Case law update
| Author | Ben Wild |
| DOI | 10.1177/2032284417723423 |
| Published date | 01 September 2017 |
| Date | 01 September 2017 |
| Subject Matter | ECHR Update |
ECHR Update
Case law update: ECtHR
cases April to June 2017
Ben Wild
University of Manchester (BA(Hons)), United Nations University for Peace (MA)
Entrapment
Matanovic
´v. Croatia (application no. 2742/12)
The case concerned a complaint about entrapment, secret surveillance measure s and the non-
disclosure and use of the evidence thus obtained. Mr Matanovic´, the applicant, a vice president
of the Croatian Privatization Fund, was convicted of corruption in 2009 for accepting and facil-
itating bribes in exchange for support of investment projects and privatizations. His conviction was
essentially based on evidence obtained via telephone tapping following a covert operation involv-
ing an informant.
Thecourtheld,unanimously:thattherehadbeennoviolationofArticle6§1asconcernedMr
Matanovic´’s complaintof entrapment. The court found in particular that, on balance, the prosecuting
authorities’investigation had essentiallyremained within the boundsof undercover work, ratherthan
inciting Mr Matanovic´ to commit offences he would not have otherwise committed; but, that there
had been a violation Article 6 § 1 of the Convention as concerned the non-disclosure of certain
evidence in the criminal proceedings against Mr Matanovic´.
In particular, due to a lack of procedural safeguards, Mr Matanovic´ had been prevented from
establishing whether recordings in the prosecution’s possession, excluded from the case file
because they had concerned individuals who were not eventually accused in the proceedings,
could have reduced his sentence or put into doubt the scope of his alleged criminal activity; and
lastly, that there had been a violation of Article 8 (right to respect for private and family life, the
home and the correspondence) because the procedure for ordering and supervising the tapping of
Mr Matanovic´’s telephone had not been lawful.
Outcome.
Violation of Article 6.
Just satisfaction. The court held, by four votes to three, that Croatia was to pay Mr
Matanovic´ 1500 euros (EUR) in respect of non-pecuniary damage and EUR 2500 for costs
and expenses.
Similar cases from April to June 2017
New Journal of European Criminal Law
2017, Vol. 8(3) 408–434
ªThe Author(s) 2017
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DOI: 10.1177/2032284417723423
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Right to life
Guzelyurtlu and Others v. Cyprus and Turkey (application no. 36925/07)
The case concerned the killing of Elmas, Zerrin and Eylu
¨lGu
¨zelyurtlu, who were shot dead in the
Cypriot Government–controlled area of Cyprus on 15 January 2005. The killers fled back to the
‘Turkish Republic of Northern Cyprus’(the ‘TRNC’). Parallel investigations into the murders were
conducted by the authorities of the Cypriot Government and the Turkish Government, including
those of the TRNC. The TRNC authorities insisted that the case file containing the evidenceagainst
the suspects behanded over so that they could conduct a prosecution.The Cypriot authorities refused.
On the strength of the evidence gatheredduring their investigation, the Cypriot authorities sought the
extradition of the suspectswho were within Turkey’s jurisdiction (either in the TRNC orin mainland
Turkey) with a view to their trial. The extradition requests were returned to the Cypriot authorities
without reply. The investigations of both respondent States thus reached an impasse in 2008.
The applicants, relatives of the victims, complained that both the Cypriot and Turkish author-
ities (including those of the TRNC) have failed to cooperate and conduct an effective investigation
on the killing of their relatives.
The court found that, where – as in the applicants’ case – the investigation of unlawful killings
unavoidably implicated more than one State, the Sta tes concerned were obliged to cooperate
effectively and take all reasonable steps necessary to facilitate and realize an effective investiga-
tion into the case overall. However, it was clear from all the material before the court that both
Governments had not been prepared to make any compromise on their positions and find middle
ground, despite various options having been put forward, including by the United Nations. That
position arose from political considerations which reflected the long-standing and intense political
dispute between Cyprus and Turkey. A situation thus resulted in which the respondent Govern-
ments’ respective investigations – which the court found adequate up until the impasse – remain
open. Nothing has therefore been done for more than 8 years to bring to a close what is ultimately a
straightforward case.
Outcome.
Violation of Article 2.
Just satisfaction. The court held, by five votes to two, that each respondent Government was to
pay each applicant EUR 8500 in respect of non-pecuniary damage.
Huseynova v. Azerbaijan (application no. 10653/10)
The case was brought by the wife of Elmar Huseynov, a well-known journalist who was shot dead
on 2 March 2005.
The court found that there was a lack of evidence to prove the allegation that the State had in
some way been involved in the murder of Ms Huseynova’s husband or that the authorities had
known or ought to have known about a real risk to his life and had failed to take measures to
protect him.
However, the court considered that the investigation into the murder had not been effective,
adequate or prompt, having so far lasted more than 12 years. It identified a number of shortcomings
in the investigation, namely: that the Azerbaijani authorities had not taken all the measures
available to them to ensure that the two suspects identified, Georgian nationals, be prosecuted,
Wild 409
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