ITEMID: 001-89506
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF FESAR v. THE CZECH REPUBLIC
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 5-4
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: 7. The applicant was born in 1965 and lives in Bayreuth, Germany.
8. On 22 May 1996 the applicant was charged with attempted tax evasion under sections 8 § 1, 10 § 1 b) and 148 §§ 1 and 2 c) of the Criminal Code.
9. On 27 March 1997 the applicant and eight other persons, inter alia J.R., were officially indicted.
10. A main hearing before the Ostrava District Court (okresní soud) was scheduled as early as 28 April 1997 to be held in July 1997. It took place on 1 to 8 July 1997 and then on 17 July 1997. During the hearing of 3 July 1997 the applicant declared that he refused to attend further hearings; these then took place in his absence. The court requested a report from the prison doctor on the applicant’s bizarre behaviour during the main hearing of 3 July 1997 and with regard to the report on the applicant’s injury that occurred on 3 July 1997 in custody and to the report of 4 July 1997 on the use of a coercive measure against the applicant in custody due to his aggressiveness. It his report the prison doctor noted that the applicant was not able to attend the main hearings. It became necessary to carry out a psychological and psychiatric examination of the applicant, and the prison doctor did not recommend that the applicant attend the new main hearing. On 7 July 1997 the applicant’s and J.R.’s criminal case was severed for separate consideration and decision.
11. On 22 July 1997 the applicant was moved to the prison hospital whence he was transported back to the custody prison on 4 September 1997.
12. On 20 August 1997 the Regional Court submitted the applicant’s and J.R.’s criminal case to the Olomouc High Court (Vrchní soud) for the purpose of a decision on the regional prosecutor’s complaint that concerned, inter alia, J.R.’s detention during judicial proceedings. The Regional Court’s presiding judge asked the High Court for the file in order to make a copy for the applicant’s and J.R.’s severed criminal case. According to the Government, the file was lent to the Regional Court on 28 November 1997. Therefore, between 20 August and 28 November 1997 the Regional Court did not have the relevant file at its disposal.
13. On 19 December 1997 the Ostrava Regional Court (krajský soud) transferred the applicant’s and J.R.’s criminal case to the District Court as a court with jurisdiction in rem and local jurisdiction.
14. On 18 May 1998 the District Court convicted the applicant of tax evasion and sentenced him to eighteen months’ imprisonment. On the same day, the applicant was released from custody.
15. On 13 August 1998 the Regional Court dismissed an appeal by the applicant against the District Court’s judgment.
16. On 2 September 1998 the District Court approved the deduction of the applicant’s pre-trial detention from his sentence.
17. On 23 May 1996 the District Court remanded the applicant in custody under Article 67 b) of the Code of Criminal Procedure (“the CCP”), with backdated effect from 22 May 1996. The court held that there was a risk that the applicant would influence witnesses and his co-accused.
18. On 24 June 1996 the Regional Court upheld the detention order, stating that the applicant’s detention was necessary, inter alia, in order to confront him with J.R., to interview the witnesses and eventually to confront the witnesses with the co-accused. The court found, therefore, that in this stage of the proceedings, the applicant’s detention was justified under 67 b) of the CCP.
19. On 17 July 1996 the District Court rejected the applicant’s first request for release, noting that the grounds for custody still persisted under Article 67 b) of the CCP. The court noted that other persons would be examined, which was supported by the content of the confrontation carried out between the applicant and J.R. There continued to be concerns that the applicant would interfere with witnesses.
20. On 26 August 1996 the Regional Court rejected the applicant’s complaint filed on 1 August 1996 against this decision.
21. On 30 October 1996 the District Court decided to release the applicant on a request for release lodged by him on 24 September 1996. On 26 November 1996 the Regional Court, on an appeal by the Ostrava Regional Prosecutor, (krajský prokurátor), quashed the District Court’s decision. In the court’s opinion, grounds for custody still existed under Article 67 b) of the CCP, which consisted of the possibility of his interfering with witnesses who had not yet been examined, and there was also a risk of possible interference with the co-accused.
22. On 23 October 1996 the Regional Prosecutor requested an extension of the applicant’s detention due to the fact that his custody would end on 22 November 1996 and it would not be possible to conclude the case by then because of its scope.
23. On 8 November 1996 the Regional Prosecutor filed a complaint against the District Court’s decision of 5 November 1996 in which the court had rejected the Regional Prosecutor’s motion. On 26 November 1996 the Regional Court granted this complaint, quashed the District Court’s decision and extended the applicant’s custody to 26 January 1997 pursuant to Article 71 § 2 of the CCP.
24. On 16 January 1997 the District Court extended the applicant’s detention until 27 March 1997, on a request by the Regional Prosecutor of 7 January 1996, concluding that a risk still persisted that the applicant would influence witnesses. On 17 February 1997 the Regional Court rejected a complaint filed by the applicant on 22 January 1997 against the District Court’s decision, referring, inter alia, to the complex character of the case.
25. On 6 March 1997 the District Court granted a request made by the applicant on 24 February 1997 and decided to release him from custody. It found:
“After examining the applicant’s requests, the opinions of the prosecutor and the ... investigation file, the court drew the conclusion that the reasons for [the applicant’s] detention ... ceased to exist. The accused ... is prosecuted for a single [offence], ... necessary investigative acts were carried out and, on 24 February 1997, the investigation was closed ... In the course of the investigation, nothing was found which would prove or indicate that the accused ... attempted to influence the witnesses or his co-accused or that he tried to jeopardise the discovery of facts, which were essential for the criminal investigation. Thus, there are no longer the original grounds for concern, within the meaning of section 67 b) of the [CCP], and taking into account that there are no other reasons for the detention, [the court] decided to release the accused from custody ...”
26. On 24 March 1997 the Regional Court, upon the Regional Prosecutor’s appeal of 12 March 1997, quashed the District Court’s decision and ordered the applicant’s continued remand in custody, stating:
“The Ostrava Regional Prosecutor filed a complaint against the decision of the District Court ... maintaining that the reasons for the accused’s detention under section 67 b) of the [CCP] continue to exist, having regard to the fact that there is still a risk that, if released, the accused would influence witnesses and/or the co-accused who have not yet been interviewed by the court, and, in addition, the residence of one witness has not yet been established.”
27. On 7 May 1997 the Regional Court dismissed a further request by the applicant for release from custody, filed on 5 May 1997. On 29 May 1997 the High Court rejected a complaint by the applicant of 13 May 1997 against the Regional Court’s decision.
28. On 18 September 1997 the Regional Court rejected a request by the applicant for release from custody of 28 August 1997. On 22 October 1997 the High Court rejected a subsequent complaint by the applicant of 23 September 1997 against the Regional Court’s decision.
29. While transferring the case to the District Court (see paragraph 11 above), the Regional Court dealt of its own motion under Article 72 § 1 of the CCP with the question whether grounds for remaining the applicant in custody continued to apply, and decided to keep him in detention. On 5 January 1998 the applicant filed a complaint against this decision, which was rejected by the High Court on 22 January 1998.
30. On 20 February 1998 the applicant requested release, which the District Court rejected on 19 March 1998. The Regional Court dismissed a complaint by the applicant against this decision on 25 March 1997.
31. On 27 April 1998 the High Court rejected a request by the District Court of 9 April 1998 for an extension of the applicant’s detention under Article 71 § 3 of the CCP by four months over two years, that is to 22 September 1998.
32. On 18 May 1998 the applicant was released from custody at his request, made on 15 April 1998.
33. On 14 April 1997 the applicant lodged a constitutional appeal (ústavní stížnost) with the Constitutional Court (Ústavní soud) against the Regional Court’s decision of 24 March 1997 claiming, inter alia, that there had been no reason for keeping him in custody.
34. On 9 May 1997 the Regional Court and the Regional Prosecutor were invited to submit their observations on the constitutional appeal. The Regional Court’s observations were submitted on 28 May 1997 and the Regional Prosecutor’s observations on 13 June 1997.
35. In subsequent period, the Constitutional Court regularly requested the ordinary courts to lend it file materials. From the Constitutional Court’s file it can be seen that requests to lend the file materials or furnish information as to the location of the file materials were made on 5 August, 2 September and 10 December 1997, 25 March, 9 April, 7 and 21 May, 18 June, 2 July, 2 and 26 October 1998, 19 January, 9 June and 4 November 1999, and 21 June, 7 July and 24 August 2000.
36. On 30 January 2001 the Constitutional Court found that the reasons for the applicant’s continued detention, as provided for in section 67 b) of the CCP, were well-founded. It stated, however, that the Regional Court had failed to reason its decision of 24 March 1997 sufficiently and that the applicant’s rights to a fair trial, guaranteed by Article 36 § 1 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod), and to liberty, under Article 5 § 1 of the Convention, had been violated. It therefore quashed the Regional Court’s decision.
37. Under Article 67 b) an accused person may be remanded in custody only if there exist specific grounds to believe that he or she will try to influence witnesses or co-accused who have not yet been heard by the court or otherwise frustrate the investigation into the facts which are of importance for the criminal proceedings, or will commit an offence which he or she was preparing or threatened to commit.
38. Pursuant to Article 71 § 2, a person’s detention may last as long as is necessary. If the detention lasted more than six months at the pre-trial stage and the release of the accused person would have jeopardised or substantially complicated the achievement of the aim of the proceedings, a judge can extend the detention for one year, or a chamber for two years.
39. Under Article 71 § 3 a person’s detention at the pre-trial stage and at trial should not exceed two years. If, because of the complexity of the matter or for other serious reasons, it has not been possible to complete the criminal proceedings within this period, and if the release of the accused person would jeopardise or substantially complicate the achievement of the aim of the proceedings, the High Court can extend the detention for the necessary period.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
5-4


ITEMID: 001-81136
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF CIORAP v. MOLDOVA
IMPORTANCE: 2
CONCLUSION: Preliminary objection dismissed (non-exhaustion);Violation of Art. 3 (conditions of detention);Violation of Art. 3 (force-feeding);Violation of Art. 6;Violation of Art. 8 (censorship of correspondence);Violation of Art. 8 (conditions of visits in prison);Not necessary to examine Art. 10;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 5. The applicant was born in 1965 and lives in Chişinău.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. The applicant worked for “Social Amnesty”, an NGO specialising in offering legal help to persons deprived of their liberty. He claims that as a result of his activities he became the target of persecution. In two sets of proceedings he was charged with a number of serious fraud offences. The applicant is a second degree invalid and has been diagnosed with “mosaic schizophrenia”.
8. On 23 October 2000 the applicant was arrested. On 6 November 2000 he was transferred to the remand centre of the Ministry of Justice (also known as prison no. 3, subsequently re-named prison no. 13) in Chişinău. He spent certain periods of time in the Pruncul detainee hospital. He was convicted of a number of crimes but is still remanded on other charges.
9. According to the applicant, the conditions of detention were inhuman. In particular, he referred to the overcrowding in the cells (which occasionally meant 2-3 detainees for each 2m2 of space), accompanied by the fact that detainees with infectious diseases such as tuberculosis were kept together with other detainees, especially during hunger-strikes; the presence of parasitic insects; the lack of proper ventilation and access to daylight; the rudimentary sanitary conditions which left no room for privacy; the loud radio that was constantly on between 7 a.m. and 10 p.m. together with the very poor quantity and quality of food served. Before 27 May 2005 electricity and cold water were only available for several hours a day. The applicant described his food ration for one day as consisting of 100 grams of porridge with water twice a day and a soup consisting mostly of water for lunch, with an additional 400 grams of bread for the whole day. In support of his complaint regarding the overcrowding in the cell he gave the example of his transfer to cell no. 11 on 2 August 2001, which he shared with five other persons despite the fact that only two bunk beds were available. He claimed that he had to sleep on the floor due to the insufficiency of beds and had access only to electric light for six hours a day. Another example was his detention in cell no. 17a, which accommodated 10 persons in an area of 12m2.
10. The applicant referred to the report of the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) for 2004 (see paragraph 47 below) and the report of the Ministry of Justice regarding the conditions of detention in prison no. 13 (see paragraph 43 below).
11. According to the applicant, he complained to various authorities about his conditions of detention. This was disputed by the Government. The applicant submitted replies from the Penitentiaries' Department and the Public Order Department at the Ministry of Internal Affairs, which dealt, inter alia, with the applicant's conditions of detention. In addition, he submitted copies of his complaints to the Government and the administration of prison no. 3, in which he also complained about the conditions of detention. In its letter of 29 December 2003 the Penitentiaries' Department conceded that prison no. 3 was “periodically overcrowded”, which led to an increase in the spread of pediculosis and skin disease. The presence of parasitic insects was also confirmed, although no complaints had been received in this respect from detainees. In 2002-2003 a major disinfection had been carried out in the prison.
12. In a letter to the prison administration dated 17 February 2002 the applicant complained about the absence of beds in cell no. 72 where he was detained at that time, the detainees having to sleep on wooden shelves. He referred to the limited access to daylight and fresh air due to metal blinds covering the window and the presence of strong smells and damp, as well as the presence of parasitic insects, which prevented him from sleeping. In a letter dated 26 May 2002 the applicant complained about his transfer for ten days to solitary detention cell no. 7 which was very damp and caused him to fear that he would contract tuberculosis. In addition, he had not been given food for three days and there were rodents in the cell. There was no furniture, except for a bed which was retracted into the wall during daytime, the applicant having to sit on the bare concrete floor. There was no window and he had electric light for only 5-6 hours a day, leaving him in total darkness for the rest of the time. He requested the visit of a doctor and his transfer to another cell. It appears that the applicant did not receive a reply to these two complaints and the Government have not commented on them. In his “hunger-strike diary” the applicant noted his transfer to cell no. 11 on 2 August 2001 and the presence of five more persons there.
13. According to a letter from the Ministry of Justice dated 25 November 2005, the applicant had been detained in cells nos. 2, 17a, 53, 70a, 84, 89 and 116 all measuring 8-12m2. The number of detainees which those cells could accommodate was not specified and no details were given as to the number of detainees who had been actually detained in those cells together with the applicant. The only exception was cell no. 116, where the applicant was detained at the time of filing the observations (13 December 2005), which measured 10m2 and in which one other person was detained. In a letter to another person detained in the same cell, no. 116, dated 30 November 2005, the Prosecutor General's Office stated that “all the persons detained in that cell have a bed and bed linen”. The video recording submitted by the Government showed two bunk beds in the cell, one of which was placed across the toilet. According to the Government, electricity and cold water were permanently available and there was natural light in each cell. The applicant had the right to a bath every week. Food was given in accordance with the relevant Government regulations, including meat and fish “depending on availability”. Detainees could buy food from the local shop and were allowed to receive parcels from the outside. In addition, the applicant had been treated on many occasions by various doctors as a result of his hunger-strikes and self-mutilation and he benefited from the better conditions in the prison hospital.
14. The applicant began a hunger-strike on 1 August 2001 as a result of alleged violations of his rights and those of his family. Since no prosecutor came to discuss with him the alleged violations for two weeks, on the night of 14 August 2001 he cut his wrists and set fire to himself. He was treated and was subsequently force-fed a number of times. The applicant submitted his “hunger-strike diary”, in which he noted the dates and manner of his force-feeding, his state of health during the relevant period and his transfers to various cells. The applicant wrote that he had requested to be given food intra-venously rather than by means of a stomach tube.
15. Following the applicant's complaint, on 13 September 2001, the duty doctor made a preliminary diagnosis: “right-sided inter-muscular inguinal hernia?” (“hernie intermusculară inghinală din dreapta?”). On 14 September 2001 a surgeon established the diagnosis: “abscess of the connection of the fore wall?” (“abces de legătură a peretelui anterior?”). Treatment was ordered but the applicant refused it. He submitted that, having refused treatment on 14 September 2001, he was transferred for a few days to a dark, cold and damp solitary confinement cell with no furniture.
16. The prison psychiatrist who examined the applicant several days after the incident of 14 August 2001 declared in court that he had found that the applicant had been perfectly aware of the consequences of his actions and had explained them as a last measure of protest against abuses of his rights. The doctor added that he had been pressured into signing an act declaring the applicant mentally ill, which he refused to do. In August – September 2003 the applicant underwent in-patient treatment after he had been diagnosed, inter alia, with mosaic psychopathy.
17. In an answer to the applicant's lawyer, the prison administration confirmed that on 3 August 2001 the applicant had begun a hunger-strike and was given a medical examination the same day. On 15 August 2001 he cut his veins and set fire to himself and was treated immediately. On 23 August the doctor found his state of health relatively satisfactory. On 24 August a doctor found that the applicant's health was deteriorating and ordered force-feeding. He was force-fed a total of seven times, including on 28 August, 3, 5, 6, 7 and 10 September 2001. On 14 September 2001 the applicant was transferred to a detainee hospital and he ended his hunger-strike on 4 October 2001. The feeding took place on the basis of Article 33 of the Law on pre-trial detention (see paragraph 40 below) and a special instruction (see paragraph 41 below). That instruction had not been published but it appears that the applicant had known its contents since he mentioned it in his “hunger-strike diary”. The prison regulation was not published either but did not contain any provision regarding force-feeding. On 23 December 2003 a copy was exceptionally sent to the applicant.
18. According to documents submitted by the Government, the applicant was escorted to court hearings on 4 and 13 September 2001. The applicant noted in his “hunger-strike diary” that he had not been fed on 4 and 13 September 2001 since he had been brought to court on those dates. In response to the Court's request to submit all relevant medical documents concerning the applicant's force-feeding, including the results of any medical tests made, the Government submitted the following documents. Several types of medical investigations of the applicant's health took place after 11 September 2001, including blood and urine analyses, cardiac and other measurements. According to the register of visits by the duty doctor, the applicant's health was satisfactory during most of the period 1 – 21 August 2001. On 23 August 2001 the duty doctor found that the applicant's health was “relatively satisfactory” but considered that he was not sufficiently fit to participate in criminal investigation actions, having complained of general weakness and dizziness. On 24 August 2001 the duty doctor noted “Force-feeding was administered in accordance with the instruction (milk 800ml, sugar 50gr)”. Similar remarks were made on 28 August 2001, 3, 5, 6, 7 and 10 September 2001. On a number of these dates, the duty doctor noted that the applicant's health had been “relatively satisfactory”, while on 5 September 2001 it was “satisfactory”. No indication of the nature of the food administered was noted for the dates 5-7 September 2001.
19. In October 2001 the applicant lodged a complaint about the force-feeding and about the pain and humiliation caused by that process. He described the process as follows: he was always handcuffed, even though he never physically resisted force-feeding but simply refused to take food as a form of protest. The prison staff forced him to open his mouth by pulling his hair, gripping his neck and stepping on his feet until he could no longer bear the pain and opened his mouth. His mouth was then fixed in an open position by means of a metal mouth-widener. His tongue was pulled out of his mouth with a pair of metal tongs which he claims left it numb and bleeding each time. A hard tube was inserted as far as his stomach through which liquidised food passed into his stomach provoking, on some occasions, sharp pain. When the metal holder was removed from his mouth, he bled, he could not feel his tongue and was unable to speak. The instruments used for his force-feeding were not fitted with single-use, soft protection layers to prevent pain and infection.
20. According to the witness statement made in court by C.S., a nurse who personally witnessed the applicant's force-feeding, the applicant had not always resisted force-feeding and no handcuffing had been necessary on such occasions, but it was a mandatory procedure, which she considered to be painful, but necessary to save lives. B.A., a generalist who personally force-fed the applicant, declared in court that occasionally the food introduced “did not correspond to the instruction”.
21. V.B., a detainee in the same remand centre, gave evidence in court that he had seen blood on the applicant and on other detainees after they had been force-fed. The applicant requested to be fed milk or to be given vitamins through an intra-venous drip. He also submitted copies of decisions to place him in a solitary cell for periods of 10 days for hunger-strikes on 22 April and 15 October 1994, 19 and 28 July, 21 August, 31 October, 24 November and 4 December 1995. The latter sanction mentioned that the applicant “categorically continued to refuse to take food”.
22. On 4 November 2001 the Centru District Court refused to examine the complaint because it did not comply with procedural requirements. On 18 February 2002 that court again refused to examine his complaint on the same ground. On 25 April 2002 the Chişinău Regional Court quashed that decision and ordered a re-hearing, finding that the applicant, as a detainee, could not fully observe the formalities and that the specific nature of his complaint warranted an examination of his case on the merits.
23. On 7 November 2002 the Centru District Court rejected his claim as unfounded. It focused on the lawfulness of force-feeding and qualified his refusal to eat as a violation of detention rules. On 30 April 2003 the Chişinău Regional Court upheld that judgment.
24. On 19 April 2003 the Supreme Court of Justice quashed the previous judgments and ordered a full re-hearing. The court noted that the lower courts had not established clearly whether medical necessity had been the basis for the force-feeding of the applicant.
25. On 9 October 2003 Article 33 of the Law on Remand (which had provided for the force-feeding of detainees on hunger-strike) was amended to expressly prohibit the force-feeding of detainees.
26. On 15 February 2005 the Centru District Court rejected his claims as unfounded. It found that the law (applicable at the time), which provided for the force-feeding of detainees who refused to eat, was not contrary to national or international human rights standards, aiming as it did at protecting the lives of such detainees. The applicant's force-feeding was based on medical necessity as established by the medical personnel and his handcuffing and other restrictive measures were necessary to protect him from danger to his health and life. The court found that in view of his resistance to force-feeding it was necessary to apply to him “special means, including handcuffs” and that it did not amount to inhuman or degrading treatment. The court did not deal with the witness statements of C.S., B.A. or V.B. (see paragraphs 20 and 21 above).
27. On 26 April 2005 the Chişinău Court of Appeal upheld that judgment, essentially repeating the reasons of the Centru District Court. The court noted that the witnesses heard by the lower court had denied having tortured the applicant and that there was no evidence to support his claim.
28. The applicant appealed to the Supreme Court of Justice, relying, inter alia, on evidence of damage to his health as a result of force-feeding such as a broken tooth and an abdominal infection. He also relied on his inability to pay and mentioned his second-degree invalidity. The court refused to examine his appeal because the applicant had not paid court fees of 45 Moldovan lei (MDL) (the equivalent of 3 euros (EUR) at the time). He requested the court to waive those fees because he had no sources of income and could not afford to pay them. The court responded by a letter of 13 June 2005, explaining that his appeal:
“does not correspond to the provisions of Articles 436, 437 of the Civil Procedure Code... According to Article 438 § 2 if the appeal does not correspond to the provisions of Article 437 or if the court fee has not been paid, the court returns it within 5 days under the signature of the president or the vice-president of the court. For these reasons we return your appeal for elimination of shortcomings. ...”
29. The applicant's appeal in cassation lodged with the Supreme Court of Justice in respect of his force-feeding was not examined by that court for failure to pay the court fees (see paragraph 28 above).
30. The applicant had won court proceedings in 2003 and had received MDL 1,800. By a judgment of 1 July 2005 he was awarded MDL 5,000. However, this decision was appealed and the applicant did not receive any of that award in 2005. The applicant paid MDL 1,000 for the assistance of a lawyer during his detention. He was also compensated for lost mail by the postal authorities of France and the United Kingdom (EUR 55).
31. In several letters to the domestic authorities he claimed that the court fees and his other expenses had been paid by his relatives or friends. In a letter of 25 September 2003 he asked the prison administration to receive the compensation from the postal authorities and to transfer it to his lawyer.
32. The applicant initiated court proceedings requesting a court order to oblige the Government to provide him with the financial means for initiating various court proceedings. On 18 June 2004 the Supreme Court of Justice dismissed this complaint for failure to follow the extra-judicial dispute settlement procedure before initiating the proceedings.
33. The applicant further submitted copies of several letters, including from the Parliament (e.g., letter of 10 October 2002), the Ministry of Justice (11 October 2001), the Constitutional Court (18 September 2002), an Ombudsperson (23 August 2001), a psychiatric hospital (16 April 2002) as well as from law-enforcement agencies such as the prosecutor's office (11 July 2002) and non-governmental organisations such as “Amnesty International” (28 July 2003) and “Lawyers for Human Rights” (10 February 2003). Most of these letters bear prison stamps indicating the entry number and date. Occasionally, a handwritten instruction is given: “to be handed [to the applicant]” and/or by a note with his name and his cell number (including cell nos. 11, 13, 15, 20 and 72). Other letters bear the stamp only on the envelope. Some of the letters were addressed to the prison administration and the applicant, but all of the letters mentioned above were addressed to the applicant only.
34. The applicant submitted that except for a first visit by his family at the beginning of his detention, he communicated with them through a glass partition using an internal telephone. Such visits were limited to about two hours a month and no privacy was possible since five cabins for such visits were placed next to each other. All physical contact was excluded. Convicted persons were allowed much longer visiting times in separate meeting rooms without a glass partition. The applicant did not have such privileges because, although convicted of some offences, he was still on remand on other charges. He further stated that he had been denied visits by his family for long periods of time (up to a year).
35. The applicant requested better conditions for visits. On 21 August 2003 he asked for permission to have longer visits (see the preceding paragraph) from his girlfriend and his sister and noted that his conviction had become final on 28 May 2003. This request was refused on the basis of the “Statute of the remand centre”.
36. He initiated court proceedings against the administration of the remand centre requesting the right to have better visiting conditions, notably to be able to meet his visitors in a separate room for a longer time and without the glass partition. The administration submitted that such visits were prohibited by the prison rules, which aimed at protecting the safety and order of the remand centre. On 25 December 2003 the Court of Appeal rejected the applicant's claim.
37. On appeal he added a request for more regular visits and invoked the fact that he was both a convict and a detainee on remand. He stressed the long period of time during which he had not had any physical contact with relatives and described how he missed such contact, given also that he could not contact them by telephone. The applicant insisted that he had obtained on numerous occasions the agreement of the judge in charge of his case for meetings with relatives, but that the prison administration allowed meetings only in the glass cabin. He noted that occasionally the internal telephone in the glass cabin had not worked and that he had had to shout to be heard by his relatives, which was an embarrassment since four other families had had to do the same. The applicant invoked Article 8 of the Convention.
38. The Supreme Court of Justice, in its final judgment of 21 April 2004, refused to examine the request for more regular visits as it had not been lodged with the first-instance court. It also rejected the main request for better visiting conditions, invoking the security of the detainees as the justification for the glass partition.
39. The relevant provisions of the Code of Civil Procedure read as follows:
Article 85 Waiver of court fees
(1) The following are exempted from payment of court fees in civil proceedings:
(a) Plaintiffs in actions:
...
regarding compensation for damage sustained as a result of bodily harm or other harm to health or as a result of death;
regarding compensation for damage arising out of a crime; ...
(4) Depending on his or her financial situation, the person may be exempted by the judge (the court) from payment of court fees, either entirely or in part.
Article 437 Content of the application to the court
...
(2) Proof of payment of court fees is to be annexed to the application; the provisions of Articles 85 (4) and 86 do not apply.”
40. The relevant provisions of the Law on pre-trial detention of 27 June 1997, in force until 9 October 2003, read as follows:
“Article 18 Correspondence - Lodging of complaints, requests and sending of letters
... “(2) Complaints, requests and letters from [persons detained awaiting trial] shall be subject to censorship by the prison authorities. Complaints, requests and letters addressed to the public prosecutor shall not be subjected to any control and shall be despatched to the addressee within twenty-four hours of their being filed.
Article 19 Authorisation of meetings
(1) The authorities of the remand centre shall authorise meetings of detainees with their relatives or other persons, with the written approval of the person or authority in charge of the case. Usually one meeting per month shall be authorised. The meeting may last from one to two hours.
...
(3) Authorised meetings shall take place under the supervision of the remand centre authorities. In the event of a violation of the rules, the meeting shall end.
Article 33 Manner of force-feeding
(1) A detainee who has refused to take food shall be subjected to force-feeding on the basis of a written report by the doctor in charge of that detainee.
(2) The following shall be force-fed:
(a) persons whose life is in danger as a result of their persistent refusal to take food;
...
(4) A person who refuses to take food shall be force-fed by medical personnel in the presence of at least two guards or other representatives of the authorities of the detention facility. Should it be necessary, such a person shall be restrained with handcuffs and held in the correct position by the guards.
(5) The duration of the procedure of force-feeding of the detainee, the calorific value of the food and the name and function of the person who fed the detainee shall be indicated in the latter's medical record.
(6) Should the health of a person refusing to take food improve, the force-feeding shall end. A detailed medical report shall be drawn up on the subject and the relevant entries made in the medical records. ...”
41. According to the Instruction regarding the detention in prisons of persons refusing to take food and the manner of their force-feeding, adopted in 1996 by the Ministry of Health and the Ministry of Justice on 15 August 1996 and coordinated with the Prosecutor General's Office, an “ill-founded” refusal to take food shall be considered a breach of the detention regime. A person found to be in breach shall be transferred, within 24 hours from the date of the actual refusal to take food, to a solitary confinement cell. A doctor shall determine the need to force-feed a detainee refusing to take food and the regime to be followed, in accordance with the detainee's somatic condition of the organism, and shall explain, before each feeding, the dangers associated with the refusal to eat. Should a detainee resist his force-feeding, he shall be handcuffed and held in the required position by two guards or other prison representatives who must always be present, and a mouth-widener shall be applied. Each instance of force-feeding shall be registered in the detainee's medical file, indicating the date, the composition of the food and its quantity. Should a detainee's condition improve, the force-feeding shall end and the reasons shall be given in the medical file.
42. On 24 October 2003 the Parliament adopted decision no. 415-XV, regarding the National Plan of Action in the Sphere of Human Rights for 2004-2008. The Plan includes a number of objectives for 2004-2008 aimed, inter alia, at improving the conditions of detention, including the reduction of overcrowding, improvement of medical treatment, involvement in work and reintegration of detainees, as well as the training of personnel. Regular reports are to be drawn up on the implementation of the Plan. On 31 December 2003 the Government adopted a decision on the Concept of reorganisation of the penitentiaries' system and the Plan of Action for 2004-2013 for the implementation of the Concept of reorganisation of the penitentiaries' system, both having the aim, inter alia, of improving the conditions of detention in penitentiaries. In addition, on 21 April 2004 the Government approved the creation of a Centre for technical and material assistance to the penitentiaries' system.
43. On an unspecified date the Ministry of Justice adopted its “Report on the implementing by the Ministry of Justice of Chapter 14 of the National Plan of Action in the sphere of human rights for 2004-2008, approved by the Parliament Decision no. 415-XV of 24 October 2003”. On 25 November 2005 the Parliamentary Commission for Human Rights adopted a report on the implementation of the National Plan of Action. Both those reports confirmed the insufficient funding of the prison system and the resulting failure to implement fully the action plan in respect of the remand centres in Moldova, including prison no. 3 in Chişinău, in particular concerning the provision of sufficient space, food and bedding. The first of these reports mentioned, inter alia, that “as long as the aims and actions in [the National Plan of Action] do not have the necessary financial support ... it will remain only a good attempt by the State to observe human rights, described in Parliament Decision no. 415-XV of 24 October 2003, the fate of which is non-implementation, or partial implementation.” On 28 December 2005 the Parliament adopted a decision no. 370-XVI “Concerning the results of the verification by the special parliamentary commission regarding the situation of persons detained pending trial in remand centre no. 13 of the Penitentiaries' Department whose cases are pending before the courts”. The decision found, inter alia, that “the activity of the Ministry of Justice in ensuring conditions of detention does not correspond to the requirements of the legislation in force.”
44. The relevant provisions of domestic law concerning the remedies available for complaints under Article 3 of the Convention have been set out in Ostrovar v. Moldova ((dec.), no. 35207/03, 22 March 2005) and Boicenco v. Moldova (no. 41088/05, §§ 68-71, 11 July 2006).
45. The relevant provisions of domestic law concerning detainees' correspondence, in addition to those mentioned in paragraph 40 above, have been set out in Meriakri v. Moldova ((striking out), no. 53487/99, §§ 17-24, 1 March 2005).
In addition, Article 301 of the new Code of Criminal Procedure reads as follows:
“(1) Operational-investigative measures involving limitations to the right of inviolability of person, home or correspondence, telephone and telegraph conversations and other forms of communication, as well as other measures provided for by law shall be carried out with the authorisation of the investigating judge. ...”
46. In its Report on its visit to Moldova on 10-21 June 2001, the CPT found (unofficial translation):
“61. The delegation drew attention to the issue of contacts with the outside world for persons deprived of their liberty. A considerable number of persons complained of the ban on corresponding with their relatives and receiving visits. It appeared that contact by detainees with the outside world was left to the total discretion of the police officers and/or persons in charge of the institutions, with a very restrictive attitude being taken in this respect.
Concerning the suspects of crimes the CPT accepts that, in the interest of the investigation, some restrictions on visits may indeed be imposed for certain persons. However, these restrictions should be strictly limited to the specific needs of the case and should be applied for as short a time as possible. In no circumstances may visits to a detainee by his family and friends be prohibited for long periods of time. If there is considered to be an ongoing risk of collusion, it is preferable to authorise visits under strict supervision; this approach should also cover correspondence with family and close friends.
...
The CPT recommends that the Moldovan authorities review the legal regulations and existing practice in this field, in the light of the observations formulated above.”
47. In its report on the visit to Moldova on 20-30 September 2004, the CPT found (unofficial translation):
“50. The CPT delegation again heard repeated complaints from persons charged with and convicted of administrative offences concerning the refusal of permission for them to receive visits or have contact with the outside world in EDPs.
The CPT reiterates (see paragraph 61 of the report on the 2001 visit) that, where persons awaiting trial are concerned, if it is necessary in the interests of the investigation to place restrictions on visits for some of them, the restrictions should be strictly limited in time and applied for the shortest period possible. In no circumstances should visits to a detained person by family and friends be prohibited for a prolonged period. If there is thought to be an ongoing risk of collusion, it is better to allow visits under strict supervision. ...
55. The situation in the majority of penitentiaries visited, in view of the economic situation in the country, remained difficult and the delegation encountered a number of problems already identified during its visits in 1998 and 2001 in terms of physical conditions and detention regimes.
Added to this is the problem of overcrowding, which remains serious. In fact, even though the penitentiaries visited were not operating at their full capacity – as is the case of prison no. 3 in which the number of detainees was appreciably smaller than during the last visit of the Committee – they continued to be extremely congested. In fact, the receiving capacity was still based on a very unsatisfactory 2 m2 per detainee; in practice, this was often even less.
73. Facilities for contact with the outside world left much to be desired. Although there was no restriction on parcels and letters, inmates were entitled only to brief visits totalling three hours every three months, which were in practice often reduced to one hour. What is more, visits took place under oppressive conditions in a room where prisoners were separated from visitors by a thick wire grille, with a guard stationed nearby at all times.
79. The follow-up visit to prison no.3 in Chişinău revealed an unsatisfactory situation. The progress noted was in fact minimal, limited to some running repairs. The ventilation system had been repaired primarily thanks to the financial support of civil society (especially NGOs), and the creation of places for daily recreation had been made possible only as a result of contributions by the detainees and their families.
The repair, renovation and maintenance of cells are entirely the responsibility of detainees themselves and of their families, who also pay for the necessary materials. They must also obtain their own sheets and blankets, the institution being able to give them only used mattresses.
In sum, the conditions in the great majority of cells in Blocks I-II and the transit cells continue to be very poor indeed. ...
Finally, despite the drastic reduction in overcrowding, the rate of occupancy of cells is still very high, not to say intolerable.
83. Except in the Lipcani Re-education Colony for Minors, where the efforts made in this respect are to be highlighted, the quantity and quality of detainees' food everywhere is a source of grave concern. The delegation was inundated with complaints regarding the absence of meat and dairy products. The findings of the delegation, regarding both the stocks of food and the menus, confirm the credibility of these complaints. Its findings also confirmed that in certain places (in Prison no. 3, ...), the food served was repulsive and virtually inedible (for instance, insects and vermin were present). This is not surprising given the general state of the kitchens and their modest equipment.
The Moldovan authorities have always claimed financial difficulties in ensuring the adequate feeding of detainees. However, the Committee insists that this is a fundamental requirement of life which must be ensured by the State to persons in its charge and that nothing can exonerate it from such responsibility. ...”
48. Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules (adopted by the Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers' Deputies), insofar as relevant, reads as follows:
“Contact with the outside world
24.1 Prisoners shall be allowed to communicate as often as possible by letter, telephone or other forms of communication with their families, other persons and representatives of outside organisations and to receive visits from these persons.
24.2 Communication and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations, maintenance of good order, safety and security, prevention of criminal offences and protection of victims of crime, but such restrictions, including specific restrictions ordered by a judicial authority, shall nevertheless allow an acceptable minimum level of contact.
24.3 National law shall specify national and international bodies and officials with whom communication by prisoners shall not be restricted.
24.4 The arrangements for visits shall be such as to allow prisoners to maintain and develop family relationships in as normal a manner as possible.
24.5 Prison authorities shall assist prisoners in maintaining adequate contact with the outside world and provide them with the appropriate welfare support to do so.
...”
VIOLATED_ARTICLES: 3
6
8


ITEMID: 001-98317
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: KOPECKÝ v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: The applicant, Mr Zdeněk Kopecký, is a Czech national who was born in 1958 and lives in Ostrava. He was represented before the Court by Ms J. Mlčochová, a lawyer practising in Karviná. The respondent Government were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On an unspecified date in 2001 the applicant was charged with trafficking in women and corrupting the morals of youth.
On 18 December 2001 the police notified his counsel that Ms T., the key witness whom the applicant had allegedly taken to Switzerland to carry out prostitution in September 2000, would be questioned by the investigator on 20 December 2001. Counsel informed them that she could not attend the questioning due to a concurrent hearing before a court.
Ms T. testified as follows:
“[I] was again advised by reading a printed form ‘Notice of witnesses’ and ‘Notice of victims’ ... I fully understood the contents of the notice, and ... I do not have any reason not to testify, I wish to and will testify... I will tell the truth.
As to my trip to Switzerland ... with a view to prostitution ... [in] September 2000, ... I travelled with a friend of Mr R., a certain Z., ... Mr R. introduced us on the day on which I received my passport, ... on 6 September 2000. ... [On the next day] Z. picked me up ... at the Hollywood club in Ostrava ... and we travelled to Prague. He knew the purposes of our trip, [that is,] that he was taking me abroad with a view to prostitution. ... After having passed Prague, we met Mr R. in a tavern ... He said that we would continue on to Munich to meet a certain Hans. ..., on the next day we met Hans at a petrol station where we had breakfast and afterwards we got into Hans’s car, Z. leaving his car there. At about 2 p.m., we reached the town of [S.] in Switzerland ... I was handed over to the owner of a club called Joe’s Sauna Club. Z. noted the address of the club and, together with Hans, left ... I have not seen Z. since then.”
Ms T. was also shown photographs and identified the applicant as the person with whom she had travelled to Switzerland.
On 28 March 2002 the Karviná District Court (okresní soud) heard the applicant, who pleaded not guilty. The hearing was adjourned until 22 April 2002 in order to summon other witnesses, including Ms T.
Between April and September 2002 the court adjourned the hearing five more times to summon Ms T. However, despite the attempts of the police to find out her whereabouts and bring her to the court and the court’s search in the central register of citizens in the Czech Republic and Slovakia, Ms T. failed to appear before the court. Therefore, on 23 September 2002 the court, by virtue of section 211(2)(a) of the Code of Criminal Procedure, read out her testimony from the preliminary proceedings. At the end of the trial, the District Court convicted the applicant of trafficking in women and corrupting the morals of youth and sentenced him to three years of imprisonment with three years’ probation. The court held that:
“... [The applicant is] incriminated by the testimony of Ms T., which was read out at trial ... since the court did not succeed in assuring her presence at the main hearing; she was no longer at the place of her permanent residence and was probably living at an unknown address in Slovakia. ...
The criminal activities of the accused ... are demonstrated by documentary evidence such as the lists ... of telecommunication operations of the accused and Ms T. [and another witness giving evidence against the applicant’s co-accused] and ... the transcriptions of the interceptions of their telephone conversations ... It follows clearly from the material in evidence that [the applicant’s co-accused] in the first place but also [the applicant] knew that the girls, all of whom were not yet identified, were involved in prostitution, both in the Czech Republic and abroad, and it is clear that the accused together with other persons ... participated in managing the prostitution of these girls. ...”
On 25 February 2003 the Ostrava Regional Court (krajský soud), further to an appeal by the applicant, upheld the District Court’s judgment. It reiterated that the applicant had been incriminated by the testimony of Ms T., who had been properly advised about her right not to give testimony and about whose questioning the applicant’s counsel had been notified.
On 26 August 2003 the Supreme Court (Nejvyšší soud) declared the applicant’s appeal on points of law (dovolání) inadmissible.
On 3 March 2004 the Constitutional Court (Ústavní soud) dismissed as manifestly ill-founded a constitutional appeal by the applicant in which he maintained that the ordinary courts had based their findings on Ms T.’s testimony, which had merely been read out at trial. He further submitted that the witness had not been duly advised prior to her interview and that her testimony had therefore been obtained contrary to the law. The court endorsed the conclusion of the ordinary courts that the witness had been duly advised and held that the District Court had made a sufficient effort to summon Ms T.
Article 211 § 2 (a) provides that the statement of a witness given in preliminary proceedings may be read out at the trial if the witness has died or has gone missing, is abroad and is thus unreachable, or has become ill and is therefore not in a position to be heard.


ITEMID: 001-108661
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: VELLESTE v. ESTONIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: The applicant, Mr Urmas Velleste, is an Estonian national who was born in 1974 and lives in Pärnu.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was suspected of a number of economic crimes (fraud and embezzlement) in respect of which several separate sets of criminal proceedings were initiated on and after 20 September 2001. Subsequently, the different criminal proceedings were joined on several occasions (in 2002, 2003 and 2005). During the preliminary investigation and trial the applicant was at liberty, except for the period from 28 October to 19 November 2003, when he was kept in detention because he had failed to appear before the investigator when summoned.
On 23 May 2006 the bill of indictment was signed by the public prosecutor and the criminal case was sent to the Tartu County Court for trial.
On 19 June 2009 the Tartu County Court convicted the applicant of some of the charges related to fraud and embezzlement, and acquitted him in respect of the remaining charges. He was sentenced to two years and six months’ imprisonment, of which he had to serve four months in prison, the remaining part of the sentence being suspended. The County Court rejected the applicant’s argument about the length of the proceedings. It found that considering the volume and complexity of the case and the fact that the case had been in court since 24 May 2006, the length of the proceedings had not been excessive. It added that the “factor of time, namely the time that had passed from the commission of the acts described in the charges until the delivery of the judgment, and the behaviour of the accused at that time, ... were taken into account by the court when determining the [applicant’s] sentence...”
By a judgment of 26 February 2010 the Tartu Court of Appeal upheld the County Court’s judgment in substance. In respect of the complaint about the lapse of reasonable time for the criminal proceedings, the Court of Appeal noted that the case at hand was a complicated and voluminous one, the written evidence comprised fifteen volumes, and many witnesses had been heard. It concluded that a reasonable time for the proceedings had not been exceeded. In respect of the applicant’s sentence, the Court of Appeal found that the fact that he had committed the offence seven years before did not serve as a ground for not applying “shock incarceration” to him.
On 20 May 2010 the Supreme Court decided not to examine the public prosecutor’s appeal.
On 12 July 2010 the Tartu County Court postponed the enforcement of the applicant’s prison sentence until 21 October 2010 on health grounds.
On 22 October 2010 the Tartu County Court dismissed the applicant’s request for release from punishment on health grounds, or alternatively for postponement of the enforcement of his prison sentence. The applicant’s appeal was dismissed by the Tartu Court of Appeal on 10 November 2010. The courts relied on medical information presented by the applicant, according to which he had sustained a serious injury in 1994, had been receiving treatment for back pain since 2001 and had been diagnosed with spinal stenosis. Electrotherapy, swimming or other physical exercise had been recommended for him. The courts found that rehabilitation therapy, other than swimming, could be continued in prison and in case of need in-patient treatment was also available.
Article 349 § 1 of the Code of Criminal Procedure (Kriminaalmenetluse seadustik) provides that the Supreme Court decides whether to examine an appeal on points of law within one month of receipt.
Article 352 § 3 of the Code stipulates that the Supreme Court hears a criminal case within two months of agreeing to examine the appeal.
By a decision of 30 December 2008, in constitutional review proceedings (case no. 3-4-1-12-08), the Constitutional Review Chamber of the Supreme Court rejected a complaint concerning the length of criminal proceedings, noting that the complainant could raise the issue in criminal proceedings before the court hearing the criminal case. It held:
“23. If the court comes to the conclusion that [the complainant’s] right to proceedings within a reasonable time has been violated, the court can, in the light of all the circumstances and on the basis of Article 6 § 1 of the Convention, terminate criminal proceedings due to inappropriateness, render a judgment of acquittal or take the fact that reasonable time was exceeded into account when passing sentence.”
The above decision of the Supreme Court is more extensively quoted in the case of Malkov v. Estonia (no. 31407/07, § 32, 4 February 2010).
By a judgment of 27 January 2009 the Tartu Court of Appeal found that the criminal proceedings in the case it was examining had not been conducted within a reasonable time and the defendant’s sentence was reduced accordingly (see Malkov, cited above, § 29).
The Criminal Chamber of the Supreme Court has also found in several judgments that excessive length of proceedings can serve as grounds for the termination of criminal proceedings, the defendant’s acquittal or taking the length of proceedings into account in the sentence (judgments of 27 February 2004 (case no. 3-1-1-3-04) and 28 December 2009 (case no. 311-100-09)).


ITEMID: 001-84334
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF ZUBAYRAYEV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);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);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Christos Rozakis;Dean Spielmann;Françoise Tulkens;Loukis Loucaides;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1967 and lives in Nice, France. Before 1999 the applicant was a resident of the village of Starye Atagi in Chechnya. He also submitted the complaint on behalf of his close relatives: his mother, Malika Zubayrayeva, brother Khasan (also spelled Khasin) and sisters Aset and Petimat Zubayrayeva, who are not applicants in the present case.
7. The facts of the case were partly disputed by the parties. Accordingly, the Court requested the Government to submit copies of the criminal investigation file. The submissions of the parties are summarised below in Part A. A summary of the documents submitted by the Government is set out in Part B below.
8. In October 1999 the applicant applied for asylum in Belgium. He said that he had served in the national security service of the self-proclaimed “Chechen Republic of Ichkeria”.
9. The applicant’s parents, brothers and sisters remained in Chechnya. His family lived in their house at 103 Nagornaya Street in the village of Starye Atagi.
10. The applicant’s mother, Malika Zubayrayeva, testified that in the early hours of 17 September 2000 the family had been woken by loud screams. A large group of men in camouflage uniforms and, in some instances, masks, whom she identified as belonging to the Russian special services (“spetsnaz”), entered the house and forced all the inhabitants outside. They were not allowed to get dressed and no reasons were given for their intervention. According to her, the intruders wore insignia of the Russian army and spoke Russian without an accent.
11. According to the applicant, the inhabitants of the house were lined up in the courtyard facing the wall and their passports were collected. The servicemen read out the names in the passports one by one. One of the applicant’s brothers, Magomed, was not at home that night and the men asked about his whereabouts. The applicant’s father Salaudi (also spelled Salavdi) Zubayrayev replied that he was not at home. The intruders hit the applicant’s other brother, Khasan Zubayrayev (born in 1977), with a rifle butt on the head and led the applicant’s father away. They then forced the women into one of the rooms. In the meantime others opened all the rooms in the house and searched them. They collected valuables and family photographs.
12. Once the armed men had left, the women went outside and found Khasan in the courtyard. The body of the applicant’s father was found about 100- 200 metres from the house. He had been shot in the back of the head with an automatic rifle.
13. On the same night and in similar circumstances four other persons were killed in Starye Atagi: Musa Abubakarov (aged about 70), Zaur Demilkhanov (who was born in 1982), Vakha Elmurzayev (aged about 70) and Isa Elmurzayev (aged about 30).
14. The applicant submitted that on 18 September 2000 the Russian television news had announced that several persons, including the applicant’s father, had been killed the previous night in Starye Atagi by religious extremists – the “wahhabists”.
15. The Government submitted that in the early hours of 17 September 2000 a group of unidentified persons armed with automatic weapons had entered the village of Starye Atagi and murdered five men, all of whom had been shot with automatic weapons. The Government stressed that all the persons killed had been loyal to the federal authorities, and openly expressed their negative opinion of “wahhabists.” The Government also stressed that one of the persons killed was the son of a police officer from the Ministry of the Interior. They submitted that there was no reason to suspect that the killings had been committed by State agents.
16. The applicant submitted that on 17 September 2000 the family had been preparing for Salaudi Zubayrayev’s funeral when they learnt that there were investigators present at the crime scene. The applicant’s younger brother Khasan had gone to see them. He had taken along cartridges he had found near his father’s body – nine from a Kalashnikov 5,45 millimetre automatic rifle and three from a 9 mm Makarov pistol.
17. At the place where his father’s body had been found the applicant’s brother saw a group of servicemen surrounded by villagers. He inquired who was the most senior and gave him the cartridges. The officers stated that they had come from the Grozny District Prosecutor’s Office. The applicant’s brother had tried to explain that he was the son of the person killed and a witness of the crime, and that other members of the family were at home preparing the body for burial. As the officers did not seem to be interested in his statements, he had tried to obtain their names and ranks. In response one of the officers had rudely asked if he also wanted to know his home address in Russia. The officers had shouted at him and the other villagers, and had ordered them to disperse and made threats. They had not visited their house. None of the family members were questioned that day or later about the circumstances of the murders, nor had anyone come to their house to take pictures of the body or to collect other relevant evidence.
18. The applicant said that his father had been buried on 17 September 2000 at the village cemetery. The family members had not contacted a doctor or taken pictures of the body before the burial. Nor had they contacted any representatives of the military or investigative bodies, as they considered this to be a waste of time in view of the prosecutors’ attitude. They were never contacted by the authorities in relation to the murder.
19. The Government submitted that on 17 September 2000, immediately following the receipt of news of the murders in Starye Atagi, a group of investigators had arrived in the village and taken immediate action. They had submitted copies of documents that had been drawn up by the investigators on 17 September 2000, including descriptions of the scenes of the murders and of the bodies, including that of Salaudi Zubayrayev. The team had also collected cartridges and bullets (see paragraphs 44 and 45 below). The Government denied that the investigators had ever mistreated the relatives of the victims and noted that the case file contained no complaints from the victims or anyone else of reprehensible conduct on the part of the officers of the law-enforcement bodies.
20. On 17 September 2000 the Grozny District Prosecutor’s Office opened a criminal investigation into the murders of five men in Starye Atagi under Article 105 § 2 of the Criminal Code (the provision applicable to multiple murders). The investigation was assigned case file no. 18040.
21. On the same day the acting Grozny District prosecutor informed the prosecutor of Chechnya about the events and the action that had been taken by his office in the aftermath of the murders. His note referred to the information collected in Starye Atagi, including the examination of the scenes of the crime and of the bodies and to the cartridges and bullets that had been collected. It concluded by saying, on the basis of the statements of the local residents, that the crime had probably been committed by illegal armed groups .
22. On 17 October 2000 the Grozny District Civil Registration Office issued a death certificate for Salavdi Dzhamilovich Zubayrayev, who had been born in 1935. Death was recorded as having occurred on 17 September 2000 in Starye Atagi.
23. At the end of September 2000 the applicant wrote to the Council of Europe Commissioner for Human Rights, complaining of the murder of his father and other persons in Starye Atagi and of the absence of an investigation. In a reply dated 5 December 2000 the Commissioner for Human Rights expressed his sympathy and promised to raise the issue with the Special Envoy of the Russian President in Chechnya for Rights and Freedoms, Mr Kalamanov, at a meeting which was due to take place the same day.
24. On 17 November 2000 the investigation was adjourned because the killers could not be identified. It does not appear that anyone was granted victim status in the proceedings at that time or that information about the adjournment was communicated to the victims’ relatives.
25. On 5 April 2001 the investigation was resumed. The Chechnya Prosecutor’s Office ordered a number of steps to be taken, in particular eye-witnesses and other witnesses were to be questioned, victim status was to be granted to the relatives of those killed, information concerning the personalities of the deceased was to be collected and forensic and ballistic tests were to be carried out.
26. On 19 May 2001 the investigation was adjourned. It does not appear that any investigative activity took place between November 2001 and October 2004.
27. In September 2004 the present application was communicated to the Russian Government.
28. On 16 October 2004 the investigation was resumed pursuant to an order of the Grozny District Prosecutor. The order contained criticism of the investigation that had been carried out up to that point and referred to a number of basic investigative steps that needed to be taken (see paragraph 49 below).
29. In October 2004 the relatives of the five men who had been killed in Starye Atagi on 17 September 2000 were questioned and granted victim status. According to the Government, they stated that their relatives had been killed in the early hours of 17 September 2000 by unknown armed men wearing masks. They did not have any suspicions as to the identity of the killers. The Government referred to their statements, but did not submit any copies. They also referred to undated statements of other residents of Starye Atagi, who likewise did not possess any information about the identity of the killers.
30. The Government further submitted that in November 2004 a certain Rustam Z. had been charged with participating in an illegal armed group and involvement in the murder of Mr Demilkhanov on the night of 17 September 2000. Later Rustam Z. retracted his statements in this regard, alleging that they had been made under duress. In March 2005 the charges relating in part to his involvement in the murders on 17 September 2000 were dropped. The investigation of the charges against Rustam Z. was at some point joined with the investigation of the five murders, but after the charges against him were dropped, the cases were separated (see paragraphs 51-54 below).
31. The Government added that the investigation into the murders committed in Starye Atagi on 17 September 2000 had been adjourned and reopened on four occasions.
32. In their observations, the Government also stated that the relatives of Salaudi Zubayrayev had not been interviewed or been granted victim status in the proceedings in view of their departure from Russia. In October 2004 the investigation questioned and granted victim status to Mrs. E., Salaudin Zubayrayev’s daughter-in-law. She stated that she had been in Grozny at the relevant time but had no additional information about the circumstances of the crime.
33. The Government added that the investigation had failed to establish the identity of the culprits and no one had been charged with the crime. However, the implication of servicemen or representatives of other State authorities had not been established. The investigation had focused on the main theory that the murders had been committed by members of illegal armed groups in order to intimidate the civilian population and to destabilise the district, especially as one of the persons killed was the son of a police officer from the Ministry of the Interior.
34. Following the Court’s decision on admissibility in September 2006 and a request to produce documents from the investigation file, the Government submitted about 50 pages of documents from the case file, which contained over 300 pages. The documents are summarised below in Part B, and, in addition to the initial documents drawn up on 17 September 2000, contained the prosecutor’s decisions to adjourn and reopen the investigation and papers relating to the charges against Rustam Z. Relying on the information obtained from the Prosecutor General’s Office, the Government observed that the investigation was in progress and that disclosure of the documents would violate Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses. However, they agreed to produce several documents whose “disclosure did not contravene the requirements of Article 161”.
35. The applicant’s relatives stated that on 10 December 2000 three armoured personnel carriers (APCs) and one Ural truck with soldiers had arrived at their family home. The applicant’s two brothers, Magomed and Khasan, had run away through the backyard when they heard the vehicles approaching. The applicant’s mother had remained in the house with her daughters and daughters-in-law.
36. According to the applicant’s mother, servicemen wearing masks had entered the house, asked the women about the whereabouts of the men, and then asked if anyone had complained “to Europe”. They had also asked them about electronic equipment found in the house and whether they had any weapons or money. The applicant also alleged that the military had taken a number of valuables from the house. The neighbours had later told the Zubayrayev family that the hull and registration numbers of the APCs and the Ural truck were covered with mud and that they had not been allowed to get sufficiently close to note them down.
37. The raid on the Zubayrayevs’ house on 10 December 2000 had been reported by NGO Memorial in their monthly monitor of human-rights violations in Chechnya. In February 2001 the applicant had again written to the Council of Europe Human Rights Commissioner, to inform him that pressure was being exerted on his family.
38. Early in the morning of 14 January 2001 the applicant’s family’s house had again been searched by servicemen. After that the applicant’s remaining family had left the house, as they feared for their lives and security and did not trust the Russian authorities any more.
39. The applicant presented his mother’s written account of these events, countersigned by her and her other children who had been living with her at that time.
40. In February 2001 Obyedinennaya Gazeta published an open letter from the residents of Starye Atagi to Mr Aslakhanov, a member of the State Duma. The letter, which was signed by the head of the village council and 150 villagers, complained of several “mopping-up” operations in the village in 2000 – 2001, including on 14 January 2000, when the Zubayrayev family home was raided. The letter further listed 57 inhabitants of the village who had lost their lives since October 1999, among them the applicant’s father and four other men, who had been killed on the night of 17 September 2000 by unknown persons wearing camouflage uniforms and masks and speaking Russian.
41. In March 2001 the applicants’ remaining family left Russia and sought asylum abroad.
42. The Government denied that there was any information to suggest that the members of the applicant’s family had been ill-treated or that their homes had been searched or their possessions confiscated.
43. In December 2006 the Government informed the Court of the progress of the investigation and produced several documents from the case file. Altogether, they produced 34 documents running to 52 pages from the file, which, as can be ascertained from the page numbering, comprised over 300 pages. Below is a summary of the documents concerned.
44. On 17 September 2000 the investigative group of the Grozny District Prosecutor’s Office compiled a report on the scene of the crime. The five-page handwritten document contained a description of each individual site where the killings had been carried out, a brief description of the bodies of the victims and a list of the cartridges and bullets that had been collected at the sites, some of which bore production numbers. In relation to the applicant’s father the report read: “the body of Salaudi Zubayrayev was examined in his house. The body bears two gunshot wounds to the dorsum and two to the head: one to the back of the head and one to the right temple area.”
45. On 17 September 2000 the Grozny District acting prosecutor drew up the following account of the events for the Chechnya Prosecutor:
“At 9.30 a.m. on 17 September 2000 the Grozny District Prosecutor’s Office was informed by the Grozny Temporary District Department of the Interior (VOVD) of the murder of five inhabitants of Starye Atagi. Following this message, at 10 a.m. a group of [investigators of the district prosecutor’s office and the VOVD] set out to the scene of the crime. There, a number of operative and immediate investigative steps were taken, as a result of which it was possible to establish the following.
On the night of 16 to 17 September 2000, at about 2 a.m., a group of persons using a number of vehicles (probably including a grey Volga car without number plates) had burst into the village. The group was composed of about 14-18 persons wearing new camouflage uniforms of a green-yellow colour and armed with automatic weapons, hand-pistols and knives. Between 2 a.m. and 3 a.m. the group murdered five inhabitants of the village; one person was wounded and a Volga car was damaged by gunfire.
Abubakarov Musa, who was born in 1928 in Starye Atagi and was of Chechen ethnic origin and disabled, was taken out of his house at 15 Pochtovaya Street and shot dead in the street, about 200 metres from his home. The body bears gunshot wounds to the head (4) and back (1) and a knife wound to the chest.
Demilkhanov Zaur Gikhaniyevich, who was born on 28.04.1981 in Grozny and was of Chechen ethnic origin and unemployed, was killed in his house at 155 Nagornaya Street, in the presence of his parents. The body bears gunshot wounds to the head (2), back and legs (2).
Elmurzayev Vakha Elmurzayevich, who was born on 21.03.1934 in the village of Zony and was of Chechen ethnic origin and unemployed, was taken out of his house at 150 Nagornaya Street by the assailants and killed in the courtyard of the house at 156 Nagornaya Street. The body bears injuries from blunt instruments to the head, gunshot wounds to the chest and abdomen (6).
Elmurzayev Isa Vakhovich (son of Vakha Elmurzayev), who was born on 15.03.1967 in Starye Atagi and was of Chechen ethnic origin and disabled, was killed in his house at 150 Nagornaya Street. The body bears gunshot wounds to the neck (1) and chest (4).
Zubayrayev Salavdi Khamilyevich, who was born in 1935 in Starye Atagi and was of Chechen ethnic origin, lived in his house at 105 Nagornaya Street. He was taken out of his house by the assailants and killed in Podgornaya Street, about 100 metres away. The body bears gunshot wounds to the back (3) and head (2).
The same armed persons also attacked Moldy [M.], who was at his home at 50 Sheripova Street. He received gunshot wounds to both legs and the abdomen. However, he managed to escape from his assailants and his neighbours immediately took him to hospital in a Volga car, where he received first aid. While [M.] was being driven to the hospital, the vehicle [he was travelling in] was shot at and damaged.
After the assault the criminals left Starye Atagi in an unknown direction.
As the statements of the witnesses show, the criminals used automatic weapons (AK, AKM), hand pistols (PM) and knives. The firearms were equipped with silencers. Attempts from fellow villagers to intervene were cut off by threats and shots fired in the air. Between themselves the criminals spoke Russian, some with a Chechen accent. They did not make any demands of the victims or take any property. They acted in a coordinated way, according to a plan, with remarkable audacity and cynicism. The murders were committed in the presence of relatives and fellow villagers.
The victims had no family, personal or business connections with or dependencies on each other. They did not participate in political or public life. There is no information concerning their possible involvement with illegal armed groups.
During the on-site inspection each of the places where the victims were killed was examined, as were the sites where [Mr M.] was attacked and the Volga car shot at. The investigators took a large number of photographs of the relevant spots and traces of blood and collected a number of cartridges and bullets (5,45 millimetre, 7,62 millimetre – that is to say AKS-74U and AKM accordingly, 9 millimetre – PM).
On 17 September 2000 the Grozny District Prosecutor’s Office opened criminal investigation file no. 18040 under Article 105 part 2 (a) of the Criminal Code. ...
The main theory of the investigators is that the crime was committed by members of illegal armed groups in order to scare the local population and to destabilize the situation in Grozny District, in order to provoke a conflict between the population and the acting federal authorities. The investigators are also looking at other possible explanations.
It should further be noted that the crime has been widely reported and prompted an outcry by a large section of the public. It has given rise to antagonism on the part of the population of Starye Atagi towards the law-enforcement authorities and allowed them to disparage the work of the law-enforcement bodies and the federal authorities in general. The villagers are certain that the crimes were committed by members of illegal armed groups. The investigative team who came to Starye Atagi on 17 September 2000 were criticised by the local residents who said that the federal authorities and law-enforcement bodies were unable to protect them against criminal attacks by illegal armed groups; as an example of this they referred to the events of 17 September 2000.”
46. On 17 November 2000 the investigation was adjourned because the identity of the killers could not be established.
47. On 5 April 2001 the investigation was resumed. The Chechnya Prosecutor’s Office ordered a number of steps to be taken, in particular that eye-witnesses and other witnesses be questioned, victim status be granted to the victims’ relatives, information concerning the personalities of the deceased be collected, and forensic and ballistic expert reports carried out.
48. On 19 May 2001 the investigation was adjourned. It does not appear that this information was conveyed to anyone outside the Grozny District Prosecutor’s Office.
49. On 16 October 2004 the investigation was resumed pursuant to an order of the Grozny District Prosecutor. The order noted that one Moldy M., who had been wounded on 17 September 2000, had not been questioned. The district prosecutor stated that he should be questioned and granted victim status in the proceedings and that a medical expert report should be ordered. Furthermore, the investigating authorities were to collect statements from relatives of the five men who had been killed and to accord them victim status. They were also to question neighbours, police officers and local public officials about the personalities of the victims and the circumstances of the crime. They were instructed to make an official inventory of the real evidence pertaining to the case, notably the bullets and cartridges, and to obtain the results of a ballistic expert’s report, which had apparently been commissioned in October 2000.
50. In November 2004 the Grozny District Prosecutor extended the term of the investigation for one month. He noted that a number of procedural steps had been carried out in the meantime, in particular, Mr M. had been questioned and, he and the relatives of the five persons killed had been granted victim status in the proceedings. Witness statements had been collected from villagers, police officers and local officials in Starye Atagi. A number of expert reports had been commissioned and in some cases the results had already been obtained. However, a number of other investigative actions were still pending and therefore the term of the investigation was extended.
51. On 2 November 2004 a certain Rustam Z. was arrested and charged with participation in an illegal armed group (Article 209 part 2 of the Criminal Code) and murder committed by a group (Article 105 part 2 (j)).
52. On 18 November 2004 the acting deputy to the Chechnya Prosecutor ordered the joinder of the proceedings in criminal investigation file no. 51979 against Rustam Z. and criminal investigation file no. 18040 concerning the murder of five persons in Starye Atagi on 17 September 2000. The decision referred to a statement of 1 November 2004 in which Mr Z. had admitted his involvement in the murders. He stated that since 2002 he had been a member of an illegal armed group, at that time headed by “Emir Mussa Salayev”. In 2000, before becoming a full member of the gang, he had been asked by one of its members to assist in “settling the scores” with the Starye Atagi local police inspector [Mr Demilkhanov]. It was thus established that the investigation concerned the same set of events and the proceedings were joined to case no. 51979.
53. Rustam Z. was questioned again on 11 November 2004 and stated that in the evening of 16 September 2000 he had been asked to keep watch outside the house of the police officer. He had heard shots fired inside the house. After about 30 minutes he saw that other members of the gang had brought an older man to the house and heard further shots being fired. The gang members later told him that they had not found the police inspector at home and had killed his son [Zaur Demilkahnov] in his bed because they had mistaken him for his father. He had later learnt that the gang members had killed several other persons in the village that night.
54. On a later date Mr Z. stated that he had made his statement under duress from the police officers who had arrested him and that he had not taken part in the killing of Zaur Demilkhanov. His relatives testified that Rustam R. had been in Ingushetia from 1999 to 2002, together with the rest of the family. He had not been in Chechnya even for short periods prior to 2002. On 15 March 2005 the murder charges were withdrawn. As a result, on 23 April 2005 the two criminal cases were again severed and the five murders of 17 September 2000 were reassigned to case file no. 18040. In April 2005 Mr Z. was charged with participation in an illegal armed group, armed robbery, the illegal handling of arms and explosives and stealing identity documents.
55. On 1 May 2005 investigation no. 18040 was adjourned. The victims were informed of that decision and of the possibility of an appeal.
56. On 14 November 2006 the investigation was resumed, before being further adjourned on 14 December 2006 and reopened on 20 December 2006. The victims were informed.
VIOLATED_ARTICLES: 13
2
38
VIOLATED_PARAGRAPHS: 2-1