6.  On 6 August 2003 the Cabinet of Ministers decided that Kryvorizhstal State Metallurgical Enterprise (hereinafter “Kryvorizhstal”) was to be privatised. At the time Kryvorizhstal was one of the world’s largest steel manufacturing companies, employing about 60,000 people and producing about 20% of Ukraine’s annual steel supply. On 4 November 2003 the Ministry of Economy and European Integration included Kryvorizhstal in a list of State-owned assets which were to be privatised. Subsequently, the Ministry of Industrial Policy and the State Commission on Securities and the Stock Market adopted decisions designed to ensure the privatisation of the enterprise. 7.  The applicant company was founded in April 2004 by nine private companies, five of which were owned or controlled by A., one of the leaders of the Party of Regions. Members of that party held the majority of posts in the Cabinet of Ministers in the period 2003-2004, including the post of Prime Minister. The remaining four companies were owned or controlled by P., the son-in-law of Mr L. Kuchma, the second President of Ukraine who held the post from 19 July 1994 to 23 January 2005. 8.  On 12 May 2004 the State Property Fund (“the Fund”) announced a bidding competition for the purchase of 93.02% of the share capital of Kryvorizhstal. A condition of bidding was that a bidder had to have produced one million tons of charcoal of Ukrainian origin and two million tons of steel in Ukraine in each of the three years preceding the competition. The applicant company took part in that competition. 9.  Out of six bids submitted by various companies, the Fund selected bids by the applicant company and Consortium Industrial Group, finding that these companies satisfied the conditions of the competition. 10.  On 14 June 2004 the applicant company was declared the winner (successful bidder) of the bidding competition. On the same day the applicant company concluded a purchase contract with the Fund and paid 4,260,000,000 Ukrainian hryvnas (UAH), the equivalent of about 608,000,000 euros (EUR) at the time, for the shares at issue. The shares were transferred to the applicant company’s deposit account at ING Bank Ukraine. 11.  On 23 July 2004 the applicant company appointed T. to represent it as the owner of the Kryvorizhstal shares and to complete the formalities of the transfer pursuant to the contract of 14 June 2004. 12.  Without any further specification or evidence, the applicant company stated that it had invested substantial financial resources in Kryvorizhstal during the period of its control. 13.  The lawfulness and transparency of the privatisation of Kryvorizhstal was contested by the political opposition, whose leaders in 2004 were Mr V. Yushchenko, Mrs Y. Tymoshenko and Mr O. Moroz. In their public statements, they all accused President Kuchma, P. and A. of fraud, and called for the enterprise to be returned to the State. 14.  During the 2004 presidential election campaign the issue was debated by two main rivals, Mr Yushchenko and Mr Yanukovych. Mr Yanukovych, whose candidature was openly supported by President Kuchma and A., insisted that the privatisation of Kryvorizhstal had been lawful and fair. 15.  Between late November 2004 and January 2005 a series of protests took place in the immediate aftermath of the run-off vote of the 2004 election, an election which, according to numerous national and international reports, was compromised by massive corruption, voter intimidation and direct electoral fraud. These events are commonly known as the Orange Revolution. 16.  Following the revote of 26 December 2004, Mr Yanukovych lost the election to Mr Yushchenko, who became the third President of Ukraine on 23 January 2005. On 24 January 2005 Mrs Tymoshenko was appointed to the post of interim Prime Minister. On 4 February 2005 the Verkhovna Rada (Ukrainian Parliament) approved the appointment of the new Cabinet of Ministers, headed by her. The Party of Regions formed the parliamentary opposition. 17.  According to different media reports submitted by the applicant company, between January and April 2005 President Yushchenko and Prime Minister Tymoshenko made public statements that the privatisation of Kryvorizhstal had been unlawful, and that the enterprise would be returned to the State and subsequently resold. 18.  In particular, in an interview of 26 January 2005 Prime Minister Tymoshenko said that “Ukrainian enterprises, like Kryvorizhstal, which had blatantly been stolen, had to be returned to the State.” 19.  On 4 February 2005 President Yushchenko made the following statement when addressing the Verkhovna Rada:
“...I promise that fair privatisation will be carried out this year. Those facilities which were stolen, starting with Kryvorizhstal, will be returned to the State ...” 20.  On 12 February 2005 the Cabinet of Ministers revoked its decision of 6 August 2003 by which the privatisation of Kryvorizhstal had been launched. On 15 February 2005 the Fund also revoked its decisions concerning the privatisation. 21.  On 8 June 2005 the State took control of Kryvorizhstal, pursuant to commercial court decisions declaring its privatisation unlawful (see paragraphs 51-53 and 56-57 below). By a decree of 11 June 2005, the Cabinet of Ministers declared the contract of 14 June 2004 invalid and withdrew the Kryvorizhstal shares from the applicant company. 22.  On an unspecified date the money paid for the shares in the enterprise in 2004 was returned to the applicant company. 23.  By two decrees of 23 June 2005, the Cabinet of Ministers launched the procedures for resale of 93.02% of Kryvorizhstal’s share capital. On 9 August 2005 it approved the bidding conditions. The next day the bidding competition was officially announced. 24.  The applicant company did not participate in the competition. Instead, it challenged the authorities’ decrees issued in February and June 2005 before the commercial courts and the courts of general jurisdiction, but to no avail. The applicant company did not provide any further details of those proceedings. 25.  On 24 October 2005 the bidding competition was completed by an auction, which was broadcast live by major television stations. Mittal Steel Germany GmbH was declared the successful bidder. On 28 October 2005 it concluded a purchase contract with the Fund and became the new owner of 93.02% of Kryvorizhstal’s share capital, for the price of UAH 24,200,000,000, the equivalent of about EUR 3,964,021,752 at the time. Eventually, Mittal Steel Germany GmbH was succeeded by ArcelorMittal Duisburg GmbH, which, according to the documents submitted by that company, made significant investments in Kryvorizhstal. 26.  According to the applicant company, after the 2004 election A. was targeted for his political expression and association. In particular, companies which he owned or controlled were subjected to various checks by the authorities. The authorities allegedly attempted to nationalise some of those companies, though they were unsuccessful. The applicant company submitted copies of several petitions to the domestic authorities made by third parties with a view to preventing the nationalisation of those companies. 27.  On 28 May, 3 and 11 June 2004 respectively, three private individuals, N., a lawyer practising in Kyiv, S. and Kh., members of Parliament, lodged with the Golosiivskyy District Court of Kyiv three separate administrative law complaints against the decisions of the Fund and the State Commission on Securities and the Stock Market concerning the organisation of the 2004 bidding competition, contending that those decisions had violated the right of every citizen to participate in the privatisation of State property. 28.  On an unspecified date the President of the Kyiv Court of Appeal transferred the case to the Pecherskyy District Court of Kyiv (“the Pecherskyy Court”). By separate decisions of 8 and 14 June 2004, the latter court refused to consider those complaints, and ordered that its decisions be immediately “enforced”. No copy of those decisions was provided to the Court. 29.  On 2 August 2004 the Kyiv Court of Appeal changed the decisions of 8 and 14 June 2004 in part by excluding the provisions concerning their immediate enforcement. 30.  On 14 June 2004 I., a private individual, and N. lodged with the Shevchenkivskyy District Court of Kyiv a claim against the Fund, the State Commission on Securities and the Stock Market, and ING Bank Ukraine, challenging the validity of their decisions and actions in connection with the privatisation of Kryvorizhstal. On an unspecified date the case was transferred to the Pecherskyy Court. 31.  At the claimants’ request, the applicant company was invited to participate in the proceedings as a third party. By letters of 20 October and 25 November 2004, the Pecherskyy district prosecutor applied to the court for leave to participate in the case to represent the interests of I. and those of the State. The prosecutor’s application was granted. 32.  On 25 June 2004 Consortium Industrial Group, the losing party in the 2004 bidding competition, instituted proceedings in the Kyiv Commercial Court against the applicant company, the Fund, the Ministry of Industrial Policy and the State Commission on Securities and the Stock Market, challenging the validity of the authorities’ decisions adopted in connection with the privatisation of Kryvorizhstal and the contract of 14 June 2004. It contended that the 2004 bidding competition had been unlawful and unfair. 33.  In particular, Consortium Industrial Group argued that the shares in Kryvorizhstal had not been issued in accordance with the law; that the competition had not been announced in due time; that the conditions of the competition had been too narrow and restrictive, thereby limiting the circle of potential bidders and disrespecting the statutory right of every citizen to participate in the privatisation of State assets; that the shares should have been sold through the stock exchange; and that its total offer, including the money it had planned to invest in Kryvorizhstal, had been higher than the amount paid by the applicant company for the shares in the enterprise. It also argued that, because the complaints by three private individuals against the decisions concerning the organisation of the 2004 bidding competition had been ongoing before the courts in the period May-June 2004, any decision adopted between 8 and 14 June 2004 in relation to the competition had been invalid. 34.  On 5 July 2004 the applicant company lodged a counterclaim against the other parties to the proceedings, asking the court to endorse its right to 93.02% of the Kryvorizhstal shares. 35.  By a procedural ruling of 20 July 2004, the Kyiv Commercial Court found that the Office of the Prosecutor General had to participate in the proceedings, and ordered it to designate a representative in the proceedings. Notwithstanding that ruling, no prosecutor appeared before the Kyiv Commercial Court or the Higher Commercial Court in 2004. 37.  On 19 August 2004 the Kyiv Commercial Court, having considered the arguments of Consortium Industrial Group in detail, dismissed them as unsubstantiated and found that the privatisation of Kryvorizhstal had been carried out in accordance with the relevant legislation. The court held, inter alia, that citizens’ rights to participate in the privatisation had not been restricted, since they had been free to establish companies and participate in the competition through such companies. It also stated that the complaints by the private individuals against the competition had not been lodged in accordance with the law, and thus had had no suspensive effect. The court further endorsed the applicant company’s property rights over the Kryvorizhstal shares, and banned any actions by the defendants which could violate these rights. 39.  On 22 October 2004 the Higher Commercial Court held a hearing in the presence of the parties’ representatives and upheld the judgment of 19 August 2004. The parties made no appeal to the Supreme Court against the decision of 22 October 2004. 40.  On 7 February 2005 the Prosecutor General lodged a cassation appeal in the interests of the State with the Supreme Court, alleging that the contested decisions of the Kyiv Commercial Court and the Higher Commercial Court concerned the rights and obligations of the Cabinet of Ministers. The Prosecutor General sought an extension of the time-limit for lodging his appeal, stating, without giving any further details, that he had missed it since he had only become aware of the decision of 22 October 2004 in the course of examining a complaint by S. to the Prosecutor General. According to the Government, the Office of the Prosecutor General had received that complaint on 30 December 2004, and it had been directed mainly against the decision of the Higher Commercial Court of 22 October 2004. 41.  In his appeal, the Prosecutor General mainly challenged the application of the law by the Kyiv Commercial Court and the Higher Commercial Court, and alleged that those courts’ decisions had been inconsistent with a decision of the Supreme Court in a similar case. He also stated that the courts had failed to invite the Cabinet of Ministers to take part in the proceedings, although the subject matter had concerned its functions under the relevant privatisation regulations. 42.  On 17 February 2005 the Supreme Court granted the extension requested and opened the proceedings on the merits of the Prosecutor General’s cassation appeal. No copy of that procedural ruling was provided to the Court. 43.  On 1 March 2005 the Supreme Court allowed the appeal by the Prosecutor General, quashed the decisions of the lower courts, and remitted the case for fresh consideration. It found that under Ukrainian law neither Consortium Industrial Group nor the applicant company had been eligible to participate in the 2004 bidding competition; that the competition had not been announced in due time, as required by law; and that the lower courts, when allowing the applicant company’s counterclaim, had erred in applying the rules of procedure, which stated that no counterclaim could be lodged by a defendant against another defendant in the proceedings. 44.  On 21 March 2005 the Deputy Prosecutor General lodged with the Kyiv Commercial Court, to which the case had been remitted, a claim in the interests of the State and on behalf of the Fund against the applicant company, the Ministry of Industrial Policy, and the State Commission on Securities and the Stock Market. His claim was directed against the decisions concerning the privatisation of Kryvorizhstal and the contract of 14 June 2004. He also sought the return of the Kryvorizhstal shares to the Fund, and asked the court to seize the shares as a temporary measure until the dispute was finally resolved. 45.  The Deputy Prosecutor General argued that the 2004 bidding competition had not been organised in a lawful and fair way, particularly regarding the conditions which the potential bidders had had to satisfy. He further submitted that the bidders whose offers had been chosen had not satisfied the legislative requirements for participating in that competition. 46.  On 23 March 2005 the court held a hearing in camera at which it decided to open the proceedings and invite the parties to submit their arguments on the case. It also scheduled the next hearing for 1 April 2005. 47.  On 1 April 2005 the court ordered that ING Bank Ukraine, where the shares at issue had been deposited, participate in the case as a defendant. The Office of the General Prosecutor was granted leave to take part in the proceedings as a third party on behalf of the Cabinet of Ministers. 48.  On 15 April 2005 the applicant company requested that the court allow journalists to attend the hearings in the case. The court rejected that application, finding that the journalists had not obtained official authorisation from the court administration. 50.  On 21 April 2005 a copy of the Pecherskyy Court’s decision of 21 April 2005 (see paragraph 83 below) was included in the case file and examined by the court at a hearing on the same day. 51.  On 22 April 2005 the court delivered a judgment in the case whereby it allowed the claims of Consortium Industrial Group and the Office of the Prosecutor General, which it found to be of the same nature. It annulled the authorities’ decisions concerning the 2004 privatisation and the contract of 14 June 2004, and ordered the Fund to return the money paid by the applicant company for the Kryvorizhstal shares. The applicant company’s counterclaim was rejected, and it was ordered to return the shares to the Fund and pay UAH 1,903, the equivalent of about EUR 291 at the time, to the State for costs and expenses. 52.  The court held that the Fund had failed to announce the competition in due time; that it had unlawfully introduced a condition concerning the production of charcoal and steel; that the Fund had failed to set out specific conditions of sale of certain number of the Kryvorizhstal shares outside the bidding competition; that the Fund’s decisions issued between 8 and 14 June 2004 in relation to the competition had been invalid, as the complaints of three private individuals against the decisions concerning the organisation of the 2004 bidding competition had been ongoing before the courts during that period; and that the applicant company and Consortium Industrial Group had unlawfully been allowed to participate in the competition. 53.  By a procedural ruling of 28 April 2005, the same court seized the shares at issue. On the same day, bailiffs started enforcement proceedings in respect of that ruling. 54.  The applicant company appealed against the judgment of 22 April 2005 and the ruling of 28 April 2005. According to the text of the Kyiv Commercial Court of Appeal’s decision of 2 June 2005 (see paragraph 56 below), the applicant company contended that the Kyiv Commercial Court had wrongly established the circumstances of the case, and that it had erred in applying the law. The applicant company further challenged the lawfulness of the bailiffs’ actions as regards enforcement of the ruling of 28 April 2005. No copy of the applicant company’s appeal was provided to the Court. 55.  In the appeal proceedings, the applicant company asked the Kyiv Commercial Court of Appeal to suspend the proceedings before the commercial courts pending the outcome of the proceedings before the courts of general jurisdiction (see paragraphs 81-87 below). The court rejected that application on the grounds that the latter proceedings were not decisive for the outcome of the commercial case. 56.  On 2 June 2005 the Kyiv Commercial Court of Appeal changed the judgment of 22 April 2005 in part. In particular, the appeal court found that the claims by Consortium Industrial Group had to be rejected, as it had not been eligible to participate in the 2004 bidding competition. The applicant company’s appeal was dismissed as unsubstantiated. 57.  By the same decision, the appeal court annulled the ruling of 28 April 2005 for non-compliance with the procedural rules, and refused to consider the applicant company’s complaints against the bailiffs, on the basis that the matter fell outside its jurisdiction. The court further ruled to seize the Kryvorizhstal shares for the purpose of securing the claim by the Office of the Prosecutor General. 58.  The applicant company appealed in cassation. No copy of the cassation appeal was provided to the Court. 59.  On 21 July 2005 the Higher Commercial Court rejected the applicant company’s cassation appeal as unsubstantiated. 60.  On 31 August 2005 a panel of three judges of the Supreme Court rejected the applicant company’s further cassation appeal. No copy of that appeal was provided to the Court. 61.  In the course of the proceedings before the commercial courts between February and June 2005 the applicant company challenged the impartiality of the judges and the courts dealing with its case on a number of occasions, alleging that their decisions and actions were influenced by government officials. According to the text of the judgment of the Kyiv Commercial Court of 22 April 2005 and the decision of the Kyiv Commercial Court of Appeal of 2 June 2005 (see paragraphs 51-52 and 56‑57 above), the applicant company’s procedural applications were rejected as unsubstantiated. No further explanation in that regard was given by the courts. 62.  After 1 March 2005, and while the applicant company’s case was being considered by the commercial courts, the President and the Prime Minister made a number of public statements concerning the proceedings. The applicant company submitted different media reports reproducing and/or interpreting those statements. The Government argued that some of the reports had not interpreted the statements accurately. In particular, they referred to the reports concerning the Prime Minister’s press conference of 5 April 2005, at which she had made statements as to when the ongoing proceedings before the Kyiv Commercial Court might be completed. 63.  According to a number of other reports, at a press conference of 11 April 2005 the Prime Minister said:
“... Facilities such as Kryvorizhstal ... I think that today the [authorities] are involved in the court proceedings concerning the return of those assets to the State. We are confident that we have a clear position [in relation to the case], and these enterprises will be returned to the State ...”
In an interview of 14 April 2005 the President stated:
“... If the owners refuse to cooperate voluntarily, we will go down the legal route and will undoubtedly win [the case]. [However,] this will take several months...
The facility has been stolen, and the cost of that theft is several billion [United States] dollars. For me, this is a fact...
We prepare the terms of a new [bidding] competition...” 64.  On 23 April 2005, commenting on the possibility that the applicant company could appeal against the judgment of 22 April 2005, the Prime Minister stated:
“... This will be an important decision by the appeal [court]. It will be evidence not only of the court’s objectivity, but also of the [past] negotiations behind closed doors between various representatives from the authorities and the business...” 65.  In July 2004 Consortium Industrial Group instituted proceedings in the Pecherskyy Court against the applicant company, the Fund, the Ministry of Industrial Policy and the State Commission on Securities and the Stock Market, challenging the validity of the authorities’ decisions issued in connection with the privatisation of Kryvorizhstal and the contract of 14 June 2004. Consortium Industrial Group relied mainly on the same circumstances and considerations referred to in its claims before the commercial courts. Its claims before the courts of general jurisdiction contained an additional element – a challenge to the validity of T.’s appointment on 23 July 2004 as the applicant company’s representative in the procedures following the 2004 bidding competition. 66.  T. took part in the proceedings as a defendant. Kryvorizhstal participated in the proceedings as a third party. 67.  On 25 August 2004 the court delivered a judgment dismissing the claims of Consortium Industrial Group. For the most part, it contained identical reasons to those in the judgment of the Kyiv Commercial Court of 19 August 2004 (see paragraph 37 above). 68.  On 1 and 27 December 2004 respectively the Kyiv Court of Appeal and a panel of three judges of the Supreme Court upheld the judgment of 25 August 2004. 69.  On 9 February 2005 N. lodged an application for review of the above case with the Pecherskyy Court, in the light of newly discovered circumstances. In particular, she argued that the findings concerning the right of every citizen to participate in the privatisation of State assets contained in the judgment of 25 August 2004 had been contrary to the judgment of the Constitutional Court of 1 December 2004 (see paragraph 99 below). She also contended that the courts had not been aware of the fact that the decisions of the Pecherskyy Court of 8 and 14 June 2004 had been challenged on appeal, and thus they had not become final before 2 August 2004. 70.  N.’s application was dealt with by the same judge of the Pecherskyy Court who had sat in the main proceedings. 71.  By a telegram of 15 February 2005, the court informed the applicant company that the next day it would hold a hearing, at the request of N.. 72.  On 15 February 2005 the applicant company lodged with the court an application to consult the case file. The application was not granted. 73.  On 16 February 2005 the court held a hearing on the merits of N.’s application. Consortium Industrial Group, T., the State Commission on Securities and the Stock Market and Kryvorizhstal, who had been the parties to the main proceedings, did not take part in the hearing. 74.  The representatives of the applicant company requested leave to consult the case file and the adjournment of the hearing on the grounds that they had not been informed about the merits of the application before the hearing, and accordingly had not been able to prepare for it. They also sought the withdrawal of the judge dealing with the case, challenging her impartiality. 75.  The judge rejected the applications by the applicant company’s representatives, and read out the application by N. 76.  The applicant company’s representatives objected to the application, arguing that N. was not entitled to ask for a review of the case, since she had not been a party to the original proceedings, and there were no newly discovered circumstances or other reasons capable of warranting the reopening of the proceedings. 77.  The applicant company’s representatives did not receive a copy of the application either before or during the hearing. 78.  On 17 February 2005 the court allowed the application. It found that the right of every citizen, including that of N., to participate in privatisation and challenge its lawfulness had been confirmed by the judgment of the Constitutional Court of 1 December 2004. It also held that the ruling of 8 June 2004 on N.’s complaint concerning the 2004 competition had not entered into force at the time when the competition had taken place, and thus it could not have served as one of the grounds for rejecting the claims by Consortium Industrial Group. 79.  The court quashed its judgment of 25 August 2004 and held that the higher courts’ decisions of 1 and 27 December 2004 were no longer valid. 80.  On an unspecified date the case was transferred to another judge of the Pecherskyy Court for fresh examination. 81.  On 28 February 2005, following an application by N., the Pecherskyy Court decided to examine the claims of I., N., and Consortium Industrial Group (see paragraphs 30 and 65 above) jointly, holding that they were of the same nature and concerned the same defendants. 82.  On an unspecified date the applicant company lodged an application for review of the ruling of 17 February 2005 with the same court, in the light of newly discovered circumstances. 83.  On 21 April 2005 the court granted the application by the applicant company, quashed the ruling of 17 February 2005, and rejected N.’s application of 9 February 2005 on the grounds that she had not participated in the original proceedings concerning the claims by Consortium Industrial Group. 84.  By a separate ruling of the same date, the court rejected the claims by I. and N., finding that they had not participated in the 2004 bidding competition and did not have an arguable claim in respect of the subject matter of the proceedings. The court held that their claims represented a disguised attempt to settle a dispute between legal entities falling within the jurisdiction of commercial courts. 85.  By decisions of 20 and 27 July 2005, the Kyiv Court of Appeal quashed the ruling of 21 April 2005, stating that, in the light of newly discovered circumstances, the ruling of 17 February 2005 was not to be reviewed, and that, with regard to Article 6 of the Convention, the Pecherskyy Court had unlawfully limited I.’s and N.’s right of access to a court. 86.  On 15 October 2007 the Donetsk Regional Court of Appeal, acting as a court of cassation, upheld the decisions of 20 and 27 July 2005. 87.  The case was remitted to the Pecherskyy Court, which on 6 February 2008 decided not to examine the claim of Consortium Industrial Group, because its representatives had failed to appear before the court. 88.  No appeal was lodged against the decision of 6 February 2008. According to the Government, on the basis of that decision the joined proceedings before the courts of general jurisdiction were terminated. The applicant company did not contest this.


7.  The applicants are fifty Russian nationals. Their dates of birth and places of residence are listed in Appendixes I, II, III and IV. 8.  The applicants are former military servicemen. They all obtained final court decisions in their favour ordering military units to provide them with housing before their dismissal from military service. The respective court orders’ details, such as dates of the judgments and their entry into force and the respective court’s names, are summarised in the Appendixes. 9.  In some cases the defendants were subsequently replaced by the Housing Provision Department of the Ministry of Defense. 10.  The judgment in case of Mr Nazarov has remained unenforced to date. The judgments in favour of other applicants were enforced on the dates listed in the Appendixes below. 11.  Pursuant to the judgment in favour of Mr Medinskiy (Appendix III) the authorities decided to allocate a flat to the applicant on 6 November 2015. According to the transfer and acceptance act, the applicant accepted the flat on 20 November 2015. On 21 January 2016 he registered his title to the flat. 12.  Pursuant to the judgment in favour of Mr Vedernikov (Appendix III) the authorities decided to allocate a flat to the applicant on 27 October 2015. According to the transfer and acceptance act, the applicant accepted the flat on 13 November 2015. On 11 January 2016 he registered his title to the flat. 13.  Since 1999 Mr Nazarov owned a ¼ share in a flat (15 sq.m.) in Pushkino, the Moscow Region. In 2007 the housing commission of the military unit considered his housing situation, noted his title to a share in the flat and decided to put the applicant on the list of persons in need of housing. 14.  On 13 January 2009 the Military Court of the Moscow Garrison ordered the housing commission of the military unit to provide him with housing in Moscow, as indicated in the appended table. On 27 January 2011 the same court replaced the defendant by the Housing Provision Department of the Ministry of Defense. 15.  Between 18 August 2009 and 24 June 2011 the applicant had a ½ share in tenancy of a flat in the Smolensk Region. 16.  On 25 April 2013 the Hosing Department of the Ministry of Defense found that overall size of the applicant’s living premises (see paragraphs 13 and 15 above) exceeded the housing norms for the respective region. Accordingly, the debtor authority decided to strike his name off the list of persons in need of housing. 17.  On 24 February 2014 the Military Court of the Moscow Garrison and on 26 June 2014 the appeal court upheld lawfulness of the above decision. 18.  In the meantime, the defendant twice applied to the domestic courts with a request for termination of the enforcement proceedings, as the applicant’s name had been removed from the list of persons in need of housing, and there had “no longer been a possibility to enforce the judgment”. 19.  On 29 November 2013 the Presnenskiy District Court allowed the request. On 14 April 2014 the Moscow City Court quashed the lower court’s decision on appeal and issued a new ruling dismissing the request in full. The court found that the first-instance court had incorrectly interpreted the applicable law. There was no evidence that the judgment in the applicant’s favour could no longer be enforced. It was not quashed or amended. A “loss of a possibility to enforce” should have been “of an objective nature” and could not be conditional on the circumstances depending on the debtor itself. The defendant’s arguments were rather indicative of its disagreement with the court’s findings in the judgment of 13 January 2009, but did not constitute a ground for termination of the enforcement proceedings. 20.  On 23 December 2014 the first-instance court and on 4 September 2015 the Moscow City Court acting as an appeal instance rejected the defendant’s new request to terminate the enforcement, based this time, inter alia, on the judgment of 24 February 2014 (see paragraph 17 above). The courts gave the same reasons for the refusal as in the previous round of the similar proceedings. 21.  In 2016 the defendant again requested the court to terminate the enforcement proceedings, the application being lodged this time with a military court. The registry of the military court sent to the applicant notifications of the hearing by registered mail and by telegram to his known address. The notifications had not been delivered as the flat was closed. On 20 December 2016 the registry of the court informed the applicant of the date and place of the hearing by phone, as confirmed by a “telephonogram” (a telephone conversation record). The applicant stated in the telephone conversation that he had no longer lived at the address he had provided to the court and had refused to give his new address. 22.  On 21 December 2016 the Military Court of the Moscow Garrison granted the request. With reference to the judgment of 24 February 2014 (see paragraph 17 above) it found established that as of 25 April 2013 the applicant had no longer been in need of the housing, which meant that the defendant had no longer had a possibility to enforce the judgment of 2 February 2009. 23.  The applicant was not present at the hearing. The decision specified that he had been duly notified of the date and time of the examination of the case. 24.  On 23 December 2016 he collected the telegram (see paragraph 21 above) from the post office. 25.  The applicant appealed, referring, inter alia, to the two earlier decisions on the same matter rejecting the defendant’s similar requests, and argued that he had not been duly notified of the hearing in his case. 26.  On 16 February 2017 the Civil Division of the Military Court of the Moscow Command upheld the decision on appeal. It found, inter alia, that the defendant’s prolonged failure to take actions to enforce the judgment in the applicant’s favour did not have any bearing on the lawfulness of the decision to discontinue the enforcement, as since 2013 the applicant had no longer been entitled to State housing. The proceedings were held in written form. 27.  As regards the absence from the first-instance hearing, the appeal court noted that the notifications of the hearing had been sent to the applicant by registered mail and by telegram to his known address, but had not been delivered as the flat had been closed and the applicant had failed to collect the telegram pursuant to a notification thereof. Further, on 20 December 2016 he was informed of the date and the place of the hearing by phone. The court also noted his reply in the telephone conversation that he had no longer lived at the address he had provided to the court, as well as his refusal to provide his new address, and rejected the complaint. 28.  On 3 May 2017 a judge of the Military Court of the Moscow Command rejected the applicant’s first leave for cassation appeal. The judge found, in particular, that the decisions of the Presnenskiy District court referred to in paragraphs 19 and 20 had not had a res judicata effect on the proceedings as the domestic law did not prohibit the debtor from lodging a repeated request for termination of the enforcement proceedings. 29.  On 20 July 2017 a judge of the Supreme Court of the Russian Federation refused to grant leave for the second cassation appeal against the decision of 21 December 2016. 30.  On 15 March 2015 the applicant Mr Bazhenov (Appendix II) died. On 23 May 2015 his widow, Ms Leyla Khalilyevna Bazhenova, born on 13 July 1973, expressed a wish to maintain the application in his stead, and submitted a copy of the certificate confirming that she was her late husband’s legal heir. 31.  Two applicants, Mr Balyas and Mr Golovachev, withdrew their complaints on the dates specified in Appendix IV.


5.  The applicant was born in 1984 and lives in Gebze. 6.  On 17 August 2002 a certain H.A. was found dead in a junkyard. The police initiated an investigation into the matter to find the perpetrators. 7.  On 20 August 2002 the applicant, a minor at the time, was brought to the police headquarters, where he was searched. Following the search, he went through a medical examination. The report drawn up after that examination noted that he did not have any complaints and that there were no signs of injury on his body. 8.  On 21 August 2002 at 1.30 p.m. another report was issued in respect of the applicant, indicating that there were no traces of ill-treatment on him. He was released afterwards. 9.  The same day the applicant’s house was searched by the police, who seized certain objects. The search records prepared by the police noted that the applicant was suspected of having committed the crime. 10.  At around 11 p.m. the applicant was brought to the police headquarters once again, together with some others. 11.  On 22 August 2002 he gave his statements before the police in the absence of a lawyer and indicated that he had spent the day with his friends on 16 August 2002, the day H.A. had been killed. The medical report prepared following his examination reiterated the findings of the previous reports, noting no signs of injury on his body. Several members of the applicant’s family were also questioned the same day. The applicant and the others were all released after their questioning. 12.  On 26 August 2002 the applicant turned eighteen years of age. 13.  On 20 September 2002 the applicant was questioned by the police once again. In the absence of a lawyer, he submitted that he had known H.A. as the grandmother of one of his friends and that when he had heard of the murder, he had speculated with his friends that she could have been killed for the jewellery she wore. 14.  A police report prepared on 11 October 2002 established that according to the results of a DNA test, the blood stains on a tile-cutting machine found at the applicant’s house matched the sample tissues taken from the deceased. Subsequently, the applicant, other members of his family and his friend A.S. were arrested. The search and arrest records held by the police noted that all of those arrested had been placed in police custody following their medical examinations. The medical report concerning the applicant noted no signs of injury. 15.  On 12 October 2002 the police conducted a reconstruction of the events at the applicant’s house, during which he confessed to having killed H.A. He maintained that he had hit her on the head with a wooden club in the basement of their house, with the intention of stealing her jewellery, and that he had put her in a nylon bag afterwards as he had panicked. He went on to describe in detail how he had disposed of the body and showed the police the pushcart he had used to that effect. According to the police records bearing the applicant’s signature, the applicant did not benefit from the assistance of a lawyer during the reconstruction of events and was not informed of his rights to request legal assistance and to remain silent. 16.  Subsequently, the applicant was taken back to police station, where he reiterated his confession in the absence of a lawyer. He also added certain details such as the locations of the jewellery stores in Istanbul and İzmir where he had changed the deceased’s jewellery, and how he had spent the money in İzmir with his friend A.S., who had not known how he had obtained it. His statements were transcribed on a form, on the first page of which there was a pre-printed message stating, inter alia, that the person being questioned had been informed of his right to remain silent and to choose a lawyer, and that he refused legal assistance. 17.  On 13 October 2002, at the end of the applicant’s police custody, another medical report was drawn up, again indicating no signs of ill‑treatment on his body. 18.  On 13 October 2002 the applicant was questioned by the Gebze Public Prosecutor. Pursuant to his request, he was assisted by a lawyer appointed by the Bar Association during the questioning. He reiterated his previous statements and maintained that he accepted those he had made before the police. He argued, however, that electric shocks had been administered to him through his penis and small toe during his time in police custody. 19.  A medical examination conducted pursuant to the Public Prosecutor’s request revealed no traces of injury on the applicant’s penis, small toe or any other part of his body. 20.  On the same day the applicant repeated his previous statements before the investigating judge and claimed once again that he had been subjected to electric shocks while in police custody. He was subsequently placed in detention on remand. 21.  On 22 October 2002 the Public Prosecutor filed an indictment with the Gebze Assize Court, accusing the applicant of murder and robbery. 22.  At the first hearing held on 19 November 2002, the applicant denied his previous statements and argued that he had had to confess to having committed the murder as a result of the ill-treatment inflicted on him. He requested that the appointed lawyer who had been present during his questioning by the Public Prosecutor and the investigating judge be heard as a witness. The court rejected that request. 23.  In a petition dated 11 September 2003, the applicant argued that he had been coerced into making self-incriminating statements, in that he had been subjected to ill-treatment and psychological duress by the police, who had threatened him with bringing charges against his family members if he did not confess to having murdered H.A. He submitted that his waiver of his right to legal assistance had not been unequivocal, which had been proven by the fact that he had requested a lawyer before the Public Prosecutor, as soon as his police custody ended. He further contested the relevance of the DNA examination with regard to the tile-cutting machine, arguing that the court should conduct an examination of the wooden club indicated in his police statements, in order to prove that his confessions had not been genuine. 24.  On 16 October 2003 the Gebze Assize Court held that it lacked jurisdiction and forwarded the case to the Kocaeli Juvenile Court as the applicant had been a minor at the time of the murder. During the course of the thirteen hearings before it, the Assize Court obtained a report from the Istanbul Forensics Institute and heard all the police officers involved in the applicant’s questioning. It further examined two witnesses, namely, the owners of the jewellery stores described by the applicant, who stated that they had not seen him before. 25.  During the course of the hearings before the Juvenile Court, the applicant requested the court to obtain a new forensics report, claiming that there were discrepancies between the police report and that prepared by the Istanbul Forensics Institute, as the latter noted that no blood sample could be found on either the tile-cutting machine or the wooden club. The court rejected that request. Nevertheless, it re-examined and accepted the applicant’s request to have the appointed lawyer heard. In his statements before the court, that lawyer submitted that he had first seen the applicant during the interview at the Public Prosecutor’s office and had suspected that he might have been ill-treated as he had been nervous. The court also heard a number of other witnesses, including his friend A.S., who indicated that the applicant had spent a considerable amount of money in İzmir. 26.  In his submissions before the Juvenile Court, the applicant maintained that he had not been assigned a lawyer while in police custody and claimed that he had been coerced into making a false confession although he had not committed the murder. He added that he had withdrawn the money he had spent after the events with his father’s debit card. Following that latter submission, the court obtained the transcripts of the applicant’s father’s bank account, which showed no such transaction. 27.  On 31 May 2004 the Juvenile Court found the applicant guilty as charged and sentenced him to twenty-six years and eight months’ imprisonment. The court noted that it did not take account of the statements made by the applicant during his questioning by the police, as in any event it found him guilty on the basis of his subsequent statements confessing his acts, the records of the reconstruction of events, the forensics reports, the statements of A.S., and the bank transcripts which rebutted his defence with regard to the money he had spent after the murder. 28.  The applicant appealed against the judgment, arguing that he might have made contradictory remarks as he had been confused with the questions of the judges. Reiterating his submissions with regard to his alleged ill-treatment, he maintained that he had not been assigned a lawyer while in police custody although he had requested one. 29.  On 16 June 2005 the Court of Cassation quashed the judgment, finding that the applicant’s sentence needed to be re-evaluated in the light of the new Penal Code, which had entered into force following the judgment. 30.  On 27 July 2005 the Juvenile Court sentenced the applicant to a total of twenty-one years’ imprisonment. On 12 October 2006 the Court of Cassation quashed the judgment once again, this time as a result of the Juvenile Court’s failure to hold a hearing while re-evaluating the sentence. 31.  On 15 February 2007, after holding a hearing and assessing the applicant’s final submissions, the Juvenile Court sentenced him to twenty-one years’ imprisonment for murder and robbery. That judgment was upheld by the Court of Cassation on 19 July 2007.


6.  The first applicant was born in 1976 and is serving a sentence of imprisonment in the Sverdlovsk region. The second applicant was born in 1950 and lives in Vladivostok. 7.  In July 2012 the first applicant’s employer, the prosecutor’s office of the Primorskiy Region, provided him with a flat and concluded a tenancy agreement with him. The second applicant was included in the agreement as a member of the first applicant’s family. 8.  In August 2012 the second applicant was classified as having a first‑degree disability. 9.  On 7 October 2014 the first applicant retired from the prosecutor’s office. On the same date he applied to the General Prosecutor of the Russian Federation with a request for the transfer of the title to the flat in question to him. 10.  On 8 October 2014 criminal proceedings were initiated against the first applicant in respect of a suspected criminal offence. On the same date he was arrested and on 10 October 2014 he was detained pending investigation. On an unspecified date in 2016 the first applicant was released and placed under house arrest. 11.  On 21 November 2014 the first applicant’s request for the transfer of the title to flat in question to him was refused. 12.  On 25 November 2014 the first applicant received notice to vacate the flat by 5 December 2014. 13.  On 26 November 2014 the first applicant’s brother received notice to vacate the flat (the notice was addressed by the prosecutor’s office to the second applicant). 14.  In December 2014 the prosecutor’s office brought eviction claims against the applicants on the grounds that the first applicant no longer worked for the prosecutor’s office and that therefore, he and his family had to vacate the flat. 15.  The first applicant contested those claims. He submitted that it would be unlawful to evict him and his mother because he, as a retired prosecutor, had a right to acquire ownership of the flat in question. He and his mother had no other housing. In addition, his mother was a retired person and had a first-degree disability. 16.  On 27 February 2015 the Frunzenskiy District Court (“the District Court”) dismissed the eviction claims. The prosecutor’s office appealed against that judgment to the Primorskiy Regional Court (“the Regional Court”). 17.  On 8 June 2015 the Regional Court quashed the judgment of 27 February 2015 and delivered a new decision ordering the applicants’ eviction, with no alternative accommodation being provided. The first applicant was represented by a lawyer, K. The second applicant was not present and was not represented in those proceedings. In particular, the Regional Court found that the first applicant and his mother had been provided with a flat for the period of the first applicant’s service in the prosecutor’s office. Under domestic law and the terms of the agreement, the tenants had had to vacate the housing after the termination of the agreement and in the event of their refusal they had had to be evicted with no alternative accommodation being provided. As at the date of the examination of the eviction claims the first applicant had not applied to the Prosecutor General of the Russian Federation for title to the flat in question to be transferred to him; therefore, the District’s Court conclusion as to the absence of any obstacles to the transfer of ownership of the flat in question to the first applicant was in conflict with the circumstances established in the case. As at the date of the examination of the prosecutor’s appeal the question regarding the transfer of ownership of the flat in question to the first applicant had not been decided. 18.  The first applicant lodged a cassation appeal against that decision with the presidium of the Regional Court. He complained that the hearing of 8 June 2015 had been held in his absence and that as a result he had been evicted from the only accommodation he had had. 19.  On 22 July 2015 a judge of the Regional Court refused to refer the first applicant’s appeal to the Civil Chamber of the Regional Court for examination on the merits. The first applicant lodged a cassation appeal with the Supreme Court of the Russian Federation. 20.  On 22 September 2015 the second applicant was evicted from the flat. 21.  On 30 September 2015 a judge of the Supreme Court refused to refer the first applicant’s cassation appeal to the Civil Chamber of the Supreme Court for examination. 22.  In June 2015 the first applicant’s brother (Mr D. Pylayev) initiated court proceedings for the second applicant to be deprived of legal capacity and for him to be appointed as her guardian. 23.  On 11 May 2016 the District Court declared that the second applicant lacked legal capacity because she was suffering from illness. In particular, the District Court based its decision on an expert report dated 25 January 2016 which had established that she had been suffering from a mental handicap since 2010 and as a result had not been able to understand or control her actions. That judgment entered into force on 14 June 2016. 24.  On 29 June 2016 the local public health department appointed the first applicant’s brother as her guardian.


8.  The applicant was born in 1982 in Venezuela and is currently detained in Valdemoro Prison. 9.  The applicant has been living in Spain with his family since 2003. 10.  In an indictment filed on 15 November 2005 in the United States (hereinafter, “the US”) District Court for the Eastern District of New York, the applicant was charged with one count of conspiracy to import one or more kilograms of heroin, a Schedule I controlled substance, into the United States in violation of Title 21, United States Code, sections 952(a), 960(a)(1), 960(b)(1)(A), and 963, and Title 18, United States Code, sections 3551 et seq. (Count Four); and one count of conspiracy to distribute and possess with intent to distribute one or more kilograms of heroin, a Schedule I controlled substance, in violation of Title 21, United States Code, sections 841(a)(1), 841(b)(1)(A)(I), and 846, and Title 18, United States Code, sections 3551 et seq. (Count Five). Each of those offences carried a possible maximum term of life imprisonment. 11.  By diplomatic note of 6 December 2013, the US authorities transmitted a request to the Spanish authorities for the applicant’s provisional arrest with a view to his extradition. 12.  On 13 December 2013 the applicant was arrested in Lugo by the Spanish police. The Central Court of Investigation No. 4 (Juzgado Central de Instrucción) initiated extradition proceedings on the same day and ordered his provisional release. The extradition request was then allocated to the Criminal Section of the Audiencia Nacional. 13.  On 31 March 2014 the Public Prosecutor’s Office agreed to the applicant’s extradition. 14.  On 1 October 2014 the Audiencia Nacional granted the extradition request on condition that the US authorities provided a guarantee that any life sentence that was handed down would not be irreducible. The applicant lodged an appeal against that decision. 15.  On 3 November 2014 the ruling was upheld by the Plenary of the Criminal Section of the Audiencia Nacional. The applicant subsequently lodged a plea of nullity (incidente de nulidad de actuaciones) against that decision. On 19 December 2014 the Plenary of the Criminal Section of the Audiencia Nacional ruled against the applicant, arguing that the object and purpose of annulment proceedings was not to serve as a second appeal instance against an extradition decision, but to correct possible violations of a fundamental right committed in a decision which was not subject to appeal. 16.  On 3 December 2014 the U.S. Embassy issued a note verbale, which provided the following answer:
“The United States notes that the bilateral extradition treaty between the United States and Spain does not provide a basis for conditioning extraditions on assurances relating to life sentences. While the United States is not, therefore, obligated to provide the assurance requested, in consideration of the request of the Spanish Court and given the intentions of the U.S. prosecutor, the United States is prepared in this particular case to inform the Government of Spain as follows: Should LOPEZ ELORZA be convicted of either of the charges in the indictment filed on 15 November 2005 for which extradition is sought, he will not be subject to an unalterable sentence of life imprisonment because, if a life sentence is imposed, he may seek review of his sentence on appeal and he may subsequently seek relief from his sentence in the form of a petition for a pardon or commutation to a lesser sentence ...” 17.  On 19 January 2015 the note verbale was communicated to the interested parties. On 23 January 2015 the Public Prosecutor submitted a report stating that the guarantees provided by the United States were adequate and that consequently extradition should be granted. 18.  On 24 February 2015 the Audiencia Nacional issued a decision (providencia) assessing the US guarantees, deeming them to be “sufficient”. 19.  The applicant brought two súplica appeals against that decision, the first of which was lodged on 28 February 2015. The applicant argued that the decision of 24 February 2015 should be declared null and void since the matter should have been addressed through an auto, instead of a providencia[1]. Secondly, the applicant contested the argument that the US Government had provided sufficient guarantees, stating that they were identical to the ones that had already been analysed by the Court in the case of Trabelsi v. Belgium (no. 140/10, ECHR 2014 (extracts)) and found to be in violation of Article 3 (inter alia). The second súplica appeal was lodged on 2 March 2015 and included three different requests. First, he requested that the decision on whether the US guarantees were sufficient be addressed and dealt with by the Plenary of the Audiencia Nacional. He also sought the recusal of three judges who were members of the bench which had initially issued the decision of 24 February 2015. Lastly, he lodged an application for the general recusal of all the judges of the Audiencia Nacional who “had been invited by the United States of America on holiday trips” which had been paid for by that country. 20.  On 25 March 2015 the Audiencia Nacional issued a decision stating the following:
“FIRST - We will examine in the first place the plea for a referral to the Plenary formation of this Court of the decision about the sufficiency of the assurances given by the U.S. Government concerning the possibility for two life sentences to be imposed on the extradited person. This Chamber, given that the President of this Court has duly empowered it to decide about this matter, considers that the referral is not necessary as the assurances given are correct and sufficient, and furthermore show compliance with the ECtHR case-law in the Trabelsi vs Belgium case referred to by the appellant ....
Therefore, if the assurances given by the U.S. Government are the following:
“Should LOPEZ ELORZA be convicted of either of the charges in the indictment filed on 15 November 2005, he will not be subject to an unalterable sentence of life imprisonment, he may seek review of his sentence on appeal and he may subsequently seek relief from his sentence in the form of a petition for a pardon or commutation to a lesser sentence;”
we can conclude that the warranty expresses the actual existing legal means for the revision of a sentence of life imprisonment in a way that shows that this punishment is not irreducible during the whole life-span of the person, complying with what the ECtHR has requested in order to consider that there has been no violation of Article 3 of the Convention.
That is why there is no need to refer a decision on this matter to the Plenary formation of this Court.” 21.  Additionally, the Audiencia Nacional agreed on opening a procedure aimed at addressing the issue of the recusals requested by the applicant through a full report, at the same time ordering the suspension of the extradition proceedings until the recusal proceedings had been terminated. 22.  On 12 May 2015 the Audiencia Nacional issued a decision (acuerdo gubernativo) dismissing the applicant’s request. 23.  On 25 May 2015 the Audiencia Nacional ordered the applicant’s provisional detention (auto). The applicant lodged another súplica appeal against that decision and requested that the extradition proceedings be suspended on the grounds that no decision had been taken on the issues complained of in the first súplica appeal of 28 February 2015. 24.  In a decision of 28 May 2015 the Audiencia Nacional rejected the applicant’s request to stay the extradition proceedings, finding that the complaints contained in the first súplica appeal had already been dealt with in the decision of 25 March 2015. 25.  On 1 June 2015 the applicant lodged another súplica appeal against the decisions of 25 May 2015 and 28 May 2015, contesting the reasoning as regards his request to stay the extradition proceedings and emphasising that no decision had been taken on the issues complained of in the first súplica appeal of 28 February 2015. 26.  On 3 June 2015 the Audiencia Nacional issued a new decision dismissing the súplica appeals lodged by the applicant and confirming the decision on the applicant’s imprisonment pending extradition to the United States. In particular, the decision stated the following:
“The applicant considers that his súplica appeal lodged against the decision of 24 February 2015 has not been answered ... .
This Court refers at this point to what was already established in its decision of 25 March 2015 ... .
Nevertheless, in order to clarify any doubts that the applicant might have concerning whether or not he has received an answer to his súplica appeal, we [the Court] will resolve here the issued raised in that appeal.
...
The guarantees provided have been considered sufficient for the Court. Consequently, regardless of the judgment mentioned by the applicant, we consider that they comply with the requirements established in the ECtHR’s judgment Hutchinson v. United Kingdom [(no. 57592/08, 3 February 2015)], as well as the judgment of 13 November 2014 [Bodein v. France, no. 40014/10, 13 November 2014)], lodged by a French citizen...
Taking into consideration the above-mentioned reasoning, the Court
Decides
to dismiss the súplica appeals referred to in the present ruling, maintaining the order of imprisonment for Andrés López Elorza, in view of his extradition to the United States of America”. 27.  On 19 June 2015 the applicant was detained for the purposes of being extradited to the United States. 28.  On 22 June 2015 the applicant lodged an amparo appeal with the Constitutional Court against the extradition decision. He asked for interim measures, requesting the Constitutional Court to order a stay of the extradition while the case was still pending. He contended, inter alia, that the assurances provided by the US authorities did not fulfil the criteria for assessing the reducibility of a life sentence and that the extradition would amount to a violation of his right not to be subjected to inhuman or degrading treatment or punishment. 29.  On 1 July 2015 the Constitutional Court issued a decision declaring the amparo appeal and the request for interim measures inadmissible. In particular, it found that the part of the amparo appeal concerning the validity of the assurances given by the US authorities and about a possible violation of the applicant’s right not to be subjected to inhuman or degrading treatment had been lodged too late as the alleged violations stemmed from the decision of 25 March 2015, thus the 30-day time‑limit established in section 44(2) of the Organic Law on the Constitutional Court No. 2/1919 had already passed when he had lodged his amparo appeal. 30.  On 2 July 2015 the applicant lodged a request for interim measures with the Court under Rule 39 of the Rules of Court. He requested the Court to indicate to the Spanish Government that his extradition should be stayed pending the outcome of proceedings before the Court. The request was granted on the same day on a temporary basis until 1 August 2015, and the Government were asked the following questions:
“a.- Does the applicant risk under US criminal law, in respect of the charges, a maximum penalty that precludes early release and/or release on parole?
b.- What are the concrete mechanisms and under what US legal basis is the applicant entitled to review his possible final life sentence? In this sense, are the appeal, pardon and other review mechanisms referred to in the note verbale of 3 December 2014 the ones described in the case of Trabelsi v. Belgium (application no. 140/10, 4 September 2014, § 27)?” 31.  On 23 July 2015 the Government submitted their response and attached a document issued by the Office of International Affairs of the US Department of Justice called “supplemental information to Spain on Sentencing Issues in Relation to Andres Lopez Elorza, a/k/a ‘Andres Lopez Flores’ (hereinafter, “the US report”). The report stated the following:
“By way of introduction, Lopez Elorza’s extradition is sought in order for him to stand trial on federal narcotics offenses in the Eastern District of New York. In essence, Lopez Elorza, a veterinarian, is charged with having been a member of a conspiracy between September 2004 and January 2005, the goal of which was to import heroin into the United States for subsequent distribution, in which Lopez Elorza’s role was to surgically implant packages of liquid heroin into the bodies of dogs that later were transported to the United States. The charges followed the search, in January 2005, of a farm Lopez Elorza operated in Medellin, Colombia, in which law enforcement authorities seized six puppies into which three kilograms of liquid heroin had been surgically implanted. The six puppies were bound for the United States, and the heroin they carried was surgically removed. After the search of his farm, Lopez Elorza fled Colombia.” 32.  As regards the first question put to the Government, the US report argued that there were pretrial factors that could affect the applicant’s sentencing. In particular, the report noted the following:
“Before any trial, Lopez Elorza could, with the advice of his lawyer, decide to give up the right to a trial and plead guilty to the charges in the indictment, with or without the agreement of the prosecution. See Federal Rule of Criminal Procedure 11(a). A timely admission of guilt is a factor which could reduce the sentence the judge decides to impose following a conviction. In the United States, the vast majority of criminal cases are resolved by guilty pleas. Lopez Elorza may seek to reach an agreement with the prosecution wherein he would plead guilty in exchange for certain favorable actions, such as an agreement to allow him to plead guilty to fewer than all the charges in the indictment (with the remainder of the charges to be dismissed at sentencing), or even to lesser charges, or in exchange for the government’s promise to affirmatively recommend to the court that a particular lesser sentence be imposed. The agreement may also include the parties’ recommendation as to the appropriate sentence that - depending upon the type of plea agreement that is negotiated - may or may not bind the judge regarding the sentence that will be imposed. Such agreements are within the discretion of the government to enter into, and the judge may also decline to approve an agreement she or he does not believe to be in the interests of justice. The agreement may include, inter alia, an agreement to cooperate with U.S. authorities. Thus, if Lopez Elorza were willing and able to provide substantial assistance to the United States in the investigation or prosecution of another person who had committed a crime, a plea agreement might include a promise by the government attorneys, in exchange for his guilty plea, to file a motion with the court asking that Lopez Elorza’s cooperation be taken into account and permitting the Court to impose a lower sentence that it might otherwise impose. Title 18, United States Code, Section 3553(e); United States Sentencing Guidelines, Section 5K1.1. In such cases, it is not atypical for a judge to impose a sentence that is significantly less than the Guidelines recommendation.” 33.  It also observed that “[i]f, however, Lopez Elorza decides not to plead guilty and instead exercise his right to a trial, and if he is found guilty of one or more charges, his sentencing exposure will vary, depending on the nature of the charges on which he is found guilty. Moreover, the judge will have broad discretion to determine the appropriate sentence [...]”. 34.  As regards the estimated sentence that the applicant could face, the US report stated firstly that, “In imposing a sentence in a federal criminal case, the judge must consult the U.S. Federal Sentencing Guidelines”. It added that the Guidelines were advisory since the judge had “the discretion to impose a sentence outside the applicable Guidelines range so long as the court states ‘with specificity,’ both at sentencing and in the written judgment and commitment order, its reason for doing so”. It additionally stated that, “[b]oth the defendant and the government have the statutory right to appeal any sentence imposed on the grounds that it is substantively or procedurally unreasonable under the circumstances of the case”. Moreover, the decision whether to sentence a person convicted of multiple counts concurrently or consecutively was at the discretion of the court. Section 3584 of Title 18 of the US Code, states, in part, that “[m]ultiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively”. The report further stressed the following:
“Prior to sentencing, a probation officer will prepare a presentence report that contains information about the defendant’s offense, his criminal history, other background information, and a calculation of the advisory sentencing range under the Sentencing Guidelines. The defendant has the right to object to the information and conclusion in the present report. Later, during the sentencing phase of the proceedings, defense counsel will be able to present to the judge various mitigating factors to consider that may result in the reduction of his sentence. Specifically, under Title 18, United States Code, Section 3553(a), in determining the particular sentence imposed on a defendant, the court shall consider: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed to promote respect for the law, punishment for the offense, deter the defendant or others from committing similar criminal conduct, and the need to protect the public; (3) the kinds of sentences available; (4) the applicable guideline range; (5) the need to provide the defendant with educational or vocational training, medical care, or other correctional treatment; (6) the need to avoid unwarranted sentence disparities; and (7) the need to provide restitution to the victims of the offense(s). In assisting the court in considering the above seven factors, defense counsel will be able to present to the court in detail any mitigating factors relating to these criteria. This would enable the defense to provide to the sentencing court information regarding Lopez Elorza’s background and circumstances, including: his family environment and relationships, the environment in which he was raised, his work history,... socioeconomic factors including educational opportunities or lack thereof, his physical and psychological well-being and any past or current treatment, prior criminal conduct, if any, and any resultant rehabilitative programs and periods of probation, incarceration, and parole, as well as Lopez Elorza’s longterm educational, vocational, and sociological goals”. 35.  The report noted that there were many factors that contributed to the imposition of a sentence and that it was “impossible to address every conceivable permutation that could occur or every possible scenario that might arise”. However, the report indicated that according to the US Federal Sentencing Guidelines, the advisory sentencing range was “188 to 235 months incarceration, far less than the possible life sentence provided for under the statutes with which he was charged”. 36.  Furthermore, the report stated that under section 3553(a) of Title 18 of the US Code, there was a “need to avoid unwarranted sentence disparities”. In that regard, the report stated that several of the applicant’s co-conspirators had already been sentenced in a related case before the same judge who had been assigned to the applicant’s case. One of the co-conspirators “faced a Guidelines range of 188 to 235 months and received a sentence of 72 months incarceration”, another “faced a Guidelines range of 78 to 87 months and received a sentence of 14 months incarceration” and a third had “faced a Guidelines range of 70 to 87 months and received a sentence of Time Served (approximately 12 months incarceration)”. The US report also noted that none of those defendants had entered into cooperation agreements with the government. Consequently, the sentences imposed on the applicant’s co-conspirators by the same judge who had been assigned to the applicant’s case “[could] be of value in assessing the sentence that will be imposed on him”. 37.  The report concluded that while it was possible that any available maximum sentence could be imposed for an offence, under the circumstances present in this case, “the risk of López Elorza receiving such a sentence is low”. 38.  As regards the second question, the US report stated that if the applicant was sentenced to a life term, he could benefit from a variety of mechanisms to seek to have the sentence invalidated or reduced or to obtain early release. 39.  Concerning the applicant’s right to invalidate or reduce his sentence, the Government stated that the applicant would have the right under US law to lodge an appeal with the Court of Appeals, asking for a reversal of his conviction “based on an error in the proceedings”. The applicant would also be able to “ask the Court of Appeals to review the appropriateness of his sentence”. He could argue that a life sentence was “unreasonable” in the circumstances of his case. The report also stated that even after the applicant had exhausted his rights at trial and on appeal, he could under US law file “a motion in the trial court claiming that his life sentence was imposed ‘in violation of the Constitution or the laws of the United States’, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack”. 40.  Concerning the applicant’s right to obtain early release, the report specifically stated that “since 1987, there has been no federal parole system in the United States”. The applicant, however, could ask for early release if he provided substantial assistance after his conviction and the imposition of his sentence. In addition, US law also allowed for compassionate release under section 3582 of Title 18 of the US Code. The report specifically stressed that the Bureau of Prisons could reduce the applicant’s sentence if it found that there was “an extraordinary and compelling reason to do so; for example, if a medical condition arose with López Elorza that would warrant such a modification”. Finally, the applicant could also seek executive clemency in the form of commutation (reduction) of his sentence. The report noted that in cases similar to the applicant’s, commutation of life sentences was not “a rare occurrence”. It gave as an example that of 13 July 2015, when President Obama had commuted the life sentences of “fourteen persons who had been convicted of drug related offenses”. 41.  On 31 July 2015 the interim measures under Rule 39 were extended and the Court requested that the Government stay the applicant’s extradition to the United States while the proceedings were pending before the Court.


6.  The applicants were born in 1983, 1973, 1983, 1986, 1984 and 1984. Mr Yaşar Çalışkan lives in Ankara. The other applicants live in Samsun. According to the applicants’ submissions, which were not contested by the Government, at the time of the lodging of the application, they were serving the prison sentences arising out of their criminal convictions which gave rise to the present application. 7.  On 17 and 18 June 2005 seventeen members of the Maoist Communist Party (hereinafter “the MKP”), an illegal organisation, were killed in a rural area within the administrative jurisdiction of the town of Ovacık, near the city of Tunceli, by members of the security forces. 8.  On 21 June 2005 a gathering was held in protest at the alleged unlawful killings of 17 and 18 June 2005 in Samsun. University students from the Samsun Ondokuz Mayıs Üniversitesi, including the applicants, gathered in front of the building of the Black Sea Fundamental Rights and Freedoms Association (Karadeniz Temel Haklar ve Özgürlükler Derneği) where a press statement was read out. 9.  On 8 July 2005 one of the applicants, Mr Ahmet Doğan, attended another reading out of a press statement in Samsun. The press statement concerned the killings of 17 and 18 June 2005, the arrest of a number of persons subsequent to the reading out of the press statement on 21 June 2005 and the alleged unlawful killing of a detainee by the police. 10.  On 21 February 2007 the Ankara public prosecutor initiated criminal proceedings against twenty-three people, including the applicants, charging them with disseminating propaganda in favour of the MKP, under section 7(2) of the Prevention of Terrorism Act (Law no. 3713). According to the indictment, during the gathering of 21 June 2005, slogans such as “Long live revolutionary solidarity” (“Yaşasın devrimci dayanışma”), “We have paid a price. We will make them pay a price.” (“Bedel ödedik, bedel ödeteceğiz.”), “Murderer State” (“Katil devlet”), “Revolutionary martyrs are immortal” (“Devrim şehitleri ölümsüzdür.”), “Martyrs are immortal” (“Şehit namırın”), were chanted and the applicants participated in the gathering. The public prosecutor further noted that Mr Ahmet Doğan had participated in the gathering of 8 June 2005, during which the following slogans had been chanted: “No emancipation alone, either all of us or none of us.” (“Kurtuluş yok tek başına, ya hep beraber ya hiçbirimiz.)”, “Arrests, provocations and coercion cannot discourage us.” (“Tutuklamalar, provakasyonlar, baskılar bizi yıldıramaz.”), “We will resist and succeed” (“Direne direne kazanacağız.”), “We have paid a price; we will make them pay a price.” “Bedel ödedik, bedel ödeteceğiz”). 11.  On 31 March 2009 the Ankara Assize Court found the applicants guilty as charged and sentenced each of them to ten months’ imprisonment pursuant to section 7(2) of Law no. 3713, except for Mr Ahmet Doğan, who was sentenced to twenty months’ imprisonment. As regards the gathering of 21 June 2005, the assize court found it established that the slogan “Martyrs are immortal” had been chanted by Mr Kürşad Arslan, Ms Dilek Kömpe, Mr Olcay Bayraktar and Mr Ahmet Doğan and that the slogans “The murderer state will pay the price”, “Revolutionary martyrs are immortal” and “Long live revolutionary solidarity” had been chanted by Mr Yaşar Çalışkan, Mr Kürşad Arslan and Ms Dilek Kömpe. The court also found it established that all the applicants except for Mr Olcay Bayraktar had chanted the slogan “We have paid a price; we will make them pay a price” and that Mr Ahmet Doğan had carried a banner bearing the slogan “Ovacık Martyrs are immortal”. As regards the gathering of 8 July 2005, the court noted that Mr Ahmet Doğan had chanted the slogans “Arrests, provocations and coercion cannot discourage us.”, “We will resist and succeed” and “We have paid a price; we will make them pay a price.” during that public gathering. 12. In its judgment, the Ankara Assize Court referred to Article 10 of the Convention as well as to the Court’s judgment in the case of Sürek v. Turkey (no. 1) ([GC], no. 26682/95, ECHR 1999‑IV) and the report of the European Commission of Human Rights in the case of Karataş v. Turkey (no. 23168/94, Commission’s report of 11 December 1997). The court held that by chanting the above-mentioned slogans the applicants had not exercised their democratic rights but had glorified terror by adopting the style of discourse of terror organisations and that they had not distanced themselves from violence. In the court’s view, by chanting those slogans the applicants had not intended to find a solution to a problem but had praised and glorified the source of the problem, that is to say, the terrorist organisations concerned. Hence, the applicants had incited terror. The Ankara Assize Court concluded that chanting the slogans in question could not be considered as falling within the scope of the right to freedom of expression. 13.  On 8 July 2010 the Court of Cassation upheld the judgment of 31 March 2009 in so far as it concerned the applicants’ conviction. 14.  On unspecified dates the applicants served their prison sentences.


5.  The applicants, whose names are listed in the appendix, are Turkish nationals. 6.  On 17 and 18 July 2008, each of the applicants sent a letter to the Halfeti (Şanlıurfa) public prosecutor`s office which contained the following passage:
 "If using the word of “sayın” (esteemed) is an offense, then I also say “Sayın Abdullah Öcalan”, I commit this offense and denounce myself." 7.  On 19 September 2008, the public prosecutor filed a bill of indictment with the Halfeti Magistrates’ Court in Criminal Matters against the applicants. They were charged with praising an offence and offender, prescribed by Article 215 of the Criminal Code (Law no. 5237), on account of their statements in the above mentioned letters. 8.  On 9 March 2009 the Halfeti Magistrates’ Court in Criminal Matters found the applicants guilty of praising the imprisoned leader of the PKK, an illegal armed organisation, on account of their statements in the aforementioned letters and accordingly, sentenced them each to two months and fifteen days’ imprisonment. In accordance with Article 50 of the Criminal Code, this prison sentence was commuted to a fine of 1,500 Turkish Liras (TRY). 9.  The applicants appealed against this judgment. On 20 June 2012 the Court of Cassation, holding that the amount of the fine that had been imposed on the applicants did not attain the minimum requisite level, dismissed the appeal request.


5.  The applicant was born in 1965 and lives in Tbilisi. 6.  The applicant is a psychiatrist and a founder and director of the Rehabilitation Centre for Victims of Torture “Empathy”, a non‑governmental organisation (“the NGO”). 7.  On 4 October 2003 the applicant’s NGO concluded an agreement with the Ministry of Justice (“the Ministry”) and undertook, among other tasks, to create a psychosocial rehabilitation office in Tbilisi Prison no. 1. The agreement specified that, depending on the availability of resources, the NGO was to involve specialists, use clinical laboratory and diagnostic methods, and provide medication to inmates if treatment was prescribed. It was to provide quarterly progress reports to the Ministry and make suggestions on how to solve the social problems it identified through its activities. The Ministry undertook to support the proper functioning of the rehabilitation office and to designate a coordinator from the Ministry’s Medical Department in order to ensure the implementation of the contract. 8.  On 3 August 2004 the applicant became member of the Public Monitoring Commission overseeing the implementation of the inmates’ rights and competent to issue recommendations if any irregularities were observed. Presidential order no. 309 issued to that end specified that the members of the Commission could enter all prisons during the working hours without prior authorisation. The persons concerned had the right to meet inmates in private and access any documentation except that which was classified as confidential. 9.  On 29 November 2004 the then Minister of Justice created the Inmates’ Mental Health Research and Monitoring Commission. It included seven State and non-State mental health experts, including the applicant. The document did not elaborate on the specific functions of the Commission or its members. 10.  On 10 September 2005 Mr L.Ts. – an inmate placed in the prison hospital in view of his mental health issues – physically assaulted the Director and the head doctor of the prison hospital (“the incident of 10 September 2005”). He had been transferred to the prison hospital by the director of the Medical Department of the Ministry (“the Medical Department”), based on the applicant’s medical opinion to that end. In an unrelated incident that happened at around the same time, an inmate died of a complication in his health problems and it was reported that numerous others were waiting in vain to be admitted to the hospital. Both incidents attracted wide media coverage in view of the allegations of corruption and mismanagement in the medical management of the penal system. Some members of the civil society contended that the transfers to the prison hospital were not implemented adequately and objectively but were based on suspicious arrangements within the Ministry. 11.  On 11 September 2005 an investigation was opened into the incident of 10 September 2005 on account of an alleged abuse of official power. On an unspecified date the applicant was questioned as a witness. 12.  On 13 September 2005 the then Minister of Justice, Mr K.K. (“the Minister”) commissioned an internal investigation concerning the activities of the Medical Department of the Ministry carried out between the period of 1 January 2005 and 13 September 2005. The General Inspectorate of the Ministry was to deliver its findings on 13 October 2005. 13.  On 16 September 2005, while speaking live on a private television channel, Rustavi 2, about allegations of corruption and mismanagement within the Ministry and its Medical Department, the Minister, Mr K.K., stated:
“I am impelled to specify surnames and specific facts... Mariam Jishkariani, the president of non-governmental organisation [Empathy] and a member of the [public] monitoring council [for penal institutions] has been ... grossly exceeding her powers and writing medical conclusions concerning specific persons, bypassing the commission [set up for that purpose]. I have those conclusions on my desk. The investigation has them already and practically speaking a full assessment will be carried out which will reveal whether this was done for the sake of pretty eyes or whether it was precisely the type of business that this shameless person – I cannot call her anything else – has found for herself. Because it was owing precisely to Jishkariani’s scribbles on a piece of paper that [two allegedly healthy inmates who later assaulted doctors] found themselves in the prison hospital without any legal grounds for that ...” 14.  The Minister further noted that the director of the Medical Department was “the one who... [relied on] Jishkariani’s illegal notes ... not signed by the members of the [medical] commission... to transfer the inmates [to the prison hospital].” He noted that “therefore he [was] the suspect in these illegal arrangements and “[would] become an object of the investigation along with Jishkariani.” The Minister continued to note that “there are not only these two facts and the investigation is pending because it was Mariam Jishkariani who was the most important figure and [whose opinions were guiding the director’s actions]...” 15.  The Minister also criticised the Public Defender and accused his representatives of having a vested interest in transferring certain inmates to the prison hospital. 16.  The Rustavi 2 TV channel also transmitted brief comments made by representatives of the civil society, including the Public Defender, who were involved in the public monitoring of the prisons (see paragraph 8 above). They noted that the accusations levelled by the Minister had been groundless in view of the fact that the transfers of inmates to and from the prison hospital had been within the exclusive competency of the Ministry. 17.  The programme also featured the applicant’s brief comment, as recorded by a journalist, that the Minister wanted to have “a monitoring council that [would] not take a peek inside a prison]” and “the prisons [were] in the same conditions ... as those under Saddam Hussein’s regime.” 18.  On 20 September 2005 the daily newspaper Rezonansi published an interview with the Minister. He discussed allegations of corruption in the management of medical facilities in the penal system. The relevant excerpts of the interview read as follows:
“Journalist: You give two names – Jishkariani and [the director of the Medical Department] that were involved in corruption. What concrete facts do you have when making such statements?
The Minister: [The director of the Medical Department] was completely under the influence of Mariam Jishkariani. Jishkariani is a psychiatric doctor of non‑governmental organisation [Empathy]. That field is very tainted with respect to prisons. Even during Soviet times a lot of money was made on psychiatric reports. Certificates of declarations of insanity were granted to those who were not entitled to them.
It was precisely in her own interests that this lady [referring to the applicant] made a nest in this monitoring council. ...
The confrontation started immediately after we uncovered materials where Mariam Jishkariani had signed documents on the transfer of inmates to the prison hospital. It was revealed that there had been healthy people amongst those inmates. ...
Journalist: Are you saying that money taken from the inmates was circulating among those people?
The Minister: Only among them. Doctors at the medical department are responsible for the medical reports. Their boss was [the director of the Medical Department]. Jishkariani and others were accomplices. The money they took should either have been brought to me or taken by them. Nothing was brought to me. [The inmates] who assaulted the personnel had been transferred to the prison hospital based on Jishkariani’s medical report even though they are healthy. She had no authority to do that. Is that not a crime? Naturally, Jishkariani could not have committed it alone. She only wrote a report, or to be precise, scribbled something on a piece of paper that was not signed by any of the commission members. Despite this [the director of the Medical Department] ordered the transfer [of the two inmates] to the Republican Hospital.” 19.  On 13 October 2005 the General Inspectorate delivered its report. It principally concerned the actions and omissions of the director of the Medical Department in the management of the transfers of inmates to the prison hospital. The report mentioned the applicant, in brief, and only with respect to one transfer. In particular, it noted that an inmate L.Ts. (see paragraph 10 above) was assessed by the medical commission of the Ministry on 12 January 2005. He was diagnosed with organic personal disorder with periodic episodes of decline. The commission noted that the inmate had been receiving treatment for a mental illness since 2002 and had a second-degree disability status. He had further suffered a head trauma on 8 January 2005. However the commission did not recommend his transfer to the prison hospital. According to the report, the same inmate was reassessed on 21 January 2005 by the applicant who, noting his medical history described above, wrote in the commission’s journal that the inmate needed to be supervised in a psychiatric ward, and prescribed him certain medication. Subsequently, despite the fact that the members of the medical commission did not agree with the applicant’s assessment, “the director of the Medical Department bypassed the commission and decided – unilaterally – to transfer L.Ts. to the prison hospital based on [the applicant’s] medical conclusion [in the journal] ... and in doing so he violated ... all the relevant rules concerning the prisoners’ transfers to the medical establishment.” 20.  On 27 December 2007 the investigation into the incident of 10 September 2005 was discontinued on the grounds of the absence of a crime, as provided under Article 28 § 1 (b) of the Code of Criminal Procedure (see paragraph 32 below). 21.  On 26 September 2005 the applicant instituted civil-law defamation proceedings against the Minister. She claimed non-pecuniary damages and requested a retraction of the false accusations by the same means as they had been disseminated. According to the applicant, the drafting of recommendations on inmates’ mental health had been part of the agreement of 4 October 2003 (see paragraph 7 above) and that all of her conclusions had been based on verifiable medical documents readily available in inmates’ medical files. The explicit and public allegations of corruption and fraudulent behaviour against her circulated by the Minister through the media outlets were false and devoid of any factual grounds, especially considering that no investigative actions had ever been taken against her. The Minister’s false allegations had had all the more of a negative impact on the applicant’s reputation as a mental health professional because of the Minister’s position as a high-level public official and the public confidence that it invited. 22.  On 13 April 2006 the Tbilisi City Court dismissed Mr K.K.’s application to discontinue the consideration of the case based on Section 5 of the Freedom of Expression and Speech Act (“the Act”) (see paragraph 30 below). It reasoned that while a public debate existed on the matter, it was not of a political character for the purposes of that provision as the applicant was not a politician. Yet, according to the court, she could have been considered as a public figure in view of the public attention that her activities had attracted. 23.  On 22 June 2006 the Tbilisi City Court found against the applicant. In spite of the applicant’s reliance on Article 18 of the Civil Code (see paragraph 31 below), it applied the standards established by the Freedom of Expression and Speech Act (“the Act”) as lex specialis. The court concluded that the applicant was a public figure for the purposes of the Act (see paragraph 30 below) in view of her activities in prison (see paragraph 7 above), and that the burden of proving the existence of the three cumulative conditions set out in Section 14 of the Act (see paragraph 30 below) to classify the Minister’s statements as defamation had rested with her. 24.  The court agreed that the applicant had presented evidence that she was not and had not been a suspect, or otherwise officially accused of violating the law, and concluded that the Minister’s accusations “may have contained erroneous facts.” However it continued to note that in any event, the other two requirements of Section 14 of the Act had not been met. Namely, according to the court, the applicant had failed to show what harm she had suffered from the false information being disseminated by the Minister in the media, as required by the second condition set by Section 14. 25.  With respect to the third criterion of whether the Minister had known that the impugned statements were false or had acted with apparent and gross negligence, the court noted the following:
“The court agrees with the respondent’s argument that Mr K.K. took measures to verify the information before communicating it. The respondent presented Order no. 1640 of the Minister of Justice of Georgia of 13 September 2005 instructing the General Inspectorate of the Ministry to carry out an inspection of the Medical Department. Thus [the Minister] issued an order aimed at verification three days prior to making the public statement. Accordingly, it is possible that he was in possession of preliminary information about the existence of irregularities. However, the possession of [such information] is not confirmed in the case file. According to the case file, the existence of violations in the medical department is confirmed by the General Inspectorate’s conclusion dated 13 October 2005. Therefore it has not been confirmed that the Minister was aware that the information was false by 16 September 2005. It has also not been proven that he acted with gross negligence when making the statement. [The Minister] scheduled the inspection of a department within the scope of his competence and thus he took measures to verify the information.” 26.  The Tbilisi City Court concluded that the statements in question had been made as part of an important public discussion surrounding the management of medical facilities in the penal system. It noted that the Minister had enjoyed freedom of expression to voice his opinion about the state of affairs within his Ministry and that his statements had fallen within the limits of acceptable criticism, which it found to be wider in respect of the applicant because of her status as a public figure. 27.  On 2 July 2007 the Tbilisi Court of Appeal fully upheld the lower court’s judgment. Regarding the third criterion of whether the Minister had known that the impugned statements were false or had acted with apparent and gross negligence, the court noted the following:
“The Appellate Chamber shares the reasoning of the [lower court’s] judgment that the applicant had failed to demonstrate that [the Minister] was either aware of the falsehood of the disseminated facts, or that [he] acted with apparent and gross negligence which led to the dissemination of a statement containing a substantially false fact.
Civil procedure is based on the principle of adversarial procedure which, in addition to conferring certain rights to the parties, also imposes procedural obligations in their own interest. The failure of a party to abide by [those obligations] will lead to an unfavourable result. This rule stems from Article 4 of the Code of Civil Procedure according to which the parties have an equal possibility to define facts in support of their [position] and they themselves decide which evidence shall confirm those facts. Article 102 of the same Code provides that each party shall prove the circumstances on which it bases its [requests]. ” 28.  The appellate court concluded that “K.K. had a right to voice his opinion about the state of affairs within his Ministry and the applicant, in view of her status as a public figure, was obliged to tolerate it as acceptable criticism.” 29.  On 16 May 2008 the Supreme Court declared the applicant’s appeal on points of law inadmissible as manifestly ill-founded.