ITEMID: 001-60555
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF GOKTAN v. FRANCE
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected (non-exhaustion);No violation of P7-4;No violation of Art. 6-1
JUDGES: Gaukur Jörundsson
TEXT: 9. The applicant was born in 1953 and currently lives in Turkey.
10. He entered France in 1974. At the material time, he worked for a business in Strasbourg.
11. On 15 March 1991 he and another person, M. B., were arrested by officers from the Strasbourg Regional Police Department (“the SRPJ”) and customs officers on the verge of concluding a drugs deal with a couple, who managed to make their getaway.
12. The applicant consistently protested his innocence, saying that he had been the victim of a put-up job by customs officers. He explained that he had agreed to act as an “informer”, and in that capacity had cooperated with J.-F. R. of the SRPJ and J.-P. C., a customs inspector and the person allegedly behind his arrest. As for the couple who had “escaped” arrest by the police, they were in fact both customs officers, known as “Maud” and “Serge”.
13. On 18 March 1991 the applicant was charged with drug trafficking and detained. On 3 June 1991 he was brought before the Strasbourg Criminal Court, which on 25 June 1991 sentenced him and M.B. to the following penalties: (a) five years' imprisonment for the criminal offences of importing, purchasing, possessing and transporting drugs, attempting to supply drugs, and importing, possessing and dealing in drugs without a licence; (b) an order permanently excluding them from French territory; and (c) an order requiring them to pay 1,070,000 French francs (FRF) in lieu of confiscation and a customs fine of FRF 400,000 that was imposed jointly and severally for the customs offence of illegally importing goods.
14. The Strasbourg Criminal Court also made an order under Article 382 of the Customs Code in the same judgment for the defendants' imprisonment if the sums were not paid.
15. On 27 June 1991 the public prosecutor sought an order for two years' imprisonment in default, as the customs fine had not been paid.
16. On 5 November 1991 the Criminal Appeals Division of the Colmar Court of Appeal upheld the Criminal Court's judgment in its entirety, as regards the issues of both criminal law and customs law.
17. On 6 November 1991 the applicant decided to appeal to the Court of Cassation; however, he later withdrew his appeal and the case was struck out of the Court of Cassation's list on 3 February 1992.
18. On 4 September 1994 the applicant completed his prison sentence. However, he remained in custody pursuant to the order requiring him to serve two years' imprisonment in default of payment of the customs fine of FRF 1,470,000. He made an urgent application to the President of the Mulhouse tribunal de grande instance, arguing that the order for his imprisonment in default was defective, as the Customs Office had failed to serve him with a demand for payment. The urgent-applications judge dismissed that application in an order of 27 September 1994. In a judgment of 28 November 1994 the Colmar Court of Appeal upheld that order for the following reasons:
“Under Article 388 of the Customs Code the court may make an express order for a person who has been convicted of a [customs] offence or offence relating to indirect taxation to remain in custody, even if an ordinary appeal or appeal on points of law has been lodged, until he or she has paid the fiscal penalties imposed on him or her.
The courts have consistently held that customs law is a special branch of law and an exception to the general law.
In the present case, the express reference in the Customs Code to the Code of Criminal Procedure relates only to the length of the imprisonment in default.
Consequently, since the Criminal Court made an express order – upheld by the Court of Appeal – under Article 388 of the Customs Code for enforcement of the order for imprisonment on the ground of anticipatory default, the provisions of Articles 749 et seq. of the Code of Criminal Procedure giving the President of the tribunal de grande instance jurisdiction to hear urgent applications are inapplicable.”
19. On 26 October 1994 the Court of Cassation ruled that the applicant's appeal on points of law against that decision had lapsed, as he had not lodged written pleadings in support of his appeal within the statutory time-limit.
20. On 14 March 1996 the applicant made an application for an order for the prison sentence and the term of imprisonment in default to run concurrently, arguing that he was serving two prison sentences for the same offence.
21. He alleged a violation of Article 4 of Protocol No. 7 to the Convention, which sets out the non bis in idem rule, and of Article 6 of the Convention. He relied in particular on the Court's judgment in Jamil v. France (judgment of 8 June 1995, Series A no. 317-B), in which imprisonment in default was found to constitute a “penalty” for the purposes of the Convention.
22. In a judgment of 21 May 1996 the Colmar Court of Appeal dismissed the applicant's application on the grounds that, firstly, “the European Court of Human Rights' judgments are declaratory and therefore not binding on the trial court, which is only required to apply the European Convention on Human Rights”; and, secondly, “imprisonment in default possesses the legal characteristics not of a penalty, but of a means of enforcement attached to the financial penalties whose recovery they are intended to secure”. The Court of Appeal concluded from that that Article 5 of the former Criminal Code, which required sentences to run concurrently, had not been infringed by the trial court and could not enable a prison sentence and term of imprisonment in default to be served concurrently.
23. On 22 May 1996 the applicant appealed to the Court of Cassation against that judgment. In a judgment of 16 September 1997 the Court of Cassation dismissed the appeal for the following reasons:
“The appellant cannot validly argue that, by sitting in private in accordance with Article 711 of the Code of Criminal Procedure, the Court of Appeal infringed Article 6 of the European Convention on Human Rights ...
The requirement for a public hearing laid down by that provision applies only to proceedings for 'the determination of a criminal charge' and cannot therefore be relied on with respect to proceedings relating, as in the instance case, to an application for a ruling that sentences be served concurrently ...
The impugned judgment and procedural documents show that the appellant, Ali Göktan, was found guilty of an offence under the drug-trafficking and customs-offences legislation and, inter alia, sentenced to five years' imprisonment and a customs fine. After being ordered to serve two years' imprisonment in default of payment, he made an application for a ruling that that term should run concurrently with the prison sentence.
In dismissing that application, the Court of Appeal found, in particular, that imprisonment in default possesses the legal characteristics not of a penalty, but of a means of enforcement attached to the financial penalties whose recovery they are intended to secure.
In these circumstances, the Court of Appeal has justified its decision and the alleged grievance is without foundation ...”
24. The applicant, who has now completed all the sentences he was required to serve, was deported to Turkey, where he came from, pursuant to the permanent exclusion order.
25. Imprisonment in default is a surviving relic of the debtors' prison, and entails jail for the recalcitrant debtor. It is now only available as a remedy to the Treasury and guarantees the recovery of money owed to the State, such as financial penalties or any other sums due to the Treasury apart from civil reparation.
26. When the applicant was convicted, Article L.627-6 of the Public Health Code was still in force and provided:
As an exception to the provisions of Article 750 of the Code of Criminal Procedure, the length of imprisonment in default shall be two years where fines and any other pecuniary penalties imposed for any of the offences mentioned in the preceding paragraph or for the related customs offences exceed FRF 500,000.”
27. Article 706-31 of the New Code of Criminal Procedure, which came into force on 1 March 1994, contains identical provisions.
28. Article 382 of the Customs Code provides:
“Judgments concerning customs offences may be executed by any means provided for by law.
Judgments by which persons are convicted of offences against customs legislation shall also be enforceable by imprisonment in default ...”
29. Article 388 of the Customs Code provides:
“A person convicted of a customs offence or an offence relating to indirect taxation may, where the court makes an express order to that effect, be kept in detention, even if an ordinary appeal or an appeal on points of law has been lodged, until he has paid the fiscal penalties imposed on him; save in the case of drug offences, any period of detention served on that account following conviction shall be deducted from the period of imprisonment in default ordered by the court and may not exceed the minimum period laid down in the Code of Criminal Procedure for failure to comply with an order to pay a sum equal to the fiscal penalties imposed.”
30. As an exception to the general law, the customs authorities may, therefore, seek a court order under Article 388 of the Customs Code for the enforcement of an order for imprisonment on the ground of anticipatory default of payment of a customs fine. In practice, this means that, instead of being released, a debtor who has completed his or her prison sentence for a criminal offence will immediately begin to serve the term of imprisonment in default.
31. Traditionally, the courts regarded imprisonment in default as a means of enforcement intended to compel debtors to perform the obligations imposed on them. Following the Court's judgment in Jamil, cited above, the Criminal Division of the Court of Cassation has ruled that imprisonment in default constitutes “a measure of a penal nature, prescribed by law to guarantee compliance with pecuniary orders, fiscal penalties and fraudulently evaded duties, as permitted by Article 5 § 1 (b) of the European Convention on Human Rights” and not “a subsidiary prison sentence that may run concurrently with a custodial sentence pursuant to Articles 132-3 and 132-4 of the former Criminal Code” (Caytarla, Court of Cassation, Criminal Division (“Cass. crim.”), 29 May 1997). The Commercial Division added, in a judgment of 16 May 2000, that “an order for imprisonment in default constitutes a penalty within the meaning of Article 7 of the Convention and, if ordered to ensure the payment of debts due to the customs authorities, is unenforceable unless a demand for payment has been served on the debtor under Article 754 of the Code of Criminal Procedure no less than five days and no more than one year before enforcement commences, as, in providing a special procedure for implementing imprisonment in default, Article 388 of the Customs Code did not exclude the application of Articles 752 to 756 of the Code of Criminal Procedure” (Court of Cassation, Commercial Division (“Cass. com.”), 16 May 2000).
32. This rule is laid down by Article 5 of the Code of Criminal Procedure, which was in force when the applicant was sentenced:
“If a defendant is convicted of more than one serious crime [crimes] or other major offence [délits], he shall only receive the longest of the sentences. The same rule shall apply to custodial sentences imposed on a defendant convicted of more than one class-five minor offence.”
33. The rule that sentences shall run concurrently is now contained in Articles 132-2 to 132-7 of the New Criminal Code.
34. The Criminal Division of the Court of Cassation has consistently held that orders for imprisonment in default are not penal in nature, but constitute a means of enforcement. It has ruled in particular that “although statute attaches imprisonment in default to the financial penalties it is intended to secure recovery of, it nonetheless remains a means of enforcement” (Cass. crim., 26 June 1989, 25 July 1991 and 4 January 1995).
35. Consequently, owing to that interpretation of the nature of imprisonment in default, the rule that sentences must run concurrently cannot apply under French law to a prison sentence and a term of imprisonment in default.
36. However, the different Divisions of the Court of Cassation are divided on whether imprisonment in default constitutes a penalty or a means of execution. The Commercial Division considers that it constitutes a penalty within the meaning of Article 7 of the Convention (Cass. com., 16 May 2000, cited at paragraph 31 above).
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57626
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1990
DOCNAME: CASE OF KRUSLIN v. FRANCE
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings
TEXT: 8. Mr Jean Kruslin, who is unemployed and has no fixed abode, is currently in custody at Fresnes (Val-de-Marne).
9. On 8 and 14 June 1982 an investigating judge at Saint-Gaudens (Haute-Garonne), who was inquiring into the murder of a banker, Mr Jean Baron, at Montréjeau on the night of 7-8 June ("the Baron case"), issued two warrants to the commanding officer of the investigation section of the Toulouse gendarmerie. In the second of these the officer was instructed to tap the telephone of a suspect, Mr Dominique Terrieux, who lived in Toulouse.
From 15 to 17 June the gendarmes intercepted seventeen telephone calls in all. The applicant, who was staying with Mr Terrieux at the time and occasionally used his telephone, had been a party to several of the telephone conversations and more especially to one between 9 p.m. and 11 p.m. on 17 June with someone calling him from a public telephone-box in Perpignan (Pyrénées-Orientales).
During their short conversation the two men had spoken in veiled terms about a different case from the Baron case, concerning in particular the murder on 29 May 1982 of Mr Henri Père, an employee of the Gerbe d’Or jewellers in Toulouse ("the Gerbe d’Or case"). The gendarmes reported this the next day to colleagues from the criminal-investigation branch of the police. On 11 June 1982 an investigating judge in Toulouse had issued a warrant to these officers to investigate that case, and they now immediately listened to the recording of the telephone conversation in question, had it transcribed and appended the text to a report drawn up at midnight on 18 June; the original tape remained, sealed, with the gendarmerie.
10. At dawn on 18 June the gendarmes arrested Mr Kruslin at Mr Terrieux’s home and held him in custody in connection with the Baron case.
Early that afternoon he was questioned about the Gerbe d’Or case by the police (who had already questioned him on 15 June and then released him after about four hours) and - the next day, it seems - he was charged together with Mr Terrieux and one Patrick Antoine with murder, aggravated theft and attempted aggravated theft. On 25 October 1982 the Toulouse investigating judge held a confrontation of the three men, during which after the seals had been broken in their presence - the aforementioned taperecording was heard in its entirety, including the conversation on the evening of 17 June.
Mr Kruslin adopted the same attitude as when questioned by the police on 18 June: he protested his innocence and denied - in respect of this conversation but not of the others - that the voice was his. Mr Terrieux now said that he did not recognise the voice, whereas he had identified it earlier.
The tape was resealed, again in the presence of the persons charged. The applicant refused to sign either the report or the form recording the sealing.
He subsequently applied for an examination by experts, and the investigating judge granted the application in an order of 10 February 1983. In their report of 8 June 1983, however, the three experts who were appointed felt able to state "with 80% certainty" that the voice they had analysed was indeed Mr Kruslin’s.
11. Before the Indictment Division (chambre d’accusation) of the Toulouse Court of Appeal, to which the case was sent after the judicial investigation was completed, the applicant requested that the recording of the disputed conversation should be ruled inadmissible in evidence because it had been made in connection with proceedings which, he claimed, did not concern him - the Baron case. On 16 April 1985 the Indictment Division dismissed this plea in the following terms:
"... while this telephone tapping was ordered by the investigating judge at the Saint-Gaudens tribunal de grande instance in connection with other proceedings, the fact remains that judges are not prohibited by either Article 11 [which lays down the principle that judicial investigations shall be confidential] or Articles R.155 and R.156 of the Code of Criminal Procedure from deciding to include in criminal proceedings evidence from other proceedings which may assist them and help to establish the truth, on the sole condition - which was satisfied in the instant case - that such evidence is added under an adversarial procedure and that it has been submitted to the parties for them to comment on ..."
In so doing, the Indictment Division, it appears, took as its inspiration - and extended by analogy to the field of telephone tapping the settled case-law of the Criminal Division of the Court of Cassation, developed in respect of other investigative measures (see, for example, 11 March 1964, Bulletin (Bull.) no. 86; 13 January 1970, Bull. no. 21; 19 December 1973, Bull. no. 480; 26 May and 30 November 1976, Bull. nos. 186 and 345; 16 March and 2 October 1981, Bull. nos. 91 and 256).
In the same decision the Indictment Division committed Mr Kruslin - with four others, including Mr Terrieux and Mr Antoine - for trial at the Haute-Garonne Assize Court on charges, in his case, of aiding and abetting a murder, aggravated theft and attempted aggravated theft.
12. The applicant appealed to the Court of Cassation on points of law. In the second of his five grounds of appeal he relied on Article 8 (art. 8) of the Convention. He criticised the Indictment Division of the Toulouse Court of Appeal for having
"refused to rule that the evidence from telephone tapping in connection with other proceedings was inadmissible;
whereas interference by the public authorities with a person’s private and family life, home and correspondence is not necessary in a democratic society for the prevention of crime unless it is in accordance with a law that satisfies the following two requirements: it must be of a quality such that it is sufficiently clear in its terms to give citizens an adequate indication of the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence, and it must define the scope and manner of exercise of such a power clearly enough to give the individual adequate protection from arbitrary interference; these requirements are not satisfied by any provision of French law, and particularly not by Article 81 of the Code of Criminal Procedure".
In his supplementary pleadings of 11 June 1985 (pp. 5-8) counsel for Mr Kruslin relied on the case-law of the European Court of Human Rights, both in regard to telephone tapping (Klass and Others judgment of 6 September 1978 and Malone judgment of 2 August 1984, Series A nos. 28 and 82) and in other respects (Golder judgment of 21 February 1975, Sunday Times judgment of 26 April 1979 and Silver and Others judgment of 25 March 1983, Series A nos. 18, 30 and 61).
The Criminal Division of the Court of Cassation dismissed the appeal in a judgment of 23 July 1985. As regards the point in question it gave the following reasons for its decision:
"...
An examination of the evidence shows that the transcript of a tape recording of conversations in calls made on Terrieux’s telephone line was included in the file of the murder investigation then being conducted by the Toulouse investigating judge following the death of Henri Père at the hands of a person or persons unknown; this recording had been made pursuant to a warrant issued by the investigating judge at Saint-Gaudens in connection with the investigation of another murder, likewise committed by a person or persons unknown; it was because of its relevance to the investigation into Père’s death that the transcription was made by senior police officers acting under a warrant issued by the investigating judge in Toulouse;
The tenor of the conversations recorded was made known to the various persons concerned, notably Kruslin, who was asked to account for them both during the inquiries made pursuant to the investigating judge’s warrant and after he was charged; furthermore, an examination of the tape recording by an expert, whose report was subsequently added to the evidence, was made pursuant to a lawful decision by the investigating judge;
That being so, the Indictment Division did not lay itself open to the objection raised in the ground of appeal by refusing to rule that the evidence from telephone tapping in connection with other proceedings was inadmissible;
In the first place, there is no statutory provision prohibiting the inclusion in criminal proceedings of evidence from other proceedings which may assist the judges and help to establish the truth; the sole condition is that such evidence should be added under an adversarial procedure - which was so in this case, in which the documents were submitted to the parties for them to comment on;
In the second place, it is clear from Articles 81 and 151 of the Code of Criminal Procedure and from the general principles of criminal procedure that, among other things, firstly, telephone tapping may be ordered by an investigating judge, by means of a warrant, only where there is a presumption that a specific offence has been committed which has given rise to the investigation which the judge has been assigned to undertake, and that it cannot be directed, on the off chance, against a whole category of offences; and, secondly, that the interception ordered must be carried out under the supervision of the investigating judge, without any subterfuge or ruse being employed and in such a way that the exercise of the rights of the defence cannot be jeopardised;
These provisions governing the use of telephone tapping by an investigating judge, which have not been shown to have been infringed in the instant case, satisfy the requirements of Article 8 (art. 8) of the European Convention for the Protection of Human Rights and Fundamental Freedoms;
..." (Bull. no. 275, pp. 713-715)
13. It appears from the file that the recording of the telephone conversation of 17 June 1982 was a decisive piece of evidence in the proceedings against the applicant. These proceedings ended, on 28 November 1986, with a judgment of the Haute-Garonne Assize Court. Mr Kruslin was acquitted of murder but sentenced to fifteen years’ imprisonment for armed robbery and attempted armed robbery; an appeal by him to the Court of Cassation was dismissed on 28 October 1987. He seems always to have protested his innocence.
14. In the Baron case the Indictment Division of the Toulouse Court of Appeal likewise committed the applicant, on 2 June 1987, for trial at the Haute-Garonne Assizes, together with Mr Antoine and one Charles Croce. At that trial too he alleged that the telephone tapping carried out from 15 to 17 June 1982 was inadmissible; on 4 November 1987 the Criminal Division of the Court of Cassation dismissed this plea on grounds identical, mutatis mutandis, to those in its judgment of 23 July 1985 previously cited (see paragraph 12 above - Recueil Dalloz Sirey (DS) 1988, sommaires, p. 195). On 2 December 1988 the Assize Court sentenced the applicant to life imprisonment for premeditated murder; he lodged an appeal on points of law, but this was dismissed by the Criminal Division of the Court of Cassation on 6 November 1989.
The complaints he made to the Commission, however, related solely to the telephone tapping whose results were used in the Gerbe d’Or case.
15. French criminal law adopts the principle that any kind of evidence is admissible: "unless otherwise provided by statute, any type of evidence shall be admissible to substantiate a criminal charge ..." (Article 427 of the Code of Criminal Procedure).
There is no statutory provision which expressly empowers investigating judges to carry out or order telephone tapping, or indeed to carry out or order various measures which are nonetheless in common use, such as the taking of photographs or fingerprints, shadowing, surveillance, requisitions, confrontations of witnesses and reconstructions of crimes. On the other hand, the Code of Criminal Procedure does expressly confer power on them to take several other measures, which it regulates in detail, such as pre-trial detention, seizure of property and searches.
16. Under the old Code of Criminal Procedure the Court of Cassation had condemned the use of telephone tapping by investigating judges, at least in circumstances which it regarded as disclosing, on the part of a judge or the police, a lack of "fairness" incompatible with the rules of criminal procedure and the safeguards essential to the rights of the defence (combined divisions, 31 January 1888, ministère public c. Vigneau, Dalloz 1888, jurisprudence, pp. 73-74; Criminal Division, 12 June 1952, Imbert, Bull. no. 153, pp. 258-260; Civil Division, second section, 18 March 1955, époux Jolivot c. époux Lubrano et autres, DS 1955, jurisprudence, pp. 573-574, and Gazette du Palais (GP) 1955, jurisprudence, p. 249). Some trial courts and courts of appeal which had to deal with the issue, on the other hand, showed some willingness to hold that such telephone tapping was lawful if there had been neither "entrapment" nor "provocation"; this view was based on Article 90 of the former Code (Seine Criminal Court, Tenth Division, 13 February 1957, ministère public contre X, GP 1957, jurisprudence, pp. 309-310).
17. Since the 1958 Code of Criminal Procedure came into force, the courts have had regard in this respect to, among others, Articles 81, 151 and 152, which provide:
"The investigating judge shall, in accordance with the law, take all the investigative measures which he deems useful for establishing the truth.
...
If the investigating judge is unable to take all the investigative measures himself, he may issue warrants to senior police officers (officiers de police judiciaire) in order to have them carry out all the necessary investigative measures on the conditions and subject to the reservations provided for in Articles 151 and 152.
The investigating judge must verify the information thus gathered.
..."
"An investigating judge may issue a warrant requiring any judge of his court, any district-court judge within the territorial jurisdiction of that court, any senior police officer (officier de police judiciaire) with authority in that jurisdiction or any investigating judge to undertake any investigative measures he considers necessary in places coming under their respective jurisdictions.
The warrant shall indicate the nature of the offence to which the proceedings relate. It shall be dated and signed by the issuing judge and shall bear his seal.
It may only order investigative measures directly connected with the prosecution of the offence to which the proceedings relate.
..."
"The judges or senior police officers instructed to act shall exercise, within the limits of the warrant, all the powers of the investigating judge.
..."
18. An Act of 17 July 1970 added to the Civil Code an Article 9 guaranteeing to everyone "the right to respect for his private life". It also added to the Criminal Code an Article 368, whereby:
"Anyone who wilfully intrudes on the privacy of others:
1. By listening to, recording or transmitting by means of any device, words spoken by a person in a private place, without that person’s consent;
2. ...
shall be liable to imprisonment for not less than two months and not more than one year and a fine ... or to only one of these two penalties."
During the preparatory work, one of the vice-chairmen of the National Assembly’s Statutes Committee, Mr Zimmermann, sought "certain assurances" that this enactment "[would] not prevent the investigating judge from issuing strictly within the provisions of the law warrants to have telephones tapped, obviously without making use of any form of inducement and in compliance with all the legal procedures" (Journal officiel, National Assembly, 1970 proceedings, p. 2074). The Minister of Justice, Mr René Pleven, replied: "... there is no question of interfering with the powers of investigating judges, who are indeed empowered, in the circumstances laid down by law, to order tapping"; he added a little later: "When an official taps a telephone, he can only do so lawfully if he has a warrant from a judicial authority or is acting on the instructions of a minister" (ibid., p. 2075). Both Houses of Parliament thereupon passed the Bill without amending it on this point.
19. Article 41 of the Post and Telecommunications Code provides that any public servant or anyone authorised to assist with the performance of relevant official duties who breaches the secrecy of correspondence entrusted to the telecommunications service shall be liable to the penalties provided for in Article 187 of the Criminal Code - a fine, imprisonment and temporary disqualification from any public office or employment. Article 42 provides that anyone who, without permission from the sender or the addressee, divulges, publishes or uses the content of correspondence transmitted over the air or by telephone shall be liable to the penalties provided for in Article 378 of the Criminal Code (on professional confidentiality) - a fine or imprisonment.
General Instruction no. 500-78 on the telephone service - intended for Post and Telecommunications Authority officials - contains the following provisions, however, given here in the amended version of 1964 (Article 24 of Part III):
"Postmasters and sub-postmasters are required to comply with any requests that ... calls to or from a specified telephone should be monitored by the relevant authority, made by:
1. An investigating judge (Articles 81, 92 and 94 of the Code of Criminal Procedure) or any judge or senior police officer (officier de police judiciaire) to whom a judicial warrant has been issued (Art. 152);
..."
The General Instruction was published in the official bulletin of the Ministry of Post and Telecommunications and was described by the Government as an "implementing regulation".
20. The striking development of various forms of serious crime - large-scale thefts and robberies, terrorism, drug-trafficking - appears in France to have led to a marked increase in the frequency with which investigating judges resort to telephone tapping. The courts have as a result given many more decisions on the subject than formerly; telephone tapping has not been held to be unlawful in itself, although the courts have occasionally shown some distaste for it (Paris Court of Appeal, Ninth Criminal Division, 28 March 1960, Cany et Rozenbaum, GP 1960, jurisprudence, pp. 253-254).
The decisions cited to the Court by the Government, the Commission and the applicant, or of which the Court has had cognisance by its own means, are mostly of later date than the facts of the instant case (June 1982) and have gradually provided a number of clarifications. These do not all stem from judgments of the Court of Cassation, and do not for the time being constitute a uniform body of case-law, because the decisions or reasons given in some of the cases have remained unique. They may be summarised as follows.
(a) Articles 81 and 151 of the Code of Criminal Procedure (see paragraph 17 above) empower investigating judges - and them alone, as far as judicial investigations are concerned - to carry out telephone tapping or, much more commonly in practice, to issue a warrant to that effect to a senior police officer (officier de police judiciaire) within the meaning of Article 16 (see, in particular, Court of Cassation, Criminal Division, 9 October 1980, Tournet, Bull. no. 255, pp. 662-664; 24 April 1984, Peureux, Huvig et autre, DS 1986, jurisprudence, pp. 125-128; 23 July 1985 - see paragraph 12 above; 4 November 1987 - see paragraph 14 above; 15 February 1988, Schroeder, and 15 March 1988, Arfi, Bull. no. 128, pp. 327-335). Telephone tapping is an "investigative measure" which may sometimes be "useful for establishing the truth". It is comparable to the seizure of letters or telegrams (see, among other authorities, Poitiers Court of Appeal, Criminal Division, 7 January 1960, Manchet, Juris-Classeur périodique (JCP) 1960, jurisprudence, no. 11599, and Paris Court of Appeal, Indictment Division, 27 June 1984, F. et autre, DS 1985, jurisprudence, pp. 93-96) and it similarly does not offend the provisions of Article 368 of the Criminal Code, having regard to the legislative history and to the principle that any kind of evidence is admissible (see paragraphs 15 and 18 above and Strasbourg tribunal de grande instance, 15 February 1983, S. et autres, unreported; Colmar Court of Appeal, 9 March 1984, Chalvignac et autre, unreported but cited by the Government at the Commission hearing on 6 May 1988; Paris Court of Appeal, Indictment Division, judgment of 27 June 1984 previously cited and judgment of 31 October 1984, Li Siu Lung et autres, GP 1985, sommaires, pp. 94-95).
(b) The investigating judge can only issue such a warrant "where there is a presumption that a specific offence has been committed which has given rise to the investigation" which he is responsible for conducting and not in respect of a whole category of offences "on the off chance"; this is clear not only from Articles 81 and 151 (second and third paragraphs) of the Code of Criminal Procedure but also "from the general principles of criminal procedure" (see, among other authorities, Court of Cassation, Criminal Division, judgments of 23 July 1985, 4 November 1987 and 15 March 1988 previously cited).
The French courts do not seem ever to have held that telephone tapping is lawful only where the offences being investigated are of some seriousness or if the investigating judge has specified a maximum duration for it.
(c) "Within the limits of the warrant" that has been issued to him - if need be by fax (Limoges Court of Appeal, Criminal Division, 18 November 1988, Lecesne et autres, DS 1989, sommaires, p. 394) - the senior police officer exercises "all the powers of the investigating judge" (Article 152 of the Code of Criminal Procedure). He exercises these under the supervision of the investigating judge, who by the fifth paragraph of Article 81 is bound to "verify the information ... gathered" (see, among other authorities, Court of Cassation, Criminal Division, judgments of 9 October 1980, 24 April 1984, 23 July 1985, 4 November 1987 and 15 March 1988 previously cited).
The warrant apparently sometimes takes the form of a general delegation of powers, including - without its being expressly mentioned - the power to tap telephones (Court of Cassation, Civil Division, second section, judgment of 18 March 1955 previously cited, and Paris Court of Appeal, judgment of 28 March 1960 previously cited).
(d) In no case may a police officer tap telephones on his own initiative without a warrant, for example during the preliminary investigation preceding the opening of the judicial investigation (see, among other authorities, Court of Cassation, Criminal Division, 13 June 1989, Derrien, and 19 June 1989, Grayo, Bull. no. 254, pp. 635-637, and no. 261, pp. 648-651; full court, 24 November 1989, Derrien, DS 1990, p. 34, and JCP 1990, jurisprudence, no. 21418, with the submissions of Mr Advocate-General Emile Robert).
(e) Telephone tapping must not be accompanied by "any subterfuge or ruse" (see, among other authorities, Court of Cassation, Criminal Division, judgment of 9 October 1980, 24 April 1984, 23 July 1985, 4 November 1987, 15 February 1988 and 15 March 1988 previously cited) failing which the information gathered by means of it must be either deleted or removed from the case file (Court of Cassation, Criminal Division, judgments of 13 and 19 June 1989 previously cited).
(f) The telephone tapping must also be carried out "in such a way that the exercise of the rights of the defence cannot be jeopardised" (see, among other authorities, Court of Cassation, Criminal Division, judgments of 9 October 1980, 24 April 1984, 23 July 1985, 4 November 1987, 15 February 1988, 15 March 1988 and 19 June 1989 previously cited). In particular, the confidentiality of the relations between suspect or person accused and lawyer must be respected, as must, more generally, a lawyer’s duty of professional confidentiality, at least when he is not acting in any other capacity (Aix-en-Provence Court of Appeal, Indictment Division, 16 June 1982 and 2 February 1983, Sadji Hamou et autres, GP 1982, jurisprudence, pp. 645-649, and GP 1983, jurisprudence, pp. 313-315; Paris Court of Appeal, Indictment Division, judgment of 27 June 1984 previously cited).
(g) With this reservation, it is permissible to tap telephone calls to or from a charged person (Court of Cassation, Criminal Division, judgments of 9 October 1980 and 24 April 1984 previously cited) or a mere suspect, such as Mr Terrieux in the instant case (see paragraph 9 above and also the previously cited judgments of the Strasbourg tribunal de grande instance, 15 February 1983, the Colmar Court of Appeal, 9 March 1984, and the Indictment Division of the Paris Court of Appeal, 27 June 1984) or even a third party, such as a witness, whom there is reason to believe to be in possession of information about the perpetrators or circumstances of the offence (see, among other authorities, Aix-en-Provence Court of Appeal, judgment of 16 June 1982 previously cited).
(h) A public telephone-box may be tapped (Seine Criminal Court, Tenth Division, 30 October 1964, Trésor public et Société de courses c. L. et autres, DS 1965, jurisprudence, pp. 423-424) just like a private line, irrespective of whether current is diverted to a listening station (Court of Cassation, Criminal Division, 13 June 1989, and full court, 24 November 1989, previously cited).
(i) The senior police officer supervises the tape or cassette recording of the conversations and their transcription, where he does not carry out these operations himself; when it comes to choosing extracts to submit "for examination by the court", it is for him to determine "what words may render the speaker liable to criminal proceedings". He performs these duties "on his own responsibility and under the supervision of the investigating judge" (Strasbourg tribunal de grande instance, judgment of 15 February 1983 previously cited, upheld by the Colmar Court of Appeal on 9 March 1984; Paris Court of Appeal, judgment of 27 June 1984 previously cited).
(j) The original tapes - which in the instant case were sealed (see paragraphs 8-9 above) - are "exhibits", not "investigation documents", but have only the weight of circumstantial evidence; their contents are transcribed in reports in order to give them a physical form so that they can be inspected (Court of Cassation, Criminal Division, 28 April 1987, Allieis, Bull. no. 173, pp. 462-467).
(k) If transcription raises a problem of translation into French, Articles 156 et seq. of the Code of Criminal Procedure, which deal with expert opinions, do not apply to the appointment and work of the translator (Court of Cassation, Criminal Division, 6 September 1988, Fekari, Bull. no. 317, pp. 861-862 (extracts), and 18 December 1989, M. et autres, not yet reported).
(l) There is no statutory provision prohibiting the inclusion in the file on a criminal case of evidence from other proceedings, such as tapes and reports containing transcriptions, if they may "assist the judges and help to establish the truth", provided that such evidence is added under an adversarial procedure (Toulouse Court of Appeal, Indictment Division, 16 April 1985 - see paragraph 11 above; Court of Cassation, Criminal Division, 23 July 1985 - see paragraph 12 above - and 6 September 1988 previously cited).
(m) The defence must be able to inspect the reports containing transcriptions, to hear the original tape recordings, to challenge their authenticity during the judicial investigation and subsequent trial and to apply for any necessary investigative measures - such as an expert opinion, as in the instant case (see paragraph 10 in fine) - relating to their contents and the circumstances in which they were made (see, among other authorities, Court of Cassation, Criminal Division, 23 July 1985 - see paragraph 12 above; 16 July 1986, Illouz, unreported; and 28 April 1987, Allieis, previously cited).
(n) Just as the investigating judge supervises the senior police officer, he is himself supervised by the Indictment Division, to which he - exactly like the public prosecutor - may apply under Article 171 of the Code of Criminal Procedure.
Trial courts, courts of appeal and the Court of Cassation may have to deal with objections or grounds of appeal as the case may be - particularly by defendants but also, on occasion, by the prosecution (Court of Cassation, judgments of 19 June and 24 November 1989 previously cited) - based on a failure to comply with the requirements summarised above or with other rules which the parties concerned claim are applicable. A failure of this kind, however, would not automatically nullify the proceedings such that a court of appeal could be held to have erred if it had not dealt with them of its own motion; they affect only defence rights (Court of Cassation, Criminal Division, 11 December 1989, Takrouni, not yet reported).
21. Since at least 1981, parties have increasingly often relied on Article 8 (art. 8) of the Convention - and, much less frequently, on Article 6 (art. 6) (Court of Cassation, Criminal Division, 23 April 1981, Pellegrin et autres, Bull. no. 117, pp. 328-335, and 21 November 1988, S. et autres) - in support of their complaints about telephone tapping; they have sometimes as in the instant case (see paragraph 12 above) - cited the case-law of the European Court of Human Rights.
Hitherto only telephone tapping carried out without a warrant, during the police investigation (see, among other authorities, Court of Cassation, judgments of 13 June and 24 November 1989 previously cited), or in unexplained circumstances (see, among other authorities, Court of Cassation, judgment of 19 June 1989 previously cited) or in violation of defence rights (Paris Court of Appeal, Indictment Division, judgment of 31 October 1984, previously cited) has been held by the French courts to be contrary to Article 8 § 2 (art. 8-2) ("in accordance with the law") or to domestic law in the strict sense. In all other cases the courts have either found no violation (Court of Cassation, Criminal Division, judgments of 24 April 1984, 23 July 1985, 16 July 1986, 28 April 1987, 4 November 1987, 15 February 1988, 15 March 1988, 6 September 1988 and 18 December 1989 previously cited, and 16 November 1988, S. et autre, unreported, and the judgments of 15 February 1983 (Strasbourg), 9 March 1984 (Colmar) and 27 June 1984 (Paris) previously cited) or else ruled the plea inadmissible for various reasons (Court of Cassation, Criminal Division, judgments of 23 April 1981, 21 November 1988 and 11 December 1989 previously cited and the unreported judgments of 24 May 1983, S. et autres; 23 May 1985, Y. H. W.; 17 February 1986, H.; 4 November 1986, J.; and 5 February 1990, B. et autres).
22. While academic opinion is divided as to the compatibility of telephone tapping as carried out in France - on the orders of investigating judges or others - with the national and international legal rules in force in the country, there seems to be unanimous agreement that it is desirable and even necessary for Parliament to try to solve the problem by following the example set by many foreign States (see in particular Gaëtan di Marino, comments on the Tournet judgment of 9 October 1980 (Court of Cassation), JCP 1981, jurisprudence, no. 19578; Albert Chavanne, ‘Les résultats de l’audio-surveillance comme preuve pénale’, Revue internationale de droit comparé, 1986, pp. 752-753 and 755; Gérard Cohen-Jonathan, ‘Les écoutes téléphoniques’, Studies in honour of Gérard J. Wiarda, 1988, p. 104; Jean Pradel, ‘Écoutes téléphoniques et Convention européenne des Droits de l’Homme’, DS 1990, chronique, pp. 17-20). In July 1981 the Government set up a study group chaired by Mr Robert Schmelck, who was then President of the Court of Cassation, and consisting of senators and MPs of various political persuasions, judges, university professors, senior civil servants, judges and a barrister. The group submitted a report on 25 June 1982, but this has remained confidential and has not yet led to a bill being tabled.
VIOLATED_ARTICLES: 8


ITEMID: 001-79324
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF ZAICHENKO v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6 and P1-1
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1969 and lives in Voronezh.
5. She brought civil proceedings against her local authority requesting arrears of child benefits due to her.
6. On 15 December 2000 the Zheleznodorozhny District Court of Voronezh granted her claims and awarded her the arrears in the amount of 8,637.22 roubles (RUR). The judgment was not appealed against and became final on 26 December 2000.
7. On an unspecified date a writ of execution was issued.
8. As the judgment remained unexecuted, on an unspecified date the applicant forwarded the writ to the debtor's bank and requested it to debit the sum due from the debtor's account, but the bank refused.
9. She then brought proceedings against the bank claiming damages for its refusal to enforce the judgment of 15 December 2000.
10. On 17 April 2003 the Justice of the Peace of the Second Circuit of the Central District of Voronezh dismissed the applicant's claims on the ground that the bank had not been at fault in refusing to enforce the judgment of 15 December 2000. On appeal, the judgment was upheld by the Central District Court of Voronezh on 10 November 2003.
11. In February 2004 the applicant received RUR 993.48 in execution of the judgment of the Zheleznodorozhny District Court of Voronezh of 15 December 2000.
12. On 13 December 2005 she received the outstanding balance of RUR 7,643.74, thus completing full execution of the judgment.
VIOLATED_ARTICLES: 6


ITEMID: 001-4879
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: PODSIEDLIK v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant is a Polish national, born in 1952. He is currently serving a prison sentence in Żytkowice prison.
In 1977 the applicant, who was then serving a prison sentence, had an occupational accident as a result of which he was seriously scalded. In 1978 a competent medical board assessed his disability as being of first degree (serious), and the Social Insurance authorities paid him compensation and granted disability pension. In 1982 the Lublin Regional Court awarded him compensation for non-pecuniary damage and a monthly disability pension to be paid by the plant in which the accident had occurred. In 1990 the applicant reached a court settlement in the proceedings against the plant in which he had claimed compensation for pecuniary damage and an increase of his pension.
After the accident the applicant underwent long treatment in various hospitals, apparently serving at the same time his numerous prison sentences. In particular, he underwent various surgeries in, inter alia, the Polanica Plastic Surgery Hospital in 1985, 1987, 1990, 1991 and twice in 1993, in order to alleviate the long-term consequences of his accident.
In 1994 a medical panel at Warszawa-Mokotów Prison recommended that the applicant should undergo a further treatment in the Poznań University hospital specialised in hand surgery.
On 3 March 1994 the applicant was informed by the Department of Surgery of the Poznań Medical Academy that a date for a consultation had been fixed for 15 March 1994.
On 18 April 1994 the applicant requested a penitentiary court to grant him a temporary release on health grounds. Apparently later this request was refused.
On 30 April 1994 the applicant underwent an isotopic scintigraphy of kidneys in the Łódź Medical Academy which showed that the function of his right kidney was badly impaired.
In a letter of 24 January 1995 the Ombudsman informed the applicant that, following his complaint, an enquiry had been made in respect of his medical treatment in prison. It had been established that the medical panel of Warszawa-Mokotów Prison hospital and a specialist in surgery had found that the applicant had been suffering, following his 1977 accident, from a so-called stiff hand syndrome which could be further treated by the prison health system. The applicant had subsequently been transferred to a special ward of Rzeszów prison for detainees with health problems. Thus, there were no grounds on which to accept that the applicant had been deprived of adequate medical care.
On 28 February 1995 the Warszawa-Mokotów District Prosecutor discontinued the investigation of the applicant’s complaint that the president of the medical panel of Warszawa-Mokotów Prison hospital had forged certain of his medical documents, finding that in fact no documents had been forged and no criminal offence had been committed.
In a letter of 29 May 1995, in reply to the applicant’s complaint about a refusal to grant him a temporary release, the Ombudsman informed him that he could not exert any pressure on independent courts, including penitentiary ones, in order to obtain a decision. It also drew the applicant’s attention to the fact that the courts, when considering his requests for release on health grounds, would have regard to his refusals to give consent to medical treatment by the prison medical services.
In June 1995 the applicant was transferred to Poznań prison, with a view to an admission to the Poznań Medical Academy hospital for a further operation of his hand. After he was admitted, he refused to give consent to surgery and demanded a temporary release in order to undergo treatment in a civil medical institution.
On 19 September 1995 the Rzeszów Regional Penitentiary Court, having regard to the medical expert opinion of 5 September 1995, drawn up by a medical panel of Kraków Prison hospital, refused to allow the applicant’s request for a temporary release. The court found that the applicant had had a number of surgeries to alleviate the problems caused by the 1977 accident, and that a further progress in his rehabilitation by way of further surgeries was unlikely. The court observed that, in any event, the applicant had refused to give his consent to a further operation. The court considered that no evidence supported the applicant’s dramatic complaints about the alleged failure on the part of the prison medical services to treat him adequately. The court finally noted that the applicant had already been temporarily released several times, inter alia in 1987, 1989 and 1990, and that, while at liberty, he had not only committed further offences, but he had also failed to report to the plastic surgery hospital for an operation in accordance with the previously made arrangements. The court concluded that there was no guarantee that, if released, the applicant would comply with the medical recommendations and that, in any event, his condition did not require such special treatment which could not have been provided by prison medical services.
On 4 October 1995 the Rzeszów Regional Penitentiary Court, sitting in a panel of three judges as an appellate court in the proceedings concerning appeals against decisions taken by a single judge of that court, dismissed the applicant’s appeal against the refusal to grant him a temporary release of 19 September 1995. The court considered that the applicant disputed the reasonableness of the medical recommendations without advancing any sound arguments to support his position. The court further considered that the lower court had not committed any errors in establishing the relevant facts of the case on the basis of a decision of the medical expert opinion of 5 September 1995, drawn up by the medical panel of Kraków prison hospital, and having regard to the opinion of the authorities of Rzeszów prison of 20 June 1995.
In a letter of 27 October 1995 the Central Prison Administration - Complaints Division informed the applicant that his voluminous medical records had been examined by the Health Services Division and that his allegations did not find any support in the documents contained therein.
In a letter of 9 November 1995, the Central Prison Administration again informed the applicant that his complaints regarding the medical care, which he had been receiving in Rzeszów Prison, were unfounded. In particular, in August 1994 the applicant had been examined by specialists who had proposed a further operation of his hand in Szczecin Medical Academy. After the applicant had been transferred to Szczecin in time for the operation scheduled for 12 April 1995, he refused to give his consent therefor. It was further stressed in the letter that the applicant was under a continuous general and specialised medical care, and that it was only his persistent refusal to co-operate with the medical services which caused the lack of any tangible clinical results.
On 12 December 1995 the Warsaw Regional Court dismissed the applicant’s claim for compensation against the Central Prison Administration and Warszawa-Mokotów Prison for the alleged negligence in providing him with adequate medical treatment.
The applicant lodged an appeal against this judgment, arguing that the court had failed to establish all the circumstances relevant for the adjudication of his claim. In particular, the court had not made sufficient findings as to the reasons for which the applicant had been refused permission to undergo a treatment outside of the prison medical services.
From 10 January 1994 to 1 April 1996 the applicant underwent treatment for his renal problems in the urology department of Łódź Prison hospital. It was established that he was suffering from urolithiasis and cirrhosis of the right kidney and of certain weakening of the functioning of left kidney. Throughout his stay in the hospital he was receiving medicines in order to alleviate symptoms of urolithiasis. As he suffered from cirrhosis, it was decided that an operation in order to remove calcium deposits in the right kidney was not called for. He was also consulted by an orthopaedist, who indicated that in view of the applicant’s problems which could not be alleviated by re-habilitation, he should undergo, as soon as possible, a surgery to remove a certain osseous deformation of his hand. Another operation of his hand to remove a metallic device put into it during the past treatment was recommended and could be carried out in the Warsaw-Mokotów Prison Hospital.
On 19 September 1996 the Warsaw Court of Appeal dismissed the applicant’s appeal against the judgment of 12 December 1995.
In a letter of 31 October 1996 the Rzeszów Regional Prison Administration, in reply to the applicant’s complaints of 27 August 1996 and 18 September 1996 about the allegedly inadequate medical care in respect of his renal problems, informed him that, in the light of the analysis of the applicant’s medical records, his complaints proved unfounded.
In a further undated letter in reply to a new complaint by the applicant, the Rzeszów Regional Prison Administration reiterated that his complaints about the allegedly inadequate medical care were unjustified, in particular in the light of a medical expert opinion of an urologist who, following the applicant’s complaints, had examined his medical files, assessed the treatment which he had been receiving and found no indication of any irregularities or negligence on the part of the prison medical services.
On 16 December 1996 the Kielce District Prosecutor stayed the proceedings relating to the applicant’s request to institute criminal proceedings against persons responsible for an alleged failure to ensure adequate treatment of his renal problems during the applicant’s detention in Kielce Prison from March 1994 to 27 May 1994 and from 3 December 1994 to 7 April 1995. The prosecutor observed that medical experts from the Wrocław Medical Academy had been appointed in order to examine the applicant’s medical records in this respect and that their report, in view of their workload, could be ready only in three or four months. This constituted a long-term obstacle to completing the investigations such as to justify the staying of the proceedings.
On 25 March 1997 the Tarnów Regional Penitentiary Court refused to allow the applicant’s further request for a temporary release on health grounds. The court had regard to a decision of the medical panel of Rzeszów Prison hospital of 10 March 1997, which indicated that there were no medical reasons calling for his release and that his condition could be treated in prison, despite the applicant’s repeated and unjustified refusals.
In reply to the applicant’s fresh complaint about the allegedly poor quality of medical care afforded to him in Żytkowice Prison, the Warsaw Regional Prison Administration, in a letter of 20 April 1998, indicated that an internal enquiry following his complaint had not confirmed his allegations. The applicant was under continuous medical care, and was attended by doctors when he so requested. As he had repeatedly refused to consent to a surgical removal of his right kidney, an intervention that could easily be carried on by the prison medical services, he could not be operated on. The applicant’s condition did not entail any danger to his life, and if a need of treatment arose, he could be admitted to and treated in a prison hospital. In sum, his complaints were disproportionate to the actual state of his health.


ITEMID: 001-89873
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF MIRCHEV AND OTHERS v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych
TEXT: 5. The applicants were born in 1930, 1925, 1920, 1920, 1926, 1931, 1934, 1931 and 1924 respectively. On 8 October 2002 the fourth applicant, Mr Milko Kalev Balev, passed away. By a letter of 10 April 2006 his wife, Mrs Maria Vasileva Baleva and his sons, Mr Vladimir Milkov Balev and Mr Kalin Milkov Balev, informed the Court that they wished to continue the present application in his stead. The remaining applicants live in Sofia.
6. Prior to 1989 all nine applicants occupied leading positions in the Council of Ministers (the government) and the Bulgarian Communist Party (“the BCP”).
7. On 9 July 1992 the Chief Public Prosecutor’s Office opened preliminary investigation against twenty-two former members of the Bureau of the Council of Ministers and the Secretariat of the Central Committee of the BCP, including the nine applicants and Mr A. Lukanov and Mr O. Doinov, whose applications relating to the same criminal proceedings were decided by the European Court of Human Rights in 1997 and 2007 (Lukanov v. Bulgaria, judgment of 20 March 1997, Reports of Judgments and Decisions 1997II, and Doinov v. Bulgaria, no.68356/01, 27 September 2007). On an unspecified date the applicants were charged with abuse of office and misappropriation on the ground that between 1981 and 1989 they had participated in the adoption of decisions to provide financial assistance or extend loans, totalling 243,537,000 old Bulgarian levs, to foreign countries and political parties.
8. Between July 1992 and February 1993 the prosecution authorities carried out a number of investigations.
9. After February 1993 the criminal proceedings were stayed for undetermined periods of time on at least four occasions. The last such occasion was on 28 May 1995. The proceedings were resumed on 15 June 1999.
10. By a decision of the Sofia city public prosecutor’s office of 28 January 2000 the criminal proceedings against the applicants were terminated. The prosecution found that the actions of the accused, including the nine applicants, had not been punishable under domestic criminal legislation at the time: the funds in question had been included as expenditure in the State budget, the decisions had been adopted without exceeding the powers granted to the accused under the existing legislation and the provision of such aid was in conformity with the State’s international obligations. Reference was made to this Court’s judgment in the case of Lukanov v. Bulgaria (cited above) where it had been concluded in respect of the same domestic proceedings that:
“... no evidence has been adduced to show that such decisions were unlawful, that is to say contrary to Bulgaria’s Constitution or legislation, or more specifically that the decisions were taken in excess of powers or were contrary to the law on the national budget” (§ 43).
11. On 16 February and 27 March 2000 the decision of the Sofia city public prosecutor’s office to terminate the proceedings was upheld by the Sofia appellate public prosecutor’s office and the Sofia Court of Appeal, respectively.
12. Under the State and Municipalities Responsibility for Damage Act of 1988 (“the SMRDA”) individuals can in certain circumstances seek damages for unlawful acts of the authorities. The Act does not mention excessive length of proceedings as a ground for an action for damages. Nor is there any practice in the domestic courts of awarding damages for excessive length of proceedings.
VIOLATED_ARTICLES: 6


ITEMID: 001-98331
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF SLYUSAREV v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 3 (substantive aspect)
JUDGES: Alvina Gyulumyan;Anatoly Kovler;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall
TEXT: 6. The applicant was born in 1970 and lives in Moscow.
7. Late in the night of 2 July 1998, a Ms P. was assaulted at the entrance of her house. Two of her neighbours apprehended the applicant on suspicion that he had committed the crime and handed him over to the police. The applicant was taken to the Moscow Pechatniki District Police Department (ОВД «Печатники») for questioning. It appears that at a certain point the applicant's glasses were partially broken and the police took them away from the applicant, who was short-sighted (according to the applicant, he needed glasses of 3.5 dioptres).
8. At the police station the applicant signed a written statement in which he confessed that he had tried to rob Ms P. using a gas handgun, and that there had been a short fight between him and one of her neighbours. The neighbours confirmed that testimony in written statements taken by the police officers.
9. On 3 July 1998 the police instituted criminal proceedings against the applicant on suspicion of armed robbery of Ms P. and illegal possession of firearms. On an unspecified date the applicant was also charged with three counts of fraud, which were not related to the episode with Ms P.
10. On 4 July 1998 the applicant was taken by the policemen to see a doctor. It appears that the applicant did not complain to the doctor about any injury.
11. On 6 July 1998 the applicant was questioned again in connection with the robbery, now in the presence of his lawyer. This time the applicant retracted his initial statement of confession.
12. On an unspecified date the applicant was transferred from the police department to a pre-trial detention centre (isolation unit IZ-48/1) in Moscow. The applicant alleged that he had asked the administration of the unit to provide him with new glasses, but his request had been refused. According to the applicant, he also asked the investigator in charge of his case to arrange for him to have his eyesight examined by an oculist.
13. On 14 July 1998 the applicant filed an application for release with the Preobrazhenskiy District Court, in which he gave his version of the events of 2 July 1998. He contended that Ms P. had stolen money from him, and that he had tried to retrieve his money or have her arrested. He claimed that he was not guilty of robbery and that his arrest had been unlawful. Among many other arguments, he indicated that he was short-sighted, that his glasses had been taken from him by the police, and that his eyesight was deteriorating.
14. According to the applicant, on 1 September 1998 he had complained to the investigator about the deterioration of his eyesight. On 9 September 1998 the investigator ordered the applicant's examination at the Moscow Helmholtz Eye Disease Institute.
15. On 14 September 1998 the applicant's wife filed a complaint with the district prosecutor, claiming that the applicant had been beaten up by the police shortly after his arrest. She also requested the prosecution to return the glasses to her husband.
16. The prosecutor opened a preliminary inquiry (прокурорская проверка) into those allegations. On 16 October 1998 the prosecutor informed the applicant's wife that he had decided not to pursue the case.
17. On an unspecified date the applicant complained about the deterioration of his eyesight to the investigator, who ordered the applicant's examination by an oculist.
18. On 25 November 1998 the applicant underwent a medical examination at an eye hospital. The doctors detected a reduction of his left eye's mobility as a result of a “contusion”. Further, the doctors found that the applicant's eyesight had dropped to 0.07-0.04 and that he needed glasses of 5 dioptres. However, the doctors concluded that the applicant was able to attend to himself, orient himself and move around indoors.
19. On 1 December 1998 the applicant's lawyer lodged a formal request with the investigator in charge of the applicant's case seeking to have the glasses returned to the applicant.
20. On 2 December 1998 the investigator returned the glasses to the applicant. According to him, the glasses were found in the safe box of one of the policemen of the Pechatniki District Police Department who had dealt with the applicant's case.
21. On 3 December 1998 the pre-trial investigation was completed and the case file and the bill of indictment were filed with the Moscow Lyublinskiy District Court for examination on the merits.
22. On 25 December 1998 the District Court remitted the case file to the prosecutor, stating that the applicant had not had enough time to read the case file because his glasses had been taken away and returned only on 2 December 1998. The prosecution authorities were ordered to put the case file at the applicant's disposal anew in order to enable him to prepare his defence properly.
23. In December 1998 the prosecutor re-opened the inquiry into the applicant's allegations of ill-treatment. She questioned witnesses to the applicant's apprehension. Further, she requested the State bureau of forensic expertise to establish whether the impairment of the applicant's health could have been provoked by the alleged beatings.
24. On an unspecified date in January 1999 the investigator in charge of the case provided the applicant with new glasses instead of his old ones. Some time afterwards the case file with the bill of indictment was re-submitted to the court by the prosecution.
25. On 5 April 1999 the forensic expert drew up a report, stating that no evidence of beatings was established, that the applicant had suffered from myopia since 1989 and that the impairment of the applicant's eyesight could have been explained by his chronic myopia.
26. On 15 April 1999 the prosecutor closed the inquiry for lack of evidence of a crime. The investigator concluded that the bruises had been received by the applicant in the fight with the neighbours of Ms P., and that his eye problems were not related to the events of 3 July 1998. The applicant's wife challenged that decision. On 31 July 2000 she was informed that following an additional inquiry the prosecutor had decided not to pursue the investigation.
27. The applicant raised the issue of ill-treatment during the court proceedings against him. He challenged the admissibility of his initial confessions, claiming that they had been extracted by force. The applicant's defence counsel requested a new medical expert report in order to determine whether the injuries sustained by the applicant could have been caused by beatings. The District Court dismissed that motion on the ground that such an examination had already been carried out.
28. On 15 June 1999 the District Court found the applicant guilty of one count of armed robbery, one count of illegal possession of firearms and several counts of fraud and sentenced him to nine years' imprisonment. On 3 November 1999 the Moscow City Court dismissed an appeal by the applicant and upheld the lower court decision of 15 June 1999. The City Court confirmed the conclusions of the first-instance court and held that no evidence of ill-treatment had been discovered.
VIOLATED_ARTICLES: 3


ITEMID: 001-69774
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF PEMBE AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Not necessary to examine Art. 6-1;Pecuniary damage - financial awards;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
TEXT: 4. The applicants were born in 1945, 1935, 1948 and 1938 respectively and live in İskenderun and Belen respectively.
5. In 1993 the applicants' plots of land in İskenderun were expropriated by the General Directorate of National Roads and Highways. A committee of experts assessed the value of these lands and the determined amounts were paid to them when the expropriation took place.
6. On 20 August, 10 October and 21 November 1996 respectively, the applicants filed separate actions for compensation with the İskenderun Civil Court of First Instance.
7. On 19 September 1997 the first-instance court ordered the administration to pay Mıstık Ateş 41,410,845,000 Turkish liras (TRL) plus interest at the statutory rate, running from 7 August 1996, the date on which the ownership of the property was transferred to the National Water Board.
8. On 25 September 1997 the first-instance court ordered the administration to pay Gülizar Pembe TRL 6,467,500,000 plus interest at the statutory rate, running from 11 September 1996, the date on which the ownership of the property was transferred to the National Water Board.
9. On the same day, the first-instance court ordered the administration to pay Yüksel Bozkaya TRL 80,274,368,000 plus interest at the statutory rate, running from 23 October 1996, the date on which the ownership of the property was transferred to the National Water Board.
10. On 7 October 1997 the first-instance court ordered the administration to pay İsmail Karapınar TRL 13,075,000,000 plus interest at the statutory rate, running from 11 September 1996, the date on which the ownership of the property was transferred to the National Water Board.
11. The Court of Cassation upheld the above-mentioned judgments of the İskenderun First Instance Court on 11 May, 20 May and 25 May 1998 respectively.
12. On 8 April, 13 April, 12 May and 4 June 1999 respectively, the administration paid the applicants the amounts due together with interest.
13. The relevant domestic law and practice are outlined in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, §§ 17-25), and Akkuş v. Turkey judgment of 9 July 1997 (Reports 1997IV, §§ 13-16).


ITEMID: 001-61344
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF AĆIMOVIĆ v. CROATIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 8. The applicant was born in 1927 and lives in Zagreb.
9. From 1 August 1992 until 31 August 1995 the Croatian army used the applicant's cottage in Gospić, Croatia, for military purposes. After the members of the army had left, the applicant found that the house had been wrecked and his possessions removed.
10. On 20 March 1996 the applicant instituted civil proceedings for damages against the Republic of Croatia with the Zagreb Municipal Court (Općinski sud).
11. At the preliminary hearing on 18 November 1997 the applicant lodged an application to be exempted from payment of the court fees. The court heard the applicant, who stated that he lived with his daughter, son-in-law and grandchild in a flat in Zagreb which he owned. He also stated that he owned a small cottage and that his pension amounted to 1,624 kunas (HRK) per month. The court rejected the applicant's application for exemption from payment of the court fees and ordered him to pay the amount of HRK 6,780 within sixty days.
12. On 21 November 1997 the applicant appealed against the above decision to the Zagreb County Court (Županijski sud). He submitted a written copy of the appeal to the Zagreb Municipal Court. In the appeal he stated that his pension was his only income and that he had to support his daughter. Furthermore, his possessions were of no great value since his cottage had been wrecked. By paying the fees imposed, he would have jeopardised his own means of subsistence and those of the persons whom he supported.
13. However, the Zagreb Municipal Court did not forward the appeal to the Zagreb County Court, as the appellate court, because there was no written court decision on the applicant's application to be exempted from the court fees, which was a prerequisite for an appeal. On 31 December 1998 the statutory limitation period for non-payment of court fees expired and the issue thus became irrelevant.
14. On 6 November 1999 Parliament introduced a change to the Civil Obligations Act to the effect that all proceedings concerning claims in respect of damage resulting from acts carried out by members of the Croatian army and police in the performance of their duties during the Homeland War in Croatia were to be stayed.
15. On 28 November 2000 the proceedings were stayed.
16. In the meantime, on 24 August 2000, the applicant filed a constitutional complaint challenging the constitutionality of the above legislation. The Constitutional Court has not yet adopted any decision on that complaint.
17. The applicant also filed a constitutional complaint about the length of the proceedings.
18. On 18 December 2000 the Constitutional Court dismissed the latter complaint, finding that the applicant's right to have his civil claim decided within a reasonable time had not been violated as the courts had not been in a position to proceed with his case on account of the changes in legislation.
19. On 14 July 2003 Parliament passed new legislation concerning liability for damage resulting from acts carried out by members of the Croatian army and police in the performance of their duties during the Homeland War in Croatia.
20. Section 184 (a) of the 1999 Civil Obligations (Amendment) Act (Zakon o dopunama Zakona o obveznim odnosima, Official Gazette no. 112/1999) provided that all proceedings instituted against the Republic of Croatia in respect of damage caused by members of the Croatian army and police in the performance of their duties during the Homeland War in Croatia from 17 August 1990 to 30 June 1996 were to be stayed.
21. The Act also imposed an obligation on the government to submit to Parliament special legislation regulating liability for such damage within six months at the latest from the Act's entry into force.
22. The Act on the liability of the Republic of Croatia for damage caused by members of the Croatian army and police in the performance of their duties during the Homeland War (Zakon o odgovornosti Republike Hrvatske za štetu uzrokovanu od pripadnika hrvatskih oružanih i redarstvenih snaga tijekom Domovinskog rata, Official Gazette, no. 117/2003 – “the Liability Act”) now regulates the circumstances in which the Republic of Croatia is liable for damage caused by members of the army and the police during the Homeland War.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-127807
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF LOBAS v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)
JUDGES: Aleš Pejchal;André Potocki;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens;Stanislav Shevchuk
TEXT: 6. The applicant was born in 1964 and is currently serving a prison sentence in Sokal Correctional Colony.
7. On 21 December 2002 three people were murdered in the village of Rosava in Kyiv Region (oblast).
8. According to the applicant, on 29 December 2002 he was arrested by the police on suspicion of having committed the murders. As he denied his responsibility for the murders during his questioning at the police station, ten police officers, including officer S., tortured him with the aim of forcing him to confess to having committed the crimes. In his application to the Court the applicant initially stated that his ill-treatment had included beatings, the administration of electric shocks, hanging over a horizontal crowbar while handcuffed with his head pointing downwards (the applicant called this ill-treatment “lom” (лом)) and suffocation using a gas mask. In his observations dated 7 February 2012, prepared with the assistance of his representative, the applicant stated that the police officers had suffocated him using a gas mask which had not left any visible traces on his body or face and thus during his medical examination on 30 December 2002 no injuries had been noted (see paragraph 19 below). As a result of his iltreatment, the applicant had lost consciousness several times and had eventually confessed to having committed the crimes. In particular, the applicant signed a confession which he claimed had been written by his wife and the investigator.
9. Subsequently, the police officers explained to the applicant how the murders had been committed. Under threat of torture the applicant repeated that version of the events during a crime scene reconstruction on 30 December 2002 which was recorded on video.
10. Some time later the applicant was questioned by the investigator. During the questioning session the applicant was given alcohol to drink and was forced to sign verbatim records which he did not read.
11. The applicant was not assisted by a lawyer during the crime scene reconstruction and the questioning session.
12. After questioning the applicant was taken to Myronivka police temporary detention centre (“the ITT”).
13. During his detention in the ITT from 30 December to 2 January 2002 the applicant was severely beaten up by unspecified police officers. They also administered electric shocks to him, suffocated him using a gas mask and subjected him to “lom” in order to force him to sign a number of other documents prepared by the police. As a result of the ill-treatment, the applicant suffered an injury to his arm which was discovered about seven months later (see paragraph 39 below).
14. The applicant argued that the police officers had had no qualms about torturing him, as they had already obtained a medical certificate stating that no injuries had been discovered on the applicant’s body. The applicant had not been medically examined in the ITT.
15. The applicant stated that during his detention in the ITT his complaints of ill-treatment and of the use of unlawful methods of investigating the case had been blocked by the investigator and the administration of the ITT, and that he had only been given an opportunity to raise those complaints at trial.
16. In support of his complaints of torture, the applicant submitted a letter which he claimed had been written by his father on 20 December 2007, stating that on 10 March 2003 his father had visited him in the ITT and had noted that he had suffered multiple injuries to his face and arms and that his arms had not been “functioning”. According to that letter, the applicant had informed his father that he had been tortured by the police.
17. The applicant also submitted a letter which he stated had been written on 11 March 2008 by a person who had seen him at the pre-trial detention centre in Kyiv (“the SIZO”) in September 2003. In the letter it was stated that the applicant had had an open wound of about 5 cm on his left arm and had said that he had been tortured by the police.
18. According to the Government, on 30 December 2002 the applicant confessed in writing to the police that he had murdered three people and indicated that the murder weapons were in his rented house. In the course of a search subsequently conducted in that house on the same day, he voluntarily handed over to police officers a knife, an axe and a grey jacket, which he said he had worn during the murders. The axe and the jacket had had blood stains on them and the jacket had smelt of smoke. Subsequently, the applicant expressed the wish to be questioned in the presence of a lawyer. Accordingly, the investigator appointed Mr K. to act as the applicant’s lawyer. During the applicant’s questioning in the lawyer’s presence, the applicant confirmed his confession.
19. Some time later on 30 December 2002 the applicant underwent a medical examination, which did not reveal any injuries on his body. The Government submitted that the applicant had not been tortured by the police.
20. Criminal proceedings against the applicant were instituted on 30 December 2002. On the same date the investigator ordered the applicant’s detention pursuant to Article 115 § 3 of the Code of Criminal Procedure of 1960.
21. Mr K., who had been appointed to represent the applicant earlier that day, continued assisting the applicant until the completion of the investigation. During the trial the applicant was represented by a different lawyer. According to the applicant, the lawyers did not visit him during his detention in the ITT and then, from September 2003 onwards, in the SIZO.
22. On 2 January 2003 the Myronivka Court remanded the applicant in custody in view of the pending criminal investigation against him. The applicant remained in detention for the entire duration of the criminal proceedings against him.
23. During the court hearing on 2 January 2003 the applicant confirmed that he had committed the murders.
24. On an unspecified date in January 2003 the applicant met with a prosecutor, whom the applicant claimed he told that he had not committed the crimes. The applicant did not complain to the prosecutor of ill-treatment by the police. As the applicant explained during the trial, he had not “wished” to complain to the prosecutor.
25. On several occasions in December 2002 and January 2003 police officers and the investigator questioned the applicant’s wife concerning the case. During questioning she stated that she had been with the applicant at the scene of the crimes on 21 and 22 December 2002 and had witnessed part of the events, including a fight between the applicant and the victims. During the trial the applicant’s wife stated that the victims had been murdered by the applicant in her presence because she had had an affair with one of the victims, a fact of which the applicant had become aware shortly before the murders.
26. On 9 January 2003 the investigator carried out a confrontation between the applicant and his wife. According to the verbatim record of the confrontation, the applicant confirmed his wife’s statements concerning his responsibility for the murders and also confirmed his confession. According to the applicant, the investigator forced him to sign the verbatim record and his lawyer was not present during the confrontation.
27. During questioning later on 9 January 2003 the applicant retracted his confession.
28. On 1 July 2003 the applicant was informed of the completion of the investigation. On the same date the prosecutors drew up an indictment, accusing the applicant of murdering three people.
29. On 11 July 2003 the case was referred to the Kyiv Region Court of Appeal for trial.
30. On 17 July 2003 the court held a hearing in which the applicant and his lawyer took part.
31. During the hearing the applicant denied having committed the murders.
32. In particular, the applicant submitted that between 21 and 22 December 2002 he had stayed in his rented house, which was in the vicinity of where the murders had been committed, as he had had flu. On 23 December 2002 he had gone to work in Kyiv. However, he had decided to return home on the same day, having lied to his colleagues that his aunt had died. He had lied “in order to return home”. At about 6 p.m. on 29 December 2002, he had been taken from home to the police station together with his wife. At the police station his wife had been questioned separately from him, though he had heard that she had been beaten up and intimidated by police officers. He had been taken to a gym in the police station where ten police officers, including officer S., whom he knew personally, “had hanged [him], punched [him] in the torso and put a gas mask [on his face]”. Police officers and the investigator had forced him to sign a confession and they had explained to him how the murder had been committed. He had then been taken to the crime scene, where he had repeated the version of the events he had been told by the police officers. The police officers and the investigator had also forced him to sign fabricated verbatim records containing self-incriminating statements. He had complained about the ill-treatment to his lawyer and the investigator, but to no avail. According to the applicant, the investigator dealing with the case had been personally biased as he had had a dispute with the applicant in January 2002.
33. The applicant also argued that his confession had been obtained without a lawyer being present and that the search in his rented house, during which the physical evidence had been found, had also been carried out without a lawyer having been present.
34. When replying to questions put to him by his lawyer, the applicant stated that he had “broken” his arms when he had served in the Army in 1983-1985.
35. During hearings on 18 and 21 July 2003 the applicant and his lawyer asked the court to call a number of witnesses, the applicant’s colleagues from work, who had been questioned at the pre-trial stage of the proceedings. The applicant argued that they could confirm that he had bought the jacket seized in his rented house on 23 December 2002, namely after the date on which the murders had been committed.
36. The court decided to summon those witnesses and ordered the police to bring them to court. The court also ordered the prosecutors to carry out an inquiry into the applicant’s allegations of police torture and bias on the part of the investigator.
37. During a hearing on 28 July 2003 the court noted that, according to the police, the witnesses’ whereabouts were unknown and that it had been impossible to bring them to the hearing (the witnesses were absent from their registered places of residence, as they had left to work elsewhere – two people having gone to Chernobyl, Ukraine, and one to Moscow, Russia). Hence, the court decided to review the witnesses’ statements obtained at the pre-trial stage instead of hearing them in person. Neither the applicant nor his lawyer objected to this or challenged the trustworthiness of the witnesses’ statements, except that the applicant claimed that, contrary to the statements of two of the witnesses, when leaving his place of work on 23 December 2002 he had taken a jacket and not his work tools with him.
38. During the hearing on 28 July 2003 the court questioned the investigator, the lawyer who had represented the applicant during the investigation, and the applicant concerning the applicant’s complaints of illtreatment by the police and the investigator’s bias. The investigator denied the alleged ill-treatment or that he had been personally biased towards the applicant; the lawyer and the applicant confirmed that they had not raised such allegations before the authorities at the pre-trial stage. The lawyer also stated that the applicant had not complained to him of illtreatment.
39. On the same date the prosecutors issued a decision refusing to institute a criminal investigation into the applicant’s complaints. The prosecutors found no fault on the part of the police or the investigator. In particular, they noted that the applicant had not complained of police torture during the investigation; that, according to police officer S., although the applicant had initially denied responsibility for the murders, after having been confronted with witness statements to the contrary the applicant had voluntarily agreed to confess; and that police officers from the Myronivka police station had stated that the applicant had not been ill-treated. The prosecutors also noted that, according to an X-ray examination which the applicant had undergone earlier on 28 July 2003, his lower left wrist had become deformed as a result of a fracture of the left arm not healing properly. According to the prosecutors, the applicant had informed them that he had injured both of his arms during his service in the Army.
40. As to the applicant’s allegation of bias on the part of the investigator, the prosecutors noted that, according to the investigator, the applicant had been his neighbour and the investigator had not had a dispute with the applicant. The prosecutors further noted that no objection had been raised concerning the investigator’s dealing with the case during the pre-trial proceedings.
41. During a hearing on 29 July 2003 the court examined the prosecutors’ decision of 28 July 2003. Neither the applicant nor his lawyer raised objections against it.
42. During that hearing the applicant and his lawyer agreed that the examination of evidence could be completed. At that time they did not suggest that it was incomplete because of defence witnesses not having been questioned in court.
43. On 5 August 2003 the Kyiv Region Court of Appeal found the applicant guilty of aggravated murder and wilful destruction of property and sentenced him to life imprisonment. In particular, the court found that on 21 December 2002 the applicant had murdered three people with the knife and the axe in the presence of his wife at the house of one of the victims. The applicant had committed the murder because he had been jealous of the relationship between one of the victims and his wife. On 22 December 2002 the applicant and his wife had returned to the scene of the crime and the applicant had poured gasoline which he had taken from his rented house over the bodies and had set them on fire.
44. The applicant’s conviction was mainly based on the statements of his wife made during the court hearings. The court noted that the inconsistencies in her statements during the investigation and trial could be explained by the fact that she had been concerned for the applicant’s future because he was the father of their child. The court also noted that the applicant’s wife had denied having been forced to make those statements and that the applicant’s submissions to the contrary were baseless. Her version of events had been partly confirmed by several forensic examinations concerning the way in which the victims had been murdered.
45. The court also relied on the self-incriminating statements obtained from the applicant during the investigation, having noted that the reliability of the verbatim records of the applicant’s questioning at the pre-trial stage had been confirmed by the investigator and the lawyer who had represented the applicant at that stage, that the material evidence had been collected in accordance with procedure and that the crime scene reconstruction had been carried out in the presence of the applicant’s lawyer and two attesting witnesses. As the applicant had been arrested after the search, it had not been unlawful for him to have not been assisted by a lawyer during the search.
46. The court rejected as groundless the applicant’s objections concerning the physical evidence, including the knife, his shoes and jacket – which had been stained by blood that, according to experts, could have belonged to the victims. As regards the applicant’s statement that he had brought the jacket home from work on 23 December 2002, the court noted that this had been disproved by the testimony of the applicant’s wife and also by the statements of the applicant’s work colleagues, which had been examined during the trial.
47. As to the applicant’s complaints of police torture and the investigator’s bias, the court noted that neither the applicant nor his lawyer had raised such complaints at the pre-trial stage and held that they had been disproved by the results of the prosecutors’ inquiry.
48. The court also noted that during the proceedings the applicant had made inconsistent and contradictory statements concerning the events.
49. The court further relied on the statements of a number of other witnesses questioned during the trial, including the owner of the applicant’s rented house who had stated that a gasoline can had been missing from the house and the father of one of the victims, who had stated that his late son had had an affair with the applicant’s wife.
50. The court rejected as lacking credibility the applicant’s daughter’s statements to the effect that the applicant had not left the house between 21 and 22 December 2002, having noted that during the trial she had acknowledged having difficulties recollecting the events of December 2002 clearly.
51. On 20 August 2003 the applicant lodged an appeal in cassation with the Supreme Court. Subsequently, the applicant amended it on several occasions. In his appeal the applicant focused his arguments on his disagreement with the factual findings of the first-instance court and stated that his wife had given false statements against him. The applicant also stated that that his colleagues could have confirmed that he had brought the jacket with him from work in Kyiv on 23 December 2002 and that his other clothes had also smelt of smoke. According to the applicant, this would have demonstrated that the blood-stained jacket should not have been used as evidence of his guilt. The applicant noted that those witnesses had not been questioned during the trial.
52. The applicant further complained that during the pre-trial proceedings he had not been allowed to choose his lawyer and that the lawyer appointed to represent him by the investigator had had a “preconceived” attitude towards his duties and had not been “interested in defending” him. The applicant stated that no lawyer had been present during the search of his rented house on 30 December 2002 and that his lawyer had not attended a number of unspecified investigative actions.
53. The applicant also complained that his self-incriminating statements made at the pre-trial stage had been obtained under torture and that he had not signed verbatim records of his questioning because his arms had been injured as a result of the “lom” ill-treatment. According to the applicant, the investigator had attached a pen to one of his arms with adhesive tape and had manipulated the arm in order to reproduce the applicant’s signatures on the documents.
54. On 27 November 2003 the Supreme Court upheld the conviction, having found, inter alia, that the applicant’s allegations of breaches of criminal procedure were unfounded.
55. A prosecutor was present at that hearing. According to the applicant, the authorities had failed to escort him to the Supreme Court, although he had asked to attend the hearing. The applicant did not provide any documents or further details in that regard.
56. On 14 March 2007 the applicant was transferred to Sokal Correctional Colony to serve the remainder of his sentence.
57. According to an undated letter from the Governor of the Sokal Correctional Colony, during his detention in the Colony the applicant had not met with his relatives, though he had received parcels and packages from his father.
58. After the applicant lodged his application with the Court, he was invited to submit copies of various documents from the domestic case file, including a copy of his appeal in cassation and copies of documents pertinent to his allegations of ill-treatment. According to the applicant, he made several requests for such documents. The requests were refused by the Supreme Court as having no legal basis.
VIOLATED_ARTICLES: 34