ITEMID: 001-57546
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 1987
DOCNAME: CASE OF NÖLKENBOCKHOFF v. GERMANY
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (victim);No violation of Art. 6-2
JUDGES: C. Russo;N. Valticos
TEXT: 11. Mrs. Martha Nölkenbockhoff, a German national, is the widow and heir of Mr. Theodor Nölkenbockhoff, who died on 13 November 1981. She lives in Selm-Bork.
12. Her husband was a senior manager in a holding company, Stumm AG, whose trading activities centred on iron, steel and fuel, including motor fuel. He joined the firm on 1 July 1967 and subsequently held a number of key positions in it.
On 25 October 1974, Stumm AG ceased payments by reason of insolvency and asked the Essen District Court (Amtsgericht) to set in motion composition proceedings (Vergleichsverfahren).
On 13 November 1974, Mr. Nölkenbockhoff was arrested under a warrant issued by the Essen District Court on 11 November; he was suspected among other things of bankruptcy offences. Other senior managers in the company were also arrested.
13. On 17 May 1976, the indictment, which was 489 pages long, was served on Mr. Nölkenbockhoff and four co-defendants.
The trial hearings began on 29 October 1976 before the 6th Criminal Chamber (6. Grosse Strafkammer) of the Essen Regional Court (Landgericht). They lasted until 11 July 1980, two or three hearings being held each week. The court heard evidence from hundreds of witnesses, and several thousand documents were read out. The applicant’s husband was defended by two counsel, one of whom was assigned by the court.
14. On 11 July 1980, the Regional Court delivered its judgment, which ran to 579 pages.
Mr. Nölkenbockhoff was found guilty inter alia on several charges of breach of trust (Untreue), criminal bankruptcy (Bankrott) and fraud (Betrug), and given an aggregate sentence of eight years’ imprisonment. His four co-defendants were also sentenced to prison terms - two of them, for more or less identical offences and a few additional ones, to nine years, nine months and to eight years, six months respectively; the other two, for aiding and abetting, to four years, three months each. In respect of a series of fraud charges, the Regional Court stayed the proceedings under Article 154 of the Code of Criminal Procedure (see paragraph 23 below); and it acquitted Mr. Nölkenbockhoff and two of his co-defendants on a number of other charges.
In determining the sentences, the Regional Court took into account as extenuating circumstances the length of the proceedings and, in respect of the applicant’s husband, his detention on remand for some three years; this period was deducted from the total sentence.
15. Mr. Nölkenbockhoff entered an appeal on points of law on the same day that judgment was given. After receiving the text of the judgment on 5 October 1981, he filed - on 19 October - full pleadings which ran to 735 pages with 94 appendices. The Federal Court of Justice (Bundesgerichtshof) had not given a decision by the time he died on 13 November, so that the proceedings in respect of Mr. Nölkenbockhoff came to an end without any decision being taken on his appeal.
Three of the co-defendants, who had likewise challenged the Regional Court’s judgment, later withdrew their appeals on points of law; the appeal lodged by the fourth person convicted, Mr. M, was dismissed by the Federal Court on 7 July 1982 as being manifestly ill-founded.
16. Having been arrested and detained on remand on 13 November 1974 (see paragraph 12 above), Mr. Nölkenbockhoff was released on bail at the end of March 1977 in order to undergo a bile-duct operation. He was re-arrested on 21 February 1979 but freed by the Hamm Court of Appeal (Oberlandesgericht) on 23 March 1979, the court holding that there was no valid ground for quashing the March 1977 order suspending execution of the arrest warrant.
On 30 April 1980, the Essen Regional Court ordered his re-arrest and, at the same time, the arrest of all the co-defendants; as the public prosecutor had made his final submissions, calling for heavy sentences, the court held that the measures taken to prevent the defendants absconding were no longer sufficient.
On 26 June 1981, Mr. Nölkenbockhoff was released on health grounds.
17. In written pleadings dated 1 December 1981, the applicant, as her deceased husband’s sole heir, sought orders that the Treasury should bear the necessary costs and expenses (notwendige Auslagen) incurred by her late husband in connection with his conviction by the Regional Court and that the estate should be paid compensation for his detention pending trial. In the alternative, she requested the Regional Court to adjourn a decision on her applications until such time as the Federal Court of Justice had given judgment on the appeal brought by the co-defendant Mr. M.
On 5 March 1982, the Essen Regional Court found against Mrs. Nölkenbockhoff. Its decision read as follows:
"...
The applications are admissible ... but ill-founded.
Where proceedings are terminated by reason of a defendant’s death, his necessary costs and expenses are normally borne by the Treasury, but this does not apply where, were it not for this technical bar, the defendant would almost certainly have been convicted or his conviction almost certainly have been upheld (wenn es bei Wegdenken des Verfahrenshindernisses annähernd sicher zu erwarten war, dass es zur Verurteilung des Angeklagten gekommen bzw. bei einer Verurteilung geblieben wäre). This was so in the instant case.
The defendant had already been found guilty, in a judgment that had not become final, after lengthy court proceedings in a trial (Hauptverhandlung) lasting more than three and a half years. The judgment convicting the three co-defendants ..., who were likewise sentenced to several years’ imprisonment, has become final. The co-defendant M is maintaining his appeal on points of law.
The submissions made by the defence in its full pleadings afford no reason to suppose that the defendant would have been acquitted had the proceedings continued. The pleas alleging procedural defects (formelle Rügen) - even assuming them to be well-founded - would have been material to the decision to be taken in the instant case only if, in the event of a new trial, a different verdict on the merits would have been expected, that is to say an acquittal. The fact that [three of] the defendants ... have withdrawn their appeals on points of law, thereby confirming the judgment against them, argues decisively in favour of the correctness (materielle Richtigkeit) of the judgment.
As to the plea alleging a breach of substantive law (materielle Rüge), the defence’s submissions again provide nothing to support the hypothesis that the proceedings were moving towards an acquittal. The quotations from the trial court’s judgment are taken out of context, do not cover the considerations (Erörterungen) subsequently set out by that court in the reasons for its judgment and are accordingly not consistent with its assessment of the case as a whole.
For the same reasons the court declines to award compensation for the time spent in detention on remand, pursuant to section 6(1)(2) of the Criminal Proceedings (Compensation) Act (Gesetz über die Entschädigung für Strafverfolgungsmassnahmen) [see paragraph 26 below].
Nor, to the extent that the proceedings were provisionally stayed under Article 154 of the Code of Criminal Procedure [see paragraph 23 below], are there any grounds for ordering the Treasury to pay the defendant’s necessary costs and expenses, because in view of the reasons given for the judgment, it was much more likely, having regard to the adverse financial position of the Stumm holding company, that if the proceedings had continued, the defendant would have been convicted on the counts in question (weil nach den Ausführungen im Urteil es bei der ungünstigen wirtschaftlichen Situation des Stummkonzerns bei einer Fortsetzung des Verfahrens wesentlich wahrscheinlicher war, dass es insoweit zu einer Verurteilung des Angeklagten gekommen wäre).
That being so, the court does not consider it necessary to defer judgment until a decision has been given on the co-defendant M’s appeal on points of law.
...."
18. The applicant appealed to the Hamm Court of Appeal against that decision on 11 March 1982. In written pleadings dated 18 March, she challenged, inter alia, the Regional Court’s finding that, had her husband not died, he "would almost certainly have been convicted or his conviction almost certainly have been upheld". She claimed that that statement was erroneous and infringed the Basic Law (Grundgesetz) and Article 5 (paragraphs 1 and 3) (art. 5-1, art. 5-3) and Article 6 (paragraphs 1 and 2) (art. 6-1, art. 6-2) of the Convention. The court caused the conviction to "become final" posthumously, thereby prejudicing her as the defendant’s widow with regard to the rights relied on and, in particular, entailing a violation of Article 6 § 2 (art. 6-2) of the Convention. It was as if it were sought to obtain a final (abschliessend) conviction of the deceased by a side wind in the form of a decision as to costs although no final (rechtskräftig) judgment had been handed down confirming that he had committed the offences with which he was charged. The Regional Court likewise disregarded the presumption of innocence in stating that the grounds of appeal afforded no reason to suppose that the defendant would have been acquitted. It ought at most to have decided, after a summary examination of the case, that the appeal on points of law had some prospects of success, or it should have refrained from expressing a view. It was precisely for that reason that the applicant had requested an adjournment to await the judgment of the Federal Court of Justice in the appeal proceedings brought by one of the co-defendants. The court, however, had prejudged the Federal Court’s decision by holding that the plea alleging a breach of substantive law again provided nothing to support the hypothesis of an acquittal: the court should have known that vital points in Mr. Nölkenbockhoff’s appeal were also relied on by the co-defendant M.
The applicant pointed out in addition that from the outset her husband had denied having committed any offences and had indeed been acquitted on several counts. In the light, inter alia, of Article 6 § 2 (art. 6-2) of the Convention, it therefore had to be assumed that in the event of a new trial he would have been acquitted completely. Since criminal law was based on the principle of individual guilt, it was quite simply unacceptable - and, once again, contrary to Article 6 § 2 (art. 6-2) - to judge the deceased by the conduct of three of the co-defendants. In any case, the fact that those co-defendants had withdrawn their appeals on points of law could not be regarded as an admission of guilt; besides, they had held responsibilities within Stumm AG different from those of her husband.
19. The public prosecutor’s office in Bochum and the principal public prosecutor’s office (Generalstaatsanwaltsschaft) at the Hamm Court of Appeal, to which Mrs. Nölkenbockhoff’s appeal (sofortige Beschwerde) had been forwarded for any comments, contended that the appeal should be dismissed.
On 28 December 1981, the Bochum public prosecutor submitted that, having regard to the state of the proceedings, there was every likelihood (hohe Wahrscheinlichkeit) that the conviction would have been upheld.
The principal public prosecutor gave his opinion on 11 June 1982. He considered that an assessment of the likely outcome of the proceedings (Prüfung des mutmasslichen Verfahrensausgangs), having regard to the reasons given in the judgment of the Essen Regional Court and the grounds of the appeal on points of law, could lead to only one conclusion. It could be assumed - and, indeed, had to be - that if the proceedings had been continued, the defendant’s conviction would have been upheld. The principal public prosecutor took the view that the outcome of the appeal brought by the co-defendant M and still pending before the Federal Court of Justice was of some relevance in assessing the likely outcome of the proceedings concerning Mr. Nölkenbockhoff, who, according to the aforementioned judgment, had committed his various offences in concert (Mittäterschaft) with the said co-defendant.
20. The applicant, to whom the public prosecutors’ observations had been communicated, replied on 6 July 1982. She stated, inter alia, that there were considerable dissimilarities between M and her husband as regards the charges against them, their behaviour and the grounds of their appeals; and as evidence of this she pointed to the indictment, the judgment convicting the defendants, and the appeals.
21. The Hamm Court of Appeal dismissed the action on 14 July 1982.
It left open the question whether, in the event of a defendant’s death before the final conclusion (rechtskräftiger Abschluss) of criminal proceedings, a decision such as that sought by Mrs. Nölkenbockhoff could be taken, by analogy, under Article 467 § 1 of the Code of Criminal Procedure and section 6(1)(2) of the Criminal Proceedings (Compensation) Act (see paragraphs 24-26 below). And it added:
"Even assuming such decisions are possible (Zulässigkeit), the assessment of the probable outcome of the trial, which must be made in both instances, leads to the conclusion that if the proceedings had been pursued until a final decision was handed down, the former defendant’s conviction would almost certainly (mit annähernder Sicherheit) have been upheld. In order to avoid repetition, reference is made to the reasons given for the contested decision, which are valid (zutreffend). It should be noted in addition that the appeal on points of law of the co-defendant M was subsequently dismissed, on 7 July 1982, by the Federal Court of Justice ... as being manifestly ill-founded. That fact is of particular importance in assessing the prospects of success which ... Mr. Nölkenbockhoff’s appeal would have had, because according to the reasons given for the judgment of 11 July 1980, the offences of which [he] was convicted at first instance were committed together with ... M.
...."
On 2 September 1982, the Court of Appeal rejected the objections (Gegenvorstellungen) which the applicant had lodged against the judgment of 14 July 1982.
22. Mrs. Nölkenbockhoff then applied to the Federal Constitutional Court (Bundesverfassungsgericht), claiming a breach of Article 1 § 1 (protection of the dignity of man), Article 14 § 1 (the right of property) and Article 20 § 3 (principle of the rule of law) of the Basic Law.
On 30 September 1982, a bench of three judges of the Constitutional Court refused to entertain the constitutional complaint because it considered that the complaint did not have sufficient prospects of success. The reasons for its decision were as follows:
"1. The presumption of innocence, which is founded on the principle of the rule of law, precludes treating as guilty a person who has not been finally (rechtskräftig) convicted. That does not mean, however, that in every case costs must be reimbursed where the proceedings are terminated without guilt having been established (Schuldnachweis) ...
2. The refusal of the applications for an order that the Treasury should bear the deceased defendant’s necessary costs and expenses is based on Article 467 § 3, second sentence, sub-paragraph 2, of the Code of Criminal Procedure. The decision on the claim for compensation is based on section 6(1)(2) of the Criminal Proceedings (Compensation) Act. Both provisions, whose conformity with the Constitution cannot be doubted, confer on the courts a degree of discretion. There is nothing to suggest that the courts exercised their discretion in a manner contrary to the Constitution.
(a) Admittedly, the decisions being challenged make a prediction of the probable outcome of the proceedings had they been continued. However, such an assessment does not amount to a finding of guilt but merely to a finding of a continuing state of suspicion (Eine derartige Einschätzung enthält indessen nicht die Feststellung einer Schuld, sondern lediglich die Feststellung einer fortbestehenden Verdachtslage). Consequently, it does not offend the presumption of innocence.
(b) Nor was the prediction of the outcome of the proceedings arbitrary in nature.
(aa) Neither the alleged defects ... in the judgment convicting the defendant nor the grounds of the appeal on points of law make it possible to dismiss as untenable the conclusion reached in the contested decisions that a (subsequent) acquittal was unlikely in respect of each of the offences of which the deceased defendant had been convicted. That was the only relevant issue for the order as to costs. The courts’ reference to the lack of success of the appeal proceedings instituted by the co-defendant M and to the withdrawal of the appeals on points of law entered by the other defendants is clearly to be regarded merely as an additional argument, and the impugned decisions are not based on it.
(bb) Nor do the grounds advanced in support of the constitutional complaint show the unreasonableness of the Regional Court’s opinion that, had the proceedings been continued, a conviction would have been more likely than an acquittal ... [in connection with the charge in respect of which the proceedings had been provisionally stayed] ...
...."
23. Article 154 of the Code of Criminal Procedure, which was applied by the Essen Regional Court in its judgment of 11 July 1980, provides:
"1. The public prosecutor may decide not to prosecute
(1) where the penalty or the corrective or preventive measure to be expected if a conviction is secured is almost negligible in comparison with a penalty or corrective or preventive measure imposed on the defendant in a final decision - or which he must expect to be imposed - for another offence ...
....
2. Once proceedings have been instituted, the court may provisionally stay them at any stage on an application by the public prosecutor.
...."
24. By the terms of Article 464 of the Code of Criminal Procedure, any judgment, order of summary punishment or decision terminating a set of proceedings must determine who is to pay the costs of the proceedings (paragraph 1); the judgment or decision in which the proceedings culminate shall state who is to bear the necessary costs and expenses (paragraph 2).
Article 467 of the Code of Criminal Procedure further provides:
"1. If the defendant (Angeschuldigter) is acquitted or if committal for trial (Hauptverfahren) is refused or if the proceedings against him are discontinued, the costs of the proceedings and the defendant’s necessary costs and expenses shall be borne by the Treasury.
...
3. ... The court may decline to award the defendant’s necessary costs and expenses against the Treasury where the defendant
...
(2) has avoided conviction merely because of a technical bar to the proceedings (Verfahrenshindernis).
4. If the court stays the proceedings under a provision which leaves this decision to its discretion, it may decide not to order the Treasury to bear the defendant’s necessary costs and expenses.
...."
Inasmuch as the law does not make the reimbursement of necessary costs and expenses mandatory, the courts decide the issue on an equitable basis and have a degree of discretion in the matter.
25. The death of a person who has been convicted, if it occurs before the relevant criminal proceedings have been definitively closed, terminates those proceedings without any decision by the competent court being needed; in such circumstances, the costs of the proceedings cannot be awarded against the estate of the deceased (Article 465 § 3 of the Code of Criminal Procedure).
As regards the deceased’s own necessary costs and expenses and indemnification in respect of any time spent by the deceased in detention on remand, the practice of the German courts at the time in question varied. Some courts considered any indemnification to be precluded, whereas others - such as the Essen Regional Court in the present case - applied the relevant provisions of the Code of Criminal Procedure and the Criminal Proceedings (Compensation) Act. On 3 October 1986, the Federal Court of Justice held that, in the absence of any basis in law, the necessary costs and expenses of a defendant who has died before the conviction has become final cannot be awarded out of public funds.
26. By section 2(1) of the Criminal Proceedings (Compensation) Act of 8 March 1971, any person who has suffered prejudice by reason of having been detained on remand shall be indemnified by the Treasury in the event of his being acquitted or if the proceedings brought against him are discontinued. This rule is, however, subject to certain exceptions, including the one laid down in section 6(1)(2) of the Act, which provides:
"1. Compensation may be refused wholly or in part where the defendant
...
(2) is not convicted of an offence or proceedings are discontinued solely on account of ... a technical bar."
By section 8 of the same Act, the competent court shall give a ruling on indemnification in the judgment or the decision terminating proceedings.
27. The scope of the principle of the presumption of innocence in the context of discontinuance of criminal proceedings has recently been clarified by the Federal Constitutional Court. By a judgment (Beschluss) delivered on 26 March 1987, the Federal Constitutional Court quashed, as contravening the principle, two decisions by district courts and one decision by a regional court whereby the courts, having held the guilt of the defendants to be insignificant (gering), had stayed the private prosecutions brought against them but had awarded the costs of the proceedings against the defendants, including the costs and expenses of the complainants (cases 2 Bvr 589/79, 2 BvR 740/81 and 2 Bvr 284/85, Europäische Grundrechte-Zeitschrift 1987, pp. 203-209).
The Constitutional Court held it to be inconsistent with the presumption of innocence to speak in the reasons given for a discontinuance decision of a defendant’s guilt or to base an order as to costs and expenses on the supposition (Annahme) that a defendant has been guilty of an offence if the trial has not reached the stage at which the verdict can be given (Schuldspruchreife). It pointed out that the principle of the presumption of innocence derived from the principle of the rule of law, and it also referred to Article 6 § 2 (art. 6-2) of the Convention. The Convention did not have the status of constitutional law in the Federal Republic, but regard should be had to it and to the case-law of the European Court of Human Rights in interpreting the principles and fundamental rights enshrined in the Basic Law (Grundgesetz).
Reaffirming its case-law, the Constitutional Court reiterated that, by virtue of the principle of the presumption of innocence, no measures amounting in effect to a penalty may be taken against a defendant without his guilt having been established beforehand at a proper trial and no defendant may be treated as guilty. The court added that this principle requires that guilt be proved according to law before it can be held against the person concerned. A finding of guilt will accordingly not be legitimate for this purpose unless it is pronounced at the close of a trial which has reached the stage at which a verdict can be given.
Citing the Minelli judgment of 25 March 1983 (Series A no. 62), the Constitutional Court ruled that a decision discontinuing criminal proceedings may offend the presumption of innocence if it contains in its reasoning a finding of the defendant’s guilt without that guilt having been proved according to law. On the other hand, nothing precluded a court from making findings in such a decision as to the defendant’s guilt and ordering him to pay the necessary costs and expenses of the complainants as well as the costs of the proceedings if it had held a hearing enabling it to reach a verdict (Entscheidungsreife).
On the basis of these considerations, the Constitutional Court quashed three of the five decisions challenged but dismissed the application in the first of the three cases concerned, as the defence had made the closing address after a trial.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-2


ITEMID: 001-99210
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF SHARKUNOV AND MEZENTSEV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);No violation of Art. 3 (procedural aspect);No violation of Art. 3 (substantive aspect);Violation of Art. 6-1 and 6-3-d;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicants were born in 1969 and 1971 respectively. They are serving their prison sentences in the Kurgan Region.
5. On 5 May 1999 the first applicant (Mr Sharkunov) was brought to the Organised Crime Unit of the Kurgan Regional Department of the Interior in the town of Shadrinsk. He was suspected of a Mr M.'s murder. As can be seen from the arrest report drawn up at 2.25 a.m. on 6 May 1999, the applicant's family and next of kin were not informed. According to the applicant, the police officers placed a canvas bag on his head, beat him and administered electric shocks with the purpose of extracting a confession from him. The applicant made no confessions.
6. During the same night, from 2.35 to 3.15 a.m., the first applicant was brought before investigator P. The record of interview contains the following pre-typed standard wording:
“I have been informed that under Article 51 of the Russian Constitution, no one is required to testify against himself, his spouse or next of kin... I have also been apprised of the rights of the suspect during the preliminary investigation under Articles 52 and 64 of the RSFSR Code of Criminal Procedure:
A suspect has the following defence rights: to know the accusation against him; to make statements; to adduce evidence; to make requests; to have access to the records of investigative measures carried out in his presence and to have access to the file submitted to the court confirming the lawfulness of and reasons for remanding him in custody; to lodge challenges and complaints against the investigator's decisions and actions; to read this record after the interview, request its amendment and to make observations, which must be included in the record.
I have also been informed that under Articles 47-52 of the RSFSR Code of Criminal Procedure a suspect has a right of defence. For this investigative measure I required ___ counsel (appointed by an advocates' office; a lawyer named by me; if no counsel requested – indicate a reason...).”
The applicant made a handwritten statement indicating that he did not require counsel and that he would defend himself. This note bears his signature.
The record of the interview also contains another handwritten note by the applicant in the following terms:
“I have been apprised of the content of Article 51 of the Constitution. For the time being I refuse to speak.”
This note bears the applicant's signature.
7. On the same night a medical assistant in the local sobering-up centre carried out a medical check of the upper part of his body; no injuries were recorded. The applicant was then placed in the Shadrinsk temporary detention centre. The applicant was examined by a medical assistant and complained of “pain all over the body”. Blue bruises on the hip/thigh and blue injection marks on his arms were recorded. The medical assistant ascribed the marks to drug addiction and withdrawal symptoms. As can be seen from the applicant's written statement made on the same day, he had been horse riding the day before and had no complaints against any public official.
8. On the investigator's order, on 7 May 1999 the applicant was examined by a medical expert. The examination was carried out in the presence of two convoy officers. The report drawn up on 7 May 1999 stated that the first applicant had no physical injuries.
9. On 8 May 1999 the applicant was examined by paramedics, who concluded that he was suffering from withdrawal syndrome. On 15 May 1999 the applicant was examined in relation to abdominal pains and pain in the neck and in the thoracic spine area. It appears that he was given unspecified medicines.
10. According to the Government, the applicant had access to counsel T. on 12 May 1999, and on 14 May 1999 he was interviewed in the presence of counsel and remained represented throughout the pre-trial investigation and trial.
11. On 17 May 1999 the applicant was transferred from the temporary detention centre to a remand centre.
12. On 17 May 1999 the applicant's mother lodged a complaint with the Supervising Prosecutor's Office of the Kurgan Region and the Shadrinsk town prosecutor, alleging that her son had been ill-treated in police custody:
“My son was arrested on 5 May 1999...I became aware later on that on 6 May 1999 he had been taken to section 6 of the town department of the Interior and had been severely beaten and tortured by electric shocks in order to obtain confessions... Ill-treatment continued later on...The above was confirmed by my son's former counsel D. who told me on 7 May that my son was being ill-treated. D. saw my son on 11 May and called me, asking me to bring my son clean clothes. On 12 May the lawyer told me that my son had been beaten again and had been given electric shocks... On the same day I unsuccessfully asked investigator P. to let me see my son... On 14 May the investigator told me that he would hand over the clean clothes to my son if I refused to take away the old ones, which might be needed for an expert examination... After the arrest my son named the lawyers he wanted to instruct; since they were not available the investigator should have appointed legal aid counsel instead... I was misled by the staff of the temporary detention centre about the withdrawal pains my son had allegedly been suffering from... This did not make any sense to me... On 8 May I had brought some pain killers and asked – in vain – to call for an emergency squad for my son...My son has a medullispinal hernia, which can be painful at times...”
13. The complaint was forwarded for examination by the Shadrinsk Inter-District Prosecutor's Office. A preliminary inquiry was ordered.
14. During the inquiry the medical assistant of the sobering-up centre affirmed that no injuries had been recorded and that the applicant had made no complaints or allegations on 6 May 1999 at or around 4 a.m. However, according to the on-duty officer of the temporary detention centre, on 6 May 1999 at 4 a.m. the applicant had been brought to the temporary detention centre; blue bruises and injections marks were visible on his body; the applicant explained that he had sustained the bruises while horse riding and that he was a drug addict. As can be seen from a statement issued on 20 May 1999 by the medical assistant of the temporary detention centre, on 6 May 1999 the applicant complained of pain in the body; the examination at 8 a.m. revealed blue bruises on the hip/thigh and blue injection marks on his arms; the medical assistant ascribed these to drug addiction and withdrawal symptoms. According to her statement, the applicant was also seen on 8 May 1999 for unspecified reasons, and on 15 May 1999 on account of his complaints of pain in the neck and the thoracic spine area; he had had no health-related complaints when transferred to the remand centre on 17 May 1999.
15. A number of officers made written statements. Officer E. stated that he had brought the applicant to the Unit on 6 May 1999 at or around 4 p.m; investigative measures had been taken until around 2 a.m. in the presence of investigator P.; thereafter, the applicant had been brought to the sobering-up centre for an examination and then to the temporary detention centre; he had not witnessed any ill-treatment against the applicant (see also paragraph 52 below).
Officer Ba. stated that the applicant had been brought to the Unit on 5 May 1999; investigator P. had also been present while some measures were being carried out; no ill-treatment was inflicted on the applicant in the Unit and no signs of ill-treatment were visible on his body.
Senior officer Ya. made a similar statement (see also paragraph 51 below) indicating that the applicant had been brought to the Unit on 5 or 6 May 1999 in the afternoon.
Officer K. stated that the applicant had been present on the premises on 6 May 1999 in the afternoon and that he had seen investigator P. and officers E. and Ya. with the applicant at around 9 p.m. the same evening. Officer K. did not witness any ill-treatment.
Lastly, investigator P. stated that he had issued an arrest warrant against the applicant and questioned him; no ill-treatment had been inflicted on the applicant; a medical expert had examined him on 7 May 1999 and found no injuries.
16. By a decision of 1 June 1999 the Shadrinsk Inter-District Prosecutor's Office refused to institute criminal proceedings against the officers allegedly responsible for the first applicant's ill-treatment. It was established that the applicant had been arrested on 5 May 1999 and had been brought to the Organised Crime Unit for investigative measures. Thereafter, he had been examined by a medical assistant of the sobering-up centre; no injuries had been noted. The applicant was then brought to the temporary detention centre and examined by an “on-duty” officer; the applicant explained that the bruising on his hips/thighs had been sustained before the arrest (probably from horse riding); no injuries had been found during his placement in the remand centre on 17 May 1999. In May 1999 the applicant made no complaint about his health and did not raise any allegations against any public official. Nor did he raise any allegations during the inquiry that had been initiated following his mother's complaint.
17. As can be seen from the decision of 1 June 1999, “the persons concerned should be informed of the decision and the procedure for appealing against it”. By a letter of the same date, the applicant's mother was notified of the decision and of the possibility of appealing to a higher prosecutor.
18. On an unspecified date Mr T. was appointed as counsel for the applicant. On 15 June 1999 he sought a copy of a search order in respect of the applicant's flat; he also asked the investigator to allow the applicant visits from his family.
19. A medical certificate dated 17 September 1999, issued by the local drug addiction hospital, states that the first applicant did not suffer from alcohol or drug addiction and did not require any related treatment while in detention.
20. On 21 February 2000 the first applicant complained to the Kurgan prosecutor's office supervising detention facilities about the events of 5 and 6 May 1999 and the investigation. The applicant made the following statement:
“On 5 May 1999...I was interrogated in a particularly intensive manner, which I can describe if you so require. The officers tried to compel me to make confessions in respect of a criminal offence in which I was not involved and of which I knew nothing. At night investigator P. joined in. When physical violence temporarily ceased and the bag was taken off my head, investigator P. compelled me to make written statements... He told me that he had witness statements against me... For twelve days in the temporary detention centre I made statements concerning my alibi on the day of M.'s murder and the alleged animosity between myself and the above witness...”
21. By a letter of 28 February 2000 the applicant was informed that his renewed complaint had been dismissed by the Kurgan Regional Prosecutor's Office because the inquiry had already resulted in a decision not to initiate criminal proceedings in relation to the alleged ill-treatment.
22. On 6 May 2000 the applicant was interviewed in the presence of counsel, pleaded not guilty, sought a face-to-face confrontation with the second applicant and then chose to remain silent.
23. Between May and September 2000 the applicant sent several unspecified complaints from the detention facility to the Kurgan Town Court. In April 2000 the applicant's mother complained to the regional prosecutor about the inquiry into the allegation of ill-treatment.
24. On 9 December 1999 the second applicant (Mr Mezentsev) was brought to the above-mentioned Organised Crime Unit in Shadrinsk from a detention facility in the town of Kurgan.
25. According to the applicant, he remained in the police car with a canvas bag on his head and received several blows from the convoy officers. In the Unit the officers connected wires to his little fingers and applied electric shocks. When he fainted they hit him on the head so that he would regain consciousness. A canvas bag was placed over his head, restricting the airflow. He could not bear the pain and admitted his complicity in the killing of a Mr K.
26. On the same day, between 7 p.m. and midnight, the second applicant was questioned by investigator P. The record of interview contains the following pre-typed standard wording:
“I have been informed that under Article 51 of the Russian Constitution, no one is required to testify against himself, his spouse or next of kin...I have also been apprised of the rights of the suspect during the preliminary investigation under Articles 52 and 64 of the RSFSR Code of Criminal Procedure:
A suspect has the following defence rights: to know the accusation against him; to make statements; to adduce evidence; to make requests; to have access to the minutes of investigative measures carried out in his presence and to have access to the file submitted to the court confirming the lawfulness of and reasons for remanding him in custody; to lodge challenges and complaints against the investigator's decisions and actions; to read this record after the interview, request its amendment and to make observations, which must be included in the record.
I have also been informed that under Articles 47-52 of the RSFSR Code of Criminal Procedure a suspect has a right of defence. For this investigative measure I required ___ counsel (appointed by an advocates' office; a lawyer named by me; if no counsel requested – indicate a reason...).”
The applicant made a handwritten statement indicating that he did not require counsel and that he was not waiving his right on account of lack of means. This note bears his signature.
The record of interview also contains another handwritten note by the applicant in the following terms:
“I have been apprised of the content of Article 51 of the Constitution. I agree to testify on the substance of the suspicion against me”.
This note bears the applicant's signature. During this interview the applicant confessed to having been an accessory to K.'s murder, committed, according to the second applicant, by the first applicant (Mr Sharkunov). The record ended with a handwritten note stating that the second applicant had read the record, that it was correctly transcribed, that the applicant had no comment or objection to make, that he had been made aware of the video recording and had no comment to make on it. The interview was videotaped by officer Ba.
27. On 15 December 1999 the applicant was again taken to the Organised Crime Unit, where the ill-treatment, namely beating him on the head, allegedly resumed. According to the applicant, while in a cell he cut the veins in both his arms, allegedly as a protest at the beatings and pressure put on him. According to the Government, the second applicant mutilated himself because the first applicant had put pressure on him while in Shadrinsk remand centre no. 2.
28. After the second applicant had been provided with medical assistance, at an interview on the same day he was informed of his rights and pleaded innocent; he declined legal assistance “for this interview” and refused to testify.
29. On 17 December 1999 the second applicant lodged a complaint with the Regional Prosecutor's Office, alleging that he had been forced to confess to the murder and to make false accusations against other persons:
“I urge you to carry out an inquiry and to stop the unlawful methods of investigation used against me by the officers of the Organised Crime Unit. As a result of these, I was forced to made confessions on 9 December 1999. I complained to the regional prosecutor's office but subsequently learnt that the complaint had not been forwarded... On 15 May 1999 I was brought to the Unit again and was forced to incriminate myself and others of various crimes. To overcome my resistance, the officers offered a visit from my family in exchange for a confession; this was a form of psychological pressure...Since I could not stand the pressure I cut my veins with a razor blade I found in the cell...”
30. On 19 January 2000 the applicant amended his statement, alleging that electric shocks had been administered on 9 December 1999; that the waiver of legal assistance had been imposed on him; that he had been told to be natural during the videotaping and to answer in line with the previously discussed version of the relevant events.
31. An inquiry was ordered in relation to the second applicant's allegation of ill-treatment. Officer E. stated that the applicant had been brought to the Organised Crime Unit for interview with investigator P.; the interview was videotaped; no ill-treatment or pressure had been used against the applicant (see also paragraph 52 below). A similar statement was made by senior officer Ya. (see also paragraph 51 below). To a statement in similar terms investigator P. added that while the applicant had not requested counsel for the interview on 15 December 1999 he had expressed the wish to have a consultation with a lawyer later on in the remand centre. Officer Ba. confirmed that he had videotaped the interview on 9 December 1999 and that he had seen no beatings.
32. The prosecutor also obtained a written statement from the applicant alleging that during his transfer to the Unit on 9 December 1999 he had a canvas bag on his head; in the Unit he had cables attached to his fingers and that electric shocks had been administered. The applicant alleged that on 15 December 1999 he had received several blows from Unit officers; that he could not identify them as he had a canvas bag on his head; and that in reply to his request for counsel investigator P. had told him to write to the local bar association.
33. On 27 January 2000 the applicant was examined by a medical expert who found scars on his forearms and concluded that these scars could have been self-inflicted on 15 December 1999. The expert did not record any traces of electric torture or blows to the second applicant's head.
34. On 28 January 2000 the Shadrinsk District Prosecutor's office refused to institute criminal proceedings in relation to the alleged ill-treatment. The prosecutor relied on the above-mentioned statements and the expert report. He also noted that the applicant had not made any complaint while in the remand centre and that no injuries had been recorded there. The decision states that “the persons concerned should be informed of the decision and the procedure for appealing against it”.
35. On 31 January 2000 the second applicant asked for legal-aid counsel, referring to the lack of means to retain one. The applicant was questioned in the presence of counsel on 4 February 2000 and retracted the confession made on 9 December 1999 as given under duress.
36. On 5 May 2000 investigator M., who was also in charge of the criminal case against the applicant, refused to institute criminal proceedings, dismissing as unsubstantiated the second applicant's renewed complaint of ill-treatment.
37. On 10 May 2000 the second applicant was interviewed in the presence of counsel and, having been apprised of the privilege against self-incrimination, asserted his innocence and remained silent.
38. On 5 June 2000 the investigator rejected a number of applications by the defence, indicating, inter alia, that the allegation of ill-treatment had previously been dismissed after the inquiries and that the case file contained the relevant decisions not to institute criminal proceedings.
39. The applicant sent unspecified complaints to the Shadrinsk Town Court from the detention facility in March 2000 and to the Kurgan Town Court between June and December 2000.
40. In November 1999 and February 2000 the police questioned a Mr V. in the framework of unrelated criminal proceedings. It appears that he was informed of his rights and declined the legal assistance offered to him. In substance, he stated that he had served as a driver for the applicants on the day when K.'s murder had been committed and that he had heard about another murder, allegedly committed by the first applicant. V. also stated that “in winter 1998-1999” the second applicant had set a car on fire on the first applicant's instructions; the latter had unsuccessfully tried to extort a sum of money from the car owner; the first applicant had then allegedly told V. that the second applicant had broken the car window, thrown a bottle of gasoline in the car and set it on fire. V. confirmed his earlier statements during a face-to-face confrontation with the second applicant. However, on 19 April 2000 V. retracted his statement, alleging ill-treatment in November 1999 and February 2000. It appears that the authorities refused to initiate a criminal case against the officers.
41. At the pre-trial stage, a Ms S. was interviewed as a witness regarding the arson charges against the applicants. She identified the second applicant from his general facial traits, in a line-up of three persons, as the person she had first seen “in or around March 1998” when he had tried to set a car on fire in the yard of the block of flats where she lived; the second time was when he broke the car window and spilt gasoline in it. A lawyer and two attesting witnesses were present at the line-up.
42. The applicants and V. were accused of several criminal offences, including murder and arson. The first applicant was charged with two counts of murder, two counts of instigation to destruction of property by arson, unlawful possession of firearms and extortion. The second applicant was charged with murder and two counts of destruction of property by arson. The first count of destruction of property by arson was based on the statement of the victim of the arson attack who alleged that he had had “tensions” with the first applicant. That statement was partly confirmed by witness Ch. The second count was based, in particular, on S.'s statement, an eyewitness who had identified the second applicant as the arsonist.
43. On 19 July 2000 the Kurgan Regional Court held the first hearing. The applicants pleaded not guilty to the murder and arson charges. The second applicant stated that his confession of 9 December 1999 had been obtained under duress after hours of torture. The applicants' co-defendant V. also stated that he had been severely beaten by police officers and, in consequence, had falsely denounced the applicants. He submitted that the officers had beaten him on the upper part of his body but that the blows had left no traces.
44. Ms S. was called to testify at the trial in relation to the second arson case (concerning the events in February 1998). According to a report dated 21 July 2000, a bailiff came to her home but she refused to appear before the trial court, alleging that she had to nurse her underage child.
45. By a judgment of 4 September 2000 the Regional Court found the first applicant guilty on two counts of murder, unlawful possession of firearms and on the second count of instigation to destruction of property by arson and sentenced him to twenty years' imprisonment. The second applicant was found guilty on the second count of the destruction of property by arson and of complicity in the above murder, and sentenced to sixteen years' imprisonment. The court acquitted the second applicant of another arson count (concerning the events in January 1998) and discontinued the related prosecution on that count against the first applicant.
46. On the murder charges the trial court relied on the second applicant's confession, various testimonies by other persons, certain forensic reports and physical evidence. The court dismissed the defendants' allegations of ill-treatment as unsubstantiated because “no injuries had been identified on the applicants' bodies during the preliminary investigation”.
47. On the second arson charge, the trial court relied on V.'s pre-trial statement (see paragraph 40 above), S.'s pre-trial identification report of the second applicant as the arsonist (see paragraph 41 above); the victim's and a witness's statements that there had been “tensions” between the first applicant and the victim.
48. The applicants appealed, alleging, inter alia, that the trial court had failed to summon various witnesses and had wrongly assessed some pieces of evidence, including the self-incriminating statements made by the second applicant and other persons. On 2 April 2001 the Supreme Court of the Russian Federation upheld, in essence, the judgment of 4 September 2000. The charge against the first applicant of unlawful possession of a gas pistol was dropped. The appeal court considered that the trial court had rightly referred to S.'s statement because that person had seen the second applicant set fire to the victim's car and had identified him as the arsonist. The appeal court also noted that S.'s statement and a statement from another person confirmed that there had been tensions between the first applicant and the victim.
49. On 19 September 2001 the Presidium of the Supreme Court, sitting in its supervisory-review capacity, acquitted the first applicant of unlawful possession of firearms and reduced his sentence to nineteen years and six months.
50. In 2005, in reply to requests from the deputy President of the Regional Court, the Kurgan Town Court and the Shadrinsk Town Court stated that in 1999 and 2000 they had not received any complaints from the applicants against the administrations of remand centres, investigating or prosecuting authorities or the police department or its units (see also paragraphs 23 and 39 above).
51. In June 2005 Mr Ya., senior officer of the Organised Crime Unit at the relevant time, made a written statement (see also paragraphs 15 and 31 above), indicating that Mr V. had named the applicants as his accomplices in a number of offences. Thereafter, the second applicant was brought from Kurgan remand centre no. 1 to Shadrinsk and made confessions in respect of murdering victim K. and some other offences. The second applicant was questioned by investigator P. in relation to the murder; Officer Ya. was in charge of the video recording of the interview; Officer Ba. was also present. The second applicant was then brought to Kurgan remand centre no. 2. A week later he was brought to the Unit for questioning and a visit from his family. However, in the meantime, he cut his veins and was admitted to hospital for treatment. On the same day he was brought back to the Unit and retracted his earlier confessions in the presence of investigator P. and chose to remain silent. The applicant was brought back to the remand centre. Subsequently, it was established that the first applicant had tried to compel the second applicant to retract his confessions. Officer Ya. also stated that in May 1999 the first applicant had been brought in for questioning. After his refusal to testify, he had been taken for a medical examination (for unspecified reasons) and had then been placed in the temporary detention centre of Shadrinsk. Both applicants had lodged numerous complaints against various officers of the Organised Crime Unit. However, the inquiries had disclosed no unlawful actions on their part. Except for the murder of K., the other episodes of criminal activity had been dealt with by the Shadrinsk office of the Interior.
52. In June 2005 Mr E., a police officer in 1999, made a written statement (see also paragraphs 15 and 31 above) according to which he had arrested the first applicant in May 1999 and brought him to the Organised Crime Unit for questioning. No physical force had been used against him. Mr E. stated that he might have convoyed the second applicant from Kurgan remand centre no. 1, but without recourse to any physical force or pressure.
53. The Constitution of the Russian Federation provides, in so far as relevant:
“Everyone shall be guaranteed judicial protection of his or her rights and freedoms.”
“Decisions and actions or lack of action of State bodies, bodies of local self-government, public associations and officials may be appealed against in court...”
54. The 1993 Judicial Review Act (Federal Law No. 4866-1 on appeals against acts and decisions infringing individual rights and freedoms), as amended in 1995, provides for a judicial avenue for claims against public authorities, except for those for which the Constitutional Court is competent or for which another procedure is prescribed (section 3). The Act states that a decision or omission by a public authority or official can be challenged before a court if it encroaches on an individual's rights or freedoms or unlawfully imposes an obligation or liability on that individual. In such proceedings the court is entitled to declare the impugned act, decision or omission unlawful, to order the public authority to act in a certain way vis-à-vis the individual, to lift the liability imposed on the individual or to take other measures to restore the infringed right or freedom. If the court finds the impugned act, decision or omission unlawful, this gives rise to a civil claim for damages against the State.
55. Under the 1960 Code of Criminal Procedure (CCrP), as in force at the relevant time, a prosecutor, investigator or judge was competent to examine complaints and information about any offence committed and to open or refuse a criminal investigation, or to transmit the matter to a competent authority (Article 109). A prosecutor's refusal to open a criminal investigation could be appealed to a higher prosecutor; a judge's refusal could be challenged before a higher court (Article 113 § 4).
56. On 29 April 1998 the Constitutional Court of the Russian Federation invalidated Article 113 § 4 of the Code because it did not allow for judicial review of a prosecutor's or investigator's refusal to institute criminal proceedings. The Constitutional Court ruled that Parliament should amend the legislation on criminal procedure by inserting a possibility of review. It also held that until such amendments were enacted, the national authorities, including courts, should directly apply Article 46 of the Constitution requiring a judicial review of administrative acts. The ruling was published in May 1998.
57. In a ruling of 14 January 2000 the Constitutional Court declared unconstitutional several provisions of the RSFSR CCrP authorising the courts to initiate criminal proceedings of their own motion. In the same ruling the Constitutional Court reiterated that a court could carry out a judicial review of an investigating authority's decision to open a criminal case, to refuse to initiate criminal proceedings or to discontinue such proceedings, in particular on a complaint of a person that his or her constitutional rights had been breached by such a decision. The ruling was published in February 2000.
58. Under Article 52 of the RSFSR CCrP, a suspect has the following rights: a right to know the accusation against him; to make statements; to have access to the record of investigative measures; to lodge complaints; from the time of the arrest to have meetings with counsel, his next of kin or other persons.
59. Article 47 of the RSFSR CCrP provided that counsel could participate in the proceedings from the time when a person was informed of the charges against him or her. If a suspect was arrested or detained, counsel could participate in the proceedings from the time when the suspect was given access to the arrest record or detention order. In its ruling of 27 June 2000 (no. 11-П) the Constitutional Court held that Article 47 of the CCrP was contrary to the Constitution in so far it excluded the possibility of legal representation at the very first stages of the proceedings, that is, before any charges were brought or before access was given to the arrest/detention record.
60. The participation of counsel was mandatory in pre-trial proceedings from the date on which charges were brought in respect of offences punishable by the death penalty and in the court proceedings concerning such offences (Article 49 of the RSFSR CCrP). If counsel was not retained by the person concerned, the authority in charge of the case had to appoint one (ibid). The defendant could waive legal assistance; such a waiver could be opposed by the authority in charge of the case if the case concerned offences punishable by the death penalty (Article 50 of the Code).
61. Article 59 of the Criminal Code provided for the death penalty as a punishment for particularly serious criminal offences against human life, such as aggravated murder.
62. Article 21 of the Constitution guarantees the protection of human dignity and prohibits torture, violence and inhuman and degrading treatment and punishment. Article 117 of the Criminal Code punishes torture, in particular when inflicted in order to compel the person concerned to make statements or to perform other acts contrary to the person's will, as a punishment or for other ends. Article 20 of the RSFSR Code of Criminal Procedure prohibited compelling another to make a statement through the use of violence, threats or other unlawful means against the accused or other persons involved in the proceedings.
63. Article 50 § 2 of the Russian Constitution prohibits reliance in a court of law on evidence obtained in breach of federal law. In a ruling of 31 October 1995 the Plenary Supreme Court of Russia held that such a breach occurred when the gathering and admission of evidence resulted in a violation of the constitutional rights and freedoms or of the criminal law procedure, as well as when the gathering and admission of evidence was carried out by an authority lacking competence or acting in breach of the applicable procedural rules (point 16).
64. Article 69 § 3 of the RSFSR Code of Criminal Procedure provided at the time that evidence obtained unlawfully should be declared devoid of legal force and should not serve as a basis for a prosecution or for proving relevant circumstances such as the damage caused by the criminal offence.
65. Article 413 of the 2001 Code of Criminal Procedure provides that criminal proceedings may be reopened if the European Court of Human Rights has found a violation of the Convention.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-77959
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KASTE AND MATHISEN v. NORWAY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1 and 6-3;Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - claim dismissed;Costs and expenses award - Convention proceedings
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Françoise Tulkens;Loukis Loucaides;Sverre Erik Jebens
TEXT: 4. The first applicant, Mr Bård Kaste, and the second applicant, Mr Per Stian Tveten Mathisen, were born in 1970 and 1973 respectively and both live in Oslo.
5. On 21 March 2002 the Oslo City Court convicted the first applicant of illegal possession of a firearm and, with two other co-accused, namely the second applicant and “C”, of possessing 48.41 kg of amphetamines and attempting to import those drugs by ferry from Kiel (Germany) to Norway on 9 January 1999. The first applicant was given a prison sentence of fourteen years, the second applicant twelve years and C six years.
6. The summary of facts contained in the City Court’s judgment took note of statements made to the Norwegian police by a fourth person, “T.A.”, concerning transportation of the drugs from Rotterdam to Kiel by “Percy” (the second applicant’s nickname) and another person. Before driving his car onto the ferry in Kiel, T.A. was stopped by German customs officials, who found a total of 48.41 kg of amphetamines in a rucksack and a bag in the car boot. Immediately after T.A.’s arrest, Norwegian police officers travelled to Kiel to take part in his questioning. T.A. was tried and convicted in Germany in June 1999.
7. In its reasoning in the first applicant’s conviction, the City Court based its decision on circumstantial evidence, notably on his and his cohabitant’s use of a mobile telephone, and its finding that there could be no doubt that the telephone in question, which used two specific pre-paid card numbers, had functioned as a means of communication in the operation and had played a central role in the case.
8. On 9 October 2002 the City Court, in separate proceedings, convicted a fifth person, “D” (who had absconded to the United States of America but later returned), in relation to the same offences and sentenced him to eleven years’ imprisonment.
9. The first applicant, the second applicant, C and D subsequently appealed to the Borgarting High Court, which decided to join the proceedings. Whereas D appealed only against the sentence, the other appellants appealed against other aspects, including the procedure, the assessment of evidence and the application of the law with regard to the question of guilt.
10. In the appeal proceedings before the High Court, the prosecutor requested that D be heard first, before the other defendants, because the giving of testimonies in this order would be the most appropriate in the interests of elucidating the case and ensuring effective administration of justice. The applicants’ respective defence lawyers protested against the order requested by the prosecutor. The High Court considered that, since D was to give evidence on matters of relevance to his sentence, normal practice should be followed, which was to hear first those defendants who had appealed against the lower court’s judgment as a whole. After C, the first applicant and the second applicant had given oral evidence, it transpired that D did not wish to give oral evidence. As to the procedure thereafter, the court record states:
“The prosecution asked, with reference to Article 290 of the Code of Criminal Procedure, for permission to read out the depositions that the accused [D] had made to the police on 22 May, 24 May and 21 June 2002.
[D]’s defence counsel, Mr Oscar Ihlebæk, had no objections to this. Mr Marius Dietrichson, defence counsel for [C], wanted the depositions to be read out. Mr Trygve Staff, defence counsel for [the first applicant], did not wish to express any particular opinion on the right to read them out. Mr Øystein Storrvik, defence counsel for [the second applicant], opposed the reading-out of the police depositions. He argued that such a reading would be in conflict with the requirements of a fair trial laid down in the European Convention on Human Rights, and would also be in conflict with the minimum rights contained in Article 6 § 3 (d) of the Convention, namely the right of the accused to examine witnesses against him, inasmuch as he maintained that testimony from [D] at this stage of the case would have the nature of witness testimony.
The Court thereafter ruled as follows:
The High Court finds that the reading-out of [D]’s police depositions is permissible under Article 290. Reference is made to the Bjerke-Keiserud commentary [on the Code of Criminal Procedure], volume II, page 1012, from which the following citation is taken:
‘In the High Court an appeal against the assessment of the evidence may be joined to a limited appeal ... During the appeal hearing, all the accused will normally be present. The reading-out of their previous depositions must be done in accordance with the rules of Article 290, not Article 296, even if the deposition to be read concerns a co-accused, that is, someone other than the person giving the deposition himself. The procedure is different when a former co-accused has had his case finally and enforceably adjudicated and is appearing as a witness in the case.’
The High Court finds accordingly and cannot otherwise see that the reading-out of [D]’s depositions will be in conflict with ... Article 6 §§ 1 and § 3 (d) ... of the Convention. [D] has the status of an accused, and the High Court finds that this must be decisive even if he has lodged a limited appeal in the case.”
11. The second applicant’s counsel then asked the High Court to adjourn the proceedings in so far as the second applicant was concerned until a legally enforceable judgment existed with respect to D, so that D could be summoned as a witness with an obligation to testify. The High Court rejected the request for adjournment.
12. The prosecutor then read out D’s statement, following which the second applicant’s counsel asked to put a question to D. He referred to the fact that in one of his statements to the police D had stated that his deposition contained so many errors that he saw no point in going through it any further. In this connection, the court record states:
“The President of the Court noted that [D] had invoked his right to remain silent, and that it would not therefore be permitted to question him directly, but that the President would ask [D] whether he wanted to testify, wholly or in part.
[D] replied that he still wished to remain silent, including in response to the questions put by Mr Storrvik.”
13. On 23 May 2003 the High Court, noting that the jury had answered in the negative with regard to C’s criminal guilt and in the affirmative with regard to that of the other defendants, acquitted C and convicted the other defendants. It sentenced the second applicant and D to nine years’ imprisonment and the first applicant to eleven years’ imprisonment. The High Court’s judgment contained no summary of the assessment of the facts in relation to the jury’s verdict, only a description of the facts in so far as relevant for sentencing, which was decided by the judges.
14. Both applicants appealed against the High Court proceedings to the Supreme Court (the first applicant had also sought to appeal against the sentence but was refused leave to do so), which on 22 January 2004 rejected their appeal, finding no incompatibility with the requirements of Article 6 §§ 1 and 3 (d) of the Convention.
15. In his reasoning, approved in the main by the other four justices sitting in the case, the first voting judge, Mr Justice Tjomsland, observed, inter alia, that one difficulty for the Supreme Court in reviewing the appeal was that the High Court, contrary to the European Court’s case-law, had proceeded from the assumption that, as a co-accused, D had not been a “witness” for the purposes of Article 6 § 3 (d) of the Convention. The High Court had therefore failed to carry out an assessment of the evidence according to the relevant criteria, notably the importance of D’s depositions in relation to other evidence in the case, although this would have been difficult to do at such an early stage of the proceedings.
16. The Supreme Court noted that extensive evidence had been adduced before the High Court. The hearing had lasted for eighteen days during which no less than forty witnesses had been heard. Documentary evidence and statements related to the use of a number of mobile telephones connected to the case had been of central importance. It was difficult to say whether the statements by D, the only accused who had confessed to the offences, were an element of minor importance compared with the evidence seen as a whole. In his statements, D had implicated the second applicant and, probably indirectly, also the first applicant. However, his statements had not given any clear negative picture of the latter.
17. It would be inconsistent with the purposes of proceedings involving full examination at two judicial levels if the evaluation of evidence carried out by the City Court were to carry significant weight in the assessment of the evidence before the High Court. In this regard the Supreme Court pointed to the fact that C had been acquitted by the High Court and that the High Court judges had based their findings regarding certain points, in particular with respect to the transportation of the drugs from the Netherlands to Kiel, on facts different from those relied upon by the City Court.
18. The Supreme Court continued:
“The prosecutor has pointed out that in her directions to the jury the President of the High Court had stated that, in her opinion, there was no question of ‘entirely dominant or crucial evidence against any of the accused’. I find it difficult to place particular weight on this factor. In addition, she had also said in her direction to the jury that in her view the depositions would be ‘only one of several elements in a consideration of whether the accused are guilty’ ... As I see the case, I do not find it defensible to draw any particular conclusion as regards the police depositions’ significance in the overall evidentiary picture presented to the High Court. In view of the state of the evidence at hand, it may indeed appear probable that D’s confession was a more important element with respect to the other defendants’ convictions than was his deposition about their role. But the doubt that here obtains means that, despite the other important evidence in the case, I must regard it as ‘a real possibility’ that the reading-out of D’s police depositions had ‘decisive significance for the overall assessment of the evidence’ (see Norsk Retstidende Rt. 2001-29).
In those instances where there is a real possibility that the police statements would have a decisive influence on the assessment of the evidence, the reading-out of these would as a rule have to be refused unless the accused has had an opportunity to put questions to the witness (see Rt. 1999-757).”
19. The Supreme Court observed that in this case none of the defendants had had an opportunity to put questions to D either during the trial before the City Court or at any time prior to the High Court proceedings. At the High Court hearing D had availed himself of his right to silence. After his depositions had been read out, the President of the High Court had, on a request by counsel for the second applicant, asked D again whether he wished to give oral evidence in full or in part. Thus the arrangement was that counsel for the other defendants should have an opportunity to put questions to D, but his unwillingness to give evidence had made a real examination impossible. Under Norwegian case-law, the requirements of Article 6 §§ 1 and 3 (d) of the Convention would be met if the accused or his counsel were given a formal opportunity to put questions, even if the witness refused to reply, provided that the proceedings considered as a whole were fair. In this connection reference was made to Harri Peltonen v. Finland (dec.), no. 30409/96, 11 May 1999; Lucà v. Italy, no. 33354/96, §§ 40-45, ECHR 2001-II; and Craxi v. Italy (no. 1), no. 34896/97, § 86, 5 December 2002.
20. The Supreme Court was satisfied that Article 6 §§ 1 and 3 (d) had been complied with as the defence had had an opportunity to put questions to D during the trial, even though the latter had opted to refuse to answer those questions. When the cases had been joined, there had been no reason to believe that D would not reply to questions at the trial. A complicating factor had been the divergence of views among the defendants during the trial as to whether the reading-out of D’s depositions should be permitted. To separate the proceedings regarding D and to postpone the trial concerning the other defendants until the case regarding D had been finalised (and he could be required to answer questions as an ordinary witness) would have entailed unreasonable consequences, both from the point of view of elucidating the case and of ensuring effective administration of justice, and would have enabled the defendants to obstruct and protract the trial unduly.
21. The relevant provisions on the reading-out at a trial hearing of depositions made to the police may be found in Articles 290 and 296 of the Code of Criminal Procedure, which deal respectively with depositions made by an accused and by a witness.
“Any reproduction in the court record or a police report of any statement that the person indicted has previously made in the case may only be read out if his statements are contradictory or relate to points on which he refuses to speak or declares that he does not remember, or if he does not attend the hearing. The same applies to any written statement that he has previously made in relation to the case.”
“Witnesses who can give evidence that is deemed to be of significance in the case should be examined orally during the main hearing unless special circumstances prevent this.
At such examination any reproduction in the court record or a police report of any statement that the witness has previously made in the case may only be read out if the witness’s statements are contradictory or relate to points on which he refuses to speak or declares that he does not remember. The same applies to any written statement that the witness has previously made in relation to the case.”
22. The above provisions are subject to limitations, which are not contained in the Code of Criminal Procedure but follow from interpretations by the Norwegian Supreme Court (see, in particular, a decision of 19 December 2003, Rt. 2003-1808) in the light of the Convention case-law, which may be summarised as follows.
(a) As a general rule, witnesses must be examined “at a public hearing in the presence of the accused”.
(b) Exceptions may be made in special circumstances if, taken as a whole, the proceedings are “proper and fair”.
(c) The reading-out of depositions may take place if the accused or his defence is given an “adequate and proper opportunity to challenge and question a witness against him, either when he was making his statements or at a later stage of the proceedings”. Particular care should be exercised if a conviction is secured “solely or to a decisive extent” on the deposition.
(d) It is not a condition that the witness answer the questions asked by the accused or his defence. A deposition may, as a rule, be read out in court even if the witness invokes his right to remain silent, or indeed chooses not to speak for other reasons.
23. For items (c) and (d) above, the Supreme Court referred to Asch v. Austria, 26 April 1991, §§ 27-28, Series A no. 203; Lucà, cited above, § 40; and Craxi, cited above, §§ 85-86; and, for item (d), it also referred to Harri Peltonen, cited above.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22503
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: IVANOVA v. FINLAND
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a Russian national, born in 1945 and living in St. Petersburg. She is represented before the Court by Mrs Natalia Golovina, a lawyer practising in the same city. The respondent Government are represented by their Agents, Mr Holger Rotkirch, Director-General for Legal Affairs, Ministry for Foreign Affairs, and Mr Arto Kosonen, Director in the same Ministry.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant resided in Finland from 1994 until 19 June 1995, when she left for the Dominican Republic as her visa was about to expire. On 28 June 1995 she had her car – a Russian-registered Opel Senator produced in 1992 – placed in a bonded customs warehouse in the harbour of Helsinki (Helsingin sataman vapaavarasto, Helsingfors hamns frilager). On her return in December 1995 the car was no longer to be found in the warehouse and she was informed that it had already been released.
The applicant’s petitions to the then Helsinki District Customs (piiritullikamari, distriktstullkammaren) and the harbour authorities of December 1997 and May 1998 were fruitless. By registered letter of 26 August 1998 addressed to “the Helsinki City Court” she then filed an action against “The Customs Warehouse of the western harbour of Helsinki”. With reference to the negligent release of her car to persons whom she had not authorised to pick it up, she claimed, inter alia, FIM 500,000 (about EUR 84,000) in compensation for the total value of the car, apparently including various optional equipment. Those working at the warehouse had, so the applicant asserted, failed to inspect carefully the identity documents presented by the strangers allegedly acting in her stead. The letter, entirely in Russian, bore the title Исковое заявление (“statement of claim”).
The applicant received no response from the Helsinki District Court (käräjäoikeus, tingsrätt) which forwarded the letter to the District Customs. The District Customs registered the letter on 9 September 1998. In a letter of 17 April 2000 it informed the applicant that the customs authorities were not responsible for the operation and maintenance of bonded warehouses. This was a matter for the Helsinki harbour authorities, i.e. the City of Helsinki. It was the duty of the warehouse keeper to ensure that the vehicle was returned to its rightful owner. According to the information obtained by the District Customs, the warehouse keeper had verified that the passport shown by the person wishing to pick it up had belonged to the applicant. The car had then been transferred to the Vaalimaa checkpoint at the Finnish-Russian border, where it had been handed over to that person following a second verification of the passport. The District Customs advised the applicant to contact the bonded warehouse in order to find out whether her car had been handed over to the wrong person.
According to section 1 of the Language Act (kielilaki, språklagen 148/1922), the languages to be used before Finnish courts and other State authorities are the national languages Finnish and Swedish. A Sami permanently residing in Finland may nonetheless use that language in accordance with the Act on the Use of the Sami Language Before Public Authorities (laki saamin kielen käyttämisestä viranomaisissa, lagen om användning av samiska hos myndigheter 516/1991).
According to chapter 5, section 1, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken 1052/1991), a civil case shall be initiated by a written application for a summons, submitted to the registry of a district court. The case shall become pending and its preparation shall begin upon the arrival of the application to the registry.
An application for a summons shall indicate the particularised claim of the plaintiff; the detailed circumstances on which the claim is based; as far as possible, the evidence that the plaintiff intends to present and what he/she intends to prove with each piece of evidence; the claim for the compensation of legal costs, if the plaintiff deems this necessary; and the basis for the jurisdiction of the court, unless jurisdiction can be inferred from the application for a summons or the documents enclosed with it.
In addition, the application for a summons shall indicate the name of the court; the names, occupations and domiciles of the parties; the telephone numbers and the postal addresses of the parties, their legal representatives or their attorneys and the witnesses and other persons to be heard; as well as the postal address where the relevant requests, injunctions and notices can be sent. If the plaintiff is unaware of the defendant’s address, he or she shall state what has been done to discover it. The application for a summons shall be signed by the party, or, if he or she has not drawn up the application, by the person who has drawn it up. The person who has drawn up the application shall also indicate his or her occupation and domicile (section 2, as amended by Act no. 595/1993).
If an application for a summons is incomplete, the plaintiff shall be urged to supplement it before a deadline, if this is necessary in order to continue the preparation. At the same time the plaintiff shall be informed of the respect in which the application is incomplete and that the action may be found inadmissible or be dismissed, unless the application is duly supplemented (section 5, as amended by Act no. 595/1993).
The court shall rule the action inadmissible without further ado if the plaintiff fails to supplement his or her application and provided it is so incomplete that it cannot be used as a basis for the proceedings, or if the court, for another reason, cannot examine the action. The court shall refrain from issuing a summons and immediately dismiss the action by a judgment, if the claim of the plaintiff is manifestly ill-founded (section 6).
If the action has not been ruled inadmissible or dismissed in accordance with section 6, the court shall issue a summons without delay (section 8).
According to the Act on Cost-Free Proceedings (laki maksuttomasta oikeudenkäynnistä, lagen om fri rättegång 87/1973, as in force at the relevant time) a Finnish citizen or a foreigner, who is a party inter alia to a civil case, may be granted cost-free proceedings (in full or in part) if he or she cannot without difficulty meet all costs and expenses. No grant shall be made, however, if the case is of minor importance to the party in question. Cost-free proceedings may be granted by the competent court even before the proceedings have commenced in the actual case (sections 1-3). If an application to that end is refused, a separate appeal may be lodged with the court of appeal which shall deal with it speedily. In the alternative, the application may be renewed when the proceedings commence in the actual case (section 23).
According to the Decree on Cost-Free Proceedings (asetus maksuttomasta oikeudenkäynnistä, förordningen om fri rättegång 376/1973), a legal aid applicant, who is not domiciled in Finland, shall support the request for cost-free proceedings with a declaration of his or her financial situation. This declaration shall be accompanied by a certificate issued by the competent authority in the country where the applicant is domiciled. If such a certificate cannot be obtained the request may nonetheless be decided (section 2).