ITEMID: 001-102393
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF JASINSKIS v. LATVIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: 5. The applicant was born in 1933 and lives in Balvi. He is the father of Mr Valdis Jasinskis (“the applicant's son”), a Latvian national who was born in 1962 and who died on 28 February 2005.
6. On 26 February 2005 the applicant's son (who had been deaf and mute since birth) and several of his friends were drinking beer in a bar in Balvi. Witness statements differ somewhat as to how much alcohol the applicant's son consumed that night. After the applicant's son's death, a forensic expert took into the account witness testimonies and used Widmark's equation to arrive at the estimate that, after finishing his last drink, the alcohol concentration in the applicant's son's blood would have been 4.52 ‰, which meant that all traces of alcohol would have left his body approximately thirty hours later. The expert, however, noted that this figure was approximate. The applicant disagreed with the estimate, noting that such a concentration of alcohol would be deadly.
7. After leaving the bar, the applicant's son and his friends walked to a nearby school where a party was taking place. In front of the school entrance M.I. – a minor – pushed the applicant's son, who fell backwards down the stairs in front of the school, hit his head against the ground and lost consciousness for several minutes. The persons present then tried to attract the attention of the security guards, who were inside the school, by knocking on the locked doors. In the process a glass pane of the entrance doors was cracked. It appears from the subsequent investigation that the glass was broken by one of the students of the school.
8. The security guards came outside and saw the applicant's son lying unconscious on the ground. They called an ambulance and the police. After the applicant's son had regained consciousness, the security guards sat him down on the stairs of the school.
9. The police arrived on the scene at 1.40 a.m. They later reported that the applicant's son had been unable to stand up on his own and had been flailing his arms. Upon their arrival the officers were informed that the applicant's son was deaf and mute and that he had fallen down the stairs. They were also told that he was probably responsible for breaking the glass of the entrance doors.
10. The policemen decided not to wait for the ambulance that had been called and took the applicant's son to the Balvi District Police station in order to initiate administrative proceedings for petty hooliganism and public drunkenness. The policemen alleged that in the car on the way to the police station the applicant's son had behaved aggressively and had been flailing his arms and kicking.
11. The record of the administrative detention of the applicant's son indicates that the reason for the detention was to “sober up” the detainee. The only injury that was noted was a graze on his face. The same record also notes that at 5.50 p.m. on the following day the applicant's son was released from detention because he had “sobered up” (but see paragraph 16 below).
12. The policemen alleged that on the premises of the police station the applicant's son had continued to behave aggressively by flailing his arms. The applicant submits that it is probable that his son was trying to communicate with the policemen by using gestures, because they had taken away the notebook he normally used to communicate with persons who did not understand sign language.
13. Shortly afterwards the ambulance crew contacted the police station. The officer on duty informed them that no medical aid was necessary, since the applicant's son was merely intoxicated. He was then placed in the sobering-up room. For a while he kept knocking on the doors and walls but stopped doing so after a while and went to sleep.
14. At 8.40 a.m. in the morning the duty officers tried to wake the applicant's son but he only opened his eyes and, according to the conclusions of the internal investigation of the police, “did not want to wake up”.
15. Approximately fourteen hours after the applicant' son had been brought to the police station (at approximately 3.30 p.m.) one of the policemen considered that he had been “sleeping for too long” and called an ambulance. The doctors apparently refused to take Valdis Jasinskis to a hospital (during the internal investigation the officers reported that the ambulance crew had indicated that he was “faking” and was healthy). The Government dispute that fact, observing that it had not been mentioned in the report on the quality of medical care provided to the applicant's son (see below, paragraph 18). Nevertheless, the fact of the ambulance crew's initial refusal is confirmed by the statements of the police officers who were present at the police station at the time, which have been recounted in several documents, such as the conclusions of the internal inquiry of 4 April 2005 (see below, paragraph 19), the report of the additional internal inquiry of 5 August 2005 (see below, paragraph 22), the 2 November 2005 decision to terminate the criminal proceedings (see below, paragraph 23) and others.
16. The applicant's son was taken to hospital only after repeated requests from his father, who had at that time been informed of his son's arrest and had arrived at the police station. From the reports of the internal investigation it appears that the transfer took place at 5.30 p.m. on 27 February 2005. Upon arrival at the hospital it was noted that the applicant's son was conscious but “non-communicative”. His condition was characterised as “serious” and he was diagnosed with severe intoxication with unknown alcohol surrogates. At 9.10 p.m. the applicant's son lost consciousness and his condition was described as “very serious”. At 11.30 p.m. the medical report was updated to note that the presence of an intracranial haematoma could not be excluded but that because of his condition the patient could not be transported for a CT scan (which was only available at a hospital in Rēzekne, some eighty kilometres from Balvi). The applicant's son died at 2.00 a.m. on 28 February 2005.
17. A post-mortem examination of the applicant's son's body was carried out on 28 February 2005. It disclosed fractures of the frontal, parietal and occipital bones of the applicant's son's cranium, oedema in the brain as well as multiple other injuries to the head and brain. The expert concluded that those injuries had been the cause of death. It was further established that neither the blood nor the urine of the applicant's son contained any traces of alcohol.
18. On 9 May 2005 an expert of the Inspectorate of Quality Control for Medical Care and Working Capability (“MADEKKI”) issued a report on the quality of medical aid provided to the applicant's son before his death. The report noted several shortcomings in the treatment of the applicant's son at the police station. In particular, it was noted that no information was available concerning the health condition of the applicant's son during the time spent in the police station or when he was placed in the sobering-up room. It was further concluded that the ambulance had been called to the police station belatedly. The final conclusion of the report was that the death of the applicant's son was not attributable to any lack of professionalism on behalf of the doctor who had treated him in the hospital but rather to the severity of his injuries.
19. After the death of the applicant's son the Balvi District Police Department launched an internal inquiry. On 4 April 2005 the final report of the inquiry was approved by the head of that department. The report concluded that the policemen present at the police station during the night in question had acted in accordance with the internal guidelines and the legislation governing police work. The report further referred to an article in the local newspaper in which a surgeon had expressed the opinion that injuries such as the ones sustained by the applicant's son were difficult to detect, in particular if the injured person was intoxicated. The final conclusion was that the staff of the department had committed no infractions.
20. On 26 May 2005 an investigator of the Balvi District Police Department adopted a decision to terminate the criminal proceedings against M.I., which had been initiated on 2 March 2005. In this decision several witness testimonies were recounted and some of them seemed to indicate that the security guards who had been on duty during the party at the school had hit the applicant's son in the head with a rubber truncheon. It was also found that upon the applicant's son's arrival at the police station the policemen had noted that he did not have any visible injuries and that he was heavily intoxicated. The decision further remarked that at 5.30 p.m. at the police station a doctor had observed that the applicant's son was conscious and had no traces of having been hit on his body or head. There was some dried blood in one of his nostrils. However, considering that the applicant's son was deaf and mute and thus unable to communicate orally any complaints about his health, he had been diagnosed as being intoxicated with alcohol surrogates and taken to the Balvi hospital. It was further noted that the internal inquiry of the Balvi District Police Department had established that the policemen in charge had not committed any offence. Lastly it was established that M.I.'s actions did not constitute corpus delicti. Therefore, the criminal proceedings concerning the death of the applicant's son were terminated.
21. On 17 June 2005 the Balvi District Public Prosecutor's Office decided to quash the decision of 26 May and remitted the case for additional investigation. Among other things, the public prosecutor indicated that it was necessary to determine whether it would have been possible to correctly diagnose the applicant's son's injuries had he been taken to hospital earlier than he was, whether the police had adequately taken into account the fact that he was deaf and mute, and whether there were any visible external signs of the injuries that eventually caused his death.
22. On 5 August 2005 the head of the Balvi District Police Department approved a report drawn up in the context of an additional internal inquiry that had been prompted by the decision of 17 June. Once again no wrongdoings on the part of the police officers were established. In particular, it was noted that even though an internal police instruction concerning sobering-up rooms prohibited the placement therein of persons with visible physical injuries, the applicant's son did not fall within that category. The report confirmed that his injuries had not been obvious, in that regard referring to the visit of the ambulance crew to the police station at 3.50 p.m. on 27 February 2005, during which no injuries had been noted.
23. On 2 November 2005 the Balvi District Police Department terminated the criminal proceedings for the second time. The decision pointed out, inter alia, that even if the applicant's son had been taken to hospital sooner, it was not certain that he would have received the correct diagnosis due to the absence of a CT scanner and a specialist neurologist at Balvi hospital. It was also established that since the applicant's son's injuries were not visible, the police officers in question had not breached the law.
24. On 8 November 2005 the Balvi District Public Prosecutor's Office decided to quash the decision of 2 November 2005 on the ground that the evidence had not been examined.
25. On 10 November 2005 the Balvi District Police Department decided to terminate the criminal proceedings. The text of the decision was practically identical to that of 2 November 2005.
26. As of 19 September 2006 the applicant was represented by a lawyer. Pursuant to a request by the applicant's representative, on 1 November 2006 a prosecutor of the Office of the Prosecutor General quashed the decision of 10 November 2005 and sent the case to the Bureau of Internal Security of the State Police (Valsts policijas Iekšējās drošības birojs) for continued investigation. The decision of 19 September focused, inter alia, on the actions of the policemen before and after the applicant's son's arrest as well as on the legality and permissibility of his detention as such. It was suggested that the question of the potential liability of the policemen of the Balvi District Police Department for criminal inaction (section 319(2) of the Criminal Law, see below, paragraph 34) needed to be resolved.
27. On 18 January 2007 that Bureau decided to split the criminal proceedings into two parts, one regarding the actions of M.I. and the other concerning the inaction of the Balvi District policemen. The first part was transferred back to the Balvi District Police Department and the second remained with the Bureau of Internal Security.
28. On 7 March 2007 the Balvi District Police Department decided to terminate the criminal proceedings against M.I. due to lack of corpus delicti. The applicant did not appeal against that decision.
29. On 23 August 2007 the Bureau of Internal Security of the State Police decided to terminate the criminal proceedings against the officers of the Balvi District Police Department for want of corpus delicti. During the course of the investigation statements were taken from all five officers who had been present at the police station during the night of the applicant's son's arrest and the following day. The officers who had arrested the applicant's son confirmed that the security guards at the school had informed them that he had fallen backwards down the stairs but they had not waited for the ambulance that had been called because he had behaved in a way that was typical of an intoxicated person and had had no visible injuries. The officers who had been on duty on 27 February 2005 pointed out that they had tried to wake up the applicant's son on several occasions without success, but that after they had eventually succeeded, the applicant's son had gotten up without any help and walked to the reception area of the police station where he had been seen by a doctor who had arrived in an ambulance. The doctor had then allegedly proclaimed that the applicant's son was “faking” and was still drunk. He had only been taken to hospital after the applicant had persuaded the doctor to do so. The decision also pointed out that it was “obvious” that a mistake had been made by the doctors, who had failed to correctly diagnose the applicant's son's injuries before his death.
30. On 26 September 2007 a public prosecutor of the Balvi District Public Prosecutor's Office dismissed the applicant's representative's appeal against the decision of 23 August 2007.
31. On 24 October 2007 a senior prosecutor of the same office rejected the applicant's representative's appeal against the decision of 26 September 2007. In addition to upholding the conclusions of the decision of 23 August 2007, it was pointed out that no causal link existed between the decision of the officers present at the scene to transport the applicant's son to the police station without waiting for the ambulance and the applicant's son's death, since the death had occurred despite the fact that the applicant's son had eventually been placed under medical supervision.
32. In a final decision of 31 January 2008 a senior prosecutor of the Public Prosecutor's Office attached to the Latgale Regional Court dismissed the applicant's complaint about the decision of 24 October 2007.
33. The fifth paragraph of section 5 of the Law on Police provides one of the basic principles for organising the work of the police is safeguarding the health of persons in police custody, which includes carrying out emergency measures to provide medical assistance. The duty of police officers to provide medical and other assistance to injured persons is repeated in section 10(3) of the Law on Police. That section specifically provides for a duty to provide assistance to anyone, even persons who, because of their state of inebriation, have lost the ability to move or who pose a danger to themselves or others.
34. Section 319(2) of the Criminal Law provides that state officials' can be held criminally liable for intentional or negligent failure to perform acts which are compulsory by law or are part of the duties assigned to the official in question. In order to engage criminal responsibility such dereliction of duties has to have caused substantial harm to the state or to the rights and interests of individuals.
35. On 1 February 2004 the Law of Administrative Procedure entered into force. That law, among many other things, provides for a mechanism for complaining about the legality of de facto actions of state institutions to administrative courts.
36. The Law on Compensation for Damage Caused by State Institutions came into force on 1 July 2005. It provides for practical implementation of the rights guaranteed by the Constitution and the Law of Administrative Procedure to receive compensation for damage caused by unlawful administrative acts issued by state institutions or for unlawful de facto actions of those institutions. Pursuant to section 14(3) of that law, the maximum compensation for non-pecuniary damage that can be awarded is 20,000 Latvian lati (LVL) approximately 28,200 euros (EUR).
37. As to the consequences of awarding compensation, section 32 of the Law on Compensation for Damage Caused by State Institutions provides as follows:
“1) In order to establish the circumstances that have caused or fostered the infliction of the damage to be compensated, an authority hierarchically superior to the one which has caused the damage shall evaluate each individual case when damage has to be compensated pursuant to a decision of the authority or a court.
2) After evaluating all the circumstances pertinent to the compensation for damage, a hierarchically superior authority shall adopt a decision concerning forwarding the materials in the case file to a competent authority, which shall decide whether the official responsible for causing the damage ought to be held disciplinarily, administratively or criminally responsible.”
38. Section 22 of the Law of Criminal Procedure contains a general principle according to which that Law provides for procedural opportunities for persons who have suffered harm as a result of criminal acts to request compensation for pecuniary and non-pecuniary damage. The specifics of the implementation of that principle are contained in various sections throughout the Law.
39. The general standards contained in the Second General Report [CPT/Inf (92) 3] by the Council of Europe's Committee for the Prevention of Torture (CPT) provide that persons detained by the police should have the right of access to a doctor, including the right to be examined, if the person detained so wishes, by a doctor of his own choice (in addition to any medical examination carried out by a doctor called by the police authorities) (§ 36). Persons taken into police custody should be expressly informed without delay of the above rights (§ 37). The results of the medical examination and relevant statements by the detainee and the doctor's conclusions should be formally recorded by the doctor and made available to the detainee and his lawyer (§ 38).
40. Article 14(2) of the United Nations Convention on the Rights of Persons with Disabilities (“the CRPD”), which entered into force on 3 May 2008, was signed by Latvia on 18 July 2008 and ratified on 1 March 2010, provides as follows:
“States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by provision of reasonable accommodation.”
41. The Interim Report of the Special Rapporteur on the question of torture and other cruel, inhuman or degrading treatment or punishment, submitted on 28 July 2008 by the Office of the United Nations High Commissioner for Human Rights to the 63rd session of the General Assembly of the UN (A/63/175) in its paragraphs 50 and 54 provides as follows:
“Persons with disabilities often find themselves in ... situations [of powerlessness], for instance when they are deprived of their liberty in prisons or other places ... In a given context, the particular disability of an individual may render him or her more likely to be in a dependant situation and make him or her an easier target of abuse ...”
and
“The Special Rapporteur notes that under article 14, paragraph 2, of the [Convention on the Rights of Persons with Disabilities], States have the obligation to ensure that persons deprived of their liberty are entitled to 'provision of reasonable accommodation'. This implies an obligation to make appropriate modifications in the procedures and physical facilities of detention centres ... to ensure that persons with disabilities enjoy the same rights and fundamental freedoms as others, when such adjustments do not impose disproportionate or undue burden. The denial or lack of reasonable accommodation for persons with disabilities may create detention ... conditions that amount to ill-treatment and torture.”
VIOLATED_ARTICLES: 2


ITEMID: 001-4559
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: DEMIR v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is a Turkish national national, born in 1971 and resident in Kuopio, Finland. He is represented before the Court by Mr Pertti Suonio, a lawyer practising in Kuopio.
A.
The applicant arrived in Finland on 12 August 1989 with a visa at the age of 17. He married a Finnish citizen on 20 December 1989. The applicant was refused a residence and work permit on 2 January 1990. He left Finland but returned again on 1 March 1990 as he had been granted a residence and work permit in the Finnish Embassy of Ankara on the basis of his marriage. The applicant was granted a further residence and work permit later on. The applicant and his first Finnish wife divorced on 27 June 1995.
The applicant has committed several crimes during his stay in Finland. He has been sentenced to several suspended prison sentences and to community service. He has also been ordered to pay fines. According to the applicant he has not committed any crimes since 23 May 1997.
On 5 June 1997 local police requested the Directorate of Immigration (ulkomaalaisvirasto, utlänningsverket) to expel the applicant. The Directorate of Immigration ordered on 11 March 1998 that the applicant be expelled to Turkey as he had no family ties in Finland and as he had repeatedly committed crimes for which the maximum penalty was more than one year imprisonment. The applicant was also forbidden by the decision of the Directorate of Immigration to enter Finland, Sweden, Norway, Iceland or Denmark for five years. The applicant appealed against the decision to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), stating that there were no legal reasons for his expulsion as the crimes he had committed were not serious enough to justify such an expulsion and as his then girlfriend, T., was pregnant. The applicant also alleged that he would be convicted of desertion and sentenced to a lengthy prison sentence in Turkey, if expelled.
In the meantime, on 10 September 1998, the applicant married T., who is a Finnish citizen, and who was pregnant by the applicant. The applicant’s daughter was born on 1 November 1998.
On 8 December 1998 the Supreme Administrative Court refused the applicant’s appeal. The Supreme Administrative Court found, taking into account the applicant’s numerous convictions, that the applicant’s expulsion was justified and lawful. It was also noted by the court that the applicant had not submitted any evidence concerning the alleged inhuman treatment in Turkey, if expelled. The Supreme Administrative Court further stated that Article 8 of the Convention does not guarantee to the spouse of a citizen a general right to be granted a residence permit. Taking into account, however, that the applicant’s family lives in Finland, the Supreme Administrative Court reduced the period of the prohibition to enter Finland or other Nordic countries to two years from the original five years’ prohibition.

B. Relevant domestic law and practice
According to Section 40, subsection 1.3, of the Aliens Act (ulkomaalaislaki, utlänningslag 378/1991), an alien can be expelled from Finland, inter alia, if he or she has committed an offence for which the minimum penalty is more than one year’s imprisonment, or if he or she has repeatedly committed criminal offences.
According to Section 41 of the Aliens Act, the circumstances (such as the length of the alien’s stay in Finland, the existence of a parent-child relationship, family and other ties to Finland, or, in connection with Section 40, subsection 1.3, of the Act, the nature of the offence or offences committed) have to be taken into account as a whole when an expulsion is considered. No one may be expelled to an area where he or she might risk being subjected to inhuman treatment or persecution, nor to another area from which he or she might be sent to such an area.
According to Section 42 of the Aliens Act, the expulsion is decided by the Directorate of Immigration if so requested by police. The Directorate of Immigration may in some exceptional circumstances decide an expulsion even if the measure is not requested by the police. The alien concerned must also be given an opportunity to be heard in the matter.
According to Section 43 of the Aliens Act, an alien may be prohibited from entering the country for a maximum of five years or for an indefinite period. The prohibition may be cancelled permanently or for the time being, because of a change in circumstances or important personal reasons. Such a cancellation is decided by the Directorate of Immigration.
According to Section 58 of the Aliens Act, decisions of the Directorate of Immigration concerning, inter alia, expulsion orders, may be appealed within 14 days before the Supreme Administrative Court.


ITEMID: 001-84361
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF ŁASZKIEWICZ v. POLAND
IMPORTANCE: 3
CONCLUSION: No violation of Art. 5-3;Violation of Art. 5-4;Non-pecuniary damage - finding of violation sufficient
JUDGES: Ján Šikuta;Josep Casadevall;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi
TEXT: 5. The applicant was born in 1973 and lives in Będzin.
6. On 30 October 2000 the applicant was arrested by the customs authorities in Malmö after 5 kilograms of heroin had been found in her car. On 10 April 2001 the Malmö District Court convicted the applicant of drug-trafficking and sentenced her to 20 months' imprisonment. On 5 January 2002 she was released from a prison in Sweden.
7. On 15 December 2000 the Katowice Regional Prosecutor instituted an investigation concerning drug-trafficking from Poland to Sweden by the applicant and other persons, acting in connection with a request for legal assistance submitted by the Swedish and Norwegian prosecution authorities.
8. On 16 October 2002 the applicant was arrested in Katowice. On the following day the Katowice Regional Prosecutor served on her the statement of charges. The applicant was charged with supplying significant amounts of heroin to the market between February 2000 and October 2000 in Poland, Czech Republic, Austria, Germany, Switzerland, Denmark, Sweden and Norway. She was also charged with acting in an organised criminal group of drug traffickers. During her questioning by the prosecutor, she confessed that she had attempted to smuggle heroin to Sweden and responded to all questions put by the prosecutor.
9. On 18 October 2002 the Katowice District Court remanded the applicant in custody until 16 January 2003 on reasonable suspicion that she had committed the offences referred to above. It held that there was a risk that the applicant would obstruct the proceedings by influencing witnesses since she had not confessed. The court also took into account that the applicant had been charged with acting in an organised criminal gang and had regard to the severity of the anticipated penalty.
10. On 8 January 2003 the Katowice District Court prolonged the applicant's detention until 31 March 2003. It found that there was a reasonable risk that the applicant might tamper with evidence, having regard to the number of suspects involved. It also relied on the severity of the anticipated penalty, given the organised character of the criminal activities, their scale and the amount of drugs involved. Lastly, it referred to the need to continue the process of gathering evidence.
11. In her appeal the applicant submitted that her continued detention was not necessary to secure the proper conduct of the investigation. She argued that she had already given evidence and that she had had no contacts with the witnesses or other suspects, so the risk of tampering with evidence did not exist in her case. Her appeal was dismissed on 5 February 2003.
12. On 19 March 2003 the Katowice Regional Prosecutor lodged with the Katowice District Court a motion for the prolongation of the applicant's detention until 30 June 2003.
13. On 25 March 2003 the Katowice District Court notified the applicant's counsel of the hearing scheduled for 26 March 2003 at which the prosecution's motion would be examined.
14. On 26 March 2003 the Katowice District Court held a hearing (posiedzenie) on the prolongation of the applicant's detention.
15. According to the Government, before the hearing had begun the applicant's counsel consulted the prosecution's motion without authorisation from the judge.
16. During the hearing the applicant's counsel applied for access to the investigation file. The Regional Prosecutor stated that his motion for prolongation of the detention constituted an integral part of the file and that access to it required his permission. The prosecutor also stated that the counsel had not applied earlier for leave to consult the file. Counsel unsuccessfully requested the court to adjourn the hearing until she had been granted access to the file. The District Court, having regard to Article 156 § 5 of the Code of Criminal Procedure, held that it could not decide on the counsel's request for access to the file since such decision was within the exclusive competence of the authority conducting the investigation. The judge informed both parties that the counsel's request would be transmitted without undue delay to the Regional Prosecutor for examination.
17. The applicant's counsel requested the court to dismiss the motion for prolongation because the prosecutor had simply stated that he maintained it without giving specific reasons for it.
18. The Katowice District Court granted the prosecution's motion and extended the applicant's detention until 30 June 2003. In the reasons for its decision, the court noted that the applicant had pleaded not guilty and had denied that she had taken part in an organised criminal group trafficking in heroin. Having regard to the applicant's statements and the number of suspects involved, the court considered that there was a reasonable risk that the applicant might tamper with evidence. In this connection, it had regard to the fact that several other potential suspects were still being sought.
19. The applicant's counsel appealed. She alleged, relying on Article 5 § 4 of the Convention, that the District Court had violated the principle of adversarial proceedings. In this connection, she submitted that the Regional Prosecutor's motion for prolongation of detention had been received at the District Court on 19 March 2003. However, it was only in the afternoon of 25 March 2003 that the applicant's counsel had been notified by telephone that the court's hearing would be held on 26 March 2003 at 8.40 a.m. Having further regard to the fact that counsel had not been served with a copy of the prosecutor's motion, she argued that she could not properly defend the interests of the applicant. Counsel further submitted that the prosecutor had not read out the grounds of his application during the hearing.
20. On 14 May 2003 the Katowice Regional Court dismissed the applicant's appeal. It noted that the applicant had been charged with participation in an organised criminal group which operated in a number of European countries. In this context, it considered that there was a risk that the applicant might obstruct the proceedings if released. The Regional Court further relied on the severity of the anticipated penalty and emphasised the danger to society posed by the drug trafficking. Furthermore, the Regional Court dismissed the applicant's allegations regarding access to the file and the belated summoning of her lawyer to the hearing. It held, in so far as relevant:
“The limitation on the lawyer's access to the investigation file results from the binding procedural rules.
The court's hearing on the matter of detention is ancillary to the main proceedings and thus notification of this hearing can be effected shortly before the date for which it has been fixed. The lawyer was notified of the hearing at 1 p.m. on the day preceding the hearing. Thus, it cannot be said that the court was at fault in this respect.”
21. It appears that the request of the applicant's counsel for leave to consult the file made during the hearing held on 26 March 2003 was received by the Katowice Regional Prosecutor only on 16 May 2003. On 27 May 2003 the Katowice Regional Prosecutor refused that request, invoking the interests of the investigation (ważny interes postępowania). The prosecutor observed that the investigation was at its early stages and still in progress. Furthermore, he found that for reasons which had not been attributable to the prosecution a number of important witnesses had not yet been heard. The applicant appealed against that decision, relying on the principle of equality of arms. On 1 July 2003 the Katowice Appellate Prosecutor upheld the refusal of 27 May 2003. He observed that the restrictions on access to the file had been temporary and justified by the interests of the investigation. In the latter respect, the Appellate Prosecutor referred to the organised character of the criminal activities at issue and the number of suspects involved. He considered that in those circumstances, the interests of the investigation weighed against the applicant's right to be acquainted with all the evidence obtained so far in the case.
22. On 16 June 2003 the Regional Prosecutor lodged with the Katowice District Court a motion for prolongation of the applicant's detention until 30 September 2003.
23. On 23 June 2003 the applicant's counsel was informed about the hearing scheduled for 25 June 2003 regarding prolongation of detention. On 24 June 2003 the applicant's counsel requested the Katowice District Court to adjourn the hearing until she had received a copy of the prosecutor's motion. The court refused that request.
24. On 24 June 2003 the applicant's counsel requested the Regional Prosecutor to provide her with a copy of his motion for the prolongation of the applicant's detention with a view to preparing for the court's hearing.
25. On 25 June 2003 the Katowice District Court granted the prosecution's motion and ordered that the applicant be held in custody until 30 September 2003. It relied on the same grounds as in its earlier decisions. During the hearing the Regional Prosecutor indicated that his motion for prolongation referred to, inter alia, the need to question one person whose details could not be disclosed. The counsel stated that the prosecutor simply referred to the relevant provisions of the Code of Criminal Procedure but did not provide any specific grounds justifying the prolongation of the applicant's detention.
26. On 26 June 2003 the Katowice Regional Prosecutor refused to grant the applicant's counsel access to the file following her application of 24 June 2003, having regard to the interests of the investigation. He considered that the lawyer's request was tantamount to a request for access to the entire contents of the investigation file. Consequently, it refused the request on the same grounds as in the decision given on 27 May 2003. The applicant appealed. On 8 July 2003 the Appellate Prosecutor upheld the refusal on the same grounds as in his earlier decision.
27. The applicant's counsel appealed against the decision of 25 June 2003 prolonging the applicant's detention. She argued that she had not been provided with a copy of the prosecution's motion and that she had not been notified in good time of the hearing. She submitted that consequently she had been prevented from properly discharging her obligations as the applicant's counsel.
28. On 9 July 2003 the Katowice Regional Court dismissed the appeal. As regards the refusal to provide the applicant with a copy of the prosecution's application for prolongation of detention, the Regional Court found that the prosecutor was the only authority competent to decide on the issue of access to the file at the investigation stage and that any decision in this respect might be reviewed by a higher prosecutor. In respect of the notification of the hearing to the lawyer, the court found the applicant's complaint unfounded. It considered that in cases of detention, such notification could be made by telephone.
29. On 15 September 2003 the Regional Prosecutor lodged with the Katowice District Court a motion for prolongation of the applicant's detention until 16 October 2003.
30. On 16 September 2003 the applicant's counsel was notified by telephone about the hearing scheduled for 23 September 2003. On 18 September counsel unsuccessfully requested the District Court to adjourn the hearing since she had not been provided with a copy of the prosecutor's application for prolongation of detention and thus could not prepare for the hearing fixed for 23 September 2003. On the same date the counsel applied to the prosecutor for leave to obtain a copy of the application for prolongation of the applicant's detention. On 19 September 2003 the Katowice Regional Prosecutor refused that request, having regard to the interests of the investigation and to the fact that it was still in progress.
31. On 23 September 2003 the Katowice District Court held a hearing. It granted the prosecution's motion and ordered that the applicant be remanded in custody until 16 October 2003. It had regard to the reasonable suspicion that the applicant had committed the offences with which she had been charged. It relied in this respect on the evidence gathered to date, including evidence given by the applicant and her co-suspect, and the documentary evidence obtained from abroad. It also considered that there was a reasonable risk that the applicant might tamper with evidence, given that some of the co-suspects were still at large and that the case concerned an organised criminal group. It also had regard to the need to take further measures in the investigation as indicated in the prosecution's application for prolongation of detention.
32. On 16 October 2003 the statutory time-limit of one year for the applicant's detention pending the investigation expired. Consequently, any further prolongation of the applicant's detention was to be decided by the Court of Appeal.
33. On an unspecified date the Katowice Appellate Prosecutor lodged with the Katowice Court of Appeal a motion for prolongation of the applicant's detention until 31 January 2004. On 3 October 2003 the Court of Appeal notified the counsel about the hearing scheduled for 8 October 2003.
34. On 8 October 2003 the Katowice Court of Appeal held a hearing. It appears that during the hearing the Katowice Appellate Prosecutor agreed to provide counsel with a copy of his motion for prolongation of the detention. The Court of Appeal granted the prosecution's motion and extended the applicant's detention until 31 January 2004. It noted that the investigation in the present case, which concerned trafficking in substantial amounts of drugs in a number of European countries, had been very time-consuming. It was further complicated by the need to obtain evidence from abroad and to hold a confrontation between the suspects and a certain H.S. who had been recently transferred to Poland from Norway to serve his sentence. The court noted that another important suspect M.O., who had lived abroad, had been arrested in September 2003. It thus considered that the investigation was being conducted without undue delays, and that the extension of the detention pending the investigation beyond the statutory time-limit was due to the exceptional circumstances. The Court of Appeal also had regard to the scale of the alleged criminal activities and the severity of the anticipated penalty. The applicant appealed against that decision.
35. On 5 November 2003 the Court of Appeal upheld the impugned decision. It referred, inter alia, to the presumption established by Article 258 § 2 of the Code of Criminal Procedure to the effect that the likelihood of a severe penalty being imposed on the applicant might induce her to obstruct the proceedings. In view of the said presumption, the Court of Appeal underlined that it was not required to consider the imposition of other preventive measures.
36. On 21 January 2004 the applicant's counsel requested the Regional Prosecutor to release the applicant subject to certain guarantees.
37. On 27 January 2004 the Katowice Regional Prosecutor ordered the applicant's release, having obtained a bail deposit and an additional personal guarantee from a local councillor that the applicant would not obstruct the proceedings. The applicant's passport was seized and she was ordered not to leave the country. The prosecutor noted that despite the fact that more than 15 months had elapsed since the applicant's arrest, the investigation had not been concluded. He observed that the prosecution was endeavouring to obtain evidence from abroad, however it could not be predicted when that evidence would be made available. The prosecutor considered that the applicant should not be prejudiced by those delays and that other preventive measures would be sufficient to secure the proper conduct of the proceedings.
38. On 19 May 2004 the applicant's lawyer was informed by the Katowice Police that she could apply for access to the investigation file pursuant to Article 321 of the Code of Criminal Procedure as the investigation was coming to an end. On 7 June 2004 the applicant's counsel was allowed to consult the file.
39. On 29 June 2004 the prosecution filed a bill of indictment with the Katowice District Court. The applicant was charged with drug-trafficking and acting in an organised criminal group.
40. On 20 June 2005 the applicant made a plea and requested the trial court to sentence her to 18 months' imprisonment and a fine. The prosecution did not object. On 27 June 2005 the Katowice District Court convicted the applicant as charged and sentenced her to 18 months' imprisonment and a fine.
41. The applicant appealed. She argued that the trial court had not taken into account her conviction in Sweden. The Katowice Regional Court dismissed her appeal on 1 March 2006.
42. The relevant domestic law and practice regarding the imposition of detention on remand (tymczasowe aresztowanie), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) at the material time are stated in the Court's judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
43. Access to the file in the course of investigation is governed by Article 156 § 5 of the Code of Criminal Procedure of 1997, which provides, in so far as relevant, that leave to consult the file and to make copies of the documents in the file is granted only with the consent of the authority conducting the investigation.
44. On 19 September 2007 the Ombudsman lodged an application with the Constitutional Court seeking constitutional review of Article 156 § 5 of the Code of Criminal Procedure.
45. Article 79 § 1 of the Constitution provides as follows:
“In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.”
Article 190 of the Constitution, insofar as relevant, provides as follows:
“1. Judgments of the Constitutional Court shall be universally binding and final.
2. Judgments of the Constitutional Court, ... shall be published without delay.
3. A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such time-limit may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act. ...
4. A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... was given, shall be a basis for re-opening of the proceedings, or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-70875
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF SALIBA v. MALTA
IMPORTANCE: 3
CONCLUSION: No violation of P1-1
JUDGES: Nicolas Bratza
TEXT: 7. The applicant was born in 1941 and lives in Gozo (Malta).
8. In 1983 and 1985 the applicant acquired ownership of a plot of land in Gozo, on which a storage facility had been built, and the utile dominium of another plot of land. The applicant alleged that his lands are located far from inhabited areas and that it would have been impossible to cultivate them without having a storage facility for the necessary agricultural equipment and machinery.
9. In a summons of 7 January 1985, the police charged the applicant with having carried out construction works on his land without having obtained the necessary permits. He was therefore arraigned before the Criminal Court of Judicial Police. The prosecution requested that the punishment established by law be applied and the applicant ordered to demolish the storage facility.
10. In a judgment of 18 July 1988, the Criminal Court of Judicial Police acquitted the applicant. No penalty was imposed on him, nor was he ordered to demolish the storage facility in question.
11. On 26 August 1988 the police issued another summons against the applicant for having carried out unauthorised building works.
12. In a judgment of 21 June 1989, the Criminal Court of Judicial Police found the applicant guilty of the charge brought against him and ordered him to pay a fine of 50 Maltese Liri (Lm). It also gave the applicant a month within which to comply with the law, a penalty of Lm 25 being imposed for each day of default. Under this judgment, the applicant was obliged to demolish the storage facility.
13. The applicant appealed against this decision, pleading that he had been judged twice for the same facts and proclaiming his innocence.
14. In a judgment of 15 October 1992, the Court of Criminal Appeal allowed the applicant’s plea of ne bis in idem and revoked the judgment of 21 June 1989. However, the court observed that the evidence before it demonstrated that the applicant’s building had been constructed without the required permit. Therefore, it ordered that the building be demolished by the police at its expense. This decision was adopted on the basis of Article 17(9) of Chapter 10 of the Laws of Malta (Code of Police Laws), a provision according to which an order to demolish may be imposed “even where the person charged is acquitted of the charge and the court is satisfied that the building to which the charge refers has been erected in contravention of this section”. The Court of Criminal Appeal observed that the aim of the said article was “to do away with the existing state of illegality even if the accused [was] acquitted”.
15. Invoking Article 7 of the Convention and Article 1 of Protocol No. 1, the applicant introduced a constitutional application before the Civil Court (First Hall). He observed that his property had to be demolished even though he had been found not guilty of the accusations brought against him, and underlined that this became possible only after 6 June 1988, when Article 17(9) of Chapter 10 of the Laws of Malta had been amended. Before that date, no order for demolition could have been imposed on an acquitted person. As the criminal offence had allegedly been committed before that date, the punishment imposed could not be considered foreseeable.
16. In a judgment of 9 October 1998, the Civil Court rejected the applicant’s claim.
17. It observed that the applicant had not been deprived of his property, the measure complained of being aimed rather at regulating and controlling the use of property. The applicant had not contested the right of the State to control the building development of the country and to submit building works to a system of permits and authorisations. His allegations were confined to arguing that imposing a demolition order on an owner who had been found not guilty had breached the fair balance which should exist between the general interest of the community and the protection of the rights of the individual. However, the Civil Court could not subscribe to this argument. It noted that if the State had a legitimate interest in not having any constructions on a plot of land, the demolition of an unlawful structure only restored the status quo ante and was therefore a measure proportionate to the aim sought to be achieved. The criminal liability of the owner of the land could not be considered a pre-requisite for adopting such measure.
18. As far as Article 7 of the Convention was concerned, the Civil Court observed that in a judgment of 6 December 1994, given in the case of the Police v. Mario Bezzina, the Criminal Court had examined the nature of a demolition order and concluded that it constituted a punishment. However, the Civil Court could not share this opinion. In fact, a “punishment” was not intended, as a civil remedy, to restore the status quo ante, but to place the author of the offence, by means of a fine or a term of imprisonment, in a worse position than the one he was in when he committed the criminal act. As the demolition order was intended only to prevent the author of the offence from gaining an unlawful advantage, it was not dependent on a finding of guilt and could not be considered a penalty within the meaning of Article 7 of the Convention.
19. The applicant appealed to the Constitutional Court.
20. In a judgment of 20 December 2000, the Constitutional Court, considering that the Civil Court had correctly enunciated the principles applicable in the case at issue, rejected the applicant’s appeal. It recalled that it was not contested that the building in question had been constructed without a permit and that it was still not covered by the required permit. It was therefore abusive and illegal and the State had clearly a right to remove it. The Constitutional Court also noted that the Court of Criminal Appeal had found that a criminal act had been committed, even if it could not attribute that act to the applicant. Independently of who was guilty and who had breached the law, the judicial organs should have intervened in order to re-establish the rule of law. The only way to do this was to order the demolition of the unlawfully constructed building.
21. Before the adoption of the amendments which entered into force on 6 June 1988, Article 17(2) and (3) of Chapter 10 of the Laws of Malta (Code of Police Laws) read as follows:
“(2) Any person, who does or causes or allows to be done anything for the doing of which a permit is required ... when there is not such permit ... shall be guilty of an offence and shall be liable on conviction to a fine (multa) of not less than fifty liri and not more than one hundred liri.
(3) The court, besides awarding the punishment referred to in the last preceding subsection, shall order the offender to remove the causes of the offence and to undo anything which was done without a permit ...”.
22. Article 11(2) of Act X of 1988 amended this provision by adding a subsection (9), which reads as follows:
“(9) The provisions of subsections (3), (4), (5), (6) and (8) of section 321 of this code shall apply in the case of any offence under subsection (2) of this section even where the person charged is acquitted of the charge and the court is satisfied that the building to which the charge refers has been erected in contravention of this section”.
Section 321 of the Code of Police Laws concerns the domestic court’s power to order the offender “to abate the nuisance arising from the contravention”.


ITEMID: 001-103078
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF KRIVOSHAPKIN v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of Art. 6-1 and 6-3-d
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 5. The applicant was born in 1970 and lives in Volgograd.
6. On 21 October 1999 he was arrested on suspicion of having committed several robberies.
7. On 10 November 1999 the case against him and three other accused was submitted for trial to the Svetloyarskiy District Court of Volgograd.
8. On 13 March 2000 the District Court convicted the applicant of theft and several counts of aggravated robbery. On 15 August 2000 the Volgograd Regional Court quashed his conviction on appeal and remitted the case for a fresh examination.
9. A new conviction was handed down on 23 March 2001. It was upheld on appeal on 9 October 2001 but was set aside on 7 December 2001 by the Presidium of the Volgograd Regional Court by way of supervisory review proceedings. The case was then sent for a new trial to the Krasnoarmeyskiy District Court of the Volgograd Region.
10. On 21 May 2002 the District Court, composed of judge S., as president, and two lay assessors, held the first hearing. The applicant and two of his co-defendants appeared before the court. At the beginning of the hearing, it was found that all victims and certain witnesses had failed to appear. Messrs. P. and R., victims in the case, did not appear because they lived far from Volgograd. The summons which had been sent to Mr M.Kh., a victim, had not been delivered as he had moved house. Mr M.M., also a victim in the case, was on a business trip and could not attend. Mr V., the fifth victim, and the witnesses defaulted for various reasons. The prosecutor did not appear either. Though all defendants protested against the continuation of the hearing in the absence of the prosecutor, the victims and the witnesses, the court decided to proceed with the trial. The presiding judge read out the bill of indictment and questioned the defendants who all protested their innocence.
11. On the following day, 22 May 2002, the fifth victim and several witnesses appeared in court. The prosecutor was not present. The presiding judge again questioned the defendants, examined the victim and witnesses and studied documents in the file. The applicant asked the court to summon and examine attesting witnesses who had been present when the victims, in particular Messrs. M.Kh. and M.M., had identified him on a photograph. The court refused. It then decided to read out the written depositions to the investigative authorities by defaulting witnesses and by Messrs. R., M.Kh., M.M. and P. The last three were direct eyewitnesses of the applicant's actions. The defendants and counsel unsuccessfully objected to doing so and insisted that all the victims and witnesses should be examined in open court. After the written depositions had been read out, the applicant expressed doubts as to the credibility of some of them.
12. On 23 May 2002 the trial court continued reading out of the depositions by the defaulting witnesses and then proceeded to hear the final pleadings for the defence. The defendants and counsel objected to the concluding of the judicial inquiry but their objection was dismissed.
13. By a judgment of the same date, the District Court convicted the applicant of theft and several counts of aggravated robbery and sentenced him to nine years' imprisonment in a high-security colony. The judgment was based to a significant extent on the written depositions by victims and the report on the identification of the applicant from a photograph by Messrs. M.Kh. and M.M. The court found that the statements made by the four defaulted victims during the pre-trial investigation “confirmed the guilt of all the defendants”. As to the testimonies by the fifth victim and by the appeared witnesses, they concerned circumstances unrelated to the authorship of the incriminated offences, the defendants' alibi and their alleged ill-treatment by the police.
14. The applicant lodged an appeal. He submitted in particular that the trial court in the prosecutor's absence had assumed the prosecutorial function. He also complained that the court had not examined the victims and witnesses whose testimonies had been of significant importance for the determination of his case.
15. On 23 July 2002 the Volgograd Regional Court held an open hearing. The prosecutor did not participate. The Regional Court dismissed the applicant's appeal and upheld his conviction and sentence in their entirety. It endorsed in a summary fashion the findings of the District Court and made no comment in respect of the applicant's complaints about the prosecutor's absence from the trial and the alleged failure of the trial court to examine the key witnesses.
16. During the preparation of a case for an examination a judge had to decide whether a state prosecutor should participate in the trial. If the judge found that the prosecutor's participation was necessary, his decision was binding on the prosecutor. If the latter informed the court, when submitting the case for trial, of his wish to sustain the charges in the court, the judge could not hold otherwise (Article 228).
17. If the prosecutor failed to appear, the court, after having heard participants present at the hearing, decided whether it was possible to examine the case in his absence or whether the hearing should be adjourned (Articles 251 and 277).
18. At the trial, the prosecutor accused a defendant on behalf of the State, participated in the examination of evidence and gave conclusions and submissions, in particular in respect of law and punishment to be applied to the defendant. If the prosecutor was convinced that materials of the judicial investigation no longer supported charges levelled against the defendant, he had to drop the charges (Article 248).
19. The state prosecutor's participation is mandatory in all trials in public prosecution cases (Article 246).
20. In its decision of 20 April 1999 the Constitutional Court held that a criminal trial was based on the principles of adversarial proceedings and equality of the parties, which meant first of all strict separation of the judicial function and the prosecution function which were to be carried out by different actors. The adversarial nature of criminal trials implied that the institution of criminal prosecution, the formulation of a charge and its sustaining before the court, were insured by competent bodies and officials, as well as victims. Imposing on the court the obligation to substitute, in one or another form, for those bodies and persons' prosecution activity, was incompatible with principle of the separation of powers and with the role of the court as an administrator of justice.
21. Reading out of earlier statements made by a victim, or a witness, was permitted if they did not appear before the court owing to reasons that made their attendance impossible (Articles 286 and 287).
22. Reading out of earlier statements made by a victim, or a witness, is permitted if the parties give their consent to it and if (1) there are substantial discrepancies between the earlier statement and the later statement before the court or (2) the victim or the witness has not appeared before the court (Article 281 § 1).
23. The court may, without seeking the consent of the parties, read out earlier statements by the defaulted victim, or the witness, in case of (1) the death, (2) the serious illness, (3) the refusal to appear by the victim or the witness if they are citizens of other States or (4) the natural disaster or other force majeure circumstances (Article 281 § 2).
24. The Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (signed in Minsk on 22 January 1993 and amended on 28 March 1997, “the 1993 Minsk Convention”), to which both Russia and Armenia are parties, provides that a witness and a victim who are subjects of one Contracting Party can be summoned, for the purpose of their examination, by a “body of justice” of another Contracting Party. The witness and the victim are entitled to reimbursement of travelling, and certain other, costs and expenses incurred in connection with their participation in the criminal proceedings (Section 9).
25. If a witness or a victim did not obey a summons to appear without a valid reason, they could be brought to the courtroom under escort. A witness could be fined, in addition (Articles 73 and 75).
26. A witness and a victim were entitled to reimbursement of costs and expenses incurred in connection with their participation in the criminal proceedings (Article 106).
27. If a witness or a victim does not obey a summons to appear without a valid reason, they may be brought to a courtroom under escort (Article 113).
28. A witness and a victim are entitled to reimbursement of costs and expenses incurred in connection with their participation in the criminal proceedings (Article 131).
29. A witness, or a victim, who live abroad, with their consent, may be summoned for the participation in criminal proceedings conducted in the territory of the Russian Federation (Article 456 § 1).
30. Following the examination of an appeal, the appeal court may decide (1) to dismiss the appeal and uphold the judgment, (2) to quash the judgment and terminate the criminal proceedings, (3) to quash the judgment and remit the case for a new trial, or (4) to amend the judgment (Article 378 of the Code of Criminal Procedure of 2001).
31. A judgment may be quashed or amended on appeal if there is an inconsistency between conclusions reached by the trial court in the judgment and facts established by that court. Violation of procedural law and wrongful application of criminal law, as well as unfairness of the judgment, also constitute grounds for reversing or changing the judgment (Article 379 of the Code).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-80322
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF KOZYYAKOVA AND GUREYEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6;Violation of P1-1
JUDGES: Christos Rozakis
TEXT: 4. The applicants were born in 1925 and lived in Voronezh.
5. At the relevant time the applicants were in receipt of a pension from the pension authority (“the authority”, Комитет по социальной защите населения администрации Железнодорожного района г. Воронежа).
6. It appears that in 1998 and 1999 there were delays in payment of their pension and in 2000 the applicants brought a court claim against the authority in this connection.
7. By judgments of 17 and 20 July 2000 the Zheleznodorozhnyy District Court of the town of Voronezh granted the applicants' claims and ordered the authority to pay the first applicant 1,109.36 roubles (RUR – approximately 42 euros) in damages. The second applicant was granted a compensation of RUR 1,355.46 (approximately 53 euros).
8. The judgments came into force on 27 and 31 July 2000 respectively.
9. On an unspecified date the District Court issued the writs of enforcement and directed them to the bailiffs for enforcement.
10. According to the applicants, in April 2001 the bailiffs returned the writs without enforcement with reference to the lack of funds.
11. It appears that the court award in respect of the first applicant was enforced on 7 December 2005. As regards the second applicant, the award was received on 9 December 2005.
12. According to the Government, the awards in respect of both applicants were enforced in full on 6 December 2005.
13. Section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997 provides that a bailiff's order on the institution of enforcement proceedings shall fix a time-limit for the defendant's voluntary compliance with the writ of execution. The time-limit cannot exceed five days. The bailiff shall also warn the defendant that coercive action will follow, should the defendant fail to comply within the time-limit.
14. Under Section 13 of the Law, the enforcement proceedings should be completed within two months upon receipt of the writ of enforcement by the bailiff.
VIOLATED_ARTICLES: 6


ITEMID: 001-95823
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: MEIXNER v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Rolf Friedrich Meixner, is a German national who was born in 1937 and lives in Schwalmstadt.
On 21 March 1986 the Frankfurt Regional Court convicted the applicant, who had previously served a prison sentence for, inter alia, sexual assault, rape and theft, of triple murder in coincidence with two offences of aggravated robbery, falsification of documents and fraud, and sentenced him to life imprisonment. The court held that the applicant, who had committed the offences while on probation, acted intentionally, in two cases motivated by greed (Habgier) and to make another offence possible (Ermöglichung einer Straftat), and in one case to conceal an offence (Verdeckung einer Straftat). Based on an expert opinion it further held that the applicant tended to be brutal, had sadistic tendencies and was antisocial.
On 26 October 2002, having first served the remainder of the previous sentence after probation had been revoked, fifteen years of the sentence had been served and the applicant became eligible for parole.
On 13 October 2004 the prison authorities imposed certain restrictions on the applicant, inter alia solitary confinement. All restrictions were suspended again until, at the latest, 7 December 2004. By decision of 9 August 2005 the Gießen Regional Court found the restrictions unlawful as far as they were still in place after 13 November 2004.
In April and May 2004 the applicant asked for a relaxation of the conditions of his detention, inter alia, prison leave (Hafturlaub) and leave to meet with his lawyer. The prison authorities refused the request; they found the risk that the applicant would use such leave to commit crimes or flee was too high.
On 17 January 2006 the Kassel Regional Court dismissed an appeal by the applicant. The court held that the prison authorities had not abused their discretion when refusing the prison leave. As to the request for leave to meet his lawyer, it argued that the lawyer could visit the applicant in prison.
On 14 July 2006 the Frankfurt Court of Appeal dismissed an appeal by the applicant. On 27 February 2007 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint for adjudication without giving reasons.
In view of his renewed request for a suspension of his sentence on probation in October 2003 the Gießen Regional Court ordered an expert opinion on the question whether the applicant continued to present a danger; the expert examined the applicant on 11 and 12 November 2004.
On 7 February 2006 the Gießen Regional Court, after having heard the applicant and having regard to a report by the prison authorities as well as the expert opinion, refused to suspend the applicant’s life sentence on probation and decided that the “particular seriousness” of the applicant’s guilt warranted the continuation of his imprisonment until he had served twenty-five years. It primarily relied on the expert’s opinion, explained by him in person during a hearing, who had diagnosed a dissocial and narcissistic personality disorder and concluded that the risk of the applicant again committing crimes when released had not substantially decreased. The Regional Court found that these findings alone warranted the refusal of a suspension of the sentence on probation in due consideration of the interests of the security of the public. It further noted that the applicant had been convicted of three offences of murder, committed shortly after he had been released from prison and while still on probation. Although the Regional Court observed that in view of his age it was unlikely that the applicant’s personality would change, it pointed out that a suspension of his sentence on probation could still become possible once he no longer presented a danger because of old age and related health problems.
On 21 July 2006 the Frankfurt Court of Appeal dismissed the applicant’s appeal. It confirmed the Regional Court’s findings that the degree of guilt, the circumstances of the crimes and the applicant’s personality, as well as his refusal of therapy, necessitated his further imprisonment, at least until he had served twenty-five years.
On 24 July 2007 the Federal Constitutional Court refused to admit a constitutional complaint by the applicant for adjudication. It found no fault in the lower courts’ detailed and reasoned decisions to refuse the suspension of the applicant’s sentence on probation and to order that he should remain in prison pursuant to the life sentence until he had served at least twentyfive years. Since the applicant had submitted neither a 1999 expert opinion he had referred to nor the 2005 expert opinion the Federal Constitutional Court could especially not find a violation of the lower courts’ duty to clarify the relevant facts (Aufklärungspflicht). Finally, it held that the lower courts had, as far as could be determined without having read the convicting judgment which the applicant had not submitted, correctly determined the “particular seriousness” of the applicant’s guilt.
Pursuant to these provisions the court shall suspend the execution of the remainder of a sentence of imprisonment for life and grant probation, if, inter alia, fifteen years of the sentence have been served, the degree of the convicted person’s guilt does not require its continued execution and if this can be justified upon consideration of the security interests of the general public.
When taking the decision, the following shall be taken into consideration; the personality of the convicted person; his previous history; the circumstances of his act; the extent to which the legal interest would be threatened in the event of recidivism; the conduct of the convicted person while serving his sentence; his living conditions; and the effects suspension could be expected to have.


ITEMID: 001-68116
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF KOLASINSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 8. The applicant, Henryk Kolasiński, is a Polish national who was born in 1927 and lives in Koszalin, Poland.
9. The applicant's wife died on 15 May 1990. On 2 October 1990 the Koszalin District Court (Sąd Rejonowy) declared that the applicant, his stepdaughter - J.K. - and her two grandsons were to inherit the estate.
10. On 28 December 1990 M.F., one of the grandsons, filed an application for distribution of the estate of the applicant's wife with the Koszalin District Court. He also applied to the court for dissolution of the joint matrimonial property of the applicant and his late wife.
11. On 4 December 1992 the court held the first hearing.
12. In a letter of 5 May 1993 the applicant requested the President of the Civil Division of the Koszalin District Court to expedite the proceedings.
13. On 5 November 1993 and 20 January 1994 the trial court held hearings.
14. On 17 February 1994 the District Court gave a final decision. The applicant appealed. On 5 July 1994 the Koszalin Regional Court (Sąd Wojewódzki) set aside the first-instance decision and remitted the case.
15. On 9 March and 18 May 1995 the court held hearings. At a hearing held on 29 June 1995 the court ordered that expert evidence be obtained.
16. On 24 November 1995 the applicant complained to the President of the Koszalin District Court about the slow conduct of the proceedings. On 21 February 1996 the President of the Koszalin Regional Court informed the applicant that his complaint about the delays in the proceedings was justified.
17. On 10 June 1996 the court held a hearing.
18. On 22 August 1996 the District Court gave a decision. On 30 September 1996 the applicant lodged an appeal with the Koszalin Regional Court.
19. On 11 February and 25 March 1997 the Regional Court held hearings. On 22 April 1997 the Koszalin Regional Court set aside the impugned decision and remitted the case.
20. On 11 September 1997 the court held a hearing. On 22 October 1997 the applicant again requested the President of the Koszalin District Court to expedite the proceedings.
21. At the hearing held on 4 December 1997 the parties settled their claims in respect of a number of movables. Subsequently, the court discontinued the proceedings in that respect.
22. On 19 February 1998 the applicant complained about the length of the proceedings to the Minister of Justice.
23. On 10 April 1998 the court held a hearing and ordered that expert evidence be obtained.
24. On 24 April 1998 the District Court gave a partial decision (postanowienie częściowe). On 24 May 1998 the District Court held a hearing.
25. On 25 May 1998 the Minister of Justice informed the applicant that the President of the Koszalin Regional Court would supervise the proceedings. The District Court held further hearings on 3 July, 7 and 28 August 1998. On 1 October 1998 an expert submitted his report to the court.
26. At the hearing held on 20 November 1998 the District Court gave a decision. On 15 January 1999 the applicant lodged an appeal with the Koszalin Regional Court. On 27 April 1999 the applicant complained to the Minister of Justice about a delay in the proceedings and the fact that his appeal of 15 January 1999 had not been transmitted to the Regional Court.
27. On 28 September 1999 the Regional Court held a hearing. The hearings listed for 12 and 26 October 1999 were adjourned.
28. On 4 November 1999 the Regional Court upheld the firstinstance decision. On 15 March 2000 the applicant lodged a cassation appeal with the Supreme Court (Sąd Najwyższy). The proceedings were terminated by a decision of the Supreme Court of 23 April 2001.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-91499
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF PROTOPAPA v. TURKEY
IMPORTANCE: 3
CONCLUSION: No violation of Art. 3 (substantive aspect);No violation of Art. 5;No violation of Art. 6;No violation of Art. 7;No violation of Art. 11;No violation of Art. 13;No violation of Art. 14
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza
TEXT: 7. The applicant was born in 1937 and lives in Nicosia.
8. On 19 July 1989 she joined an anti-Turkish demonstration in the Ayios Kassianos area in Nicosia in which the applicants in the Chrysostomos and Papachrysostomou v. Turkey and Loizidou v. Turkey cases (see below) also took part.
9. According to an affidavit sworn by the applicant before the Nicosia District Court on 3 January 2000, the demonstration of 19 July 1989 was peaceful and was held on the fifteenth anniversary of the Turkish intervention in Cyprus in support of the missing persons and to protest against human rights violations.
10. The demonstrators gathered at the Ayios Kassianos school in Nicosia. After United Nations (UN) soldiers had shouted a warning to the demonstrators not to advance further, the applicant was seized by the hair, beaten and assaulted by Turkish military personnel and/or other personnel acting under Turkish control. The beating was inflicted with electrical batons by 3 or 4 policemen all over the applicant’s body, in particular the head and back. One of the blows caused a painful injury to the applicant’s right arm and elbow, with loss of blood. She was then dragged to a small, stiflingly hot room in which other demonstrators were also being held. One of the prisoners had been severely beaten and was unconscious.
11. The applicant and the other detainees were subsequently led through a hostile crowd that spat and swore at them to a bus that was waiting to take them to the so-called “Pavlides Garage”. As she entered the garage her handbag was seized. She was forced to sit on the floor; the toilet facilities were filthy. A crowd that had gathered outside the garage was swearing, shouting abuse and threats and throwing stones, some of which came through the corrugated iron roof. One of the detainees, a doctor, treated the applicant’s arm, which was still bleeding, with whatever he had to hand and bandaged it. One of the female prisoners (Mrs Vrahimi – see application no. 16078/90) was then beaten in front of the others, who remained silent, fearing for their own fate. A woman shouted that she was an American citizen and was released shortly afterwards.
12. While in the garage, the applicant was interrogated but refused to sign the statement, which was written in Turkish. The interrogation took place in Greek and touched mainly on political subjects. The next day, 20 July 1989, she and the other detainees were given food and at the same time photographed and filmed by a television crew.
13. Later that day, after being subjected to a body search, the applicant was taken to a court which remanded her in custody for two days. She was transferred with other women who had been arrested at the same time to the Ortakeuy prison, where she was held in a cell with another woman. The conditions of detention were appalling, the cell was unbearably hot and during the night the applicant and the other detainees were constantly checked and counted by the guards and as a result, were unable to sleep. The applicant went on hunger strike.
14. During the evening of 21 July 1989 the applicant was taken to the Nicosia District Court for trial. The judge asked her and the other accused whether they wanted legal representation; they replied that they would only accept as defence counsel a lawyer registered with the bar association of the Republic of Cyprus. As a result, they were not assisted by a lawyer. The interpretation into Greek was poor and did not cover all the words used by the witnesses and the parties. Each time an accused tried to speak and give an explanation, she was interrupted. Although the applicant had never previously seen some of the exhibits that were produced at the trial (notably a pair of scissors, gloves and a saw), one of the prosecution witnesses said that he had found a penknife in her handbag. The applicant alleged that she had taken it with her to peel an apple and that the blade was not even two inches long. She tried to explain the position to the judge but was not allowed to. She showed her bandaged arm in order to complain about the beating she had suffered, but an officer replied that she could have injured herself by falling down. After the trial the applicant was taken back to prison.
15. On 22 July 1989 the court ordered the applicant to enter into a recognizance of 1,000,000 Turkish liras as a guarantee that she would not commit further breaches of the peace for a period of one year. The trial judge noted that it was the second time the applicant had illegally entered “TRNC” territory. Most of the accused, including the applicant, were also sentenced to 2 days’ imprisonment and a fine of 50 Cypriot pounds (CYP – approximately 85 euros (EUR)), with five additional days in prison in default of payment within 24 hours. After the public delivery of the judgment, they were returned to prison.
16. On 24 July 1989 the applicant was released and taken by bus to southern Cyprus.
17. As a result of the beating described above, three of the applicant’s vertebrae were damaged. The doctors told her that the condition of her central nerve was continuously deteriorating and that no surgery could be carried out.
18. The Government alleged that the applicant had participated in a violent demonstration with the aim of enflaming anti-Turkish sentiment. The demonstrators, supported by the Greek-Cypriot administration, were demanding that the “Green Line” in Nicosia should be dismantled. Some carried Greek flags, clubs, knives and wire-cutters. They were acting in a provocative manner and shouting abuse. The demonstrators were warned in Greek and English that unless they dispersed they would be arrested in accordance with the laws of the “TRNC”. The applicant was arrested by the Turkish-Cypriot police after crossing the UN buffer zone and entering the area under Turkish-Cypriot control. The Turkish-Cypriot police intervened in the face of the manifest inability of the Greek-Cypriot authorities and the UN Force in Cyprus to contain the incursion and its possible consequences.
19. No force was used against demonstrators who did not intrude into the “TRNC” border area and, in the case of demonstrators who were arrested for violating the border, no more force was used than was reasonably necessary in the circumstances in order to arrest and detain the persons concerned. No one was ill-treated. It was possible that some of the demonstrators had hurt themselves in the confusion or in attempting to scale barbed wire or other fencing. Had the Turkish police, or anyone else, assaulted or beaten any of the demonstrators, the UN Secretary General would no doubt have referred to this in his report to the Security Council.
20. The applicant was charged, tried, found guilty and sentenced to a short term of imprisonment. She pleaded not guilty, but did not give evidence and declined to use the available judicial remedies. She was asked if she required assistance from a lawyer registered in the “TRNC”, but refused and did not ask for legal representation. Interpretation services were provided at the trial by qualified interpreters. All the proceedings were translated into Greek.
21. In his report of 7 December 1989 on the UN operations in Cyprus, the UN Secretary General stated, inter alia:
“A serious situation, however, arose in July as a result of a demonstration by Greek Cypriots in Nicosia. The details are as follows:
(a) In the evening of 19 July, some 1,000 Greek Cypriot demonstrators, mostly women, forced their way into the UN buffer zone in the Ayios Kassianos area of Nicosia. The demonstrators broke through a wire barrier maintained by UNFICYP and destroyed an UNFICYP observation post. They then broke through the line formed by UNFICYP soldiers and entered a former school complex where UNFICYP reinforcements regrouped to prevent them from proceeding further. A short while later, Turkish-Cypriot police and security forces elements forced their way into the area and apprehended 111 persons, 101 of them women;
(b) The Ayios Kassianos school complex is situated in the UN buffer zone. However, the Turkish forces claim it to be on their side of the cease-fire line. Under working arrangements with UNFICYP, the Turkish-Cypriot security forces have patrolled the school grounds for several years within specific restrictions. This patrolling ceased altogether as part of the unmanning agreement implemented last May;
(c) In the afternoon of 21 July, some 300 Greek Cypriots gathered at the main entrance to the UN protected area in Nicosia, in which the UN headquarters is located, to protest the continuing detention by the Turkish-Cypriot authorities of those apprehended at Ayios Kassianos. The demonstrators, whose number fluctuated between 200 and 2,000, blocked all UN traffic through this entrance until 30 July, when the Turkish-Cypriot authorities released the last two detainees;
(d) The events described above created considerable tension in the island and intensive efforts were made, both at the UN headquarters and at Nicosia, to contain and resolve the situation. On 21 July, I expressed my concern at the events that have taken place and stressed that it was vital that all parties keep in mind the purpose of the UN buffer zone as well as their responsibility to ensure that that area was not violated. I also urged the Turkish-Cypriot authorities to release without delay all those who had been detained. On 24 July, the President of the Security Council announced that he had conveyed to the representatives of all the parties, on behalf of the members of the Council, the Council’s deep concern at the tense situation created by the incidents of 19 July. He also stressed the need strictly to respect the UN buffer zone and appealed for the immediate release of all persons still detained. He asked all concerned to show maximum restraint and to take urgent steps that would bring about a relaxation of tension and contribute to the creation of an atmosphere favourable to the negotiations.”
22. The applicant produced 21 photographs taken at different times during the demonstration on 19 July 1989. Photographs 1 to 7 were intended to show that, notwithstanding the deployment of the Turkish-Cypriot police, the demonstration was peaceful. In photographs 8 to 10 members of the Turkish-Cypriot police are seen breaking up the UNFICYP cordon. The final set of photographs show members of the Turkish-Cypriot police using force to arrest some of the women demonstrators.
23. The English translation of the Nicosia District Court judgment of 22 July 1989 indicates that the applicant, together with 23 other women, was charged with two offences: entering “TRNC” territory without permission (contrary to sections 2, 8 and 9 of Law No. 5/72 – see paragraph 30 below) and entering “TRNC” territory other than through an approved port (contrary to subsections 12(1) and (5) of the Aliens and Immigration Law – see paragraph 31 below).
24. The judgment was given in the presence of the accused and of an interpreter. The trial judge noted the following:
(i) the accused did not accept the charges against them and stated that they did not wish to use the services of a lawyer registered in the “TRNC”;
(ii) some of the accused had fainted during the trial and had been taken to hospital and excused from attending the hearing;
(iii) the public prosecutor called 7 witnesses, whose statements were translated into Greek for the accused’s benefit;
(iv) the witnesses (mainly police officers on duty at the time of the demonstration) declared that the accused had illegally entered the “TRNC” buffer zone, shouted abuse at the Turkish-Cypriot forces, resisted arrest by pulling and pushing; knives and other cutting objects had been found in the bags of some of the demonstrators who had been arrested; in particular, the witnesses declared that the demonstrators had passed the barriers at the UN observation post, broken the wooden door of a church and moved toward a water reservoir; according to a map shown at trial, the area where the accused had entered was “TRNC” territory;
(v) the accused did not call any defence witnesses and did not address the court;
(vi) the accused had been told that they could cross-examine witnesses in turn and, if they so wished, choose one of their number to cross-examine the witnesses on behalf of all the accused; however, they had not done so;
(vii) relying on the statements of the prosecution witnesses, the District Court came to the conclusion that the accused had crossed the borders of the “TRNC” at an unapproved entry point and without permission and had resisted by various means the UN and Turkish forces which had tried to stop them;
(viii) the prosecution had proved its case beyond reasonable doubt, so that the accused were guilty on both counts;
(ix) in deciding on the sentence, the District Court took into account the seriousness of the offence, and the fact that the accused had shown no remorse and continued to deny the validity of the “TRNC”.
25. Section 70 of the Cypriot Criminal Code reads as follows:
“Where five or more persons assembled with intent to commit an offence, or, being assembled with intent to carry out some common purpose, conduct themselves in such a manner as to cause persons in the neighbourhood to fear that the persons so assembled will commit a breach of the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons to commit a breach of the peace they are an unlawful assembly.
It is immaterial that the original assembling was lawful if, being assembled, they conduct themselves with a common purpose in such a manner as aforesaid.
When an unlawful assembly has begun to execute the purpose, whether of a public or of a private nature, for which it assembled by a breach of the peace and to the terror of the public, the assembly is called a riot, and the persons assembled are said to be riotously assembled.”
26. According to section 71 of the Criminal Code, any person who takes part in an unlawful assembly is guilty of a misdemeanour and liable to imprisonment for one year.
27. Section 80 of the Criminal Code provides:
“Any person who carries in public without lawful occasion any offensive arm or weapon in such a manner as to cause terror to any person is guilty of a misdemeanour, and is liable to imprisonment for two years, and his arm or weapons shall be forfeited.”
28. According to Section 82 of the Criminal Code, it is an offence to carry a knife outside the home.
29. The relevant part of Chapter 155, section 14 of the Criminal Procedure Law states:
"(1) Any officer may, without warrant, arrest any person -
...
(b) who commits in his presence any offence punishable with imprisonment;
(c) who obstructs a police officer, while in the execution of his duty ..."
30. Section 9 of Law No. 5/72 states:
"... Any person who enters a prohibited military area without authorization, or by stealth, or fraudulently, shall be tried by a military court in accordance with the Military Offences Act; those found guilty shall be punished."
31. Subsections 12 (1) and (5) of the Aliens and Immigration Law read as follows:
“1. No person shall enter or leave the Colony except through an approved port.
...
5. Any person who contravenes or fails to observe any of the provisions of subsections (1), (2), (3) or (4) of this section shall be guilty of an offence and shall be liable to imprisonment for a term not exceeding six months or to a fine not exceeding one hundred pounds or to both such imprisonment and fine.”
NON_VIOLATED_ARTICLES: 11
13
14
3
5
6
7