ECHR 036 (2019)
01.02.2019
Tuesday 5 February 2019
Utvenko and Borisov v. Russia (application nos. 45767/09 and 40452/10)
The applicants, Mr Vladimir Aleksandrovich Utvenko and Oleg Anatolyevitch Borisov, are two Russian nationals who were born in 1950 and 1968 respectively and are currently detained in Irkutsk and Verkhneuralsk. The case mainly concerns their allegations of ill-treatment in prison and the fairness of the criminal proceedings brought against them.
On 5 January 1999 S., the deputy prosecutor of the Bratsk City prosecutor’s office, was assassinated. On 24 May 2001 the investigation was suspended for failure to identify those responsible. In April 2008 the investigation was reopened on the grounds that new evidence had been discovered. On 10 April 2008 Mr Utvenko was arrested and accused of having instigated S.’s murder and aiding and abetting it. On 11 April 2008 the court authorised Mr Utvenko’s placement in pre-trial detention on the grounds that he had been charged with a particularly serious offence and that he could pervert the course of justice. His pre-trial detention was extended several times.
Mr Utvenko was placed in remand prison no. IZ-38/1 in Irkutsk. He alleges that on 13 April 2008 he was beaten up by his fellow inmates, acting on the orders of the police with a view to making him confess. Soon afterwards he drew up a confession document in which he admitted to ordering the murder. In June 2008 a lawyer submitted a complaint to the prosecutor with regard to the ill- treatment allegedly sustained by Mr Utvenko between 13 and 15 April 2008. The investigation board refused to open a criminal investigation, since the investigator considered that there was no evidence of ill-treatment. Mr Utvenko challenged this decision in court. The court dismissed his case. On 8 October 2008 Mr Utvenko filed a complaint with the disciplinary board of the Irkutsk Regional Bar, criticising what he considered to be the unlawful appointment of the lawyer named as his defender for the police interview on 15 April 2008 and the purely formal nature of the lawyer’s presence during that interview. On 18 February 2009 the disciplinary board found the lawyer guilty of a serious fault in practising the profession of lawyer and took disciplinary action by excluding her from the Bar.
When the criminal investigation was reopened Mr Borisov, who had been convicted in the context of another case, was serving a sentence in a correctional colony. On 10 April 2008 the investigator ordered that he be placed in a remand prison, on suspicion of taking part in S.’s murder. Mr Borisov alleges that he was subjected to various forms of ill-treatment by his fellow inmates. He wrote a confession statement in which he acknowledged murdering S. as part of an organised gang.
On 23 March 2010 the regional court began its examination of the merits of the criminal proceedings brought against Mr Utvenko, Mr Borisov and six other co-defendants. In a judgment delivered on 19 May 2011, the regional court sentenced Mr Utvenko to 18 years’ imprisonment and Mr Borisov to 25 years’ imprisonment. The Russian Supreme Court upheld that judgment on appeal.

Relying on Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights, the applicants allege that they were subjected to ill-treatment by their fellow inmates, acting on the orders of State agents in order to force them to confess to a crime. They complain about the failure to conduct an investigation.
Mr Utvenko complains about the physical conditions of his detention in remand prison IZ-38/1 in Irkutsk from 11 April 2008 to 13 April 2012. Relying on Article 5 §§ 1, 3 and 4 (right to liberty and security /right to speedy review of the lawfulness of detention), Mr Utvenko alleges that his detention during the period from 2 January to 15 February 2010 was unlawful, that the length of the detention was excessive and that his appeal against the decision of 26 July 2009 was not examined “speedily”. Relying on Article 6 § 1 (right to a fair hearing), the applicants allege that the criminal proceedings against them were unfair on account of the admission to the trial of statements obtained, as they alleged, under duress. Lastly, relying on Article 6 § 3 (right to legal assistance), Mr Utvenko complains of a breach of his right to be assisted by a lawyer of his own choosing, in that it was impossible for his lawyers to meet him from 14 to 18 April 2008, when he made his confession.

Ndayegamiye-Mporamazina v. Switzerland (no. 16874/12)
The applicant, Marie-Louise Ndayegamiye-Mporamazina, is a national of the Republic of Burundi who was born in 1960 and was living in France at the relevant time.
The case concerns the issue of the Republic of Burundi’s immunity from jurisdiction.
On 9 June 1995 the applicant entered the employment of the permanent mission of the Republic of Burundi to the United Nations Headquarters in Geneva as a secretary on the basis of a “local employment contract”. The document stated that the contract of employment was renewable. From 1996 onwards the applicant was responsible, in addition to her secretarial duties, for the permanent mission’s bookkeeping. During the ambassador’s absences, she dealt with the permanent mission’s on-going work, with the approval of the Ministry of Foreign Affairs of the Republic of Burundi; she was also responsible for consular affairs. In a letter of 9 August 2007 the permanent mission informed the applicant that it had decided not to renew her employment contract. On 27 November 2007 the applicant brought an action for unfair dismissal against the Republic of Burundi before the employment tribunal of the Republic and the Canton of Geneva.
In their submissions of 5 March 2008, the Republic of Burundi asserted, in particular, that the relations between the parties were covered by diplomatic immunity. In addition, it argued that the applicant had not carried out subordinate duties, that she received a higher salary than that paid to the diplomats in post, and that, given that she had Burundian nationality and was resident in France, she had few ties with Switzerland. In a judgment of 15 March 2010 the employment tribunal held that the applicant was not a diplomat and carried out lower-level tasks. The tribunal noted that the employment contract included a clause recognising local jurisdiction and that, consequently, there were no grounds to grant the defending State immunity from jurisdiction. The tribunal ordered the Republic of Burundi to pay the applicant about 40,707 euros. The Republic of Burundi lodged an appeal with the Court of Justice of the Republic and the Canton of Geneva. On 18 April 2011 the Court of Justice set aside the employment tribunal’s judgment of 15 March 2010 and granted the Republic of Burundi’s plea of immunity from jurisdiction. The Court of Justice added that the applicant could bring her case without difficulty before the relevant courts in her country. The Swiss Federal Supreme Court dismissed an appeal by the applicant, holding that the Republic of Burundi could legitimately rely on immunity from jurisdiction.
Relying on Article 6 § 1 (right to a fair hearing), the applicant complains that she was deprived of her right of access to a court on account of the immunity from jurisdiction raised by the Republic of Burundi and upheld by the domestic courts.

Algül and Others v. Turkey (no. 59864/12)
The applicants are seven Turkish nationals, Mr İlyas Algül, Mr Cebrail Algül, Mr Cem Algül, Mr Mikail Algül and Ms Zülal Algül, Ms Zeynep Avcı and Ms Ayşe Çiçek, who were born between 1959 and 1996 and live in Malatya.
The case concerns the death of their relative, Erol Algül, while performing military service.
On 28 September 2005, Erol Algül, who was performing his compulsory military service in Şanlıurfa, was found under the rubble of a guard post which had collapsed on him. He died from his injuries in Şanlıurfa Public Hospital. A criminal investigation was opened by the authorities of their own motion.
On 31 October 2008 the Diyarbakır military prosecutor’s office declined jurisdiction and transmitted the criminal investigation file to the Şanlıurfa State Prosecutor, who in turn declined jurisdiction and returned the file to the military prosecutor’s office. On 6 May 2009 the prosecutor’s office again declined jurisdiction and returned the file to the State Prosecutor. The applicants challenged that decision before the Diyarbakır military court and the military prosecutor’s office was finally instructed to examine the case.
On 2 July 2012 the Diyarbakır military prosecutor issued a discontinuance decision on the grounds that the criminal investigation had failed to establish those responsible. In August 2012 a further investigation was conducted and on 6 August 2015 the military prosecutor ended the investigations. On 13 August 2015 the military court dismissed an appeal by the applicants.
In the meantime, in July 2014 the applicants brought an action before the Supreme Military Administrative Court, seeking compensation. Those proceedings are currently pending.
Relying on the procedural limb of Article 2 (right to life), the applicants allege in particular a violation of the Convention.

Thursday 7 February 2019
Patsaki and Others v. Greece (no. 20444/14)
The applicants are eight Greek nationals who allege that there has been a violation of the right to life of their relative D.V. He was the first applicant’s husband, the second applicant’s father, the son of the third and fourth applicants and the other applicants’ brother.
In May 2008 D.V. was convicted of theft and the destruction of property belonging to others, and sentenced to eight months’ imprisonment. While he was detained in Heraklion Prison a doctor prescribed him a course of psychotropic drugs. He also had the Hepatitis C virus. In September 2008 he was transferred to the prison on the island of Chios. On 2 November 2008 the prison doctor increased the dose that had been prescribed by the previous doctor. On 7 November 2008 D.V. and other prisoners began a hunger strike to complain about the poor conditions prevailing in the prison. On 8 November 2008 the prison informed the applicants of their relative’s death.

An autopsy revealed that the death had been caused by an oedema and a pulmonary haemorrhage resulting from the consumption of psychotropic substances.
On 31 January 2011 the prosecutor discontinued the case on the grounds, in particular, that D.V.’s use of narcotic drugs in prison was not sufficient to establish criminally punishable conduct by the prison staff. In July 2013, following an appeal by the applicants, the prosecutor remitted the case of the prison governor and prison doctor for trial on charges of manslaughter committed by persons with particular legal obligations. On 5 September 2013 the criminal court acquitted the defendants.
The court found that the doctor could not have foreseen that D.V. would consume alcohol and narcotic drugs at the same time as the psychotropic medicines. It sent the case back for an examination of whether proceedings should be brought against the prison’s deputy governor, who had not taken steps to verify information that drugs were being trafficked within the prison, one recipient of which was D.V. The prosecutor discontinued the case without giving reasons. The Court of Cassation refused leave to appeal on points of law. On 31 July 2013 the applicants lodged an action for damages with the Mytilene Administrative Court, alleging negligence on the part of the prison wardens and medical staff.
Relying on Article 2 (right to life), the applicants allege that the State did not comply with its positive obligation to protect D.V.’s life.

Arsovski v. “the former Yugoslav Republic of Macedonia” (no. 30206/06)

Just Satisfaction

The case concerns the question of just satisfaction with regard to the expropriation of a plot of land belonging to the applicants for the benefit of a private company in order to extract mineral water.
In its principal judgment of 15 January 2013 the Court held that there had been a violation of Article 1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights, and made awards in respect of non-pecuniary damage.
The Court further held that the question of just satisfaction in so far as pecuniary damage was concerned was not ready for decision and reserved it for examination at a later date.
The Court will deal with this question in its judgment of 7 February 2019.

Just Satisfaction Stojanovski and Others v. “the former Yugoslav Republic of Macedonia” (no. 14174/09)
The case concerns the question of just satisfaction with regard to restitution proceedings in which the applicants had unsuccessfully claimed for a part of a plot of land that had been confiscated from their late predecessor.
In its principal judgment of 23 October 2014 the Court held that there had been a violation of Article 1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights, and made awards in respect of non-pecuniary damage.
The Court further held that the question of just satisfaction in so far as pecuniary damage was concerned was not ready for decision and reserved it for examination at a later date.
The Court will deal with this question in its judgment of 7 February 2019.

Yeshtla v. the Netherlands (no. 37115/11)
The applicant, Emabet Yeshtla, is a naturalised Dutch national of Ethiopian origin who was born in 1968. She currently lives in Beverwijk (the Netherlands).
The case concerns her complaint about the termination of her housing benefit.

Ms Yeshtla fled Ethiopia for the Netherlands in 1996, and was granted Dutch nationality in 2001. Her son was reunited with her in 2002 when he was 16 years old.
In 2005 and 2007 Ms Yeshtla, who was in receipt of general welfare benefits, applied for means- tested housing benefits (huurtoeslag). Both applications were accepted.
However, in 2009 the tax authorities informed her that, under the relevant legislation, there was no entitlement to means-tested housing benefit in the case of a co-resident who was not lawfully staying in the Netherlands. According to the immigration authorities, her son had not been residing lawfully in the Netherlands in 2006 and 2007 and she had therefore been unjustly receiving housing benefit which she should repay. Her appeal against this decision was rejected by the domestic court.
She filed a further appeal in 2010 with the Administrative Jurisdiction Division of the Council of the State. She argued that the decision discriminated between lawfully resident tenants who had a co- resident with a residence permit and those who had co-residents without a valid residence permit. The Division found that there were no exceptional circumstances in her case to hold that the loss of her entitlement to housing benefits was disproportionate and thus contrary to Article 14 taken together with Article 8 of the European Convention.
Relying on Article 8 (right to respect for private and family life), Ms Yeshtla complains about the termination of her housing benefit, arguing that a mother could not be expected to choose between evicting her son and losing such a tax credit. She also argues under Article 14 (prohibition of discrimination) taken together with Article 8 that the decision to terminate her housing benefit was discriminatory.

Elçi v. Turkey (no. 63129/15), Ahmet Tunç and Others v. Turkey (no. 4133/16), and Tunç and Yerbasan v. Turkey (no. 31542/16)
These applications concern alleged rights violations during curfews which were imposed in 2015 and 2016 by local governors in parts of southeast Turkey during fighting between Government forces and members of illegal armed organisations.
For full details of the cases see the press release on the Chamber hearing which was held in the case in November 2018.
The applicant in the first application, Ömer Elçi, and his family live in the Nur Neighbourhood of Cizre in southeast Turkey.
The application concerns a round-the-clock curfew which was imposed on Cizre in December 2015.
Mr Elçi alleges that the imposition of the curfew on 14 December 2015 meant that he and his family had to stay in their house in circumstances where fighting was going on around them, including the whole neighbourhood being surrounded by military tanks, which shelled buildings in the area.
The applicant complains under Article 2 (right to life) that the security forces conducted their operations in complete disregard of the principles on the use of force and thus endangered civilians’ lives in Cizre. He argues that the respondent State was under an obligation to take appropriate steps to safeguard lives, and alleges that his life, and those of others who were killed in Cizre, was also put at risk.
He alleges that the decision by the local governor to impose the curfew, which had no basis in domestic law, was in breach of his rights under Article 5 § 1 (right to liberty and security).
The other two applications concern the injuring and death of the applicants’ relative, Orhan Tunç.
On 18 January 2016, during the curfew imposed on Cizre in December 2015, Orhan Tunç left home to go to his brother Mehmet’s house. On his way he came under fire, allegedly from armoured vehicles, and was injured. A number of people made repeated calls to the emergency services for an ambulance and police headquarters were informed of the incident, but no ambulance was sent to

pick him up because of security concerns. The emergency services told the callers to take Orhan to a location allegedly some 1.5 km away, where he could be picked up.
He later took shelter in the basement of a building in Cizre. On 15 February 2016 the Government informed the Court that the security forces had found a body with a driving licence in his name in a building in the town.
The applicants complain under Article 2 that the authorities caused Orhan Tunç’s death, both because they failed to take him to hospital after he had been shot and seriously injured and then because he was actually killed by the security forces. Under the same provision they complain that the national authorities failed to carry out an effective investigation into his death. The applicants in application no. 31542/16 also allege that the lack of an effective investigation and an absence of remedies for that issue was a violation of Article 13 (right to an effective remedy).
They also allege that the fear which Orhan Tunç must have felt when he heard the constant bombing amounted to ill-treatment within the meaning of Article 3 (prohibition of torture and inhuman or degrading treatment). They further submit that their own rights under Article 3 and Article 8 (right to respect for private and family life) were breached by the national authorities’ indifference to their calls for help in retrieving his body. They argue, in addition, that the imposition of the curfew without declaring a state of emergency was in breach of Article 15 (derogation in time of emergency) and Article 17 (prohibition of abuse of rights) of the Convention.
Lastly, they complain that the Government, by failing to comply with an interim measure ordered by the Court, and by arresting and detaining the first two applicants’ legal representative, acted in breach of their obligations under Article 34 (right of individual application).

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