ITEMID: 001-102258
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KILIÇGEDİK AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-3
JUDGES: Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
TEXT: 4. Halkın Demokrasi Partisi (People's Democracy Party, hereafter referred to as “HADEP”) was a political party which was established on 11 May 1994. It opened branches in 47 cities and in hundreds of districts. The applicants were members of HADEP and they held executive positions within the party.
5. On 29 January 1999 the chief prosecutor at the Court of Cassation brought proceedings before the Constitutional Court and demanded that HADEP be dissolved. The prosecutor argued that HADEP had become a “centre of illegal activities against the integrity of Turkey”. In support of his allegations he referred to a number of pending criminal proceedings against HADEP members, including the applicants.
6. In its decision of 13 March 2003, which was published in the Official Gazette on 19 July 2003 and thus became final, the Constitutional Court dissolved HADEP. The Constitutional Court based its decision on sections 68 and 69 of the Constitution and sections 101 and 103 of Law no. 2820 on Political Parties. In arriving at its conclusion, the Constitutional Court took account of the actions and statements of certain leaders and members of HADEP, including the applicants. As an ancillary measure under section 69 § 9 of the Constitution and section 95 of Law no. 2820, the Constitutional Court banned the applicants and 18 other HADEP members and leaders from becoming founder members, ordinary members, leaders or auditors of any other political party for a period of five years.
7. Details of the criminal proceedings which had been brought against the applicants and which were referred to by the Constitutional Court in its decision are detailed below. In the opinion of the Constitutional Court, the actions of the applicants which are set out below, as well as the actions of the remaining 18 HADEP members and leaders, proved that a link existed between the applicants, HADEP and the PKK.
8. These applicants were executive members of HADEP's Malatya branch. In 1998 criminal proceedings were brought against them for lending assistance to an illegal organisation, namely the PKK, contrary to Article 169 of the Criminal Code then in force. The allegations against them included allowing hunger strikers to use HADEP premises in their protest against the arrest of Abdullah Öcalan in Italy. Banners had also been displayed on HADEP's premises expressing discomfort with the arrest, as well as denigrating the Turkish state and actions of the Turkish security forces. People present on the premises had also been allowed to watch PKK propaganda broadcasts on Med TV. Various pro-PKK newspapers and journals, as well as photographs of various PKK members who had been killed in operations, were also recovered from the premises.
9. These applicants were subsequently tried by the Malatya State Security Court and were found guilty on 16 December 1999. They were sentenced to three years and nine months' imprisonment and their conviction was upheld by the Court of Cassation on 4 December 2000.
10. The execution of the applicants' prison sentences was suspended following the entry into force of Law no. 4616 on Conditional Release, Stay of Proceedings and Suspension of Punishment.
11. These applicants were executive members of HADEP's Adıyaman branch. In 1999 criminal proceedings were brought against them for lending assistance to the PKK, contrary to Article 169 of the Criminal Code then in force. The allegations against them included allowing hunger strikers to use HADEP premises in their protest against the arrest of Abdullah Öcalan in Italy and keeping a PKK flag on the same premises.
12. These applicants were subsequently tried by the Malatya State Security Court and were found guilty on 6 May 1999. They were sentenced to three years and nine months' imprisonment and their conviction was upheld by the Court of Cassation on 15 May 2000.
13. The execution of the applicants' prison sentences was suspended following the entry into force of Law no. 4616.
14. On 24 February 2000 the Ankara State Security Court found Mr Bülbül guilty of lending assistance to the PKK, contrary to Article 169 of the Criminal Code then in force, in a speech he had made at a HADEP congress. He was sentenced to three years and nine months' imprisonment. While the proceedings were pending before the Court of Cassation, Law no. 4616 entered into force. The Ankara State Security Court accordingly suspended the criminal proceedings against him on 2 May 2001.
15. In 1998 another set of criminal proceedings was brought against the applicant on account of a document entitled “The Kurds who Suffered Historical Injustices, the Kurdish Problem and Recommendations for its Solution”, which had been found in his house. The proceedings were suspended following the entry into force of Law no. 4616.
16. Mr Okutan was chairman of the Ankara branch of HADEP until 1997. On 4 June 1997 the Ankara State Security Court found him guilty of lending assistance to the PKK, contrary to Article 169 of the Criminal Code then in force, in a speech he had made at a HADEP congress in 1996. He was sentenced to four years and six months' imprisonment. While they were pending against him the proceedings were suspended following the entry into force of Law no. 4616.
17. Mr Gözütok was a member of the HADEP party council. A number of documents and books prepared by PKK members having been found in his law firm, on 4 June 1997 the Ankara State Security Court found him guilty of lending assistance to the PKK, contrary to Article 169 of the Criminal Code then in force, and sentenced him to four years and six months' imprisonment. The proceedings were suspended before the Court of Cassation following the entry into force of Law no. 4616.
18. Mr Odabaşı was the chairman of the Kırşehir branch of HADEP. On 1 December 1997 the Ankara State Security Court convicted him of “incitement to hatred and hostility by making a distinction based on race and regional identity”, in breach of Article 312 of the Criminal Code in force at the material time.
19. Mr Ateş was the chairman of the youth commission of HADEP. On 24 December 1998 the İzmir State Security Court found him guilty on two counts of spreading separatist propaganda, in breach of section 8 of the Prevention of Terrorism Act, in two speeches he had given earlier that year. In his speeches the applicant had advocated recognition of the Kurdish identity, and argued that the Kurds in Turkey were being suppressed by those ruling the country. He had also stated that the ceasefire declared by Abdullah Öcalan had raised the peoples' hopes. He was sentenced to one year and eight months' imprisonment and his conviction was upheld by the Court of Cassation on 5 March 1999. While the applicant was serving his prison sentence, Law no. 4454 entered into force and the execution of the remainder of his sentence was suspended. On 15 July 2003 section 8 of the Prevention of Terrorism Act was repealed.
20. Mr Yücedağ was the chairman of the youth council of HADEP in Malatya. On 16 December 1999 the Malatya State Security Court convicted him of lending assistance to the PKK, contrary to Article 169 of the Criminal Code then in force, and sentenced him to three years and nine months' imprisonment. The court found that the applicant had committed this offence by having organised seminars for university students, during which he had claimed that there were Kurdish people in Turkey who were experiencing a number of problems.
21. His conviction was upheld by the Court of Cassation on 4 December 2000 but the execution of the sentence was suspended following the entry into force of Law no. 4616.
22. Mr Atalay was the secretary of the Seyhan branch of HADEP. On 16 December 1998 the Adana State Security Court convicted him of incitement to hatred and hostility, contrary to Article 312 of the Criminal Code in force at the time. He was sentenced to 10 months' imprisonment. His conviction was based on a speech which he had made during a party congress. According to the Adana State Security Court, during his speech Mr Atalay had said things such as that the Kurds and Turks were different people, that the Republic of Turkey was at war with the Kurdish people and that the Kurds who were killed during that war were martyrs.
23. Mr Özata was the deputy leader of HADEP. On 17 September 1998 he was found guilty by the Ankara State Security Court of spreading separatist propaganda, contrary to Article 312 of the Criminal Code then in force. According to the Ankara State Security Court, in an article he had written in 1997 the applicant had argued that the Kurds and Turks were two different nations and that the fight the Turkish armed forces had been waging against the PKK was a “dirty war and murder”. He was sentenced to two years' imprisonment and his conviction was subsequently upheld by the Court of Cassation. On 3 September 1999 execution of the applicant's prison sentence was suspended in accordance with Law no. 4454 concerning the suspension of pending cases and penalties in media-related offences.
24. On 21 March 1997 Mr Yardımcıel made a speech during Newruz celebrations in his capacity as chairman of the Kars branch of HADEP. In his speech the applicant stated the following:
“We, the Kurdish people, should join forces with the revolutionaries, workers and patriots... The Kurds like the colour red; because red is the colour of the blood they have been shedding for years for their freedom. The Kurds like the colour green; because it is the colour of getting ready for liberation. The Kurds like the colour yellow; because it is the colour of getting ready for everything”.
25. Criminal proceedings were brought against him for spreading separatist propaganda in breach of section 8 of the Prevention of Terrorism Act. On 4 June 1999 he was found guilty as charged and sentenced to ten months' imprisonment. He was also ordered to pay a fine. His conviction was upheld by the Court of Cassation on 7 October 1999.
26. On 3 September 1999 Law no. 4454 entered into force and the execution of the judgment against the applicant was suspended. On 15 July 2003 section 8 of the Prevention of Terrorism Act was repealed.
27. Article 169 of the Criminal Code in force at the relevant time provided as follows:
“Any person who, knowing that such an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons and ammunition or clothes or facilitates its operations in any manner whatsoever, shall be sentenced to not less than three and not more than five years' imprisonment ...”
28. Article 312 of the Criminal Code in force at the relevant time provided as follows:
“Non-public incitement to commit an offence
A person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall, on conviction, be liable to between six months' and two years' imprisonment and a heavy fine of between six thousand and thirty thousand Turkish liras.
A person who incites people to hatred or hostility on the basis of a distinction between social classes, races, religions, denominations or regions, shall, on conviction, be liable to between one and three years' imprisonment and a fine of between nine thousand and thirty-six thousand liras. If this incitement endangers public safety, the sentence shall be increased by one-third to one-half.
The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in Article 311 § 2.”
29. Section 8 of the Prevention of Terrorism Act provided, in so far as relevant, as follows:
“Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited. Any person who engages in such an activity shall be sentenced to not less than one and not more than three years' imprisonment and a fine of between one hundred million and three hundred million Turkish liras. The penalty imposed on a reoffender may not be commuted to a fine.”
30. Article 69 § 9 of the Constitution provides as follows:
“Founding members or ordinary members whose actions or declarations lead to the permanent dissolution of a political party shall be disqualified from acting as founders, ordinary members, administrators or financial controllers of another political party for a period of five years starting from the date of publication in the Official Gazette of the reasoned decision of the Constitutional Court.”
31. Section 95 of Law no. 2820 on Political Parties provides as follows:
“Founding members or ordinary members whose actions or declarations lead to the dissolution of a political party shall be disqualified from acting as founders, ordinary members, administrators or financial controllers of another political party for a period of five years starting from the date of publication in the Official Gazette of the reasoned decision of the Constitutional Court...”
32. Under Law no. 4616, execution of sentences in respect of offences committed before 23 April 1999 could be suspended if no crime of the same or a more serious kind was committed by the offender within a five-year period.


ITEMID: 001-72080
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: ALAKOSKI v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Ms Arja Alakoski, is a Finnish national, who was born in 1942 and lives in Loppi. She was initially represented before the Court by Mr Hannu Tuomainen, and subsequently by Ms Leena Kenttämies, both lawyers practising in Riihimäki. The respondent Government were represented by their Agent, Mr Arto Kosonen, Director in the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties and as they appear from the documents, may be summarised as follows.
In September 1996 the applicant fell down and injured her leg and ankle, sustaining four different lasting injuries. She was granted a temporary employment-based disability pension. In October 1997 she lodged a further application.
On 11 December 1997 the insurance company refused her a further pension, giving the following reasons for its decision:
“According to the Employee Pensions Act (työntekijäin eläkelaki, lag om pension för arbetstagare; 395/1961) section 4 (3) an employee is entitled to a disability pension if his or her capacity to work is reduced by at least two fifths for a minimum of one year as a result of sickness, a defect or an injury. When assessing the decrease of working capacity, attention shall be paid to the employee’s remaining capacity to pursue gainful employment through available work, which he or she can reasonably be expected to carry out. In addition, attention shall be paid to working experience, age and other comparable circumstances.
According to the information at hand on your state of health, you underwent rectifying surgery with a view to repositioning a fracture in January 1997, after which the ossification has gone well.
We consider that your state of health does not prevent you from returning to your previous work. For these reasons, you could not be considered incapable of working after your pension ceased. That being the case, your application for a continued disability pension has been rejected.”
The applicant appealed to the Pension Board (eläkelautakunta, pensionsnämnden).
In its observations of 12 February 1998 to the Pension Board the insurance company stated that it had reviewed the application and found that the applicant was entitled to a part-time employment-based disability pension from October 1997 onwards, but it requested that the application for a full pension still be rejected as the applicant’s work capacity had not decreased by three fifths. Moreover, the insurance company considered that the applicant did not need any professional rehabilitation. The observations were communicated to the applicant for comment.
In her written submissions the applicant primarily requested that she be granted a full disability pension as her incapacity to work had been reduced by three fifths for the preceding 20 months. Alternatively, she requested that such a pension be granted temporarily from 1 November 1997 until 31 December 1998. She argued that the insurance company had assessed her capacity for work as a bank clerk, although she worked as a real estate agent, which could not be considered as sedentary work. However, the insurance company had by February 1998 accepted the fact that she worked as a real estate agent.
On the strength of four medical statements the applicant pointed out that all three doctors examining her had considered her incapable for work as a real estate agent. The only doctor who considered her capable for work was the one who, without having ever examined the applicant in person, had reported on her case to the insurance company. If the Pension Board in written proceedings were to consider that she was not entitled to a full disability pension, the applicant requested that the Pension Board hear the doctors T., H. and B. treating her and the doctor who had reported on her case to the insurance company as witnesses before the District Court with a view to examining whether she was incapable to carry out her work as a real estate agent.
On 27 April 1998 the Pension Board, without hearing any witnesses, overturned the insurance company’s decision, finding that the applicant was entitled to a full disability pension in the form of a rehabilitation allowance from September 1996 until 30 June 1998 and to a part-time disability pension from 1 July 1998 onwards. The appeal was rejected as to the other claims. The Pension Board, referring to the Employee Pensions Act sections 4 (3, 6-7) and 5 b (1), gave the following reasons for the decision:
“Alakoski has been granted a rehabilitation allowance with a view to facilitating rehabilitation according to a care and rehabilitation plan. Alakoski is prevented from pursuing gainful employment due to incapacity for work. Alakoski’s capacity for work has due to sickness decreased by at least three fifths up until 30 June 1998 and thereafter by at least two fifths. When assessing the decrease of work capacity, attention has been paid to Alakoski’s remaining capacity for pursuing gainful employment through available work, which she can reasonably be expected to carry out. In addition, attention has been paid to [her] training, previous working, age and living conditions and other comparable circumstances.”
The applicant appealed to the Insurance Court (vakuutusoikeus, försäkringsdomstolen). She primarily requested a full disability pension as her incapacity to work had been reduced by three fifths. Alternatively, she requested such a pension temporarily from 1 November 1997 until 31 December 1998.
The applicant, adducing further written medical statements, again pointed out that the opinion of the three doctors treating her differed from the opinion of the doctor who had reported on her case to the insurance company, a person she had not even met. Moreover, she argued that the Pension Board gave no reasons as to why the date 30 June 1998 was decisive in its decision, although the doctors treating her had found that she was incapable for work at least until 31 December 1998. If the Insurance Court in written proceedings were to consider that she was not entitled to a full disability pension, the applicant repeated her request concerning hearing the doctors as witnesses. At this point she also proposed doctor P. as a witness. The applicant considered it important that they be heard also as to whether her capacity for work should be assessed differently as to the period prior to 30 June 1998 and as to the period thereafter.
In its observations of 22 July 1998 the insurance company maintained its earlier standpoint. They were communicated to the applicant for comment.
In its decision of 14 October 1999 the Insurance Court noted that the applicant had submitted five new written medical opinions. They had all been issued after the Pension Board’s decision. It refused the request to hear the doctors as witnesses before the District Court as manifestly unnecessary and upheld the Pensions Board’s decision. Referring to the Employee Pensions Act sections 4 (3) and 5 b (1) and the Insurance Court Act (laki vakuutusoikeudesta, lag om försäkringsdomstolen; 14/1958) section 9, the Insurance Court gave the following reasons for the decision:
“The reasons are given in the Pension Board’s decision. In addition, the Insurance Court notes that according to the submitted medical information the fracture on Alakoski’s left ankle was in May 1998 noted to have ossified. A faulty alignment remains and a degenerative arthritis has developed in the ankle joint. Alakoski has in a majority of the medical opinions been assessed as incapable of working either as a real estate agent or doing other work which places a strain on her legs. The medical opinions differ as to the duration of the incapacity. Alakoski has worked as a bank clerk with different tasks for a long period of time. Having been laid off, Alakoski took a real estate agent exam, but she did not manage to work as a real estate agent before she was injured. The Insurance Court finds that Alakoski can on the basis of the submitted information be considered to be partly able to work with tasks that correspond to her education and professional skills. Her ability to work can accordingly not be considered to have been reduced after 30 June 1998 in such a way, i.e. by three fifths, as to entitle her to a full pension under the Employee Pensions Act.”
No further appeal was possible.
Section 16 (2) of the then Constitution (Suomen hallitusmuoto, Regeringsform för Finland; 94/1919) provided that a decision must be reasoned. A new similar provision can be found in section 21 (2) of the Constitution of Finland (Suomen perustuslaki, Finlands grundlag; 731/1999).
At the relevant time chapter 24, section 15 (1064/1991) of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) provided that a judgment must be reasoned, indicating the facts and the legal argumentation on which it was based and the grounds which have led the court to hold a disputed issue established or unsubstantiated.
Section 9 of the then Insurance Court Act (laki vakuutusoikeudesta, lagen om försäkringsdomstolen; 14/1958) provided that proceedings in the Insurance Court were written. When there were exceptional reasons, the Insurance Court could however decide to hold an oral hearing. It also provided that the provisions concerning proceedings in general courts were, mutatis mutandis, applied to those before the Insurance Court.
According to the reservation made by Finland in accordance with Article 64 of the Convention, as in force at the relevant time, Finland could not guarantee a right to an oral hearing in so far as Finnish laws at the time of the events in issue did not provide such a right. This applied, inter alia, to proceedings which were held before the Insurance Court as the court of final instance, in accordance with section 9 of the Insurance Court Act (14/1958), and proceedings before the Supreme Court in accordance with chapter 30, section 20 of the Code of Judicial Procedure. Finland withdrew the reservation on 1 April 1999. The reservation was applicable to the present case.


ITEMID: 001-119044
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF SAMARTSEV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
TEXT: 5. The applicant was born in 1970. He is serving a prison sentence in detention facility no. IK-10, located in the town of Mendeleyevsk, the Republic of Tatarstan.
6. On 1 May 2005 the applicant was arrested by the police of the town of Naberezhnye Chelny on suspicion of having taken part in several robberies and murders.
7. The applicant was detained pending criminal proceedings and on 13 April 2006 the Supreme Court of the Republic of Tatarstan found the applicant guilty of two murders. The judgment was upheld on appeal by the Supreme Court of Russia on 3 October 2006.
8. The applicant alleged that on three separate occasions during the course of criminal proceedings against him police officers ill-treated him.
9. According to the applicant, in the morning of 4 May 2005 police officers B. and N. had taken him to the fourth floor of a police station and put pressure on him to confess. They had put a plastic bag on his head and punched him in the stomach and neck, preventing him from breathing. At around 10 p.m. he had been taken back to his cell.
10. The applicant also submitted that at around 7 a.m. the next morning he had passed out in an interview room as a result of those beatings and stress. On regaining consciousness, he had found a wound on his head. Later he had been provided with first aid, administered by ambulance doctors.
11. On 5 May 2005, having examined the applicant, one of the ambulance doctors made the following entry in the medical record:
“... reason for the call [of the ambulance]: epilepsy... Diagnosis [of the applicant]: following a syncope, bruising of the forehead ... measuring around 2 to 0.2 cm. The wound is not bleeding...Complaints [of the applicant]: weakness and vertigo. According to the [applicant’s] statements, he lost consciousness and during the fall, injured himself against a doorpost. He connects this to a stuffy room and three nights of insomnia ...”
12. On 10 May 2005 the applicant asked the Naberezhnye Chelny Town Prosecutor (“the prosecutor’s office”) to institute criminal proceedings in respect of the alleged ill-treatment by the police officers.
13. In response, the prosecutor’s office questioned police officers B. and N., who denied the applicant’s allegations. They referred to the interrogation records in which the applicant had made no complaints of illtreatment.
14. On 20 May 2005 the prosecutor’s office dismissed the applicant’s request, having found as follows:
“... The applicant’s allegations are not confirmed by the results of the investigation carried out by the prosecutor’s office ... On 5 May 2005 [the applicant] went to the police voluntarily and submitted statements of confession... During his interrogation he confessed to the crime in the presence of his defence counsel. He confirmed these statements during a reconstruction performed at the crime scene ... On 19 May 2005 during a cross-examination with witness Z., [the applicant] again confirmed his statements of confession in the presence of his defence counsel. No complaints were made by him [at that time].
Police officers ... B. and N. were also questioned in the context of the investigation carried out by the prosecutor’s office. They submitted that during the interview with [the applicant] they had not put pressure on him and had not applied force against him. [The applicant] had confessed to the crime voluntarily. Moreover, in accordance with the interrogation records, [the applicant] had no complaints against the police officers or the prosecutor’s office ...”
15. In June and August 2005 the applicant resubmitted his complaint to the prosecutor’s office. He requested the questioning of five of his cellmates, who he said could confirm his submissions.
16. By decisions of 20 June, 29 July and 4 August 2005 the applicant’s complaints were dismissed. In all three decisions the prosecutor’s office decided not to carry out further investigations, holding that the claims were substantially the same as those which had been previously examined.
17. The decision of 20 June 2005 stated that:
“... During the check the arguments of the applicant about the use of physical violence by police officers remain without objective confirmation. In such circumstances the complaint ... cannot be accepted.”
18. The decision of 29 July 2005 stated that:
“... An earlier complaint of this kind about the actions of policemen had been examined by the prosecutor’s office of the town of Naberezhnye Chelny. Upon its results, the decision of 20 May 2005 refusing to institute criminal proceedings is taken. The allegations of the [applicant] remained without substance ...”
19. The applicant also raised the complaint about the ill-treatment by police officers before the trial court in his criminal case.
20. By a first instance judgment of 13 April 2006 the Supreme Court of the Republic of Tatarstan found the applicant guilty of having murdered two persons. In respect of his complaint of ill-treatment on 4-5 May 2005, the court noted, among other things, that:
“... during the forensic examination of 20 May 2005 [the applicant] did not have any bodily injuries. This expert examination is carried on the next day after the investigation action with the participation of [the applicant] during which he confessed to his involvement in the murder ... and confirmed his earlier confessions ...
The medical certificates from the detention ward submitted to the court on request from the defence about the detention of [the applicant] and the fact of a call for the emergency doctors does not confirm that any physical violence has been applied to him. [The applicant] submitted in this connection that ... these injuries he received as a result of the fall in his cell in the state of the loss of consciousness ...
In such circumstances the court considers the complaint of [the applicant] in the trial hearing about the use of violence by policemen ... as a way to try to avoid responsibility for the acts committed [by him] ...”
21. The judgment was upheld on appeal by the Supreme Court of Russia on 3 October 2006.
22. In the meantime, on 9 September 2006, the applicant contested the decision of 20 May 2005 before the Naberezhnye Chelny Town Court. He stated that the investigation in respect of his complaint had been seriously deficient.
23. On 5 February 2007 the Town Court disallowed his complaint concerning ill-treatment and the related investigation. It held that the applicant’s submissions had already been examined in the context of the criminal case against him.
24. On 23 March 2007 the Supreme Court of the Republic of Tatarstan upheld that decision on appeal.
25. The applicant also tried to challenge the decision of 29 July 2005 (see paragraphs 16 and 18) in court, but to no avail. The Supreme Court of the Republic of Tatarstan dismissed the applicant’s complaint by a final decision of 17 August 2007. The court noted that:
“... The complaint of [the applicant] about the use of inadmissible methods of investigation has already been examined by the courts in two instances... [the relevant decisions being properly reasoned]. In such circumstances, [the court] does not see any grounds for [accepting the applicant’s appeal] ...”
26. The applicant submits that on 28 June 2005 police officers ill-treated him, forcing to acknowledge his involvement in a different criminal episode. He was allegedly hit in the neck and on the head, and later put in a metal cage, where he spent the whole night.
27. The applicant submitted that the next morning he was handcuffed in a remote room of the police station, a plastic bag was placed over his head and he was beaten up again. After being punched in the perineum, he fell on the floor and cut his wrists with a razor. He was then provided with medical aid by doctor G.
28. On 30 June 2005 the applicant was examined by a doctor, who drew up report no. 2647:
“... According to [the applicant’s] statements, he has been detained from 1 May 2005. [Allegedly] the police officers did not beat him up. On 29 June 2005 he slashed his wrists with a razor. The wounds were bandaged in a detention facility.
Objectively: on the inside of the lower third of the right forearm and around the wrist there are [six] linear transversal wounds with smooth lips and pointed ends, the base of which are covered with dried blood, measuring respectively 3, 3, 3, 4, 2 and 0.5 cm. On the inside of the lower third of the left forearm there is a linear transversal wound with smooth lips, pointed left end and “M”-shaped right end, the base of which is covered with dried blood. The depth of the wound is 0.3 cm. On the upper abdomen there are [four] parallel linear transversal scratches, covered with a brown crust at skin level, measuring respectively 6, 4, 4 and 4 cm. On the forehead there are transversal scratches, covered with an emergent brown crust with disrupted ends and desquamation. The scratches on the left side of the forehead measure respectively 2 and 5 cm. The scratches on the right side of the forehead measure respectively 4 and 2 cm. There is a similar scratch on the cheekbone measuring 7 cm. There is an oval transversal violet bruise on the right side of the tip of the nose. The bruise measures 1 to 0.5 cm. It has blurred borders. On the lower third of the front-left shoulder there is a round violet bruise with blurred borders measuring 6 by 6 cm. On the front right shoulder there is an area of dark-red focal haemorrhage measuring 5 by 5 cm.
Conclusions: ...the wounds to the right wrist and left forearm were inflicted by a sharp object from one to three days before the expert examination. The scratches on the stomach were inflicted by being hit with blunt hard objects with a limited rough surface from two to three days before the expert examination. The scratches on the head were inflicted by being hit with blunt hard objects with a limited damagecausing surface from five to seven days before the expert examination. The bruises on the head, left shoulder, and right shoulder were inflicted by being hit with blunt hard objects with a limited damage-causing surface from one to three days before the expert examination ...”
29. After the above-mentioned events, the applicant lodged a complaint with the prosecutor’s office alleging that he had beaten up by police officers on 28-29 June 2005.
30. On 7 July 2005 the prosecutor’s office dismissed the complaint, finding no evidence of ill-treatment. The relevant part of the decision read as follows:
“At around 9.30 a.m. on 29 June 2005 in an office of the detention ward, [the applicant] slashed his wrists.
In the course of the investigation it was established that [the applicant] had been charged with the murder of L. and that he was being detained pending trial.
Y. [apparently a police officer], who was interrogated in connection with these events, stated that no unlawful actions and no physical force or pressure had been used against [the applicant].
F. [possibly one of the doctors], who was interrogated in connection with these events, stated that two wounds had been found on the wrists of [the applicant].
[The applicant], who was interrogated in connection with these events, stated that on 29 June 2005, during his interrogation in an interview room, he had found a paperclip [the applicant previously mentioned a razor] which he had used to slash his wrists as he had not wanted to talk with the police officers. He had made no complaints to anybody.
During the expert examination of 30 June 2005 [the applicant] explained that the police officers had not beaten him and that on 29 June 2005 he slashed his veins with a razor. The wounds were bandaged.
According to the results of the medical examination of the applicant of 30 June 2005, no. 2647 ... the injuries ... did not damage his health.
Taking into account the aforementioned circumstances, there are no grounds for instituting criminal proceeding...”
31. It appears that the same allegations were rejected by the prosecutor’s office also in its decision of 9 February 2006, holding that essentially the same complaint had already been dealt with. That decision was upheld by the Town Court on 3 August 2007 and it does not appear that the applicant brought appeal proceedings against the decision of 3 August 2007.
32. On 4 December 2007 the decision of 7 July 2005 was upheld by the Town Court. The decision stated as follows:
“... There was a check into [the applicant’s] allegations ... at the same time eyewitnesses were questioned, including [the applicant himself], who did not make any complaints... The decision itself is reasoned... based on objective data and on the merits is correct ...”
33. This decision was later upheld on appeal by the Supreme Court of the Republic of Tatarstan on 25 December 2007. The court noted that:
“...As could be seen from the case file materials, the decision ... is reasoned and ... well-justified in view of the collected objective data ...”
34. In his observations of 9 June 2011, the applicant stated that on 4 August 2005 he had been ill-treated by prison officers in the detention ward.
35. On 11 August 2005 the applicant lodged a complaint about that incident with the prosecutor’s office.
36. The prosecutor’s office refused to institute criminal proceedings in respect of the applicant’s allegations. On 23 March 2007 the refusal was upheld by a final decision of the Supreme Court of the Republic of Tatarstan.
37. Since his arrest on 1 May 2005 the applicant has remained in detention. He was initially held in the temporary detention ward of the Department of the Interior in the town of Naberezhnye Chelny, Republic of Tatarstan (“the detention ward”).
38. The parties agree that the applicant was held in the detention ward on the following dates:
39. It appears from the case file that in the intervals between the abovementioned periods of detention, the applicant took part in various investigative measures carried out in the context of his criminal case.
40. On 27 February 2006 the applicant was transported to another prison facility.
41. The parties presented different accounts of the conditions in the detention ward.
42. The applicant provided the following information concerning the conditions of his detention:
43. The applicant alleged that the conditions of his detention in the cells had not varied. Inmates had taken turns to sleep owing to the shortage of sleeping places. No bedding had been provided. The cells had been infested with insects. There had only been cold water in the showers. It had been difficult to breathe in the cells owing to the smoke and high humidity. Inmates had been provided with food once a day on plastic plates, sent by their relatives. He had had no access to fresh air and exercise.
44. The applicant maintained that each cell had had a window measuring 25 cm by 25 cm, protected by an iron grill. The cell had been lit by a small bulb, which was constantly switched on. In several cells the toilet area had not been partitioned from the living area and had been close to sleeping places and a table. The ventilation had been poor. There had been no heating in winter. In the summer it had been very hot in the cells. Furthermore, some of the applicant’s inmates had been infected by HIV, tuberculosis and hepatitis C.
45. The Government did not dispute that during the relevant time the detention ward, which was designed for 110 detainees, had contained 184 detainees who had had no possibility of taking walks. The Government did not submit information about the cells in which the applicant had been detained and the number of inmates in each of those cells. According to the Government, cell no. 4 had two sleeping places, and cells no. 6, 7, and 22 had four sleeping places. They submitted that at all times the applicant had had an individual sleeping place and bedding. Each cell had had one window measuring 25 cm wide by 25 cm high, and had been equipped with one lamp. The toilets in the cells had been separated from the living area by a 1.2-metre high wall. All cells in the detention ward had been equipped with mandatory ventilation in good working order. The heating system had functioned properly. The temperature in the cells had been between 18ºC and 20ºC in the winter and between 26ºC and 28ºC in the summer. The cells had been disinfected every three months. The applicant had had access to hot water, a laundry and a regular bath service. He had been provided with nutrition and tableware in line with the requirements of the domestic law.
46. In his letters of 23 and 30 May 2006 the applicant complained to the Prosecutor’s office about the conditions in which he had been held in the detention ward.
47. On 26 July 2005 and 6 June 2006 respectively the prosecutor’s office rejected the complaints, having acknowledged the problem of overcrowding, lack of sleeping places and poor sanitation. The decision of 26 July 2005 stated:
“... The inquiry established that during June 2005 ... the cells were overcrowded from 1,5 to 2 times. The full capacity [of the facility] is 110 persons, whilst in reality during the inquiry there were 162 persons [in it]. The inmates do not have access to information – there are no means of radio broadcasting. The disinfection of the cells ... does not allow to attend the established norms of hygiene and sanitary norms ...”
The decision of 6 June 2006 gave a similar description of the situation in the facility in question and also stated that:
“... the prison administration is [objectively] unable to provide each inmate with a sleeping place, as specified in [the relevant rules] ...
It follows that there were no breaches of the law in the actions of the [relevant prison officials] and there are no grounds to take any measures [by the prosecutor’s office] in this connection ...”
In both decisions the prosecutor drew the attention of the prison authorities to those issues, without taking any other measure in connection with the problem.
48. On 2 November 2006 the applicant and several of his fellow inmates lodged a collective complaint concerning the same grievances.
49. In its reply of 20 November 2006, the prosecutor’s office held that there was no need to intervene, despite the overcrowding of the detention ward. The decision stated:
“... in order to bring [the prison] in line with the federal legislation, a complete overhaul of it is required. The maximum capacity is 110, but due to [various reasons it is not rare for it to contain] up to 140 persons... for these reasons the prison administration is unable to provide each inmate with a separate sleeping place ...”
50. In his letter of 15 January 2008 addressed to the prosecutor’s office, the applicant repeated his complaints about the conditions in which he had been held in the detention ward.
51. The prosecutor’s office dismissed his claim on 8 February 2008.
52. On 26 June 2008 the applicant resubmitted the same complaints to the prosecutor’s office.
53. By a decision of 30 June 2008 the claim was again dismissed. The prosecutor’s office noted that the authorities were planning to renovate the detention ward and also stated that:
“... The inquiry carried out showed that there were no socio-medical counterindications in respect of the continued detention of inmates in [that facility]. The conditions of detention ... are incompliance with the respective standards, set out for this category of establishments ...”
54. Article 116 § 1 of the Criminal Code of the Russian Federation of 13 June 1996 provides that the application to another person of physical force which has caused physical pain but has not resulted in any health damage is punishable by a fine, compulsory or correctional labour or arrest for a period of up to three months.
55. Article 286 § 3 (a) of the Criminal Code provides that actions of a public official which clearly exceed his authority and entail a substantial violation of the rights and lawful interests of citizens, committed with violence or the threat of violence, are punishable by three to ten years’ imprisonment, with a prohibition on occupying certain posts or engaging in certain activities for a period of three years.
56. Under the Detention of Suspects Act 1995, detainees should be kept in conditions that satisfy health and hygiene requirements. They should be provided with an individual sleeping place and be given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell (Section 23). Detainees should be given sufficient free food to keep them in good health, in line with the standards established by the Government of the Russian Federation (Section 22).
57. Article 144 of the Code of Criminal Procedure of the Russian Federation (“the CCP”) provides that prosecutors, investigators and inquiry bodies must consider applications and information about any crime committed or being prepared, and take a decision on that information within three days. In exceptional cases, that time-limit can be extended to ten days. The decision should be one of the following: (a) to institute criminal proceedings; (b) to refuse to institute criminal proceedings; or (c) to transmit the information to another competent authority (Article 145 of the CCP).
58. Article 125 of the CCP provides that the decision of an investigator or a prosecutor to dispense with or terminate criminal proceedings, and other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice, may be appealed against to a District Court, which is empowered to check the lawfulness and grounds of the impugned decisions.
59. Article 213 of the CCP provides that, in order to terminate the proceedings, the investigator should adopt a reasoned decision with a statement of the substance of the case and the reasons for its termination. A copy of the decision to terminate the proceedings should be forwarded by the investigator to the prosecutor’s office. The investigator should also notify the victim and the complainant in writing of the termination of the proceedings.
60. Under Article 221 of the CCP, the prosecutor’s office is responsible for general supervision of the investigation. In particular, the prosecutor’s office may order that specific investigative measures be carried out, transfer the case from one investigator to another, or reverse unlawful and unsubstantiated decisions taken by investigators and inquiry bodies.
61. The Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, provide, in particular, as follows:
“10. All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation ...
11. In all places where prisoners are required to live or work,
(a) The windows shall be large enough to enable the prisoners to read or work by natural light, and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation;
(b) Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight.
12. The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner.
13. Adequate bathing and shower installations shall be provided so that every prisoner may be enabled and required to have a bath or shower, at a temperature suitable to the climate, as frequently as necessary for general hygiene according to season and geographical region, but at least once a week in a temperate climate.
14. All pans of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all time.
15. Prisoners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness ...
19. Every prisoner shall, in accordance with local or national standards, be provided with a separate bed, and with separate and sufficient bedding which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness.
20.(1) Every prisoner shall be provided by the administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served.
(2) Drinking water shall be available to every prisoner whenever he needs it.
21.(1) Every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits.
45 ... (2) The transport of prisoners in conveyances with inadequate ventilation or light, or in any way which would subject them to unnecessary physical hardship, shall be prohibited ...”
62. The relevant extracts from the General Reports prepared by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) read as follows:
“46. Overcrowding is an issue of direct relevance to the CPT’s mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps significantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint.
47. A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners ... [P]risoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature ...
48. Specific mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard ... It is also axiomatic that outdoor exercise facilities should be reasonably spacious and whenever possible offer shelter from inclement weather ...
49. Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment ...
50. The CPT would add that it is particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners.
51. It is also very important for prisoners to maintain reasonably good contact with the outside world. Above all, a prisoner must be given the means of safeguarding his relationships with his family and close friends. The guiding principle should be the promotion of contact with the outside world; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations ...”
“13. As the CPT pointed out in its 2nd General Report, prison overcrowding is an issue of direct relevance to the Committee’s mandate (cf. CPT/Inf (92) 3, paragraph 46). An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive.
The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention ...”
“28. The phenomenon of prison overcrowding continues to blight penitentiary systems across Europe and seriously undermines attempts to improve conditions of detention. The negative effects of prison overcrowding have already been highlighted in previous General Reports ...
29. In a number of countries visited by the CPT, particularly in central and eastern Europe, inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions ... Large-capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives ... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level; further, in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions.
30. The CPT frequently encounters devices, such as metal shutters, slats, or plates fitted to cell windows, which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation. They are a particularly common feature of establishments holding pre-trial prisoners. The CPT fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners ... [E]ven when such measures are required, they should never involve depriving the prisoners concerned of natural light and fresh air. The latter are basic elements of life which every prisoner is entitled to enjoy; moreover, the absence of these elements generates conditions favourable to the spread of diseases and in particular tuberculosis ...”
63. On 30 September 1999 the Committee of Ministers of the Council of Europe adopted Recommendation No. R (99) 22 concerning prison overcrowding and prison population inflation, which provides in particular as follows:
“Considering that prison overcrowding and prison population growth represent a major challenge to prison administrations and the criminal justice system as a whole, both in terms of human rights and of the efficient management of penal institutions;
Considering that the efficient management of the prison population is contingent on such matters as the overall crime situation, priorities in crime control, the range of penalties available on the law books, the severity of the sentences imposed, the frequency of use of community sanctions and measures, the use of pre-trial detention, the effectiveness and efficiency of criminal justice agencies and not least public attitudes towards crime and punishment ...
Recommends that governments of member states:
- take all appropriate measures, when reviewing their legislation and practice in relation to prison overcrowding and prison population inflation, to apply the principles set out in the appendix to this recommendation ...
I. Basic principles
1. Deprivation of liberty should be regarded as a sanction or measure of last resort and should therefore be provided for only, where the seriousness of the offence would make any other sanction or measure clearly inadequate.
2. The extension of the prison estate should rather be an exceptional measure, as it is generally unlikely to offer a lasting solution to the problem of overcrowding. Countries whose prison capacity may be sufficient in overall terms but poorly adapted to local needs should try to achieve a more rational distribution of prison capacity...
II. Coping with a shortage of prison places
6. In order to avoid excessive levels of overcrowding a maximum capacity for penal institutions should be set.
7. Where conditions of overcrowding occur, special emphasis should be placed on the precepts of human dignity, the commitment of prison administrations to apply humane and positive treatment, the full recognition of staff roles and effective modem management approaches. In conformity with the European Prison Rules, particular attention should be paid to the amount of space available to prisoners, to hygiene and sanitation, to the provision of sufficient and suitably prepared and presented food, to prisoners’ health care and to the opportunity for outdoor exercise.
8. In order to counteract some of the negative consequences of prison overcrowding, contacts of inmates with their families should be facilitated to the extent possible and maximum use of support from the community should be made...
III. Measures relating to the pre-trial stage
Avoiding criminal proceedings - Reducing recourse to pre-trial detention
10. Appropriate measures should be taken with a view to fully implementing the principles laid down in Recommendation No R (87) 18 concerning the simplification of criminal justice, this would involve in particular that member states, while taking into account their own constitutional principles or legal tradition, resort to the principle of discretionary prosecution (or measures having the same purpose) and make use of simplified procedures and out-of court settlements as alternatives to prosecution in suitable cases, in order to avoid full criminal proceedings.
11. The application of pre-trial detention and its length should be reduced to the minimum compatible with the interests of justice. To this effect, member states should ensure that their law and practice are in conformity with the relevant provisions of the European Convention on Human Rights and the case-law of its control organs, and be guided by the principles set out in Recommendation No R (80) 11 concerning custody pending trial, in particular as regards the grounds on which pre-trial detention can be ordered.
12. The widest possible use should be made of alternatives to pre-trial detention, such as the requirement of the suspected offender to reside at a specified address, a restriction on leaving or entering a specified place without authorisation, the provision of bail or supervision and assistance by an agency specified by the judicial authority. In this connection attention should be paid to the possibilities tor supervising a requirement to remain in a specified place through electronic surveillance devices.
13. In order to assist the efficient and humane use of pre-trial detention, adequate financial and human resources should be made available and appropriate procedural means and managerial techniques be developed, as necessary.”
64. On 11 January 2006 the Committee of Ministers of the Council of Europe adopted Recommendation Rec(2006)2 to member States on the European Prison Rules, which replaced Recommendation No. R (87) 3 on the European Prison Rules accounting for the developments which had occurred in penal policy, sentencing practice and the overall management of prisons in Europe. The amended European Prison Rules lay down the following guidelines:
“1. All persons deprived of their liberty shall be treated with respect for their human rights.
2. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody.
3. Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed.
4. Prison conditions that infringe prisoners’ human rights are not justified by lack of resources.
...
10.1. The European Prison Rules apply to persons who have been remanded in custody by a judicial authority or who have been deprived of their liberty following conviction.”
“18.1. The accommodation provided for prisoners, and in particular all sleeping accommodation, shall respect human dignity and, as far as possible, privacy, and meet the requirements of health and hygiene, due regard being paid to climatic conditions and especially to floor space, cubic content of air, lighting, heating and ventilation.
18.2. In all buildings where prisoners are required to live, work or congregate:
a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system;
b. artificial light shall satisfy recognised technical standards; and
c. there shall be an alarm system that enables prisoners to contact the staff without delay.
18.4. National law shall provide mechanisms for ensuring that these minimum requirements are not breached by the overcrowding of prisons.
18.5. Prisoners shall normally be accommodated during the night in individual cells except where it is preferable for them to share sleeping accommodation.
19.3. Prisoners shall have ready access to sanitary facilities that are hygienic and respect privacy.
19.4. Adequate facilities shall be provided so that every prisoner may have a bath or shower, at a temperature suitable to the climate, if possible daily but at least twice a week (or more frequently if necessary) in the interest of general hygiene.
22.1. Prisoners shall be provided with a nutritious diet that takes into account their age, health, physical condition, religion, culture and the nature of their work.
22.4. There shall be three meals a day with reasonable intervals between them.
22.5. Clean drinking water shall be available to prisoners at all times.
27.1. Every prisoner shall be provided with the opportunity of at least one hour of exercise every day in the open air, if the weather permits.
27.2. When the weather is inclement alternative arrangements shall be made to allow prisoners to exercise.”
VIOLATED_ARTICLES: 3
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-61356
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF JAMRISKA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1938 and lives in Partizánske.
5. The applicant proposed two technological improvements to the company in which he worked. They were not accepted.
6. On 21 November 1989 the applicant filed an action with the Topoľčany District Court. He claimed the protection of his intellectual property in that his above proposals were not accepted.
7. On 14 February 1990 the applicant amended his action in that he claimed that one of the technological improvements proposed by him was submitted prior to other proposals concerning the same issue submitted by other persons, and that he should be compensated for both improvements proposed by him.
8. On 21 January 1991 the District Court dismissed the applicant’s action after having ordered two expert opinions. On 20 March 1991 the Bratislava Regional Court quashed this decision on the ground that the first instance court had failed to establish the facts correctly and that it had proceeded erroneously.
9. On 18 July 1991 and on 30 September 1991 the appellate court dismissed the applicant’s requests for the exclusion of the District Court judges.
10. On 5 December 1991 the District Court appointed an expert. On 25 February 1992 the expert informed the District Court that he had a heavy workload and that he would be able to submit the opinion only after 21 April 1992. Subsequently the District Court repeatedly urged the expert to submit the opinion. The opinion was submitted on 23 November 1992. On 14 December 1992 the applicant submitted his comments on the opinion. On 14 January 1993 he challenged the District Court judge. The Nitra branch office of the Bratislava Regional Court dismissed the applicant’s request for exclusion of the District Court judge on 26 February 1993.
11. On 15 September 1993 the case was adjourned as the defendant and the expert did not appear. The expert subsequently died.
12. On 23 May 1994 the District Court appointed an expert. The latter submitted the opinion on 8 December 1994.
13. On 25 January 1995 the Topoľčany District Court delivered an interim judgment in which it found, with reference to two expert opinions, that the applicant’s proposal concerning the circulation of air in the defendant company was to be given priority. The District Court further dismissed the claim for compensation concerning the applicant’s second proposal.
14. The defendant appealed on 6 March 1995, and on 13 July 1995 the Nitra branch office of the Bratislava Regional Court quashed the first instance judgment to the extent that it had allowed the applicant’s claim for his proposal to be given priority. The decision stated that the first instance court had failed to follow the instructions set out in the Regional Court’s above decision of 20 March 1991.
15. On 26 October 1995 the District Court heard the experts with a view to clarifying the differences in their conclusions. On 7 January 1996 it obtained a third expert’s opinion. Hearings were held on 22 February 1996 and on 6 March 1996.
16. Between 11 March and 9 September 1996 the case file was examined by the Constitutional Court.
17. On 28 October 1996 the Topoľčany District Court dismissed the remainder of the applicant’s action.
18. On 11 December 1996 the applicant appealed and claimed that the decision was arbitrary. He also challenged the District Court judge.
19. On 28 February 1997 the Constitutional Court found that the Topoľčany District Court had violated the applicant’s constitutional right to have his case examined without undue delay. In its finding the Constitutional Court admitted that the case was complex from the legal point of view. It found no particular delays in the proceedings which should be imputed to the applicant and held that the District Court had failed to proceed with the case in an effective manner as required by the relevant provisions of the Code of Civil Procedure. The decision stated, in particular, that there had been shortcomings in the judge’s work which had caused excessive delays in the proceedings.
20. On 30 June 1997 the appellate court adjourned the case as the applicant had challenged its judges dealing with the case. On 27 October 1997 the Supreme Court dismissed the applicant’s request for exclusion of the judges.
21. On 20 January 1998 the Nitra Regional Court upheld the District Court’s finding that the applicant was not entitled to compensation for the proposal in question as it was neither genuine nor did it resolve the technical problem in question as required by the relevant law. The Regional Court further discontinued the proceedings as regards the applicant’s claim that his proposal should be given priority as it was outside the courts’ jurisdiction. Finally, the Regional Court upheld the District Court’s decision on the expert’s fees and decided that the District Court judge involved was not biased. The Regional Court’s judgment was served on the applicant on 4 August 1998.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-82684
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: BECOVA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mrs Anna Becová, is a Slovak national who was born in 1931 and lives in Michalovce. She was represented before the Court by Mrs I. Rajtáková, a lawyer practising in Košice. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mrs M. Pirošíková.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 29 October 1991 the applicant and another person filed an action under the Land Ownership Act of 1991.
On 2 July 1993 the District Court in Michalovce ordered the defendant to pay a sum of money to the plaintiffs. It decided to deal in a separate set of proceedings with the claims concerning compensation for movable property and compulsory lease of the land in issue. Finally, the District Court rejected the remainder of the action.
The District Court in Michalovce and the Regional Court in Košice determined the claims for compensation on 26 July 1996 and 27 January 1998. The claims related to the lease of the property were to be determined separately.
In the meantime, on 16 May 1997, bankruptcy proceedings were brought against the first defendant. The proceedings in respect of that defendant were therefore stayed pending the outcome of the bankruptcy proceedings. The applicant registered her claims against that person in the context of the bankruptcy proceedings on 6 April 1998.
On 23 January 2002 the applicant filed a complaint with the Constitutional Court. She complained about delays in the proceedings before the District Court.
On 2 October 2002 the Constitutional Court found that the District Court had violated the applicant’s right under Article 6 § 1 of the Convention to a hearing within a reasonable time. The Constitutional Court noted that the case fell within its competence ratione temporis as from 15 February 1993 only. It nevertheless had regard also to the period during which the proceedings had been pending prior to that date. After having analysed the proceedings in the light of the criteria which the Court applies under Article 6 § 1 of the Convention, the Constitutional Court reached the conclusion that the overall period of 11 years was clearly excessive and that the way in which the District Court had acted was, as a whole, contrary to the applicant’s right to a hearing within a reasonable time.
The Constitutional Court ordered the District Court in Michalovce to proceed with the case without any further delay. It also ordered that the District Court should pay 150,000 Slovak korunas (SKK) to the applicant within two months.
On 23 October 2002 the District Court asked the plaintiffs to complete their submission of 26 July 2001.
The parties made several submissions to the District Court between 25 October and 6 December 2002.
The District Court held a hearing on 9 December 2002. It decided to obtain an expert opinion with a view to determining the rent payable in respect of the land in issue.
Between 16 December 2002 and 17 February 2003 the file was put at the disposal of the Regional Court in Košice.
On 19 February 2003 the District Court asked the parties to pay an advance on an expert’s fees. On 23 April 2003 it appointed an expert who was requested to submit an opinion within 60 days. The decision was served on the expert on 3 May 2003.
On 2 June 2003 the expert asked for further documents.
Between June and September 2003 the District Court obtained documentary evidence from several co-operatives and an administrative authority. It submitted the evidence thus obtained to the expert on 9 October 2003. The expert was asked to obtain information in respect of co-operatives which had not replied to the court’s request.
On 5 November 2003 the District Court heard a witness. Two other witnesses representing the co-operatives concerned failed to appear.
At the expert’s requests the District Court obtained further documentary evidence on 18 December 2003, 8 January 2004 and 5 February 2004.
The expert submitted his opinion on 10 February 2004. The parties submitted their comments on it on 20 and 24 February 2004.
The District Court held a hearing on 27 February 2004. It delivered a judgment in which it partly granted the applicant’s claims related to compulsory lease of the property by the second defendant. It decided to deal in a separate set of proceedings with the relevant claim related to the first defendant in respect of whom bankruptcy proceedings were still pending.
On 5 and 7 May 2004 the second defendant and the plaintiffs appealed. After the court fee had been paid, the District Court submitted the case to the court of appeal on 4 June 2004.
On 29 March 2005 the Regional Court in Košice quashed a part of the first-instance judgment on the ground that the District Court had proceeded and decided erroneously in several respects. The decision of the court of appeal was transmitted to the District Court on 13 May 2005.
On 23 May 2005 the applicant specified her claim. She submitted further documents in July and August 2005.
On 26 August 2005 the District Court gave a new judgment on the point in issue.
On 12 October 2005 the second defendant appealed. The file was submitted to the court of appeal on 19 October 2005.
The Regional Court in Košice upheld the relevant part of the first-instance judgment on 20 May 2006. The decision on the point in issue became final on 29 June 2006.


ITEMID: 001-99532
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: BOUSANA v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: The applicant, Mr Rachid Bousana, who has both Dutch and Moroccan nationality, was born in 1978 and lives in Amsterdam. He was represented before the Court by Mr P. Plasman, a lawyer practising in Amsterdam.
On 2 November 2004 the applicant was placed in pre-trial detention on charges of participating in a criminal organisation with intent to commit acts of terrorism (lidmaatschap van een criminele organisatie met terroristisch oogmerk), namely the so-called “Hofstad group” (Hofstadgroep), from its being based in the town of The Hague which is the place of residence of the Queen (Hofstad, town where the royal residence is located).
During a hearing held on 22 December 2005 the pre-trial detention was lifted, the Rotterdam Regional Court (rechtbank) considering there were no grounds for it to be continued.
On 25 January 2006 the public prosecution service (Openbaar Ministerie) demanded a sentence of 21 months' imprisonment based on the charges as described above with deduction of the time spent in pre-trial detention.
On 10 March 2006 the Rotterdam Regional Court acquitted the applicant of all charges brought against him, finding that he could not be considered an active participant in the Hofstad group. In a number of cases of the applicant's co-defendants similar acquittals were pronounced. The public prosecution service did not appeal against that judgment and on 24 March 2006 the Regional Court's judgment became final.
Claiming that he had incurred damage as a consequence of the 414 days he had spent in pre-trial detention, the applicant filed a request for compensation on 20 June 2006 pursuant to the provisions of article 89 of the Dutch Code of Criminal Procedure (Wetboek van Strafvordering – “CCP”) which provides for the possibility of such compensation. Article 90 CCP provides, in the relevant part and as regards the compensation described in article 89 CCP, that “compensation shall be awarded in each case if and to the extent that the court, taking all circumstances into account, is of the opinion that there are reasons in equity (gronden van billijkheid) to do so.”
The applicant claimed 209,665.45 euros (EUR) in damages to cover both pecuniary and non-pecuniary damage.
By decision of 7 November 2006 the Rotterdam Regional Court granted the applicant's claim in part, to the amount of EUR 64,312.50.
On 20 November 2006 the public prosecution service appealed against that decision, arguing that there were no grounds in equity to award any damages. In the alternative, the public prosecution service asserted that the applicant should be awarded less.
On 8 November 2007 the Court of Appeal (gerechtshof) of The Hague quashed the Regional Court's decision.
The Court of Appeal noted that the applicant was one of the acquitted suspects in the criminal case against members of the Hofstad group, and that the members of this group were known to frequent circles close to Mohamed B., the murderer of film director Theo van Gogh: the members of the Hofstad group and Mohamed B. would gather in what has come to be called the “living-room meetings” (huiskamerbijeenkomsten). As regards those meetings, it had been established that they had taken place in a group setting and that all suspects could be counted as members of that group.
Paraphrasing the Regional Court's acquittal of 10 March 2006 referred to above, the Court of Appeal observed that the Regional Court had found that all persons suspected of membership of the Hofstad group had in fact belonged to a structured and durable joint co-operation which had had the intent to commit crimes, to incite (violence) and to threaten (with the commission of acts of terrorism) and had established that the group's individual members generally could not have been unaware that the objectives of the group to which they belonged was to commit crimes of this nature.
It then went on to consider that the reason for the applicant's acquittal of criminal participation in the group's activities, despite the above-mentioned finding of fact by the Regional Court, was to be found in the circumstance that the Regional Court had not considered the applicant to have been an “active” participant in the organisation. In this connection, the Court of Appeal quoted parts of the Regional Court's judgment of 10 March 2006:
“Although all suspects are to be deemed members of the [Hofstad] group, not all of them behaved in such a manner that the group in fact benefited from their membership. Some of them merely tagged along. Those members did, for instance, attend meetings where hatred was incited and which were of an incendiary nature, but they did not contribute to any of that themselves. They also received texts and files of a threatening nature, but did not put them to any use. By behaving in such a manner, these members neither directly nor indirectly aided the realisation of the group's criminal intent. It follows that activities such as attending aforementioned meetings and receiving aforesaid texts cannot be deemed as [criminal] acts of participation [in the Hofstad group's activities] (deelnemingshandelingen).
The Court of Appeal went on to hold that this admitted of no other conclusion than that the applicant had taken part in the organisation in the above-mentioned passive manner, in full knowledge of the group's aims, not merely on an incidental basis but moreover without distancing himself from those aims.”
Having taken these circumstances into consideration, the Court of Appeal found that there were no reasons in equity to award the applicant the damages he sought.
No further appeal lay against this decision.