6.  The applicants are close relatives of persons who disappeared as a result of a large-scale sweeping operation conducted by the Russian federal military forces in Mesker-Yurt between 21 May and 11 June 2002. 7.  The Court has already examined cases in which other residents of Mesker-Yurt were abducted by federal servicemen in 2002 in the following judgments: Amanat Ilyasova and Others v. Russia, no. 27001/06, 1 October 2009, concerning the abduction and subsequent disappearance of Mr Musa Ilyasov on 11 August 2002; Ilyasova and Others v. Russia, no. 1895/04, 4 December 2008, concerning the abduction and subsequent disappearance of Mr Adam Ilyasov on 15 November 2002; Magamadova and Iskhanova v. Russia, no. 33185/04, 6 November 2008, concerning the abduction and subsequent disappearance of Mr Viskhadzhi Magamadov and Mr Khaskhan Mezhiyev on 14 November 2002; Petimat Magomadova v. Russia, no. 36965/09, 9 January 2014, concerning the abduction and subsequent disappearance of Mr Buvaysar Magomadov on 27 October 2002; Aliyeva and Dombayev v. Russia no. 67322/099 January 2014, concerning the abduction and subsequent disappearance of Mr Apti Dombayev on 4 November 2002; Kosumova and Others v. Russia, no. 27441/07, 7 June 2011, concerning the abduction and subsequent disappearance of Mr Abdul Kasumov on 21 November 2002; and Takhayeva and Others v. Russia, no. 23286/04, 18 September 2008, concerning the abduction and subsequent disappearance of Mr Ayub Takhayev on 13 November 2002. 8.  The relevant facts are summarised below. The personal data of the applicants and their missing relatives are summarised in the attached table (Appendix I). 9.  The circumstances of all the abductions are similar and can be summarised as follows. At the material time the village of Mesker-Yurt was under curfew. The federal forces had set up checkpoints on the roads leading to and from the settlement. 10.  Between 21 May and 11 June 2002 servicemen of the Russian federal forces conducted a large-scale “sweeping-up” operation in Mesker-Yurt. On 21 May 2002 they arrived in the settlement in several armoured personnel vehicles (APCs) and other military vehicles, such as UAZ minivans and URAL lorries. They blockaded the village and set up a temporary filtration camp on the outskirts. Nobody was allowed to leave the village. 11.  The servicemen, who spoke Russian without an accent, checked the residents’ identity documents. After the check they took some of the residents away, including the applicants’ relatives, under the pretext of needing to carry out further identity checks. They told the applicants that their relatives would be released once the checks had been completed. 12.  The majority of the applicants’ relatives were taken away between 21 May and 5 June 2002, either from their homes or from the local mosque, where they had been hiding in the belief that it was a safe place. All of the residents detained during the special operation were taken to the temporary filtration camp. 13.  The applicants visited the temporary filtration camp on several occasions and passed food to their relatives through the servicemen guarding it. 14.  On 4 June 2002 the body of Mr Adam Temersultanov, who had been detained during the special operation, was thrown from a military UAZ vehicle on the outskirts of the village. He was found by local residents. The other sixteen abducted men were transferred from the filtration camp to an unknown location. The applicants have had no news of their missing relatives ever since. 15.  On an unspecified date between 9 and 17 June 2002 the military unit conducting the special operation in Mesker-Yurt left the place where they had been stationed as well as the temporary filtration camp in the vicinity of the village. On 17 June 2002, local residents went to the place where the unit had been stationed and found several pits with blown-up human remains. 16.  From the documents submitted by the parties it transpires that along with the applicants’ relatives, a number of other residents of Mesker-Yurt, including Mr R. Makhtykhanov, Mr M. Magomedov and Mr I. Gachayev, were abducted during the special operation. All of them, like the applicants’ relatives, were arrested at home or at the mosque and taken to the filtration camp. They then went missing. 17.  According to the applicants, as a result of the special operation, nineteen residents of Mesker-Yurt were killed and a number of others, including their relatives, have gone missing.
(b)  Information submitted by the Government 18.  The Government did not submit their version of the events and did not dispute the circumstances of the abductions as presented by the applicants. 19.  From the Government’s submission concerning the official investigation into the events, it transpires that during a passport check on 27 May 2002, federal servicemen killed Mr A. Saltamirzayev. In addition, on 4 June 2002 a resident of Mesker-Yurt, Mr I. Khadzhimuradov, died as a result of an explosion and on 5 June 2002 two other residents of Mesker-Yurt, Mr M. Malayev and Mr A. Temersultanov, died under similar circumstances. 20.  Mr Islam Ortsuyev was born in 1980. On 21 May 2002 a group of armed servicemen abducted him from his house at 157 Lenina Street.
(b)  Abduction of Mr Adam Gachayev 21.  Mr Adam Gachayev was born in 1973. On 21 May 2002 a group of armed servicemen abducted him from the family house at 24 Sheripova Street (in the documents submitted, also referred to as Vishnevaya Street).
(c)  Abduction of Mr Aslan Israilov and Mr Anzor Israilov 22.  Mr Aslan Israilov was born in 1981 and his brother, Mr Anzor Israilov, was born in 1984. On 21 May 2002 a group of armed servicemen abducted the brothers from their house at 71 Lenina Street.
(d)  Abduction of Mr Ibragim Askhabov 23.  Mr Ibragim Askhabov was born in 1983. On 22 May 2002 a group of armed servicemen abducted him from his house at 8 Checkhova Street. 24.  According to the applicants, shortly after the abduction they learnt from undisclosed sources that in June 2002 Mr Askhabov had been detained on the premises of the Shali district department of the interior (Шалинский районный отдел внутренних дел (РОВД)) (“the ROVD”) and then transferred elsewhere.
(e)  Abduction of Mr Shaip Makhmudov 25.  Mr Shaip (also spelled as Shoip) Makhmudov was born in 1980. On 23 May 2002 a group of armed servicemen abducted him on the outskirts of Mesker-Yurt where he was tending cattle. In the documents submitted the place of the abduction was also referred to as 63 Tereshkova Street.
(f)  Abduction of Mr Sayd-Magomed Abubakarov 26.  Mr Sayd-Magomed Abubakarov was born in 1982. On 21 May 2002 (in the documents submitted the date was also referred to as 23 May 2002) a group of armed servicemen, who arrived in two APCs with registration numbers 588 and 466, abducted  him from his house at 64 Lenina Street.
(g)  Abduction of Mr Lechi Temirkhanov 27.  Mr Lechi Temirkhanov was born in 1980. On 21 May 2002 a group of armed servicemen abducted him from his uncle’s house at 1 Moskovskaya Street.
(h)  Abduction of Mr Apti Dedishov, Mr Abu Dedishov and Mr Adam Dedishov 28.  Mr Apti Dedishov was born in 1965, and his brothers, Mr Abu Dedishov and Mr Adam Dedishov, were born in 1968 and 1971. On 22 May 2002 a group of armed servicemen abducted the brothers from their family house at 6 Shkolnaya Street. 29.  On 11 June 2002 residents of Mesker-Yurt found clothing belonging to the Dedishov brothers and human remains on the outskirts of the village.
(i)  Abduction of Mr Suliman Magomadov and Mr Salambek Magomadov 30.  Mr Suliman Magomadov was born in 1978 and his brother, Mr Salambek Magomadov, was born in 1980. On 23 May 2002 (in the documents submitted the date was also referred to as 25 May 2002) a group of armed servicemen abducted the brothers from their house at 19 Shkolnaya Street.
(j)  Abduction of Mr Vakha Ibragimov 31.  Mr Vakha Ibragimov was born in 1975. On 1 June 2002 a group of armed servicemen abducted him from the village mosque in Mesker‑Yurt (in the documents submitted the address was also referred to as 4 Gorkova Street).
(k)  Abduction of Mr Abu Dudagov 32.  Mr Abu Dudagov was born in 1981. On 5 June 2002 a group of armed servicemen abducted him from the village mosque in Mesker-Yurt (in the documents submitted the address was also referred to as 1 Sportivnaya Street).
(l)  Abduction of Mr Adam Temersultanov and subsequent discovery of his body 33.  Mr Adam Temersultanov (in the documents submitted also spelled Timersultanov) was born in 1976. On 25 May 2002 he went to the village mosque in Mesker-Yurt and stayed there for several days during the special operation, believing that it was a safe place. 34.  On 30 May 2002 the servicemen conducting the special operation took Mr Temersultanov from the mosque to a checkpoint situated on a nearby bridge for an identity check and detained him. 35.  On 4 June 2002 some villagers saw one of the military UAZ vehicles used for the special operation with Mr Temersultanov’s body in it; they then saw servicemen throw the body out of the vehicle. According to the applicants, Mr Adam Temersultanov’s body bore signs of violence. 36.  Mr Magomedrasul Magomedov was born in 1951. At the material time he and the applicants lived in the settlement of Komsomolskoye in the Kizilyurt district of Dagestan. On 23 May 2002, Mr Magomedov went to visit his sister in Mesker-Yurt, Chechnya, with his friend, Mr Kh. M. 37.  On 24 May 2002 Mr Magomedov and Mr Kh. M. wanted to leave Mesker-Yurt, but the entire settlement was cordoned off by military servicemen and all the roads leading to and from the village were blocked due to the special operation. 38.  On an unspecified date at the beginning of June 2002 Mr Magomedov and Mr Kh. M. were told by the servicemen to go to the village mosque and join the other residents who had gathered there. On the same day, the servicemen took Mr Magomedov from the mosque to the temporary filtration camp. His whereabouts remain unknown. As for Mr Kh. M., he was allowed to leave the village a few days later. 39.  In response to the Court’s request for a copy of the contents of the criminal cases opened in connection with the abductions, the Government did not furnish any documents but provided an information statement concerning the investigation of joint criminal case no. 14/90/0091-11. 40.  The applicants in Ortsuyeva and Others (application no. 3340/08) furnished the Court with copies of numerous requests for assistance in the search for their relatives lodged by them with various State authorities between 2002 and 2008 and the replies received thereto. 41.  The information submitted by the parties concerning the investigation into the abduction can be summarised as follows. 42.  Between June and July 2002 the Shali district prosecutor’s office opened criminal cases nos. 59114, 59125, 59126, 59127, 59128, 59129, 59133, 59134, 59135, 59136, 59138, 59163, 59164, and 59171 under Article 126 of the Criminal Code (abduction) in respect of the abduction of the relatives of the applicants in Ortsuyeva and Others (application no. 3340/08). It also opened criminal case no. 59166 in respect of the abduction of the relative of the applicants in Magomedova and Others (application no. 24689/10). 43.  On 6 August 2002, all of the criminal cases, along with cases nos. 59113 and 59205 opened in connection with the abduction of other residents of Mesker-Yurt, were joined under joint criminal case no. 59113. 44.  On 26 December 2002 the joint criminal case was forwarded to the military prosecutor’s office of the United Group Alignment (Объединенная группировка войск (ОГВ)) (“the UGA”) for further investigation. The applicants were not informed thereof. 45.  On an unspecified date between January 2003 and April 2007, while the proceedings were suspended, the military prosecutor’s office remitted joint criminal case no. 59113 to the Chechnya prosecutor’s office for further investigation. The applicants were not informed thereof. 46.  On 19 April 2007 the investigation of the criminal case was resumed. It was then suspended again on 20 April 2007 for failure to identify the perpetrators. The relevant decision stated, among other things:
“... the preliminary investigation has established that between 21 May and 10 June 2002 in the vicinity of Mesker-Yurt in the Shali district of the Chechen Republic, servicemen of the Russian Ministry of Defence and the Russian Ministry of the Interior together with servicemen from the Department of the Execution of Sentences of the Russian Ministry of Justice, conducted a special operation to check identity documents and identify members of illegal armed groups. During the special operation unidentified persons abducted twenty-one local residents whose whereabouts have not been established since ...” 47.  On 20 April 2007 the investigation of the joint criminal case was suspended yet again for failure to identify the perpetrators. The applicants were not informed thereof. 48.  According to the documents submitted, the special operation in Mesker-Yurt was conducted under the command of General Bornovitskiy and on an unspecified date between 2002 and 2007 the applicants and their relatives forwarded that information to the investigators. It is unclear whether any steps were taken to verify the information. 49.  From the documents submitted it appears that on various dates between 2002 and 2007 the applicants and/or their relatives gave statements to the investigating authorities. In their statements, they stressed that their relatives had been abducted by military servicemen during the special operation, and taken to the temporary filtration camp and that they had been missing ever since. 50.  Furthermore, on various dates between 2002 and 2010 the applicants lodged complaints and requests for assistance in the search for their relatives with the investigative authorities and other State bodies. In reply, they were informed either that their complaints had been forwarded to another law‑enforcement or military agency, or that the investigating authorities were taking operational search measures to establish the abducted men’s whereabouts and identify the culprits. 51.  According to the documents submitted by the applicants in Ortsuyeva and Others (application no. 3340/08), between 2002 and 2010 the applicants lodged numerous complaints and information requests concerning the search for their abducted relatives and the progress of the investigation into the matter. 52.  Between 2002 and 2010 the applicants in Magomedova and Others (application no. 24689/10) lodged a number of complaints and information requests with the authorities as well. For instance, from a copy of the decision of the Kizilyurt Town Court of 5 April 2010 declaring Mr Magomedrasul Magomedov dead, it transpires that on unspecified dates in March 2003, April 2005, May 2006, December 2009 and March 2010 the applicants requested assistance in searching for him and complained to the supervisory prosecutors of the lack of progress in the investigation. In reply, they were informed that proceedings were under way and that the necessary measures were being taken. 53.  From the documents submitted it follows that between 2002 and 2010 the investigation of the criminal case consisted mostly of taking short statements from the applicants and/or some of their relatives and forwarding numerous requests for information to various State bodies. The proceedings were suspended and resumed on several occasions for failure to identify the perpetrators. The applicants were either not informed thereof or informed with significant delays. 54.  It appears that following complaints lodged by the applicants, on 4 October 2011 the investigation of the joint criminal case was resumed and transferred again to the military authorities – the main military investigations department of the investigative committee of the Russian Federation. The relevant decision gave the following reason for the transfer:
“... the investigation has established that the military servicemen who conducted the special operation in Mesker-Yurt between 21 May and 10 June 2002 were involved in the abductions.”
The joint criminal case file was given a new number, 14/90/0091-11. It is unclear whether the applicants were informed of those decisions. 55.  On 16 December 2011 the investigation of the criminal case was suspended again for failure to identify the perpetrators. It was subsequently suspended and resumed again on several more occasions. The last suspension of the proceedings took place on 29 April 2015. 56.  From the information statement furnished by the Government, it transpires that between 2011 and 2015 the investigators questioned twenty-eight people, including the applicants, and forwarded about 310 information requests to various authorities. No new information was obtained. 57.  The proceedings are still pending.


4.  The applicants were born in 1952 and 1955 respectively and live in Sofia. 5.  The first applicant’s parents owned part of a house in Sofia. 6.  In 1986 the house was expropriated with a view to constructing a street and a residential building. The expropriation decision, based on section 98 (1) of the Territorial and Urban Planning Act of 1973 (Закон за териториалното и селищно устройство – “the TUPA”), provided in particular that in compensation the applicants were to receive a three-room flat. 7.  By another decision of 28 May 1993, based on section 100 of the TUPA, the mayor indicated the exact future flat to be provided as compensation to the applicants. It measured 87 square metres and was situated in a building to be constructed by the Sofia municipality. Its value was set at 21,185 old Bulgarian levs (BGL), later amended to BGL 21,231. The applicants paid to the municipality the part of this amount which was not covered by the value of the expropriated property. 8.  In 1990 the applicants, their children and the first applicant’s parents were accommodated in a three‑room municipal flat. They remained in it until 2004, when they chose to move to another dwelling better adapted for the first applicant’s mother’s frail state of health. 9.  On an unspecified date in 2005 the applicants brought a tort action against the Sofia municipality, claiming pecuniary and non-pecuniary damage on account of its continued failure to build and provide them with a flat. 10.  The action was dismissed on 21 February 2006 by the Sofia District Court, which found that the applicants had not proven that they had sustained damage, in particular because they had been accommodated in a municipally-owned dwelling, and that in any event domestic law provided for a special remedy for persons in the applicants’ situation, namely the possibility to request a new valuation of the expropriated property. 11.  Following that judgment, the applicants made a request for a new valuation. In a letter by the municipality dated 2 June 2006 and signed by a deputy mayor, they were informed that they were not entitled to seek such a valuation since they had not been the owners of the expropriated property. 12.  In the meantime the flat due to the applicants was built and they took possession of it on 19 June 2006. 13.  In the tort proceedings, in judgments of 14 December 2006 and 8 July 2008 the Sofia City Court and the Supreme Court of Cassation upheld the Sofia District Court’s judgment of 21 February 2006, reiterating its findings. 14.  In these proceedings the applicants were ordered to pay 1,200 new Bulgarian levs (BGN, the equivalent to 612 euros – EUR) in court fees.


4.  The applicant was born in 1945 and lives in Pechora, the Komi Republic. 5.  The applicant sued the Municipal Unitary Enterprise for Housing and Communal Services (MUP Pechorazhilkomhoz or MUP PZHKH – МУП Печоражилкомхоз – hereafter “the company”) of Pechora, the Komi Republic, for salary arrears. 6.  On 31 May 2007 the Justice of the Peace of the Privokzalnyy Court Circuit of Pechora awarded the applicant the equivalent of 18,358 euros (EUR) of the salary owed to him for the period from 1 January 2005 to 31 December 2006. The judgment became final ten days later. 7.  On 12 January 2009 the Pechora Town Court granted another claim which the applicant had lodged against the company, awarding him EUR 592. The judgment became final ten days later. 8.  Neither judgment has been enforced. 9.  The company was incorporated as a municipal unitary enterprise. It was set up by a decision of the local administration to provide heating supply and housing maintenance services in the local area. The company had “the right of economic control” (право хозяйственного ведения) over the assets allocated to it by the administration in order to carry out its statutory activities. 10.  In 2006 the owner (the local administration) withdrew several of the company’s assets and transferred them either to the local treasury or to other legal entities. 11.  On 17 January 2007 the respondent company was declared insolvent and liquidation proceedings started. 12.  The company sued the owner in subsidiary liability proceedings. On 13 May 2009 the Commercial Court of the Komi Republic dismissed that action, having found that the owner had acted without intending to cause the company’s insolvency when transferring the assets. 13.  On 16 June 2009 the company was liquidated. 14.  The applicant brought subsidiary liability proceedings against the owner before the Pechora Town Court, arguing, inter alia, that the company’s insolvency had been premeditated. On 21 June 2012 the court dismissed the applicant’s claim against the owner as unfounded. On 3 September 2012 the Supreme Court of the Komi Republic upheld that decision.


5.  The applicant was born in 1964 and lives in Istanbul. 6.  The facts of the case, as submitted by the parties, may be summarised as follows. 7.  At the time of the events giving rise to the application, the applicant was working at the Directorate of National Palaces as a secretary. On an unspecified date in 2002, following ongoing conflict with a colleague and at the request of a certain professor, M.Ü., from the same Directorate, the applicant was demoted. When she complained about her demotion to her friend, M.G., the latter offered to call professor M.Ü., who was a mutual acquaintance, and seek a reconciliation between the parties and thus her possible reinstatement. The applicant accepted this offer. 8.  It appears that subsequently M.G. made a number of harassing phone calls to the professor with violent threats to hurt his son, accompanied by a ransom request. The professor, in turn, filed a criminal complaint against both M.G. and the applicant in relation to these threatening calls, which resulted in charges being brought on 3 December 2002 against M.G. for threatening the professor, and against the applicant for inciting M.G. 9.  In his statements during the criminal proceedings, M.G. admitted to having threatened the professor, but claimed that he had had no intention of hurting anyone. He asserted that he had only meant to scare the professor, at the applicant’s request. 10.  The applicant, on the other hand, denied M.G.’s allegations. She claimed that, although she had taken up M.G.’s offer to contact the professor to settle the dispute which had caused her demotion, she had never instructed him to threaten or otherwise harass the professor. 11.  On 27 October 2005 the Istanbul Assize Court convicted M.G. as charged, but acquitted the applicant on the grounds of a lack of sufficient evidence to corroborate the allegations against her. That decision, which was not appealed against by the defendants, was finalised on 4 November 2005. 12.  In the meantime, on 31 December 2002, shortly after her indictment, the applicant had been dismissed from the position to which she had been demoted, without receiving payment in lieu of notice or severance pay. It appears that her employment contract was terminated under section 17 of the now defunct Law no. 1475 (the Labour Law), without any further information being given as to the exact grounds for her dismissal under that provision. 13.  On 30 October 2003 the applicant brought an action against the Directorate of National Palaces before the Bakırköy Labour Court, claiming severance pay and payment in lieu of notice on grounds of wrongful dismissal. 14.  On 28 March 2006 the Bakırköy Labour Court rejected the applicant’s application. On the basis of its examination of the case file before the Istanbul Assize Court, the labour court first found it established that the applicant had incited M.G. to commit the offences of making threats and requesting a ransom, and had breached the relationship of trust with her employer. In the light of those findings, it then concluded that the termination of the applicant’s employment contract had been in accordance with section 17 of Law no. 1475. The relevant part of the judgment reads:
“...In their observations, the respondent party submitted that the applicant had incited her friend to threaten and extort ransom from M.Ü, and that she had confessed to the charges against her in her statement to the police...
The court has requested the case file of the Istanbul 6th Criminal Assize Court and examined the entire criminal investigation file. Based on its examination, it notes that the other accused M.G., in his statement to the police of 19 November 2002, stated that it was the applicant who had instructed him to threaten M.Ü. on the telephone and ask for a ransom; and that it was again she who had called him one day and had explained how M.Ü. had demoted her, and that when he had visited the applicant at the office, she had said that M.Ü. should also suffer just as she suffered and that it would be best to threaten him with kidnapping his son unless he gave 50 billion Turkish Liras. M.G. also stated that he had called M.Ü. 8 or about 10 times from the telephone numbers 0212 XXX XXX and 0532 XXX XXX, hence based on the following, the court finds it established that the plaintiff had incited M.G. to commit the crime.
The court has also given regard to the documents submitted by the plaintiff’s employer and finds it established that the plaintiff’s contract had been terminated on the basis of the fact that the plaintiff had incited M.G. to commit the crime of making threats and requesting a ransom.
Based on the documents submitted by the parties, the statements made during the proceedings, the statements of M.G. in the criminal case file, the court finds that the employer is under no obligation to continue employing the plaintiff and that the relationship of trust between the employer and the employee was breached and therefore the termination of the employment contract was just and lawful.” 15.  The applicant appealed against the decision of the Bakırköy Labour Court. In her appeal, she maintained that the labour court had erroneously based its decision on the fictitious statements made by M.G. during the criminal proceedings, in total disregard of the fact that she had been acquitted of incitement by the Istanbul Assize Court. 16.  On 20 December 2006 the Court of Cassation upheld the decision of the Bakırköy Labour Court.


5.  The first applicant organisation is the Vienna Chamber of Medical Doctors (Ärztekammer für Wien). The Chamber represents all medical practitioners in Vienna and also has its own website. The second applicant was the Chamber’s president at the time of the events. 6.  On 18 January 2007 the second applicant published a letter on the first applicant organisation’s website, which was addressed to all members of the Chamber in Vienna and was also sent out to all of them via e-mail. The letter was titled “Locust funds want to take over medical practices” (“Heuschreckenfonds wollen Ordinationen übernehmen”). The second applicant went on to state that he had been forced to write to his colleagues for a serious reason, namely, because it had been reported in the media that the F. company planned to go into “the radiology business”. He added that share-bidding companies planned to offer medical services – initially in the area of radiology, but soon enough in other areas of the profession as well ‑ and that doctors risked becoming mere employees of such “locust” companies. If they would not act according to the companies’ wishes, they would be dismissed. The second applicant then explained the assumed legal and organisational basis of such a plan: radiology services which were currently being provided by medical practices could, in future, also be offered by limited companies. Shares of those companies could then be bought by the F. company, and the “locusts” would reach their goal, namely control of the medical profession. Giving an example of a risky development, the second applicant stated that in the last 20 years, colleagues had founded laboratories which had reciprocal agreements with certain health insurance boards. Today, almost all of those laboratories were owned by the F. group, which, in turn, was owned by insurance companies, investment funds and foundations, and which employed a large number of doctors. The second applicant ended his letter by stating that he could guarantee one thing: that the doctors’ professional representative body would make use of all legal and political means available to stop such a disastrous development from going ahead, to prevent that the quality of medical treatment being determined by “managers and controllers” and to ensure, inter alia, that existing medical practices were protected from the competition from “international locust funds” (“internationale Heuschreckenfonds”). 7.  On 24 January 2007 the F. company lodged an action against the two applicants and an application for an injunction with the Vienna Commercial Court (Handelsgericht Wien). The applicants contested the application. 8.  On 16 February 2007 the Vienna Commercial Court issued an injunction prohibiting the applicants (each of them individually) from repeating the statement that the F. company was ruthless towards third parties, in particular medical professionals. The injunction prevented the applicants from referring to the F. company as a “locust”, “locust company” or “locust fund”. The applicants were further prohibited from stating that the provision of services by the F. company, particularly services in the area of radiology, was a disastrous development. The court found that there was a competitive relationship between the F. company and the applicants, and found the statements made by the applicants to be defamatory under Article 1330 of the Civil Code and unethical under the Unfair Competition Act (Bundesgesetz gegen den unlauteren Wettbewerb). 9.  The applicants appealed against the injunction. On 30 October 2007 the Vienna Court of Appeal (Oberlandesgericht Wien) partly granted the appeal, and prohibited the applicants from alleging that the F. company was ruthless towards third parties and medical practitioners, and from calling it, inter alia, a “locust company”. However, it dismissed the F. company’s application to prohibit the applicants from calling its provision of services a “disastrous” development. The Court of Appeal found that the first applicant organisation had locus standi in the injunction proceedings. The Chamber of Medical Doctors held official authority status in relation to certain areas of its work (Bereich der Hoheitsverwaltung), in addition to representing the interests of its members; it was therefore considered a legal entity under the Official Liability Act (Amtshaftungsgesetz). However, when acting as a special interest group, it represented its members’ interests from a mainly economic perspective, rather than acting in its capacity as an official authority. According to the Court of Appeal, the letter in issue pursued the interests of the Chamber’s members, outside the Chamber’s official sphere of activity. 10.  The Court of Appeal further established, referring inter alia to Wikipedia, that the term “locust company“ (“Heuschreckenunternehmen“) was introduced into the political discussion in German speaking countries in 2005 by Mr Franz Müntefering, a German politician, and is ever since used in political debates as a pejorative term for private-equity companies or other forms of capital funds with short-term or exaggerated return expectations – like hedge funds or „vulture“ funds, which also had negative connotations. The domestic court found that there was a need to balance the interests involved in the present debate, reiterating that extreme opinions were only unlawful if they were excessive. As a result of that balancing exercise, the Court of Appeal found that the “locust” statement had to be considered a lawful criticism in the context of a public debate, and that the F. company could therefore not base its claim on Article 1330 of the Civil Code. However, the Court of Appeal classified the applicants’ actions as competitive in nature. Statements of fact made in violation of the Unfair Competition Act could not be justified by the right to freedom of expression. The Court of Appeal found that Austrian law provided wide‑ranging protection for commercial and economic interests. Those who published an opinion in an economically competitive context were obliged to exercise a higher level of diligence with regard to the facts and bases of their allegations than those who acted in the non-competitive context of a public debate of general interest. Therefore, the Court of Appeal upheld the injunction decision with regard to the statements about the “locust company”. 11.  However, as regards the further statement, namely that provision of certain services by the F. company was a “disastrous development”, the Court of Appeal found that, read in context, the statement indicated a general assessment and did not refer to a particular service of the F. company. It was therefore to be considered a personal opinion, and thus a value judgment that was not defamatory under Article 1330 of the Civil Code. It also did not fall under section 7 of the Unfair Competition Act. 12.  The applicants lodged an extraordinary appeal with the Supreme Court (Oberster Gerichtshof). On 22 January 2008 the Supreme Court dismissed the extraordinary appeal. It acknowledged the applicants’ argument that where a competitor, even for economic purposes, took part in a debate of public interest, freedom of expression had to hold more weight in the balancing test. However, the Supreme Court observed that the applicants had made their statement in the clearly economic context of competition between medical practitioners and companies which provided the same services. The applicants could have warned their members of the possible risks of cooperating with companies without overstepping the margin of acceptable criticism. However, the applicants had exceeded that limit and stated that the F. company was a “locust”. That statement was one of fact, and the applicants had not provided evidence of a factual basis for their allegations, and had therefore exceeded the permissible limitations of freedom of expression. 13.  On 7 July 2008 the Commercial Court gave its judgment in the substantive proceedings and ordered the applicants to refrain from: repeating the statement that the F. company was ruthless towards third parties, in particular medical practitioners and patients; and stating that the F. company was a “locust company”, a “locust fund” or a “locust”. It further ordered the applicants to publish and display the operative part of the judgment on the first applicant organisation’s website for thirty days, and to publish it in the first applicant organisation’s print newsletter. 14.  The Commercial Court made substantial reference to the Court of Appeal’s reasoning in the interim injunction proceedings. It followed the previous finding that the relevant statements did not constitute defamation pursuant to Article 1330 of the Civil Code. Examining the statements in relation to the provisions of the Unfair Competition Act, the Commercial Court found that the letter had been written by the Chamber of Medical Doctors in a commercial and not a political context. It had also had the advancement of independent medical practices as an objective, and had contained a warning regarding capital ventures which allegedly threatened doctors’ independence. The Commercial Court found the relevant comparisons with “locusts” to be statements of fact regarding both the F. company and its conduct in relation to third parties, doctors and patients. The statements were also likely to damage the F. company’s commercial interests, and had not been proved to be true. 15.  The used language could also not be justified with a reference to the right to freedom of expression as the statement was uttered within the framework of a commercial competitive relationship. With reference to the Court’s case-law allowing for a wider margin of appreciation under Article 10 of the Convention with regard to commercial language, the Commercial Court observed that a competitor was required to be more diligent in the context of commercial communication among competitors. The term “locust” was almost exclusively loaded with negative meaning, which led to the unethical general vilification of a competitor. The applicants were therefore prohibited from using that statement in relation to the F. company, pursuant to the Unfair Competition Act. 16.  On 19 September 2008 the applicants lodged an appeal against that judgment. On 12 December 2008 the Vienna Court of Appeal dismissed the appeal as unfounded. It referred to the extensive reasoning given in the interim injunction proceedings and added that, according to the case-law of the Supreme Court, the test used to verify whether a statement was covered by the right to freedom of expression required the assessment of whether a factual basis for such a statement existed; if a competitor participated in a public debate of general interest, freedom of expression had more weight with regard to the assessment of the statement than in the context of purely commercial communication. The greater the public interest in being properly informed and the less the statement related to commercial interests, the more the statement would be protected by Article 10 of the Convention. In the present case, there was no doubt that there was an ongoing public debate; however, the commercial interests of the applicants had very much been in the foreground of the communicated statement itself. 17.  The applicants lodged an extraordinary appeal on points of law against that judgment, which was rejected by the Supreme Court on 14 July 2009. The Supreme Court found that the applicants had not only called the F. company a “locust”, but had also reproached this company for negative conduct, such as dominating doctors, dismissing doctors who did not act in accordance with company wishes, and focusing on economic factors rather than the welfare of patients (“Herrschaft über den ärztlichen Berufstand, Kündigung nicht “spurender” Ärzte, Orientierung an ökonomischen Erwägungen und damit nicht am Wohl der Patienten”). Therefore, the expression used had turned into a statement of fact, giving the reader the impression that the F. company had already demonstrated unethical conduct which threatened the interests of doctors and patients. In view of the specific circumstances of the case, the prohibition ruled upon by the lower courts was justified. Even though the applicants had taken part in a debate of general public interest, an untrue and damaging statement of fact was not protected by freedom of expression. Furthermore, the issuing of warnings concerning the potential risks of the provision of medical services by companies was not, as such, prohibited by the decisions of the Austrian courts; the applicants had only been required to refrain from making untrue statements of fact in respect of their competitors. 18.  The decision of the Supreme Court was served on the applicants’ counsel on 27 August 2009.


6.  The applicant was born in 1955 and lives in Pozuelo de Alarcón (Madrid). 7.  The applicant cohabited with another man in a homosexual relationship from 1990 until the latter’s death on 2 July 2002. During that period they lived together in an apartment belonging to the applicant’s partner. When his partner died, the sister and only heir of the applicant’s partner gave the applicant, because of the relationship he had had with her brother, an apartment that had belonged to the applicant’s late partner and in which the couple had spent their holidays together since 1990. 8.  On 19 September 2003 the applicant claimed social security allowances as a surviving spouse, under section 174 (1) of the General Social Security Act, arguing that he had cohabited with his deceased partner for many years. 9.  On 22 September 2003 the National Institute of Social Security (Instituto Nacional de la Seguridad Social, hereafter referred to as “INSS”) refused to grant the applicant a survivor’s pension on the ground that since he had not been married to the deceased person, he could not legally be considered as his surviving spouse for the purposes of section 174 (1) of the General Social Security Act. That decision was formally served on 13 June 2005. 10.   On 1 July 2005 Law no. 13/2005 amending the provisions of the Civil Code with respect to the right to enter into marriage was passed. Two days later it entered into force. This law legalised same-sex marriage in Spain. In accordance with its first additional provision all legal and regulatory provisions making reference to marriage should be understood thereafter as applicable to all marriages irrespective of the sex of its members (see paragraph 35 below). 11.  On 5 July 2005 the applicant filed an administrative complaint against the decision of 22 September 2003. This complaint was dismissed by the INSS on 11 August 2005. The INSS noted that there was no provision in the legislation in force that allowed, for the purposes of social security rights, the person who had been cohabiting with the deceased to gain the status of a widower. 12.  On 26 September 2005 the applicant challenged that decision before the Madrid Social Tribunal no. 33 (“the Social Tribunal”). 13.  In a judgment of 14 November 2005 the Social Tribunal ruled for the applicant. The Social Tribunal firstly outlined that the facts of the case had to be assessed in the light of the newly enacted Law no. 13/2005, which was already in force and deemed constitutional by the tribunal. As to the merits, the Social Tribunal observed that the issue at stake was whether the applicant, as the surviving partner of a same-sex relationship that ended (following his partner’s death) before the entry into force of Law no. 13/2005, had the right to a survivor’s pension. The Social Tribunal then reiterated that, according to the well-established domestic case-law, surviving partners of unmarried couples were not entitled to a survivor’s pension under section 174 of the General Social Security Act, marriage being a constitutive element to access any such social-security benefit; that the applicant had been prevented from marrying his partner because same-sex marriage had not been recognised in domestic law at the time his partner died; that the social security administration had relied on the fact that the couple had not married to refuse the applicant a survivor’s pension; and that it was evident that after the entry into force of Law no. 13/2005, surviving spouses of same-sex marriages were entitled to survivors’ pensions on the same footing as survivors of different-sex marriages. 14.  The Social Tribunal was of the view that the solution to the legal issue raised by the applicant’s case depended on whether it could be inferred from Law no. 13/2005 that Parliament’s intention had been that surviving partners of same-sex couples who had been prevented from marrying under the former legislation could access a survivor’s pension on a similar footing to same-sex couples who could marry after the entering into force of that Act. The Social Tribunal drew attention in this regard to the provisions and the explanatory memorandum of Law no. 13/2005 to contend that this new legislation had a very strong egalitarian purpose, and that from the date it entered into force, that is to say 3 July 2005, all legal provisions concerning marriage should be interpreted on the basis of the first additional provision of Law no. 13/2005 as applying fully to same-sex marriage (see paragraph 35 below). The Social Tribunal held in this regard that:
“This is a wide-ranging provision which affects all the other provisions of the legal system making reference to marriage. From now onwards all references to marriage established in the law shall be understood as applying also to marriage celebrated between two persons of the same sex. Accordingly, whoever shall be called to interpret or apply any marriage-related provision should do so in egalitarian terms without taking into consideration whether the spouses are of the same or different sex”. 15.  The Social Tribunal further recalled that additional provision no. 10 (2) of Law no. 30/1981 of 7 July 1981 amending the provisions of the Civil Code pertaining to marriage and the procedure to be followed for cases of annulment, judicial separation and divorce, recognised the right to obtain a survivor’s pension for individuals who had been prevented from marrying a person who later died by the legislation in force until then, provided that he or she had cohabited in a relationship similar to marriage with the deceased person and that the deceased had died before Law no. 30/1981 entered into force. 16.  The Social Tribunal stressed that such a provision was included in order to provide a solution for those cohabiting couples consisting of a man and a woman who could not have married under the legislation in force until that time, and thus did not qualify for a survivor’s pension, because one or even both of them had still been married to another person whom they had been prevented from divorcing, divorce having been legally impossible in Spain until the passing of Law no. 30/1981. The Social Tribunal considered that the applicant’s circumstances were “fully comparable” to those outlined in additional provision no. 10 (2) of Law no. 30/1981 in so far as:
“- the claimant could not marry his partner because the legislation then in force prevented him from doing so;
- the claimant had shared a marital life with his partner until the latter’s death;
- the latter’s death had taken place before the entry into force of Law no. 13/2005” 17.  The Social Tribunal acknowledged, however, that whereas Law no. 30/1981 was aimed at protecting the rights of those cohabiting heterosexual couples who were prevented from marrying because divorce was prohibited at the time, Law no. 13/2005 was aimed at protecting the rights of those who could not marry on account of their sexual orientation, and that this distinction was the main impediment to the recognition of the applicant’s right to a survivor’s pension. 18.  The Social Tribunal considered nonetheless that treating these two groups differently would not be in harmony with the strong egalitarian intention expressed by Parliament with the passing of Law no. 13/2005 and that, accordingly, additional provision no. 10 (2) of Law no. 30/1981 was applicable to the applicant by force of additional provision no. 1 of Law no. 13/2005. The Social Tribunal stated as follows:
“Therefore, the interpretation that in my opinion better fits the legislature’s intention is the following:
- If the first additional provision of Law no. 13/2005 sets out that provisions making reference to marriage shall apply irrespective of the sex of the spouses,
- And one of [these provisions], currently in force to provide access to a survivor’s pension, is additional provision no. 10 (2) of Law no. 30/1981.
- The only method to apply it in a way which is consistent with the egalitarian intention of the legislature is to do so irrespective of the sexual orientation of the members of the cohabiting couple.
- In order to ensure that sexual orientation does not constitute discriminatory grounds in the application of additional provision no. 10 (2) of Law no. 30/1981, the right thereby recognised shall currently be interpreted as providing a solution to factual situations such as the one in the instant case in which the impediment to access to a survivor’s pension is no other than the sexual orientation [of the claimant].” 19.  As regards the administration’s submission that in the area of social security benefits the governing principle was that of non-retroactivity of laws and that according to the law in force at the time the applicant’s partner died the former did not qualify for a survivor’s pension because they were not married, the Social Tribunal was of the view that this general principle was not absolute and that it did not apply where there was a specific rule giving retroactive effect to laws more favourable to the citizens, as is true of the instant case. Thus, additional provision no. 10 (2) of Law no. 30/1981 should be read in the light of the first additional provision of Law no. 13/2005. 20.  As to the degree of retroactivity that should be given to additional provision 10 (2) of Law no. 30/1981 in the applicant’s case, the Social Tribunal relied on the constitutive effects of Law no. 13/2005 which created new rights and was effective only from the date it entered into force. Accordingly, the Social Tribunal recognised the applicant’s right to be awarded a survivor’s pension with effect from 3 July 2005. 21.  The INSS and the Treasury General of Social Security appealed (recurso de suplicación) against that judgment to the Madrid High Court of Justice (Tribunal Superior de Justicia). 22.  On 18 September 2006 the Madrid High Court of Justice upheld the appeal and reversed the first-instance judgment. The court found that the legislature had not intended Law no. 13/2005 to cover same-sex partnerships which had been ended by the death of one of the partners before said law had entered into force and that the lack of protection of these unions could not be considered discriminatory in the light of Article 14 of the Spanish Constitution. 23.  For the court, it was only as from the entry into force of Law no. 13/2005 that marriage between same-sex couples was recognised and that this law affected other rights for those persons who would wish to marry thereafter. Hence, the court was of the view that Law no. 13/2005 had no retroactive effects, except as otherwise expressly provided, which was not the case at hand. 24.  The court further stated that even though Law no. 13/2005 had been inspired by the constitutional principle of equality, prior legislation preventing same-sex marriage could not be deemed unconstitutional as contrary to either any constitutional principle or to the right not to be discriminated against. The court referred to constitutional case-law dating from 1994 according to which the requisite of heterosexuality for the purposes of marriage was fully constitutional and that it was within the margin of appreciation of the public authorities to treat heterosexual marriages more favourably than homosexual partnerships. In this connection, the court maintained that despite the reference in the preamble of Law no. 13/2005 (see paragraph 35 below) to the discriminatory treatment to which homosexuals had traditionally been subjected on account of their sexual orientation, the aim of Parliament in passing that law was merely to respond to a new social reality and award homosexuals the right to marry, but not to protect same-sex partnerships which had already ended before its enactment. 25.  The court referred to constitutional case-law according to which a difference in legal treatment of individuals due to subsequent changes in the law does not necessarily entail discrimination, even if those persons could be said to be in similar circumstances. Given the complexity that a change in legislation might involve, it was for Parliament to establish the characteristics of the legal transition, either by introducing retroactivity clauses or by restricting the application of the new legislation to circumstances arising after its entry into force. 26.  The court noted in this regard that Law no. 13/2005 had not included any provision concerning same-sex partnerships which had already ended at the time of its entry into force and that it strictly concerned same-sex couples still in existence at that time and who would be willing to enter into marriage. The court considered that the difference between the situations before and after the passing of Law no. 13/2005 was essentially an expression of the principle of succession of laws without constitutional implications as regards the right not to be discriminated against. 27.  As regards the applicability to the present case of additional provision no. 10 (2) of Law no. 30/1981, the Madrid High Court of Justice found that this provision was not applicable to the applicant’s case for two main reasons. Firstly, that provision could not be considered as among the provisions to which the first additional provision of Law no. 13/2005 referred. Additional provision no. 10 (2) was, as the Constitutional Court had established, of a provisional or transitory nature and had been envisaged for those specific cases in which one of the partners had died before the entry into force of Law no. 30/1981. It had not been intended to govern future situations. Secondly, that provision had been envisaged for a totally different situation from that of the applicant. Additional provision no. 10 (2) of Law no. 30/1981 was aimed at guaranteeing a survivor’s pension to those heterosexuals who had been prevented from marrying their out-of wedlock partner because divorce had not been legal at the time of the latter’s death. The inability to remarry for those affected by additional provision no. 10 (2) of Law no. 30/1981 was based on the fact that divorce was not permitted at the time. The institution of marriage was open to them in their capacity as heterosexuals. On the contrary, same-sex couples were absolutely prevented from marrying before Law no. 13/2005 since the institution of marriage was until then restricted to heterosexual couples. 28.  Furthermore, the court contended that the applicant could never have fulfilled the more uxorio marital cohabitation requirement established by additional provision no. 10 (2) of Law no. 30/ 1981 of, because only those who were in principle eligible for marriage but had been prevented from marrying for whatever reason could qualify for de facto marital cohabitation. The applicant and his partner could have never cohabited “as if married” before the entry into force of Law no. 13/2005, because before then they were ineligible for marriage as they were both male. 29.  The applicant lodged an appeal on points of law seeking harmonisation of the case-law (recurso de casación para la unificación de doctrina). In a decision of 27 June 2007, the Supreme Court (Social Chamber) declared the appeal inadmissible on the ground that the decision produced for purposes of comparison, specifically a judgment of the High Court of Justice of the Canary Islands of 7 November 2003, was not relevant. That decision was served on 26 July 2007. 30.  Relying on Articles 14 (principle of equality and prohibition of discrimination) and 24 § 1 (right to effective judicial protection), the applicant lodged an amparo appeal with the Constitutional Court. In a decision of 11 February 2009, served on 17 February 2009, the Constitutional Court declared the appeal inadmissible on the grounds that the applicant had failed to substantiate the special constitutional relevance of his complaints.


5.  The applicant was born in 1964 and is currently detained in a psychiatric hospital in Lippstadt. 6.  In 1979 the applicant forced two seven-year-old girls, and in 1980 a four-year-old girl, to undress and hit them with a stick. In 1981 the applicant forced a seven-year-old girl to undress and lay on top of the girl on a bench. The criminal proceedings relating to these offences were discontinued because of the applicant’s lack of criminal responsibility as a minor. 7.  On 21 January 1983 the Münster Regional Court convicted the applicant of attempted rape together with sexual assault and dangerous assault and of attempted murder and assault. Applying the criminal law relating to young offenders, it sentenced him to five years’ imprisonment and ordered his detention in a psychiatric hospital under Article 63 of the Criminal Code (see paragraph 28 below). 8.  The Regional Court found that on 22 June 1982 the applicant, then aged seventeen, had forced a fourteen-year-old girl to follow him into a forest where he had attempted to rape her, sexually assaulted her with a stick and then attempted to kill her by strangling her to cover up his offences. When, on return to the crime scene, he realised that his victim was not dead, he forcefully hit her buttocks with a branch. 9.  In the Regional Court’s finding, it was necessary to order the applicant’s detention in a psychiatric hospital under Article 63 of the Criminal Code. It considered that the applicant had acted with diminished criminal responsibility (Article 21 of the Criminal Code; see paragraph 27 below). Having regard to the findings of expert H., the court was convinced that the applicant had reduced mental capacities which had been caused by infantile brain damage. This damage, combined with failings in his upbringing (he had repeatedly been hit by his father with a stick himself), had caused a consciousness disorder and the sadistic sexual tendencies the applicant had disclosed in his offence. These disorders amounted to an “other serious mental abnormality” for the purposes of Articles 20 and 21 of the Criminal Code (see paragraphs 26-27 below). Moreover, a comprehensive assessment of the applicant’s personality revealed that, as a result of his condition and notably the sadistic tendencies which had manifested themselves in the offence of which he was found guilty, he could be expected to commit further unlawful acts and was therefore dangerous to the general public. 10.  Since 29 January 1983 the applicant has been detained in a psychiatric hospital. 11.  In December 1990, when the applicant was granted leave from detention, he attacked a twenty-six-year-old cyclist, threatened her with a knife and attempted to force her into a forest. He was chased away by a car driver. The criminal proceedings in this respect were discontinued with regard to his previous conviction. 12.  The courts dealing with the execution of sentences reviewed the applicant’s detention at regular intervals. In particular, on 5 February 2010 the Paderborn Regional Court ordered the applicant’s detention in a psychiatric hospital to continue. It had noted, in particular, that the applicant had refused therapeutic discussions. There was stagnation in the applicant’s treatment, the representatives of the psychiatric hospital having explained that they considered substantial changes in the applicant’s personality by sex therapy no longer possible. 13.  On 28 January 2011 the Paderborn Regional Court ordered the continuation of the applicant’s detention in a psychiatric hospital under Articles 67d and 67e of the Criminal Code (see paragraphs 29-31 below). 14.  The Regional Court noted that external psychiatric expert T., in his report dated 28 January 2010, had diagnosed the applicant, whom he had examined in person, with an abnormality of the sex chromosomes (so-called Klinefelter syndrome). The latter had most probably caused an endocrine personality syndrome characterised by retardation and disorders in the development of a person’s personality and by an insufficient internalisation of ethical rules. The applicant had therefore developed a dissocial and schizoid personality. It was unclear whether the applicant still suffered from sadistic paraphilia. The expert considered that the applicant’s retardation had partially been offset by hormonal treatment. Moreover, the applicant’s dissocial conduct and schizoid personality disorder had been alleviated by social therapy and psychotherapy. 15.  In assessing the risk emanating from the applicant, the expert considered that it had to be taken into account that the applicant had already committed a number of sadistic offences against children. Moreover, the seriousness of the offence of which the applicant had been convicted in 1983, and the attack on a woman at a time when he had already been detained in the psychiatric hospital in 1990, had to be taken into consideration. It appeared that it had not been possible to continuously pursue sex therapy with the applicant during his long psychiatric internment. There was a risk that, if the applicant were overstrained or frustrated, he might commit offences as a result of sadistic tendencies. The expert stated, however, that it was impossible for him to assess how far the applicant was still driven by sadistic fantasies. Consequently, the risk that the applicant would reoffend if released was difficult to assess and could only be determined in the course of further therapy. 16.  A representative of the psychiatric hospital, in submissions to the court dated 7 December 2010, confirmed that the applicant had spoken with a psychologist on his request. However, he was still unable to reflect on the motives for his offence. Therefore, it was difficult to assess how dangerous the applicant was; there was a risk that he would reoffend if released. Furthermore, the therapist responsible for the applicant confirmed that it was impossible to make a proper assessment of the danger posed by the applicant. 17.  The Regional Court, having heard the applicant and having regard to the evidence before it, considered that the continuation of the applicant’s detention in a psychiatric hospital had to be ordered. Despite the fact that the applicant had proved reliable during leave from detention during recent years, it could not be expected with sufficient probability that the applicant would not reoffend if released. In particular, it could not be ruled out that his sadistic tendencies persisted. The applicant was currently not undergoing therapy, in the proper sense of the term, and suffered from hospitalism. 18.  The Regional Court further considered that the continuation of the applicant’s detention was proportionate. In support of this view, it referred to the serious offence which had led to the applicant’s placement in a psychiatric hospital, to the fact that he had relapsed during the execution of his detention order and to the potential risk, as confirmed by the expert and the psychiatric hospital staff, that the applicant would reoffend if released. 19.  On 23 February 2011 the applicant lodged an appeal against the Regional Court’s decision. 20.  On 15 March 2011 the Hamm Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant’s appeal. 21.  By submissions dated 1 April 2011, the applicant lodged a constitutional complaint with the Federal Constitutional Court. He argued that his continued detention in a psychiatric hospital for more than twenty‑eight years was disproportionate and had therefore breached his constitutional right to liberty and the constitutional protection of the rule of law. It had been insufficient for the courts to base their assessment that he was currently still dangerous on offences dating back more than twenty‑eight years and on an incident during the execution of his detention order dating back more than twenty years. Moreover, the experts and courts had confirmed that he was no longer undergoing any therapy and that it was unclear whether he was still dangerous to the public. 22.  On 27 July 2011 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint, without giving reasons (file no. 2 BvR 735/11). 23.  The applicant underwent several courses of therapy, including social therapy and psychotherapy, during his detention in the psychiatric hospital. After the applicant had failed in his attempts to complete a sex therapy course on a number of occasions, the Lippstadt Psychiatric Hospital authorities decided to discontinue attempts at sex therapy for some time. The applicant was transferred to the so-called “long-stay” department of the hospital in 2006, where he was detained during the time covered by the proceedings at issue and where he did not undergo any sex therapy. The purpose of the applicant’s placement in the “long-stay” department was in fact to grant him a break from his failed attempts to complete sex therapy. He was being prepared for another attempt at completing sex therapy in psychotherapeutic one-to-one meetings with a psychologist. However, he had repeatedly declined offers to restart such individual or group therapy. 24.  The applicant has been working in the factory on the premises of the psychiatric hospital. When granted leave under escort several times per year, he has visited members of his family. 25.  On 18 January 2012 the Paderborn Regional Court, endorsing the reasons given in its previous decision, ordered the applicant’s continued detention in a psychiatric hospital. It agreed with the view expressed by the psychiatric hospital representative that sadism could not be cured and considered that there was a high risk that the applicant would again commit further serious offences against the life and sexual self-determination of others. On 20 March 2012 the Hamm Court of Appeal dismissed the applicant’s appeal.


5.  The applicant was born in 1963 and lives in Kavadarci. 6.  In April 2000, while criminal proceedings were pending against a certain Mr I.A., the latter sold a lorry (“the lorry”) to a company, M. 7.  On 13 June 2000 the Skopje Court of First Instance (“the Trial Court”) convicted Mr I.A. of smuggling nearly 9 tonnes of sugar, which he had transported in the lorry in November 1997. According to the Government, the court dismissed the prosecutor’s application to have the lorry confiscated, given that Mr I.A. had stated that he had already sold it. The court considered that the conditions for confiscation of the lorry under Article 68 (2) of the Criminal Code 1996 (see paragraph 21 below) had not been fulfilled: specifically it had not been established that the lorry could be used again to commit an offence; that the confiscation had been necessary for the protection of safety or for reasons of ethics; and that the lorry had been specially adjusted for the commission of specific type of offences. On 20 November 2001, following separate appeals by Mr I.A. and the public prosecutor, the Skopje Court of Appeal found the public prosecutor’s application immaterial (беспредметна) and quashed all aspects of this judgment. 8.  On 17 September 2003 the Trial Court convicted Mr I.A. in absentia. It fined him and ordered, under Article 278 (3) of the Criminal Code 1996, the confiscation of the lorry and the sugar (“the confiscation order”). In the absence of an appeal, the judgment became final on 29 October 2003. 9.  On 6 September 2004 the company M. sold the lorry to the applicant, who later registered the lorry in his name. 10.  On 12 June 2006 the Kavadarci Court of First Instance (“the first-instance court”) enforced the confiscation order of 17 September 2003 against the applicant and issued a record of enforcement (записник за извршување). 11.  On 15 November 2006 the applicant objected to the enforcement of the confiscation order, arguing that Mr I.A. had died on 21 March 2005 and that the confiscation order accordingly could not be enforced. There had been no injunction restricting the sale of the lorry. He had been the lawful owner and he had been making his living using the lorry. Lastly, he stated that he had sought, in separate civil proceedings, return of the lorry (see paragraph 14 below). 12.  On 20 November 2006 the execution-of-sanctions judge of the Trial Court rejected the objection as inadmissible, finding that the applicant had no procedural standing. It found that the confiscation order had been enforced in accordance with section 355 of the Enforcement of Sanctions Act (see paragraph 26 below). It further found that the applicant, as the third person from whom the lorry had been confiscated, could assume his rights under section 129(5) of the Criminal Proceedings Act (see paragraph 25 below). 13.  The applicant appealed. On 6 December 2006 a three-judge panel of the Trial Court dismissed his appeal reiterating that he had no right to object to the enforcement of the confiscation order. However, he had been entitled to claim, in civil proceedings, return of the lorry. Civil courts had jurisdiction, under section 129(5) of the Criminal Proceedings Act, to reverse a final confiscation order issued in criminal proceedings and order the return of the confiscated item. 14.  On 19 June 2006 the applicant submitted a civil claim seeking that the first-instance court declare him to be the owner of the lorry and to order the State to restore it to his possession. In the case of failure of his first claim, he sought that the State would reimburse him for the upgrades made to the lorry. In this latter context, he identified the upgrades that he had installed in the lorry. He further maintained that he was the bona fide and lawful owner of the lorry. He argued that the authorities had failed to seize the lorry immediately after the offence had been committed (на лице место) and to note a ban on the sale of the lorry on its registration certificate. As he was making his living off the lorry, he requested an injunction restricting the State from selling or otherwise disposing of the lorry until the final resolution of the dispute. 15.  By decisions of 29 June and 16 November 2006 respectively, the first-instance court and the Skopje Court of Appeal (“the second-instance court”) dismissed the applicant’s application for an injunction finding no evidence that in the absence of such a measure his claim would be considerably affected or that he would sustain irreparable damage. 16.  On 2 March 2007 the applicant informed the first-instance court that Mr I.A. had died in Austria in 2005. 17.  On 10 May 2007 the first-instance court dismissed the applicant’s claim. It established that Mr I.A., who knew that the lorry could have been confiscated, had sold it to the company M. At the relevant time, neither the manager of M. nor the applicant had known that the lorry had been used in the commission of the offence and that it had been subject to a confiscation order. Relying on Articles 68 and 278 (3) of the Criminal Code (see paragraphs 21 and 22 below), the court stated that:
“Confiscation is a safety measure, the typical aim of which is to remove conditions which are convenient for the commission of offences, and it is a condition for ordering such a measure that the offender has been sentenced, as in the present case. The court considers that it is mandatory to confiscate the [lorry] under the afore-mentioned provisions, because this safety measure has a wider influence [in the sense of] general deterrence of all future offenders of this type of offences, and otherwise the offenders would be encouraged, after the offence has been committed, to dispose of the means with which they committed the offence and, thus, to even acquire pecuniary benefit; furthermore that would have a negative influence on the ethics of the wider public, [that is to say] on general deterrence ...
... Given that from the evidence and the above-mentioned statutory provisions it has been established that the [lorry] in question was confiscated in favour of [the respondent State] in lawful proceedings, the court finds that the [respondent State] has therein obtained ownership of the [lorry] in question on the basis of a final and enforceable judgment ... in accordance with sections 112(2) and 154 of the [Property Act.]
For these reasons, the court dismisses the [applicant’s] main claim and also the alternative claim, because it concerns upgrades made to the [lorry].
On the other hand, the court considers that the [applicant], as the bona fide owner, can be indemnified for the value of the entire [lorry], including the upgrades, but solely from the offender, [Mr I.A.], in accordance with Article 68 (3) of the [Criminal Code], and not from the [respondent State] ...
The court dismisses as groundless the argument that at the moment of confiscation of the [lorry] in question it was not owned by [Mr I.A.] but by the [applicant] as the bona fide possessor (совесен владетел), given that from the evidence it was established that when the offence was committed the [lorry] was owned by [Mr I.A.] and the safety measure confiscation of the [lorry] was issued on those grounds. The court also considers groundless the [applicant’s] representative’s arguments that under section 129(5) of the Criminal Proceedings Act the final decision for confiscation of the [lorry] could be amended with a decision in civil proceedings if there were a dispute concerning the ownership of the confiscated items, given that this provision would have been applied if the [lorry] had been sold to the [applicant] before the offence was committed and had, under any legal basis, remained in the factual possession of the convicted [Mr I.A.] and he, after having sold it, committed the crime; but in the present case it is vice versa; firstly the offence was committed and then the [lorry] was sold.” 18.  The court also established that the applicant had upgraded the lorry to the value of 69,150 Macedonian denars (MKD). Furthermore, on the basis of the applicant’s and two witnesses’ statements, the court established that the applicant had bought the lorry for 4,300 euros (EUR). 19.  The applicant appealed. He stated that he had previously requested that the first-instance court obtain evidence from the Ministry of the Interior which would confirm that Mr I.A. had died in Austria in 2005. He argued that the domestic authorities had failed to ban Mr I.A. from disposing of the lorry or to seize the lorry at the time the offence had been discovered. He also argued that he was the bona fide owner and that he had obtained title to the lorry by adverse possession (одршка). The first-instance court had incorrectly applied section 129(5) of the Criminal Proceedings Act. The lorry had been confiscated nine years after the offence had been committed. The State had been unlawfully enriched by the value of the upgrades installed by the applicant. 20.  On 19 October 2007 Skopje Court of Appeal (“the second-instance court”) dismissed the applicant’s appeal finding no grounds to depart from the established facts and reasons given by the lower court. On 13 November 2007 this judgment was served on the applicant.


5.  The applicant was born in 1990. 6.  The applicant is a man who is intellectually disabled. On 14 February 2001 he was taken, with his two brothers, into public care by the child welfare authorities and placed temporarily with a foster family with whom they had already been living since August 2000. The foster family lived in a village situated about 50 km from the applicant’s home town, which is in the South of Finland. 7.  In June 2006 the foster family, the applicant and one of his brothers moved to a village in the North of Finland. The removal of the children was not authorised by the competent child welfare authority. In June 2007 the applicant finished his compulsory school education as a special needs student integrated into a normal school. Thereafter his foster parents planned to place him in a vocational school some 300 km away from their village, without authorisation by the competent child welfare authority. 8.  On 11 July 2007 the competent child welfare authority decided to remove the applicant from the foster family and to place him in a disabled children’s home in his home town in southern Finland. The authority found that the foster care had not been satisfactory in the light of the fact that the foster parents had made important decisions without consulting the child welfare authorities, such as moving north and planning to place the applicant in a vocational school 300 km away from their home. The foster parents brought an appeal in court against that decision, but the decision was upheld by the Administrative Court (hallinto-oikeus, förvaltningsdomstolen) on 18 February 2008 and subsequently by the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) on 10 December 2008. 9.  On 31 July 2007 the applicant was placed in a children’s home in his home town in southern Finland. One of his brothers was placed in the same home in the autumn of 2007. 10.  On 23 July 2008 the applicant turned 18. On 13 August 2008 he began studying at a local vocational school. On 4 November 2008 a mentor (edunvalvoja, intressebevakare) was appointed for the applicant for matters other than those pertaining to his person. The applicant could thus freely make his own decisions in matters pertaining to his own person. 11.  On 30 December 2008 the social welfare authorities requested the District Court (käräjäoikeus, tingsrätten) to appoint a mentor for the applicant also for matters pertaining to his person. The request was, inter alia, based on the fact that a conflict had emerged between the child welfare service and the applicant’s former foster parents as to where the applicant should live. The appointment of an external mentor was therefore needed in order to assess the applicant’s best interests and settle the matter accordingly. The applicant as well as his biological parents were heard before the court and none of them objected to the appointment of such a mentor. 12.  On 25 January 2009 the former foster parents took the applicant to the North of Finland, invoking his decision to move there to live with them. He considered them to be his real family. The next day, the social welfare authorities arrived with the police to fetch the applicant and to take him back, against his will, to his home town. He was placed in his home town in a special living unit for intellectually disabled adults. 13.  On 18 June 2009 the District Court, on the basis of the Guardianship Service Act, appointed a mentor for the applicant in matters concerning his property and economy, as well as matters pertaining to his person to the extent that the applicant was unable to understand their significance. The court found that, owing to his diminished mental faculties, the applicant was incapable of looking after his own interests and taking care of his personal affairs. The decision was based on medical records concerning the applicant’s level of development and on submissions according to which the applicant was gullible and keen on small children’s play. The appointed mentor was an official of the local public legal aid office entrusted with functions of this kind. 14.  On 7 February 2011, after having received a psychologist’s report dated 26 November 2010 on the applicant, the appointed mentor decided, against the applicant’s will, that it was in his best interests for him to live in his home town, where his family members also lived. He had better educational and work opportunities there than in the village in the North of Finland, where he only knew his elderly former foster parents. The applicant was given a possibility to go for holidays to his foster parents in the North of Finland. 15.  On 8 April 2011 the applicant asked the District Court to discharge the mentor appointed for him from her duties as far as matters pertaining to his place of residence and education were concerned. He requested that another person of his choosing be appointed as his mentor in those matters. 16.  On 22 June 2011 the District Court, having heard the applicant in person, as well as witnesses including the applicant’s mentor, his former foster mother, his brother and two staff members from his housing service, refused his request. In its judgment, the court put on record the various testimonies. According to the record of the testimony of the applicant’s mentor, she had discussed with the applicant his plan to move prior to her decision. The mentor was of the view that the applicant did not understand all the consequences of the plan, and did not realise that the good things in his present situation would not be relocated with him. In the light of all the circumstances, the mentor considered that the move would have been against the applicant’s interests. 17.  As regards the facts, the court recalled the background of the previous decision, taken on 18 June 2009 (see paragraphs 11 and 13 above). The court further noted that, according to an expert evaluation dated 26 November 2010 and established by a psychologist, the applicant’s decision-making skills were equal to those of a child aged between six and nine years. Consequently, the evaluation concluded that the applicant was not able to consider whether his plans about future were realistic and what consequences or implications they would have. The court noted that the applicant had told the court that he had no particular complaints about his current situation and that according to the witness statements he enjoyed his apartment and work in his home town. There was no evidence that the applicant’s situation in his home town was not good. The court found that the applicant clearly did not understand what it would be like to live in a remote part of the country, especially as he had previously lived there for only one year, and what the implications of the move would be for his situation. Moreover, the court found it uncertain how clear or strong the applicant’s will actually was, taking into account the evidence regarding his gullibility. It was likely that his opinion was influenced by that of the former foster parents. The applicant’s development had improved in his home town and he had been able to live in a special unit for intellectually disabled adults, to go to work and to cycle independently around town. The applicant had in his home town a support network consisting of relatives, friends and staff of the social welfare authorities, a job, hobbies and educational possibilities. Due to the remote and isolated location of the former foster parents’ home, the applicant would miss out on all these possibilities if he were to move there. The court further noted that according to the plan, the applicant would attend a vocational school far away from his new home, requiring daily long-distance trips each school day, more specifically a 15 km taxi ride to a bus station followed by a 70 km bus transport, and the reverse after school. The court was in doubt as to whether it was reasonable to expect that the applicant could cope with such demands on a daily basis. 18.  As matter of law, the District Court stated that as, on the evidence, the applicant was not able to understand the significance of the envisaged decision, the mentor was not required, or even permitted, to resolve the question of the applicant’s place of residence in accordance with the applicant’s own wishes. Under such circumstances the mentor was required to take the decision on the basis of an assessment of the applicant’s best interests. 19.  Taking into account the evidence and the factual findings referred to above (see paragraph 17 above), the District Court concluded that it was in the applicant’s best interests to remain in his home town. The mentor had not acted in breach of her powers and the District Court found no reason to replace the mentor by another person as regards matters concerning the applicant’s place of residence and his education. 20.  On 15 July 2011 the applicant lodged an appeal with the Turku Court of Appeal (hovioikeus, hovrätten). He pointed out that the Finnish Constitution guaranteed everyone the right to choose their place of residence. Moreover, a mentor had to enjoy the confidence of his or her client, which was not so in the present case. 21.  On 9 May 2012 the Turku Court of Appeal, after holding an oral hearing, rejected the applicant’s appeal and upheld the District Court’s decision by two votes to one. The Court of Appeal found no reason to deviate from the assessment of the evidence as conducted by the District Court and affirmed the conclusions reached by the latter. The dissenting judge found that the former foster mother had been the only adult with whom the applicant had had a long-standing and safe relationship in his life. The applicant had clearly understood the importance of this relationship in his life, he knew the former foster family and what life with them entailed, although he might not be able to understand all the implications of the envisaged move. When the applicant had been removed from the former foster family in 2007 and placed in a children’s home in Southern Finland, no specific reasons had been given as to why this measure had been in the applicant’s best interests. The decision taken subsequently by the mentor in February 2011 had merely confirmed the earlier decision. These decisions had created distrust between the applicant and his mentor. As both the present mentor and the proposed replacement were equally competent, the one who had the applicant’s trust should be chosen. 22.  By a letter dated 6 July 2012 the applicant lodged an appeal with the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already submitted before the Appeal Court. 23.  On 8 February 2013 the Supreme Court refused the applicant leave to appeal. 24.  According to the information provided by the Government, in July 2013 the applicant learned that his foster father had died and he attended his funeral in Northern Finland. From 2010 to 1 January 2015 the applicant resided in his home town in a block of flats providing special care for persons with intellectual disability. Since 2 January 2015 he has been residing in sheltered accommodation, in a small two-room flat. He is employed by his home town, undertaking work five days a week in a shelter for intellectually disabled people. He is a talkative, efficient and well-liked employee and fits in very well in the working community. 25.  The applicant’s former foster mother is in contact with the applicant via telephone but the frequency of their contact is not known. She moved to the eastern part of Finland before Christmas 2015 and invited the applicant to spend Christmas with her, but in the end he decided not to visit her. Instead, the applicant spent Christmas with his brother and other relatives. According to the Government, the applicant has not discussed the possibility of moving elsewhere for a long time. He is happy with his work and plays floorball twice a week as a hobby. The applicant states that he has stopped talking about his desire to move since there is no point in doing so, given the fact that the social welfare authorities do not want him to leave his home town. Although he now has a girlfriend in his home town, he maintains that his true and most sincere wish is still to live with or near to his former foster mother. There is nothing in his home town that keeps him there or makes him want to stay there.


4.  The applicant was born in 1984 and is detained in Saint-Petersburg. 5.  On 22 April 2004 he was arrested on suspicion of murder. 6.  On 24 April 2004 the Vyborgskiy Federal District Court of Saint-Petersburg authorised the applicant’s pre-trial detention. He remained in custody pending investigation and trial. 7.  On 7 February 2005 the District Court extended the applicant’s pre‑trial detention. The court referred to the gravity of charges, the applicant’s character, lack of permanent residence in Saint-Petersburg, and risk of absconding or re-offending. 8.  On 7 April 2005 the District Court returned the case to the prosecutor and extended the applicant’s detention without specifying any reasons. 9.  On 15 September 2005, 21 October 2005 and 15 December 2005 when extending pre-trial detention, the District Court reproduced the grounds for detention described above. 10.  On 2 March 2006 the Saint-Petersburg City Court quashed the detention order of 15 December 2005 and remitted the case for a fresh examination. 11.  On 16 March 2006, 22 March 2006 and 21 June 2006 the District Court extended the applicant’s detention referring to the gravity of charges, absence of permanent residence, his character, possibility of absconding and committing crimes. The applicant and his lawyer did not attend the hearing on 21 June 2006. 12.  On 30 June 2006 the Vyborgskiy District Court of Saint-Petersburg convicted the applicant of murder and theft. 13.  On 31 January 2007 the Saint-Petersburg City Court upheld his conviction on appeal. As regards the applicant’s appeal against the detention order of 21 June 2006, the court noted that the lower court had failed to ensure the applicant’s and his lawyer’s presence at the hearing of 21 June 2006. However, in view of the applicant’s conviction, it discontinued the appeal proceedings finding them unnecessary.


4.  The applicant was born in 1973 and lives in Baku. 5.  Demonstrations were planned to be held on 31 July 2010 and 10 March 2013 in Baku. 6.  On 23 July 2010 the organisers, consisting of several members of opposition parties, gave notice to the relevant authority, the Baku City Executive Authority (“the BCEA”), of the demonstration of 31 July 2010. It appears that no prior notice was given to the BCEA by the organisers of the demonstration of 10 March 2013. Information about that demonstration was disseminated via Facebook or the press. 7.  The BCEA refused to authorise the demonstration of 31 July 2010 at the places indicated by the organisers and proposed three other locations on the outskirts of Baku – a stadium situated in the Binagadi District, a square near Zigh Road in the Khatai District, and the yard of a driving school situated in the 20th habitable area of the Sabail District. The BCEA noted that of the locations proposed by the organisers at which to hold the assembly, the squares were all designated public leisure areas and the other places were areas with heavy traffic. 8.  The organisers nevertheless decided to hold the demonstrations in the centre of Baku. 9.  According to the applicant, the demonstrations were intended to be peaceful and were conducted in a peaceful manner. The participants of the demonstration of 31 July 2010 were demanding free and fair elections and democratic reforms in the country. The participants of the demonstration of 10 March 2013 were protesting over the deaths of numerous soldiers in the army. 10.  The applicant attended both demonstrations, but shortly after they had begun the police started to disperse those who had gathered. In both cases the applicant was arrested during the dispersal operation and was taken to a police station, where he was questioned. 11.  In both cases on the day of the applicant’s arrest, an administrative offence report (inzibati xəta haqqında protokol) was issued on him. In the first case the report stated that by deliberately failing to comply with a lawful order of the police, the applicant had committed an administrative offence under Article 310.1 of the Code of Administrative Offences (“the CAO”). In the second case he was charged with an administrative offence under Article 298.2 of the CAO (participation in a public assembly organised not in accordance with the law). 12.  According to the applicant, he was never served with copies of the administrative offence reports or with other material from his case files. In both cases he was not given access to a lawyer after the arrest or while he was in police custody. 13.  In the first case the applicant was brought before the Sabail District Court on 31 July 2010, the day of his arrest. In the second case he was held in police custody overnight and brought before the Sabail District Court on 11 March 2013, the day after his arrest. 14.  According to the applicant, the hearing before the court in both cases was very brief. In the second case members of the public were not allowed inside the courtroom, even though the court had not taken a formal decision to close the hearing to the public. 15.  According to the applicant, in both cases he was not given an opportunity to appoint a lawyer of his own choosing. 16.  At the court hearing in the first case the applicant was not represented by a lawyer. According to the material submitted to the Court by the parties, he refused legal assistance. 17.  It appears that at the court hearing in the second case a State-funded lawyer was invited to represent the applicant. None of the material submitted to the Court contain any records showing that the State-funded lawyer, Ms E.Z., made any oral or written submissions to the first-instance court. 18.  At the hearings in both cases the court did not question any witnesses. 19.  By a decision of 31 July 2010 the first-instance court convicted the applicant under Article 310.1 of the CAO and sentenced him to seven days’ administrative detention. By a decision of 11 March 2013 the same court convicted the applicant under Article 298.2 of the CAO and sentenced him to seven days’ administrative detention. 20.  On unspecified dates the applicant lodged appeals with the Baku Court of Appeal, arguing that his convictions were in violation of his rights because the demonstrations in which he had participated had been peaceful. The applicant also complained that his arrests had been unlawful and that the hearings before the first-instance court had not been fair. 21.  In the first case the applicant was not represented by a lawyer. In the second case the applicant prepared his appeal with the assistance of a lawyer of his own choosing, but that lawyer did not attend the hearing. 22.  On 16 August 2010 and 27 March 2013 respectively the Baku Court of Appeal dismissed the applicant’s appeals and upheld the decision of the first-instance court. 23.  According to the applicant, the decision of the Court of Appeal of 16 August 2010 was sent to him on 23 December 2010, after he complained that the court had failed to serve him with that decision.