ITEMID: 001-108235
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF POGHOSYAN v. ARMENIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
TEXT: 4. The applicant was born in 1981 and lives in Yerevan.
5. On an unspecified date criminal proceedings were instituted in respect of the applicant on account of fraud and burglary under Article 177 § 2 (3) and (4) and Article 178 § 1 of the Criminal Code.
6. On 15 February 2007 formal charges were brought against the applicant. It appears that the applicant was considered to be in hiding and a search was initiated.
7. On the same date the Ararat Regional Court examined and granted the investigator’s motion seeking to have the applicant placed in pre-trial detention. This decision was based on the nature and degree of dangerousness of the incriminated acts and on the fact that the applicant was in hiding and was capable of hindering the investigation by exerting unlawful pressure on the parties to the proceedings. Detention was imposed for a period of two months to be calculated from the moment of the applicant’s arrest.
8. On 13 April 2007 the applicant was arrested and taken to the Ararat Police Department where he was informed about the decision of 15 February 2007. The applicant was then taken to Nubarashen detention facility.
9. On 31 May 2007 the applicant filed a motion with the Ararat Regional Court seeking to be released on bail. The applicant submitted at the outset that the Regional Court, despite the requirement of Article 137 § 4 of the Code of Criminal Procedure (CCP) (see paragraph 29 below), had failed to address the question of his release on bail in its decision of 15 February 2007. He further argued that the fact that he was not eligible under the law for release on bail because of the gravity of the charges was in contradiction with the requirements of Article 5 § 3 of the Convention. He requested the court to apply the requirements of the Convention and to release him, arguing that he had never been in hiding. The applicant alleged that prior to his arrest he had been out of town for business and that he had never been informed of the criminal proceedings against him. He finally argued that he had not been brought before a judge following his arrest, as required by Article 5 § 3 of the Convention.
10. On 5 June 2007 the investigation was completed.
11. On 8 June 2007 the Ararat Regional Court examined the motion of 31 May 2007. The Regional Court noted at the outset, with reference to Article 5 § 3 of the Convention, that the norms of international law prevailed over domestic law and therefore the question of the applicant’s release on bail was to be considered. The Regional Court, however, decided to refuse the applicant’s request for release, finding that there was a risk of the applicant absconding and thereby evading liability and punishment in view of the fact that he had earlier been in hiding. This decision was subject to appeal within fifteen days.
12. On the same date the bill of indictment was finalised.
13. On 12 June 2007 the criminal case was transmitted to the Ararat Regional Court for examination.
14. On 13 June 2007 the applicant’s detention period authorised by the decision of 15 February 2007 expired.
15. On 15 June 2007 the applicant lodged an appeal against the decision of 8 June 2007. He also applied to the chief of Nubarashen detention facility and requested that he be released, since the authorised detention period had expired on 13 June 2007.
16. On the same date Judge Y. of the Ararat Regional Court decided to take over the applicant’s criminal case.
17. By a letter of 18 June 2007 the chief of Nubarashen detention facility refused the applicant’s request to be released, on the ground that the case had been transmitted to the Regional Court.
18. On 29 June 2007 the applicant lodged an appeal against this refusal with the Erebuni and Nubarashen District Court of Yerevan, arguing that his continued detention was unlawful.
19. On 2 July 2007 Judge Y. decided to set the applicant’s criminal case down for trial, scheduling a hearing for 12 July 2007. This decision stated that it was not necessary to modify or cancel the applicant’s detention.
20. On 6 July 2007 the Criminal Court of Appeal, referring to Chapter 39 of the CCP which prescribes the rules of judicial control over pre-trial proceedings, decided to leave the applicant’s appeal of 15 June 2007 unexamined on the ground that the pre-trial proceedings had already been completed.
21. On 12 July 2007 the Erebuni and Nubarashen District Court of Yerevan dismissed the applicant’s appeal of 29 June 2007, finding that the refusal to release him had been lawful and in compliance with Article 138 of the CCP.
22. On 27 July 2007 the applicant lodged an appeal against this decision.
23. On 2 August 2007 the applicant filed a motion with the Ararat Regional Court seeking to be released.
24. On the same date the Ararat Regional Court examined and dismissed this motion. The Regional Court found that the applicant’s detention after 13 June 2007 was justified under Article 138 § 3 of the CCP (see paragraph 31 below), while his detention after 2 July 2007 was authorised by the court’s decision of the same date.
25. On 22 August 2007 the Criminal Court of Appeal dismissed the applicant’s appeal of 27 July 2007 on the same grounds as the District Court.
26. According to Article 65, the accused is entitled, inter alia, to file motions.
27. According to Article 134 §§ 1 and 4, preventive measures are measures of compulsion imposed on the suspect or the accused. They include, inter alia, detention and bail. Bail is considered an alternative preventive measure to detention and is imposed only if a court decision has been issued to detain the accused.
28. According to Article 136 § 2, detention and bail are applied only by a court decision upon the investigator’s or the prosecutor’s motion or of the court’s own motion during the court proceedings. The court can replace detention with bail also upon the motion of the defence.
29. According to Article 137 § 4, when deciding on detention, the court also decides on the possibility of releasing the accused on bail and, if release is possible, sets the amount of bail.
30. According to Article 137 § 5, a court decision imposing detention may be contested before the appeal court.
31. According to 138 § 1, entitled “Detention period”, the detention period of an arrested person shall be calculated from the moment of his actual taking into custody or, if he has not been arrested, from the moment of execution of the court decision whereby detention was imposed.
32. According to Article 138 § 3, during the pre-trial proceedings of a criminal case the detention period may not exceed two months, except for cases prescribed by this Code. During the pre-trial proceedings of the criminal case the running of the detention period shall be suspended on the date when the prosecutor transmits the criminal case to the court or when detention is cancelled as a preventive measure.
33. According to Article 138 §§ 5 and 6, during the pre-trial proceedings of a criminal case the accused’s detention period cannot exceed one year. No maximum detention period is prescribed during the court proceedings.
34. According to Article 139 §§ 1 and 3, if it is necessary to prolong the accused’s detention period, the investigator or the prosecutor must submit a well-grounded motion to the court not later than ten days before the expiry of the detention period. When deciding on the prolongation of the accused’s detention period, the court shall prolong the detention period within the limits prescribed by this Code, on each occasion for a period not exceeding two months.
35. According to Article 141 (10), the administration of a detention facility is obliged, inter alia, immediately to release a person kept in detention without a relevant court decision or if the detention period fixed by a court decision has expired.
36. According to Article 285 § 2, a motion seeking to have detention imposed on an accused for whom a search has been declared shall be examined by the court in the presence of the person who has filed the motion and the accused’s lawyer, if any.
37. According to Article 288 § 1, the court of appeal shall carry out the judicial review of the lawfulness and validity of decisions imposing or refusing to impose detention, as well as prolonging or refusing to prolong the detention period.
38. According to Article 291, a criminal case received at the court shall be taken over by judges in a procedure prescribed by law. A relevant decision must be adopted.
39. According to Article 292, the judge who has taken over a case shall examine the materials of the case and within fifteen days from the date of taking over the case shall adopt, inter alia, a decision setting the case down for trial.
40. According to Article 293 § 2, the decision setting the case down for trial shall contain, inter alia, a decision cancelling, modifying or imposing a preventive measure.
41. According to Article 381 § 1, an appeal must contain (a) the name of the court to which it is addressed; (b) information about the appellant; (c) the contested judgment or decision and the name of the court which issued it; (d) an indication as to whether the whole or part of the judgment or decision are being contested; (e) the appellant’s arguments and complaints; (f) substantiating evidence, if any; (g) a list of attached materials; and (h) the appellant’s signature. According to Article 381 § 2, the court of appeal shall leave an appeal unexamined if it does not comply with the requirements set out in this Article, was lodged by a person who was not entitled to do so, or was lodged out of time.
42. According to Article 177 § 2 (3) and (4), burglary with breaking into a flat, storage or construction committed anew is punishable by two to six years’ imprisonment.
43. According to Article 178 § 1, fraud is punishable by a maximum of two years’ imprisonment.
44. On 28 November 2008 the Court of Cassation issued a decision in another criminal case whose relevant parts read as follows:
“...[T]he Court of Cassation finds unacceptable the limitation of the right to appeal against decisions imposing detention or prolonging a detention period on the ground whether the appeal was lodged within the scope of judicial control over pre-trial proceedings or during the court proceedings of the case. ...
In the present case, the Criminal Court of Appeal based its decision to leave the appeal unexamined on the fact that the investigation had been over and the case had been submitted to court, which was not envisaged by Article 381 § 2 of [the CCP]. Hence, the Court of Cassation finds that in the present case an appeal was lodged against a judicial act subject to appeal, which was not supposed to be left unexamined. ...
On the violation of ... Article 5 § 4 ... of the Convention by the Court of Appeal. ...The domestic criminal procedure law does not envisage any limitation on lodging an appeal against the general jurisdiction court’s decision imposing detention or prolonging a detention period, based on the particular stage of the proceedings.”
45. On 26 December 2008 the Court of Cassation issued a decision in another criminal case whose relevant parts read as follows:
“The Court of Cassation finds that[, inter alia, Article 285 § 2 of the CCP], as regards imposition of a preventive measure on an accused in whose respect a search has been initiated, is incompatible with the requirement of Article 5 § 3 of the Convention that [an arrested person] be promptly brought before a judge. [The mentioned Article of the CCP] allows imposition of a preventive measure depriving a person of liberty in the absence of that person, without providing a possibility for the person discovered as a result of the search to appear before the court and for the question of his detention to be discussed in his presence.
The Court of Cassation finds that such rules of the criminal procedure law will breach Article 5 § 3 of the Convention and will constitute a grave violation of a person’s right to liberty if a person discovered as a result of the search is not brought promptly before a court. ...
...[T]he Court of Cassation finds that a necessary domestic safeguard for the protection of the right to liberty must be an additional examination by [the relevant] court of the question of [detention] in the presence of [the affected] person following his discovery as a result of the search.”
46. On 10 April 2009 the Court of Cassation issued a decision in another criminal case whose relevant parts read as follows:
“Taking into account the findings reached in the judgment of the European Court of Human Rights in the case of Ječius v. Lithuania, the Court of Cassation finds that the suspension of the detention period on the ground that the case has been transmitted by the prosecutor to a court constitutes an unlawful limitation of a person’s right to liberty. Hence, the rules prescribed by Article 138 § 3 of [the CCP] contradict Article 5 § 1 of [the Convention] and Articles 11 § 2 and 136 § 2 of [the CCP].
The Court of Cassation finds that in cases in which there are less than fifteen days left before the expiry of the two-month detention period, that is less than the time-limit within which a judge who has taken over the case is to adopt one of the decisions envisaged by Article 292 of [the CCP], the investigating authority, when transmitting the case to the court, must also resolve the question of a person’s detention, namely release him if the grounds justifying his detention have ceased to exist or file a motion with the court seeking a prolongation of the detention period if there are [relevant grounds].”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4


ITEMID: 001-61736
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF M.B. v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-3;Violation of Art. 5-4;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 9. The applicant was born in 1967.
10. In 1994 the Białystok Regional Prosecutor instituted investigations concerning suspicion of fraud. On 28 March 1995 the applicant was charged with fraud committed jointly with other persons. On 30 March 1995 the Białystok
11. The applicant requested that detailed written grounds of the detention order be prepared by the prosecuting authorities. On 3 April 1995 the applicant's lawyer and on 6 April 1995 the applicant himself appealed against the detention order, arguing, inter alia, that his bad health was incompatible with his detention.
12. By a decision of 11 April 1995 the Białystok Regional Prosecutor preferred charges against the applicant. It was stated that the suspicion against him was rendered credible by evidence gathered in the investigations. The prosecutor referred in particular to documents concerning the circumstances in which the applicant had taken the loan, to the manner in which the funds had been transferred to the applicant's bank account, and to the links established between the suspects in the case.
13. On 10 April 1995 the Warsaw Regional Court, at a session held in camera, refused the applicant's lawyer's appeal against the detention order and on 27 April 1995 the applicant's own appeal was, likewise, dismissed.
14. On 25 April 1995 the applicant requested to be released.
15. On 28 April 1995 the same court refused to allow the applicant's appeal against the decision of 11 April 1995 by which the prosecution had preferred charges against the applicant. The court considered that the case was complex, that there were many suspects, and that the offences concerned were of a very serious nature.
16. On 28 April 1995 the Białystok Regional Prosecutor refused the applicant's application for release of 25 April 1995. On 18 May 1995 the Białystok Appellate Prosecutor upheld this decision, considering that a medical certificate confirmed that the applicant was suffering from Marfan syndrome which was a connective tissue disorder, so affected many structures, including the skeleton, lungs, eyes, heart and blood vessels. However, the applicant was under the medical supervision of a prison doctor. The grounds on which the applicant had been arrested still obtained, and the offence concerned was of a serious nature.
17. On 13 June 1995 the charges against the applicant were supplemented by two further counts of fraud, committed by obtaining another two bank loans by false pretences. The prosecuting authorities referred, inter alia, to various Polish and foreign documents, to the testimony of witnesses, interviewed during the investigations, and to other evidence. When questioned by the prosecutor on that day, the applicant requested that detailed written grounds of these charges, giving factual reasons grounding the suspicions against him, be prepared and served on him and on his lawyer. On 28 June 1995 the applicant was served with this document.
18. On 26 June 1995 the Warsaw Regional Court prolonged the applicant's detention for three months, until 29 September 1995.
19. On 13 July 1995 the applicant requested again to be released. On 17 July 1995 his request was refused by the Białystok Regional Prosecutor.
20. On 17 July 1995 the applicant requested to be released in order to undergo a specialised ophthalmologic examination, submitting that he suffered from an ailment, which seriously affected his eyesight, and that his eyesight had severely deteriorated as a result of his detention.
21. On 27 July 1995 the Warsaw Court of Appeal dismissed the applicant's appeal against the decision of the Warsaw Regional Court of 26 June 1995 prolonging his detention for a further three months.
22. On 11 August 1995 the Białystok Appellate Prosecutor upheld the decision of 17 July 1995, considering that the evidence against the applicant had rendered the charges against him sufficiently credible.
23. On 12 September 1995 the applicant's new request for release, submitted on 8 September 1995, was refused by the Białystok Regional Prosecutor. An identical decision was given on 15 September 1995 in respect of his fresh request for release, the prosecuting authorities considering that the evidence gathered so far in the proceedings supported the charges against the applicant, and that there were genuine grounds for believing that, if released, he would exert pressure on the witnesses.
24. On 18 September 1995 the applicant's detention was prolonged until 29 November 1995, the Warsaw Regional Court considering that further measures had to be taken in order to complete the evidence gathered so far during the investigations. On 26 October 1995 the Warsaw Court of Appeal dismissed the applicant's appeal against that decision.
25. On 16, 17, 20 and 21 November 1995 the applicant had access to the case file and was informed of his right to submit, within three days, motions for further evidence to be admitted.
26. On 21 November 1995 the Białystok Regional Prosecutor again refused to release the applicant. On the same day the applicant requested the Białystok Appellate Prosecutor to set aside this decision.
27. On 23 November 1995 the Warsaw Court of Appeal prolonged the applicant's detention until 29 December 1995. On the same day the court's registry was served with the applicant's letter in which he requested the court to allow him to be present at the court session concerning the prolongation of his detention. On 27 November 1995 the court replied that his request had been included in the case file, noting that it had been served on the court after the session had been held in the applicant's and his lawyer's absence.
28. On 26 November 1995 the Warsaw Court of Appeal upheld the decision of the Warsaw Regional Court of 26 October 1995 prolonging the applicant's detention.
29. On 8, 12 and 15 December the applicant examined the case file.
30. On 14 December 1985 the Warsaw Court of Appeal dismissed the applicant's appeal against the decision of 23 November 1995 prolonging his detention until 29 December 1995.
31. On 15 December 1995 the applicant requested that certain pages that had been taken out of the case file and transferred to the file of another case, which had been severed from the applicant's case in June 1995, be re-included into his file so that he could have access to them.
32. On 21 December 1995 the Białystok Regional Prosecutor closed the investigation, considering that the case-file contained enough evidence for a bill of indictment to be lodged with a court. On the same date the prosecutor ordered that the applicant be given access to documents that he had requested on 15 December.
33. On the same day the Białystok Appellate Prosecutor refused to allow the applicant's appeal against the decision to prolong his detention, given on 23 November 1995.
34. On 8 January 1996 the applicant requested to be released and on 10 January 1996 he proposed to pay bail in the amount of PLN 5,000.
35. On 19 January 1996 the applicant requested to be granted access to the case-file, submitting that he had not been shown items Nos. 85, 86, 87.
36. On 25 January 1996 the Warsaw Regional Court dismissed the applicant's request to be released on bail.
37. By a letter of 19 January, submitted to the court on 24 January 1996, the applicant requested to be allowed to read the case file again.
38. The refusal to release the applicant, given on 25 January 1996, was upheld by the Warsaw Appellate Court on 13 February 1996, which considered that the applicant's appeal had failed to advance any arguments capable of casting doubt on the lawfulness of the decision under appeal.
39. By a letter of 21 February 1996 the applicant again requested to be given access to the case file. On 28 February 1996 the case-file was forwarded by the prosecution to the Białystok detention centre and the applicant read it again on 1 March 1996.
40. On 7 March 1996 the Warsaw Regional Court held a session, concerning the applicant's request for release on bail and the amount of bail to be paid. The applicant's lawyer attended that session. The court fixed the bail at PLN 15,000. The applicant was released on the same day after bail had been paid.
41. On 26 July 1998 the applicant died of Marfan syndrome. On 20 August 1998 the Warsaw Regional Court discontinued the criminal proceedings against him.
42. At the relevant time, the authorities competent to decide on detention on remand were provided for in Articles 210 and 212 of the Polish Code of Criminal Procedure of 1969, which read as follows:
Article 210:
“1. Preventive measures [i.e. detention on remand, bail and police supervision] shall be imposed by the court; before a bill of indictment is lodged with the court, they shall be ordered by the prosecutor (...).”
Article 212:
“1. A decision concerning preventive measures may be appealed [to a higher court] ...
2. A prosecutor's order on detention on remand may be appealed to the court competent to deal with the merits of the case...”
43. These provisions were amended on 29 June 1995 by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes, which entered into force on 4 August 1996. Pursuant to this amendment, detention on remand could be imposed only by a court order.
44. A new Code of Criminal Procedure was enacted by the Sejm (Parliament) on 6 June 1997. Its Article 250, in its relevant part, reads:
“1. Detention on remand shall be imposed by a court order.
2. In the investigative stage of proceedings, detention on remand shall be imposed, on a prosecutor's request, by a district court in the jurisdiction of which investigations are being conducted. After a bill of indictment is lodged with a court, a decision to impose detention on remand shall be given by a court competent to deal with the merits of the case.
3. The prosecutor, when submitting to a court a request referred to in § 2, shall at the same time order that the suspect be brought before a court.”
45. At the relevant time the presence of the parties at court sessions other than hearings was regulated in Articles 87 and 88 of the Code of Criminal Procedure of 1969, which, insofar as relevant, provided:
Article 87:
“The Court pronounces its decisions at a hearing if the law provides for it; and otherwise, at a court session held in camera. ...”
Article 88:
“A court session in camera may be attended by a prosecutor (...); other parties may attend if the law provides for it.”
46. Pursuant to Article 249 of the new Code of Criminal Procedure, before deciding on the application of the preventive measures, the court shall hear the person charged with offence. The lawyer of the detainee should be allowed to attend in the court session, if he or she is present. It is not mandatory to inform the lawyer of the date and time of the court session, unless the suspect so requests and if it will not hinder the proceedings.
47. The court shall inform the lawyer of a detained person of the date and time of court sessions at which a decision is to be taken concerning prolongation of detention on remand, or an appeal against a decision to impose or to prolong detention on remand is to be considered.
48. At the material time the relations between the organs of the Polish State were set out in interim legislation, i.e. the Constitutional Act of 17 October 1992 (Mała Konstytucja). Article 1 of the Act laid down the principle of the separation of powers in the following terms:
“The legislative power of the State shall be vested in the Sejm and the Senate of the Republic of Poland; the executive power shall be vested in the President of Poland and the Council of Ministers; and judicial power shall be vested in the independent courts.”
49. Under Article 56 of the Act, the Council of Ministers (Rada Ministrów) shall be composed of the Prime Minister, Deputy Prime Ministers and Ministers.
50. In pursuance of Article 1 of the Act of 20 June 1985 (Ustawa o sądach powszechnych), the courts are entrusted with administration of justice in the Republic of Poland. The courts are courts of appeal, regional courts and district courts. Under Article 9 of the Law, the Supreme Court exercises supervisory jurisdiction over lower courts.
51. Article 1 of the Act of 20 June 1985 on Prosecuting Authorities (Ustawa o Prokuraturze) which determines general principles concerning the structure, functions and organisation of prosecuting authorities, at the material time read as follows:
“1. The prosecuting authorities shall be the Prosecutor General, prosecutors and military prosecutors. Prosecutors and military prosecutors shall be subordinate to the Prosecutor General.
2. The Prosecutor General shall be the highest prosecuting authority; his functions shall be carried out by the Minister of Justice.”
Article 2 of the Act reads:
“The prosecuting authorities shall ensure the observance of the rule of law and the prosecution of criminal offences.”
52. Under Article 7 of the Act, in carrying out his statutory duties, a prosecutor shall abide by the principles of impartiality and equality of citizens before the law.
53. Pursuant to Article 8 of the Act, a prosecutor is independent in carrying out his or her duties, within the limits set out in this Article. A prosecutor shall abide by the instructions, guidelines and orders of his superiors. However, if an order relates to the substance of any action to be taken in proceedings, a prosecutor may request [his superior] to issue the order concerned with reasons in writing, to alter the order, to relieve him from performing an act prescribed by that order, or to remove him from conducting the case in question. The requests to be removed from a case shall be decided by a hierarchical superior of the prosecutor who issued the order.
54. Chapter III of the Code of Criminal Procedure of 1969, applicable at the material time, entitled "Parties to proceedings, defence counsel, representatives of victims and representatives of society", described a prosecutor as a party to criminal proceedings. According to all the relevant provisions of the Code read together, a prosecutor performed investigative and prosecuting functions in the course of criminal proceedings. In particular, after completing the investigation, he drew up a bill of indictment and represented the prosecuting authority before the court competent to deal with the case.
55. Under Article 3 of the Code of Criminal Procedure of 1969 ”organs conducting criminal proceedings [including a prosecutor] shall examine and take into account evidence in favour of as well as against the accused.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
5-4


ITEMID: 001-60824
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF VENEMA v. THE NETHERLANDS
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;Not necessary to examine Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
TEXT: 9. The applicants, Dirk Venema, Wubbechien Venema-Huiting and Kimberly Venema, are Netherlands nationals and live in Alphen aan den Rijn, in the Netherlands.
10. Mr Dirk Venema and Mrs Wubbechien Venema-Huiting, who were born in 1964 and 1967 respectively, are the parents of Kimberly Venema. Kimberly was born on 14 February 1994.
11. From May 1994 onwards Mr and Mrs Venema became aware that Kimberly's breathing sometimes stopped and her heart raced. This led them to seek medical advice from, inter alios, doctors practising at Leiden University Hospital. Kimberly was taken into hospital for two periods, of fourteen days and six days respectively, in the course of July and August 1994.
12. The doctors found nothing physically wrong with Kimberly. They began to suspect that Kimberly was healthy but that Mrs Venema might be suffering from a psychological disturbance known as the Munchausen syndrome by proxy.
13. The Munchausen syndrome by proxy is a condition in which a parent of a young child, nearly always the mother, driven by a need of her own for attention, seeks superfluous medical assistance for her child. The parent may invent a disease or even cause the symptoms. In certain cases, for example if the child's breathing is interfered with, the child's life may be in danger.
14. At around this time Kimberly was referred to Curium, a children's psychiatric clinic in Oegstgeest, near Leiden.
15. In August 1994 the Leiden University Hospital doctors made their fears known to the Child Welfare Board (Raad voor de Kinderbescherming). The Government state that the identity of the applicants was not revealed to the Child Welfare Board at this time. The Child Welfare Board advised the doctors to provide adequate medical care and discuss their fears with the child's parents. The Venema family was kept under medical observation but the doctors did not discuss their suspicions with Mr and Mrs Venema.
16. On 1 December 1994 the Child Abuse Medical Counselling Centre (Bureau Vertrouwensarts inzake Kindermishandeling) in The Hague telephoned the Child Welfare Board. A doctor connected with this centre stated – according to the Government, still without naming the applicants – that it was suspected that Mrs Venema was suffering from the Munchausen syndrome by proxy. In spite of the medical care provided, the situation had not improved. The question arose whether to intervene. It was agreed that the Child Abuse Medical Counselling Centre doctor would obtain more information with a view to informing the Child Welfare Board. It is not recorded that the doctor did so.
17. Kimberly was again taken into hospital on 14 December 1994, following an incident two days earlier.
18. A meeting took place on 20 December 1994 to discuss the case of Kimberly. Those taking part included the director of Curium, four doctors and two nurses connected with Leiden University Hospital, the doctor connected with the Child Abuse Medical Counselling Centre, the Venema family's general practitioner, the deputy unit head of the Child Welfare Board and a specialised family help worker (gezinsverzorger). It was decided that Leiden University Hospital and Curium would jointly submit a report to the Child Welfare Board. Mr and Mrs Venema were neither involved nor informed.
19. It would appear that it was only during this meeting that the identity of the applicants was communicated to the Child Welfare Board.
20. On 2 January 1995 the Child Welfare Board was provided by Curium with a first version of this report (hereinafter “the Curium/Leiden University Hospital report”). In response to questions received from the Child Welfare Board, the reporting parties made additions to it.
21. On 3 January 1995 Curium sent the revised version of the report to the Child Welfare Board. The report stated that they believed Kimberly's life to be at risk and that urgent action was required. It expressed the opinion that it was not possible to discuss the matter with Mr and Mrs Venema, there being a danger that they might react unpredictably. According to the Government, the Child Welfare Board received the report on the following day.
22. On 4 January 1995 the Child Welfare Board applied by fax to the juvenile judge (Kinderrechter) of the Regional Court (arrondissementsrechtbank) of The Hague for a supervision order (ondertoezichtstelling) and an order for Kimberly to be placed away from her family (uithuisplaatsing). The same day the juvenile judge issued a provisional supervision order (voorlopige ondertoezichtstelling), valid until 11 January 1995, pending a decision of a more permanent nature, at the same time ordering Kimberly to be placed away from her family. The juvenile judge did not hear Mr and Mrs Venema before coming to this decision. She scheduled a hearing for 10 January 1995.
23. The Government state that the Child Welfare Board wrote to Mr and Mrs Venema on 5 January 1995, enclosing with their letter the application for a provisional supervision order, the Curium/Leiden University Hospital report and several articles on the Munchausen syndrome by proxy.
24. The applicants state that they did not at any time receive either the letter of 5 January 1995 or any of the other documents mentioned. The Government appear to dispute this.
25. On 6 January 1995 Mr and Mrs Venema arrived at Leiden University Hospital intending to collect Kimberly and take her home with them. It was then that they learnt of the juvenile judge's decisions of 4 January 1995. They were not allowed to see Kimberly.
26. Also on 6 January 1995 the juvenile judge issued an order, again without hearing Mr and Mrs Venema, for Kimberly to be taken to a foster home, the name and address of which was withheld from Mr and Mrs Venema. This order was carried out the same day.
27. Again on 6 January 1995 two of the doctors from Leiden University Hospital – a paediatrician and a child psychiatrist – and the investigating officer of the Child Welfare Board met with Mr and Mrs Venema to discuss the Curium/Leiden University Hospital report, the implications of a provisional supervision order and Kimberly's placement away from her family.
28. On 10 January 1995 the juvenile judge heard Mr and Mrs Venema in camera. Mr and Mrs Venema were assisted by a lawyer. A representative of the Child Welfare Board was also present. At the close of the hearing the juvenile judge decided that, given the expert opinions to the effect that Kimberly's life appeared to be in danger, the provisional supervision order would have to remain in force but that a second opinion would be obtained as soon as possible from a psychiatrist and a child psychiatrist.
29. It can be inferred from the case file that Mr and Mrs Venema were allowed to see Kimberly once every two weeks under an access arrangement, but no copy of the access order has been submitted.
30. The order of 6 January 1995 was transmitted to Mr and Mrs Venema on 20 January 1995.
31. The psychiatrist's report was dated 27 January 1995. It concluded that there were no indications that Mr and Mrs Venema posed any danger to Kimberly. However, a paragraph which the psychiatrist added to this report on 3 February 1995, after discussions by telephone with the Child Welfare Board, stated that it “[could] not be entirely ruled out” that Mrs Venema was suffering from the Munchausen syndrome by proxy, and recommended further examination.
32. The Child Welfare Board sent the psychiatrist's report to Curium and Leiden University Hospital. Curium let it be known in response that it saw no reason to reconsider its point of view.
33. Mr and Mrs Venema appealed to the Court of Appeal (gerechtshof) of The Hague on 9 February 1995 against the placement order.
34. Mr and Mrs Venema submitted written statements made by their general practitioner (dated 8 February 1995) and Mrs Venema's gynaecologist (dated 9 February 1995). These criticised the quality of the reporting by Curium and the Leiden University Hospital doctors and expressed doubts as to the validity of their diagnosis. They also noted that Mrs Venema had not shown any tendency to seek superfluous or clearly unnecessary medical attention.
35. Mr and Mrs Venema also submitted separate statements of three different psychiatrists (dated 17, 21 and 22 February 1995), including two university professors, who had examined them at their request. All were extremely critical of the diagnosis made by the Leiden University Hospital doctors. They concluded that Kimberly would be in no apparent danger if she were returned to her parents and recommended that this be done.
36. The child psychiatrist, from whom an opinion was to be obtained pursuant to the order made by the juvenile judge on 10 January 1995, was approached by the Child Welfare Board on 16 February 1995.
37. On 25 February 1995 the Leiden University Hospital doctors elaborated on the reasons for their suspicions as set out in their report of 3 January to the Child Welfare Board.
38. A second child, Jonathan, was born to Mr and Mrs Venema on 28 February 1995. The Child Welfare Board, aware that Mrs Venema was due to give birth, had on 14 February 1995 applied for a provisional supervision order aimed at the protection of the second child immediately after the birth, but had withdrawn this application on 16 February 1995.
39. The Court of Appeal held a hearing on 1 March 1995.
40. On 15 March 1995 the Court of Appeal dismissed the appeal. It found that the Child Welfare Board had had sufficient reason to approach the juvenile judge as it had done, and that the juvenile judge had had sufficient reason to make the orders in question. It would have been preferable, even so, to have involved the parents in the decision-making process beforehand, or at least at an earlier stage. As matters stood, the experts disagreed amongst themselves. Given the likelihood that the examinations ordered by the juvenile judge would be brought to a conclusion shortly and that the juvenile judge would rescind the placement order immediately if the outcome was favourable to Mr and Mrs Venema, the Court of Appeal decided to confirm the decision of the juvenile judge.
41. On 30 March 1995 the juvenile judge gave a decision prolonging Kimberly's placement away from her family until 6 May 1995. Mr and Mrs Venema appealed.
42. It appears that around 10 April 1995 the access arrangement was modified in that Mr and Mrs Venema were then allowed to see Kimberly once every week instead of once a fortnight. The Government state that the initiative for this change was taken by the juvenile judge.
43. Mr and Mrs Venema lodged an appeal on points of law (cassatieberoep) against the Court of Appeal's decision of 15 March 1995 with the Supreme Court (Hoge Raad) on 24 April 1995.
44. On 2 May 1995 the juvenile judge made an order prolonging Kimberly's placement away from her family until 23 May 1995. Mr and Mrs Venema appealed, complaining among other things that the juvenile judge had not heard them before reaching this decision. On 12 May 1995, after holding a hearing, the Court of Appeal gave a decision confirming the juvenile judge's order. It held that although the juvenile judge had erred in not hearing Mr and Mrs Venema, this error was sufficiently remedied by the appeal hearing. As to the merits of the case, the Court of Appeal agreed that the opinion of the child psychiatrist appointed as an expert pursuant to the order of the juvenile judge was slow in coming but considered nonetheless that the potential danger to Kimberly's life outweighed any disadvantages of Kimberly's placement away from her family. On the same day the Court of Appeal, by a separate decision, declared Mr and Mrs Venema's appeal against the decision of 30 March 1995, which had prolonged the placement order until 6 May, inadmissible because by then it had become devoid of purpose.
45. The child psychiatrist submitted his opinion on 19 May 1995. It contained extensive reports of medical and other examinations and discussions with the applicants, character witnesses and doctors who had treated Kimberly on several occasions after she had stopped breathing. Appended to the opinion were psychiatric reports in standard form on Mr and Mrs Venema, finding no sign of any psychiatric disorder, and a report by two Rotterdam University Hospital paediatricians finding a physical explanation for Kimberly's arrested breathing but no sign of maltreatment. The opinion noted that Kimberly's normal development had been impaired by the proceedings and that Mr and Mrs Venema had found the entire sequence of events profoundly distressing. It concluded without reservation that Kimberly should be handed back to her parents.
46. On 22 May 1995, following a hearing in camera, the juvenile judge rescinded the provisional supervision order and the placement order, at the same time refusing to replace the provisional supervision order with a permanent one. Kimberly was handed back to Mr and Mrs Venema.
47. The Supreme Court not yet having given judgment, Mr and Mrs Venema submitted on 29 August 1995 that they nonetheless had a continued interest in obtaining a decision of that court as to the legality of the measures in question. They stated, in particular, that a finding in their favour would provide them with some form of moral satisfaction; would enable them to take action in tort for damages against the State, Leiden University Hospital and Curium; would prevent further interference with their family life; and would obviate the need for the applicants to take further civil proceedings.
48. The Advocate-General (advocaat-generaal) at the Supreme Court submitted an advisory opinion on 20 December 1995. He expressed the view that the appeal was inadmissible as Mr and Mrs Venema no longer had any legal interest in the outcome of the proceedings. The possible satisfaction of being found in the right was not in itself a sufficient interest. Nor was the possibility of a further civil action for damages, it being by no means obvious that such an action would in fact be made possible by a decision of the Supreme Court. The possibility of further interference with the applicants' family life in the future was not relevant to the case before the Supreme Court. The question whether the State, Leiden University Hospital or Curium had committed a tort against the applicants was outside the scope of the case before the Supreme Court, so that the need, if any, for further civil proceedings could not be considered relevant either. Turning to the merits of the case, the Advocate-General expressed the opinion that the decision of the Court of Appeal was based on adequate legal grounds and sufficiently reasoned.
49. On 26 January 1996 the Supreme Court gave judgment declaring Mr and Mrs Venema's appeal on points of law inadmissible for lack of interest. It was held that the interests stated were insufficient.
50. In the meantime, on 10 May 1995, a discussion took place between a representative of the Legal Proceedings Monitoring Group (Vereniging Voor Nader Onderzoek Rechtspleging – “VVNOR”), a non-governmental organisation that had taken up Mr and Mrs Venema's case, and the Director of the Child Welfare Board. It would appear that the Legal Proceedings Monitoring Group representative showed the Director documents taken from Kimberly's medical records, which had been obtained from Leiden University Hospital and which had been in Mr and Mrs Venema's possession for five weeks.
51. On the same day, 10 May 1995, the Legal Proceedings Monitoring Group transmitted a written statement of complaint on Mr and Mrs Venema's behalf to the Child Welfare Board.
52. On 1 June 1995 the Deputy Director of the Child Welfare Board gave a written decision declaring the complaint partly well-founded and partly ill-founded. Complaints considered well-founded related to the failure to give Mr and Mrs Venema access to certain documents – due to the absence from the file, at the relevant time, of certain meeting reports, and in the case of a list of contacts, due to an omission – and to the application for a provisional supervision order lodged on 14 February 1995 in respect of the second child Mr and Mrs Venema were then expecting. As to the latter issue, it was stated that the said application had been withdrawn on 16 February 1995 because it appeared not to be legally possible to seek a supervision order in respect of an as yet unborn child; the application had therefore been precipitate. The Deputy Director expressed regret for the lapse of time involved.
53. The Legal Proceedings Monitoring Group, on behalf of Mr and Mrs Venema, lodged an appeal with the Child Welfare Boards Complaints Committee no. IV (Klachtencommissie IV bij de raden voor de kinderbescherming), which was received by that body on 23 June 1995.
54. The Complaints Committee held a hearing on 22 August 1995 and gave its decision on the same day. It was considered reasonable that the Child Welfare Board had accepted the assessment of the Leiden University Hospital and Curium doctors that Kimberly's life was in danger; given the apparent urgency of the situation, the Board could not be faulted for not ensuring that the Leiden University Hospital and Curium doctors had obtained Mr and Mrs Venema's prior permission for the transmission to it of medical information. The Board ought, however, to have informed Mr and Mrs Venema in good time that it did not intend to make use of witnesses named by them but intended to rely solely on the court-appointed experts. The Complaints Committee further accepted the Board's statement that the psychiatrist had added to his report of 27 January 1995 a reservation to the effect that it could not be ruled out that Mrs Venema was suffering from the Munchausen syndrome by proxy, not at the bidding of the Child Welfare Board, but in response to a reminder that the report did not contain corroborating information from third-party sources (heteroanamnesis).
55. The case received a measure of publicity. Questions in Parliament and a complaint to the Deputy Minister of Justice (Staatssecretaris van Justitie), lodged on behalf of Mr and Mrs Venema by the Legal Proceedings Monitoring Group, led the Deputy Minister to order an official inquiry into the way the Child Welfare Board had handled the affair.
56. The report of the official inquiry was published on 25 July 1996. Its conclusions, in so far as relevant, may be summarised as follows.
– In deciding to intervene without the prior involvement of Mr and Mrs Venema, the Child Welfare Board had no doubt sought in good faith to protect Kimberly's interests, but it might with advantage “have displayed more creativity in seeking a solution that did more justice to the parents' interests”.
– Given the Child Welfare Board's own lack of psychiatric expertise and the fact that the Munchausen syndrome by proxy is difficult to diagnose, the use which the Child Welfare Board made of a variety of contradictory reports had not been “unacceptable” although it might have assessed them in a more critical fashion.
– A lack of coordination within the Child Welfare Board had delayed the involvement of the child psychiatrist, who was only approached on 16 February 1995. This was regrettable because otherwise the reports might have been complete by the time of the birth of Jonathan.
– The Child Welfare Board's advice to the juvenile judge might have been more complete. As a minimum, the Child Welfare Board could reasonably have been expected to justify the absence of any inquiry of its own and to give more extensive reasons for the choices it made.
– The Child Welfare Board's case-file management and internal reporting were deficient: documents explaining the background to its decisions were not contained in the file.
– The transmission of the report of the psychiatrist to the Leiden University Hospital doctors and Curium had constituted a breach of confidence vis-à-vis Mr and Mrs Venema since, after they had first reported Kimberly's case to the Child Welfare Board, their involvement had ended. Curium in particular had been treated virtually as an external expert body.
– It appeared that Mr and Mrs Venema had not been summoned in writing to the hearing of the juvenile judge on 10 January 1995, notwithstanding the Child Welfare Board's statement to the contrary, but that this was due to a misunderstanding between the registry of the Regional Court and the Board and could not be blamed on the latter.
57. The report went on to formulate recommendations aimed at preventing the recurrence of cases such as the present.
58. According to the Government, the report led the Deputy Minister to conclude that the Child Welfare Board had “acted lawfully and fulfilled its statutory responsibility”, although its internal working procedures deserved some criticism. It had been right for the Board to take firm action and, in view of the nature and seriousness of the complaint, to rely on the expertise of third parties.
59. At the time of the events complained of, there was a child welfare board in the judicial district of each regional court (Article 1:238 § 1 of the Civil Code (Burgerlijk Wetboek – “the CC”), as in force at the time). Their duties included keeping themselves informed of developments affecting child welfare within their area, promoting cooperation between institutions concerned with child welfare and giving advice, upon request or of their own motion, to authorities and institutions (Article 238 § 3 of the CC).
60. Each of the child welfare boards had competence to take action in the interests of the under-aged persons resident in its area (Article 239 § 1 of the CC).
61. At the relevant time, Article 1:254 of the CC provided as follows:
“1. If a child is growing up under such conditions that it is threatened with moral or physical destruction [zedelijke of lichamelijke ondergang], the juvenile judge may order the child to be placed under supervision.
2. He may do so on the application of one of the parents, one of the relatives by marriage or blood up to and including the fourth degree of consanguinity, the child welfare board or the public prosecution service [openbaar ministerie].”
62. Article 1:257 of the CC provided as follows:
“The juvenile judge may place the child under supervision provisionally pending an investigation. A provisional supervision order shall remain in force until a final and binding decision [gewijsde] on supervision is made.”
The relevant part of Article 258 of the CC provided as follows:
“2. The juvenile judge may lift the supervision order at any time. ...”
63. At the material time, Article 1:260 of the CC provided, in its relevant part, as follows:
“4. A child shall only be placed away from its family under ... [Article] 1:263 [of this Code] ...”
64. Article 1:263 of the CC provided, in its relevant part, as follows:
“1. If necessary in the interest of the child's care and upbringing, the juvenile judge shall order the child to be taken into an institution that qualifies for funding under the Juveniles (Assistance) Act [Wet op de Jeugdhulpverlening] or elsewhere. ...”
65. At the relevant time, Article 940 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering – “the CCP”) provided as follows:
“1. No appeal or objection [geenerlei voorziening] is allowed against a provisional supervision order under Article 1:257 of the CC.
2. Such a decision can be given without any prior hearing.”
66. Article 945 of the CCP, in its relevant part, provided as follows:
“3. Each of the parents may appeal against the decisions referred to in this Article [namely decisions under Article 1:263 of the CC].”
67. Complaints about the actions of an agent of a child welfare board could be made to the director of the child welfare board concerned by a person with an interest in a case or an informant who had been affected by those actions. Such complaints could be submitted orally or in writing. The time-limit was two months. If the matter on which the complaint was based was pending before a court, the director had to inform that court of the complaint (section 35 of the 1982 Child Welfare Boards (Organisation) Ordinance – Organisatiebesluit raden voor de kinderbescherming 1982 – which was in force at the relevant time; “the 1982 Ordinance”).
68. The director had to try to reach a solution that was acceptable for the complainant. If that was not possible and the complainant wished to pursue the complaint before the Child Welfare Boards Complaints Committee, the director had to give a decision within four weeks after hearing the complainant and the agent involved (section 36 of the 1982 Ordinance).
69. The complainant had three weeks to refer the complaint to the Child Welfare Boards Complaints Committee (section 37 of the 1982 Ordinance). Unless this committee considered the matter a simple one or the complaint manifestly ill-founded (in which case the matter was dealt with by the Complaints Committee's chairman), it would hear the complainant and the director of the child welfare board and give a reasoned opinion, normally within six weeks after receiving the complaint. It could declare the complaint well-founded or ill-founded. The opinion was sent to the Minister of Justice (sections 37a and 38 of the 1982 Ordinance).
VIOLATED_ARTICLES: 8


ITEMID: 001-69306
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: POGORZELEC v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Andrzej Sylwester Pogorzelec, is a Polish national who was born in 1947 and lives in Godziszka, Poland.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 29 August 1995 the applicant lodged with the Katowice Regional Court a civil action for compensation against the State Treasury - Zabrze Hospital.
On 31 March 1999 the Katowice Regional Court (Sąd Okręgowy) gave judgment in which it dismissed the applicant's action.
The applicant appealed against this judgment.
On 17 November 2000 the Katowice Court of Appeal quashed the impugned judgment and remitted the case to the first-instance court.
At the hearing held on 5 December 2002 the Katowice Regional Court gave judgment. It again dismissed the applicant's action.
The applicant appealed against this decision.
On 12 February 2004 the Katowice Court of Appeal gave a judgment. It dismissed the appeal.
It appears that the parties did not appeal against it and that the judgment became final.
On 12 October 1998, the date on which the application was lodged with the Commission, the proceedings were pending before the Katowice Regional Court.
On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.
Section 2 of the 2004 Act reads, in so far as relevant:
“1. Parties
Section 5 reads, in so far as relevant:
“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”
Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant:
“1. The court shall dismiss a complaint which is unjustified.
2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings.
3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case.
4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”
Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant:
“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.
...”
On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.


ITEMID: 001-71366
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: HACKBARTH v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Ms Nevenka Hackbarth, is a Croatian national, who was born in 1936 and lives in Rijeka. The respondent Government were represented by their Agents, Ms L. Lukina-Karajković and subsequently by Ms Š. Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 24 February 2000 the applicant complained to the Rijeka Office of the Inspection Department of the Ministry for Environmental Protection and Town Planning (Ministarstvo zaštite okoliša i prostornog uređenja – “the Ministry”) that her flat in Rijeka had frequently been flooded from the flat above, where her neighbours M.G. and T.G. were “drilling holes”.
On 6 March and 17 April 2000 the Ministry made in situ inspections in the applicant’s flat and established the existence of damp stains of unknown origin.
On 23 June 2000 the Ministry gave decision (rješenje) finding that, because of the frequent flooding of the applicant’s flat from the neighbouring one, her life and health were in serious danger since the water had also damaged electric installations. The Ministry ordered the neighbours to repair the sewage and water pipes in their flat within five days following the receipt of the decision and indicated that otherwise it would fine them 20,000 Croatian kunas (HRK). Since the parties did not appeal, the decision became final.
On 27 August 2000 the neighbours informed the Ministry that they had made the repairs indicated and thereby complied with the decision.
On 23 October 2000 the Ministry made another in situ inspection and established that the ceiling and the walls were dry and that there were no traces of damp. However, on the same day the applicant informed the Ministry that the wet stains had reappeared.
On 30 October 2000 the Ministry made another in situ inspection during which T.G. promised to call a plumber to repair the pipes.
The applicant submits that on 30 and 31 October 2000 she invited T.G. to inspect her flat and that T.G. did so. She further submits that on 1 November 2000 the plumber shortly visited her flat without making any repairs, and that M.G. also visited her flat with the plumber on four occasions.
On 15 December 2000 the applicant phoned the Ministry and complained that the neighbours had done nothing to stop the leakage. After that date she did not contact the Ministry again.
On 27 December 2000 the Ministry issued an enforcement order (zaključak o dozvoli izvršenja) establishing that its decision of 23 June 2000 had become enforceable and that the neighbours had not complied with it. Consequently, the Ministry fined the neighbours HRK 20,000. The neighbours were again ordered to repair the pipes, or the order would be carried out by another person at their expense.
On 15 January 2001 T.G. informed the Ministry that it was impossible for her to comply with the order. She argued that she had been unable to locate the pipe damage since the applicant had not allowed her or the plumber to enter her flat on two occasions (8 and 9 January 2001). Relying on the same arguments, T.G. appealed against the enforcement order to the second instance authority within the Ministry. On 30 July 2002 her appeal was dismissed.
It appears that, to date, the enforcement order has not been carried out.
The 1990 Croatian Constitution (Ustav Republike Hrvatske, Official Gazette no. 41/01 (consolidated text)) guarantees as fundamental rights, inter alia, the right to a fair trial within a reasonable time (Article 29), the right to respect for home (Article 34) and right to property (Article 48).
Sections 67 -76 of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette nos. 53/1991, 9/1992 and 77/1992) provide for special proceedings for the protection of constitutional rights and freedoms from unlawful (physical) acts (or omissions) of public officials, if no other judicial remedy is available.
Section 67 provides that these proceedings shall be instituted by bringing an ‘action against the unlawful act’ in the competent municipal court. The action shall be brought against the public authority to which the act (or omission) is imputable (the respondent).
Section 71 provides that in the proceedings following an ‘action against the unlawful act’ the court shall proceed urgently.
Section 72 provides that the court shall without delay serve the complaint on the respondent and set a time-limit for reply. However, the court may, depending on the circumstances, give a decision immediately. Under the case-law of the Supreme Court (decision no. Gž-6/1997-2 of 12 November 1997), the court may give a decision even without holding a hearing.
Section 73 provides that the court shall decide on the merits of the case by a judgment. If it finds in favour of the plaintiff, the court shall order the respondent to desist from the unlawful activity and, if necessary, order restitutio in integrum.
Section 74 provides that parties may appeal to the competent county court against the first instance decision within three days following the service. An appeal does not postpone the enforcement, but the court may, if it finds it necessary, decide otherwise. No appeal on points of law (revizija) lies against the second instance decision. In the proceedings following an ‘action against the unlawful act’ the court shall apply mutatis mutandis the provisions of the Civil Procedure Act.
Sections 75 and 76 provide that, if the court finds in favour of the plaintiff, the respondent shall comply with the judgment within three days following the service. If it fails to do so, the enforcement shall be carried out in the judicial enforcement proceedings. In addition, disciplinary proceedings for a grave disciplinary offence shall be instituted against the responsible official who may also be fined.
In its decision no. Us-2099/89 of 21 September 1989 the Administrative Court held that failure of the administrative authorities to carry out their own enforcement order constituted ‘unlawful act’ within the meaning of Section 67 of the Administrative Disputes Act. In its decision no. Gž-9/1993 of 6 April 1993 the Supreme Court reached the same conclusion.


ITEMID: 001-5319
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: BEKTAS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Gaukur Jörundsson;Wilhelmina Thomassen
TEXT: The applicant is a Turkish national, born in 1935 and living in Ankara. He is represented before the Court by Mr Halil İbrahim Özdemir, a lawyer practising in Ankara.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant and his family lived in the Ardıçlı village of the Pülümür district attached to the Tunceli province.
On 14 November 1993 the applicant and his family left their village taking their belongings as a result of pressure from security forces and terrorist organisations. The applicant sold his animals at a very cheap price prior to their departure. He and his family settled in Ankara.
On 10 October 1994 security forces carried out an operation in the region including the applicant’s village. During the operation the security forces burned down the applicant’s house and dairy farm.
On 11 October 1994 the applicant learned of the destruction of his property via a press conference held by the Tunceli Association and the Tunceli Foundation in Ankara.
On 13 October 1994 the applicant filed petitions with the Tunceli Governor’s office, the Prime Minister’s office and the President of the Republic’s office and on 11 December 1995 with the Interior Minister’s office. He complained to the authorities that he and his fellow villagers had been forced to leave their village as a result of pressure and that his house and dairy farm had been burned down by security forces.
On 28 November 1995 an investigation was carried out into the applicant’s allegations on the orders of the Tunceli Governor. The investigation concluded that the applicant and his fellow villagers had left their village as a result of the pressure from PKK terrorists and that the houses in the village had been destroyed due to bad winter conditions.
On 28 November and 20 December 1995 the Tunceli Deputy Governor sent letters in reply to the applicant stating that his house and dairy farm had not been destroyed by the security forces but because of winter conditions.
In 1998 the Tunceli Governor’s office carried out another investigation in the applicant’s village Ardıçlı. The authorities found that there was no trace of burning of the applicant’s house and that the only damage seen on the house was a hole on the roof which have been caused as a result of the winter conditions, namely heavy snow.
According to the official records kept by the military authorities, State security forces did not carry out any operation around the applicant’s village, Ardıçlı.
B. Relevant domestic law and practice
1. Administrative liability
Article 125 of the Turkish Constitution provides as follows:
“All acts or decisions of the administration are subject to judicial review...
The administration shall be liable to indemnify any damage caused by its own acts and measures.”
The above provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose responsibility is of an absolute, objective nature, based on a concept of collective liability and referred to as the theory of “social risk”. Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property.
The principle of administrative liability is reflected in the additional section 1 of Law no. 2935 of 25 October 1983 on the State of Emergency, which provides:
“... actions for compensation in relation to the exercise of the powers conferred by this Law are to be brought against the administration before the administrative courts.”
2. Criminal responsibility
The Turkish Criminal Code makes it a criminal offence:
(a) to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants),
(b) to oblige an individual through force or threats to commit or not to commit an act (Article 188),
(c) to issue threats (Article 191),
(d) to make an unlawful search of an individual’s home (Articles 193 and 194),
(e) to commit arson (Articles 369, 370, 371, 372), or aggravated arson if human life is endangered (Article 382),
(f) to commit arson unintentionally by carelessness, negligence or inexperience (Article 383), or
(g) to damage another’s property intentionally (Articles 516).
For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The Public Prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the Public Prosecutor not to institute criminal proceedings.
If the suspected authors of the contested acts are military personnel, they may also be prosecuted for causing extensive damage, endangering human lives or damaging property, if they have not followed orders in conformity with Articles 86 and 87 of the Military Code. Proceedings in these circumstances may be initiated by the persons concerned (non-military) before the competent authority under the Code of Criminal Procedure, or before the suspected persons’ hierarchical superior (sections 93 and 95 of Law no. 353 on the Constitution and Procedure of Military Courts).
If the alleged author of a crime is an agent of the State, permission to prosecute must be obtained from local administrative councils (the Executive Committee of the Provincial Assembly). The local council decisions may be appealed to the Supreme Administrative Court; a refusal to prosecute is subject to an automatic appeal of this kind.
3. Provisions on compensation
Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts.
Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing.


ITEMID: 001-79756
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: KLEINERT v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr. Holger Kleinert, is a German national who lives in Delitzsch. He was represented before the Court by Mr. Merker, a lawyer practising in Leipzig.
, may be summarised as follows.
The applicant, a dentist, is the father of a daughter born out of wedlock in 1998. As the applicant and the mother with whom the child lives did not give a declaration on joint custody (gemeinsame Sorgerechtserklärung), the mother obtained sole custody (alleinige Personensorge) pursuant to section 1626a § 2 of the German Civil Code (Bürgerliches Gesetzbuch, see relevant domestic law).
The applicant initially had access to the child on a regular basis. The child occasionally stayed with him. The applicant or his parents would also care for the child on weekdays before the mother returned from work. From 2001 to 2003, the applicant had access to the child for one week-end per month and during certain holidays. In September 2003, the Eilenburg District Court ordered that the applicant had the right of access to the child every other week-end and during holidays.
At Easter 2003 the mother informed the applicant that she was planning to move with the child to Mallorca in Spain in order stay with her partner from July 2003. The applicant subsequently instituted civil proceedings in order to obtain the sole right to custody or, alternatively, to prevent the mother from leaving Germany with the child.
On 30 July 2003 the Eilenburg District Court rejected the applicant’s claim. The court heard the applicant, the mother and the child and considered a report from the Youth Office. The child declared that it wanted to be both with the mother and the applicant. The Eilenburg District Court considered the applicant as generally suitable for having the custody of his child and that the decision was therefore not a negative assessment of his suitability. However, the Eilenburg District Court stressed that, in order to transfer custody to the applicant, it was necessary to withdraw it from the mother who had sole custody pursuant to section 1626a § 2 of the Civil Code. The only possibility under the German legislation to withdraw the mother’s custody was therefore pursuant to sections 1666 and 1666a of the Civil Code, according to which the family court may order appropriate measures in case of an abuse of custody and a resulting threat for the child’s physical, psychological or mental well-being. The Eilenburg District Court found that the requirements of these provisions had not been met. The court held that, if the child accompanied her mother to Mallorca, neither her well-being nor her property was endangered in such a way that the only appropriate measure was the withdrawal of the mother’s custody. Admittedly, the child would be taken away from her familiar environment, but this was generally the case when parents moved with their children. It was therefore decisive that the child was able to maintain contacts with familiar persons. Moreover, the child would be able to become familiar with a different culture and a new language. As far as the applicant complained that the mother of the child was not suitable for the exercise of custody, the Eilenburg District Court considered the applicant’s submissions as unfounded. Furthermore, the mother’s decision to move to Mallorca to live with her new partner could not be challenged under section 1684 of the Civil Code as the mother’s reasons for moving were cogent. She had offered the applicant every possible access to his child once she had moved to Spain, and the applicant had the financial means for regular visits so that his right to access was not frustrated.
Shortly after the Eilenburg District Court’s decision, the mother and the child moved to Mallorca.
On 29 October 2003 the Dresden Court of Appeal rejected the applicant’s appeal against the Eilenburg District Court’s decision. The Dresden Court of Appeal heard the child which declared that she preferred to stay in Germany where her friends and her father, whom she loved, were. The court however found that the child’s opposition of her new home in Spain would not last once the child grew up and developped further. Measures in accordance with section 1666 of the Civil Code would require more than a mere abstract danger for the well-being of the child. Because of the short time the child had spent in Spain, it was impossible for her to form relationships similar to the ones she had in Germany. The obviously painful separation from the applicant who had cared for the child to a remarkably large extent could be compensated by the fact that the applicant had the right of access to the child every other week-end and during holidays per court order of the Eilenburg District Court of September 2003. The exercise of his right to access was made more difficult due to the territorial distance but not reduced to an unjustifiable extent. The Dresden Court of Appeal also took into account that the mother had cogent reasons to move to Mallorca in order to live with her new partner.
On 17 February 2004 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint.
The statutory provisions on custody and access are to be found in the German Civil Code. According to section 1626 § 1 of the Civil Code, the father and the mother have the right and the duty to exercise parental authority (elterliche Sorge) over a minor child. The parental authority includes the custody and the care of property (Vermögenssorge) of the child.
Originally, the custody of children born out of wedlock was, according to section 1705 of the Civil Code, automatically obtained by the mother. That provision was however declared unconstitutional by the Federal Constitutional Court in 1996. On 1 July 1998, the amended Law on Family Matters of 16 December 1997 (Reform zum Kindschaftsrecht, Federal Gazette 1997, p. 2942), entered into force to implement the Federal Constitutional Court’s judgment of 1996. The relevant law in the Civil Code was changed as follows: pursuant to section 1626a § 1, the parents of a minor child born out of wedlock jointly exercise custody if they make a declaration to that effect (declaration on joint custody) or if they marry. Otherwise section 1626a § 2 provides that the mother obtains sole custody.
Pursuant to section 1666 of the Civil Code, the family court may order the necessary measures if the child’s physical, psychological or mental well-being is threatened by malpractice of custody if the parents are unwilling to take those measures. Measures which cause a separation of the child from the parent are only admissible if the danger for the child cannot be averted otherwise (section 1666a of the Civil Code).
According to section 1684 of the Civil Code, a child is entitled to have access to both parents; each parent is obliged to have contact with, and entitled to have access to, the child. Moreover, the parents must not do anything that would harm the child’s relationship with the other parent or seriously interfere with the child’s upbringing.
On 29 January 2003, the Federal Constitutional Court found that section 1626a of the Civil Code was unconstitutional because it lacked a provisional period for unmarried couples with children who had lived together in 1996 but separated before the amended Law on Family Matters entered into force on 1 July 1998 (i.e. they could have had the opportunity to obtain joint custody if the legislation at the time would have been constitutional). In order to settle the above constitutional flaws, the German legislator introduced on 31 December 2003 section 224 (2) (a) of the Introductory Act to the Civil Code (Einführungsgesetz in das Bürgerliche Gesetzbuch), according to which a court can substitute the mother’s consent to joint custody if an unmarried couple has a child born out of wedlock, has lived together with the child and has separated before 1 July 1998, provided that joint custody would serve the child’s interest (Kindeswohl).
In its judgment of 29 January 2003, the Federal Constitutional Court however also held that section 1626a § 2 of the Civil Code, apart from the lack of a provisional period, did not violate the right to respect for their family life of fathers whose children were born out of wedlock. Parents who were married had obliged themselves upon marriage to take responsibility for themselves and their children. In contrast to this, the legislator could not assume that parents of children born out of wedlock lived together or wanted to take responsibility for each other. Moreover, there was not sufficient actual evidence that a father of a child born out of wedlock wanted to bear joint responsibility as a general rule. The child’s well-being therefore demanded that the child had a person upon birth which can act for the child in a legally binding way. In view of the very different life conditions into which those children were born into, it was justified to generally grant sole custody to the mother, and not to the father or to both parents. This legislation could also not be objected from a constitutional point of view because the legislator had given parents of children born out of wedlock the possibility to both obtain custody through a joint declaration.


ITEMID: 001-109074
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF VALYAYEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 5. The applicant was born in 1975 and lives in Pereslavl-Zalesskiy, Yaroslavl Region. He is serving a prison sentence in Rybinsk.
6. On 24 July 2000 the applicant was arrested in Pereslavl-Zalesskiy on suspicion of organised murder and robbery. He was placed in a temporary detention facility at the police station (ИВС при УВД – IVS) in Pereslavl-Zalesskiy. On 27 July 2000 he was remanded in pre-trial custody.
7. According to the applicant, at about 6 p.m. on 31 July 2000 the applicant was checked out of the IVS in Pereslavl-Zalesskiy; he was handcuffed with his hands behind his back, blindfolded with a canvas bag pulled over his head, and put on the floor of a police minibus. Several police officers and two other detainees were in the same vehicle. As soon as the vehicle drove off the policemen began punching and kicking the applicant to force him to confess to the murder and to make him sign some documents. They hit him on the body and head, twisted his fingers, pulled on the handcuffs and tightened them behind his back. This lasted for at least ten minutes, until they arrived at a place described by the applicant as “somewhere in a forest”. The applicant was taken out of the vehicle and the beatings resumed. The applicant was spread on the ground, strangled with a rope or a belt, then his shoes were taken off and the police officers hit him on the heels with a wooden baton. The applicant claimed that he passed out several times, but when he regained consciousness the beating resumed; he was hit in the head and on the body, kicked on the groin, and strangled again. The applicant claimed that the ill-treatment in the forest lasted between thirty minutes and one hour. After that the policemen put the applicant back into the van and drove on. In the van they continued to beat and intimidate him. The applicant remained blindfolded the whole time. When they arrived at the Regional Department of the Interior in Yaroslavl the bag was removed from his head and he was checked into the Department’s IVS. He was placed in cell no. 23.
8. The applicant remained in the IVS in Yaroslavl until 3 August 2000. He allegedly requested to see a doctor, but this was refused. On the latter date the applicant was brought back to Pereslavl-Zalesskiy and released there.
9. On 4 August 2000 the applicant saw a doctor at Central District Hospital in Pereslavl-Zalesskiy; he reported the ill-treatment and complained of headaches, vertigo, pain in the chest and abdomen and injuries to his feet and wrists. He was diagnosed with a head injury, possible concussion, and bruises on the chest and on the left foot.
10. On an unidentified date between 6 and 9 August 2000 the applicant requested the prosecutor’s office of the Pereslavl-Zalesskiy District to investigate the ill-treatment in criminal proceedings. On 9 August 2000 the applicant was questioned by the police about the alleged ill-treatment. The case was then assigned to the assistant prosecutor who questioned the applicant on 14 August 2000. Both times the applicant spoke in detail about the episode of 31 July 2000.
11. On 14 August 2000 the assistant prosecutor ordered a medical examination by forensic experts to identify the applicant’s injuries, establish their origin and the time of their occurrence. On the same day he was examined by the forensic expert who then requested the applicant’s medical file from the Central District Hospital.
12. On 15 August 2000 the assistant prosecutor questioned the guard who was on duty at the IVS when the applicant was checked out. He submitted that on 31 July 2000 the applicant was checked out at about 5.30 p.m. by two police officers from the special squadron. After the applicant had been signed out they picked up his belongings, handcuffed the applicant and pulled a canvas bag over his head. Two other detainees were checked out at the same time and were taken away in the same vehicle. As far as he could tell, nobody ill-treated the applicant before the group left the IVS.
13. On 16 August 2000 the assistant prosecutor questioned two detainees, M.A. and S.A., who were transferred to Yaroslavl on 31 July 2000 with the applicant, and on 17 August 2000 he questioned one of the convoy policemen. M.A. and S.A. both said that they did not see anything because they were blindfolded, and that they did not hear any violence during the transfer. The convoy officer submitted that he and other policemen had carried three detainees in the minibus and that they had made no stops on the way and had not used any force during the transfer.
14. On the same day the applicant was detained again, and remained in detention pending trial.
15. On 4 September 2000 the chief medical officer of the Central District Hospital replied to the enquiry from the prosecutor’s office, stating that on 4 August 2000 the applicant had been examined by a traumatologist and had been sent for an X-ray, after which he did not come back to the admissions office. He stated that the applicant had indicated that the injuries were caused on 31 July 2000 and were the result of a domestic accident.
16. On the same day the prosecutor’s office refused to open a criminal investigation into the allegation of ill-treatment, on the grounds that they were unsubstantiated.
17. On 15 September 2000, having received the applicant’s medical file from the hospital, the forensic expert drew a report stating, in so far as relevant, as follows:
On the right side of the abdomen, covering a total area of 10 cm x 7 cm, barely visible, are healing multiple abrasions ..., an abrasion on the outside of the right wrist 1 cm x 0.3 cm ..., on the same level below the elbow bone there is a healing abrasion 5 cm x – 0.4-0.5 cm ... On the inner left wrist there is an abrasion of 1 cm x 0.5 cm ..., on the outside there is a stripe-like abrasion of 3 cm x 0.5 cm. Reports pain during palpation of the right side of the chest at the level of the seventh and the eighth ribs, on the line between the front and armpit, also reports pain when inhaling sharply or coughing. According [to the applicant], he has pain in the soft tissues of the left foot; no injury [can be seen] there. Sought medical aid at the admissions office of the Central District Hospital on 4 and 5 August 2000, [was examined by] traumatologist. Medical files requested.
On 5 August 2000, [record made by] traumatologist. Complains of pain in the right side of the chest, headaches, nausea and vertigo. Beaten up a week ago. Objective finding: condition of medium gravity ... Abdomen soft, painful when palpated. Reports pain during palpation of the left side of the chest ... Diagnosis: bruise on the left side of the chest, bruise on the left foot. On 4 August 2000. Headaches, vertigo ... Diagnosis: closed craniocerebral injury, concussion, bruise on the chest. On 11 August 2000, [record made by] traumatologist. Complains of pain in the fingers. Diagnosis: bruise on the chest. No other records made. The X-ray of the right side of the chest made on 4 August 2000 reveals no bone fractures. ... The X-ray of hands and wrists in straight projection reveals no bone fractures. The X-ray of heel bones in two projections reveals no bone fractures. Treatment by traumatologist continues ... .
1. On 14 August 2000 a medical examination established that Mr Valyayev had healing abrasions on the abdomen and the right and left wrist, caused by blunt hard object(s). The abrasions on the wrists could have been caused by objects like handcuffs. These injuries could have dated back to ten to fifteen days prior to the examination.
2. These injuries caused no damage to health.
3. The clinically established diagnosis of concussion is not supported by objective clinical data, and therefore its gravity is not susceptible to evaluation.”
18. The applicant was not informed of the results of the forensic examination and was not provided with a copy of the report.
19. On 30 October 2000 the applicant received a letter informing him of the decision dispensing with a criminal investigation into the alleged ill-treatment. On 2 November 2000 he lodged a complaint with the prosecutor of Pereslavl-Zalesskiy contesting that decision.
20. On 16 November 2000 the Central District Hospital provided the prosecutor’s office with an extract from the applicant’s medical file. It stated that on 4 August 2000 the applicant complained of pains in the head and chest and was sent for X-ray screening. On 5 August 2000 he was examined by a traumatologist. The chest and head X-ray did not reveal any pathology. He was diagnosed with bruises on the chest and left foot. On 11 August 2000 he was again examined by the traumatologist, with the same diagnosis, and by the neurologist who diagnosed him with a head injury and possible concussion.
21. On 28 November 2000 the applicant requested the prosecutor’s office to send him a copy of the forensic report.
22. On 6 December 2000 the prosecutor’s office issued another decision refusing to institute criminal proceedings into the alleged ill-treatment. It relied on the statements of the IVS staff and the cellmate denying that force had been applied to the applicant at the IVS.
23. As he had received no reply to his letter of 28 November 2000, on 28 December 2000 the applicant reiterated his request for a copy of the forensic report.
24. On 30 January 2001 the applicant’s cellmate at the IVS in Yaroslavl, S., wrote to the prosecutor’s office of Pereslavl-Zalesskiy confirming the applicant’s allegations of ill-treatment. He contended that on 31 July 2000 at about 9 p.m. the applicant was placed in cell no. 23; that he was bleeding and bruised, his clothes were torn and bloodstained and he was unable to move around the cell without help. He had confirmed that the applicant had apparently been tortured by the special squadron police during his transfer from Pereslavl-Zalesskiy and stated that no medical help was provided to the applicant at the detention facility.
25. On an unspecified date the same assistant prosecutor requested a further report on the applicant. On 14 February 2001 an expert drew up the report. The applicant himself was not present, and the expert studied only a one-page extract of the applicant’s medical file issued on 16 November 2000. He concluded that it contained insufficient information and that, in the absence of the original medical documents, he could not establish whether the applicant had suffered any injuries.
26. On the same day the prosecutor’s office refused again to institute criminal proceedings into the alleged ill-treatment, referring to the statements of S.A. and M.A. and to the fact that the expert had been unable to establish any injuries in the report of 14 February 2001.
27. On 23 February 2001, following complaints by the applicant, the Prosecutor’s Office of the Yaroslavl Region quashed the decision of 14 February 2001 and ordered the inquiry to be continued. She gave detailed instructions to the prosecutor’s office of Pereslavl-Zalesskiy to carry out a number of steps to verify the allegations, including questioning of the medical personnel who examined the applicant on 4 and 11 August 2000, obtaining the original medical records, establishing the identity of the staff members who had made or required the extracts of the medical files, and questioning IVS staff and cellmates about the applicant’s injuries.
28. On 23 April 2001 the prosecutor’s office of Pereslavl-Zalesskiy took a new decision refusing to institute criminal proceedings into the alleged ill-treatment. The decision essentially reiterated the preceding ones and concluded that the applicant’s allegations were unsubstantiated. The applicant complained to the prosecutor’s office about the refusal to hold an investigation and requested access to the file.
29. On 20 July 2001 S.A. wrote to the applicant to apologise for the false statement he had made to the office of the prosecutor conducting the ill-treatment inquiry. He explained that although he had remembered the “monstrous” beatings the applicant was subjected to during the transfer, he felt that telling about it would put him at risk.
30. On 23 July 2001 the Yaroslavl Regional Court held a hearing in the applicant’s criminal case and gave judgment. The applicant was found guilty of burglary and aggravated murder and sentenced to twenty years’ imprisonment. During the trial the applicant complained of ill-treatment, and several witnesses testified that he been injured. The court did not examine the issue further.
31. Following requests by the applicant, on 5 December 2001 and 6 February 2002 the prosecutor’s office refused to grant him access to the inquiry file. The applicant challenged the refusal before the Pereslavl District Court. On 14 August 2002 the court granted the applicant’s claim and ordered the prosecutor’s office to give the applicant access to the case file. Sixty-five pages of copies of the documents were sent to the applicant on 10 November 2002. They did not include the expert report of 15 September 2000.
32. On an unidentified date the applicant challenged the decision of 23 April 2001 refusing the investigation of his ill-treatment before the Pereslavl District Court. Among other arguments he referred to the forensic examination that he underwent on 14 August 2000 and requested that the results be included in the case file. On 28 July 2003 the court returned his complaint, stating that it could not examine the matter while a similar complaint was under examination by the prosecutor’s office. The applicant appealed.
33. On 30 September 2003 the Deputy President of the Yaroslavl Regional Court replied to the applicant that the Pereslavl District Court had never received the applicant’s complaint challenging the decision of 23 April 2001, and that in any event the latter was not amenable to judicial review because the applicant’s arguments had already been examined in substance in the criminal proceedings against the applicant which had ended in his conviction.
34. Despite the above letter, the applicant’s complaint was subsequently accepted for examination by the Pereslavl District Court, and the applicant requested to attend the hearing. He also requested that his lawyer be informed about the date of the court hearing. The applicant claims that neither he nor his lawyer were notified of when the hearing was scheduled.
35. On 9 July 2004 the court examined the complaint. Neither the applicant nor his counsel were present, but the public prosecutor took part in the hearing. The court upheld the decision of 23 April 2001 dispensing with a criminal investigation. The applicant appealed.
36. On 17 December 2004 the Yaroslavl Regional Court examined the applicant’s appeal and upheld the decision of 9 July 2004, finding the allegations of ill-treatment unsubstantiated and the prosecutor’s decision well-founded. It appears that neither the applicant nor his lawyer were present at the hearing, while the prosecutor was.
37. On 25 June 2009 the Court gave notice of this application to the respondent Government.
38. On 21 August 2009 the Prosecutor of the Yaroslavl Region submitted a request to the Yaroslavl Regional Court to have the decisions of 9 July 2004 and 17 December 2004 quashed in supervisory-review proceedings. The ground for the request was the absence of the applicant from the proceedings at both levels of jurisdiction. On 2 September 2009 that request was granted, and the applicant’s complaint was remitted for fresh examination by the district court.
39. On 16 September 2009 the Yaroslavl Department of the Interior issued a report on the internal inquiry relating to the applicant’s complaints of ill-treatment. Having referred to the previous decisions by the prosecutor’s office and the courts, it stated that the applicant’s allegations of ill-treatment were unsubstantiated.
40. On 17 September 2009 the Pereslavl District Court scheduled a hearing on 23 September 2009 and ordered that the applicant be brought from the correctional facility to take part in the proceedings. The applicant requested three times that the hearing be postponed. The requests were granted, the first time to allow him time for preparation, the second time following the replacement of his counsel and the third time to allow him more time to read the file. The hearing was postponed until 27 October 2009, then until 10 November 2009, and finally until 20 November 2009.
41. On the latter date the court began examining the applicant’s claim. The applicant was present at the hearing and made oral submissions. The hearing continued until 30 November 2009, when the court held a judgment dismissing the claims. The applicant appealed.
42. On 2 April 2010 the Yaroslavl Regional Court granted the applicant’s appeal, reversed the judgment of 30 November 2009 and remitted the case for fresh examination by the district court.
43. On 2 June 2010 the district court examined the applicant’s claims in fresh proceedings and granted them in full. It noted that the prosecutor’s office had not taken all the measures necessary to enable a reasoned, lawful and well-grounded decision, in particular that it had failed to take into account the results of the forensic examination that took place on 14 August 2000. It therefore declared the refusal to investigate the applicant’s allegations of ill-treatment in criminal proceedings unlawful and ordered the prosecutor’s office to rectify the omissions.
44. On 23 July 2010 the Yaroslavl Regional Court upheld the judgment of 2 June 2010.
45. The parties did not inform the Court what follow-up measures had been taken by the prosecutor’s office, if any.
VIOLATED_ARTICLES: 3