ECtHR Cases January–March 2021

Laptev v. Russia (no. 36480/13)

The applicant, Oleg Anatolyevich Laptev, is a Russian national who was born in 1982 and lives in the village of Yubileynyy, in the Medvedovskiy District of the Republic of Mariy El (Russia). The case concerned the applicant’s complaints about the events surrounding the death of his brother in custody and the quality of the subsequent domestic investigation into the matter.

On 4 January 2011, the applicant’s brother, Sergey Laptev, who at the time worked as a policeman, was arrested on suspicion of rape and detained in a temporary detention centre pending criminal proceedings. He was placed in a cell with Ch., an undercover police agent who was posing as a suspect in another criminal case. According to the applicant, Ch. may have had the task of convincing or coercing his brother to confess.

The applicant also alleges that on 5 January, when Sergey Laptev had two interviews with an investigator, one of which was conducted in the presence of his lawyer, he complained of the pressure exerted on him by the police to make him confess, including the threat that they would arrange for him to be raped by other inmates. At 6.40 a.m. on 6 January, Sergey Laptev was found dead in his cell by three guards. The autopsy report compiled on the same day established mechanical asphyxiation as the cause of death. On 7 January, the detention centre, acting of its own motion, conducted an internal investigation into the death. Camera footage showed that no guards had been present between 3.19 a.m. and 6.10 a.m. on the night of 6 January. Various measures were taken against the guards and their superiors for this breach of security. In parallel, a preliminary inquiry into the events, instituted by a local branch of the Investigative Committee of Russia, concluded on 4 July 2011 that Sergey Laptev’s death had been suicide and that the injuries detected on his body during the autopsy had resulted from a proportionate use of physical force during his arrest. The applicant appealed against that decision in court, pointing to various inconsistencies in the statements of the officials and the conclusions and deploring the decision’s overall poor quality.

On 19 April 2012, the Yoshkar Ola Town Court allowed the applicant’s appeal and quashed the decision of 4 July 2011. The Yoshkar Ola Supreme Court confirmed the Town Court’s decision on appeal. Ultimately, however, the investigation into the events was recommenced, leading to the version of events set out in the decision of 4 July 2011. The authorities admitted shortcomings in the supervision of Sergey Laptev, notably in respect of the security breach, but dismissed any allegations of exerting pressure on him and insisted that his death had been suicide and had been unrelated to these shortcomings. The investigation was discontinued on 25 October 2012. That decision was upheld by the Town Court of Yoshkar Ola at first instance and on appeal.

Relying on Article 2 (right to life) of the Convention, the applicant complained that the State had failed to protect the deceased’s life and that the ensuing investigation into his death had not been effective.

Kotenok v. Russia (application no. 50636/11)

The applicants, Galina Kotenok, Irina Kotenok, and Andrey Kotenok, are Russian nationals who were born in 1965, 1991, and 1988 respectively. They live in Naberezhnye Chelny, Republic of Tatarstan (Russia). The case concerned the death of a close relative of the applicants in a police station cell.

In March 2009 V.K., the first applicant’s former husband and father of the other two applicants, caused a scene at home while in a drunken state. The second applicant called the police, who took V.K. to the police station, where he was put in a cell for holding administrative offenders. About half-an-hour later he was found dead on the floor with elastic from his trousers tied around his neck. The authorities conducted an investigation, which led to a discontinuance decision in March 2011. They considered that they had no information to suggest that any offences of murder, violence or incitement to suicide had been committed. The applicants also brought a civil action to claim compensation for the non-pecuniary damage which they claimed they had sustained. The action was dismissed in June 2010 as manifestly ill-founded.

Relying in particular on Article 2 (right to life) of the European Convention on Human Rights, the applicants submitted that the Russian authorities had failed to take all the requisite action to protect V.K.’s life and that the investigation conducted after his death had been ineffective.

Gasangusenov v. Russia (application no. 78019/17)

The case concerned the killing of the applicant’s two sons, who worked as shepherds, during a special operation carried out by State agents in August 2016 in Goor-Khindakh, Dagestan (Russia). It also concerned the ensuing investigation.

On the evening of 23 August 2016, Gasangusen and Nabi Gasangusenov did not return home for dinner as planned. Early the following morning, their bodies were found about 1 km from the village. The official information issued by the police in the early hours of 24 August 2016 stated that during a special operation in the late evening of 23 August shots had been fired at law-enforcement officers and the criminals had been killed in the return fire. On the same day, a criminal case was opened against the applicant’s sons for attempted murder of a police officer and trafficking of firearms.

Relying on Article 2 (right to life) and Article 13 (right to an effective remedy) of the European Convention on Human Rights, the applicant complained that State agents had killed his sons to pass them off as members of illegal armed groups operating in the area, that the authorities had failed to effectively investigate the matter and that the delay in opening a case had been overly long.

The Court found that the applicant’s sons had been killed as a result of the unjustified use of lethal force, in breach of Article 2 of the Convention. There was no evidence that serious consideration had been devoted to the planning and carrying out of the operation. In that light, the Court found that it had not been demonstrated that the lethal force used, which had brought about the applicant’s sons’ deaths, had been absolutely necessary. It also found that no effective investigation had been conducted into their killing. The Court held, under Article 46 (binding force and execution of judgments) of the Convention, that the Government had to take all necessary and appropriate measures to ensure in the present case that the procedural requirements of Article 2 were complied with.

Other Article 2 Cases from January to March 2021

Smiljanić v. Croatia (application no. 35983/14)

Mehmood v. Greece (no. 77238/16)

Ribcheva and Others v. Bulgaria (nos. 37801/16, 39549/16, and 40658/16)

N.Ç. v. Turkey (application no. 40591/11)

The case concerned shortcomings in the criminal proceedings against a number of individuals charged with prostitution offences in relation to a fourteen-year-old child. The Court found that the lack of support for the applicant, the failure to protect her against the defendants, the unnecessary reconstruction of the rape incidents, the repeated medical examinations, the lack of a calm and secure environment at the hearings, the assessment of the victim’s consent, the excessive length of the proceedings, and, lastly, the fact that two of the charges had become time-barred, amounted to a serious case of secondary victimisation of the applicant. The national authorities’ conduct had been inconsistent with the obligation to protect a child who had been the victim of sexual exploitation and abuse.

P.M. and F.F. v. France (application no. 60324/15)

The case concerned injuries sustained by the two applicants during their arrest in Paris on 1 January 2007, in a state of inebriation, for the offence of damaging private property, and during their police custody.

Considered under the procedural aspect of Article 3 of the Convention, unconditionally prohibiting torture and inhuman or degrading treatment, the Court found that the investigations into the applicants’ allegations had been carried out speedily and carefully by the national authorities, which were sufficiently independent. Those authorities had made serious efforts to establish the facts before presenting their conclusions in detailed and duly reasoned decisions. The authorities had thus fulfilled their obligation to use their best endeavours to conduct an effective investigation. Under the substantive aspect of Article 3, the Court noted the inconsistencies in the applicants’ version of events. It found, as regards their injuries, that the explanations provided by the Government were satisfactory, and that the national authorities had arrived at unanimous conclusions following effective investigations. The Court could not substitute its own factual assessment for that of the domestic courts, which had found that the applicants had not been the victims of a use of force other than to the degree strictly necessary.

Bivolaru and Moldovan v. France (applications nos. 40324/16 and 12623/17)

The case concerned the applicants’ surrender by France to the Romanian authorities under European arrest warrants (EAWs) for the purpose of execution of their prison sentences. The case prompted the Court to clarify the conditions for application of the presumption of equivalent protection in such circumstances.

The Court held that the presumption of equivalent protection applied in Mr Moldovan’s case in so far as the two conditions for its application, namely the absence of any margin of manoeuvre on the part of the national authorities and the deployment of the full potential of the supervisory mechanism provided for by European Union (EU) law, were met. The Court therefore confined itself to ascertaining whether or not the protection of the rights guaranteed by the Convention had been manifestly deficient in the present case, such that this presumption was rebutted. To that end it sought to determine whether there had been a sufficiently solid factual basis requiring the executing judicial authority to find that execution of the EAW would entail a real and individual risk to the applicant of being subjected to treatment contrary to Article 3 on account of his conditions of detention in Romania.

The Court noted that Mr Moldovan had provided evidence of the alleged risk that was sufficiently substantiated to require the executing judicial authority to request additional information and assurances from the issuing State regarding his future conditions of detention in Romania. The Court found a violation of Article 3 in so far as it appeared that the executing judicial authorities, in exercising their powers of discretion, had not drawn the proper inferences from the information obtained, although that information had provided a sufficiently solid factual basis for refusing execution of the EAW in question.

In Mr Bivolaru’s case the Court considered that, owing to its decision not to request a preliminary ruling from the Court of Justice of the European Union (CJEU) on the implications for the execution of an EAW of the granting of refugee status by a member State to a national of a third country which subsequently also became a member State, the Court of Cassation had ruled without the full potential of the relevant international machinery for supervising fundamental rights having been deployed. The presumption of equivalent protection was therefore not applicable. There were two aspects to Mr Bivolaru’s complaint: the first concerning the implications of his refugee status, and the second concerning conditions of detention in Romania.

There was nothing in the file before the executing judicial authority or the evidence adduced by the applicant before the Court to suggest that he would still face a risk of persecution on religious grounds in Romania in the event of his surrender. The Court considered that the executing judicial authority, following a full and in-depth examination of the applicant’s individual situation which demonstrated that it had taken account of his refugee status, had not had a sufficiently solid factual basis to establish the existence of a real risk of a breach of Article 3 of the Convention and to refuse execution of the EAW on that ground.

The Court also considered that the description of conditions of detention in Romanian prisons provided by the applicant to the executing judicial authority in support of his request not to execute the EAW had not been sufficiently detailed or substantiated to constitute prima facie evidence of a real risk of treatment contrary to Article 3 in the event of his surrender to the Romanian authorities. In the Court’s view, the executing judicial authority had not been obliged to request additional information from the Romanian authorities. Accordingly, it held that there had not been a solid factual basis for the executing judicial authority to establish the existence of a real risk of a breach of Article 3 of the Convention and to refuse execution of the EAW on those grounds.

Other Article 3 Cases from January to March 2021

İltümür Ozan and Others v. Turkey (no. 38949/09)

V.C.L. AND A.N. v. the United Kingdom (applications nos. 77587/12 and 74603/12)

The case concerned two Vietnamese youths who police officers had discovered working on cannabis farms. They were arrested and charged with drugs-related offences, to which they pleaded guilty. Following their conviction they were detained in young offenders’ institutes. A competent authority subsequently recognised them as victims of trafficking. However, the prosecution service having reviewed its decision to prosecute them, concluded that they were not victims of trafficking and the Court of Appeal found on the facts of each case that the decision to prosecute had been justified.

This was the first time the Court had considered the relationship between Article 4 of the Convention and the prosecution of victims and potential victims of trafficking. It considered that the prosecution of victims or potential victims of trafficking would not necessarily breach Article 4 of the Convention. However, given the competent authority’s expertise in this area, the Court considered that the prosecution would have needed to present clear reasons consistent with the definition of trafficking for disagreeing with its findings, something which clearly had not happened in these cases. However, having regard to the duty to take operational measures to protect victims of trafficking, the Court held that once the authorities had become aware of a credible suspicion that an individual had been trafficked, he or she should be assessed by a qualified person. Any decision to prosecute should follow such an assessment, and while the decision would not necessarily be binding on a prosecutor, the prosecutor would need to have clear reasons for reaching a different conclusion.

In the case of both V.C.L. and A.N., the Court found that despite the existence of credible suspicion that they had been trafficked, neither the police nor the prosecution service had referred them to a competent authority for assessment; although both cases were subsequently reviewed by the prosecution service, it disagreed with the conclusion of the competent authority without giving clear reasons capable of undermining the competent authority’s conclusions; and the Court of Appeal limited itself to addressing whether the decision to prosecute had been an abuse of process. The Court therefore found that there had been a violation of Article 4 in both applicants’ cases. The Court found that, although the authorities had made some accommodations to the applicants after their guilty verdicts, the lack of any assessment of whether the applicants had been victims of trafficking may have prevented them from securing important evidence capable of helping their defence. As such the proceedings had not been fair, leading to a violation of Article 6 § 1.

Hasselbaink v. the Netherlands (no. 73329/16)

The applicant, Frederik Egbert Hasselbaink, is a Dutch national who was born in 1984 and lives in Vlaardingen (The Netherlands). The case concerned the criminal proceedings against the applicant for a series of violent crimes.

On 31 March 2016 the applicant was arrested and placed in police custody on suspicion of hostage taking, illegal restraint and extortion. On 5 April 2016, the investigating judge ordered his placement in initial detention for 14 days. Mr Hasselbaink’s detention was extended for 30 days three times. The applicant did not appeal against those decisions. The trial proceedings against Mr Hasselbaink started on 7 July 2016 before the Rotterdam Regional Court. That day, his applications to lift or suspend his pre-trial detention were dismissed and proceedings were adjourned.

On 13 July 2016, Mr Hasselbaink lodged a fresh application with the Regional Court to lift or suspend his pre-trial detention. Referring to statements made before the investigating judge, he argued that everyone, apart from the victim, had stated that there had been no coercion or threats from the side of the applicant, only talk about a debt. Therefore, the serious suspicions and reasons which had led to the order for his pre-trial detention no longer existed. It took several weeks before the Regional Court examined the applicant’s requests. Ultimately, they were dismissed and the applicant remained in pre-trial detention. Mr Hasselbaink’s appeal against that decision was dismissed on 1 September 2016. On the same day, the trial proceedings before the Regional Court were resumed and the applicant’s pre-trial detention lifted as of 2 September 2016 because there was a serious prospect that the applicant would not be given a custodial sentence or that any custodial sentence imposed would be shorter than the pre-trial detention. However, it was not until 15 September 2016 that the applicant was actually released. In its judgment of 15 September 2016, the Regional Court acquitted the applicant of all charges brought against him. On 13 April 2017, Mr Hasselbaink was also compensated for his pre-trial detention.

Relying in particular on Article 5 § 3 (right to liberty and security) of the European Convention, Mr Hasselbaink complained that the decisions taken by the Regional Court on 4 August 2016 and by the Court of Appeal on 1 September 2016 had lacked sufficient reasons to justify his continued detention. Under Article 5 § 4, he further complained of those domestic courts’ lack of promptness in deciding his application to lift his pre-trial detention.

Loizou v. Greece (no. 17789/16)

The applicant, Andreas Loizou, is a Cypriot national who was born in 1966. He was detained in the Diavata Prison at the time of lodging the application. The case concerned the lawfulness of the applicant’s continued provisional detention, which had been interrupted so that he could serve a prison term for other offences, and the delay concerning the applicant’s appeal.

Relying on Article 5 §§ 1 and 4 (right to liberty and security/right to a speedy decision on the lawfulness of his detention) of the Convention, the applicant complained of his retention in provisional detention beyond the first 6 months without any judicial decision. He also complained that the Indictments Division of the Court of Appeal had failed to give a speedy decision.

D.C. v. Belgium (application no. 82087/17)

The applicant, D.C., is a Belgian national who was born in 1987. At the time the application was lodged he was being detained in Leuven Prison. The case concerned the lawfulness of the applicant’s placement in compulsory confinement, and alleged shortcomings in the proceedings leading to his placement. In particular, D.C. alleged that his detention, ordered by the investigating judicial authorities, had been unlawful as it had been based on a report produced by a psychiatrist who had never met him and a psychological report written over a year and a half previously. He also complained of the refusal of the investigating judicial authorities to call certain witnesses and experts and the fact that the hearings had not been conducted in public, and alleged that the Indictment Division had lacked impartiality.

In August 2015 D.C. attacked an individual with a knife and was arrested by the police the same day. The following day he was charged with attempted murder and detained in Lantin Prison. In September 2015 a psychologist issued a diagnosis of paranoid schizophrenia, taking the view that the applicant posed a danger to himself and to society. In June 2016 the Committals Division ordered his compulsory confinement. The Indictment Division upheld that decision in February 2017. An appeal on points of law by the applicant was dismissed in May 2017. The Social Protection Division ordered the applicant’s release for a trial period as of 22 March 2018 with a view to his admission to a psychiatric hospital.

D.C. relied in particular on Articles 5 §§ 1 and 4 (right to liberty and security/right to a speedy decision on the lawfulness of detention) of the European Convention on Human Rights.

Other Article 5 Cases from January to March 2021

Azizov and Novruzlu v. Azerbaijan (applications nos. 65583/13 and 70106/13)

Maassen v. The Netherlands (no. 10982/15)

Zohlandt v. The Netherlands (no. 69491/16)

Fariz Ahmadov v. Azerbaijan (application no. 40321/07)

The applicant, Fariz Alam oglu Ahmadov, was an Azerbaijani national who was born in 1971 and lived in Mingachevir (Azerbaijan). The applicant died on 13 October 2015. His mother chose to continue his application in his stead. The application concerned the fairness of the criminal proceedings that had led to the applicant’s conviction for drugs offences.

On 7 March 2005 a certain A.S. was arrested in connection with possession of drugs. He stated that he had bought the drugs from the applicant. The substance originally seized was 0.24 g of marijuana. On 10 March 2005 the applicant was charged. He was apprised of his rights, but signed a handwritten waiver of his right to a lawyer. Further investigative steps, including a confrontation and questioning, were carried out, without the applicant’s having counsel present. The applicant’s pre-trial detention was extended several times.

On 5 August 2005 A.S. stated in the course of a confrontation that he had received manure, rather than marijuana, from the applicant. He later changed that testimony in the absence of the applicant. Following his indictment, the applicant applied to have the case discontinued and returned to the prosecutor for a fresh investigation, which was successful. On 29 December 2005 the applicant was again indicted. In the meantime A.S. had died, so the trial court read out one of his statements, which affirmed that the applicant had given A.S. marijuana. The applicant was found guilty. An appeal by the applicant was dismissed, without his specific complaints being examined. That judgment was upheld by the Supreme Court, which stated that the applicant had not complained of unlawfully obtained evidence during the investigation, only before the courts.

Relying on Article 6 (right to a fair trial) of the European Convention on Human Rights, the applicant complained that his conviction had breached his rights as it had been based on a confrontation that had taken place without his lawyer present.

Keskin v. the Netherlands (application no. 2205/16)

The applicant, Vahap Keskin, is a dual Turkish and Dutch national who was born in 1972 and lives in Hengelo (The Netherlands). The case concerned criminal proceedings against the applicant in which he had been prevented from cross examining witnesses.

On 30 July 2013 the applicant was convicted in absentia of fraud committed via a company on the basis of, among other things, the statements of six witnesses. He was sentenced to 9 months’ imprisonment, which was partially suspended, and ordered to pay 59,300.42 euros in damages. He appealed, arguing that he had not directed the fraud, asking to cross-examine the six witnesses mentioned above along with a seventh witness who had also made statements against him. Despite the support of the prosecution, the request to cross-examine was rejected by the Arnhem Leeuwarden Court of Appeal, which stated that the interests of the applicant were unsubstantiated. His conviction and the damages order were upheld, but the court reduced his prison sentence to 6 months. On 8 September 2015 a cassation appeal by the applicant, claiming a failure to ensure a fair trial, was declared inadmissible by the Supreme Court.

Relying on Article 6 §§ 1 and 3 (d) (right to a fair trial) of the European Convention on Human Rights the applicant complained of being denied a fair hearing owing to his inability to put questions to witnesses.

Tikhonov and Khasis v. Russia (applications nos. 12074/12 and 16442/12)

The applicants, Nikita Tikhonov and Yevgeniya Khasis, are Russian nationals who were born in 1980 and 1985 respectively. They are detained in Sosnovka and Partsa (Republic of Mordovia, Russia), respectively.

In November 2009 the applicants were arrested on suspicion of involvement in the murders of Mr Stansislav Markelov, a lawyer and human-rights activist, and Ms Anastasia Baburova, a journalist, earlier that year in Moscow. In July 2010 they were charged with aggravated murder, illegal possession of firearms and forgery and use of forged documents. In December 2010 the case was referred to the Moscow City Court for trial. The case was assigned to Judge N. The applicants requested a jury trial. At the end of January 2011 the president of the court removed Judge N. from the case and assigned it to Judge Z., who subsequently called a 12-member jury. In April 2011 D., a member of the jury, stood down and was replaced by a substitute member. A few days later she gave two interviews in which she claimed that certain members of the jury (M. and N.) had exerted pressure on the jury. She also said that the registry employee had told her to state “family reasons” as grounds for withdrawing from the case.

At a hearing in April 2011 the applicants requested Judge Z. to discharge the jurors M. and N., basing their request on the statements made by D. to the media. After inviting M. and N. to comment on the request, Judge Z. rejected it. At the close of the trial Judge Z. read out his directions to the members of the jury, without specifying that they should disregard any information published in the media to which they may have had access during the trial. In April 2011 the applicants were found guilty (by eight votes to four) of the aggravated murder of Mr Markelov, committed as part of an organised group. Mr Tikhonov was also found guilty (by eight votes to four) of Ms Baburova’s murder. In May 2011 they were sentenced to life imprisonment (Mr Tikhonov) and 18 years’ imprisonment (Ms Khasis).

A few days later a website published an interview with the jury member M. in which the latter responded to the statements made by D. after she had stood down from the case. The applicants subsequently appealed, alleging in particular a breach of their right to be tried by an independent and impartial tribunal and their right to be presumed innocent. They maintained, among other things, that the juror M. had not complied with his obligation not to search for information about the case other than in the context of the judicial examination; that he and four other jury members had read articles published on the Internet; and that all the members of the jury had discussed the information contained in those articles. In September 2011 the Supreme Court of the Russian Federation upheld the judgment of May 2011 and dismissed the applicants’ case.

The applicants alleged that the court which had found them guilty of the murders of a lawyer and a journalist (killed in Moscow in 2009) had not been impartial. They based their allegations, among other things, on statements made by members of the jury in the media during and after the trial court proceedings.

The Court held, in particular, that the national courts had not afforded sufficient guarantees to exclude any legitimate doubt as to the impartiality of the jury which had delivered the guilty verdict in the applicants’ case, and that the applicants’ right to be tried by an impartial tribunal had not been respected.

Meng v. Germany (no. 1128/17)

The applicant, Salina Meng, is a German national who was born in 1964 and lives in Frankfurt am Main (Germany). The case concerned the applicant’s conviction for the murder of her husband for profit with a certain G.S. During her trial, the presiding judge had previously been judge rapporteur in separate proceedings against G.S. alone.

Relying on Article 6 § 1 (right to a fair trial) of the Convention, the applicant complained that the bench that had convicted her of murder had not been impartial.

Iancu v. Romania (no. 62915/17)

The applicant, Olimpia-Mirela Iancu is a Romanian national who was born in 1974 and lives in Oradea. The case concerned criminal proceedings following which the applicant had been convicted of complicity in fraud.

Relying on Article 6 § 1 (right to a fair trial) of the European Convention, the applicant complained that a final judgment delivered on appeal following those proceedings had been signed by only four out of five judges on the bench. As a fifth judge had retired before being able to sign the judgment, another judge, who had not taken part in the proceedings, had signed for her. The applicant alleged in substance that the other judge had not had any direct knowledge of the case.

Petrella v. Italy (application no. 24340/07)

The case concerned the length of the preliminary investigations in the context of criminal proceedings brought on the basis of a complaint by the applicant for defamation, the lack of an effective remedy in respect of the length of the proceedings and the discontinuance of those proceedings because the charges became time-barred.

The Court found in particular that the preliminary investigations prior to the discontinuance had lasted for about 5 years and 6 months. This excessive duration had breached the “reasonable time” requirement. It was solely because of the delay on the part of the prosecuting authorities and the fact that the charges had become time-barred that the applicant had been unable to submit his compensation claim to obtain a decision by the criminal court. The negligent conduct of the authorities had thus deprived him of the prospect of having his civil claim addressed in the type of proceedings that he had chosen, as made available by domestic law. The Court reiterated that a complainant could not be obliged to bring an action, for the same purpose of engaging civil liability, before a civil court after criminal proceedings capable of addressing a civil claim had become timebarred through the fault of the authorities.

Lastly, as the “Pinto” remedy had not been available to victims who were unable to join criminal proceedings as a civil party, the Court found that in domestic law there had been no remedy by which the applicant could have complained about the length of the proceedings.

Di Martino and Molinari v. Italy (nos. 15931/15 and 16459/15)

The applicants, Leonardo Di Martino et Anna Maria Molinari, are Italian nationals who were born in 1958 and 1965 respectively. They live in Lanciano and Gragnano (Italy). They are married. The case concerned the applicants’ conviction, on appeal, in the framework of criminal proceedings against a mafia-type criminal association. The applicants complained that the court of appeal had failed to order a further hearing of the prosecution witnesses before overturning the first-instance acquittal verdict.

On an unspecified date the applicants were committed for trial with 15 other individuals. Mr Di Martino was charged with the offences of mafia-type criminal conspiracy, criminal conspiracy for the purposes of drug trafficking, and cultivating Indian hemp. Ms Molinari was charged with the latter two offences. During the hearing they requested a trial under summary procedure, that is to say not under the principles of immediate oral proceedings but on the basis of the evidence included in the prosecution file (Articles 438 to 443 of the Code of Criminal Proceedings). The preliminary hearings judge allowed the applicants’ request, specifying that a witness, B.S., would have to be heard. In 2012, Ms Molinari was acquitted by the court of first instance, whereas her husband was convicted solely of the offence of hemp cultivation.

In 2013 a court of appeal overturned that judgment, convicting both applicants of all the offences as charged. The applicants appealed on points of law, submitting that the court of appeal had convicted them without ordering a fresh hearing of all the prosecution witnesses. In 2014 the Court of Cassation dismissed that appeal on the grounds that their trial had been conducted, right from the first-instance proceedings, in accordance with the rules of summary procedure. It consequently held that neither the court of first instance nor the court of appeal had had direct access to the prosecution witnesses heard during the preliminary investigations, and that those courts had had “intermediate” contact with those witnesses’ statements. As regards B.S., the court of appeal had not called his credibility into question.

The applicants relied on Article 6 § 1 (right to a fair trial) of the Convention.

Other Article 6 Cases from January to March 2021

Mihail Mihăilescu v. Romania (no. 3795/15)

Victor Laurenţiu Marin v. Romania (no. 75614/14)

Zličić v. Serbia (applications nos. 73313/17 and 20143/19)

Buliga v. Romania (no. 22003/12)

Negulescu v. Romania (no. 11230/12)

Munir Johana v. Denmark (application no. 56803/18) and Khan v. Denmark (no. 26957/19)

The case concerned the applicants’ expulsions from Denmark being ordered following repeated convictions for various criminal offences, despite their having lived there since a young age.

The Court found in particular that the domestic authorities had taken into account the applicant’s particular circumstances, in particular the specific crimes and their prior criminal records, and that their ties to Denmark had been properly examined. It considered that the sentences had been proportionate.

The applicant in the first case, Marsel Munir Johana, is an Iraqi national who was born in 1994 and lives in Silkeborg (Denmark). The applicant in the second case, Shuaib Khan, is a Pakistani national who was born in 1986. The applicant in the second case was born in Denmark, while the applicant in the first case came to live there at the age of four. Both applicants had had a criminal record for many years before the events in question. Convictions were for, among other things, violent, drugs, and driving offences, and offences while in prison.

In 2016 the applicant in the first case was charged in connection with violent offences. The prosecution asked for the applicant to be expelled from Denmark (he had two previous conditional expulsion orders against him). The Danish Immigration Service agreed that would be the correct course of action. He was convicted. His expulsion and a 6-year re-entry ban were ordered. That decision was upheld on appeal by the Western Denmark High Court and the Supreme Court and finally sentenced to 6 months’ imprisonment. The Supreme Court referred to, in particular, the applicant’s repeated offences as an adult and the likelihood he would reoffend, considering that those factors were weightier than the applicant’s strong ties to Denmark. Following the first-instance expulsion decision he was convicted of another unrelated drugs offence.

On 25 August 2017 the applicant in the second case was charged with threatening a police officer and not having the right residence permit, alongside other offences. He was given a prison sentence and a fine, and a 2-year suspended expulsion order. The City Court referred to his leadership of a criminal gang, his numerous convictions for other offences, his lack of a dependent family, and the need to prevent disorder. In 2018 that decision was upheld by the High Court of Eastern Denmark and the Supreme Court, with a final sentence of 3 months’ imprisonment and a 12,200 Danish kroner fine. His expulsion and a 6-year re-entry ban were also ordered. It appears that the applicant was released from pre-trial detention in October 2017 and left Denmark soon afterwards.

Lăcătuş v. Switzerland (application no. 14065/15)

The case concerned an order for the applicant to pay a fine of 500 Swiss francs (CHF) (approximately 464 euros (EUR)) for begging in public in Geneva, and her detention in a remand prison for 5 days for failure to pay the fine.

The Court observed that the applicant, who was illiterate and came from an extremely poor family, had no work and was not in receipt of social benefits. Begging constituted a means of survival for her. Being in a clearly vulnerable situation, the applicant had had the right, inherent in human dignity, to be able to convey her plight and attempt to meet her basic needs by begging. The Court considered that the penalty imposed on the applicant had not been proportionate either to the aim of combating organised crime or to the aim of protecting the rights of passers-by, residents and shopkeepers. The Court did not subscribe to the Federal Court’s argument that less restrictive measures would not have achieved a comparable result.

In the Court’s view, the penalty imposed had infringed the applicant’s human dignity and impaired the very essence of the rights protected by Article 8 of the Convention, and the State had thus overstepped its margin of appreciation in the present case.

Other Article 8 Cases from January to March 2021

Tortladze v. Georgia (no. 42371/08)

Budak v. Turkey (no. 69762/12)

D.S. v. the United Kingdom (no. 70988/12)

M.C. v. the United Kingdom (no. 51220/13)

Société Editrice de Mediapart and Others v. France (applications no. 281/15 and no. 34445/15)

The two cases concerned an order issued against Mediapart, a news website, its publishing editor and a journalist to remove from the news company’s website audio extracts and transcripts of illegal recordings made at the home of Ms Bettencourt, principal shareholder of the L’Oréal group.

The Court reiterated that Article 10 of the Convention did not guarantee a wholly unrestricted freedom of expression, even with respect to media coverage of matters of serious public concern. Exercise of this freedom carried with it “duties and responsibilities”, which also applied to the press. The applicants had been aware that disclosure of recordings made without Ms Bettencourt’s knowledge was an offence, which ought to have led them to show prudence and precaution. The Court reiterated the principle that journalists could not claim an exclusive immunity from criminal liability for the sole reason that, unlike other individuals exercising the right to freedom of expression, the offence in question had been committed during the performance of their journalistic functions.

In certain circumstances, even where a person was known to the general public, he or she could rely on a “legitimate expectation” of protection of and respect for his or her private life. Thus, the fact that an individual belonged to the category of public figures could not, especially in the case of persons who, like Ms Bettencourt, did not exercise official functions, authorise the media to violate the professional and ethical principles which had to govern their actions, or legitimise intrusions into private life. The domestic courts had found against the applicants in order to end the disturbance caused to a woman who, albeit a public figure, had never consented to the disclosure of the recordings and transcripts in question, was vulnerable and had a legitimate expectation of having the illegal publications – which she had never been able to comment on, in contrast to the option available to her during the criminal trial – removed from the news site.

The Court could see no strong reasons which required it to substitute its view for that of the domestic courts and to set aside the balancing exercise conducted by them. It was satisfied that the reasons relied upon were both relevant and sufficient to show that the interference complained of was “necessary in a democratic society” and that the order in question had not gone beyond what was necessary to protect Ms Bettencourt and P.D.M. from the interference with their right to respect for private life.

Mehdi Tanrıkulu v. Turkey (no. 33374/10)

The applicant, Mehdi Tanrıkulu, is a Turkish national who was born in 1965. He lives in Diyarbakır. At the relevant time he was the editor-in-chief of Azadiya Welat, a daily newspaper published in Kurdish in Turkey. The case concerned Mr Tanrıkulu’s placement in detention on account of articles published in the newspaper Azadiya Welat in January and March 2010, and the subsequent criminal proceedings.

In February 2010 the public prosecutor charged Mr Tanrıkulu with disseminating propaganda in favour of the PKK (Kurdistan Workers’ Party, an illegal armed organisation) on account of articles published on 23 and 24 January 2010. The Assize Court remanded the applicant in custody in April 2010. The public prosecutor subsequently questioned Mr Tanrıkulu in the context of a second set of criminal proceedings, concerning four articles published on 6, 7, 27 and 28 March 2010. The Assize Court also ordered his pre-trial detention in connection with this second set of proceedings. The two sets of proceedings were subsequently joined.

In October 2010 Mr Tanrıkulu was found guilty of the offence of disseminating propaganda in favour of a terrorist organisation under Articles 220 § 6 and 314 of the Criminal Code. The Assize Court held that the offence in question had been committed on six occasions, in the articles of 23 and 24 January and those of 6, 7, 27 and 28 March 2010, in that the head of the PKK had been depicted as the “leader of the Kurdish people” and the members of that organisation had been described as “pioneers”, “heroes”, “martyrs”, “guerrilla fighters” and “stalwarts”. The court also found that the articles in question, whose authors were unknown, had presented a real danger to public order, on the grounds that they disseminated hatred and called for or promoted violence. Mr Tanrıkulu was sentenced to a total of 7 years and 6 months’ imprisonment. In January 2013 the Court of Cassation overturned the Assize Court judgment, finding that the case should be re-examined in the light of provisional section 1 of Law no. 6352 which provided, among other things, for the suspension of criminal proceedings and sentences in cases concerning offences committed through the press and the media. In March 2013, taking note of the entry into force of the new Law, the Assize Court stayed execution of Mr Tanrıkulu’s sentence for 3 years.

Relying on Article 5 (right to liberty and security) and Article 10 (freedom of expression) of the Convention, Mr Tanrıkulu complained of his pre-trial detention and of the criminal proceedings brought against him on account of the publication of the articles in question in the newspaper of which he had been editor-in-chief.

Dickinson v. Turkey (application no. 25200/11)

The applicant, Michael Dickinson, is a British national who was born in 1950. At the relevant time he had been living in Turkey for about 20 years and was teaching in two universities in Istanbul (Turkey). He is also a collage artist. The case concerned Mr Dickinson’s criminal conviction for insulting the then Prime Minister, Recep Tayyip Erdoğan, through a collage exhibited by him which had criticised Mr Erdoğan’s political support for the occupation of Iraq.

Mr Dickinson’s work portrayed the Prime Minister’s head glued to the body of a dog, which was held on a leash decorated with the colours of the American flag and had the following phrase pinned on its torso: “We Will not be Bush’s Dog”. He displayed it in March 2006 in a tent erected as part of the “Peace Fair”, a protest event organised along the Beşiktaş Quay in Kadıköy (Istanbul). Following this exhibition, the judicial authorities brought criminal proceedings against the person in charge of the demonstration, on a charge of insulting the Prime Minister. Before the hearing in those proceedings, which was held on 12 September 2006, Mr Dickinson again displayed his work in the corridors of the court building, then outside that building, before the camera of two journalists and other people who were present in the street. Mr Dickinson was placed in police custody on the same day, then in pre-trial detention. He was released on 15 September 2006. On the following day criminal proceedings were brought against him for insulting the Prime Minister, in application of Article 125 of the Criminal Code.

In March 2010 Mr Dickinson was ordered to pay a judicial fine of around 3043 euros for having displayed his collage in the corridors of the court building and in the street. The court considered that Mr Dickinson’s work was such as to humiliate and insult the Prime Minister and represented an attack on his honour and reputation. However, the court decided to suspend delivery of its judgment for 5 years. In December 2015 the court set aside the judgment in respect of which sentencing had been deferred and ordered that the criminal proceedings be discontinued. It noted that Mr Dickinson had not committed any new intentional offences during the 5-year period of suspension and that he had complied with the conditions attached to the supervision order.

Relying on Article 10 (freedom of expression) of the European Convention on Human Rights, Mr Dickinson complained about the criminal proceedings brought against him for his artistic work and the fact that he had been convicted at the close of those proceedings for having insulted the Prime Minister.

Ramazan Demir v. Turkey (application no. 68550/17)

The case concerned the prison authorities’ refusal to grant a request for access to certain Internet sites, lodged by Mr Demir in the course of his pre-trial detention in Silivri Prison in 2016.

Mr Demir, a lawyer, wished to access the Internet sites of the European Court of Human Rights, the Constitutional Court and the Official Gazette, with a view to preparing his own defence and following his clients’ cases.

The Court considered that since prisoners’ access to certain sites containing legal information had already been granted under Turkish law for the purposes of training and rehabilitation, the restriction of Mr Demir’s access to the above-mentioned sites, which contained only legal information that could be relevant to the applicant’s development and rehabilitation in the context of his profession and interests, had constituted an interference with his right to receive information. It noted in this connection that the domestic courts had not provided sufficient explanations as to why Mr Demir’s access to the Internet sites of the Court, the Constitutional Court or the Official Gazette could not be considered as pertaining to the applicant’s training and rehabilitation, for which prisoners’ access to the Internet was authorised by the national legislation, nor on whether and why Mr Demir ought to be considered as a prisoner posing a certain danger or belonging to an illegal organisation, in respect of whom Internet access could be restricted. Furthermore, neither the authorities nor the Government had explained why the contested measure had been necessary in the present case, having regard to the legitimate aims of maintaining order and safety in the prison and preventing crime. It followed that the interference in question had not been necessary in a democratic society.

Gawlik v. Liechtenstein (application no. 23922/19)

The case concerned a doctor who raised suspicions that euthanasia had been taking place in his hospital. In doing so, he went outside the hospital complaints structure and lodged a criminal complaint. The affair attracted significant media attention. The Court found in particular that although the applicant had not acted with improper motives, he had been negligent in not verifying information. His dismissal had thus been justified given the effect on the hospital’s and another staff member’s reputations. The Court concluded that the interference with the applicant’s rights had been proportionate.

Other Article 10 Cases from January to March 2021

Matalas v. Greece (application no. 1864/18)

Sabalić v. Croatia (application no. 50231/13)

The case concerned Ms Sabalić’s allegation that the authorities’ response to a violent homophobic attack against her had been inadequate. She had been attacked in a nightclub when she had refused a man’s advances, disclosing to him that she was a lesbian.

The Court found in particular that the minor-offence proceedings against the applicant’s aggressor had not addressed the hate-crime element of the offence and had resulted in a derisory fine. Those shortcomings had amounted to a fundamental defect in the proceedings. It would therefore have been justified for the authorities to terminate or annul the minor-offence proceedings and to reexamine the case, instead of them rejecting the applicant’s criminal complaint on grounds of double jeopardy.

Dabić v. Croatia (application no. 49001/14)

The applicant, Nikola Dabić, is a Croatian national who was born in 1949 and lives in Sunja (Croatia). The case concerned the sequestration of the applicant’s property and its use to house refugees, during which time damage had allegedly been done to the property and items had been stolen.

Relying on Article 1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights, the applicant complained that the State should have been liable to pay him compensation for his stolen and damaged property.