ECtHR Cases October–December 2019

Fountas v Greece (application no 50283/13)

The case concerned the police shooting and killing the applicant’s son in 2010. The Court found that while the authorities had fulfilled their Convention duty to carry out a thorough investigation into the killing, which had led to a finding that the police officers had acted in self-defence, they had failed to involve the applicant in the case to the extent necessary. In particular, he had not had access to documents in the criminal case file or a separate internal police inquiry and had only been informed of his son’s death after an autopsy had taken place, even though the deceased’s body had been identified earlier.

Almaši v Serbia (no 21388/15)

The applicant, Šandor Almaši, is a Serbian national who was born in 1979 and lives in Male Pijace (Serbia). The case concerned his alleged ill-treatment by the police and his complaint of a conviction on the basis of a confession made under duress.

Mr Almaši was sentenced to 1 year in prison in September 2011 after being found guilty of crossing the border illegally and of people smuggling, along with an accomplice. During the domestic proceedings, the defence alleged that Mr Almaši had been coerced into a confession while in custody after being slapped by a police officer, that witness testimony against him was unreliable, particularly an identification procedure, and that the appointment of a legal-aid lawyer during his police questioning had been irregular as he was not allowed to appoint his own lawyer. The Constitutional Court rejected his final appeal in March 2015.

The applicant complained under Article 3 (prohibition of inhuman or degrading treatment) that he had been ill-treated by the police and that no proper investigation into his allegations of ill-treatment had taken place. He also complained under Article 6 §§ 1 and 3(c) of a lack of fairness in the criminal proceedings against him, in particular, that his conviction had been based on the confession he had made in April 2011, itself obtained in breach of his right to legal assistance of his own choosing.

A v Russia (application no 37735/09)

The case concerned the applicant’s allegation that she had been traumatised by witnessing her father’s violent arrest by the police when she was 9 years old.

The Court found that the applicant’s allegations were credible, but that the authorities’ only response had been to carry out a pre-investigation inquiry, which was superficial and ineffective. Moreover, the law enforcement officers, who had to have been well aware that the applicant was or would be on the scene of the operation, had taken no account of her interests when planning and carrying out their operation against her father, thus exposing her to a scene of violence. That had very severely affected her, as she had suffered in particular from a neurological disorder and post-traumatic stress disorder for several years afterwards. In the Court’s view, the applicant witnessing such a violent incident had amounted to ill-treatment which the authorities had failed to prevent, in breach of Article 3.

Jevtović v Serbia (application no 29896/14)

The applicant, Mališa Jevtović, is a Serbian national who was born in 1974 and lived in Belgrade. He is currently serving a prison sentence. The case concerned his alleged ill-treatment by prison guards, which he argued had amounted to torture.

Mr Jevtović was arrested in 2005 on charges of committing sexual acts against a 3-year-old girl which led to her death. He was convicted in 2009 and sentenced to 40 years’ imprisonment, which was upheld on appeal in 2011. During his pretrial detention in Belgrade District Prison from 2005 to 2011 and in Požarevac-Zabela Correctional Institution between 2011 and 2013, there were four incidents in particular – on 11 June 2007, 18 December 2009, 22 December 2011 and 24 December 2011 – when he alleged he had suffered injuries. In each case, prison guards used force, including rubber truncheons, on the applicant. The prison authorities found in relation to the first three incidents that the guards had used justified and lawful force to subdue the applicant, either after an argument with another prisoner or because he had refused to obey prison regulations. The fourth incident was not registered in any official records but was recorded by the Ombudsman after visiting the applicant and hearing his complaints. The prison was not able to identify with certainty how the applicant had been injured in that incident.

The applicant lodged a constitutional appeal in September 2011. The Constitutional Court found in July 2013 that the applicant had suffered a violation of his right to his physical and mental integrity, both because of actual harm and the lack of a proper investigation, in all four incidents. It awarded him EUR 1000 in respect of non-pecuniary damage and ordered that the official investigation into the incident of 24 December 2011 be expedited.

Relying on Article 3 (prohibition of torture and of inhuman or degrading treatment) of the European Convention on Human Rights, the applicant complained of being ill-treated by prison guards and in particular that he had been tortured in the four incidents. He also complained under the same Article of the lack of an effective official investigation.

Batiashvili v Georgia (application no 8284/07)

The applicant, Irakli Batiashvili, is a Georgian national who was born in 1961 and lives in Tbilisi. The case concerned his detention pending trial and an alleged violation of his right to be presumed innocent in connection with criminal proceedings over his allegedly helping an armed group in carrying out a rebellion.

In July 2006, tensions arose in Georgia over the possibility that an armed group in the Kodori Gorge region, which had helped the Government in its 1992–1993 fight against separatist forces in Abkhazia, would begin a conflict with the State. The authorities eventually took control of the gorge in late July 2006 in a near bloodless police operation. Mr Batiashvili was charged with failure to report to the authorities the potential involvement of the Abkhaz separatists in the conflict with the State and with aiding and abetting the leader of the Kodori Gorge armed force, E.K., after telephone calls between the two men were intercepted. In particular, a recording of one call played on television appeared to show the applicant and E.K. discussing, among other things, help for the armed group from the Abkhaz separatists. Mr Batiashvili later said E.K. had refused the Abkhaz offer but that part of the conversation had been omitted from the broadcast. Mr Batiashvili was eventually held in pretrial detention for 4 months and found guilty of the charges in 2007. He received a presidential pardon on an unspecified date.

The applicant raised various complaints about the decisions on his pretrial detention, the appeal proceedings and access to evidence on that question under, in particular, Article 5 § 3 (right to liberty and security/entitlement to trial within a reasonable time or to release pending trial) and Article 5 § 4 (right to have lawfulness of detention decided speedily by a court) of the European Convention on Human Rights. He further alleged that statements by prominent members of parliament and the dissemination to the media of an edited recording of his telephone conversation had infringed his rights under Article 6 § 2 (presumption of innocence) of the European Convention.

I.L. v Switzerland (application no 72939/16)

I.L. submitted that a preventive measure had been imposed on him (between 13 June 2016 and 23 September 2016) in conditions that were not provided for by Swiss law. The preventive measure had been ordered on the basis of provisions from the Code of Criminal Procedure governing pretrial detention, applied by analogy, pending a court ruling on a request for an extension of the institutional therapeutic measure that had been imposed on I.L. 5 years previously. The maximum duration of that initial measure had just expired.

The Court noted that the decision ordering detention on the grounds of public safety would not have been necessary if the judgment extending the institutional measure had been delivered on time. The Court found that it was undisputed that no explicit legal basis existed in Swiss criminal law for this type of detention; nor was there any consistent domestic case law in this respect. It also considered that, having regard to the seriousness of the interference with the applicant’s personal liberty and the need for a strict interpretation of the requirements underpinning lawful detention, the application by analogy or by referral of a substantive provision could not be tolerated. It followed that the federal legislation did not meet the criteria of a ‘law’ for the purposes of Article 5 § 1 and that the applicant’s detention between 13 June 2016 and 13 September 2016 had not been compatible with that Article. The Court noted that the Swiss Parliament was now anxious to fill this legislative void and that preparatory work to that effect was being conducted.

Kavala v Turkey (application no 28749/18)

In this case, Mr Kavala, a businessman who has been involved in setting up numerous non-governmental organisations and civil society movements which are active in promoting and protecting human rights, argued that his arrest and placement in pretrial detention had been unjustified.

The Court noted that Mr Kavala had been placed in pretrial detention on account of a ‘strong suspicion’ that he had committed two offences: attempting to overthrow the Government and attempting to overthrow the constitutional order, through force and violence. The Court found that the authorities were unable to demonstrate that the applicant’s initial and continued pretrial detention had been justified by reasonable suspicions based on an objective assessment of the acts attributed to him. It also noted that this measure had essentially been based not only on acts that could not be reasonably considered as behaviour criminalised under domestic law, but also on acts which were largely related to the exercise of rights guaranteed by Articles 10 and 11 of the Convention, and that those acts had been non-violent. In the absence of facts, information or evidence showing that Mr Kavala had been involved in criminal activity, he could not reasonably be suspected of having attempted to overthrow the Government by force or violence.

With regard to the total duration of the Constitutional Court’s review of legality in the context of Mr Kavala’s individual application and to what was at stake, the Court concluded that the proceedings by which the Turkish Constitutional Court had ruled on the lawfulness of Mr Kavala’s pretrial detention could not be considered compatible with the ‘speediness’ requirement of Article 5 § 4.

Lastly, the Court held that, having regard to the material in the file, it had been established beyond reasonable doubt that the measures complained of in the case pursued an ulterior purpose, contrary to Article 18, namely that of reducing Mr Kavala, and with him all human-rights defenders, to silence.

Other Article 5 cases from October to December 2019

Natig Jafarov v Azerbaijan (application no 64581/16)

Korneyeva v Russia (application no 72051/17)

The case concerned the applicant being convicted of two separate offences originating in the similar circumstances of an unauthorised rally. The Court in particular rejected the Government’s argument that the duplication of the proceedings against the applicant had been justified by the distinct areas covered by two different charges. The Court found there was an overlap of the facts which were at the basis of each prosecution. Taking account of its own case law and a ruling of the Plenary of the Supreme Court of Russia in similar circumstances, the Court found that the applicant had been tried and convicted twice for the same offence, in violation of her rights.

Urazbayev v Russia (no 13128/06)

The applicant, Mr Mukhamedzhan Urazbayev, is a Russian national who was born in 1964 and is currently being held in a correctional colony in Kurgan. The case concerned the applicant’s complaint about his conviction. He alleges that it was based on a confession obtained by the police from his brother under torture while his brother was being held in arbitrary detention.

On 6 May 2002, a criminal investigation was opened into the theft of cattle in the Katayskiy district. Mr Urazbayev and his brother were suspected. A police ambush was put in place, in the course of which a police officer was killed. Between 10 May 2002 and 12 May 2002, police officers questioned the applicant’s brother, who was placed in administrative detention at that time for using obscene language in a public place. On 12 May 2002, his brother drew up a ‘sincere confession’, stating that he, and his brother, had stolen cattle and that his brother had admitted to him that he had killed the police officer. The following day, he indicated to a court-appointed lawyer that he wished to withdraw his statements since they had been extracted under torture. He lodged a complaint alleging police violence. On 27 June 2004, Mr Urazbayev, who was on the run, was captured and arrested as a suspect in the unlawful killing of the police officer.

Mr Urazbayev’s criminal trial opened in 2004 before the Kurgan Regional Court. The applicant denied all the accusations and asked that his brother’s statements be excluded from the prosecution evidence since they had been obtained under torture in the course of unlawful detention and in the absence of a lawyer. On 15 June 2005, the Kurgan Regional Court, basing its finding on the ‘sincere confession’ by the applicant’s brother, sentenced him to 22 years’ imprisonment for the unlawful killing of a police officer, the theft of weapons and ammunition and the unlawful possession of weapons and explosives. The court established that Mr Urazbayev’s brother had been at his side when he had fired and that he was the only witness to the murder. Mr Urazbayev appealed on points of law. The Supreme Court upheld the judgment.

Relying on Article 6 § 1 (right to a fair trial), the applicant complained that his conviction had been based on statements extracted from his brother under torture in the course of arbitrary detention by the police.

Oddone and Pecci v San Marino (nos 26581/17 and 31024/17)

The applicants, David Oddone and Alessandro Pecci, are Italian nationals who were both born in 1979 and live in Rimini (Italy). The case concerned their allegation that proceedings against them for car insurance fraud had been unfair.

The police found that three car accidents between 2008 and 2011 involving Mr Oddone and on one occasion Mr Pecci were suspicious and they began an investigation. During questioning two of the people involved, G. and L., who knew Mr Oddone and Mr Pecci, admitted that the accidents had been simulated. They had all allegedly participated in the scheme. In 2014, both applicants and G. and L. were indicted of insurance fraud. G. and L. attended a preliminary hearing, but none of those that followed, and admitting the charges, asked the trial court to take this into account as a mitigating circumstance when sentencing them. The applicants did not have the opportunity to cross-examine L. and G.

In 2015, all four were found guilty as charged. Mr Oddone was sentenced to 2 years and 5 months’ imprisonment, while the others were sentenced to 2 years’ imprisonment. This judgment was upheld on appeal in 2016 in respect of all the accused, except for L. whose case was dismissed as time-barred. At both first and second instance, the judges found that G. and L.’s statements had been corroborated by other evidence, namely, the records of telephone calls between some of the accused before and after the accidents, and the fact that two of the accidents had occurred in the same street and had involved the same driver and passengers.

During these proceedings, the applicants requested that the investigation be reopened in order to cross-examine G. and L., without success. In particular, the investigating judge and first-instance judge held that under domestic law, an accused person could not cross-examine a co-accused witness. Mr Oddone brought revision proceedings before the Judge of Extraordinary Remedies in Criminal Matters, but the request was rejected in 2019.

Relying on Article 6 §§ 1 and 3(d) (right to a fair trial and right to obtain attendance and examination of witnesses) of the European Convention, the applicants complained that they had been prevented from cross-examining G. and L. during the investigation and at trial, despite such testimony being decisive for their convictions.

Deli v the Republic of Moldova (application no 42010/06)

The case concerned, on the one hand, an alleged dispute between a lawyer and a judge during a court hearing and the lawyer’s resulting fears of bias towards him and his client and, on the other hand, the judge’s contention that he was attempting to maintain order in court faced with the lawyer’s disruptive conduct. The lawyer, the applicant in this case, had brought proceedings before the domestic courts to complain about his conviction for contempt of court and the judge’s bias, without success.

The Court found in particular that for an independent observer there had been legitimate concerns as to the judge’s impartiality. The domestic courts had rejected the applicant’s allegations of bias as a whole without any analysis or real verification of the facts. Furthermore, there had been procedural shortcomings because the judge had encompassed the roles of both prosecutor and judge when finding the applicant in contempt of court. The Court also held that the appeal court examining the case for contempt of court had failed to properly summon the applicant, whereas the nature of his offence and allegations against the judge had required that court to hear him in person.

Gelenidze v Georgia (no 72916/10)

The applicant, Manana Gelenidze, is a Georgian national who was born in 1962 and lives in Tbilisi. The case concerned her complaint of the unfairness of criminal proceedings brought against her for delivering an unlawful decision when she had been a judge.

Ms Gelenidze was convicted in 2006 of deliberately miscalculating the prison term of a person whom she had convicted and sentenced to 2 years’ imprisonment. She had fled Georgia during the preliminary investigation but was arrested on her coming back to the country in July 2009. Following her arrest, she appealed, arguing that the offence of which she had been convicted had in the meantime been decriminalised. However, at an appeal hearing in October 2009, the Kutaisi Court of Appeal accepted the prosecutor’s request to reclassify her offence to abuse of office and amended her conviction. She was sentenced to 2 years’ imprisonment.

She brought two complaints under Article 6 §§ 1 and 3(a) and (b) (right to a fair trial/right to be informed promptly of the accusation against him/her/right to adequate time and facilities for preparation of defence) of the European Convention. First, she alleged that the legal reclassification of the offence for which she had been convicted had been arbitrary and, secondly, she complained that she had not been given adequate time to adjust her defence to the new charges because the prosecutor’s application to reclassify her offence had been submitted on the last day of the appeal proceedings.

Adamčo v Slovakia (application no 45084/14)

The applicant, Branislav Adamčo, is a Slovak national who was born in 1978. He is currently in detention in Leopoldov (Slovakia). The case concerned his complaint that he had not been given a fair trial when he had been convicted for murder.

In 2001, Mr Adamčo was charged with murder related to an organised-crime contract killing. He was first acquitted of being an accomplice in that crime, but the prosecution appealed and the charge was modified as identifying him as the actual killer. The modified charge relied, among other things, on testimony by a witness who had also given evidence at earlier stages of the trial but who had then changed his version of events, incriminating the applicant. Mr Adamčo was convicted of murder and his subsequent ordinary appeal and an appeal on points of law were unsuccessful.

In 2011, he lodged a complaint with the Constitutional Court, arguing that modifications to the composition of the formations dealing with his case at the trial level and at the appellate level had been irregular and that he had not had access to prosecution observations in either of his two appeals. He also submitted that the evidence from the prosecution witness had been unreliable as the witness had benefited from his actions because the prosecution had dropped cases against him. The Constitutional Court rejected his complaint as inadmissible.

Relying in particular on Article 6 (right to a fair trial) of the European Convention on Human Rights, Mr Adamčo complained, inter alia, that he had no access to prosecution observations on his ordinary appeal and his appeal on points of law and that his conviction had been based to a decisive extent on the testimony of a witness who had had an obvious motive to give evidence in favour of the prosecution rather than tell the truth.

Mustafa v Bulgaria (application no 1230/17)

Mr Mustafa, a civilian who had no links to the army, was tried and convicted by military courts for an ordinary offence because one of the other defendants in the case was serving in the army at the time it was committed. Mr Mustafa argued that those courts were neither independent nor impartial.

The Court found in particular that Mr Mustafa’s doubts about the independence and impartiality of the military courts could be regarded as objectively justified. First, factors such as the military judges being subject to military discipline, their formal incorporation into the army, and the status of the jurors of the military court, who were by definition army officers, indicated that military courts under Bulgarian law could not be regarded as equivalent to the ordinary courts. Secondly, Bulgarian law provided for the military courts having exclusive jurisdiction over offences committed jointly by military personnel and civilians, even outside the context of military activities. The abstract allocation by national legislation of certain categories of offences to the military courts was not sufficient; it was necessary to demonstrate the existence of ‘compelling reasons’ in each case.

Paunović v Serbia (no 54574/07)

The applicant, Dragoslav Paunović, is a Serbian national who was born in 1956 and lives in Soko Banja (Serbia). The case concerned his complaint about a former deputy public prosecutor being on the appeal court bench which had upheld a conviction against him.

In December 2006, the applicant was sentenced to 6 months’ imprisonment for causing bodily harm and death by dangerous driving after an indictment was issued by the Aleksinac Municipal Public Prosecutor’s Office. The conviction was upheld on appeal. The applicant subsequently lodged an appeal on points of law, alleging that the appeal court had not been impartial as it had included Judge B.K., a former deputy prosecutor who had worked at the Aleksinac Municipal Public Prosecutor’s Office immediately before joining the judiciary in August 2006. The Supreme Court of Serbia dismissed the appeal on points of law, finding in particular that Judge B.K. had not taken part in the applicant’s prosecution when he was a deputy prosecutor.

Relying on Article 6 § 1 (right to a fair trial/access to court) of the European Convention, the applicant complained that his appeal had not been examined fairly because of the presence of Judge B.K. on the panel. He also raised a complaint about the judge lacking impartiality as he was the brother of a man whom the applicant, who had worked as a tax inspector, had sought to have indicted under misdemeanour proceedings.

Bacaksız v Turkey (application no 24245/09)

The applicant, Süleyman Bacaksız, is a Turkish national who was born in 1960 and lives in Denizli (Turkey). The case concerned Mr Bacaksız’s complaint that he had not been able to participate in proceedings against him following a car accident.

The car accident in question occurred in 2000, causing injury to three drivers and their passengers. The police report drawn up on the scene noted that the applicant was at fault because he had crossed into the opposite lane, crashing into an oncoming car. In the criminal proceedings brought against him, he was, however, acquitted in 2004, and one of the other drivers was found to be at fault. In the meantime, the courts had found for an insurance company in civil proceedings brought against the applicant for reimbursement of the sums it had had to pay to one of the other drivers as a result of the accident. The proceedings had been conducted in the applicant’s absence because the Civil Court had not been able to locate him and serve the summons on him.

The applicant lodged an appeal with the Court of Cassation, requesting that the first-instance decision be quashed because he had only learnt of the proceedings when one of his relatives living at his previous address had found the summons posted on his door. He also argued that he had been fully acquitted in the criminal proceedings concerning the accident. The Court of Cassation dismissed the applicant’s appeal in 2008, holding that the decision had been lawful and that, in any case, a civil court was not bound by the conclusions of a criminal court. It did not respond to his argument about not being able to participate in the proceedings.

Relying in substance on Article 6 § 1 (right to a fair hearing) of the European Convention on Human Rights, Mr Bacaksız complained that the civil proceedings against him had been unfair because he had been unable to participate in them.

Radzevil v Ukraine (no 36600/09)

The applicant, Boris Radzevil, is a Ukrainian national, now deceased, who was born in 1936. Until his death in 2016, he lived in Odessa (Ukraine). The case concerned the proceedings brought against him for hitting a man on a pedestrian crossing while driving to work. The man subsequently died of his injuries.

The proceedings were brought against him in September 2002 after he had gone to the hospital to enquire about the victim and had explained to a police officer present that he had accidentally hit him with his car. During his trial, however, Mr Radzevil denied hitting the victim and said that he had suddenly fallen into his lane after an oncoming vehicle had gone past at very high speed. He was convicted in December 2006 for breaching traffic regulations and causing a fatal accident. He was sentenced to 4 years’ imprisonment but did not serve it as he was amnestied. In convicting him, the trial court essentially relied on eye-witness statements. It also referred to the police officer’s statement about a volunteered confession, as documented in an ‘explanation’ signed by Mr Radzevil at the police station. It found the police officer’s statement plausible but excluded the ‘explanation’ from the evidence because it was not a proper procedural document.

Mr Radzevil’s appeal against his conviction was unsuccessful, as was his request to admit two different lawyers to represent him in those proceedings. He lodged a cassation appeal with the Supreme Court, which was dismissed by the Supreme Court in January 2009.

Relying in particular on Article 6 § 1 (right to a fair trial within a reasonable time), Mr Radzevil made a number of complaints of the unfairness of the proceedings against him. He also complained that the length of the proceedings, more than 6 years, had been excessive.

Other Article 6 cases from October to December 2019

Papargyriou v Greece (application no 55846/15)

Belugin v Russia (application no 2991/06)

Makeyan and Others v Armenia (application no 46435/09)

Parmak and Bakir v Turkey (nos 22429/07 and 25195/07)

The applicants, Şerafettin Parmak and Mehmet Bakır, are Turkish nationals who were born in 1955 and 1963, respectively, and live in Denizli (Turkey) and Berlin (Germany). The case essentially concerned domestic legislation on terrorism and its interpretation by the domestic courts.

The applicants were taken into police custody in 2002 following an investigation into flyers distributed in Izmir by the Bolshevik Party of North Kurdistan/Turkey (‘the BPKK/T’), a pro-Kurdish organisation which was subsequently designated as a terrorist organisation in proceedings against the applicants. During the proceedings, the applicants denied any involvement in the BPKK/T and stated that in any event there was nothing in the case file to suggest that the organisation was involved in violence and was therefore terrorist. They submitted that the flyers had not made any incriminating statements and had been nothing more than the legitimate exercise of freedom of thought and expression.

The domestic courts ultimately convicted the applicants of membership of an illegal organisation in 2006 and sentenced them to 2 years and 6 months’ imprisonment. They based their findings on a note by the General Security Directorate which classified the BPKK/T as a terrorist organisation whose ultimate aim was to bring about an armed revolution in Turkey. They also relied on an identification parade, BPKK/T flyers and periodicals seized during a search of Mr Parmak’s apartment and the organisation’s manifesto discovered in a co-accused’s apartment. In convicting the applicants, the courts relied on the relevant domestic legislation as amended in 2003 to define terrorism as acts that were ‘committed using violence and coercion’. In the applicants’ case, the court found that even though the members of the organisation had not resorted to physical violence, they had used ‘moral coercion’ or intimidation in their confiscated documents which constituted a form of violence.

The applicants had in the meantime – in January 2003 – been released and had had a travel ban imposed on them. Mr Bakır made seven applications to the courts for the ban to be lifted, explaining each time that he resided in Germany and that the ban had a profound impact on both his professional and private life. The courts either rejected his requests, referring to the ongoing proceedings, or did not reply at all. The ban was eventually lifted in June 2009 when he had served his sentence.

Relying in particular on Article 7 (no punishment without law), the applicants complained that their conviction had been based on too broad an interpretation of the definition of terrorism, notably that violence, which is a component of a terrorist offence, could be taken to include moral coercion. Mr Bakır also complained that the ban on him travelling while the criminal proceedings had been ongoing had not been justified, in breach of Article 8 (right to respect for private life).

Lewit v Austria (application no 4782/18)

The case concerned a now 96-year-old Holocaust survivor’s complaint that he had been defamed by a right-wing periodical and that the courts had not protect his right to reputation.

The Court found that the Austrian courts had failed to protect the applicant’s rights because they had never dealt with the central issue of his claim: that he had been defamed by an article which had used terms like ‘mass murderers’, ‘criminals’ and ‘a plague’ to describe people like him liberated from the Mauthausen concentration camp complex in 1945. Instead, the courts had concluded that he had no standing to bring the case at all as the number of people liberated had been so large that he could not have been personally affected by statements in which he had not been named. However, the courts had not examined the fact that by the time of the article there were far fewer survivors still alive. The courts had also concluded that the article had simply repeated statements made in an earlier piece on the same theme, and thus, the words had had no separate defamatory meaning.

The Court found that no explanation had been provided for that finding and concluded that in fact the context and purpose of the two articles was very different. Overall, the lack of a proper examination by the courts of the applicant’s defamation claim had led to a violation of his privacy rights.

M.M.B. v Slovakia (no 6318/17)

The applicant, Ms M.M.B., is a Slovak national who was born in 2008 and lives in Košice (Slovakia). The application was brought on her behalf by her mother. The case concerned her complaint about the authorities’ investigation into allegations of sexual abuse by her father.

In 2012, the applicant’s mother approached a specialised centre because she suspected that her daughter had been sexually abused by her father. Psychologists at the centre stated that the applicant’s unusual behaviour could be attributable to child abuse. There followed two investigations during which seven diverging expert reports were drawn up. Some of the experts could not identify any signs of sexual abuse and concluded that the applicant had a vivid imagination, while others found that she could not have invented some of her stories without having experienced them in the past. The experts’ assessments of the applicant’s mother and father were also conflicting.

The seventh expert report, which the investigating authorities had requested from a research institute in order to address those divergences, decided that it was highly probable that the applicant had experienced sexual abuse. It said that any inconsistencies in the applicant’s revelations could be explained by the fact of an ongoing process which could involve changes in her behaviour and position. It also stressed that her drawings showed a likelihood of sexual abuse. However, in 2015, the investigator discontinued the father’s criminal prosecution because the seventh report’s conclusions were not sufficient to prove that abuse had occurred. The investigator referred back to the findings in the other reports that the applicant confused reality with imagination, that the father showed no signs of sexual deviation or aggression and that the mother might have manipulated the applicant.

Relying in particular Article 8 (right to respect for private and family life), the applicant complained that the authorities had failed to carry out an effective investigation into her allegations of sexual abuse. She alleged in particular that the authorities had terminated the prosecution, even though experts had confirmed that she had been abused.

Kırdök and Others v Turkey (application no 14704/12)

In this case, the applicants, who are lawyers, complained about the seizure of their electronic data by the judicial authorities for the purposes of criminal proceedings against another lawyer (Ü.S.), who had shared their office. The Court found, in particular, that the seizure of the applicants’ electronic data, which were protected by lawyer–client professional secrecy, and the refusal to return or destroy them had not corresponded to a pressing social need or been necessary in a democratic society. The Court also noted the lack of sufficient procedural guarantees in the law as interpreted and applied by the judicial authorities.

Hambardzumyan v Armenia (application no 43478/11)

The case concerned the applicant’s complaint that the police had not had a valid court warrant to place her under secret surveillance during a criminal investigation. The Court found in particular that the warrant had not been specific enough about the person who was the object of the surveillance measure, vagueness which was unacceptable when it came to such a serious interference with the right to respect for private and family life as secret surveillance. Furthermore, the warrant had not listed the specific measures that were to be carried out against the applicant. Overall, the surveillance measure had not had sufficient judicial supervision and had been in conflict with the Convention.

Nejdet Atalay v Turkey (application no 76224/12)

The applicant, Nejdet Atalay, is a Turkish national who was born in 1978 and lives in Batman (Turkey). The case concerned his criminal conviction for propaganda in favour of the PKK (Kurdistan Workers’ Party, an illegal armed organisation).

On 23 May 2006, the public prosecutor of Diyarbakır brought proceedings against Mr Atalay for acts he was alleged to have committed during a demonstration on 28 March 2006 in Diyarbakır at the time of the funeral of four members of the PKK who had been killed during clashes with the police. On 11 March 2008, the Assize Court found Mr Atalay guilty of the offence of pro-PKK propaganda and gave him a 10-month prison sentence. It took the view that he had espoused the demands of the demonstrators and had participated in their illegal actions. The Court of Cassation upheld the judgment. The applicant complained, in particular, that his conviction had breached his right under Article 10 (freedom of expression) of the European Convention on Human Rights.

Tagiyev and Huseynov v Azerbaijan (application no 13274/08)

The case concerned the applicants’ conviction for inciting religious hatred and hostility with their remarks on Islam in an article they had published in 2006. The Court found in particular that the national courts had not justified why the applicants’ conviction had been necessary when the article had clearly only been comparing Western and Eastern values and had contributed to a debate on a matter of public interest, namely the role of religion in society. Indeed, the courts had simply endorsed a report finding that certain remarks had amounted to incitement to religious hatred and hostility, without putting them in context or even trying to balance the applicants’ right to impart to the public their views on religion against the right of religious people to respect for their beliefs.

Other Article 10 cases from October to December 2019

Hatice Çoban v Turkey (application no 36226/11)

Obote v Russia (application no 58954/09)

The case concerned the applicant’s prosecution for taking part in a flash mob, which the courts viewed as a static demonstration requiring previous notification. The Court considered the flash mob a ‘peaceful assembly’ and found that the reasons given by the domestic authorities to justify its dispersal and the applicant’s prosecution had not been ‘relevant and sufficient’. It pointed out in particular that staging a demonstration without prior authorisation did not necessarily justify interfering with a person’s right to freedom of assembly. Indeed, seven people standing in silence while holding a blank sheet of paper could not count as a threat to public order.

Other Article 11 cases from October to December 2019

Razvozzhayev v Russia and Ukraine and Udaltsov v Russia (application no 75734/12 and two others)

Balsamo v San Marino (nos 20319/17 and 21414/17)

The applicants, Valentina Balsamo and Angela Balsamo, are Italian nationals who were born in 1986 and 1985, respectively, and live in Brescia (Italy). The case concerned the confiscation of assets in the framework of money laundering proceedings.

In July 2011, a San Marino investigating judge seized assets worth some EUR 1.9 million in a current account and a bond account which had been opened by the first applicant. The basis for the decision was an investigation against both applicants and their father for ongoing money laundering. In November 2014, the applicants were found guilty of money laundering, and the entire frozen amount was confiscated. The court relied on evidence that the father had been tried and convicted in Italy of theft and receiving stolen goods, which had led to proceeds of EUR 750,000. The San Marino court also concluded that given the father’s previous record it could not be excluded that the whole amount seized from the applicants had had a criminal origin. It did not accept their explanation that the funds had come from licit activities such as real estate or the family business. On appeal, the applicants were acquitted in October 2016 of money laundering owing to their young age and possible lack of knowledge of the criminal origin of the funds. However, the confiscation order was upheld owing to the funds’ clearly criminal origin. The applicants applied to the judge for extraordinary remedies for a revision of the appeal judgment, relying on Convention provisions. Their revision request was rejected in May 2017.

The applicants alleged, in particular, that the confiscation had violated their rights under Article 1 of Protocol No 1 (protection of property).

Apostolovi v Bulgaria (application no 32644/09)

The applicants, Stoyan Apostolov and Milena Apostolova, husband and wife, are Bulgarian nationals who were born in 1956 and 1958, respectively, and live in Haskovo (Bulgaria). The case concerned the freezing of the couple’s assets pending criminal proceedings against the husband for a banking offence and their complaint that this had made it hard for them to meet medical expenses for their severely disabled son.

In 2016, Mr Apostolov was found guilty of conducting banking business without a licence and was given a year’s suspended prison sentence. Shortly after Mr Apostolov had been charged in November 2008, the courts decided to freeze 35 bank accounts registered in his name and three of his immovable properties in order to ensure that any fine or confiscation order would be met. He appealed against the decision to issue the freezing order in February 2009, but the courts found that the appeal had been lodged out of time. Concurrently, the applicant couple requested that the freezing order be lifted. Mr Apostolov submitted in particular that he needed to draw on at least some of the money in his bank accounts to pay for his son’s medical expenses.

The courts rejected his request as the criminal proceedings were still ongoing. In July 2009, the appeal court upheld that finding but unfroze Ms Apostolova’s half of the assets since the charges had only been brought against her husband. Mr Apostolov made a second request in 2013 for the freezing order to be lifted, and all of his assets, except one immovable property, were eventually unfrozen in January 2014. In the meantime, Ms Apostolova brought claims for damages against the authorities. Her claim against the regional court was dismissed, while one of two claims against the prosecuting authorities was allowed. The courts found that the prosecutor should have checked ownership of the assets before seeking to block them and awarded her damages for psychological distress caused by the freezing of her assets and inability to pay for her son’s medical treatment.

Relying in particular on Article 1 of Protocol No 1 (protection of property) to the European Convention on Human Rights, the applicant couple complained that the freezing of their assets, both initially and over the years that followed, had been unlawful and unjustified.

Yaşar v Romania (application no 64863/13)

The case concerned the confiscation of Mr Yaşar’s vessel because it had been used for illegal fishing in the Black Sea. The Court found in particular that the confiscation had amounted to a deprivation of property as the vessel had ultimately been sold to a private party and the money from the sale collected by the State. However, the courts had carefully balanced the rights at stake and had found that the demands of the general interest to prevent activities which posed a serious threat to the biological resources in the Black Sea had outweighed Mr Yaşar’s property rights.