrP ( “ FAC for reconsideration of a [ criminal ] case on the basis of newly discovered circumstances ” , which was in many respects similar to LAW was unconstitutional in that it limited the grounds for the reopening of a criminal case to situations of “ newly discovered circumstances ” . In that ruling ORG suggested that this provision of the ORG prevented rectification of judicial errors and miscarriages of justice . In its ruling of CARDINAL DATE ORG came to the conclusion that LAW was unconstitutional in so far as it had served as a basis for the dismissal of applications for reconsideration of judgments of the Presidium of ORG , where the judgment had been delivered as a result of a judicial error which had not been and could not have been established earlier .

The Instruction of the Ministry of Labour and Social Development of DATE on the “ Application of Limitations ” established by LAW was registered by ORG on DATE and became binding in DATE , DATE after its official publication .