ITEMID: 001-70365
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF CHERNOBRYVKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Remainder inadmissible;Pecuniary damage - Government to pay outstanding judgment debt;Non-pecuniary damage - financial award
JUDGES: Zoryana Bortnovska
TEXT: 4. The applicant was born in 1953 and lives in the town of Lisichansk, the Lugansk region.
5. In 1982 the applicant had a serious accident at work and from that time onwards was entitled to occupational disability benefit – including compensation for a purchase of a car designed for disabled persons – from the Chernomorka coal mine (a State owned entity, hereafter “the Coal Mine”).
6. On 11 June 2001 the Lisichansk City Court awarded the applicant UAH 14,490 (approximately EUR 2,360) against the Coal Mine for its failure to pay compensation for a car.
7. The judgment became effective and was sent for execution to the Lysychansk City Bailiffs' Service (hereafter “the Bailiffs' Service”), which on 14 July 2001 instituted enforcement proceedings in the applicant's case.
8. On 12 November 2001 the Lisichansk City Court informed the applicant that the attachment and sale proceedings concerning the Coal Mine's assets were suspended due to the moratorium on the forced sale of the property of State-owned enterprises.
9. On 29 November 2001 the Ministry of Fuel and Energy ordered the Coal Mine's liquidation, designating the Ukrvuglrestrukrutizatsyya Company as its successor. The coal mine's liquidation commission was established and on 18 February 2002 it was entrusted with the enforcement of the applicant's writ of execution.
10. On 5 June 2003 the Ministry of Fuel and Energy ordered that the Ukrvuglrestrukrutizatsyya Company split up and its funds be divided between the Luganskuglrestrukrutizatsyya and the Donetskvuglrestrukrutizatsyya Companies.
11. On 15 April 2004 the writ of execution was returned unenforced to the Bailiffs' Service, which reopened the enforcement proceedings. On account of the liquidation of the coal mine and the Ukrvuglrestrukrutizatsyya Company the Bailiffs' Service on 6 July 2004 suspended the proceedings pending the replacement of the debtor in the applicant's case.
12. From the parties' submissions it appears that the judgment in the applicant's favour remains unenforced.
13. Some of the relevant domestic law is set out in the judgments of 27 July 2004 in the case of Romashov v. Ukraine (no. 67534/01, §§ 16-19), of 30 November 2004 in the case of Dubenko v. Ukraine (no. 74221/01, §§ 2229) and of 26 April 2005 in the case of Sokur v. Ukraine (no. 29439/02, §§ 18 and 22).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-90131
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF TANAY v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 5. The applicant was born in 1956 and lives in Istanbul.
6. On 18 November 1997 the General Directorate of National Roads and Highways (hereinafter “the Directorate”) expropriated 4,309 square metres of the applicant’s land in Tunceli. The expropriation decision was communicated to the applicant on 16 August 2000. According to the domestic procedure, the applicant had thirty days, which began the day after the decision was communicated to him, to ask for an increase in the amount of compensation.
7. On 1 September 2000 a certain Mr Sezai Yıldız, who had been authorised by the applicant to appoint a lawyer for him, had a power of attorney drawn up at a notary public, appointing Mrs Fatma Kalsen Demirdaş as legal counsel to represent the applicant.
8. On 19 September 2000 the applicant, with the assistance of his lawyer Mrs Demirdaş, brought an action before the Tunceli Civil Court (hereinafter the “Tunceli Court”), seeking increased compensation. Mrs Demirdaş requested the court to accept the case despite the expiry of the statutory time-limit on 17 September 2000, as she had had health problems preventing her lodging the case earlier.
9. On 9 November 2000 the Tunceli Court asked the Forensic Medicine Institute in Ankara to clarify whether Mrs Demirdaş had had health problems at the relevant time and whether those problems had been of a nature to render it impossible for her to come to the court house and lodge the applicant’s case within the statutory time-limit.
10. On 22 May 2001 the Erzurum branch of the Forensic Medicine Institute forwarded to the Tunceli Court a number of medical reports, confirming that Mrs Demirtaş had been ill between 23 August 2000 and 17 September 2000 and had thus been unable to lodge the case within the statutory time-limit.
11. The Tunceli Court accepted the medical report and began examining the merits of the case. In the course of the proceedings it had regard to the zone plan, the expropriation documentation, two principal and two additional expert reports, and awarded the applicant additional compensation on 31 May 2001. The Directorate appealed.
12. On 3 March 2003 the Court of Cassation quashed the decision, quoting the applicant’s name, instead of that of his representative, as the person who had been ill. The Court of Cassation stated that the applicant had given a power of attorney to Fatma Kalsen Demirdaş so that, even if he had been ill, Mrs Kalsen Demirdaş could have lodged the claim on his behalf within the statutory time-limit. The Court of Cassation consequently held that the case had been time-barred on 17 September 2000.
13. In an application for rectification Mrs Demirdaş argued that it was she who had been ill, not her client. The Court of Cassation had therefore made a factual error which should be rectified.
14. On 12 May 2003, the Court of Cassation held that “amending the factual error would not affect the outcome”, and dismissed the rectification request.
15. On 4 July 2003 the Tunceli Court concurred with the Court of Cassation’s decision and dismissed the case. On 13 November 2003 the Court of Cassation upheld the final ruling.
16. According to sections 166-168 of the Code of Civil Procedure, if a person or his or her legal representative is unable to comply with a statutory time-limit for reasons outside his or her control, that individual is given an additional ten-day period starting on the date when the situation giving rise to the inability to comply has ended.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57915
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 1995
DOCNAME: CASE OF VERENIGING WEEKBLAD BLUF! v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;John Freeland
TEXT: 7. The applicant is an association based in Amsterdam and at the material time it published a weekly called Bluf! for a left-wing readership. Since then the periodical has ceased publication.
8. In the spring of 1987 the editorial staff of Bluf! came into possession of a quarterly report by the internal security service (Binnenlandse Veiligheidsdienst - "the BVD"). Dated 1981 and marked "Confidential", it was designed mainly to inform BVD staff and other officials who carried out work for the BVD about the organisation’s activities. It showed that at that time the BVD was interested in, among other groups, the Communist Party of the Netherlands and the anti-nuclear movement. It also mentioned the Arab League’s plan to open an office in The Hague and gave information about the Polish, Czechoslovakian and Romanian security services’ activities in the Netherlands.
The editor of Bluf! proposed to publish the report with a commentary as a supplement to issue no. 267 of the journal on 29 April 1987.
9. On 29 April 1987, before the journal was published or sent out to subscribers, the director of the BVD informed the public prosecutor (Officier van Justitie) of the plan to publish the report and pointed out that its dissemination was likely to infringe Article 98a paras. 1 and 3 and Article 98c para. 1 of the Criminal Code (Wetboek van Strafrecht - see paragraph 20 below). In his letter he stated:
"Although, in my opinion, the various contributions taken separately do not (or do not any longer) contain any State secrets, they do - taken together and read in conjunction - amount to information whose confidentiality is necessary in the interests of the State or its allies. This is because the juxtaposition of the facts gives an overview, in the various sectors of interest, of the information available to the security service and of the BVD’s activities and method of operation."
10. On the same day a preliminary judicial investigation (gerechtelijk vooronderzoek) in respect of a person or persons unknown was commenced on an application by the public prosecutor. The investigating judge (rechter-commissaris) of the Amsterdam Regional Court (arrondissementsrechtbank) ordered the applicant association’s premises to be searched and had the entire print run of issue no. 267 of Bluf!, including the supplement, seized. The police apparently did not take away the offset plates remaining on the printing presses. Three people were arrested but released the following day.
11. During the night of 29 April 1987, unknown to the authorities, the staff of the applicant association managed to reprint the issue that had been seized. Some 2,500 copies were sold in the streets of Amsterdam the next day, which was the Queen’s birthday and a national holiday. The authorities decided not to put a stop to this so as not to cause any public disorder.
12. On 6 May 1987 the investigating judge closed the investigation on the ground that he had no basis on which to continue it. In a letter of 2 June 1987 the public prosecutor informed the applicant association that proceedings against the three people arrested during the seizure were being dropped, as the evidence against two of them was insufficient and the third had played a minimal role.
13. In the meantime, on 1 May 1987, the applicant association had complained of the seizure to the Review Division of the Amsterdam Regional Court under Article 552a of the Code of Criminal Procedure (Wetboek van Strafvordering - see paragraph 21 below), seeking the return of the confiscated copies, their supplements and the wrappers so that they could be sent out to subscribers in time.
This application was dismissed on the same day in so far as it related to the copies of the journal and supplement. The court considered that, in view of their content, it was not "highly unlikely" that in the criminal proceedings an order would be made for the periodical’s withdrawal from circulation (onttrekking aan het verkeer). The court did, however, order the return of an insert entitled "A Contribution to the Jewish History Museum" and the wrappers.
14. In a judgment of 17 November 1987 (Nederlandse Jurisprudentie (NJ) 1988, 394) the Supreme Court dismissed appeals on points of law that the applicant association and the public prosecutor lodged against that decision. In respect of the applicant association’s ground of appeal based on a violation of Article 7 of the Constitution (see paragraph 19 below), the court held that the right secured in that provision was limited by the phrase "subject to each person’s liability under the law" and that the seizure of the printed matter to be distributed was among the measures capable of safeguarding the interests which Articles 98 and 98a of the Criminal Code were intended to protect.
15. In the interval, on 12 May 1987, the applicant association had lodged a second complaint with the Review Division of the Amsterdam Regional Court. Relying on Article 10 (art. 10) of the Convention, it challenged the lawfulness (rechtmatigheid) of the seizure. In the alternative, it sought the return of the confiscated items on the ground that as the judicial investigation had been terminated, the measure had ceased to be justified.
On 11 January 1988 the court dismissed the complaint. It ruled that it was identical with the one of 1 May 1987 and that no new factor justified returning the property. Relying on the statement from the public prosecutor’s office to the effect that it would make an application to have the journal withdrawn from circulation as soon as the Supreme Court had given judgment on the appeal on points of law against the decision of 1 May, the court held that it was still not to be excluded that such a measure might be taken. Consequently, it rejected the applicant association’s submission based on the decision not to prosecute (see paragraph 12 above).
16. On 25 March 1988 the public prosecutor applied to the Amsterdam Regional Court for an order that issue no. 267 of Bluf! should be withdrawn from circulation.
17. On 21 June 1988 the court allowed the application on the basis of Articles 36b and 36c of the Criminal Code (see paragraph 20 below). It held that as the seized items were designed to commit the offence set out in Article 98 and/or Article 98a para. 1 taken together with para. 3 of the Criminal Code, the unsupervised possession of them was contrary to the law and the public interest. Moreover, the measure was justified under Article 10 (art. 10) of the Convention on the grounds of maintaining "national security".
18. In a judgment of 18 September 1989 (NJ 1990, 94) the Supreme Court dismissed an appeal on points of law by the applicant association.
It held that the court below had clearly established that an offence covered either by Article 98a para. 1 taken together with para. 3 or by Article 98 had been committed and that it did not have to choose between the provisions indicated. Articles 36b para. 1 (4) and 36c para. 1 (5) were applicable even though neither the applicant association nor any other person had had to answer for their actions in the criminal proceedings. The reprinting and distribution of the issue in dispute after the seizure was no bar either, since the fact of making information public, covered by Article 98, did not necessarily have the consequence that secrecy should not be preserved. Articles 98 and 98a contained statutory provisions envisaged in Article 7 of the Constitution and Article 10 (art. 10) of the Convention; since the seizure and withdrawal from circulation were designed to safeguard the interests protected by Articles 98 and 98a, they fell within the permitted restrictions on the right to freedom of expression. In referring to national security, the court below had clearly shown that what was in issue in the instant case was information whose secrecy was necessary in the interests of the State. Lastly, the seizure and withdrawal from circulation could not be equated with imposing a condition of "prior authorisation", even though the public could not acquaint itself with the opinions and ideas contained in the printed matter.
19. Article 7 para. 1 of the Constitution provides:
"No one shall need prior authorisation in order to express his opinions or ideas through the press, subject to each person’s liability under the law."
20. At the material time the relevant provisions of the Criminal Code read as follows:
"An order for the withdrawal of seized items from circulation may be made
(1) in a judgment in which a person is convicted of a criminal offence and a sentence is imposed;
...
(4) in a separate judicial order made on an application by the public prosecutor."
"Any of the following items are liable to be withdrawn from circulation:
...
(5) those made or intended for the commission of the offence; in so far as they are of such a nature that the unsupervised possession of them is contrary to the law or the public interest."
"1. Anyone who deliberately communicates or puts at the disposal of a person or organisation not authorised to have knowledge of it any information whose secrecy is necessary in the interests of the State or its allies, or any item from which it is possible to extract such information, shall, if he knows or should reasonably suspect that the information is of this kind, be liable to imprisonment for a period not exceeding six years or a fine of the fifth category.
2. A person shall be liable to the same penalty if he deliberately communicates, or makes available to a person or organisation not authorised to have knowledge of it, any information from a prohibited locality and relating to the security of the State or of its allies, or any item from which it is possible to extract such information, if he knows or should reasonably suspect that the information is of this kind."
"1. Any person who deliberately divulges information of the kind referred to in Article 98 ... shall, if he knows or should reasonably suspect that the information is of this kind, be liable to imprisonment for a period not exceeding fifteen years or a fine of the fifth category.
2. ...
3. The acts carried out in preparation of an offence as defined in the foregoing paragraphs shall be punishable with imprisonment for a period not exceeding six years or a fine of the fifth category."
"1. The following shall be liable to imprisonment for a period not exceeding six years or a fine of the fifth category:
(1) anyone who, without having been so authorised, takes or keeps in his possession any information referred to in Article 98;
..."
21. The main provisions of the Code of Criminal Procedure mentioned in this case are the following:
"Any items which may serve to establish the truth or whose confiscation or withdrawal from circulation can be ordered shall be liable to be seized."
"During the preliminary judicial investigation the investigating judge shall be empowered to seize any items liable to confiscation."
"The parties concerned shall be able by way of application to make a complaint in respect of seizures, the use made of confiscated items or delay in ordering the return [of such items] ..."
VIOLATED_ARTICLES: 10


ITEMID: 001-23212
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: PARADIS and OTHERS v. GERMANY
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Ireneu Cabral Barreto
TEXT: The application was lodged with the Court by a mother, Susanne Paradis, on behalf of her four children Vanessa, Nina, Joshua and Sasha. Ms Paradis, born 1966, is a German national. Her four children were born in 1985, 1994 and 1996. The applicants currently live in Hördt, Germany.
In 1994, Ms Paradis married O., a Canadian national and went to live with him in Canada with Vanessa, her daughter by a first marriage. The children Nina, Joshua and Sasha were born into her marriage to O.
In February 1997, Ms Paradis and all four children moved out of the family home and went to live in a women’s refuge.
On 12 February 1997, O. obtained a court order granting him temporary custody of his three children, who thereupon returned to him. O. and his parents cared for the children. Ms Paradis saw them on a regular basis.
On 16 December 1998, the Windsor Superior Court, in proceedings before a single judge, granted Ms Paradis sole custody of Nina, Joshua and Sasha on a permanent basis. It granted O. access commencing on 26 December 1998 and continuing on alternating weeks thereafter, from 18:00 on Fridays to 18:00 on Sundays. For the year 1998, the Superior Court declared that O. was to have the children from 18:00 on 25 December to 18:00 on 26 December, while Ms Paradis was to have them from 24 to 25 December. In succeeding years, the access on Christmas Eve and Christmas Day was to be alternated. The children were to pass half of their Easter holidays with the custodial parent and the other half with the access parent. Notwithstanding the weekend access provided, O. was to have access on Father’s Day from 8:00 to 18:00. Ms Paradis was to have the same access time on Mother’s Day. During the summer, each parent was to have two uninterrupted weeks of access incorporating and not in addition to the regular weekend access. O. was to have such other and further access as the parties would agree to.
The Superior Court ordered that the paternal grandparents be given access to the children during the father’s access periods. In addition, they were to have access on two other weekends per year as agreed between themselves and Ms Paradis.
Given that the maternal grandparents lived in Germany, the Superior Court ruled that Ms Paradis should be at liberty, on one month’s notice, to take the children to Germany for visits, not to exceed two weeks in duration.
It also ruled that Nina, Joshua and Sasha should otherwise remain in the Province of Ontario, except for day trips to Michigan or other States of the United States, unless prior written agreement were obtained.
The Superior Court ordered Ms Paradis to execute an irrevocable undertaking to submit to the jurisdiction of the courts of Ontario and not to remove the children for periods beyond those provided for in the court order. It also ordered her to undertake in writing not to apply for German passports for them until they were of an age to make a personal decision on citizenship. Ms Paradis was granted exclusive possession of the matrimonial home.
In his reasoning, the single judge noted that Ms Paradis seemed to be better capable of raising the children than O., whom the judge portrayed as unreliable and whose credibility seemed to have been undermined by implausible and untrue allegations before the court. The judge was convinced that O. would not be able to care properly for his children without the continued intervention of his parents. He stressed that the access rights granted to O. were minimum rights that could be enlarged following further discussion and negotiation between the parties.
Ms Paradis never executed the undertakings contained in the court decision.
On 27 June 2000, Ms Paradis and all four children left the Province of Ontario for a two weeks’ stay in Germany after having obtained O.’s consent. However, once these two weeks had elapsed, they did not return to Canada.
On 14 August 2000, Ms Paradis filed an action for divorce before the Speyer District Court, sitting in family matters, and requested sole custody of Nina, Joshua and Sasha.
On 22 September 2000, the Windsor Superior Court sentenced her to 30 days’ imprisonment for acting in contempt of court. Revoking its decision of 16 December 1998, it granted O. sole custody of his children.
On 28 September 2001, the Zweibrücken District Court rejected O.’s request to return Nina, Joshua and Sasha to Canada under the auspices of the Hague Convention on the Civil Aspects of International Child Abduction (hereafter the Hague Convention). It found that as Ms Paradis had had sole custody of the children both at the time when they had left Canada, and at the time when she had refused to return, Article 3 of the Hague Convention had not been violated. The District Court also observed that the applicability of the Hague Convention to situations where a parent’s custody right was limited by special conditions was legally controversial. In any case, O. had not been in possession of custody rights at the relevant time and had not complained of a violation of his rights to access.
On 14 June 2002, the Windsor Superior Court issued a “certificate of wrongness” wherein it found that the removal and subsequent retention of the children Nina, Joshua and Sasha from the Province of Ontario, without returning them after a two-week visit to Germany, was a wrongful removal and retention within the meaning of Article 3 of the Hague Convention.
Following O.’s appeal, appeals proceedings were initiated before the Palatinate Court of Appeal, in the course of which Nina and Joshua were heard. The Court of Appeal ordered the preparation of a psychological expert opinion in order to find out whether the children themselves were opposed to returning to Canada or whether their refusal was based on their mother’s influence. The expert was also asked to assess whether the two children had attained a degree of maturity that would allow them to realise the consequences of their decision.
In the expert opinion dated 8 May 2002, the expert found that Nina and Joshua’s refusal to return to their father derived from the tensions between their parents. The main reason for their refusal to return lay in the negative experiences with their father which dated back to the time when they had been in contact with him. Although their hostile attitude towards their father was partially based on their mother’s tales of past events, it was mostly a consequence of the children’s own memories which made them fear their father. Regarding their degree of maturity, the expert found that both children were able to give reasons for their decision that corresponded to their age.
On 26 June 2002, the Court of Appeal revoked the District Court’s decision and ordered Ms Paradis to return Nina, Joshua and Sasha to Canada by 20 July 2002. In the event that she should refuse to comply with this order, the Court of Appeal authorised the court’s bailiff to return the children to their father. The bailiff was authorised to use force if necessary in order to overcome Ms Paradis’ resistance, to search her apartment and to ensure the children’s removal.
In its decision, the Court of Appeal endorsed the Superior Court’s “certificate of wrongness” of 14 June 2002. Based on the expert opinion, it did not consider that returning the children to Canada would be contrary to their best interests. In particular, nothing suggested that there was “a grave risk that returning them would expose them to physical or psychological harm or place them in an intolerable situation” within the meaning of Article 13 of the Hague Convention. The Court of Appeal noted that Ms Paradis had not managed to establish that O. had sexually harassed either Vanessa or Nina. Although it believed the children’s allegations that he had often applied inappropriate methods when punishing them in the past, the Court of Appeal did not consider that this meant that they would be in danger of suffering physical or psychological harm if they returned to Canada. Ms Paradis’ allegations that he had often beaten her and the children with objects were considered unsubstantiated. The Court of Appeal failed to comprehend why Ms Paradis had not trusted the Canadian authorities or courts to protect her and the children from her husband’s violent actions.
The Court of Appeal also did not consider that Nina and Joshua’s refusal to return to their father could prevent them from going back to Canada. Based on the expert report, it found that with nine years of age they had not yet attained an age and degree of maturity at which it would be appropriate to take account of their views under Article 13 of the Hague Convention. According to the Court of Appeal, nothing suggested that Nina and Joshua were particularly mature for their age. Given the fact that they were greatly influenced by their mother and by the tensions between their parents, the Court of Appeal did not attach much weight to the children’s objections to being returned to Canada.
It showed itself aware of the difficulties a removal back to Canada would occasion for the children. From a legal point of view, however, this alone could not suffice to prevent their return, as otherwise any parent wrongfully removing a child could, by delaying the child’s return, prevent such a return from ever taking place.
On 8 August 2002, the Federal Constitutional Court refused to entertain the complaint lodged by Ms Paradis on behalf of Nina, Joshua and Sasha.
On 24 January 2003, following O.’s request, the Zweibrücken District Court issued a special order to execute the decision of 26 June 2002, under the condition that O. request the Windsor Superior Court to refrain from executing the sentence issued against Ms Paradis for contempt of court. According to the District Court, this was necessary to ensure that Ms Paradis could accompany the children to Canada, as it considered a separation from their mother at this stage to be detrimental to their best interests. It obliged O. to submit propositions regarding a financially secure accommodation for Ms Paradis and the children, as well as alimony payments for all of them. He was also held to submit financial securities for the payment of their plane tickets.
In order to stop the imminent execution of the court decision of 26 June 2002, Ms Paradis requested legal aid with a view to declaring the execution of this decision inadmissible.
On 17 February 2003, the District Court rejected her request for legal aid, finding that her claim had no prospect of success. It found that nothing suggested that O. had deliberately misled the Court of Appeal, thereby inducing it to decide in his favour. In this context, the District Court referred to the certificate of wrongness issued by the Windsor Superior Court of 14 June 2002.
The District Court did not follow Ms Paradis’ arguments that the aim of the Hague Convention could no longer be reached due to the lapse of time since. It noted that she herself had delayed the execution proceedings by submitting requests and motions to the courts. Moreover, Ms Paradis had agreed to return to Canada with the children under certain conditions. The District Court noted that on 31 January 2003, the General Prosecutor in Ontario had agreed to withdraw all criminal charges accusing Ms Paradis of child abduction upon confirmation of the competent police authorities in Windsor that they had arrived in Canada. Ms Paradis was now therefore at liberty to enter Canada.
On 17 February 2003, the District Court ordered the court bailiff to execute the decision of 26 June 2002.
On 18 March 2003, the bailiff, accompanied by the police, two representatives of the local Youth Office as well as O., his parents and his lawyer, attempted to remove the children from Ms Paradis’ home. Following the children’s explicit refusal to accompany him, the court bailiff decided not to pursue the enforcement measure.
On 26 March 2003, the District Court rejected O.’s request that, in order to implement the above decision, the court bailiff be vested with the right to use force against the children or to permit O. to use such force, should the children persist in their refusal to leave their mother’s home. Given the danger that such an action could pose to the children’s well-being, the District Court did not wish to grant this request without consulting a psychological expert.
On 9 April 2003, following O.’s appeal, the Palatinate Court of Appeal vested the court bailiff with the right to use force against the children or to let third persons of his choice use such force, in order to ensure the execution of the court order of 26 June 2002. It ordered the local Youth Office to attend the execution and to assist the court bailiff if appropriate and necessary.
The Court of Appeal found that Ms Paradis had not submitted any new facts that would allow it to deviate from its decision of 26 June 2002. In particular, the argument based on the amount of time that the children had already spent living in Germany did not lead to a different assessment of the situation, for otherwise any illegal child abduction could evolve into a permanent illegal situation, merely due to the passing of time.
The Court of Appeal noted that no special psychological education and experience were needed to realise that in general, children will tend to oppose any changes in their living conditions, in particular if such changes are initiated by a parent with whom they have had no contact for a long time and who is thus considered a stranger. According to the Court of Appeal, the children’s refusal to return to Canada, insofar as it was not a result of their mother’s influence, was mostly due to their fear of change and of an unknown future. It did not see their refusal as an indication that a return to their father by force would cause traumatic disturbances to their future development, thereby endangering their best interests. The Court of Appeal assumed that the children would quickly recover once they had returned to Canada, even if their return was brought about by force.
It did not consider that a less severe measure, such as ordering Ms Paradis to pay a fine, would be effective, as only the children’s removal from Ms Paradis’ home, if necessary by force, would ensure their safe return to Canada.
On 30 April 2003, the Federal Constitutional Court refused to entertain the constitutional complaint of Nina, Joshua and Sasha, in which they had complained about the Palatinate Court of Appeal’s decision of 9 April 2003 to vest the bailiff with the right to use force against Nina, Joshua and Sasha or to let third persons of his choice use such force, in order to ensure the execution of the court order on their return to Canada.
Also on 30 April 2003, the Zweibrücken District Court, following O.’s request, issued a new court order in which it ordered the bailiff to execute the Court of Appeal’s order of 26 June 2002, taking into account the decision of 9 April 2003. It vested the court bailiff with the right to search Ms Paradis’ premises and, if necessary, request aid from the police. The competent Youth Office was also held to assist the execution proceedings.
Article 1
“The objects of the present Convention are:
(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”
Article 2
“Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.”
Article 3
“The removal or the retention of a child is to be considered wrongful where:
(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.”
The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”
Article 5
“For the purposes of this Convention -
(a) “rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence;
(b) “rights of access” shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.”
Article 12
“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.”
Article 13
“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:
(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.”
Article 14
“In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.”
Article 15
“The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. ...”
Article 16
“After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice”
Article 19
“A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.”
Article 20
“The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.”


ITEMID: 001-61061
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF NAZARENKO v. UKRAINE
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (non-exhaustion);Violation of Art. 3;Violation of Art. 8 with regard to initial period;No violation of Art. 8 with regard to later period;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 10. On 23 October 1995 the applicant was arrested by the militia and detained on remand in the Isolation Block of the Central Department of the Ministry of the Interior of the Autonomous Republic of Crimea (слідчui ізолятор Головного Управління міністерства внутрішніх справ Автономної Республіки Крим).
11. On 26 April 1996 the Criminal Division of the Supreme Court of the Autonomous Republic of Crimea (судoва колегія з кримінальних справ Верховного суду Автономної Республіки Крим) convicted the applicant of the murder of two persons and sentenced him to death.
12. On the same day the Administration of the Isolation Block of the Central Department of the Ministry of the Interior of the Autonomous Republic of Crimea (адміністрація слідчого ізолятору Головного Управління Міністерства внутрішніх справ Автономної Республіки Крим) decided to move the applicant to a separate cell to await his execution, in accordance with the 1993 Pre-trial Detention Act (hereinafter “the Act”).
13. On 25 July 1996 the Criminal Division of the Supreme Court of Ukraine (судoва колегія з кримінальних справ Верховного суду Украïни) upheld the judgment of the first-instance court.
14. On 20 February, 27 March, 15 May, 26 June and 23 July 1997 the applicant's mother was permitted to visit her son. On 7 October 1997 she was again allowed to visit the applicant, together with the latter's brother.
15. On 24 October 1997 the Vice-President of the Supreme Court of Ukraine rejected an application for leave to lodge an extraordinary appeal, introduced by the applicant's lawyer.
16. On 23 December 1997 the applicant's mother visited her son again. Her next visit took place on 30 January 1998, when she was accompanied by the applicant's brother.
17. A moratorium on executions was declared by the President of Ukraine on 11 March 1997. In judgment no. 11рп/99 of 29 December 1999 the Constitutional Court held that the provisions of the Criminal Code concerning the death penalty were contrary to the Constitution of Ukraine. The death penalty was abolished and replaced by life imprisonment by Act no. 1483-III of 22 February 2000.
18. On 26 June 2000 the Supreme Court of the Autonomous Republic of Crimea commuted the applicant's death sentence to life imprisonment.
19. Evidence from the applicant was taken by a Court Delegation in Simferopol Prison on 4 October 1999. The Delegation was composed of Judges M. Pellonpää, J. Makarczyk and R. Maruste. The evidence taken may be summarised as follows:
20. The applicant was admitted to Simferopol Prison on 26 October 1995. On the day of the Court Delegates' visit, he confirmed that he had been informed about his rights and obligations. Actually, three or four days earlier, he signed a sheet of paper containing these rights and obligations.
21. He stated that he had been allowed to have a hot shower every Tuesday and could shave with an individual razor blade. At the same time, his hair was cut. Until autumn 1998, he could wash himself only once every ten days. Since the same date he could use an individual razor. According to him, the death row inmates started having soap and cold water in their cells in 1998. Previously, there had been water taps, but the inmates could not switch them on or off, this being done by a guard for all the prisoners. Small windows had been installed in the cells which the inmates could open to let fresh air in.
22. According to the applicant, an iron sheet covered the window in his cell until summer 1998. He confirmed that, at present, the light was enough to read or write, his cell being equipped by two lamps - a normal one and a dimmed one. He said that as far as his cell was concerned, the installation of the lamps, water taps, mirrors, new iron beds and windows had started two weeks before the Delegates' visit.
23. The applicant did not have any contacts with other prisoners. When he shared his cell with another inmate, they were taken together to the shower or for a walk. To the Court Delegates' question: “What was the longest period for which you did not have any contacts with other prisoners?”, he answered: “That was during the investigation, for about three months.” He also said that during the investigation, which had lasted six months, he had been kept in solitary confinement following a Prosecutor's decision, based on a written complaint about his allegedly inappropriate behaviour towards another inmate. According to him, the prisoners had a choice between being detained in double or single cells. He confirmed that, until the present day, he had been in the double cell.
24. He confirmed that since 1996 inmates could buy books in the prison shop and since 1999 they were allowed to get about ten newspapers. In prison there was a public radio - a loudspeaker, which was switched off at ten p.m.
25. To the Court Delegates' question: “Do you have any complaints about the food?”, the applicant answered: “How can we complain about the food when people who work do not get their salaries?”
26. According to the applicant, inmates had been examined by a medical assistant (фельдшеp) on a daily basis, and once a week by the prison doctor who could also be called in case of emergency.
27. The applicant confirmed that when he broke the rules, he was punished by being barred from having visits and receiving parcels. Since the investigation period, he had not broken any rules. As regards the general situation, he had not heard about other inmates being subjected to such treatment.
28. He also confirmed that he saw the prison governor on Thursdays. If he had some questions or complaints, he could lodge an application.
29. When the applicant wished to see his lawyer, he sent an application to the lawyer through the prison governor. Prison guards were present during the visits of the applicant's lawyer. The applicant did not write any detailed complaints or requests, discussing all those issues with his lawyer during their meetings in prison.
30. The applicant was allowed to send and receive letters at the end of 1998. During his stay in Simferopol Prison, he had received four or five letters. He had written to his mother almost every month. He did not receive his mother's letter sent in September 1999, but he did not know whether it was due to the prison censorship control.
31. The applicant started to receive packages in approximately September 1998. He stated that he had been allowed to get six parcels (посилка, передaча) and three small packets (бандероль) per year. He considered this number satisfactory even though he would have preferred to receive one parcel every month. He confirmed that his relatives were permitted to send him food.
32. The applicant was not allowed to wear any other type of clothes than those provided by the prison officials, except for underwear and socks. In summer the prisoners had to wear jackets and in winter they were given a warm coat and fur hats. According to him, the winter clothes were sufficient for that season.
33. The applicant confirmed that he had started having daily one-hour outdoor walks in summer 1998. The prison guards had not required the wearing of handcuffs since August or September 1999.
34. The witness was the governor of Simferopol Prison during the time of the applicant's detention there.
35. The witness said that on the day of the Court Delegation's visit, about 3,000 prisoners were serving a sentence in the prison, of whom 30 were on death row.
36. According to him, every death row prisoner was aware of his rights and duties. A copy of the list of rights and duties was posted in every cell. He confirmed that there was no secrecy as to the rights and obligations of prisoners and that after the decree about rights and obligations had been published, the prisoners were fully aware of them.
37. He also confirmed that he saw the applicant once a week which was, according to him, regular practice. He said that the applicant had never complained of the conditions of his detention, but disagreed with his sentence to death. He also said that the applicant had been informed about the new instructions and about the new decree concerning the rights and duties of death row inmates.
38. The witness considered the heating conditions sufficient. The prison had its own boiler and there was a fresh-air ventilation system in the cells. According to him, the prisoners had a hot shower once every seven days, when the bed linen was also changed. He denied the applicant's allegation that all death row prisoners were using the same razor, which would have created health problems on account of the risk of infection. He said that the prisoners shaved separately with blades given to them by the prison administration.
39. He stated that in the daytime there were two lamps lit plus natural light from windows in the cells, which he considered sufficient. At night, they had only one lamp lit. He said that every death row inmate had a cell of not less than 12 square metres. There was a possibility of reading books and literature using both natural and artificial light.
40. The witness said that the inmates underwent an X-ray examination twice a year. Once a week the head of the medical division visited them, and every day a medical assistant conducted an inspection.
41. The witness said that death row prisoners had the right to communicate with the outside world without any limitation, both to send and receive letters. He further said that this situation had improved since May 1999. He admitted that under the existing procedure, inmates' correspondence was censored, but he did not remember any case when an incoming letter had been stopped without being given to its addressee, including letters from the European Commission of Human Rights. He confirmed that the applicant's correspondence had been registered in the journal. Moreover, any death row prisoner could complain of any violation of the right to exchange letters to the governor, to the Prosecutor who supervised the prison, or to any other official in this department.
42. According to the witness, the possibilities for receiving parcels improved in May 1999. Since then, the prisoners were allowed to receive six food parcels (посилка, передача) and two small packets (бандероль) per year. Previously, they had not been allowed to receive any parcel until the judgment in their criminal case had become final. Moreover, the prisoners could buy food in the prison shop. They could spend Ukrainian hryvnas 55 (UAH) per month at prices which were the same as in state-owned shops from which the prison bought the food.
43. According to the witness, prior to May 1998 the inmates had not been not allowed to go for daily outdoor walks. Since then, they had been taken out for one hour without handcuffs.
44. The witness was the doctor in Simferopol Prison, where he had been working since 1992.
45. He said that the prison medical staff included six doctors (four general practitioners, one psychiatrist and one radiologist), medical assistants (фельдшер), an X-ray laboratory assistant, a pharmacist and a clinical assistant. According to him, medical services were provided 24 hours a day. Any inmate could apply at any time and get urgent medical assistance. The death row prisoners were seen by a medical assistant every day during their daily walk. They could ask him for any medical assistance and, if his help was not sufficient, they could request to see the doctor. Besides, they could apply directly to the doctor. Every inmate had a medical file compiled upon his arrival where all details and results of medical examinations were recorded and which was kept during the period of his imprisonment.
46. The witness said that on 26 October 1995 the applicant, upon his arrival at the prison, had complained about having been beaten. In March 1997 he had requested help because he suffered from a respiratory virus infection.
47. He also said that HIV testing of inmates was not obligatory and was only conducted upon individual request. The test was preceded by a confidential interview between the doctor and the prisoner. The witness did not confirm whether there were inmates infected with the HIV virus, claiming that this was confidential information. The only other person who knew about inmates infected by HIV was the doctor responsible for the testing and the preceding consultations.
48. As far as complaints about hygienic conditions in the prison were concerned, the witness had received no such complaints. He considered that the changes in regime for the death row prisoners, especially the possibility of having outdoor walks and natural light in their cells, had improved their health conditions.
49. The witness was a medical assistant having been working in Simferopol Prison for two and a half years. He was responsible for the daily control of the inmates' health conditions, while the doctor made visits and attended emergency situations. He considered that there were particular problems with death row inmates and, in fact, he worked mostly with them. He accompanied these prisoners during their daily outdoor walks.
50. He confirmed that the improvement of living conditions in the death row prisoners' cells had had a positive influence on their health. Since then he had not received any further complaints from them regarding health and hygiene.
51. The witness stated that he had never seen any signs of guards' brutality against the death row inmates or any bodily injuries. He had never heard about such complaints made to other staff in the prison. He examined the inmates on a weekly basis and he reported to his superiors. According to him, the applicant had not complained more than other inmates. He confirmed that he had been observing the applicant for two and a half years without noticing any changes in his mental state. He had not witnessed any strong symptoms of depression of the applicant.
52. The witness was the applicant's mother. In her letter of 29 May 1998 to the Court she complained that her son had been beaten. She confirmed that during his detention in custody, the applicant had been beaten and had not been provided with any medical assistance. He had been interrogated for two hours and, after another two hours, he had been taken to hospital. She could still see traces of the beatings on his face during her meeting with him six months later. She had been allowed to meet her son for the first time six months after the sentence had been pronounced. In this meeting, she had asked her son about the beatings and he confirmed that he had been beaten.
53. She did not have any complaints about the administration regarding receiving and sending letters. She rather complained generally about the prison system. She started to correspond with her son in 1998. However, she was unable to give any details in this regard. She had written her last letter to her son in mid-September 1999 but to date, he had not received it. On the other hand, she confirmed that letters had never been lost.
54. To the Government representative's questions: “During the last two or three months, how often did you send letters to your son? Can you send them every week?”, the witness answered: “If there is a need, I write him a letter.” To the Government representative's questions: “And how often do you get letters from him? Can he write to you more than once a month?”, the witness answered: “A year ago we were allowed to send one letter a month, and now there are no limitations, we can write letters as often as we want.”
55. The witness confirmed that she started to send parcels (посилка) to her son in 1998. Since then, she had had no complaints against the prison administration in this regard.
56. The witness saw the applicant once a month during a visit lasting for about 15-20 minutes or 30 minutes at the most. She had not complained about the duration of her visits or that they had been suddenly interrupted by a prison guard who was always present, being happy to have even these short visits. She spoke with her son over the telephone, seeing him through the glass. She could not see whether he was handcuffed.
57. To the Government representative's question: “And what do you think about the duration of the meetings? Could you tell, judging by the atmosphere, whether if you had asked for the meeting to be extended to one hour or longer, you would have been allowed?”, the witness answered: “I have never asked to prolong the meetings. I think if the administration says it is over, then it is over.” To the Government representative's information: “You have the right to two-hour meetings now”, the witness answered: “It is difficult to talk through glass for two hours.”
58. The witness said that the applicant had never complained in his letters about ill-treatment, beatings or about the prison administration. He had complained about parcels, letters and visits. She admitted that the situation was improving, and that the prison administration understood that inmates sentenced to the death penalty were like other inmates.
59. On 4 October 1999 the Delegates visited the prison. The size of the applicant's cell area was about 12 square metres. The cell was in order and clean. There was an open toilet, a washbasin with one tap with cold water only, two beds fixed on the floor, central heating and a window with bars. There were some books, a newspaper, a stock of soap and toilet paper. The cell was sufficiently heated and ventilated.
60. The Delegates were shown the prison shower area, which was reasonably clean. They also visited an exercise yard.
61. According to the prison shop records, the applicant bought goods on the following occasions:
On 25 September 1997 he bought foodstuffs for 5.47 (UAH), on 6 October 1997 he purchased foodstuffs and matches for UAH 9.34, on 23 October 1997 he bought foodstuffs for UAH 5.61, on 5 November 1997 he purchased foodstuffs paying UAH 5.43, on 20 November 1997 the applicant bought toiletries and foodstuffs UAH 6.40, and on 3 December 1997 he bought foodstuffs for UAH 7.36, on 18 December 1997 the applicant purchased different items for UAH 8.41.
On 9 January 1998 the applicant purchased foodstuffs and matches spending UAH 9.7, on 22 January 1998 he bought foodstuffs for UAH 6.06, and on 4 February 1998 he bought foodstuffs and matches paying UAH 15.59.
62. From the applicant's medical file which was created on 26 October 1995 it appears inter alia that the applicant underwent an X-ray examination on 26 October 1995, on 18 May and 12 November 1996, on 23 May and 3 November 1997 and on 30 May and 14 November 1998.
63. Under Article 8 §§ 2 and 3, the Constitution is directly applicable. There is a guaranteed right to lodge an action in defence of the constitutional rights and freedoms of the individual and of the citizen directly on the basis of the Constitution of Ukraine.
64. Article 9 § 1 provides that international treaties, which are in force and agreed on as binding by the Verkhovna Rada of Ukraine, are part of the national legislation of Ukraine.
65. Article 15 § 3 prohibits censorship.
66. Under Article 19 the legal order in Ukraine is based on the principles according to which no one may be forced to do what is not envisaged by the legislation. State authorities and local self-government bodies and their officials are obliged to act only according to these principles, within the limits of their authority, and in the manner envisaged by the Constitution and the laws of Ukraine.
67. Article 22 provides that human and citizens' rights and freedoms are guaranteed and may not be diminished by the adoption of new laws or the amendment of laws that are in force.
68. Under Article 29 §§ 2 and 4 no one may be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with procedures established by law. Everyone arrested or detained must be informed without delay of the reasons for his arrest or detention, apprised of his rights, and from the moment of detention must be given the opportunity to defend himself in person, or to have the assistance of a defence lawyer.
69. Under Article 55 §§ 2 and 4 everyone is guaranteed the right to challenge the decisions, actions or omissions of State authorities, local self-government bodies, officials and officers of a court of law. After exhausting all domestic legal remedies everyone has the right to appeal for the protection of his or her rights and freedoms to the relevant international judicial institutions or to the relevant authorities of international organisations of which Ukraine is a member or participant.
70. Under Article 59 everyone has the right to legal assistance. Such assistance is provided free of charge in cases envisaged by law. Everyone is free to choose the defender of his rights. In Ukraine the Bar (адвокатура) ensures the right to a defence against charges and the provision of legal assistance in deciding cases in courts and before other State authorities.
71. Article 63 § 3 provides that a convicted person enjoys all human and citizens' rights, subject only to restrictions determined by law and established by a court ruling.
72. Under Article 64 human and citizens' rights and freedoms guaranteed by the Constitution may not be restricted, except in cases envisaged by the Constitution of Ukraine.
73. Conditions on death row in the Ukrainian prison system were successively governed by an Instruction of 20 April 1998 on conditions of detention of persons sentenced to capital punishment (hereinafter “the Instruction”) and by Temporary Provisions of 25 June 1999 on the conditions of detention of persons sentenced to capital punishment in the isolation blocks (hereinafter “the Temporary Provisions”).
74. The Instruction provided that after the sentence had become final, persons sentenced to death had to be kept in isolation from other prisoners in specially designed cells. Save in exceptional cases, no more than two such prisoners were to be detained in one cell. The cell area allocated to one prisoner in a single cell had to be not less than 4 square metres, and in a double cell not less than 3 square metres. They were provided with an individual sleeping-place and with bed linen. The inmates wore a uniform designed for the category of especially dangerous recidivists. Reference was also made to their legal status and obligations. This determined the frequency of meetings with relatives and the number of letters inmates could send and receive: they were allowed one visit per month and could send one letter per month. There was no limitation on the mail they could receive. The inmates could receive two small packets a year. They were allowed to have a daily one-hour walk in the fresh air. Outside their cells, inmates were handcuffed. They were not allowed to work.
Prisoners were also allowed to read books, magazines and newspapers borrowed from the prison library and/or bought through the prison distribution network; they could receive money transfers; they could keep personal objects and food in their cells, and buy food and toiletries in the prison shop twice a month (up to the value of the statutory minimum wage), and play board games. They could meet lawyers. The inmates were also allowed to have visits from lawyers. Medical treatment was provided in accordance with national legislation.
The prisoners could lodge complaints with state authorities. Such complaints had to be dispatched within three days. Complaints to the Public Prosecutor were not censored.
75. The Temporary Provisions extended the rights of persons sentenced to capital punishment in comparison with the Instruction. In particular, prisoners were allowed to have eight hours of sleep during the night, they could receive six parcels and three small packets per year, buy food and toiletries in the prison shop (up to the value of 70% of the statutory minimum wage), pray and read religious literature and have visits from a priest, and write complaints to State authorities. They were allowed to send and receive letters without any limits and to have monthly visits of up to two hours from their relatives. A prison official had to be present during visits.
76. According to the Code of Criminal Procedure, pre-trial detention is a preventive measure in respect of an accused, a defendant or a person suspected of having committed a crime punishable with imprisonment, or a convicted person whose sentence has not yet been enforced.
77. In accordance with section 8(4) of the Act, persons sentenced to capital punishment whose sentence had not become final were held separately from all other detained persons.
78. Section 9(1) of the Act provides inter alia that detainees have the right (a) to be defended in accordance with the rules of criminal law, (b) to be acquainted with the rules of detention, (c) to take a one-hour daily walk, (d) to receive twice a month a parcel weighing up to eight kilograms and to receive unlimited money transfers and amounts of money by way of remittance or personal delivery, (e) to buy foodstuffs and toiletries to the value of one month's statutory minimum wage, paying by written order, as well as unlimited amounts of stationery, newspapers and books in prison shops, (f) to use their own clothing and footwear and to have with them documents and notes related to their criminal case, (g) to use TV sets received from relatives or other persons and board games, newspapers and books borrowed from the library in their previous place of imprisonment or bought at shops, (h) individually to perform religious rituals and use religious literature and objects made of semi-precious materials pertaining to their beliefs, provided that this does not lead to a breach of the rules applicable to places of pre-trial detention or restrict the rights of other persons, (i) to sleep eight hours a night, during which time they are not required to participate in proceedings or to do anything else except in cases of extreme emergency and (j) to lodge complaints and petitions and send letters to State authorities and officials in accordance with the procedure prescribed by section 13 of the Act.
79. Under section 11, detainees are required to be provided with everyday conditions that meet sanitary and hygiene requirements. The cell area for one person may not be less than 2.5 square metres. Detainees are to be supplied with meals, an individual sleeping-place, bedclothes and other types of materials and everyday provisions free of charge and according to the norms laid down by the Government. In case of need, they are to be supplied with clothes and footwear of a standard form.
80. In accordance with section 12(1), permission for relatives or other persons to visit a detainee (in principle, once a month for one to two hours) can be given by the administrative authorities of the place of detention, but only with the written approval of an investigator, an investigative authority or a court dealing with the case. Under paragraph 4, detainees have the right to be visited by defence counsel, whom they may see alone with no restrictions on the number of visits or their length, from the moment the lawyer in question is authorised to act on their behalf, such authorisation being confirmed in writing by the person or body dealing with the case.
81. Pursuant to section 13(1), detainees can exchange letters with their relatives and other persons and enterprises, establishments and organisations with the written permission of an authority dealing with the case. Once a sentence starts to run, correspondence is no longer subject to any limitations.
82. According to Article 28 of the Code (Main requirements of the regime in detention institutions), the main features of the regime in detention establishments are: the compulsory isolation and permanent supervision of sentenced persons, so as to exclude any possibility of the commission of new crimes or other acts against public order; strict and continuous observance of obligations by these persons; and various detention conditions dependent on the character and gravity of the offence and the personality and behaviour of the sentenced person.
Sentenced persons must wear a uniform. They must also be searched; body searches must be conducted by persons of the same sex as the person searched. Correspondence is subject to censorship, and parcels and packages subject to opening and checking. A strict internal routine and rules must be established in corrective labour establishments.
Sentenced persons are prohibited from keeping money and valuables, or other specified objects, in corrective labour establishments. Any money and valuables found are to be confiscated and, as a rule, transferred to the State in accordance with a reasoned decision of the governor of the institution, sanctioned by a prosecutor.
A list of objects which sentenced persons are allowed to possess, showing the number or quantity of each item and the procedure for confiscating objects whose use is prohibited in corrective labour establishments, must be established by the internal regulations of such establishments.
Under the procedure established by the Code, sentenced persons are allowed to buy food and toiletries, paying by written order, to be visited, to receive parcels, postal parcels, packages and money by remittance, to correspond and to send money to relatives by remittance.
83. Article 37 § 1 (Purchase of food and toiletries by sentenced persons) provides that sentenced persons are allowed to buy food and toiletries, paying by written order, from the money received by remittance.
84. Article 40 provides inter alia that a lawyer may be given permission to meet his client on presentation of his licence and identity card. Visits are not limited as to their number and length and, at the lawyer's request, may be carried out without a prison warder being present.
85. Under Article 41 (Receipt of parcels and small packets by persons sentenced to imprisonment) sentenced persons held in corrective labour colonies (виправнo-тpудова колонія) are allowed to receive, per year: seven parcels in colonies subject to the general regime (колонія загального режиму), six parcels in colonies subject to the strengthened regime (колонія посиленого режиму) and five parcels in colonies subject to the strict and special regime (колонія суворого режиму). Sentenced persons held in educational labour colonies (колонія виховно-трудова) are allowed to receive per year: ten parcels in colonies subject to the general regime and nine parcels in colonies subject to the strengthened regime.
Convicted offenders serving their sentence in a prison are not allowed to receive parcels.
Irrespective of the type of regime under which they are held, sentenced persons are allowed to receive not more than two small packets per year, and to buy literature through the sales distribution network without any restrictions.
The quantity of parcels and small packets of all types is not restricted for sentenced persons held in corrective labour colony camps (виправнo-тpудова колонія-поселення).
A list of foodstuffs and toiletries which sentenced persons are allowed to receive in postal parcels and small packets, as well as the procedure for their receipt by and delivery to the sentenced persons, is to be established in the internal regulations of corrective labour establishments.
86. Under Article 42 (Receipt and sending of money by sentenced persons by remittance) sentenced persons are allowed to receive unlimited amounts of money by remittance, as well as to send money to their relatives and, if this is permitted by the authorities of the corrective labour establishments, to other persons. The money received by remittance is transferred to the personal account of the sentenced person.
87. Article 43 § 2 (Correspondence of persons sentenced to imprisonment) provides that sentenced persons held in prisons may receive unlimited mail and may send letters as follows: one letter per month for those held under the general regime and one letter every two months for those held under the strengthened regime.
88. According to section 12(1) the public prosecutor deals with petitions and complaints concerning breaches of the rights of citizens and legal entities, except complaints that are within the jurisdiction of the courts. Paragraph 4 provides that an appeal lies from the prosecutor's decision to the supervising prosecutor and, in certain cases, to the court. Paragraph 5 provides that the decision of the Prosecutor General is final.
89. Under section 38 the prosecutor or his deputy has the power to make a request to a court for any materials in a case where a judgment or another decision has come into force. If there are any grounds for reopening the proceedings, the prosecutor challenges the court judgment or any other decision.
90. Under section 44(1) the matters subject to the public prosecutor's supervision are: adherence to the legal rules on pre-trial detention, and corrective labour or other establishments for the execution of sentences or coercive measures ordered by a court, adherence to the procedures and conditions for holding or punishing persons in such establishments; the rights of such persons and the manner of carrying out by the relevant authorities of their duties under the criminal law and legislation on the enforcement of sentences. The public prosecutor may at any time visit places of pre-trial detention, establishments where convicted persons are serving sentences or establishments for compulsory treatment or reform, in order to conduct interviews or peruse documents on the basis of which persons have been detained, arrested or sentenced or subject to compulsory measures; he may also examine the legality of orders, resolutions and decrees issued by the administrative authorities of such establishments, terminate the implementation of such acts, appeal against them or annul them where they do not comply with the law, and request officials to give explanations concerning breaches which have occurred.
91. In its Resolution, the Assembly deplored the executions which, reportedly, had been carried out recently in Latvia, Lithuania and Ukraine. In particular, it condemned Ukraine for apparently violating its commitments to introduce a moratorium on executions of the death penalty upon its accession to the Council of Europe. It called upon this country to honour its commitments regarding the introduction of a moratorium on executions and the immediate abolition of capital punishment warning it that further violation of its commitments, especially the carrying out of executions, would have consequences under Order No. 508 (1995).
92. The Assembly confirmed in this Resolution that it had received official information that, in the first half of 1996, eighty-nine executions had been carried out in Ukraine, and regretted that the Ukrainian authorities had failed to inform it of the number of executions carried out in the second half of the year. The Assembly was particularly shocked that executions in Ukraine had been shrouded in secrecy, with apparently not even the families of the prisoners having been informed, and that the executed had been reportedly buried in unmarked graves. It condemned Ukraine for having violated its commitment to put into place a moratorium on executions, deplored the executions that had taken place, and demanded that it immediately honour its commitments and halt any executions still pending.
93. In these texts, the Assembly noted that Ukraine had clearly failed to honour its commitments (212 persons had been executed between 9 November 1995 and 11 March 1997, according to official sources). At the same time, it noted that since 11 March 1997 a de facto moratorium on executions had been in effect in Ukraine. The Assembly insisted that the moratorium be reconfirmed de jure and that the Verkhovna Rada ratify Protocol No. 6 to the Convention. It stressed the importance of the de facto moratorium on executions and firmly declared that, if any further executions took place, the credentials of the Ukrainian parliamentary delegation would be annulled at the following part-session of the Assembly, in accordance with Rule 6 of its Rules of Procedure.
94. Delegates of the CPT visited places of detention in Ukraine in the years 1998, 1999, and 2000. Reports on each of the visits were published on 9 October 2002, together with the Responses to the Reports of the Ukrainian Government.
95. The visit of the delegation, which took place from 8 to 24 February 1998, was the CPT's first periodic visit to Ukraine. In the course of the visit the delegation inspected, inter alia, the pre-trial prison (SIZO) (“investigation isolation” establishment) No. 313/203 in Kharkiv. On the ground floor of building No. 2 of SIZO No. 203 were housed at the time of the visit fifteen prisoners who had been sentenced to death, although as was recorded in a footnote to the Report, the delegation had received assurances that since 11 March 1997 a de facto moratorium on executions had been observed.
96. In its Report (paragraph 131), the CPT expressed at the outset its serious concern about the conditions under which these prisoners were being held and about the regime applied to them. It was noted that prisoners sentenced to death were usually accommodated two to a cell, the cell measuring 6.5-7m². The cells had no access to natural light, the windows being obscured by metal plates. The artificial lighting, which was permanently on, was not always sufficiently strong with the result that some cells were dim. To ventilate the cells, prisoners could pull a cord that opened a flap; despite this the cells were very humid and quite cold (paragraph 132).
The equipment in the cells was described in the Report as being rudimentary, consisting of a metal bed and/or sloping platform (equipped with a thin mattress, sheets of dubious cleanliness and a blanket which was manifestly insufficient to keep out the cold), a shelf and two narrow stools. Prisoners were supposed to be able to listen to radio programmes via a speaker built into the wall of the cell, but it had been reported to the delegation that the radio only functioned sporadically (ibid.).
All the cells had un-partitioned toilets which faced the living-area; as a result, a prisoner using the toilet had to do so in full view of his cellmate. As regards toiletries, prisoners sentenced to death were in a similarly difficult situation as many of the other inmates; items such as soap and toothpaste were rarities (ibid.).
It was further recorded that prisoners sentenced to death had no form of activity outside their cells, not even an hour of outdoor exercise. At best they could leave their cells once a week to use the shower in the cell-block, and for an hour a month, if they were authorised to receive family visits. In-cell activities consisted of reading and listening to the radio when it worked. Apart from the monthly visits which some inmates received, human contact was limited essentially to the occasional visit by an Orthodox priest or a member of the health-care staff, who spoke to the prisoners through a grill in the cell-door (paragraph 133).
97. The CPT summarised its findings in this regard as follows:
“In short, prisoners sentenced to death were locked up for 24 hours a day in cells which offered only a very restricted amount of living space and had no access to natural light and sometimes very meagre artificial lighting, with virtually no activities to occupy their time and very little opportunity for human contact. Most of them had been kept in such deleterious conditions for considerable periods of time (ranging from 10 months to over two years). Such a situation may be fully consistent with the legal provisions in force in Ukraine concerning the treatment of prisoners sentenced to death. However, this does not alter the fact that, in the CPT's opinion, it amounts to inhuman and degrading treatment.” (paragraph 134).
It was further recorded that the delegation had received numerous complaints from prisoners sentenced to death about the fact that they lacked information with regard to their legal situation, the progress of their cases, follow-up to applications for cases to be reviewed, examination of their complaints etc. (paragraph 138).
98. In its Response to the 1998 Report, the Ukrainian Government recorded that a number of organisational and practical steps had been taken to resolve the problems identified by the CPT. In particular, the Temporary Regulations had been introduced to guarantee to prisoners sentenced to death the right to be visited once a month by relatives, to be visited by a lawyer to get legal assistance, to be visited by a priest and to receive and send correspondence without limitation. It was further noted
(i) that prisoners sentenced to death would have daily walks in the open air and that for this purpose 196 yards of the pre-trial prisons had been rebuilt or re-equipped;
(ii) that, in order to improve natural lighting and air of all cells, the blinds and metal peakes over cell windows had been removed; and
(iii) that, for the purposes of informing inmates sentenced to death of their rights and legal status, extracts from the Temporary Regulations had been placed on the walls of each cell.
99. A CPT delegation visited Ukraine from 15 to 23 July 1999 in the course of which they again inspected SIZO No. 313/203 in Kharkiv where, at the time of the visit, there were detained 23 prisoners who had been sentenced to death. The Report noted that certain changes had occurred since the previous visit. In particular, the cells had natural light and were better furnished and the prisoners had an hour of exercise per day in the open air, although it was observed that there was insufficient space for real physical exercise (paragraphs 34-35). The Report further recorded that important progress had been made in the right of prisoners to receive visits from relatives and to correspond (paragraph 36). However, the CPT noted certain unacceptable conditions of detention including the fact that prisoners continued to spend 23 out of 24 hours a day in their cells and that opportunities for human contact remained very limited (paragraph 37).
100. A third visit to Ukraine took place from 10 to 21 September 2000, in the course of which the delegation inspected, inter alia, the pre-trial prison (SIZO No.15) in Simferopol. The CPT welcomed the decision of the Ukrainian authorities to abolish the death penalty and noted that most of the approximately 500 prisoners subject to the death sentence had had their sentences commuted to life imprisonment.
101. Despite these welcome steps, the CPT recorded that the treatment of this category of prisoner was a major source of concern to the Committee (paragraph 67). It was noted that, further to a provisional instruction issued in July 2000 and pending the establishment of two high-security units specifically intended for life prisoners, such prisoners were subjected to a strict confinement regime (paragraph 68). While living space in the cells was generally satisfactory and while work had started on refurbishing cells in all the establishments visited, there were major deficiencies in terms of access to natural light and the quality of artificial light and ventilation (paragraph 69). Moreover, life-sentence prisoners were confined in their cells for 23 ½ hours a day with no form of organized activities and, by way of activities outside their cells, were entitled to only half an hour outdoor exercise, which took place in unacceptable conditions. There was virtually no human contact: since the entry into force of the July 2000 instruction, visits from relatives had been forbidden and prisoners were only allowed to send one letter every two months, although there were no restrictions on receiving letters (paragraph 70).
102. In their Response to the Report the Ukrainian Government noted further legal amendments which ensured that life prisoners had one hour of exercise per day and two family visits of up to four hours per month. Further, to ensure adequate access to light, metal shutters had been removed from windows in all cells.
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