ITEMID: 001-61928
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF NIKITIN v. RUSSIA
IMPORTANCE: 1
CONCLUSION: No violation of P7-4;No violation of Art. 6-1
TEXT: 7. The applicant was born in 1952 and lives in St Petersburg.
8. In February 1995 the applicant, a former naval officer, joined an environmental project conducted by Bellona, a Norwegian non-governmental organisation, to work on a report entitled “The Russian Northern Fleet – Sources of Radioactive Contamination” (“the report”).
9. On 5 October 1995 Bellona’s Murmansk office was searched by the Federal Security Service (ФСБ РФ – “the FSB”). The FSB seized the draft report, interrogated the applicant and instituted criminal proceedings on suspicion of treason, since the draft report allegedly contained information, classified as officially secret, concerning accidents on Russian nuclear submarines.
10. On 20 October 1998 the applicant’s trial on a charge of treason through espionage and a charge of aggravated disclosure of an official secret began before St Petersburg City Court. After four days of hearings, the case was remitted for further investigation on 29 October 1998. The court considered that the indictment was vague, which impaired the applicant’s defence and prevented the court from carrying out an examination on the merits. It also found that the investigation file left open the question whether the report contained any official secrets as such, and that it did not contain a “proper and complete” expert evaluation of possible public sources of the information in question or of the estimated damage. The court ordered the prosecution to conduct an additional expert examination into the possibility that the applicant had obtained the disputed information from public sources and to take other steps to complete the investigation.
11. On 3 November 1998 the prosecution appealed against this decision, claiming that the case was clear enough for determination by a court and that there was no need for further investigation.
12. On 4 February 1999 the order for further investigation was upheld by the Supreme Court of the Russian Federation (“the Supreme Court”).
13. On 23 November 1999 the St Petersburg City Court resumed the applicant’s trial on the same charges.
14. On 29 December 1999 the St Petersburg City Court acquitted the applicant on all the charges, having found that the applicant had been prosecuted on the basis of secret and retroactive decrees.
15. The prosecution appealed.
16. On 17 April 2000 the Supreme Court upheld the acquittal. The court found that the charges were based on secret and retroactive decrees which were incompatible with the Constitution. The acquittal thus became final.
17. On 30 May 2000 the Procurator General filed a request with the Presidium of the Supreme Court to review the case in supervisory proceedings (протест на приговор, вступивший в законную силу). He challenged the judgment on the grounds of wrongful application of the law governing official secrets, the vagueness of the indictment – which had led to procedural prejudice against the applicant – and other defects in the criminal investigation, in particular the lack of an expert report as to whether the disputed information had originated from public sources. He called for a reassessment of the applicable law and of the facts and evidence in the case file, and for the case’s remittal for fresh investigation.
18. On 13 September 2000 the Presidium of the Supreme Court dismissed the Procurator General’s request and upheld the acquittal. While it acknowledged that the investigation had been tainted with flaws and shortcomings, it found that the prosecution could not rely on them in calling for a remittal, as it had been entirely within the prosecution’s control to redress them at an earlier stage in the proceedings. Moreover, the Presidium pointed out that the investigation authority had earlier been required to remedy exactly the same defects as those relied on in the request to quash the acquittal. It observed that on 29 October 1998 the court had expressly instructed the investigating authority, inter alia, to conduct a study of information in the public domain in order to ascertain whether the applicant could have obtained the disputed data from public sources.
19. On 17 July 2002 the Constitutional Court of the Russian Federation examined the applicant’s challenge to the laws which allowed supervisory review of a final acquittal.
20. In its ruling of the same date, the Constitutional Court declared incompatible with the Constitution the legislative provisions permitting the re-examination and quashing of an acquittal on the grounds of a prejudicial or incomplete investigation or court hearing or on the ground of inaccurate assessment of the facts of the case, save in cases where new evidence had emerged or there had been a fundamental defect in the previous proceedings.
21. The Constitutional Court’s judgment stated, inter alia:
“... Article 4 of Protocol No. 7 to the Convention provides that the right not to be tried or punished twice does not prevent the reopening of the case in accordance with the law and criminal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.
It follows ... that, subject to the above requirements, the national legislation may provide for a system by which a case may be reopened and a final judgment be quashed, and may specify where, depending on the case, a procedure for reopening on the grounds of new or newly discovered evidence or a supervisory review should apply.
Any exemption from the general prohibition on resuming proceedings to the detriment of the acquitted or convicted person may be justified only in exceptional circumstances, where a failure to rectify a miscarriage of justice would undermine the very essence of justice and the purpose of a verdict as a judicial act and would upset the required balance between the constitutionally protected values involved, including the rights and legitimate interests of convicted persons and those of the victims of crime. In the absence of any possibility of reversing a final judgment resulting from proceedings tainted by a fundamental defect that was crucial for the outcome of the case, an erroneous judgment of this type would continue to have effect notwithstanding the principle of general fairness ... and the principle of judicial protection of fundamental rights and freedoms.
3.2. Under the [Constitution and the Convention] any possibility provided for at national level of quashing a final judgment and reviewing a criminal case must be subject to strict conditions and criteria clearly defining the grounds for such review, given that the judgment concerned is already binding and determinative of the individual’s guilt and sentence.
However, the grounds for review of final judgments provided for in the Code of Criminal Procedure [of 1960] go beyond these limits. When establishing a procedure for the review of final convictions and, especially, acquittals ... definite grounds should have been formulated to ensure that such a procedure would be implemented with sufficient distinctness, precision and clarity to exclude its arbitrary application by the courts. In failing to do so, [the legislature] misapplied the criteria which derive from [the Constitution] and Article 4 of Protocol No. 7 to the Convention for the quashing of final judgments in criminal cases ...
Furthermore, [the power] of a supervisory instance to remit a case for fresh investigation where it concludes, through its own assessment of evidence, that the previous investigation has been prejudicial or incomplete, is incompatible with the constitutional principles of criminal procedure and with the Constitutional Court’s jurisprudence, in that it gives the prosecution an unfair advantage by providing it with additional opportunities to establish guilt even after the relevant judgment has become operative. It follows that a court of supervisory instance cannot quash a final acquittal only on the ground of its being unfounded ... Accordingly, the prosecutor is not entitled to request the supervisory review of such a judgment on the ground that it is unfounded ...”
22. Section VI, Chapter 30, of the 1960 Code of Criminal Procedure (Уголовно-процессуальный кодекс РСФСР) in force at the material time allowed certain officials to challenge a judgment which had become effective and to have the case reviewed on points of law and procedure. The supervisory review procedure (Articles 371-83 of the Code) is distinct from proceedings in which a case is reviewed in the light of newly established facts (Articles 384-90). However, similar rules apply to both procedures (Article 388).
23. Under the terms of Article 356 of the Code of Criminal Procedure, a judgment takes effect and is enforceable from the date on which the appeal court renders its decision or, if no appeal has been lodged, once the time-limit for appeal has expired.
“The grounds for quashing or varying a judgment [on supervisory review] are the same as [those for setting aside judgments (which have not taken effect) on appeal] ...”
“The grounds for quashing or varying a judgment on appeal are as follows:
(i) prejudicial or incomplete investigation or pre-trial or court examination;
(ii) inconsistency between the facts of the case and the conclusions reached by the court;
(iii) a grave violation of procedural law;
(iv) misapplication of [substantive] law;
(v) discrepancy between the sentence and the seriousness of the offence or the convicted person’s personality.”
“Judgments, decisions and rulings which have become effective may be set aside on account of newly discovered circumstances.
The grounds for reopening a criminal case are as follows:
(i) with regard to a judgment which has become effective, the establishment of false witness testimony or false expert opinion; forgery of evidence, investigation records, court records or other documents; or an indisputably erroneous translation which has entailed the pronouncement of an unfounded or unlawful judgment;
(ii) with regard to a judgment which has become effective, the establishment of criminal abuse of their powers by judges when examining the case;
(iii) with regard to a judgment which has become effective, the establishment of criminal abuse of their powers by investigation officers dealing with the case, where this has entailed the pronouncement of an unfounded or unlawful judgment or a decision to terminate the prosecution;
(iv) other circumstances, unknown to the court at the time when the case was examined, which, alone or combined with other previously established facts, prove a convicted person’s innocence or the commission by him or her of an offence which is more or less serious than that of which he or she was convicted, or which prove the guilt of a person who was acquitted or whose prosecution was terminated.”
24. Article 371 of the Code of Criminal Procedure provided that the power to lodge a request for a supervisory review could be exercised by the Procurator General, the President of the Supreme Court of the Russian Federation or their respective deputies in relation to any judgment other than those of the Presidium of the Supreme Court, and by the presidents of the regional courts in respect of any judgment of a regional or subordinate court. A party to criminal or civil proceedings could solicit the intervention of those officials for a review.
25. Article 373 of the Code of Criminal Procedure set a limitation period of one year during which a request calling for the supervisory review of an acquittal could be brought by an authorised official. The period ran from the date on which the acquittal took effect.
26. Under Articles 374, 378 and 380 of the Code of Criminal Procedure, a request for supervisory review was to be considered by the judicial board (the Presidium) of the competent court. The court could examine the case on the merits and was not bound by the scope and grounds of the request for supervisory review.
27. The Presidium could dismiss or grant the request. If it dismissed the request, the earlier judgment remained in force. If it granted the request, the Presidium could decide to quash the judgment and terminate the criminal proceedings, to remit the case for a new investigation, to order a fresh court examination at any instance, to uphold a first-instance judgment reversed on appeal, or to vary or uphold any of the earlier judgments.
28. Article 380 §§ 2 and 3 provided that the Presidium could, in the same proceedings, reduce a sentence or amend the legal classification of a conviction or sentence to the defendant’s advantage. If it found a sentence or legal classification to be too lenient, it was obliged to remit the case for a new examination.
29. On 1 July 2002 a new Code of Criminal Procedure came into force. Under Article 405, the application of supervisory review is limited to those cases where it does not involve changes that would be detrimental to the convicted person. Acquittals and decisions to discontinue the proceedings may not be the subject of a supervisory review.
30. On 19 January 2000, at the 694th meeting of the Ministers’ Deputies, the Committee of Ministers of the Council of Europe adopted Recommendation No. R (2000) 2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights. The recommendation encouraged the Contracting Parties to examine their national legal systems with a view to ensuring that there existed adequate possibilities to re-examine the case, including the reopening of proceedings, in instances where the Court had found a violation of the Convention.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-82453
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF DZHAVADOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 10
JUDGES: Christos Rozakis
TEXT: 6. The applicant was born in 1959 and lives in Belgorod.
7. On 23 October 2002 the applicant filed an application with the Ministry for the Press, Television and Radio Broadcasting and Mass Communications (hereafter “the Ministry”), for registration of a newspaper entitled Letters to the President (Письма Президенту).
8. By letter of 23 January 2003, the deputy head of the Ministry's Department for Registration and Licensing informed the applicant that, judging by its title, the newspaper could be perceived as an official bulletin published by a competent State authority. As that was likely to mislead potential readers, the applicant was advised to “obtain the approval of the competent authorities”.
9. The applicant replied to the deputy head and to the Minister, insisting that either the newspaper be registered or an official refusal be issued.
10. On 3 July 2003 the applicant challenged the Ministry's failure to act before the Tverskoy District Court of Moscow. He claimed that he had satisfied the legal requirement to be the founder of a newspaper and that the Ministry's procrastination was unlawful.
11. On 9 July 2003 the applicant received the Ministry's official refusal to register the newspaper, based on two grounds. First, it was said that the information in the application was “inconsistent with the real state of affairs” (сведения, не соответствующие действительности) because the newspaper purported to cover a broader range of subjects than its title suggested. Second, the Ministry considered that only the Administration of the President of the Russian Federation could consent to the publication of letters to the President or be a founder of a newspaper with such a title.
12. On 15 July 2003 the applicant amended his claim, seeking to have the Ministry's refusal overturned.
13. On 3 September 2003 the Tverskoy District Court of Moscow upheld the refusal on the following grounds:
“... The court considers it possible to agree with the argument [of the Ministry] that the title of a newspaper denotes its specialisation which [in this case] could be perceived by the readership as an official publication founded by a competent State body ... which prepares the President's direct answers to incoming letters from citizens.
The court considers that the above fact may give rise to incompatibility of the actual specialisation of the publication under the title Letters to the President with the current legislation. In this connection the court concludes that the Ministry's argument as regards the specialisation of the newspaper in question is a sufficient ground to refuse its registration ... under section 13(1)(2) of the Mass Media Act, which does not violate [the applicant's] rights to found a newspaper and to choose its title ...”
14. On 22 December 2003 the Moscow City Court upheld the judgment of the district court, endorsing the above reasoning. The court also held:
“...the [first-instance] court rightly concluded that [the applicant] had failed to comply with the time-limit for bringing court proceedings without a valid excuse. Having received on 23 January 2003 the refusal to register his newspaper, he lodged his claim before a court only on 3 July 2003 ...
The expiry of the three-month time-limit for lodging such claim is an independent reason for rejecting the applicant's claims (Article 256 § 2 of the Code of Civil Procedure).”
15. A newspaper may be founded by an adult who has not been convicted or declared legally incapable (section 7). The editor's office may begin functioning upon registration of a newspaper; an application for registration is to be examined within one month of being lodged (section 8).
16. An application for registration must specify, in particular, the title of the newspaper and an approximate list of subjects and/or specialisation (section 10(2) and (7)).
17. Registration may only be refused on the following grounds: (1) the application is lodged by an individual who cannot be a founder; (2) the information in the application is “inconsistent with the real state of affairs”; (3) the title, range of subjects and/or specialisation represent an abuse of the freedom of mass media as defined in section 4; (4) if an existing newspaper with the same title has been registered earlier (section 13).
18. Section 4 prohibits using the mass media for the commission of criminal offences, the disclosure of State secrets or protected information, for extremist activities, or for the dissemination of pornography or the promotion of violence and cruelty.
19. An individual may bring a complaint within three months of the date when he or she became aware of a violation of his or her rights or freedoms (Article 256 § 1). The court must examine the reasons for any failure to comply with the three-month period and may reject the complaint on that ground (Article 256 § 2).
20. If the complaint is rejected owing to failure to comply with the time-limit for lodging the complaint before a court without a valid reason, the court's reasoning must be limited to the indication of the circumstances confirming the above (Article 198 § 4).
VIOLATED_ARTICLES: 10


ITEMID: 001-112125
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: RUDEVITS v. LATVIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
TEXT: 1. The applicant, Mr Felikss Rudevits, is a Latvian national, who was born in 1957 and who died on 30 November 2006. His long-term partner, Ms Diāna Kleine, expressed her wish to pursue the application. The applicant and Ms Kleine are represented before the Court by Ms I. Eglīte, a lawyer practising in Rīga. The Latvian Government (“the Government”) were represented by their Agent, Mrs I. Reine.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant was suffering from a terminal illness – polycystic kidney and liver disease. It appears that it was first diagnosed in 1985. Up to 1997 he underwent treatment every year in Rīga, Latvia. From then until 2001 he received treatment in St. Petersburg, Russia. Upon his return to Latvia in 2002 the applicant was admitted to the Gaiļezers civil hospital in Rīga on at least two occasions for a total duration of 27 days in 2002 and on at least seven occasions for a total duration of 31 days in 2003. It appears that he also visited that hospital three times a week for haemodialysis (artificial kidney) sessions.
4. At least since 17 January 2003 the applicant had been recognised as being Category 1 disabled (the most severe degree of disability).
5. According to the Government, on 4 June 2004 the applicant was convicted of acquisition of narcotics and sentenced to five years’ imprisonment, which was suspended due to his state of health.
6. On 25 November 2004 the applicant was arrested on the street on suspicion of possessing drugs. A preventive measure – police supervision – was imposed on him. Following forensic examinations, it was established that the applicant had been in possession of thirty packages of cannabis, in total approximately ten grams. Criminal proceedings were opened, charges were brought against the applicant and the case was sent to the Rīga Regional Court (Rīgas apgabaltiesa).
7. On 11 March 2005 the Rīga Regional Court requested the Prisons Administration (Ieslodzījuma vietu pārvalde) to state whether it could ensure appropriate medical treatment for the applicant in custody. On 14 March 2005 the Prisons Administration replied that the applicant was suffering from a severe and terminal illness and that his prospects were poor. They contended that they could not provide the necessary medical care to the applicant, or ensure his regular attendance (three times per week) at a specialised hospital.
8. On 14 March 2005 the Rīga Regional Court requested the State Centre for Forensic Medical Expertise (Valsts tiesu medicīnas ekspertīzes centrs) to evaluate the applicant’s state of health and determine if he was fit to serve a custodial sentence.
9. On 15 April 2005 forensic experts drew up report no. 17-K, which concluded that the applicant was suffering from a severe and terminal illness – polycystic kidney and liver disease, as well as from chronic kidney failure, secondary hypertension, secondary anaemia, coronary heart disease, a form of stenocardia, and an old myocardial infarction. It stated that in order to survive he needed three five-hour haemodialysis sessions per week in a hospital, but that permanent inpatient treatment was not necessary. The forensic experts reached the conclusion that the applicant was fit to serve a custodial sentence upon the condition that his transfers to a specialised centre for haemodialysis were ensured and that he received medicine prescribed by a nephrologist and a cardiologist.
10. On 2 June 2005 the Rīga Regional Court convicted the applicant of the repeated acquisition of narcotics. The applicant pleaded guilty. The court took into consideration forensic report no. 17-K and stated its agreement with it; it had “critically evaluated” the Prisons Administration’s contention that they could not provide the necessary medical care. It made no further comments in this regard. The court sentenced the applicant to five years’ imprisonment. Taking into account that the applicant had breached a previous suspended five-year custodial sentence, the court joined both sentences and determined a total custodial sentence of six years. The custodial sentence was suspended until his conviction took effect; a preventive measure of police supervision was imposed until then.
11. The applicant appealed against the judgment. He requested that his sentence be changed to a more lenient one. He argued that, taking into account his state of health and the fact that it was not possible to provide him with the necessary medical care in prison, a custodial sentence would amount to a death penalty. He noted that the first-instance court had rejected the Prisons Administration’s contention without any reasoning. He also pointed out that the outcome of the case would affect his partner and their minor son. On 4 July 2005 the Criminal Chamber of the Supreme Court (Augstākās tiesas Krimināllietu tiesu palāta) allowed the applicant’s appeal and scheduled a hearing for 14 February 2006.
12. On 29 September 2005, while the applicant was still at liberty, the appellate court, upon an application from the police department, decided to change the preventive measure of police supervision to a less restrictive one. It was noted that supervision of the applicant had become difficult because of his state of health. The applicant was instead required not to change his place of residence and he was thus no longer subject to police supervision.
13. On 14 February 2006 the Criminal Chamber of the Supreme Court upheld the judgment of the first-instance court. The court considered that, regardless of the Prisons Administration’s contention, the applicant had to receive a custodial sentence under the penal law. It was noted that the Prisons Administration had an obligation to organise the execution of custodial sentences.
14. On 2 May 2006 the Criminal Department of the Senate of the Supreme Court (Augstākās tiesas Senāta Krimināllietu departaments) dismissed the applicant’s appeal on points of law; the applicant’s conviction took effect. The Senate established that the sentence imposed on the applicant was the minimum sentence provided for in law for the type of offence; a more lenient sentence (than that provided for in law) was impossible since the applicant had reoffended. The Senate noted that a court could release a prisoner under section 59, paragraph 6 of the Criminal Law if he or she had fallen ill with a severe and incurable illness after the pronouncement of the judgment. The applicant, however, had been suffering from an incurable illness since long before his conviction. Moreover, his illness had not prevented him from committing an especially serious offence. The Senate pointed out that under section 78 of the Sentence Enforcement Code emergency medical care was available to detainees, if necessary in a civil setting. The Prisons Administration was under an obligation to organise the execution of custodial sentences; if such execution became impossible, section 640 of the Law of Criminal Procedure provided for the possibility of release on health grounds. This could only be decided by a judge overseeing matters of execution of custodial sentences, after the conviction had taken effect.
15. After the applicant’s conviction took effect, on 14 June 2006 he was detained and placed in a temporary investigative unit. On the next day he was transferred to a prison.
16. On 15 June 2006 the applicant was transferred to Central Prison in Rīga and was placed in the hospital located therein; he remained there for nineteen days.
17. According to the Government, the applicant received particular attention from the prison hospital’s personnel. In all, he was taken for seven haemodialysis sessions in the Gaiļezers hospital.
18. On 4 July 2006 the applicant was transferred to Valmiera Prison, where he was detained for almost one month. According to the Government, the applicant was placed in the inpatient treatment unit and prison doctors attended to and examined him almost every day, on some days more than once, because of high arterial blood pressure. For the same reason, an emergency ambulance was often called. The applicant received fourteen haemodialysis sessions in a civil hospital in Valmiera.
19. It appears that on 31 July 2006 it was recorded that his health had deteriorated and he was placed in a civil hospital in Valmiera, where he remained until 4 August 2006.
20. On 4 August 2006 he was transferred to the prison hospital in Rīga for medical treatment; he remained there for twenty-five days. The applicant was taken for nine haemodialysis sessions in the Gaiļezers hospital during that period.
21. On 28 August 2006 a medical commission (consisting of doctors from the Prisons Administration, the prison hospital and Valmiera Prison) examined the applicant. They established that the applicant was suffering from the same illnesses as mentioned in forensic report no. 17-K, but that his state of health had deteriorated. The applicant’s body had reacted badly to haemodialysis: his arterial blood pressure had been extremely high after the sessions and it had remained high on the days when he was not on haemodialysis; this had caused complications for the applicant’s heart (stenocardia seizures), for which qualified medical assistance could not be provided in prison.
22. On the basis of the medical commission’s report, the administration of Valmiera Prison applied to the Valmiera District Court (Valmieras rajona tiesa) for permission to release the applicant on account of his state of health.
23. On 29 August 2006 the National Human Rights Office (Valsts cilvēktiesību birojs), following a complaint by the applicant, issued an opinion, which was not binding on the domestic authorities, inviting the Valmiera District Court to release the applicant on health grounds. It was noted that the prison authorities were not in a position to provide the requisite medical assistance to detainees because of a lack of financial resources. Only 6 % of the necessary financial resources had been allocated in 2005 for medical assistance in prisons. They noted that these budget cuts had meant in practice that the scope of primary and secondary medical care was significantly reduced and that preventive care (screening for TB, STD and HIV/AIDS) was largely limited. Therefore, the Prisons Administration’s contention that they could not provide the necessary medical care to the applicant held true. It also had to be taken into account that approximately seven thousand prisoners were being held in penal institutions and that every one of them was entitled to an equal amount of medical care. Finally, in support of their argument that the prison authorities were not in a position to ensure adequate medical assistance, they referred to the Court’s ruling in the case of Farbtuhs v. Latvia (no. 4672/02, 2 December 2004).
24. On 6 September 2006 the Valmiera District Court examined the application for release. It also had before it the opinion of the National Human Rights Office. Following a hearing in the presence of the applicant’s representative, the court released the applicant from the further serving of his custodial sentence on the grounds of section 59, paragraph 6 of the Criminal Law and section 640, paragraph 4 of the Law of Criminal Procedure. The applicant was released on the same date.
25. Following his release, the applicant’s state of health deteriorated.
26. In September 2006 an ambulance was called to the applicant’s aid on thirty-one occasions, on some days up to three times.
27. In October 2006 an ambulance was called to his aid on nine occasions. The applicant was admitted to hospital, where he remained from 4 to 11 October 2006; he underwent his ordinary haemodialysis sessions, as well as some additional ones.
28. The applicant was again hospitalised on 14 October 2006, and he underwent urgent haemodialysis. Afterwards the applicant left the hospital.
29. In November an ambulance was called to his aid on sixteen occasions until the last call was made on 29 November 2006. He had apparently fallen ill, collapsed and lost consciousness. The applicant was taken to hospital in a critical condition, in a deep coma (koma II-III). Doctors discovered that he had a brain haematoma (smadzeņu hematoma) and diffuse cerebral oedema (difūza smadzeņu tūska). The applicant died on 30 November 2006; haemorrhagic stroke (hemorāģisks insults) and high arterial blood pressure (arteriāla hipertensija) were registered as the cause of death.
30. According to section 59, paragraph 6 of the Criminal Law (Krimināllikums), in force since 1 April 1999, if a convicted person has fallen ill with a severe and incurable illness after the pronouncement of a judgment, a court may release that person from serving the remainder of the sentence.
31. According to section 116 of the Sentence Enforcement Code (Sodu izpildes kodekss), if a convicted person has fallen ill with a severe and incurable illness owing to which he or she is unable to serve the remainder of his or her sentence, the relevant penal institution has to order a medical examination and, on the basis of the results, make an application for release to the appropriate court.
32. The relevant part of section 640, paragraph 4 of the Law of Criminal Procedure (Kriminālprocesa likums), in force since 1 October 2005, provides that a judge may release a convicted person from serving the remainder of his or her sentence if that person has fallen ill while serving the sentence, taking into account the personality of the convicted person, the nature of the crime, and other circumstances. Before the entry into force of the Law of Criminal Procedure, the relevant provision was contained in section 364 of the Code of Criminal Procedure (Kriminālprocesa kodekss).


ITEMID: 001-120054
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF IVAN STOYANOV VASILEV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing)
JUDGES: David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1959 and lives in Bourgas.
6. On 5 June 2003 the applicant, who was serving as a police officer in Bourgas, filed a request for early retirement. According to him, he did so against his will under threat of dismissal for disciplinary reasons. He learned of this threat from colleagues, who had heard it from their superior. The pretext for the dismissal was said to be a disciplinary penalty which had been imposed on the applicant on 30 May 2003 for having allegedly failed to act with the requisite diligence when handling an incident involving a helicopter.
7. Following the applicant’s request for early retirement, and pursuant to section 253(1)(2) of the Ministry of Internal Affairs Act (“the 1997 Act”: see paragraph 15 below), the Minister of Internal Affairs decided to terminate the applicant’s employment. The order for termination was dated 13 June 2003.
8. The order was served on the applicant on 22 July 2003. On receipt of the order the applicant explicitly stated that he had filed his request for early retirement against his will and under threat of a disciplinary dismissal.
9. Under section 258 of the 1997 Act in conjunction with section 36(1) of the Administrative Procedure Act 1979 (in force until 1 March 2007), the applicant had the right to seek judicial review of the order for termination of his employment by the Supreme Administrative Court. He exercised that right on 4 August 2003, alleging that there had been procedural defects in the decision to terminate his employment and that there had been no valid request for early retirement (a key condition for termination of employment), as he had filed his request under duress. He sought to rely on the testimony of four witnesses who, he maintained, would give evidence that he had not intended to retire and had only filed his request for early retirement because of the threat of dismissal.
10. On 16 December 2003, during the first hearing in the case before a three-member panel of the Supreme Administrative Court, the applicant’s lawyer reiterated the request to call the four witnesses. The Minister of Internal Affairs’ counsel objected, arguing that the applicant could simply have withdrawn his request for early retirement. The prosecutor, who, as of right, participated in the appeal, considered that the witnesses should be heard in order to allow the applicant to prove his claim. Nevertheless, the Supreme Administrative Court refused the applicant’s request to call the witnesses without giving reasons. The minutes of the hearing merely stated that the court had decided not to grant the request.
11. In a judgment of 23 January 2004 the three-member panel quashed the termination order, finding that, in issuing the order while the applicant was on sick leave, the Minister had breached section 256(1) of the 1997 Act (see paragraph 15 below).
12. The Minister of Internal Affairs filed a cassation appeal against the decision of the three-member panel. In his written pleadings in reply the applicant’s lawyer again reiterated his request to have the witnesses examined.
13. In a final judgment of 25 October 2004 a five-member panel of the Supreme Administrative Court quashed the earlier judgment of the threemember panel and upheld the order for termination of the applicant’s employment, finding that, although the order had been signed on 13 June 2003 (when he was on sick leave), it had been served on him on 22 July 2003 (when he was back at work). Therefore, there had been no breach of section 256(1) of the 1997 Act.
14. Neither the three-member nor five-member panel of Supreme Administrative Court judgments considered the applicant’s allegation that he had filed his request for early retirement under duress or gave reasons for the decision not to call the applicant’s witnesses.
15. Section 253(1)(2) of the 1997 Act, in force until the end of April 2006, provided that the employment of officers in the Ministry of Internal Affairs could be terminated by order of the Minister in cases where they met all the requirements for receiving an old-age pension and upon their request for early retirement. The order for termination was amenable to judicial review by the Supreme Administrative Court (section 258 of the 1997 Act in conjunction with section 36(1) of the Administrative Procedure Act 1979, in force until 1 March 2007). Section 256(1) of the 1997 Act provided that the employment of officers could not be terminated whilst on leave except in accordance with the provisions of section 253 of the Act.
16. Section 11(1) of the Administrative Procedure Act 1979 provided that an administrative decision could only be issued after the administrative authority considered any explanations, representations or objections made by the interested party.
17. At the material time, proceedings before the Supreme Administrative Court were regulated by the Supreme Administrative Court Act 1997. Section 38 of the Act stated that in cassation proceedings (which included appeals from three-member panels to five-member panels of the Supreme Administrative Court) only documentary evidence was admissible. Section 40(1) provided that, in such proceedings, the Supreme Administrative Court could uphold, quash (wholly or partly) or vary the judgment appealed against. Section 40(2) provided that, if the Supreme Administrative Court quashed the judgment for serious breaches of the rules of procedure, it had to remit the case for reconsideration by a differently constituted panel. In other cases, the case was to be decided on the merits.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-86943
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF ELEZI v. GERMANY
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1;Remainder inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych
TEXT: 6. The applicant was born in 1965 and lives in Berlin.
7. On 31 August 1999 the applicant was arrested and placed in pre-trial detention on suspicion of having participated in smuggling Yugoslavian nationals into Germany.
8. In the first part of its bill of indictment dated 11 May 2000 (running to a total of 641 pages), the Berlin Public Prosecutor’s Office set out the charges (Anklagesatz, compare Article 200 § 1, first sentence, of the Code of Criminal Procedure in paragraph 27 below) against the applicant and five co-defendants, including his sister (pp. 1-81). It accused the defendants of numerous counts of human trafficking, committed between 1997 and 1999 in exchange for money and as members of a gang. In addition to that, the applicant and his sister were charged with planning a robbery.
9. In the part of the indictment setting out the essential results of the investigations (wesentliches Ergebnis der Ermittlungen, compare Article 200 § 2, first sentence, of the Code of Criminal Procedure in paragraph 28 below), the prosecution set out in detail the exact course of events for each charge of human trafficking and summarised the testimonies of the witnesses and the contents of the intercepted telecommunications which were to prove the charges (pp. 253-636 of the indictment). It took the view, inter alia, that the applicant had concluded a fictitious contract of employment with his sister in order to pretend to have a legal income to support his family. Moreover, it stated that it would have to be taken into consideration as an aggravating factor when sentencing the applicant that he had involved his young children in his criminal activities.
10. On 30 October 2000 the Berlin Regional Court opened the trial against the applicant and four co-defendants, including his sister. The court, sitting as a grand criminal division (große Strafkammer), was composed of three professional judges and two lay judges. One substitute professional judge and two substitute lay judges also attended the hearings. The prosecution read out the charges against the applicant and his co-defendants at this hearing (see Article 243 § 3 of the Code of Criminal Procedure in paragraph 33 below).
11. On 4 December 2000 the Regional Court, following her confession, separated the proceedings against the applicant’s sister from those against the applicant. The hearings in both sets of proceedings continued to be conducted by the same professional and lay judges.
12. On 5 February 2001, in the course of the separated proceedings against the applicant’s sister, the lay judges and their substitutes were informed of the essential results of the prosecution’s investigations against all (six) defendants by being given a copy of this part of the indictment which they were to read outside the main hearing. The professional judges of the Regional Court had considered it necessary to inform the lay judges of the contents of the essential results of the investigations as the applicant’s sister had stated that she generally confessed to the offences described therein, including their manner of execution, without, however, being willing to make any further, more detailed statement. The Regional Court subsequently convicted the applicant’s sister according to the confession she had made of numerous offences of human trafficking in exchange for money and as a member of a gang.
13. On 8 February 2001 the Regional Court informed the applicant in the course of his hearing (the fifteenth hearing before that court in his case) that the lay judges had been given copies of the part of the bill of indictment containing the essential results of the investigations in the proceedings against his sister. The applicant thereupon lodged a motion for bias against the two lay judges and their two substitutes. He argued that the lay judges could no longer follow the trial without prejudice after having taken note of the entire pre-assessment of the evidence by the prosecution. Pursuant to Article 126 § 3 of the Directives for Criminal Proceedings and Proceedings concerning Regulatory Offences (see paragraph 32 below) it was expressly prohibited to disclose the essential results of the investigations to lay judges.
14. On 19 February 2001 the four lay judges thereupon made a separate formal declaration in writing in identical terms. They stated that in the proceedings against the applicant’s sister, the latter had confessed that the accusations against her as set out in the prosecution’s essential results of the investigations were well-founded. The applicant’s sister, represented by counsel, had agreed that the lay judges were informed of the contents of these results by being provided with a copy of this part of the indictment, which they had read.
15. The lay judges further explained that prior to being given a copy of this document, the president of the chamber had informed them that, as a rule, this part of the indictment was not disclosed to lay judges as it contained the prosecution’s view at the end of the investigation proceedings and was not to be confused with the taking of evidence in the main hearing. Moreover, the president had pointed out to them that the proceedings against the applicant and those against his sister had to be assessed separately. They were aware of this, able to distinguish between the taking of evidence in both sets of proceedings and knew that the essential results of the investigations, of which they had taken note in the proceedings against the applicant’s sister, were not relevant for the taking of evidence in the proceedings at issue. Consequently, they were not biased against the applicant. They further stated that the submissions in writing were their personal declarations.
16. On 19 February 2001 the three professional judges of the Regional Court dismissed the applicant’s motion for bias as ill-founded. They argued that, assessing the case in a reasonable manner, there were no grounds to doubt the lay judges’ impartiality (compare Articles 24 § 2 and 31 of the Code of Criminal Procedure in paragraph 30 below). Having regard to the diverging views taken by the criminal courts and by legal writers on the question as to whether lay judges could be provided with the essential results of the investigations (see paragraph 35 below), they took the view that Article 249 § 2 of the Code of Criminal Procedure (see paragraph 34 below) presupposed that lay judges took note of the contents of the case file. As the lay judges had explained in their declarations made following the applicant’s complaints of bias, they were aware, due to the explanations given by the professional judges, that the copy of the part of the bill of indictment containing the essential results of the investigations expressed the view taken by the prosecution. The lay judges understood that this document was not to be confused with the results of the main hearing, on which alone the judgment should later be based. Therefore, the defendant had no reason to fear that the lay judges could consider their reading of the document in question part of the proceedings against him.
17. On 26 February 2001 the applicant lodged a complaint of bias against the three professional judges. He argued that they had failed to take account of his fears that the lay judges were no longer impartial and that the presiding judge had formulated the written declarations made by the lay judges. The court dismissed this complaint as inadmissible on the same day, arguing that it was in substance an appeal against the decision of 19 February 2001 against which however no appeal lay to the Regional Court.
18. In a total of forty-two hearings, the Regional Court read out numerous minutes of tape recordings of intercepted telecommunications, which had been made in Albanian and translated into German, and heard many witnesses, some of whom had been named by the applicant, as well as two experts on the question of his mental condition.
19. On 8 October 2001 the Berlin Regional Court, while acquitting him of having planned a robbery, convicted the applicant, inter alia, of human trafficking, acting on a commercial basis and as a member of a gang, and sentenced him to four years and six months’ imprisonment. It found that the applicant had been party to numerous offences of human trafficking by storing and handing over passports belonging to the persons smuggled into Germany by other gang members. It based its findings on the submissions of the applicant, who had admitted having stored and handed over passports in cooperation with his sister. Moreover, the court considered the testimony of a police officer who had reported on the results of the interception of the telephone conversations made from the applicant’s phone and that of the café he ran with his sister. Furthermore, a witness who had been smuggled into Germany had testified that he had picked up his passport at the applicant’s café. When searching his home, the police had found 450 Yugoslavian passports. In fixing the sentence, the Regional Court considered as a mitigating factor that the applicant had acted also with the intention of helping his fellow countrymen who had become refugees following the ethnic persecution of residents of Albanian origin in Kosovo.
20. The applicant was released from prison the same day.
21. On 29 January 2002 the applicant lodged an appeal on points of law. He claimed that the lay judges adjudicating on his case had been biased. He submitted that Article 249 § 2 of the Code of Criminal Procedure only allowed documents serving as evidence to be brought to the notice of lay judges. However, the essential results of the investigations were not such documents within the meaning of that Article. Pursuant to Article 126 § 3 of the Directives for Criminal Proceedings and Proceedings concerning Regulatory Offences, it was expressly prohibited to allow lay judges to take note of this part of the indictment. The fact that it was impossible for the lay judges to distinguish between the proceedings against the applicant and those against his sister was illustrated by the fact that even in the judgment drafted by the professional judges the two separate proceedings had been confused (by referring to the wrong person as being the defendant).
22. Moreover, the applicant claimed that the Regional Court had not fulfilled its duty to investigate the matter. In particular, it had not played the recorded telephone conversations in the main hearing and had merely questioned a police officer on their contents instead. In addition, the Regional Court had failed to take into consideration relevant submissions of an expert on the cultural background and situation in Kosovo.
23. On 26 November 2002 the Federal Court of Justice, without giving further reasons, dismissed the applicant’s appeal on points of law as ill-founded.
24. On 6 January 2003 the applicant lodged a complaint with the Federal Constitutional Court. Referring to his submissions before the Federal Court of Justice, he claimed that his trial before the Berlin Regional Court had been unfair and that his right to liberty as guaranteed by the Basic Law had been infringed.
25. On 13 February 2003 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint.
26. Following an order issued by the Public Prosecutor’s Office, the applicant served the remainder of his prison sentence from 31 October 2003. In December 2004 he was again released from prison on probation, the remaining part of his sentence having been suspended.
27. Article 200 of the Code of Criminal Procedure regulates the contents of the bill of indictment. Pursuant to Article 200 § 1, first sentence, the bill of indictment shall indicate the accused, the criminal offence he is charged with, the time and place of its commission, its statutory elements and the applicable criminal provisions (the charges). Moreover, the evidence, the court before which the main hearing shall be held and the defence counsel shall be indicated (Article 200 § 1, second sentence).
28. According to Article 200 § 2, first sentence, of the Code of Criminal Procedure, the essential results of the investigations shall also be presented in the bill of indictment.
29. The Regional Courts, when sitting as a grand criminal division, are composed of three professional judges, including the president, and two lay judges (Article 76 § 1 of the Courts Organisations Act – Gerichtsverfassungsgesetz). Pursuant to Article 30 § 1 of the Courts Organisation Act lay judges exercise full judicial function during the main hearing and have the same voting rights as professional judges in so far as there are no exceptions provided for by law.
30. Article 24 § 2 of the Code of Criminal Procedure provides that a judge may be challenged for fear of bias if there is reason to doubt his impartiality. The provision applies, mutatis mutandis, to lay judges (Article 31 § 1 of the Code of Criminal Procedure).
31. The Directives for Criminal Proceedings and Proceedings Concerning Regulatory Offences (Richtlinien für das Strafverfahren und das Bußgeldverfahren – RiStBV) set out recommendations for the prosecution authorities concerning the conduct, in particular, of criminal proceedings. These Directives are not statutory provisions, but administrative guidelines agreed upon by the Ministers of Justice of all Länder.
32. Article 126 § 3 of these Directives provides that the bill of indictment may not be disclosed to the lay judges. However, notably in proceedings concerning extensive or complex facts, they may be provided with a copy of the charges during the main hearing after these have been read out in court.
33. Article 243 of the Code of Criminal Procedure regulates the course of the trial. After the presiding judge has ascertained that the defendant and his counsel as well as witnesses and experts summoned are present and has questioned the defendant on his personal situation (§§ 1 and 2), the Public Prosecutor shall read out the charges (§ 3).
34. According to Article 249 § 1 of the Code of Criminal Procedure, title deeds and other documents serving as evidence shall be read out at the main hearing. Article 249 § 2 of the Code of Criminal Procedure provides that the reading out may be dispensed with if the professional and lay judges have taken note of the wording of the title deed or document and if the other participants had an opportunity to do so (so-called self-reading procedure – Selbstleseverfahren).
35. In its judgment of 26 March 1997 (no. 3 StR 421/96, Collection of the Decisions of the Federal Court of Justice (Criminal Division) (BGHSt), vol. 43, pp. 36 et seq., 38-39), the Federal Court of Justice reiterated:
“Access to case files for lay judges – just as for associate professional judges – is not regulated by law. It appears that until now the courts only dealt with the specific case of providing a report by the Public Prosecutor’s Office on the essential results of the investigations to lay judges, which they considered as unlawful. The Supreme Court of the German Reich, referring to the legislator’s will as apparent from the law’s drafting history, specified in this respect that providing [the report to lay judges] contravened the principles of oral proceedings and immediacy. Lay judges risked mixing up their impressions from that report with those from the main hearing whereas professional judges, as a rule, were able to distinguish between the two sources of information due to their training and professional experience (see Collection of the Decisions of the Supreme Court of the German Reich (RGSt), vol. 69, pp. 120, 124). The Federal Court of Justice has until now shared this legal opinion (BGHSt, vol. 5, pp. 261 et seq.; ... BGHSt, vol. 13, pp. 73 et seq. ...; Juristische Rundschau (JR), 1987, p. 389). However, the First Senate, in an obiter dictum, raised doubts as to whether it would further follow these precedents, because different treatment for professional and lay judges was not provided for by law and no convincing reasons could be given for it. Lay judges, who were called upon to decide on all difficult factual and legal issues together and of equal rank with the professional judges, could well be believed to be capable of understanding the sense and meaning of the bill of indictment (Federal Court of Justice, judgment of 23 February 1960, no. 1 StR 648/59).
On the contrary, the majority of legal writers today consider granting lay judges access to the case files to be lawful ...
The Senate does not have to decide in the present case whether the existing practice of the Federal Court of Justice on providing the essential results of the investigations to lay judges can be upheld or whether the doubts expressed by the First Senate and the dissenting opinion of legal writers have to be preferred, what it indeed tends to do. In any event, it considers providing minutes of tape-recordings as a means to facilitate the better understanding of the taking of evidence about intercepted telecommunications in the main hearing to be lawful. It may adjudicate on this issue ... because providing such documents is vitally different from taking note of the essential results of the investigations, which essentially involves the evaluation of the suspicion of a criminal act on the part of the Public Prosecutor’s Office.”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1