ITEMID: 001-117125
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF ALPATU ISRAILOVA v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Liberty of person;Security of person);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Life);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Inhuman treatment;Prohibition of torture);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award
JUDGES: Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković
TEXT: 6. The applicant was born in 1955 and lives in Khasavyurt, Dagestan. She is the wife of Yeraly Israilov, born in 1953. Her family, including her two sons A.I. and M.I., lives in the settlement of Novye Plany, the village of Khasavyurt, which is situated on the administrative border with Chechnya.
7. The description of the events of 19-23 October 2004 set out below is based on the written statements given by the applicant, her sons A.I. and M.I., her nephew R.I., and by ten of their relatives and neighbours. Some of the statements were collected by the applicant’s lawyer in May 2005, while others were undated.
8. On 19 October 2004 at about 2 p.m. a special operation was carried out in Novye Plany, during which the neighbourhood was searched. The applicant believed that the operation had targeted a wounded member of an illegal armed group who had been in hiding there. The operation was apparently unsuccessful.
9. Later on the same day, at around 7 p.m., a group of servicemen of the Khasavyurt district department of the interior (“the Khasavyurt ROVD”) and servicemen of the Gudermes (Chechnya) ROVD arrived at the applicant’s house in three vehicles – two Zhiguli cars and one UAZ allterrain vehicle. At that time the applicant, her husband Yeraly Israilov, their two sons A.I. and M.I., M.I.’s wife Kheda and Yeraly Israilov’s nephew R.I. were at home.
10. A group of men in military camouflage uniforms formed a circle around the house, while others entered the house and spread out through the rooms. They ordered everyone inside to lie on the floor. Among the intruders Yeraly Israilov recognised a tall grey-haired man aged about forty-five to fifty, who originated from Gudermes, Chechnya. The man also recognised the applicant’s husband, who had lived in Gudermes between 1979 and 1994. Then Yeraly Israilov was allowed to get up from the floor and dress himself.
11. The applicant’s two sons and nephew were ordered to stand against the wall and were searched. The servicemen searched the house, including the cellar and the roof space. They collected the passports of the four men and a mobile phone.
12. Yeraly Israilov, his two sons and nephew were then ordered to get into a UAZ vehicle parked outside of the house. The vehicles went to the premises of the Khasavyurt ROVD, where three or four men in uniforms got out. About five or ten minutes later the UAZ with the four detainees, together with other cars, went on further towards Chechnya.
13. In the meantime, the applicant and her relatives and neighbours went to the Khasavyurt ROVD’s premises. They submitted that up to 200 people had gathered there and demanded that the detainees be released. They were assured by the ROVD servicemen that the four men had been taken to the Gudermes ROVD’s premises in Chechnya for questioning and that they would be released without delay. After that the crowd dispersed.
14. According to the statements given by A.I., M.I. and R.I., after about forty minutes’ drive the cars arrived at the Gudermes ROVD’s premises, where the four men were ordered to get out. Without any registration in the custody log having been made, each was taken to a separate room and questioned. A.I. submitted that he had been questioned by an investigator named “Aleksey”, who had asked him about the whereabouts of some men he did not know. He spent the rest of the night sitting on a chair in a room on the third floor.
15. M.I. was also taken to a room on the second floor and questioned by a man wearing uniform who presented himself as “Lieutenant-Colonel Sanya”. The latter had noted down M.I.’s “explanations” and had left him to sleep in the same room.
16. Similarly, R.I. described how he had been questioned during the night by two men who had asked him questions about his uncle, Yeraly Israilov, and what had happened in their settlement in the past two weeks.
17. During the evening on 20 October 2004 the four detainees were brought together in one room and given food delivered by their relatives. After that, Yeraly Israilov was taken away, while his two sons and nephew were brought to an administrative detention cell, where they spent the night. That was the last time Yeraly Israilov was seen by his relatives.
18. On 21 October 2004 A.I., M.I. and R.I. were again taken to separate rooms and questioned. They understood from the questions that Yeraly Israilov had been suspected of aiding a distant relative who had been a member of illegal armed groups. The young men denied either knowing that relative or anything about his whereabouts. M.I. and R.I. claimed that on 21 October 2004 they each had been beaten and threatened in order to extract information about their relative. Later that day they encountered a serviceman named Said, who had known their family. In the evening on 21 October 2004 the three young men were brought together in one of the rooms of the ROVD’s building. They spent the following day there, while Said brought them food delivered by their relatives.
19. At about noon on 23 October 2004 the head of the Gudermes ROVD, Arslan D., called A.I., M.I. and R.I. into his office and told them that they would be released. He returned their passports and the mobile phone to them. He also instructed them not to tell anyone about their detention. They were escorted outside of the building, where their relatives, including the applicant, had been waiting. From Arslan D. and from Said they understood that Yeraly Israilov had been taken to the village of Khosin-Yurt for further questioning and would be released later.
20. The applicant and other relatives continued to look for Yeraly Israilov. They applied to various official bodies, including the local prosecutor’s office, the offices of the Ministry of the Interior, public authorities and related the story of Yeraly Israilov’s arrest and disappearance. However, they received very little information about his whereabouts. Mostly their letters were forwarded to various prosecutors. The applicant stated that she had not kept track of her initial applications to the authorities, as she had still been hopeful that her husband would soon be released. A summary of the relevant information is set out below.
21. On 8 February 2005 the applicant and several neighbours signed a letter to the President’s Envoy for the Southern Federal Circuit. In it they referred to their previous applications to that office, as well as to the Chechnya and Dagestan Prosecutor’s Offices and to the Gudermes ROVD. They submitted that Mr Israilov had been detained in relation to the activities of his relative who had been a member of an illegal armed group and stressed that Yeraly Israilov had maintained no contacts with that man and could not be charged with an offence.
22. On 16 March 2005 the Khasavyurt Town Prosecutor’s Office (“the town prosecutor’s office”) informed the applicant that they had investigated her complaint and found out that on 19 October 2004 A.I., M.I. and R.I., as well as Yeraly Israilov, had been brought to the Gudermes ROVD in order for that authority to check whether they were involved in illegal armed groups. On 23 October 2004 A.I., M.I. and R.I. had been released after questioning, while Yeraly Israilov had not been released to date. The prosecutor’s office referred to the statements given by the applicant and her sons and to explanations produced by the staff of the Khasavyurt ROVD. It informed the applicant that the law-enforcement authorities for the Gudermes district had not yet replied to the requests concerning the whereabouts of Yeraly Israilov and that she should herself enquire with the law-enforcement authorities in Chechnya where he had been detained.
23. On 14 June 2005 the applicant applied to the Khasavyurt Town Court (“the town court”), seeking an order obliging the town prosecutor’s office to open a criminal investigation into the unlawful detention and subsequent disappearance of her husband. She referred to her futile attempts to obtain information about him and to the authorities’ inactivity.
24. On 27 July 2005 the town court rejected the applicant’s complaint. It found that the applicant’s husband had been detained by the Gudermes ROVD and that all complaints arising in this respect should be directed to the Gudermes District Prosecutor’s Office in Chechnya. The applicant appealed against this decision, and on 1 November 2005 the Dagestan Supreme Court quashed the trial court decision. On 14 December 2005 the town court again rejected the applicant’s complaint.
25. In July 2008 the applicant’s daughter asked the Ombudsman of Chechnya to assist her in finding her father. She complained about the failure to act by the Gudermes ROVD.
26. It appears that this request was forwarded to the Chechnya Prosecutor, following which a criminal investigation was opened. In October 2008 the applicant and other relatives were summoned to the Gudermes department of the Investigative Committee of the Chechnya Prosecutor’s Office for questioning (hereinafter “the Gudermes department”). They related the details of their relative’s disappearance. On 6 October 2008, and then on 6 November 2008, the Gudermes department ruled not to open criminal proceedings upon the applicant’s and her relatives’ complaints, in view of the absence of a criminal event. Both decisions were then quashed by a supervising investigator.
27. On 15 December 2008 the Gudermes department opened criminal investigation file no. 44060. On 26 December 2008 and on 4 February 2009 the applicant, A.I. and M.I. were granted the status of victims. The decisions stated:
“On 19 October 2004 at about 6-7 p.m. servicemen of the Khasavyurt (Dagestan) ROVD and of the Gudermes (Chechnya) ROVD carried out search and operational actions in the Khutor settlement of Khasavyurt in Dagestan. During this operation Yeraly Israilov, [A.I., M.I. and R.I.] were detained. On the same date the detainees were brought to the [premises of the] Gudermes [R]OVD in Chechnya.
On 23 October 2004 all the detainees were released from the Gudermes [R]OVD; following which [A.I., M.I. and R.I.] returned to their place of residence; while there has been no news of Yeraly Israilov, born on 16 November 1953.”
In January 2009 investigators of the same department examined and made photographs of the applicant’s house in Khasavyurt.
28. In reply to the Court’s request, the Government submitted two volumes of documents – copies of criminal investigation file no. 44060, comprising 422 pages.
29. In addition to the applicant’s and her relatives’ statements, summarised above, the file contained several statements by the servicemen of the Gudermes ROVD, including the head of the ROVD’s criminal investigations department. They confirmed that in October 2004 the four Israilov family members had been detained in Khasavyurt in Dagestan, during a search for their relative A.A., an active member of an illegal armed group. In particular, Mr D., the then head of the ROVD’s criminal investigations department, stated that the four men had been brought to the Gudermes ROVD and questioned, but no entries of their detention had been made. They had been released several hours later. The investigation also collected and examined, in January 2009, the ROVD’s detention entry log for 2004; it contained no entries in respect of the Israilovs.
30. In February 2009 the head of the Gudermes department asked the Chechnya Minister of the Interior to carry out an internal investigation in view of the suspicion that the servicemen of the Gudermes ROVD had committed criminal offences (unlawful deprivation of liberty and abuse of authority).
31. In February 2009 the head of the Khasavyurt ROVD denied, in writing, that their servicemen had taken part in a joint operation with the Gudermes ROVD on the date in question.
32. On 21 March 2009 an investigator from the Gudermes department drew up an “overview report” of the investigation. He concluded that the statements of the servicemen of the Gudermes ROVD to the effect that Yeraly Israilov had been released were not corroborated by the case materials. This report, as well as two reports of 24 and 27 March 2009 produced by investigators from the same department, noted that the four men had been detained by the ROVD for three days without registration.
33. In April 2009 the Chechnya Department of the Investigative Committee (“the Chechnya department”) took charge of the investigation, in order to ensure impartiality and to avoid possible conflicts of interest arising from the involvement of the Gudermes department, as there was sufficient information to suspect that the servicemen of the Gudermes ROVD had been implicated in the crime.
34. In April 2009 the Chechnya Ministry of the Interior submitted their internal report to the Chechnya department. It found out that four servicemen who had taken part in the operation in Khasavyurt in October 2004 had died on various dates. The statements of the other servicemen and the examination of the documents had disclosed “irreconcilable differences in the statements”, which could only be resolved within the criminal investigation. Thus, the internal inquiry was closed and the documents collected were forwarded to the Investigative Committee.
35. In June 2009 the Chechnya department forwarded the case to the Gudermes department for further investigation. In response, a senior investigator of the Gudermes department again asked for the case to be transferred to the Chechnya department for the following reasons:
“The preliminary investigation has obtained sufficient evidence to implicate the head of the criminal police and the head of the criminal investigations departments of the Gudermes ROVD in the illegal detention of Israilov Ye., [A.I., M.I. and R.I.], and the disappearance of Israilov Ye. However, no decision in respect of the head of the criminal police department [Mr M.] and the former head of the criminal investigations department [Mr D.] have been taken, under Article 286 part 3 of the Criminal Code. ... The abuse of authority by the [R]OVD servicemen, entailing serious consequences, is confirmed not only by the evidence collected, but also by the reports of the head of the criminal investigations department [Mr D.], [and] senior police investigator [M.] of 12 April 2005, whereby they had informed the head of the ROVD that upon the release of Ye. Israilov, in the courtyard of the ROVD’s premises, servicemen of regiment no. 2 of the Ministry of the Interior’s patrol service [сотрудники полка ППСМ №2 МВД по ЧР] suggested that the released man should come with them. Having seen this, the head of the criminal investigations department of the ROVD suggested to the patrol servicemen that they should record this with the ROVD’s duty officer of the ROVD [ОДЧ РОВД]. The foregoing proves, without any doubt, the implication of the above-named officers in the disappearance of Ye. Israilov.”
The report proceeded to request, once again, that the investigation be transferred from the Gudermes department in view of the close relationship between the local police and the investigators, which it stated could have a bearing on the objectivity of the results of the investigation.
36. The investigation has been adjourned and reopened on several occasions for failure to identify the culprits. The Government referred to the latest decision to reopen the proceedings of 10 November 2009.
37. The applicant submitted that since 2009 she and her relatives had been regularly summoned to Gudermes in Chechnya for questioning. These questioning sessions, although formally related to the investigation of her husband’s disappearance, had involved statements and questions being made by the officers which had concerned the applicant’s complaint lodged with the Court and her relationship with the lawyer representing her. The applicant stated, in particular, that she had been told that Mrs Moskalenko had received a significant sum of money for her legal representation in the matter which would not be shared with her and that she had been advised to cancel the legal services agreement she had entered into with that lawyer. On 30 March 2009 the applicant signed a written statement addressed to a lawyer representing her in the domestic proceedings describing these events.
38. In response to the Court’s request, the Government produced copies of the statements and records of the investigative measures taken involving the applicant and her two sons that were drawn up in 2009 and 2010 by the officers of the Gudermes department. Thus, the applicant was questioned on 12 May and 8 December 2009. Her son M.I. was questioned on 4 February 2009 and 14 January 2010, and her son A.I. was questioned on 14 January 2010. On 3 December 2009 and 25 February 2010 the applicant and her two sons took part in confrontations with three officers of the Gudermes ROVD implicated in the events. Her sons had also identified the rooms and premises of the ROVD where they had been detained. The records, cosigned by the applicant and her family members, were confined to the events of October 2004 and to a detailed description of Yeraly Israilov, such as the clothes he had been wearing on the day of his abduction. They did not mention the applicant’s complaint to the Court or the question of her representation.
39. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).
VIOLATED_ARTICLES: 13
2
3
5
8
VIOLATED_PARAGRAPHS: 2-1
5-1
8-1
NON_VIOLATED_ARTICLES: 3
34


ITEMID: 001-66915
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: BOCZY v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Antal Bőczy, is a Hungarian national, who was born in 1957 and lives in Budapest. The respondent Government are represented by Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 1 December 1994 the Budapest and Pest County Pension Authority dismissed the applicant's request for a disability pension. On 19 January 1995 the Pension Authority's Director dismissed his administrative appeal. Subsequently, the applicant challenged this decision before the Pest Central District Court.
On 12 November 1996 the District Court held a hearing. On 17 December 1996 it appointed the Judicial Medical Expert Institute to examine the applicant's state of health. On 26 March 1997 the Institute submitted its opinion.
On 10 November 1997 the District Court held a hearing. On 24 November 1997 it appointed the Medical Science Council's Judicial Committee to give a second opinion. The Committee submitted its opinion on 2 March 1998.
On 11 May 1998 the District Court held a further hearing and stayed the proceedings at the applicant's request. On 6 October 1998 he requested that the proceedings be resumed.
On 11 November 1998 the District Court held a hearing and dismissed the applicant's claims. The District Court was satisfied that, in view of his working capacity, the applicant was not eligible for a disability pension. On 29 December 1998 the applicant appealed against this decision.
In the appeal proceedings, on 16 November 1999 the Budapest Regional Court held a hearing. On 29 February 2000 it upheld the first-instance decision.
On 9 October 2000 the applicant requested the re-opening of the case. On 26 April 2001 the Pest Central District Court held a hearing. Relying on further documents and the opinion of an expert, on 31 October 2002 the court rejected the applicant's request. On 30 September 2003 the Budapest Regional Court dismissed the applicant's appeal.


ITEMID: 001-79619
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: PAVEL IVANOV v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Pavel Petrovich Ivanov, is a Russian national who was born in 1948 and lives in Velikiy Novgorod.
The applicant is the sole founder, owner and editor of the Russkoye Veche newspaper. The newspaper has been published monthly since 2000 at the applicant's expense and has a circulation of 999 copies.
In 2003 the applicant was committed for trial on a charge of public incitement to ethnic, racial and religious hatred through the use of the mass-media (an offence under Article 282 § 1 of the Criminal Code). The prosecution's case was that the applicant, through a series of publications in his newspaper, called for the exclusion of Jews from social life, alleged the existence of a causal link between social, economic and political discomfort and the activities of Jews, and portrayed the malignancy of the Jewish ethnic group.
The case was tried by the Novgorod Town Court.
At the trial the applicant asserted his innocence, maintaining that the “Ziono-Fascist leadership of the Jewry” was the source of all evils in Russia. He believed that, in the absence of reliable information, the Russian public could not learn the causes and reasons of its predicament. The aim of the publications in his newspaper had been to “[educate] the Russians and Jews who [had] suffered from Ziono-Fascist ideology”.
On 8 September 2003 the Town Court acquitted the applicant, finding that it was not proven that he was the author of the publication. On 14 October 2003 the Novgorod Regional Court quashed the acquittal and remitted the case.
On 9 and 30 December 2003 the Town Court refused the applicant's petitions for a new socio-humanitarian and authorship report into his publications.
On 10 February 2004 the applicant asked the Town Court to commission a history-social report that would clarify the following questions:
“1. Are the Jews a race?
2. Are the Jews a nation?
3. If the Jews are a nation, from what historical period?
4. Are the Jews in Russia a nation or a Judaic diaspora?
5. May the adjective 'national' or the term 'national dignity' be used in respect of a member of the Judaic diaspora?”
On 11 February 2004 the Town Court refused the applicant's request, noting that the answers to those questions had already been obtained by the initial socio-humanitarian report. The Town Court also noted:
“In the court's view, it is a generally accepted fact that members of any nation, nationality or ethnic group have national dignity, which is determined by their national self-consciousness, on the basis of which they identify themselves as members of that ethnic group.”
On 20 February 2004 the Novgorod Town Court found the applicant guilty of inciting to racial, national and religious hatred and prohibited him from engaging in journalism, publishing and disseminating in the mass-media for a period of three years. The finding of guilt was based, in particular, on socio-humanitarian, socio-psychological and linguistic reports and on oral testimony by the experts. The applicant maintained before the court that he could not have incited to national hatred because the Jews did not exist as a race or nation.
The applicant lodged an appeal, reiterating that the Town Court wrongly considered that the “Jewish nation” existed.
On 27 April 2004 the Novgorod Regional Court upheld the conviction. It struck down the prohibition on journalistic activity because that particular form of penalty had been introduced into the Criminal Code after the imputed events, and instead sentenced the applicant to a fine of 10,000 Russian roubles (approximately 300 euros).


ITEMID: 001-58144
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF KOPP v. SWITZERLAND
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 8;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings
JUDGES: C. Russo
TEXT: 6. Mr Hans W. Kopp, a Swiss national born in 1931, was formerly a lawyer and lives in Zürich (Switzerland).
7. The applicant’s wife, Mrs Elisabeth Kopp, was a member of the Federal Council and head of the Federal Department of Justice and Police from 1984 until her resignation in January 1989.
8. On 28 February 1988 a Mr Hauser, a member of the law firm Kopp & Partners, was asked by a client to verify the legality of a request for judicial assistance sent to Switzerland by the United States authorities concerning a tax matter. After studying the file, Mr Hauser declined to accept the work, referring to a standing instruction to members of the applicant’s firm to refuse all cases concerning the Federal Department of Justice and Police, for which his wife was at that time responsible. The file was accordingly transferred to the law firm Niederer, Kraft & Frey in Zürich.
9. On 10 June 1988 Niederer, Kraft & Frey asked the Federal Office of Police if they could inspect the letter of request. On 23 August 1988 the Federal Office sent the firm an abridged (gestrippte) version of the document, withholding a confidential section which concerned organised crime.
10. In November 1988, in a separate development, the media reported allegations that a company, Shakarchi Trading AG, and Mr Kopp, who was at the relevant time the vice-chairman of its board of directors, were implicated in money laundering. At the end of 1988 Mr Kopp lodged a complaint against a newspaper.
11. At his wife’s request, the applicant had resigned as vice-chairman of the board in October 1988. His wife then came under suspicion of disclosing confidential information obtained in an official capacity. As her husband was also suspected of other offences, she was obliged to resign.
12. On 31 January 1989 the Swiss parliament set up a parliamentary commission of inquiry to look into the way Mrs Kopp had performed her duties, and the circumstances of her resignation.
13. In February 1989 the chairman of the parliamentary commission of inquiry, Mr Leuenberger, was informed that a Mr X, an American citizen, had obtained from the applicant a document which the Federal Office of Police and the Federal Court had refused to communicate to him, in exchange for a payment of 250,000 Swiss francs. Mr Leuenberger was given this information by a Mr Y, who had himself obtained it from the initial informant, a Mr Z.
14. It subsequently transpired that Mr X was named in the American letter of request, which contained confidential information about his role in organised crime. Suspicion therefore arose that a member of the Federal Department of Justice and Police might have passed on confidential documents relating to the request, thus breaching the duty not to disclose official secrets.
15. On 21 November 1989 the Federal Public Prosecutor opened an investigation against a person or persons unknown in order to question the informant Y and to identify the person working at the Federal Department of Justice and Police who might have disclosed official secrets.
16. He also ordered monitoring of the telephone lines of the informants Y and X, and of those of Mr Kopp and his wife. The applicant was monitored as a “third party”, not as a suspect.
17. The monitoring began on 21 November 1989 and ended on 11 December 1989.
18. On 23 November 1989 the President of the Indictment Division of the Federal Court allowed an application by the Federal Public Prosecutor for monitoring of thirteen telephone lines in total, including the applicant’s private and professional lines and those of his wife, and in particular a secret line allocated to her as a former member of the Federal Council. The order expressly mentioned that “the lawyers’ conversations [were] not to be taken into account”.
19. On 24 November 1989 the parliamentary commission of inquiry published its report. It concluded that Mrs Kopp had performed her duties with competence, diligence and circumspection, and that the rumours to the effect that she had allowed external influences to affect the way she performed her duties were unfounded. In February 1990 the Federal Court acquitted Mrs Kopp of disclosing official secrets.
20. On 1 December 1989 the Federal Public Prosecutor’s Office interviewed the informant Y, in the presence of the chairman of the parliamentary commission, Mr Leuenberger.
21. On 4 December 1989 Mr Leuenberger contacted the informant Z, who was interviewed by the Federal Public Prosecutor’s Office on 8 December.
22. On 12 December 1989, having concluded that the suspicions regarding the disclosure of official secrets were unfounded, the Federal Public Prosecutor’s Office discontinued monitoring of all Mr and Mrs Kopp’s telephone lines.
23. On 14 December 1989 the Federal Public Prosecutor’s Office submitted its final report on the investigation, which stated that in 1988 Mr Hauser had passed on to the firm of Niederer, Kraft & Frey a file relating to the letter of request (see paragraph 8 above) and that there was no evidence that the applicant and his wife had been directly involved in that case.
24. On 6 March 1990 the Federal Public Prosecutor’s Office decided to close the investigation, on the ground that there was no evidence to corroborate the suspicions that the applicant’s wife or a member of the Federal Department of Justice and Police had disclosed official secrets, namely certain passages of the letter of request which had been classified as confidential.
25. In a letter of 9 March 1990 the Federal Public Prosecutor’s Office informed Mr Kopp that a judicial investigation had been opened, pursuant to Articles 320 and 340 § 1 (7) of the Criminal Code (see paragraph 34 below), in connection with the suspected disclosure of official secrets, and that his private and professional telephone lines had been tapped, in accordance with sections 66 et seq. of the Federal Criminal Procedure Act (see paragraphs 35–38 below).
The letter stated that the monitoring had lasted from 21 November to 11 December 1989 and that “conversations connected with his professional activities as a lawyer [had not been] monitored”. It also stated that, pursuant to section 66(1 ter) of the Federal Criminal Procedure Act, all the recordings had been destroyed.
26. On 12 March 1990 the parliamentary commission of inquiry issued a communiqué concerning the monitoring of Mr Kopp’s telephone lines in connection with the judicial investigation concerning him. It stated in particular:
“In the course of its inquiries, in connection with which it obtained authorisation to intercept telephone communications, the [Federal] Public Prosecutor’s Office discovered that the American citizen’s Swiss representatives had tried to obtain the confidential document in the file by applying to [the applicant]. They were hoping for privileged access to the Federal Department of Justice and Police on account of the fact that he was the husband of the Federal Councillor then responsible for that Department. For a fee, a lawyer from [the applicant]’s law firm studied the file in order to decide whether to take on the case, but turned it down. An attempt was then made to obtain the confidential part of the file through another lawyer. The American letter of request was in the end disclosed, but only after the confidential passages had been blotted out. On the basis of these findings, the Federal Public Prosecutor’s Office discontinued the investigation… The suspicion that there had been a disclosure of official secrets thus proved to be unfounded. The police investigation did, however, reveal how the rumour that led to the information and the suspicion arose.”
27. On 13 March 1990 a number of Swiss newspapers commented on the above communiqué. They mentioned the applicant among the persons implicated and mentioned that telephones had been tapped.
28. On 10 April, 3 September and 10 October 1990 Mr Kopp lodged complaints with the Federal Department of Justice and Police about breaches of the legislation on telephone tapping and of Article 8 of the Convention.
29. On 2 November 1992 the Federal Department dismissed the applicant’s complaints. Considering that they were to be classified as complaints to a higher authority, it refused him unrestricted access to his file.
30. On 2 December 1992 Mr Kopp lodged an administrative appeal with the Federal Council against the decision taken on 2 November 1992 by the Federal Department of Justice and Police. He complained, among other matters, of unlawful telephone tapping and of the refusal to give him free access to the file.
Under the heading “Violation of Article 8 of the Convention”, he made the following submission in particular:
“In that context, it should also be noted that the telephone lines of [the applicant]’s law firm, which included a number of partners, were tapped. Section 66(1 bis) of the Federal Criminal Procedure Act expressly prohibits the interception of such telephone conversations. Interception of telephone conversations with [the applicant]’s law firm was therefore likewise illegal under the above-mentioned provision of Swiss law.”
31. On 30 June 1993 the Federal Council dismissed the administrative appeal.
It observed that, where telephone tapping was concerned, a complaint to a higher authority, even one which had no basis in law, was to be treated as a normal administrative appeal. It held that it had jurisdiction to determine whether monitoring of the applicant’s telephone lines had been unlawful, whether that measure had been in breach of the Convention and whether the applicant’s right to inspect his file had been infringed. If his personal rights had been infringed, the applicant could claim damages. He could also rely on the Federal Council’s decision in order to seek redress (Genugtuung) from the Federal Court.
The Federal Council considered that the applicant should have access only to those documents in the file which were directly relevant to the fact that he had had his telephone tapped as a “third party”. It noted that he had had restricted access to the documents, some of which had been censored, particularly as regards the informants’ names. Others, which concerned, for instance, the telephone tapping, had not been made available to him, but he had been orally informed of their existence and content. Several documents concerning third parties had not been handed over to him because their interests prevailed over his.
According to the Federal Council, section 66 of the Federal Criminal Procedure Act authorised monitoring the telephones of third parties, such as the applicant, if there was evidence giving rise to a presumption that they were receiving information from an offender or imparting information to him.
It considered that in the period of general uncertainty due to rumours of subversion which had then obtained (eine durch Unterwanderungsgerüchte verunsicherte Zeit) there had been specific evidence pointing to a disclosure of official secrets by someone within the Federal Department of Justice and Police. The document in question contained confidential information about which guarantees had been given to the United States. The credibility of Switzerland had therefore been at stake. An apparent risk had been identified when the name of the applicant, who was the husband of the former head of the Department of Justice and Police, was mentioned.
According to the Federal Council, it had been necessary to tap the telephone lines at the beginning of the investigation, before contacts were established with Mr Y and Mr Z. The civil servants concerned had therefore not immediately looked into the informants’ credibility, considering that any further contact would have compromised the investigation.
The Federal Council observed that the applicant had had his telephone tapped not as a suspect but as a “third party” within the meaning of section 66(1 bis) of the Federal Criminal Procedure Act. The conversations he had had in the capacity of lawyer had been expressly excluded. As he was not a civil servant, he could not have been guilty of the offence concerned. His wife had been one of the theoretically possible suspects, but there was no real evidence implicating her or anyone else. The fact that the applicant’s telephone lines had been monitored did not mean, therefore, that he had been under suspicion in the criminal sense. Moreover, the fact that the police investigation had been initiated in respect of “a person or persons unknown” was not simply a ploy to preserve appearances. Lastly, the investigation had not been ordered for political reasons and the chairman of the parliamentary commission had not been in a position to influence it.
In conclusion, the Federal Council observed that the conversations recorded had been of no interest to the investigators and no report on them had been made. Be that as it may, even if such a report had been sent to the parliamentary commission, it could not have been used improperly because its members were bound by the duty not to disclose official secrets.
32. The applicant also lodged with the Federal Court an administrative-law appeal against the decision taken on 2 November 1992 by the Federal Department of Justice and Police (see paragraph 29 above). He asked the Federal Court to rule that the telephone tapping had been unlawful and accordingly to order the institution of criminal proceedings against those responsible.
33. On 8 March 1994 the Federal Court gave judgment against the applicant.
It first considered whether he should have been permitted to inspect the whole of the file when the case had been brought before the Federal Department of Justice and Police. It noted that he had been able to inspect those passages in the document which had determined the decision (entscheidungswesentlich) and that the decision not to disclose the informants’ names had been justified. It held that the above conclusion was also consistent with the parliamentary commission of inquiry’s decision to guarantee the informants’ anonymity. Moreover, on the basis of even a partial inspection of the file (gestützt auf die ihm zugestellten “gestrippten” Akten), the applicant had been able to lodge appeals.
The Federal Court then considered whether criminal proceedings should be brought in connection with the monitoring of the applicant’s telephone lines. It held that it was not required to provide a conclusive (abschliessend) answer to the question whether the telephone tapping constituted a violation of Article 8 of the Convention, having regard in particular to the fact that the applicant had already appealed to the Federal Council. It noted that criminal proceedings had been instituted for a presumed disclosure of official secrets on the basis of information passed on by the chairman of the parliamentary commission of inquiry. The applicant’s firm was involved inasmuch as one of his partners had looked into the case in order to decide whether he should take it on. The presumption by the Federal Public Prosecutor’s Office that the first informant or the disloyal civil servant would contact the applicant did not seem to have been wholly unjustified.
34. Under Article 320 § 1 of the Swiss Criminal Code, any person who discloses a secret entrusted to him in the capacity of civil servant makes himself liable to imprisonment or a fine. Under Article 340 § 1 (7), the offence comes under the jurisdiction of the Federal Court.
35. The relevant provisions of the Federal Criminal Procedure Act (“the FCPA”), in the version of 23 March 1979, which was in force at the material time, were worded as follows:
“1. The investigating judge may order monitoring of the accused’s or suspect’s postal correspondence and telecommunications…
1 bis. Where the conditions justifying the monitoring of the accused or suspect are satisfied, third parties may also be monitored if specific facts give rise to the presumption that they are receiving or imparting information intended for the accused or suspect or sent by him. Persons who, by virtue of section 77, may refuse to give evidence shall be exempt.
…
1 ter. Recordings which are not needed for the conduct of an investigation shall be kept in a separate place, under lock and key, and shall be destroyed at the end of the proceedings…”
“1. Within twenty-four hours of his decision, the investigating judge shall submit a copy of it, accompanied by the file and a brief statement of his reasons, for approval by the President of the Indictment Division.
2. The decision shall remain in force for not more than six months; the investigating judge may extend its validity for one or more further periods of six months. The order extending its validity, accompanied by the file and the statement of reasons, must be submitted, not later than ten days before expiry of the time-limit, for approval by the President of the Indictment Division.
3. The investigating judge shall discontinue the monitoring as soon as it becomes unnecessary, or immediately if his decision is rescinded.”
“1. The President of the Indictment Division shall scrutinise the decision in the light of the statement of reasons and the file. Where he finds that there has been a breach of federal law, including any abuse of a discretionary power, he shall rescind the decision.
2. He may authorise monitoring provisionally; in that case, he shall lay down a time-limit within which the investigating judge must justify the measure, either by adding any relevant material to the file or orally.”
“1. The procedure shall be kept secret even from the person concerned. The President of the Indictment Division shall give brief reasons for his decision and notify the investigating judge thereof within five days of the date when the monitoring began, or, where the period of validity has been extended, before the further period begins.
2. The President of the Indictment Division shall ensure that the interception measures are discontinued on expiry of the time-limit.”
“1. Before the opening of a preliminary investigation the Principal Public Prosecutor may order interception of postal correspondence and telecommunications…”
“Clergymen, lawyers, notaries, doctors, pharmacists, midwives, and their auxiliaries, cannot be required to give evidence about secrets confided to them on account of their ministry or profession.”
36. By the Telecommunications Act of 21 June 1991, which has been in force since 1 May 1992, the following relevant provisions were supplemented as follows (new text shown in italics):
“1. The investigating judge may order monitoring of the accused’s or suspect’s postal correspondence and telecommunications if
(a) The criminal proceedings concern a major offence whose seriousness or particular nature justifies intervention; and if
(b) Specific facts cause the person who is to be monitored to be suspected of being a principal or accessory in the commission of the offence; and if
(c) Without interception, the necessary investigations would be significantly more difficult to conduct or if other investigative measures have produced no results.
1 bis. … The telecommunications connection of third parties may be monitored at any time if there are reasons to suspect that it is being used by the accused.
…”
37. By the Federal Law of 4 October 1991, which has been in force since 15 February 1992, the following relevant provisions were amended as follows:
“1. The investigating judge shall inform the person concerned, within thirty days of the close of the proceedings, of the reasons for the monitoring carried out, the means employed and its duration.
…”
“…
3. Sections 66 to 66 quinquies shall be applicable by analogy.”
38. In the opinion of academic writers, information not specifically connected with a lawyer’s work on instructions from a party to proceedings is not covered by professional privilege (see, for example, G. Piquerez, Précis de procédure pénale suisse, Lausanne, 1994, p. 251, no. 1264, and B. Corboz, “Le secret professionnel de l’avocat selon l’article 321 CP”, Semaine judiciaire, Geneva, 1993, pp. 85–87).
39. Thus, in a judgment of 29 December 1986 (see ATF [Judgments of the Swiss Federal Court] 112 lb 606), the Federal Court held that a lawyer may not decline to give evidence about confidential matters of which he has learned in the course of work not going beyond the management of assets and the investment of funds.
In another judgment, of 16 October 1989, the Federal Court similarly held that a lawyer who is the director of a company may not plead professional privilege to justify his refusal to give evidence (ATF 115 la 197).
In a case where a lawyer had complained of a seizure of documents, the Federal Court, after considering the complaint in the particular light of Article 8 of the Convention, once again upheld that case-law on 11 September 1991 (ATF 117 la 341).
Similarly, in connection with medical confidentiality, the Federal Court has held that information imparted to a doctor in his private capacity is not protected by professional privilege (ATF 101 la 10, judgment of 5 February 1975).
VIOLATED_ARTICLES: 8


ITEMID: 001-61679
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF IORGOV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3;No separate issue under Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. The applicant was born in 1957. He is currently serving a sentence of life imprisonment without parole eligibility.
9. On 9 May 1990 the applicant, who had three previous convictions and prison sentences, was convicted of the murder on 17 July 1989 of three children, aged 8, 10 and 12, attempted rape of one of them, attempted rape of a woman in 1984 and attempted illegal crossing of the State border in August 1989. The court imposed the capital punishment.
10. The applicant's conviction and sentence were upheld on appeal on 24 October 1990 by the Supreme Court.
11. On 8 April 1994 a five-member chamber of the Supreme Court dismissed the applicant's ensuing petition for review (cassation).
12. Article 375 § 5 of the Code of Criminal Procedure as in force at the time, provided that no execution could be carried out prior to the President's decision whether or not to exercise his power of pardon.
13. The last executions of persons sentenced to the capital punishment were carried out in Bulgaria in November 1989.
14. Following a period of a de facto moratorium on executions, on 20 July 1990 the Parliament adopted a decision “on deferral of the execution of death sentences” which read:
“The execution of death sentences which have entered into force shall be deferred until the resolution of the question regarding the application of the capital punishment in Bulgaria.”
15. Since the capital punishment remained in the Penal Code, the courts continued sentencing convicted persons to death or - as in the applicant's case - upholding on appeal death sentences delivered before 20 July 1990.
16. Although no explicit undertaking by Bulgaria to abolish the death penalty was made at the moment of Bulgaria's accession to the Council of Europe on 7 May 1992, such a requirement was regarded as implied in the general undertaking to comply with Article 3 of the Statute of the Council of Europe (see the reports of the Parliamentary Assembly's commission on Bulgaria's compliance with its obligations and undertakings (report of 2 September 1998, Doc. 8180, §§ 5 and 12529 (urging the abolition as an implied obligation), and report of 17 January 2000, Doc. 8616, § 110 (noting with satisfaction the abolition of the death penalty)).
17. On 10 December 1998 Parliament abolished the death penalty replacing it by life imprisonment without parole eligibility.
18. By decision of 25 January 1999 the applicant's death sentence was commuted to life imprisonment without parole eligibility.
19. On 29 September 1999 Bulgaria ratified Protocol No. 6 to the Convention.
20. The death penalty was an issue often debated between 1990 and 1998. A number of members of Parliament expressed views in support of reintroducing executions whereas others sought the abolition of the death penalty. The media periodically discussed the topic. It was widely known that the abolition of the death penalty was urged by the Council of Europe and other international organisations and was a step towards Bulgaria's European integration.
21. During the relevant period the Penal Code was amended several times. Some amendments expanded the scope of the death penalty. At the same time, work started on a draft Penal Code which excluded the death penalty. In 1995 an amendment to the Penal Code introduced for the first time life imprisonment.
22. The following attempts to reintroduce executions were made by supporters of the death penalty:
23. On 27 May 1992 the Chair of the Parliamentary Legislative Committee and another member of Parliament introduced a motion proposing the annulment of the Parliament's decision of 20 July 1990.
24. On 22 November 1993 a similar proposal was introduced in Parliament by a minority parliamentary group, the New Democracy Alliance. Two parliamentary committees discussed the issue and voted against reintroducing executions. On 1 February 1994 the Legislative Committee held a hearing on both proposals which were defeated.
25. The issue of reintroducing executions was discussed several times in the Parliament elected at the end of 1994. There were four motions: two for a parliamentary vote on restarting executions and two for calling a referendum.
26. The first proposal was discussed by the Parliamentary Committee on Government Institutions, which supported the idea of reintroducing executions by a majority of seven votes to six. Thereafter, a member of Parliament on several occasions unsuccessfully sought to have the motion discussed by a plenary session of the Parliament. On one occasion the motion gathered the required number of votes to be entered on the weekly agenda, but eventually was not discussed. Most proposals to include the issue on the agenda of the Parliament's plenary session were defeated through abstention votes.
27. The first motion for a referendum was defeated on a procedural ground as the proposed date in 1995 did not allow sufficient organisation time. The second proposal for a referendum, filed on 5 December 1995, was considered by the Human Rights and Religions Committee on 6 March 1996 and was defeated by eight votes to two, with two abstentions.
28. On 29 January 1996 a proposal for restarting executions was introduced by opposition deputies. It was discussed by the Human Rights and Religions Committee and was defeated on 13 March 1996 by eight votes to three.
29. According to section 130 of the Execution of Sentences Act, as in force at the relevant time, persons awaiting execution were to be detained in complete isolation, correspondence and visits being only possible if permitted by the competent prosecutor.
30. On 2 August 1990 the Deputy Director of Central Prisons Board instructed prisons administrations that the Parliament's decision suspending executions also suspended by implication this restrictive regime of detention.
31. The instruction stated, in so far as relevant, that persons sentenced to death should be held in individual cells or together with other persons sentenced to death or detained under a “special regime” (the regime of detention of recidivists and, after 1995, persons sentenced to life imprisonment: sections 43 and 127b of the Execution of Sentences Act as in force at the time). Inmates should have a bed, bedcover, a bed-side piece of furniture and a centrally operated radio loudspeaker. They should be allowed unlimited correspondence, newspapers and books, one visit per month, one hour of daily outdoor walk without contact with other categories of prisoners and the receipt of one food parcel every six months and a small amount of money. If possible, they could work in the cell.
32. On 26 July 1996, the Director of the Central Prisons Board and a prosecutor of the Chief Public Prosecutor's Office issued an instruction which stated that, “in view of the continuing moratorium on executions”, persons sentenced to death should be allowed unlimited correspondence, one hour daily outdoor walk, one visit per month and the receipt of two food parcels and 30 packs of cigarettes per month and small amounts of money.
33. The applicant was detained in the Sofia prison, in a wing for prisoners under the “special regime” provided for by section 56 of the Regulations on the Application of the Execution of Sentences Act, approximately twenty inmates. He changed cells several times but stated that all cells in the relevant prison wing measured 2 by 4 metres.
34. Following a period of solitary confinement, on an unspecified date in 1990 the applicant was transferred to a cell where he lived with two or three other detainees.
35. The applicant alleges that on 21 June 1995 he and eight other deathsentence prisoners were moved to independent cells, where each of them was alone. It appears that the applicant remained in this cell at least until the end of 1998.
36. According to the Government, the cell floor measured 2 by 3 metres. The ceiling was 3.30 metres high. According to the applicant, until October 1998, when new larger windows were installed in all cells, the cell window was small and did not allow sufficient light or fresh air. As a result, in summer it was very hot. Moreover, in winter it was very cold because the heating, covered by a bricks layer, was not working properly.
37. There was one 60-Watts electric bulb in the cell. As it was installed on the wall above the door, its light was insufficient which made reading tiring for the eyes. It appears that the light was on all night.
38. The applicant alleged that between June 1995 and January 1997 he had been sleeping on a plank-bed. In his recollection, a centrally operated radio loudspeaker was installed in March 1996. A proper bed and a bedside piece of furniture were provided in January 1997. After April 1998 the applicant possessed a portable radio receiver which was sent to him in a parcel.
39. The Government provided photographs, apparently made in the summer of 1998, of the applicant's cell. It is visible that the cell's furbishing consisted of a bed, a bed-side piece of furniture and a small table. A loudspeaker and hangers were suspended on the wall. Books, a metal bowl, plastic bottles, clothes and blankets are visible on the photograph.
40. Inmates were given one hour out-of-cell time in the morning in an open yard. There they could walk together with other inmates from the high security wing. The applicant could also leave his cell once again, in the evening, to use the sanitary facilities. During the remaining part of the day, he had to use a bucket full of water which served as a chamber pot. As a result, there was allegedly a constant stink in his cell.
41. Inmates could have a shower once per week, for several minutes.
42. One or two visits of one-half hour were allowed per month. Visits by lawyers were not limited. For the period 1990-1998 the applicant had thirtyfive visits.
43. During the relevant period there was no limitation on correspondence. Between 1990 and 1 August 1998 the applicant received eighty-three food parcels and fifty-six money orders. He was also entitled to a small amount of money per month, which he used to buy toilet items and food from the prison shop. Nevertheless, he was often lacking items such as tooth paste, shaving cream, razors, cigarettes and coffee.
44. The applicant received the same medical service as all other prison inmates. The Government submitted a copy of his medical record according to which he had been seen by a doctor or a dentist almost every month during the period 1990-1998. The infirmary was opened eight hours per day. The applicant was treated repeatedly in respect of back pain, including by physiotherapy. According to one of the medical doctors at the Sofia prison, the applicant was known for his frequent and unwarranted complaints.
45. In February 1996 the applicant signalled a medical problem which turned out to be a swollen salivary gland. In April 1996 a medical doctor recommended surgery, but the applicant was only operated in July 1998. The applicant maintained that he had been refused timely surgical help despite his suffering. His medical records disclose that the swollen salivary gland problem persisted throughout 1997 and 1998, when the applicant underwent several examinations, including by external medical doctors. The applicant was treated with medicines. Twice during the relevant period, medical doctors noted in the applicant's medical record that surgery was not necessary at the particular stage, whereas other entries with illegible signatures indicate that the problem was noted as being acute. According to the director of the Sofia prison, all necessary measures had been taken. The applicant had been treated according to the doctors' recommendations. In July 1997 he had been admitted to hospital for examinations but had been sent back to the prison as he had behaved rudely with the medical staff. A disciplinary punishment had been imposed in that connection on 6 August 1997. The applicant submitted that as a result the operation of his gland had been postponed. According to the medical records, the applicant was again brought to the hospital for examinations and treatment in October 1997, but the applicant alleged that he had been quickly returned back to his cell. As of March 1998 the one doctor's opinion was that surgery was not yet necessary. The swollen salivary gland was eventually operated in July 1998. Tissue of the size of an egg was removed and examined but proved benign.
46. During the relevant period the applicant sent numerous complaints in respect of the conditions of his detention to the Director of the Sofia Prison, to the Director of the Central Prisons Board, the Chief Public Prosecutor's Office and to other institutions. His complaints concerned the food in prison, allegedly insufficient heating, allegedly lost correspondence and other matters. He received answers to only a part of his complaints. With the exception of a request to use a radio receiver and some of the requests for medical treatment, all other complaints allegedly did not bring about any improvement of his situation.
47. On an unspecified date in 1999 the applicant was moved to the Pleven prison.
48. The CPT has not visited the Sofia prison where the applicant was detained.
49. In 1995 it visited, however, two inmates sentenced to death and detained in the Stara Zagora prison facilities and described the conditions of detention there as follows:
“The material conditions in the cells left a great deal to be desired: mediocre access to natural light and weak artificial lighting; inadequate heating; cell furnishings in a poor state of repair; dirty bed linen, etc. As regards out-of-cell activities, they were limited to 15 minutes per day for use of the sanitary facilities, one hour outdoor exercise (which the prisoners alleged was not guaranteed every day) and one visit per month. The two prisoners were not allowed to work (not even inside their cells), nor to go to the library, the cinema room or the refectory (their food was brought to the cell). In short, they were subject to an impoverished regime and, more particularly, were offered very little human contact. The latter consisted essentially of the possibility to talk to each other during outdoor exercise (which they took together), and occasional dealings with prison officers. Practically the only forms of useful occupation at their disposal were reading newspapers and books, and writing letters.
The above-described situation is in accordance with the rules concerning prisoners sentenced to death, adopted after the moratorium on the execution of the death penalty... Nevertheless, in the CPT's view it is not acceptable.
It is generally acknowledged that all forms of solitary confinement without appropriate mental and physical stimulation are likely, in the long term, to have damaging effects, resulting in deterioration of mental faculties and social abilities. The delegation found that the regime applied to prisoners sentenced to death in Stara Zagora Prison did not provide such stimulation.
The CPT recommends that the regime applied to prisoners sentenced to death held in Stara Zagora Prison, as well as in other prisons in Bulgaria, be revised in order to ensure that they are offered purposeful activities and appropriate human contact. Further, the CPT recommends that steps be taken to improve the material conditions in the cells occupied at Stara Zagora Prison by prisoners sentenced to death.”
50. In paragraphs 127133 of its 1999 report on Bulgaria, the CPT stated, inter alia:
“[H]ealth care in Bulgarian prisons is provided by the Ministry of Justice ... Prison health-care staff are recruited by and administratively subordinated to the Main Prison Directorate, whose Medical Division is responsible for supervising their work. The prison health-care services apply general health guidelines and regulations issued by the Ministry of Health; further, arrangements can be made for hospitalising prisoners in need of urgent treatment in Ministry of Health establishments. However, it emerged that in the Ministry of Health's view, given the division of responsibilities, the issue of health care for prisoners lay outside its remit...
A similar situation is found in many other countries in Europe, where the provision of health care is the responsibility of the authority in charge of prison establishments. However, the CPT believes that a greater involvement of the Ministry of Health in the provision of health care in the prison system would help to ensure optimum health care for prisoners, as well as implementation of the principle of the equivalence of health care in prison with that in the outside community... This approach is clearly reflected in Recommendation No R (98) 7 concerning the ethical and organisational aspects of health care in prison, recently adopted by the Committee of Ministers of the Council of Europe.
[I]n order to guarantee their professional independence and quality of medical work, it is important that prison health-care staff be aligned as closely as possible with the mainstream of health-care provision in the community at large...
The CPT also wishes to stress again that whatever institutional arrangements are made for the provision of health care in prisons, it is essential that prison doctors' clinical decisions should be governed only by medical criteria and that the quality and effectiveness of their work should be monitored by a qualified medical authority.
[Some improvements since 1995 were reported.] Full-time doctors had been appointed, and posts for psychiatrists created, at all prisons, and steps were being taken to employ full-time trained nurses. Further, the shortage of medicines within the prison system had been overcome...
[T]he delegation heard complaints from prisoners at [the prisons visited, in Burgas and Stara Zagora] about delays in gaining access to the doctor. Prisoners who wished to be medically examined announced that to the officer on duty during the morning roll-call. Such requests were meant to be entered in a special register kept on each unit and presented to the doctor every morning. Such a system is unexceptionable. However, the CPT must stress that all requests to see a doctor should be brought to the attention of the prison doctor; it is not for prison officers to screen such requests.”
51. Historically, most Member States of the Council of Europe approached the question of the abolition of the death penalty by suspending executions pending debate on a final abolition. States which became members of the Council of Europe during the 1990s were urged by the Parliamentary Assembly to introduce moratoria on executions as a first step towards the abolition of the death penalty (see Report on the abolition of the death penalty in Europe, PA Doc. 7589 (25 June 1996)).
52. The Committee has held that “in the absence of further compelling circumstances” prolonged detention on death row per se does not constitute a violation of Article 7 of the International Covenant on Civil and Political Rights (prohibition of cruel, inhuman or degrading treatment) (see Hylton v. Jamaica, Views of 16 July 1996, communication no. 600/1994, Errol Johnson v. Jamaica, Views of 22 March 1996, communication no. 588/1994; and Michael Wanza v. Trinidad and Tobago, Views of 26 March 2002, communication no. 683/1996).
53. The Commission, when examining complaints by persons on death row, has found violations of Article XXVI of the American Declaration of the Rights and Duties of Man (prohibiting cruel, infamous or unusual punishment of persons accused of offences) and Article 5 §§ 1 and 2 of the American Convention on Human Rights (right to humane treatment and prohibition of torture, cruel, inhuman or degrading punishment or treatment) mainly on the strength of facts concerning irregularities in the sentencing process, the material conditions and regime of detention and ill-treatment in prison, while also taking into account the length of the period spent on death row (Andrews v. the United States of America, Case No. 11.139, Report No. 57/96, OEA/Ser/L/V/II.98, §§ 17883; Joseph Thomas v. Jamaica, Case No. 12.183, Report 127/01).
54. The Privy Council, examining cases from Caribbean Commonwealth States, had to decide whether the execution of a person following long delay after his sentence to death could amount to inhuman punishment or treatment contrary to those States' Constitutions. Initially, the Privy Council considered that a condemned person could not complain about delay of his execution caused by his resort to appellate proceedings (de Freitas v. Benny [1976] A.C. 239, Abbott v. Attorney-General of Trinidad and Tobago [1979] 1 W.L.R. 1342), or indeed about any delay, “whatever the reasons”, including a temporary moratorium on executions which had been lifted (Riley v. Attorney-General of Jamaica [1983] 1 A.C. 719).
55. In 1993, departing from its earlier decisions, the Privy Council held that to execute the appellants, who had spent almost fourteen years on death row and had on three occasions lived through last minutes stays of execution, would be unlawful as being inhuman punishment and therefore advised that their death sentences should be commuted to life imprisonment (Pratt and Morgan v. The Attorney General for Jamaica and another [1994] 2 A.C. 1).
56. In Pratt and Morgan, part of the relevant period was taken up by a temporary moratorium on executions.
“[P]olitical debate on the desirability of retaining the death sentence in Jamaica ... resulted in a resolution of the Senate on 9th February 1979 to suspend all executions for a period of eighteen months pending the report of a Committee of inquiry. The Committee of Inquiry was appointed in June 1979. Before the Committee reported, an execution took place on 27th August 1980 which drew a protest to the Jamaican Privy Council from the Chairman of the Committee. No further executions took place before the Committee reported in March 1981. On 12th May 1981 executions were resumed” (Pratt, § 16).
57. The judgment in Pratt and Morgan stated, inter alia:
“There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. What gives rise to this instinctive revulsion? The answer can only be our humanity; we regard it as an inhuman act to keep a man facing the agony of execution over a long extended period of time. But before their Lordships condemn the act of execution as 'inhuman or degrading punishment or other treatment' within the meaning of section 17(1) [of the Jamaican Constitution] there are a number of factors that have to be balanced in weighing the delay. If delay is due entirely to the fault of the accused such as an escape from custody or frivolous and time wasting resort to legal procedures which amount to an abuse of process the accused cannot be allowed to take advantage of that delay for to do so would be to permit the accused to use illegitimate means to escape the punishment inflicted upon him in the interest of protecting society against crime...
In their Lordships' view a State that wishes to retain capital punishment must accept the responsibility of ensuring that execution follows as swiftly as practicable after sentence, allowing a reasonable time for appeal and consideration of reprieve. It is part of the human condition that a condemned man will take every opportunity to save his life through use of the appellate procedure. If the appellate procedure enables the prisoner to prolong the appellate hearings over a period of years, the fault is to be attributed to the appellate system that permits such delay and not to the prisoner who takes advantage of it. Appellate procedures that echo down the years are not compatible with capital punishment. The death row phenomenon must not become established as a part of our jurisprudence...
There may of course be circumstances which will lead the Jamaican Privy Council to recommend a respite in the carrying out of a death sentence, such as a political moratorium on the death sentence, or a petition on behalf of the appellants to [international human rights bodies] or a constitutional appeal to the Supreme Court. But if these respites cumulatively result in delay running into several years an execution will be likely to infringe section 17(1) and call for commutation of the death sentence to life imprisonment.”
58. Further, calculating the normal length of relevant appellate proceedings in Jamaica and taking into consideration the time necessary for examination of applications to the Inter American Commission of Human Rights and the UN Human Rights Committee, the Privy Council held that:
“in any case in which execution is to take place more than five years after sentence there will be strong grounds for believing that the delay is such as to constitute inhuman or degrading punishment or ... treatment”.
59. In cases which followed the Privy Council accepted a claim that a period of four years and ten months also warranted a finding in favour of the appellant (Guerra v. Baptiste and Others [1996] 1 A.C. 397) but dismissed appeals concerning shorter periods (Henfield v. The Attorney General of the Commonwealth of The Bahamas [1997] A.C. 413; Fischer (No. 1) v. The Minister of Public Safety and Immigration and Others (Bahamas) [1998] A.C. 673; and Higgs and David Mitchell v. The Minister of National Security and Others (Bahamas) [1999] UKPC 55) and held that save in exceptional circumstances, periods of pre-sentence detention should not be taken into account since, inter alia, “the state of mind of the person ... during this earlier period is not the agony of mind of a man facing execution, but ... anxiety and concern of the accused”(Fisher, § 14). In Higgs and David Mitchell, the Privy Council stated, inter alia:
“If a man has been sentenced to death, it is wrong to add other cruelties to the manner of his death... In Pratt ... the [Privy Council] held that the execution after excessive delay was an inhuman punishment because it added to the penalty of death the additional torture of a long period of alternating hope and despair. It is not the delay in itself which is a cruel and unusual punishment..., 'it is the act of hanging the man that is rendered cruel and unusual by the lapse of time”.
60. The Supreme Court of India found that execution following inordinate delay after sentence of death violated Article 21 of the Indian Constitution which provides that “no one shall be deprived of his life or personal liberty except according to procedure established by law” and that the reasons for the delay were immaterial (Vatheeswaran v. State of Tamil Nadu [1983] 2 S.C.R. 348, Sher Singh and Others v. the State of Punjab [1983] 2 S.C.R. 582 and Smt. Treveniben v. State of Gujarat [1989] 1 S.C.J. 383).
61. The United States' Supreme Court has refused to accept claims that lengthy detention on death row violated the prohibition, contained in the Eight Amendment to the Constitution of the United States of America, of cruel and unusual punishment, emphasising that the delay is due to the convicted person's own decision to make use of all possibilities to appeal (Knight v. Florida, 528 US 990).
62. The Supreme Court of Canada has held that Canadian constitutional standards did not bar extradition to the United States of America of a defendant facing the death penalty (Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779). However, in 2001 it changed its approach and held that if the person being extradited could face the death penalty, constitutional standards required that in all but exceptional cases assurances must be sought from the United States of America that the death penalty would not be imposed or, if imposed, would not be carried out (United States v. Burns, [2001] 1 S.C.R. 283).
VIOLATED_ARTICLES: 3


ITEMID: 001-72055
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF AOULMI v. FRANCE [Extracts]
IMPORTANCE: 1
CONCLUSION: No violation of Art. 3;No violation of Art. 8;Failure to comply with obligations under Art. 34;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Giovanni Bonello;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Lech Garlicki;Nicolas Bratza;Stanislav Pavlovschi
TEXT: 9. The applicant was born in 1956 in Algeria, where he currently lives.
10. The applicant arrived in France with his parents in 1960. He has six brothers and sisters, all of whom were born in France and have French nationality.
11. On 13 April 1982 he was convicted of burglary and handling stolen goods by the Lyons Criminal Court. He was given an eight-month suspended prison sentence and was ordered to pay a fine of 1,200 French francs (FRF).
12. On 24 April 1984 he was sentenced by the Lyons tribunal de grande instance to six months' imprisonment for burglary. The court also activated the suspended sentence he had been given previously. On 28 June 1984 the Lyons Court of Appeal upheld the activation of the suspended sentence, which was the only point on which the applicant had appealed.
13. On 6 December 1988 the Lyons tribunal de grande instance sentenced the applicant to fourteen months' imprisonment and ordered his permanent exclusion from French territory for offences under the legislation on dangerous drugs.
14. On 15 April 1989 the applicant married a French national. The marriage was dissolved on 28 January 1993. He has one daughter, who was born in 1983.
15. On 27 April 1989 the Lyons Court of Appeal raised the sentence to four years' imprisonment and upheld the permanent exclusion order for offences under the legislation on dangerous drugs. It noted in particular that the applicant had been arrested on his arrival at the home of a drug-addicted prostitute and had been in possession of a small bag containing 100 grams of heroin, which the police laboratory described as being “of good quality”. The court moreover considered that the applicant could not have been unaware that he had been acting as intermediary between a supplier and his principal client and accordingly that he had possessed, transported and dealt in heroin. It concluded that his role in such deals had been confirmed by the discovery at his home of precision scales and lactose.
The Court of Appeal further found that, at the material time, the applicant had been on day release from prison and that he had preferred to act as intermediary between a drug supplier and his clients rather than doing a job that he had abandoned for the past month. It held that “the conduct of this foreign national, who present[ed] a risk to public safety and health, [was] incompatible with his continued presence in France”.
16. On 7 June 1990 the Court of Cassation declared that his right to appeal on points of law was forfeit.
17. On 22 October 1992 the Lyons Criminal Court tried fifteen individuals on drugs offences.
It noted that during a search of the applicant's home investigators had found four small transparent plastic bags containing traces of white powder, a book of matches on which a number of accounts were noted, twenty syringes and a spoon with a blackened underside, two forged identity cards and a forged driving licence. On the basis of various statements, including that of the applicant's wife, and the results of telephone tapping and shadowing, the court concluded that the applicant had played a key role as a supplier in the drug trafficking.
The court ordered the applicant to serve prison sentences of six years for the drugs offence, three months for forgery of administrative documents and two months for residing in France in breach of an exclusion order.
18. In 1994 the applicant was diagnosed as suffering from active chronic hepatitis.
19. In a judgment of 6 June 1996, the Lyons Court of Appeal dismissed an application by the applicant for the lifting of the exclusion order. It noted that the applicant had had five convictions between 13 April 1982 and 22 October 1992, with prison sentences ranging from two months to six years, and that the offences of which he had been convicted on 27 April 1989 concerned heroin deliveries, including one of 100 grams of very high-quality heroin, and had been committed while he was on day release from prison. The court also found that the authenticity of the applicant's marriage to a French national had not been confirmed by the slightest evidence, and that the order for his removal did not constitute a disproportionate interference with his rights under Article 8 of the Convention.
20. On 8 December 1997 the Minister of the Interior issued a deportation order in respect of the applicant. An appeal by the applicant to the Lyons Administrative Court was dismissed on 16 December 1998.
21. On 9 August 1999 the applicant was released from prison and taken into administrative detention pending his removal from France.
22. On 11 August 1999 the prefect ordered the applicant's removal to Algeria.
23. On 13 August 1999 the applicant lodged an application with the Administrative Court seeking the annulment and stay of execution of that order, together with a request for its immediate suspension.
24. On 16 August 1999 the Administrative Court dismissed the request for immediate suspension, finding that
“it is not apparent from the evidence, and in particular from the medical certificate produced by [the applicant], that his state of health entails a short-term imperative need for the treatment of hepatitis C with two associated drugs that are not currently available in Algeria; accordingly, [the applicant] is not justified in seeking the suspension of execution of the decision taken by the prefect of the département of Isère ordering his removal to that country”.
25. On 16 August 1999 the applicant applied for asylum, which was denied on 18 August 1999 by the OFPRA (French authority for the protection of refugees and stateless persons) on the ground that “his application, which was not lodged in a timely manner, [did] not contain any established or individual elements to substantiate the merits of his fears of persecution by the current Algerian authorities”.
26. A doctor serving as a public-health inspector for the health and social services department for the département of Rhône sent two letters to the prefect of the Rhône-Alpes region on 13 and 18 August 1999. In the first of those letters the doctor stated, inter alia:
“I observe that Mr Aoulmi has not produced any medical documents subsequent to January 1998, that he has not asked to see a doctor since his arrival at the detention centre and that he is not currently undergoing any treatment. I am thus entitled to consider that his current state of health is of no immediate cause for concern.
The medical certificate mentions that Mr Aoulmi's state of health may justify treatment involving a combination of interferon and ribavirin; ...
I have contacted the laboratory ... which produces ribavirin. According to the information I received, ribavirin is not yet available on the Algerian market. The drug may be imported with the authorisation of the Algerian Ministry of Health further to a request by the central pharmacy of Algiers Hospital. A procedure has been initiated with a view to exporting the molecule to Algeria. ...”
27. In his second letter the doctor indicated:
“I refer to the second medical certificate that you sent to me, for my opinion, concerning the state of health of Mr Rachid Aoulmi, issued by Lyon-Sud Hospital on 13 July 1999.
Supplementing the previous certificate that you brought to my attention, this second certificate confirms that Mr Rachid Aoulmi's medical condition may be treated with a combination of interferon and ribavirin. The indications on the certificate concerning the availability of ribavirin in Algeria do not correspond to those given to me verbally by the laboratory ...
I should point out that ribavirin is available in France under temporary authorisation (ATU – autorisation temporaire d'utilisation) for use in hospital pharmacies alone and that the marketing authorisation (AMM – autorisation de mise sur le marché) is to be issued shortly.”
28. On 19 August 1999 the applicant was put on a boat for Algeria.
29. On 13 December 2000 the Lyons Administrative Court set aside the prefect's removal order of 11 August 1999, holding as follows:
“It is apparent from the evidence and in particular from the medical certificate issued by the prison hospital and health-care service on 13 July 1999, as produced by the applicant, that he suffers from hepatitis C. His state of health is such that he requires imperative treatment with two associated drugs, interferon and ribavirin, which were not available in Algeria on the date of the impugned decision. Accordingly, having regard to the exceptionally serious consequences that the measure taken against him may entail, the decision by the prefect of the département of Isère whereby Algeria was designated as the country to which Mr Aoulmi was to be removed in execution of the deportation order issued against him on 10 April 1988 must be set aside.”
That judgment was irrevocable.
30. On 17 June 2003 the applicant's lawyer indicated that his client had encountered difficulties in obtaining a passport. The lawyer enclosed with his letter an attestation to that effect issued on 5 February 2003 by the chief of Bejaia district.
31. On 13 October 2003 the applicant's lawyer explained that his client could not return to France because the Algerian authorities would not issue him with a passport and he could not obtain a laissez-passer from the French authorities. He added that, according to the information he had received through the applicant's family, his health was continuing to decline and he had not been receiving the necessary medical treatment.
32. In a letter of 5 November 2003 he provided the Court with a copy of the visa refusal issued by the French Consulate-General in Algiers on 13 October 2003.
33. According to a medical certificate issued by an Algerian doctor on 31 July 2005, the applicant is suffering from the following complaints:
“ulcer-related condition, only treatable with omeprazole,
erythematous gastropathy, intestinal functional disorder and chronic constipation,
chronic viral hepatitis type C, for which interferon was prescribed in France some ten years ago and which has not been treated or checked for about ten years.”
34. On 11 August 1999 the President of the Third Section decided to indicate to the Government, pursuant to Rule 39 of the Rules of Court, that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to expel the applicant to Algeria prior to the forthcoming meeting of the appropriate Chamber on 24 August 1999. Under Rule 49 § 2 (a) the Government were also requested to submit information, in particular concerning treatment available in Algeria.
35. The competent authorities decided to stay the execution of the removal until 16 August 1999 in order to obtain an expert medical opinion (see paragraph 27 above).
36. On 19 August 1999 the applicant was removed to Algeria.
37. On 20 August 1999 the Government submitted answers to the questions put to them.
38. The applicant's representative submitted his answers on 24 September 1999.
39. On 9 November 1999 the Court decided to request the Government to submit their observations on the admissibility and merits of the application, and on the fact that the applicant had been expelled notwithstanding the application of Rule 39.
40. The Government submitted their observations on 3 February 2000 and those of the applicant's representative were submitted on 23 March 2000.
41. On 9 September 2003 the Court decided to adjourn its examination of the case pending the Grand Chamber judgment in Mamatkulov and Askarov v. Turkey ([GC], nos. 46827/99 and 46951/99, ECHR 2005I).
42. On 10 May 2005 the Court requested the parties to provide information about the applicant's state of health, his administrative situation, and any action taken further to the Administrative Court's judgment of 13 December 2000. They were also requested to address once again the possibility of a breach of Article 34 of the Convention, in the light of the Mamatkulov and Askarov judgment (cited above), which had been delivered on 4 February 2005.
43. The parties submitted their observations on 26 September 2005.
44. Article L. 630-1, sub-paragraph 1, of the Public Health Code, as worded at the material time, provided:
“Without prejudice to the application of Articles 23 et seq. of Ordinance no. 452658 of 2 November 1945, the courts may make an order excluding an alien convicted of an offence under Articles L. 626, L. 627-2, L. 628, L. 628-4 or L. 630 from French territory for between two and five years. They may make an order permanently excluding an alien convicted of an offence under Article L. 627.
An exclusion order shall automatically entail removal of the convicted person at the end of his sentence. ...”
45. Former Article L. 627 of the Public Health Code provided:
“Anyone who has contravened the provisions of the public-administration regulations laid down in the preceding Article concerning toxic plants or substances classified under the regulations as narcotics shall be liable on conviction to between two and ten years' imprisonment and a fine of between FRF 5,000 and FRF 50,000,000, or one only of those penalties. The sentence for offences of importing, producing, manufacturing or unlawfully exporting the said substances or plants shall be between ten and twenty years' imprisonment ...
Penalties for attempts to commit any of the offences referred to in the preceding paragraph shall be the same as for the completed offence. A like rule shall apply to criminal association or conspiracy to commit such offences. ...
The following persons also shall be liable to imprisonment of between two and ten years and a fine of between FRF 5,000 and FRF 50,000,000, or to one only of those penalties:
(1) Anyone who has facilitated the use by another of the said substances or plants by procuring premises or by any other means, and whether or not for consideration. ...
Where the person whose use of the said substances has been facilitated is a minor under 21 ... the term of imprisonment shall be between five and ten years. ...”
46. As regards the question of compliance with Article 34 of the Convention, see Mamatkulov and Askarov, cited above, §§ 39-53.
NON_VIOLATED_ARTICLES: 3
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