issued by the Registrar of the Court

ECHR 369 (2015)

26.11.2015

Judgments and decisions of 26 November 2015

The European Court of Human Rights has today notified in writing five judgments¹and 13 decisions²:

three Chamber judgments are summarised below; for two others, in the cases of Ebrahimian

v. France (application no. 64846/11) and Annen v. Germany (no. 3690/10), separate press releases

have been issued;

the 13 decisions can be consulted on Hudoc and do not appear in this press release.

The judgments in French below are indicated with an asterisk (*).

Regner v. the Czech Republic (application no. 35289/11)*

The applicant, Václav Regner, is a Czech national who was born in 1962 and lives in Prague.

The case concerned the fairness of the judicial review of an administrative decision revoking

Mr Regner’s security clearance, which had been essential for him to be able to discharge a public

function.

The National Security Authority decided to revoke the security clearance which Mr Regner had been

granted to perform his duties as deputy to a Vice-Minister of Defence, on the grounds that he was a

risk to national security. However, the decision made no reference to the confidential information

on which it was based; the information in question was classified as “restricted” and, in accordance

with the law, could not be disclosed to him.

On an appeal by Mr Regner, the President of the Authority confirmed the existence of the risk. An

application by Mr Regner for judicial review was subsequently rejected by the Prague City Court, to

which the documents in question had been transmitted by the Authority. Mr Regner and his lawyer

were not authorised to consult them. The Supreme Administrative Court rejected his subsequent

appeal, holding that the disclosure of the information would result in exposure of the intelligence

service’s working methods, disclosure of sources of information or attempts by the applicant to

influence potential witnesses. Mr Regner then lodged an appeal with the Constitutional Court,

complaining that the proceedings had been unfair. The Constitutional Court dismissed his appeal,

finding that it was not always possible to ensure all the procedural guarantees of fairness where

confidential information relating to national security was at stake.

Relying on Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights, Mr Regner

complained that the administrative proceedings in his case had been unfair in that it had been

impossible to have access to a decisive piece of evidence classified as confidential which had been

made available to the courts by the defendant.

No violation of Article 6 § 1

Under Articles 43 and 44 of the Convention, Chamber judgments are not final. During the three-month period following a Chamber

judgment’s delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a

panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and

deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day. Under Article 28 of the

Convention, judgments delivered by a Committee are final.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution

Inadmissibility and strike-out decisions are final.

Mahamed Jama v. Malta (no. 10290/13)

The applicant, Farhiyo Mahamed Jama, is a Somali national who at the time of the introduction of

the application was detained in the context of immigration, in Malta. The case concerned, in

particular, her complaint about the alleged unlawfulness of her detention for more than eight

months, and about the poor conditions in which she had been kept.

Upon her arrival in Malta by boat in May 2012 Ms Mahamed Jama was registered by the

immigration police and presented with a return decision, which stated that she was a prohibited

immigrant, and a removal order. She was placed in detention. A few days later she appealed against

the return decision and subsequently applied for asylum. In her asylum application she stated that

she was 16 years old, maintaining that she was born in 1996. About two months after her arrival in

Malta she was called for an interview with the authorities with a view to assessing the veracity of her

claim that she was a minor. As the interview was not conclusive, she was taken for an X-ray exam for

age assessment another two months later. An age assessment decision, according to which she was

not a minor, was taken in January 2013. In February 2013 she was granted subsidiary protection in

Malta and, five days after that decision, she was released from detention.

According to her submissions, Ms Mahamed Jama was detained in prison-like, poor conditions. In

particular she maintains: that the detention facility was overcrowded; that it was overheated in

summer and unbearably cold in winter; that there was not enough storage place for food, so that

food was exposed to insects; that she was not provided with sufficient and adequate clothing and

hygiene items; that there was no possibility for any useful activity, no internet access and almost no

possibilities to make long-distance phone calls.

Ms Mahamed Jama complained in particular that the conditions of her detention had been in breach

of Article 3 (prohibition of inhuman or degrading treatment). Relying further on Article 5 § 4 (right to

have lawfulness of detention decided speedily by a court), she complained that she had not had an

adequate remedy to challenge the lawfulness of her detention. Moreover, she maintained that her

detention for more than eight months had been arbitrary and unlawful, in violation of Article 5 § 1

(right to liberty and security).

No violation of Article 3

Violation of Article 5 § 4

No violation of Article 5 § 1 – concerning Ms Mahamed Jama’s detention pending her asylum claim

Violation of Article 5 § 1 – concerning Ms Mahamed Jama’s detention following the decision on her

asylum claim

Just satisfaction: 4,000 euros (EUR) (non-pecuniary damage) and EUR 1,500 (costs and expenses)

Basenko v. Ukraine (no. 24213/08)

The applicant, Aleksandr Basenko, is a Ukrainian national who was born in 1958 and lives in Kyiv. The

case concerned his complaint of having been ill-treated by an employee of a public transport

company and of the lack of an effective investigation in that respect.

In February 2002, following a disagreement between Mr Basenko and two ticket inspectors on a

tram in Kyiv as to whether he had a valid ticket, the three men got off the tram. On their way to the

tram depot, one of the inspectors kicked Mr Basenko, as a response to which he used a tear gas

spray against the inspectors. One of the inspectors then knocked Mr Basenko in the knee, causing a

fracture, as a result of which he could not get up. He was helped by bystanders, who called an

ambulance. He maintains that he received treatment for the injury until 2005.

Shortly after the incident Mr Basenko reported it to the police. In March 2002 a police investigator

refused to institute criminal proceedings, but in December 2002 the district prosecutor quashed the

decision and opened criminal proceedings. The investigation was subsequently suspended and

resumed on several occasions. In April 2005 one of the inspectors was charged with infliction of

bodily injuries of medium gravity and eventually, in November 2007, he was convicted as charged

and sentenced to two years’ imprisonment, suspended. A civil claim lodged in parallel by

Mr Basenko against the transport company, seeking damages, was rejected by the courts in a

decision eventually upheld in November 2007.

Relying in substance on Article 3 (prohibition of inhuman or degrading treatment), Mr Basenko

complained of the injuries he had suffered and maintained that the investigation into his complaints

had been ineffective. In particular, the investigation had taken an unjustifiably long time and he had

not been informed of its progress or the conviction of one of the inspectors, as a result of which he

had been prevented from appealing against that judgment. He further relied on Article 13 (right to

an effective remedy), complaining that he had not had an effective remedy in respect of the

treatment he had suffered.

Violation of Article 3 (investigation)

Violation of Article 3 (inhuman and degrading treatment)

Violation of Article 13

Just satisfaction: EUR 8,000 (non-pecuniary damage) and EUR 3,684 (costs and expenses)

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member

States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.