ITEMID: 001-106441
LANGUAGEISOCODE: ENG
RESPONDENT: SMR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF DIAMANTE AND PELLICCIONI v. SAN MARINO
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Art. 8;No violation of P4-2
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
TEXT: 8. The first applicant, while resident in San Marino, had a relationship and was cohabiting with Mr X. in San Marino.
9. On 9 December 2004 the second applicant was born of this relationship, in Rimini, Italy. She was granted dual nationality, Italian and San Marinese. The family lived in X.’s villa in San Marino.
10. Mr X. left the villa in July 2006 and allegedly stopped sending the applicants any financial allowances.
11. On 8 November 2006 Mr X. lodged a request with the San Marino Tribunal for sole custody and restitution of the villa.
12. Following a deferral request by Mr X., the first hearing was held on 4 December 2006, the date when the first applicant intervened in the proceedings, and demanded custody of the child, the right to remain living in the family home and maintenance.
13. By a decree of 4 December 2006, the relevant court, namely the Commissario della Legge of San Marino, granted custody to the first applicant. Mr X. was entitled to visiting rights as follows: Mondays and Wednesdays from 2 p.m. to 9 p.m. and one day (Saturday or Sunday) on alternate weekends from 10.30 a.m. to 6 p.m. It refused to decide on maintenance, inviting the parents to reach an agreement. It further ordered the intervention of the “servizio minori” (children’s services) to verify each parent’s aptitude and the quality of the relationship with the child.
14. On 14 December 2006 the first applicant requested children’s services to decide on the transfer of the second applicant to a kindergarten in Rimini, Italy. The aim of this request was to allow the applicants to live with the second applicant’s grandmother for economic reasons, since Mr X. had allegedly failed to pay them any allowances.
15. On 18 December 2006 Mr X. requested an urgent hearing, complaining that for the last two weekends the first applicant had denied him contact rights and had changed the arrangements. Consequently, the Commissario della Legge, considering that the father had a right to see his daughter every weekend, requested children’s services to intervene in order to ensure that contact rights were respected.
16. On 21 December 2006 the first applicant reiterated that on 4 December 2006 the court had ordered visits on the Saturday or Sunday of alternate weekends, and not every weekend as interpreted on 18 December 2006.
17. On 22 December 2006 the first applicant requested to take the child on a five-day holiday. The Commissario della Legge ordered the relevant notification.
18. On 1 March 2007 the Commissario della Legge ordered children’s services to consider whether transfer to the Rimini institution would be in the interest of the minor.
19. On 15 March 2007 children’s services filed their first report, stating that it was important to consider the needs of the child who “will probably reside in San Marino”. The report noted that the institution in Rimini hosted older children, and that Mr X. showed his availability to pick up the child from school if it were in San Marino. It advised that attending a nursery in San Marino would allow better monitoring on the part of the children’s services.
20. On 10 April 2007, in view of the announced holiday, children’s services temporarily amended the visiting schedule, in agreement with the parties.
21. On 12 April 2007 the first applicant informed the Commissario della Legge that she had found a job in Rimini, where she planned to move, and therefore she was ready to leave the villa.
22. On 17 April 2007 the Commissario della Legge, having regard to the children’s services’ report (above) and after soliciting further reports, held that, until children services gave different advice, the child should remain in San Marino. It referred the case back to children’s services.
23. Following further submissions, on 5 May 2007 the first applicant requested an urgent hearing as she was having difficulty taking care of the child since Mr X. was not paying the maintenance due.
24. On 18 May 2007 the Commissario della Legge, having regard to the economic situation of the parents and to the fact that the first applicant remained living in the villa, decided that Mr X. had to pay the applicants maintenance amounting to 500 euros (EUR), as from November 2006.
25. On 31 May 2007 children’s services drew up another report, finding that although conflict between the parents persisted, the father had an excellent relationship with the daughter. It advised that there be joint custody of the child, who should be placed prevalently with the mother in view of her tender age; it proposed two possible contact schedules, both eventually including two overnight stays per week. It further suggested maintaining the current schooling situation.
26. On 14 June 2007 the first applicant, having signed a lease agreement for an apartment in Rimini the previous month, informed the Commissario della Legge that she intended to move there with her daughter, while maintaining their official residence in San Marino.
27. On 21 June 2007 the first applicant made further submissions. It appears that the applicants moved to Rimini on the same day.
28. By a decree of 25 June 2007 the Commissario della Legge granted joint custody, holding that the child should remain living in Rimini, where she was settled with the mother, and should continue to attend the Rimini kindergarten for the following school year, as this appeared to be in the best interests of the child. It further ordered children’s services to monitor the situation. This decision was based on the children’s services report of 31 May 2007 (see above).
29. On 9 August 2007 children’s services submitted a new report, which found that the first father-child visits were held in an untroubled atmosphere and that Mr X. was spending all the appropriate time with the child. It noted that between 13 and 16 July the first applicant went on holiday with the child without informing Mr X. of the destination and that thereafter she had frequently informed children’s services that visits could not take place because of her or her daughter’s alleged illnesses or because she refused to give up the daughter.
30. In August 2007 Mr X. lodged various submissions, including a complaint that the first applicant was denying his rights to visit their daughter and requesting that the relevant orders be executable in the Italian State.
31. By an order of 20 August 2007 the Commissario della Legge specified that the order of 25 June 2007 must be considered “provisionally executable”.
32. On 22 August 2007 children’s services drafted a report, which found that the first applicant was obstructing visiting arrangements which had not been previously arranged and was refusing to cooperate with children’s services.
33. Both parties continued to make regular submissions.
34. By an order of 21 September 2007, the Commissario della Legge held that unilateral changes to scheduled visits had no effect, since the arrangements had been established by prior orders, which were subject to alteration by future court orders. It held that Mr X. had the right to have his child by his side, unsupervised, and that the child should maintain residence in San Marino. It further explained that residence meant “a situation of permanent stay in a territory”.
35. A children’s services report of 17 October 2007 related that the first applicant was failing to take the second applicant to children’s services and that monitoring had become difficult since 9 August 2007.
36. On 24 October 2007 the first applicant challenged the competence of the San Marino Tribunal, namely the Commissario della Legge, in so far as proceedings were pending before the Tribunal of Bologna, Italy (see below). The parties informed the tribunal that the relevant ex parte counsellors had been appointed and meetings had started.
37. On 12 November 2007 the Commissario della Legge rejected the objection. It held that the first applicant had accepted the San Marino jurisdiction throughout all the proceedings and various decrees; in effect this request had been made out of time.
38. On the merits of the pending case, the Commissario della Legge found no reason to alter the current custody order. Joint custody had been opted for to protect the child from the unhappy situation in which the mother excluded the father from any decision-making. Joint custody and support from children’s services allowed the creation of an educational programme for the parents to allow for the growth and well-being of the child. This was what the parents had to aim for during the current joint custody regime. Welcoming the appointment of ex parte experts/counsellors, it reiterated the need for supervision by children’s services. Only upon further reports by children’s services and experts would the tribunal be able to establish whether any modifications to the regime were necessary or whether schooling in San Marino would be more appropriate.
39. On 15 November 2007 Mr X. requested that the child be returned to San Marino, offering the mother lodgings with the daughter. On 9 January 2008 Mr X. enrolled the child in a nursery in San Marino, notwithstanding that she was still living in Rimini.
40. On 24 January 2008 Mr X. made a request for sole custody and for the child to be moved to a school in San Marino.
41. On 28 January 2008 the Commissario della Legge requested children’s services to draw up a report on the merits of schooling in San Marino.
42. The ensuing report of 8 February 2008 considered that Mr X. was having difficulty seeing the child, as for a while the mother had unilaterally interrupted the father’s visits (for example, nine out of fourteen overnight stays with the father had not occurred and six consecutive Sunday visits had been missed), and that the mother was not cooperating with children’s services. Consequently, the establishment of an educational programme had not been successful. It found on the one hand that the first applicant’s anger towards the father was persistent and involved the child. On the other hand the father had shown consideration and put the needs of the child first. He sincerely loved his daughter and was cooperating with children’s services. The father and the child had a warm and caring relationship, and the child felt comfortable and happy in his presence. It appeared however that the child might have fears of losing her loved ones, probably due to the various moves, which had also detached her from members of her extended family. The report therefore advised the grant of temporary sole custody to the father, with regular supervised visits by the mother, until this could be reversed. It concluded that schooling should be in accordance with the custody decision, as this would be favourable to the child’s emotional stability, notwithstanding the unfortunate moves of house. It also advised psychotherapeutic and parental education support for the parents, together with further monitoring by children’s services.
43. On 12 February 2008 the Commissario della Legge ordered that an extraordinary hearing of the parties (comparizione delle parti) be held on 19 February 2008. The order was notified on 14 February 2008. The next day the first applicant’s main lawyer communicated his inability to attend and requested an adjournment. The opposing party opposed this request, but no notification reached the first applicant’s legal counsel.
44. On 13 February 2008 Mr X. collected the child and did not return her. On the same day Mr. X’s lawyer sent the first applicant a fax informing her that the child would not return home to the mother as the father was availing himself of the time accumulated from the missed visits. The child could, however, be contacted by telephone at specific times.
45. On 15 February 2008 the first applicant’s representatives requested X.’s lawyers to inform them where the child had been taken, the date of return, and arrangements as to the handing over of the child. X.’s lawyers’ reply was immediate but inconclusive, in that, no details had been given. Thus, the first applicant’s representatives informed children’s services about what had happened and complained about the father’s lawyers. In reply, Mr X.’s lawyers explained that the child was on holiday with her father and that they did not know where they had gone. On the same day, the first applicant’s lawyers requested that the hearing set for 19 February be deferred due to the inability of her regular lawyer, who had dealt with the relevant experts, to attend the hearing for professional reasons. Mr X.’s lawyers opposed this, however, it appears that no notification of this opposition took place.
46. The following day, the first applicant lodged written submissions, reiterating that in accordance with the decree of 25 June 2007 the child had been placed with the mother for the school year. Complaining about Mr X.’s actions and those of children’s services, she requested the tribunal to restore the status quo ante.
47. On 18 February 2008, while the child was still missing, Mr X.’s representatives requested that the minor be placed in San Marino. They emphasised that the second applicant’s presence outside San Marino limited the San Marino courts’ power over the second applicant’s rights abroad. The first applicant objected, maintaining that the child should return to Rimini. She further insisted that any missed paternal visits in the summer of 2007 had not been malicious but had been the result of physical circumstances.
48. On 19 February 2008 a substitute judge sat as the Commissario della Legge. The first applicant, through her co-lawyer, referred to their request for a brief postponement in view of the absence of the habitual judge and her habitual co-lawyer, who was more aware of the case details. Moreover, there had been a lack of collaboration on the part of children’s services and counsellors, her counsellors had not been summoned, and the child had been kidnapped by the father. Her request was refused without detailed reasons. The substitute judge considered it opportune to take a decision urgently. Consequently, the first applicant’s co-lawyer withdrew from the case. A further request by the first applicant for a short suspension in order for another lawyer to be appointed was refused.
49. The case was therefore heard without representation for the first applicant. Mr X. was represented by his lawyers and enjoyed the assistance of a counsellor. After the cross-examination was over, the substitute judge delivered his decision on the same date.
50. He found that, in view of the report by children’s services of 17 October 2007 and 8 February 2008, the child risked being denied the benefit of her father’s presence, as the first applicant had prevented the father’s visits and obstructed children’s services’ meetings. Any argumentation by the first applicant presented in her written pleadings had not been persuasive. Consequently, while upholding joint custody, it was ordered that the child live with her father in San Marino and that she be transferred to the San Marino nursery from 20 February 2008. The mother was entitled to supervised visits from Monday to Friday from 13.15 to 15.00, or as children’s services deemed opportune.
51. On 22 February 2008 the Commissario della Legge, acknowledging that there were no obstacles to acceding to the first applicant’s request to spend a weekend with her daughter at the father’s house, requested the children’s services to draw up a new calendar of visits. On the same date, following Mr X.’s request for an authorisation (“nullaosta”) for the child’s passport, the tribunal solicited the first applicant’s agreement, noting that expatriation of the minor would in any case require the tribunal’s authorisation.
52. On 25 February 2008 children’s services submitted a report stating that the child frequently reiterated her wish to stay with the mother and was showing a certain reluctance to be with the father. The report concluded that persistent pressure by the mother may lead to Parental Alienation Syndrome.
53. On 26 February 2008 the first applicant submitted that the unavailability of the child for certain paternal visits while she was in the mother’s care was for medical reasons.
54. On 27 February 2008 Mr X. requested the suspension of the time-limits for appeal, pending friendly settlement negotiations. On the same day children’s services reported that mother-child visits should take place at the father’s house. It proposed a new schedule of visits, which would eventually include an overnight stay. It also included visits with the maternal extended family.
55. The following day, Mr X. pointed out that the first applicant had not been favourable to the return of the second applicant to San Marino. He alleged that she was in bad faith and reiterated that, according to The Hague Convention on the Civil Aspects of International Child Abduction (“The Hague Convention”), visits with a parent who had removed a child required special precautionary measures. On the same day children’s services prepared a calendar of supervised visits up to August 2008, the date of the entry into force of The Hague Convention.
56. On 6 March 2008 an appeal was lodged against the interim order of 19 February 2008 before the “Giudice delle Appellazioni Civili”. Lamenting that in the absence of treaties safeguarding repatriation the child remained susceptible to removal by the mother, Mr X.’s representatives proposed a favourable calendar for visits, namely Mondays, Wednesdays and Fridays from 6.30 p.m. to 9..30 p.m., alternate Saturdays from 4.30 to 7.30 p.m. and alternate Sundays from 9 a.m. to 12 noon, plus other visits by the extended family and in due course overnight stays by the mother. On the same day the first applicant accepted the proposed schedules, complaining that children’s services were in practice reducing her visit times by half an hour and at times by one hour due to other engagements, but objected to the suspension of the proceedings. She further submitted one of the second applicant’s passports to the court.
57. On 17 March 2008 the first applicant appealed, complaining of procedural irregularities pertaining to the interim decree of 19 February 2008. In particular she alleged a breach of her right to defence, since she had not been represented. Unlike her, Mr X. had had the benefit of counsel. Moreover, there had not been adequate notification, and therefore the hearing had not been in accordance with the law. Furthermore, the substitute judge should have abstained, as he had decided another case between the same parties.
58. On 19 March 2008 Mr X. cross-appealed.
59. On 27 March 2008 Mr X., in his cross-appeal, lodged a request for sole custody and contended that the first applicant had breached her judicial obligations, having allegedly taken the child away, and had attempted to evade San Marino jurisdiction. He emphasised that in view of Italy’s delay in accepting San Marino’s accession to The Hague Convention dated 14 December 2006, the latter had not yet entered into force between the two states. In accordance with the treaty, transfer of the minor to Italy would be unlawful.
60. On the same date the first applicant submitted that she was having difficulty visiting her daughter due to her working hours. On 22 April 2008 the first applicant’s psychological counsellor wrote to children’s services offering the first applicant as available for discussion and collaboration. She further requested children’s services to provide her with a copy of the educational project to be undertaken and relevant information and video clips taken in respect of the child’s supervision. On 23 April 2008 the mother again made a request for information and to see the relevant video recordings of her visits to her daughter.
61. On 24 April 2008 it was established that cross-examination was necessary for the purposes of the case.
62. On 30 April 2008 children’s services informed the first applicant that her request had been sent to the relevant judicial authorities, since information about minors was covered by professional secrecy.
63. In the meantime various email exchanges took place between April and June in an attempt to negotiate an agreement so that the first applicant would agree to withdraw the pending criminal charges (see below) against Mr X. Meetings with counsellors and a psychologist were held.
64. Following a request from the first applicant, on 6 May 2008 the Commissario della Legge ordered the urgent transmission of the file to the appeal judge.
65. On 12 May 2008 the Giudice delle Appellazioni Civili remitted Mr X.’s appeal of 27 March 2008 to the Commissario della Legge, who was competent to revise the matter and give any other determination in respect of the placement of the child.
66. On 16 May 2008 the primo termine probatorio was opened in relation to the original appeal. Hearings and/or submissions were made on 23 October 2008, 12 and 19 March, 23 April, 18 and 13 June, 3 July and 26 October 2009 and 18 January 2010. Following the requests and the consequent submission of rogatory letters, it was established that the first applicant’s lawyer had judicial engagements in Rimini, explaining his absence from the hearing in question.
67. The appeal proceedings against the decision of 19 February 2008 were eventually decided on 7 March 2011 (see paragraph 137 below).
68. On 15 April 2008 the first applicant’s representatives complained to children’s services that the child was isolated, in that she was constantly supervised.
69. In a report dated 22 April 2008 children’s services requested the judge to prohibit the legal representatives of the parties from attending the child’s visits.
70. On 5 June 2008 the first applicant’s lawyers made submissions in reply, highlighting the importance of re-establishing mother-child relations. On the same day Mr X. reiterated his request for temporary sole custody (see above 27 March 2008). Although not intending to travel with the child, he requested a San Marino passport for the second applicant.
71. On 6 June 2008 the Commissario della Legge noted that revision of the decree could only take place if new events took place subsequent to the decree, in order to avoid any overlap with the appeal judgment. He further requested the parties to agree on the mother’s visiting schedule, on further cooperation for the benefit of the child, and lastly asked whether the mother agreed to the issue of a San Marino passport, which would be retained by the court together with the Italian passport, any travel having to be agreed by the parents or authorised by the court.
72. On 19 June 2008 Mr X. reiterated that the prohibition on the child’s leaving the country needed to be maintained until the entry into force of the Hague Convention. He further requested a definitive judgment in favour of sole custody to be executable immediately on Italian territory.
73. In the meantime, further submissions were made, together with the reports of the parents’ psychologists.
74. On 11 July 2008, in an apparently informal way, the Commissario della Legge confirmed that the child could not leave San Marino.
75. On 15 July 2008 the Commissario della Legge nominated an expert and ordered an expert opinion (“consulenza tecnica d’ufficio” – “CTU”) in respect of: the child’s relationship with the parents, the personal characters of the parents, their ability to take on parental functions, in particular vis-a-vis granting the other parent contact with the minor, and any proposals in respect of the situation.
76. On 16 July 2008 the first applicant made an urgent request to be allowed to take her child to Italy before The Hague Convention entered into force, namely from 21 to 28 July 2008. She further requested the release of the information and related videotapes of mother-child meetings before the child services, and that children’s services and the San Marino hospital issue a report on the psycho-physical health of the child.
77. Following a request by Mr X., by a decree of 17 July 2008, the Commissario della Legge noted that the second applicant’s San Marino passport had been submitted to the authorities, and requested the first applicant to submit the latter’s Italian passport. It further held that the decree of 19 February 2008 fell within the competence of the Giudice delle Appellazioni Civili. It then held that the CTU’s opinion was required to define an educational project and the advice of children’s services was necessary to determine the suitability of any permanent visiting schedule between the mother and child. It refused the pending request for the video recordings of their visits, on the basis that they had no right to such materials, children’s services acting as an assistant to the judge in this connection and not as a court expert.
78. On 22 July 2008 the first applicant contacted children’s services to inform them as regards her availability to discuss the forthcoming holiday calendar. The following day a new calendar of visits, together with a short report, was submitted to the judge by children’s services.
79. On 23 July 2008 children’s services presented another report in respect of the request relating to the period of 19 to 28 July 2008, during which the first applicant would have been on leave. They suggested daily visits from Tuesday 22 to Monday 28 July 2008, ranging from two to six hours per day, including hour-long visits with the extended family.
80. Following a request by the mother, on 24 July 2008 the CTU requested children’s services to issue instructions for the period after 28 July 2008.
81. On 29 July 2008 children’s services drafted a new calendar of visits, ranging from three to six hours per day (no visit on Saturday), until Sunday 3 August. The latter was acknowledged by the judge.
82. On 1 August 2008 the first applicant’s submissions included a request for a continuous period of mother-child care to allow her to take the child on holiday, after she had been confined to San Marino for nearly six months. On the same day the Commissario della Legge, noting that children’s services had not had enough time to deal with all the requests in view of their dates of submission and that the first applicant had for the third time altered the dates of her leave, ordered an immediate reply to the pending, urgent request for the extended period of the child’s placement with the mother from 9 to 17 August 2008.
83. By emails dated 1 July 2008 the first applicant requested children’s service to allow a more flexible calendar of visits. On 8 August 2008 children’s services issued a new calendar for the relevant period, only allowing one overnight visit and permitting most of the remaining visits to take place outside San Marino, but they had to be in the presence of the father. It suggested that changes should be made gradually. The latter was acknowledged by the judge.
84. Following the mother’s objection, on 12 August 2008 the previous arrangement was reiterated by the judge.
85. On 18 August 2008 Mr X. gave his consent for an extended visit between mother and child. On the same date the Commissario della Legge asked for a report from children’s services on the development of the visits in the preceding week, and for a new calendar to be issued.
86. On 19 August 2008 children’s services reported that the visits had been regular, organised and fruitful. The child was happy to spend time with the mother and it was clear that she needed to be by the side of both parents. They issued a new calendar of visits, suggesting entire alternate weekends with each parent, with weekend intervals when each parent had the child for one day, together with overnight stays during the week at her mother’s home.
87. By a decree of the same date the Commissario della Legge confirmed that, the disputes having been resolved, the visits should remain in accordance with the children’s services report of the same day. Moreover, since Mr X. was able to visit the child in Italy, prohibition on the parents’ taking the child outside the country remained valid only in respect of States other than Italy and San Marino.
88. By an order of 12 September 2008, a substitute judge for the Commissario della Legge held that the frequency of visits with the minor would be in accordance with the agreed specific indications submitted.
89. On 16 September 2008 the CTU met the parents’ technical counsellors (“CTPs”).
90. On 23 October 2008 Mr X. submitted that he was the subject of ongoing criminal proceedings in Italy (see below) and reiterated that the first applicant had not submitted the second applicant’s Italian passport.
91. On 30 November 2008 psychological reports on both parents were drawn up. The report about the mother which, inter alia, mentioned depressive and impulsive attitudes, appeared less favourable than that of the father, although it appeared from the reports that Mr X. was immature.
92. Following further submissions, by a decree of 19 December 2008, the Commissario della Legge acknowledged that the second applicant would spend the week of 24 December to the morning of 31 December 2008 with the father and from the afternoon of 31 December 2008 to 7 January 2009 with the mother. Travel details had to be exchanged between the parents and the child had to be visited by a doctor to confirm that she was in good health and to determine whether there were any contraindications to her travelling. He further authorised the father to travel with the child during the relevant period and allowed the release of the passport.
93. According to a children’s services report of 20 December 2008, the second applicant was having difficulty adjusting to (her parents’) two different environments.
94. Negotiations between the parents continued: however, the first applicant refused to drop the pending criminal charges against Mr X.
95. On 22 December 2008, Mr X. requested to stop paying maintenance, stating that each parent should be financially responsible for the child for the period in which she was with them.
96. On 2 and 12 February 2009 the Commissario della Legge, confirmed the qualifications of the first applicant’s CTP. On 24 February 2009 a meeting with the parties’ CTPs took place.
97. A children’s services report dated 25 February 2009 found that the second applicant’s character had deteriorated compared to the previous year. She was less tranquil, naughtier and at times mischievous. She appeared to be more loyal to the mother and had difficulty in facing up to the conflict between her parents. Although the child had a good relationship with the father, she also showed hostility towards him which appeared to have been induced by the mother. If such psychological pressure persisted there existed the risk of Parental Alienation Syndrome.
98. Upon request, on 6 March 2009 the Commissario della Legge granted an extension to the relevant expert.
99. On 17 March 2009 the Commissario della Legge postponed a decision in respect of maintenance and ordered both parties to submit the second applicant’s passport, reiterating the prohibition on the child’s expatriation.
100. On 20 March 2009 the parties’ experts submitted their report.
101. On 30 March 2009 the CTU finalised the report which had been commissioned on 15 July 2008 (see above). The report was a result of various meetings with the parties which had been recorded. The report concluded that there were no particular problems with the parent’s diverse personalities or with their relationship with their child. However, it established that Mr X. was more aware of the second applicant’s need to have adequate time with both parents, and was thus more likely to allow regular contact with the child by the mother, always under strict supervision by children’s services. Moreover, the mother’s intention of persisting with criminal proceedings against the father did not strike a note in her favour. It suggested psychological therapy to resolve the existing conflict and to allow them to fully assume their roles as parents.
102. On 16 April 2009 the first applicant made a request before the Commissario della legge for copies of the recordings of the meetings attached to the CTU’s report.
103. On 23 April 2009 the same request was made by Mr X., who further requested copies of all relevant communications mentioned in the report, between the parties, their experts, the lawyers and children’s services.
104. On the same day the court ordered those recordings and communications to be provided to the parties, subject to the payment of costs by those parties.
105. Following Mr X.’s request of 30 April 2009 to order a new report by children’s services, in view of the psychological pressure to which the second applicant was being subjected by her mother, the Commissario della legge ordered the said report on 4 May 2009.
106. On 14 May 2009 further submissions were made by the mother, together with a report regarding the second applicant drawn up by the first applicant’s CTP. It was reported that the second applicant’s situation was stress-related; because of her young age she needed and wanted the presence of her mother. She was therefore suffering as a result of the mother’s absence, and constant requests for the child to be removed from her mother could only worsen the child’s situation. It was in favour of requesting specialised medical advice for the child.
107. On 18 May 2009 children’s services submitted a report indicating that the child’s psychological condition was deteriorating, that she was refusing to take part in games representing the family, and that she had become more isolated at school. Moreover, the child had developed a tic and frequent belching, probably due to anxiety.
108. On the same day and on 25 May 2009 respectively, the first applicant requested the court to allow a specialised doctor to diagnose the child and to prescribe treatment, as well as a neuropsychiatric examination.
109. On 27 May 2009 and 1 June 2009 Mr X.’s expert submitted his report.
110. On 5 June 2009 Mr X. objected to the first applicant’s requests. On the same day the Commissario della legge held, noting that Mr X. had suggested that another doctor (Mr C.) should conduct therapy with his daughter, that she was being carefully monitored by reliable experts from children’s services, and that any psychological diagnosis should be included in the treatment already in place, which should be continued.
111. On 22 July 2009 the Commissario della legge held that the psychotherapy was to be conducted by Mr C., who should also verify whether the child was experiencing any discomfort.
112. On 5 August 2009 the court acknowledged two experts on behalf of Mr X. and authorised them to assist in the drawing up of the reports.
113. On 14 September 2009 Mr C. accepted his appointment.
114. Following further submissions, and the first applicant’s complaints about Mr X.’s absences, on 24 November 2009 the Commissario della legge held that, when one of the parents could not take care of the child, it was for the other parent to so do and not the grandparents, and that the parents should collaborate when taking decisions regarding the minor.
115. On 2 February 2010 further reports were requested from the CTU.
116. Proceedings were still under way on the date of communication of the present application to the respondent Government.
117. By an application of 1 August 2007, the first applicant requested the Juvenile Tribunal of Bologna to intervene in the custody proceedings in favour of sole custody of the mother.
118. On 10 August 2007 the Public Prosecutor’s Office advised against this action for lack of Italian jurisdiction. On 23 October 2007 the first applicant made a request for urgent measures.
119. By a decree of 29 October 2007, the Juvenile Tribunal suspended proceedings in view of the fact that proceedings were pending in San Marino.
120. It appears that in 2008 Mr X. requested the Juvenile Tribunal of Bologna to return the child to San Marino. The first applicant was not informed of these proceedings. On 14 March 2008 the Public Prosecutor’s Office advised the court to refuse the request.
121. By a decree of 6 June 2008, the Juvenile Tribunal refused the request to return the child to San Marino. It noted that, as Italy had not yet accepted San Marino’s adhesion to the Hague Convention that Convention could not apply to the present case.
122. Mr X. pressed charges against the first applicant on 4 September 2007, for failure to make the child available for one of his visits. On 4 December 2007 it was considered that these proceedings should be archived since relevant certificates proving the child’s illness at the time were submitted. The following day the case was archived by the Procuratore del Fisco (Attorney General). On 6 December 2007 the case was archived by the Commissario della Legge.
123. On 19 February 2008 the first applicant pressed charges against Mr X., with the Gendarmeria di San Marino, for international kidnapping.
124. Following the first applicant’s testimony, on 29 May 2009 the Commissario della Legge held that there had not been the prerequisites for the accusation. Mr X. had not had the intention to kidnap the child. He could not be held responsible since he had only planned to take the child on a short holiday, which in some way or other could be said to have been agreed to by children’s services, in order to allow the father to recover the unilaterally impeded and therefore lost visits. The case was therefore sent for an opinion to the Procuratore del Fisco. With the latter’s agreement, on 10 June 2009 the Commissario della Legge ordered that the case be archived.
125. On 10 May 2008 the first applicant pressed charges against Mr X. with the Rimini police headquarters for international kidnapping.
126. On 23 February 2009 the Commissario della Legge ordered the judicial police of San Marino to carry out the identification of Mr X.
127. By a summons of 19 July 2010 Mr X was informed that he was being indicted and that the trial would start on 24 October 2011.
128. Consular visits with the parties concerned were only successful in respect of the first applicant. Meanwhile diplomatic attempts by the Italian Government, seeking an adequate solution from the San Marino authorities, remained unfruitful.
129. Following notification of the pending application before the Court by the Government Agent, on 26 July 2010, by reason of the inferences as to the impartiality of the relevant judge in the application pending before the Court, the Commissario della Legge hearing the ordinary custody and contact proceedings withdrew.
130. Proceedings continued under a new judge appointed by the former judge. According to the applicants, this choice had been arbitrary, as the new judge, who did not usually practise in the civil sphere, was a professor at the same university as the former judge and X’s legal counsel. This choice highlighted the former judge’s partiality.
131. Submissions were made regarding several issues, inter alia the child’s presence at Mr X.’s wedding, schooling, exclusive custody, and urgent measures related to the child’s medical needs. Where necessary, decrees were delivered upon the information submitted by the parties, the experts and children’s services.
132. Subsequently, on 13 September 2010 an updated CTU was submitted. The CTU acknowledged that his initial conclusions (of July 2008) had to be altered, having regard to the application lodged before the Court by the first applicant; as such the action reflected her contradictory behaviour. After hearing the parties he concluded that the second applicant should be placed with the father for the coming school year, that schooling should be in San Marino and that the mother should maintain her previously established visiting rights. The same was confirmed by a children’s services report.
133. On 20 September 2010, following an adjournment because Mr X. was still on honeymoon, the first applicant made further submissions, focusing on the protection of her rights under Article 8 of the Convention. She submitted a favourable report by her CTP and requested that i) the child be placed with her, ii) the child be put into the Rimini elementary school, iii) a neuropsychiatric report be drawn up by the Rimini hospital iv) monitoring of visits be withdrawn, or in the alternative that San Marino children’s services be replaced by neuropsychiatric services or that the psychologist be replaced.
134. Having heard all the relevant parties and submissions the Commissario della Legge delivered its decision on 21 September 2010. Noting the high level of conflict persisting between the parties and their representatives, it considered that the decision must be temporary and subject to further change. It ordered joint custody, that the child be schooled in San Marino, that she be placed with the father during the week and with the mother at weekends, that Christmas and Easter festivities would be spent with the mother with the exception of Christmas Eve, Epiphany and the weekend after, which would be spent with the father, and that the parents continue to follow psychotherapy for another twelve months. It further ordered children’s services to continue monitoring the child’s progress, the expert to submit information about the child-parent relationship, particularly in view of the father’s remarriage, and any relevant medical needs.
135. Feeling aggrieved by the comments in the above-mentioned decision in relation to the parties’ representatives, legal counsel for the first applicant gave up their mandate. Proceedings are still pending and the first applicant has no longer been represented during these proceedings.
136. Meanwhile, the appeal proceedings against the decision of 19 February 2008 continued and were decided on 7 March 2011.
137. The Giudice per le Appellazioni Civili rejected the first applicant’s appeal. The court considered that Article 6 of the Convention had detailed provisions regarding criminal proceedings, but nothing in relation to civil proceedings. Thus, it was a matter subject solely to ordinary law. That being stated, he considered that in the instant case there had not been a breach of the right to defence or to the right to cross-examination (contraddittorio). Indeed, the first applicant had originally been represented at the opening of the hearing, thus, the prerequisites existed to hear the case and to cross-examine. It was only following the rejection of the request for an adjournment that the first applicant’s co-lawyer forfeited her mandate. Moreover, when the latter forfeited her mandate she was not forfeiting her colleague’s mandate, who therefore remained counsel to the applicant. The court further noted that there existed no law recognising a right to defer a case. The decision in relation to the existence of a legitimate impairment was subject to the judge’s discretion after hearing the relevant arguments. In the present case, the results of the investigation and rogatory enquiry with the Rimini Tribunal could not lead to the existence either of a legitimate impediment or of an ex post one. The Commissario della Legge had according to his prerogatives considered it opportune to decide the case speedily in view of the urgency and gravity of the matter. Indeed, itaudi alteram partem). Moreover, the appeal judge considered perplexing the fact that the first applicant was contesting a situation she had created herself. Lastly, as to the impartiality complaint, the first applicant had not challenged or requested the withdrawal of the Commissario della Legge at the relevant time.
138. The preamble of the Convention includes the following statement as to its purpose:
“ ...to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, ...”
139. The object of such a return is that, following the restoration of the status quo ante, the conflict between the custodian and the person who has removed or retained the child can be resolved in the State where the child is habitually resident.
140. Article 3 of the Convention reads as follows:
“The removal or the retention of a child is to be considered wrongful where
(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or the retention; and
(b) at the time of the removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. ...”
141. Section 7 (1) of the law of 17 June 2008 amending criminal procedure “the Criminal Procedure Act”) provided that an order that the case be archived must promptly be notified to the Attorney General (procuratore del fisco), the person charged, the victim, and the person who had pressed the charges. It must further be communicated to the executive magistrate (“magistrato dirigente”). An appeal can be lodged against such an order, by the person charged or the victim, within thirty days of its notification. The appeal shall be lodged with the Giudice delle Appellazioni Civili, who must be a different judge than the one who originally decided the merits of the cause. He or she should deliver a reasoned decision within thirty days. An order upholding the appeal application must require the investigation stage to be reopened and the magistrato dirigente must assign the case file to a new investigating judge.
142. Its section 10 regarding transitional measures provided that this law was applicable to all criminal proceedings in which notice of the crime had reached the inquiring magistrate at a date following its entry into force. The law did not apply to proceedings pending at the date of its entry into force if they were published and archived within the following nine months of its entry into force.
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-22494
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: BULUT and YAVUZ v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Gaukur Jörundsson
TEXT: The applicants, Mrs Siti Bulut and Mrs Hatice Yavuz, are Turkish nationals and live in Nusaybin, Turkey. They are represented before the Court by Messrs Medeni Ayhan and Metin Ayhan, lawyers practising in Ankara.
The facts of the case, as submitted by the applicants, may be summarised as follows.
Celal Bulut, the first applicant’s husband and the second applicant’s father, was born in 1950 in Midyat and was working as a decorator in the district of Nusaybin within the province of Mardin in south-east Turkey. At 12.30 p.m. on 29 July 1994 he returned to his house from work to have his lunch. As he entered the garden of his house five persons, who had followed him, opened fire and shot him. He died instantly.
Security forces arrived at the scene within minutes but made no attempt to discover the direction in which the perpetrators had fled. Instead, they searched the house of the deceased, ransacking it in the process.
No photographs were taken at the scene of the crime and eye-witnesses were not questioned. Furthermore, no post-mortem examination was carried out on the body. Vital evidence, such as fingerprints or spent cartridges, was not collected.
The applicants unsuccessfully contacted the Nusaybin public prosecutor on many occasions following the incident and enquired whether the perpetrators had been identified or arrested.
On 26 October 2000 the applicants, through the assistance of their lawyers, wrote to the Nusaybin public prosecutor and to the prosecutor at the Diyarbakır State Security Court and asked them whether the perpetrators had been arrested yet.
The prosecutor at the Diyarbakır State Security Court did not reply to the applicants’ letter.
The Nusaybin public prosecutor, who received the applicants’ letter on 30 October 2000, sent the applicants a copy of the decision of non-jurisdiction taken on 5 June 1995 pursuant to which the investigation file had been sent to the Diyarbakır State Security Court. This decision had been taken in 1995 on the basis of the public prosecutor’s belief that Şeyhmuz Uğur, Adnan Aktaş, Mehmet Akay and Ömer Saruhan, all suspected members of Hizbollah, were involved in the killing of Celal Bulut. For this reason, the prosecutor declined jurisdiction in favour of the Diyarbakır State Security Court which had jurisdiction to investigate the matter.
According to Article 448 of the Turkish Criminal Code (Türk Ceza Kanunu) any person who intentionally kills another shall be sentenced to a term of imprisonment of 24 to 30 years. According to Article 450, the death penalty may be imposed in cases of, inter alia, premeditated murder. Under Article 452, where death results from an act of violence but it was not the intention of the offender to kill his victim, a sentence of eight years’ imprisonment shall be imposed on the offender. Where death results from an act of carelessness, negligence or inexperience on the part of the offender in breach of a law, orders or regulations, Article 455 stipulates that the guilty party shall be sentenced to a term of imprisonment of two to five years and to a substantial fine.
For all such offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure (Ceza Muhakemeleri Usulü Kanunu), with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings (Article 165).
According to Article 102 (1) of the Turkish Criminal Code, the statutory period during which a public prosecutor is obliged to investigate the crime of murder is 20 years.


ITEMID: 001-91758
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ALEKSANDR MAKAROV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 3;Violation of Art. 5-3;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 7. The applicant was born in 1946 and lived in Tomsk until his arrest.
8. In July 1996 the applicant was elected to the position of mayor of Tomsk. In 2000 he was re-elected.
9. In 2006 two co-owners of a private company complained to the Tomsk Regional Department of the Federal Security Service (“the FSB”) that the applicant’s relative, Ms E., had attempted to extort 3,000,000 Russian roubles (RUB) from them by threatening to destroy their real estate and prevent them from rebuilding. According to the co-owners, following their refusal to pay, the applicant annulled the Tomsk mayor’s decision of 26 September 2005 by which their company had been provided with a plot of land and granted that plot of land to his relative, Ms E. By a letter of 15 September 2006 the applicant had also ordered the Head of the Tomsk Town Land Committee to demolish the company’s property situated on that land. The Government provided the Court with a copy of the co-owners’ complaint registered by the FSB on 5 December 2006.
10. On 6 December 2006 the office of the Tomsk Regional Prosecutor, acting on the complaint from the co-owners and the results of the preliminary investigative actions performed by the FSB, instituted criminal proceedings against the applicant, suspecting him of having abused his position and having aided and abetted aggravated extortion. On the same day the applicant was arrested and placed in the Tomsk Town temporary detention facility.
11. The applicant felt ill and was immediately transferred to the Scientific Research Cardiology Institute (“the Institute”), where he was diagnosed with ischemic heart disease, unstable stenocardia, impaired cardiac function, chronic pancreatitis, chronic cholecystitis and bronchitis.
12. On 8 December 2006 a commission of medical experts from the Institute issued a report finding the applicant fit to participate in the pre-trial investigation. The commission also concluded that the applicant could remain in custody on condition that urgent medical assistance was to be provided to him if necessary.
13. A senior investigator from the office of the Tomsk Regional Prosecutor asked the Sovetskiy District Court of Tomsk to authorise the applicant’s detention.
14. On 8 December 2006 the District Court found that the prosecution had to submit additional evidence in support of their request, and granted a seventy-two-hour extension to keep the applicant in police custody. The District Court noted that the applicant should remain under arrest until 6.07 p.m. on 11 December 2006. The relevant part of the decision read as follows:
“At the hearing the acting head of the department... of the Tomsk Regional Prosecutor’s Office, Ms K., applied for a seventy-two-hour extension to keep [the applicant] in custody pending the submission of additional evidence, namely the suspect’s identification documents – a copy of the suspect’s passport – in support of the request.
The suspect, [the applicant], disagreed with the request and stated that there were no grounds for extending his detention.
The suspect’s lawyers also disagreed with the request and explained that [the applicant] had no intention to abscond, he had a permanent place of residence and his arrest was unlawful, as there were no grounds for his arrest as required by Article 91 of the Code of Criminal Procedure of the Russian Federation. In these circumstances they asked for the request to be dismissed.
Having heard the submissions of the parties to the proceedings and having examined the material in the criminal case file, the court grants the extension...
By virtue of Article 108 § 7 of the Code of Criminal Procedure of the Russian Federation, a court has the right to grant an extension on request. If the court considers that the arrest was lawful and justified, [it] may grant a seventy-two-hour extension from the moment when the court decision has been taken to allow a party to submit additional evidence in support of [the claim] that the application of a measure of restraint such as detention is justified or unjustified.
Having examined the material in the case file, the court finds that [the applicant’s] arrest was lawful and justified.
By virtue of Article 91 of the Code of Criminal Procedure of the Russian Federation, an investigating authority, an investigator or a prosecutor has the right to arrest a person suspected of having committed a criminal offence which is punishable by imprisonment, if one of the following conditions is satisfied:
(1) that person has been caught committing a crime or immediately after having committed a crime;
(2) victims or eyewitnesses have identified that person as the perpetrator of a criminal offence; or
(3) obvious traces or signs of a criminal offence have been discovered on that person or his clothes, or with him or in his house.
As follows from the record of [the applicant’s] arrest, he was arrested on 6 December 2006 on suspicion of having committed criminal offences under Article 91 § 1 (2) of the Code of Criminal Procedure of the Russian Federation because the victims had identified him as the perpetrator of the offences. There were no violations of criminal procedural law.
On 6 December 2006, at 9.05 a.m., that is before the arrest, criminal proceedings were instituted against the identified person – [the applicant] – on suspicion of offences under Article 33 § 5, Article 163 § 3 (b) and Article 285 § 2 of the Criminal Code of the Russian Federation.
Having regard to the foregoing, the court considers it lawful and justified to grant a seventy-two-hour extension...”
15. Several hours later the prosecution provided the District Court with additional evidence (a copy of the applicant’s passport, the report of the medical expert commission showing the state of the applicant’s health, and documents confirming that he was the mayor of Tomsk) in support of its request for authorisation of the applicant’s detention.
16. Acting upon the additional information provided by the prosecution, the District Court on the same day authorised the applicant’s detention on the grounds that he was charged with serious criminal offences, he had several places of residence and he was liable to abscond and pervert the course of justice. The District Court noted that the applicant was suspected of having abused his position as mayor and that consequently, if released, he could have influenced witnesses who worked in the mayor’s office and could have destroyed evidence. It also relied on the report by the medical commission, which had concluded that the applicant was fit to participate in the criminal proceedings and to remain in custody.
17. On 11 December 2006 the District Court suspended the applicant from his position as mayor of Tomsk.
18. On 18 December 2006 the Tomsk Regional Court upheld the decisions of 8 December 2006 by which the District Court had granted a seventy-two-hour extension to keep the applicant in police custody and had authorised his detention. The Regional Court endorsed the reasons given by the District Court.
19. Later in December other two criminal cases were launched against the applicant. On 25 December 2006 he was additionally charged with aggravated abuse of position and illegal business activities. In particular, the prosecution suspected that in 1997, abusing his powers as the mayor of Tomsk, the applicant had unlawfully obtained 30% of the shares in a large wholesale company and approximately 33% of the shares in another public company.
20. On 30 January 2007 the Tomsk Regional Prosecutor asked the Sovetskiy District Court to extend the applicant’s detention for an additional three months, arguing that the applicant was charged with serious criminal offences and that he was liable to influence witnesses, destroy evidence, pervert the course of justice and abscond. The prosecutor relied on information provided by the Tomsk Regional FSB Department, according to which the applicant wanted to leave Russia and move to a member State of the European Union, possibly Poland or the Czech Republic. A letter from a deputy head of the Tomsk Regional FSB Department was enclosed. The relevant part of the letter read as follows:
“Thus, according to the available information, [the applicant] has asked his daughter Ms Y. to resign from [her position] in the law-enforcement bodies and to sell quickly the immovable property she owns, including a house..., and has advised her to leave Russia with her children as soon as possible.
At the same time, [the applicant] is taking steps to pervert the course of the investigation using his connections with the authorities in Tomsk and the Tomsk Region. In particular, [the applicant], with the help of his relatives and confidants, has influenced officials of the [Tomsk] Town Council who are acting as witnesses in criminal case no. 2006/4500, including by making threats to use physical force against them and their family members. Moreover, he is actively using negative information damaging to the reputation of senior officials and employees of the Tomsk mayor’s office, the Tomsk Regional Administration and members of the Tomsk Town Council.
Furthermore, ... on orders from [the applicant], his confidants and close relatives visited Moscow and had several meetings with high-ranking officials, including those in the Office of the President of the Russian Federation, and with intermediaries who have connections with corrupt officials in law-enforcement bodies who may discontinue the criminal proceedings against him in return for money. As a result of those meetings, presumably, [the applicant’s] confidants reached an agreement concerning the provision of consultative, administrative and legal assistance in their efforts to secure [the applicant’s] release.
The available information supports the conclusion that, if released, [the applicant] will have real opportunities to obstruct the course of justice.”
21. At the same time the applicant’s lawyers lodged an application with the Sovetskiy District Court for the applicant’s release. They argued that the applicant had a permanent place of residence in Tomsk, that his family also lived in Tomsk, that he did not have any immovable property outside Tomsk and that he did not have a passport to travel. Furthermore, he had been registered as a candidate for the forthcoming parliamentary elections in the Tomsk Region and had deposited RUB 900,000, approximately 26,000 euros (EUR) to be registered as a candidate. The lawyers insisted that the applicant did not intend to abscond, arguing that there was no evidence that his relatives had sold property or had bought foreign currency. They also pointed out that he was sixty-one years old and seriously ill and that he needed special medical treatment and a particular diet which could not be provided in a detention facility.
22. On 5 February 2007 the District Court accepted the prosecutor’s request and extended the applicant’s detention until 6 May 2007. The relevant part of the decision read as follows:
“Thus, [the applicant] is currently suspended from his position as mayor of Tomsk; however, by virtue of Article 114 of the Code on Criminal Procedure of the Russian Federation, this measure is temporary and does not entail dismissal from the position or loss of social and employment status and personal authority over certain groups of individuals and officials who may be questioned as witnesses in the course of the criminal proceedings. In particular, [the applicant’s] former subordinates may act as witnesses in the criminal investigation.
...
When on 8 December 2006 the court chose a measure of restraint, [it] noted that there was evidence supporting the conclusion that the defendant might abscond; that evidence did not cease to exist after the examination of the question of the application of the measure of restraint. Thus, [the fact that the applicant has] a permanent place of residence and the family (wife, children, grandchildren) in one town, [and that he does not have] immovable property and bank accounts outside Tomsk cannot serve as an independent ground excluding the possibility of the defendant’s absconding or perverting the course of the investigation. [The applicant] can also participate in the election campaign while outside his electoral district.
There is no evidence that the state of [the applicant’s] health has deteriorated since he has been in custody. According to the conclusions of the complex forensic medical examination no. 342-Uzh, [the applicant] has several chronic conditions, including...; however, taking into account those diseases, he may be detained on condition that urgent special medical assistance is provided.”
23. On 1 March 2007 the Tomsk Regional Court upheld the decision of 5 February 2007, endorsing the reasons given by the District Court.
24. On 26 April 2007 the applicant was charged with bribery and an additional two counts of aggravated abuse of position. In particular, the prosecution alleged that he had bought a municipal plot of land, paying a tenth of its value as had been estimated by the Tomsk Town Land Committee, and that he had received RUB 300,000 as a bribe.
25. On 25 April 2007 the applicant’s counsel, Mr K., asked a senior investigator from the office of the Tomsk Regional Prosecutor to authorise a medical examination of the applicant by three particular specialists in view of the fact that the authorised period of his detention was to expire on 6 May 2007 and he was continuously complaining of severe back and stomach pain and the lack of adequate medical assistance.
26. Three days later the senior investigator dismissed the request on the ground that the applicant had undergone treatment in a prison hospital from 8 December 2006 to 12 January 2007 and that he had on numerous occasions been examined by groups of prison doctors who had found him fit to participate in the investigation.
27. On 4 May 2007 the Sovetskiy District Court extended the applicant’s detention until 6 September 2007 on the grounds that he was charged with serious criminal offences, that he could have influenced witnesses – his former subordinates – using his official powers and that he was liable to pervert the course of justice and abscond. The District Court also found that the applicant’s state of health was stable and he was fit to remain in detention. According to the Government, in its decision to extend the applicant’s detention the District Court had relied on information provided by the Tomsk Regional FSB Department. The FSB officials alleged that the applicant’s relatives “were actively selling immovable and other property belonging to the mayor’s family” and “were using proceeds to buy large sums of foreign currency for a subsequent move to foreign countries”.
28. On 31 May 2007 the Tomsk Regional Court upheld the decision of 4 May 2007, finding no grounds for the applicant’s release.
29. In July and August 2007 criminal proceedings were instituted against the applicant pertaining to three other counts of abuse of position, two counts of aggravated bribery, possession of drugs and aiding and abetting fraud.
30. On 23 August 2007 the applicant was served with a bill of indictment comprising accusations on all charges. Four days later the pre-trial investigation was completed and the applicant and his lawyers began studying the case file.
31. On 3 September 2007 the Sovetskiy District Court extended the applicant’s detention until 6 December 2007. The relevant part of the decision read as follows:
“As it follows from the case file materials, [the applicant] is charged with serious and particularly serious criminal offences and the case is very complex, which is confirmed by the substantial volume of the materials (approximately thirty-five volumes) and the necessity for the defendant and his lawyers to study the file...
It also follows from the case file materials that the measure of restraint was chosen for [the applicant] correctly, in accordance with Article 97 of the Russian Code of Criminal Procedure, which is based on the particular seriousness of the charges, [and] the presence of the possibility for the defendant to use his official powers to prevent the establishment of the truth.
The grounds for the application of such [a measure of restraint] did not cease to exist; [they] did not change and the new grounds, showing that it is necessary to apply another measure of restraint, did not emerge.
Taking into account the materials of the case file and having regard to the official and material status of the defendant, the court has grounds to consider that, if released, [the applicant] as the head of the municipality might apply pressure to the witnesses, and [he] might also escape from the investigating authorities, including by leaving the Russian Federation.
A temporary suspension from the office does not mean the dismissal from the position, the loss of social and official status, [the loss] of personal authority over particular groups of private individuals and officials who may be questioned as witnesses in the case during the pre-trial investigation or in a court.
...
The [fact] that [the applicant] does not have a travel passport or medical insurance for a foreign State cannot serve as evidence that it is impossible for him to leave the Russian Federation.
[The facts that the applicant] has a permanent place of residence, [and] the family (spouse, children and grandchildren) living within the same town, [that he] does not have immovable property or bank accounts in foreign States cannot on their own serve as an independent ground excluding a possibility of the defendant’s absconding the investigation and trial or his liability to pervert the course of the investigation.
According to a medical certificate, [the applicant’s] state of health allows his detention in a temporary detention facility.
...
While extending the detention, the court takes into account the absence of prior convictions, the defendant’s state of health, the presence of the permanent places of residence and work, [his] age, however, taking into account the above stated, [the court] does not find any ground permitting a change of the measure of restraint applied to [the applicant].”
32. On 27 September 2007 the Tomsk Regional Court upheld the decision of 3 September 2007, noting that the District Court had not relied exclusively on the gravity of the charges against the applicant, and that it had taken into account other relevant information, such as the likelihood that applicant would abscond and pervert the course of justice by threatening witnesses and victims and prompting them to withdraw or change their statements.
33. On 3 December 2007 the Tomsk Regional Court extended the applicant’s detention for an additional three months, until 6 March 2008, to allow the defendants to finish studying the case file. The Regional Court held that the grounds for the applicant’s arrest, that is the gravity of the charges against him and his liability to abscond, pervert the course of justice and reoffend, were still applicable and that they warranted the exceptional duration of the detention for more than twelve months, in spite of the arguments advanced by the defence and the personal surety offered on the applicant’s behalf by the Archbishop of the Tomsk Region. Furthermore, the Regional Court noted that the case file contained information pertaining to the applicant’s attempts to influence a victim, Mr L., and a witness, Mr B., and his alleged attempts to pervert the course of the investigation.
34. The applicant and his lawyers appealed, arguing that the Regional Court had failed to indicate any instance when the applicant had attempted to influence witnesses or victims. They insisted that the prosecution authorities had not presented any evidence of the applicant’s alleged attempts to influence the course of the investigation or of his liability to abscond or reoffend.
35. On 11 February 2008 the Supreme Court of the Russian Federation upheld the decision of 3 December 2007, noting that “at the time of the arrest [the applicant] was the mayor of Tomsk and he was charged with serious criminal offences pertaining to his office.” The Supreme Court also agreed with the Regional Court that additional time was necessary for the parties to finish reading the sixty-one volumes of the case file.
36. On 3 March 2008 the Tomsk Regional Court extended the applicant’s detention until 6 June 2008. The reasoning was identical to the one given in the decision on 3 December 2007, save for one detail: the Regional Court mentioned that in 2007 the applicant’s relatives had bought large amounts of foreign currency. In addition, the Regional Court noted the exceptional duration of the applicant’s detention, holding as follows:
“While extending [the applicant’s] detention on the grounds prescribed by Article 109 § 7 of the Russian Code of Criminal Procedure, the court also notes that the suspect has been in custody for more than a year.
However, the court, relying on Article 109 § 3 of the Russian Code of Criminal Procedure, considers that the particular complexity of the criminal case, the seriousness of the charges against [the applicant], [his] social and official status, the presence of circumstances which allow to conclude that, if released, [the applicant] is liable to abscond and pervert the course of justice represent the exclusive grounds warranting the extension of [the applicant’s] detention for more than twelve months.”
37. On 21 April 2008 the Supreme Court of the Russian Federation upheld the decision of 3 March 2008, endorsing the reasons given by the Regional Court.
38. On 3 June 2008 the Tomsk Regional Court held a preliminary hearing in the case. It examined and granted a number of requests lodged by the applicant, his co-defendant and their lawyers, including a request for a jury trial and exclusion of certain items from evidence. By the same decision the Regional Court extended the applicant’s detention for an additional six months, until 20 November 2008, noting that the measure of restraint had been correctly chosen and that “the grounds for detention had not changed”. The Regional Court also held that the applicant could influence witnesses who worked in the Tomsk Mayor’s office and that he had several places of residence, thus being liable to abscond.
39. On 18 August 2008 the Supreme Court of the Russian Federation upheld the decision, finding that the Regional Court had correctly identified the grounds for the extension of the detention and had issued a reasoned decision.
40. It appears that the trial proceedings are still pending and the applicant remains in custody.
41. On 8 December 2006 the applicant, having had an initial diagnosis of ischemic heart disease and unstable stenocardia, was admitted to the hospital in the Tomsk Town temporary detention facility. The Government provided a detailed description of the treatment administered to the applicant, including the type and frequency of medical procedures, type and dose of medicine. They also furnished a copy of the applicant’s medical record and medical certificates.
42. As it follows from the presented documents, on the day of his admission to the prison hospital the applicant was submitted to five electrocardiographic examinations. It was established that he was not suffering from an acute heart condition. On 11 December 2006 the applicant was examined by a medical commission comprising nine specialists in various fields of medicine. The commission concluded that the applicant suffered from encephalopathy of the first and second degree aggregated by cervicalgia and accompanied by a syndrome of moderate pain; chronic pancreatitis and chronic cholecystitis in the state of remission. The treatment was prescribed. A week later the applicant was again examined by the commission with the participation of two cardiologists from the Tomsk Regional Clinical Hospital. The diagnosis of ischemic heart disease was confirmed. The doctors concluded that the applicant’s state of health was stable and that he did not need permanent medication. On 20 and 21 December 2006 the applicant did not consent to an examination by a neurologist. On 11 January 2007 he refused to have blood taken for a complete biochemical analysis. On the same day a group of three doctors examined the applicant, finding that he could be discharged from the hospital because his health was satisfactory and he was able to take part in investigative actions, including those performed outside the detention facility. On 19 January 2007 the applicant was examined by a medical commission comprising two surgeons, a therapist, a neurologist and an expert in ultrasound examinations from the Tomsk Regional Somatic Hospital. They confirmed the applicant’s diagnosis and set up a schedule for treatment. The applicant received etiotropic and pathogenic treatment in the facility medical department.
43. As it follows from the information provided by the Government, the applicant remains under constant medical observation by a number of specialists in various fields of medicine, undergoing regular medical check-ups, including ultrasonic scanning, electrocardiographic examinations and blood tests. The applicant’s state of health is considered “stable [and] satisfactory”.
44. The parties did not dispute the measurements of the cells and the number of inmates detained together with the applicant. As it follows from their submissions, on 12 January 2007 the applicant was placed in cell no. 214 which measured 9.5 square metres and had four sleeping places. He was detained alone. From 1 February to 23 May 2007 the applicant was kept in cell no. 26 which measured 9.2 square metres and was equipped with a two-tier metal bunk. He shared the cell with another detainee. Since 23 May 2007 the applicant has been detained in cell no. 251, measuring 11.5 square metres and having two two-tier metal bunks. From 23 May to 27 September 2007 the cell accommodated two detainees. Since 27 September 2007 the applicant has been sharing the cell with two inmates.
45. It was likewise undisputed that each cell had a window measuring 70 centimetres in width and 90 to 95 centimetres in length. The windows were not covered with metal shutters, but there were two layers of metal vertical and horizontal lattices on the outer and inner sides of each window. Openings between the metal bars, measuring 20 square centimetres between the external lattices and 16 square centimetres between the internal lattices, brought natural light in the cells. According to the applicant, the lighting was clearly insufficient, as the metal bars blocked access to natural light and fresh air. The applicant claimed that insufficient lighting had impaired his eyesight. His condition was further exacerbated by the fact that he suffered from myopathy and increased intraocular pressure possibly coupled with glaucoma. He experienced severe headaches and became extremely tired if he attempted to work or read. The Government submitted that the size, location and number of windows allowed inmates to read and work in natural lighting. The cells were constantly lit with electric incandescent lighting: 100-watt bulbs during the daytime and 40-watt bulbs at night. The Government stressed that the lighting was in accordance with sanitary norms.
46. According to the Government, the detention facility was equipped with a central heating system. Each cell had a two- or three-unit heating device. In a certificate issued on 13 November 2007, the facility director noted that the temperature in the cells during the heating season “depended on the provision of the heat by the town heating system, according to the temperature chart”. The Government, relying on the information provided by the facility administration, further stated that the average temperature in the cells was 20 degrees Celsius in winter and 23 degrees Celsius in summer. The applicant averred that the Government did not indicate the year for which the average temperature had been measured. He argued that it was extremely hot in summer and cold in spring and winter.
47. The parties further submitted that the windows in the cells had a casement. Inmates could open the casement to bring in fresh air. Each cell had a ventilation system. According to the Government, the applicant was also allowed to have a private fan. The latter fact was disputed by the applicant, who pointed out that an extract from a log, presented by the Government and showing his personal belongings, did not bear his signature against the last line, where the private fan was mentioned, although he had confirmed receipt of all other items with a signature.
48. Each cell was equipped with a lavatory pan, a sink, a tap for running water and wooden desk. A smaller cell had a wooden bench. The lavatory pan was placed in the corner of the cell. The Government produced black and white photos of the cells where the applicant had been detained. The photos showed that the lavatory pan was separated from the living area by a tiled brick partition. As it follows from a certificate issued on 13 November 2007 by the facility director, the height of the partitions varied from 145 to 165 centimetres. The applicant submitted that the partition afforded no privacy, as it had been only installed on the one side of the lavatory pan. The pan could still be seen by inmates lying on the bunks and warders standing near the cell door. The applicant further pointed out that inmates were not provided with cleaning fluids for the sanitary equipment.
49. The applicant was allowed to take a shower once a week for a minimum of fifteen minutes. The applicant asserted that it was difficult to maintain personal hygiene, particularly in summer when it was extremely hot. He could also take a one-hour walk in a small concrete facility courtyard. The applicant insisted that the courtyard was so small that he could not do any physical exercises although the prison doctor had prescribed him therapeutic exercises to alleviate back pain caused by osteochondrosis.
50. At all times the applicant had an individual sleeping place and he was provided with bedding. The applicant argued that the bedding, in particular a mattress, did not satisfy his needs. Relying on medical certificates and his medical record, the applicant submitted that he suffered from osteochondrosis of the vertebral column with the primary localisation in the lumbar spine. Prison doctors who had examined the applicant on two occasions recommended that the applicant should be provided with a special board which could be placed under the mattress to provide support for his back. The recommendation was not fulfilled. As a result the applicant suffered from severe back pain. In particular, the pain was so severe that on four occasions in March, April and May 2007 a prison doctor prescribed him painkillers. Furthermore, the applicant pointed out that the distance between the lower and upper tiers of the bunks was only 65 centimetres. The applicant was thus forced to bend when seated, experiencing additional back pain.
51. The Government, relying on the information provided by the director of the facility and copies of entries to facility logs, further stated that the applicant was given dietetic food “in accordance with the norms established for detainees undergoing medical treatment”. Medical personnel checked the quality of the food and made entries to that effect in logs. On a number of occasions the applicant refused to eat facility food. However, during the entire period of his detention he received 308 food parcels from his relatives and on thirty-seven occasions he bought food from a facility shop. The applicant submitted that the chronic diseases, that is chronic cholecystitis and pancreatitis, from which he suffered required dietary management which could not be met by normal diet alone. The food prepared in the facility did not correspond to the distinctive nutritional needs and was not intended for the dietary management of those diseases. For example, during two first weeks of his detention he was served fried potatoes and boiled fat, which had been expressly prohibited for the applicant.
52. Section 22 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell.
55. Until 1 July 2002 matters of criminal law were governed by the Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic (Law of 27 October 1960, “the old CCrP”). From 1 July 2002 the old CCrP was replaced by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the new CCrP”).
56. “Preventive measures” or “measures of restraint” include an undertaking not to leave a town or region, a personal guarantee, bail and remand in custody (Article 98 of the new CCrP).
57. The Russian Constitution of 12 December 1993 provides that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22).
The new CCrP requires a judicial decision by a district or town court on a reasoned request by a prosecutor, supported by appropriate evidence (Article 108 §§ 1, 3-6).
58. When deciding whether to remand an accused in custody, the competent authority is required to consider whether there are “sufficient grounds to believe” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or reoffend (Article 97 § 1 of the new CCrP). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99 of the new CCrP). A defendant should not be remanded in custody if a less severe preventive measure is available.
59. The Code makes a distinction between two types of remand in custody: the first being “during investigation”, that is, while a competent agency – the police or a prosecutor’s office – is investigating the case, and the second being “before the court” (or “during trial proceedings”), at the judicial stage. Although there is no difference in practice between them (the detainee is held in the same detention facility), the calculation of the time-limits is different.
60. After arrest the suspect is placed in custody “during investigation”. The maximum permitted period of detention “during investigation” is two months but this can be extended for up to eighteen months in “exceptional circumstances”. Extensions are to be authorised by judicial decisions, taken by courts of ascending levels. No extension of detention “during investigation” beyond eighteen months is possible (Article 109 § 4 of the new CCrP).
61. The period of detention “during investigation” is calculated up to the day when the prosecutor sends the case to the trial court (Article 109 § 9 of the new CCrP).
62. Access to the materials in the file is to be granted no later than one month before the expiry of the authorised detention period (Article 109 § 5 of the new CCrP). If the defendant needs more time to study the case file, a judge, on a request by a prosecutor, may grant an extension of the detention until such time as the file has been read in full and the case sent for trial (Article 109 § 8 (1) of the new CCrP).
63. From the date the prosecutor refers the case to the trial court, the defendant’s detention is classified as “before the court” (or “during judicial proceedings”).
64. The new CCrP provides that the term of detention “during judicial proceedings” is calculated from the date the court received the file up to the date on which the judgment is given. The period of detention “during judicial proceedings” may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3).
65. The new CCrP empowers the judge, within fourteen days of receipt of the case file, (1) to refer the case to a competent court; (2) to fix a date for a preliminary hearing; or (3) to fix a trial date (Article 227). In the latter case, the trial proceedings must begin no later than fourteen days after the judge has fixed the trial date (Article 233 § 1 of the new CCrP). There are no restrictions on fixing the date of a preliminary hearing.
66. The duration of the entire trial proceedings is not limited in time.
67. The new CCrP provides that the appeal court must start the examination of the appeal no later than one month after it is lodged (Article 374).
68. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the Russian Federation from 2 to 17 December 2001. The section of its Report to the Russian Government (CPT/Inf (2003) 30) dealing with the conditions of detention in temporary holding facilities and remand establishments and the complaints procedure read as follows:
“b. temporary holding facilities for criminal suspects (IVS)
26. According to the 1996 Regulations establishing the internal rules of Internal Affairs temporary holding facilities for suspects and accused persons, the living space per person should be 4 m². It is also provided in these regulations that detained persons should be supplied with mattresses and bedding, soap, toilet paper, newspapers, games, food, etc. Further, the regulations make provision for outdoor exercise of at least one hour per day.
The actual conditions of detention in the IVS establishments visited in 2001 varied considerably.
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45. It should be stressed at the outset that the CPT was pleased to note the progress being made on an issue of great concern for the Russian penitentiary system: overcrowding.
When the CPT first visited the Russian Federation in November 1998, overcrowding was identified as the most important and urgent challenge facing the prison system. At the beginning of the 2001 visit, the delegation was informed that the remand prison population had decreased by 30,000 since 1 January 2000. An example of that trend was SIZO No 1 in Vladivostok, which had registered a 30% decrease in the remand prison population over a period of three years.
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The CPT welcomes the measures taken in recent years by the Russian authorities to address the problem of overcrowding, including instructions issued by the Prosecutor General’s Office, aimed at a more selective use of the preventive measure of remand in custody. Nevertheless, the information gathered by the Committee’s delegation shows that much remains to be done. In particular, overcrowding is still rampant and regime activities are underdeveloped. In this respect, the CPT reiterates the recommendations made in its previous reports (cf. paragraphs 25 and 30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50 of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the report on the 2000 visit, CPT (2001) 2).
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125. As during previous visits, many prisoners expressed scepticism about the operation of the complaints procedure. In particular, the view was expressed that it was not possible to complain in a confidential manner to an outside authority. In fact, all complaints, regardless of the addressee, were registered by staff in a special book which also contained references to the nature of the complaint. At Colony No 8, the supervising prosecutor indicated that, during his inspections, he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private “because they know that all complaints usually pass through the colony’s administration”.
In the light of the above, the CPT reiterates its recommendation that the Russian authorities review the application of complaints procedures, with a view to ensuring that they are operating effectively. If necessary, the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis.”
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VIOLATED_PARAGRAPHS: 5-3