Tag: Human Rights

Vlad And Others v Romania (Legal Summary): ECHR 26 Nov 2013

ECHR Article 46-2
Execution of judgment
Measures of a general character
Respondent State encouraged to take further measures to provide genuine effective relief for violations of the right to a fair trial within a reasonable time
Facts – In their applications to the European Court, the three applicants complained of the lack of an effective domestic remedy in respect of delays in civil and criminal proceedings in which they had been involved before the domestic courts. The applications were lodged in 2006 and 2007 and the Government argued that legislation had since been introduced to provide remedies in such cases: Law no. 202/2010, which amended the 1993 Code of Civil Procedure and the 1997 Code of Criminal Procedure pending the entry into force and implementation of new codes of procedure, and Articles 522 to 526 of the new Code of Civil Procedure, which provided a complaints procedure for delays (but applied only to proceedings instituted after 15 February 2013). The Government also submitted that a number of recent cases based on the direct applicability of the Convention in Romania demonstrated that litigants now had access to compensation in length-of-proceedings cases.
Law – Article 6 – 1: In each of the applicants’ cases the length of the proceedings had been excessive and failed to meet the ‘reasonable-time’ requirement of Article 6.
Conclusion: violation (unanimously).
Article 13: The second and third applicants complained that they had not had effective remedies in respect of the length of the proceedings in which they were involved. Although the Government had argued that the changes to the national legal system and the direct applicability of the Convention meant that litigants now had an effective remedy, they had failed to produce examples of domestic cases in which litigants had been able to access an effective remedy in length-of-proceedings cases. Furthermore, both the change to the law and the new Code of Civil Procedure had come into force only after the domestic courts had already dealt with the majority of the proceedings brought by the two applicants concerned.
Conclusion: violation (unanimously).
Article 46: Since its first judgment concerning the length of civil proceedings in Romania*, the Court had adopted decisions and judgments in some 200 Romanian cases dealing with allegations of breaches of the ‘reasonable-time’ requirement laid down in Article 6 – 1 in relation to civil and criminal proceedings. A further 500 cases were currently pending. Those figures indicated the existence of a systemic problem, one the Parliamentary Assembly of the Council of Europe had noted in 2011 was of grave concern and required tackling as a matter of priority.**Although new legislation had been introduced, the Government had not submitted any information in reply to questions that had been raised by the Committee of Ministers regarding, in particular, the procedural rules applicable to length-of-proceedings complaints under the new Code of Civil Procedure, the remedies available in criminal proceedings or the possibility of introducing a specific compensatory remedy.*** In any event, the measures aimed at ensuring the speedy examination of civil cases applied only to proceedings instituted after 15 February 2013 and could not remedy the problem of delays accrued before that date.
Accordingly, in view of the extent of the recurrent problem and of the weaknesses and shortcomings of the current remedies, Romania was encouraged to either amend the existing range of legal remedies or add new remedies, such as a specific and clearly regulated compensatory remedy, in order to provide genuine effective relief for violations of the right to a fair trial within a reasonable time.
Article 41: Sums ranging from EUR 2,340 to EUR 7,800 to each applicant in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

40756/06 – Legal Summary, [2013] ECHR 1309
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Legal Summary – Vlad And Others v Romania ECHR 26-Nov-2013
. .
See Also – Vlad And Others v Romania ECHR 17-Mar-2015
. .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 27 November 2021; Ref: scu.519061

Pichkur v Ukraine (Legal Summary): ECHR 7 Nov 2013

ECHR Article 14
Discrimination
Termination of payment of retirement pension on the ground that beneficiary was permanently resident abroad: violation
Facts – In 1996 the applicant, who was then living in Ukraine, retired and began to receive a retirement pension. He emigrated to Germany in 2000. In 2005, after discovering that the applicant was now permanently resident abroad, the Ukrainian authorities decided to terminate his pension payments in accordance with the relevant provisions of the General State Pension (Obligatory Insurance) Act. The Constitutional Court of Ukraine declared those provisions unconstitutional on 7 October 2009. In 2011 a Ukrainian district court ordered the authorities to resume payment of the applicant’s pension with effect from the date of the Constitutional Court’s judgment. The district court’s judgment was upheld on appeal.
Law – Article 14 in conjunction with Article 1of Protocol No. 1: The applicant could no longer claim to be a victim of the alleged violation for the period after 7 October 2009. As to the preceding period, had he continued to reside in Ukraine or returned to live there, he would have continued to receive a pension. His interests thus fell within the scope of Article 1 of Protocol No. 1, which was sufficient to render Article 14 applicable. The applicant had complained of a difference in treatment on the basis of his place of residence, which constituted an aspect of personal status for the purposes of Article 14. The instant case had to be distinguished from the Carson v. the United Kingdom judgment*, in which the difference in treatment had concerned the lack of indexation of existing pensions for persons residing in certain foreign States, while nobody had questioned the applicants’ entitlement to the pension as such. In the instant case, however, the entitlement to the pension itself had been made dependent on the applicant’s place of residence, resulting in a situation in which the applicant, having worked for many years in Ukraine and having contributed to the pension scheme, had been deprived of it altogether, on the sole ground that he no longer lived there. He had been in a relevantly similar situation to pensioners living in Ukraine. No justification for the difference in treatment had ever been advanced by the authorities. The Government had not relied on considerations of international cooperation in that context. The rise in population mobility, higher levels of international cooperation and integration, and developments in the banking-services and information-technology sectors no longer justified technically motivated restrictions in respect of beneficiaries of social-security payments living abroad. The difference in treatment at issue had therefore been in breach of Article 14 read in conjunction with Article 1 of Protocol No. 1.
Conclusion: violation (unanimously).
Article 41: EUR 5,000 in respect of pecuniary and non-pecuniary damage.

10441/06 – Legal Summary, [2013] ECHR 1313
Bailii
European Convention on Human Rights
Human Rights
Citing:
See Also – Pichkur v Ukraine ECHR 21-Sep-2010
. .

Cited by:
Legal Summary – Pichkur v Ukraine ECHR 7-Nov-2013
. .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 27 November 2021; Ref: scu.519056

Amos, Regina (on The Application of) v Maidstone Crown Court and Another: CA 6 Nov 2013

The court was asked whether the process of condemnation and forfeiture of goods pursuant to section 139 and Schedule 3 of the Customs and Excise Management Act 1979 is civil or criminal in nature for the purposes of Article 6 of the European Convention on Human Rights.

Richards, Elias LJJ
[2013] EWCA Civ 1643
Bailii
European Convention on Human Rights 6
England and Wales

Customs and Excise, Human Rights

Updated: 27 November 2021; Ref: scu.519016

Ignats v Latvia (Dec): ECHR 24 Sep 2013

Article 35-1
Exhaustion of domestic remedies
Effective domestic remedy
Claim for compensation in administrative courts in respect of conditions of detention: effective remedy: inadmissible
Facts – In his application to the European Court, the applicant complained, inter alia, of the conditions of his detention in prison. The Government objected that he had failed to exhaust domestic remedies.
Law – Article 35 – 1: While the Court had in previous cases found that recourse to the administrative courts was not a remedy accessible in practice to detainees, at least before 15 June 2006, it could not reach that conclusion in the applicant’s case.
The applicant had approached the administrative courts with a claim that related at least in part to his conditions of detention, so it could not be said that the administrative courts had not been accessible. Although initially his claim was not accepted, eventually it was allowed and the administrative proceedings were commenced. About a year later, however, the applicant had withdrawn his complaint with the result that the proceedings were terminated. He had not provided any reasons for his actions to the Court.
Since its judgment in Melnitis, the Court had received a number of examples of cases in which the administrative courts had dealt with complaints concerning conditions of detention and in the recent case of Timofejevi the administrative courts had examined the administrative-law concept of ‘an action of a public authority’, scrutinised the conditions of detention in a detention facility for at least part of the period in respect of which the present applicant complained, and had awarded compensation roughly equivalent to EUR 11,000.
The applicant did not claim that he had pursued the administrative proceedings as a preventive remedy and, since they were commenced after he had left the prison to which his complaint related, they had to be seen rather as a compensatory remedy. As the Court had stated in previous cases, in principle, applicants who complain about detention conditions after their release may have to make use of a compensatory remedy at national level in order to exhaust domestic remedies. Accordingly, in view of the evolution in the domestic case-law, which largely related to the period in which the applicant was detained, the applicant should have pursued his case in the first-instance administrative court, with the further possibility of judicial review and an appeal on points of law.
Conclusion: inadmissible (failure to exhaust domestic remedies).

38494/05 – Legal Summary, [2013] ECHR 1222, 38494/05 – Admissibility Decision, [2013] ECHR 1213
Bailii, Bailii
European Convention on Human Rights
Human Rights

Human Rights

Updated: 26 November 2021; Ref: scu.518822

Kasparov v Russia: ECHR 3 Oct 2013

Article 11-1
Freedom of peaceful assembly
Imposition of administrative fine for participating in an unauthorised yet peaceful demonstration: violation
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Refusal to call defence witnesses to clarify an uncertain situation which constituted basis of charges: violation
Facts – In April 2007 an anti-government demonstration consisting of a meeting in a delimited area was authorised to take place in Moscow. However, permission for a march after the meeting was refused. The case concerned in particular a series of arrests before the demonstration took place, in circumstances which were in dispute between the parties. The Government alleged that a group of some fifty people had gathered and started marching while shouting anti-government slogans. The police had arrested some members of the group, including the first eight applicants, when they had threatened to spill over into a designated high-security area. The applicants claimed that they had not staged a rally or tried to access an unauthorised zone. The first, second and fifth applicants alleged that they had been walking peacefully towards the venue of the meeting when they were arrested, while the remaining applicants denied any connection with the demonstration whatsoever. In assessing these opposing accounts, the trial judge fully accepted the police report on the grounds that the police were a party ‘with no vested interest’ in the case. Consequently, on the same day, the first eight applicants were convicted of an administrative offence for having breached the regulations on holding demonstrations and ordered to pay a fine. Their appeals were unsuccessful.
Law – Article 6 – 1 (first to eighth applicants)
(a) Applicability – The Government had argued that Article 6 was inapplicable to administrative proceedings. However, the offence the applicants were convicted of, although classified as ‘administrative’ under Russian law, actually constituted a criminal offence for the purpose of the applicability of Article 6 according to the criteria set out in Engel and Others v. the Netherlands (5100/71 et al., 8 June 1976).
Conclusion: preliminary objection dismissed (unanimously)
(b) Merits – The applicants’ conviction was primarily based on the assumption of them being in a particular place at a particular time. However, the circumstances surrounding the applicants’ arrest, such as the purpose of their being at the alleged place, the time of the alleged march and even the time and exact place of the arrest remained in dispute between the parties. The principle of equality of arms and the right to a fair trial implied that the applicants should have been afforded a reasonable opportunity to present their version of the events effectively before the domestic courts. Therefore, the domestic courts’ unreserved endorsement of the police report and their refusal to examine the defence witnesses without any regard to the relevance of their statements had led to a limitation of the applicants’ defence rights incompatible with the guarantees of a fair hearing.
Conclusion: violation (unanimously)
Article 11 (first, second and fifth applicants) – Although the requirement, for reasons of public order and national security, for prior authorisation when holding public meetings was not a priori contrary to the spirit of Article 11, an unlawful situation such as the staging of a demonstration without prior authorisation did not justify an infringement of freedom of assembly. In particular, where unauthorised demonstrators did not engage in acts of violence, public authorities must show a certain degree of tolerance towards peaceful gatherings. As for the Government’s allegation that the applicants were trying to access an unauthorised zone, considering the modest size of the group and the undeniably peaceful character of the march, the Court was not persuaded that the threat of the marchers penetrating the security area was imminent. The Government’s argument that the police had resorted to arresting the protesters because they were taken aback by the unforeseeable and unauthorised demonstration and were otherwise unable to cope was inconsistent with the facts established by the domestic courts. The preparatory measures taken by the police should undoubtedly have enabled them to divert a march of this scale from the high-security area and, given the heavy police presence, it should have been possible to maintain public order and safety without resorting to arrests. It followed that the applicants had been arrested and charged with administrative offences for the sole reason that the authorities had perceived their demonstration as being unauthorised. The Government had thus failed to demonstrate that there had existed a ‘pressing social need’ to arrest them. In these circumstances, the police’s forceful intervention was disproportionate and not necessary for the prevention of disorder.
Conclusion: violation (unanimously)
Article 41: EUR 10,000 each to the first, second and fifth applicants in respect of non-pecuniary damage. EUR 4,000 each to the third, fourth, sixth, seventh and eighth applicants in respect of non-pecuniary damage.

21613/07 – Legal Summary, [2013] ECHR 1215
Bailii
European Convention on Human Rights

Human Rights

Updated: 26 November 2021; Ref: scu.518828

Savickas And Others v Lithuania (Dec): ECHR 15 Oct 2013

ECHR Article 35-1
Exhaustion of domestic remedies
Effective domestic remedy
Length-of-proceedings complaint under Article 6.272 of the Civil Code as interpreted by domestic courts: effective remedy: inadmissible
Facts – The applicants were serving or former judges or their lawful heirs. Following a reduction in judges’ salaries by 30% in 1999, the applicants instituted proceedings before the domestic courts claiming payment of the lost part of their salaries. The litigation ended in 2009-10, when the Supreme Administrative Court eventually granted the applicants’ claims in part. Relying on, inter alia, Articles 6 – 1 and 13 of the Convention the applicants complained before the European Court about the excessive length of the domestic proceedings and the lack of an effective domestic remedy in that respect.
Law – Article 35 – 1: In its judgment of 6 February 2007 the Lithuanian Supreme Court established that Article 6.272 of the Lithuanian Civil Code provided compensation in respect of the unjustified length of court proceedings in the same way as Article 6 – 1 of the Convention. Since that decision, Article 6 – 1, as interpreted by the European Court, had been applied by the Lithuanian courts of all jurisdictions in the context of length-of-proceedings complaints. Furthermore, when assessing the reasonableness of the length of proceedings, the domestic courts applied the criteria established by the Court, namely what was at stake for the applicant, the complexity of the case, and the conduct of the applicant and of the domestic authorities. The Court further welcomed the 2011 Government proposal to supplement Article 6.272 with a norm which explicitly established a right to compensation for excessively long court proceedings and the introduction of legislative amendments aimed at expediting civil proceedings. In the light of the above, the Court considered that the uncertainty regarding the effectiveness of Article 6.272 as a domestic remedy had been removed by judicial interpretation on 6 February 2007. When a particular remedy resulted from court interpretation, the persons concerned could be obliged to use it only after six months from the date on which the decision establishing the remedy was delivered, in order to allow the case-law development to acquire a sufficient degree of legal certainty. Therefore, applicants in cases concerning the length of civil, criminal or administrative court proceedings in Lithuania whose applications were lodged with the Court after 6 August 2007 were required to make use of the remedy. In the applicants’ case, since they had lodged their application with the Court between 2009 and 2011, their length-of-proceedings complaints were inadmissible.
Conclusion: inadmissible (non-exhaustion of domestic remedies).

66365/09, 30623/10 – Legal Summary, [2013] ECHR 1217, 12845/10, 28367/11, 29809/10, 29813/10
Bailii
European Convention on Human Rights

Human Rights

Updated: 26 November 2021; Ref: scu.518831

Dallas v The United Kingdom: ECHR 11 Nov 2013

The applicant challenged her conviction for contempt of court in that whilst a juror, she researched the case before her on the internet, discovering that the defendant had faced an earlier allegation broadly similar. She now said that the conviction orose from failure to follow a direction, not an order. The court set the question for the parties: ‘Did the act of which the applicant was convicted constitute a ‘criminal offence under national law’ at the time when it was committed, for the purposes of Article 7 of the Convention, having regard to the test for contempt of court set out and applied by the Divisional Court in paragraph 38 of its judgment and the test outlined in previous domestic judgment judgments’

38395/12 – Communicated Case, [2013] ECHR 1232, [2014] ECHR 1247
Bailii, Bailii
European Convention on Human Rights
Citing:
Cited – Attorney-General v Sport Newspapers Ltd QBD 24-May-1991
The newspaper was accused of disclosing details of the previous convictions of an absconded suspect in a murder investigation, despite a prior warning from the police that any such publication would be likely to prejudice future criminal . .
Cited – Schot and Another, v Regina CACD 12-May-1997
Jurors, after retirement refused to deliver a verdict claiming personal reasons. The were summoned to court to answer charges of contempt of court. Explaining the contempt proceedings that the jurors faced, the trial judge said: ‘[I]n so far as . .
Cited – Attorney General v Fraill and Another Admn 16-Jun-2011
The trial judge had directed his jury at a criminal trial: ‘You will make your decision about this case based solely upon the evidence which you hear during this trial, in this courtroom and upon nothing else. Most of us these days have access to . .
At Admn – Attorney General v Dallas Admn 23-Jan-2012
The A-G, using RSC Order 52, sought a finding that the defendant was in contempt when, as a juror she had conducted internet research about the case, revealing her results to other jury members.
Held: She was in contempt. She had deliberately . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Contempt of Court

Updated: 26 November 2021; Ref: scu.518835

Likvidejama P/S Selga And Others v Latvia (Dec): ECHR 1 Oct 2013

ECHR Article 1 of Protocol No. 1
Positive obligations
Inability to recover frozen foreign-currency savings following the dissolution of the former USSR: inadmissible
Facts – During Soviet rule in Latvia, the applicants – a company and a natural person – held foreign-currency savings in the Latvian section of Vneshekonombank, a State bank, which was dealing with foreign-currency transactions throughout the former USSR in accordance with the rules applicable at the time. Following the restoration of Latvian independence in 1991, the Vneshekonombank froze the applicants’ foreign-currency savings disabling them from withdrawing their funds until the Latvian and Russian Governments had settled the issues related to the external foreign-currency debt and assets of the former USSR on the inter-State level. An intergovernmental commission was established to this end, but no agreement was ever reached and the commission had not met since 1998. Meanwhile, the Bank of Latvia accepted to pay certain monthly amounts to natural, but not legal, persons whose foreign-currency savings had been frozen. The applicants’ civil claims lodged with the Bank of Latvia with a view to recovering their frozen assets were unsuccessful.
Law – Article 1 of Protocol No. 1: The applicants’ complaint was twofold. They claimed, firstly that Latvia was responsible for the freezing of their foreign-currency savings and, secondly, that the Latvian authorities had failed to take effective measures to enable them to obtain access to those assets. As regards the first limb of their complaint, the Court found it established that the applicants’ foreign-currency assets had been frozen by the Vneshekonombank, an entity operating in another country, and that its actions could thus not be attributed to Latvia. As regards the second limb of the complaint, there had been no suggestion that the Latvian authorities had ever accepted any liability for public debt incurred during the period when its territory was under Soviet rule. Latvia and the Russian Federation had not been able to reach any agreement on this issue due to their apparently diverging views on this matter. Moreover, unlike States successors of the former Social Federal Republic of Yugoslavia, Latvia had never demonstrated any sign of acceptance or acknowledgement of claims such as those made by the applicants. While the Bank of Latvia had agreed to pay some money to private individuals whose foreign-currency assets had been frozen by the Vneshekonombank, these payments had been made with the aim of reducing social tensions and compensating, from the State’s own resources, damage sustained by individuals residing in Latvia as a result of the collapse of the USSR. Given that the Convention did not impose any specific obligation on States to right injustices or harm caused before they ratified the Convention, the decisions taken by the Bank of Latvia could not be interpreted as implying that there was a positive obligation under international law incumbent on the respondent State to make any payments at all, let alone such as would equal the total amount of the frozen foreign-currency assets in another State.
Conclusion: incompatible ratione personae and ratione materiae (unanimously).

17126/02 24991/02 – Legal Summary, [2013] ECHR 1221
Bailii
European Convention on Human Rights

Human Rights

Updated: 26 November 2021; Ref: scu.518829

De Luca v Italy: ECHR 24 Sep 2013

Article 1 para. 1 of Protocol No. 1
Peaceful enjoyment of possessions
Inability to recover judgment debt from local authority in receivership: violation
Facts – In December 1993 the municipality of Benevento declared itself insolvent. An extraordinary liquidation committee (the OSL) was entrusted with the management of its finances. In a judgment given in November 2003 further to an action in damages brought in 1992 the local court ordered the municipality to pay the applicant damages in the amount of EUR 17,604.46, plus statutory interest and compensation to offset inflation. However, under a decree passed in 2000, from the declaration of insolvency until final approval of the accounts no enforcement proceedings could be brought in respect of debts on the list drawn up by the OSL. Nor could the insolvent local authority be required to pay statutory interest on its debts or compensation for inflation. In June 2005 the OSL acknowledged that the municipality owed the applicant EUR 42,028.58. In February 2006 the OSL offered the applicant a friendly settlement in the amount of 80% of the outstanding debt. The applicant declined the offer.
Law – Article 1 of Protocol No. 1: Following the declaration of insolvency it had been impossible for the applicant to bring enforcement proceedings against the municipality of Benevento, which had failed to honour its debts, in breach of the applicant’s right to the peaceful enjoyment of his possessions. By failing to enforce the Benevento court’s judgment the domestic authorities had prevented the applicant from receiving money he could reasonably have expected to receive. It was true that the OSL had offered the applicant a friendly settlement, to the tune of 80% of the sum owed to him; but had he accepted that offer the applicant would have lost the other 20% as well as forfeiting any interest or compensation for inflation. The reasons given by the Government to justify this interference with the applicant’s right to the peaceful enjoyment of his possessions were the insolvency of the municipal authority and the concern to guarantee that all creditors were treated equally in recovering their debts. However, a local authority could not use financial difficulties as an excuse not to honour its obligations arising from a final judgment against it. The debt in this case was that of a local authority, a State body, ordered by a court to pay damages. In that respect this case differed from that of Back v. Finland*, which concerned social-policy plans to reduce the salaries and pensions of public servants.
Conclusion: violation (unanimously).
Article 41: EUR 50,000 for pecuniary and non-pecuniary damage.

43870/04 – Chamber Judgment (French text), [2013] ECHR 854, 43870/04 – Legal Summary, [2013] ECHR 1252
Bailii, Bailii
European Convention on Human Rights, European Convention on Human Rights
Human Rights

Human Rights

Updated: 26 November 2021; Ref: scu.518821

Cumhuriyet Vakfi And Others v Turkey: ECHR 8 Oct 2013

ECHR Article 10-1
Freedom of expression
Freedom to impart information
Lack of procedural safeguards when issuing injunction against national newspaper: violation
Facts – The applicants were respectively the owner, publisher, editor-in-chief and chief editorial writer of a daily Turkish newspaper Cumhuriyet. In April 2007, in the run-up to the presidential elections, the newspaper published a political advertisement that reproduced a quote from a 1995 British newspaper article in which one of the candidates in the 2007 elections, Mr Abdullah Gul, was alleged to have said: ‘It is the end of the Republic of Turkey – we definitely want to change the secular system’. Mr Gul subsequently brought defamation proceedings against the applicants. In May 2007 a domestic court issued an injunction restraining re-publication of the quote published in Cumhuriyet and of any news related to the pending defamation proceedings. Mr Gul was elected President and, in view of his new status, decided not to pursue the matter. In March 2008 the case was dismissed and the interim injunction lifted.
Law – Article 10: The very general and unqualified terms of the ban set out in the injunction rendered its scope unclear and potentially extremely wide. In particular, the lack of clarity as to what material could and could not be published under the interim measure could be interpreted as forbidding coverage of any political statement made by Mr Gul relating to the subject of secularism in Turkey. In the Court’s view, the injunction was therefore vulnerable to abuse and could have had a chilling effect not only on the Cumhuriyet newspaper, but also on the Turkish media as a whole in the period concerned. The injunction had remained in force for over ten months, including during two stages of the Presidential elections, as a consequence of the lack of a time-limit and the absence of any periodic review as to its continuing necessity or of a prompt determination of the merits of the case. The length and breadth of the injunction therefore had the effect of preventing the newspaper from contributing to the public debate surrounding the elections and the candidature of Mr Gul at a critical time in Turkish political history. The unexplained delays in the procedure and the failure to limit the impugned measure to a reasonable period had thus rendered the restriction on the applicants’ freedom of expression unduly onerous. The domestic court had not provided any reasoning for its decisions to grant the injunction and to refuse the ensuing request for it to be lifted. This lack of reasoning not only deprived the applicants of an important procedural safeguard, but also prevented the Court from examining whether the domestic court had duly balanced the parties’ interests by taking into account specific issues inherent to the facts of the case. In addition, since the applicants had been unable to contest the interim injunction until over a month after it was first granted, they had been placed at a substantial disadvantage vis-a-vis their opponent, especially considering the perishable nature of news and the specific political environment in which the impugned measure had been applied.
In the light of these procedural deficiencies, and bearing in mind the severity of the punishment failure to comply with the interim measure would have entailed, the injunction had not constituted a justified or a proportionate interference with the applicants’ right to freedom of expression.
Conclusion: violation (unanimously)
Article 41: EUR 2,500 to each of the applicants in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

28255/07 – Legal Summary, [2013] ECHR 1219
Bailii
European Convention on Human Rights
Human Rights

Human Rights

Updated: 26 November 2021; Ref: scu.518824

Vlad And Others v Romania: ECHR 26 Nov 2013

50806/07 – Chamber Judgment, [2013] ECHR 1174, 40756/06, 41508/07
Bailii
European Convention on Human Rights
Human Rights
Citing:
Legal Summary – Vlad And Others v Romania (Legal Summary) ECHR 26-Nov-2013
ECHR Article 46-2
Execution of judgment
Measures of a general character
Respondent State encouraged to take further measures to provide genuine effective relief for violations of the right to a . .

Cited by:
Cited – Vlad And Others v Romania ECHR 17-Mar-2015
. .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 26 November 2021; Ref: scu.518449

Bandaletov v Ukraine: ECHR 31 Oct 2013

ECHR Article 6-3-c
Defence through legal assistance
Lack of legal representation at initial stage of investigation when applicant made a confession during interview as a witness: no violation
Facts – The applicant was summoned to a police station with several others for questioning as a witness in connection with an investigation into a double murder committed in his home. He confessed to the offence. The following day he was arrested as a suspect and a lawyer was appointed to assist him. The applicant at all times thereafter confirmed his confession. He was sentenced to life imprisonment. Before the European Court he complained that at the initial stage of the investigation he had not been assisted by a lawyer, and that the domestic courts had failed to mitigate his sentence even though he had voluntarily surrendered to the police and confessed to the crime.
Law – Article 6 ssss 1 and 3 c): There was no indication that the authorities had had any reason to suspect the applicant of involvement in the murder before his first communication with the police. There had been nothing in the statements taken by the police from various interviewees that day which could have cast suspicion on him. The applicant had volunteered the confession of his own free will while being questioned as a witness and it was only after his confession that the police had considered him a suspect. Furthermore, the applicant had been summoned to the police station with all the other witnesses and so had not been taken by surprise, but had had the opportunity to collect his thoughts and choose what stance to take during the questioning. It was true that the police could have immediately interrupted the applicant’s interview after his confession and refrained from including those statements in the case file as the basis for starting the investigation against him. But that would have been exactly the opposite of what the applicant had wanted and of what the police could have held to be in his best interest, as a voluntary surrender to the police made before the beginning of the procedure could be considered a mitigating factor. The Court did not lose sight of the applicant’s argument that his legal representation during the first questioning would have ensured the proper documenting of his surrender to the police and its further mitigating effect on his sentence. However, the applicant’s voluntary surrender had consistently been referred to by him and his counsel at the trial, and the domestic courts had never expressed any doubts or criticism as to how that surrender had been documented. The fact that they had not considered it necessary to mitigate the applicant’s sentence on that ground had no bearing on his complaint to the Court. The applicant had failed to explain, both in the domestic proceedings and in those before the Court, what prejudice to the overall fairness of his trial had been caused by the alleged early restriction on his defence rights, other than the severity of his sentence. In the Court’s opinion, any connection between the absence of legal representation at such an early stage of the investigation, when the applicant had not even been treated as a suspect, and the severity of his sentence was purely speculative. The domestic authorities had changed the applicant’s status from witness to suspect and provided him with a lawyer as soon as they had plausible reasons to suspect him. At his first interview as a suspect the applicant was legally represented and no investigative measures were taken after his initial confession before he had been assigned a lawyer. The applicant had maintained his confession throughout the pre-trial investigation and judicial proceedings, during which he was represented by several different lawyers. His initial confession could hardly be regarded as having been used to convict him, as the trial court had relied exclusively on the investigative measures conducted afterwards, when the applicant already had legal assistance. Lastly, the applicant’s request for mitigation of sentence on the ground of his voluntary surrender had been examined by the domestic courts. Accordingly, the criminal proceedings against the applicant had been fair overall.
Conclusion: no violation (unanimously).
(See also Salduz v. Turkey [GC], 36391/02, 27 November 2008, Information Note 113)

23180/06 – Chamber Judgment, [2013] ECHR 1065, 23180/06 – Legal Summary, [2013] ECHR 1168
Bailii, Bailii
European Convention on Human Rights

Human Rights

Updated: 26 November 2021; Ref: scu.518429

Nizomkhon Dzhurayev v Russia (LS): ECHR 3 Oct 2013

ECHR Article 3
Expulsion
Positive obligations
Failure by Russian authorities to protect Tajik national in their custody from forced repatriation to Tajikistan despite risk of proscribed treatment: violation
Article 34
Hinder the exercise of the right of petition
Failure by Russian authorities to protect Tajik national in their custody from forcible repatriation to Tajikistan in breach of interim measure issued by European Court: failure to comply with Article 34
Article 38
Failure to comply with requests for information and documents in case concerning forcible repatriation to country where applicant was at risk of ill-treatment: failure to comply with Article 38
Facts – The applicant was a Tajik national and prominent businessman. In 2007 he fled Tajikistan fearing for his life. He eventually arrived in Russia, where his partner lived, in August 2010. Two weeks later he was arrested and detained by the Russian authorities pursuant to an international warrant issued by the Tajik authorities, who sought his extradition on criminal charges. The extradition request was granted in February 2011 and upheld by the Russian courts, but was not executed as in the meantime the European Court had issued an interim measure under Rule 39 of its Rules of Court directing that he should not be returned to Tajikistan. In January 2012 the Registrar of the Court wrote to the Russian Government to express his profound concern at repeated allegations that applicants had been secretly transferred from Russia to Tajikistan in breach of interim measures and inviting the Government to provide the Court with exhaustive information about any follow-up to these incidents.
On 29 March 2012 the applicant was released from the remand centre where he was being held. Neither his lawyer nor his next-of-kin were notified by the authorities of the decision to release him, although the lawyer said she was alerted to the applicant’s imminent departure by a phone call from one of his cellmates. However, by the time she reached the remand centre the applicant had disappeared without trace. On 7 April 2012 Tajik State television broadcast a video of the applicant reading out a statement saying that immediately after his release from the remand centre he had decided to return to Tajikistan, as he was feeling guilty and was worried about his children and elderly mother. In the statement, he said he had borrowed the equivalent of EUR 370 from compatriots at a local market and travelled overland to Tajikistan, before turning himself in.
Law – Article 3: It was beyond reasonable doubt that the applicant had been secretly and unlawfully transferred from Russia to Tajikistan by unknown persons in the wake of his release from detention in Russia on 29 March 2012. His forcible return to Tajikistan had exposed him to a real risk of treatment contrary to Article 3.
As to regards the responsibility for his transfer, irrespective of whether and by what means Russian State agents had been involved in the impugned operation, the respondent State was responsible for a breach of its positive obligations under Article 3.
It was indisputable that the Russian authorities had failed to protect the applicant against the real and immediate risk of forcible transfer to Tajikistan and ill-treatment in that country. It was beyond doubt that the Russian authorities were aware or should have been aware of such a risk when they decided to release him. The applicant’s background, the Tajik authorities’ behaviour in his case, and not least the recurrent similar incidents of unlawful transfers from Russia to Tajikistan to which the Russian authorities had been insistently alerted by both the Court and the Council of Europe’s Committee of Ministers were worrying enough to trigger the authorities’ special vigilance and require appropriate measures of protection corresponding to that special situation. The authorities had nonetheless failed to take any measure to protect the applicant at the critical moment of his unexpected release. Even more striking was their deliberate failure to inform the applicant’s representative of the planned release in due time, so depriving the applicant of any chance of being protected by his representative or next-of-kin. Nor had the competent authorities taken any measures to protect the applicant after receiving insistent official requests from the applicant’s representatives immediately after his disappearance. As a result, the applicant had been withdrawn from Russian jurisdiction and the Tajik authorities’ aim of having him extradited to Tajikistan had been achieved in a manifestly unlawful manner.
The Russian authorities had also failed to conduct an effective investigation into the applicant’s disappearance and unlawful transfer. They had repeatedly refused to open a criminal investigation into the case for absence of corpus delicti and the only investigative measure the Court had been informed of was a request, sent nine months after the impugned events, to check the information about the illegal crossing of the Russian State border. Indeed, the authorities had given every appearance of wanting to withhold valuable evidence.
The Russian Federation had thus breached its positive obligations to protect the applicant against a real and immediate risk of torture and ill-treatment in Tajikistan and to conduct an effective domestic investigation into his unlawful and forcible transfer to that country. In the Court’s view, Russia’s compliance with those obligations had been of particular importance in the applicant’s case, as it would have disproved an egregious situation that tended to reveal a practice of deliberate circumvention of the domestic extradition procedure and the interim measures issued by the Court. The continuation of such incidents in the respondent State constituted a flagrant disregard for the rule of law and entailed the most serious implications for the Russian domestic legal order, the effectiveness of the Convention system and the authority of the Court.
Conclusion: violation (unanimously).
(See Iskandarov v. Russia, 17185/05, 23 September 2010, Information Note 133; Abdulkhakov v. Russia, 14743/11, 2 October 2012, Information Note 156; and Savriddin Dzhurayev v. Russia, 71386/10, 25 April 2013, Information Note 162)
Article 34: On 26 May 2011 the Court had asked the respondent Government not to extradite the applicant to Tajikistan until further notice. Notwithstanding that request, the applicant was forcibly repatriated to Tajikistan at some point between 29 March and 7 April 2012.
The Court had already found the Russian authorities responsible for failing to protect the applicant against his exposure to a real and immediate risk of torture and ill-treatment in Tajikistan, which had made possible his forced repatriation. Accordingly, responsibility for the breach of the interim measure also lay with the Russian authorities.
Conclusion: failure to comply with Article 34 (unanimously).
Article 38: The applicant’s case involved controversial factual questions which could only be elucidated through the genuine cooperation of the respondent Government in line with Article 38 of the Convention. The Court had put a number of detailed factual questions and requested the relevant domestic documents, but the Government had submitted only cursory answers referring to pending inquiries and containing virtually no element of substance. They had also failed, without giving any reasons, to provide the Court with any of the domestic decisions refusing to open a criminal investigation or quashing such decisions by a higher authority.
The Government’s failure to cooperate, viewed in the context of their evasive answers to specific factual questions and coupled with severe investigative shortcomings at the domestic level, highlighted the authorities’ unwillingness to uncover the truth regarding the circumstances of the case.
Conclusion: failure to comply with Article 38 (unanimously).
The Court also found, unanimously, a violation of Article 5 ss 4 of the Convention on account of delays in hearing an appeal by the applicant against detention.
Article 41: EUR 30,000 in respect of non-pecuniary damage to be held in trust by the applicant’s representatives.

31890/11 – Legal Summary, [2013] ECHR 1163
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Legal Summary – Nizomkhon Dzhurayev v Russia ECHR 3-Oct-2013
. .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 26 November 2021; Ref: scu.518411

Keller v Russia: ECHR 17 Oct 2013

ECHR Article 2
Positive obligations
Article 2-1
Life
Failure to safeguard life of drug addict who leapt to his death while trying to escape police custody: violation
Facts – On 13 September 2000 the applicant’s son (V.K.) was arrested in connection with the theft of two bicycles. The interrogation record noted that he was a drug addict. Three days later V.K. was brought to an office on the third floor of the Regional Department of the Interior (ROVD), where in the presence of a duty lawyer, he was charged with theft. After the interview ended and the duty lawyer had left, the investigator asked a trainee investigator to keep an eye on V.K. while she was away at a meeting with a prosecutor. Just over an hour later V.K. was found dead in the internal courtyard of the ROVD station. In his report, the trainee investigator stated that V.K. had suddenly run out of the office and into a toilet where he had apparently leapt to his death through a third-floor window.
Law – Article 2 (substantive aspect): There was an insufficient factual and evidentiary basis on which to conclude that V.K. had been defenestrated or coerced into jumping or had died trying to escape ill-treatment by police officers. Having regard to the case file and the parties’ submissions, the Court found that the authorities had validly concluded that V.K. had died as the result of an unfortunate attempt to escape from detention.
As to whether the State had complied with its duty to protect V.K.’s life, the Court reiterated that the obligation to protect the health and well-being of persons in detention clearly encompassed an obligation to protect the life of arrested and detained persons from a foreseeable danger. Although there was insufficient evidence to show that the authorities knew or ought to have known that there was a risk that V.K. might attempt to escape by jumping out of a third-floor window, there were certain basic precautions which police officers should be expected to take in respect of persons held in detention in order to minimise any potential risk of attempts to escape.
In that connection, the escort and supervision arrangements for V.K.’s detention on 16 September 2000 had been seriously deficient. In clear breach of the applicable domestic rules, no escorting officers had been on the spot either before or during V.K.’s attempt to escape and the interview had taken place in an investigator’s office rather than in appropriate designated premises. The police had not adopted any safety measures despite V.K.’s known drug addiction and his noticeable anxiety on the day in question. Finally, V.K. had remained without any effective supervision in an unlocked office for quite some time, making it possible for him to slip out of the investigator’s office unnoticed and head for a third-floor toilet before jumping out of the window. While it would be excessive to request States to put bars on every window at a police station in order to prevent tragic events like the one in the instant case, this did not relieve them of their duty under Article 2 to protect the life of arrested and detained persons from foreseeable danger.
In sum, the State authorities had failed to provide V.K. with sufficient and reasonable protection.
Conclusion: violation (unanimously).
The Court also held, unanimously, that there had been no violation of the procedural limb of Article 2 in respect of the investigation into V.K.’s death, that there had been no violation of the substantive limb of Article 3 in respect of the injuries V.K. had allegedly sustained in custody, but a violation of the procedural limb of that provision in respect of the authorities’ failure to hold an effective investigation into how those injuries had occurred.
Article 41: EUR 11,000 in respect of non-pecuniary damage.

26824/04 – Chamber Judgment, [2013] ECHR 985, 26824/04 – Legal Summary, [2013] ECHR 1161
Bailii, Bailii
European Convention on Human Rights
Human Rights

Human Rights

Updated: 26 November 2021; Ref: scu.518410

Yandiyev And Others v Russia (LS): ECHR 10 Oct 2013

ECHR Article 2-1
Life
Effective investigation
Failure to effectively investigate civilian disappearances in Ingushetia: violation
Facts – The applicants were close relatives of three men who disappeared in Ingushetia in 2002 and 2004 after being apprehended by armed men they identified as Russian security forces. In each case a criminal investigation was opened by the local prosecutor’s office and the proceedings were subsequently suspended and resumed on several occasions. At the time of the European Court’s judgment, the proceedings were still pending and the whereabouts of the missing men and the identity of the abductors were still unknown. The parties disputed the level of State involvement in the disappearances as well as whether the abducted men could be presumed dead.
Law – Article 2
(a) Substantive aspect: The Court found it established that the applicants’ family members had been taken into custody by agents of the State. In the absence of any reliable news of the three men since their abduction, and given the life-threatening nature of such detention, they could be presumed dead. Responsibility for their deaths rested with the respondent State, who had provided no grounds justifying the deaths.
Conclusion: violation (unanimously).
(b) Procedural aspect: The investigations into the disappearance of the applicants’ relatives had been pending for many years without bringing about any significant development as to the identities of the perpetrators or the fate of the victims. The proceedings in each of the cases had been plagued by a combination of defects. In particular, no steps had been taken to find out the nature and provenance of the special passes the abductors had used when transporting the men. This could have led to the establishment of the abductors’ identities and the discovery of their fate. What was at stake here was nothing less than public confidence in the State’s monopoly on the use of force. The State had therefore to ensure, by all means at its disposal, an adequate response, judicial or otherwise, so that the legislative and administrative framework set up to protect the right to life was properly implemented, and any breaches of that right were halted and punished. The respondent State had failed to ensure such an adequate response in the instant case.
Conclusion: violation (unanimously).
The Court further found unanimously violations of Article 3 (on account of the distress and anguish suffered by the applicants), Article 5 (on account of the detention without any legal grounds or acknowledgement) and of Article 13 (on account of the lack of an effective remedy in respect of the applicants’ complaints under Articles 2 and 3).
Article 41: The applicants were awarded between EUR 7,800 and EUR 23,000 in respect of pecuniary damage and between EUR 45,000 and EUR 60,000 in respect of non-pecuniary damage.
(See Imakayeva v. Russia, 7615/02, ECHR 2006-XIII (extracts), Information Note 91; Gakayeva and Others v. Russia, 51534/08, 4401/10, 25518/10, 28779/10, 33175/10, 47393/10, 54753/10, 58131/10, 62207/10 and 73784/10, 10 October 2013; Aslakhanova and Others v. Russia, 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, 18 December 2012, Information Note 158; and Varnava and Others v. Turkey, 16064/90 et al., 18 September 2009, Information Note 122)

43811/06 – Legal Summary, [2013] ECHR 1162, 34541/06, 1578/07
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Legal Summary – Yandiyev And Others v Russia (CJ) ECHR 10-Oct-2013
. .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 26 November 2021; Ref: scu.518412

Pichkur v Ukraine: ECHR 7 Nov 2013

10441/06 – Chamber Judgment, [2013] ECHR 1099
Bailii
European Convention on Human Rights
Human Rights
Citing:
Legal Summary – Pichkur v Ukraine (Legal Summary) ECHR 7-Nov-2013
ECHR Article 14
Discrimination
Termination of payment of retirement pension on the ground that beneficiary was permanently resident abroad: violation
Facts – In 1996 the applicant, who was then . .
See Also – Pichkur v Ukraine ECHR 21-Sep-2010
. .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 25 November 2021; Ref: scu.517637