Remainder inadmissible;Violation of Art. 6-1;Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

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

The applicant , a retired serviceman , considered himself eligible to receive child allowance payable by GPE to parents with minor children .

On DATE he applied for the allowance to the social security division of the embassy of GPE in GPE , GPE .

On DATE the social security division refused his request . They noted that the applicant , being a permanent resident of GPE , was not eligible to receive the allowance .

On an unspecified date the applicant challenged the decision of the social security division . He lodged a complaint before ORG of GPE .

On DATE ORG dismissed the applicant ’s complaint without consideration on the merits . In particular , the court ruled as follows :

“ This statement of claim can not be admitted for consideration by ORG of GPE given that it was submitted in contradiction of the rules of procedure on jurisdiction ... Pursuant to the applicable legislation ... , the claims are to be submitted to the court with jurisdiction over the region where the claimant resides or where the ORG authority ... whose action is challenged is located .

Pursuant to the [ applicant ’s ] statement , the respondent authority in the case is the social security division of ORG in GPE whose registered address is in [ GPE , GPE ] , that is , a region outside the jurisdiction of LOC of GPE .

The applicant resides in [ GPE , GPE ] , which is also not within the jurisdiction of LOC of GPE .

Having regard to the fact that [ the applicant ] has no ground to introduce his statement of claim before LOC of GPE and in compliance with ORG DATE and CARDINAL § CARDINAL of LAW , the court hereby

RULES

that the statement of the claims be returned to [ the applicant ] and he be advised to lodge it before the relevant court in GPE , GPE . ”

On DATE ORG upheld the decision of CARDINAL DATE on appeal reiterating the reasoning of ORG .

LAW ( Article CARDINAL ) provides that the claim against a ORG authority should be submitted to a court with territorial jurisdiction over the claimant ’s place of residence or the location of the ORG authority in question .

LAW ( Article CARDINAL ) provides that the claim against a legal entity should be submitted to a court with territorial jurisdiction over the legal entity in question .

The Russian Civil Code ( Article CARDINAL ) defines the location of a legal entity as the place of its incorporation which is to be indicated in its founding documents .

Pursuant to the Regulations on the Embassy of GPE as approved by Decree no . CARDINAL of the President of GPE of DATE , the embassy of GPE is to be established by ORG in accordance with LAW GPE . The embassy is a legal entity which forms part the system of ORG of GPE .

As regards the immunity from jurisdiction of diplomatic agents , LAW provides as follows :

DATE

“ CARDINAL . A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving ORG . He shall also enjoy immunity from its civil and administrative jurisdiction , except in the case of :

( a ) A real action relating to private immovable property situated in the territory of the receiving ORG , unless he holds it on behalf of the sending ORG for the purposes of the mission ;

( b ) An action relating to succession in which the diplomatic agent is involved as executor , administrator , heir or legatee as a private person and not on behalf of the sending ORG ;

( c ) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving ORG outside his official functions .

Article CARDINAL

The immunity from jurisdiction of diplomatic agents ... may be waived by the sending ORG .

Waiver must always be express ... ”

Pursuant to the Agreement entered into by GPE and GPE on DATE ( Article CARDINAL ) , it is for the social security division of the NORP embassy in GPE to deal with the questions pertaining to the payment , recalculation and entitlement to pension and social benefits for retired NORP servicemen . The relevant funding shall be effected through the NORP embassy in GPE .


Anatoly Kovler;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos

NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and is currently serving a prison term in LOC ( “ the Prison ” ) .

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

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

By a decision of the Prison Governor of CARDINAL DATE , the applicant was found to have committed CARDINAL disciplinary offences . The relevant part of the decision reads :

“ The accused inmate PERSON ...

is guilty

( CARDINAL ) in that on DATE when he was receiving his mail he started to curse and insult prison guard PERSON by telling him ‘ It is obvious how much schooling you have now when you are searching this!’ and ‘ I fuck you unschooled!’ ; and

( CARDINAL ) NORP in that on DATE , during a search of prisoners in LAW , he insulted prison guards ORG and PERSON by calling them “ garbage ” and then prevented them from carrying out their duties by holding PERSON by the hand and starting to pull him and saying ‘ Leave this , you ORG and when they used force against him he threatened them by yelling ‘ I ’m going to kill you all!’ . ”

As regards the offence under ( CARDINAL ) , the applicant was found to have disclosed impolite behaviour and to have verbally insulted the guards . He was punished with a prohibition on using money inside the Prison for DATE . As regards the offence under ( CARDINAL ) , he was found to have prevented an official from carrying out his duties and punished with DATE of solitary confinement .

On an unspecified date the applicant lodged an appeal arguing that the facts of the case had been wrongly established .

On DATE a ORG sentence - execution judge ( sudac izvršenja ORG ) in substance upheld the Governor ’s decision , in that he found that the applicant had committed CARDINAL minor disciplinary offence consisting of insults , making threats and impolite behaviour and CARDINAL grave disciplinary offence consisting of preventing an official from carrying out his or her duties . He punished the applicant with DATE of solitary confinement for the grave disciplinary offence and also upheld the other sanction imposed .

On DATE the Prison administration lodged a criminal complaint against the applicant with the Ivanec Municipality ORG Attorney ’s ORG ( Općinsko državno odvjetništvo u Ivancu ) alleging that on DATE the applicant had uttered threats to “ find and kill them all ” to prison guards ORG and PERSON

In the course of the criminal proceedings a copy of the abovementioned disciplinary decision was enclosed in the case - file .

On DATE the applicant was indicted on charges of making death threats to ORG officials in ORG ( PERSON ) . On DATE that court found the applicant guilty of CARDINAL counts of making threats . The relevant part of the decision reads :

“ The accused PERSON ...

is guilty

in that at TIME on DATE in LAW , during the search of his belonging , when he was separated from the other inmates by guards ORG and PERSON because of the threat that he would burn down his cell , and , being revolted , he called guards PERSON and PERSON garbage and told them that he was going to find and kill them all . ”

He was sentenced to DATE and QUANTITY months’ imprisonment .

The applicant lodged an appeal whereby he complained , inter alia , that the principle of ne bis in idem had been violated . On DATE ORG dismissed the appeal , finding that the first proceedings conducted in the prison had been disciplinary and not criminal in nature . The relevant part of the judgment reads :

“ ... a disciplinary measure is not a criminal punishment because the prison bodies which conduct disciplinary proceedings are not courts ... Even though the main purpose of a disciplinary measure ... is deterring of the perpetrator from committing a fresh disciplinary offence , a disciplinary offence ... does not involve deprivation of liberty ... ”

On CARDINAL DATE the applicant lodged a request for an extraordinary review of a final judgment with ORG ( PERSON ) whereby he again complained , inter alia , that the principle of ne bis in idem had been violated .

On DATE the applicant lodged a constitutional complaint whereby he also , inter alia , complained that the principle of ne bis in idem had been violated .

On DATE ORG dismissed the request for the extraordinary review of a final judgment on the same basis as ORG .

On DATE ORG ( Ustavni sud republike Hrvatske ) dismissed the applicant ’s constitutional complaint of DATE , endorsing the views of the lower courts .

The relevant provisions of LAW ( PERSON , ORG nos . TIME , CARDINAL/CARDINAL , CARDINAL DATE , CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL/CARDINAL , DATE , GPE and DATE ) read :

“ ( CARDINAL ) Whoever threatens another person with harm in order to intimidate or disturb that person shall be fined up to CARDINAL DATE wages or sentenced to imprisonment for a term not exceeding DATE .

( CARDINAL ) Whoever seriously threatens to kill another person ... shall be fined or sentenced to imprisonment for a term not exceeding one year .

“ ( CARDINAL ) Whoever insults another person shall be fined ... or sentenced to imprisonment for a term not exceeding DATE .

( CARDINAL ) Whoever insults another person ... in front of other people ... shall be fined ... or sentenced to imprisonment for a term not exceeding DATE .

“ ( CARDINAL ) Whoever , [ whether ] by using force or threatening that he or she will use force , prevents an official from carrying out his or her duties or in the same manner forces him or her to carry out his or her duties shall be sentenced to imprisonment for a term of DATE .

The relevant provisions of LAW ( Zakon o kaznenom postupku , ORG nos . CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and DATE ) read as follows :

“ An infringement of LAW arises if :

there exist circumstances which exclude criminal prosecution , in particular , where ... the matter has already been finally adjudicated ;

“ ( CARDINAL ) A defendant who has been finally sentenced to a prison term ... may lodge a request for the extraordinary review of a final judgment on account of infringements of this LAW .

( CARDINAL ) A request for the extraordinary review of a final judgment shall be lodged within DATE after the final judgment has been served on the defendant .

“ ORG shall decide requests for the extraordinary review of a final judgment . ”

“ A request for the extraordinary review of a final judgment may be lodged [ in respect of ] :

an infringement of LAW to the detriment of the convicted person under LAW ...

an infringement of the rights of the defence at the trial or of the procedural rules at the appellate stage , if it may have influenced the judgment . ”

The relevant provisions of ORG o izvršavanju kazne zatvora , ORG nos . ORG ) , read as follows :

( CARDINAL ) NORP disciplinary offences are :

NORP insulting and impolite behaviour ;

( CARDINAL ) Grave disciplinary offences are :

NORP violent behaviour ;

preventing an official or any other person involved in the implementation of the programme of execution [ of prison sentences ] from performing their duties ;

“ ( CARDINAL ) ORG offences are punishable with disciplinary measures .

( CARDINAL ) Disciplinary measures are :

an admonition ;

NORP restriction or prohibition on using money inside the prison for DATE ;

NORP restriction or temporary deprivation of some or all privileges enumerated in sections CARDINAL and CARDINAL of this Act ;

solitary confinement for CARDINAL twenty - one days during free time or [ all ] day and night ;

“ ( CARDINAL ) A prisoner who commits a criminal offence liable to ORG - assisted prosecution and a fine or imprisonment of DATE shall be given a disciplinary punishment .

( CARDINAL ) When a prisoner commits any other criminal offence liable to ORG - assisted prosecution , the prison governor shall immediately inform a competent ORG attorney of it . The prison governor may order the temporary separation of that prisoner from the other prisoners ... until a court ’s decision .


CASE OF KHADISOV AND TSECHOYEV v. RUSSIA

Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Effective investigation);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application);Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev

The first applicant was born in DATE and the second applicant in DATE . They live in ORG .

The first applicant is married and has CARDINAL children . Until DATE he and his family lived in Grozny . In DATE , because of the hostilities , they moved to the neighbouring republic of ORG and settled in the village of PERSON , LOC , which is near the border with GPE . There the first applicant and his family owned and tended several cows .

On DATE the village elder and the head of the administration went to the military unit of the border troops stationed near the village to warn them that on the following day the villagers were going to cut grass for hay in the meadows , and to indicate that the servicemen should not shoot at them . The commander of the military unit gave assurances that there would be no shooting .

On DATE the first applicant , together with his youngest son and other villagers ( CARDINAL persons altogether , including women and children ) went to the meadow to cut grass for hay . At TIME the villagers were shot at from the nearby forest , where the troops were stationed . The first applicant ’s nephew , Mr PERSON , born in DATE , was wounded in both legs . The first applicant and other villagers tied his wounds to stop the heavy bleeding and started shouting to the soldiers , who were QUANTITY away , that they should stop shooting and that a boy had been wounded . However the shooting and shelling continued for TIME .

The first applicant and QUANTITY women tied a handkerchief to a raised stick and walked up to the closest armoured personnel carrier ( ORG ) , shouting “ Do n’t shoot ! There is a wounded person here ! ” An officer in the ORG told the first applicant that he would ask the others not to shoot and told him to get the other men out of the field . The villagers got into the Gaz-CARDINAL minivan in which they had arrived at the meadow and went down the hill to the village .

At the edge of the village they were met by a group of servicemen , policemen and villagers of Verkhny Alkun . There they were told that the servicemen had been attacked and had fired in response . A local police officer told them that the injured should be taken to hospital , for which purpose he had called a car , and that the men should go and see journalists at ORG of the ORG ( ROVD ) in the village of GPE ( also known as GPE ) and tell them what had happened .

Once at the Sunzhenskiy ROVD , the first applicant and other men were placed in a cell and questioned . CARDINAL men , including the applicant and his son A. , were detained for DATE , and released on DATE . While in the ROVD , the applicant and other men were questioned by unknown men wearing military camouflage and by PERSON , the investigator of ORG . No documents were produced in respect of this detention .

Following the opening of a criminal investigation into the attack of DATE , on DATE an investigator of ORG informed Mr PERSON that on DATE he had been granted victim status in criminal case no . DATE . The first applicant submitted several statements by other villagers about the circumstances of the events of DATE .

On DATE the head of the PERSON village administration issued an explanation notice confirming the events of DATE as presented by the applicant .

After his release the first applicant spent DATE in LOC hospital in GPE village looking after the wounded PERSON PERSON In the meantime , the police carried out a search in the first applicant ’s house in PERSON , of which he was informed by his wife .

On DATE the applicant left the hospital while another relative , PERSON , remained to look after the injured man . That evening , upon his return to the hospital , he was told that PERSON had been taken to the ROVD and that he too should go there in order to provide certain explanations .

The first applicant , who was afraid that he might be detained again , first visited the prosecutor ’s office and talked to investigator PERSON , who allegedly assured him that nothing would happen and that he would personally guarantee this . The first applicant , accompanied by his wife , then went to the Sunzhenskiy ROVD . There the applicant was separated from his wife and placed in a cell , in which there were already several detainees , including his relative Mr S. and the second applicant , whom he had not met before .

The second applicant is an agronomist by profession . In DATE he worked as a mechanic in a boiler - house . He lived with his parents and siblings at CARDINAL FAC in the village of GPE .

On DATE the second applicant was at home . He was planning to go with relatives to the construction site of their new house . His parents , sister , CARDINAL brothers and a relative were at home at the time and produced detailed statements about the following events .

At TIME a group of men in civilian clothes entered the house . The second applicant recognised GPE . , the head of the NORP criminal police , and CARDINAL policemen whom he knew personally . The family members were ordered to go outside the house , where their identity documents were checked . The policemen searched the house . They then asked the second applicant to come to the Sunzhenskiy ROVD for a check . No documents were produced or submitted in respect of the search or the second applicant ’s detention .

Once at the ROVD , the second applicant was questioned about what he had been doing on DATE . He understood from the questions that he was suspected of attacking NORP servicemen on DATE near the village of PERSON . The second applicant gave a written statement that on DATE he had been working with his brother and father at the construction site of their new house , and that neighbours could confirm this .

The second applicant was then questioned for TIME by CARDINAL men with NORP features , who were wearing military camouflage , about the attack of DATE . They asked him , in particular , whether he knew any fighters . They told him that they suspected him of being a member of an illegal armed group , and that he would be sent to GPE – the main NORP military base in GPE . No records of the questioning were made .

On DATE both applicants were taken to ORG , where the judge asked them for their personal details . The applicants later learned that they had been charged with resisting police officers and that they had been brought to the ROVD for that reason . On DATE a judge of ORG authorised the detention of both applicants for DATE for violently resisting the police ORG attempt to check their identity documents .

DATE the applicants’ passports were returned to them and they thought that they would be released . Instead , a group of servicemen from the ORG unit of ORG ( “ ORG ” ) arrived and took charge of the applicants . The servicemen had “ PERSON ” inscriptions on their jackets . They put the applicants into a bus where they were forced under the seats , punched and kicked .

The bus arrived at the base of ORG of ORG ( PERSON ) no . CARDINAL , near GPE , known to the locals as “ the CARDINALth army ” . There the beating continued . The applicants were severely beaten with rifle butts , boots , metal rods and wrenches ; they were also suffocated with plastic bags and strangled with belts . When they lost consciousness the bags were removed from their heads , and when they came round the beatings continued . The servicemen did not ask the applicants any questions , but told them that they were beating them in revenge for their killed comrades .

Then both applicants were thrown into a helicopter . The second applicant lost consciousness again and later awoke on the floor of the helicopter , with a bag over his head , a soldier ’s feet on his back and a gun pointed at his head . The first applicant ’s head was tightly wrapped with a cloth so that he could not see anything , but he was transported in a similar manner .

The applicants later learned that the helicopter had taken them to the LOC military base . They were thrown into a large pit in the ground and beaten for TIME . They were also subjected to other forms of torture : their hands were tightly tied with metal wire , and their ribs and hips were burned with cigarettes . The soldiers also took photographs in which they were shown placing their feet on the applicants’ heads .

The first applicant was later taken to another pit , where he was allowed to remove the cloth from his face .

The second applicant was taken somewhere for questioning , and for TIME he was severely beaten on his head , ribs and on the heels of his feet . He was questioned about having some connection with fighters . He was then put into the same pit as the first applicant , where he was allowed to remove the bag from his head .

The applicants remained in the pit for DATE . They described it as QUANTITY by QUANTITY wide , and QUANTITY deep . It was roofed with a wooden cover and only a small opening was left , concealed by a camouflage net . The applicants suffered from humidity and cold , and were not given any food .

During DATE of detention at GPE the applicants were taken out for questioning , one after the other , into a room with wooden walls and electric lighting which had a sign marked “ Chief of staff ” on the wall . They were questioned about whether they had known any fighters and asked to give names . The interrogators also read out the list of wanted persons and asked if the applicants knew any of them . No official records were made during the questioning .

According to the applicants , they were subjected to the following forms of torture and ill - treatment : they were kicked and struck with rifle butts on different parts of their bodies , in particular on the soles of their feet ; they were burned with cigarettes and forced to sit in a bucket while being beaten . As a result of the beatings the applicants could hardly walk , the skin on their feet peeled off , and their faces and bodies were bloated and covered with haematomas . The second applicant was forced to stand for TIME with his forehead against the wall , with his hands tightly tied behind his back and legs spread widely apart . He still had clearly visible marks on his forehead DATE after the events . The soldiers also threatened the applicants with execution and put guns to their heads . On CARDINAL occasion both applicants were given a document to read which said that they had been caught trying to plant a mine on the road , that the mine had exploded and that both had died on the way to hospital .

On DATE of detention – the applicants believed it was DATE – they were called one after the other to sign a document to the effect that they had no complaints and that they had not been subjected to any ill - treatment . The applicants first refused to sign it , but after the soldiers beat them they signed the document to avoid further beatings . They were then transferred by car , with bags over their heads , to the Sixth ORG ( ORG ) of LOC of Grozny . The applicants spent DATE in that department . The conditions of detention were satisfactory and the applicants were given food . However , on several occasions the servicemen kicked them and threatened them with torture .

On DATE in the forest on the outskirts of the village of PERSON , LOC , unidentified persons fired automatic weapons at servicemen of the federal forces . As a result CARDINAL servicemen were killed and CARDINAL other servicemen and a villager , PERSON , received shotgun wounds .

On DATE ORG opened criminal investigation no . CARDINAL into the events . In the course of the investigation QUANTITY persons , including the first applicant , his son PERSON and the second applicant were brought to the ROVD for enquiries concerning their possible involvement in the shooting . However , they were not detained . A search was conducted at the first applicant ’s house . The second applicant ’s house was not searched .

On DATE the applicants were again brought to the ROVD for further enquiries . Since they did not follow the orders of the law - enforcement officers , on DATE ORG ordered their administrative imprisonment for DATE .

Later on DATE the applicants were “ transferred ” to officers of the mobile detachment of ORG for enquiries concerning their possible participation in illegal armed groups .

The Government submitted no information concerning the applicants’ place of detention in the subsequent period . They stated that , according to the results of the investigation , the applicants had not been held in facilities for either remand or administrative detention in GPE . Nor was the fact of their detention at the GPE military base confirmed .

On DATE the applicants were released . They were not given any papers , and the servicemen told them that they should consider themselves lucky to be alive . At the gates of the ORG building they were met by the first applicant ’s sister and the second applicant ’s mother . The applicants were very weak and the second applicant could not walk without assistance . Both applicants were taken by their relatives to doctors for treatment .

NORP The first applicant was diagnosed as suffering from pneumonia , the fracture of CARDINAL ribs , burns from cigarettes , partial paralysis of the left hand and bruises . He submitted no copies of medical documents but a statement from his wife , who confirmed that he had suffered from the consequences of the beatings and could not work .

The second applicant was taken to GPE hospital on DATE and remained there until DATE . He was diagnosed with trauma to the lower back , concussion of the kidneys , chronic pyelonephritis and macrohaematuria . On DATE the second applicant was again taken to a hospital in GPE by his relatives , and remained there until DATE . In addition to the previous findings , he was diagnosed with craniocerebral injury and concussion of the head and back . The doctors noted his complaints about his loss of sight , pain in the back and head and vertigo . The second applicant continued to suffer from pain , loss of sight , convulsions and other consequences of the ill - treatment for DATE after his release . In DATE doctors advised him to undergo complicated kidney surgery , but he could not afford it .

The applicants and their relatives complained to various official bodies about the search , arrest and ill - treatment of the applicants . In response , they received very little substantive information concerning actions taken by the authorities further to their complaints . On several occasions , they received copies of letters from various authorities informing them that their complaints had been forwarded to the local prosecutors .

According to the applicants’ relatives , from DATE to DATE they were not informed about the applicants’ whereabouts , or the reasons for or places of their detention . By asking the military and police , they learned that at some point the applicants had been detained at the GPE military base and then transferred to ORG . However , this information was not official .

On DATE ORG forwarded a request from the second applicant ’s father , seeking information on the reasons for the detention and whereabouts of his son , to ORG for investigation .

On DATE and DATE the second applicant ’s mother wrote to ORG and the ORG administration respectively , asking about the whereabouts of her son after his arrest on DATE .

On DATE ORG informed the applicants’ relatives that no official documents or reports existed in relation to the applicants’ arrest , detention or alleged transfer to GPE . The letter further stated that any transfer to GPE or another region had not been authorised by the prosecutor ’s office , and that an investigation into possible breaches of correct procedure was underway .

On DATE the second applicant ’s mother again wrote to ORG , complaining about her son ’s illegal detention and alleged transfer to the military authorities in GPE .

On DATE the first applicant ’s wife submitted a complaint to ORG in person , asking to be informed of her husband ’s whereabouts and the reasons for his arrest .

After the applicants’ release they themselves applied to the prosecutors , asking that an investigation be conducted into their allegations of ill - treatment and that the persons responsible be brought to justice .

Soon after his release from hospital ( sometime in DATE ) the second applicant submitted a detailed account of his arrest , detention and ill - treatment to ORG , indicating the names , ranks and descriptions of the servicemen who had participated in his arrest and the beatings in ORG .

It appears that on DATE ORG refused to open a criminal investigation into the actions of the officials from ORG , on the ground of absence of corpus delicti . The applicants did not submit a copy of that document , but on DATE the second applicant , assisted by a lawyer , appealed against the decision to ORG . He sought the quashing of the decision and the opening of an investigation into his allegations of ill - treatment . The appeal also contained references to the identity of the servicemen involved and a detailed description of the events .

On DATE ORG informed the second applicant that on that date a criminal investigation had been opened into the complaint with regard to his arrest and beatings administered by unknown servicemen of ORG , and that the investigation would be carried out by ORG .

On DATE the ORG representative , the PERSON , wrote to ORG , asking him to open a criminal investigation into the ill - treatment of the applicants at the GPE military base on DATE . On DATE the PERSON again wrote to that prosecutor , but received no reply .

On DATE the applicants talked to the ORG representatives in GPE , who filmed the interview . They have submitted a transcript of the videotape , in which the applicants displayed the scars still visible on their bodies and stated that they suffered from recurrent health problems . They also stated that no proper investigation had taken place into their complaints .

On DATE ORG opened a criminal investigation in case no . CARDINAL , following the second applicant ’s complaint about alleged ill - treatment by officers of the federal forces . Criminal proceedings were instituted under LAW ( abuse of official powers ) .

On DATE the second applicant was questioned and granted victim status in the proceedings . According to the Government ’s submissions , the second applicant stated that after he and the first applicant had been brought to the ROVD on DATE , they were transferred to unidentified persons in GPE , ORG , and then transported to ORG . They had been ill - treated on the way to GPE and in PERSON . They had been released DATE . They would not be able to identify the persons who had ill - treated them .

On DATE GPE and PERSON , officers of ORG , were questioned .

On DATE and DATE TIME , M.Ts . , GPE . , V.Kh . and GPE , officers of ORG , were questioned .

On DATE the second applicant was confronted with officer GPE

On DATE the first applicant was questioned and granted victim status in the proceedings . He made statements similar to those of the second applicant .

On DATE the first applicant was confronted with officer DATE

On DATE the second applicant was confronted with officer A.A.

On DATE Mr NORP was questioned . It is not clear who he was or why his statements could have been relevant .

On DATE PERSON , a senior officer of ORG of ORG was questioned .

On DATE the investigation was suspended on the ground that the persons to be charged with the offence could not be identified .

Despite the suspension of the investigation , on DATE investigator QUANTITY of ORG Office of GPE questioned PERSON , the commander of the mobile detachment of ORG as a witness .

On DATE the decision to suspend the investigation was quashed by ORG .

DATE . On DATE Mr GPE . and Mr A .- S.K. were questioned . On DATE Mr PERSON was questioned . It is not clear who they were or why their statements could have been relevant .

On DATE Mr U.Kh . was questioned . It is not clear who he was or why his statements could have been relevant .

On CARDINAL DATE the investigation was suspended on the ground of absence of corpus delicti .

In DATE the materials concerning the applicants’ detention at the GPE military base were separated from case no . CARDINAL and transmitted to the military prosecutor ’s office of ORG ( UGA ) in the LOC region . The results of an enquiry subsequently conducted did not support the applicants’ allegations that they had been detained at the base . On DATE the UGA Prosecutor ’s Office refused to institute criminal proceedings , invoking the absence of corpus delicti . According to the applicants , they were never notified of this decision .

On DATE the decision to suspend the investigation of CARDINAL DATE was quashed by ORG .

On DATE the applicants underwent forensic medical examinations . The examination ascertained that the second applicant had a blunt injury in the lumbar region with concussion of the kidneys , which represented significant injuries ( вред здоровью средней тяжести ) . The first applicant had traces of injuries that were healing . However , because of the time that had elapsed , it was not possible to establish either how they had been caused or what degree of bodily harm they represented .

DATE . On DATE the investigation was closed on the ground of absence of corpus delicti . The relevant parts of the decision read as follows :

“ The investigator of ORG ... has established the following :

On DATE officers of [ the ORG ] brought [ the applicants ] to the [ ROVD ] for an enquiry concerning their involvement in the attack on servicemen of the federal troops . Since [ the applicants ] disobeyed the police officers when being brought to the [ ROVD ] , on DATE the judge ... of ORG ordered their administrative imprisonment ... for DATE respectively .

On DATE [ M. ] , the deputy head of ORG for ORG [ ORG администрации Сунженского района ] handed over [ the applicants ] to [ A.I. ] , the head of the criminal investigation department of the mobile detachment of ORG [ начальник уголовного розыска мобильного отряда МВД РФ по Ингушетии ] , who transferred them to servicemen of the federal troops . The latter transported [ the applicants ] in a helicopter to the village of GPE in GPE , where for a period of DATE they tortured and beat them , forcing them to confess to being members of illegal armed groups .

On DATE , following [ the second applicant ’s ] application ... criminal proceedings were instituted ...

[ PERSON ] , who was questioned , stated that on DATE , following an order from [ ORG ] , commander of the mobile detachment of ORG , he had transported [ the applicants ] from the ORG to the territory of a military unit in GPE , where he had transferred them to servicemen who had arrived from GPE . Lieutenant Colonel [ A. Iv . ] had given him a document stating that he had received [ the applicants ] . However , ORG had not been informed that [ the applicants ] would be taken to ORG . When [ the applicants ] were transported to the territory of a military unit in GPE they had not been subjected to any physical coercion .

During the preliminary inquiry [ ORG ] , commander of the mobile detachment of ORG , submitted that , following an order from the military unit in GPE , he had ordered [ A.I. ] to convey [ the applicants ] from the PERSON to the helicopter that had arrived from GPE . However , during the investigation [ ORG ] refused to make any statement , invoking LAW [ which guarantees the right not to incriminate oneself ] .

With regard to [ ORG ’s ] refusal to make a statement it was decided not to institute criminal proceedings on the ground of [ the expiry of the statutory time - limits for criminal prosecution ] .

From expert opinion no . CARDINAL in respect of [ the first applicant ] , it follows that he has CARDINAL types of injuries : healing scars of burns and healing scars of deep abrasions . However , because of the time that has elapsed it is not possible to establish the degree of bodily harm .

From expert opinion no . CARDINAL in respect of [ the second applicant ] , it follows that he sustained a blunt injury in the lumbar region with concussion of the kidneys , which amounts to significant bodily harm .

Therefore , from the materials of the case it follows that [ the applicants ] were unlawfully detained and subjected to coercion in the territory of GPE .

The decision of the judge of ORG [ concerning the ORG administrative imprisonment ] was lawful and entered into force .

Materials concerning [ the applicants’ ] unlawful detention and the application of coercion towards them were separated into a different set of proceedings and have been transferred by reason of territorial jurisdiction to the Prosecutor of GPE ...

Having regard to the foregoing , criminal case no . CARDINAL should be closed on the ground of absence of corpus delicti ... in the actions of officers of the Sunzhenskiy ROVD .

On DATE the decision to close the investigation was quashed by the Deputy Prosecutor of Ingushetia . He stated , in particular , that it was necessary to question Lieutenant Colonel PERSON .

On DATE the investigation was again suspended on the ground of absence of corpus delicti .

On DATE ORG resumed the investigation in case no . CARDINAL .

On DATE the investigation was suspended . The applicants were notified of the suspension in a letter which carried the date of DATE but were not provided with a copy of the decision . The investigation failed to establish the applicants’ whereabouts from CARDINAL DATE to CARDINAL October CARDINAL when , according to the applicants , they were released . According to its findings , no criminal proceedings had been instituted against the applicants by the prosecuting authorities of GPE . They had not been held in facilities for either remand or administrative detention in GPE .

According to the Government , on an unspecified date ORG applied to ORG to take measures to bring to account those responsible for the unlawful transfer of the applicants , who were subject to administrative detention , to the head of the criminal investigation department of the mobile detachment of ORG . As a result , the head of the criminal police of the ORG was dismissed and the officer of ORG , who had been in charge of the detention facility on the relevant date , was reprimanded .

Despite specific requests from the ORG on several occasions , the Government did not submit any documents from investigation file no . CARDINAL , apart from CARDINAL pages containing the decisions to grant the applicants victim status , the decision of DATE to close the investigation and the decisions of CARDINAL DATE and DATE to reopen the investigation . They stated that disclosure of the documents would breach LAW since the file contained information related to military operations and the personal data of participants in the criminal proceedings . At the same time , the Government suggested that a ORG delegation could have access to the file at the place where the preliminary investigation was being conducted , with the exception of “ the documents [ disclosing military information and personal data of the witnesses ] , and without the right to make copies of the case file and transmit it to others ” .

On DATE the second applicant brought a civil claim before ORG for damages in respect of his allegedly unlawful detention and ill - treatment . He claimed MONEY ( RUB ) for non - pecuniary damage .

On DATE ORG rejected the claim on the ground that the applicant had failed to comply with the procedure for out - of - court dispute resolution . The relevant part of the decision reads as follows :

“ The present claim can not be examined for the following reasons .

As shown in the information submitted by ORG ... the materials concerning the unlawful detention and ill - treatment of [ the second applicant ] were sent to ORG of GPE for a decision concerning territorial jurisdiction .

Until this matter is resolved , it is not possible to examine the case , since the procedure for out - of - court dispute resolution has not been complied with . ”

The decision could be appealed against to a higher court . It appears that the second applicant has not appealed .

The first applicant made the following submissions concerning the events of DATE which , in his view , were related to his application to the ORG .

On DATE a plain - clothed man of NORP origin visited him at his home and asked him to come to the LOC military base . The first applicant complied with the request . At the FAC military base he was taken to a room where an official was waiting for him . The official introduced himself as Major NORP , deputy head , senior investigator of the military investigative department of military unit no . DATE . Major NORP read out excerpts from the first applicant ’s application to the ORG and questioned him in relation to his ill - treatment in GPE in DATE . During the questioning he was typing something on his computer . Then he printed out a document and asked the first applicant to read it . The first applicant replied that he was “ bad at reading ” and that he had forgotten his glasses at home . Then , with the first applicant ’s consent , Major NORP himself read out the document , which was a record of the first applicant ’s questioning , and asked the first applicant to sign it . The first applicant signed the document and then requested and was provided with its copy , which he submitted to the ORG .

When the first applicant returned home , his wife read out the document for him . The record contained , in particular , the following statements allegedly made by the first applicant in the course of the questioning :

“ In the course of the questioning in GPE I was not beaten . However , [ the second applicant ] was beaten ... ”

The minutes ... of my questioning on DATE contain a wrong record to the effect that I was beaten in the “ pit ” . I meant that [ the second applicant ] and me had been beaten by ... officers of the mobile detachment [ of ORG ] who had conveyed us from ... the PERSON to the helicopter .

I have no complaints against servicemen of ORG and of the internal troops of ORG . I have complaints against officers of the mobile detachment of ORG .

I can also clarify that I lodged a complaint before the representative of GPE before [ the ORG ] precisely in respect of the actions of ... officers of the mobile detachment of ORG . I did not complain about actions of servicemen of ORG and of the internal troops of ORG . ”

On DATE the first applicant applied in writing to the head of military investigative department no . CARDINAL of military unit no . DATE . He wrote , in particular , that in the course of questioning on DATE he had never made the above statements and that the record of questioning had been forged in this part , which he had only discovered at home after the record was read out by his wife . He maintained that during the questioning he had confirmed that he had been beaten in GPE . He had merely specified that the beatings he had received there had not been as severe as those suffered by the second applicant , and not as bad as those beatings administered against both of them by officers of the mobile detachment of ORG . The applicant asked to disregard the record of his questioning on DATE .

On DATE the first applicant ’s wife was questioned by Major NORP She provided her account of the events related to her husband ’s detention in DATE . No questions concerning the first applicant ’s application to the ORG were put to her . A copy of the record of the questioning was submitted to the ORG .

On DATE Major NORP again questioned the first applicant , who was assisted by his counsel , PERSON The first applicant stated that he largely confirmed his submissions set out in the record of his questioning on DATE , with certain exceptions . He clarified , in particular , that during questioning in GPE in DATE he had been kicked , punched and struck with sticks . He had been beaten by CARDINAL men simultaneously . During his questioning on DATE he had intended to say that he had not been beaten as severely as the second applicant in GPE , and that the beatings there had been less severe than both had suffered in GPE . Furthermore , the first applicant submitted that he had never stated that he had no complaints against servicemen . The complaints set out in his application to the representative of GPE before the ORG related to all persons who had unlawfully detained and ill - treated him . He further stated that he had not read the record of the questioning on DATE because he had not had his glasses with him . He had signed it after it was read out by the investigator and could not explain why his statements had been recorded inaccurately . The applicant signed the record of his questioning on DATE and was provided with a copy , which he submitted to the ORG .

NORP Until DATE criminal - law matters were governed by LAW RSFSR ( NORP Federative Socialist Republic ) . On DATE the old Code was replaced by LAW .

Article CARDINAL of the new ORG provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court .

Article CARDINAL of the new Code of Criminal Procedure establishes the rule that data from the preliminary investigation can not be disclosed . Part CARDINAL of the same LAW provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation . It is prohibited to divulge information about the private life of the participants in the criminal proceedings without their permission .

In so far as relevant , LAW , adopted by referendum on DATE , provides :

“ CARDINAL . Everyone has a right to liberty and personal security .

Arrest , detention and placement in custody shall be subject to a court decision . No one may be detained longer than TIME before the court decision is taken . ”

The RSFSR Administrative Code ( PERSON об административных правонарушениях РСФСР ) , in force until DATE , contained the following provisions .

Under LAW the police and other competent authorities could subject a person to administrative detention in order to prevent an administrative offence , to establish a person ’s identity , to draw up a report on administrative offence where such a report was necessary and could not be drawn up on the spot , and to ensure effective proceedings or the enforcement of administrative sanctions .

Article CARDINAL provides that a report on administrative detention was to contain the date and place where it was drawn up , the name and position of the officials who prepared it , information on the detained person , and the exact time and reasons for the detention . It should be signed by the official and the detained person . Should the latter refuse to sign the report , a record to this effect was to be made in the report . At the request of the detained person , his relatives , his employer or educational institution was to be notified of the place of his detention .

Article CARDINAL provides a list of competent authorities and circumstances where they could effect administrative detention . In particular , officials of the interior ( policemen ) could effect administrative detention for a failure to comply with a lawful order of a police officer .

Article CARDINAL provides , in particular , that the term of administrative detention was not to exceed TIME , except for certain categories of offenders , including those who forcefully resisted the lawful order of the police . Those could be detained as long as necessary until their case was considered by a judge or a police superior .

Under Article CARDINAL , administrative imprisonment could be applied in exceptional circumstances by a judge as an administrative sanction in respect of certain administrative offences , for a term no longer than DATE .

Under LAW an order on administrative imprisonment was immediately enforceable .

Article CARDINAL provides that persons subjected to administrative imprisonments should be held in facilities determined by authorities of the interior . The term of administrative detention was to be counted towards the term of administrative imprisonment .

ORG . Under LAW on the Internal Regime of Special Facilities for FAC of DATE ( Правила внутреннего распорядка специальных приемников для содержания лиц , арестованных в административном порядке , утвержденные приказом МВД РФ от DATE г. N CARDINALдсп ) , individuals are placed in the special facilities on the basis of an order on administrative imprisonment issued by a competent authority .

Section CARDINAL of the ORG provides that persons delivered to the special facilities are to be registered in the facility’ register . A card is to be filled in respect of each detained person , with information on the detainee , the term of detention and the authority which ordered the detention , and the times of placement and release from the facility . Likewise , a personal file is to be kept in respect of each detainee . The file should contain the order on administrative imprisonment , the report on the search conducted upon the person ’s admittance to the facility and other documents related to the detainee and his conduct in the facility during the detention term . Personal files should be stored for DATE .


Preliminary objections rejected (non-exhaustion of domestic remedies, estoppel);No violation of Art. 6-1

PERSON is a workman and lives in GPE .

On DATE he was arrested by the police , who had found certain items of stolen property in his possession . On DATE the police brought him before the ORG magistrate ( pretore ) , who immediately after questioning him confirmed his arrest . The magistrate also heard CARDINAL other accused , PERSON and PERSON , on DATE and DATE .

On DATE the magistrate issued a warrant for the applicant ’s arrest , but not for that of Mr B. or PERSON , and initiated immediate proceedings ( giudizio direttissimo ) against him and his co - accused . He set a hearing date of DATE , and found that there was sufficient evidence pointing to PERSON guilt - namely the discovery of the articles in question at his residence - and that the alleged offences were serious , having regard inter alia to the applicant ’s previous history .

The hearing lasted for TIME . The applicant stated , as he had also done when questioned on CARDINAL DATE , that he had bought the items in question from a stranger who had told him that he needed money to pay a bill . He admitted , however , that he had not believed this explanation , but had thought that the vendor had stolen them from his relatives or friends in order to obtain money to purchase drugs .

The magistrate also heard Mr B. and PERSON and CARDINAL witnesses . The public prosecutor ’s office , which was represented by counsel as permitted in certain cases by section DATE of LAW no . CARDINAL of DATE on the organisation of the courts , requested CARDINAL months’ imprisonment for PERSON .

The magistrate considered that the applicant had not acquired the items in question in good faith , and imposed a suspended sentence of DATE imprisonment and fined him MONEY . The judgment was filed with DATE , on CARDINAL DATE .

Mr PERSON did not appeal .

The magistrate has jurisdiction over offences punishable by imprisonment for DATE or by a fine or both , and also over a number of offences specifically mentioned in LAW ORG ) in respect of which " a person arrested in flagrante delicto shall immediately be brought before the magistrate to be tried " .

Under the heading " Immediate trial procedure " ( Giudizio direttissimo ) , LAW in force at the time provided as follows :

" ... In the case of offences within the jurisdiction of the magistrate ( pretore ) , the police officers who have arrested a person in flagrante delicto or in whose charge an arrested person has been placed shall bring him directly before the magistrate , shall on the latter ’s instructions ( even if merely oral ) summon the victim and the witnesses , and shall notify defence counsel chosen [ by the arrested person ] or appointed by the court .

If the magistrate is not sitting , the police officers who have effected the arrest or in whose charge the arrested person has been placed shall immediately inform the magistrate thereof and shall produce the arrested person at a hearing , arranged by the magistrate , within TIME from the arrest .

The magistrate before whom the arrested person is brought shall authorise the police officer to make an oral report and shall then question the accused in order to confirm the arrest .

If the arrest is confirmed and the magistrate does not consider that he should release the accused , he shall immediately initiate proceedings according to the direttissimo procedure .

At the request of the accused , the magistrate may grant an adjournment of not DATE for him to prepare his defence .

The magistrate shall exercise the powers conferred on the public prosecutor ’s office and the magistrate in accordance with the preceding ORG . "

Under the heading " Conduct of criminal proceedings by the public prosecutor ’s office or the magistrate ( pretore ) " , LAW ORG stated that :

" The public prosecutor ’s office or , for offences within his jurisdiction , the magistrate shall initiate or conduct criminal proceedings following the procedure provided for by law in accordance with LAW .

The public prosecutor ’s office shall , if it considers that there is no occasion to initiate criminal proceedings , request the investigating judge to make an order ( decreto ) [ to this effect ] ...

For the purpose mentioned in the preceding paragraph , the magistrate shall make an order [ discontinuing the proceedings ] and shall notify the public prosecutor , who may request the file and decide to continue the proceedings . "

Article CARDINAL provided that :

" In the case of offences within his jurisdiction , the magistrate ( pretore ) shall , before making an order committing for trial or proceeding to give judgment in ‘ NORP proceedings or by ‘ PERSON , order or carry out any police measures or summary investigative measures which he deems necessary ... "

ORG has had occasion to decide on the compatibility with various provisions of LAW of the magistrate ’s dual function of investigation and judgment .

In CARDINAL decisions , no . CARDINAL of DATE ( ORG , I , p. CARDINAL ) and no . CARDINAL of DATE ( Foro It . DATE , I , p. CARDINAL ) , it dismissed the objections of unconstitutionality put forward in this respect .

In a more recent decision of DATE ( no . CARDINAL , ORG . DATE , I , p. CARDINAL ) , ORG invited the legislature to take account , in the context of the reform of LAW , of the development in legal thought towards drawing a clear distinction between the above CARDINAL functions . It stated that in the absence of a legislative measure it would have to reconsider its case - law .

The question has now been resolved , as the new code , which came into force on DATE and adopted the adversarial system , provides for such a separation in respect of proceedings in the magistrate ’s court . In ORG CARDINAL to CARDINAL it institutes a public prosecutor ’s office at each magistrate ’s court ( pretura ) .


Preliminary objections dismissed;Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 6 - Right to a fair trial (Article 6-1 - Civil rights and obligations;Criminal charge);No violation of Article 9 - Freedom of thought, conscience and religion (Article 9-1 - Freedom of religion);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Mr. PERSON , an NORP citizen born in DATE , had left GPE ( GPE ) in DATE to take up residence in ORG ( in the province of GPE ) . He was arrested on DATE , placed in detention on remand in GPE and then charged with conspiracy and being an accomplice to the abduction on DATE of a businessman ; the latter had been freed by his kidnappers on DATE after payment of a substantial ransom .

The applicant was acquitted on DATE by ORG ( ORG ) for lack of sufficient evidence , but convicted on DATE by ORG which sentenced him to DATE imprisonment and a fine .

The criminal proceedings in question are not in issue , at least not in direct issue , in the present case .

Under LAW ( first paragraph , item CARDINAL ) of the NORP Code of Criminal Procedure , the applicant ’s detention on remand – during which he married his fiancée by whom he shortly afterwards had a son - could not continue for DATE ; it thus had to terminate on CARDINAL DATE at the latest .

On DATE , Mr. PERSON was removed from GPE gaol and taken under police escort to the island of Asinara , which lies off GPE .

On DATE , ORG ( questore ) had in fact sent to ORG prosecutor ( procuratore della PERSON ) a report recommending that Mr. PERSON be subjected to the measure of " special supervision " provided for in LAW no . CARDINAL of DATE ( " LAW " - see paragraphs CARDINAL below ) and section CARDINAL of Act no . CARDINAL of CARDINAL DATE ( " the DATE LAW paragraph CARDINAL below ) . The report referred to indications that although the applicant claimed to be working in the building trade , he was actually engaged in illegal activities and belonged to a band ( cosca ) of mafiosi ; it listed CARDINAL convictions pronounced against him in DATE , DATE , DATE and DATE and described him as " CARDINAL of the most dangerous " of individuals .

Following an application made in accordance with this recommendation by the ORG prosecutor on DATE , ORG ( CARDINALnd ORG ) directed on DATE that Mr. PERSON be placed under special supervision for DATE , the measure to be combined with the obligation to reside " in the district ( comune ) of the island of Asinara " , a locality that had been designated by ORG . In its decision the ORG further directed that the applicant should :

- start looking for work within DATE , establish his residence in the prescribed locality , inform the supervisory authorities immediately of his address and not leave the place fixed without first notifying them ;

- report to the supervisory authorities twice a day and whenever called upon to do so ;

- lead an honest and law - abiding life and not give cause for suspicion ;

- not associate with persons convicted of criminal offences and subjected to preventive or security measures ;

- not return to his residence TIME and not go out before TIME , except in case of necessity and after having given notice in due time to supervisory authorities ;

- not keep or carry any arms ;

- not frequent bars or TIME - clubs and not take part in public meetings ;

- inform the supervisory authorities in advance of the telephone number and name of the person telephoned or telephoning each time he wished to make or receive a long - distance call .

Mr. PERSON appealed to ORG ; his appeal had no suspensive effect ( section CARDINAL paragraph , of LAW ) and so did not prevent the contested decision from being put into effect .

In a memorial of DATE , his lawyer , Mr. PERSON , challenged the decision on a number of grounds , alleging that it was invalid and unjustified . He submitted , in particular , that on Asinara his client could neither find employment nor live together with his wife and child ; there was thus an inconsistency between the reasoning and the operative provisions of the decision of DATE . In addition , the decision referred to a non - existent district since in point of fact the island was no more than a sub - division of the district of GPE ( GPE ) . Mr. PERSON requested ORG , in the first place , to quash the decision in its entirety ; in the alternative , to limit it to special supervision without an order for compulsory residence ; in the further alternative , to designate a district in LOC where the applicant might find work , live with his family , meet with his lawyer in order to prepare his defence in the criminal proceedings and attend , as and when necessary , an urological clinic to receive the treatment required by his state of health .

On DATE , ORG ( ORG ) , by way of a preliminary ruling on submissions to the same effect by the public prosecutor , ordered that Mr. PERSON be transferred to the urological clinic of PERSON hospital ( GPE ) ; it also instructed its registry to seek information from the carabinieri in PERSON on the possibility of finding accommodation for CARDINAL people and work on the island of Asinara .

However , on DATE the prosecuting authorities requested ORG to revoke or suspend the aforesaid order . They pointed out that during his detention on remand Mr. PERSON had refused to submit to analyses in ORG urological clinic ; that experts considered that he was probably not suffering from any serious illness ; that his covert intention was to use hospitalisation as a means of escape ; that section CARDINAL of LAW did not prohibit an order for compulsory residence in a given locality within a district ; that ORG had so held in CARDINAL judgments , CARDINAL of which concerned precisely the island of Asinara , which was , besides , " potentially " CARDINAL of the best places in GPE for tourism .

ORG consequently suspended its order on DATE and directed that further hearings on the matter be held on DATE .

The officer commanding the criminal investigation department of ORG wrote , also on DATE , to the ORG of appeal with the following information which had been supplied by the PERSON carabinieri :

- for those subjected to compulsory residence on Asinara , there were CARDINAL flats suitable for accommodating a family ; they were occupied by the families in turn for periods of DATE ;

- the island offered no possibility of permanent employment ; there was just CARDINAL firm which employed CARDINAL residents in turn for short spaces of time ;

- the police stationed on Asinara were in a position to effect the requisite supervision .

On DATE and CARDINAL DATE , Mr. PERSON filed memorials with ORG challenging the " fanciful " statements of the prosecuting authorities and requesting that further enquiries be undertaken in the shape of an investigation on the spot ( sopral - luogo ) . In his view , his client was physically and mentally a prisoner ( carcerato ) on Asinara ; he was vegetating there in conditions worse than those of his detention on remand . The applicant himself , in a letter of DATE , described the island as a " veritable concentration camp " .

On DATE , ORG ( CARDINALst Chamber ) dismissed the appeal and confirmed the decision of DATE . As regards Mr. PERSON ’s health and the absence of violation of section CARDINAL of LAW , ORG relied in substance on the arguments that had already been invoked by the prosecuting authorities on DATE ( see paragraph CARDINAL above , second sub - paragraph ) . It found no good reason for regarding Asinara as an unsuitable locality for compulsory residence . It emphasised that the contested measure was designed to separate the individual from his milieu and render his contacts with it more difficult . This requirement took precedence over other problems , such as the absence of regular employment and of adequate accommodation for a family ; moreover , at the time of his marriage the applicant could not have hoped to live with his wife and son since he was then in detention on remand and under a serious charge . His criminal record , the most disquieting criminal activities in which he engaged under the cloak of honesty , his violent character and his exceptional cunning showed that he presented a marked danger to society ( spiccata pericolosità sociale ) . Supervision of such an individual was sufficiently important to justify the curtailment of other individual legal interests taken into account by the law ( l’affievolimento di alter situazioni giuridiche soggettive che la legge prende in considerazione ) .

Mr. PERSON appealed to ORG . In a supplementary memorial of DATE , his lawyer put forward CARDINAL grounds of appeal pursuant to Articles CARDINAL par . CARDINAL and CARDINAL par . CARDINAL and CARDINAL of LAW :

( i ) It was not permissible under LAW to make an order for a person ’s compulsory residence - which amounted to subjecting him to a " judicial sanction " limiting his private and family liberty ( libertà privata e famigliare ) - on any scrap of land ( qualunque pezzo di terra ) , such as Asinara , regardless of its area ( quali che siano i CARDINAL quadrati entro cui si deve osservare il soggiorno ) , rather than on the whole of the territory of a district . The contrary interpretation adopted by ORG was " restrictive and aberrant " and disregarded a man ’s right to private and family life ( alla vita privata e famigliare ) which was guaranteed by LAW and LAW . If ORG were nevertheless inclined to follow that interpretation , it should refer the matter to ORG .

( ii ) ORG statement that Mr. PERSON did not need any particular medical treatment was a misrepresentation of the facts ( travisamento dei fatti ) .

The law did not permit any curtailment of legal interests which it protected , conferred and made mandatory ( non consent[iva ] veruno affievolimento di situazioni giuridiche tutelate , volute e pretese proprio dalla legge ) . It followed that ORG had applied the law incorrectly ( errata applicazione della legge ) when it held that the necessity for special supervision justified such curtailment .

( iii ) Finally , the reasoning was contradictory ( contraddittorietà ) in various respects . Thus , ORG had - without an investigation on the spot - deemed Asinara to be suitable for the execution of the measure complained of although the applicant would not there be able to comply with the directives contained in ORG decision .

Mr. PERSON therefore requested ORG to quash the judgment of CARDINAL DATE after transmitting the file to ORG for the purpose of obtaining a ruling that section CARDINAL of LAW , as interpreted by ORG , was incompatible with LAW , fourth paragraph , and LAW paragraphs , of the LAW .

LAW concerns " personal liberty " : the fourth paragraph provides that " the infliction of any physical or mental violence on persons subjected to any form of restriction on their liberty shall be a punishable offence " . The second paragraph of LAW the presumption of innocence ; the third paragraph stipulates that " punishment may not take the form of treatment repugnant to feelings of humanity and must be aimed at re - education of the convicted person " .

ORG gave judgment on DATE . It accepted the submissions of the public prosecutor attached to ORG and dismissed the appeal as being devoid of foundation .

As regards the first ground of appeal , ORG pointed out that its settled case - law established that under certain conditions , which were satisfied in the present case , an order for compulsory residence could refer to a given locality within a district . Likewise , the " curtailment " of , and the " undoubted limitations " on , " various rights of the individual concerned " stemmed directly from the application of measures which had on numerous occasions been recognised to be in conformity with the LAW , for example in a judgment delivered by ORG on DATE .

As regards the second ground , ORG held that in the particular circumstances ORG had been right in turning down the argument concerning Mr. PERSON ’s state of health .

As regards the third ground , ORG perceived no contradiction since the intended object was to remove the applicant from GPE and to separate him from the members of the mafia who carried on their activities there without hindrance .

The ORG also declared the question of constitutionality raised by the applicant to be manifestly ill - founded . There again , the public prosecutor had cited the above - mentioned judgment of DATE ; he had in addition referred to the administrative nature of the decision designating the locality ( natura amministrativa della determinazione del luogo ) .

On DATE , Mr. PERSON made CARDINAL applications to ORG .

The first application was addressed to the President of ORG in his capacity of judge supervising the execution of sentences ( giudice di sorveglianza ) . It requested him to cancel ( abolire ) the compulsory residence order , maintaining that if the President , or someone designated by him for the purpose , were to visit Asinara , he would be left in no doubt that the obligation to live there was contrary to the law , the legislation , justice and individual human rights .

The second application invited ORG to substitute for Asinara a district where Mr. PERSON could work , not come into contact with suspects ( indiziati ) and live with his wife and son who had been obliged to leave the island since their permit to reside there had expired .

The lawyer referred to an Order of DATE concerning an appeal by CARDINAL PERSON ; ORG had stated therein that it was for the judge supervising the execution of sentence to make an appraisal of living conditions on Asinara .

The CARDINALnd ORG gave its decision on DATE . First of all , it affirmed that the implementation of preventive measures was a matter within the competence of the police authorities ( pubblica sicurezza ) and not of the judge supervising the execution of sentences . It added that exigencies of the protection of society justified the special form of isolation undergone by those sent to Asinara , namely individuals who were extremely dangerous . However , those exigencies necessitated neither separating those concerned from their families nor depriving them of regular employment . Accordingly , ORG , whilst rejecting both applications , directed that the text of its decision be communicated to the Minister of the ORG and to the ORG questore .

On DATE , the GPE questore requested ORG to order Mr. PERSON ’s transfer to the district of ORG , in the province of ORG , on the NORP mainland . The reason advanced was that the simultaneous presence on Asinara of the applicant and of his co - accused ( coimputato ) , PERSON , who was also in the process of " serving " ( scontare ) a compulsory residence measure , might have unfortunate repercussions on the ensuing stages of the criminal proceedings and , above all , on security on the island .

ORG ( vacation ORG ) gave a decision to that effect , and for the same reasons , on DATE ; it specified that the remainder of its decision of CARDINAL DATE ( see paragraph CARDINAL above ) was to continue in force .

Mr. PERSON had to remain at ORG until DATE , on which date the DATE period fixed by the last - mentioned decision expired .

Asinara lies off the north - west tip of GPE . The island , which is long and narrow with a rugged terrain , measures QUANTITY . at its greatest length . Whilst the island as a whole covers QUANTITY km . , the area reserved for persons in compulsory residence represented a fraction of not CARDINAL sq . km . This area was bordered by the sea , roads and a cemetery ; there was no fence to mark out the perimeter . CARDINAL of the island was occupied by a prison .

ORG , the island forms an integral part of the district of GPE , a small NORP coastal town TIME away by boat . The southernmost point of the island can also be reached in TIME if one embarks at Stintino , to the north of GPE . Sea communications are interrupted during very bad weather .

The principal settlement on the island , GPE d’Oliva , houses nearly all of the island ’s permanent population - CARDINAL people ; this population comprises the prison staff and their families , schoolteachers , a priest , the post office employees and a few tradesmen .

The persons in compulsory residence were lodged in the hamlet of ORG which consists mainly of a former medical establishment and certain other buildings including a school , a chapel and a carabinieri station where the applicant had to report twice DATE ( see paragraph CARDINAL above ) .

The ORG maintained before the ORG that one could circulate at will within ORG . According to Mr. PERSON on the other hand , an instruction issued by the officer in charge of the carabinieri restricted movement for persons in compulsory residence to a radius of QUANTITY .

Persons in compulsory residence had no access to the prison zone or to ORG d’Oliva . The inhabitants of the latter village could , in contrast , visit ORG whenever they pleased , whereas outsiders - such as tourists - were in principle not allowed to go there .

Persons in compulsory residence could apply for authorisation to visit GPE or the NORP mainland if they had good reasons , such as medical treatment , family grounds or compliance with an order of the judicial authorities .

The Government stated that authorisation was " normally " given on production of the appropriate documents of following a brief police enquiry , but according to the applicant it was very difficult to obtain . Even in the case of urgent medical treatment , so he contended , there was a long delay , sometimes as much as DATE . In any event , such trips were made under the strict supervision of the carabinieri .

There existed the additional possibility of going in turn to PERSON to buy provisions , likewise after authorisation and under supervision . The frequency of the crossings as well as the number of participants were the subject of dispute . The Government spoke of CARDINAL persons per week , whereas for Mr. PERSON it was just one ; he claimed that he had had to wait DATE before receiving the necessary permission .

Most of the persons in compulsory residence were housed in CARDINAL buildings belonging to the former medical establishment ; these buildings were fairly large and consisted principally , so it seems , of bedrooms with CARDINAL beds .

A third building , a small construction known as the " LOC " , was allocated to " residents " ( soggiornanti ) who were accompanied by their families . The " LOC " contained CARDINAL flats each comprising a bedroom and a kitchen .

The applicant lived in CARDINAL of the main buildings or in the " LOC " , depending upon whether he was alone or with his family . He could not go out TIME , except in case of necessity and after having notified the authorities in due time ( see paragraph CARDINAL above ) .

These various buildings were somewhat dilapidated . According to Mr. PERSON , their state of disrepair was such as to render them almost uninhabitable . For the Government , on the contrary , the condition of the buildings was " acceptable " up to the time when some of their occupants committed acts of vandalism , an occurrence not denied by the applicant .

The medical service at ORG was provided by the prison doctor . He lived at GPE d’Oliva but could be reached by telephone and be on hand within the space of TIME .

Before the Commission , the Government submitted that there was a dispensary at ORG , with a male nurse in attendance ; the applicant disputed the presence of any nurse .

When persons in compulsory residence needed to be hospitalised or to consult a specialist , they were sent to the ORG hospital and university clinics in GPE . Such journeys required authorisation from the competent court - ORG in the applicant ’s case ( see also paragraph CARDINAL above ) .

The Government medical officer for GPE was responsible for supervising health and sanitary conditions at GPE . While the Government considered the level of the conditions to be good , in Mr. PERSON ’s view they left much to be desired . In particular , he complained of the lack of any arrangements for removing rubbish ( see also paragraph CARDINAL below ) .

Persons in compulsory residence could apply to the administrative authority for permission to have their nearest relations join them on the island and stay with them either in the " LOC " ( see paragraph CARDINAL above ) or , failing that , in the rather confined bedroom - QUANTITY by QUANTITY - allocated to each of them .

The Government stressed before the ORG that the shortage of water on Asinara , which had neither a spring nor an aqueduct and was supplied periodically by navy tankers , made is necessary to limit the number of persons authorised to stay there .

Initially , the applicant ’s wife and son and also , from time to time , his parents - in - law and nephew lived together with him .

On DATE , the members of his family were ordered to leave the island ; their residence permits had expired on CARDINAL DATE and he had not applied for their renewal . They were , however , able to return at DATE and stayed with him until his departure for ORG ( see paragraph CARDINAL above ) .

There is a chapel at ORG . According to Mr. PERSON , it remained closed except for religious services at DATE and GPE . The ORG submitted in reply that the religious authorities - there was a priest living at GPE d’Oliva – would willingly have opened the chapel for services at any time had they been asked to do so , but that no one had ever made such a request .

The applicant also claimed that a mass was celebrated DATE by the prison chaplain , but on premises situated outside the area in which persons in compulsory residence could move freely ( see paragraph CARDINAL above ) .

For persons in compulsory residence , the prospects of employment were limited to the openings offered by a firm at ORG , GPE - Costruzioni edili , which were somewhat modest CARDINAL persons in DATE and DATE . The Government submitted that Mr. PERSON had shown no interest at all in this possible source of work . PERSON did , however , produce a certificate from GPE showing that he had worked for the company from DATE to DATE and had subsequently made repeated and pressing requests for employment , but without success .

Persons in compulsory residence could obtain books and newspapers at ORG , either themselves or through other people who went there . They had the use of CARDINAL television set according to the applicant , several sets according to the Government . The existence of communal canteen and recreation facilities was also the subject of dispute before the Commission .

Mr. PERSON had to give to the authorities prior notice of the name and number of the person telephoned or telephoning whenever he wished to make or receive a call ( see paragraph CARDINAL above ) . On the other hand , his correspondence in the form of letters and telegrams was not monitored .

On DATE , the applicant sent a letter to the GPE pretore in which he confessed that he had not discharged certain of the obligations imposed on him by ORG on DATE ( see paragraph CARDINAL above ) , namely seeking employment , looking for a fixed residence and not associating with other " residents " and criminal elements . He stated that he had tried in vain to comply with these directives and that the officer in charge of the carabinieri on Asinara had never raised any objection despite section CARDINAL of Act no . CARDINAL of DATE ( see paragraph CARDINAL below ) . No action was taken on his letter .

In addition , on DATE all the persons in compulsory residence addressed a collective protest to the PERSON questore . They claimed ( a ) the allocation of a suitable house to each of them ; ( b ) permanent access to ORG by members of their families ; ( c ) work opportunities capable of providing maintenance for them and their families , the subsidy of CARDINAL or CARDINAL ORG paid by ORG not being sufficient for the purpose ; ( d ) the mooring at ORG , instead of PERSON , of the boat used for transporting them ; ( e ) the right to go individually and at least once DATE to PERSON to purchase food supplies ; ( f ) the reopening of the post office at ORG ; ( g ) the improvement of the health and sanitary conditions in the inhabited zones and adjoining areas ; ( h ) on - the - spot medical assistance and the possibility of consulting specialists without delay ; ( i ) more humane treatment from the bodies coming under the authority of the police headquarters ; ( j ) proper upkeep of the LOC ; ( k ) installation of a second telephone .

The Government asserted that they thereupon took certain steps to satisfy some of these requests , in particular as regards items ( a ) , ( b ) , ( d ) and ( f ) .

The situation of the " residents " at ORG was also criticised in the press . The administrative authorities investigated possible remedial measures but , in the face of the expense involved and time needed , did not pursue the matter . In consequence , ORG decided in DATE to strike ( depennare ) the island out of the list of places for compulsory residence . By that date Mr. PERSON had been living at ORG for DATE ( see paragraph CARDINAL above ) ; however , CARDINAL of the documents filed show that his application to the Commission was not unconnected with the ORG ’s decision . The last individuals in compulsory residence left Asinara on DATE .

The treatment complained of by the applicant was based on Act no . CARDINAL of DATE and Act no . CARDINAL of CARDINAL DATE .

This Act makes provision for a variety of preventive measures which can be taken against " persons presenting a danger for security and public morality " ( misure di prevenzione nei confronti delle persone pericolose per la sicurezza e per la pubblica moralità ) .

Under LAW , the LAW applies to , amongst others , " idlers " and " habitual vagrants who are fit for work " ( gli oziosi e i vagabondi abituali , validi al lavoro ) , " anyone who is regularly and notoriously involved in illicit dealings " ( che sono abitualmente e notoriamente dediti a traffici illeciti ) and individuals who , by reason of their behaviour and style of life ( tenore di vita ) , must be considered as habitually living , even in part , on the proceeds of crime or on the rewards of complicity therein ( con il favoreggiamento ) , or whose outward conduct gives good reason to believe that they have criminal tendencies ( che , per le manifestazioni cui abbiano dato luogo , diano fondato motivo di ritenere che siano proclivi a delinquere ) .

The Chief of Police may send to such persons a warning ( diffida ) in which he will call on them to mend their ways and notify them that , if not , the measures mentioned in the subsequent sections will be put into effect .

A report by ORG ( see paragraph CARDINAL above ) indicates that Mr. PERSON received such a diffida in GPE on DATE that is well before the events prompting his application to the Commission .

In the case of individuals who present a danger for public security or morality and are found elsewhere than at their place of residence , the Chief of Police may also send them back to that place and forbid them to return without prior authorisation or until after the expiry of a period not exceeding DATE to the district from which they are being excluded ; non - compliance with such an order will render them liable to a penalty of " arrest " ( arresto ) of DATE ( section CARDINAL ) .

If an individual presenting a danger to public security or morality has not mended his ways despite the warning , he may , under section CARDINAL , be placed under special police supervision ( sorveglianza speciale della pubblica sicurezza ) ; if need be , this may be combined either with a prohibition on residence in CARDINAL or more given districts or provinces or , in the case of a particularly dangerous person ( particolare pericolosità ) , with an order for compulsory residence in a specified district ( obbligo del soggiorno in un determinato comune ) .

Only ORG of the chief town of the province has power to order these measures ; it will do so on the basis of a reasoned application by the Chief of Police to its President ( section CARDINAL , first paragraph ) . ORG must give a reasoned decision ( provvedimento ) in chambers within DATE . It will first hear the public prosecutor ’s department and the person concerned , the latter being entitled to submit written pleadings and to be assisted by a lawyer ( section CARDINAL , second paragraph ) .

The prosecuting authorities and the person concerned may , within DATE , lodge an appeal which does not have suspensive effect ; ORG has to give a reasoned decision ( decreto ) in chambers within DATE ( section CARDINAL , fifth en sixth paragraphs ) . That decision may in turn and on the same conditions be the subject of a further appeal to ORG which must give its ruling in chambers within DATE ( section CARDINAL , seventh paragraph ) .

DATE . When adopting one of the measures listed in section CARDINAL , ORG will specify for how long it is to remain in force - not less than one and not DATE ( section CARDINAL , fourth paragraph ) - and will give directives with which the person in question must comply ( section CARDINAL , first paragraph ) .

In the case , as here , of an individual who has been placed under special supervision because he is suspected of living on the proceeds of crime , ORG will direct him to look for work within an appropriate time , to establish his residence and advise the police authorities ( autorità di pubblica sicurezza ) thereof and not to leave it ( allontanarsi ) without first informing them ( section CARDINAL , second paragraph ; see paragraph CARDINAL above ) .

In all cases , ORG will order the individual to lead an honest and law - abiding life ; not to give cause for suspicion ; not to associate with persons convicted of criminal offences and subjected to preventive or security measures ; not to return to his residence at TIME after , and not to go out in TIME , a specified time , except in case of necessity and after having given notice in due time to the authorities ; not to keep or carry any arms ; not to frequent bars or TIME - clubs ; not to take part in public meetings , etc . ( section CARDINAL paragraph ; see also the fourth paragraph of that section and paragraph CARDINAL above ) .

Anyone who , like Mr. PERSON is subject to a compulsory residence order may also be directed not to leave ( andare lontano ) his house without notifying the supervisory authorities ( autorità preposta alla sorveglianza ) and to report to them on DATE and whenever called upon to do so ( section CARDINAL paragraph ; see paragraph CARDINAL above ) . The person concerned will be issued with a card which he must carry with him and show to the police whenever so requested ( section CARDINAL paragraph ) .

The Chief of Police is responsible for the implementation of these various measures ( section CARDINAL , first paragraph ) . On application by the person concerned and after the police have been heard , the decision ordering the measures may be revoked or varied by the authority ( ORG ) which issued it , insofar as the grounds therefore no longer exist ( section CARDINAL , second paragraph ) .

Any person who fails to abide by the obligations attaching to special supervision or by those specified in a compulsory residence order is liable to a penalty of " arrest " of DATE or DATE , respectively ( section DATE , first and second paragraphs , and LAW , first paragraph ) .

LAW completes this panoply of legal texts with provisions directed against the mafia ( disposizioni contro la mafia ) . According to LAW is applicable to persons - such as Mr. PERSON - whom there are strong reasons to suspect of belonging to mafia - type associations ( indiziati di appartenere ad associazioni mafiose ) . State prosecutors may propose that the preventive measures described above be taken against such persons , even if no prior warning has been given ; the decision rests with the courts ( section CARDINAL ) . Under section CARDINAL , wrongfully leaving the district of compulsory residence is punishable by " arrest " of DATE .


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

The applicants are CARDINAL NORP nationals , whose names and dates of birth are shown in the LOC . ORG ( “ the Government ” ) are represented by PERSON PERSON GPE , Representative of GPE at ORG .

The facts of the case , as submitted by the parties , may be summarised as follows . The applicants sued the ORG authorities in domestic courts for payment of various monetary sums due under the NORP law . The courts held for the applicants and ordered the authorities to pay various amounts in the form of lump sums and/or of periodic payments to be upgraded in line with the inflation in the country . These judgments became binding but the authorities delayed their enforcement .


CASE OF SOROKINA AND GONCHARENKO v. UKRAINE

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

Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva

The first applicant was born in DATE and the second in DATE . Both applicants live in the city of GPE , GPE .

By CARDINAL separate judgments of DATE , the ORG of GPE awarded the first applicant CARDINAL NORP hryvnyas ( ORG ) and the second applicant ORG CARDINAL,CARDINAL.CARDINAL in salary arrears and other payments , to be paid by the open joint - stock company ORG ( “ the debtor company ” ) .

The ORG - owned company PERSON sudnobudivny zavod held PERCENT of the shares in the debtor company on the date the judgments were delivered .

The judgments became final and enforcement proceedings were instituted .

In the period DATE the first applicant received UAH CARDINAL and the second ORG CARDINAL in part settlement of the judgment debts .

By a letter of DATE ORG notified the applicants that they were unable to collect the full amount of the awards because the financial assets of the debtor company were insufficient . They further explained that other assets could not be sold , as the ORG owned CARDINAL % of the debtor company ’s share capital . The debtor company was therefore subject to the Law of DATE “ on the Introduction of a Moratorium on the Forced Sale of Property ” .

Since DATE the ORG has held PERCENT of the shares in PERSON sudnobudivny zavod .

By a letter of DATE ORG proposed that the applicants accept the debtor company ’s seized property in satisfaction of the judgment debts , but the applicants did not agree .

NORP In DATE insolvency proceedings were instituted against the debtor company . On DATE it was declared insolvent .

In DATE the enforcement proceedings were discontinued since the debtor company had been declared insolvent . The liquidation proceedings are still pending .

The relevant domestic law is summarised in the judgments of ORG v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and ORG v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .