ITEMID: 001-91704
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: GRANDCHAMBER
DATE: 2009
DOCNAME: CASE OF BYKOV v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 5-3;Violation of Art. 8;No-violation of Art. 6;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;David Thór Björgvinsson;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;George Nicolaou;Ireneu Cabral Barreto;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Loukis Loucaides;Mirjana Lazarova Trajkovska;Nicolas Bratza;Nona Tsotsoria;Peer Lorenzen
TEXT: 8. The applicant was born in 1960 and lives in Krasnoyarsk.
9. From 1997 to 1999 the applicant was chairman of the board of the Krasnoyarsk Aluminium Plant. At the time of his arrest in October 2000 he was a major shareholder and an executive of a corporation called OAO Krasenergomash-Holding and a founder of a number of affiliated firms. He was also a deputy of the Krasnoyarsk Regional Parliamentary Assembly.
10. In September 2000 the applicant allegedly ordered V., a member of his entourage, to kill S., the applicant's former business associate. V. did not comply with the order, but on 18 September 2000 he reported the applicant to the Federal Security Service of the Russian Federation (“the FSB”). On the following day V. handed in the gun which he had allegedly received from the applicant.
11. On 21 September 2000 the Prosecutor of the Severo-Zapadnyy District of Moscow opened a criminal investigation in respect of the applicant on suspicion of conspiracy to murder.
12. On 26 and 27 September 2000 the FSB and the police decided to conduct a covert operation to obtain evidence of the applicant's intention to murder S.
13. On 29 September 2000 the police staged the discovery of two dead men at S.'s home. They officially announced in the media that one of those killed had been identified as S. The other man was his business partner, I.
14. On 3 October 2000 V., acting on the police's instructions, came to see the applicant at his estate. He carried a hidden radio-transmitting device while a police officer outside received and recorded the transmission. He was received by the applicant in a “guest house”, a part of the estate connected to his personal residence. In accordance with the instructions, V. engaged the applicant in conversation by telling him that he had carried out the assassination. As proof of his accomplishment he handed the applicant several objects taken from S. and I.: a certified copy of a mining project feasibility study marked with a special chemical agent, two watches belonging to S. and I. and 20,000 United States dollars (USD) in cash. At the end of the conversation V. took the cash, as suggested by the applicant. The police obtained a sixteen-minute recording of the dialogue between V. and the applicant.
15. On 4 October 2000 the applicant's estate was searched. Several watches were seized, including those belonging to S. and I. A chemical analysis was conducted and revealed the presence on the applicant's hands of the chemical agent which had been used to mark the feasibility study. The applicant was arrested.
16. On 27 February 2001 the applicant complained to the Prosecutor of the Severo-Zapadnyy District of Moscow that his prosecution had been unlawful because it involved numerous procedural violations of his rights, including the unauthorised intrusion into his home and the use of the radio-transmitting device. On 2 March 2001 the prosecutor dismissed his complaint, having found, in particular, that the applicant had let V. into his house voluntarily and that therefore there had been no intrusion. It was also found that no judicial authorisation had been required for the use of the radio-transmitting device because in accordance with the Operational-Search Activities Act, it was only required for the interception of communications transmitted by means of wire channels or mail services, none of which had been employed in the covert operation at issue.
17. Following the applicant's arrest on 4 October 2000, on 6 October 2000 the Deputy Prosecutor of the Severo-Zapadnyy District of Moscow ordered his detention during the investigation, having found that it was “in accordance with the law” and necessary in view of the gravity of the charge and the risk that the applicant might influence witnesses. Further extensions were ordered by the competent prosecutor on 17 November 2000 (until 21 December 2000) and on 15 December 2000 (until 21 March 2001). The reasons for the applicant's continued detention were the gravity of the charge and the risk of his influencing the witnesses and obstructing the investigation. The applicant appealed against each of these decisions to a court.
18. On 26 January 2001 the Lefortovskiy District Court of Moscow examined the applicant's appeal against his continued detention on remand and confirmed the lawfulness of his detention. The court referred to the gravity of the charge and noted that this measure had been applied in accordance with the law. The applicant lodged a further appeal, which was also dismissed by the Moscow City Court.
19. In view of the forthcoming expiry of the term of the applicant's detention, its further extension was ordered by the competent prosecutor, first on 15 March 2001, until 4 April 2001, and then on 21 March 2001, until 4 June 2001, still on the grounds of the gravity of the charge and the risk of his influencing the witnesses and obstructing the investigation. The applicant challenged the extensions before the court.
20. On 11 April 2001 the Lefortovskiy District Court of Moscow declared that the applicant's detention until 4 June 2001 was lawful and necessary on account of the gravity of the charge. The applicant lodged an appeal with the Moscow City Court, which was dismissed on 15 May 2001. The appeal court considered the applicant's detention lawful and necessary “until the bill of indictment had been submitted or until the applicant's immunity had been confirmed”.
21. On 22 May 2001 the Deputy Prosecutor General extended the applicant's detention on remand until 4 September 2001, still on the grounds of the gravity of the charge and the risk of his influencing the witnesses and obstructing the investigation.
22. On 27 August 2001 the case was referred to the Tushinskiy District Court of Moscow. On 7 September 2001 the court scheduled the hearing for 26 September 2001 and authorised the applicant's further detention without indicating any reasons or the length of the extension. On 3 October 2001 the Moscow City Court examined and dismissed an appeal by the applicant, upholding his continued detention without elaborating on the reasons.
23. On 21 December 2001 the Meshchanskiy District Court of Moscow scheduled the hearing for 4 January 2002 and authorised the applicant's further detention, citing no reasons. The court did not indicate the length of the prospective detention. It again reviewed the lawfulness of the applicant's detention on 4 January 2002 but found that it was still necessary owingAn appeal by the applicant to the Moscow City Court was dismissed on 15 January 2002.
24. Further applications by the applicant for release were examined on 23 January, 6 March, 11 March and 23 April 2002. As before, the Meshchanskiy District Court of Moscow refused his release, citing the gravity of the charge and the risk of his evading trial and influencing the witnesses. The applicant was released on 19 June 2002 following his conviction (see paragraph 45 below).
25. On 3 October 2000, immediately after visiting the applicant in the “guest house”, V. was questioned by the investigators. He reported on the contents of his conversation with the applicant and submitted that he had handed him the gun, the watches and the feasibility study. He was subsequently questioned on 12 October, 9 November, 8 December and 18 December 2000.
26. The applicant was questioned as a suspect for the first time on 4 October 2000. From October to December 2000 he was questioned at least seven times.
27. On 10 October 2000 the applicant and V. were questioned in a confrontation with each other. The applicant's legal counsel were present at the confrontation. The statements made by the applicant on that occasion were subsequently summarised in the indictment, of which the relevant part reads as follows:
“At the confrontation between A.P. Bykov and [V.] on 10 October 2000 Bykov altered, in part, certain substantive details of his previous statements, as follows. [He] claims that he has been acquainted with [V.] for a long time, about 7 years; they have normal relations; the last time he saw him was on 3 October 2000, and before that they had been in contact about two years previously. He has never given any orders or instructions to [V.], including any concerning [S.]. When [V.] came to see him on 3 October 2000 he began to tell him off for coming to him. When he asked [V.] who had told him to kill [S.] he replied that nobody had, he had just wanted to prove to himself that he could do it. He began to comfort [V.], saying that he could help with his father; [he] did not suggest that [V.] flee the town [or] the country, and did not promise to help him financially. He did not instruct [V.] on what to do if [V.] was arrested; he asked him what was going to happen if he was arrested; [V.] said that he would tell how it all happened and would confess to having committed the crime, [and the applicant] approved of that. Concerning K., Bykov stated that this was his partner who lived and worked in Switzerland; he admitted de facto that he had spoken to him on the phone at the beginning of August ... but had given him no directions about [V.]”
28. On 13 October 2000 the applicant was charged with conspiracy to murder. Subsequently the charges were extended to include conspiracy to acquire, possess and handle firearms.
29. On 8 December 2000 two appointed linguistic experts examined the recording of the applicant's conversation with V. of 3 October 2000 and answered the following questions put to them:
“1. Is it possible to establish, on the basis of the text of the conversation submitted for examination, the nature of relations between Bykov and [V.], the extent of their closeness, sympathy for each other, subordination; how is it expressed?
2. Was Bykov's verbal reaction to [V.]'s statement about the 'murder' of [S.] natural assuming he had ordered the murder of [S.]?
3. Are there any verbal signs indicating that Bykov expressed mistrust about [V.]'s information?
4. Is it possible to assess Bykov's verbal style as unequivocally aiming at closing the topic, ending the conversation?
5. Are there any identifiable stylistic, verbal signs of fear (caution) on Bykov's part in relation to [V.]?”
30. In respect of the above questions the experts found:
– on question 1, that the applicant and V. had known each other for a long time and had rather close and generally sympathetic relations; that V. had shown subordination to the applicant; that the applicant had played an instructive role in the conversation;
– on question 2, that the applicant's reaction to V.'s information about the accomplished murder was natural and that he had insistently questioned V. on the technical details of its execution;
– on question 3, that the applicant had shown no sign of mistrusting V.'s confession to the murder;
– on question 4, that the applicant had not shown any clear signs of wishing to end or to avoid the conversation;
– on question 5, that the applicant had not shown any fear of V.; on the contrary, V. appeared to be afraid of the applicant.
31. On 11 January 2001 the investigation was completed and the applicant was allowed access to the case file.
32. On 27 August 2001 the case was referred to the Tushinskiy District Court of Moscow.
33. On 22 October 2001 the Tushinskiy District Court declined jurisdiction in favour of the Meshchanskiy District Court of Moscow, having established that the venue of the attempted murder lay within that court's territorial jurisdiction.
34. On 16 December 2001 V. made a written statement certified by the Russian consulate in the Republic of Cyprus repudiating his statements against the applicant. He submitted that he had made those statements under pressure from S. Two deputies of the State Duma, D. and Y.S., were present at the consulate to witness the repudiation. On the same day they recorded an interview with V. in which he explained that S. had persuaded him to make false statements against the applicant.
35. On 4 February 2002 the Meshchanskiy District Court of Moscow began examining the charges against the applicant. The applicant pleaded not guilty. At the trial he challenged the admissibility of the recording of his conversation with V. and of all other evidence obtained through the covert operation. He alleged that the police interference had been unlawful and that he had been induced into self-incrimination. Furthermore, he claimed that the recording had involved unauthorised intrusion into his home. He contested the interpretation of the recording by the experts and alleged that nothing in his dialogue with V. disclosed prior knowledge of a murder conspiracy.
36. During the trial the court dismissed the applicant's objection to the covert operation and admitted as lawfully obtained evidence the recording with its transcript, the linguistic expert report, V.'s statements, and the evidence showing that the applicant had accepted the feasibility study and the watches from V. It dismissed the argument that there had been an unauthorised intrusion into the applicant's premises, having found, firstly, that the applicant had expressed no objection to V.'s visit and, secondly, that their meeting had taken place in the “guest house”, which was intended for business meetings and therefore did not encroach on the applicant's privacy. The court refused to admit as evidence the official records of the search at the applicant's estate because the officers who had conducted the search on 4 October 2000 had not been covered by the authorisation.
37. The following persons were examined in the oral proceedings before the court:
S. explained his relations with the applicant and their conflict of interests in the aluminium industry. He confirmed that he had participated in the covert operation; he also confirmed that in 2001 V. had told him that he had been paid off to withdraw his statements against the applicant.
Twenty-five witnesses answered questions concerning the business links of the applicant, V. and S. with the aluminium plant and other businesses in Krasnoyarsk; the relations and connections between them; the existence of the conflict of interests between the applicant and S.; the events of 3 October 2000, namely the arrival of V. at the “guest house”, his conversation with the applicant and the handing of the documents and the watches to the applicant; and the circumstances surrounding V.'s attempted withdrawal of his statements against the applicant.
Seven experts were examined: a technical expert gave explanations about the recording of data received by way of a radio-transmitting device; a sound expert explained how a transcript of the recording of the applicant's conversation with V. had been produced; two expert linguists submitted that they had used both the tape and the recording transcript in their examination; an expert psychologist answered questions concerning his findings (evidence subsequently excluded as obtained unlawfully – see paragraph 43 below); and two corroborative experts upheld the conclusions of the expert linguists and the sound experts.
Seven attesting witnesses answered questions concerning their participation in various investigative measures: the receipt of the gun handed in by V., the copying of the video and audio tapes, the treatment of the material exhibits with a chemical agent, the “discovery of the corpses” in the operative experiment, and the house search.
Four investigation officers were examined: an FSB officer submitted that on 18 September 2000 V. had written a statement in his presence that the applicant had ordered him to kill S., and had handed in the gun; he also explained how the operative experiment had been carried out; two officers of the prosecutor's office and one officer of the Interior Ministry also described the operative experiment and explained how the copies of the recording of the applicant's conversation with V. had been made.
38. On 15 May 2002 during the court hearing the prosecutor requested to read out the records of the questioning of five witnesses not present at the hearing. The statements made by V. during the pre-trial investigation were among them.
39. The applicant's counsel said that he had no objections. The court decided to grant the request, having noted that “the court took exhaustive measures to call these witnesses to the court hearing and found that ... V.'s whereabouts could not be established and he could not be called to the courtroom even though a number of operational search measures were taken by the FSB and an enquiry was made to the National Central Bureau of Interpol by the Ministry of the Interior ...”. These statements were admitted as evidence.
40. The court also examined evidence relating to V.'s attempted withdrawal of his statements against the applicant. It established that during the investigation V. had already complained that pressure had been exerted on him to repudiate his statements against the applicant. It also established that the witness D., who was present at the consulate when V. had repudiated his statements, was a close friend of the applicant. The other witness, Y.S., had arrived at the consulate late and did not see the document before it was certified.
41. It was also noted that both the applicant and V. had undergone a psychiatric examination during the investigation and both had been found fit to participate in the criminal proceedings.
42. Other evidence examined by the court included: expert reports produced by chemical, ballistics, linguistic, sound and technical experts; written reports on the operative experiment; V.'s written statement of 18 September 2000; a certified description of the gun handed in by V.; and records of the applicant's confrontation with V. on 20 October 2000.
43. The applicant challenged a number of items of evidence, claiming that they had been obtained unlawfully. The court excluded some of them, in particular the expert report by a psychologist who had examined the recording of the applicant's conversation with V. and the police report on the search carried out on 4 October 2000. The attempt to challenge the audio tape containing the recording of the applicant's conversation with V., and the copies of the tape, was not successful and they were admitted as lawfully obtained evidence.
44. On 19 June 2002 the Meshchanskiy District Court of Moscow gave judgment, finding the applicant guilty of conspiracy to murder and conspiracy to acquire, possess and handle firearms. The finding of guilt was based on the following evidence: the initial statement by V. that the applicant had ordered him to kill S.; the gun V. had handed in; the statements V. had made in front of the applicant when they had been confronted during the questioning on 10 October 2000; numerous witness statements confirming the existence of a conflict between the applicant and S.; and the physical evidence obtained through the covert operation, namely the watches and the feasibility study. Although the recording of the applicant's conversation with V. was played at the hearing, its contents did not feature among the evidence or as part of the court's reasoning. In so far as the record was mentioned in the judgment, the court relied solely on the conclusions of the linguistic experts (see paragraph 30 above) and on several reports confirming that the tape had not been tampered with.
45. The court sentenced the applicant to six and a half years' imprisonment and, having deducted the time already spent in pre-trial detention, conditionally released him on five years' probation.
46. The applicant appealed against the judgment, challenging, inter alia, the admissibility of the evidence obtained through the covert operation and the court's interpretation of the physical evidence and the witnesses' testimonies.
47. On 1 October 2002 the Moscow City Court upheld the applicant's conviction and dismissed his appeal, including the arguments relating to the admissibility of evidence.
48. On 22 June 2004 the Supreme Court of the Russian Federation examined the applicant's case in supervisory proceedings. It modified the judgment of 19 June 2002 and the appeal decision of 1 October 2002, redefining the legal classification of one of the offences committed by the applicant. It found the applicant guilty of “incitement to commit a crime involving a murder”, and not “conspiracy to murder”. The rest of the judgment, including the sentence, remained unchanged.
49. Until 1 July 2002 criminal-law matters were governed by the Code of Criminal Procedure of the Russian Soviet Federative Socialist Republic (CCrP).
50. “Preventive measures” or “measures of restraint” included an undertaking not to leave a town or region, personal security, bail and detention on remand (Article 89). A decision to detain someone on remand could be taken by a prosecutor or a court (Articles 11, 89 and 96).
51. When deciding whether to remand an accused in custody, the competent authority was required to consider whether there were “sufficient grounds to believe” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or reoffend (Article 89). It also had to take into account the gravity of the charge, information on the accused's character, his or her profession, age, state of health, family status and other circumstances (Article 91).
52. Before 14 March 2001, detention on remand was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year's imprisonment or if there were “exceptional circumstances” in the case (Article 96). On 14 March 2001 the CCrP was amended to permit defendants to be remanded in custody if the charge carried a sentence of at least two years' imprisonment or if they had previously defaulted or had no permanent residence in Russia or if their identity could not be ascertained. The amendments of 14 March 2001 also repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence committed.
53. The CCrP provided for a distinction between two types of detention on remand: the first being “during the investigation”, that is, while a competent agency – the police or a prosecutor's office – was investigating the case, and the second being “before the court” (or “during the judicial proceedings”), at the judicial stage. Although there was no difference in practice between them (the detainee was held in the same detention facility), the calculation of the time-limits was different.
54. From the date the prosecutor referred the case to the trial court, the defendant's detention was classified as “before the court” (or “during the judicial proceedings”).
55. Before 14 March 2001 the CCrP did not set any time-limit for detention “during the judicial proceedings”. On 14 March 2001 a new Article 239-1 was inserted which established that the period of detention “during the judicial proceedings” could not generally exceed six months from the date the court received the file. However, if there was evidence to show that the defendant's release might impede a thorough, complete and objective examination of the case, a court could – of its own motion or on a request by a prosecutor – extend the detention by no longer than three months. These provisions did not apply to defendants charged with particularly serious criminal offences.
56. The Operational-Search Activities Act of 12 August 1995 (no. 144FZ) provides, in so far as relevant, as follows:
“In carrying out investigations the following measures may be taken:
...
9. supervision of postal, telegraphic and other communications;
10. telephone interception;
11. collection of data from technical channels of communication;
...
14. operative experiments.
...
Operational-search activities involving supervision of postal, telegraphic and other communications, telephone interception through [telecommunication companies], and the collection of data from technical channels of communication are to be carried out by technical means by the Federal Security Service and the agencies of the Interior Ministry in accordance with decisions and agreements signed between the agencies involved.
...”
“Operational-search activities involving interference with the constitutional right to privacy of postal, telegraphic and other communications transmitted by means of wire or mail services, or with the privacy of the home, may be conducted, subject to a judicial decision, following the receipt of information concerning:
1. the appearance that an offence has been committed or is ongoing, or a conspiracy to commit an offence whose investigation is mandatory;
2. persons conspiring to commit, or committing, or having committed an offence whose investigation is mandatory;
...
Operative experiments may only be conducted for the detection, prevention, interruption and investigation of a serious crime, or for the identification of persons preparing, committing or having committed it.
...”
“The examination of requests for the taking of measures involving interference with the constitutional right to privacy of correspondence and telephone, postal, telegraphic and other communications transmitted by means of wire or mail services, or with the right to privacy of the home, shall fall within the competence of a court at the place where the requested measure is to be carried out or at the place where the requesting body is located. The request must be examined immediately by a single judge; the examination of the request may not be refused.
...
The judge examining the request shall decide whether to authorise measures involving interference with the above-mentioned constitutional right, or to refuse authorisation, indicating reasons.
...”
“Information gathered as a result of operational-search activities may be used for the preparation and conduct of the investigation and court proceedings ... and used as evidence in criminal proceedings in accordance with legal provisions regulating the collection, evaluation and assessment of evidence. ...”
57. Article 69 of the CCrP provided as follows:
“...
Evidence obtained in breach of the law shall be considered to have no legal force and cannot be relied on as grounds for criminal charges.”
The 2001 Code of Criminal Procedure of the Russian Federation, which replaced the CCrP of the Russian Soviet Federative Socialist Republic from 1 July 2002, provides as follows, in so far as relevant:
“1. Evidence obtained in breach of this Code shall be inadmissible. Inadmissible evidence shall have no legal force and cannot be relied on as grounds for criminal charges or for proving any of the [circumstances for which evidence is required in criminal proceedings].
...”
“...
5. If a court decides to exclude evidence, that evidence shall have no legal force and cannot be relied on in a judgment or other judicial decision, or be examined or used during the trial.
...”
VIOLATED_ARTICLES: 5
6
8
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-76295
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF BOICENCO v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Violations of Art. 3;Violation of Art. 5-1;Violations of Art. 5-3;Failure to comply with obligations under Art. 34;Pecuniary damage - reserved;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 6. The applicant was born in 1961 and lives in Chişinău.
7. On 20 May 2005 the applicant was arrested on suspicion of fraud by the Centre for Fighting Economic Crime and Corruption (CFECC).
8. At the time of his arrest he showed no apparent abnormality in his normal physical state. According to a medical file dating from March 2005 the applicant weighed 133 kilograms.
9. According to the reports drawn up on 21 May 2005 by the policemen who arrested him, he attempted to escape, verbally abused them and even attempted to resist by trying to reach for a pistol which he had on him and by throwing away the arrest order when presented with it. It does not appear from those reports that any force was applied to the applicant or that he was injured in any way during his arrest. The applicant denies having resisted arrest.
10. It appears from the police reports that the applicant was arrested at approximately 6.45 p.m. According to the applicant, he was arrested at 4.30 p.m.
11. It is alleged on behalf of the applicant that after being brought to the CFECC premises he was beaten up by the police officers, as a result of which he lost consciousness. The Government deny that.
12. According to a medical report drawn up at 8.34 p.m. on the same date by a doctor from the CFECC, the applicant was unconscious. The doctor noted in the report that, according to the police officers, he had lost consciousness due to “intense emotions”, and recommended that the applicant be seen by a cardiologist. It does not appear from the report that the applicant had been injured in any way during arrest.
13. One of his lawyers saw the applicant at approximately 10.20 p.m. at the CFECC and noted in the minutes of arrest (proces verbal de reţinere), which was drawn up by the police officers in his presence, that the applicant was unconscious. At the request of the lawyer an ambulance was called at 11.37 p.m. and at 1.30 a.m. on 21 May 2005 the applicant was taken to the Cardiology Hospital, still unconscious.
14. It appears from the medical records from the Cardiology Hospital that the applicant regained consciousness after being brought there, but it is not clear when that happened. According to the medical records, he was suffering from arterial hypertension and a syndrome of confusion of unclear origin. The applicant would not respond to questions and would not react to anything. He also suffered headaches and nausea. There is no information in the medical file concerning his weight at the time of his hospitalisation. The doctors recommended inter alia that the applicant be given a brain scan in order to exclude the possibility of the applicant having had a cerebral stroke. The doctors concluded that a final diagnosis would be possible only after the latter tests had been carried out.
15. On 24 May 2005 the applicant was transferred to a Prison Hospital. On 25 May 2005 he was seen by a neurologist, who wrote in the medical file that on 20 May 2005 he had suffered a head trauma followed by loss of consciousness. The neurologist recommended various forms of medical treatment but did not recommend a brain scan. On 26 May 2005 a doctor noted in the medical file that the applicant had pain in his kidneys and red urine. On 2 June 2005 the applicant was examined by a commission of senior doctors from the hospital, who established a final diagnosis of, inter alia, acute head trauma and concussion and recommended, inter alia, that the applicant undergo a psychiatric investigation. On 7 June 2005 a doctor made a note in the medical file to the effect that the applicant urgently needed medication, but none was available.
16. The applicant was kept in the Prison Hospital until 1 September 2005, when he was moved to a prison for fifteen days until his further transfer to the Psychiatric Hospital. According to the medical records, during his stay in the Prison Hospital he never got out of bed. He had not fed himself and had been spoon-fed by the paramedical personnel with liquid food. He did not go to the toilet and had been kept in incontinence pads and smelt strongly of excrement. On rare occasions he would answer the doctors’ questions in a very low voice or using gestures indicating headaches and pain in his kidneys. His urine was red. Most of the time he would not react to any questions and kept his eyes closed. On at least five occasions in May and August 2005 the medical personnel reported in writing to their superiors that, due to his state, the applicant was unable to swallow his medication. On at least seven occasions the doctors noted in the medical file that the applicant’s condition was satisfactory. On several occasions the doctors speculated in the medical file that the applicant’s condition was bogus.
17. On several occasions between May and September 2005 one of the applicant’s lawyers and his wife requested that an independent doctor be given access to the applicant, but they received no answer.
18. During the applicant’s stay in the Prison Hospital, his wife was able to visit him only once, on 5 July 2005, for ten minutes. His mother was not allowed to see him. On one occasion she wrote to the Buiucani District Court and to the Prison Hospital and asked inter alia for his picture; however, she received no answer.
19. On 1 August 2005 the Chief Doctor of the Prison Hospital recommended a psychiatric examination of the applicant in order to “confirm or exclude simulation”. On 3 August 2005 the Buiucani District Court ordered a forensic and a psychiatric examination of the applicant.
20. On 18 and 30 August and 6 and 13 September 2005 one of the applicant’s lawyers and his wife requested the Buiucani District Court and the Ministry of Justice to have the applicant transferred to the Psychiatric Hospital and to speed up the psychiatric investigation. They argued inter alia that due to the lack of a clear diagnosis, no appropriate medical care was possible at that moment. The applicant’s wife also offered to cover all the costs of his transportation, examination and medical care. No answer to these requests was received.
21. Following the court order of 3 August 2005, the applicant underwent three medical investigations. A forensic investigation was carried out on 28 October 2005 and the doctors’ report stated inter alia:
“... On 20 May 2005 [the applicant] suffered a head trauma with loss of consciousness.
At the time of hospitalisation he suffered headaches, dizziness, and noises in his head, nausea, and fatigue... pain in his lower back...
Diagnosis: acute head trauma, concussion of average severity...
No visible injuries on the applicant’s body have been found during his stay at either [the Cardiology Hospital or the Prison Hospital]; however, it was established that he suffered a head trauma.
On 23 May 2005, the doctors from the Cardiology Hospital established a disorder of the central nervous system, the origin of which has not been determined due to the lack of modern clinical investigation (magnetic resonance, brain scan), and consequently no adequate medical treatment was possible.
According to the medical records made by the doctors between 20 May 2005 and 1 September 2005 it appears that during that period of time [the applicant] was incapable of actively participating in a criminal investigation”
22. On 20 September 2005 a psychiatric investigation was conducted. However, the Buiucani District Court considered the report incomplete and ordered a supplementary investigation, which took place on 15 November 2005. The reports of 20 September and 15 November 2005 stated inter alia:
“...The commission concludes that [the applicant] is not suffering from any chronic mental disease, but that he is suffering from the consequences of a head trauma, arterial hypertension...
... As from 26 May 2005 the [applicant] has stopped answering questions; he never gets out of bed; he is dirty and eats only liquid food.... He was brought to the hospital on a stretcher. He does not move, does not react to others... he lies with his eyes closed and with his hands on his chest. He has a pale and anaemic face with moist skin... He makes no resistance to medical investigations ..., he is indifferent, passive and does not cooperate with the doctors. He did not object when his mouth was opened but did not show his tongue. His arms and legs fall down lifeless when lifted. When the doctors attempted to check his pupils, he rolled his eyes up. His clothes are dirty; he wears incontinence pads and has a strong smell of urine.... He does not take care of himself... and is being taken care of (fed, washed and changed) by the medical personnel...
... The stress (the arrest, the criminal investigation) triggered a reactive psychosis with a depressive and stupor syndrome [mental sub-responsiveness not as severe as coma, in that the person can still be partially roused by some stimuli, such as pain] which deprived him of the use of reason and he needs treatment in conditions of rigorous supervision.”
23. On 15 September 2005 the applicant was hospitalised in the Central Psychiatric Hospital, Department of Judicial Investigations, where he is held to date.
24. It appears from the medical file submitted by the Government in December 2005 that, by that date, most of the time the applicant was in a state of stupor. He regained consciousness for a period of three weeks, between 2 and 24 October 2005, but then fell back into a state of stupor after being subjected to a body search in the cafeteria of the hospital. The Government submitted copies of bills for medication for the applicant for the months of October, November and December 2005.
25. The Court has no information as to whether the applicant has ever recovered from the state of stupor. It appears that on 23 December 2005 the Buiucani District Court ordered that the applicant be held in the Central Psychiatric Hospital for treatment until full recovery.
26. According to a medical report issued at the request of one of the applicant’s lawyers on 5 December 2005 by Dr. I. Berghi, Psychiatrist, untreated psychosis with a depressive and stupor syndrome triggered in traumatic conditions can have as a consequence the development of a chronic psychiatric disease.
27. According to a medical report issued at the request of one of the applicant’s lawyers on 6 February 2006 by the applicant’s family doctor, Dr T. Moraru, the applicant had, for a long period before his head trauma of 20 May 2005, suffered from diabetes and arterial hypertension. During his stay in the Prison Hospital he suffered malnutrition and lost 30-35 kilograms. Due to his state of stupor he could not be fed and therefore needed transfusions of glucose, amino acids, vitamins C and B and others. Due to this condition he ran a serious risk of developing a diabetic coma, a stroke or a heart attack. It appeared from the applicant’s medical file from the Prison Hospital that he was not provided with sufficient treatment and medical investigation. His stupor syndrome was discovered only four to five months later.
28. On 28 March 2005 the applicant’s lawyer Mr Gribincea was received by the Deputy Doctor in Chief of the Psychiatric Hospital, Mr I. Catrinici, who informed Mr Gribincea inter alia that at the time of hospitalisation in the Psychiatric Hospital, the applicant weighed less than 100 kilograms and that lately, after gaining some weight, he weighed about 100 kilograms. Mr Catrinici also informed the lawyer that the applicant had been given a brain scan two weeks earlier. The Government have not disputed this.
2. The applicant’s complaint about ill-treatment
29. On 27 May 2005, when the applicant temporarily re-gained consciousness, he told one of his lawyers, in the presence of a doctor, that he had been beaten up by the police and that he had severe headaches and pain in the region of his kidneys. The doctor informed the lawyer that the applicant had suffered a head trauma and some disorder in his kidneys.
30. On 31 May 2005 one of the applicant’s lawyers lodged a complaint with the Prosecutor General’s Office about the way the CFECC representatives had ill-treated the applicant and requested the institution of criminal proceedings. He informed the Prosecutor’s Office about what he had been told by the applicant and the doctor.
31. Similar complaints were lodged by the applicant’s wife on four occasions between June and August 2005.
32. On 10 August and 10 October 2005 the applicant’s lawyer asked the General Prosecutor’s Office whether his complaint of 31 May 2005 had been examined. He did not receive any reply.
33. Only on 23 December 2005, after repeated requests made during court hearings in the criminal proceedings against the applicant, the applicant’s lawyer was handed a decision dated 8 June 2005, by which his complaint of 31 May 2005 had been dismissed. The decision was signed by Mr Nicolae Catană, the same prosecutor who had lodged the charges against the applicant and applied to court for his remand in custody (see paragraphs 45-46 below).
34. Mr Catană argued inter alia in the above decision that since the lawyer’s complaint of 31 May 2005 did not contain any specific information concerning the circumstances of the alleged ill-treatment, and in order to clarify the situation, he had attempted to hear the applicant in person on 25 and 30 May 2005. However, the applicant had categorically refused to talk to him. Moreover, even the doctors had confirmed that the applicant would refuse to talk to investigators and prosecutors and would talk only to his lawyers and the doctors, and that he was faking his symptoms. Mr Catană concluded that in any event the applicant was presumed to have been intending to use a gun during his arrest. In such circumstances, the police officers were entitled to use force and their use of force could be treated as legitimate defence.
35. On an unspecified date the applicant’s lawyer lodged an appeal against the decision of the Prosecutor General’s Office dated 8 June 2005.
36. On 23 February 2006 Judge Gheorghe Morozan from the Râşcani District Court dismissed the appeal. He argued inter alia that the investigation had been carried out carefully and in an objective manner without any derogation from the law. He found that the applicant refused to talk to the prosecutor on 25 and 30 May 2005. Moreover, the applicant had not complained to the prosecutor about being subjected to torture and physical violence. Nor had the doctors said anything to the prosecutor about ill-treatment, even though they were under an obligation to inform him of such matters. The medical file did not disclose any visible signs of violence on the applicant’s body.
3. The complaints about lack of medical care
37. On 1 July 2005 the applicant’s wife complained to the Prosecutor General’s Office inter alia that she was not allowed to see her husband and to provide him with medical care. The policemen and the doctors from the Prison Hospital were keeping the applicant’s medical condition secret in order to hide signs of torture. She also complained that her request to allow an independent doctor to consult the applicant had been rejected. The Prosecutor’s Office never replied to this letter.
38. On 18 August 2005 one of the applicant’s lawyers complained to the Buiucani District Court that the psychiatric investigation ordered by it on 3 August 2005 would not be carried out for unknown reasons. In order to ensure proper medical care to the applicant the court was asked to order the authorities to allow a private doctor to consult the applicant and to speed up the psychiatric investigation. The Buiucani District Court never examined this request.
39. On 6 September 2005 the applicant’s wife complained to the Buiucani District Court that the psychiatric investigation would not be carried out. She informed the court that she had found out that the applicant would not be moved to the Psychiatric Hospital due to the lack of facilities for transporting unconscious people. She argued that her husband’s state of health would become worse and that due to the lack of a diagnosis no appropriate medical care would be possible. She offered to cover all the expenses related to the applicant’s transportation, medical investigation and medical care. This complaint was never examined by the Buiucani District Court.
40. On 6 September 2005 the applicant’s mother wrote to the Buiucani District Court and asked it inter alia to order the speedy psychiatric evaluation of her son, to stop the inhuman treatment and to provide him with medical care appropriate for a human being. This complaint was never examined by the Buiucani District Court.
41. On 13 September 2005 the applicant’s wife wrote to the Buiucani District Court, the Prosecutor General’s Office and to the Chief of the Prison Hospital. She complained inter alia that the psychiatric evaluation of her husband would be postponed on purpose by the police and by the persons who had ordered the criminal investigation of her husband and that this made it impossible to provide him with appropriate medical care. The applicant’s wife did not receive any answer to this complaint.
42. On 5 October 2005 one of the applicant’s lawyers wrote to the Buiucani District Court that following the psychiatric investigation of 20 September 2005 the applicant was diagnosed with a serious psychiatric condition. Since the Prison Hospital, where the applicant was detained until 1 September 2005, did not treat psychiatric diseases no diagnosis and thus no appropriate treatment was possible there. Accordingly he was deprived of medical care needed by a human being and was subjected to inhuman suffering. The Buiucani District Court never replied to this letter.
43. On 6 October 2005 the applicant’s wife complained to the Buiucani District Court inter alia that her husband was not provided with appropriate medical care while in the Prison Hospital. The court did not react to this complaint either.
44. On 24 November 2005 one of the applicant’s lawyers asked the Buiucani District Court for permission to have the applicant visited by a private doctor. He informed the court that for more than six months the applicant had not regained consciousness and that the treatment provided to him by the State was not effective. He also informed the court that the delay in answering his request would amount to inhuman and degrading treatment of the applicant by hindering his recovery. He also informed the court that all the expenses would be covered by the applicant’s family. The court has never examined this request.
4. The proceedings concerning the applicant’s detention on remand
45. On 23 May 2005, following a request by the Prosecutor Nicolae Catană, the Buiucani District Court issued a warrant for the applicant’s detention for 10 days. The reasons given by the court for issuing the warrant were that:
“[the applicant] is suspected of having committed a very serious offence, for which the law provides imprisonment for more than two years; the evidence submitted to the court was obtained lawfully; the isolation of the suspect from society is necessary; he could abscond from law enforcement authorities or the court; he could obstruct the finding of the truth in the criminal investigation or re-offend”.
46. On 25 May 2005 an accusation was officially brought to the applicant by Prosecutor Nicolae Catană.
47. On 25 May 2005 the applicant appealed against the order of remand and argued inter alia that there was no evidence of a risk of his absconding, obstructing the investigation or re-offending. He argued that the criminal proceedings had been pending since February 2004 and that nothing in his behaviour since then could justify suspecting him of such intentions. Moreover, his medical condition was an important argument in favour of his release.
48. On 27 May 2005 the Chişinău Court of Appeal dismissed the appeal lodged by the applicant’s lawyers without giving any reasons.
49. The remand was prolonged by the Buiucani District Court on 30 May and on 22 June 2005 on the same grounds. The applicant’s appeals against the prolongations were dismissed by the Chişinău Court of Appeal on 3 and 30 June 2005 respectively.
50. On 23 July 2005 the detention warrant expired, but the applicant was not released.
51. On 25 July 2005 the Prosecutor’s Office submitted the criminal case-file to the competent court.
52. On 26 July 2005 one of the applicant’s lawyers asked the Buiucani District Court to release the applicant from detention because, inter alia, the detention warrant had expired several days earlier. The request was dismissed on 3 August 2005.
5. The examination by private doctors of the applicant and of his medical file after his transfer to the Psychiatric Hospital
53. The facts presented under this heading are based on the submissions of the applicant and the documents submitted by him. The Government have not disputed them.
54. After 16 November 2005, a private doctor had access to the applicant on only one occasion, in early January 2006. According to the applicant, the purpose of the doctor’s visit was to assess his medical condition and to evaluate the costs of future treatment.
55. After consulting the applicant, Doctor T. Moraru concluded that a number of investigations would be necessary in order for him to reach a conclusion. His written report was sent to the Psychiatric Hospital and to the Buiucani District Court and the applicant’s wife offered to bear all the medical costs.
56. In February 2006 Doctor T. Moraru attempted to visit the applicant again to examine him, but he was not allowed to do so.
57. On 8 February 2006 the applicant’s wife complained to the Buiucani District Court about the refusal of the Psychiatric Hospital authorities to allow a visit by Dr. T. Moraru, but it was dismissed by the court on 10 February 2006 on the ground that the court had no right to interfere with the applicant’s medical treatment by giving instructions to the doctors from the hospital. Similar repeated requests by the applicant’s wife and lawyer were rejected on 16 and 19 February 2006, the court adding that since the criminal proceedings against the applicant were suspended, it would be able to issue orders about him only once the proceedings had been resumed.
58. On an unspecified date the applicant’s wife asked permission from the Psychiatric Hospital to have her husband examined by a private doctor. On 16 February 2006 the Deputy Doctor in Chief of the Psychiatric Hospital wrote to the applicant’s wife that the applicant did not need to be seen by Dr. T. Moraru since he was receiving all necessary medical treatment from the hospital doctors.
59. The applicant’s wife made a similar unsuccessful request on 22 February 2006.
60. On 14 and 22 March 2006 one of the applicant’s lawyers (Mr Gribincea) called the Government Agent’s Office and asked Ms Lilia Grimaschi for assistance in obtaining access to the applicant and to his medical file for him and a private doctor. His request was unsuccessful.
61. On 20 and 28 March 2006 the applicant’s lawyers lodged with the Doctor in Chief of the Psychiatric Hospital two requests for access for Mr T. Moraru to the applicant and his medical file. They submitted in their requests that such access was needed in order to pursue the application before the Court and relied inter alia on Article 34 of the Convention.
62. On the same date the applicant’s lawyer, Mr Gribincea, had a meeting with the Doctor in Chief of the Psychiatric Hospital, Mr I. Catrinici, who verbally rejected his request and argued that no access to the applicant was possible without a court order.
63. On 31 March 2006 Mr I. Catrinici replied in writing to the letter of 28 March 2006 by a letter containing nothing but the text of section 9 of the Law on Psychiatric Assistance (see paragraph 69 below) in two languages, Romanian and Russian.
64. Article 25 of the Constitution of the Republic of Moldova, insofar as relevant, states as follows:
“(4) Detention takes place on the basis of a warrant issued by a judge for a maximum period of 30 days. The lawfulness of the warrant may be challenged, in accordance with the law, before a hierarchically superior court. The period of detention may be extended only by a court, in accordance with the law, to a maximum of twelve months.”
65. The relevant provisions of the Code of Criminal Procedure (‘the CCP’) read as follows:
Section 176
“(1) Preventive measures may be applied by the prosecuting authority or by the court only in those cases where there are serious grounds for believing that an accused ... will abscond, obstruct the establishment of the truth during the criminal proceedings or re-offend, or they can be applied by the court in order to ensure the enforcement of a sentence.
(2) Detention on remand and alternative preventive measures may be imposed only in cases concerning offences in respect of which the law provides for a custodial sentence exceeding two years. In cases concerning offences in respect of which the law provides for a custodial sentence of less than two years, they may be applied if ... the accused has already committed the acts mentioned in § (1).
(3) In deciding on the necessity of applying preventive measures, the prosecuting authority and the court will take into consideration the following additional criteria:
1) the character and degree of harm caused by the offence,
2) the character of the ... accused,
3) his/her age and state of health,
4) his/her occupation,
5) his/her family status and existence of any dependants,
6) his/her economic status,
7) the existence of a permanent place of abode,
8) other essential circumstances.
...
Section 177
...
(2) Detention on remand ... can be applied only on the basis of a court decision...
Section 185. Detention on remand
(1) Detention on remand means the detention of the suspect, accused or indicted person in a state of arrest in places and in conditions provided for by law.
(2) Detention on remand may be applied to someone in the circumstances and in the conditions provided for in Article 176, as well as when:
1) the suspect, the accused or the indicted person does not have a permanent place of residence on the territory of the Republic of Moldova;
2) the suspect, the accused or the indicted person is unknown;
3) the suspect, the accused or the indicted person has breached the conditions imposed on him/her concerning other preventive measures.
...
(4) The decision by which detention on remand is ordered can be challenged by way of an appeal before the hierarchically superior court.
Section 186. The length of the remand and its prolongation
(1) The duration of a person’s remand starts to run from the moment of his or her arrest, or, if the person was not arrested, from the moment of enforcement of the court decision ordering the remand. ...
(2) The remand during the investigation stage of the proceedings, before the case file is sent to the competent court [by the prosecutor] shall not be longer than thirty days, except in cases provided for in the present code. The running of the duration of the remand during the investigation stage of the proceedings ceases on the date when the prosecutor sends the criminal case-file to a court and when the detention on remand is revoked or is replaced with another preventive measure which does not involve a deprivation of liberty.
...
(5) Any prolongation of the detention on remand may not be for a period longer than 30 days.
(6) If it is necessary to prolong the duration of the detention on remand of an accused, the prosecutor shall, not later than 5 days before the expiry of the remand order, make a request in that respect before the investigating judge.
(7) When deciding on the prosecutor’s request about the prolongation of the remand, the investigating judge, or, as the case may be, the court, has the right to replace the detention on remand with home detention, release under judicial control or bail.
(8) After the sending of the bill of indictment to a court all the requests concerning the detention on remand shall be examined by the court in charge of the criminal case.
(9) The prolongation of the duration of remand for up to 6 months shall be decided upon by the investigating judge on the basis of a request of the district prosecutor. In case of a necessity to prolong the duration of the remand for over 6 months the request shall be lodged by the district prosecutor with the consent of the Prosecutor General or his deputies.
(10) The decision concerning the prolongation of the detention on remand may be challenged by way of an appeal to the hierarchically superior court.
Section 190
A person detained on remand under the provisions of Article 185 may request, at any time during the criminal investigation, his provisional release under judicial control or on bail.
Section 191. The provisional release under judicial control of a remanded person
(1) A provisional release under judicial control of a remanded person, or of a person in respect of whom a request for detention on remand has been made, may be granted by the investigating judge or by a court only in case of offences committed through negligence or intentional offences punishable with less than 10 years of imprisonment.
(2) A provisional release under judicial control may not be granted to an accused who has outstanding criminal convictions for serious, very serious or exceptionally serious offences or if there exists information that he or she will commit another offence, will try to influence the witnesses, will try to destroy evidence or will abscond.
(3) A provisional release under judicial control of a remanded person shall be accompanied by one or more of the following obligations:
1) not to leave the town of residence except in the conditions set by the investigating judge or by the court;
2) to inform the investigation organ or the court of any change of address;
3) not to go to certain places;
4) to appear in front of the investigation organ or the court when summonsed;
5) not to make contact with certain persons;
6) not to commit acts capable of hindering the discovery of the truth;
7) not to drive cars or not to exercise any profession of the kind used for committing of the offence.
...
Section 195
(1) A preventive measure applied may be replaced by a harsher one, if the need for it is proved by evidence, or by a lighter one, if by applying it the proper behaviour of ... the accused is ensured, with the aim of ensuring the normal course of the criminal investigation and of enforcing the sentence imposed.
Section 329
(1) In examining a case the court, ex-officio or at the request of the parties and having heard their opinion, shall have the power to apply, revoke or discontinue the preventive measure applied to the accused. A new request for the application, replacement or revocation of a preventive measure may be submitted if there are grounds for such a request, but not earlier than one month from the date of entry into force of the last decision in this respect or if new circumstances have appeared.
Section 345
(1) Within ten days from the date when the case was distributed for judgment, the judge or the bench, having examined the case-file, shall set a date for the preliminary hearing. The preliminary hearing in cases where the person is arrested shall be held urgently and with priority.
...(4) At the preliminary hearing the following issues shall be examined:
...6) preventive and protective measures.
Section 351
...(7) In setting a date for the examination of the case, the court shall order the maintenance, revocation or discontinuation of preventive measures, in conformity with the present Code.”
66. The explanatory judgment of the Plenary Supreme Court of Justice of 28 March 2005 states inter alia that release under judicial control can be granted by the investigating judge or by the trial court only to persons charged with offences committed through negligence or intentional offences punishable with less than 10 years of imprisonment.
67. The Commentary of the Code of Criminal Procedure, edited in 2005, the authors of which are amongst others the President and several judges from the Supreme Court of Justice and several senior law professors, states the following in respect of section 191:
“The first paragraph of section 191 provides for the first condition of admissibility of release under judicial control which is determined by the gravity of the offence with which the accused is charged. This condition [the gravity of the offence] is determined in the documents issued by the investigation body or by the prosecutor, who establish the qualification of the offence...
The investigating judge is not empowered with assessing whether the legal qualification of the offence is correct since he does not examine the evidence on which the qualification is made ...
At the trial stage, the trial court can give a new qualification to the offence with which the accused is charged...”
68. In Drugalev v. the Ministry of Internal Afairs and the Ministry of Finance (final judgment of the Chişinău Court of Appeal of 26 October 2004), after being released, the applicant claimed and obtained compensation for having been held in inhuman and degrading conditions during his pre-trial detention, in the amount of approximately 950 euros (EUR). The court based its award directly on Article 3 of the Convention.
69. Article 53 of the Constitution reads as follows:
“(1) A person whose rights are violated by a public authority through an administrative act or through the failure to examine a request within the statutory period, is entitled to obtain the recognition of the right claimed, the annulment of the act and compensation for damage.
(2) The State bears pecuniary liability, according to the law, for harm caused through errors committed in criminal proceedings by the investigating authorities and courts.”
70. The relevant provisions of the Civil Code read as follows:
“Section 1405. Liability of the State for damage caused by the actions of the criminal investigation organs, prosecution and courts
(1) Damage caused to a natural person through illegal conviction, illegal prosecution, illegal application of preventive measures in the form of detention on remand or of a written undertaking not to leave the city, and illegal subjection to the administrative sanction of arrest or of non-remunerated community work, is to be fully compensated by the State, whether or not officers in the criminal investigation organs, the prosecution or judges were at fault. ...”
71. The relevant provisions of the Law No. 1545 on compensation for damage caused by the illegal acts of the criminal investigation organs, prosecution and courts read as follows:
“Section 1
(1) In accordance with the present law, individuals and legal entities are entitled to compensation for the moral and pecuniary damage caused as a result of:
a) illegal detention, illegal arrest, illegal indictment, illegal conviction;
b) illegal search carried out during the investigation phase or during trial, confiscation, levy of a distraint upon property, illegal dismissal from employment, as well as other procedural acts that limit the person’s rights;
c) illegal administrative arrest or order to work for the community, illegal confiscation of the property, illegal fine;
d) carrying out of unlawful investigative measures;
e) illegal seizure of accounting documents, other documents, money or stamps as well as blocking of banking accounts.
(2) The damage caused shall be fully compensated, irrespective of the degree of fault of the criminal investigation organs, prosecution and courts.
Section 4
A person shall be entitled to compensation in accordance with the present law when one of the following conditions is met:
a) pronouncement of an acquittal judgment;
b) dropping of charges or discontinuation of investigation on the ground of rehabilitation;
c) adoption of a decision by which an administrative arrest is cancelled on the grounds of rehabilitation;
d) adoption by the European Court of Human Rights or by the Committee of Ministers of the Council of Europe of a decision in respect of damages or in respect of a friendly settlement agreement between the victim and the representative of the Government of the Republic of Moldova before the European Court of Human Rights. The friendly settlement agreement shall be approved by the Government of the Republic of Moldova; ...”
72. Section 9 of the Law on Psychiatric Assistance reads as follows:
“Any information about mental diseases suffered by a person, his or her requests for psychiatric medical assistance and treatment in a psychiatric hospital, as well as any other information about his or her mental health constitutes a medical secret. With a view to realising his or her rights and interests, a person suffering from a mental disease or his or her legal representative can obtain any information about his or her psychiatric health and about the psychiatric assistance received.”
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-1
5-3


ITEMID: 001-83369
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF FILIPOVIC v. SERBIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Not necessary to examine Art. 6;Just satisfaction dismissed (out of time)
TEXT: 5. The applicant was born in 1960 and currently lives in Babušnica, Serbia. At the relevant time, he was employed as a tax inspector and has, as of 2000, been the Vice President of the local branch of the Demo-Christian Party of Serbia (Demohrišćanska stranka Srbije).
6. On 21 October 2002 the Municipal Court (Opštinski sud) in Babušnica convicted the applicant of criminal defamation (kleveta) and ordered him to pay a fine in the amount of 6,000 Yugoslav Dinars (“YUD”) plus an additional YUD 25,000 in costs.
7. In the operative part of this judgment the court established: (i) that on 8 March 2001 the applicant had taken part in a “public gathering” (javni skup) in the Babušnica Municipal Hall; (ii) that this “gathering” was attended by the Deputy Prime Minister of the Republic of Serbia, the Deputy Minister for Justice and Local Self-Government, as well as more than 80 municipal councillors and other leading local figures; and (iii) that on this occasion the applicant had publicly stated that Mr P.J., at that time the Mayor of Babušnica, “was not the right person for this job”, given that he had already “embezzled 500,000 German Marks” (jer je proneverio 500 000 DM). The court then concluded that this statement was “untrue” and, as such, capable of “damaging the reputation and honour” of Mr P.J., a well-known and respected local businessman and public servant (društveno-politički radnik), and proceeded to find the applicant guilty as charged.
8. In its reasoning, inter alia, the Municipal Court relied on two witnesses who, “though members of different political parties”, had heard the applicant state that the Mayor had “embezzled” 500,000 German Marks” in 1996, as director of a major State-owned company, but dismissed, as unconvincing, the testimony of at least four others who had stated that the applicant had said that the Mayor had “deprived” (oštetio) the State of the same amount in revenue. The court further held that the official minutes of the meeting in question, containing language to the same effect, were of “no greater probative value” because they were composed by a person who was himself merely a “witness”, and, finally, that a criminal complaint filed against the Mayor for tax evasion in 1996 had not ultimately resulted in his conviction (see paragraphs 16 and 17 below).
9. On 31 December 2003 the District Court (Okružni sud) in Pirot rejected the applicant's appeal and, on the same facts, found him guilty of the crime of insult (uvreda), rather than criminal defamation (kleveta), holding that the meeting at issue could not be deemed a “public gathering” within the meaning of the Serbian Criminal Code. The sentence imposed by the Municipal Court, however, was upheld in its entirety and thereby became final.
10. On an unspecified date in 2004, the Mayor filed a separate civil compensation claim with the Municipal Court in Babušnica, seeking 300,000 Serbian Dinars (“RSD”) for the mental anguish suffered due to the applicant's statement referred to above.
11. On 23 September 2004 the Municipal Court ruled partly in favour of the Mayor, without having heard him in person, and, in so doing, ordered the applicant to pay RSD 120,000 in compensation, together with default interest, plus costs in the amount of RSD 33,400. At that time, this was equivalent to approximately 2,077 Euros (“EUR”), or, in more concrete terms, the applicant's total net salary for the previous six months.
12. In its reasoning, the court relied on the applicant's criminal conviction, as well as the findings of the criminal courts, and held that the Mayor's reputation had indeed been harmed, causing him serious and continuing mental anguish. The court noted that the plaintiff in this case was both a Mayor and a leading local businessman and concluded that adequate financial compensation was called for.
13. On 20 December 2004 the District Court in Pirot rejected the applicant's appeal and, in so doing, fully accepted the reasoning of the Municipal Court, whose judgment thereby became final. The applicant received a written copy of the District Court's decision on 24 January 2005.
14. On 9 March 2005 the applicant paid a total of RSD 153,400 in respect of the compensation awarded against him, the interest accrued and the costs of the civil proceedings.
15. According to the official minutes of the meeting held in the Babušnica Municipal Hall on 8 March 2001, the Deputy Prime Minister stated that the purpose of this meeting was to “asses the functioning of the municipality” as a whole. He invited the participants to openly share their “critical views” in this respect and explained that, if needed, the Government would consider imposing specific measures aimed at tackling any serious issues.
16. The minutes, thereafter, reflected that the applicant had accused the Mayor of not being “the right person for the job” and that “this ... country deserved someone better”. He then added that in 1996, in his capacity as a tax inspector, he had found “numerous irregularities” with respect to “Lisca”, a major State-run company headed by the Mayor, and that he had thus filed a criminal complaint, alleging that the Mayor had “deprived the State of 500,000 German Marks” in revenue.
17. The applicant provided the Court with the said criminal complaint, dated 24 June 1996, as well as three separate decisions issued by the Public Revenue Directorate (Republička uprava javnih prihoda): two of 22 August 1996 and 2 September 1996, respectively, ordering “Lisca” to pay its overdue taxes, and the third, of 25 December 1996, fining the company for its failure to do so.
18. Article 154 defines different grounds for claiming civil compensation.
19. Article 172 § 1 provides that a legal entity, which includes the State, is liable for any damage caused by one of “its bodies”.
20. Articles 199 and 200, inter alia, state that anyone who has suffered mental anguish as a consequence of a breach of his or her honour or reputation may, depending on its duration and intensity, sue for financial compensation before the civil courts and, in addition, request other forms of redress “which may be capable” of affording adequate non-pecuniary satisfaction.
21. Articles 191 and 205 provide, inter alia, that a domestic court may decide to reduce the compensation award taking into account, ex officio, the specific financial circumstances of the respondent.
22. Article 12 § 3 provided that a civil court was bound by a final decision of a criminal court in respect of whether or not a crime had been committed, as well as the criminal responsibility of the defendant.
23. A civil court dealing with a compensation claim shall be bound by the criminal court's assessment of the defendant's criminal responsibility. It “shall not [however] be bound” by any of its other findings (Rev. 1089/90) and shall be entitled to “assess independently” the defendant's civil liability (Gž. 1316/67).
24. Articles 3 § 3, 413, 415, 417 and 418 provide that the Public Prosecutor shall, ex officio or in response to a party's specific proposal, within a period of three months, have the right to lodge a Request for the Protection of Legality against a final civil court decision, if it transpires that the decision in question was “based on the parties' unlawful dispositions” (nedozvoljeno raspolaganje stranaka), i.e. those undertaken in breach of the “binding provisions of domestic law, public order or the rules of morality” (prinudni propisi, javni poredak i pravila morala). Should the Public Prosecutor refuse to lodge a request of this sort within the prescribed deadline, the party who had urged him to do so shall, within thirty days, have the right to file its own Request for the Protection of Legality with the Supreme Court.
25. The Civil Procedure Act 2004 entered into force on 23 February 2005, thereby repealing the Civil Procedure Act 1977. Article 491 §§ 1 and 5 of the 2004 Act, however, provides that the 1977 Act shall remain in force, inter alia, in respect of all proceedings where the first instance judgment was rendered prior to 23 February 2005 and, further, that any pending Requests for the Protection of Legality shall be dealt with on the basis of the 1977 Act.
26. Article 25 of the Serbian Constitution (Ustav Republike Srbije) published in the Official Gazette of the Socialist Republic of Serbia - OG SRS - no. 1/90 provided as follows:
“Everyone shall be entitled to compensation for any pecuniary and non-pecuniary damages suffered due to the unlawful or improper conduct of a State official, a State body or a public authority, in accordance with the law.
Such damages shall be covered by the Republic of Serbia or the public authority [in question].”
27. This Constitution was repealed on 8 November 2006, which is when the new Constitution, published in OG RS no. 98/06, entered into force.
28. The substance of Article 35 § 2 of the “new” Constitution corresponds, in its relevant part, to the above-cited text of the previous Article 25.
29. The relevant provisions concerning the succession of the State Union of Serbia and Montenegro are set out in the Matijašević v. Serbia judgment (no. 23037/04, §§ 22-25, 19 September 2006).
VIOLATED_ARTICLES: 10


ITEMID: 001-23689
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: KANDRACOVA and OTHERS v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants, whose names appear in the appendix, are siblings. They are Slovakian nationals. The respondent Government were represented by Mr P. Kresák, their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 24 February 1992 the applicants lodged an action for restitution of property under the Extra-Judicial Rehabilitations Act of 1991 with the Bratislava - vidiek District Court (Okresný súd). They relied on Sections 2 § 1 and 6 § 2 of this Act and claimed that real property which formed a part of their late parents’ estate and which was in the possession of two individuals should be restored to them.
On 17 March 1992 the District Court delivered a copy of the action to the defendants.
On 21 March 1992 the applicants authorised an advocate to represent them in the proceedings.
On 23 March 1992 the applicants filed a motion to the District Court to secure evidence by hearing two witnesses. They drew the court’s attention to the fact that the two witnesses were aged and in a poor state of health which did not permit them to appear in court. At the same time, they informed the court of the appointment of their lawyer and submitted additional documentary evidence.
On 27 March 1992 the defendants requested an extension of the timelimit for filing their observations in reply to the action.
On 4 April 1992 the defendants authorised a lawyer to represent them in the proceedings and, on 8 April 1992, they submitted their observations.
By a letter of 27 April 1992 the defendants requested that a hearing scheduled for 20 May 1992 be adjourned as their lawyer was unable to attend on that date.
On 21 May 1992 the applicants’ lawyer requested that a hearing scheduled for 3 June 1992 be adjourned at least until 20 June 1992 due to health problems of one of the applicants.
In consequence of a certificate issued by a doctor on 8 June 1992, the participation of one of the defendants in the lawsuit was judged inappropriate as it could bring about deterioration in her health.
On 13 July 1992 the District Court held a hearing. Two applicants and one defendant were not present. Their lawyers however excused their absence and took part in the hearing. The defendants’ lawyer proposed that, having regard to the medical condition of his absent client, it might be appropriate to hear her at her home.
On 16 July 1992 one of the applicants requested that the District Court hear eleven witnesses. She pointed out that two of the witnesses were aged and were in poor health.
On 28 July 1992 the District Court held the second hearing. One applicant and one defendant were not present but they excused their absence through their lawyers who took part in the hearing.
On 16 September 1992 the District Court held the third hearing. Two applicants were not present but their lawyer, who was present, apologised for their absence.
At an unspecified time the legal representative of the applicants requested that the District Court hear no witnesses before 10 November 1992.
On 30 November 1992 the legal representative of the defendants requested that the District Court hear witnesses only after 15 December 1992.
The District Court, acting through another judge (the second judge), had to adjourn the hearing scheduled for 19 April 1993 as none of the invited witnesses appeared, one of them having died in the meantime and one being seriously ill.
On 25 June 1993 and on 27 September 1993 the applicants amended their action and submitted supplementary evidence in support of it.
On 8 October 1993 the defendants submitted their observations in reply to the amended action.
On 14 March 1994 the applicants complained about delays in the proceedings to the President of the District Court. On 16 May 1994 they sent a similar complaint to the Minister of Justice.
On 31 May 1994 the President of the District Court informed the applicants that the judge dealing with the case had a heavy workload and that there was a shortage of judges at that court. He further informed them that the progress of case would be under supervision in order to avoid further delays.
In July and August 1994 the applicants requested that the District Court promptly hear S., another witness. They pointed out that S. was elderly and in a poor state of health which prevented him from appearing in court. On 6 September 1994 a trainee judge (právna čakateľka) of the District Court heard S. at his home. The witness maintained that he could only take part in a court hearing after the completion of medical treatment that was to commence on 12 September 1994. No party to the proceedings took part in that hearing. On 8 September 1994 the District Court sent a copy of the record of the hearing to the parties.
On 27 September 1994 the defendants challenged the truthfulness of the testimony of S. and requested that he be reheard in a courtroom.
At the end of 1994, the case was assigned to another judge (the third judge) in accordance with the general annual reallocation of cases for the judicial year 1995.
On 23 January 1995 the District Court held the fourth hearing. Three applicants and one defendant did not appear. Their representatives took part in the hearing and excused them.
On 24 March 1995 the applicants requested that the District Court hear several witnesses. They drew the court’s attention to the fact that the witnesses were aged and that several witnesses whom they had previously proposed to hear had died.
On 27 March 1995 the District Court held the fifth hearing.
On 25 April 1995 the applicants requested that the District Court hear one of the defendants.
On 4 April 1995 the District Court scheduled that defendant’s hearing for 20 April 1995. However, the hearing could not take place and had to be postponed as, by that time, the postal service had not provided a report showing that the invitations had been served on the parties in time. The hearing took place at the defendant’s home on 30 May 1995.
On 1 June 1995 one of the applicants requested the District Court not to schedule a hearing before 24 June 1995 as she would be on a business trip until that date.
The hearing called for 26 June 1995 was adjourned and the District Court ordered the applicants to submit further documentary evidence. The applicants complied on 28 June 1995.
On 28 July 1995 a District Court Judge heard another witness.
In a submission of 8 August 1995 the applicants restated their action in that they sought a judicial ruling declaring them to be the owners of the property in question.
On 11 August 1995 the defendants submitted their observations in reply to the restated action.
At the sixth hearing held before the District Court on 17 August 1995, the applicants, through their lawyer, confirmed that they wished to modify the original subjectmatter of their action. They undertook to submit a newly reformulated version of their action within three days.
On 21 August 1995 the applicants submitted the amended action in which they sought a judicial ruling declaring void a donation agreement and ordering the defendants to restore the real property in issue to them.
On 19 September 1995 the defendants filed their observations in reply to the redrafted action.
At the seventh hearing held on 21 September 1995 the District Court decided not to grant the applicants leave to change the subjectmatter of their action.
On 27 September 1995 the applicants filed their final submission.
On 5 October 1995, following the eighth hearing, the District Court dismissed the action. It found, inter alia, that the applicants had failed to prove that their legal predecessors had formally owned the property in question. It further found that it had not been established that the State had taken over the property and that the defendants had acquired the property from the State contrary to the rules then in force which were the prerequisites for granting the claim. The decision was served on the legal representatives of the parties on 28 December 1995.
On 12 January 1996 the applicants appealed. They argued inter alia that their title to the property was based on hereditary succession and that, in the past, the State has actually prevented them from using the property at issue.
On 8 February 1996 the defendants filed their comments on the appeal.
On 12 September 1996, following a hearing, the Bratislava Regional Court upheld the first instance judgment. It found that the evidence available indicated that the property in question had never been formally transferred to the State. The fact that the State had actually disposed of the property had no bearing on this conclusion. The defendants had acquired the property by succession and by donation inter vivos within their family. The Regional Court therefore concluded that the requirements for the restitution of the property were not met.
On 7 March 1997 the applicants filed an appeal on points of law to the Supreme Court. The latter declared it inadmissible on 26 February 1998 having found no shortcomings in the proceedings which would justify quashing the Regional Court’s judgment.