issued by the Registrar of the Court

ECHR 066 (2017)

21.02.2017

Judgments of 21 February 2017

The European Court of Human Rights has today notified in writing five Chamber judgments¹.

four judgments are summarised below;

a separate press release has been issued for one other judgment in the case of Rubio Dosamantes v.

Spain (application no. 20996/10).

The judgments below are available only in English.

Šimaitienė v. Lithuania (application no. 55056/10)

The applicant, Birutė Šimaitienė, is a Lithuanian national who was born in 1948 and lives in Kaunas

(Lithuania). The case concerned her complaint about the restitution process for property owned by

her father before nationalisation.

In 1991 Ms Šimaitienė asked the authorities to return to her some buildings and a plot of land

owned by her father before nationalisation in 1940 and subsequently privatised. As the documents

she had submitted to the authorities did not prove that her father had owned the property in

question, she subsequently had to ask the domestic courts to establish as a legal fact that her father

had owned the buildings. In May 2003 the Kaunas District Court established as a legal fact that

Ms Šimaitienė’s father had owned the buildings before the 1940 nationalisation. In October 2003 the

authorities thus adopted a decision to restore Ms Šimaitienė’s property rights. The authorities

recommended, as per her request, that her property be restored to her by paying compensation in

the form of securities. The total amount of the securities was based on an assessment carried out in

July 2003 of the buildings’ value, namely 36,000 Lithuanian Litai (LTL – approximately 10,426 euros

(EUR)).

Between then and February 2011, when the transfer of the securities was finalised, Ms Šimaitienė

challenged both the compensation indicated in the decision of October 2003 and the assessment of

the value of the buildings, which she considered too low. Following a number of administrative

decisions, the valuation of the property was officially approved by the authorities in June 2009 at

LTL 57,000 (approximately EUR 16,508), of which Ms Šimaitienė’s share was LTL 28,500

(approximately EUR 8,254). She submitted a request to be compensated in securities of a

State-owned enterprise in August 2010 and the transfer of these securities at the exact level of

compensation indicated was finalised in February 2011.

Relying in particular on Article 1 of Protocol No. 1 (protection of property) to the European

Convention on Human Rights, Ms Šimaitienė had been dissatisfied with the overall length of the

restitution process in her case, which she alleged had taken 25 years, as well as with the amount of

compensation paid to her, claiming that it had not reflected the true market value of the property.

No violation of Article 1 of Protocol No. 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

Kushtova and Others v. Russia (no. 2) (no. 60806/08)

The applicants, Marzhan Kushtova, and six of her children, Magomet Kushtov, Minovsi Tsitskiyeva,

Madina Kushtova, Musa Kushtov, Fatima Kushtova, and Khulimat Kushtova are Russian nationals

who were born in 1925, 1950, 1954, 1960, 1961, 1966, and 1968 respectively. They live in the

Republic of Ingushetia (Russia). The case concerned the disappearance of their son and brother,

Ibragim Kushtov, who was born in 1971.

On 25 January 2006 Ibraghim Kushtov was driving his car when he was stopped by two traffic

policemen near Magas airport in Ingushetia. He was then forced into a civilian vehicle by a group of

men in dark-green camouflage uniform, carrying machine guns. He has not been seen since.

The applicants immediately complained about the abduction to various authorities, including the

prosecutor’s office, the Ministry of the Interior and the Federal Security Service (“the FSS”). They

submitted throughout the investigation that they feared the involvement of law-enforcement

officers, and in particular that their relative could be detained on FSS premises. The investigators

sent formal requests for information about Ibraghim Kushtov’s detention. In May 2006 the

Ingushetia FSS replied, but denied any involvement of its agents in the abduction and detention. In

December 2006 Ibraghim Kushtov’s mother also requested that the investigators question the many

people who had witnessed the abduction, including those who had had to stop when the traffic was

interrupted during the abduction, the two traffic police officers who had stopped her son or indeed

any other officers from the traffic police station, situated about 200m from where the incident had

occurred. However, the investigation, suspended and resumed on a number of occasions with a long

period of inactivity between October 2004 and December 2014, is still ongoing without identifying

the perpetrators or discovering what has happened to the applicants’ relative.

According to the applicants, their home had been searched on several occasions by the authorities.

They submitted in particular that their home had been searched on suspicion of involvement in

terrorist activities.

The Government did not dispute the applicants’ version of events, but submit that Ibraghim

Kushtov’s abductors have not been identified and that no evidence has been found to show that

members of law-enforcement were involved in his disappearance.

The applicants made a number of complaints under Article 2 (right to life) of the Convention, alleging

in particular: that Ibraghim Kushtov had been abducted by Russian servicemen in order to lure his

older brother, Isa Kushtov, who had been wanted on terrorism charges, out of hiding and make him

surrender; that Ibraghim had been subsequently killed; and that the ensuing investigation into their

allegations had been ineffective. They also complained under Article 3 (prohibition of inhuman or

degrading treatment) of the mental suffering caused to them by the disappearance of their relative

and under Article 5 (right to liberty and security) of the unlawfulness of his unacknowledged

detention. Finally, they relied on Article 13 (right to an effective remedy) to complain that there had

been no domestic remedies available to them for their grievances under Articles 2 and 3.

Violation of Article 2 (right to life) – in respect of Ibragim Kushtov

Violation of Article 2 (investigation)

Violation of Article 3 – in respect of the applicants

Violation of Article 5 – in respect of Ibragim Kushtov

Violation of Article 13 in conjunction with Articles 2 and 3

Just satisfaction: 5,000 euros (EUR) (pecuniary damage) to Marzhan Kushtova, EUR 60,000

(non-pecuniary damage) to the applicants jointly, and EUR 3,000 (costs and expenses) to the

applicants jointly

Orlovskaya Iskra v. Russia (no. 42911/08)

The applicant organisation, Redaktsiya Gazety Orlovskaya Iskra, is a non-governmental organisation

that publishes Orlovskaya Iskra, a newspaper in the Orel Region (Russia). The case concerned the

applicant organisation’s conviction for an administrative offence, in relation to publishing critical

articles about a politician.

In November 2007 two articles were published in Orlovskaya Iskra. They had been written by Ms O.,

the newspaper’s staff correspondent. The articles concerned Mr Stroyev, the then governor of the

Orel Region, and former Chairman of the Federation Council. At the time, Mr Stroyev was also no.1

on the regional list of the United Russia party for the upcoming elections to the Federation Council.

Both articles were strongly critical of Mr Stroyev, including accusations of corrupt and nepotistic

practices, that he had closed down a publicly owned newspaper which had been critical of him, and

that he had prosecuted an individual who had spoken against him in public.

A few days after the publication of the second article, the Working Group on Informational Disputes

of the regional Electoral Committee examined both articles. It found that the articles had contained

elements of electoral campaigning, given that they had included negative information about

Mr Stroyev, and that they created a negative attitude on the part of voters towards United Russia.

The Working Group concluded that the articles had therefore breached section 52 § 6 of the

Electoral Rights Act of 2002, because they had not been paid for by the official campaign fund of any

party participating in the campaign.

An official of the Electoral Committee then compiled an administrative offence report against the

applicant organisation. A justice of the peace examined the case a few days later. The judge held

that under the relevant legislation, “election campaigning” meant publications where information

about one of the candidates prevailed and was combined with negative comment. As the impugned

articles involved both of these elements, they amounted to election campaigning. Such material

should have been paid for by a campaign fund, paid for by one of the candidates, or published free

of charge; and in any event, the newspaper should have indicated who had sponsored the

publication. Consequently, the publication of both articles had amounted to a breach of electoral

law. The judge found Redaktsiya Gazety Orlovskaya Iskra guilty under Article 5.5 of the Code of

Administrative Offences of 2001 and ordered it to pay a fine of 35,000 roubles (equivalent to

1,000 euros at the time).

The applicant organisation appealed to the Zheleznodorozhny District Court of Orel. However, the

court also held that the articles had constituted campaign literature and rejected the appeal in

December 2007. The applicant organization lodged two supervisory-review applications but to no

avail.

Relying on Article 10 (freedom of expression), the applicant organisation complained about the

classification of the material it had published as “election campaigning”, and of the fine that had

been imposed upon it.

Violation of Article 10

Just satisfaction: EUR 5,500 (pecuniary and non-pecuniary damage)

Ovakimyan v. Russia (no. 52796/08)

The applicant, Suren Ovakimyan, is a Russian national who was born in 1981 and lived in Yoshkar-Ola

(Russia) before his conviction. The case concerned his allegation that he had been tortured by the

police in order to make him confess to a murder.

On 7 September 2007 Mr Ovakimyan was arrested as a suspect in a murder case. He alleges that he

was pushed down in the street by three men in plain clothes who handcuffed him, put him in an

unmarked car with a plastic bag over his head and took him to a forest where he was punched,

kicked and given electric shocks to make him confess. He submits that he was taken from the

temporary detention facility where he had been placed and tortured again the next day: in particular

he was once again taken out of town, beaten, strangled, threatened with a revolver, thrown into a

pit and threatened to be buried alive. After being taken back to the detention facility, he signed a

“statement of surrender and confession”, as requested by an investigator.

During the ensuing criminal proceedings against Mr Ovakimyan, however, he denied ever having

signed such a statement, alleging that the investigator had forged his signature. He also argued that

he had never disclosed the location of the murder victim’s body, as alleged by the investigating

authorities. Both before and during the course of the trial, he withdrew requests for the exclusion of

certain evidence as inadmissible.

In November 2008 he was found guilty of murder and robbery and sentenced to 16 years’

imprisonment. The first-instance court notably based its findings on statements made by his two

accomplices in the robbery, who were also eyewitnesses to the murder. As regards Mr Ovakimyan’s

allegations of ill-treatment, the first-instance court found it impossible to establish the

circumstances in which he had sustained the injuries – including bruising, swelling and abrasions –

recorded when he had been placed in detention facilities on 7 and 9 September 2007.

The Russian Supreme Court upheld this judgment in February 2009, finding that the trial court had

rightly not used evidence adduced at the time of Mr Ovakimyan’s alleged ill-treatment. It agreed,

however, that the record of his arrest had been drawn up more than three hours after his actual

arrest on 7 September 2007.

In the meantime Mr Ovakimyan had lodged a complaint with the prosecuting authorities about his

ill-treatment. The authorities carried out a pre-investigation inquiry and decided on six different

occasions that there was nothing to show that a crime had been committed. On that basis they

therefore refused to open a criminal investigation. All six of these decisions were set aside by

superior prosecutors, who found that the decisions lacked reasoning, were unlawful and based on

an inquiry which was not thorough. To date, however, no criminal proceedings have been instituted

or investigation carried out.

Relying in particular on Article 3 (prohibition of torture and of inhuman or degrading treatment), Mr

Ovakimyan alleged that he had been tortured in police custody and that the investigation into his

allegations had been ineffective. Also relying on Article 5 § 1 (right to liberty and security), he

complained that he had actually been arrested at 3 p.m. on 7 September 2007 and not at 8.55 p.m.,

as recorded by the investigator.

Violation of Article 3 (torture)

Violation of Article 3 (investigation)

Violation of Article 5 § 1

Just satisfaction: EUR 24,000 (non-pecuniary damage)

This press release is a document produced by the Registry. It does not bind the Court. Decisions,

judgments and further information about the Court can be found on www.echr.coe.int. To receive

the Court’s press releases, please subscribe here: www.echr.coe.int/RSS/en or follow us on Twitter

@ECHR_Press.

Press contacts

echrpress@echr.coe.int | tel: +33 3 90 21 42 08

Tracey Turner-Tretz (tel: + 33 3 88 41 35 30)

Denis Lambert (tel: + 33 3 90 21 41 09)