ITEMID: 001-100411
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: ALAVERDYAN v. ARMENIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: 1. The applicant, Mr Tigran Alaverdyan, is an Armenian national who was born in 1964 and lives in Delray Beach, USA. He was represented before the Court by Mr A. Grigoryan, a lawyer practising in Yerevan. The respondent Government were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant was born out of wedlock on 28 November 1964. He bore his mother's surname.
4. In 2002 the applicant instituted special (non-contentious) proceedings (հատուկ վարույթ) under Article 189 of the Code of Civil Procedure (CCP), seeking to establish a fact of legal significance (իրավաբանական նշանակություն ունեցող փաստ), namely paternity with his alleged deceased father, Alexander A. (hereafter, A.A.). The applicant claimed that his mother and A.A. were in a common-law marriage, as a result of which he was born. Their marriage was not formally registered which was why he bore his mother's surname. A.A. had always accepted him as his son, had provided care and brought him up. In 1988 A.A. had moved from Armenia to France, where he died on 28 March 1998. The applicant further claimed that it was necessary to establish the fact of paternity in order for him to assert his rights to A.A.'s inheritance.
5. On 6 May 2002 the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան) granted the applicant's application and established the fact of paternity. The court based its judgment on the applicant's birth certificate, in which his patronymic name was indicated as Alexander, and a number of witness statements, including those of the applicant's mother and A.A.'s sister. According to the written statement of the applicant's mother, since 1963 she and A.A. had been in a common-law marriage, as a result of which the applicant was born in 1964. She and A.A. had together provided care to and brought up the applicant, until A.A. moved to France in 1988. A.A.'s sister stated that she had known the applicant since his birth and confirmed that he was A.A.'s son.
6. No appeal was lodged against this judgment so it entered into force.
7. On 27 March 2003 a specially-licensed advocate lodged an application with the Court of Cassation (ՀՀ վճռաբեկ դատարան), seeking to reopen the case on the ground of newly discovered circumstances. The advocate claimed that the court judgment had been unfounded because in reality A.A. had been formally married since 1953 to a third person, M.S., with whom he had had a child, L.A., on 31 December 1964. The advocate further claimed that this was already the second paternity claim filed in respect of A.A., in which A.A.'s sister acted as the main witness. The court, however, had not been aware of the fact that A.A.'s sister had previously laid claims to A.A.'s inheritance which had been rejected by the courts. Only after such rejections did A.A.'s two supposed children emerge, including the applicant.
8. On 25 April 2003 the Court of Cassation decided to quash the judgment of 6 May 2002 and to remit the case to the Civil Court of Appeal (ՀՀ քաղաքացիական գործերով վերաքննիչ դատարան) for a new examination. In doing so, the Court of Cassation found that:
“...[M.S.] is the wife of [A.A.].
According to the birth certificate issued on 25 July 1974, [the applicant] was born on 28 November 1964. His patronymic name is registered as “Alexander”, [while] there is no entry concerning the father in the “Parents” section...
According to [L.A.'s] birth certificate and [A.A.'s and M.S.'s] marriage certificate, [L.A.] was born on 31 December 1964, while her parents' marriage was registered on 11 March 1970[. T]hus, within the same period when [the applicant] was born (1964) [A.A.] was in a formal marriage with [M.S.].
In such circumstances, the application lodged on the ground of newly discovered circumstances is founded, because the above-mentioned facts are newly discovered circumstances, which have a vital importance for the case...
Furthermore, Article 189 of the Code of Civil Procedure contains an exhaustive list of facts of legal significance to be examined in special proceedings which does not include the establishment of a fact of paternity.”
9. On 25 August 2003, during the new examination of the case in the Civil Court of Appeal, the applicant requested the court to order a forensic genetic examination (դատագենետիկական փորձաքննություն) in order to have the alleged paternity established. In support of his request, the applicant submitted a paper from a State non-commercial organisation “Scientific-Practical Centre for Forensic Medicine” («Դատաբժշկական գիտա-գործնական կենտրոն» պետական ոչ առևտրային կազմակերպություն) which stated that theoretically it was possible to establish paternity even if the alleged father was dead. This could be done either by using tissue from the deceased's body, depending on its state of preservation, or by restoring the alleged father's genetic characteristics through examination of his close relatives. However, in neither case could a wholly conclusive result be guaranteed.
10. On the same date the Civil Court of Appeal, having examined the applicant's request, refused to order a forensic genetic examination and decided to reject his application on the merits. In doing so, the Court of Appeal recapitulated the findings of the Court of Cassation and concluded that the application was unfounded and that the applicant had failed to substantiate his request.
11. On 9 September 2003 the applicant lodged an appeal on points of law which he then supplemented on 29 September 2003. In the supplement to his appeal the applicant alleged a violation of the procedural rules, arguing that the Court of Appeal, by refusing his request for a forensic genetic examination, had placed the applicant at a significant disadvantage vis-à-vis his opponent since he was thus deprived of the possibility to submit evidence in support of his application. The lawyer invoked, inter alia, Article 6 of the Convention.
12. On 24 October 2003 the Court of Cassation dismissed the appeal. In doing so, the Court of Cassation found that:
“The Court of Appeal, having examined the [relevant] circumstances and having stated that 'during the same period when [the applicant] was born (1964) [A.A.] was in a formal marriage with [M.S.]' and 'the application is unfounded and the applicant has failed to substantiate his request', has justly dismissed the application.
In such circumstances, the allegation of a procedural violation is unfounded because paternity can be established only in contentious proceedings [(հայցային վարույթ)] and there is no such institute as establishment of paternity as a fact of legal significance. ...”
13. The Code prescribes the rules for instituting and examining civil disputes between contending parties. An application submitted to the court under these rules must contain, inter alia, the names and addresses of other parties.
14. Section 3(2) of the Code, as one of the exceptions to the above procedure, prescribes the rules for examining cases in special proceedings such as, for instance, the establishment of a fact of legal significance. Article 189 provides that the courts establish such facts which are necessary for the creation, modification or cessation of private and property rights of individuals and legal persons. The courts when establishing facts of legal significance examine cases related to (a) family relationships between persons; (b) custody of a person; (c) registration of birth, adoption, marriage, divorce and death; (d) death of a person; (e) acceptance of inheritance; (f) accidents; (g) ownership of legal documents; (h) disposal of property; and (i) existence of force majeure.
15. According to Article 191, the application seeking to establish a fact of legal significance must indicate the reason why it is necessary for the applicant to have a particular fact established, as well as containing evidence substantiating the inability of the applicant to obtain proper documents or to restore lost documents.
16. According to Article 192, the court establishes a fact of legal significance only when it is impossible for the applicant to receive proper documents certifying that fact or to restore lost documents in another procedure.
17. According to Article 193 § 2, the court judgment establishing a fact of legal significance serves as a basis for registering that fact with the relevant authorities or formalising the rights arising from the established fact.
18. Former Articles 222-225, 228 and 236 of the CCP allowed final judgments of the courts of first instance and the appeal courts to be reopened on various grounds, including newly discovered circumstances. Applications for reopening could be brought either by the General Prosecutor and his deputies or advocates holding a special licence and registered at the Court of Cassation. Such applications were examined by the Court of Cassation which could either dismiss them, or decide to quash the judgment in full or in part and remit the case to the appeal court, or terminate the proceedings.
19. According to Article 54, if a child is born out of wedlock and there is no joint application by the parents, the issue of paternity may be established in court, on the basis of an application by one of the child's parents or his guardian, or the child himself when he becomes an adult. In determining the issue of paternity the court takes into account the fact that the child's mother and the defendant were living together and were leading a common household prior to the child's birth, or their shared upbringing of and care for the child, or other evidence pointing at the acceptance of paternity by the defendant.
20. According to Article 56, if the parents are not married, the child's mother shall be registered on the basis of her application, and the child's father shall be registered on the basis of a joint application by the child's mother and father or in accordance with a court decision.
21. According to Article 57, if an unmarried mother gives birth to a child, in the absence of a joint application by the parents or a court decision determining the paternity, the registration of the child's father in the birth register is done by entering the mother's family name, and the name of the child's father and the child's patronymic name are registered according to the mother's instructions.


ITEMID: 001-70333
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF REYNBAKH v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Remainder inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1946 and lives in the Sakha (Yakutia) Republic of the Russian Federation.
5. On 11 January and 14 December 1999 the Yakutsk Town Court granted the applicant’s claims against his former employer, a public company “Sakhaavialinii” (ОАО Авиакомпания «Сахаавиалинии», “the company”), and ordered payment of wage arrears and court fees.
6. It appears that the judgments could not be enforced as the company went bankrupt. In July 2000 the court bailiffs forwarded the writs of execution to the company’s receiver.
7. On an unspecified date the applicant sued the receiver. He claimed that the amounts outstanding should be adjusted for inflation.
8. On 17 January 2003 the Neryungri Town Court discontinued the proceedings on the ground that the applicant had failed to appear at the hearings of 27 December 2002 and 17 January 2003, despite having been duly notified thereof. The applicant did not appeal against that decision.
9. In March 2004 the applicant for the second time sued the company’s receiver, asking to increase the amounts to take account of the inflation.
10. On 5 May 2004 the Yakutsk Town Court dismissed his claim because the company had been declared bankrupt in 2003 and had ceased to exist. On 30 June 2004 the Supreme Court of the Sakha (Yakutia) Republic upheld the judgment on appeal.
11. The applicant brought a civil action against the Russian Government. He sought to enforce a State-issued promissory note for the purchase of a Russian-made car or to recover the monetary value thereof.
12. On 6 June 2000 the Basmanniy District Court of Moscow granted the applicant’s action and awarded him 63,000 Russian roubles (“RUR”, EUR 2,360). The judgment was not appealed against and it became final and enforceable.
13. The applicant was issued with a writ of execution which he submitted to the court bailiffs’ service. On 26 April 2001 a bailiff of the 2nd Interdistrict Court Bailiffs’ Service of the Central Administrative District of Moscow refused to accept the writ because the law on budget for the year 2001 and the implementing Government regulation, introduced in December 2000, established that writs against the Treasury were to be submitted directly to the Federal Treasury.
14. On 13 August 2001 the applicant sued the Neryungri Department of the Federal Treasury seeking enforcement of the judgment of 6 June 2000 and adjustment of the judgment debt for inflation. His claim was dismissed in the final instance on 5 December 2001 by the Supreme Court of the Sakha Republic as having no grounds in the domestic law.
15. On 24 October 2001 the applicant also complained about the allegedly unlawful decision of the Moscow bailiff’s service to the Basmanniy District Court of Moscow. On 24 December 2002 the Moscow City Court dismissed the applicant’s complaint in the final instance. It found that the bailiff had acted lawfully. The applicant received a copy of the judgment on 19 July 2003.
16. The judgment of 6 June 2000 remains unenforced to date.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-69542
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: DAVYDOV v. ESTONIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Andrey Davydov, is a Russian national who was born in 1969 and lives in Narva.
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 1978 the applicant settled, together with his parents, in Estonia. In 1991 he married a Russian national (born in Ivangorod, Russia) who holds a permanent residence permit in Estonia. Their son, born in the same year, is a Russian national and holds a permanent residence permit. The family lived in the city of Narva, separated by the border river Narva from the Russian city of Ivangorod.
In the beginning of the 1990s, having failed the Estonian language exam required for acquiring Estonian nationality, the applicant opted for Russian citizenship. From 1994 to 1997 he was employed in Ivangorod where he also had his registered residence. From 1994 (according to the applicant) or 1996 (according to the Estonian authorities) to 1997 he visited his family in Estonia. The applicant's parents live in Ivangorod, Russia; they are Russian nationals.
On 12 December 1997 the applicant was taken into custody on a criminal charge. On 24 March 1998, he was convicted of the unlawful possession of a firearm and sentenced to one year's imprisonment by the Narva City Court (Narva Linnakohus). On 16 June 1998 the Viru Court of Appeal (Viru Ringkonnakohus) reduced the sentence to six months' imprisonment, upholding the rest of the judgment.
On 8 February 1999 the applicant was convicted of aggravated hooliganism involving the use of a weapon, causing serious bodily injury in excess of self-defence and intentionally causing light bodily injury by the Narva City Court. He was sentenced to two years' imprisonment.
On 24 May 1999 the Narva City Court convicted the applicant of extortion and of the repeated offence of unlawful possession of a firearm. He was sentenced to two years and seven months' imprisonment. The aggregate sentence of imprisonment, which included the unserved part of the previous sentence, was set at three years, one month and 14 days.
On 4 January 2000 the Viru Court of Appeal quashed the City Court's judgment of 24 May 1999 in part. On 28 March 2000 the Supreme Court (Riigikohus) partly quashed the appeal court's judgment and referred the case back to the Court of Appeal. On 16 June 2000 the Court of Appeal quashed the City Court's judgment of 24 May 1999 in part and determined that the period of two years, six months and five days, during which the applicant had been detained on remand should be considered as having been served. The sentence still to be served was seven months and nine days.
In sum, the applicant was held in preliminary detention and detained after conviction in three separate criminal cases from 12 December 1997 to 26 January 2001. His wife visited him in prison.
On 27 November 2001 the Minister of the Interior refused a request by the applicant for a temporary residence permit in Estonia because of his criminal convictions. The Minister relied on sections 12(4)(5) and 12(4)(8) of the Foreigners' Act (Välismaalaste seadus). The Minister also referred to the fact that the applicant had maintained ties with his country of nationality and that all members of his family were Russian nationals, having a possibility to move to that country.
In February 2002 the applicant's wife gave birth to their second child. The family lives in Narva together with the parents of the applicant's wife in the parents' apartment.
On 14 June 2002 the Tallinn Administrative Court (Tallinna Halduskohus) annulled the order of the Minister of the Interior. On 29 November 2002 the Tallinn Court of Appeal (Tallinna Ringkonnakohus) upheld the Minister's appeal. It found that the refusal to grant a residence permit had been lawful. On 5 February 2003 the Supreme Court refused the applicant leave to appeal.
Section 12(4) of the Foreigners' Act lists the instances in which a residence permit cannot be issued or extended. Section 12(4)(5) provides that a permit cannot be issued or extended, if the foreigner applying for it has been convicted of a criminal offence and sentenced to imprisonment for a term exceeding one year and his or her criminal record has neither expired nor been expunged, or the information concerning the punishment has not been expunged from the punishment register. According to section 12(4)(8), a residence permit is denied to persons who have been repeatedly punished for intentional criminal offences. Section 12(5) of the Foreigners' Act, however, provides that, as an exception, a temporary residence permit may be issued or extended for the foreigner concerned, if this is not excluded on any other ground listed in the same provision.


ITEMID: 001-106896
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: TRIMEG LIMITED v. MALTA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 1. The applicant, Trimeg Limited, is a company registered in Malta as from 1987, which has its registered address in Valletta. It was represented before the Court by Dr I. Refalo, a lawyer practising in Valletta.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 5 January 1988 the applicant company acquired three pieces of land measuring 1,864, 1,124 and 7,993 square metres, respectively, and 10,981 square metres in total, at a price of 60,000 Maltese liras (MTL) – (approximately 140,000 euros (EUR)), with the aim of developing the land for commercial purposes.
4. At the time of purchase, the land situated at the upper reaches of “the valley” was included within the “limits to development” within the meaning of the Temporary Provisions Scheme (18 November 1997) issued by the relevant authority, namely the Works Department. The applicant alleged that the land within the development zone as delineated by the Temporary Development Schemes was at the time considered to have development potential, even though the exact layout and type of development had not yet been determined. The area in which the applicant company’s property was situated was marked as a “white area”, which, according to the applicant, meant that no specific type of development had yet been determined for the site, as opposed to a “green area”, which meant that it was to be conserved and that no development would be allowed. Moreover, the land was situated within the boundaries of development. It followed, according to the applicant, that development of the zone was surely permissible.
5. Between 1992 and 2006 land development in Malta was generally governed by the guidelines set out in the Temporary Provisions Schemes. During this time, the applicant company alleged that various properties in the vicinity of its land, situated within the “white area”, had been developed (mostly for residence purposes) and the Government had built social housing complexes in the area. In 1998 (after the scheduling order referred to in the paragraph below came into effect) permission was given to build a road, giving access to two private hotels situated further in from the applicant company’s land, at the lower reaches of “the valley”.
6. By a notice (no. 583) published in the Government Gazette of 6 September 1996, the site owned by the applicant was declared to be scheduled for conservation purposes in terms of section 46 of the Development Planning Act (1992) (“the Act”). The Malta Environment and Planning Authority (“MEPA”), the successor to the Works Department, considered the site to form part of the valley protection zone and its buffer zone, entailing level-four protection, namely the lowest level of protection for scheduling purposes. In consequence, the use of the land was limited to agricultural purposes.
7. A number of different applications lodged by the applicant company on unspecified dates, asking for permission to develop the land, were dismissed by MEPA.
8. On 25 February 1997 the applicant company filed an appeal with the Planning Appeals Board (“PAB”) against the scheduling of its land. It argued that the area at issue should not have been scheduled in this way since there was no reason to conserve it, apart from the maquis vegetation found at its north eastern edge. Nor could the land be considered to be rural, bearing in mind that it was surrounded by a highly urbanised area. According to its experts’ reports, the applicant company was of the view that the area should be considered suitable for commercial development and not a valley protection zone, a notion which was not mentioned in the Structure Plan. Nor could it be considered to be a rural conservation area, an area of ecological importance or a site of scientific importance.
9. By a judgment of 20 September 2002 the applicant company’s appeal was dismissed and the contested scheduling confirmed. Referring to the findings of the Planning Directorate, the PAB considered that the land at issue served as a buffer zone to the ecologically important “valley” and, therefore, qualified as a level-four protection area of ecological importance, mainly acting as a buffer zone to the more important “valley”. The inclusion of buffer zones had been mentioned in the Structure Plan’s Explanatory Memorandum as falling under the heading of areas of ecological importance and sites of scientific importance. Moreover, the applicant company had acknowledged the existence of the maquis vegetation, and this in itself allowed for the lowest level of protection according to the Structure Plan and Policy RCO 12 and therefore sufficed, according to the applicable law, in order to declare the land to be scheduled for conservation purposes. As to the use of the land for agricultural purposes, although this was not established by MEPA, this was the actual use to which the land was being put at the relevant time. In conclusion, the land was indeed of ecological/scientific importance, and even though the term “valley protection zone” was not a legal term, it was understood as falling under the definition of areas which were to be protected according to Policies RCO 15 and 1.
10. On 7 October 2002 the applicant company appealed to the Court of Appeal. During these proceedings, in 2004, it further complained that the State was infringing its property rights since: (i) MEPA had acted outside the parameters of the law by de facto expropriating the property, as the Act did not provide for the scheduling of property for valley protection or buffer zones; (ii) the scheduling was not required for a public purpose; and (iii) the Act did not provide for payment of compensation upon the scheduling of property, notwithstanding that its property had diminished in value (allegedly from EUR 11,000,000 to EUR 230,000). The applicant company insisted that when it had acquired the land it was already situated in a developed area and, indeed, part of its land had been taken for the purpose of building a road to guarantee access to the built-up entertainment zone. However, as a consequence of the scheduling in question, the land had become worthless and the applicant company’s investment futile. Moreover, since other permits had been issued for development of the area notwithstanding its environmental value, the applicant company had been discriminated against in the dismissal of its requests.
11. On 2 March 2005 the Court of Appeal referred the matter to the constitutional jurisdiction.
12. By a judgment of 16 October 2007 the Civil Court (First Hall), in the exercise of its constitutional jurisdiction, upheld the applicant company’s claims in part. It considered that, although there had not been a de facto expropriation, the State had been controlling the use of the applicant company’s property, thereby limiting the latter’s right of ownership. It was not necessary to go on to consider the legality of the measure, as this was deemed to be within the competence of the ordinary courts. It then considered it relevant that when the applicant company had purchased the land, it had been aware that the land was situated in a “white area”, which meant that only limited development could take place. In the meantime the land had become a “green area”, and development was no longer possible, in order to protect the valley on the periphery of which the applicant’s land was situated. The court held that while it was true and unfortunate that the area surrounding the valley was fully developed, it was legitimate and in the general interest for MEPA to protect what was left of it. However, it considered that there had been a violation of the applicant company’s rights since no compensation had been granted to it following the permanent scheduling of its land. Lastly, it held that the applicant company had not been discriminated against, as the only land in a comparable position, namely land which had been scheduled but on which development had nevertheless been permitted, was the road built by the Government. This constituted a project in the general interest, as opposed to the applicant company’s project, which was solely commercial and in the interest of private parties. Thus, the difference in treatment had been justified.
13. MEPA and the Attorney General appealed and the applicant company cross-appealed. By a decision of 19 January 2009 the Constitutional Court rejected a request by the applicant company for leave to submit new evidence.
14. By a judgment of 14 May 2010 the Constitutional Court upheld in part the first-instance judgment and quashed the rest, dismissing all the applicant company’s original claims. It emphasised that the applicant had purchased the land when it had been designated as a “white area”. Thus, the potential for development of the land was limited and uncertain, since no guidelines or framework had yet been put in place to regulate it. In fact, as happened in the applicant company’s case, its land was eventually scheduled as a level 4 buffer zone to “the valley”, which was highly protected (level 1), being an area of ecological and scientific importance. The scheduling of the applicant company’s land had been in accordance with the relevant policies (namely, RCO 10-12) and the Structure Plan, which provided that “small to medium scale physical developments can be considered, provided no suitable alternatives exist and features of ecological and scientific interest are protected, in so far as a suitable environmental impact assessment is made”. Moreover, at the date of judgment the land had become a green area according to the 2006 Local Plan.
15. In answer to the applicant company’s grounds of appeal, it confirmed that the validity (legality) of the scheduling was a matter for the ordinary courts to decide, and that the site was worth protecting in the general interest. The measure of control over use of the property had further restricted its use in that after the original designation of the land as a white area, which might have permitted full development in the future, the land had subsequently been scheduled so as to limit its use to “small to medium scale physical development”, according to certain conditions. However, bearing in mind the State’s margin of appreciation in imposing planning restrictions, the aim of the measure had been legitimate and it could not be said that every scheduling of property required adequate compensation. In the present case the applicant company had not been certain that it would be granted permission to develop the land in the future, as the land had been designated as a “white area”; thus, the applicant company had in fact engaged in a commercial speculation project. It followed that the applicant company did not have a legitimate expectation that it would be granted such permits and in consequence it could not be said that it had suffered a disproportionate burden. In the light of the foregoing, no right to compensation arose.
16. Lastly, as to the complaint regarding discrimination, it considered that the State could reasonably have dispelled environmental concerns when building a road in the public interest, a matter which was within its margin of appreciation. Similarly, the authority had not used its discretion manifestly without reasonable foundation when it had failed to schedule the housing estate built by the Government in an area closer to the valley than the applicant company’s land, and such a difference in treatment had not been illegitimate or oppressive.
17. Following the constitutional referral mentioned above, on 7 October 2010 proceedings resumed before the Court of Appeal, which by a judgment of 24 February 2011 dismissed the applicant company’s appeal. The Court of Appeal considered that all the grounds raised by the applicant company had been dealt with in the PAB’s decision and any argument relating to the fact that the PAB had based its decisions on reasons which had not been mentioned in the original scheduling order could not be entertained since this matter had never been brought to the attention of the PAB. Moreover, the applicant’s appeal before the PAB only concerned matters of fact and not of law, and therefore no appeal to the Court of Appeal could lie on this ground, such appeals being limited only to points of law in accordance with section 15 (2) of the Act. It further considered that the scheduling had not been done on the basis of the rural character of the land, but for the reasons enunciated by the PAB, which had been acting within the parameters of the law.
18. On 18 May 2006 MEPA adopted the North Harbour Local Plan, setting up a framework upon which the authority would base its decisions on land use and development for the next ten years. The applicant company submitted that, as transpired from this plan and the refusal of its applications, further development was to be carried out in the area surrounding “the valley”. Indeed, the 2006 plan extended the development zone which had been earmarked in the 1996 schedules and 2000 plan. In 2008 the 1996 Notice was amended to remove an area of land from the scheduled property (not owned by the applicant company) and extended the scheduled boundary to cover the entire valley system, delineating the buffer and constraint zone. It further transpired that there was a plan to build a further arterial road which would pass right through the applicant company’s land and, according to evidence given during the domestic proceedings, a further descheduling would take place to accommodate this project.
19. Section 15 (2) of the Development Planning Act, Chapter 356 of the Laws of Malta, reads as follows:
“The decisions of the Planning Appeals Board shall be final. An appeal shall lie to the Court of Appeal constituted in terms of article 41(6) of the Code of Organisation and Civil Procedure from such decisions only on points of law decided by the Board in its decision.”
20. Section 46 (1) of the Act, before being repealed in 2010, read as follows:
“The Authority shall prepare, and from time to time review, a list of areas, buildings, structures and remains of geological, paleontological, cultural, archaeological, architectural, historical, antiquarian, or artistic or landscape importance, as well as areas of natural beauty, ecological or scientific value (hereinafter referred to as ‘scheduled property’) which are to be scheduled for conservation and may in respect of all or any one or more of the scheduled property make conservation orders to regulate their conservation. ...”


ITEMID: 001-70763
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF METE v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
TEXT: 6. The applicant was born in 1961 and lives in Istanbul.
7. On 14 May 1990 the Bakirköy District Governorship granted the applicant a licence to serve alcohol in his restaurant.
8. On an unspecified date, the quarter of Güngören, where the applicant’s restaurant was located, became a separate district. On 13 October 1997, the Güngören District Governorship revoked the applicant’s licence on the ground that the applicant’s restaurant was outside the designated area for restaurants serving alcohol.
9. On 27 October 1997 the applicant was notified of this decision and was barred from running the restaurant.
10. On 3 November 1997 the applicant brought an action before the Istanbul Administrative Court for the annulment of the Güngören District Governorship’s decision of 13 October 1997. He also requested that the decision be stayed.
11. On 23 January 1998 the Istanbul Administrative Court rejected the applicant’s request for a stay of proceedings. The applicant objected to this decision. On 18 March 1998 the Regional Administrative Court rejected the applicant’s challenge.
12. On 11 June 1998 the Istanbul Administrative Court delivered its judgment on the merits of the case. The court decided that the revocation order of the Güngören District Governorship was in conformity with the law. The applicant appealed against this judgment to the Supreme Administrative Court, and as a preliminary step, he once again requested the Supreme Administrative Court to stay the execution of the Governorship’s decision. On 12 November 1998 the Supreme Administrative Court decided on the request for a stay and rejected it.
13. On 15 February 2001 the Supreme Administrative Court dismissed the applicant’s appeal on points of law, and upheld the judgment of the first-instance court.
14. The applicant requested rectification of this decision. On 24 June 2002 the Supreme Administrative Court dismissed the applicant’s request.
15. On 15 August 2002 the applicant was notified of the Supreme Administrative Court’s final decision.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-90537
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF GASPARYAN v. ARMENIA (No. 1)
IMPORTANCE: 4
CONCLUSION: Violation of Article 11 - Freedom of assembly and association
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: 4. The applicant was born in 1948 and lives in Yerevan.
5. In 2003 a presidential election was held in Armenia with its first and second rounds taking place on 19 February and 5 March respectively. The applicant acted as an authorised election assistant (վստահված անձ) for the main opposition candidate in this election. Following the first and second rounds of the election, a series of protest rallies were organised in Yerevan by the opposition parties.
6. According to the materials of the case, the applicant attended one of these rallies on 23 February 2003. The applicant denied this fact and alleged that he had not attended the rallies.
7. On 26 February 2003 at 8 a.m. the applicant was visited at home by two police officers from the Shengavit District Police Department (ՀՀ ոստիկանության Շենգավիթի բաժին). He was informed that the chief of the police department wished to speak to him and was taken to the police station.
8. At the police station an administrative case was initiated against the applicant who was charged under Article 172 of the Code of Administrative Offences (Վարչական իրավախախտումների վերաբերյալ ՀՀ օրենսգիրք – “the CAO”) with minor hooliganism on the ground that he had participated in the unauthorised demonstration of 23 February 2003 and had violated public order.
9. On the same date, several hours later, the applicant was taken to the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան). There he was brought before Judge H. who, after a brief hearing, found the applicant guilty as charged and sentenced him to ten days of administrative detention, finding that:
“On 23 February 2003 on Mashtots Avenue in Yerevan [the applicant] participated together with a group of people in an unauthorised demonstration and march, and violated public order.”
10. The decision stated that it could be protested against by the prosecutor under Article 289 of the CAO.
11. The applicant was taken to a detention facility to serve his sentence.
12. The applicant alleged that on 1 March 2003 he was taken from his cell to another room. On the table in this room there were two sample applications, one of which was handed to him with the instruction to write and sign his name on it. The content of the application was a statement which declared: “I regret what I have done and request a review of my case.” This request was addressed to the President of the Criminal and Military Court of Appeal (ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարանի նախագահ). The applicant alleged that he had to sign this document, even though he disagreed with its contents, in order to be released and to be able to perform his authorised election assistant duties in the second round of the presidential election.
13. On the same date the President of the Criminal and Military Court of Appeal reviewed the applicant’s conviction, finding that:
“[The applicant, according to the decision of the District Court, was subjected to administrative detention] ... for attending an unauthorised demonstration in the Kentron District of Yerevan on 23 February 2003 and violating public order.
Having familiarised myself with [the applicant’s] appeal and the materials concerning the administrative offence, I find that the penalty imposed on [the applicant] must be changed.”
14. The President changed the penalty to an administrative fine of 2,000 Armenian drams (AMD) (approximately 3 euros (EUR) at the material time) and ordered the applicant’s release.
15. On the same evening the applicant was released from detention after having served about three days of his sentence.
16. On 26 March 2003 the applicant sent applications to the Ministry of Justice (ՀՀ արդարադատության նախարարություն), the Court of Cassation (ՀՀ վճռաբեկ դատարան) and the Presidential Human Rights Commission (ՀՀ նախագահին առընթեր մարդու իրավունքների հարցերի հանձնաժողով), arguing that he had never participated in any demonstrations, and in particular the one held on 23 February 2003, and seeking a review of his case.
17. By a letter of 3 April 2003 the Court of Cassation forwarded the applicant’s application to be dealt with by the Criminal and Military Court of Appeal.
18. By a letter of 11 April 2003 the Ministry of Justice informed the applicant that the rights of persons charged with an administrative offence were defined in Article 276 of the CAO and should have been invoked by the applicant during the examination of his case. The letter further stated that the decision of 26 February 2003 could be protested against by the prosecutor.
19. By a letter of 16 April 2003 the President of the Criminal and Military Court of Appeal informed the applicant that his application of 26 March 2003 could not be examined, since the applicant had missed the prescribed 10-day time-limit for appeal.
20. By a letter of 17 April 2003 the General Prosecutor’s Office gave a similar reply to the applicant’s application addressed to the Human Rights Commission.
21. On 27 April 2003 the applicant again complained to the Ministry of Justice that the decision of 26 February 2003 had been unlawful since he had not participated in any demonstration.
22. By a letter of 6 May 2003 the Ministry of Justice gave the same reply.
23. On 10 June 2003 the Department for the Enforcement of Judicial Acts (Դատական ակտերի հարկադիր կատարման ծառայություն – “the DEJA”) instituted enforcement proceedings on the basis of an execution writ issued by the District Court on 15 May 2003.
24. The applicant alleged that, around that period, he was visited at home by an officer of the DEJA who informed him that the decision of 26 February 2003 had been reviewed on 1 March 2003 and a fine had been imposed. He further alleged that only then did he become aware of the existence of the decision of the President of the Criminal and Military Court of Appeal of 1 March 2003. The applicant paid the fine.
25. On 12 June 2003 the DEJA decided to terminate the enforcement proceedings since the terms of the execution writ had been complied with.
26. For a summary of the relevant domestic provisions and international documents and reports see the judgment in the case of Galstyan v. Armenia (no. 26986/03, §§ 25-32, 15 November 2007).
VIOLATED_ARTICLES: 11


ITEMID: 001-114452
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF KOVAL AND OTHERS v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
JUDGES: André Potocki;Angelika Nußberger;Dean Spielmann;Mark Villiger;Paul Lemmens;Stanislav Shevchuk
TEXT: 5. The applicants were born in 1944, 1955, 1977 and 1980 respectively and live in the city of Chernigiv, Ukraine. The third and fourth applicants are children of the first and second applicants.
6. In the morning of 14 August 2001 two private individuals, R. and O., acquaintances of the third applicant, went to the applicants’ apartment and said that the third applicant should return an electric drill to them. The third applicant was absent but R. and O. insisted and tried to enter the apartment. The first applicant picked up a gas gun and requested them to leave.
7. R. went to the police station and complained that the first applicant had threatened him with a weapon. It could be also understood from the available materials that R. and O. had bribed the police officers to go and seize the drill (see paragraph 31).
8. At around 7 p.m. on the same day the same two people, accompanied by police officers G., D. and F., went to the applicants’ apartment. R. and O. again asked for the drill and when the first applicant tried to close the door a fight broke out.
9. According to the first applicant, when he opened the door, he was knocked down but managed to break free and shouted for help. He was knocked down again and his attackers tried to push him into the apartment. One of them sat on the applicant, put his knee on the first applicant’s neck and hit him on the head with a gun handle. The third applicant tried to free his father but was handcuffed.
10. According to the second applicant, when she was returning from work, she saw “that something was going on near their apartment and that several people were beating her son in the corridor of their apartment”. She tried to separate the third applicant and the attackers. One of the attackers (who, it emerged later, was the private individual, O.) allegedly kicked her in the stomach and hit her on the head. The applicants’ neighbours heard the noise and came out on to the stairs. The police officers asked them to call the police station. More police officers arrived and the first and third applicants were taken to the police station. According to the Government, they were taken “to give explanations”. The second applicant accompanied them but was not allowed to stay.
11. Upon arrival, the first and third applicants were allegedly beaten up in the police station by eight or ten people. They were hit on the head, in the chest, on the ribs and in the stomach and also hit on the head with a plastic bottle filled with water. The third applicant was hit on the ears. According to him, he was handcuffed the whole time. According to the applicants, they were threatened with being injected with drugs and with being put in a cell where they would be raped by other detainees. The first applicant was allegedly forced to sign a document stating that he had voluntarily handed over a gas gun and an electric drill to the police officers.
12. At around 11 p.m. the first applicant was taken home by police officers S. and T., where he gave them the drill and the gas gun. The drill was later handed over to R. The third applicant was released the same evening.
13. On 15 and 16 August 2001 the first and second applicants requested the prosecutor to arrange a forensic medical examination for them. In particular, the second applicant submitted that she “had been beaten by the bandits who had beaten her husband and son”. She further noted that she had been beaten by O.
14. On 15 August 2001 the first applicant underwent a forensic medical examination, which concluded that the first applicant had concussion, a broken rib, bruises and scratches on the head. These injuries were of medium severity and could have been inflicted by the first applicant’s falling against some objects.
15. The first applicant was in hospital between 16 August and 7 September 2001.
16. On 17 August 2001 the second and third applicants were examined by a forensic expert, who found that the third applicant had bruises on and behind the ears, a black eye and bruises on his chest. They were classified as light bodily injuries. The second applicant told the expert that she had been hit on the head and kicked in the stomach. She had not sought medical assistance at the time. The expert examined the second applicant and found no visible injuries. The second applicant was advised to consult a neurosurgeon, and later the expert added that “by 3 September 2001 no neurosurgeon’s opinion had been received”.
17. Between 22 August and 6 September 2001 the second applicant was treated in the neurological department of Chernigiv Regional Hospital. She was diagnosed with a closed craniocerebral injury. The second applicant told doctors that on 14 August 2001 she had been hit on the left temple by an unknown person.
18. On 23 August 2001 the police office decided not to institute criminal proceedings against the first applicant for threatening R. with a gas gun. It was also found that the first applicant’s licence to keep such a gun had expired.
19. On 24 August 2001 the Head of the Criminal Investigation Department of the Chernigiv City Police Department (начальник відділу кримінального розшуку Чернігівського міського відділу УМВС України в Чернігівській області) terminated an internal investigation into the events of 14 August 2001. It was found that R. had complained to the police that the first applicant had threatened him with “an object which looked like a gun and with an object which looked like a sword”. Following this complaint police officers had gone to the first applicant’s apartment. When they identified themselves and showed their police cards, the first and third applicants began fighting and swearing. The police officers used martial arts techniques and handcuffs.
20. On 26 August 2001 the first applicant complained to the Chernigiv City Prosecutor that he and his son had been unlawfully arrested and beaten up, and that their property had been seized unlawfully. In particular, the first applicant submitted that at around 7 p.m. on 14 August 2001 somebody had rung their doorbell. When the first applicant opened the door he was knocked down, dragged into his apartment and threatened with a gun. When neighbours appeared because of the noise and wanted to call the police, the attackers said that they themselves were police officers. They were accompanied by R. and O., who kicked the second applicant. The first and third applicants were beaten, put into a police car which had arrived by this time, and taken to the police station. In the police station the first applicant was also beaten and told to give up any weapon he had. According to the first applicant, the beatings were “directed” by the police officer who had earlier hit him with a gun handle. Later the first applicant stated that a certain police officer, A., had also “joined in torturing him”. A couple of hours later the first applicant was brought home where, in the presence of two witnesses, he handed over to police a gas gun and an electric drill.
21. On 31 August 2001 the second and fourth applicants lodged similar complaints. In particular, the second applicant complained that O. had hit her on the head and kicked her in the stomach. She further complained that her son had been beaten up.
22. On 6 September 2001 the third applicant complained to the Chernigiv Prosecutor’s Office that he had been beaten up by police. On an unidentified date he also stated that O. had pushed his mother and kicked her.
23. Written explanations were collected from the participants of the events in question. In particular, on 11 September 2001 O. submitted that the first and third applicants started to fight, that the third applicant had broken the glasses of one of the police officers and that the second applicant had sworn at him. O. did not mention that he had fought with anybody.
24. On 20 September 2001 the Head of the Chernigiv Regional Department of Internal Affairs ordered that police officers G., D. and F. be dismissed. It was found that: (i) the conflict between R., O. and the third applicant was of a civil-law nature, and R. was not the owner of the drill; (ii) police officers D. and F. submitted reports about use of force against the third applicant and, according to findings of the internal investigation, their actions were considered lawful. G. did not submit any report; (iii) D., F. and G. were not equipped “properly” when leaving to check R.’s complaints of threatening behaviour with a firearm. It was concluded that the events in question happened because of “lack of discipline and legal knowledge”. As a result D., F. and G. were to be dismissed for “personal misconduct and an unsatisfactory level of professionalism”. Police officers T. and S. received a warning.
25. On 20 September 2001 a decision was adopted not to institute criminal proceedings. On 31 October 2001 this decision was quashed by the Chernigiv City Prosecutor.
26. On 9 November 2001 the Chernigiv City Prosecutor instituted criminal proceedings for abuse of power following infliction of bodily injuries on the first and third applicants.
27. Between 15 and 28 December 2001 the second applicant was in Chernigiv Regional Hospital. She was diagnosed with “after-effects of a repeated head injury (last injury August 2001)”. A medical certificate issued on an unknown date stated that in August 2001 the applicant had received a head injury.
28. On 29 December 2002 the Chernigiv City Prosecutor’s Office terminated criminal proceedings for absence of evidence of a crime. The first and third applicants were questioned, as was G. The latter testified that the first applicant had opened the door and together with the third applicant had tried to hit the police officers and to grab G.’s gun, so force had been used on the applicants and the third applicant had been handcuffed. Other police officers confirmed G.’s statements. According to this decision, the first applicant refused to have confrontations with the police officers. It was also noted that the second applicant had no visible injuries.
29. On 15 January 2003 the decision of 29 December 2002 was quashed and the case remitted for further investigation as “not all necessary investigative actions had been taken”.
30. On 2 October 2003 these proceedings were again terminated for lack of evidence of a crime in the police officers’ actions.
31. On 22 December 2003 the decision of 2 October 2003 was quashed by the Chernigiv Regional Prosecutor’s Office and the case sent for additional investigation. It was noted, inter alia, that R. had allegedly paid 300 Ukrainian hryvnias (UAH) to G. as “financial assistance to cover petrol cost” and that this information had not been checked.
32. On 19 March 2004 the criminal proceedings were again terminated. The investigation officer of the Chernigiv City Prosecutor’s Office found that the electric drill was jointly owned by the third applicant, R. and O. Since the third applicant had refused to give it back and the first applicant had threatened them with a gun, R. and O. had gone to the police station and lodged a complaint. According to O., the police officers showed the first applicant their identity documents but the latter refused to let them in, tried to grab G.’s gun and started a fight. The second applicant arrived and started shouting. Following the noise, the neighbours came and the police officers asked them to call for reinforcements. All this happened on the staircase in front of the applicants’ apartment. R., who, according to O., stayed in the car, confirmed O.’s statements. Police officers G., D. and F. also confirmed this version of events. D. also submitted that the first applicant had fallen down the stairs in the police station. Police officers M., Sy., Gr., S. and T. stated that nobody had beaten the applicants. S. and T. testified that on 14 August 2001 on G.’s orders they had visited the first applicant’s apartment where he had given them a gas pistol and a drill. They also said they had seen the first applicant fall down the stairs. The applicants’ neighbours stated that they did not see the beginning of the fight so they could not say who had started it. It was finally concluded that the first and third applicants had been taken to the police station because they were suspected of unlawful possession of firearms.
33. On 30 June 2004 the Chernigiv Regional Prosecutor’
34. On 30 November 2004 the Chernigiv City Prosecutor’s Office again terminated the criminal proceedings. This decision was identical to that of 19 March 2004 but contained an additional paragraph which stated a further investigation had not revealed any evidence of a crime.
35. On 1 March 2005 the Desnyanskiy District Court (Chernigiv) quashed this decision and remitted the case for further investigation. The court found that the investigating authorities had failed to comply with the prosecutor’s decision of 22 December 2003. In particular, the legal grounds for the police entering the applicants’ apartment and seizing the drill and the gas gun had not been checked. Also, one of the police officers, So., should be questioned since, according to the first applicant, he had seen the first applicant being beaten up.
36. On 19 May 2005 the investigation in the applicants’ case was suspended. It was noted in particular that although the applicants’ neighbours had seen the fight between the applicants and the police officers, nobody had witnessed the beginning of this fight and they could not say who had initiated it or why. It was also stated that the first applicant had fallen down the stairs in the police station.
37. Subsequently the investigation was resumed. So. was questioned and said that he had not seen the applicants being beaten up.
38. In the conclusion of 14 June 2005 certified by the Head of the Chernigiv Regional Police Department (начальник Управління Міністерства внутрішніх справ України в Чернігівській області) it was noted that police officers G., D. and F. had not been dismissed, because the dismissal order had been lost.
39. On 14 December 2009 a decision to stay the investigation was adopted since “it was impossible to identify the perpetrator”. There is no evidence that any procedural actions have been taken in the applicants’ case since that time.
40. On 27 September 2005 the first applicant was interviewed by a television company. He said that he had been beaten up by police officers at the police station and called police officer A. “his torturer”.
41. On 19 October 2005 A. instituted defamation proceedings against the first applicant and the television company.
42. On 30 December 2005 the Desnyanskiy Court found against A. It held that there was enough information to suspect that the first applicant had indeed been ill-treated, but that his statements were value judgments and not established facts.
43. On 14 March 2006 the Chernigiv Regional Court of Appeal upheld this judgment.
44. In March 2008 the third applicant instituted proceedings in the Desnyanskyy Court against R. and Chernigiv City Police Office (Чернігівський міський відділ УМВС України в Чернігівській області) for the return of the electric drill. The drill was currently in the possession of R., who was its co-owner. On 10 November 2008 the court rejected this claim since the drill was not solely the third applicant’s property but was jointly owned by a team of construction workers. The third applicant and R. had previously been members of this team. On 6 February 2009 the Court of Appeal upheld this decision. On 5 June 2009 the Supreme Court of Ukraine rejected the third applicant’s request for leave to appeal on points of law as unsubstantiated.
45. The relevant provisions of the Code read as follows:
“A body of inquiry shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on one of the following grounds:
1. if the person is discovered whilst or immediately after committing an offence;
2. if eyewitnesses, including victims, directly identify this person as the one who committed the offence;
3. if clear traces of the offence are found either on the body of the suspect, or on his clothing, or with him, or in his home.
If there is other information giving ground to suspect a person of a criminal offence, a body of inquiry may arrest such a person if the latter attempts to flee, or does not have a permanent place of residence, or the identity of that person has not been established.
For each case of a suspect’s arrest, the body of inquiry shall be required to draw up an arrest warrant (протокол затримання) outlining the grounds, the motives, the day, time, year and month, the place of arrest, the explanations of the person detained and the time when it was recorded that the suspect had been informed of his right to have a meeting with defence counsel with effect from the moment of his arrest, in accordance with the procedure provided for in paragraph 2 of Article 21 of the present Code. The arrest warrant shall be signed by the person who drew it up and by the detainee.
A copy of the arrest warrant with a list of the arrested person’s rights and obligations shall immediately be handed to the detainee and sent to the prosecutor. At the request of the prosecutor, the material which served as a ground for the arrest may also be sent to him...
Within seventy-two hours of the arrest, the body of inquiry shall:
(1) release the detainee if the suspicion that he committed the crime has not been confirmed, if the term of the preliminary detention established by law has expired or if the arrest has been effected in violation of the requirements of paragraphs 1 and 2 of the present Article;
(2) release the detainee and select a non-custodial preventive measure;
(3) bring the detainee before a judge with a request to impose a custodial preventive measure on him or her...
Preliminary detention of a suspect shall not last for more than seventy-two hours...”
46. The procedure for search and seizure is set out in Chapter 16 of the Code of Criminal Procedure. In accordance with Article 178 of the Code seizure is ordered by a reasoned decision of an investigation officer. Unless urgent, the seizure is to be performed during the day.
47. According to Articles 356 – 358 of the Code, two and more individuals may jointly own a property. They have equal parts in this property unless determined otherwise by law or by their agreement. The owners may also determine the way the property is used.
VIOLATED_ARTICLES: 3
5
8
P1
VIOLATED_PARAGRAPHS: 5-1
8-1
P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-60333
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF NIKULA v. FINLAND
IMPORTANCE: 1
CONCLUSION: Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Georg Ress
TEXT: 7. In 1992-93 the applicant appeared as defence counsel in the Kokkola City Court (raastuvanoikeus, rådstuvurätt) in two sets of criminal proceedings against her client I.S. and others. The applicant acted as counsel under the 1973 Cost-Free Proceedings Act (laki maksuttomasta oikeudenkäynnistä, lag om fri rättegång 87/1973) with the City Court's consent.
8. In the 1992 trial the public prosecutor, T., requested that I.S., his brother S.S. and L.O. be temporarily barred from conducting business (liiketoimintakielto, näringsförbud). The request had been triggered by the winding up of various companies which the defendants had owned or in which they had held positions of trust. At a hearing on 4 March 1992 T. argued, inter alia, that regardless of whether S.S. had actually participated in the administration of the companies, he should be barred from conducting business, given his formal membership of their boards of directors. Evidence was heard from the companies' bookkeeper, M.H., who was one of the witnesses. Those proceedings ended with a decision of 9 February 1993 rendered by the Supreme Court (korkein oikeus, högsta domstolen).
9. In the meantime, I.S., S.S., L.O. and M.H. had been questioned as suspects in relation to a complaint lodged by M.S. (the wife of S.S.) alleging that they had, among other things, abused their positions of trust within one of the companies. On 7 December 1992 T. decided not to bring charges against S.S., having found no evidence that he had participated in any meeting of the board at which the funds invested by the complainant had been allocated for purposes to which she had not agreed, or that S.S. had otherwise consented to such allocation.
10. On 2 February 1993 I.S. was charged with aiding and abetting fraud and abusing a position of trust. L.O. was accused, inter alia, of aggravated fraud and fraud, whereas M.H. was charged with abusing a position of trust. The public prosecutor, T., had summoned S.S. to testify but the applicant and the other defence counsel objected to this on behalf of their clients. Before the City Court the applicant read out and handed in a memorial entitled “Role manipulation and unlawful presentation of evidence” (in Finnish, “Roolimanipulointi ja kiellonvastainen todistelu”) in which, among other arguments, she made the following points:
“... The indictment seeks to hide the fact that S.S. ... was ... chairman of the board of the company in question. ...
The blatant abuse in respect of the presentation of evidence must lead the court to reject such evidence. ...
The prosecutor's arrangement shows that he seeks, by means of procedural tactics, to make a witness out of a co-accused so as to support the indictment. In order to prevent the accused from submitting evidence on those points the prosecutor has, in the same case, brought trumped-up charges against a person who would qualify as a witness. ... Such deliberate abuse of discretion on the part of a public authority is highly unusual in a State governed by the rule of law.
As regards, in particular, the procedural tactics which the prosecutor has adopted in the present case, namely as many as two instances of role manipulation in one and the same case, I submit that a milder form of such manipulation has been condemned by the Norwegian Supreme Court. That precedent disclosed unlawful behaviour similar to that of the prosecutor in the present case ...
The prosecutor has, in this case, committed role manipulation, thereby breaching his official duties and jeopardising legal security ...”
11. T. having denied the above allegations and maintained his request, the City Court rejected the objection of the defence and allowed S.S. to testify. On 23 February 1993 the defendants were convicted. I.S. and L.O. were given suspended prison sentences and fines, and M.H. sentenced to fines. They were all ordered to pay damages and costs. All appealed, I.S. and L.O. arguing, inter alia, that S.S. should not have been heard as a witness.
12. In its judgment of 20 December 1993 the Vaasa Court of Appeal (hovioikeus, hovrätt) upheld the decision to hear S.S. as a witness but acquitted I.S. and M.H. of the charges regarding abuse of a position of trust. They were nonetheless ordered to pay damages to the complainant.
13. M.H. and T. requested leave to appeal to the Supreme Court. Having been invited to comment on T.'s request, the applicant maintained on behalf of I.S. that S.S. should not have been heard as a witness. Leave to appeal was granted to M.H. only. In its decision of 9 March 1995 the Supreme Court set aside the order requiring M.H. to pay damages.
14. T. reported the applicant's statements of 2 February 1993 to the Prosecuting Counsel (kanneviskaali, hovrättsfiskalen) of the Court of Appeal for consideration of possible defamation charges. On 27 December 1993 the Acting Prosecuting Counsel formed the view that the applicant had been guilty of defamation but decided not to indict her, since the offence had been of a minor character. The Acting Prosecuting Counsel gave the following reasons, among others:
“The defamation now in question cannot be expected to result in a more severe punishment than a fine.
[The applicant] made her aforementioned ... submission in order to prevent the examination of [S.S.] as witness. By acting in this manner [the applicant] attempted to defend her client's interests in the trial. ... In her submission [she] attempted, perhaps in part due to her inexperience, to place ... the case before the City Court in the context of the ... Norwegian precedent and its formulations. The submission was thereby worded quite sharply with the effect of offending T. ..., although [the applicant] was not able to show the requisite factual grounds for the allegations concerning [T.]
At the same hearing ... the City Court found no obstacles to examining [S.S.] as a witness. In its reasons the City Court noted that no elements had transpired from the pre-trial record or other material on the basis of which the prosecutor could be seen as having deliberately selected certain persons as the accused in the case. The ... Court of Appeal did not reverse [that] decision of the City Court. In the circumstances the [applicant's offence] has not caused any particularly significant harm to [T.] ...”
15. Using his independent right of private prosecution, T. nevertheless brought criminal proceedings against the applicant in the Court of Appeal. Before the Court of Appeal the applicant argued that, as defence counsel, she had to be afforded far-reaching freedom of expression. Prosecutors and legal counsel were obliged to tolerate criticism to a much wider extent than private individuals. The applicant's statements had been addressed exclusively to the City Court and had been limited to criticising the procedure which T., as prosecutor, had adopted in her client's case. As the City Court had dismissed the applicant's objection to hearing S.S. as a witness, the statements could not qualify as defamatory within the meaning of Chapter 27, Article 2, of the Penal Code (rikoslaki, strafflag).
16. T. argued that the applicant's statements to the City Court on 2 February 1993 were capable of subjecting him to contempt and hampering the performance of his professional duties and his career. He referred to his lengthy service as public prosecutor, to his municipal position of trust and to his chairmanship of the local branch of a political party.
17. On 22 August 1994 the Court of Appeal convicted the applicant of public defamation committed “without better knowledge” (julkinen ei vastoin parempaa tietoa tehty herjaus, offentlig smädelse dock inte emot bättre vetande), i.e. negligent defamation, to be distinguished from public defamation “despite better knowledge”, that is to say, intentionally imputing an offence to T. whilst knowing that he had not committed it (rather than voicing a mere suspicion that he had). The applicant was sentenced to a fine of 4,260 markkas (FIM) (716 euros (EUR)). She was further ordered to pay FIM 3,000 (EUR 505) in damages for the harm suffered by T. and FIM 8,000 (EUR 1,345) for his costs (both sums with 16% interest). Lastly, she was ordered to pay FIM 300 (EUR 50) in costs to the State. The Court of Appeal gave the following reasons, among others:
“The obligation of an advocate is to safeguard his or her client's interests within the confines of the law and good advocacy ethics. The requirements relating to an advocate's activities appear in rather general provisions and rules. According to generally recognised principles, an accused must be provided with all necessary guarantees for his or her defence. Similarly, an advocate may request that every aspect of his or her client's case be correctly and properly dealt with by the court. [Counsel] is under a duty to point out the errors and deficiencies which he or she notices. To this end an advocate is free to criticise anything of relevance to the case. Such criticism must nonetheless be appropriate and based on facts. The grounds for the criticism must be carefully considered. ... The manner in which an advocate proceeds is also limited, inter alia by the provisions in Chapter 27 of the Penal Code.
In the [present] case it has been established that [the applicant] alleged, in her aforementioned written submission, that [T.] had, in assessing who should be charged in the case, deliberately abused his discretion and thereby breached his official duties.
T. was thus accused of an intentional offence in office within the meaning of Chapter 40, Article 10, of the Penal Code. [The applicant's] conduct would ... constitute a criminal offence if her statements were capable of subjecting [T.] to contempt or of hampering the performance of his duties or career. On this point the Court of Appeal notes that the statement was made by a legal practitioner trained as a judge (varatuomari, vicehäradshövding). The statements were made at a public hearing before the City Court. The statement may thus have spread into the public domain. The statements concerning the ... abuse of discretion in breach of official duties may therefore have subjected [T.] to contempt or may have hampered the performance of his duties or his career progress.
[T.] had decided not to bring charges against [S.S.] in the absence of evidence sufficient for an indictment. The Court of Appeal notes that no elements have transpired which would lead [it] to believe that [T.'s] aforementioned decision was not based on the appropriate reasons set out in the decision. In its decision made at the same hearing ... the City Court found no obstacle to examining [S.S.] as witness. In its judgment of 20 December 1993 the ... Court of Appeal did not reverse the City Court's decision.
On the basis of the charges which [T.] brought against [M.H.] the City Court convicted [him] of having abused a position of trust. In its aforementioned judgment the Court of Appeal ... acquitted [M.H.] but upheld the City Court's decision in respect of his obligation to pay damages. The Court of Appeal notes that in this respect no elements have transpired which would lead [it] to believe that [T.] decided to bring charges against [M.H.] so as to prevent his being examined as a witness.
[The behaviour imputed to T.] has not been proved.
There is no reason to believe that [the applicant] acted with intent ..., although she did express her criticism in a manner defaming [T.]. In order to defend her client's interests [the applicant] attempted to prevent [S.S.] from being heard as a witness and to put forward elements relating to his credibility. [The applicant] was in principle entitled to criticise the public prosecutor and to voice her suspicion that the prosecutor had acted incorrectly. In the assessment of [the applicant's] guilt no reason has been disclosed for reaching any conclusion other than that she failed to take sufficient care in considering the grounds for her criticism. The Court of Appeal therefore concludes that [the applicant] did not act contrary to her better knowledge. [She] must have realised, however, that her statements were defamatory in nature and were capable of subjecting [T.] to contempt or of hampering the exercise of his official duties or career. ...”
18. Both T. and the applicant appealed to the Supreme Court. On 15 February 1996 (Korkein oikeus 1996:17) the Supreme Court, sitting as a Chamber of five judges with Justice Tulenheimo-Takki holding a casting vote, upheld the Court of Appeal's reasons but set aside the applicant's sentence, considering that her offence had been minor in nature. Accordingly, the fine imposed on her was lifted but her obligation to pay damages and costs was upheld. Justices Krook and Vuori voted in favour of upholding the Court of Appeal's judgment as a whole, whereas Justices Lehtimaja and Portin found that the applicant should be acquitted and relieved of her obligation to pay damages. According to the voting procedure laid down in Chapter 23, Article 4, of the Code of Judicial Procedure (Oikeudenkäymiskaari, Rättegångs Balk), the judges in favour of imposing a penalty on the applicant were considered to form the majority, and the more lenient of the two views within that majority prevailed. Justice Lehtimaja, whose opinion was joined by Justice Portin, reasoned as follows:
“This case concerns, on the one hand, the freedom of speech of the defence lawyer of an accused in criminal proceedings and, on the other hand, the threshold for considering criticism of a public prosecutor's official actions a criminal offence.
It is in the nature of a fair trial that counsel for the defence must, if the client's best interests so require, be free to criticise the public prosecutor's official actions without thereby being threatened with punishment. This is considered to be an essential principle of human rights in the Western countries where the rule of law prevails. The ... principle [becomes devoid of meaning] if defence counsel's freedom of expression is excessively restricted in such a situation. Legal provisions which restrict this freedom of expression must therefore be interpreted narrowly. Correspondingly, one can expect a public prosecutor to tolerate even sharp criticism of his or her official actions at a public hearing. This is due to the specific nature of the post of public prosecutor.
The act imputed [to the applicant]
On the basis of the Court of Appeal's reasoning, I consider that [the applicant] did not have any intention to offend [T.] or to act contrary to her better knowledge. The question ... is therefore whether [she] is guilty of the defamation imputed to her by the Court of Appeal.
In the trial in question [the applicant] considered the interests of her client to require that the [prosecution witness] be disqualified from testifying against his brother. To this end [the applicant] stated her suspicion that [T.], in considering whether to press charges, had been guilty of ... role manipulation. [The applicant] considered it necessary to stress, in particular, that such action was, in her opinion, incompatible with Finnish law and therefore in breach of the ... duties of the prosecutor. As her client's defence counsel, [the applicant] had a right to express such opinions and, as a public prosecutor, [T.] was obliged to tolerate such criticism. As a party to the proceedings, [T.] had an opportunity to respond to [the applicant's] statements and dismiss the opposing party's suspicions if he regarded them as groundless.
On the other hand, there was no need for [the applicant], in her capacity as defence counsel, to state her opinion as to whether [T.] had possibly committed an offence in office by acting in the alleged manner ... In this respect I consider [the applicant's] statements inappropriate.
Constitutive elements of defamation
But did [the applicant] commit defamation? Is it enough for the fulfilment of the elements in Chapter 27, Article 2, of the Penal Code, to allege that someone is 'guilty of a specific offence' in the circumstances mentioned in this provision - or is it also required that the alleged offence is capable of subjecting the said person 'to contempt or harming his professional life or career'? The provision is linguistically open to various interpretations. The Court of Appeal has applied the interpretation which is more favourable to the accused by finding that [her] conduct would constitute a criminal offence [only] if her statements were capable of subjecting [T.] to contempt or of harming his professional life or career. I agree with the Court of Appeal's interpretation.
Considering the broad definition of this offence, it is not reasonable to consider that any allegation of an offence would suffice to cause ... the injurious consequences mentioned in this provision. In order for the definition of defamation to be satisfied evidence is therefore also required in a given case that ... the allegation ... of an offence did produce an injurious consequence.
Assessment of the injurious character of the allegation of an offence
It is common knowledge that the role of an accused person's defence counsel includes criticising the prosecutor's decision to bring charges ... This is almost a rule, especially when the charges against counsel's client are denied. It is also known that the language used by counsel may be sharp and counsel's view particularly subjective. The public present at a trial are therefore usually able to adopt a prudent attitude towards the criticism to which the parties subject each other. Neither is all criticism likely to be taken literally even if those who have presented it are legally trained.
As regards [T.'s] alleged role manipulation as such, [the applicant] did not state that [T.] had done something he had not done. Instead, she questioned the appropriateness of [his] decisions ... [The applicant] alleged that the actual purpose of [T.'s] actions had not corresponded to the stated grounds for the actions. On that basis [the applicant] made known that she considered [T.'s] official actions unlawful and purposely harmful to her client. Despite their unconditional tone and formulation [the applicant's] statements could be understood more or less as [her] own doubts as to the reasons why [T.] had acted the way he did.
Conclusion
In the light of the above-mentioned considerations, I do not consider that [the applicant's] allegation that [T.] had committed an offence in office was capable of subjecting [him] to contempt or of harming his professional life or career within the meaning of Chapter 27, Article 2 § 1, of the Penal Code. Therefore I consider it not proved that [the applicant] committed defamation ... I would quash the Court of Appeal's judgment and dismiss the charges and compensation claims against [the applicant].
Costs
In so far as court costs are concerned, I consider, despite the outcome of the case, that [the applicant], given the inappropriate tone of her remarks, gave cause for [T.] to initiate proceedings against her. Considering the facts, I nonetheless find ... that both parties should bear their own costs.”
19. According to Chapter 27, Article 2, of the Penal Code, as in force at the relevant time, a person alleging, albeit not contrary to his or her better knowledge, that someone had committed an offence was to be convicted of defamation, unless he or she could show probable cause in support of the allegation.
20. The current Chapter 24, Article 9 § 2, of the Penal Code, as amended by Law no. 531/2000, provides that where criticism is aimed at the conduct of another person in his or her political or business activity, public office or function, scientific, artistic or other comparable public activity, and where this criticism clearly does not exceed the limits of acceptable conduct, it shall not be considered defamation within the meaning of paragraph 1.
21. According to Chapter 15, Article 10a, of the Code of Judicial Procedure, the court may order that an unsuitable legal representative should no longer appear in the case before it. The court may also, on similar grounds, revoke the appointment of counsel instructed under the legal-aid scheme (section 14 of the Cost-Free Proceedings Act).
22. The intervener concluded from its survey of a number of member States of the Council of Europe (i.e. Belgium, Denmark, France, Italy, the Netherlands, Spain, Sweden and the United Kingdom) as well as of certain other States (Australia, Canada and South Africa) that a great majority of them accord a privilege to lawyers for statements they make while representing clients in court. Although the extent and application of such privilege may differ from jurisdiction to jurisdiction, every surveyed State recognises that a lawyer's ability to express himself or herself is closely linked to counsel's obligation to defend the client. The privilege for allegedly defamatory statements allows counsel to argue as effectively as possible, relying even on facts which they cannot be sure are true. For example, in the Netherlands allegations that the prosecutor has abused his or her discretion are regularly made by defence lawyers. Potentially relevant allegations which are entirely unsubstantiated are simply disregarded.
23. To the extent that restrictions are permitted on a lawyer's statements in court, most of the jurisdictions surveyed by Interights tend to favour the use of disciplinary measures over criminal sanctions. In the view of the intervener, this might reflect the position taken by the Court in the context of Article 10, namely that a relatively light criminal sanction may already serve to chill even appropriate and measured criticism (see, for example, the Thorgeir Thorgeirson v. Iceland, judgment of 25 June 1992, Series A no. 239).
24. Where criminal sanctions are permitted in theory, in most of the jurisdictions surveyed by the intervener they are rarely used in practice, and then usually only in extreme circumstances and provided that intent can be shown, as opposed to mere negligence. Even where a lawyer's statements may in principle be subject to restrictions, those are generally imposed only when the statement is not only defamatory but also entirely unrelated to the proceedings or the parties.
25. Furthermore, almost all of the jurisdictions surveyed by the intervener recognise the fundamental difference between the roles of the prosecutor, being the opponent of the accused, and the judge. This distinction generally provides an increased protection for statements that are critical of the prosecutor.
26. It is the intervener's conclusion that in most of the surveyed jurisdictions it is unlikely that a defence lawyer would be criminally prosecuted for having criticised the manner in which a prosecutor is handling a case or for having indicated that the prosecutor has abused his or her discretion. On such facts recourse to criminal proceedings would not be deemed necessary.
27. According to paragraph 20 of the Basic Principles on the Role of Lawyers (adopted in 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders), lawyers should enjoy “civil and penal immunity for relevant statements made in good faith in written or oral pleadings in their professional appearances before a court, tribunal or other legal or administrative authority”.
28. In its Recommendation (2000) 21 the Committee of Ministers of the Council of Europe recommends the governments of Member States to take or reinforce, as the case may be, all measures they consider necessary with a view to implementing the freedom of exercise of the profession of lawyer. For instance, “lawyers should not suffer or be threatened with any sanctions or pressure when acting in accordance with their professional standards”. Lawyers should, however, “respect the judiciary and carry out their duties towards the court in a manner consistent with domestic legal and other rules and professional standards” (principles I:4 and III:4).
VIOLATED_ARTICLES: 10


ITEMID: 001-94574
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: SHKURENKO v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: The applicant, Mr Aleksandr Trofimovich Shkurenko, is a Russian national who was born in 1953 and is currently serving a sentence of imprisonment. The Russian Government (“the Government”) were represented by Ms V. Milinchuk and Mr A. Savenkov, former Representative and former acting Representative of the Russian Federation at the European Court of Human Rights respectively.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 26 August 1998 the applicant was arrested on suspicion of rape and remanded in custody.
On 24 March 2000 the Magadan Town Court convicted the applicant of rape and sentenced him to thirteen years’ imprisonment.
On 30 August 2000 the applicant was transferred to correctional colony IK3 of Talaya, the Magadan Region (ФГУ ИК-3 УФСИН по Магаданской области) to serve his sentence. The parties submitted the following accounts of conditions in IK3.
The applicant was held in units nos. 2 and 4 of the correctional colony. On several occasions he was also held in punishment units nos. 2 and 8 of the disciplinary unit.
Unit no. 2 was a dormitory which measured 185.2 sq. m, including a sleeping area of 138.17 sq. m, a canteen and a sanitary unit. Unit no. 4 was a dormitory measuring 257.8 sq. m and including a sleeping area of 216 sq. m, a canteen, a washroom and a toilet. Unit no. 2 housed from 48 to 65 inmates, and unit no. 4 housed from 75 to 90 inmates. During the daytime the applicant could move freely within the unit’s local zone.
Punishment units nos. 2 and 8 measured 8 and 16 sq. m respectively. They housed respectively two and four inmates including the applicant. Since the applicant was engaged in labour he spent most of the day outside the unit. He could also take one-hour outside walks after work.
The windows of the punishment units measured 1.1 by 0.6 m, and the windows of the dormitories measured 1.5 by 1.5 m. They were not covered with metal blinds and had no other arrangements preventing the access of daylight.
All premises were equipped with 100-watt filament lamps and 60-watt security lights.
The punishment units, bathhouse and canteen were equipped with natural and extractor ventilation. The sleeping areas of the units had natural ventilation.
All premises were sufficiently heated. The average temperature in the sleeping areas of the units was maintained at 20-22 degrees Celsius, and in the punishment units at 18-20 degrees Celsius.
The punishment units were equipped with lavatories separated from the living area by 1.4 m-high brick partitions. The dormitories were equipped with lavatory rooms equipped with cold and hot water taps and lavatory booths separated from one another by 1.7 metre-high partitions.
The applicant had at all times been provided with an individual bed and bedding (a mattress, a blanket, a pillow, two bed sheets and a pillow slip).
The applicant could take a shower once a week. He was given food in accordance with the established norms. The quality of the food was monitored on a regular basis by the medical staff of the facility. The applicant could receive food parcels from relatives and buy food at the facility’s shop.
The punishment units were equipped with dining tables and benches, and the dormitories had canteens where the inmates took their meals.
Regular disinfections and disinfestations were carried out in the facility.
Punishment unit no. 2 was half the size indicated by the Government and housed two inmates. Unit no. 2 was shared by over 100 inmates. The artificial lighting in the colony’s premises was insufficient and often non-existent on account of electricity cuts. The heating was also insufficient. There was no ventilation. The dimensions of the windows indicated by the Government were incorrect. There were no hot water taps in the facility. The food was of poor quality and inadequate in quantity. The bedding was never changed.
On 3 September 1998 the applicant requested the police to secure his property during his pre-trial detention. On 30 March 1999 he made the same request to the court.
The court established the following.
The applicant did not indicate any particular individual or legal entity to be entrusted with securing his property. He further refused to have the property secured on a commercial basis. The police made a considerable effort to find a person who would be in the best position to secure the applicant’s property. In particular, they contacted the applicant’s brother, the municipal maintenance company and persons identified as P., K. and R., but for various reasons the attempts proved unsuccessful.
As a result, on 3 September 1998, the applicant’s property and belongings were entrusted to V., a person who lived in the applicant’s flat with the applicant’s permission.
Later V. disappeared, and the prosecutor’s office failed to discover his whereabouts.
On an unspecified date the applicant informed the police of his other belongings located in different places. However, the applicant did not provide any documents certifying that he was the owner of the belongings in question. The court established, however, that a person identified as Zh. agreed to keep the applicant’s car. R. provided a list of the applicant’s belongings which were kept at her place, and the applicant did not object to the above persons being left in charge of his belongings.
The final decision was given by the Magadan Regional Court on 15 October 2003.
Article 99 § 1 of the Penitentiary Code of 8 January 1997 lays down a minimum standard of two square metres of personal space for male convicts in correctional colonies.