ITEMID: 001-103420
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF DZHAKSYBERGENOV (AKA JAXYBERGENOV) v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation de P4-2;No violation of Art. 3 (in case of extradition to Kazakhstan);No violation of Art. 6 (in case of extradition to Kazakhstan);Remainder inadmissible
JUDGES: Angelika Nußberger;Ganna Yudkivska;Isabelle Berro-Lefèvre;Julia Laffranque;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1974 and lives in Kyiv.
6. Between 1998 and 2002 the applicant worked with Mr Zhakiyanov, who was working in opposition to the Kazakhstan Government.
7. After 2002 he worked in companies belonging to Mr Y. Baysakov and Mr Z. Baysakov, who had been associates of Mr Zhakiyanov.
8. In 2004 the applicant left Kazakhstan but continued working for Mr Y. Baysakov and Mr Z. Baysakov. His business activities included cooperation with the TuranAlem Bank (“the BTA Bank”) which had been headed by Mr Ablyazov, who had been involved in politics at the beginning of the 2000s and was one of cofounders of the Democratic Choice party. In 2002 Mr Ablyazov was tried for corruption. Many international and domestic observers considered his trial to be politically motivated. Following his release in 2003, Mr Ablyazov announced that he would devote his time to his businesses and refrain from active participation in politics (see paragraph 25 below). In 2005-2009 he chaired the biggest bank in Kasakhstan – the BTA Bank.
9. In February 2009 the BTA Bank was nationalised due to its difficult financial situation. On 2 March 2009 criminal proceedings were instituted against Mr Ablyazov and other persons for misappropriation of funds by an organised group. On 25 December 2009 twelve former staff members of the BTA bank were found guilty and sentenced to between two and eight years' imprisonment for stealing particularly large quantities of financial resources.
10. At the same time the Kazakh authorities started prosecuting those who had worked in cooperation with the BTA.
11. On 25 March 2009 the General Prosecutor's Office (“the GPO”) of Kazakhstan instituted criminal proceedings against the applicant for participating with the management of the BTA in misappropriation of financial resources by organised group in particularly large amounts (under Article 176 part 3 paragraphs “a” and “b” of the Criminal Code of the Republic of Kazakhstan, which provides for a maximum penalty of ten years' imprisonment). On the same day, the Medeuskiy District Court of Almaty ordered the applicant to be arrested. The applicant was placed on a list of nationally and internationally wanted persons.
12. By letter dated 8 July 2009, the GPO of Kazakhstan asked its Ukrainian counterpart to extradite the applicant.
13. On 13 August 2009 the GPO of Ukraine requested the GPO of Kazakhstan for additional guarantees, asking whether, in the event of the extradition of the applicant, the provisions of Article 3 of the Convention would be respected and whether the applicant would be given a fair trial and, if necessary, appropriate medical treatment.
14. By letter dated 19 August 2009, the GPO of Kazakhstan sent assurances that the applicant would not be ill-treated and that his rights guaranteed by the International Covenant on Civil and Political Rights and by Articles 2, 3, 5, 6, 7, 13 and 14 of the Convention would be respected.
15. On 15 February 2010 the GPO of Ukraine passed a resolution on the temporal restriction of the applicant's right to leave the territory of Ukraine following its examination of a request for the applicant to be extradited on the basis of Articles 31 and 98 § 1 of the Code of Criminal Procedure, section 26 of the Legal Status of Foreigners and Stateless Persons Act and sections 19 and 20 of the State Border Guards of Ukraine Act. The decision contained no time-limit.
16. On 18 February 2010 the applicant received a letter from the GPO of Ukraine notifying him about the decision of 15 February 2010.
17. On 5 March 2010 a copy of the resolution of 15 February 2010 was served on the applicant's lawyer.
18. On 11 March 2010 the GPO of Ukraine informed the GPO of Kazakhstan about the interim measure indicated by the Court and asked for additional assurances, namely, the possibility of Ukrainian diplomatic representatives to visit the applicant in detention, to be present during the judicial proceedings and to be informed about the course and the outcome of the criminal proceedings.
19. On 29 March 2010 the GPO of Kazakhstan gave assurances that the officials of the Ukrainian diplomatic mission would be allowed to visit the extradited person, the extradited person would have access to such officials at any time and their meetings would be free from supervision. Furthermore, the officials would be able to follow the progress of the proceedings and to be present at the trial on the merits, and would be informed of the final decision in the respective criminal case.
20. The relevant provision of the Constitution read as follows:
“Human and citizens' rights and freedoms are protected by the courts.
Everyone is guaranteed the right to challenge in court the decisions, actions or omissions of bodies exercising State power, local self-government bodies, officials and officers ...
... After exhausting all domestic legal remedies, everyone has the right of appeal for the protection of his or her rights and freedoms to the relevant international judicial institutions or to the relevant bodies of international organisations of which Ukraine is a member or participant ...”
21. Article 31 of the Code defines that the law-enforcement and judicial authorities shall cooperate with their foreign counterparts under the procedure established by Ukrainian law and by international treaties.
“If a criminal case is instituted against a certain person, the prosecutor (the judge) shall be entitled to decide whether a person shall be prohibited from leaving the territory of Ukraine before the end of the pre-trial investigation or trial. He or she shall render a reasoned decision (ruling) to this effect.”
22. On 17 June 2010 the Amendment Act introduced a new chapter to the Code regulating proceedings for extradition to and from Ukraine. Relevant articles of this new chapter provide, among other things, as follows:
Article 463
Extradition detention
“In the event of release of a person from custody by the court, the prosecutor shall ... issue a ruling on taking other necessary measures to prevent the escape of the person and ensuring his extradition afterwards.
Such measures must be sufficient to guarantee the possibility of implementation of the decision on the person's extradition, and may foresee, in particular ... placing travel restrictions on a person ... the placing of travel restrictions on a person shall be governed by the procedure set out in Articles 98-1, ... of this Code, taking into account the particularities of this Chapter ...”
Article 466. Refusal to extradite a person
“A decision not to extradite a person to a foreign state may be taken if:
...
5 the person's extradition is incompatible with obligations of Ukraine under international treaties to which Ukraine is a party...”
Article 467. Decision on a request for extradition
“...If a decision to extradite a person is taken ..., the person shall be issued with a copy of the decision. If such decision has not been challenged before a court within seven days, the authorities shall organise the actual extradition of the person to the competent authorities of the foreign state.”
Article 468. Procedure for appeal against a decision to extradite a person
“A decision to extradite a person may be appealed against by the person concerned, his or her defence counsel or legal representative before a local court...
An appeal shall be examined in a single-judge formation within ten days from the date of its receipt by the court. The hearing shall be held in the presence of the prosecutor, the person concerned, his or her defence counsel or legal representative if the latter participates in the proceedings.
...
Following the examination, the judge shall take a reasoned decision to:
1 reject the appeal;
2 allow the appeal and quash the decision to extradite.
...
An appeal against the judge's decision may be lodged with a court of appeal by the prosecutor who participated in the hearing before the court of first instance, by the person concerned, his or her defence counsel or legal representative within seven days from the date of delivery of the impugned decision. The lodging of an appeal against the judge's decision with the court shall suspend its entry into force and its execution.”
23. The relevant provisions of the Code read as follows:
Task of the administrative justice system
“1. The task of the administrative justice system is the protection of the rights, freedoms and interests of physical persons, and the rights and interests of legal entities in the field of public law relations from violations by public authorities ...
2. Any decisions, actions or inactivity of public authorities can be appealed against in administrative courts, except for cases in which the Constitution and laws of Ukraine foresee a different procedure of judicial appeal against such decisions, actions or inactivity ...”
Competence of the administrative courts in deciding administrative cases
“1. The competence of the administrative courts shall cover:
...
3) disputes between public authorities ...
4) disputes following an application by a public authority in the situations set forth by the law ...
2. The competence of the administrative courts shall not cover public law cases:
...
2. that shall be decided under the criminal justice procedure ...”
24. The relevant provisions of the Act read as follows:
“... A foreigner or stateless person shall not be permitted to leave Ukraine if:
- there is an inquiry or preliminary investigation being undertaken in respect of them, or a criminal case against them is being examined by a court, until the proceedings have ended;
- he or she has been convicted of a crime, until he or she has served his or her sentence or has been released;
- his or her departure is contrary to the interests of Ukraine's security – until the circumstances that prevent his or her departure cease to exist.
Foreigners and stateless persons may have their departure from Ukraine postponed until they have honoured their property obligations to individuals and legal entities in Ukraine.”
25. The Country Reports on Human Rights Practices of the US Department of State (hereafter “the Reports”) for 2003, released on 25 February 2004, noted with respect to Kazakhstan:
“d. Arbitrary Arrest, Detention, or Exile
...In the summer of 2002, the Government tried and convicted two founding members of the Democratic Choice for Kazakhstan (DVK) movement, Mukhtar Ablyazov, former Minister of Energy, and Galymzhan Zhakiyanov, former Akim (Governor) of Pavlodar Oblast (see Sections 1.e. and 3). Their arrests came years after the alleged crimes (abuse of power and corruption) were committed, but only months after Ablyazov and Zhakiyanov founded an opposition political movement. The Government maintained that their prosecutions were simply an effort to punish corrupt officials. However, on May 17, the Supreme Court found former Minister of Transport and Communications, Ablay Myrzakhmetov, guilty of stealing approximately $8.2 million (1.15 billion Tenge) of state funds. Although the monetary value of the alleged crime was far higher than in either Zhakiyanov's or Ablyazov's case, Myrzakhmetov received a 5-year suspended sentence and 3 years' probation...
e. Denial of Fair Public Trial
...Both domestic and international observers at the 2002 trials of political opponents Galymzhan Zhakiyanov and Mukhtar Ablyazov reported that both the judicial process and the judges themselves, particularly in the case of Zhakiyanov, heavily favored the State's case (see Sections 1.d. and 3). The judges applied the force of subpoena during the trials only to prosecution witnesses, and many of the witnesses, primarily government officials, stated during testimony in court that they had been intimidated during the investigation by the threat of legal action. Many witnesses also contradicted in court their testimony during the investigations. The judges denied most motions filed by the defense.
At year's end, Zhakiyanov remained in a prison facility in Kostanay Oblast. He appealed for a presidential pardon in August; however, the pardon committee announced in October that it had suspended consideration of his pardon pending the investigation of possible new corruption charges that the Government claimed had only just then surfaced. Ablyazov was released from prison on May 13 after applying for a presidential pardon the month before. At a press conference the day after his release, Ablyazov announced that he would devote his time to his businesses and refrain from active participation in politics. President Nazarbayev had stated before the Zhakiyanov and Ablyazov trials that he would consider exercising his constitutional power of pardon should the courts find them guilty and should they ask him for it...
26. The 2004 Reports, released on 28 February 2005, noted with respect to Kazakhstan:
“d. Arbitrary Arrest or Detention
...On August 16, former Governor and opposition party Democratic Choice of Kazakhstan (DCK) leader Galymzhan Zhakiyanov was transferred to a minimum security settlement colony, the first administrative step toward parole. In 2002, Zhakiyanov had been tried and convicted of alleged abuse of power and corruption along with Mukhtar Ablyazov, former Minister of Energy. The arrests occurred years after the crimes were allegedly committed, but only months after Ablyazov and Zhakiyanov founded an opposition political movement. Authorities reportedly tried to convince Zhakiyanov to discontinue his political activities in exchange for release, and threatened to impose new criminal charges...”
27. The 2009 Reports, released on 11 March 2010, noted with respect to Kazakhstan:
“c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The law prohibits such practices; nevertheless, the police and prison officials at times beat and abused detainees, often to obtain confessions. Human rights activists asserted that the legal definition of torture was too broad and did not meet UN standards, and that the penalties for the crime were too lenient. The Prosecutor General's Office (PGO) and the human rights ombudsman acknowledged that some law enforcement officers used torture and other illegal methods of investigation. Human rights and international legal observers noted investigative and prosecutorial practices that overemphasized a defendant's confession of guilt over collecting other types of evidence in building a criminal case against a defendant. Courts generally ignored allegations by defendants that their confessions were obtained by torture or duress.
During his May visit to the country, Manfred Nowak, the UN special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, inspected several prisons and detention facilities. According to his initial assessment, torture was not widespread, although a culture of impunity allowed police to use extreme methods, such as heavy beating and asphyxiation, to obtain confessions. Police rarely investigated complaints of torture. Nowak noted that he visited two detention facilities of the Committee for National Security (KNB) that human rights observers routinely cited as places where abuses were common. Nowak's final report to the UN Human Rights Council was pending at year's end...
...The Ombudsman's Office reported 1,090 citizen complaints during the year...
...The government reported 167 crimes related to military hazing and abuse of power during the year, compared to 146 in 2008...
Prison and Detention Center Conditions
Prison conditions remained harsh and facilities did not meet international health standards. Scarcity of medical care continued to be a problem. NGOs reported that about half of the inmate population needed professional treatment, especially for HIV/AIDS, tuberculosis, and other infectious diseases. Abuse occurred in police cells, pretrial detention facilities, and prisons. The government took steps to address systemic patterns that encouraged prisoner abuse, including providing for the continued operation of and increased access for regional penitentiary oversight commissions, training of prison officials, and seminars for MIA police. By year's end authorities had prosecuted seven prison officials for abuses and opened 30 investigations for corruption-related offenses, resulting in 23 convictions.
NGOs and international observers reported that prison and detention center conditions did not improve during the year. Observers cited poor treatment of inmates and detainees and lack of professional training for administrators. In February 2008 the Constitutional Council invalidated legislative changes adopted in 2007 that criminalized prisoner protests and self-mutilation.
During the year the government reported 43 detainee deaths and 59 suicides, of which six occurred in pretrial detention facilities, 49 in prisons, and four in police cells.
According to the latest statistics available from prison monitoring NGOs, there were 50,843 prisoners and 8,298 detainees in pretrial facilities. Of the prisoners, 47,265 were men, 3,129 were women, and 449 were juveniles. Men, women, and juveniles were held separately. Detainees were held apart from prisoners. There were no reports that political prisoners were held separately from the rest of the prison population.
Incidents of inmates' self-mutilation as a protest against harsh prison conditions and abuse continued, with 28 cases involving 86 inmates reported during the year; a significant number were group mutilation...
...Civil society activists worked with the councils for public oversight of the ministries of justice and of internal Affairs, as well as the human rights ombudsman's countertorture working group, to monitor the situation in prisons and detention facilities. Many observers criticized the councils for lacking independence or any clearly defined authority or power...
e. Denial of Fair Public Trial
The law does not provide for an independent judiciary. The executive branch limited judicial independence. Prosecutors enjoyed a quasijudicial role and had authority to suspend court decisions...
Trial Procedures
All defendants enjoy a presumption of innocence and are protected from self-incrimination. Trials were public except in instances that could compromise state secrets or when necessary to protect the private life or personal family concerns of a citizen. Nevertheless, there were several reports of journalists and observers denied access to open court hearings.
Courts conducted jury trials for aggravated murder cases, pursuant to legislation enacted in 2006. Observers noted that the juror selection process was inconsistent and that judges, who deliberate with the jurors, tended to dominate the process. However, observers also noted an increase in acquittal rates. During the year courts conducted 47 jury trials involving 69 defendants; jurors convicted 32 defendants and acquitted 14. Two cases involving 16 defendants were under appeal at year's end.
Defendants in criminal cases have the right to counsel and to a government-provided attorney if they cannot afford counsel. Under the criminal procedure code, a defendant must be represented by an attorney when the defendant is a minor, has mental or physical disabilities, does not speak the language of the court, or faces 10 or more years of imprisonment. In practice defense attorneys reportedly participated in only half of all criminal cases, in part because the government did not have sufficient funds to pay them. The law also provides defendants the right to be present at their trials, to be heard in court, and to call witnesses for the defense. They have the right to appeal a decision to a higher court.
Human rights activists reported numerous problems in the judicial system, including lack of access to court proceedings, lack of access to government-held evidence, frequent procedural violations, lack of a presumption of innocence, poor explanation of rights to defendants, denial of defense counsel motions, and failure of judges to investigate allegations that confessions had been extracted through torture or duress. Lack of due process was a problem, particularly in politically motivated trials and in cases when improper political or financial influence was alleged...
Political Prisoners and Detainees
...Local and international human rights NGOs asserted that the prison sentence imposed on Yevgeniy Zhovtis amounted to political persecution to silence the government's most vocal critic in advance of the country's assumption of the chairmanship of the Organization for Security and Cooperation in Europe (OSCE) in 2010...
Section 3 Respect for Political Rights: The Right of Citizens to Change Their Government
...On May 22, the Almalinskiy district court in Almaty found Azat chairman Bulat Abilov, Shanyrak movement's Asylbek Kazhakhmetov, and oppositionist Tolen Tokhtasynov guilty of concealing the whereabouts of a suspect in a murder investigation. The court did not impose a sentence on the three oppositionists, because the statute of limitations on the case had run out. The three appealed the charges, claiming the allegations were politically motivated. On July 29, the Almaty City Appellate Court denied the appeal...
Section 5 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
A number of domestic and international human rights groups generally operated effectively, with relative freedom to investigate and publish their findings on human rights cases; however, the government restricted certain activities of domestic and international human rights NGOs. International human rights groups reported that the government continued to monitor the activities of NGOs that worked on sensitive issues and noted government harassment, including police visits and surveillance of NGO offices and personnel.
The Kazakhstan International Bureau of Human Rights (KIBHR), the Almaty Helsinki Commission, the Republican Network of Independent Monitors, the Charter for Human Rights, Penal Reform International, and Adil Soz were among the most active local human rights NGOs and occasionally faced difficulties in registration and acquiring office space and technical facilities. They also reported the government audited their records and imposed various legal constraints.
On September 22, unidentified persons assaulted Aynur Kurmanov, the head of the Talmas public association, near his home. Kurmanov and Azat party representatives claimed that the attack directly related to his work with trade unions and alleged that the authorities were involved with the attack. A police investigation was pending at year's end.
In general the government did not prevent international NGOs and multilateral institutions dealing with human rights from visiting the country and meeting with local human rights groups and government officials. The government cooperated with the OSCE and its field mission. The UN, the International Organization for Migration, and the International Red Crescent Society also operated freely in the country.
National security laws prohibit foreigners, international organizations, NGOs, and other nonprofit organizations from engaging in political activities. The law stipulates that a noncommercial organization must provide information to tax authorities on its founders, activities, and foreign sources of funding, as well as income, property, expenses, and employee records. International organizations are prohibited from funding unregistered entities.
The Presidential Commission on Human Rights is a consultative and advisory body that includes members from the public appointed by the president. The commission reviews and investigates complaints, issues recommendations, monitors fulfillment of international human rights conventions, and publishes annual human rights reports. The commission does not have legal authority to remedy human rights violations or implement its recommendations. On September 10, the commission presented the National Action Plan on Human Rights for 2009-12. Leading human rights NGOs made a significant contribution to the draft plan. Civil society activists considered it an ambitious, well-prepared document, but expressed concern regarding its implementation.
The presidentially appointed human rights ombudsman investigated complaints by citizens of violations of their rights by state agencies, although the ombudsman was not authorized to investigate complaints concerning the president, heads of government agencies, the parliament, the cabinet, the Constitutional Council, the prosecutor general, the CEC, or the courts. The Ombudsman's Office has authority to appeal to the president, cabinet, or parliament to resolve citizens' complaints, to cooperate with international human rights organizations and NGOs, to meet with government officials concerning human rights violations, to visit certain facilities such as military units and prisons, and to publicize results of investigations in the media. The ombudsman also published an annual human rights report. During the year the ombudsman occasionally briefed the media and issued reports discussing complaints it had investigated. The ombudsman received 1,090 complaints during the year and provided relief to 119 citizens. Many of the complaints concerned court rulings in which the ombudsman had no jurisdiction.
Domestic human rights observers noted that, although government human rights investigators did some laudable work, particularly with less controversial social problems and issues involving lower-level elements of the bureaucracy, the Ombudsman's Office and the human rights commission were limited in their ability to stop human rights abuses or punish perpetrators. Observers noted that the commission and the ombudsman avoided addressing underlying structural problems that led to human rights violations.”
28. The summary of the report reads as follows:
“The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, undertook a visit to Kazakhstan from 5 to 13 May 2009.
The Special Rapporteur expresses his appreciation to the Government for the invitation which he interprets as a sign that the country is sincerely interested in an objective assessment of the situation. He notes that, since independence in 1991, Kazakhstan has acceded to numerous international human rights instruments, which illustrates its commitment to reforming the legal framework and policies. At the same time, he noticed that considerable efforts had been made to prepare the various detention facilities and the detainees for his inspections, which contradicts the very idea of independent fact-finding and unannounced visits. It also makes the task of assessing conditions of detention and torture objectively more difficult.
Whereas the physical conditions and food supply in the prison colonies seem to have been brought into line with international minimum standards in recent years, one of the key requirements of international human rights law — that penitentiary systems put rehabilitation and reintegration rather than the punishment of the individual offender at their core — has not been achieved; the restrictions on contact with the outside world provided by law contradict that very principle. Another major issue of concern is the fact that the hierarchy among prisoners appears to lead to discriminatory practices and, in some cases, to violence.
The same is true for pretrial detention and custody facilities. The pretrial facilities of the Ministry of the Interior, the Committee of National Security and the Ministry of Justice seem to have undergone improvements in terms of physical conditions and food supply; however the almost total denial of contacts with the outside world, often for prolonged periods, clearly contradicts the principle of the presumption of innocence and puts disproportional psychological pressure on suspects.
On the basis of discussions with public officials, judges, lawyers and representatives of civil society, interviews with victims of violence and with persons deprived of their liberty, the Special Rapporteur concludes that the use of torture and ill-treatment certainly goes beyond isolated instances. He received many credible allegations of beatings with hands and fists, plastic bottles filled with sand, police truncheons, and of kicking, asphyxiation with plastic bags and gas masks used to obtain confessions from suspects. In several cases, these allegations were supported by forensic medical evidence.
With regard to the legal framework and safeguards, the Special Rapporteur welcomes the fact that torture has been criminalized, even if the current definition needs to be brought fully into line with the Convention against Torture, and that safeguards are, by and large, provided for by the legislation and formally respected. In order for the safeguards to be effective, however, the various players in the criminal justice cycle must live up to their responsibilities, close the implementation gap and denounce cases of torture, which is currently not the case.
In the light of the above, the Special Rapporteur recommends that the Government of Kazakhstan implement fully its obligations under international human rights law. In particular, he urges the Government to create an independent and effective national preventive mechanism with the necessary human and other resources and to view it as an ally in the collective effort to discover what really happens in places where people are deprived of their liberty. He also recommends that the penitentiary system be conceived in a way that truly aims at the rehabilitation and reintegration of offenders. Complaints mechanisms need to be made accessible and credible; a mechanism to investigate promptly and impartially allegations of torture and ill-treatment should be put in place and be independent of the alleged perpetrators; the de facto time of apprehension should be recorded and terms of police custody reduced to international standards; temporary detention isolators should be transferred from the Ministry of the Interior to the Ministry of Justice; and the burden of proof to show that a confession has not been extracted by torture should be transferred to the prosecutor.”
29. On the eve of Kazakhstan's chairmanship of the OSCE, Human Rights Watch released the above document, which reads, insofar as relevant as follows:
“1. Is Kazakhstan the right choice for the OSCE chair in 2010?
Kazakhstan was a highly controversial choice because of its poor record of adherence to OSCE human rights principles. For that reason, Kazakhstan was unsuccessful in its chairmanship bids in 2005 and 2006. In 2007, in response to concerns by participating states about this record, Kazakhstan's then-Foreign Minister Marat Tazhin pledged that the government would take several reform steps prior to assuming the chairmanship. These included amending Kazakhstan's media law, reforming its elections law, and liberalizing registration requirements for political parties by the end of 2008. Kazakhstan also agreed to incorporate recommendations by the OSCE's Office for Democratic Institutions and Human Rights (ODIHR) in election legislation. Finally, Tazhin promised that Kazakhstan's chairmanship would preserve the ODIHR and its existing mandate and refrain from supporting any future efforts to weaken this institution.
The human rights situation in the country is still troubling one month before Kazakhstan takes over the chairmanship from Greece. The government adopted several modest reforms in early February 2009 in line with Tazhin's pledges, but it did not implement more meaningful reforms and subsequently dealt a series of blows to human rights.
When Kazakhstan assumes the chairmanship on January 1, the OSCE and the public will look to it to embody and project OSCE values. So far, the government has created a difficult environment for human rights that is out of line with OSCE standards and inconsistent with leadership of an organization grounded in human rights principles.
2. Is the human rights situation getting worse or better in Kazakhstan?
In the past several years the Kazakh government has taken a number of important and positive steps, but these have not amounted to meaningful reform to address the country's human rights problems. It ratified the International Covenant on Civil and Political Rights (ICCPR) in 2006 and the Optional Protocol to the Convention against Torture in 2008, issued a declaration recognizing the competence of the United Nations Committee Against Torture to consider individual complaints, and invited the Special Rapporteur on torture to visit in May 2009. It ratified the Optional Protocol to the ICCPR, which allows individuals to file complaints to the UN Human Rights Committee. It also introduced some limited reforms to the criminal justice system, such as transferring the power to issue arrest warrants from the procuracy to judges. In July 2009, Kazakhstan issued standing invitations to UN special procedures.
But in practice, the government has shown no signs of fundamental change. Human rights groups, including Human Rights Watch, have documented a continued deterioration of human rights conditions in the country. The Kazakh government has rejected efforts by human rights groups and the political opposition to press for expanded human rights and freedoms guaranteed by international agreements and Kazakhstan's own constitution. For example, the government did not react to a draft law on freedom of assembly submitted to the president's Commission on Human Rights by several Kazakh human rights groups in September 2007. It has also ignored criticism or ideas submitted by civil society groups in various working groups discussing legal reforms. It has further tightened control over independent media and the internet, interfered with the political opposition (among other things, by refusing to register a major opposition party), and brought politically motivated lawsuits against its critics. The government has not carried out meaningful reforms guaranteeing rights in key areas such as freedom of expression, freedom of assembly, freedom of religion, and access to legal counsel...
4. Does the human rights situation in Kazakhstan compare favorably with conditions in other Central Asian countries?
In discussions with Human Rights Watch, policy makers and Kazakhstan's government officials often draw comparisons among Central Asian governments' human rights practices. The atmosphere of quiet and subtle repression in Kazakhstan doesn't trigger as many headlines as more dramatic government crackdowns on human rights in some of the other countries in the region. But one could just as fairly ask why the government would want to use countries that have poor human rights records as a metric of comparison rather than countries that have good human rights records to which it might aspire.
Kazakhstan's human rights record is not in competition with the records of other states in the region as it assumes the office of OSCE chair, but with its own, voluntarily-assumed international obligations. Enforcing universal human rights principles is a core pillar of the OSCE, and the chair-in-office of the organization has a particular obligation to respect them...”
NON_VIOLATED_ARTICLES: 3
6


ITEMID: 001-76100
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF OLSHANNIKOVA v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1916 and lives in the village of Kolodeznoye, the Voronezh Region.
5. According to the applicant, a number of third persons unlawfully occupied a part of her house.
6. On 8 August 1997 she filed a civil action with the Voronezh Region Kashirskiy District Court (“the District Court”) in which she sought the eviction of a number of third persons.
7. On 12 August 1997 the statement of claim and supporting documents reached the District Court.
8. By decision of 15 January 1998 the District Court accepted the case for examination.
9. It appears that a proper resolution of the dispute required questioning of a person living in the town of Yuzhnosakhalinsk. On 10 April 1998 the District Court made such request to the Yuzhnosakhalinskiy District Court.
10. According to the Government, the hearings in the case were suspended pending the response.
11. On an unspecified date the District Court received the transcripts of the questioning of the witness.
12. Having resumed the hearings in the case on 7 April 1999, by judgment of the same date the District Court partly granted the applicant’s claim and ordered the defendants not to prevent the applicant from using her house. The court rejected the claim insofar as the eviction was concerned.
13. A copy of the judgment was served on the applicant on 7 September 1999. The applicant appealed against the judgment.
14. On 8 August 2000 the Voronezh Regional Court (“the Regional Court”) accepted the applicant’s appeal on the ground that the District Court had failed to notify the applicant and her counsel of the hearing in the case and had taken decisions in their absence. The Regional Court quashed the judgment of 7 April 1999 and remitted the case for a fresh consideration at first instance.
15. The Regional Court returned the case-file to the District Court on 21 August 2000.
16. On 28 November 2000 the judge in charge of the case withdrew from the proceedings on the ground that she had already expressed an opinion on the merits of the dispute.
17. By decision of 5 March 2001 the Presidium of the Regional Court quashed the withdrawal and on 3 May 2001 returned the case to the first instance.
18. Thereafter the proceedings were adjourned due to the judge’s illness and the transfer of the case to another judge.
19. On 10 January 2002 the applicant amended her claims.
20. The next hearing took place on 19 December 2002.
21. On that date a prosecutor joined the case, acting for the applicant. The applicant and her counsel failed to attend that hearing.
22. The hearings were postponed on 22 January, 19 February, 16 March and 10 April 2003 due to the defendants’ failure to attend.
23. On 28 April 2003 the District Court delivered a judgment in the case in which it dismissed the applicant’s claims.
24. It does not appear that the parties appealed against that judgment.
25. On 29 April 2004 the prosecutor, acting for the applicant, brought a supervisory review complaint against the judgment of 28 April 2003.
26. The outcome of those proceedings is unclear.
27. On several occasions, between 1997 and 2002, the applicant complained about the excessive length of the case to the prosecutors and higher courts, requesting them to speed up the proceedings and to bring criminal proceedings against the judge who sat in her case.
28. On 31 May 2001 the applicant received a letter from the Regional Prosecutor’s Office in which the authority admitted unjustified delays in the proceedings. However, it rejected the applicant’s requests.
29. According to the Government, in November 1998 disciplinary proceedings were brought against the judge in charge of the case in the District Court and by decision of 24 April 2002 the Regional Qualifications Board dismissed her from the post for, among other things, excessive delays in the examination of the applicant’s case.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58402
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF PELLEGRIN v. FRANCE
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6-1
JUDGES: Elisabeth Palm
TEXT: 8. Until 1989 the applicant was employed in the private sector, working mainly as a management and accountancy consultant. On the basis of the professional experience he had thus acquired, he applied for a job working for the French State under the overseas cooperation programme.
9. The French Ministry of Cooperation and Development recruited him – under a contract signed on 13 March 1989 – as a technical adviser to the Minister for the Economy, Planning and Trade of Equatorial Guinea. As head of project, he was to be responsible for drawing up the budget of State investment for 1990 and was to participate in the preparation of the three-year plan and the three-year programme of public investment, in liaison with Guinean civil servants and international organisations.
10. The contract stipulated that the applicant was to be placed at the disposal of the government of the Republic of Equatorial Guinea for two ten-month spells separated by a period of home leave calculated on the basis of five days for each month worked. The contract also laid down the conditions of his remuneration and in respect of all other matters referred to the regulations issued pursuant to the Law of 13 July 1972 (see paragraph 36 below).
11. On 9 January 1990, following a number of local disagreements, the Guinean authorities placed the applicant once more at the disposal of the French authorities. This caused the termination of his contract on expiry of his period of home leave (see paragraph 31 below).
12. The Ministry intended to give the applicant a new contract when he had completed his home leave, assigning him to duties in Gabon. To be eligible, he had to satisfy two prior conditions, as required of all other applicants for cooperation posts: firstly, candidates had to obtain the approval of the authorities of the country where they were to serve; secondly, they had to be certified medically fit to serve overseas.
13. As the approval of the Gabonese authorities was slow in coming, the Ministry of Cooperation and Development notified the applicant – by a letter of 2 February 1990 – that his contract was to be terminated and informed him that he would subsequently be removed from the Ministry’s establishment with effect from 15 March 1990.
14. The Gabonese authorities’ approval was later given for a post of financial analyst at the Ministry of Public Sector Reform. By a letter of 7 February 1990 the Ministry of Cooperation and Development noted this approval and accordingly declared the striking-off decision announced on 2 February null and void. The applicant was then summoned to attend the compulsory medical examination to assess his fitness to serve.
15. On 22 February 1990 the doctor responsible for the interministerial medical service, a specialist in tropical medicine, examined the applicant and ordered an additional psychiatric report. In the light of the results of the additional diagnosis, the doctor declared on 15 March 1990 that the applicant was permanently unfit to serve overseas.
16. On 23 March 1990 the Ministry of Cooperation and Development noted that opinion and accordingly informed the applicant that his name was to be removed from the list of the Ministry’s establishment with effect from 15 March 1990.
17. On 16 May 1990 the applicant lodged an application with the Paris Administrative Court to set aside the decision of 23 March 1990 as being unlawful.
18. On 9 November 1990 the Minister for Cooperation and Development filed his defence.
19. By an interlocutory judgment of 16 April 1992 the Paris Administrative Court ordered a medical report in order to ascertain whether, on account of his state of health, the applicant had been unfit in March 1990 to serve as a technical adviser under the overseas cooperation programme.
20. On 21 November 1992 the medical expert filed his report, having interviewed the applicant and given him a medical, psychological and neuropsychiatric examination on 3 September 1992. He gave it as his opinion that the Ministry of Cooperation and Development’s administrative reaction had been excessive and that the applicant’s state of health had not made him unfit to resume his duties after three months’ sick-leave, after which he could have gone before a medical board.
21. On 22 December 1992 the applicant filed a compensation claim, seeking an order requiring the State to pay him two different sums. Firstly, he claimed 550,000 French francs (FRF), which he considered to be the amount of remuneration he would have received if he had remained in post; secondly, he claimed FRF 500,000 in compensation for the personal, pecuniary and non-pecuniary damage he considered he had sustained on account of being struck off.
22. By a decision of 4 January 1993 the Paris Administrative Court fixed the amount payable in costs for the medical report. By a decision of 1 March 1993 it corrected a clerical error in the operative provisions of the first decision.
23. On 8 March 1993 the Minister for Cooperation and Development submitted his observations on the medical report.
24. On 14 April 1993 the applicant filed a reply.
25. On 3 May 1993 the Minister for Cooperation and Development submitted his defence to the applicant’s compensation claim of 22 December 1992, arguing that it was unfounded.
26. On 14 September and 4 October 1994 the Minister for Cooperation and Development filed a rejoinder and a number of documents.
27. On 13 December 1994 the applicant filed a reply.
28. The case was set down for hearing on 19 January 1995. On 9 January 1995 the applicant was informed that the case had been put off to a date to be determined later.
29. On 11 and 18 January 1995 the Minister for Cooperation and Development submitted additional observations and a number of documents.
30. On 16 February 1995 the applicant submitted a reply.
31. By a judgment of 23 October 1997, following a hearing on 25 September 1997, the Paris Administrative Court dismissed the applicant’s application, as regards both the request to have the striking-off decision set aside and the compensation claim. It held in particular:
“... As to the application to set aside the Minister for Cooperation’s decision of [23] March 1990
Firstly, the documents in the file show that Mr Pellegrin’s contract with the State to work in Equatorial Guinea as a participant in the cooperation programme was terminated when the Guinean authorities placed him once more at the disposal of the French State. Although, by a letter of 7 February 1990, the Minister declared null and void the decision of 2 February 1990 announcing that Mr Pellegrin’s name would be removed from the list of the Ministry’s establishment with effect from 15 March 1990, which he did with a view to the signing of a new contract, he did not intend to reactivate the contract under which Mr Pellegrin had been assigned to duties in Equatorial Guinea, since that contract had been automatically terminated when the foreign State placed him once more at the disposal of the French State. Consequently, Mr Pellegrin may not validly argue that the decision of [23] March 1990 unlawfully rescinded the decision of 7 [February] 1990.
Secondly, in deciding to remove the applicant’s name from the list of the Ministry’s establishment with effect from 15 March 1990, the Minister was merely drawing the consequences of the fact that the contract assigning Mr Pellegrin to duties in Equatorial Guinea expired on that date and of the fact that no new contract had been signed. Consequently, his decision was not invalidated by any unlawful retrospectiveness; ...
Thirdly, the medical report of 21 November 1992 shows that on [23] March 1990 Mr Pellegrin did not satisfy the physical fitness conditions for service overseas. Consequently, he may not validly maintain that the decision of [23] March 1990, which cited the … opinion that he was unfit as ground for refusing him a new contract for the cooperation service in Gabon, was vitiated by an error of judgment; ...
As to the compensation claim
It follows from the rejection of Mr Pellegrin’s arguments in support of his application to set aside the decision of [23] March 1990 that he may not rely on any culpable unlawfulness making the State liable. Consequently, his claim for compensation from the State for prejudice caused by the decision of [23] March 1990 must be dismissed ...”
32. On 16 January 1998 the applicant gave notice of appeal against the above judgment, which had been served on him on 13 January, and filed his statement of the grounds of appeal.
33. On 10 June 1998 the Minister for Cooperation and Development filed a pleading.
34. On 30 June 1998 the applicant filed a further pleading.
35. The case is pending in the Paris Administrative Court of Appeal.
36. The relevant provisions of the law governing the position of civilian cultural, scientific and technical cooperation staff in post in foreign States (in respect of which two implementing decrees were promulgated on 25 April 1978) provide:
“The civilian staff on whom the State calls to perform cultural, scientific or technical cooperation duties outside French territory at the service of foreign States, particularly by virtue of agreements between France and those States, shall be governed by the provisions of the present Law ...”
“Without prejudice to the rules governing the exercise of judicial functions, the staff contemplated by the present Law shall serve, while performing their duties, under the authority of the Government of the foreign State or the body at whose service they have been placed, under conditions laid down by agreement between the French Government and the foreign authorities concerned.
They shall be required to maintain the propriety and discretion befitting persons performing their duties in the territory of a foreign State and inherent in the publicservice nature of the tasks they carry out ... They shall be forbidden to engage in any act or participate in any event which might be damaging to the French State, local public policy or the relations the French State maintains with foreign States.
In the event of failure to respect the obligations contemplated in the previous two paragraphs, their turn of duty may be terminated immediately, without prior formalities, and without prejudice to any administrative proceedings that may be brought against them on their return to France.”
37. Article 48(4) of the Treaty of 25 March 1957 instituting the European Economic Community (“the EEC Treaty”) provides for a derogation from the principle of freedom of movement for workers within the Community in respect of “employment in the public service”.
38. The Court of Justice of the European Communities has developed a restrictive interpretation of this derogation. In its judgment of 17 December 1980 in the case of Commission v. Belgium (C-149/79, ECR 3881) it decided that the derogation concerned only posts which involved direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities, and which thus presumed on the part of those occupying them the existence of a special relationship of allegiance to the State and reciprocity of rights and duties which formed the foundation of the bond of nationality.
39. The European Commission, to which the EEC Treaty assigned responsibility for ensuring the correct application of Community rules, noted that a large number of posts likely to be caught by the derogation had in reality no bearing on the exercise of powers conferred by public law or protection of the general interests of the State.
40. In a communication of 18 March 1988 it set itself the task of listing separately those activities which are covered by the derogation and those which are not. It thus established two distinct categories of activities according to whether or not they involved “direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State”. These categories were defined as follows:
“Exclusion of specific activities in the national public service [from freedom of movement for workers]
On the basis of current Court of Justice rulings, and bearing in mind the present conditions for establishing the single market, the Commission considers that the derogation in Article 48(4) covers specific functions of the State and similar bodies such as the armed forces, the police and other forces for the maintenance of order, the judiciary, the tax authorities and the diplomatic corps. This derogation is also seen as covering posts in State Ministries, regional government authorities, local authorities and other similar bodies, central banks and other public bodies, where the duties of the post involve the exercise of State authority, such as the preparation of legal acts, the implementation of such acts, monitoring of their application and supervision of subordinate bodies ...
Activities concerned by action in the public service sector
The Commission considers that the functions involved in certain forms of public employment are for the most part sufficiently remote from the specific activities of the public service as defined by the Court of Justice that they would only in very rare cases be covered by the exception in Article 48(4) of the Treaty.
The Commission proposes therefore to implement its action in the following areas by order of priority:
– bodies responsible for administering commercial services (e.g. public transport, electricity and gas supply, airline and shipping companies, posts and telecommunications, radio and television companies),
– public health care services,
– teaching in State educational establishments,
– research for non-military purposes in public establishments.
Each of these activities also exists in the private sector, to which Article 48(4) does not apply, or may be exercised in the public sector without the imposition of nationality requirements ...”
Where the second category is concerned, the Commission has left it open to EEC member States to try to show that the duties of a given post involve the specific activities of the public service; this would, exceptionally, justify application of the derogation.
41. The Court of Justice has applied and developed these principles in a number of judgments. In its judgment of 2 July 1996 in the case of European Commission v. the Grand Duchy of Luxembourg (C-473/93, ECR I-3248), it held:
“§ 27 ... in order to determine whether posts fall within the scope of Article 48(4) of the Treaty, it is necessary to consider whether or not the posts in question typify the specific activities of the public service in so far as it exercises powers conferred by public law and has responsibility for safeguarding the general interests of the State or of other public bodies. For that reason, the criterion for determining whether Article 48(4) of the Treaty is applicable must be functional and must take account of the nature of the tasks and responsibilities inherent in the post, in order to ensure that the effectiveness and scope of the provisions of the Treaty on freedom of movement of workers and equal treatment of nationals of all Member States is not restricted by interpretations of the concept of public service which are based on domestic law alone and which would obstruct application of Community rules (judgment in Case 307/84 Commission v. France [1986] ECR 1725, paragraph 12).
…
§ 31 ... the generality of posts in the areas of research, health, inland transport, posts and telecommunications and in the water, gas and electricity supply services are remote from the specific activities of the public service because they do not involve direct or indirect participation in the exercise of powers conferred by public law or duties designed to safeguard the general interests of the State or of other public authorities (see, in particular, as regards the area of health, the judgment in Case 307/84 Commission v. France, and, as regards research for civil purposes, the judgment in Case 225/85 Commission v. Italy [1987] ECR 2625).
…
§ 33 ... the Court has already stated that the very strict conditions which posts must satisfy in order to come within the exception laid down in Article 48(4) of the Treaty are not fulfilled in the case of trainee teachers (judgment in Case 66/85 Lawrie-Blum [1986] ECR 2121, paragraph 28), in the case of foreign-language assistants (judgment in Case 33/88 Allué and Coonan [1989] ECR 1591, paragraph 9) or in the case of secondary school teachers (judgment in Case C-4/91 Bleis [1991] ECR I-5627, paragraph 7).
§ 34 For the same reasons, the same applies to primary school teachers ...”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4802
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: HEIDEGGER v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant is an Austrian citizen, born in 1973, and is presently detained in a prison in Salzburg. He is represented before the Court by Mr Hitzenbichler, a lawyer practising in Salzburg.
On 8 July 1993 the applicant was arrested under the suspicion of having robbed and killed the taxi driver Claudia D.
When questioned by the police at Gmunden the applicant first denied any connection with the crime, but then - on 9 July 1993 - he made a confession before the police at Salzburg. He stated that he had threatened the taxi driver with a firearm described as signalling device (Signalstift), whereby unintentionally a shot had gone off. On the same day he confirmed this confession before a judge on duty (Journalrichter) who had been called in immediately by the police officers.
On 11 July 1993 the investigating judge appointed an ex-officio defence counsel for the applicant and ordered for the next day an inspection of the scene of the crime (Lokalaugenschein).
On 12 July 1993 the inspection was conducted by the investigating judge in the presence of the applicant, his defence counsel, the public prosecutor, a court expert and several police officers. According to the minutes of the inspection, at the beginning the investigating judge asked the applicant whether he maintained his confession. The applicant again confirmed that he had robbed the taxi-driver, but denied having killed her intentionally. Then the applicant gave a detailed account of the course of the events and his flight until he had met a man at a pizzeria who had brought him to town. Thereafter the “course of the events” was reconstructed with the help of a police officer in the role of the victim, using the original car and the firearm the applicant had allegedly used. The applicant showed how he had threatened the victim by holding the fire arm against her neck, how he had got hold of the victim’s purse, how the victim had tried to get off the car and turned towards the applicant and how the shot had gone off. This reconstruction of the course of events was filmed with a video camera.
On 23 July 1993 the applicant withdrew his confession claiming that on 5 July 1993, the day of the crime, he had been at home in Gmunden with his mother.
On 16 and 17 May and 10 June 1994 the trial against the applicant took place before the Salzburg Regional Court (Landesgericht) sitting as an Assize Court (Geschworenengericht). When questioned about the events on 5 July 1993, the applicant maintained that on that day he and his girlfriend had been in several bars in Gmunden and that between 10.00 p.m. and 10.30 p.m. his girlfriend had brought him home where he stayed all night. It was therefore impossible that he had committed the crime close to Salzburg (approximately 70 km away) around 11.30 p.m. He claimed that the witnesses who allegedly had seen him had been mistaken. When confronted with his previous confessions he submitted that he had made the first confession because he had been forced to do so by the police and had maintained his confession before the judge on duty and the investigating judge because he had not dared to withdraw it in the presence of police officers.
Subsequently the court heard as witness the police officers who had carried out the investigations, the judge on duty and the investigating judge. They were questioned about the course of the investigations and the circumstances of the applicant’s confession. The police offices denied having exerted pressure on the applicant and stated that the applicant had given details which at that time had been unknown to them such as the place where the victim’s purse and documents had been thrown away. The judge on duty stated that he had also questioned the applicant alone, in the absence of the police officers, and the applicant had expressly stated that no pressure had been exercised on him.
The court then questioned the managing director of a pizzeria who had identified the applicant as being the person whom he had driven at the relevant time from a bar near to the scene of the crime to the centre of Salzburg, as well as his employee who also had identified the applicant.
Moreover, the court heard as witness the applicant’s girlfriend, his mother and several other persons on the question whether it was possible that at the time of the crime the applicant had been in Salzburg. Several witnesses stated that they had seen the applicant in a bar in Gmunden and that he had left the bar with his girlfriend. His mother stated that he had been at home by 22.30 p.m. and had not left the house later.
On 10 June 1994 the video-film made in the course of the inspection of the scene of the crime was shown. Neither the applicant, nor his defence counsel raised any objections. When questioned the applicant stated that during the inspection he did have the possibility to consult with his defence counsel.
Thereafter the court heard a medical expert. He explained, inter alia, that the victim’s final position did not correspond to the applicant’s account in his confession, namely that the shot had gone off when he was sitting inside the car. According to the medical expert it was more likely that the taxi driver had been shot from the outside. The expert also excluded that an ordinary firearm had been used, a signalling device using ordinary bullets could have been a suitable weapon.
The court refused to read out a private expert opinion on the credibility of the applicant’s confession or to hear that expert on this issue.
On 10 June 1994 the Assize Court convicted the applicant of aggravated robbery and murder and sentenced him to seventeen years imprisonment.
On 16 August 1994 the applicant, represented by a defence counsel of his own choice, filed a plea of nullity (Nichtigkeitsbeschwerde) with the Supreme Court (Oberster Gerichtshof). He complained, in particular, that the video-film made in the course of the inspection of the scene of the crime was shown at the trial. The applicant submitted that during this inspection he had been intimidated by the presence of a large number of taxi-drivers and that he did not have any contact with his ex-officio defence counsel before the inspection. The applicant further complained that the Assize Court had refused to admit a private expert opinion on the credibility of the applicant’s confession. The applicant also claimed that in view of numerous inconsistencies and unresolved questions the Assize Court should have taken further evidence on its own motion or to advise the applicant’s defence counsel to do so.
On 8 November 1994 the Supreme Court dismissed the applicant’s plea of nullity and increased his sentence to twenty years’ imprisonment. The Supreme Court considered that neither the showing nor the making of the video-film in the course of the inspection of the scene of the crime constituted per se a ground of nullity. Moreover, since the applicant had failed to oppose to the showing of the film at the trial by making a formal request to the court not to do so, he could not raise this matter in the proceedings on the plea of nullity. As regards the Assize Court’s refusal to take accept as evidence the opinion of a private expert the Supreme Court found that the applicant had failed to ask the court to appoint an expert. Private expert opinions only served the purpose to enable an accused to make the relevant requests. As regards the applicant’s complaint that the Assize Court had failed to take of its own motion further evidence or to advise his defence counsel to do so, the Supreme Court noted that the applicant has not filed any request for the taking of further evidence and that it had been up to him to do so. Besides, any inconsistencies between the applicant’s confession made at the stage of the preliminary investigations and the findings of the court experts had been discussed in detail at the trial. The opinions of the experts had been conclusive and without contradictions; thus, there had been no necessity to obtain further expert reports. It had therefore been up to the jury to assess the evidence before it and to evaluate whether the applicant’s initial confession or the statements he had made during the trial were more credible.